KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

4. "Overarching Policy"

38. Finally, Kirola argues that she need not demonstrate her standing to challenge each of the eleven policies and procedures she identified in post-trial briefing. Rather, Kirola now asserts that the City has an "overarching policy of leaving disability access barriers in place," and that she has standing to challenge this "official" policy. Dkt. 672, 1:16-28, 5:6-20:4, 25:18-19. She denies that this is a newly-asserted theory of liability, and claims that the Court characterized the case in this manner in its order granting her motion for class certification. Dkt. 681, 2:24-3:4.

39. As an initial matter, Kirola's contention directly contradicts her prior representation to the Court that she is specifically challenging the eleven policies and practices identified in her prior post-trial briefing. Dkt. 662, 13:12-14:17. That aside, Kirola's "overarching policy" argument makes no sense. The mere fact that an access barrier is left "in place" does not automatically demonstrate a violation of Title II of the ADA. Title II emphasizes "program access," which entails reviewing the program or service in its entirety, as opposed to whether every element of a facility through which a program or service is presented is fully accessible. See Daubert, 760 F.3d at 986. Consequently, a barrier may be left in place without necessarily violating Title II.

40. Kirola cites Arreola v. Godinez, 546 F.3d 788, 795 (7th Cir. 2008), for the proposition that this Court, in determining standing, must look at the "case as a whole, rather than picking apart its various components to separate the claims for which the plaintiff will be entitled to relief from those for which he will not." Dkt. 672, 3:9-12. Arreola involved an interlocutory review of a class certification order, and as such, the court focused on the allegations in the plaintiff's complaint to determine if he had satisfied his burden to establish standing at the pleading stage. 546 F.3d at 795. Arreola is inapposite, where, as here, the issue of standing is being evaluated based on evidence presented at trial. See Lujan, 504 U.S. at 561.

41. Irrespective of whether Kirola frames her challenge as one to an "overarching" policy or to eleven specific policies and practices, Kirola lacks standing in either instance. As will be established in the sections that follow, Kirola has not shown that she has suffered an injury in fact resulting from any access barrier she testified to having encountered. Having failed to make this showing, she cannot, by extension, demonstrate any injury resulting from any allegedly impermissible policy or practice.