*1 CONCLUSION COHEN, individual, William C. acted well The court within district Plaintiff-Appellant, concluding pu- that the in
broad discretion satisfy the re- tative and subclass class CITY; Exchange CITY OF CULVER af- therefore quirements of Rule 23. We City, a cor- Club of Culver California certification order. firm court’s the district poration, Defendants-Appellees. AFFIRMED. No. 13-55079. Appeals,
United States Court Ninth Circuit. Dec.
Argued and Submitted
6, 2014.
Filed June
any
give
plaintiffs' proposed
appropriate
content”
the terms of
relief "is
re-
effort
injunction,
specting
require-
proposed
their
court held that
the class as a whole.” That
ordinarily
plain-
a
abused
district court had not
its discretion
ment
will be satisfied when
23(b)(2)
certify
declining
general
in
a Rule
class
tiffs have described the
of an
contours
proposed injunction
injunction
provide
where the
had been for-
that would
relief to
stratospheric
class,
"a
specific
mulated at
level of abstrac-
whole
that is more
than a bare
inmate-by-inmate
law,
injunction
tion” and
assess-
to follow the
and that can be
603, 604,
Id. at
606. The court also
given greater
ments.
specificity
and
substance
at an
courts,
why
noted
district
exer-
a few reasons
appropriate stage
litigation through
in the
discretion, might
cising
require
their
more
fact-finding, negotiations,
expert
testimo-
descriptions
systemic
Second,
II,
in-
courts,
detailed
reform
ny.
since Shook
several
junctions.
at 604-07.
Circuit,
See id.
including
have
the Tenth
observed
23(b)(2)
that
of a Rule
certification
class is
on
The defendants' reliance
that case here
highly
warranted under circumstances
analo-
First,
seriously
we
is ill-founded.
doubt that
See,
M.D.,
gous
present
e.g.,
to those
here.
suggested
degree
specificity
in Shook
(Fifth Circuit); D.G.,
Doreen Kushner Law Office Kushner, Beach, L. Huntington of Doreen CA, for Plaintiff-Appellant.
Byron (argued) Michael Purcell and Ru- Ivie, Byrdsong, Wyatt, & pert McNeill Los CA, Angeles, Defendants-Appellees. for Appeal from the States District United for the Central District of Court Califor- nia, Gary Klausner, Judge, R. District Pre- siding. D.C. No. 2:12-cv-00156-RGK- PJW. NELSON,
Before: DOROTHY W. KIM WARDLAW, and JOHNNIE McLANE B. RAWLINSON, Judges. Circuit February balance. In Cohen was OPINION physician. reevaluated He exhibit- WARDLAW, Judge: Circuit difficulty ed increased with his balance and Cohen, elderly suffering William an man expected lower than learning memory requires who a cane for from dementia scores. mobility, through walked outdoor car 7, 2011, May On and the ECCC show on streets while in Culver sponsored their annual car show on the California, City, grandson’s to attend his downtown, streets and sidewalks of wedding. display A vendor’s car including immediately adjacent those provided show blocked the curb streets, the Culver Hotel. The closed to disabled access to the sidewalk front of *4 automobile traffic for by pe- exclusive use injured Cohen’s hotel. Cohen was when destrians, were lined vintage "with automo- tripped he and fell as he tried to walk Drivelines, biles and displays. vendors’ display step up around the and on to the vendor, participating positioned display sidewalk. so as to pedestrian straddle the crosswalk against Cohen filed this action the and sidewalk between the car show and (“the City”) of Culver and the Ex- the main entrance to the Culver Hotel. (“the ECCC”), change Club of Culver display, golf cart, which included a alleging violations of the Ameri- federal tables, several large canopy, and a also (ADA) cans with Disabilities Act of 1990 completely blocked the disabled access and various ap- California statutes.1 He ramp curb connecting the sidewalk to the peals grant summary the district court’s street at that point. judgment in favor of the defendants. We On day grandson’s the of his wedding, City may must decide whether the have way Cohen attended the car show. On his obligations violated its under Title II of hotel, back to the Cohen saw that the curb by the ADA allowing display the vendor’s blocked, ramp was so he tried to walk completely block the ramp, imped- curb display step around the vendor’s and up sidewalk, ing disabled access to the over the curb on to the sidewalk. Instead by failing post signs and identifying slipped he and fell face first on to the alternative disabled access routes. We sidewalk, sustaining facial abrasions and that a genuine dispute conclude of material ramps contusions. Other curb connected fact exists as to whether the denied twenty the street to the sidewalk about to the sidewalk reason of yards ninety yards away and in either and, disability, accordingly, we reverse direction, no signs but there were in part and remand. directions,
might point Cohen in those Cohen, City, deposed the which adduced I. no evidence that he was aware the other Cohen, resident, a Florida visited Culver ramps. Drawing all reasonable inferences City in May grandson’s 2011 to attend his favor, reasonably Cohen’s he believed he wedding. stayed at He the Culver Hotel negotiate had no choice the but City. years downtown Culver Four earli- ramp. er, Cohen had been diagnosed with moder- subsequently ate dementia. He damages Cohen asserts claims for suffered declining cognitive from function poor against the and the under ECCC against unpublished disposition 1. We address Cohen's claims memorandum ac- ECCC companying opinion. under the DPA and the Unruh Act in Johnson, & F.3d ADA and three Inc. v. Johnson Title II of federal Cir.2008). (9th the Disabled Persons statutes: California Act, (DPA), Rights the Unruh Civil Act Government Code sections
and California III. granted court 830 and 835.2 The district A. judgment in favor of the defen- summary on all claims.3 dants clear, The ADA “provide aims to consistent, strong, enforceable standards only against claims We address Cohen’s addressing against discrimination individu DPA, ADA, under the and the als with disabilities.” U.S.C. Act. The court ruled Unruh district 12101(b)(2). Congress enacted stat dispute fact exists genuine material as premise that discrimination ute on under to whether Cohen is disabled against is “most often the found, however, that Cohen ADA. It could animus, but rath product, not invidious trav- have accessed sidewalk thoughtlessness indifference—of er of to anoth- eling “marginally longer route” Choate, benign neglect.” Alexander twenty yards access curb er disabled *5 287, 295, 712, 105 83 U.S. S.Ct. L.Ed.2d basis, the down the street. On this district (1985). Therefore, pro ADA 661 deny held that the did not Co- court only “obviously exclusionary scribes not public hen access to the sidewalk under conduct,” also forms but “more subtle of Title II of the ADA. Because Cohen’s DPA discrimination—such as difficult-to-navi Act and claims are based on Unruh his restrooms doors— gate hard-to-open and claim, granted ADA the district court sum- with that interfere disabled individuals’ full mary judgment for the on all three. enjoyment” places equal public and of and v. Chapman accommodations. Pier 1 II (U.S.) Inc., (9th 939, 945 Imps. 631 F.3d Cir.2011) (en banc) (internal quotation jurisdiction pursuant We have to 28 omitted). marks § 1291. U.S.C. We review district grant summary judgment court’s of Title II is portion de of the ADA novo, viewing drawing applies govern all local evidence state and light 42 pro § reasonable inferences in the most ments. 12131. It See U.S.C. Szajer to the non-moving party. qualified favorable vides that “no individual with a 607, shall, Angeles, by disability v. Los 632 F.3d 610 of such disabili reason Cir.2011). (9th ty, participation We must determine be excluded from or be services, are any genuine pro whether there issues of denied benefits of the fact and grams, public entity, material whether the district or activities of a or be correctly subjected any applied by court the relevant sub- to discrimination such Del. Valley Surgical entity.” emphasizes stantive law. Title II Supply 12132. private appeal grant not Cohen named three other defen- 3. Cohen does of sum- ECCC, mary judgment for both defendants on addition his dants in to the and the claims under Government Code California subsequently but he dismissed them. The dis- challenge 830 and does he sections 835. Nor court denied leave to amend trict ruling the district court’s that the ECCC can- complaint against to assert a claim the ECCC liable the ADA be- not be under Title II of ADA, governs III of under Title which public entity cause it is not or an instrumen- public accommodations. tality thereof.
695 access,” meaning public that a denied the benefits of a “program entity’s services, entity’s programs services, viewed activities, programs, or or was equally accessible entirety, their must be against otherwise discriminated by the Cnty. Pierce v. persons.4 to disabled (3) public entity; exclusion, denial, 1215-16, 1190, 1222 Orange, 526 F.3d or discrimination was reason of his Cir.2008). (9th public entity A must make disability. Cnty. Weinreich v. L.A. Metro. reasonable modifications to avoid discrimi- Auth., (9th 976, Transp. 114 F.3d 978 Cir. disabilities, un- against persons nation 1997). private Title II authorizes suits for doing it can less demonstrate so 12133; money damages.6 U.S.C. see fundamentally alter the nature of would Lane, 509, 517, Tennessee v. 541 U.S. service, program, activity pro- (2004). 1978, 158 S.Ct. L.Ed.2d 820 35.130(b)(7); McGary vides. Portland, 1259, 386 F.3d 1265-66 statute, As authorized (9th Cir.2004). U.S.C. the United States Attor ney language promulgated body
We construe the General has a vast broadly ADA pur to advance its remedial of regulations implementing Title II. The Cal., pose. Hason v. Med. Bd. 279 F.3d regulations flesh out entities’ statu (9th Cir.2002). We have ex tory obligations with specificity, more but plained language that the broad of Title II public entity may violate the ADA even if brings scope “anything within its regulation expressly proscribes no par entity Angeles, does.” Lee v. Los See, Barden, ticular e.g., conduct. (9th Cir.2001) (internal (applying F.3d at 1076-78 Title II to side *6 omitted). quotation city marks A sidewalk though implementing regu walks even no “service, is or program, therefore activi sidewalks). specifically lations addressed ty” public entity meaning of a within the of (DOJ) give Department reg We of Justice Sacramento, Title II. Barden v. construing ulations II “controlling Title Cir.2002).5 (9th 292 F.3d weight they arbitrary, unless are capri cious, manifestly contrary or to II, the stat prevail
To Title under (1) Armstrong Schwarzenegger, ute.” 622 plaintiff quali must show that: he is a (9th Cir.2010) (internal (2) 1058, disability; fied individual with a F.3d 1065 he was omitted). participation quotation either excluded from in or marks contrast, ADA, indifference,” meaning 4. In Title III which erate that it knew that accommodation, governs places im- federally right protected harm to a was sub- poses stringent requirements more aimed at stantially likely upon act and failed to ensuring every facility equally is accessi- However, knowledge. Id. at 1139. persons. Rights ble to disabled See Disabled may damages recover for an ADA violation Events, Inc., Vegas Comm. v. Action Las 375 under the he with- California statutes invokes 861, (9th Cir.2004). F.3d showing out a of intentional discrimination. 661, Taco, Inc., See v. Del 46 Cal.4th Munson 5. We car do not address whether show 623, (2009) Cal.Rptr.3d 208 P.3d city held on also within the mean- streets falls (holding plaintiff prove that a need not inten- “service, ing phrase program, of the activi- or tional discrimination to recover for an ADA ty” City. Act). Accordingly, Unruh violation under the Recovery damages requires under Title II we not decide whether Cohen has demon- do showing of intentional discrimination. See strated that acted deliberate with Cnty. Kitsap, Duvall v. may he able to do indifference or whether be (9th Cir.2001). plaintiff prove The must at so trial. entity acted the defendant with "delib- “readily accessible to and must be facility regula- of these heavily on two
relyWe id., disabilities,” by individuals with deci- usable court’s reviewing the district tions “structurally im- doing so would be existing unless governs § 35.150 28 C.F.R. sion. 35.151(a)(2). § It also re- practicable,” id. operate to requires It facilities. detailed accessibili- service, quires compliance in a with activity or program, each (2), 35.151(c)(1), standards, § id. entirety, ty that, in its viewed manner specific requirements additional by persons sets forth to and usable accessible readily 35.150(a). stadiums, dormitories, prisons, and oth- § with disabilities. 35.151(f), facilities, (g), § mandate, id. City may er kinds of comply To (k). ramps, curb 35.151 existing respect to changes to its With make structural provides: if not do so other facilities, it need but services to methods, relocating (1) such as Newly constructed or altered Id. would be effective. buildings, streets, roads, con- highways different must 35.150(b)(1). prioritize must sloped or other areas ramps tain curb that enable it to compliance having methods of curbs or other any intersection persons in to disabled provide services level entry from street barriers setting appropriate.” integrated “the most walkway. pedestrian by modi- comply chooses to If the Id. (2) Newly or altered street constructed facilities, re- existing additional fying its walkways must contain pedestrian level follow. quirements ramps sloped or other areas streets, roads, high- intersections instance, modify chose to if the For ways. the ADA took that existed when facilities 35.151(i) added). 26, 1992, January it was (emphasis effect on Id. within three the modifications complete regulations two Together, these 35.150(c). If the years of that date. ADA’s mandate that effectuate the fifty persons, or more City employed modifications to entities make reasonable develop, within six was also to accommo programs their and services 26, 1992, January a transition months of Lane, 541 U.S. persons. date disabled planned modifica- plan setting forth *7 532, Congress recog 124 at S.Ct. 1978. 35.150(d)(1). City had § If the tions. Id. be unreasonable nized would walkways, or its authority over streets entity extensively reno require public a to include a plan transition was bring facilities to existing vate all of its access curb installing for disabled schedule the ADA. compliance itself into with intersections, giving priority to ramps at choose to build public id. Once entities important public located near intersections ones, existing or renovate new facilities 35.150(d)(2). § Howev- services. See id. however, they reasonably can be er, § allows the generally 35.150 because complies so in a manner do making pro- of City to choose its method accessibility stan “specific architectural accessible, it not services does grams and reason, § Id. For this 35.150 does dards.” necessarily compel the construction ramps to build curb at require not every situation. ramps during its transition to com every corner Frame v. contrast, with the ADA. See governs pliance § 35.151 By (5th Cir. Arlington, 657 F.3d City begins to build or facilities that (en 2011) banc). already 26, January 1992. Id. When alter after (b)(1). anyway, 35.151(a)(1), altering building a sidewalk provides § It that ev- construct a curb requires § it to of such a 35.151 ery newly portion built or altered every at affected ramp intersection be- tions. Id. at 1340. The court held that doing cause the additional cost so is the plaintiffs’ evidence was insufficient to minimal. See id. genuine dispute create a of material fact as to whether Carlsbad had denied them ac-
B. cess to a ADA, service under the The district court erred hold it granted summary and that the ing summary is entitled to Carlsbad’s favor.7 Id. at 1341. that, It judgment. mistakenly reasoned The court in correctly rea- Schonfeld because Cohen could have accessed the soned that 35.150 did require not by taking “marginally sidewalk a longer Carlsbad to build a curb ramp every at ramp, route” to a different curb he failed Rather, intersection. that provision sim- to establish that he was denied ply required programs Carlsbad’s the sidewalk. The district court relied on whole, services to be accessible as a Carlsbad, F.Supp. Schonfeld it allowed Carlsbad to choose its method (S.D.Cal.1997), aff'd, 1335-41 of complying requirement. with this Id. (9th Cir.1999), F.3d 876 and Parker v. at n. 11. The ADA allowed Carlsbad P.R., (1st Universidad de 6-7 to compel persons to travel a Cir.2000). These cases inapposite, are “marginally longer route” under some however, they because address enti circumstances,” “limited long as as its obligations only ties’ they modify when programs were still accessible as whole. existing compli facilities to achieve ADA city Id. The mere fact that some side- ance under 28 C.F.R. 35.150. We con ramps walks did not have curb was entirely here, front different circumstances therefore insufficient to create triable compliance where the was in with the issue as to whether Carlsbad violated Ti- ADA, but allowed elimination of the dis tle II. at In reaching this con- abled access it had built. clusion, the court in relied on Schonfeld Carlsbad, Schonfeld, city In Cali- the ADA II Title Technical Assistance fornia, working compliance was toward Manual, publication that provides DOJ
with the ADA modifying existing its guidance entities on ADA com- facilities, hall, including city library, bus pliance. n. See id. 11. The Tech- sidewalks, stops, and under 28 C.F.R. similarly nical Assistance Manual explains A putative 35.150. class of disabled that, 35.150, “public under 28 C.F.R. plaintiffs alleged, among things, other necessarily entities are not required to timely Carlsbad had failed to adopt the every construct a curb such in- 35.150(d)(1) plan by § transition mandated tersection,” may that it appropri- be *8 and failed to ramps install curb at certain compel ate to persons disabled to take a intersections within years January three “marginally longer route.” The Ameri- 26, 1992, 35.150(c). § required by as cans with Disabilities Act: Title II Tech- Schonfeld, F.Supp. at 1335. The (1993), § II- nical Assistance Manual plaintiffs introduced that evidence curb 5.3000, http://www.ada.gov/ available at ramps had not been built at various cor- taman2.html. ners, they but not did introduce evidence they Parker, that city were unable to In plaintiff the disabled attend- parking streets or at an ceremony facilities those loca- ed awards held at the Botani- ty" was decided before we held that under Title II. Barden Sacramen- Schonfeld "service, to, (9th Cir.2002). program, the sidewalk is a or activi- F.3d in front of the Culver Hotel was ramp curb University of Puerto of the cal Gardens Parker, It construction or renovation. 225 not under Rico, See a institution. The district court there- already existed. plaintiff, the Park staff directed F.3d at 3. “marginally by relying on the wheelchair for fore erred a motorized required who longer to travel route” standard path a mobility, particular to use Schonfeld Manual, which Assistance ceremony was the Technical in which the garden to a its side- City modifying the applies introduced when plaintiff at 3. The held. Id. accessibility un- program to achieve designed was not walks path that the evidence Similarly, § the district court der 35.150. plaintiffs access. Id. The for disabled when, by relying on the Parker court’s according erred flipped wheelchair over university the was not witness, at the lip it fell off a two-inch observation ac- required provide multiple disabled plaintiff id. The path. bottom of the See in garden the which the ability lost the to use cess routes to broke his clavicle and This statement sim- arm, previously ceremony was held. right which he had scope university’s of the years physical ply defines regained through two § duty provide under 35.150 to “inte- having after suffered the stroke therapy disability. grated” programs method of access to the that caused his Id. garden. in the held applied in 28 C.F.R. The court Parker that, regulations governing To extent the to its explained pursuant § It 35.150. 35.150(b)(1) and renovation of facilities prioritize § construction duty under existing of an apply City’s blockage to the that would allow it compliance methods of ramp, 28 35.151 is more in “the most curb C.F.R. programs to administer its relevant than 28 C.F.R. 35.150. As we the uni- integrated setting appropriate,” above, new explain when builds versity required to ensure dis- was existing or alters ones for rea- ceremony sidewalks persons abled could access retrofitting to sons other than achieve “using walkways, ramps, and curb site safe (internal plainly requires compliance, ADA 35.151 quotation at 6-7 marks cuts.” Id. omitted). every intersec- it to build a curb The court observed structurally would be doing make ev- tion unless so university was “not impracticable. in and out of the ery passageway [site] 35.151®. accessible,” publication discussing imple- A DOJ provide but was mentation of Title II states: per- access route for a “at least one” safe Consequent- at 7. son in wheelchair. Id. walkways or are new sidewalks [ W]hen held that ly, the court Parker altered, they contain curb built or must as a matter of law favor universi- they ramps sloped areas wherever juryA could have ty improper. was Id. At intersect with streets or roads.... plaintiff used concluded that existing that have roads and sidewalks access, for path intended wheelchair altered, however, city govern not been in an path that the was maintained unsafe may ments choose to construct manner, conditions and that the unsafe every pedestrian where a ramps point injuries. plaintiffs caused the curb, walkway they but are intersects *9 necessarily to do so. required not Here, City renovating the was not Div., Justice, Dep’t of Rights a achieve U.S. existing plan under to Civil sidewalks City ADA Com- allowing ADA It was its side- The Governments: compliance. http://www. available at by private vendors for mon Problems walks to be used that, It follows under ada.gov/comprob.pdf. a fair. The purpose holding the of street 35.151, justify City summary City § cannot the failure entitle the on the ramp at an intersection on Cohen’s Title II claim. to build a curb marginally longer a route ground that C. the street. The DOJ was available down Manual, which ex- Technical Assistance genuine A dispute material fact longer” dis- permits “marginally a pressly City exists as to whether the denied Cohen 35.150, § route under con- abled access access to the on the sidewalk basis in its discussion of language tains no such disability by a permitting private vendor’s § II Technical 35.151. See display completely existing block the Title Assis- § supra, II-6.6000. Manual, ramp. curb tance analo- City’s conduct here is more example, City may For have violated
gous
altering
its sidewalks for reasons
regulation requiring
it to maintain dis-
compliance,
to ADA
as contem-
unrelated
good
abled access
in
working
features
or-
35.151,
retrofitting
§
than it is to
plated by
City
der. The
in operable
must “maintain
accessibility
program
a sidewalk to achieve
working condition those features of facili-
City
§
to alter the
under
35.150.The
chose
equipment
ties and
that are
to be
existing arrangement
public
side-
readily
by persons
accessible to and usable
by allowing
up
vendors to set
private
walk
part.”
the Act or
disabilities
this
holding
a car
displays
purpose
for the
35.133(a).
§
regu-
Because the
entirely
presence
show. The vendors’
was
“facility”
“any por-
lations define
to include
making
City’s
goal
unrelated to the
roads, walks,
tion of ...
passageways,”
or
programs or
accessible to disabled
services
city
among
are
those
sidewalks
facilities
imposed
It would not have
an
persons.
operable
that
must maintain in
on the
for it to
additional burden
working
Only
§
condition. See id.
35.104.
require the vendors to locate their booths
temporary interruptions
“isolated or
in
in either direction to avoid
few feet
due to
or
service
maintenance
blocking
ramps.
disabled
35.133(b).
repairs”
permissible.
are
Id.
requirement
The rationale for this
is obvi-
imple
both
Sections 35.150
35.151
point
building
ous:
there is little
ment,
circumstances,
different
kept
route if it
not
in a condi-
accessible
requirement
ADA’s
entities
persons
tion that allows disabled
to use it.
accom
make reasonable modifications to
B. As the
pt.
app.
See 28 C.F.R.
persons
modate
with disabilities. See
guidance accompanying
regulation
this
Lane,
S.Ct. 1978. The
U.S.
clear,
makes
is therefore
govern
stringent
less
demands of 35.150
keep
disabled access routes “free
expect
when it would be unreasonable to
temporary
obstructions.”
Id. While
ob-
comply
entities to
with the more
ADA, obstruc-
structions do not violate the
id.;
exacting standards of
35.151. See
beyond
pe-
persist
tions
reasonable
Frame,
This is not such
the statute.
riod of time do violate
al
a circumstance. When the
has
A
ready
jury
built a direct route that is accessible
could conclude
vio-
display
persons,
provision.
it is reasonable to
lated this
The vendor’s
disabled
per
access curb
require
not to force disabled
obstructed
city
with the
marginally
look for
take even a
that connected the
streets
sons to
in front of the Culver Ho-
longer
route. Because
35.150 does not
sidewalk
fact
genuine dispute
A
of material
apply,
arguably
the existence of an
mar
tel.
particular
alternative route does not
exists as to whether
ginally longer
*10
City may
only way
that it
the
the
have
make the sidewalk
is
“required” to
ramp was
to the sidewalk
with dis
denied Cohen access
persons
to
“readily accessible”
35.133(a).
City
disability.
generally,
More
Title
The
reason of
C.F.R.
abilities. 28
“duty
a
to
upon public
to build this
entities
imposes
II
would have been
Lane,
seg
particular
persons.
if
altered this
accommodate” disabled
ramp
curb
532,
the sidewalk after
Even
the street or
at
701 displays summary judgment before to on Cohen’s ADA of the vendors’ placement show, claim, it to the permit granting car as the issued the district court erred apparently it summary judgment City said it would but as for the on ECCC Co- to not. It could have vendors DPA did hen’s claims under the and the Un- in positioning displays their front of avoid ruh Act. ramps, or to set their dis feet from the curb to
plays back few V. pedestrians pass. allow disabled position City We take no on whether the in posted temporary sign could have deny in did fact Cohen access to a particular display directing front of this against service or discriminate him rea- ramp twenty pedestrians to the other curb disability son of under 42 U.S.C. yards Any down the block. of these mod held, genuine As the district court dis- may inju measures have avoided the est pute of material fact exists as to whether By failing adopt ries Cohen suffered. is disabled at all. other Various them, City may engaged have in the disputed may issues also be resolved persons “simple exclusion” of disabled trial. hold that simply We is not through “thoughtlessness” and “inaction” because, summary judgment entitled that constitutes discrimination under the drawing all in reasonable inferences Co- McGary, (quoting ADA. 1267 favor, may hen’s have violated the ADA Presta v. Peninsula Corridor Joint Pow and, DPA consequently, the and the Un- (ND.Cal. Bd., 1134, F.Supp.2d ers ruh Act. 1998)). judgment We therefore reverse the Because the district court relied on an the district court as to Cohen’s claims standard, inapplicable legal and because City. in a against explain As we memo- genuine dispute there is a of material fact disposition accompanying randum ac- as to whether the denied Cohen opinion, judgment we reverse the cess to a service or otherwise dis- claim district court as to Cohen’s DPA II, him against criminated under Title ECCC, judg- affirm the against the but we summary by granting court erred district ment of court the district as Cohen’s City. in favor of the against Act claim the ECCC. Unruh We proceedings. Each remand for further
IV. party bear its own costs. shall that the violated alleges Cohen also PART, IN AFFIRMED REVERSED two statutes: Per- California Disabled PART, IN AND REMANDED. (DPA) sons Act Unruh Civil Rights Act. A of the ADA consti- violation by Judge Dissent RAWLINSON. tutes a violation of the California DPA. RAWLINSON, Judge, Circuit 54.1(d). Similarly, Cal. Civ.Code a viola- dissenting part: tion the ADA constitutes a violation of 51(f); respectfully portion I dissent from the the Unruh Act. Cal. Civ.Code see Taco, Inc., 661, opinion reversing the district court’s Munson v. Del 46 Cal.4th entry summary judgment favor of Cal.Rptr.3d 208 P.3d (2009) un- City on Cohen’s claims (holding showing that no of inten- Culver William Act the Americans With Disabilities tional discrimination is state der The dis- Act claim on the basis of an ADA and related California statutes. Unruh violation). ruled that has Because the is not entitled trict court “Culver *12 35.150, regulation ac- 28 C.F.R. the same that two wheelchair evidence
presented majority heavily on.” opinion “reifies] and the yards 20 east ramps were located cess Majority Opinion, p. portion 696. The west, respectively, from ninety yards by the opinion the relied on injury.” his incurred where Plaintiff Schonfeld heading “Ex- district court was under the that then observed Cohen district court Facilities,” addresses the same isting or offered this evidence disputed “has not in points access at issue this case. why did not uti- any as to he explanation ” The district an alternative route.... lize court’s decision We affirmed the district that because alternative court concluded Schonfeld, that: including ruling in its available, Cohen failed raise routes were entities are not to con [ P]ublic al- regarding of fact a material issue every ramp struct a curb at intersection. leged exclusion from use of the sidewalk. buildings routes Alternative existing ramps may be make use of summary grant
The district court’s
acceptable
concept
program
under the
with cases that
judgment was consistent
accessibility in limited circumstances
Cohen,
raised
have addressed the issue
only
need
where disabled individuals
in
v.
equal access. As we stated
Bird
...
marginally longer
travel a
route
Coll.,
Lewis & Clark
303 F.3d
(9th Cir.2002),
Schonfeld,
F.Supp.
at 1339 n. 11.
inquiry
“the central
is
viewed in its
program,
whether the
when
Similarly,
properly
the district court
re-
entirety,
readily
accessible to and usable
lied on the
decision in Parker
First Circuit
(citation
with disabilities.”
individuals
P.R.,
v.
6-7
Universidad de
omitted).
quotation marks
and internal
(1st Cir.2000).
Parker,
In
the First Cir-
language
against
This
counsels
a narrow cuit also
a claim of lack of ac-
addressed
the impor
view of access and underscores
facility.
to an
at
existing
cess
See id.
tance of the other access routes available The First Circuit noted that “Title II’s
agree
I
with the district court
to Cohen.
accessibility’
on
...
emphasis
‘program
showing that
that there was no
Cohen was was intended to ensure broad access to
accessing
“excluded from
the
side
services, while,
time,
at the same
Rather,
complains
walks.”
that the
Cohen
flexibility
providing
entities
the
directly accessible to him ...
“most
make access available....”
Id. at 6. The
aby
Nothing
was blocked
vendor booth.”
pro-
First Circuit also observed that each
ADA,
regulations
in
governing
the
the
entirety
gram must be
its
when
viewed
precedent requires
partic
case
determining, accessibility.
Apply-
See id.
plaintiffs
ular location in
to the
relation
view,
ing
the First Circuit held that
Instead,
ADA
destination.
focuses on
University
provide
was
“at
Bird,
ready access.
was come close to address-
only cases that have viewing pro- focus on
ing this issue determining entirety
gram Bird, access was denied. See
whether all *13 1021; Schonfeld, F.Supp. F.3d at Parker, 11; at 6-7. n. F.3d exist- two available access routes
Because entire- viewing the sidewalk
ed when provided sufficient access.
ty, Cohen was
I the district court that Cohen agree with on a material issue of fact
failed to raise ADA and on his related state claims I affirm the district
law claims. would of Cul- entry
court’s favor entirety. in its
ver Disimone, and Nicolle
John SINIBALDI
individually of all oth- and on behalf similarly situated, Plaintiffs-Ap-
ers
pellants, RETAIL,
REDBOX AUTOMATED liability
LLC, a Delaware limited
company, Defendant-Appellee.
No. 12-55234. Appeals,
United States Court
Ninth Circuit. 8, 2014.
Argued and Submitted Jan. 6, 2014.
Filed June