KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

1. Scope of the Evidence

15. The City contends that Kirola's standing is to be evaluated based solely on the evidence presented at trial; namely, her in-court testimony. In contrast, Kirola argues that the Court is not limited to the trial record, and that the Court should consider evidence obtained or produced during discovery—irrespective of whether such evidence was previously presented to the Court. For the reasons that follow, the Court finds that Kirola's standing is to be determined based on the trial record.

16. Standing is a core component of Article III's case or controversy requirement, and as such, it must be established "through all stages of federal proceedings." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990). "Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561. For instance, general factual allegations of injury resulting from a defendant's conduct may suffice at the pleading stage; but in response to a motion for summary judgment, a plaintiff cannot rely on "'mere allegations,' but must 'set forth' by affidavit or other evidence 'specific facts,' . . . which for purposes of the summary judgment motion will be taken to be true." Id. (citing Fed. R. Civ. P. 56(e)). "At the final stage, those facts (if controverted) must be 'supported adequately by the evidence adduced at trial.'" Id. (citing Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115 n.31 (1979)).

17. An assessment of standing based on the trial record is both permissible and appropriate, particularly where, as here, the plaintiff's standing is disputed. See Maine People's Alliance And Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir. 2006) ("When, as now, standing is reviewed after trial, the facts establishing standing 'must be supported adequately by the evidence adduced at trial.'") (citing Lujan, 504 U.S. at 561); Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999) ("'[W]here standing is challenged as a factual matter, the plaintiff bears the burden of supporting the allegations necessary for standing with "competent proof." . . . "Competent proof" requires a showing by a preponderance of the evidence that standing exists.'") (citations omitted); Biopolymer Eng'g, Inc. v. Immudyne, Inc., No. 05-2972 (JNE/JJG), 2009 WL 2916847, *3 (D. Minn. Sept. 4, 2009) ("Plaintiffs bear the burden of establishing their standing. The Court will determine whether they have satisfied that burden based on the evidence received at trial."); see also Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983) ("The defense of lack of subject matter jurisdiction cannot be waived, and the court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction.").

18. Here, Kirola has long been on notice that the City disputes whether she has standing and that such determination would be adjudicated at trial. Although the City chose not to pursue the standing issue in connection with Plaintiff's class certification motion, the Court's order on that motion expressly stated that Kirola's standing "[would] be made following trial based upon the evidence presented and the relief requested." Dkt. 285, 3:23-24. Despite this awareness, Kirola offered only minimal testimony at trial to establish that she suffered an injury in fact. Specifically, Class Counsel only elicited testimony from Kirola regarding: (1) three stretches of sidewalk containing "bumps"; (2) one corner that lacked curb ramps; (3) one corner that provided only a single curb ramp; (4) errant step stools at three of the City's libraries; (5) three inaccessible pools; and (6) steep paths at one park. RT 1384:13-21, 1382:4-18, 1387:2-4, 1385:3-1386:8, 1386:15-19, 1388:5-7.

19. Apparently recognizing the insufficiency of her trial testimony, Kirola now argues in her post-trial briefing that the Court must also consider evidence that was not presented at trial. Dkt. 672, 13:22-14:3, 17:16-18:4, 18:15-26, 19:12-25. More specifically, Kirola points to certain portions of her deposition testimony and the declaration she submitted in support of her motion for class certification to establish that she encountered barriers in addition to those to which she testified at trial. Kirola's post hoc effort to supplement the trial record is unavailing. The Supreme Court has made it clear that when standing is disputed at "the final stage" of a case, standing must be established by "evidence adduced at trial ." See Lujan, 504 U.S. at 561; Maine People's Alliance, 471 F.3d at 283; Perry, 186 F.3d at 829.

20. Limiting the evidence of Kirola's standing to the trial record is necessary and appropriate as a matter of due process. Both Kirola's deposition testimony and her declaration constitute inadmissible hearsay. Fed. R. Evid. 801(c); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 779 (9th Cir. 2002) ("Deposition testimony, irrespective of its contents, is ordinarily hearsay when submitted at trial"); but see Fed. R. Civ. P. 32(a)(4) (providing an exception to the hearsay rule for deposition testimony where the witness is unavailable). Namely, both documents consist of out-of-court statements offered to establish the truth of the matter asserted—to wit, that Kirola did, in fact, encounter access barriers as described and consequently suffered an injury in fact. Kirola has not shown that these statements are subject to any hearsay exception, and otherwise provides no authority suggesting that it would be fair or appropriate for the Court to consider her out-of-court statements, which were not subject to cross-examination by the City at trial.¹² 

21. In sum, the Court finds that Kirola's standing must be evaluated based on the trial record. Consequently, Kirola cannot rely on her deposition testimony or statements presented in a declaration previously filed in support of her class certification motion to bolster the trial record for the purpose of establishing her standing. See Lujan, 504 U.S. at 561; cf. Simon v. Shearson Lehman Bros., 895 F.2d 1304, 1323 (11th Cir. 1990) (when a party chooses not to present evidence at trial for strategic or tactical reasons, it is not an abuse of discretion to deny the party's request to re-open the record before entry of judgment).

^12. The vast majority of the deposition testimony Kirola now wishes the Court to consider was never previously presented to the Court. Although the first volume of Kirola's deposition was submitted to the Court in connection with the motion for class certification, the second volume of her deposition, as Class Counsel now admits, was never previously provided to the Court. Dkt. 673, 1:13-17; see also Dkt. 189-2, Exh. 15. All but one alleged access barrier which Kirola now wishes the Court to consider was discussed in the second volume. Dkt. 673.