Barrilleaux v. Mendocino County et al

MOTION for Summary Judgment Against County of Mendocino

N.D. Cal.March 30, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx PAUL L. REIN, Esq. (SBN 43053) LAW OFFICES OF PAUL L. REIN 200 Lakeside Drive, Suite A Oakland, CA 94612 Telephone: 510/832-5001 Facsimile: 510/832-4787 reinlawoffice@aol.com JIM W. YU, Esq. (SBN 209118) LAW OFFICES OF JIM W. YU 1255 Treat Blvd., Suite 300 Walnut Creek, CA 94597 Telephone: 925/472-6633 Facsimile: 925/407-2996 jim@jimyulaw.com Attorneys for Plaintiff JESSICA BARRILLEAUX UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JESSICA BARRILLEAUX, Plaintiffs, v. MENDOCINO COUNTY; MENDOCINO SUPERIOR COURT; STATE OF CALIFORNIA; JUDICIAL COUNCIL OF CALIFORNIA/ADMINISTRATIVE OFFICE OF THE COURTS; and DOES 1- 10, Inclusive, Defendant. Case No. 3:14-cv-1373 TEH Civil Rights Hearing Date: May 8, 2017 Time: 10:00 a.m. Location: 450 Golden Gate Ave Courtroom B – 15th Floor San Francisco, CA 94102 Judge: Hon. Thelton E. Henderson PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AGAINST COUNTY OF MENDOCINO Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 1 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 1 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx NOTICE OF MOTION TO DEFENDANT COUNTY OF MENDOCINO AND ITS COUNSEL OF RECORD: PLEASE TAKE NOTICE that on May 8, 2017, at 10:00 a.m., or as soon thereafter as the matter may be heard in Courtroom 2 of the above-entitled Court, located at 450 Golden Gate Avenue in San Francisco, California, Plaintiff Jessica Barrilleaux will respectfully move this Court to award her summary judgment on all claims brought by Plaintiff in the First Amended Complaint filed on January 15, 2016 (Dkt. No. 69, the “FAC”) as to Defendant County of Mendocino (“County’). This Motion for Summary Judgment is brought pursuant to Federal Rule of Civil Procedure 56 and applicable law, based on the following: 1. County has owned its County Courthouse since it was built. 2. County receives federal funding and California State funding. 3. In 1991 County altered its Courthouse and due to “budget constraints” deliberately declined to provide disabled access, including accessible public restrooms. 4. In 1996 County performed a $140,000 alteration to convert offices into a Courtroom, again failing to provide disabled access, including accessible public restrooms. Both of County’s FRCP 30(b)(6) designees testified that County did not know on which floor or floors these alterations were made. 5. In 1998 County entered into a Settlement Agreement with the U.S. Department of Justice to provide disabled access, including accessible public restrooms, notices about accommodations, and posting appropriate signage, but failed to comply with that agreement. 6. Plaintiff is a qualified disabled person and was visibly disabled when she visited County’s Courthouse on April 16 and 23, 2013, wearing an external leg brace. 7. On April 16, 2013, Plaintiff was given a notice to appear in Courtroom, Department G at 8:30 am for a traffic court hearing but neither notice nor any other form of communication warned Plaintiff that Department G could only be reached by climbing and descending two sets of stairs. 8. Plaintiff was directed by a County employed security guard on April 23, 2013, to use Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 2 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 2 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx a restroom on the 5th floor that was “designated” for disabled persons but was not accessible, and then to walk down stairs to the 4th floor and Department G. 9. County security guard noticed plaintiff was disabled but never notified plaintiff that her Department G 4th floor hearing could be moved to an accessible floor upon request to the Clerk’s office. 10. Plaintiff encountered multiple barriers in the restroom that caused her difficulties. 11. Plaintiff suffered severe injury while walking down stairs after County failed to provide an accessible route from Department G on the 4th floor of the Courthouse. 12. Plaintiff suffered severe injury because County and its employees failed to provide notice of any alternatives to use one of two inaccessible routes (stairs) connecting Department G to the rest of the building. 13. County is liable for violations of plaintiff’s civil rights damages caused by barriers she encountered in the Courthouse restroom, pursuant to Title II of the Americans with Disabilities Act, because County demonstrated deliberate indifference towards the rights and safety of plaintiff as a disabled person. 14. County is liable for violations of plaintiff’s civil rights damages caused by barriers she encountered in the Courthouse restroom, pursuant to the California Unruh Civil Rights Act, incorporating any violation of Title II of the Americans with Disabilities Act. (Civil Code § 51(f)). 15. County is liable for violations of plaintiff’s civil rights damages caused by barriers she encountered in the 5th floor Courthouse restroom, designated as accessible but in fact is not accessible pursuant to the California Disabled Persons Act (CDPA). 16. County is liable for violations of plaintiff’s civil rights damages caused by barriers she encountered in the Courthouse restroom pursuant to the Rehabilitation Act of 1973, because County is a recipient of Federal funding. 17. County, as a recipient of State funding, is also liable for violations of Plaintiff’s civil rights per Cal. Gov. Code section 11135. This Motion is based on this Notice and Motion, the accompanying Memorandum of Points Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 3 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 3 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx and Authorities in support thereof, the accompanying exhibits to and the declarations by Paul L. Rein, Jessica Barrilleaux, and Jim Yu, the proposed order, the papers and pleadings on file herein, and on such oral arguments and evidence as may be adduced prior to or at the hearing of this matter. Dated: March 30, 2017 LAW OFFICES OF PAUL L. REIN LAW OFFICES OF JIM W. YU /s/ Paul L. Rein By PAUL L. REIN, ESQ Attorneys for Plaintiff JESSICA BARRILLEAUX Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 4 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH i S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii EXHIBIT LIST .............................................................................................................................. iv POINTS AND AUTHORITIES ...................................................................................................... 1 I. INTRODUCTION ........................................................................................................ 1 II. STATEMENT OF FACTS ........................................................................................... 2 A. Plaintiff is a Qualified Person with a Disability Under State and Federal Law ...... 2 B. County Admits it owns the Courthouse and Receives Federal and State Funds ....................................................................................................................... 3 C. County Admits the Alteration History of the Ukiah Courthouse ............................ 3 1. 1991 Alterations ................................................................................................ 3 i. After the 1991 renovations, County received a complaint from an attorney for disabled persons regarding the lack of access after alterations were done, and providing information about stair lifts which would provide the required access, but no action was taken to provide accessible restrooms or stair lifts to the fourth floor ........... 3 ii. County admits that in 1991 it made alterations that required providing “handicapped” access, and knowingly declined to follow those state and federal requirements because of “budget constraints.” .......................................................................................... 4 2. County Made Over $140,000 of Alterations in 1996 Without Providing Accessible Restrooms or Path of Travel to the Fourth Floor Courtroom ......... 4 3. County Failed to Honor its 1998 “Settlement Agreement” with the U.S. Department of Justice Including Agreements to Provide Accessible Restrooms, to Provide Warning Notices and Accommodations for Disabled Persons, and to Train its Employees on its Policy of Accommodations for the Disabled ....................................................................................................... 6 D. Plaintiff’s Interactions with County Employees, Encounters with Access Barriers, and Personal Injury at County’s Courthouse ......................................... 10 III. ARGUMENT .............................................................................................................. 12 A. The ADA and its Enforcement Regulations, Including 28 C.F.R. § 35.151, Required an Accessible Path of Travel and Accessible Restrooms ...................... 12 B. Plaintiff is Entitled to Summary Judgment on the Issue of Liability Because There is no Genuine Dispute Over County’s Discrimination Under State or Federal Law ........................................................................................................... 13 C. County Discriminated Under California Law by Renovating the Courthouse Without Providing Accessible Restrooms and an Accessible Path of Travel to Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 5 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH ii S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx the Areas of Alteration .......................................................................................... 15 1. Altering the Facilities without Complying with Relevant Access Requirements was a Violation of the California Disabled Persons Act .......... 15 2. In 1991 and 1996 County Altered the Courthouse without Complying with California Access Requirements, as to Restrooms and Paths of Travel ......... 17 D. The ADA Title II Established Non-Delegable Duties Which Would Be Undermined if a Responsible Party Could Escape Responsibility by Contracting Away Liability or by Contractual Indemnification ........................... 19 E. County Discriminated Against Plaintiff under the Americans with Disabilities Act and the Rehabilitation Act of 1970 by not Providing Equal Programmatic Access of Physical Access .................................................................................... 20 1. The ADA and Rehab Act Both Require County to Provide Equal Access to the Courthouse ............................................................................................ 20 F. It is undisputed that on April 23, 2013, County’s Security Guard Illustrated County’s Continued Deliberate Indifference by Sending Plaintiff to an Inaccessible Restroom and Failing to Offer Her Accommodations of any Kind . 23 1. A Security Guard Contract for 2013 Shows County Employed the Security Guard Who Directed the Disabled Plaintiff to the Fifth Floor “Disabled” Restroom and Told Her to Walk down the Stairs to Department G on the Fourth Floor, Instead of Telling Her to Consult the Clerk’s Office to Request Disability Accommodation. Failing to Properly Train Employees was a Direct Violation of County’s 1998 Agreement with the U.S. DOJ ...... 23 2. The Evidence is Clear that County has been Deliberately Indifferent to the Needs of Physically Disabled Persons by its Choices to Avoid Offering Equal Access Over the Past 25 years .............................................................. 24 G. Any violation of the ADA is also a Violation of the Unruh Civil Rights Act, Cal. Civ. Code §§ 51(f) and 52, Requiring an Award of Damages Without the Necessity of Proving Wrongful Intent .................................................................. 25 H. Because County Receives California State Funding, it is Also Liable to Plaintiff for Violations of § 11135 Cal. Gov. Code .............................................. 25 IV. CONCLUSION ........................................................................................................... 25 Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 6 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH iii S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx TABLE OF AUTHORITIES CASES Federal Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901 (6th Cir. 2004) ......................................................................................................... 21 Access 4 All, Inc. v. Trump Int'l Hotel & Tower Condo., 2007 WL 633951 (S.D.N.Y. Feb. 26, 2007) ................................................................................. 19 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................................................................ 13, 14 Arnold v. United Artists Theater Circuit, Inc., 866 F. Supp. 433 (N.D. Cal. 1994) ............................................................................................... 16 Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002) ........................................................................................ 7, 15, 21, 23 Boemio v. Love’s Rest., 954 F. Supp. 204 (S.D. Cal.1997) ................................................................................................. 16 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ...................................................................................................................... 14 Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10th Cir. 2003) ....................................................................................................... 22 Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939 (9th Cir. 2011) ......................................................................................................... 22 City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) ...................................................................................................................... 25 Dias v. Nationwide Life Ins. Co., 700 F. Supp. 2d 1204 (E.D. Cal. 2010) ......................................................................................... 14 Douglas v. California Dep't of Youth Auth., 285 F.3d 1226 (9th Cir. 2002) ........................................................................................................ 14 Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001) ................................................................................................. 21, 24 Equal Rights Ctr. v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010) .......................................................................................................... 19 Estate of Tucker v. Interscope Records, 515 F.3d 1019 (9th Cir. 2008) ........................................................................................................ 14 Feltenstein v. City Sch. Dist. of New Rochelle, 2015 WL 10097519 (S.D.N.Y. Dec. 18, 2015) ...................................................................... 19, 20 Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 7 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH iv S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998) .......................................................................................................... 14 Huezo v. Los Angeles Community College District, 672 F.Supp.2d 1045 (C.D. Cal. 2008) .......................................................................................... 22 Independent Living Centers et al. v. County of Sacramento, 142 F. Supp. 3d. 1035 (E.D. Cal. 2015) .................................................................................. 19, 25 Independent Living Centers of S. California v. City of Los Angeles, 973 F. Supp. 2d 1139 (C.D. Cal. 2013) ........................................................................................ 19 Lonberg v. City of Riverside, 571 F.3d 846 (9th Cir. 2009) ......................................................................................................... 22 Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002) ........................................................................................................ 14 Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831 (N.D. Cal. 2011) .................................................................................... 16, 18 Molski v. Arciero Wine Group, 164 Cal. App. 4th 786 (2008) ......................................................................................................... 14 Pierce v. County of Orange, 526 F.3d 1190 (9th Cir. 2008) ....................................................................................................... 21 Rodriguez v. Barrita Inc., 10 F.Supp.3d 1062 (N.D. Cal. 2014) .......................................................................... 14, 16, 17, 18 Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001) ..................................................................................................... 22 Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054 (E.D. Cal. 2006) ......................................................................................... 16 State Donald v. Café Royale, Inc., 218 Cal. App. 3d 168 (1990) ............................................................................................. 14, 16, 23 Donald v. Sacramento Valley Bank, 209 Cal. App. 3d 1183 (1989) ....................................................................................................... 17 In re Marriage of Carney, 24 Cal. 3d 725 (1979) ................................................................................................................... 12 Jankey v. Song Koo Lee, 55 Cal. 4th 1038 (2012) ................................................................................................................ 16 Munson v. Del Taco, Inc., 46 Cal. 4th 66, (2009) ....................................................................................................... 15, 23, 25 Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 8 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH v S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx People ex rel. Deukmejian v. CHE. Inc., 150 Cal. App. 3d 123(1983) .................................................................................................... 16, 17 STATUTES, REGULATIONS AND RULES Federal 28 C.F.R. § 35.150 .................................................................................................................... 7, 21 28 C.F.R. § 35.151 ........................................................................................................ 5, 12, 13, 18 29 U.S.C. § 701 ............................................................................................................................. 12 29 U.S.C. § 794 ....................................................................................................................... 20, 21 34 C.F.R. § 104.22 ........................................................................................................................ 21 42 U.S.C. § 12101 ............................................................................................................. 12, 20, 21 42 U.S.C. § 12102 ......................................................................................................................... 15 42 U.S.C. § 12131 ......................................................................................................................... 13 42 U.S.C. § 12132 ................................................................................................................... 12, 20 42 U.S.C. § 12134 ......................................................................................................................... 13 Fed.R.Civ.P. 56 ....................................................................................................................... 13, 14 State Cal. Civ.C. § 51 ............................................................................................................................. 23 Cal. Civ.C. § 52 ............................................................................................................................. 23 Cal. Civ.C. § 54 ........................................................................................................... 12, 14, 15, 23 Cal. Civ.C. § 54.1 .............................................................................................................. 12, 14, 15 California Title 24 of the Administrative Code ................................................................. 1, 17, 18 Gov.C. § 12926 ............................................................................................................................. 15 Gov.C. §§ 4450 ............................................................................................................. 5, 16, 17, 18 Gov.C. § 4451 ............................................................................................................................... 17 Gov.C. § 4456 ......................................................................................................................... 16, 18 Gov.C. § 11135 ............................................................................................................................. 25 Health & Safety C. § 19959 .................................................................................................... 17, 18 Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 9 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH vi S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx Unif. Bldg. C. § 402 ...................................................................................................................... 18 OTHER H.R. Rep. No. 101-485 (III) .......................................................................................................... 23 Americans Standards Association Specification ........................................................................... 17 ADA Accessibility Guidelines ...................................................................................................... 21 Uniform Accessibility Standards .................................................................................................. 21 Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 10 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH vii S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx EXHIBIT LIST Declaration of Paul Rein Exhibit 1 - Barrilleaux Depo Excerpt (53-60; 71-87) Exhibit 2 - County Responses to Plaintiff RFAs (60, 61, 71) Exhibit 3 - Shaver Depo Excerpt (20:6-29:3; 47-49; 50-56; 65:9-69:12) Exhibit 4 - Minutes from County of Mendocino Board of Supervisors meeting on December 17, 1991 (County 1234) Exhibit 5 - Letter dated January 8, 1992, from Jonathan Byer, Architect to Courthouse Building and Grounds Department (County 1214) Exhibit 6 - Memorandum dated December 9, 1991, regarding Courthouse Access Compliance (County 1218) Exhibit 7 - Letter dated November 19, 1991, from Frank Broadhead, an attorney for disabled persons, with attachments regarding wheelchair accessibility equipment including stair lifts, which could provide disabled access to the inaccessible floor of the Courthouse (County 1219-1246) Exhibit 8 - “Outline Specification and Details” for “Mendocino County Courthouse Courtroom, Ukiah, California” dated October 10, 1996 (County 811-842) Exhibit 9 - Invoice from Cupples Construction for the reconstruction of a courtroom at the Mendocino County Courthouse dated November 7, 1996, and totaling $46,819 (County 845-846) Exhibit 10 - Invoice from Cupples Construction for the reconstruction of a courtroom at the Mendocino County Courthouse dated October 23, 1996, and totaling $11,217 (County 852) Exhibit 11 - Courtroom Construction Project Notes for the construction of a new courtroom and alterations to the Mendocino County Courthouse in 1996 (County 854-859) Exhibit 12 - Invoice from Cupples Construction for the reconstruction of a courtroom at the Mendocino County Courthouse dated November 20, 1996, and totaling $87,460 (County 843-844) Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 11 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH viii S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx Exhibit 13 - Correll Depo Excerpt (114:14-115:16) Exhibit 14 - U.S. DOJ 1998 Settlement Agreement with Mendocino County (BARR 9-14) Exhibit 15 - Highway Patrol Citation issued to Plaintiff on September 2, 2012 (BARR 00270) Exhibit 16 - Notice to Appear in Department G on April 23, 2013 provided to Plaintiff (BARR 267-268) Exhibit 17 - 2008 Transfer Agreement between the Judicial Council of California, Administrative Office of the Courts and County of Mendocino (County 39-66) Exhibit 18 - 2008 Joint Occupancy Agreement between the Judicial Council of California, Administrative Office of the Courts and County of Mendocino (County 183-205) Exhibit 19 - Contract between County of Mendocino and “Universal Protection Service” to provide security personnel for County and its Courthouses from November 17, 2012 to November 16, 2013. Exhibit 20 - County’s “Response” to Plaintiff’s FRCP 30(b)(6) Deposition Notice. Declaration of Jim Yu Exhibit 1 - Medical Records, operative report of March 15, 2013, knee surgery on Plaintiff regarding left intraarticular patellar fracture by Dr. Bruce Bragonier. Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 12 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 1 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION It is hard to imagine a public entity flouting disabled access law more than Mendocino County. County’s unchanging modus operandi toward disability access since 1991 has made it the apotheosis of “deliberate indifference” to the civil rights of disabled persons. It has knowingly ignored state and federal disability laws and done so repeatedly for decades. It performed multiple alterations, received repeated notices, made promises to settle a civil rights complaint in 1998 by the U.S. Department of Justice, yet failed to provide accessible paths of travel to the alteration sites in its Courthouse, including not providing even a single accessible restroom, for the last 25 years. It performed alterations and ignored the law in 1991 and 1996, ignored its 1998 Settlement Agreement with the U.S. Department of Justice to fix multiple access violations, feigned ignorance of its past failures to provide access, and it continues to do so now. This case is about Plaintiff Jessica Barrilleaux’s civil rights as a disabled person. It is about the lack of accessible paths of travel inside the Courthouse which caused her disastrous fall; difficulties in her using the restroom; and confusion from lack of appropriate signage. Title-24, the California Building Code, has since 1982 defined a “path of travel” in existing building as: a continuous, unobstructed way of pedestrian passage by means of which a particular area may be approached, entered and exited, and which connects a particular area with an exterior approach (including sidewalks, streets, and parking areas), an entrance to the facility, and other parts of the facility. In existing buildings, when alterations, structural repairs or additions are made, the term "path of travel” also includes the sanitary facilities, telephones, drinking fountains and signs serving the altered area. (emphasis added) Nothing County can argue, about “programmatic access” (which without notice, is non- existent) or about delegating non-delegable duties to other defendants, contravenes the fact that Plaintiff’s damages flow from County’s knowing and repeated failure to provide proper accessible paths of travel within its Courthouse, justified by “budget constraints.” Plaintiff encountered multiple path of travel barriers: from lack of written notice of posted Courthouse signs regarding requesting accommodations; to County employed security guard telling her to go to the “disability” restroom on the 5th floor (which she found not accessible), and then to descend stairs from the 5th floor down to the 4th floor Courtroom; descending stairs from Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 13 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 2 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx Department G; to when she ultimately fell descending from the 2nd to the 1st floor. Plaintiff’s claims flow from the inaccessible path of travel County provided. Instead, County claims they are not responsible because Plaintiff made a “choice” to encounter barriers, a clear case of blaming the victim. County had notice for 22 years of these conditions prior to Plaintiff’s fall on April 23, 2013, yet it continues to make excuses for its indifferent behavior toward disabled persons and relies on co-defendants’ March 2017, agreement to provide accessible restrooms “within 6 months,” after three years of litigation. Yet documents show co-defendants cannot make alterations without County’s “written consent.” Ex. 18 at County 190. This Court should find County liable under federal and State law, and then set a trial to determine the amount of plaintiff’s damages and an appropriate injunction regarding providing accessible restroom facilities, training County personnel, and establishing actual physical access to each floor on which alterations have been made, “as programmatic access” cannot avoid liability for alterations. (Both of County’s 30(b)(6) designees claimed to have no knowledge of where the 1991 and 1996 alterations had occurred, although County “admitted” 4th floor alterations in Response to Plaintiff’s Requests to Admit.) II. STATEMENT OF FACTS A. Plaintiff is a Qualified Person with a Disability Under State and Federal Law. On March 11, 2013, plaintiff fell and fractured her left kneecap in three places. Dec. of Jim Yu in Supp. of Plaintiff’s Motion for Summary Judgment, “Yu. Dec.”, Ex. 1, Operative Note. Four days later, her orthopedic surgeon Dr. Bruce Bragonier installed four screws to stabilize the fractures. Id. Plaintiff’s mobility was severely compromised, including on the dates of her April 16 and April 23, 2013, visits to County Courthouse. She appeared disabled to others, including County employees. Declaration of Paul Rein in Supp. of Plaintiff’s Motion for Summary Judgment, Ex. 1, Barrilleaux Depo at 56:5-59:7; 78:1-80:21; 1 Yu Dec., Ex. 1. 1 Unless otherwise specified, all citations to the Deposition of Jessica Barrilleaux are referenced as “Depo,” and attached to the Declaration of Paul Rein as Exhibit 1. All citations to Docket No. 102, the Barrilleaux Declaration in Support of Motion for Preliminary Injunction, are referenced as “Dec.” and all citations to Docket No. 160, the Supplemental Declaration of Jessica Barrilleaux in Support of Plaintiff’s Opposition to County’s (Initial) Summary Judgment Motion are referenced as “Supp. Dec.” Except as otherwise indicated, all exhibits are authenticated by the Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 14 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 3 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx B. The Count Admits it owns the Courthouse and Receives Federal and State Funds County admits that at all times relevant to this case that it owned the Courthouse. Ex. 2, County Response to Plaintiff’s RFA 71. County also admits through its FRCP 30(b)(6) designee that it receives federal funding, including “community block grant funds that are to remove architectural barriers.” Ex. 3, Shaver Depo at 67:1-21, 68:7-13, and 69:1-12. It also admits receiving state funding, relevant to its liability under Cal. Gov. Code section 11135. Id. C. County Admits Alteration History of the Ukiah Courthouse 1. 1991 Alterations County performed significant alterations to the Courthouse in 1991, converting offices into a Courtroom.2 Ex. 4, Board of Supervisors Minutes, December 17, 1991, (County 1234). The location of these alterations is uncertain.3 County did not install any accessible restrooms: none are accessible to this day. Docket No. 103 and 103-2, Margen Dec.; Docket No. 115-3, Blackseth Dec. It is undisputed that there are no accessible restrooms serving any area of alteration in the Courthouse. Id. As cited in the Court’s Order Denying Plaintiff’s Motion for Preliminary Injunction, “Barrilleaux correctly observes that Judicial Defendants’ own expert has identified multiple non-compliant issues with the fifth-floor restroom.” Docket No. 122, Order at 5:15-19. i. After the 1991 renovations, County received a complaint from an attorney for disabled persons regarding the lack of access after alterations were done, and providing information about stair lifts which would provide the required access, but no action was taken to provide accessible restrooms or stair lifts to the Fourth Floor. County Code Enforcement Officer (“CEO”), Dale Hawley, met with attorney Frank Broadhead, (November 6, 1991) regarding problems that his disabled clients were having Rein Declaration, “Rein Dec.” 2 County’s attorney, Anne Keck, “represented” that, in 1991 and 1996, “County's record keeping system in those days was absolutely horrible.” Ex. 3 Shaver Depo. at 20:6 – 22:23. 3 A 1992 letter from an architect represents that 1991 alterations occurred on the second and third floors. Ex. 5, County 1214-1215. However, because no restroom in the entire building is accessible, the location of the restroom is not dispositive. The nature and location of an injunction to provide at least one accessible restroom, and the amount of damages plaintiff suffered are reserved for trial. Expert Margen’s Declaration opined at least two sets of accessible restrooms are required. Docket No. 103 and 103-2, at p. 3-4. Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 15 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 4 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx accessing what was then known as “Division A” Courtroom. Ex. 6, December 19, 1991, Memo regarding “Courthouse Handicapped Access Compliant” (County 1218). County CEO Hawley was aware that disabled access regulations applied “to public buildings such as the courthouse.” Id. Thereafter, Mr. Broadhead sent suggestions for access lifts that County could install to fix the path of travel problems to the “Division A” Courtroom.4 Id.; Ex. 7, November 19, 1991, Broadhead letter (County 1219-1246). County failed to install any lift or make any restroom accessible. Docket No. 103 and 103-2, Margen Dec.; Docket No. 115-3, Blackseth Dec. ii. County admits that in 1991 it made alterations that required providing “handicapped” access, and knowingly declined to follow those state and federal requirements because of “budget constraints.” County Board of Supervisors admitted that it performed alterations that required disabled access in 1991. Ex. 4, Minutes from Board of Supervisors Meeting (County 1234). County Administrator Scannell reported that when the Board and Administration vacated their offices in the Courthouse for needed court space, the remodeling undertaken failed to address the issue of handicapped access liability as required by law. Mr. Scannell reiterated that the State and Federal law requires that whenever a County facility is remodeled it must be made handicapped accessible; however, because of budget constraints, the former CAO made the determination that the accessibility requirements would not be addressed. (Emphasis added) Id. County promised to rectify the access issues and to draw the funding required from the Courthouse Construction Fund to pay the expenses associated with this project and Buildings and Grounds is directed to meet with the Court Executive Officer regarding construction activities associated with this project. Id. Despite this commitment, and despite awareness of its previously admitted mistake in not providing access, County again failed to install any lift or make any restroom accessible. Docket No. 103 and 103-2, Margen Dec.; Docket No. 115-3, Blackseth Dec. 2. County Made Over $140,000 Alterations in 1996 Without Providing Accessible Restrooms or Path of Travel to the Fourth Floor Courtroom County renovated its Courthouse again in 1996. Ex 8, “Outline Specifications and 4 In 2013 Dept. G handled all small claims matters, as well as traffic Court and Probate. See Docket No. 100-14. There is no indication that the current Dept. G was not “Division A” in 1991. Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 16 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 5 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx Details” Mendocino County Courthouse Courtroom (County 811-842); Ex. 9, Construction Invoice, November 7, 1996 (County 845-846); Ex. 10, Construction Invoice October 23, 1996 (County 852); Ex. 11, Courtroom Construction Project Notes (County 854-859); and Ex. 12, Construction Invoice, November 20, 1996 (County 843-844). “Budget constraints” did not prevent County from converting offices into a new courtroom. Id. The October 10, 1996, Ross Drulis Architects contract included demolition of walls, new rough wall framing and new drywall, new doors, windows, and trim, new fiberglass flooring for chamber’s restroom, sound insulation for private chamber’s restroom, new plumbing and installation of a new Court Bench, witness box, and court seating. Id. County refused on January 31, 2017, to produce an FRCP 30(b)(6) deponent on the noticed subject (Topic 1), “The complete history of construction and alterations at the Ukiah Courthouse from January 1968 to December 1, 2016, as to the location, nature, and cost of the work performed.” Ex. 20, Topic 1. County designated Mr. Shaver to testify as to “4th floor alterations,” but “declines to designate Mr. Shaver or any other witness to testify on the remaining portions of this topic.” This refusal was despite obligations under California state law since 1968 per Cal. Gov. Code. Section 4450 et seq requiring accessible restrooms serving the areas of alteration whenever “alterations, structural repairs or additions” were made. Ex. 20, County’s “Response” to Plaintiff’s FRCP 30(b)(6) Notice. Yet County had admitted in RFA Responses 60 and 61 that construction work was performed subsequent to January 1, 1969, and prior to April 23, 2013, on the 4th floor of the subject property. Ex. 2, County Response to Plaintiff’s RFAs 60 and 61. (Alterations after 1992, including those in 1996, also directly triggered ADA Title II access. 28 C.F.R. section 35.151(b).) County admits it has always owned the Courthouse. County ignores its “ownership” liability under California state law for providing access triggered by any alterations since 1968, especially those in 1991 when it admittedly changed offices into courtrooms, and recognized in its own Board of Supervisor’s Minutes that it had triggered access requirements but chose not to comply with the law because of “budget constraints.” Id. at Ex. 4, County 1234. County documents reveal the nature, costs, and date of 1996 the alterations, but do not Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 17 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 6 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx specify the location of the renovations. County’s FRCP Rule 30(b)(6) representative designee regarding “Fourth Floor” alterations, Mr. Shaver, testified that he did not know on which floor the alterations were made, or the location of the Courtroom constructed. Ex. 3, Shaver Depo at 20:6- 29:3. Since Mr. Shaver was specifically designated to testify on behalf of County as to “alterations on fourth floor,” and County refused to designate a 30(b)(6) representative as to alterations throughout the Courthouse, County is unable to deny alterations were made to the fourth floor. Mr. Shaver admitted that the 1996 $140,000 alterations were made, but he had no knowledge of any accessible restrooms serving the area of alteration. Id. at 20:6-22:23. A second FRCP Rule 30 (b)(6) designee, Ms. Heather Correll, also did not know where the 1996 alterations were made or what restrooms served the area of alteration. Ex. 13, Correll Depo. at 114:18-25 and 115:1-9. County failed to provide accessible restrooms and accessible paths of travel despite its clear duty and promises to do so, in 1991, 1996 and 1998 (DOJ Agreement). Docket No. 103 and 103-2, Margen Dec.; Docket No. 115-3, Blackseth Dec. and Report; Ex. 7, County 1219-1246. 3. County Failed to Honor its 1998 “Settlement Agreement” with the U.S. Department of Justice Including Agreements to Provide Accessible Restrooms, to Provide Warning Notices and Accommodations for Disabled Persons, and to Train its Employees on its Policy of Accommodations for the Disabled County still did not have accessible restrooms in 1998. Ex. 14, U.S. D.O.J. 1998 Agreement (BARR 9-14). The D.O.J. sued County for multiple access violations. Id. County again agreed to provide access at the Courthouse to remedy the violations, and that it would: modify at least one set of men's and women's restrooms in the Courthouse so that they are in full compliance with the Standards by September 1, 1998. Such modifications will include the installation of at least one accessible toilet and lavatory in each restroom, an accessible urinal (if urinals are provided) in the men's restroom, and accessible dispensers and mirrors in both restrooms. The accessible restrooms will be on an accessible route on an accessible level of the Courthouse. County will also post signage that complies with the ADA at all inaccessible restroom facilities directing individuals to the accessible restrooms. Id. at p. 4, Item 4j. Furthermore, County agreed that 7. All notices issued by County after September 1998 will include the following notice: Any individual with a disability needing to request relocation of a proceeding, requiring information, or needing assistance should contact (name, Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 18 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 7 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx room and telephone numbers) for additional information. Id. at p. 5, ¶ 7 (BARR 13). Such agreements would be on the basis of physical accessibility for any “court participant, juror or spectator.” Id. at p. 4, ¶ 5. County also agreed to publicize this policy (regarding requesting assistance) to the public by posting notices in multiple locations to advise that some of its courtrooms were inaccessible, including Department G. Id. Additionally, County agreed to instructions on this policy for all County personnel, including bailiffs: In order to publicize this policy to members of the public, this policy will be posted in the elevator, Superior Court Clerk's office, and next to each courtroom in the courthouse by September 1, 1998. All officials involved in the Courts including all judges, clerks, and bailiffs will receive instruction on this policy by September 1, 1998. Id. at ¶ 6. None of the notices sent to plaintiff relating to court appearances at the Mendocino County Courthouse – including the 2012 Highway Patrol citation (Ex. 15 (BARR 270)) and the April 16, 2013 Notice to Appear in Department G on April 23, 2013 (Ex. 16 (BARR 267)) – included the notice required by a 1998 “settlement agreement” County entered with the U.S. DOJ (Ex. 14 (BARR 9-14 at 13)) advising disabled persons to call a phone number to request “accommodation” at the Courthouse. Plaintiff did not receive any notice from County (or its successors in interest) on how she could move proceedings. Dec. at ¶ 5. There were no notices posted in the Elevator that complied with the 1998 agreement. Id. at ¶ 8. County failed again to provide any restroom access.5 County not only failed to honor its agreement, but it falsely represented to the Judicial Defendants (“JDs”) in 2008 in the “Transfer Agreement” that the Courthouse was in compliance with all state and federal laws: 7.1.9: No Violations of Law 5 The Declaration of access expert Peter Margen opines that at least two accessible restrooms were required for a five Story Courthouse. While programs, services, and activities may not necessarily require physical modifications to existing buildings, total program exclusion is not permissible. 28 CFR § 35.150. No program or service offered at the Courthouse can therefore meet ADA Title II requirements because no program offered is accessible given zero accessible restrooms in the whole building. Id; Docket No. 103 and 103-2, Margen Dec.; Docket No. 115-3, Blackseth Dec. and Report. Providing a public restroom useable without difficulty by disabled persons is itself a “service.” See Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002). Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 19 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 8 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx County has no actual knowledge of, nor has County received any written notice from any State, federal, or other governmental or quasi-governmental authority relating to: (1) any violation of Law, whether or not appearing in public records, with respect to the Property, which violation has not been corrected to the satisfaction of the State, federal, or other governmental or quasigovernmental authority that issued the notice . . . Ex. 17, Transfer Agreement (County 0039 - 0066) at § 7.1.9. In 2008, it also failed to disclose to the JDs the 1998 Claim and Settlement Agreement with the DOJ when County represented its “Full and Complete Disclosure” at 7.1.10. Id. at 0056 (emphasis in original). As of April, 2013, neither County nor JDs sent notices or provided signs at the Clerk’s Office warning disabled persons of the inaccessible areas of the Courthouse.6 Yet County owned the Courthouse during all periods from 1968, and could not escape liability by “transferring” its duties. (See § III D, infra.) County also failed to install access to the 4th floor courtrooms or follow its Agreements with the DOJ to send notices to the public as to how disabled persons could request accommodations; post directional signage at the other restrooms; or even make the single purported “accessible” women’s 5th floor restroom actually “accessible.” An agreement entered by County and the Judicial Council on December 23, 2008, the “Joint Operation Agreement” (JOA), required joint responsibility of County and Judicial Council for access to all “common areas,” including stairways, hallways and restrooms. “Common Area” means the areas of the Real Property that are used nonexclusively and in common by, or for the common benefit of, the AOC, County, Court, and any Occupants, and includes (1) hallways, stairwells, elevators, escalators, and restrooms that are not located in either Party's Exclusive-Use Area. Ex. 18, 2008 Joint Occupancy Agreement between the Judicial Council and County of Mendocino (County 183-205) at County 184-185, (emphasis in original). 6 The July 2016, photos of signage in the doorway entry to the building that warn that elevators did not access the 2nd and 4th floor (Docket No. 167, Shaver Dec., Fig. 4, Fig. 5 and ¶ 8) admittedly photographed by County defense counsel Anne Keck in July, 2016, were offered by defendant County and the declaration of Mr. Shaver to show (2017) current conditions, relevant to current “notice efforts.” Defendants do not deny that these signs were placed after this lawsuit was filed and were not there on April 23, 2013. Plaintiff’s Supplemental Dec at ¶3; See also Ex. 3, Shaver Depo. at 47-49. Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 20 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 9 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx Section 3.2.3 (Exhibit 18 “Joint Occupancy Agreement” at County 0190) sets out the responsibilities of the “Contributing Party” (County) and the “Responsible Party” (the AOC): The Responsible Party is responsible for the Operation of the Common Area and will provide and pay for Utilities to the Real Property under this JOA, subject to the Contributing Party's obligations under section 4 of this JOA. The Responsible party shall obtain the written consent from the Contributing Party prior to conducting any maintenance, repair or replacement of any equipment, fixture, or other property located in the common area that exceeds the sum of $2,500. The Responsible Party may make reasonable additions and alterations to the Common Area, the cost of which will be a Shared Cost, but the Responsible Party must first obtain the written consent of the Contributing Party to those additions or alterations. (Emphasis Added). Thus, despite Plaintiff’s March 2017, “Settlement Agreement” with the AOC et al. by which AOC agrees to alterations to make at least one set of restrooms fully accessible AOC cannot do so without the written consent of Defendant County. The cooperation of County is not guaranteed without an injunction. Injunctive relief is far from moot on this and multiple other issues, especially in light of County’s historic disdain for following the law or keeping its agreements –the 1998 “Agreement” with the U.S. D.O.J.; the 1996 $140,000 alterations without providing any accessible restrooms; the 1991 alterations recognized by the Board of Supervisors as requiring access compliance, but deliberately disregarded by County officials because of “budget constraints.” Ex. 4, Minutes (County 1234). The lack of advance notice to Plaintiff plus County Security guard’s misdirection show that “programmatic access” was inadequate, and was also irrelevant to County’s liability for making major alterations without access to any restroom or to Department G. Handing responsibility off to the Judicial Defendants does not let County escape liability, as 1) liability under the ADA is a non-delegable duty because of the significant public interest in encouraging access and 2) from at least 1991 to 2008, i.e. 17 years, County did nothing to provide access to restrooms or Department G, and then “transferred” functions to Judicial Defendants while failing to warn the JDs of County’s repeated violations of law, despite representing in the “Transfer Agreement” “No Violations of Law”. Ex. 17, § 7.1.9 and 7.1.10, “Full and Complete Disclosure”. The March 2017 settlement between Plaintiff and the AOC does not take County off the hook for liability for Plaintiff’s denial of access to restrooms or “paths of travel,” liability in Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 21 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 10 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx regard to Plaintiff’s serious injuries, or negate injunctive relief. D. Plaintiff’s Interactions with County Employees, Encounters with Access Barriers, and Personal Injury at County’s Courthouse Plaintiff Jessica Barrilleaux traveled to the Mendocino County Courthouse on April 16, 2013, to correct parking ticket violations. Dec. at ¶ 4. She was using crutches, recovering from a fractured knee that required surgery and installation of four screws to stabilize. Id. at ¶ 3. When she arrived at the Courthouse on April 16, 2013, Plaintiff entered the building through the side entrance. Depo at 54. The only disabled access signage she saw at the Courthouse that day, or on her second visit on April 23, 2013, was an exterior disabled parking stall sign. Depo at 31:1-54:10; Dec. at 8; Supp. Dec at 5. The Security personnel were employed by County through a contract with a private security firm in effect during April 2013. Ex. 19, “County of Mendocino Standard Services Agreement” with “Universal Protection Service” to provide security guard services for County Courthouses for the “November 17, 2011 through November 16, 2013”. Id. at p. 1. After proceeding through security, on April 16, 2013, plaintiff asked a County security guard where the Court Clerk’s room was located. Depo at 54:22- 55:25. He said it was on the floor directly above them, and she had a choice, “[e]ither you walk all the way to the other side of the building and go up the elevator and walk all the way back, or if you are . . . athletic . . . you could actually go straight up these stairs, and then it's closer.” Id. Plaintiff chose the shorter route to the Clerk’s office, and walked up the one flight using her crutches. Id. at 55-56. County security guard did not tell Plaintiff anything about what accommodations were available to her at the Courthouse. Plaintiff went to the Clerk’s office, received a notice to appear the following week, on April 23rd at 8:30 am, and exited the way she entered. The “notice to appear” did not contain any warnings of Department G’s inaccessibility or “instructions” on the availability of accommodations for disabled persons. Id. and Ex. 16, BARR 287; Ex. 14 at p. 5. Plaintiff returned to the Courthouse as ordered on April 23, 2013. She wore “a big external knee brace.” Depo at 78:1-80:21. While wearing this brace she was visibly disabled. Id. Upon clearing security, she asked a County security guard for the locations of a bathroom and Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 22 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 11 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx Department G. Id. at 78-79. Upon seeing her leg brace, County security guard “volunteered the information about the disability bathroom seeing my brace” and that it was located on the 5th Floor. Id. at 80:9-21. He told her to reach Courtroom G she would have to take the elevator to the 5th floor and descend stairs to the 4th Floor. Id. at 71:22 - 83:22; Dec. ¶ 7; Supp. Dec. ¶ 2-4. He did not tell her that she could take the elevator down to the Clerk’s office and request that her Court proceedings be moved from the 4th floor to an accessible floor, to accommodate her disability. Supp. Dec. 3. He did not tell her how to request or receive accommodations for her disability. Id; Dec. at ¶ 7. His directions to descend the stairs from the 5th to the 4th floor were the first time that plaintiff had been notified that she would have to navigate stairs to reach Department G. Dec. ¶ 7. Using the elevator, Plaintiff was able to access the 5th floor and approach the restroom. Depo. at 71:22 - 83:22; Supp Dec. ¶ 2-4. When she entered the 5th floor restroom, Plaintiff encountered several barriers that impeded her access to using the toilet, and caused her difficulty because of her full exterior leg brace and injured knee. Supp. Dec. ¶ 4. The entry door was too heavy for her to open without difficulty, and it was hard to keep her balance safely while opening it. Id. Once inside the restroom, it was awkward to get to the toilet because the toilet stall door swung into the toilet stall. Id. The stall door was hard to open and close because there was no latch or handle. Id. When using the toilet, Plaintiff could not easily reach the toilet paper dispenser because she could not bend her knee. Id. Leaning forward without being able to bend her knee to reach the toilet paper was difficult and caused her discomfort. Id. After using the restroom, Plaintiff walked down the stairs to the 4th Floor and Courtroom G. Depo. at 71:22 - 83:22; Dec. ¶ 8. After her Traffic Court hearing, plaintiff was told to go down to the Clerk’s room on the 1st Floor to pay her traffic fine. Depo at 82-5. On her descent from the Fourth Floor down past the third floor to the second floor, and continuing on toward the first floor, Plaintiff saw no signs telling her where any elevator was located. Dec. ¶ 8; Supp Dec. ¶ 5. When asked why she did not use the elevator on the 3rd Floor to get to the 1st Floor, her response was, “[o]nly because it was all confusing to me.” Depo at 87. Plaintiff then walked out of Courtroom G and took the stairs down toward the 1st Floor. Id. at 85-87. Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 23 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 12 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx Between the second and first floors the repetitive motion of descending the staircase and the pressure on my compromised kneecap caused it to snap into pieces…In great pain, I fell and tumbled down the staircase. Barrilleaux Dec., Docket No. 102 at ¶ 9. Plaintiff has friends in Mendocino County, regularly visits there, and wishes to return to Department G to “observe proceedings” as a “member of the public” but cannot physically do so until stair lifts are installed, “so that I don’t have to climb or descend stairs.” Dec. ¶ 17. The DOJ agreement protected “any court participant, juror or spectator.” Ex. 14 at p. 4, ¶ 5. III. ARGUMENT A. The ADA and its Enforcement Regulations, Including 28 C.F.R. § 35.151, Required an Accessible Path of Travel and Accessible Restrooms Congress’ network of laws prohibiting disability discrimination recognized that: [I]ndividuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, . . . and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities; . . . . [T]he continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity. 42 U.S.C. § 12101. The laws and regulations are intended to promote community integration and equality for people with disabilities. Id.; see also In re Marriage of Carney, 24 Cal. 3d 725, 740 (1979); 29 U.S.C. § 701. They require County to provide full and equal access to its programs, services and activities. 29 U.S.C. § 701; Civ.C. §§ 54, 54.1(a); 42 U.S.C. § 12101. In the “Subchapter II - Public Services,” the ADA defines “Discrimination” as: Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132. Title II regulations implement the ADA, requiring when alterations are made that accessible restrooms and paths of travel must be required: b) Alterations. Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 24 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 13 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx (1) Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992. . . . (4) Path of travel. An alteration that affects or could affect the usability of or access to an area of a facility that contains a primary function shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area and the restrooms, telephones, and drinking fountains serving the altered area are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration. . . . ii) A “path of travel” includes a continuous, unobstructed way of pedestrian passage by means of which the altered area may be approached, entered, and exited, and which connects the altered area with an exterior approach (including sidewalks, streets, and parking areas), an entrance to the facility, and other parts of the facility. (A) An accessible path of travel may consist of walks and sidewalks, curb ramps and other interior or exterior pedestrian ramps; clear floor paths through lobbies, corridors, rooms, and other improved areas; parking access aisles; elevators and lifts; or a combination of these elements. (B) For the purposes of this section, the term “path of travel” also includes the restrooms, telephones, and drinking fountains serving the altered area. 42 U.S.C. § 12134; 28 CFR § 35.151 (Emphasis added). County’s Rule 30(b)(6) designee Heather Correll did not know on which floor or floors the more than $140,000, 1996 alterations were made, or which restrooms served this area of alteration. Ex. 13, Correll Depo. at 114:14-115:16. Neither did its second designee, Mr. Shaver, though he “believed” it to be “Courtroom A.” Id. at 26:1-16 and 28:1-16. County failed its obligations to comply with the building codes and its obligation to provide programmatic access. B. Plaintiff is Entitled to Summary Judgment on the Issue of Liability Because There is no Genuine Dispute Over County’s Discrimination Under State or Federal Law A court may grant summary judgment on one or more claims in a case when, there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–55 (1986). Plaintiff must Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 25 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 14 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx identify those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once Plaintiff has met her initial burden, Defendant must, by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. Fed R. Civ. P. 56(e). “The opposing party ‘cannot rest upon the mere allegations or denials of [its] pleading’ but must instead produce evidence that ‘sets forth specific facts showing that there is a genuine issue for trial.’” Dias v. Nationwide Life Ins. Co., 700 F. Supp. 2d 1204, 1214 (E.D. Cal. 2010), quoting Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008). Summary judgment may be granted if the evidence favoring the nonmoving party is “merely colorable” or “not significantly probative.” Anderson, 477 U.S. at 249-250. In order to prevail on an ADA claim, a plaintiff must show that she (1) is a “qualified individual with a disability”; (2) was either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). A claim under the Rehabilitation Act of 1973 (“Rehab Act”) adds the element that the entity received federal funding. Douglas v. California Dep't of Youth Auth., 285 F.3d 1226, 1230 n. 3 (9th Cir. 2002). It is not necessary to prove a discriminatory intent in order to prove liability under the ADA or the Rehab Act. Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998). There is significant overlap between the elements of proof under federal and State law. To prevail on a California Disabled Persons Act (“CDPA”) claim, Plaintiff must prove that (1) she has a physical or mental disability that limits her ability to engage in a major life activity, and (2) she was denied full and equal access to the Courthouse on a particular occasion because of her disabilities, or (3) that County violated the ADA. Civ.C. §§ 54, 54.1 and 54.1(d). Rodriguez v. Barrita Inc., 10 F.Supp.3d 1062, 1074 (N.D. Cal. 2014). Plaintiff need not prove intentional discrimination in order to prove a violation of the CDPA. Id.; Molski v. Arciero Wine Group, 164 Cal. App. 4th 786, 792 (2008); Donald v. Café Royale, Inc., 218 Cal. App. 3d 168, 177 (1990). There should be no genuine dispute that Plaintiff is a person with a disability within the Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 26 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 15 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx meaning of federal and State law;7 that she visited the Mendocino County Courthouse on April 16, 2013 and April 23, 2013; or that County of Mendocino is obligated under Title II of the ADA, the Rehab Act and the CDPA to provide equal access to its public facilities. Plaintiff was “regarded” by County employees at the time of the incidents to be a disabled person under the CDPA. Civ.C. § 54(b)(1); Depo at 56:5-59:7; 78:1-80:21. Further, there is no dispute that the Courthouse has architectural barriers that impede individuals with mobility disabilities from full and equal access. The only question is whether County discriminates on the basis of disability. C. County Discriminated Under California Law by Renovating the Courthouse Without Providing Accessible Restrooms and an Accessible Path of Travel to the Areas of Alteration 1. Altering the facilities without complying with relevant access requirements was a violation of the California Disabled Persons Act The California Disabled Persons Act (CDPA) is one of “the principal sources of state disability access protection.” Jankey v. Song Koo Lee, 55 Cal. 4th 1038, 1044 (2012). It provides that individuals with disabilities have the same rights as the general public to the full and free use of public buildings and other places to which the general public is invited. Civ. Code. §§ 54, 54.1. People with disabilities are entitled to full and equal access to the accommodations, advantages, privileges and facilities of all public accommodations. Id. The Courthouse is a public accommodation and operated as a public facility. The public restrooms are public facilities and furnishing public restrooms that are accessible to disabled persons are a County “service.” Barden, 292 F.3d at 1076 (curb cuts as public service). Although the CDPA overlaps substantially with the ADA, see Munson v. Del Taco, Inc., 46 Cal. 4th 661, 674, 208 P.3d 623, 632 (2009), it also affords disabled persons additional 7 Under the ADA a disability is “a physical or mental impairment that substantially limits one or more major life activities,” or is “regarded as having such impairment.” 42 U.S.C. § 12102(1) and (3). “[M]ajor life activities include . . . walking, standing, lifting, bending . . .” 42 U.S.C. § 12102(2)(A). Under State law a disability is “any physiological disease, disorder, [or] condition” that does both of the following: (A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory . . . (B) Limits a major life activity or is regarded “as having . . . any physical condition that makes achievement of a major life activity difficult. Gov.C. § 12926(c) and (m)(B)(iii)(4). See Yu Dec. and Ex. 1 regarding Plaintiff’s disability status, as verified by her medical records and her declarations. Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 27 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 16 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx protections and remedies not provided under federal law. Jankey, 55 Cal. 4th at 1044 (“[S]hortly after passage of the ADA, the Legislature amended the state's disability protections to strengthen California law in areas where it is weaker than the ADA and to retain California law when it provides more protection for individuals with disabilities than the ADA.”). Moreover, because California disability access standards long predate the ADA and ADAAG, the CDPA and the Unruh Act can sometimes operate to remedy barriers that would not otherwise fall within the ambit of the ADA. See Castaneda v. Burger King., 264 F.R.D. 557, 561 (N.D. Cal. 2009) (“It may be possible, however, for an accessibility barrier to violate the California statutes without violating the ADA.”). Rodriguez, 10 F.Supp.3d at 1074, (ordering barrier removal under California law that was not required under the ADA). A violation of the California building access standards is by definition a violation of the CDPA. Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054, 1065 (E.D. Cal. 2006); Boemio v. Love’s Rest., 954 F. Supp. 204, 207-09 (S.D. Cal.1997); Arnold v. United Artists Theater Circuit, Inc., 866 F. Supp. 433, 439 (N.D. Cal. 1994); Café Royale, Inc., 218 Cal. App. 3d at 177. Public accommodations owned or operated by a government agency and constructed or altered subsequent to July 1, 1968, are subject to statutory and regulatory requirements for disabled access to buildings and facilities. Gov.C. §§ 4450 et seq.; see also Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 848 (N.D. Cal. 2011). The purpose of the regulations is “to make all public and private buildings accessible to physically handicapped persons.” Café Royale, 218 Cal.App.3d at 177; People ex rel. Deukmejian v. CHE. Inc., 150 Cal. App. 3d 123, 132 (1983). County violated the building access standards and CDPA by altering its facility without complying with access requirements. County Board of Supervisors admitted knowingly violating the access standards in 1991. Ex. 4, Minutes Board of Supervisors (County 1234). It again made major alterations without accessible restrooms in 1996. Ex 8, Outline Specification Mendocino County Courthouse Courtroom (County 811-842); Ex. 9, (County 845-846); Ex. 10, (County 852); Ex. 11, (County 854-859); and Ex. 12, (County 843-844). The 1996 alterations violated the ADA as well as Cal. Gov. Code section 4456. See Attorney General Regulations, § 35.151(b) “Alterations” requirements. // Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 28 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 17 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx 2. In 1991 and 1996 County Altered the Courthouse without Complying with California Access Requirements, as to Restrooms and Paths of Travel When the Legislature mandated equal access in construction and alteration of public buildings in 1968, it ordered that until state regulations could be adopted, new construction and alterations must conform to the 1961 American Standards Association’s specifications for disabled access.8 Donald v. Sacramento Valley Bank, 209 Cal. App. 3d 1183, 1192 (1989); Gov.C. § 4451(d). The ASA standards applied to “all buildings and facilities used by the public,” and stated their purpose was “to make all buildings and facilities used by the public accessible to and functional for the physically handicapped.” Id. at 1194; Gov.C. § 4451. These regulations required that whenever a facility is constructed, altered or repaired, it must provide an accessible path of travel to the area of alteration. Sacramento Valley Bank, 209 Cal. App. 3d at 1192. Sacramento Valley Bank established the right to an accessible path of travel under the ASA standards. 209 Cal. App. 3d at 1192. In 1975 the defendant bank added an Automatic Teller Machine that could only be reached by climbing several stairs. The plaintiff, a wheelchair user, sued for lack of access. The Court held that the alteration to add the ATM triggered the requirement of an accessible path of travel based on the ASA regulations (Id. at 1190) and held that an accessible path of travel was essential to providing access, “[T]he standards of accessibility set out in the ASA specifications are not met in this case because the walkway to the ATM is interrupted by steps” (Id. at 1195; see also Deukmejian, 150 Cal.App.3d at 134-135 (holding that later building codes (Title 24 in 1982) merely clarified the path of travel requirement that already existed under the ASA); Health & Safety C. § 19959). California established a regulatory code governing all alterations made in public accommodations after January 31, 1981. Rodriguez, 10 F. Supp. 3d at 1074. Like Health and Safety Code § 19959 and Government Code § 4450, Title 24 requires any alteration to an existing public building be made accessible for people with disabilities. Title 24 regulations apply to: All existing public funded buildings and facilities when alterations, structural repairs or additions are made to such buildings or facilities. This requirement shall 8 Also known as the “ASA” or American National Standards Institute “ANSI” regulations. Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 29 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 18 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx only apply to area [sic] of specific alteration, structural repair or addition and shall not be construed to mean that the entire structure or facility is subject to this Code. Compliance shall require: (a) That a primary entrance to the building or facility and the primary path of travel to the specific area shall be accessible to and usable by handicapped persons. (b) That sanitary facilities, drinking fountains, and public telephones serving the remodeled area shall be accessible to and usable by handicapped persons. Cal. Code Regs., tit. 24 § 2-105(b)(11A) (1984) (Appendix 1). When a building is altered, it must comply with regulations for access in the area of alteration and must provide a path of travel to the area of alteration. Rodriguez, 10 F. Supp. 3d, at 1088; Moeller, 816 F. Supp. 2d at 848; See also Cal. Health & Safety C. § 19959; Gov.C. § 4456. An alteration was defined in 1986 as “any change, addition or modification in construction or occupancy.” Cal. Code Regs., tit. 24, § 419(d) (1984); Unif. Bldg. C. § 402 (1979). Here, in 1991, County admitted it remodeled offices, thus requiring an accessible public restroom serving the altered area and an accessible route to it. Ex. 4, (County 1234). Similarly, County was “deliberately indifferent” to the access standards in 1996 regarding restroom access under the ADA. Converting more offices to a Courtroom, County demolished walls, erected new rough wall framing and drywall, new doors, windows, and trim, etc. Ex 8, (County 811-842). The project required more than 400 hours of labor and carpentry work, costing over $140,000. Ex. 9, (County 845-846); Ex. 10, (County 852); and Ex. 12, (County 843- 844). These constituted multiple alterations under California law and the ADA. Health & Safety C. §§ 19955-19959; Gov.C. §§ 4450 et seq.; see also Moeller, 816 F. Supp. 2d at 848; Cal. Code Regs., tit. 24, § 419(d) (1984); 28 CFR § 35.151; Unif. Bldg. C. § 402, Appendix 2 (1979). County failed to make a single restroom accessible on any of the five floors of the Courthouse. See Docket No. 103 and 103-2, Margen Dec.; Docket No. 115-3, Blackseth Dec. and Report; and Docket No. 122 at 5:15-19, Order Denying Plaintiff’s Motion for Preliminary Injunction. Plaintiff suffered difficulties in using the 5th floor so-called “accessible” restroom. Supp Dec. ¶¶ 2- 4. County is liable for that violation of her civil rights under California law and under the ADA because of its deliberate indifference under Title II. Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 30 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 19 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx The “restroom” violation of the ADA is separate from liability for Plaintiff’s fall and personal injuries caused by County’s other programmatic and access barriers.9 D. The ADA Title II Established Non-Delegable Duties which would be Undermined if a Responsible Party Could Escape Responsibility by Contracting Away Liability or by Contractual Indemnification. Can County escape its federal and state obligations to provide access by “delegating” its access liabilities to the JDs in 2008, especially without notifying these successor Defendants of the legal obligations County had created by major triggering alterations in 1991 and 1996 and by the terms of its 1998 “Settlement Agreement” with the DOJ? In Independent Living Centers of S. California v. City of Los Angeles, the Court held that the goals of the ADA and the FHA would be undermined by allowing a claim for contractual indemnity, and condemned “attempts to ‘contract around’ the ‘non-delegable’ duties imposed by” the ADA and the FHA, citing a similar holding in Equal Rights Ctr. v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010): In Equal Rights Ctr., the court addressed a similar contention as that made by the government defendants, i.e., that a contractual indemnity claim was proper because the subject contracts “contain[ed] express indemnity provisions for losses and damages arising out of ... failure to perform ... duties and obligations under the contract.” 603 F.Supp.2d at 825. After determining that the contractual indemnity claim was derivative of the first-party claims under the ADA and FHA, the court explained that the “claim for indemnity must first be evaluated under those statutes if the Congressional purposes are to be fully achieved.” Id. Stating that “[t]he same imperative of Congressional purpose applies to attempts to 'contract around' the 'non-delegable' duties imposed by” the statutes, the court concluded that the statutes' “goals would be undermined” if a party were allowed to seek contractual indemnification. Id.; see Walker v. Crigler, 976 F.2d 900, 904 (4th Cir.1992) (“[T]he regulatory purposes of the FHA and ADA would be undermined by allowing a claim for [contractual] indemnity.”). . . . In short, the court agrees with the owner defendants that “the contract claims of the City and the CRA/LA are nothing more than an unsupportable end run around the unavailability of indemnification or contribution under these civil rights statutes” (Motion at 4). Indep. Living Ctr., 973 F. Supp. 2d 1139, 1161 (C.D. Cal. 2013). A similar holding was made by the Court in Feltenstein v. City Sch. Dist. of New Rochelle. The Feltenstein Court cited another Southern District of New York case, Access 4 All, Inc. v. 9 The amount of Plaintiff’s damages should be reserved for trial. This motion limits its request for liability for the undisputed barriers Plaintiff encountered at the Courthouse. Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 31 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 20 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx Trump Int'l Hotel & Tower Condo., 2007 WL 633951 (S.D.N.Y. Feb. 26, 2007), which held in an analogous situation that neither federal nor New York law provides a right to indemnity under the ADA, and that any state law allowing indemnification was preempted by the ADA. The Feltenstein Court continued: This Court agrees with Access 4 All’s suggestion that the ADA preempts state law indemnification and contribution, and therefore aligns itself with the considerable weight of authority finding that the purpose of the ADA5 – the remedial scheme for which does not include provisions for indemnification and contribution – would be frustrated by the availability of such remedies under state law, because it would contravene Congress’ intent to hold accountable all who actually violate the terms of the statute. See Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 602 (4th Cir.2010) (state law indemnification claim preempted by ADA’s remedial scheme because non-delegable duties imposed by “ADA would be undermined by allowing a claim for indemnity.”); Indep. Living Ctr. of S. Cal. v. City of L.A., 973 F.Supp.2d 1139, 1160 (C.D.Cal.2013) (indemnification and contribution claims under state common law preempted by ADA and Rehabilitation Act’s remedial scheme allowing discrimination victims to pursue legal action against discriminators). This is because the defendant in the primary action – who allegedly discriminated in violation of the ADA – is “clearly not among the class which the statute is intended to protect, but rather [is] the part[y] whose conduct the statute was intended to regulate.” Feltenstein v. City Sch. Dist. of New Rochelle, 2015 WL 10097519, at *3 (S.D.N.Y. Dec. 18, 2015) (Emphasis added.) E. County Discriminated Against Plaintiff under the Americans with Disabilities Act and the Rehabilitation Act of 1970 by not Providing Equal Programmatic Access or Physical Access 1. The ADA and Rehab Act Both Require County to Provide Equal Access to the Courthouse The ADA was enacted “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title II of the ADA prohibits discrimination by government entities in access to public services. 42 U.S.C. § 12132. Similarly, Section 504 of the Rehabilitation Act of 1973 provides, “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in or be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The Rehab Act prohibited discrimination in “programs or activities” that receive federal funding. Title II of the ADA “‘essentially simply extends the anti-discrimination established in Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 32 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 21 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx section 504 to allocations of state and local governments’” even when those governments do not receive federal funding. Barden, 292 F.3d at 1077. To implement these statutes Congress mandated regulations setting the parameters for accessibility. The ADA Accessibility Guidelines (ADAAG, 1995-2010), the ADA Access Standards (ADAS, 2010-present) and the Uniform Federal Accessibility Standards (UFAS) for the Rehab Act specify what constitutes equality of access for disabled persons. ADAS states, “A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.150(a) (emphasis added). UFAS states, “A recipient shall operate its program or activity so that when each part is viewed in its entirety, it is readily accessible to handicapped persons.” 34 C.F.R. § 104.22(a) (emphasis added). The standard applied in determining a section 504 violation of the Rehab Act is identical to that applied in determining an ADA violation, except that in the former instance the public entity must also be a recipient of federal funds. Pierce v. County of Orange, 526 F.3d 1190, 1216 n. 27 (9th Cir.2008). County does not dispute that Defendant is a recipient of federal funds, and that these federal funds were used in part for “architectural barrier removal.” Ex, 3, 30(b)(6) designee Shaver Depo at 67:3-21, 68:6-13, and 69:1-12. Accordingly, a violation of the ADA here will constitute a violation of section 504. The Court considers these claims together. Pierce, 526 F.3d at 1216 n. 27; Duvall v. County of Kitsap, 260 F.3d 1124, 1135–36 (9th Cir. 2001). Under both statutory schemes, physically inaccessible facilities and programs are one form of prohibited discrimination. “Title II and the ADA more broadly were motivated in part by Congress’ finding that, in addition to ‘outright intentional exclusion,’ individuals with disabilities also suffer from indirect forms of discrimination, such as ‘the discriminatory effects of architectural, transportation, and communication barriers.’” Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901, 909 (6th Cir. 2004), quoting 42 U.S.C. § 12101(a)(5). “Thus, to ensure that the individual is not denied the benefits of the public service, the public entity must remove the architectural barrier of its own creation.” Id. at 910. Failure to provide plaintiff with accessible restroom facilities in 2013, despite its specific agreement with the DOJ in 1998 is Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 33 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 22 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx clearly proof of deliberate indifference. The obligation to ensure access goes beyond mere “usability.” It requires “ready access.” To constitute discrimination, complete exclusion from a program, service or activity is not required. It is the equality of the access that is at issue. As the Eleventh Circuit noted in holding that a courthouse must be readily accessible, [t]he County contends that because both [plaintiffs] were able to attend the trial, they have not alleged a violation of Title II. A violation of Title II, however, does not occur only when a disabled person is completely prevented from enjoying a service, program, or activity. The regulations specifically require that services, programs, and activities be “readily accessible.” 28 C.F.R. § 35.150. If the Courthouse’s wheelchair ramps are so steep that they impede a disabled person, or if its bathrooms are unfit for the use of a disabled person, then it cannot be said that the trial is “readily accessible” regardless whether the disabled person manages in some fashion to attend the trial. Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001) (emphasis added); see also Chaffin v. Kansas State Fair Board, 348 F.3d 850, 861 (10th Cir. 2003). Full and equal access is not conditioned on completely preventing a disabled person from using a facility: [W]hen a disabled person encounters an accessibility barrier violating its provisions, it is not necessary for standing purposes that the barrier completely preclude the plaintiff from entering or from using a facility in any way. See Doran, 524 F.3d at 1041 n. 4 (stating that the ADA “does not limit its antidiscrimination mandate to barriers that completely prohibit access”). Rather, the barrier need only interfere with the plaintiff's “full and equal enjoyment” of the facility. 42 U.S.C. § 12182(a). As we stated in Doran, Once a disabled individual has encountered or become aware of alleged ADA violations that deter his patronage of or otherwise interfere with his access to a place of public accommodation, he has already suffered an injury in fact traceable to the defendant's conduct and capable of being redressed by the courts, and so he possesses standing under Article III.... Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 947 (9th Cir. 2011). The term “readily accessible to and usable by” is intended to be interpreted broadly. “This prohibition against discrimination is universally understood as a requirement to provide ‘meaningful access.’” Lonberg v. City of Riverside, 571 F.3d 846, 851 (9th Cir. 2009). This ADA requirement has been stated as a “high degree of convenient accessibility.” Huezo v. Los Angeles Community College District, 672 F.Supp.2d 1045, 1061 (C.D. Cal. 2008) (college student entitled to equal campus facilities). Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 34 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 23 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx “Readily accessible to and usable by” is a higher standard [than readily achievable for Title III facilities], and has been used in a number of previous laws requiring accessibility [Fair Housing Act and Rehabilitation Act of 1973]. It is intended to enable persons with disabilities to get to, enter and use a facility. Although it does not mean total accessibility in every part of every area of a facility, it does mean a high degree of convenient accessibility: for example, accessible routes to and throughout a facility, accessible entrances to buildings and spaces, usable bathrooms, water fountains and other features. H.R. Rep. No. 101-485 (III), reprinted in 1990 U.S.C.C.A.N. 445, 483 (May 15, 1990). This broad construction serves to effectuate the legislative purpose of eliminating all forms of discrimination, both intentional and non-intentional, against persons with disabilities. The 9th Circuit has “construed ‘the ADA’s broad language [as] bring[ing] within its scope ‘anything a public entity does.’’” Barden, 292 F.3d at 1076. Certainly providing public “restroom access” is as much a public entity “service” as providing the curb cuts identified in Barden. There is no genuine dispute that Plaintiff is a person with a disability who used the restroom and then attended a hearing at the Courthouse on April 23, 2013. The only question for the Court is whether she was discriminated against by reason of her disability. There is ample evidence of “deliberate indifference” justifying damages under ADA Title II and the Rehab Act. However no proof of wrongful intent is needed under the CDPA, or under the Unruh Act when based on an incorporated ADA violation. See Café Royale, 218 Cal. App. 3d 168; Munson v. Del Taco, Inc., 46 Cal.4th 661 (2009); Cal. Civ. C. §§ 51(f), 52, 54. F. It is Undisputed that on April 23, 2013, County’s Security Guard Illustrated County’s Continuing Deliberate Indifference by Sending Plaintiff to an Inaccessible Restroom and Failing to Offer Her Accommodations of Any Kind. 1. A Security Guard Contract for 2013 Shows County Employed the Security Guard Who Directed the Disabled Plaintiff to the Fifth Floor “Disabled” Restroom and Told Her to Walk Down the Stairs to Department G on the Fourth Floor, Instead of Telling Her to Consult the Clerk’s Office to Request Disability Accommodation. Failing to Properly Train Employees was a Direct Violation of County’s 1998 Agreement with the U.S. DOJ County Defendant has asserted that Plaintiff, wearing an “external knee brace” was told by a security guard that “the disability [sic] bathroom was on the 5th Floor and Courtroom G was on the 4th Floor,” and that “she would have to go down the stairs from the 5th Floor to reach Courtroom G on the 4th Floor.” Docket 147, County MSJ at 3:8-12. Since plaintiff wore an Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 35 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 24 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx “external knee brace” and was told where she could use the “disability” restroom, the security guard, if properly trained, should have told her that she then had the option to take the elevator from the fifth floor back down to the 1st Floor Court Clerk and request an accommodation from the Court Clerk so she could avoid having to climb or descend stairs to get to Department G. County has never denied that the security guard was hired by County: In fact he was. Exhibit 19, is a copy of a 21-page contract, specifically covering the term “from November 17, 2011 through November 16, 2013,” “between County OF MENDOCINO” and “Universal Protection Service, hereinafter referred to as the CONTRACTOR.” “The “COUNTY OF MENDOCINO Standard Services Agreement” specifies that through a written agreement between the Mendocino County Sheriff’s Office and the Contractor, the contractor would provide unarmed security guard services.” Ex. 19 at p. 1. Per “Exhibit A,” the security guards “shall be assigned to the Ukiah Courthouse” and have duties which include: 4. Provide morning and evening security checks for the courthouse and complete a daily incident log reporting and noting security deficiencies and safety issues; .... 6. Ensure proper and appropriate treatment of all visitors and employees in relation to the Americans with Disabilities Act (“ADA”). Id. at p. 14. Training will include, “3. Training in the requirements specified in the ADA.” Id. 2. The Evidence is Clear that County has been Deliberately Indifferent to the Needs of Physically Disabled Persons by its Choices to Avoid Offering Equal Access Over the Past 25 years. Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that the likelihood. City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1988); see also id. at 395, 109 S.Ct. 1197 (O'Connor, J., concurring) (deliberate indifference requires both “some form of notice ... and the opportunity to conform to [statutory] dictates”). In Memmer, we required the plaintiff to identify "specific reasonable” and “necessary” accommodations that the defendant failed to provide. 169 F.3d at 633. When the plaintiff has alerted the public entity to his need for accommodation (or where the need for accommodation is obvious, or required by statute or regulation), the public entity is on notice that an accommodation is required, and the plaintiff has satisfied the first element of the deliberate indifference test. (Emphasis Added) Duvall, 260 F.3d at 1138-1139. Because it failed to provide access since its 1991 recognition of access obligations, but chose not to provide them, County has shown deliberate indifference. In a 1983 context, Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 36 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 25 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx Where a § 1983 plaintiff can establish that the facts available to city policy makers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens, the dictates of Monell are satisfied. Only then can it be said that the municipality has made “ ‘a deliberate choice to follow a course of action … from among various alternatives.’ ” Ante, at 1205, quoting Pembaur v. Cincinnati, 475 U.S. 469, 483- 484 (1986). City of Canton, Ohio v. Harris, 489 U.S. 378, 296 (1989). G. Any Violation of the ADA is also a Violation of the Unruh Civil Rights Act, Cal. Civ. Code §§ 51(f) and 52, Requiring an Award of Damages Without the Necessity of Proving Wrongful Intent. The Unruh Civil Rights Act includes section 51(f): “A violation of the right of any individual under the federal Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section.” Section 51(b) includes “disability” as a protected category. “Violations of the rights of any person under the ADA are also violations of the Unruh Act, see Cal. Civ. Code § 51(f) and the CDPA, see Id., § 54(c).” Calif. Foundation for Independent Living Centers et al. v. County of Sacramento, 142 F. Supp. 3d. 1035, 1059 (E.D. Cal. 2015) (County that owned and operated an airport held liable). Violation of section 51(f) establishes the right to damages under California Civil Code section 52 without the necessity of proving wrongful intent. Munson, 46 Cal. 4th 661. H. Because County Receives California State Funding, it is Also Liable to Plaintiff for Violations of § 11135 Cal. Gov. Code Section 11135 applies, inter alia, to protect persons with a “physical disability” or “medical condition” from being denied “full and equal access” from any program or activity that receives “any financial assistance from the State.” This allows a civil action for “equitable relief, which shall be independent of any other rights and remedies.” IV. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court rule that Defendant County is liable for discrimination against Plaintiff under the Disabled Persons Act, the Unruh Act, the Rehab Act of 1973, and the Americans with Disabilities Act, Title II. // // Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 37 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:14-cv-1371 TEH - 26 - S:\CASES\MENDOCINO\PLEADINGS\MSJ\2017 03 29 MSJ.docx Dated: March 30, 2017 LAW OFFICES OF PAUL L. REIN LAW OFFICES OF JIM W. YU /s/ Paul L. Rein By PAUL L. REIN Attorneys for Plaintiff JESSICA BARRILLEAUX Case 3:14-cv-01373-TEH Document 170 Filed 03/30/17 Page 38 of 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L A W O F F IC E S O F PAUL L. REIN 200 L A K E SID E D R ., SU IT E A O A K L A N D , C A 94612-3503 (510) 832-5001 [PROPOSED] ORDER GRANTING PLAINTIFF’S MSJ CASE NO. C14-01373 TEH S:\CASES\MENDOCINO\PLEADINGS\MSJ\Proposed Order.wpd-1- PAUL L. REIN, Esq. (SBN 43053) LAW OFFICES OF PAUL L. REIN 200 Lakeside Drive, Suite A Oakland, CA 94612 Telephone: 510/832-5001 Facsimile: 510/832-4787 reinlawoffice@aol.com JIM W. YU, Esq. (SBN 209118) LAW OFFICES OF JIM W. YU 1255 Treat Blvd., Suite 300 Walnut Creek, CA 94597 Telephone: 925/472-6633 Facsimile: 925/407-2996 jim@jimyulaw.com Attorneys for Plaintiff JESSICA BARRILLEAUX UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JESSICA BARRILLEAUX, Plaintiff, v. MENDOCINO COUNTY; SUPERIOR COURT OF CALIFORNIA, COUNTY OF MENDOCINO; JUDICIAL COUNCIL OF CALIFORNIA, ADMINISTRATIVE OFFICE OF THE COURTS; DOES 1 through 10, Inclusive, Defendants. / CASE NO. 3:14-cv-01373 TEH Civil Rights [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Hearing Date: May 8, 2017 Time: 10:00 a.m. Place: U.S. District Court 450 Golden Gate Ave. Courtroom 2, 17th Floor San Francisco, CA Hon. Thelton Henderson TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: Plaintiff Jessica Barrilleaux’s Motion for Summary Judgment came on for hearing in the above-referenced Court on May 8, 2017. Plaintiff Jessica Barrilleaux (“Barrilleaux”) and the County appeared at the hearing through their respective counsel of record. Upon review of the moving and opposition papers, the other papers in the Court’s file, consideration of the oral arguments of counsel, and good cause appearing, the Court makes the following order: Case 3:14-cv-01373-TEH Document 170-1 Filed 03/30/17 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L A W O F F IC E S O F PAUL L. REIN 200 L A K E SID E D R ., SU IT E A O A K L A N D , C A 94612-3503 (510) 832-5001 [PROPOSED] ORDER GRANTING PLAINTIFF’S MSJ CASE NO. C14-01373 TEH S:\CASES\MENDOCINO\PLEADINGS\MSJ\Proposed Order.wpd-2- Plaintiff’s Motion for Summary Judgment on Liability is GRANTED. The Court finds that: 1) Plaintiff is a qualified disabled person under Title II of the ADA and California law. 2) The County is liable for violations of plaintiff's civil rights damages caused by barriers she encountered in the Courthouse restroom, pursuant to Title II of the Americans with Disabilities Act, because the County demonstrated deliberate indifference towards the rights and safety of plaintiff as a disabled person. 3) The County is liable for violations of plaintiff's civil rights damages caused by barriers she encountered in the Courthouse restroom, pursuant to the California Unruh Civil Rights Act, incorporating any violation of Title II of the Americans with Disabilities Act. (Civil Code § 51(f)). 4) The County is liable for violations of plaintiff's civil rights damages caused by barriers she encountered in the path of travel throughout the Courthouse, including the 5th floor Courthouse restroom that was designated as accessible but in fact is not accessible pursuant to the California Disabled Persons Act (CDPA). 5) The County is liable for violations of plaintiff’s civil rights damages caused by barriers she encountered in the Courthouse restroom pursuant to the Rehabilitation Act of 1973, because the County is a recipient of Federal funding. 6.) The County, as a recipient of State funding, is liable for violations of Plaintiff's civil rights per Cal. Gov. Code section 11135. The County is hereby found liable under plaintiff’s first, second, third and fourth causes of action and ORDERED to pay damages in an amount to be set at trial. The scope of injunctive relief will be determined at trial. IT IS SO ORDERED. Dated: _____________, 2017 Hon. THELTON E. HENDERSON United States District Judge Case 3:14-cv-01373-TEH Document 170-1 Filed 03/30/17 Page 2 of 2