WILLITS, et al v. CITY OF LOS ANGELES - Order Granting Plaintiff's Motion for Partial Summary Judgment

B. Whether the City May Assert an Undue Burden Defense With Respect to New Construction or Alterations Under Title II of the ADA and Section 504 of the Rehabilitation Act

The City's Seventh and Fifty–Fourth Affirmative Defenses assert that the city cannot be held liable for failing to make its sidewalks and pedestrian rights of way accessible to people with mobility disabilities because doing so would result in an undue financial burden.

Such a defense is foreclosed under Title II of the ADA with respect to streets, pedestrian rights of way, sidewalks, and curb ramps that have been newly constructed or altered since January 26, 1992, and under Section 504 of the Rehabilitation Act with respect to streets, pedestrian rights of way, sidewalks, and curb ramps that have been newly constructed or altered since June 3, 1977. Sidewalks, crosswalks, curb ramps, and other parts of the pedestrian right of way are “facilities” and “services, programs, or activities” under Title II of the ADA and Section 504. See 28 C.F.R. § 35.104; 45 C.F.R. § 84.3(i); Barden, 292 F.3d at 1076–77. Title II of the ADA provides an undue financial burden defense for facilities already in existence as of January 26, 1992, but not for facilities constructed or altered after that date. 28 C.F.R. § 35.150. The Rehabilitation Act provides similarly for facilities constructed or altered after June 3, 1977.

The Court finds that the City may not assert its Seventh and Fifty–Fourth Affirmative Defenses related to undue financial burden as to “newly constructed or altered” pedestrian rights of way, sidewalks, and curb ramps as defined under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.

Plaintiffs seek to preclude Defendants from offering evidence related to its financial situation. That request is denied without prejudice. Requests to preclude specific evidence that could be used for multiple purposes may be brought at a later date as motions in limine.