William Cohen v. City of Culver City

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM C. COHEN, an individual, No. 13-55079
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-00156-
RGK-PJW
CITY OF CULVER CITY; EXCHANGE
CLUB OF CULVER CITY, a California
corporation, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
December 2, 2013—Pasadena, California
Filed June 6, 2014
Before: Dorothy W. Nelson, Kim McLane Wardlaw,
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Wardlaw;
Dissent by Judge Rawlinson
2 COHEN V. CITY OF CULVER CITY
SUMMARY*
Americans with Disabilities Act
The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of the defendants on
claims under Title II the Americans with Disabilities Act and
related California statutes.
The plaintiff, an elderly man suffering from dementia
who required a cane for mobility, was injured when he
tripped and fell as he tried to walk around a car show
vendor’s display blocking a curb ramp that provided disabled
access to a sidewalk in Culver City, California. The plaintiff
claimed that the City violated its obligations under Title II of
the ADA by allowing the vendor’s display to completely
block the curb ramp, impeding disabled access to the public
sidewalk, and by failing to post signs identifying alternative
disabled access routes.
The panel held that there was a genuine dispute of
material fact as to whether the City denied the plaintiff access
to the sidewalk by reason of his disability. It held that the
district court erred in reasoning that because the plaintiff
could have accessed the sidewalk by taking a “marginally
longer route” to a different curb ramp, he failed to establish
that he was denied access to the sidewalk, because this
standard applies when a public entity is modifying existing
facilities to achieve ADA compliance under 28 C.F.R.
§ 35.150. Here, by contrast, the City was in compliance with
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
COHEN V. CITY OF CULVER CITY 3
the ADA but allowed elimination of the disabled access it had
built. The panel concluded that the City’s conduct was more
analogous to altering its sidewalks for reasons unrelated to
ADA compliance, as contemplated by 28 C.F.R. § 35.151.
The panel reversed the judgment of the district court as to
the plaintiff’s claims against the City. It addressed claims
against another defendant in an accompanying memorandum
disposition.
Judge Rawlinson dissented from the portion of the
majority’s opinion reversing the district court’s summary
judgment in favor of the City on the plaintiff’s claims under
the ADA and related California statutes. She agreed with the
district court that there was no showing that the plaintiff was
excluded from accessing the public sidewalk because two
available access routes existed when viewing the sidewalk in
its entirety.
COUNSEL
Doreen L. Kushner (argued), Law Office of Doreen L.
Kushner, Huntington Beach, California, for Plaintiff-
Appellant.
Byron Michael Purcell (argued) and Rupert Byrdsong, Ivie,
McNeill & Wyatt, Los Angeles, California, for Defendants-
Appellees.
4 COHEN V. CITY OF CULVER CITY
OPINION
WARDLAW, Circuit Judge:
William Cohen, an elderly man suffering from dementia
who requires a cane for mobility, walked through an outdoor
car show on public streets while in Culver City, California, to
attend his grandson’s wedding. A vendor’s display at the car
show blocked the curb ramp that provided disabled access to
the sidewalk in front of Cohen’s hotel. Cohen was injured
when he tripped and fell as he tried to walk around the
display and step up on to the sidewalk.
Cohen filed this action against the City of Culver City
(“the City”) and the Exchange Club of Culver City (“the
ECCC”), alleging violations of the federal Americans with
Disabilities Act (ADA) of 1990 and various California
statutes.1 He appeals the district court’s grant of summary
judgment in favor of the defendants. We must decide
whether the City may have violated its obligations under Title
II of the ADA by allowing the vendor’s display to completely
block the curb ramp, impeding disabled access to the public
sidewalk, and by failing to post signs identifying alternative
disabled access routes. We conclude that a genuine dispute
of material fact exists as to whether the City denied Cohen
access to the sidewalk by reason of his disability, and,
accordingly, we reverse in part and remand.
1
We address Cohen’s claims against the ECCC under the DPA and the
Unruh Act in an unpublished memorandum disposition accompanying this
opinion.
COHEN V. CITY OF CULVER CITY 5
I.
Cohen, a Florida resident, visited Culver City in May
2011 to attend his grandson’s wedding. He stayed at the
Culver Hotel in downtown Culver City. Four years earlier,
Cohen had been diagnosed with moderate dementia. He
subsequently suffered from declining cognitive function and
poor balance. In February 2011, Cohen was reevaluated by
his physician. He exhibited increased difficulty with his
balance and lower than expected learning and memory scores.
On May 7, 2011, the City and the ECCC sponsored their
annual car show on the public streets and sidewalks of
downtown, including those immediately adjacent to the
Culver Hotel. The streets, closed to automobile traffic for
exclusive use by pedestrians, were lined with vintage
automobiles and vendors’ displays. Drivelines, a
participating vendor, positioned its display so as to straddle
the pedestrian crosswalk and sidewalk between the car show
and the main entrance to the Culver Hotel. The display,
which included a golf cart, several tables, and a large canopy,
also completely blocked the disabled access curb ramp
connecting the sidewalk to the street at that point.
On the day of his grandson’s wedding, Cohen attended
the car show. On his way back to the hotel, Cohen saw that
the curb ramp was blocked, so he tried to walk around the
vendor’s display and step up over the curb on to the sidewalk.
Instead he slipped and fell face first on to the sidewalk,
sustaining facial abrasions and contusions. Other curb ramps
connected the street to the sidewalk about twenty yards and
ninety yards away in either direction, but there were no signs
that might point Cohen in those directions, and the City,
which deposed Cohen, adduced no evidence that he was
6 COHEN V. CITY OF CULVER CITY
aware of the other ramps. Drawing all reasonable inferences
in Cohen’s favor, he reasonably believed he had no choice
but to negotiate the curb ramp.
Cohen asserts claims for damages against the City and the
ECCC under Title II of the federal ADA and three California
statutes: the Disabled Persons Act (DPA), the Unruh Civil
Rights Act, and California Government Code sections 830
and 835.2 The district court granted summary judgment in
favor of the defendants on all claims.3
We address only Cohen’s claims against the City under
the ADA, the DPA, and the Unruh Act. The district court
ruled that a genuine dispute of material fact exists as to
whether Cohen is disabled under the ADA. It found,
however, that Cohen could have accessed the public sidewalk
by traveling a “marginally longer route” to another disabled
access curb ramp twenty yards down the street. On this basis,
the district court held that the City did not deny Cohen access
to the public sidewalk under Title II of the ADA. Because
Cohen’s DPA and Unruh Act claims are based on his ADA
claim, the district court granted summary judgment for the
City on all three.
2
Cohen named three other private defendants in addition to the City and
the ECCC, but he subsequently dismissed them. The district court denied
Cohen leave to amend his complaint to assert a claim against the ECCC
under Title III of the ADA, which governs public accommodations.
3
Cohen does not appeal the grant of summary judgment for both
defendants on his claims under California Government Code sections 830
and 835. Nor does he challenge the district court’s ruling that the ECCC
cannot be liable under Title II of the ADA because it is not a public entity
or an instrumentality thereof.
COHEN V. CITY OF CULVER CITY 7
II
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review the district court’s grant of summary judgment de
novo, viewing the evidence and drawing all reasonable
inferences in the light most favorable to the non-moving
party. Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th
Cir. 2011). We must determine whether there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law. Del. Valley
Surgical Supply Inc. v. Johnson & Johnson, 523 F.3d 1116,
1119 (9th Cir. 2008).
III.
A.
The ADA aims to “provide clear, strong, consistent,
enforceable standards addressing discrimination against
individuals with disabilities.” 42 U.S.C. § 12101(b)(2).
Congress enacted the statute on the premise that
discrimination against the disabled is “most often the product,
not of invidious animus, but rather of thoughtlessness and
indifference—of benign neglect.” Alexander v. Choate,
469 U.S. 287, 295 (1985). Therefore, the ADA proscribes not
only “obviously exclusionary conduct,” but also “more subtle
forms of discrimination—such as difficult-to-navigate
restrooms and hard-to-open doors—that interfere with
disabled individuals’ full and equal enjoyment” of public
places and accommodations. Chapman v. Pier 1 Imps. (U.S.)
Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc) (internal
quotation marks omitted).
8 COHEN V. CITY OF CULVER CITY
Title II is the portion of the ADA that applies to state and
local governments. See 42 U.S.C. § 12131. It provides that
“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.”
Id. § 12132. Title II emphasizes “program access,” meaning
that a public entity’s programs and services, viewed in their
entirety, must be equally accessible to disabled persons.4 See
Pierce v. Cnty. of Orange, 526 F.3d 1190, 1215–16, 1222
(9th Cir. 2008). A public entity must make reasonable
modifications to avoid discrimination against persons with
disabilities, unless it can demonstrate that doing so would
fundamentally alter the nature of the service, program, or
activity it provides. 28 C.F.R. § 35.130(b)(7); McGary v.
City of Portland, 386 F.3d 1259, 1265–66 (9th Cir. 2004).
We construe the language of the ADA broadly to advance
its remedial purpose. Hason v. Med. Bd. of Cal., 279 F.3d
1167, 1172 (9th Cir. 2002). We have explained that the broad
language of Title II brings within its scope “anything a public
entity does.” Lee v. City of Los Angeles, 250 F.3d 668, 691
(9th Cir. 2001) (internal quotation marks omitted). A city
sidewalk is therefore a “service, program, or activity” of a
4
In contrast, Title III of the ADA, which governs places of public
accommodation, imposes more stringent requirements aimed at ensuring
that every facility is equally accessible to disabled persons. See Disabled
Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 882 (9th
Cir. 2004).
COHEN V. CITY OF CULVER CITY 9
public entity within the meaning of Title II. Barden v. City of
Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002).5
To prevail under Title II, the plaintiff must show that:
(1) he is a qualified individual with a disability; (2) he was
either excluded from participation in or denied the benefits of
a public entity’s services, programs, or activities, or was
otherwise discriminated against by the public entity; and
(3) this exclusion, denial, or discrimination was by reason of
his disability. Weinreich v. L.A. Cnty. Metro. Transp. Auth.,
114 F.3d 976, 978 (9th Cir. 1997). Title II authorizes private
suits for money damages.6 42 U.S.C. § 12133; see Tennessee
v. Lane, 541 U.S. 509, 517 (2004).
As authorized by the statute, 42 U.S.C. § 12134, the
United States Attorney General has promulgated a vast body
of regulations implementing Title II. The regulations flesh
out public entities’ statutory obligations with more
5
We do not address whether the car show held on city streets also falls
within the meaning of the phrase “service, program, or activity” of the
City.
6
Recovery of damages under Title II requires a showing of intentional
discrimination. See Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1138 (9th
Cir. 2001). The plaintiff must prove that the defendant public entity acted
with “deliberate indifference,” meaning that it knew that harm to a
federally protected right was substantially likely and failed to act upon that
knowledge. Id. at 1139. However, Cohen may recover damages for an
ADA violation under the California statutes he invokes without a showing
of intentional discrimination. See Munson v. Del Taco, Inc., 208 P.3d 623,
625 (Cal. 2009) (holding that a plaintiff need not prove intentional
discrimination to recover for an ADA violation under the Unruh Act).
Accordingly, we do not decide whether Cohen has demonstrated that the
City acted with deliberate indifference or whether he may be able to do so
at trial.
10 COHEN V. CITY OF CULVER CITY
specificity, but a public entity may violate the ADA even if
no regulation expressly proscribes its particular conduct. See,
e.g., Barden, 292 F.3d at 1076–78 (applying Title II to
sidewalks even though no implementing regulations
specifically addressed sidewalks). We give Department of
Justice (DOJ) regulations construing Title II “controlling
weight unless they are arbitrary, capricious, or manifestly
contrary to the statute.” Armstrong v. Schwarzenegger,
622 F.3d 1058, 1065 (9th Cir. 2010) (internal quotation marks
omitted).
We rely heavily on two of these regulations in reviewing
the district court’s decision. 28 C.F.R § 35.150 governs
existing facilities. It requires the City to operate each
program, service, or activity in a manner that, viewed in its
entirety, is readily accessible to and usable by persons with
disabilities. 28 C.F.R. § 35.150(a). To comply with this
mandate, the City may make structural changes to its existing
facilities, but it need not do so if other methods, such as
relocating services to different buildings, would be effective.
Id. § 35.150(b)(1). The City must prioritize methods of
compliance that enable it to provide services to disabled
persons in “the most integrated setting appropriate.” Id. If
the City chooses to comply by modifying its existing
facilities, additional requirements follow.
For instance, if the City chose to modify facilities that
existed when the ADA took effect on January 26, 1992, it was
required to complete the modifications within three years of
that date. Id. § 35.150(c). If the City employed fifty or more
persons, it was also required to develop, within six months of
January 26, 1992, a transition plan setting forth its planned
modifications. Id. § 35.150(d)(1). If the City had authority
over streets or walkways, its transition plan was required to
COHEN V. CITY OF CULVER CITY 11
include a schedule for installing disabled access curb ramps
at intersections, giving priority to intersections located near
important public services. See id. § 35.150(d)(2). However,
because § 35.150 generally allows the City to choose its
method of making programs and services accessible, it does
not necessarily compel the construction of curb ramps in
every situation.
By contrast, 28 C.F.R. § 35.151 governs facilities that the
City begins to build or alter after January 26, 1992. Id.§ 35.151(a)(1), (b)(1). It provides that every newly built or
altered portion of such a facility must be “readily accessible
to and usable by individuals with disabilities,” id., unless
doing so would be “structurally impracticable,” id.
§ 35.151(a)(2). It also requires compliance with detailed
accessibility standards, id. § 35.151(c)(1), (2), and sets forth
additional requirements specific to dormitories, stadiums,
prisons, and other kinds of facilities, id. § 35.151(f), (g), (k).
With respect to curb ramps, § 35.151 provides:
(1) Newly constructed or altered streets,
roads, and highways must contain curb ramps
or other sloped areas at any intersection
having curbs or other barriers to entry from a
street level pedestrian walkway.
(2) Newly constructed or altered street level
pedestrian walkways must contain curb ramps
or other sloped areas at intersections to
streets, roads, or highways.
Id. § 35.151(i) (emphasis added).
12 COHEN V. CITY OF CULVER CITY
Together, these two regulations effectuate the ADA’s
mandate that public entities make reasonable modifications
to their programs and services to accommodate disabled
persons. See Lane, 541 U.S. at 532. Congress recognized
that it would be unreasonable to require a public entity to
extensively renovate all of its existing facilities to bring itself
into compliance with the ADA. See id. Once public entities
choose to build new facilities or renovate existing ones,
however, they can reasonably be required to do so in a
manner that complies with “specific architectural
accessibility standards.” Id. For this reason, § 35.150 does
not require the City to build curb ramps at every corner
during its transition to compliance with the ADA. See Frame
v. City of Arlington, 657 F.3d 215, 232 (5th Cir. 2011) (en
banc). When the City is already altering or building a
sidewalk anyway, § 35.151 requires it to construct a curb
ramp at every affected intersection because the additional
cost of doing so is minimal. See id.
B.
The district court erred by holding that the City is entitled
to summary judgment. It mistakenly reasoned that, because
Cohen could have accessed the sidewalk by taking a
“marginally longer route” to a different curb ramp, he failed
to establish that he was denied access to the sidewalk. The
district court relied on Schonfeld v. City of Carlsbad, 978 F.
Supp. 1329, 1335–41 (S.D. Cal. 1997), aff’d, 172 F.3d 876(9th Cir. 1999), and Parker v. Universidad de P.R., 225 F.3d
1, 6–7 (1st Cir. 2000). These cases are inapposite, however,
because they address public entities’ obligations only when
they modify existing facilities to achieve ADA compliance
under 28 C.F.R. § 35.150. We confront entirely different
circumstances here, where the City was in compliance with
COHEN V. CITY OF CULVER CITY 13
the ADA, but allowed elimination of the disabled access it
had built.
In Schonfeld, the city of Carlsbad, California, was
working toward compliance with the ADA by modifying its
existing facilities, including its city hall, library, bus stops,
and sidewalks, under 28 C.F.R. § 35.150. A putative class of
disabled plaintiffs alleged, among other things, that Carlsbad
had failed to timely adopt the transition plan mandated by
§ 35.150(d)(1) and failed to install curb ramps at certain
intersections within three years of January 26, 1992, as
required by § 35.150(c). Schonfeld, 978 F. Supp. at 1333,
1335. The plaintiffs introduced evidence that curb ramps had
not been built at various corners, but they did not introduce
evidence that they were unable to access city streets or
parking facilities at those locations. Id. at 1340. The court
held that the plaintiffs’ evidence was insufficient to create a
genuine dispute of material fact as to whether Carlsbad had
denied them access to a public service under the ADA, and it
granted summary judgment in Carlsbad’s favor.7 Id. at 1341.
The court in Schonfeld correctly reasoned that § 35.150
did not require Carlsbad to build a curb ramp at every
intersection. Rather, that provision simply required
Carlsbad’s programs and services to be accessible as a whole,
and it allowed Carlsbad to choose its method of complying
with this requirement. Id. at 1339 n.11. The ADA allowed
Carlsbad to compel disabled persons to travel a “marginally
longer route” under some “limited circumstances,” as long as
its programs were still accessible as a whole. Id. The mere
7
Schonfeld was decided before we held that the sidewalk is a “service,
program, or activity” under Title II. Barden v. City of Sacramento,
292 F.3d 1073, 1076 (9th Cir. 2002).
14 COHEN V. CITY OF CULVER CITY
fact that some city sidewalks did not have curb ramps was
therefore insufficient to create a triable issue as to whether
Carlsbad violated Title II. Id. at 1341. In reaching this
conclusion, the court in Schonfeld relied on the ADA Title II
Technical Assistance Manual, a DOJ publication that
provides guidance to public entities on ADA compliance. See
id. at 1339 n.11. The Technical Assistance Manual similarly
explains that, under 28 C.F.R. § 35.150, “public entities are
not necessarily required to construct a curb ramp at every
such intersection,” and that it may be appropriate to compel
disabled persons to take a “marginally longer route.” THE
AMERICANS WITH DISABILITIES ACT: TITLE II TECHNICAL
ASSISTANCE MANUAL (1993), § II-5.3000, available at
http://www.ada.gov/taman2.html.
In Parker, the disabled plaintiff attended an awards
ceremony held at the Botanical Gardens of the University of
Puerto Rico, a public institution. See Parker, 225 F.3d at 3.
Park staff directed the plaintiff, who required a motorized
wheelchair for mobility, to use a particular path to travel to a
garden in which the ceremony was held. Id. at 3. The
plaintiff introduced evidence that the path was not designed
for disabled access. Id. The plaintiff’s wheelchair flipped
over when, according to a witness, it fell off a two-inch lip at
the bottom of the path. See id. The plaintiff broke his
clavicle and lost the ability to use his right arm, which he had
previously regained through two years of physical therapy
after having suffered the stroke that caused his disability. Id.The court in Parker applied 28 C.F.R. § 35.150. It
explained that, pursuant to its duty under § 35.150(b)(1) to
prioritize methods of compliance that would allow it to
administer its programs in “the most integrated setting
appropriate,” the university was required to ensure that
COHEN V. CITY OF CULVER CITY 15
disabled persons could access the ceremony site “using safe
walkways, ramps, and curb cuts.” Id. at 6–7 (internal
quotation marks omitted). The court observed that the
university was “not required to make every passageway in
and out of the [site] accessible,” but was required to provide
“at least one” safe access route for a person in a wheelchair.
Id. at 7. Consequently, the court in Parker held that judgment
as a matter of law in favor of the university was improper. Id.
A jury could have concluded that the disabled plaintiff used
the path intended for wheelchair access, that the path was
maintained in an unsafe manner, and that the unsafe
conditions caused the plaintiff’s injuries. Id.
Here, the City was not renovating its existing sidewalks
under a plan to achieve ADA compliance. It was allowing its
sidewalks to be used by private vendors for the purpose of
holding a street fair. The curb ramp in front of the Culver
Hotel was not under construction or renovation. It already
existed. The district court therefore erred by relying on the
“marginally longer route” standard of Schonfeld and the
Technical Assistance Manual, which applies when the City is
modifying its sidewalks to achieve program accessibility
under § 35.150. Similarly, the district court erred by relying
on the Parker court’s observation that the university was not
required to provide multiple disabled access routes to the
garden in which the ceremony was held. This statement
simply defines the scope of the university’s duty under
§ 35.150 to provide an “integrated” method of access to the
programs it held in the garden.
To the extent the regulations governing the construction
and renovation of facilities apply to the City’s blockage of an
existing curb ramp, 28 C.F.R. § 35.151 is more relevant than
28 C.F.R. § 35.150. As we explain above, when the City
16 COHEN V. CITY OF CULVER CITY
builds new sidewalks or alters existing ones for reasons other
than retrofitting to achieve ADA compliance, § 35.151
plainly requires it to build a curb ramp at every intersection
unless doing so would be structurally impracticable. See 28
C.F.R. § 35.151(i). A DOJ publication discussing the
implementation of Title II states:
[W]hen new sidewalks or walkways are built
or altered, they must contain curb ramps or
sloped areas wherever they intersect with
streets or roads. . . . At existing roads and
sidewalks that have not been altered, however,
city governments may choose to construct
curb ramps at every point where a pedestrian
walkway intersects a curb, but they are not
necessarily required to do so.
Civil Rights Div., U.S. Dep’t of Justice, The ADA and City
Governments: Common Problems 5, available at
http://www.ada.gov/comprob.pdf. It follows that, under
§ 35.151, the City cannot justify the failure to build a curb
ramp at an intersection on the ground that a marginally longer
route was available down the street. The DOJ Technical
Assistance Manual, which expressly permits a “marginally
longer” disabled access route under § 35.150, contains no
such language in its discussion of § 35.151. See TITLE II
TECHNICAL ASSISTANCE MANUAL, supra, § II-6.6000.
The City’s conduct here is more analogous to altering its
sidewalks for reasons unrelated to ADA compliance, as
contemplated by § 35.151, than it is to retrofitting a sidewalk
to achieve program accessibility under § 35.150. The City
chose to alter the existing arrangement of the public sidewalk
by allowing private vendors to set up displays for the purpose
COHEN V. CITY OF CULVER CITY 17
of holding a car show. The vendors’ presence was entirely
unrelated to the goal of making the City’s programs or
services accessible to disabled persons. It would not have
imposed an additional burden on the City for it to require the
vendors to locate their booths a few feet in either direction to
avoid blocking disabled ramps.
Sections 35.150 and 35.151 both implement, in different
circumstances, the ADA’s requirement that public entities
make reasonable modifications to accommodate persons with
disabilities. See Lane, 541 U.S. at 532. The less stringent
demands of § 35.150 govern when it would be unreasonable
to expect public entities to comply with the more exacting
standards of § 35.151. See id.; Frame, 657 F.3d at 232. This
is not such a circumstance. When the City has already built
a direct route that is accessible to disabled persons, it is
reasonable to require the City not to force disabled persons to
look for and take even a marginally longer route. Because
§ 35.150 does not apply, the existence of an arguably
marginally longer alternative route does not entitle the City
to summary judgment on Cohen’s Title II claim.
C.
A genuine dispute of material fact exists as to whether the
City denied Cohen access to the sidewalk on the basis of his
disability by permitting a private vendor’s display to
completely block the existing curb ramp.
For example, the City may have violated a regulation
requiring it to maintain disabled access features in good
working order. The City must “maintain in operable working
condition those features of facilities and equipment that are
required to be readily accessible to and usable by persons
18 COHEN V. CITY OF CULVER CITY
with disabilities by the Act or this part.” 28 C.F.R.
§ 35.133(a). Because the regulations define “facility” to
include “any portion of . . . roads, walks, or passageways,”
city sidewalks are among those facilities that the City must
maintain in operable working condition. See id. § 35.104.
Only “isolated or temporary interruptions in service or access
due to maintenance or repairs” are permissible. Id.
§ 35.133(b). The rationale for this requirement is obvious:
there is little point in building an accessible route if it is not
kept in a condition that allows disabled persons to use it. See
28 C.F.R. pt. 35, app. B. As the guidance accompanying this
regulation makes clear, the City is therefore required to keep
disabled access routes “free of obstructions.” Id. While
temporary obstructions do not violate the ADA, obstructions
that persist beyond a reasonable period of time do violate the
statute. Id.
A jury could conclude that the City violated this
provision. The vendor’s display obstructed the disabled
access curb ramp that connected the city streets with the
public sidewalk in front of the Culver Hotel. A genuine
dispute of material fact exists as to whether this particular
curb ramp was “required” to make the sidewalk “readily
accessible” to persons with disabilities. 28 C.F.R.
§ 35.133(a). The City would have been required to build this
curb ramp if it altered this particular segment of the street or
the sidewalk after January 26, 1992. See 28 C.F.R.
§ 35.151(i). The City, which bore the burden of production
on its motion for summary judgment, did not produce any
evidence showing that the street or sidewalk had not been
altered since January 26, 1992. See Nissan Fire & Marine
Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir.
2000). A genuine dispute of material fact also exists as to
whether the City failed to maintain this curb ramp in
COHEN V. CITY OF CULVER CITY 19
“operable working condition,” 28 C.F.R. § 35.133(a), by
allowing the private vendor’s booth to block the ramp for
more than “a reasonable time,” 28 C.F.R. pt. 35, app. B. The
trier of fact must determine whether the duration of the
obstruction was reasonable. Cf. Crowder v. Kitagawa,
81 F.3d 1480, 1486 (9th Cir. 1996) (holding that whether a
plaintiff’s proposed modifications to a defendant’s policies
are “reasonable” under Title II is a question of fact).8
Our discussion of this particular theory of liability is not
meant to imply that it is the only way the City may have
denied Cohen access to the sidewalk by reason of disability.
8
The Seventh Circuit requires that a plaintiff show more than an
“isolated instance[] of employee negligence” to prove a violation of a
Department of Transportation regulation implementing Title II that is
substantially identical to 28 C.F.R. § 35.133(a). Foley v. City of Lafayette,
359 F.3d 925, 930 (7th Cir. 2004). We are not necessarily convinced that
this requirement is warranted by the text of the regulation, which contains
no mens rea standard and simply commands public entities to maintain
disabled access features in operable condition. Nonetheless, we need not
decide whether to adopt the Seventh Circuit’s gloss on what otherwise
appears to be a strict liability statute because the City would not be
entitled to judgment as a matter of law even under that heightened
standard.
The City introduced evidence that it never approved the specific
layout or placement of the vendors’ booths at the car show. Cohen
introduced evidence that the City entered into a license agreement with the
ECCC that authorized the ECCC to hold the car show but contained no
nondiscrimination provision and made no reference to disabled access. A
jury could reasonably infer from the evidence in the record that the City
had failed to give any consideration to whether the car show would
interfere with its obligations under the ADA. A jury could therefore
conclude that the obstruction of the curb ramp was the result of a
“systemic problem with the policies of the City” rather than isolated
employee negligence. Foley, 359 F.3d at 930.
20 COHEN V. CITY OF CULVER CITY
More generally, Title II imposes upon public entities a “duty
to accommodate” disabled persons. Lane, 541 U.S. at 532.
Even facially neutral government actions that apply equally
to disabled and nondisabled persons may violate Title II if the
public entity has failed to make reasonable accommodations
to avoid unduly burdening disabled persons. See McGary,
386 F.3d at 1265–66; Crowder, 81 F.3d at 1484. For this
reason, poorly maintained public sidewalks may be a form of
discrimination proscribed by Title II. See Barden, 292 F.3d
at 1076–77. Obstructed sidewalks exclude disabled persons
from ordinary communal life and force them to risk serious
injury to undertake daily activities. This is precisely the sort
of “subtle” discrimination stemming from “thoughtlessness
and indifference” that the ADA aims to abolish. Chapman,
631 F.3d at 944–45.
Here, a jury could conclude that the City discriminated
against Cohen by reason of his disability by failing to take
simple, low-cost, reasonable measures to accommodate
persons who rely on curb ramps to navigate public sidewalks.
The City could have reviewed and approved the placement of
the vendors’ displays before the car show, as the permit it
issued to the ECCC said it would but as it apparently did not.
It could have required vendors to avoid positioning their
displays in front of disabled access ramps, or to set their
displays back a few feet from the curb to allow disabled
pedestrians to pass. The City could have posted a temporary
sign in front of this particular display directing pedestrians to
the other curb ramp twenty yards down the block. Any of
these modest measures may have avoided the injuries Cohen
suffered. By failing to adopt them, the City may have
engaged in the “simple exclusion” of disabled persons
through “thoughtlessness” and “inaction” that constitutes
discrimination under the ADA. McGary, 386 F.3d at 1267
COHEN V. CITY OF CULVER CITY 21
(quoting Presta v. Peninsula Corridor Joint Powers Bd.,
16 F. Supp. 2d 1134, 1136 (N.D. Cal. 1998)).
Because the district court relied on an inapplicable legal
standard, and because there is a genuine dispute of material
fact as to whether the City denied Cohen access to a public
service or otherwise discriminated against him under Title II,
the district court erred by granting summary judgment in
favor of the City.
IV.
Cohen also alleges that the City violated two California
statutes: the Disabled Persons Act (DPA) and the Unruh Civil
Rights Act. A violation of the ADA constitutes a violation of
the California DPA. Cal. Civ. Code § 54.1(d). Similarly, a
violation of the ADA constitutes a violation of the Unruh Act.
Cal. Civ. Code § 51(f); see Munson v. Del Taco, Inc.,
208 P.3d 623, 625 (Cal. 2009) (holding that no showing of
intentional discrimination is required to state an Unruh Act
claim on the basis of an ADA violation). Because the City is
not entitled to summary judgment on Cohen’s ADA claim,
the district court erred by granting summary judgment for the
City on Cohen’s claims under the DPA and the Unruh Act.
V.
We take no position on whether the City did in fact deny
Cohen access to a public service or discriminate against him
by reason of disability under 42 U.S.C. § 12132. As the
district court held, a genuine dispute of material fact exists as
to whether Cohen is disabled at all. Various other disputed
issues may also be resolved at trial. We simply hold that the
City is not entitled to summary judgment because, drawing all
22 COHEN V. CITY OF CULVER CITY
reasonable inferences in Cohen’s favor, it may have violated
the ADA and, consequently, the DPA and the Unruh Act.
We therefore reverse the judgment of the district court as
to Cohen’s claims against the City. As we explain in a
memorandum disposition accompanying this opinion, we
reverse the judgment of the district court as to Cohen’s DPA
claim against the ECCC, but we affirm the judgment of the
district court as to Cohen’s Unruh Act claim against the
ECCC. We remand for further proceedings. Each party shall
bear its own costs.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
RAWLINSON, Circuit Judge, dissenting in part:
I respectfully dissent from the portion of the opinion
reversing the district court’s entry of summary judgment in
favor of Culver City on William Cohen’s claims under the
Americans With Disabilities Act and related California
statutes. The district court ruled that “Culver City has
presented evidence that two wheelchair access ramps were
located 20 yards east and ninety yards west, respectively,
from where Plaintiff incurred his injury.” The district court
then observed that Cohen “has not disputed this evidence or
offered any explanation as to why he did not utilize an
alternative route. . . .” The district court concluded that
because alternative routes were available, Cohen failed to
raise a material issue of fact regarding his alleged exclusion
from use of the sidewalk.
COHEN V. CITY OF CULVER CITY 23
The district court’s grant of summary judgment was
consistent with cases that have addressed the issue raised by
Cohen, equal access. As we stated in Bird v. Lewis & Clark
Coll., 303 F.3d 1015, 1021 (9th Cir. 2002), “the central
inquiry is whether the program, when viewed in its entirety,
is readily accessible to and usable by individuals with
disabilities.” (citation and internal quotation marks omitted).
This language counsels against a narrow view of access and
underscores the importance of the other access routes
available to Cohen. I agree with the district court that there
was no showing that Cohen was “excluded from accessing
the public sidewalks.” Rather, Cohen complains that the
ramp “most directly accessible to him . . . was blocked by a
vendor booth.” Nothing in the ADA, the governing
regulations or case precedent requires access at a particular
location in relation to the plaintiff’s destination. Instead, the
ADA focuses on ready access. See Bird, 303 F.3d at 1021.
Ready access within twenty yards fulfilled the City’s
obligation under the ADA. See id. at 1021 (focusing on ready
access rather than conformity to the plaintiff’s subjective
expectations).
In my view, the district court’s reliance on Schonfeld v.
City of Carlsbad, 978 F. Supp. 1329, 1339 n.11 (S.D. Cal.
1997), aff’d 172 F.3d 876 (9th Cir. 1999), was entirely
appropriate. Schonfeld interpreted 28 C.F.R. § 35.150, the
same regulation the majority opinion “rel[ies] heavily on.”
Majority Opinion, p. 10. The portion of the Schonfeld
opinion relied on by the district court was under the heading
“Existing Facilities,” and addresses the same access points at
issue in this case.
We affirmed the district court’s decision in Schonfeld,
including its ruling that:
24 COHEN V. CITY OF CULVER CITY
[P]ublic entities are not required to construct
a curb ramp at every intersection. Alternative
routes to buildings that make use of existing
curb ramps may be acceptable under the
concept of program accessibility in limited
circumstances where disabled individuals
need only travel a marginally longer route . . .
Schonfeld, 978 F. Supp. at 1339 n.11.
Similarly, the district court properly relied on the First
Circuit decision in Parker v. Universidad de P.R., 225 F.3d
1, 6–7 (1st Cir. 2000). In Parker, the First Circuit also
addressed a claim of lack of access to an existing facility. See
id. at 5. The First Circuit noted that “Title II’s emphasis on
‘program accessibility’ . . . was intended to ensure broad
access to public services, while, at the same time, providing
public entities with the flexibility to make access
available. . . .” Id. at 6. The First Circuit also observed that
each program must be viewed in its entirety when
determining accessibility. See id. Applying that view, the
First Circuit held that the University was required to provide
“at least one route that a [disabled] person . . . [could] use to
reach the [program] safely . . .” Id. at 7. The First Circuit
explicitly held that not every passageway had to be accessible
so long as there was one route that a disabled person could
use. See id.In this case, the undisputed evidence is that there were
two readily accessible routes that Cohen could have used to
reach his destination safely. Under the rationale of Parker
and Schonfeld, and viewing the program in its entirety, Cohen
was not denied access. In summary, the only cases that have
come close to addressing this issue focus on viewing the
COHEN V. CITY OF CULVER CITY 25
program in its entirety and determining whether all access
was denied. See Bird, 303 F.3d at 1021; Schonfeld, 978 F.
Supp. at 1339 n.11; Parker, 225 F.3d at 6–7. Because two
available access routes existed when viewing the sidewalk in
its entirety, Cohen was provided sufficient access. I agree
with the district court that Cohen failed to raise a material
issue of fact on his ADA claims and on his related state law
claims. I would affirm the district court’s entry of judgment
in favor of Culver City in its entirety.