Case5:02-cv-04795-JF Document1 Filed10/04/02 Page1 of 16

1 PAUL L. REIN, Esq. (Bar No. 43053) PATRICIA BARBOSA, Esq. (Bar No. 125865)
2 LAW OFFICES OF PAUL L. REIN 200 Lakeside Dr., Suite A
3 Oakland, CA 94612 (510) 832-5001
4 Attorneys for Plaintiff
5 ERNESTINA SALDANA-NEILY

6

7

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

8

9 ERNESTINA SALDANA-NEILY Plaintiff,
10 v.
11 SANTA CRUZ SCHOOL DISTRICT;
12 and DOES 1 through 20, Inclusive
13

14

Defendants.

15

16

CASE NO.
Civil Rights
COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF: DENIAL OF DISABLED ACCESS TO PUBLIC SCHOOL FACILITIES; TITLE II OF THE AMERICANS WITH DISABILITIES ACT; VIOLATION OF § 504 OF REHABILITATION ACT OF 1973; GOVERNMENT CODE § 4450; CALIFORNIA CIVIL CODE §§ 54 AND 54.1

17

DEMAND FOR JURY TRIAL

/ 18

19

20

PLAINTIFF ERNESTINA SALDANA-NEILY complains of

21 Defendants SANTA CRUZ SCHOOL DISTRICT; and DOES 1-20, and alleges

22 as follows:

23

24
25
26
27
28
LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

INTRODUCTION

1. PLAINTIFF is a physically disabled wheelchair user

who has been denied the basic right to freely and independently

use the public educational facilities at Soquel Cooperative

Nursery Preschool, located in the City of Soquel County of Santa

Complaint for Injunctive Relief and Damages

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LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

Cruz. PLAINTIFF ERNESTINA SALDANA-NEILY is a physically disabled women who requires the use of a wheelchair for mobility. Plaintiff was denied her civil rights under both state and federal laws and regulations, due to the continuing inaccessible public facilities at Soquel Cooperative Nursery Preschool, which are inaccessible to disabled persons in multiple respects, including: inaccessible paths from the public right of way into the nursery school grounds, inaccessible paths of travel to the only (recently remodeled) front door entrance, inaccessible playground, inaccessible public restroom and lavatory facilities at the nursery school, and other inaccessible school programs and activities that are conducted as part of the parent/child involvement with the Adult Education Parent Program through the Soquel Cooperative Nursery Preschool Program.
2. Plaintiff challenges defendants’ continued operation of public facilities that wrongfully deny access and public participation to Plaintiff as a parent of a child in the Soquel Cooperative Nursery School and as a participant in the Adult Education Parent Program at the Soquel Cooperative Nursery School, and to all other similarly disabled persons who require the use of wheelchairs to attend and participate in the programs, services and activities offered to parents and their children at the Soquel Cooperative Nursery Preschool. PLAINTIFF brings this action on her own behalf, and as private attorney general on behalf of the public.

JURISDICTION 3.

The Americans With Disabilities Act of 1990, 42

Complaint for Injunctive Relief and Damages

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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
LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

U.S.C. sections 12101, et seq., ("ADA") confers jurisdiction on this Court over Plaintiff’s claims, regardless of the amount in controversy.
4. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. sections 1343(3) and (4) for claims arising under Section 504 of the Rehabilitation Act of 1973.
5. Under the doctrine of supplemental jurisdiction, this Court has jurisdiction over plaintiff’s claims arising under California state law.

VENUE 6. Venue is proper in the Northern District of
California, the judicial district in which the claim has arisen, pursuant to 28 U.S.C. section 1391(b).

PARTIES

7. Plaintiff is, and at all times relevant to this Complaint, was a physically “handicapped person,” “physically disabled person,” and “person with disabilities”, as these terms are used under California law and under federal laws including but not limited to §504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act of 1990. These terms, a "physically handicapped person", a "physically disabled person", and a "person with disabilities", will be used interchangeably throughout this Complaint. Plaintiff has mobility disabilities and requires the use of wheelchair for mobility.
8. Defendants SANTA CRUZ SCHOOL DISTRICT; AND DOES 1 THROUGH 20, inclusive, are public entities subject to Title II

Complaint for Injunctive Relief and Damages

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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
LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

of the Americans with Disabilities Act of 1990, to §504 of the Rehabilitation Act of 1973, to the requirements of California State law requiring full and equal access to public facilities pursuant to Government Code §4450 et seq. and elsewhere, and to all other legal requirements referred to in this complaint. Plaintiff does not know the relative responsibilities of each of the Defendants in the ownership and operation of the facilities herein complained of, and allege a joint venture and common enterprise by Defendants SANTA CRUZ CITY SCHOOL DISTRICT, AND DOES 1-20 INCLUSIVE in the ownership and operation of each such facility, program or services offered.
9. Plaintiff does not know the true names and capacities of the Defendants sued herein as Does 1 through 20, or each of them, and therefore sues them under such fictitious names. On information and belief, defendants DOES 1-20 are state agencies and public entities who operate in the state of California. Plaintiff is informed and believes that all such defendants had some form of control or legal responsibility for the maintenance, ownership and/or operation of the facilities at Soquel Cooperative Nursery Preschool and the Adult Education Parent Program operated in conjunction with the Soquel Cooperative Nursery Preschool during periods of time relevant to this complaint. After appropriate discovery, Plaintiff will seek leave of the Court to amend this complaint to identify said DOE defendants when such defendants' true names and capacities have been ascertained.

GOVERNMENT CLAIMS FILED (With regard to claims for damages under

Complaint for Injunctive Relief and Damages

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LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

California state law.) 10. Plaintiff ERNESTINA SALDANA-NEILY made timely
claims for damages to the SANTA CRUZ SCHOOL DISTRICT on January 21, 2000, and an amended claim on June 7, 2000. These claims were rejected by operation of law on July 24, 2000.

FACTUAL BASES FOR COMPLAINT 11. PLAINTIFF ERNESTINA SALDANA-NEILY: Plaintiff

SALDANA-NEILY is and was at all times relevant to this action, a “physically disabled” person, and the mother of a preschool

student enrolled at the Soquel Cooperative Nursery Preschool in conjunction with the Adult Education Parent Program, located on the campus of Soquel High School, instituted by the Santa Cruz School District (hereinafter, "Soquel Preschool"). In order for plaintiff’s child to attend the preschool, plaintiff and her husband are required to attend weekly parenting classes, assist in the classroom and playground, and attend parenting functions. As a result of the inaccessible conditions at the preschool and Soquel High School, plaintiff has been unable to safely and independently access the school, and take meaningful part in parenting or school activities.
Commencing one year prior to the date of the filing of this lawsuit, and continuing to the date of this action, plaintiff has been denied her rights to full and equal access under federal and state law, including California Government Code §§4450 et seq., Title II of the Americans with Disabilities Act of 1990, section 504 of the Rehabilitation Act of 1973, and sections 54 and 54.1 of the California Civil Code, as the result

Complaint for Injunctive Relief and Damages

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LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

of the inaccessible facilities at the Soquel High School and Soquel Preschool Nursery. The inaccessible conditions include; an inaccessible and unsafe path of travel from the public right of way to the entrance of the preschool; a front door entrance that is not independently accessible; an inaccessible entrance to the playground; inaccessible restroom and lavatory facilities; and an inaccessible playground. As the result of the inaccessible conditions at the school, plaintiff was forced to sit outside for hours each week in inclement weather, by herself with her infant daughter, for over six months before defendants

constructed a ramp to the front door of the school. Plaintiff is still unable to access the playground entrance and once inside the school is unable to use the restroom or lavatory facilities.
On February 15, 2000, plaintiff was forced to sit outside in the playground area, along with her infant daughter, in inclement weather in order to complete her weekly quota of “school” hours required for her child’s enrollment in the preschool. After hours of sitting outside, plaintiff developed an urgent need to use restroom facilities. Since the only restrooms serving the school were located inside of the nursery school, which on February 15, 2000 was completely inaccessible to plaintiff (which restrooms are still inaccessible to wheelchair users), plaintiff was forced to leave the school premises in search of an accessible restroom. Plaintiff was unable to reach an accessible restroom in time and had a urinary accident shortly after leaving the school premises. Plaintiff, soiled and frustrated with her inability to participate in the school’s parenting program, returned home in her soiled condition and

Complaint for Injunctive Relief and Damages

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LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

missed her weekly parenting class. During the months between September and March prior to the installation of the ramp to the front door, plaintiff was forced to sit outside in the playground listening through an open door while the mother’s and the teacher conducted their parenting classes inside the inaccessible preschool.
In addition to the architectural barriers, plaintiff has also been routinely excluded from participating in the parenting program with non-disabled students and parents school due to the inaccessible locations chosen by defendants for field

trips and social gatherings. On or about the week of January 10th, 2000, defendants scheduled a “Mom’s Night Out” for the mother’s in plaintiff’s parenting class. Attendance at this special event function was required for plaintiff’s parenting group. This special event was scheduled to take place on the second floor banquet room of a local restaurant that plaintiff knew was not wheelchair accessible. Plaintiff informed the leader of this group that the restaurant was not wheelchair accessible, asking the leader how she could attend the special event in the inaccessible restaurant. The leader of the parenting group informed plaintiff that she would be “excused” from attending the special event, instead of relocating the event to an accessible restaurant. Defendants scheduled the “Mom’s Night Out” special event in an inaccessible location without regard to plaintiff’s inability to participate, and then exclude plaintiff from the event rather than relocate the event to an accessible location.
In addition to the above-cited incidents, plaintiff has

Complaint for Injunctive Relief and Damages

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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
LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

on numerous occasions within the last year of the filing of this complaint, been excluded from attending student and/or parenting functions due to the inaccessibility of the subject premises, and/or the inaccessible locations chosen by defendants for student/parent field trips and/or school functions.
12. As a result of the actions and failure to act of Defendants and each of them and as a result of the inaccessibility of the preschool facilities, and of the programs, services and activities, as above described, plaintiff ERNESTINA SALDANA-NEILY suffered denial of her Civil Rights, physical injuries, psychological and emotional distress, physical and emotional pain and suffering, embarrassment and humiliation, and denial of her rights to full and equal access to public facilities, all to her statutory and general damages. PLAINTIFF was embarrassed, humiliated, and suffered all detriment alleged herein on the basis that she was physically disabled and unable to enter and use Defendants’ public facilities and/or programs, services and activities on a full and equal basis with nondisabled parents.

FIRST CAUSE OF ACTION: DISCRIMINATION IN VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT OF 1990

13. PLAINTIFF repleads and incorporates by reference,

as if fully set forth hereafter, the allegations contained in

Paragraphs 1 through 12 of this complaint and incorporates them

herein as if separately repled.

14. Effective January 26, 1992, PLAINTIFF was entitled

to the protections of the "Public Services" provision of Title II

Complaint for Injunctive Relief and Damages

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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
LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

of the Americans with Disabilities Act of 1990. Title II, Subpart A prohibits discrimination by any "public entity", including any state or local government, as defined by 42 USC §12131, section 201 of the ADA. PLAINTIFF was at all times relevant herein a qualified individual with a disability as therein defined.
15. Pursuant to 42 USC §12132, Section 202 of Title II, 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. 16. The defendant government entities have failed in
their responsibilities under Title II to provide their services, programs and activities in a full and equal manner to disabled students as described hereinabove, including: failing to insure that the facilities described herein are accessible to disabled persons; failing to locate their programs, services and activities in facilities that are accessible to disabled persons; and failing to remove known architectural barriers at the subject facilities to make their public facilities accessible to disabled persons. As a proximate result of Defendants’ action and omissions, Defendants have discriminated against PLAINTIFF, in violation of Title II of the Americans With Disabilities Act of 1990, and of the regulations adopted to implement the ADA.
17. As a result of such discrimination, in violation of §202 of the ADA, PLAINTIFF are entitled to the remedies, procedures and rights set forth in Section 505 of the Rehabilitation Act of 1973 (29 USC §794a). PLAINTIFF also seeks

Complaint for Injunctive Relief and Damages

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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
LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

injunctive relief to require Defendants to remove the barriers to access complained of, to provide proper accommodations providing reasonable access for Plaintiff to Defendants' programs, services and activities, and to provide all remedies, and statutory attorneys' fees, litigation expenses and costs, including those remedies specified by section 203 and 505 of the Americans With Disabilities Act of 1990 and by section 1021.5 California Code of Civil Procedure, according to proof.
18. Injunctive Relief - To the date of filing this complaint, the specified public facilities and programs continue to be inaccessible for independent entry and use by physically disabled persons such as PLAINTIFF. PLAINTIFF requests that an injunction be ordered requiring that Defendants take prompt action to modify the aforementioned public facilities to render them accessible to and usable PLAINTIFF and other similarly situated physically disabled persons.
Wherefore, PLAINTIFF prays the court grant relief as requested hereinbelow.

SECOND CAUSE OF ACTION: VIOLATION OF §504 OF THE REHABILITATION ACT OF 1973

19. PLAINTIFF repleads and incorporates by reference,

as if fully set forth hereafter, the allegations contained in

Paragraphs 1 through 18 of this complaint and incorporates them

herein as if separately repled.

20. Defendants SANTA CRUZ SCHOOL DISTRICT; AND DOES 1

THROUGH 20, INCLUSIVE are governmental agencies existing under

the laws of the State of California with responsibility for,

Complaint for Injunctive Relief and Damages

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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
LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

inter alia, operating the public facilities at the Soquel Cooperative Nursery Preschool, located on the campus of Soquel High School. PLAINTIFF is informed and believes and therefore alleges that SANTA CRUZ SCHOOL DISTRICT; AND DOES 1 THROUGH 20, INCLUSIVE are recipients of Federal financial assistance and that part of that financial assistance is used to fund the operations of the specific buildings and facilities described herein, and the activities which take place therein.
21. By its actions or inactions in denying disabled accessible facilities at the facilities and buildings specified,

and in failing to provide access to other campus buildings and facilities, the SANTA CRUZ SCHOOL DISTRICT; AND DOES 1 THROUGH 20, INCLUSIVE have violated PLAINTIFF’s rights under §504 of the Rehabilitation Act of 1973, 29 USC §794, and the regulations promulgated thereunder.
22. By their actions or inactions in denying to Plaintiff ERNESTINA SALDANA-NEILY, a disabled parent, her right to have equal access to the same programs, activities and environment as non-disabled parents, and by otherwise discriminating against PLAINTIFF solely by reason of her physical disabilities, Defendants and each of them have violated Plaintiff’s rights under §504 of the Rehabilitation Act of 1973 and the regulations promulgated thereunder. PLAINTIFF seeks damages for denial of their Civil Rights, interference with her participation in the Adult Education Parenting Program of the Santa Cruz School District, for physical, mental and emotional injury, all to her damages according to proof. Further, PLAINTIFF seeks injunctive relief requesting that the Court order

Complaint for Injunctive Relief and Damages

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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
LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

Defendants to correct the access deficiencies complained of herein so that PLAINTIFF will not continue to be discriminated against and injured on a frequent and recurrent basis as she is forced to use unsafe public facilities and foreclosed from fully participating in defendants’ parenting program on the same basis as non-disabled parents, and seeks recovery of statutory attorney fees, litigation expenses and costs.
23. PLAINTIFF has no adequate remedy at law, and unless the relief requested herein is granted, PLAINTIFF will suffer irreparable injury by the continual deprivation of full and equal access to the specified public facilities at the Soquel Preschool Nursery and other public facilities operated by Defendants.
Wherefore, PLAINTIFF prays the court grant relief as requested, hereinbelow.

THIRD CAUSE OF ACTION: VIOLATION OF CALIFORNIA GOVERNMENT CODE §4450 et seq.

24. PLAINTIFF repleads and incorporates by reference, as if fully set forth hereafter, the factual allegations contained in Paragraphs 1 through 23 of this complaint and incorporates them herein as if separately repled.
25. PLAINTIFF is informed and believes and therefore allege that the specified public buildings and other facilities administered by the SANTA CRUZ SCHOOL DISTRICT are buildings, structures or related facilities within the meaning of California Government Code §§4450 and 4451. PLAINTIFF is further informed and believe and therefore allege that the SANTA CRUZ SCHOOL

Complaint for Injunctive Relief and Damages

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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
LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

DISTRICT, have constructed, altered, or repaired parts of these public buildings and facilities within the meaning of California Government Code §§4450, 4451 and 4456, thereby requiring provision of access to persons with disabilities, as required by law, and statutory attorney fees, litigation expenses and costs, including but not limited to public interest attorney fees pursuant to California Code of Civil Procedure § 1021.5.
26. The actions and omissions of the SANTA CRUZ SCHOOL DISTRICT as herein alleged constitute a denial of access to and use of the described public educational facilities by physically disabled persons within the meaning of California Government Code §4450 et seq. As a proximate result of Defendants’ action and omissions Defendants have discriminated against PLAINTIFF, in violation of California Government Code §§4450 et seq., and of Title 24 regulations adopted to implement section 4450.
27. PLAINTIFF has no adequate remedy at law, and unless the relief requested herein is granted, PLAINTIFF will suffer irreparable harm as a result of Defendants' failure to fulfill their obligations to provide full and equal access to the Soquel Preschool Nursery, programs, services and activities.
Wherefore, PLAINTIFF prays the court grant relief as requested, hereinbelow.

FOURTH CAUSE OF ACTION: FOR VIOLATION OF CALIFORNIA'S CIVIL RIGHTS ACTS (§§54 and 54.1 CIVIL CODE)

28. PLAINTIFF repleads and incorporates by reference,

as if fully set forth hereafter, the factual allegations

Complaint for Injunctive Relief and Damages

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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
LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

contained in Paragraphs 1 through 27 of this complaint and incorporates them herein as if separately repled.
29. The premises at SANTA CRUZ SCHOOL DISTRICT, above described, constitute public accommodations within the meaning of Government Code §4450 et seq., and are facilities to which members of the public are invited. The aforementioned acts and omissions of Defendants and each of them constitute a denial of equal access to and use and enjoyment of these facilities by persons with disabilities including PLAINTIFF, ERNESTINA SALDANANEILY. Said acts and omissions are also in violation of

provisions of Title 24 of the California Administrative Code. 30. Commencing one year prior to the filing of this
lawsuit, on each date that plaintiff was required to attend parenting classes and/or volunteer at the Soquel Preschool Nursery, and on the dates specified hereinabove, PLAINTIFF suffered violations of §§54 and 54.1 Civil Code in that she was denied “full and free use” and “full and equal access” to public buildings, public walkways, public facilities, and programs, services and activities conducted by defendants on the basis that she was a parent with a disability.
31. As a result of the denial of full and equal access to the facilities by Defendants and each of them, PLAINTIFF suffered a violation of her Civil Rights including but not limited to rights under §§54, 54.1 and 54.3 of California Civil Code, suffered physical personal injuries, physical discomfort, emotional distress, embarrassment, and humiliation, all to her damages as hereinabove and hereinafter stated.
32. PLAINTIFF seeks damages for the violation of her

Complaint for Injunctive Relief and Damages

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LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

rights as a disabled person as specified hereinabove and continuing to the present date and until proper access is provided, in all respects requested, according to proof. PLAINTIFF requests injunctive relief per §55 Civil Code, to require provision of facilities which provide full and equal access per §§54 and 54.1 Civil Code. PLAINTIFF also requests an award of attorneys’ fees, litigation expenses and costs pursuant to §§54.3 and 55 Civil Code, as well as the damage remedies, including treble damages, available pursuant to §54.3 Civil Code.
Wherefore, PLAINTIFF prays the court grant relief as requested hereinbelow.

PRAYER FOR RELIEF

WHEREFORE, PLAINTIFF prays that this Court: 1. Issue a preliminary and permanent injunction directing Defendants to modify the specified public buildings and other non-conforming facilities and their policies and practices, so that each provides full and equal access physically disabled persons; 2. Retain jurisdiction over the Defendants until such time as the Court is satisfied that Defendants' unlawful policies, practices, acts and omissions complained of herein no longer exist, and will not, recur; 5. Grant a jury trial and award to PLAINTIFF all appropriate damages in an amount to be proved at trial; 6. Award to PLAINTIFF all costs of this proceeding and award all statutory remedies including statutory attorneys' fees, litigation expenses and costs, as provided by law; and

Complaint for Injunctive Relief and Damages

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LAW OFFICES OF
PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

7. Grant such other and further relief as this Court may deem just and proper.
Dated: January 20, 2003 LAW OFFICES OF PAUL L. REIN PAUL L. REIN PATRICIA BARBOSA
Attorneys for PLAINTIFF ERNESTINA SALDANA-NEILY
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a jury for all claims for which a jury is permitted.
Dated: January 20, 2003 LAW OFFICES OF PAUL L. REIN PAUL L. REIN PATRICIA BARBOSA
Attorneys for PLAINTIFF ERNESTINA SALDANA-NEILY

Complaint for Injunctive Relief and Damages

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 Case5:02-cv-04795-JF Document3 Filed11/06/02 Page1 of 14

1 JAMES R. HAWLEY -- BAR NO. 162062 KATHRYN CHOW – BAR NO. 215204
2 HOGE, FENTON, JONES & APPEL, INC. Sixty South Market Street, Suite 1400
3 San Jose, California 95113-2396 Phone: (408) 287-9501
4 Fax: (408) 287-2583
5 Attorneys for Defendant Santa Cruz City Schools, erroneously
6 sued and served herein as Santa Cruz School District
7

8

9

UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA San Jose
11

12 ERNESTINA SALDANA-NEILY,

No. C 02 4795 JF RS

13

Plaintiff,

14 vs.

15 SANTA CRUZ SCHOOL DISTRICT,

16

Defendant.

17

18

19

ANSWER OF DEFENDANT SANTA CRUZ CITY SCHOOLS TO COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF: DENIAL OF DISABLED ACCESS TO PUBLIC SCHOOL FACILITIES; TITLE II OF THE AMERICANS WITH DISABILITIES ACT; VIOLATION OF § 504 OF REHABILITATION ACT OF 1973; GOVERNMENT CODE § 4450; CALIFORNIA CIVIL CODE §§ 54 AND 54.1
DEMAND FOR JURY TRIAL

20

COMES NOW defendant SANTA CRUZ CITY SCHOOLS, erroneously sued and

21 served herein as Santa Cruz School District, and in answer to plaintiff’s Complaint for

22 Damages and Injunctive Relief; Denial of Disabled Access to Public School Facilities; Title

23 II of the Americans with Disabilities Act; Violation of § 504 of Rehabilitation Act of 1973;

24 Government Code § 4450; California Civil Code §§ 54 and 54.1, admits, denies and

25 alleges as follows:

26 ///

27 ///

28

-1-
ANSWER OF DEFENDANT SANTA CRUZ CITY SCHOOLS TO COMPLAINT FOR DAMAGES N:\70967\Ple\25004.doc

Case5:02-cv-04795-JF Document3 Filed11/06/02 Page2 of 14

1

INTRODUCTION

2

I.

3

Answering the allegations contained in paragraph 1 of the Introduction of said

4 complaint, said defendant admits that plaintiff is a parent of a child enrolled in the Soquel

5 Cooperative Nursery Preschool Program, through the Santa Cruz School District Adult

6 Education Parent Program, and is a wheelchair user; except as specifically admitted

7 herein, defendant alleges that it has no information or belief upon the subjects contained

8 therein sufficient to enable it to answer any of said allegations and, placing its denial on

9 that ground, denies each and every, all and singular, generally and specifically, said

10 allegations and the whole thereof.

11

II.

12

Answering the allegations contained in paragraph 2 of the Introduction of said

13 complaint, said defendant alleges that it has no information or belief upon the subjects

14 contained therein sufficient to enable it to answer any of said allegations and, placing its

15 denial on that ground, denies each and every, all and singular, generally and specifically,

16 said allegations and the whole thereof.

17

PARTIES

18

I.

19

Answering the allegations contained in paragraph 7 of the Parties of said complaint,

20 said defendant alleges that it has no information or belief upon the subjects contained

21 therein sufficient to enable it to answer any of said allegations and, placing its denial on

22 that ground, denies each and every, all and singular, generally and specifically, said

23 allegations and the whole thereof.

24

II.

25

Answering the allegations contained in paragraph 8 of the Parties of said complaint,

26 said defendant admits that Defendant Santa Cruz School District is a public entity subject

27 to Title II of the American Disabilities Act of 1990, to section 504 of the Rehabilitation Act of

28 1973, and to the requirements of California State law. Except as specifically admitted

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1 herein, the allegations contained in paragraph 8 of said complaint constitute a legal opinion

2 and/or conclusion, and on that basis, defendant denies each and every, all and singular,

3 generally and specifically, said allegations and the whole thereof.

4

III.

5

Answering the allegations contained in paragraph 9 of the Parties of said complaint,

6 said defendant alleges that it has no information or belief upon the subjects contained

7 therein sufficient to enable it to answer any of said allegations and, placing its denial on

8 that ground, denies each and every, all and singular, generally and specifically, said

9 allegations and the whole thereof.

10

GOVERNMENT CLAIM FILED

11

I.

12

Answering the allegations contained in paragraph 10 of the Government Claim Filed

13 of said complaint, said defendant admits that plaintiff made a timely claim for damages to

14 the Santa Cruz School District on April 30, 2002, and that this claim was rejected; except

15 as specifically admitted herein, defendant denies each and every, all and singular,

16 generally and specifically, said allegations and the whole thereof.

17

FACTUAL STATEMENT

18

I.

19

Answering the allegations contained in paragraph 11 of the Factual Statement of

20 said complaint, said defendant admits that plaintiff Ernestina Saldana-Neily is a mother and

21 two of her children have attended defendant’s Soquel Cooperative Nursery Preschool

22 Programs, which work in conjunction with the Santa Cruz School District Adult Education

23 Parent Program to provide parenting programs and day care for preschool aged children in

24 the district; that as part of the district’s condition of enrollment for the preschool,

25 participating parents must attend some seminars and classes provided by the district that

26 the preschool attended by plaintiff is wheelchair accessible; and that on or about

27 November 6, 2001, Defendant scheduled a meeting for parents to be held at Harbor High

28 School in the City of Soquel; except as specifically admitted herein, defendant alleges that

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1 it has no information or belief upon the subjects contained therein sufficient to enable it to

2 answer any of said allegations and, placing its denial on that ground, denies each and

3 every, all and singular, generally and specifically, said allegations and the whole thereof.

4

II.

5

Answering the allegations contained in paragraph 12 of the Factual Statement of

6 said complaint, said defendant admits that at some point plaintiff asked for directions to the

7 restrooms and was directed to an adjacent building for a restroom; except as specifically

8 admitted herein, defendant alleges that it has no information or belief upon the subjects

9 contained therein sufficient to enable it to answer any of said allegations and, placing its

10 denial on that ground, denies each and every, all and singular, generally and specifically,

11 said allegations and the whole thereof.

12

III.

13

Answering the allegations contained in paragraph 13 of the Factual Statement of

14 said complaint, said defendant admits that plaintiff spoke with the theater manager and her

15 daughter’s teacher, Karen Gurr, to let them know she would have to locate an accessible

16 restroom; that plaintiff was told that the only accessible restrooms on campus were located

17 on the upper portion of the campus; and that the theater manager offered to assist plaintiff

18 to use the faculty restrooms; except as specifically admitted herein, defendant alleges that

19 it has no information or belief upon the subjects contained therein sufficient to enable it to

20 answer any of said allegations and, placing its denial on that ground, denies each and

21 every, all and singular, generally and specifically, said allegations and the whole thereof.

22

IV.

23

Answering the allegations contained in paragraph 14 of the Factual Statement of

24 said complaint, said defendant admits that plaintiff agreed to try and use the faculty

25 restrooms with the assistance of the theater manager and Karen Gurr, and that the

26 manager and Ms. Gurr attempted to lift plaintiff onto the toilet, but were unable to transfer

27 her onto the toilet; except as specifically admitted herein, defendant alleges that it has no

28 information or belief upon the subjects contained therein sufficient to enable it to answer

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1 any of said allegations and, placing its denial on that ground, denies each and every, all

2 and singular, generally and specifically, said allegations and the whole thereof.

3

V.

4

Answering the allegations contained in paragraph 15 of the Factual Statement of

5 said complaint, said defendant admits that two men attending the parenting class were

6 summoned to help plaintiff, and helped plaintiff back onto her wheelchair; except as

7 specifically admitted herein, defendant alleges that it has no information or belief upon the

8 subjects contained therein sufficient to enable it to answer any of said allegations and,

9 placing its denial on that ground, denies each and every, all and singular, generally and

10 specifically, said allegations and the whole thereof.

11

VI.

12

The allegations contained in paragraph 16 of said Factual Statement of said

13 complaint constitute a legal opinion and/or conclusion, and on that basis, defendant denies

14 each and every, all and singular, generally and specifically, said allegations and the whole

15 thereof.

16

VII.

17

Answering the allegations contained in paragraph 17 of the Factual Statement of

18 said complaint, said defendant denies each and every, all and singular, generally and

19 specifically, said allegations and the whole thereof.

20

VIII.

21

Answering the allegations contained in paragraph 18 of the Factual Statement of

22 said complaint, said defendant alleges that it has no information or belief upon the subjects

23 contained therein sufficient to enable it to answer any of said allegations and, placing its

24 denial on that ground, denies each and every, all and singular, generally and specifically,

25 said allegations and the whole thereof.

26

FIRST CAUSE OF ACTION

DISCRIMINATION IN VIOLATION OF TITLE II

27

OF THE AMERICANS WITH DISABILITIES ACT OF 1990

28

I.

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1

Answering the allegations contained in paragraph 19 of the First Cause of Action of

2 said complaint, which incorporates paragraphs 1 through 18 of the Introduction, said

3 defendant refers to its answers to said paragraphs and by such reference incorporates the

4 same herein to have the same force and effect as if set forth fully at length.

5

II.

6

Answering the allegations contained in paragraph 20 of the first cause of action of

7 said complaint, said defendant admits that plaintiff was entitled to the protections of the

8 provisions of Title II of the Americans with Disabilities Act of 1990; except as specifically

9 admitted herein, defendant alleges that it has no information or belief upon the subjects

10 contained therein sufficient to enable it to answer any of said allegations and, placing its

11 denial on that ground, denies each and every, all and singular, generally and specifically,

12 said allegations and the whole thereof.

13

III.

14

Answering the allegations contained in paragraphs 22, 23 and 24 of the first cause

15 of action of said complaint, said defendant denies each and every, all and singular,

16 generally and specifically, said allegations and the whole thereof.

17

SECOND CAUSE OF ACTION

18

VIOLATION OF §504 OF THE REHABILITATION ACT OF 1973

19

I.

20

Answering the allegations contained in paragraph 25 of the second cause of action

21 of said complaint, which incorporates paragraphs 1 through 24 of the Introduction and first

22 cause of action, said defendant refers to its answers to said paragraphs and by such

23 reference incorporates the same herein to have the same force and effect as if set forth

24 fully at length.

25

II.

26

Answering the allegations contained in paragraphs 27, 28, and 29 of the second

27 cause of action of said complaint, said defendant denies each and every, all and singular,

28 generally and specifically, said allegations and the whole thereof.

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1

THIRD CAUSE OF ACTION

VIOLATION OF CALIFORNIA

2

GOVERNMENT CODE §4450 et seq., and §11135

3

I.

4

Answering the allegations contained in paragraph 30 of the third cause of action of

5 said complaint, which incorporates paragraphs 1 through 29 of the Introduction, first and

6 second causes of action, said defendant refers to its answers to said paragraphs and by

7 such reference incorporates the same herein to have the same force and effect as if set

8 forth fully at length.

9

II.

10

Answering the allegations contained in paragraphs 31, 32 and 33 of the third cause

11 of action of said complaint, said defendant denies each and every, all and singular,

12 generally and specifically, said allegations and the whole thereof.

13

FOURTH CAUSE OF ACTION

FOR VIOLATION OF CALIFORNIA’S CIVIL RIGHTS ACTS

14

(§§54 AND 54.1 CIVIL CODE)

15

I.

16

Answering the allegations contained in paragraph 34 of the fourth cause of action of

17 said complaint, which incorporates paragraphs 1 through 33 of the Introduction, first,

18 second, and third causes of action, said defendant refers to its answers to said paragraphs

19 and by such reference incorporates the same herein to have the same force and effect as

20 if set forth fully at length.

21

II.

22

Answering the allegations contained in paragraphs 35, 36, and 37 of the fourth

23 cause of action of said complaint, said defendant denies each and every, all and singular,

24 generally and specifically, said allegations and the whole thereof.

25

III.

26

Answering the allegations contained in paragraph 38 of the fourth cause of action of

27 said complaint, said defendant alleges that it has no information or belief upon the subjects

28 contained therein sufficient to enable it to answer any of said allegations and, placing its

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1 denial on that ground, denies each and every, all and singular, generally and specifically,

2 said allegations and the whole thereof.

3

AFFIRMATIVE DEFENSES

4

AND FOR A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID

5 COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

6

That said complaint does not state facts sufficient to constitute a cause of action.

7

AND FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO

8 SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

9

That said complaint is barred by the statute of limitations; to wit, the provisions of

10 Code of Civil Procedure sections 338, 339, and 340.

11

AND FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID

12 COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

13

That plaintiff’s claims herein are barred by the equitable doctrine of unclean hands.

14

AND FOR A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO

15 SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

16

That it has no independent knowledge, as of the filing of this answer, of the facts

17 allegedly constituting the causes of action in plaintiff’s complaint, and based thereon,

18 hereby respectfully requests leave of court to amend this answer to include those

19 affirmative defenses that are revealed during the course of this defendant’s discovery.

20

AND FOR A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID

21 COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

22

That there has been no violation of the Unruh Civil Rights Act, in that the condition

23 of defendant’s property is not discriminatory, but is caused by the structure of the building

24 and/or the natural condition of the grounds, and the relief sought by plaintiff would require

25 construction, alteration, or structural modifications of the building or buildings in which

26 defendant’s establishment is located.

27

AND FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID

28 COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

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1

That plaintiff cannot establish intentional and arbitrary discrimination, and therefore

2 fails to state a cause of action for violation of the Americans with Disabilities Act, the

3 Rehabilitation Act of 1973, or the Unruh Act.

4

AND FOR A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO

5 SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

6

That plaintiff cannot establish that she was denied access on any particular

7 occasion.

8

AND FOR AN EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO

9 SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

10

That plaintiff cannot establish that she suffered actual damage as a result of

11 defendant’s actions or omissions.

12

AND FOR A NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID

13 COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

14

That plaintiff was contributorily negligent or otherwise at fault, that such negligence

15 or fault contributed to the damages, if any, and that plaintiff’s recovery should therefore be

16 reduced to the extent of her negligence or fault.

17

AND FOR A TENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID

18 COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

19

That plaintiff’s complaint, and each cause of action therein, fails to state facts

20 sufficient to permit the award of attorneys’ fees or costs.

21

AND FOR A ELEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO

22 SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

23

That the modifications demanded by plaintiff would fundamentally alter the nature of

24 goods, services, facilities, privileges, advantages, or accommodations provided by

25 defendant.

26

AND FOR A TWELFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO

27 SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

28

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1

That plaintiff had full access to defendant’s bathroom facilities through alternative

2 methods.

3

AND FOR A THIRTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE

4 TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT

5 ALLEGES:

6

That the injunctive relief sought by plaintiff is structurally impracticable.

7

AND FOR A FOURTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE

8 TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT

9 ALLEGES:

10

That the cost of barrier removal demanded by plaintiff is disproportionate to the

11 alteration of the property, if any, during the relevant time periods.

12

AND FOR A FIFTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO

13 SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

14

That plaintiff failed subsequent to the occurrence described in her complaint to

15 properly mitigate the damages and thereby is precluded from recovering those damages

16 which could have reasonably been avoided by the exercise of due care on the plaintiff’s

17 part.

18

AND FOR A SIXTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO

19 SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

20

That defendant has made reasonable accommodations for the disabilities of its

21 students and parents.

22

AND FOR AN SEVENTEENTH SEPARATE AND DISTINCT AFFIRMATIVE

23 DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF,

24 DEFENDANT ALLEGES:

25

The services, programs, and/or any activities complained of in plaintiff’s complaint,

26 when viewed in their entirety, are readily accessible to and usable by individuals with

27 disabilities.

28

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1

AND FOR A EIGHTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE

2 TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT

3 ALLEGES:

4

That it is not required by law to make each of the existing facilities, or portions of its

5 existing facilities, accessible to and usable by individuals with disabilities.

6

AND FOR AN NINETEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE

7 TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT

8 ALLEGES:

9

That the remedy sought by plaintiff would result in an undue financial and

10 administrative burden to defendant.

11

AND FOR A TWENTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO

12 SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

13

That the conditions plaintiff complains of do not prevent from her successfully and

14 meaningfully participating in the programs offered by defendant, or receiving the benefit of

15 those programs.

16

AND FOR A TWENTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE

17 TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT

18 ALLEGES:

19

That plaintiff cannot show her disability was the sole reason for defendant’s actions.

20 AND FOR A TWENTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO

21 SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

22

That plaintiff had full knowledge of some or all of the risks of the injuries complained of,

23 but voluntarily assumed those risks and is not entitled to recover for injuries allegedly

24 resulting from the voluntary and knowing assumption of those risks.

25

AND FOR A TWENTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE

26 TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT

27 ALLEGES:

28

That plaintiff’s action is, in whole or in part, barred by the claims presentation

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1 requirements of the California Tort Claims Act including (but not limited to) the provisions of

2 California Government Code sections 905, 905.2, 945.4, and 911.2.

3

AND FOR A TWENTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE

4 DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF,

5 DEFENDANT ALLEGES:

6

That any and all acts or omissions of this answering defendant and its agents and

7 employees, which allegedly caused the injuries or damages alleged in said complaint were

8 the result of an exercise of discretion vested in them. This answering defendant is,

9 therefore, not liable for the injuries or damages complained of pursuant to Government

10 Code sections 815.2(b) and 820.2.

11

AND FOR A TWENTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE

12 TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT

13 ALLEGES:

14

This answering defendant was under no mandatory duty imposed by law which was

15 designed to protect against the risk of the particular injury, if any, suffered by plaintiff as a

16 result of the alleged incident or incidents described in the complaint.

17

AND FOR A TWENTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE

18 TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT

19 ALLEGES:

20

That any and all mandatory duties imposed upon the defendant, the failure of which

21 allegedly gave rise to the incident alleged in the complaint or allegedly caused the injuries

22 complained of, were exercised with reasonable diligence and, therefore, defendant is not

23 liable for the alleged injuries pursuant to Government Code section 815.6.

24

AND FOR A TWENTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE

25 DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF,

26 DEFENDANT ALLEGES:

27

That this answering defendant is immune from liability for the injuries or damages

28 allegedly caused by the act or omission of another person pursuant to California

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1 Government Code sections 815.2(b) and 820.8.

2

AND FOR A TWENTY-EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE

3 DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF,

4 DEFENDANT ALLEGES:

5

That said defendant is immune from liability herein pursuant to the provisions of

6 California Government Code sections 815 and 820 and related sections thereof.

7

AND FOR A TWENTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE

8 TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT

9 ALLEGES:

10

That plaintiff’s action is barred by the immunities and defenses afforded by sections

11 840-960.8 of the California Government Code.

12

AND FOR A THIRTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO

13 SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT ALLEGES:

14

That the defendant is immune from liability for any injuries or damages allegedly

15 caused by the defendant’s failure to inspect any property to determine whether the

16 property complies with or violates any enactment or contains or constitutes a hazard to

17 health or safety, pursuant to California Government Code section 818.6.

18

AND FOR A THIRTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE

19 TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANT

20 ALLEGES:

21

That plaintiff’s request for injunctive relief is moot in light of the ongoing district-wide

22 modernization and construction project that will affect the subject facilities.

23

AND FOR A THIRTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE

24 DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF,

25 DEFENDANT ALLEGES:

26

That the ADA and related regulations recognize alternative methods of making

27 programs and services accessible, other than physical alteration of facilities.

28

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1

WHEREFORE, said answering defendant prays for judgment against plaintiff, for

2 costs of suit incurred herein, and for such other and further relief as to the court may seem

3 just and proper.

4 5 DATED: November 6, 2002 6

HOGE, FENTON, JONES & APPEL, INC.

7

By

8

James R. Hawley

Attorneys for Defendant

9

Santa Cruz City Schools

10

11

DEMAND FOR JURY TRIAL

12

Defendant hereby demands a jury for all claims for which a jury is permitted.

13 DATED: November 6, 2002 14

HOGE, FENTON, JONES & APPEL, INC.

15

By

16

James R. Hawley

Attorneys for Defendant

17

Santa Cruz City Schools

18

19

20

21

22

23

24

25

26

27

28

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 Case5:02-cv-04795-JF Document25 Filed08/07/03 Page1 of 1

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

SAN JOSE DIVISION

9

10 ERNESTINA SALDANA-NEILY,

Plaintiff,

11

V.

12

SANTA CRUZ SCHOOL DISTRICT,

13

Defendant.

________________________/

14

CV-02-4795-JF ORDER OF DISMISSAL

15 The parties hereto, by their counsel, have advised the Court that they have agreed to a
16 settlement of this case.
17 IT IS HEREBY ORDERED that this cause be dismissed with prejudice; however, that if
18 any party hereto shall certify to this Court, within ninety days, with proof of service of a copy
19 thereof, that the agreed consideration for said settlement has not been delivered over, the
20 foregoing ORDER SHALL STAND VACATED and this cause shall forthwith be restored to the
21 calendar to be set for trial.
22

23 Date: 8/6/03
24
25

(electronic signature authorized) JEREMY FOGEL Judge United States District Court

26

27

28

 
 Case: 5:02-cv-04795-JF As of: 06/26/2010 01:56 PM PDT 1 of 3
ADRMOP, CLOSED, E−Filing
U.S. District Court California Northern District (San Jose) CIVIL DOCKET FOR CASE #: 5:02−cv−04795−JF

Saldana−Neily v. Santa Cruz School District Assigned to: Hon. Jeremy Fogel Referred to: Hon. Richard Seeborg Cause: 42:12101 Americans w/ Disabilities Act (ADA)
Plaintiff

Date Filed: 10/04/2002 Date Terminated: 08/07/2003 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Ernestine Saldana−Neily

represented by Patricia Barbosa Barbosa Group 9341 Candlewood Drive Huntington Beach, CA 92646 (714)465−9713 Fax: (714)465−9628 Email: barbosagrp@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Leslie Rein Law Offices of Paul L. Rein 200 Lakeside Drive Suite A Oakland, CA 94612 510/832−5001 Fax: 510−832−4787 Email: reinlawoffice@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Santa Cruz School District

represented by James R. Hawley Hoge Fenton Jones &Appel 60 South Market Street Suite 1400 San Jose, CA 95113−2396 408−287−9501 Fax: 408−287−2583 Email: jrh@hogefenton.com ATTORNEY TO BE NOTICED

Date Filed 10/04/2002
10/04/2002
10/04/2002 11/06/2002

# Docket Text
1 COMPLAINT summons issued; jury demand; against Santa Cruz School District (Filing fee $150 receipt number 4406571). Filed by Ernestine Saldana−Neily. (bw, ) Additional attachment(s) added on 1/23/2003 (gm, ). (Entered: 10/07/2002)
2 ADR SCHEDULING ORDER: Case Management Statement due by 1/20/2003. Case Management Conference set for 1/27/2003 at 10:30 AM. (bw, ) (Entered: 10/07/2002)
Summons Issued as to Santa Cruz School District (bw, ) (Entered: 10/07/2002)
3 SANTA CRUZ CITY SCHOOLS ANSWER to Complaint FOR DAMAGES AND INJUNCTIVE RELIEF; DENIAL OF DISABLED ACCESS TO PUBLIC SCHOOL FACILITIES; TITLE II OF THE AMERICANS WITH DISABILITIES ACT; VIOLATION OF SECTION 504 OF REHABILITATION ACT OF 1973;

Case: 5:02-cv-04795-JF As of: 06/26/2010 01:56 PM PDT 2 of 3

11/08/2002 01/08/2003 01/17/2003 01/24/2003 01/30/2003
01/31/2003
02/18/2003 02/19/2003 02/26/2003 03/06/2003
03/12/2003 05/19/2003 05/23/2003
05/28/2003 05/29/2003 06/17/2003 06/23/2003 06/24/2003 07/08/2003 07/18/2003

GOVERNMENT CODE SECTION 4450; CALIFORNIA CIVIL CODE SECTIONS 54 AND 54.1 AND DEMAND FOR JURY TRIAL by Santa Cruz School District. (Hawley, James) (Entered: 11/06/2002)
4 SUMMONS Returned Executed, by Ernestine Saldana−Neily. Santa Cruz School District (lrd, ) (Entered: 11/08/2002)
Received Order to continue Case Management Conference by Ernestine Saldana−Neily. (gm, ) (Entered: 01/14/2003)
5 CLERK'S NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer (gm, ) (Entered: 01/17/2003)
6 STIPULATION and Order to Continue CMC by Ernestine Saldana−Neily. (Rein, Paul) (Entered: 01/24/2003)
7 STIPULATION AND ORDER TO CONTINUE CASE MANAGMENT CONFERENCE Case Management Conference set for 3/3/2003 at 10:30 AM.Signed by Judge Jeremy Fogel on 1/30/03. (jfsec) (Entered: 01/30/2003)
8 CLERK'S NOTICE: ADR Phone Conference scheduled for 2/18/03 at 9:30 a.m. Please note that plaintiff's counsel initiates the call to all parties. (tjs, ) (Entered: 01/31/2003)
9 CLERK'S NOTICE: ADR Phone Conference rescheduled to 2/19/03 at 10:00 a.m. (tjs, ) (Entered: 02/18/2003)
ADR Phone Conference by RWS (tjs, ) (Entered: 02/21/2003)
10 JOINT CASE MANAGEMENT STATEMENT filed by Ernestine Saldana−Neily. (Rein, Paul) (Entered: 02/26/2003)
11 Minute Entry: Further Case Management Conference held on 3/3/2003 before Judge Jeremy Fogel. Case referred to Magistrate Judge Maria−Elena James for settlement conference; to occur within 90 days. Continued to 6/2/03 at 10:30 a.m. for Further Case Management conference. (Court Reporter Not reported.) (dlm, ) (Entered: 03/06/2003)
12 ORDER REFERRING CASE to Magistrate Judge James for Settlement. Signed by Judge James on 3−12−03. (mejlc2, ) (Entered: 03/12/2003)
13 STIPULATION and Order to Con't CMC by Ernestine Saldana−Neily. (Rein, Paul) (Entered: 05/19/2003)
14 STIPULATION AND ORDER TO CONTINUE CASE MANAGEMENT CONFERENCE. Case Management Conference set for 6/23/2003 at 10:30 AM.Signed by Judge Jeremy Fogel on 5/22/03. (jfsec) (Entered: 05/23/2003)
15 Minute Entry: Settlement Conference held on 5/28/2003 before Hon. Maria−Elena James. (Court Reporter N/A.) (bjt, ) (Entered: 05/28/2003)
16 CLERK'S NOTICE Case Management Conference set for 6/23/2003 at 10:30 AM. (jfsec) (Entered: 05/29/2003)
17 CLERK'S NOTICE Case Management Conference rescheduled for 7/28/2003 at 10:30 AM. (jfsec) (Entered: 06/17/2003)
19 Letter to Magistrate Judge James from James R. Hawley re Settlement Conference continued to 7/8/03 at 2:00. (gm, ) (Entered: 06/27/2003)
18 CLERK'S NOTICE Case Management Conference set for 8/4/2003 at 10:30 AM. (jfsec) (Entered: 06/24/2003)
20 Letter re settlement conference from James R. Hawley. (gm, ) (Entered: 07/11/2003)
21 CLERK'S NOTICE Case Management Conference rescheduled for 8/7/2003 at 10:30 AM. (jfsec) (Entered: 07/18/2003)

Case: 5:02-cv-04795-JF As of: 06/26/2010 01:56 PM PDT 3 of 3

07/22/2003 07/28/2003 07/31/2003 08/07/2003

22 STIPULATION AND [PROPOSED] ORDER TO CONTINUE CASE MANAGEMENT CONFERENCE by Santa Cruz School District. (Hawley, James) (Entered: 07/22/2003)
23 STIPULATION AND ORDER CONTINUING CASE MANAGEMENT CONFERENCE Case Management Conference set for 8/25/2003 at 10:30 AM.Signed by Judge Jeremy Fogel on 7/28/03. (jfsec) (Entered: 07/28/2003)
24 Minute Entry: Settlement Conference held on 7/30/2003 before HON. MARIA−ELENA JAMES. (Court Reporter n/a.) (bjt, ) (Entered: 07/31/2003)
25 ORDER DISMISSING CASE. Signed by Judge Jeremy Fogel on 8/6/03. (dlm, ) (Entered: 08/07/2003)

 
 Case: 3:00-cv-03292-CRB As of: 07/07/2010 01:35 PM PDT 1 of 2
CLOSED, REFDIS
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:00−cv−03292−CRB

Saldana−Neily v. Santa Cruz School Assigned to: Judge Charles R. Breyer Referred to: Magistrate Judge Maria−Elena James Demand: $0 Cause: 42:12101 Americans w/ Disabilities Act (ADA)
Plaintiff

Date Filed: 09/11/2000 Date Terminated: 03/26/2001 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Ernestina Saldana−Neily

represented by Patricia Barbosa Barbosa, Metz, Ikeda &Harrison, LLP 17547 Ventura Boulevard, Suite 310 Encino, CA 91316 818−386−1200 Fax: 818−386−1212 Email: PBarbosa@bmihlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Leslie Rein Law Offices of Paul L. Rein 200 Lakeside Drive Suite A Oakland, CA 94612 510/832−5001 Fax: 510−832−4787 Email: reinlawoffice@aol.com ATTORNEY TO BE NOTICED

V. Defendant Santa Cruz School District

represented by James R. Hawley Hoge Fenton Jones &Appel 60 South Market Street Suite 1400 San Jose, CA 95113−2396 408−287−9501 Fax: 408−287−2583 Email: jrh@hogefenton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Luhe , San Francisco City Attorney's Office 1390 Market St. 5th Floor San Francisco, CA 94102
(415) 554−3924 Fax: Email: kathryn.luhe@sfgov.org TERMINATED: 01/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

Case: 3:00-cv-03292-CRB As of: 07/07/2010 01:35 PM PDT 2 of 2

09/11/2000 09/11/2000
10/30/2000 11/02/2000 11/07/2000 11/08/2000 11/08/2000 11/30/2000 12/27/2000 01/02/2001 01/03/2001 01/12/2001
02/13/2001
03/20/2001 03/26/2001

1 COMPLAINT Summons(es) issued; Fee status pd entered on 9/11/00 in the amount of $ 150.00 ( Receipt No. 4402304); jury demand [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 09/13/2000)
2 ORDER RE COURT PROCEDURE and SCHEDULE (ADR Multi−Option) by Judge Charles R. Breyer : Proof of service to be filed by 10/26/00 ; counsels' case management statement to be filed by 1/2/01 ; initial case management conference will be held 8:30 1/12/01 . (cc: all counsel) [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 09/13/2000)
3 RETURN OF SERVICE executed upon defendant Santa Cruz School on 10/17/00 by serving agent, Elizabeth A. Ernst. [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 11/03/2000)
4 ORDER TO SHOW CAUSE for failure to serve under the provisions of Civil LR 4−2 by Judge Breyer : Order to Show Cause hearing will be held 10:00 12/1/00 ; (cc: all counsel) [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 11/06/2000)
RECEIVED Stipulation for extension of time to respond to complaint [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 11/08/2000)
5 STIPULATION and ORDER by Judge Charles R. Breyer : extending time until 11/30/00 for defendant to answer (cc: all counsel) [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 11/08/2000)
6 LETTER dated 11/6/00 from Steven L. Rein requesting order to show cause hearing taken off calendar. [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 11/09/2000)
7 ANSWER by defendant Santa Cruz School to complaint [1−1] [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 12/01/2000)
RECEIVED Substitution of attorneys ( defendant Santa Cruz School ) [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 12/28/2000)
8 ORDER by Judge Charles R. Breyer withdrawing attorney Kathryn Luhe for Santa Cruz School and substituting attorney James R. Hawley ( Date Entered: 1/3/01) (cc: all counsel) [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 01/03/2001)
9 JOINT CASE MANAGEMENT STATEMENT filed by plaintiff, defendant. [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 01/05/2001)
10 MINUTES: ( C/R none) INITIAL CASE MANAGEMENT CONFERENCE HELD. Further case management conference set for 8:30 5/18/01 , referring case for settlement to Mag. Judge Maria−Elena James [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 01/16/2001)
11 NOTICE AND ORDER OF SETTLEMENT CONFERENCE by Mag. Judge Maria−Elena James Settlement conf. (Mag) at 2:00 3/20/01 ; ( Date Entered: 2/14/01) (cc: all counsel) [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 02/14/2001)
12 SETTLEMENT CONFERENCE MINUTES: before Mag. Judge James ( E/R SC 01−320) ( Hearing Date: 3/20/01) Settlement conference held [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 03/21/2001)
13 ORDER by Judge Charles R. Breyer dismissing case without prejudice ; 90−day conditional dismissal ( Date Entered: 3/28/01) (cc: all counsel) [3:00−cv−03292] (mcl, COURT STAFF) (Entered: 03/28/2001)