Montoya v. City of San Diego

Opinion

1 2 3 4 5 6 7 10 ALEX MONTOYA; REX SHIRLEY; Case No.: 19cv0054 JM(BGS) PHILIP PRESSEL; and AARON 11 GRESSON, individually, and on behalf of ORDER ON MOTION FOR 12 all others similarly situated, PRELIMINARY INJUNCTION 13 Plaintiffs, 14 v. 15 CITY OF SAN DIEGO, a public entity; and DOES 1-100, 16 Defendants. 17 18 19 On October 2, 2020 Plaintiffs filed a Motion for Preliminary Injunction against the 20 City of San Diego (the “City”) to enjoin the City from allowing pedestrian rights-of-way 21 to be obstructed by dockless vehicles in violation of the Americans with Disabilities Act 22 (“ADA”), the Rehabilitation Act, and California’s Disabled Persons Act (“DPA”). (Doc. 23 No. 106.) The motion has been fully briefed and the court finds it suitable for submission 24 on the papers and without oral argument in accordance with Civil Local Rule 7.1(d)(1). 25 For the reasons set forth below, Plaintiffs’ motion is denied. 26 I. Background 27 On January 9, 2019, Plaintiffs filed a putative class action complaint asserting claims 28 for violations of the ADA, 42 U.S.C. § 12101 et seq., section 504 of the Rehabilitation Act, 1 29 U.S.C. § 794 et seq., California Civil Code section 51, et seq., (the “Unruh Act”), 2 California Civil Code section 54, et seq., (the “DPA”); California Government Code 3 section 4450, et seq., and California Government Code section 11135, et seq. (Doc. No. 1.) 4 On March 21, 2019, Plaintiffs filed the First Amended Class Action Complaint 5 (“FAC”). (Doc. No. 14.) The court issued a detailed order denying the City’s motion to 6 dismiss the FAC but granting the motions to dismiss brought by the private entities that 7 rent the dockless vehicles to third party individuals, which Plaintiffs categorized as the 8 “Dockless Vehicle Defendants.” (See Doc. No. 89.) Plaintiffs chose not to amend their 9 claims against the Dockless Vehicle Defendants. 10 Following a joint motion to amend, Plaintiffs filed the Second Amended Complaint 11 (“SAC”). (Doc. Nos. 95, 96, 97.) 12 The SAC alleges that Plaintiffs, who are individuals with disabilities, had found their 13 access to San Diego’s sidewalks diminished by the proliferation of dockless electric 14 vehicles currently in use in the City. (SAC ¶¶ 1, 2, 12, 13, 14, 15.) They allege that people 15 using the dockless electric vehicles either travel on the sidewalks or block paths of travel 16 because the vehicles are discarded in the middle of sidewalks or at other rights-of-way, 17 making it difficult for people with disabilities to safely traverse the pathways. (Id. at 2, 18 3.1) Further, the SAC alleges that as usage and abandonment of these vehicles and the 19 speed at which they travel increases, Plaintiffs are denied safe, equal, and full access to the 20 sidewalks. (Id. ¶¶ 20-29.) In Plaintiffs’ words, the vehicles’ “burgeoning proliferation and 21 uncurbed growth comes at the detriment of the rights of all disabled persons with mobility 22 and/or visual impairments who are residents and visitors of the City of San Diego, causing 23 Plaintiffs injury, severe anxiety, diminishing their comfort and discriminating against them 24 based on their disabilities….” (Id. at ¶ 30.) Plaintiffs direct allegations at the City 25 regarding its responsibilities as a municipality and the duty it has to maintain the sidewalks. 26 27 1 Document numbers and page references are to those assigned by CM/ECF for the docket 28 1 (See, e.g., id. at ¶¶ 31-34, 37, 41-42, 53, 55-61, 68-72, 76-79, 83, 87-91, 97-100, 107-108, 2 111.) 3 On May 8, 2020, the City filed its answer to the SAC. (Doc. No. 102.) 4 On October 1, 2020, Plaintiffs filed a motion for leave file a third amended 5 complaint. (Doc. No. 105.) The City opposed the motion, (Doc. No. 110) and the court 6 denied the request. (Doc. No. 132.) 7 On October 2, 2020, Plaintiffs filed the motion for preliminary injunction. (Doc. 8 No. 106.) The City filed its opposition2, (Doc. Nos. 126, 127) and Plaintiffs filed their 9 reply (Doc. No. 131). 10 II. Legal Standard 11 Injunctive relief may only be granted upon a showing of “irreparable injury and the 12 inadequacy of legal remedies.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). 13 See also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (The issuance of 14 a preliminary injunction is an “extraordinary remedy that may only be awarded upon a 15 clear showing that the plaintiff is entitled to such relief.”); Stanley v. Univ. of So. Calif., 13 16 F.3d 1313, 1320 (9th Cir. 1994). A plaintiff must show “that he faces a real or immediate 17 threat,” as opposed to a mere possibility, that he will suffer substantial or irreparable injury. 18 See, e.g., Midgett v. Tri-County Metro. Transp. Dist. Or., 254 F.3d 846, 850 (9th Cir. 2001). 19 Thus, “plaintiffs seeking a preliminary injunction face a difficult task in proving that they 20 21 22 2 Along with its opposition, the City asked the court to take judicial notice of: (1) Exhibit 23 A, San Diego Municipal Code sections 83.0301 et seq.; (2) Exhibit B, San Diego Emergency Order, effective November 14, 2020; (3) Exhibit C, the contract between the 24 City of San Diego and Sweep, Inc.; and (4) Exhibit D, a Consumer Reports Article. (Doc. 25 No. 126-1.) The City makes the request pursuant to Federal Rule of Evidence 201. Plaintiffs do not oppose the request. Having only consider Exhibits A and C in ruling on 26 the motion, the court takes judicial notice of these two exhibits and declines to take judicial 27 notice of Exhibits B & D. See Johnson v. DBTA, LLC 424 F. Supp. 3d 657, 662 (N.D. Cal. 2019) (“Public records maintained on government websites are generally subject to judicial 28 1 are entitled to this ‘extraordinary remedy.’” Earth Island Institute v. Carlton, 626 F.3d 2 462, 469 (9th Cir. 2010) (citing Winter, 129 S. Ct. at 376)). 3 Under the traditional standard, in order to obtain a preliminary injunction, the party 4 seeking relief must demonstrate: (1) that he is likely to succeed on the merits; (2) that he is 5 likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of 6 equities tips in his favor; and (4) that an injunction is in the public interest. Winter, 7 555 U.S. at 20. Courts within the Ninth Circuit can also apply a variant of this standard 8 known as the “sliding scale” which provides “if a plaintiff can only show that there are 9 ‘serious questions going to the merits’ – a lesser showing than likelihood of success on the 10 merits-then a preliminary injunction may still issue if the ‘balance of hardships tips sharply 11 in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Alliance for the 12 Wild Rockies v. Pena, 865 F.3d 1211, at 1217 (9th Cir. 2017) (quoting Shell Offshore, Inc. 13 v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013). 14 III. Discussion 15 Plaintiffs contend that a preliminary injunction against the City will protect 16 Plaintiffs’ physical safety and prevent the irreparable loss of dignity, independence, and 17 deprivation of Plaintiffs’ civil rights during the pendency of this action. They assert that 18 people with mobility and visual impairments are being disproportionately burdened and 19 their independence impeded by the City’s acquiescence in allowing the public sidewalks 20 to be turned into showrooms, rental stores, and store locations for the dockless vehicle 21 companies. Plaintiffs argue that “[d]ue to the ubiquitous presence of dockless vehicles, 22 people with mobility and visual impairments are denied equal access to and equal 23 enjoyment of the City’s system of sidewalks, cross walks, transit stops and other 24 walkways.” (Doc. No. 106-1 at 8.) In support of their request, Plaintiffs have provided 25 individual declarations (Docs. Nos. 106-3 – 106-6, 131-1 – 131-4) and have provided a 26 27 28 1 report by an accessibility expert, Mr. Jeff Mastin , (Doc. No. 106-2), who assessed the 2 dockless vehicle impact on the public system of sidewalks, transit stops, crosswalks, and 3 curb ramps. Attached to their reply brief is an additional declaration from Mr. Jonathan 4 Freeman, PhD, a founding member of Safe Walkways, a group that was formed by citizens 5 in 2018 in response to “the dangers created for pedestrians by dockless motorized scooters 6 and bikes made available for rent in San Diego.” (Doc. No .131-5 at ¶ 2.) 7 As to the relief being requested, without providing much in the way of specifics, 8 Plaintiffs conclude by asking the court to: 9 provide the relief that Plaintiffs need to meaningfully access public sidewalks without encumbrance and without risk to their safety, so that they have the 10 same ability to independently and meaningfully enjoy the benefits of the 11 sidewalk as do those without disabilities. The Court should enjoin the City from permitting dockless vehicles to be present on the sidewalk or other 12 pedestrian access ways in any fashion.” 13 14 (Doc. No. 160-1 at 34.) In essence, the Plaintiffs are asking the court for an order 15 prohibiting the City from permitting or authorizing dockless vehicles to be present on 16 public sidewalks, crosswalks, transit stops, and other pedestrian walkways, or access ways 17 anywhere within the City and under the City’s jurisdiction. 18 In opposition, the City counters that Plaintiffs’ failure to seek the injunction for over 19 two years belies their claims that they now need urgent judicial intervention to avoid 20 irreparable harm. (Doc. No. 126 at 9-11.) The City also contends that Plaintiffs have 21 neither demonstrated that they are likely to succeed on the merits nor that they will be 22 irreparably harmed. (Id. at 13-18.) The City also argues that granting Plaintiffs motion 23 will harm the public interest. (Id. at 11-13.) The City has also filed a declaration from an 24 25 26 3 While the court appreciates Mr. Mastin’s opinions on the subject, it should be noted that 27 he visited San Diego on March 7 – 10, 2019 and again on October 12-13, 2019. (Doc. No. 106-2 at ¶ 2.) 28 1 accessibility expert, (Doc. No. 127) and a declaration by a City of San Diego Investigator 2 (Doc. Nos. 127-1 – 127-6) in support of its opposition to Plaintiffs’ motion for preliminary 3 injunction. 4 (a) Delay Undercut Claims 5 The City argues that Plaintiffs’ long delay in bringing this motion “belies their claim 6 of irreparable harm and urgent need for judicial intervention.” (Doc. No. 126 at 9.) 7 Plaintiffs counter that their delay in filing for the injunction was justified, and that the delay 8 should not prevent the issuance of the injunction, especially in light of the fact that they 9 face “ongoing, cumulative harm.” (Doc. No. 131 at 5.) 10 While Plaintiffs attempt to downplay the delay, it is a fact the court must consider. 11 As the Ninth Circuit has explained: “[a]lthough, ‘delay by itself is not a determinative 12 factor in whether the grant of interim relief is just and proper,’ that the [plaintiff] tarried so 13 long before seeking this injunction is nonetheless relevant in determining whether relief is 14 truly necessary ... [because it] ‘implies a lack of urgency and irreparable harm.’” Miller 15 for & on behalf of NLRB v. Cal. Pac. Med. Ctr., 991 F.2d 536, 544 (9th Cir. 1993) (quoting 16 Aguayo ex rel. NLRB v. Tomco Carburetor Co., 853 F.2d 744, 750 (9th Cir. 1988) and 17 Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d 1374, 1377 (9th Cir. 1985)). 18 However, “tardiness is not particularly probative in the context of ongoing, worsening 19 injuries.” Arc of Cal. v. Douglas, 757 F.3d 975, 990 (9th Cir. 2014). 20 Here, the original complaint was filed on January 9, 2019, with Plaintiffs not moving 21 for injunctive relief until October 2, 2020, 21 months after filing suit. Plaintiffs contend 22 they refrained from filing the injunction because they were in months long settlement 23 negotiations with the City. But those negotiations only began after the SAC was filed. 24 (See Doc. No. 129-1.) A review of the docket reveals that the SAC was filed on April 15, 25 2020, 15 months after the original complaint. As to the consideration given to the Deputy 26 City Attorney’s illness, this also occurred following the filing of the SAC. (See id.) 27 Therefore, the justifications propounded by Plaintiffs do not account for the 15-month 28 interval between when they initiated this lawsuit and began settlement negotiations. 1 Moreover, Plaintiffs have consistently alleged that the dockless vehicles have created 2 hazards on the sidewalks, crosswalks, transit stops and other walkways since the very 3 beginning. Thus, the harm they have been exposed to has been present since the outset. 4 The failure to seek injunctive relief is, therefore, probative, appears to have been a tactical 5 decision, and implies a lack of urgency that the court must consider. Accordingly, the court 6 finds this factor weighs against Plaintiffs. 7 (b) Immediate Irreparable Harm 8 Plaintiffs assert they will suffer irreparable harm in the absence of injunctive relief 9 because they are deprived of their ability to safely traverse the City’s sidewalks and that 10 they have been stripped of their dignity and independence due to their disabilities. (Doc. 11 No. 106-1 at 16-17.) Plaintiffs also point to the recent proliferation in the number of 12 dockless vehicles to support their claim that an injunction is necessary, arguing that this 13 uptick increases the chances that the sidewalks will once again become obstructed. In 14 opposition, the City argues that Plaintiffs have failed to demonstrate imminent, irreparable 15 harm. (Doc. No. 126 at 13.) 16 Plaintiffs seeking preliminary relief are required to demonstrate that irreparable 17 injury is likely in the absence of an injunction. Winter, 555 U.S. at 20. The Ninth Circuit 18 has elucidated that “[s]peculative injury does not constitute irreparable injury sufficient to 19 warrant granting a preliminary injunction. A plaintiff must do more than merely allege 20 imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate 21 threatened injury as a prerequisite to preliminary injunctive relief.” Boardman v. Pac. 22 Seafood Grp., 822 F.3d 1011, 1022 (9th Cir. 2016) (quoting Caribbean Marine Servs. Co., 23 Inc., v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988)). 24 The parties have each submitted expert reports that contain countless photographs 25 of San Diego’s sidewalks. (See Doc. No. 106-2, 127 – 127-6). Plaintiffs’ expert has 26 submitted photographs depicting dockless scooters and bikes parked illegally, blocking 27 access on sidewalks and curb ramps, and individuals riding the scooters on sidewalks. 28 (Doc. Nos 106-2 at 72-127). Attached to the declarations of Plaintiffs Rex Shirley and 1 Philip Pressel are photographs documenting their experiences of traveling around the City 2 on mobility scooters and encountering instances where dockless vehicles blocking their 3 paths of travel and riders of scooters were on the sidewalks. (See Doc. Nos. 106-5 at 8-23, 4 131-1 at 3-8.) Similarly, Jonathan Freeman included numerous photographs along with 5 the declaration he filed in support of Plaintiff’s motion. (Doc. No. 131 at 131-5 at 23, 25, 6 27, 31, 33, 35, 37, 39, 41, 43, 45.) In opposition, Defendant has submitted photographs 7 depicting clear sidewalks, individuals with disabilities safely and easily traversing the 8 sidewalks, and dockless scooters left neatly in designated corrals. (Doc. Nos. 127 at 21- 9 27, 127-2 at 2-7, 127-3 at 2-7, 127-4 at 2-7, 127-5 at 2-7, 127-6 at 2-7.) In other words, 10 for every picture Plaintiffs have submitted in support of their claims, the City has countered 11 with one supporting its position. (Compare Doc. Nos 106-2 at 72-127, 106-5 at 8-23,131- 12 1 at 3-8, 131-5 at 23, 25, 27, 31, 33, 35, 37, 39, 41, 43, 45 with Doc. Nos. 127 at 21-27, 13 127-2 at 2-7, 127-3 at 2-7, 127-4 at 2-7, 127-5 at 2-7, 127-6 at 2-7.) The court is not 14 surprised by this conflicting evidence considering the fact that the dockless vehicles are 15 constantly moving objects and their presence in one location is not fixed. 16 The named Plaintiffs’ declarations detail specific encounters with dockless vehicles 17 and the users of them. (Doc. Nos. 106-3 – 106-6, 131-1 – 131-2.) While the court is 18 sympathetic to Plaintiffs, they have described several frustrating, isolated inconveniences 19 that have impeded their paths of travel. But all members of the general public are subjected 20 to the nuisance the presence of these dockless vehicles on sidewalks pose when ridden by 21 an individual disregarding the user instructions and the traffic laws or when carelessly 22 abandoned by the user - facts Plaintiffs themselves even acknowledge. (see Doc. No. 106- 23 1 at 16.) The City cannot guarantee that individuals with disabilities will not encounter 24 some impediments when they move around on the sidewalks. The realities of everyday 25 life mean that a “perfect” ADA accessible sidewalk does not exist in the constantly 26 changing variable that is city living. This is perhaps best illustrated when one considers 27 the use of bicycles and skateboards. There are countless signs posted on city streets 28 designed to prevent cyclists and skateboarders from riding on sidewalks, and bike riding 1 and skateboarding is prohibited in certain areas, yet individuals will choose to disregard or 2 ignore such signage. Likewise, people and businesses still place or abandon items on the 3 sidewalks that make it difficult for individuals with disabilities to move efficiently around 4 the city. All of these actions create transitory hazards for members of the public, and the 5 City relies on its regular enforcement efforts to control compliance. But it is not practicable 6 to expect that compliance can be achieved every second of every day. 7 Plaintiffs’ position also ignores the efforts the City has taken to address the influx of 8 dockless vehicles into San Diego. It has: (1) adopted two ordinances; (2) required rental 9 companies to obtain a permit before it can operate; and (3) entered into a contract with 10 Sweep, Inc., that authorizes Sweep to immediately impound any shared mobility device 11 that may impede disabled access to public rights-of-way. (See 12 https://www.sandiego.gov/sites/default/files/41 rfp 10089596-20- 13 b shared mobility device services - contract - final.pdf; Doc. No. 126-2 at ¶12;4) One 14 rental company, Bird, has also taken steps to educate riders with digital instructions and 15 animated illustrations on how to park the dockless vehicles to avoid obstructing pedestrian 16 rights-of-way, has educated riders on the ADA and city safety regulations and offered 17 incentives to riders to park dockless vehicles in designated corrals. (See generally Doc. 18 No. 126-3.) To be clear, the court is not suggesting that the City’s solution is perfect, it 19 simply illustrates that the City has been working toward finding a solution. This fact 20 mitigates against the court imposing the drastic relief requested by Plaintiff at this stage of 21 the proceedings. Accordingly, the court finds this factor weighs against Plaintiffs. 22 (c) Public Interest 23 Plaintiffs maintain that preventing discrimination against people with disabilities 24 serves to uphold the purpose of the ADA and that “[a] completely accessible walking city 25

26 27 4 The contract, entered into in October 2019, requires Sweep to perform its enforcement duties 10 hours a day, 7 days a week. (Doc. No. 126-2 at ¶ 11.) The rental companies have 28 1 that is equally and fully accessible to every person with disabilities is assuredly in the 2 public interest.” (Doc. No. 106-1 at 19.) The City counters that issuing an injunction 3 would frustrate the will of San Diegans and the entire state of California. (Doc. No. 126 at 4 12.) The City also argues that enjoining it from enforcing the municipal code would not 5 resolve Plaintiffs’ complaints. (Id.) 6 A court considering a request for preliminary injunction must “weigh in its analysis 7 the public interest implicated by [an] injunction.” Arc of Cal757 F.3d at 991 (quoting 8 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009)). “When the reach of an 9 injunction is narrow, limited only to the parties, and has no impact on non-parties, the 10 public interest will be ‘at most a neutral factor in the analysis rather than one that favor[s] 11 [granting or] denying the preliminary injunction.” Stormans, 586 F.3d at 1138-39. If, 12 however, the impact on an injunction reaches beyond the parties, carrying with it a potential 13 for public consequences, the public interest will be relevant to whether the district court 14 grants the preliminary injunction.” Id. at 39. See also Fund for Animals v. Lujan, 962 F.2d 15 1391, 1400 (9th Cir. 1992). (“In cases where the public interest is involved, the district 16 court must also examine whether the public interest favors the plaintiff.”); Weinburger, 17 456 U.S. at 312-13 (“[When] an injunction is asked which will adversely affect a public 18 interest … the court may in the public interest withhold relief until a final determination of 19 the rights of the parties, though some postponement may be burdensome to plaintiff.”). 20 Here, in asking the court to order that all dockless vehicles be removed from the City 21 limits while this lawsuit proceeds, Plaintiffs are asking for relief that goes beyond 22 maintaining the status quo, they are asking for the final relief requested in the SAC. The 23 overbreadth of this request is evidenced by the fact that it reaches non-parties and 24 implicates issues of broader public concern that could have public consequences. 25 Additionally, the California State legislature encourages the use of the dockless vehicles in 26 question and the people of San Diego have also spoken on the issue. The San Diego City 27 Council has enacted an ordinance allowing dockless vehicle companies to operate within 28 the San Diego City limits. Its purpose is to “establish a process for permitting the operators 1 [of dockless scooters] to achieve the City’s goals of encouraging alternate methods of 2 transportation while protecting public health and safety.” San Diego Municipal Code 3 §83.0301; see also CAL. VEH. CODE. § 21220. Similarly, California’s state legislature has 4 found that motorized scooters “produced no emissions, and therefore, do not contribute to 5 increased air pollution or increase traffic congestion… It is the intent of the Legislature in 6 adding this article to promote the use of alternative low-emission or no-emission 7 transportation.” CAL. VEH. CODE § 21220. Not only does the California Vehicle Code 8 authorize the use of motorized scooters, but the operating restrictions section states: “The 9 operator of a motorized scooter shall not do any of the following: … (i) Leave a motorized 10 scooter lying on its side on any sidewalk or park a motorized scooter on a sidewalk in any 11 other position, so that there is not an adequate path for pedestrian traffic.” Id. § 21235(i). 12 Under this provision, parking a dockless scooter on the sidewalk is, therefore, not 13 prohibited. See Golden Gate Rest. Ass’n v. City & Cnty. of S.F., 512 F.3d 1112, 1127 (9th 14 Cir. 2008) (“We are not sure on what basis a court could conclude that the public interest 15 is not served by an ordinance adopted in such a fashion. Perhaps it could so conclude if it 16 were obvious that the Ordinance was unconstitutional or preempted by a duly enacted 17 federal law, in which elected federal officials had balanced the public interest 18 differently…”). Accordingly, the court finds the public interest is not served by granting 19 the preliminary injunction and that this factor weighs against Plaintiffs. 20 (d) Balance of Equities 21 To obtain a preliminary injunction, a plaintiff must also demonstrate that ‘the 22 balance of equities tips in his favor.” Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 23 2017). Plaintiffs assert that the balance in equities tips in their favor. They take the position 24 that if the injunction is not granted, “people with disabilities who have mobility 25 impairments will be forced to choose between staying in their homes or risking physical 26 safety and mental anguish attempting to navigate the highway obstacle course that public 27 sidewalks have become. If the injunction is entered the only harm may be to the dockless 28 vehicles offerings being present on sidewalks throughout the City.” (Doc. No. 106-1 at 1 18.) Plaintiffs suggest that the City find other ways to display, park and store the dockless 2 vehicles than “private appropriation of the public sidewalks and rights-of-way.” (Id.) 3 If the injunction is not entered, Plaintiffs will not, as set forth above, suffer 4 irreparable harm, they will suffer potential inconveniences in the form of dockless vehicles 5 left intermittently on some of the sidewalks and crosswalks they traverse. Although the 6 parties do not specifically address the consequences to the City if the preliminary injunction 7 is granted it seems likely (1) the City will be revoking permits issued to the rental 8 companies and could potentially face lawsuits from the rental companies for the fees 9 associated with the permits and per device fee paid for each dockless vehicles. See San 10 Diego Municipal Code § 83.0302; (2) the City would need to end the contract it entered 11 with Sweep; and (3) the City would no longer allow this mode of transportation to be 12 offered to members of the public in violation of legislative policy favoring dockless 13 vehicles. Furthermore, in making their arguments, Plaintiffs ignore the measures the City 14 has already taken to combat the issues the presence of the dockless vehicles has created. 15 Accordingly, the court concludes that the balance of hardships does not tip in Plaintiffs 16 favor. 17 (e) Likelihood of Success on the Merits 18 Plaintiffs argue that the City has failed to fulfill its responsibilities under the ADA 19 and ensure that the sidewalks are maintained to allow meaningful pedestrian access for 20 those with mobility and visual impairments. (Doc. No. 106 at 19-32.) The City counters 21 that Plaintiffs have not met their burden of showing they have a strong likelihood or 22 reasonable certainty that they will prevail on the merits. (Doc. No. 126 at 14-18.) 23 Likelihood of success is the most important Winter factor. Garcia v. Google, Inc., 24 786 F.3d 733, 740 (9th Cir. 2015); Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) 25 (“We begin with the first and most important factor: whether petitioners have established 26 a likelihood of success on the merits.”). A “district court should deny such relief ‘unless 27 the facts and law clearly favor the moving party.’” Stanley v. Univ. of S. Cal., 13 F.3d 28 1 1313, 1320 (9th Cir. 1994) (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th 2 Cir. 1979)). 3 Title II of the ADA prohibits state and local governments from discriminating 4 against persons with disabilities. The relevant statutory language provides: “[N]o qualified 5 individual with a disability shall, by reason of such disability, be excluded from 6 participation or be denied the benefits of the services, programs, or activities of a public 7 entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. “Title II 8 emphasizes ‘program access’ meaning that a public entity’s programs and services, viewed 9 in their entirety, must be equally accessible to disabled persons.” Cohen v. City of Culver 10 City, 754 F.3d 690, 694 (9th Cir. 2014) (citing Pierce v. Cnty. of Orange, 526 F.3d 1190, 11 1215-16, 1222 (9th Cir. 2008)). Similarly, section 504 of the Rehabilitation Act guarantees 12 meaningful access to, “participation in” and the “benefits of” any programs or activities 13 receiving federal financial assistance for qualified individuals. 29 U.S.C. § 794(a). 14 Alexander v. Choate, 469 U.S. 287, 301 (1985). 15 “This prohibition against discrimination is universally understood as a requirement 16 to provide ‘meaningful access.’” Lonberg v. City of Riverside, 571 F.3d 846, 851 (9th Cir. 17 2009). “An individual is excluded from participation in or denied the benefits of a public 18 program if ‘a public entity’s facilities are inaccessible to or unusable by individuals with 19 disabilities.’” Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982, 987 (9th Cir. 2014) 20 (quoting 28 C.F.R. § 35.149). The regulations implementing Title II of the ADA provide 21 that: 22 A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on 23 the basis of disability, unless the public entity can demonstrate that making 24 modifications would fundamentally alter the nature of the services, program, or activity. 25

26 28 C.F.R. § 35.130(b)(7) (1993). 27 Courts have interpreted the scope of Title II to encompass anything a public entity 28 does. Lee v. City of L.A., 250 F.3d 668, 691 (9th Cir. 2001). Indeed, the Ninth Circuit has 1 held that “maintaining public sidewalks is a normal function of a city and “without a doubt 2 something that the City does” and “maintaining their accessibility for individuals with 3 disabilities therefore falls within the scope of Title II.” Barden v. City of Sacramento, 292 4 F.3d 1073, 1076 (9th Cir. 2002)5. See also Frame v. City of Arlington, 657 F.3d 215, 225 5 -231 (the Fifth Circuit provides an in-depth discussion as to why a sidewalk is 6 unambiguously a service, program or activity of a public entity covered under Title II of 7 the ADA.) In so finding, the Barden court noted that “this broad construction of the phrase 8 ‘services, programs, or activities’ of a local government is supported by the plain language 9 of the Rehabilitation Act, … which defines ‘program or activity as ‘all of the operations 10 of’ a qualifying local government.” Barden, 292 F.3d. at 1076-77. 11 Here it is undisputed that Plaintiffs are qualified people with disabilities and are 12 entitled to use the City’s sidewalks, crosswalks, transit stops and other walkways. See 13 Cohen, 754 F.3d at 700 (“[O]bstructed sidewalks exclude disabled persons from ordinary 14 communal life and force them to risk serious injury to undertake daily activities.”). It 15 seems obvious to the court that the primary barrier to maintaining unobstructed sidewalks 16 is the dockless nature of the vehicles, and the level of control the City and the rental 17 companies have over how and where scooter riders leave the scooters after use. What is 18 not obvious, however, is whether the dockless vehicles can be considered architectural 19 barriers of the kind the ADA and its companion state statutes are meant to target.6 20 21 5 Even if public entities were not subject to applying the feature-specific requirements of 22 the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”) to public rights 23 of-way, then they would “not suddenly find themselves free to ignore access concerns when altering or building new rights-of-way, parks, and playgrounds. The requirements of 24 28 C.F.R. 35.151 would still apply, holding public entities to the ‘readily accessible [] and 25 usable’ standard.” Kirola v. City & Cnty. of S.F., 860 F.3d 1164, 1180 (9th Cir. 2017).

26 6 Assuming the dockless vehicles are architectural barriers, the court is mindful that Title 27 II of the ADA does not require States to fundamentally alter the nature of the services provided, it requires only “reasonable modifications.” Tennessee v. Lane, 541 U.S. 509, 28 1 Moreover, the court is not convinced that Plaintiffs have demonstrated that they will 2 succeed in showing that they have been denied meaningful access to the City’s sidewalks 3 when it considers the 5,000 miles of sidewalk the City has to maintain in relation to the 4 number of Plaintiffs’ “documented obstructions.” Plaintiffs primarily rely on the report 5 submitted by Mr. Jeff Mastin, but the last time Mr. Mastin visited San Diego was in 6 October 2019, and much has changed since then. The court has addressed, supra, 7 Plaintiffs’ contention that the City’s system of sidewalks “comprised a literal obstacle 8 course.” (Doc. No. 106-1 at 32, 106-2 at ¶ 62.) The court has also raised its concerns 9 regarding Plaintiffs’ expectations and how the City cannot guarantee that individuals with 10 disabilities will not encounter some impediments when they move around on the sidewalks. 11 Finally, in addressing their likelihood of success on the merits, Plaintiffs reference 12 the “modest measures the City could have taken include mandating the use of docking 13 stations or expanding the use of corrals for the rental scooters and bikes or requiring 14 dockless companies to take affirmative steps to keep the sidewalks free of obstructions.” 15 (Doc. No. 106-1 at 24.) As mentioned above, the City has taken some such steps including 16 contracting with Sweep to immediately impound any dockless vehicle that may be 17 impeding disabled access to public rights-of-way. (See Doc. No. 126-2 at ¶12.) In other 18 words, by engaging in this contract, the City’s actions could be viewed as taking 19 affirmative steps to maintain the sidewalks and walkways in a condition that is accessible 20 to people with disabilities. 21 /// 22 /// 23 /// 24 25 26 impose an undue financial or administrative burden, threaten historic preservation interests, 27 or effect a fundamental alteration in the nature of the service.” Id. (quoting 28 C.F.R. § 35.150(a)(2),( a)(3)). 28 On balance, Plaintiffs have failed to demonstrate the law and facts to favor their 2 || position or establish a likelihood of their success on the merits.’ Accordingly, this favor 3 || weighs against Plaintiffs. 4 IV. Conclusion 5 For the reasons set forth above, the Court DENIES Plaintiffs’ motion for 6 || preliminary injunction. (Doc. No. 106.) 8 || Dated: March 19, 2021 Piel 10 n. Jeffrey. Miller nited States District Judge

12 13 14 15 16 17 18 19 20 21 22 23 24 || 26 Plaintiffs based the likelihood of success of their California Disabled Person’s Act Claim 27 || “CDPA”) on the success of their ADA claim. Having not demonstrated a substantial 28 likelihood of the ADA claim succeeding, the CDPA claim’s success has not been adequately demonstrated. (Doc. No. 106-1 at 32.)