1. Injury in Fact
45. To establish injury in fact under the ADA, a plaintiff must show that she has been deprived of "meaningful access" to a challenged service, program, or activity in its entirety. Armstrong, 275 F.3d at 861 (citing Choate, 469 U.S. at 295); Fortyune v. City of Lomita, 766 F.3d 1098, 1102 (9th Cir. 2014) (holding that program access requires that "the city's system of sidewalks and pedestrian walkways," when viewed in their entirety, "be 'readily accessible to and useable by individuals with disabilities.'"); 28 C.F.R. § 150(a). Whether program access is being provided "is necessarily fact specific." Pierce v. Orange Cnty., 526 F.3d 1190, 1222 (9th Cir. 2008).
46. Kirola alleges that she encountered "numerous access barriers that denied, limited or interfered with her ability to access the City's pedestrian right of way." Dkt. 672, 17:4-5. However, Kirola, who testified only briefly, offered minimal testimony at trial to establish that she suffered an injury in fact. Specifically, Kirola only briefly discussed: (1) three stretches of sidewalk containing "bumps," (2) a sidewalk where her wheelchair became stuck in a tree well; (3) one street corner that lacked curb ramps, (4) one street corner that provided only a single curb ramp, (5) errant step stools at three of the City's libraries, (6) three inaccessible pools, and (7) steep paths at one park. See RT 1384:13-21, 1382:4-18, 1387:2-4, 1385:3-1386:8, 1386:15-19, 1388:5-7.
47. Starting first with the City's system of sidewalks and pedestrian walkways, the Court finds that Kirola has failed to show that it is inaccessible and unusable in its entirety. The City's public right-of-way consists of approximately 2,000 miles of sidewalks, 27,585 street corners, and 7,200 intersections. RT 2391:23-25, 2447:6-18. Yet, Kirola only testified regarding accessibility issues she experienced with three sidewalks, a tree well, and a single street corner lacking curb ramps. RT 1381:14-21, 1384:13, 1386:22-1387:18. Even then, little, if any, testimony was offered or elicited as to the nature and extent of the uneven sidewalks from which the Court could ascertain whether the purported defect constitutes an access barrier within the purview of the ADA.16
48. Although Kirola testified that, on occasion, she "had to make a conscious effort to take a different route" due to uneven sidewalks or missing curb ramps, RT 1384:8-10, 1382:8-9, the probative value of such testimony is undermined by the complete lack of any facts or details regarding any alternate route that she was required to take. See Cohen, 754 F.3d at 697 ("The ADA allowed [the city of] Carlsbad to compel disabled persons to travel a 'marginally longer route' under some 'limited circumstances,' as long as its programs were still accessible as a whole. The mere fact that some city sidewalks did not have curb ramps was therefore insufficient to create a triable issue as to whether Carlsbad violated Title II.") (citing Schonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1341 (S.D. Cal. 1997)); ADA Title II Technical Assistance Manual, II-5.3000 Curb Ramps ("Alternative routes . . . may be acceptable under the concept of program accessibility in the limited circumstances where individuals with disabilities need only travel a marginally longer route."); c.f. Frame v. City of Arlington, 657 F.3d 215, 236 (5th Cir. 2011) (noting that standing was shown at the pleading stage where "the plaintiffs have alleged in detail how specific inaccessible sidewalks negatively affect their day-to-day lives by forcing them to take longer and more dangerous routes to their destinations.") (emphasis added).
49. With regard to the City's RecPark program, which consists of approximately 220 parks spanning 4,200 acres of park space and 400 structures (i.e., clubhouses, recreation centers, etc.), Kirola complained of accessibility issues at only one park: Alamo Square Park. RT 2264:13-17, 2302:12-16, 1385:3-16, 1394:2-4. Kirola testified only that the entrance "is steep to use" and that she was unable to enter the children's play area, ostensibly attributable to steep paths. RT 1385:3-16, 1394:2-4. The fact that Kirola was unable to access one area of the park does not establish an ADA injury. Indeed, one of her experts (Steiner) testified that "even just [access to] a small part of the park would be sufficient to provide program access." RT 717:10-21. In any event, Kirola offered no specific information regarding measurements, dimensions, or slopes of the paths at Alamo Square Park, which she admits is located on a steep hill. RT 1394:2-3. Although Kirola is not expected or permitted to offer expert testimony regarding whether the entrance and paths at Alamo Square Park are ADA-compliant, her testimony is too general to persuade the Court that she was denied meaningful access to the park, let alone meaningful access to the City's RecPark program in its entirety.
50. Equally uncompelling is Kirola's testimony regarding her experiences at Balboa Pool, Garfield Pool and Rossi Pool. She alleges that Balboa Pool is inaccessible due to its steep entrance ramp and inadequate locker rooms, and that Garfield Pool lacks sufficient clearance in the locker room and restrooms. Though Kirola has not used Rossi Pool, she was deterred from going there based on the comments of others. RT 1388:5-6, 388:7-17, 1386:12-19. The fact that Kirola may have experienced accessibility issues with these three pools is insufficient to demonstrate that she suffered an actual injury resulting from the denial of meaningful access to the City's aquatic program. None of these three pools has been designated as a fully-accessible pool, and the City does not rely on them to provide program access. DTX F16.17 In contrast, the Court is persuaded that the City's aquatic program, when viewed in its entirety, provides program access. Kirola's ability to meaningfully access the City's aquatic program is underscored by the fact that she regularly uses Hamilton and MLK Pools, which were previously renovated and designated by the City as accessible. RT 1392:17-1393:23.
51. Finally, Kirola has not shown an injury in fact resulting from the lack of program access to the City's library program. The only "barriers" she encountered were the occasionally misplaced step stools at three libraries (the Main Library and the Western Addition and Parkside Branch Libraries) which impeded her aisle access. RT 1386:1-2. However, the ADA applies to architectural barriers, not temporary or removable obstructions. See Sharp v. Island Restaurant-Carlsbad, 900 F. Supp. 2d 1114, 1126-27 (S.D. Cal. 2012) (misplaced chairs blocking the path of travel to a restroom were not architectural barriers under the ADA); see also Cal. Council of the Blind v. Cnty. of Alameda, 985 F. Supp. 2d 1229, 1240 (N.D. Cal. 2013) (noting that 28 C.F.R. § 35.133 does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs). Whether a barrier is temporary or removable presents a question of fact. See Cal. Council of the Blind, 985 F. Supp. 2d at 1240 (noting that "the duration of, frequency of, and reason for the failure of accessible voting machines to operate properly is a question of fact.").
52. Based on the record developed at trial, the Court is persuaded that the misplaced step stools encountered by Kirola are not architectural barriers. On a daily basis, the City requires its library staff to use a Daily Facility Checklist to inspect for any obstructions and to maintain the accessibility of each library facility. RT 2235:22-2237:13, 2252:10-2253:21; DTX A45. Thus, even if library staff only checked for misplaced stools once a day—which Kirola has not shown—such "barrier" would temporarily exist for no more than twenty four hours. Moreover, Kirola testified that she did not encounter misplaced stools the majority of times she used these three libraries, RT 1386:6-12, and there is no evidence that she experienced any inability or difficulty in utilizing the services at these particular libraries, or with respect to the City's library program in its entirety
53. Citing Chapman v. Pier 1 Imports, 870 F. Supp. 2d 995 (E.D. Cal. 2012) ("Chapman II"), Kirola argues that misplaced stools, in fact, may qualify as an accessibility barrier under the ADA. In Chapman II, the plaintiff brought an action against a retail store known as Pier 1 Imports ("Pier 1"), claiming, inter alia, that the store aisles were blocked by merchandise, which, in turn, impeded his access in violation of Title III of the ADA. In its summary judgment motion, Pier 1 argued that the obstructions were "only temporary," and that regulations promulgated under the Title III of ADA do not impose liability for "isolated or temporary" interruptions to accessibility. Id. (citing 28 C.F.R. § 36.211(b)).18 In addressing this argument, the court explained that a "temporary" maintenance barrier is "an object that is unavoidably placed in the aisle, but with the intention of removing it as soon as possible." Id. The court denied defendant's motion for summary judgment, finding that there was a factual dispute regarding whether the blockages were isolated or temporary, and that the plaintiff had presented evidence that the barriers were recurring and prevented him from accessing store merchandise. Id. at 1009.
54. Kirola argues that, like the merchandise in Chapman II, the stools are not merely "temporary" barriers because library staff only conduct a full inspection of facilities once per day, and therefore, the stools are not removed "as soon as possible." Chapman II is distinguishable. Whereas the merchandise in the Pier 1 store aisles was intentionally placed there by store employees, there is no evidence that the step stools were placed in the stacks as a routine matter by library staff. To the contrary, the limited testimony presented by Kirola on this issue suggests that the stools were placed in the aisle by other library patrons. In addition, unlike the plaintiff in Chapman II, Kirola has made no showing that the occasional misplaced stools interfered with her ability to access library services at a particular library, let alone precluded her access to the City's network of libraries in its entirety. 28 C.F.R. § 35.150(a).
55. In sum, the Court finds that Kirola has failed to show, by a preponderance of the evidence, that she has constitutional standing to bring any of the claims alleged in her FAC. Accordingly, she lacks standing to pursue this action individually or on behalf of the class she was appointed to represent.
16. As an ancillary matter, Kirola complains that the City's historic curb ramp design standards in effect from 1994 to 2004 resulted in the design and installation of curb ramps that included a half-inch lip in violation of ADA regulations. Dkt. 662, 13:20-22. Although the City's current curb ramp design standards have since eliminated use of the half-inch lip, Kirola apparently takes issue with the fact that not all of the lips have been removed. Nonetheless, no evidence was adduced at trial that Kirola encountered a curb ramp having a half-inch lip, let alone experienced any difficulty navigating a half-inch lip while using a motorized wheelchair.
17. With regard to Sava Pool, Kirola noted that the sidewalk is cracked near the facility but that the pool itself is accessible. RT 1386:22-1387:13
18. Section 36.211 is the Title III analogue to 28 C.F.R. § 35.133, which applies in Title II cases.
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