KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

7. Self-Evaluation and Transition Plans

161. Kirola alleges that the City has failed to formulate and implement "an adequate self-evaluation plan" or transition plan, and seeks to compel the City to do so under the ADA, California Government Code section 11135, and their respective regulations. Dkt. 294, 14:6-7, 19:21-24.²⁸ The record shows that the City has, in fact, drafted the transition plans for both its public right-of-way and facilities. While it is unclear whether the City has drafted a self-evaluation plan, the authorities are clear that Plaintiff has no legal basis to sue based on the lack of such a plan.

a) ADA

162. ADA regulations direct public entities to adopt transition and self-evaluation plans. See 28 C.F.R. § 35.150(d)(1) ("a public entity . . . shall develop, within six months of January 26, 1992, a transition plan setting forth the steps necessary to complete [structural changes to facilities to achieve program access]"); 35.105(a) ("A public entity shall . . . evaluate its current services, policies, and practices, and the effects thereof "). Neither regulation expressly creates a private right of action to enforce its provisions.

163. "In determining whether a particular regulation is enforceable through a statute's private right of action, [courts] must look to the statute itself and determine whether it displays Congress's intent to create the private right purportedly contained in the regulation." Lonberg, 571 F.3d at 850. "Only those regulations effectuating the statute's clear prohibitions or requirements are enforceable through the statute's private right of action; regulations that do not encapsulate the statutory right and corresponding remedy are not privately enforceable." Id. at 851.

164. Section 202 of the ADA, 42 U.S.C. § 12132, prohibits public entities from denying qualified disabled individuals from "meaningful access" to their services and programs. Lonberg, 571 F.3d at 851. In view of this prohibition, the Ninth Circuit held in Lonberg that the failure to prepare a transition plan is not subject to private enforcement. Id. The court explained that the statute "says nothing about a public entity's obligation to draft a detailed plan and schedule for achieving such meaningful access." Id. More fundamentally, "[t]he existence or non-existence of a transition plan does not, by itself, deny a disabled person access to a public entity's services, nor does it remedy the denial of access." Id. Citing Lonberg, this Court has likewise ruled that there is no private of action to enforce ADA regulations requiring the creation and implementation of a self-evaluation plan. Skaff v. City of Corte Madera, No. C 08-5407 SBA, 2009 WL 2058242, *3 (N.D. Cal. Jul. 13, 2009). Given these authorities, the Court finds that Kirola cannot seek to compel the City to prepare and implement a transition or self-evaluation plan under ADA regulations.

b) California Law

165. For much the same reasons, the Court rejects Kirola's companion claim predicated upon California Government Code section 11135 and two of its implementing regulations, Cal. Code Regs., title 22, sections 98251 (Self-Evaluation) and 98258 (Transition Plan). The state regulations governing the creation and implementation of transition and self-evaluation plans are patterned after the aforementioned federal regulations and are worded largely the same, except that the state regulations are stated in permissive (i.e., "should"), as opposed to mandatory (i.e., "shall") terms. As such, it would be anomalous to conclude, as Kirola suggests, that California regulations impose a mandatory duty upon public entities to develop transition and self-evaluation plans when no such obligation exists in the federal regulations upon which they are patterned. See Darensburg v. Metropolitan Transp. Com'n, 636 F.3d 511, 519 (9th Cir. 2011) (applying federal law to claim brought under California Government Code section 11135); Kamen v. Lindly, 94 Cal. App. 4th 197, 203 (2001) ("Where, as here, California law is modeled on federal laws, federal decisions interpreting substantially identical statutes are unusually strong persuasive precedent on construction of our own laws.").

166. The Court is aware that it previously intimated that Kirola could pursue claims predicated on California's self-evaluation and transition plan regulations. See Kirola v. City and Cnty. of San Francisco, No. C 07-3685 SBA, 2010 WL 1459725, *1 (N.D. Cal. Apr. 12, 2010). In opposing Plaintiff's motion for leave to file an amended complaint, the City argued, inter alia, that permitting the proposed amendment was futile because the regulations did not impose any mandatory duty to develop or implement either a transition or self-evaluation plan. Dkt. 205, 12:21-15:2. The Court rejected the City's argument, concluding that it could not be logically reconciled with California Government Code § 11139, which expressly provides a private right of action to enforce rights conferred under Section 11135 and its implementing regulations. Kirola, 2010 WL 1459725, *1. After further consideration of this matter, however, the Court reconsiders that conclusion. See United States v. Smith, 389 F.3d 944, 949 (9th Cir. 2004) (holding that a district court may sua sponte reconsider a prior, interlocutory ruling over which it has continuing jurisdiction).

167. When Section 11135 was originally enacted in 1977, it did not include an express private right of action. Donovan v. Poway Unified Sch. Dist., 167 Cal. App. 4th 567, 594 (2008). In Arriaga v. Loma Linda University, 10 Cal. App. 4th 1556 (1992), the California Court of Appeal subsequently declined to find an implied right of action. "In response to Arriaga, the Legislature, in Assembly Bill No. 1670 amended Government Code section 11139 to expressly provide for a private right of action, but expressly limited enforcement to a 'civil action for equitable relief.'" Donavan, 167 Cal. App. 4th at 594. Section 11139 provides, in relevant part, as follows: "This article and regulations adopted pursuant to this article may be enforced by a civil action for equitable relief, which shall be independent of any other rights and remedies." Cal. Gov. Code § 11139.

168. Although Section 11139 created a private right of action to enforce rights conferred under Section 11135 and its regulations, it does not automatically follow that all regulations promulgated under Section 11135 necessarily create a mandatory duty, and hence, a private right of action based on the failure to prepare and implement either a transition plan or self-evaluation plan. Section 11135 is a general anti-discrimination statute, pursuant to which a broad range of regulations have been adopted to implement its provisions. Cal. Code Regs. tit. 22, §§ 98000-98413. Regulatory language is to be construed in "its plain, commonsense meaning," giving meaning, where possible, "to every word and phrase in the regulation . . . as a whole so that all of the parts are given effect." Butts v. Bd. of Trs. of the Cal. State Univ., 225 Cal. App. 4th 825, 835, (2014). Regulations are to be harmonized together, see Hoitt v. Dept. of Rehabilitation, 207 Cal. App. 4th 513, 524 (2012), and construed in the context with the statutes which they implement, see Wollmer v. City of Berkeley, 193 Cal. App. 4th 1329, 1349 (2011).

169. The regulations implementing Section 11135 expressly differentiate between those regulations that are mandatory and those that are advisory. Cal. Code Regs. tit. 22, § 98010. Specifically, the regulations provide that: "'Should' means advisory " while "'Shall' means mandatory ." Id. (emphasis added); Comunidad En Accion v. Los Angeles City Council, 219 Cal. App. 4th 1116, 1125 (2013) (holding that the definitions section forth in the California Code of Regulations, title 22, section 98010, apply to California Government Code section 11135). Here, the transition and self-evaluation plan regulations at issue use the term "should," as opposed to "shall." Id. §§ 98251(b), 98258. In view of the fact that the promulgating agency expressly differentiated between "should" and "shall" and ascribed different significance to each term, it would be incongruous to construe Section 11139 as creating a mandatory duty or conferring a private right of action to enforce the transition and self-evaluation plan regulations, which are merely advisory in nature. See Wollmer, 193 Cal. App. 4th at 1349. Thus, the Court finds that although Section 11139 created a private right of action to enforce rights conferred under Section 11135 and its regulations, it does not transmute the advisory nature of the self-evaluation and transition plan into a mandatory duty.

170. Even if the regulations at issue imposed a mandatory duty, Kirola has failed to show that Section 11135 is applicable here. Section 11135 applies only to a program or activity operated by the state or "[is] funded directly by the state, or receives any financial assistance from the state." Cal. Gov. Code § 11135(a). No such showing has been made. That notwithstanding, any obligation created by the state's transition and self-evaluation plan regulations runs to the applicable state agency, as opposed to the City. Both of the applicable regulations include the language "should be required by the responsible State agency ," suggesting that any alleged duty under each regulation falls on state agencies rather than on the recipient of state funds. See 22 Cal. Code Reg's §§ 98251(a)(1), 98258 (emphasis added). Finally, Kirola has failed to demonstrate that she or class members were denied meaningful access to the City's programs, services and activities, but for its failure to adopt and implement "a transition plan for the removal of access barriers as required by California Government Code § 11135." Dkt. 672, 25:26-28.

171. For the reasons discussed above, the Court finds that Kirola's claim based on the City's alleged failure to develop, adopt and implement a transition plan or self-evaluation plan fails both procedurally and substantively.