1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 910 - 16th Street Suite 610
3 Denver, Colorado 80202 Tel: (303) 595-9700
4 Fax: (303) 595-9705

5 DISABILITY RIGHTS EDUCATION & DEFENSE FUND, INC. (DREDF) Linda D. Kilb, Cal. Bar No. 136101
6 2212 Sixth Street Berkeley, California 94710
7 Tel: (510) 644-2555 Fax: (510) 841-8645
8 Attorneys for Plaintiffs DEBORAH A. LANE and JOSHUA E. LOYA
9

10

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

DEBORAH A. LANE

)

Case No.

13

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and

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COMPLAINT

14

)

JOSHUA E. LOYA,

)

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Plaintiffs,

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v.

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SANTA CRUZ METROPOLITAN

)

18 TRANSIT DISTRICT,

)

a political subdivision of the

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19 State of California,

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)

20

Defendant.

)

21

Plaintiffs Deborah A. Lane and Joshua E. Loya, by and through their attorneys Fox &

22 Robertson, P.C., and the Disability Rights Education & Defense Fund, Inc., hereby submit

23 their Complaint for violations of Title II of the Americans with Disabilities Act, 42 U.S.C. §

24 12131, et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., the Unruh Civil Rights

25 Act, Cal. Civ. Code, § 51, et seq., the Public Accommodations Law, Cal. Civ. Code, § 54, et

26 COMPLAINT

1 seq., California Government Code § 11135, et seq., and the Unfair Competition Statute, Cal.

2 Bus. & Prof. Code, § 17200, et seq.

3

4

INTRODUCTION

5

1. This civil rights Complaint is filed by individuals with disabilities who have

6 been, are being or will be denied nondiscriminatory, safe access to bus service operated by

7 Defendant Santa Cruz Metropolitan Transit District (“Metro”) as a result of the acts and

8 omissions alleged herein.

9

2. Defendant has been and is in violation of federal and state disability civil rights

10 laws, in that it has failed to comply with federal nondiscrimination statutes, including the

11 Americans with Disabilities Act (“ADA”) of 1990, 42 U.S.C. § 12101, et seq., and Section 504

12 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as well as numerous provisions of

13 California civil rights statutes and other legislation affording protection against discrimination,

14 unfair and deceptive business practices to persons with disabilities.

15

3. Defendant has discriminated and continues to discriminate against Plaintiffs in

16 many ways, including but not limited to failing to ensure that bus operators announce bus stops

17 and route numbers so that individuals with disabilities have nondiscriminatory, safe access to

18 bus services.

19

20

JURISDICTION AND VENUE

21

4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

22 §§ 1331 and 1343, 42 U.S.C. § 12133, 29 U.S.C. § 794a, and pursuant to its supplemental

23 jurisdiction over claims brought under the laws of the State of California. The Court may

24 grant declaratory and other relief pursuant to 28 U.S.C. §§ 2201 and 2202. Money damages

25 alone are inadequate, and Plaintiffs have been suffering and will continue to suffer great and

26

COMPLAINT

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1 irreparable injury.

2

5. Venue is proper within this District pursuant to 28 U.S.C. § 1391(b).

3

4

INTRADISTRICT ASSIGNMENT

5

6. This action arises in the county of Santa Cruz and thus should be assigned to the

6 San Jose Division.

7

8

PARTIES

9

7. Plaintiff Deborah A. Lane is and was at all times material hereto a resident of

10 Santa Cruz, California. Ms. Lane has multiple sclerosis, and multiple, congenital foot, leg, and

11 spinal deformities. She also has end-stage, traumatic arthritis in both feet, requiring adaptive

12 shoes with braces. In addition, her right ankle has been amputated, and she requires the use of

13 a Canadian crutch for mobility. As a result of her multiple sclerosis, she has, among other

14 difficulties, periodic bouts of double vision.

15

8. Ms. Lane has physical impairments that substantially limit several major life

16 activities. She has a record of physical impairments that substantially limit several major life

17 activities and is regarded as having physical impairments that substantially limit several major

18 life activities. Ms. Lane has a disability within the meaning of the ADA and the Rehabilitation

19 Act, 42 U.S.C. § 12102(2)(A); 29 U.S.C. § 794; 49 C.F.R. § 37.3; 28 C.F.R. § 35.104. She is

20 also a “handicapped person” within the meaning of 49 C.F.R. § 27.5.

21

9. In addition, Ms. Lane has a physiological disease, disorder or condition that

22 affects her neurological, musculoskeletal, and/or special sense organs, and that limits major

23 life activities. Ms. Lane is a person with a disability as defined in applicable California law,

24 including Cal. Gov’t Code § 12926, Cal. Civ. Code § 1761(g), and Cal. Bus. & Prof. Code

25 § 17206.1(b)(2).

26

COMPLAINT

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1

10. Plaintiff Joshua E. Loya is and was at all times material hereto a resident of

2 Santa Cruz, California. Mr. Loya was born with a visual impairment. Thus, at birth, he had

3 congenital folds, making him more prone to retinal detachment. He lost the ability to see in his

4 right eye when he was approximately two years old and lost the ability to see in his left eye at

5 the age of 15. Mr. Loya is now blind. Among other things, he requires the use of a white cane

6 for mobility.

7

11. Mr. Loya has a physical impairment that substantially limits several major life

8 activities. Mr. Loya has a record of a physical impairment that substantially limits several

9 major life activities and is regarded as having a physical impairment that substantially limits

10 several major life activities. Mr. Loya has a disability within the meaning of the ADA and the

11 Rehabilitation Act, 42 U.S.C. § 12102(2)(A); 29 U.S.C. § 794; 49 C.F.R. § 37.3; 28 C.F.R.

12 § 35.104. He is also a “handicapped person” within the meaning of 49 C.F.R. § 27.5.

13

12. In addition, Mr. Loya has a physiological disease, disorder or condition that

14 affects his neurological and/or special sense organs, and that limits major life activities. Mr.

15 Loya is a person with a disability as defined in applicable California law, including Cal. Gov’t

16 Code § 12926, Cal. Civ. Code § 1761(g), and Cal. Bus. & Prof. Code § 17206.1(b)(2).

17

13. Defendant Metro is a political subdivision of the State of California. It was

18 created pursuant to Cal. Pub. Util. Code § 98000, et seq., and is a “public entity” within the

19 meaning of 42 U.S.C. § 12131(1) and 28 C.F.R. Part 35. Metro receives federal financial

20 assistance and has its principal place of business in Santa Cruz, California. Metro operates a

21 “fixed route system” within the meaning of 42 U.S.C. § 12141(3). Metro is engaged as a

22 common carrier in the business of transporting members of the general public.

23

24

STATEMENT OF FACTS

25

14. Plaintiffs Lane and Loya rely upon Metro’s public transportation system as their

26

COMPLAINT

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1 principal means of transportation. Neither Plaintiff can drive an automobile because of their

2 respective disabilities, and one of the primary ways in which they have gained independence is

3 through their ability to use the public transportation system.

4

15. Plaintiffs Lane and Loya have encountered discrimination on the basis of

5 disability throughout Metro’s public transportation system, including but not limited to the

6 violations alleged in this Complaint.

7

16. Because of their disabilities, Plaintiffs need operators to announce bus stops. In

8 addition, when they are waiting at bus stops serving more than one route, Ms. Lane and Mr.

9 Loya need bus operators to announce which route they are driving.

10

17. Federal regulations require Metro to announce bus stops at transfer points with

11 other fixed routes, other major intersections and destination points, and intervals along a route

12 sufficient to permit individuals with visual impairments or other disabilities to be oriented to

13 their location.

14

18. Where buses for more than one route serve the same stop, federal regulations

15 require Metro to provide a means by which an individual with a visual impairment or other

16 disability can identify the proper vehicle to enter or be identified to the vehicle operator as a

17 person seeking a ride on a particular route.

18

19. The requirements of federal law, including without limitation the requirements

19 set forth in Paragraphs 17 and 18, are mandatory.

20

20. Plaintiffs Lane and Loya have ridden numerous buses on which operators did

21 not properly announce stops, including, but not limited to the following incidents:

22

a. On or about April 9, 2002, Ms. Lane was riding a Route 71 bus, and the

23

operator failed to announce the stop she needed to get off at (Water and

24

Poplar). As a result, she missed her stop and had to get off at the next

25

bus stop.

26

COMPLAINT

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1

b.

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d.

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26 COMPLAINT

On or about March 13, 2002, Ms. Lane took a Route 69 bus from Capitola Mall to one stop beyond the Santa Cruz Senior Center. The bus operator did not announce any stops. On or about February 26, 2002, Ms. Lane took the Route 71 from Metro Transit Center to Cabrillo Community College, and later took the Route 70 from Cabrillo Community College back to the Metro Transit Center. On both trips, the bus operators failed to call out any stops. On or about February 11, 2002, Ms. Lane was a passenger on a Route 69W bus. She boarded the bus at the Metro Transit Center and traveled to Cabrillo Community College. The bus operator did not announce any stops. Ms. Lane traveled on a Route 69W inbound bus from Cabrillo Community College to the Metro Transit Center on or about February 6, 2002. The bus operator failed to announce any stops. On or about January 17, 2002, Ms. Lane was a passenger on a Route 7 outbound bus, traveling from the Metro Transit Center to the stop at Second and Main Streets. The bus operator failed to announce any stops. Ms. Lane was a passenger on a Route 7 outbound bus from the Metro Transit Center to the stop at Second and Main Streets on or about January 6, 2002, and the bus operator did not announce any stops. On or about December 6, 2001, a bus operator failed to announce any stops on a Route 7 outbound bus on which Ms. Lane was riding. She had boarded the bus at the Metro Transit Center and got off the bus at the stop at Second and Main Streets.
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m.

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n.

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26 COMPLAINT

Ms. Lane traveled on a Route 66 outbound bus from the Metro Transit Center to the River Street Extension stop on or about December 4, 2001, and the bus operator did not announce any stops. On or about November 28, 2001, Ms. Lane was a passenger on a Route 54 inbound bus from Cabrillo Community College to the stop before the Capitola mall, and the bus operator announced no stops. Ms. Lane was a passenger on a Route 65 inbound bus from the Capitola Mall to the Metro Transit Center on or about October 23, 2001. The bus operator failed to announce any stops. On or about October 23, 2001, Mr. Loya was traveling on a Route 71 bus from the Metro Transit Center heading east toward the Soquel Avenue and Frederick bus stop, waiting to hear that stop announced. The bus operator did not announce that stop or others that Mr. Loya had heard other operators announce on that route. The operator stopped the bus at a stop that Mr. Loya thought might be near his destination, although the operator did not announce the stop. Mr. Loya asked a passenger sitting near him the identity of the stop. Upon hearing her response, he realized that he had reached his destination, and he got off the bus. Ms. Lane traveled on a Route 7 outbound bus from the Metro Transit Center to the stop at Second and Main Streets on or about September 28, 2001, and the bus operator did not announce any stops. On or about September 27, 2001, Ms. Lane rode a Route 69A inbound bus from the Capitola Mall to the Metro Transit Center, and the bus operator failed to announce any stops.
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p.

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q.

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r.

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s.

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t.

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u.

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v.

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26 COMPLAINT

Ms. Lane was a passenger on a Route 67 inbound bus from the Capitola Mall to the Metro Transit Center on or about September 26, 2001, and the bus operator did not announce any stops. On or about September 22, 2001, Ms. Lane was traveling on a Route 65 outbound bus from the Metro Transit Center, and the bus operator failed to announce any stops. A Metro bus operator failed to announce any stops on or about September 16, 2001, on a Route 7 outbound bus in which Ms. Lane was a passenger from the Metro Transit Center to the stop at Second and Main Streets. On or about August 21, 2001, Ms. Lane was traveling on a Route 67 outbound bus from the Metro Transit Center to the Capitola Mall. The bus operator failed to announce any stops. Ms. Lane traveled on a Route 7 outbound bus from the Metro Transit Center to the stop at Second and Main Streets on or about August 16, 2001, and the bus operator did not announce any stops. Ms. Lane was a passenger on a Route 69L outbound bus from the Metro Transit Center to the Capitola Mall on or about June 11, 2001. The bus operator failed to announce any stops. Mr. Loya took classes at Cabrillo Community College in 1998, 1999, 2000, and 2001, and he used Metro to travel to and from Cabrillo Community College. Bus operators often did not announce the Cabrillo Community College stop. Even when Mr. Loya asked operators to announce the Cabrillo Community College stop, operators frequently failed to do so.
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w.

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x.

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aa.

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bb.

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26 COMPLAINT

For example, in approximately February of 2001, Mr. Loya was attempting to travel on Metro to Cabrillo Community College. He was traveling on the Route 71 bus from the Metro Transit Center, and the bus operator failed to announce the bus stop for Mr. Loya. As a result, he had to travel past Cabrillo Community College to Watsonville, California and wait there until the bus back to Cabrillo Community College could leave for the college from Watsonville. He was more than 45 minutes late for class. On or about August 16, 2000, Mr. Loya boarded a Metro bus at the Metro Transit Center and told the bus operator that he needed to get off at the Crown-Merril stop. The bus operator failed to announce any stops, resulting in Mr. Loya being late for his performance on a radio station. When Mr. Loya noted that he had missed his stop, the bus operator yelled at Mr. Loya, stating that it was not the bus operator’s responsibility to call out stops. On or about April 26, 2000, Ms. Lane rode on a Route 67 outbound bus from the Metro Transit Center to the Jade Street stop in Capitola, and the bus operator failed to announce any stops. Ms. Lane was a passenger on or about April 24, 2000, on a Route 67 outbound bus from the Metro Transit Center to the Begonia Plaza stop, and the bus operator did not announce any stops. Plaintiffs Lane and Loya have ridden many other buses on which operators did not properly announce stops. On numerous occasions, bus operators have failed to announce stops in a volume and/or manner that could be understood by passengers.
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1

21. Metro has long been aware of the failure of its operators to announce stops. For

2 example:

3

a. On or about September 15, 1989, the Metro Board of Directors received

4

a document prepared by the Metro Accessible Services Task Force, now

5

known as Metro Accessible Services Transit Forum (“MASTF”) -- a

6

committee officially approved by the Metro Board as an advisory group

7

on issues relating to persons with disabilities -- stating that operators

8

should “announce all stops on their routes.”

9

b. According to the minutes of a meeting between MASTF and Metro in

10

February 1995, MASTF informed Metro’s General Manager that

11

operators often were not calling out stops and that this was a serious

12

problem that needed to be addressed.

13

c. According to a document entitled “Report for Santa Cruz Metropolitan

14

Transit District (SCMTD)” prepared in January 1999 by a consultant

15

hired by Metro to evaluate Metro’s compliance with the ADA, only two

16

operators called out stops, and neither of those two operators used the

17

public address system.

18

22. Bus operators have repeatedly failed to announce their route numbers at stops

19 serving more than one route. For example:

20

a. On or about January 6, 2002, a bus operator failed to announce the route

21

number of the Route 66 bus he was driving. Although the bus operator

22

had ample time to announce the route number of the bus to enable Mr.

23

Loya to know if it was the bus for which he had been waiting, he had to

24

ask the operator to identify the route number. At the time of this

25

incident, Mr. Loya was on Front Street at the Soquel Avenue and Front

26 COMPLAINT

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26 COMPLAINT

Street bus stop. A bus operator, on or about December 23, 2001, failed to announce the route number of the bus the operator was driving. Mr. Loya, who had been waiting for the Route 71 bus at the Metro Transit Center, heard the bus operator start up the bus. As Mr. Loya started walking toward it, the bus pulled away, prompting Mr. Loya to yell for the bus operator to wait for him. Shortly after the bus operator drove away, another bus operator, who was driving a Route 69 bus, told Mr. Loya that the bus operator who had pulled away was driving a Route 71 bus. The operator of the Route 69 bus also said that he had talked to other operators about the incident and that they planned to talk about it with the Route 71 bus operator, who had left without allowing Mr. Loya aboard. On or about December 4, 2001, a bus operator failed to announce the route number of the Route 71 bus that he was driving, despite having more than 10 seconds to do so before Mr. Loya reached the door of the bus to ask the operator the route the bus was traveling. Mr. Loya was on Front Street at the Soquel Avenue and Front Street bus stop at the time of this incident. Mr. Loya missed the Route 70 bus he was trying to ride on or about September 19, 2000, because the bus operator failed to call out the route number of the bus he or she was driving. Mr. Loya was waiting in Lane 4 of the Metro Transit Center at the time. On or about September 18, 2000, the bus operator of a Route 70 bus that Mr. Loya was trying to ride failed to call out the route number of the bus. When Mr. Loya, who was at the Metro Transit Center at the time,
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1

heard the bus being started a minute earlier than it was scheduled to

2

depart, he ran to try to catch it. In the process, he ran into a concrete,

3

support wall. After the bus departed, Mr. Loya asked another passenger

4

the identity of the bus that had departed, and he learned that it was the

5

bus that he was trying to ride.

6

f. On numerous other occasions, bus operators have failed to announce

7

their route numbers at stops serving more than one route.

8

23. In addition to the specific examples set forth herein, Defendant has otherwise

9 denied Plaintiffs the benefits of its services, programs, and activities.

10

24. Plaintiff Lane has met with Metro officials to attempt to address some of the

11 deficiencies in Defendant’s system of public transportation, to no avail.

12

25. In addition, Plaintiffs have registered complaints, both verbally and in writing.

13 with Defendant concerning deficiencies in Defendant’s system.

14

26. Defendant has not adequately responded to Plaintiffs’ complaints and continues

15 to violate the ADA, the Rehabilitation Act, and California statutes.

16

27. Upon information and belief, many of the accessibility deficiencies in

17 Defendant’s public transportation system are due to Defendant’s failure to train, monitor,

18 reward and/or discipline bus operators properly.

19

28. In engaging in the conduct described above, Defendant has either intentionally

20 discriminated against Plaintiffs or been deliberately indifferent to the strong likelihood that

21 pursuit of its policies would result in violations of federally protected rights.

22

29. Plaintiffs Lane and Loya have been and continue to be injured by the

23 inaccessibility of Metro’s public transportation system, including without limitation those

24 injuries set forth above.

25

30. As a result of the accessibility barriers to Metro’s public transportation system,

26 COMPLAINT

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1 Plaintiffs have suffered injuries, including without limitation emotional distress, apprehension

2 of danger, embarrassment, anguish, pain, exhaustion, inconvenience, delay, and the inability to

3 travel to appointments in a timely manner.

4

31. Plaintiffs Lane and Loya intend to -- and are ready, willing and able to -- utilize

5 Defendant’s services, programs, and activities when the discriminatory barriers are removed or

6 cured.

7

8

FIRST CLAIM FOR RELIEF

(Americans with Disabilities Act)

9

32. Plaintiffs reallege and incorporate by reference the remainder of the allegations

10

set forth in this Complaint as if fully set forth herein.

11

33. Title II of the ADA provides that no qualified individual with a disability shall,

12

by reason of such disability, be excluded from participation in or be denied the benefits of the

13

services, programs, or activities of a public entity, or be subjected to discrimination by any

14

such entity. 42 U.S.C. § 12132, et seq.; 28 C.F.R. pt. 35; 49 C.F.R. pts. 37 and 38.

15

34. Plaintiffs are qualified individuals with disabilities within the meaning of 42

16

U.S.C. § 12131(2).

17

35. Defendant is a public entity within the meaning of 42 U.S.C. § 12131(1).

18

36. Defendant has violated the ADA by denying Plaintiffs the benefits of its

19

services, programs, and activities, as more fully set forth above.

20

37. Defendant’s violations of the ADA have harmed and will continue to harm

21

Plaintiffs in the future.

22

38. Pursuant to the remedies, procedures, and rights set forth in 42 U.S.C. § 12133,

23

Plaintiffs pray for judgment as set forth below.

24

39. In doing the acts and omissions alleged herein, Defendant knew or should have

25

known that its conduct was directed to persons with disabilities, thereby entitling Plaintiffs to

26

COMPLAINT

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1 recover treble damages, penalties and/or other such remedies pursuant to Cal. Civ. Code

2 § 3345.

3

SECOND CLAIM FOR RELIEF

4

(Section 504 of the Rehabilitation Act)

5

40. Plaintiffs reallege and incorporate by reference the remainder of the allegations

6 set forth in this Complaint as if fully set forth herein.

7

41. Section 504 of the Rehabilitation Act prohibits recipients of federal funding

8 from denying to persons with disabilities, on the basis of disability, the benefits provided by

9 the recipient, or from subjecting persons with disabilities to discrimination. 29 U.S.C. § 794;

10 49 C.F.R. pt. 27.

11

42. Defendant receives federal funding.

12

43. Defendant has violated Section 504 of the Rehabilitation Act by denying

13 Plaintiffs Lane and Loya its benefits, including access to its public transportation system, as

14 more fully set forth above.

15

44. Defendant’s violations of Section 504 of the Rehabilitation Act have harmed

16 and will continue to harm Plaintiffs in the future.

17

45. Pursuant to the remedies, procedures, and rights set forth in 29 U.S.C. § 794a,

18 Plaintiffs pray for judgment as set forth below.

19

46. In doing the acts and omissions alleged herein, Defendant knew or should have

20 known that its conduct was directed to persons with disabilities, thereby entitling Plaintiffs to

21 recover treble damages, penalties and/or other such remedies pursuant to Cal. Civ. Code

22 § 3345.

23

24

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26 COMPLAINT

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1

THIRD CLAIM FOR RELIEF

(Unruh Civil Rights Act)

2

47. Plaintiffs reallege and incorporate by reference the remainder of the allegations

3

set forth in this Complaint as if fully set forth herein.

4

48. Defendant operates a business establishment within the jurisdiction of the State

5

of California and, as such, is obligated to comply with the provisions of the California Unruh

6

Civil Rights Act, Cal. Civ. Code, § 51, et seq. (“the Unruh Act”).

7

49. The conduct alleged herein violates the Unruh Act, including Cal. Civ. Code,

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§ 51, et seq.

9

50. The Unruh Act guarantees, inter alia, that persons with disabilities are entitled

10

to full and equal accommodations, advantages, facilities, privileges, or services in all business

11

establishments of every kind whatsoever within the jurisdiction of the State of California. The

12

Unruh Act also provides that a violation of the ADA is a violation of the Unruh Act.

13

51. Defendant has violated the Unruh Act by, inter alia, denying Plaintiffs, as

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persons with disabilities, full and equal accommodations, advantages, facilities, privileges, or

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services offered by Defendant. Defendant has also violated the Unruh Act by violating the

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ADA, as set forth above.

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52. Defendant has violated the Unruh Act by, inter alia, failing to operate its

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services on a nondiscriminatory basis; failing to ensure that persons with disabilities have

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nondiscriminatory, safe access to public transportation services; and failing to ensure that

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personnel providing transportation services are trained to proficiency regarding their

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obligations to carry persons with disabilities, pursuant to California law.

22

53. Pursuant to the remedies, procedures, and rights set forth in Cal. Civ. Code §

23

52, Plaintiffs pray for judgment as set forth below.

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54. In doing the acts and omissions alleged herein, Defendant knew or should have

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known that its conduct was directed to persons with disabilities, thereby entitling Plaintiffs to

26

COMPLAINT

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1 recover treble damages, penalties and/or other such remedies pursuant to Cal. Civ. Code

2 § 3345.

3

4

FOURTH CLAIM FOR RELIEF

(California Public Accommodations Law)

5

55. Plaintiffs reallege and incorporate by reference the remainder of the allegations

6

set forth in this Complaint as if fully set forth herein.

7

56. Defendant operates transportation made available to the general public within

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the jurisdiction of the State of California and, as such, is obligated to comply with the

9

provisions of Cal. Civ. Code, § 54, et seq. (“the Public Accommodations Law”).

10

57. The conduct alleged herein violates the Public Accommodations Law, including

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Cal. Civ. Code, § 54 et seq.

12

58. The Public Accommodations Law guarantees, inter alia, that persons with

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disabilities are entitled to full and equal access, as other members of the general public, to

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accommodations, advantages, facilities, and privileges of modes of transportation within the

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jurisdiction of the State of California.

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59. Defendant has violated the Public Accommodations Law by, inter alia, denying

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persons with disabilities full and equal access, as other members of the general public, to

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accommodations, advantages, facilities, and privileges offered by Defendant.

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60. The conduct previously alleged violates the Public Accommodations Law,

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including Cal. Civ. Code § 54.1(a).

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61. Defendant has violated the Public Accommodations Law by, inter alia, failing

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to ensure that personnel providing transportation services are trained to proficiency regarding

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their obligations to carry passengers with disabilities, pursuant to California law.

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62. Pursuant to the remedies, procedures, and rights set forth in Cal. Civ. Code §

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54.3, Plaintiffs pray for judgment as set forth below.

26

COMPLAINT

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1

63. In doing the acts and omissions alleged herein, Defendant knew or should have

2 known that its conduct was directed to persons with disabilities, thereby entitling Plaintiffs to

3 recover treble damages, penalties, and/or other such remedies pursuant to Cal. Civ. Code

4 § 3345.

5

6

FIFTH CLAIM FOR RELIEF

(Discrimination by State-Funded Program or Activity)

7

64. Plaintiffs reallege and incorporate by reference the remainder of the allegations

8

set forth in this Complaint as if fully set forth herein.

9

65. Cal. Gov’t Code § 11135(a) prohibits unlawful discrimination and the denial of

10

full and equal access, on the basis of disability, to any program or activity that is funded

11

directly by the State of California, or receives any financial assistance from the State of

12

California.

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66. Metro conducts, operates, or administers a program or activity, within the

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meaning of Cal. Gov’t Code § 11135(a).

15

67. Upon information and belief, Metro is funded directly by or receives financial

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assistance from the State of California.

17

68. The conduct alleged herein violates Cal. Gov’t Code § 11135(a), as Metro has,

18

on the basis of disability, unlawfully discriminated against Plaintiffs and denied them full and

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equal access to its program or activity.

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69. Cal. Gov’t Code § 11135(b) provides, with respect to discrimination on the

21

basis of disability, programs and activities subject to Cal. Gov’t Code § 11135(a) shall meet

22

the protections and prohibitions contained in Section 202 of the ADA, 42 U.S.C. § 12132, and

23

the federal rules and regulations that have been adopted to implement it.

24

70. Cal. Gov’t Code § 11135(b) also provides that, if the laws of the State of

25

California prescribe stronger protections and prohibitions than the ADA, the programs and

26

COMPLAINT

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1 activities subject to Cal. Gov’t Code § 11135(a) shall be subject to the stronger protections and

2 prohibitions.

3

71. The conduct of Defendant violates Cal. Gov’t Code § 11135(b) by reason of

4 Defendant’s failure to comply with its legal obligations under federal disability civil rights

5 statutes and state disability civil rights statutes as alleged herein in Plaintiffs’ First, Second,

6 Third, and Fourth Claims for Relief above, and by Defendant’s failure to comply with

7 California public policy favoring the protection of the civil rights of people with disabilities.

8

72. Pursuant to the remedies, procedures, and rights set forth in Cal. Gov’t. Code

9 § 11139, Plaintiffs pray for judgment as set forth below.

10

11

SIXTH CLAIM FOR RELIEF

(Unfair Competition)

12

73. Plaintiffs reallege and incorporate by reference the remainder of the allegations

13

set forth in this Complaint as if fully set forth herein.

14

74. Defendant engages in business practices, offers transportation services for sale,

15

and advertises its transportation services within the jurisdiction of the State of California. As

16

such, Defendant is obligated to comply with the provisions of the Cal. Bus. & Prof. Code

17

§ 17200, et seq. (the “Unfair Competition Statute”).

18

75. The conduct alleged herein violates the Unfair Competition Statute,

19

including Cal. Bus. & Prof. Code § 17200.

20

76. The Unfair Competition Statute prohibits, inter alia, unlawful, unfair, or

21

fraudulent business acts or practices and unfair, deceptive, untrue, or misleading advertising by

22

any person, firm, corporation, or association within the jurisdiction of the State of California.

23

77. The conduct of Defendant violates this statute, inter alia, in that Defendant’s

24

services are not accessible to individuals with disabilities by reason of Defendant’s failure to

25

comply with its legal obligations under federal disability civil rights statutes and state

26

COMPLAINT

-18-

1 disability civil rights and consumer protection statutes as alleged herein in Plaintiffs’ First,

2 Second, Third, Fourth, and Fifth Claims for Relief above, and by Defendant’s failure to

3 comply with California public policy favoring the protection of the civil rights of people with

4 disabilities.

5

78. Pursuant to the remedies, procedures, and rights set forth in Cal. Bus. &

6 Prof. Code § 17203, Plaintiffs pray for judgment as set forth below.

7

79. In doing the acts and omissions alleged herein, Defendant knew or should have

8 known that its conduct was directed to persons with disabilities, thereby entitling Plaintiffs to

9 recover treble damages, penalties, and/or other such remedies pursuant to Cal. Civ. Code

10 § 3345.

11

12

RELIEF

13

WHEREFORE, Plaintiffs respectfully request that this Court:

14

1. That this Court assume jurisdiction.

15

2. That this Court declare Defendant to be in violation of Title II of the Americans

16 with Disabilities Act, 42 U.S.C. § 12131, et seq., the Rehabilitation Act of 1973, 29 U.S.C.

17 § 701, et seq., the Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq., the Public

18 Accommodations Law, Cal. Civ. Code § 54, et seq., California Government Code § 11135, et

19 seq., and the Unfair Competition Statute, Cal. Bus. & Prof. Code § 17200, et seq.

20

3. That this Court issue an injunction ordering Defendant to comply with the

21 statutes set forth herein.

22

4. That this Court award actual, compensatory, and statutory damages to Plaintiffs

23 for violations of their civil rights under state and federal law, and a trebling of these damages

24 pursuant to Cal. Civ. Code § 3345. In addition, Plaintiffs seek punitive damages under federal

25 law.

26 COMPLAINT

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1

5. That this Court award Plaintiffs’ reasonable attorneys’ fees and costs pursuant

2 to federal and California law.

3

6. That this Court award such additional or alternative relief as may be just, proper

4 and equitable.

5

6

RESPECTFULLY SUBMITTED,

7

FOX & ROBERTSON, P.C.

8

By: ________________________

9

Timothy P. Fox

10

11

DISABILITY RIGHTS EDUCATION AND

DEFENSE FUND, INC.

12

13

By: Linda D. Kilb

14 April 12, 2002
15

Attorneys for Plaintiffs

16

17

18

19

20

21

22

23

24

25

26 COMPLAINT

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DEMAND FOR JURY TRIAL

Plaintiffs demand a jury on all issues which can be heard by a jury.
1 Dated: April 12, 2002
2 FOX & ROBERTSON, P.C.
3

4

By: ________________________

Timothy P. Fox

5

6

DISABILITY RIGHTS EDUCATION AND

7

DEFENSE FUND, INC.

8 By: Linda D. Kilb
9 Attorneys for Plaintiffs
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 COMPLAINT

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 Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page1 of 21

1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 910 - 16th Street Suite 610
3 Denver, Colorado 80202 Tel: (303) 595-9700
4 Fax: (303) 595-9705

5 DISABILITY RIGHTS EDUCATION & DEFENSE FUND, INC. (DREDF) Linda D. Kilb, Cal. Bar No. 136101
6 2212 Sixth Street Berkeley, California 94710
7 Tel: (510) 644-2555 Fax: (510) 841-8645
8 Attorneys for Plaintiffs DEBORAH A. LANE and JOSHUA E. LOYA
9

10

11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

DEBORAH A. LANE

)

CASE NO. C 02-01808 RMW RS ADR

13

)

and

)

FIRST AMENDED COMPLAINT

14

)

JOSHUA E. LOYA,

)

15

)

Plaintiffs,

)

16

)

v.

)

17

)

SANTA CRUZ METROPOLITAN

)

18 TRANSIT DISTRICT,

)

a political subdivision of the

)

19 State of California,

)

)

20

Defendant.

)

21

Plaintiffs Deborah A. Lane and Joshua E. Loya, by and through their attorneys Fox &

22 Robertson, P.C., and the Disability Rights Education & Defense Fund, Inc., hereby submit

23 their Complaint for violations of Title II of the Americans with Disabilities Act, 42 U.S.C. §

24 12131, et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., the Unruh Civil Rights

25 Act, Cal. Civ. Code, § 51, et seq., the Public Accommodations Law, Cal. Civ. Code, § 54, et

26 FIRST AMENDED COMPLAINT C 02-01808 RMW RS ADR

Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page2 of 21

1 seq., California Government Code § 11135, et seq., and the Unfair Competition Statute, Cal.

2 Bus. & Prof. Code, § 17200, et seq.

3

4

INTRODUCTION

5

1. This civil rights Complaint is filed by individuals with disabilities who have

6 been, are being or will be denied nondiscriminatory, safe access to bus service operated by

7 Defendant Santa Cruz Metropolitan Transit District (“Metro”) as a result of the acts and

8 omissions alleged herein.

9

2. Defendant has been and is in violation of federal and state disability civil rights

10 laws, in that it has failed to comply with federal nondiscrimination statutes, including the

11 Americans with Disabilities Act (“ADA”) of 1990, 42 U.S.C. § 12101, et seq., and Section 504

12 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as well as numerous provisions of

13 California civil rights statutes and other legislation affording protection against discrimination,

14 unfair and deceptive business practices to persons with disabilities.

15

3. Defendant has discriminated and continues to discriminate against Plaintiffs in

16 many ways, including but not limited to failing to ensure that bus operators announce bus stops

17 and route numbers so that individuals with disabilities have nondiscriminatory, safe access to

18 bus services.

19

20

JURISDICTION AND VENUE

21

4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

22 §§ 1331 and 1343, 42 U.S.C. § 12133, 29 U.S.C. § 794a, and pursuant to its supplemental

23 jurisdiction over claims brought under the laws of the State of California. The Court may

24 grant declaratory and other relief pursuant to 28 U.S.C. §§ 2201 and 2202. Money damages

25 alone are inadequate, and Plaintiffs have been suffering and will continue to suffer great and

26 FIRST AMENDED COMPLAINT

C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page3 of 21

1 irreparable injury.

2

5. Venue is proper within this District pursuant to 28 U.S.C. § 1391(b).

3

4

INTRADISTRICT ASSIGNMENT

5

6. This action arises in the county of Santa Cruz and thus should be assigned to the

6 San Jose Division.

7

8

PARTIES

9

7. Plaintiff Deborah A. Lane is and was at all times material hereto a resident of

10 Santa Cruz, California. Ms. Lane has multiple sclerosis, and multiple, congenital foot, leg, and

11 spinal deformities. She also has end-stage, traumatic arthritis in both feet, requiring adaptive

12 shoes with braces. In addition, her right ankle has been amputated, and she requires the use of

13 a Canadian crutch for mobility. As a result of her multiple sclerosis, she has, among other

14 difficulties, periodic bouts of double vision.

15

8. Ms. Lane has physical impairments that substantially limit several major life

16 activities. She has a record of physical impairments that substantially limit several major life

17 activities and is regarded as having physical impairments that substantially limit several major

18 life activities. Ms. Lane has a disability within the meaning of the ADA and the Rehabilitation

19 Act, 42 U.S.C. § 12102(2)(A); 29 U.S.C. § 794; 49 C.F.R. § 37.3; 28 C.F.R. § 35.104. She is

20 also a “handicapped person” within the meaning of 49 C.F.R. § 27.5.

21

9. In addition, Ms. Lane has a physiological disease, disorder or condition that

22 affects her neurological, musculoskeletal, and/or special sense organs, and that limits major

23 life activities. Ms. Lane is a person with a disability as defined in applicable California law,

24 including Cal. Gov’t Code § 12926, Cal. Civ. Code § 1761(g), and Cal. Bus. & Prof. Code

25 § 17206.1(b)(2).

26 FIRST AMENDED COMPLAINT

C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page4 of 21

1

10. Plaintiff Joshua E. Loya is and was at all times material hereto a resident of

2 Santa Cruz, California. Mr. Loya was born with a visual impairment. Thus, at birth, he had

3 congenital folds, making him more prone to retinal detachment. He lost the ability to see in his

4 right eye when he was approximately two years old and lost the ability to see in his left eye at

5 the age of 15. Mr. Loya is now blind. Among other things, he requires the use of a white cane

6 for mobility.

7

11. Mr. Loya has a physical impairment that substantially limits several major life

8 activities. Mr. Loya has a record of a physical impairment that substantially limits several

9 major life activities and is regarded as having a physical impairment that substantially limits

10 several major life activities. Mr. Loya has a disability within the meaning of the ADA and the

11 Rehabilitation Act, 42 U.S.C. § 12102(2)(A); 29 U.S.C. § 794; 49 C.F.R. § 37.3; 28 C.F.R.

12 § 35.104. He is also a “handicapped person” within the meaning of 49 C.F.R. § 27.5.

13

12. In addition, Mr. Loya has a physiological disease, disorder or condition that

14 affects his neurological and/or special sense organs, and that limits major life activities. Mr.

15 Loya is a person with a disability as defined in applicable California law, including Cal. Gov’t

16 Code § 12926, Cal. Civ. Code § 1761(g), and Cal. Bus. & Prof. Code § 17206.1(b)(2).

17

13. Defendant Metro is a political subdivision of the State of California. It was

18 created pursuant to Cal. Pub. Util. Code § 98000, et seq., and is a “public entity” within the

19 meaning of 42 U.S.C. § 12131(1) and 28 C.F.R. Part 35. Metro receives federal financial

20 assistance and has its principal place of business in Santa Cruz, California. Metro operates a

21 “fixed route system” within the meaning of 42 U.S.C. § 12141(3). Metro is engaged as a

22 common carrier in the business of transporting members of the general public.

23

24

STATEMENT OF FACTS

25

14. Plaintiffs Lane and Loya rely upon Metro’s public transportation system as their

26 FIRST AMENDED COMPLAINT

C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page5 of 21

1 principal means of transportation. Neither Plaintiff can drive an automobile because of their

2 respective disabilities, and one of the primary ways in which they have gained independence is

3 through their ability to use the public transportation system.

4

15. Plaintiffs Lane and Loya have encountered discrimination on the basis of

5 disability throughout Metro’s public transportation system, including but not limited to the

6 violations alleged in this Complaint.

7

16. Because of their disabilities, Plaintiffs need operators to announce bus stops. In

8 addition, when they are waiting at bus stops serving more than one route, Ms. Lane and Mr.

9 Loya need bus operators to announce which route they are driving.

10

17. Federal regulations require Metro to announce bus stops at transfer points with

11 other fixed routes, other major intersections and destination points, and intervals along a route

12 sufficient to permit individuals with visual impairments or other disabilities to be oriented to

13 their location.

14

18. Where buses for more than one route serve the same stop, federal regulations

15 require Metro to provide a means by which an individual with a visual impairment or other

16 disability can identify the proper vehicle to enter or be identified to the vehicle operator as a

17 person seeking a ride on a particular route.

18

19. The requirements of federal law, including without limitation the requirements

19 set forth in Paragraphs 17 and 18, are mandatory.

20

20. Plaintiffs Lane and Loya have ridden numerous buses on which operators did

21 not properly announce stops, including, but not limited to the following incidents:

22

a. On or about May 14, 2002, Ms. Lane boarded a Route 71 bus at Metro

23

Station at approximately 8:45 a.m. The operator did not announce any

24

stops.

25

b. On or about April 29, 2002, Ms. Lane boarded a Route 69 bus at Metro

26 FIRST AMENDED COMPLAINT

C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page6 of 21

1

Station at approximately 11:45 a.m. The operator failed to announce

2

many stops.

3

c. On or about April 9, 2002, Ms. Lane was riding a Route 71 bus, and the

4

operator failed to announce the stop she needed to get off at (Water and

5

Poplar). As a result, she missed her stop and had to get off at the next

6

bus stop.

7

d. On or about March 13, 2002, Ms. Lane took a Route 69 bus from

8

Capitola Mall to one stop beyond the Santa Cruz Senior Center. The

9

bus operator did not announce any stops.

10

e. On or about February 26, 2002, Ms. Lane took the Route 71 from Metro

11

Transit Center to Cabrillo Community College, and later took the Route

12

70 from Cabrillo Community College back to the Metro Transit Center.

13

On both trips, the bus operators failed to call out any stops.

14

f. On or about February 11, 2002, Ms. Lane was a passenger on a Route

15

69W bus. She boarded the bus at the Metro Transit Center and traveled

16

to Cabrillo Community College. The bus operator did not announce any

17

stops.

18

g. Ms. Lane traveled on a Route 69W inbound bus from Cabrillo

19

Community College to the Metro Transit Center on or about February 6,

20

2002. The bus operator failed to announce any stops.

21

h. On or about January 17, 2002, Ms. Lane was a passenger on a Route 7

22

outbound bus, traveling from the Metro Transit Center to the stop at

23

Second and Main Streets. The bus operator failed to announce any

24

stops.

25

i. Ms. Lane was a passenger on a Route 7 outbound bus from the Metro

26 FIRST AMENDED COMPLAINT

C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page7 of 21

1

Transit Center to the stop at Second and Main Streets on or about

2

January 6, 2002, and the bus operator did not announce any stops.

3

j. On or about December 6, 2001, a bus operator failed to announce any

4

stops on a Route 7 outbound bus on which Ms. Lane was riding. She

5

had boarded the bus at the Metro Transit Center and got off the bus at

6

the stop at Second and Main Streets.

7

k. Ms. Lane traveled on a Route 66 outbound bus from the Metro Transit

8

Center to the River Street Extension stop on or about December 4, 2001,

9

and the bus operator did not announce any stops.

10

l. On or about November 28, 2001, Ms. Lane was a passenger on a Route

11

54 inbound bus from Cabrillo Community College to the stop before the

12

Capitola mall, and the bus operator announced no stops.

13

m. Ms. Lane was a passenger on a Route 65 inbound bus from the Capitola

14

Mall to the Metro Transit Center on or about October 23, 2001. The bus

15

operator failed to announce any stops.

16

n. On or about October 23, 2001, Mr. Loya was traveling on a Route 71

17

bus from the Metro Transit Center heading east toward the Soquel

18

Avenue and Frederick bus stop, waiting to hear that stop announced.

19

The bus operator did not announce that stop or others that Mr. Loya had

20

heard other operators announce on that route. The operator stopped the

21

bus at a stop that Mr. Loya thought might be near his destination,

22

although the operator did not announce the stop. Mr. Loya asked a

23

passenger sitting near him the identity of the stop. Upon hearing her

24

response, he realized that he had reached his destination, and he got off

25

the bus.

26 FIRST AMENDED COMPLAINT

C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page8 of 21

1

o. Ms. Lane traveled on a Route 7 outbound bus from the Metro Transit

2

Center to the stop at Second and Main Streets on or about September 28,

3

2001, and the bus operator did not announce any stops.

4

p. On or about September 27, 2001, Ms. Lane rode a Route 69A inbound

5

bus from the Capitola Mall to the Metro Transit Center, and the bus

6

operator failed to announce any stops.

7

q. Ms. Lane was a passenger on a Route 67 inbound bus from the Capitola

8

Mall to the Metro Transit Center on or about September 26, 2001, and

9

the bus operator did not announce any stops.

10

r. On or about September 22, 2001, Ms. Lane was traveling on a Route 65

11

outbound bus from the Metro Transit Center, and the bus operator failed

12

to announce any stops.

13

s. A Metro bus operator failed to announce any stops on or about

14

September 16, 2001, on a Route 7 outbound bus in which Ms. Lane was

15

a passenger from the Metro Transit Center to the stop at Second and

16

Main Streets.

17

t. On or about August 21, 2001, Ms. Lane was traveling on a Route 67

18

outbound bus from the Metro Transit Center to the Capitola Mall. The

19

bus operator failed to announce any stops.

20

u. Ms. Lane traveled on a Route 7 outbound bus from the Metro Transit

21

Center to the stop at Second and Main Streets on or about August 16,

22

2001, and the bus operator did not announce any stops.

23

v. Ms. Lane was a passenger on a Route 69L outbound bus from the Metro

24

Transit Center to the Capitola Mall on or about June 11, 2001. The bus

25

operator failed to announce any stops.

26 FIRST AMENDED COMPLAINT

C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page9 of 21

1

w. Mr. Loya took classes at Cabrillo Community College in 1998, 1999,

2

2000, and 2001, and he used Metro to travel to and from Cabrillo

3

Community College. Bus operators often did not announce the Cabrillo

4

Community College stop.

5

x. Even when Mr. Loya asked operators to announce the Cabrillo

6

Community College stop, operators frequently failed to do so.

7

y. For example, in approximately February of 2001, Mr. Loya was

8

attempting to travel on Metro to Cabrillo Community College. He was

9

traveling on the Route 71 bus from the Metro Transit Center, and the

10

bus operator failed to announce the bus stop for Mr. Loya. As a result,

11

he had to travel past Cabrillo Community College to Watsonville,

12

California and wait there until the bus back to Cabrillo Community

13

College could leave for the college from Watsonville. He was more

14

than 45 minutes late for class.

15

z. On or about August 16, 2000, Mr. Loya boarded a Metro bus at the

16

Metro Transit Center and told the bus operator that he needed to get off

17

at the Crown-Merril stop. The bus operator failed to announce any

18

stops, resulting in Mr. Loya being late for his performance on a radio

19

station. When Mr. Loya noted that he had missed his stop, the bus

20

operator yelled at Mr. Loya, stating that it was not the bus operator’s

21

responsibility to call out stops.

22

aa. On or about April 26, 2000, Ms. Lane rode on a Route 67 outbound bus

23

from the Metro Transit Center to the Jade Street stop in Capitola, and

24

the bus operator failed to announce any stops.

25

bb. Ms. Lane was a passenger on or about April 24, 2000, on a Route 67

26 FIRST AMENDED COMPLAINT

C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page10 of 21

1

outbound bus from the Metro Transit Center to the Begonia Plaza stop,

2

and the bus operator did not announce any stops.

3

cc. Plaintiffs Lane and Loya have ridden many other buses on which

4

operators did not properly announce stops.

5

dd. On numerous occasions, bus operators have failed to announce stops in

6

a volume and/or manner that could be understood by passengers.

7

21. Metro has long been aware of the failure of its operators to announce stops. For

8 example:

9

a. On or about September 15, 1989, the Metro Board of Directors received

10

a document prepared by the Metro Accessible Services Task Force, now

11

known as Metro Accessible Services Transit Forum (“MASTF”) -- a

12

committee officially approved by the Metro Board as an advisory group

13

on issues relating to persons with disabilities -- stating that operators

14

should “announce all stops on their routes.”

15

b. According to the minutes of a meeting between MASTF and Metro in

16

February 1995, MASTF informed Metro’s General Manager that

17

operators often were not calling out stops and that this was a serious

18

problem that needed to be addressed.

19

c. According to a document entitled “Report for Santa Cruz Metropolitan

20

Transit District (SCMTD)” prepared in January 1999 by a consultant

21

hired by Metro to evaluate Metro’s compliance with the ADA, only two

22

operators called out stops, and neither of those two operators used the

23

public address system.

24

22. Bus operators have repeatedly failed to announce their route numbers at stops

25 serving more than one route. For example:

26 FIRST AMENDED COMPLAINT C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page11 of 21

1

a. On or about May 9, 2002, Mr. Loya was at the Soquel Avenue and Front

2

Street bus stop waiting for the Route 71 bus. A Route 65 bus pulled up

3

at approximately 1:45 p.m. and let someone off the bus. The operator

4

did not announce the route. Mr. Loya had to ask another passenger who

5

was waiting for the bus which bus had pulled up.

6

b. On or about January 6, 2002, a bus operator failed to announce the route

7

number of the Route 66 bus he was driving. Although the bus operator

8

had ample time to announce the route number of the bus to enable Mr.

9

Loya to know if it was the bus for which he had been waiting, he had to

10

ask the operator to identify the route number. At the time of this

11

incident, Mr. Loya was on Front Street at the Soquel Avenue and Front

12

Street bus stop.

13

c. A bus operator, on or about December 23, 2001, failed to announce the

14

route number of the bus the operator was driving. Mr. Loya, who had

15

been waiting for the Route 71 bus at the Metro Transit Center, heard the

16

bus operator start up the bus. As Mr. Loya started walking toward it, the

17

bus pulled away, prompting Mr. Loya to yell for the bus operator to wait

18

for him. Shortly after the bus operator drove away, another bus

19

operator, who was driving a Route 69 bus, told Mr. Loya that the bus

20

operator who had pulled away was driving a Route 71 bus. The operator

21

of the Route 69 bus also said that he had talked to other operators about

22

the incident and that they planned to talk about it with the Route 71 bus

23

operator, who had left without allowing Mr. Loya aboard.

24

d. On or about December 4, 2001, a bus operator failed to announce the

25

route number of the Route 71 bus that he was driving, despite having

26 FIRST AMENDED COMPLAINT C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page12 of 21

1

more than 10 seconds to do so before Mr. Loya reached the door of the

2

bus to ask the operator the route the bus was traveling. Mr. Loya was on

3

Front Street at the Soquel Avenue and Front Street bus stop at the time

4

of this incident.

5

e. Mr. Loya missed the Route 70 bus he was trying to ride on or about

6

September 19, 2000, because the bus operator failed to call out the route

7

number of the bus he or she was driving. Mr. Loya was waiting in Lane

8

4 of the Metro Transit Center at the time.

9

f. On or about September 18, 2000, the bus operator of a Route 70 bus that

10

Mr. Loya was trying to ride failed to call out the route number of the

11

bus. When Mr. Loya, who was at the Metro Transit Center at the time,

12

heard the bus being started a minute earlier than it was scheduled to

13

depart, he ran to try to catch it. In the process, he ran into a concrete,

14

support wall. After the bus departed, Mr. Loya asked another passenger

15

the identity of the bus that had departed, and he learned that it was the

16

bus that he was trying to ride.

17

g. On numerous other occasions, bus operators have failed to announce

18

their route numbers at stops serving more than one route.

19

23. In addition to the specific examples set forth herein, Defendant has otherwise

20 denied Plaintiffs the benefits of its services, programs, and activities.

21

24. Plaintiff Lane has met with Metro officials to attempt to address some of the

22 deficiencies in Defendant’s system of public transportation, to no avail.

23

25. In addition, Plaintiffs have registered complaints, both verbally and in writing.

24 with Defendant concerning deficiencies in Defendant’s system.

25

26. Defendant has not adequately responded to Plaintiffs’ complaints and continues

26 FIRST AMENDED COMPLAINT C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page13 of 21

1 to violate the ADA, the Rehabilitation Act, and California statutes.

2

27. Upon information and belief, many of the accessibility deficiencies in

3 Defendant’s public transportation system are due to Defendant’s failure to train, monitor,

4 reward and/or discipline bus operators properly.

5

28. In engaging in the conduct described above, Defendant has either intentionally

6 discriminated against Plaintiffs or been deliberately indifferent to the strong likelihood that

7 pursuit of its policies would result in violations of federally protected rights.

8

29. Plaintiffs Lane and Loya have been and continue to be injured by the

9 inaccessibility of Metro’s public transportation system, including without limitation those

10 injuries set forth above.

11

30. As a result of the accessibility barriers to Metro’s public transportation system,

12 Plaintiffs have suffered injuries, including without limitation emotional distress, apprehension

13 of danger, embarrassment, anguish, pain, exhaustion, inconvenience, delay, and the inability to

14 travel to appointments in a timely manner.

15

31. Plaintiffs Lane and Loya intend to -- and are ready, willing and able to -- utilize

16 Defendant’s services, programs, and activities when the discriminatory barriers are removed or

17 cured.

18

32. On April 19, 2002, Deborah Lane attended a public meeting of the Board of

19 Directors of Santa Cruz Metro.

20

33. At the meeting, a member of the Santa Cruz Metro Board made comments

21 intended to intimidate Ms. Lane, including that as a result of her lawsuit, Santa Cruz Metro

22 may eliminate the position held by John Daugherty.

23

34. Ms. Lane has a close personal relationship with Mr. Daugherty, a fact of which

24 Santa Cruz Metro was aware.

25

26 FIRST AMENDED COMPLAINT C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page14 of 21

1

FIRST CLAIM FOR RELIEF

(Americans with Disabilities Act)

2

35. Plaintiffs reallege and incorporate by reference the remainder of the allegations

3

set forth in this Complaint as if fully set forth herein.

4

36. Title II of the ADA provides that no qualified individual with a disability shall,

5

by reason of such disability, be excluded from participation in or be denied the benefits of the

6

services, programs, or activities of a public entity, or be subjected to discrimination by any

7

such entity. 42 U.S.C. § 12132, et seq.; 28 C.F.R. pt. 35; 49 C.F.R. pts. 37 and 38. In addition,

8

the ADA makes it unlawful to “coerce, intimidate, threaten, or interfere with any individual . . .

9

on account of his or her having exercised . . . any right granted or protected by [the ADA].” 42

10

U.S.C. § 12203(b).

11

37. Plaintiffs are qualified individuals with disabilities within the meaning of 42

12

U.S.C. § 12131(2).

13

38. Defendant is a public entity within the meaning of 42 U.S.C. § 12131(1).

14

39. Defendant has violated the ADA by denying Plaintiffs the benefits of its

15

services, programs, and activities, as more fully set forth above. Defendant has also violated

16

the ADA by coercing, intimidating, threatening, and/or interfering with Ms. Lane on account

17

of her exercise of her rights under the ADA.

18

40. Defendant’s violations of the ADA have harmed and will continue to harm

19

Plaintiffs in the future.

20

41. Pursuant to the remedies, procedures, and rights set forth in 42 U.S.C. § 12133,

21

Plaintiffs pray for judgment as set forth below.

22

23

24

25

26 FIRST AMENDED COMPLAINT C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page15 of 21

1

SECOND CLAIM FOR RELIEF

2

(Section 504 of the Rehabilitation Act)

3

42. Plaintiffs reallege and incorporate by reference the remainder of the allegations

4 set forth in this Complaint as if fully set forth herein.

5

43. Section 504 of the Rehabilitation Act prohibits recipients of federal funding

6 from denying to persons with disabilities, on the basis of disability, the benefits provided by

7 the recipient, or from subjecting persons with disabilities to discrimination. 29 U.S.C. § 794;

8 49 C.F.R. pt. 27.

9

44. Defendant receives federal funding.

10

45. Defendant has violated Section 504 of the Rehabilitation Act by denying

11 Plaintiffs Lane and Loya its benefits, including access to its public transportation system, as

12 more fully set forth above.

13

46. Defendant’s violations of Section 504 of the Rehabilitation Act have harmed

14 and will continue to harm Plaintiffs in the future.

15

47. Pursuant to the remedies, procedures, and rights set forth in 29 U.S.C. § 794a,

16 Plaintiffs pray for judgment as set forth below.

17

18

THIRD CLAIM FOR RELIEF

(Unruh Civil Rights Act)

19

48. Plaintiffs reallege and incorporate by reference the remainder of the allegations

20

set forth in this Complaint as if fully set forth herein.

21

49. Defendant operates a business establishment within the jurisdiction of the State

22

of California and, as such, is obligated to comply with the provisions of the California Unruh

23

Civil Rights Act, Cal. Civ. Code, § 51, et seq. (“the Unruh Act”).

24

50. The conduct alleged herein violates the Unruh Act, including Cal. Civ. Code,

25

26 FIRST AMENDED COMPLAINT C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page16 of 21

1 § 51, et seq.

2

51. The Unruh Act guarantees, inter alia, that persons with disabilities are entitled

3 to full and equal accommodations, advantages, facilities, privileges, or services in all business

4 establishments of every kind whatsoever within the jurisdiction of the State of California. The

5 Unruh Act also provides that a violation of the ADA is a violation of the Unruh Act.

6

52. Defendant has violated the Unruh Act by, inter alia, denying Plaintiffs, as

7 persons with disabilities, full and equal accommodations, advantages, facilities, privileges, or

8 services offered by Defendant. Defendant has also violated the Unruh Act by violating the

9 ADA, as set forth above.

10

53. Defendant has violated the Unruh Act by, inter alia, failing to operate its

11 services on a nondiscriminatory basis; failing to ensure that persons with disabilities have

12 nondiscriminatory, safe access to public transportation services; and failing to ensure that

13 personnel providing transportation services are trained to proficiency regarding their

14 obligations to carry persons with disabilities, pursuant to California law.

15

54. Pursuant to the remedies, procedures, and rights set forth in Cal. Civ. Code §

16 52, Plaintiffs pray for judgment (including actual, but not treble, damages) as set forth below.

17

18

FOURTH CLAIM FOR RELIEF

(California Public Accommodations Law)

19

55. Plaintiffs reallege and incorporate by reference the remainder of the allegations

20

set forth in this Complaint as if fully set forth herein.

21

56. Defendant operates transportation made available to the general public within

22

the jurisdiction of the State of California and, as such, is obligated to comply with the

23

provisions of Cal. Civ. Code, § 54, et seq. (“the Public Accommodations Law”).

24

57. The conduct alleged herein violates the Public Accommodations Law, including

25

26 FIRST AMENDED COMPLAINT C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page17 of 21

1 Cal. Civ. Code, § 54 et seq.

2

58. The Public Accommodations Law guarantees, inter alia, that persons with

3 disabilities are entitled to full and equal access, as other members of the general public, to

4 accommodations, advantages, facilities, and privileges of modes of transportation within the

5 jurisdiction of the State of California.

6

59. Defendant has violated the Public Accommodations Law by, inter alia, denying

7 persons with disabilities full and equal access, as other members of the general public, to

8 accommodations, advantages, facilities, and privileges offered by Defendant.

9

60. The conduct previously alleged violates the Public Accommodations Law,

10 including Cal. Civ. Code § 54.1(a).

11

61. Defendant has violated the Public Accommodations Law by, inter alia, failing

12 to ensure that personnel providing transportation services are trained to proficiency regarding

13 their obligations to carry passengers with disabilities, pursuant to California law.

14

62. Pursuant to the remedies, procedures, and rights set forth in Cal. Civ. Code

15 § 54.3, Plaintiffs pray for judgment as set forth below.

16

17

FIFTH CLAIM FOR RELIEF

(Discrimination by State-Funded Program or Activity)

18

63. Plaintiffs reallege and incorporate by reference the remainder of the allegations

19

set forth in this Complaint as if fully set forth herein.

20

64. Cal. Gov’t Code § 11135(a) prohibits unlawful discrimination and the denial of

21

full and equal access, on the basis of disability, to any program or activity that is funded

22

directly by the State of California, or receives any financial assistance from the State of

23

California.

24

65. Metro conducts, operates, or administers a program or activity, within the

25

26 FIRST AMENDED COMPLAINT C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page18 of 21

1 meaning of Cal. Gov’t Code § 11135(a).

2

66. Upon information and belief, Metro is funded directly by or receives financial

3 assistance from the State of California.

4

67. The conduct alleged herein violates Cal. Gov’t Code § 11135(a), as Metro has,

5 on the basis of disability, unlawfully discriminated against Plaintiffs and denied them full and

6 equal access to its program or activity.

7

68. Cal. Gov’t Code § 11135(b) provides, with respect to discrimination on the

8 basis of disability, programs and activities subject to Cal. Gov’t Code § 11135(a) shall meet

9 the protections and prohibitions contained in Section 202 of the ADA, 42 U.S.C. § 12132, and

10 the federal rules and regulations that have been adopted to implement it.

11

69. Cal. Gov’t Code § 11135(b) also provides that, if the laws of the State of

12 California prescribe stronger protections and prohibitions than the ADA, the programs and

13 activities subject to Cal. Gov’t Code § 11135(a) shall be subject to the stronger protections and

14 prohibitions.

15

70. The conduct of Defendant violates Cal. Gov’t Code § 11135(b) by reason of

16 Defendant’s failure to comply with its legal obligations under federal disability civil rights

17 statutes and state disability civil rights statutes as alleged herein in Plaintiffs’ First, Second,

18 Third, and Fourth Claims for Relief above, and by Defendant’s failure to comply with

19 California public policy favoring the protection of the civil rights of people with disabilities.

20

71. Pursuant to the remedies, procedures, and rights set forth in Cal. Gov’t. Code

21 § 11139, Plaintiffs pray for equitable relief for Defendant’s violations of § 11135.,

22

23

SIXTH CLAIM FOR RELIEF

(Unfair Competition)

24

72. Plaintiffs reallege and incorporate by reference the remainder of the allegations

25

26 FIRST AMENDED COMPLAINT C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page19 of 21

1 set forth in this Complaint as if fully set forth herein.

2

73. Defendant engages in business practices, offers transportation services for sale,

3 and advertises its transportation services within the jurisdiction of the State of California. As

4 such, Defendant is obligated to comply with the provisions of the Cal. Bus. & Prof. Code

5 § 17200, et seq. (the “Unfair Competition Statute”).

6

74. The conduct alleged herein violates the Unfair Competition Statute,

7 including Cal. Bus. & Prof. Code § 17200.

8

75. The Unfair Competition Statute prohibits, inter alia, unlawful, unfair, or

9 fraudulent business acts or practices and unfair, deceptive, untrue, or misleading advertising by

10 any person, firm, corporation, or association within the jurisdiction of the State of California.

11

76. The conduct of Defendant violates this statute, inter alia, in that Defendant’s

12 services are not accessible to individuals with disabilities by reason of Defendant’s failure to

13 comply with its legal obligations under federal disability civil rights statutes and state

14 disability civil rights and consumer protection statutes as alleged herein in Plaintiffs’ First,

15 Second, Third, Fourth, and Fifth Claims for Relief above, and by Defendant’s failure to

16 comply with California public policy favoring the protection of the civil rights of people with

17 disabilities.

18

77. Pursuant to the remedies, procedures, and rights set forth in Cal. Bus. &

19 Prof. Code § 17203, Plaintiffs pray for judgment as set forth below.

20

21

RELIEF

22

WHEREFORE, Plaintiffs respectfully request that this Court:

23

1. That this Court assume jurisdiction.

24

2. That this Court declare Defendant to be in violation of Title II of the Americans

25 with Disabilities Act, 42 U.S.C. § 12131, et seq., the Rehabilitation Act of 1973, 29 U.S.C.

26 FIRST AMENDED COMPLAINT C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page20 of 21

1 § 701, et seq., the Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq., the Public

2 Accommodations Law, Cal. Civ. Code § 54, et seq., California Government Code § 11135, et

3 seq., and the Unfair Competition Statute, Cal. Bus. & Prof. Code § 17200, et seq.

4

3. That this Court issue an injunction ordering Defendant to comply with the

5 statutes set forth herein.

6

4. That this Court award actual, compensatory, and statutory damages to Plaintiffs

7 for violations of their civil rights under state and federal law. In addition, Plaintiffs seek

8 punitive damages under federal law.

9

5. That this Court award Plaintiffs’ reasonable attorneys’ fees and costs pursuant

10 to federal and California law.

11

6. That this Court award such additional or alternative relief as may be just, proper

12 and equitable.

13

7.

14

RESPECTFULLY SUBMITTED,

15

FOX & ROBERTSON, P.C.

16

By: s/Timothy P. Fox

17

Timothy P. Fox

18

19

DISABILITY RIGHTS EDUCATION AND

DEFENSE FUND, INC.

20

21

Linda D. Kilb

22

Attorneys for Plaintiffs

23

24 Deborah Lane

Joshua Loya

25 June 13, 2002

26 FIRST AMENDED COMPLAINT C 02-01808 RMW RS ADR

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Case5:02-cv-01808-RMW Document8 Filed06/13/02 Page21 of 21

DEMAND FOR JURY TRIAL

Plaintiffs demand a jury on all issues which can be heard by a jury.
1 Dated: June 13, 2002
2 FOX & ROBERTSON, P.C.
3

4

By: s/Timothy P. Fox

5

Timothy P. Fox

6

7

DISABILITY RIGHTS EDUCATION AND

DEFENSE FUND, INC.

8

9

Linda D. Kilb

10

Attorneys for Plaintiffs

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 FIRST AMENDED COMPLAINT C 02-01808 RMW RS ADR

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 Case5:02-cv-01808-RMW Document10 Filed07/03/02 Page1 of 5

1 D. Douglas Shureen, SBN 124613 RIVKIN RADLER LLP
2 1330 North Dutton Avenue, Suite 200 Santa Rosa, CA 95401-4646
3 (707) 525-5400 (707) 576-7955 (Fax)
4 Attorneys for Defendant
5 SANTA CRUZ METROPOLITAN TRANSIT DISTRICT

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE DIVISION)

10 DEBORAH A. LANE and JOSHUA E. LOYA, ) CASE NO. C 02 01808 RMW RS ADR

11

Plaintiffs,

) ) DEFENDANT SANTA CRUZ

12

v.

) METROPOLITAN TRANSIT ) DISTRICT'S MOTION TO DISMISS

13 SANTA CRUZ METROPOLITAN TRANSIT

) PLAINTIFFS' 6TH CLAIM FOR ) RELIEF FOR FAILURE TO STATE A

14

DISTRICT, a political subdivision of the State of ) CLAIM UPON WHICH RELIEF MAY

California,

) BE GRANTED [F.R.C.P. §12(b)(6)]

15

Defendant.

) ) Date:

October 18, 2002

16

) Time:

9:00 a.m.

) Courtroom: 6, 4th Floor

17

) Judge: )

Hon. Ronald M. Whyte

18

) )

19

Action Filed: April 16, 2002 Trial Date: Not Set

20

I. NOTICE

21

On October 18, 2002 at 9:00 a.m., or as soon thereafter as this motion may be

22 heard, before the Honorable Ronald M. Whyte, defendant Santa Cruz Metropolitan Transit

23 District ("Metro") will, and hereby does, move for an order dismissing Plaintiffs' Debra A.

24 Lane and Joshua E. Loya's (“Plaintiffs”) sixth claim for relief brought under California

25 Business & Professions Code § 17200, et seq pursuant to the provisions of section

26 12(b)(6) of the Federal Rules of Civil Procedure.

27 / / /

28 / / / 1

DEFENDANT’S MOTION TO DISMISS PLAINTIFFS' 6TH CLAIM FOR RELIEF Case No. C 02-01808 RMW RS

Case5:02-cv-01808-RMW Document10 Filed07/03/02 Page2 of 5

1

This motion is based on this Notice of Motion, the accompanying Memorandum of

2 Points & Authorities, and any such other and further evidence as may be presented at the

3 hearing on this matter.

4

II. RELIEF SOUGHT

5

Metro seeks an Order dismissing Plaintiffs’ sixth claim for relief, which alleges that

6 Metro violated the Unfair Competition Act, California Business & Professions Code §

7 17200, et seq.

8

III. POINTS AND AUTHORITIES IN SUPPORT OF THE MOTION

9

A. SUMMARY OF FACTS AND ARGUMENT

10

Defendant Santa Cruz Metropolitan Transit District ("Metro"), a political subdivision

11 of the State of California, brings this motion to dismiss plaintiffs' sixth claim for relief

12 brought under California Business & Professions Code § 17200, et seq. (hereafter the

13 "Unfair Competition Act") because Metro, a public entity, is not a "person" who may be

14 held liable under the statute.

15

Plaintiffs Deborah A. Lane and Joshua E. Loya bring this action against Metro

16 under a variety of disability-related federal and state statutes, including Title II of the

17 Americans with Disabilities Act, 42 U.S.C. § 12131, et seq., the Rehabilitation Act of 1973,

18 29 U.S.C. § 701, et seq., the Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq., the

19 Public Accommodations Law, Cal. Civ. Code § 54, et seq., and California Government

20 Code § 11135, et seq., in addition to the Unfair Competition Act. Plaintiffs characterize

21 this suit as a "civil rights Complaint" being "filed by individuals with disabilities who have

22 been, are being or will be denied nondiscriminatory, safe access to bus service operated

23 by [Metro]." (First Amended Complaint ("FAC"), ¶ 1.) Plaintiffs allege that Metro is a

24 political division of the State of California created pursuant to California Public Utility Code

25 Section 98000, et seq. and is a "public entity" within the meaning of 42 U.S.C. § 12131(1)

26 and 28 C.F.R. Part 35. (FAC, ¶ 13.) Plaintiffs further allege that Metro operates a "fixed

27 route system" within the meaning of 42 U.S.C. § 12141(3) and that Metro is engaged as a

28 "common carrier in the business of transporting members of the general public. Id. 2

DEFENDANT’S MOTION TO DISMISS PLAINTIFFS' 6TH CLAIM FOR RELIEF Case No. C 02-01808 RMW RS

Case5:02-cv-01808-RMW Document10 Filed07/03/02 Page3 of 5

1

The gravamen of the complaint is that Metro does not comply with a federal

2 regulation which purportedly requires Metro to ". . . announce bus stops at transfer points

3 with other fixed routes, other major intersections and destination points, and intervals

4 along a route sufficient to permit individuals with visual impairments or other disabilities to

5 be oriented to their location." (FAC, ¶ 17.)

6

As a result of this asserted failure to comply with federal regulations, plaintiffs

7 contend that they have been injured by the ". . . inaccessibility of Metro's public

8 transportation system, . . . " (FAC, ¶ 29.) They contend that they have suffered ". . .

9 injuries, including without limitation emotional distress, apprehension of danger,

10 embarrassment, anguish, pain, exhaustion, inconvenience, delay, and the inability to

11 travel to appointments in a timely manner." (FAC, ¶ 30.)

12

Metro is not subject to suit under the Unfair Competition Act. Metro is a "public

13 entity," and does not fall within the definition of a "person" who may be liable under the

14 Act. Thus, Metro's statutory governmental immunity protects Metro from suits under the

15 Unfair Competition Act and plaintiffs' sixth claim for relief should be dismissed.

16

B. ARGUMENT

17

The Unfair Competition Act prohibits any unlawful, unfair, or fraudulent business

18 practice or act. Cal. Bus. & Prof. Code § 17200, et seq. Unfair competition is defined as

19 including ". . . any unlawful, unfair or fraudulent business act or practice and unfair,

20 deceptive, untrue and/or misleading advertising and any act prohibited by Chapter I

21 (commencing with Section 17500 of Part 3 of Division 7 of the Bus. & Prof. Code)." Id.

22 the Unfair Competition Act can be used to obtain an injunction against "[a]ny person who

23 engages, has engaged, or proposes to engage in unfair competition. . . . " Bus. & Prof.

24 Code § 17203. Bus. & Prof. Code § 17201 defines the term "person" as ". . . natural

25 persons, corporations, firms, partnerships, joint stock companies, associations and other

26 organizations of persons."

27

Government Code §815 states that "[e]xcept as otherwise provided by statute: (a)

28 A public entity is not liable for an injury, whether such injury arises out of an act or 3

DEFENDANT’S MOTION TO DISMISS PLAINTIFFS' 6TH CLAIM FOR RELIEF Case No. C 02-01808 RMW RS

Case5:02-cv-01808-RMW Document10 Filed07/03/02 Page4 of 5

1 omission of the public entity or a public employee or any other person." Government

2 Code §815 is a legislative declaration that governmental immunity from suit is the rule and

3 liability the exception. Trinkle v. California State Lottery, 71 Cal.App.4th 1198 [84

4 Cal.Rptr. 2d 496] (1999). "Thus, in the absence of some constitutional requirement,

5 public entities may be liable only if a statute declares them to be liable." Harshbarger v.

6 City of Colton 197 Cal.App.3d 1335, 1339 [243 Cal.Rptr. 463] (1988). Here, the Unfair

7 Competition Act does not list public entities as among the 'persons' who may be liable

8 under the statute. Thus, the general rule of governmental immunity applies with respect

9 to the Unfair Competition Act.

10

This is the view of at least four California appellate courts. In Trinkle, supra, 71

11 Cal.App.4th 1198, the Third Appellate District held in 1999 that the California State Lottery

12 was not subject to suit under the Unfair Competition Act for allegedly operating illegal

13 games of Keno and Scratcher. The court noted that "The state is neither a natural

14 person, partnership, corporation, association, nor other 'organization of persons.’ It is a

15 sovereign entity representing the people." Id. at p. 1203. In response to the plaintiffs’

16 claim that the California State Lottery operates in the fashion of a private business and

17 directly competes with plaintiffs, the court held that " . . . there is no statute in the UCA

18 which overcomes the general rule of governmental tort immunity. If there is to be an

19 exception in this area of regulation, it is the role of the Legislature to carve one out." Id. at

20 p. 1204. Accord, Janis v. California State Lottery Commission, 68 Cal.App.4th 824 [80

21 Cal.Rptr.2d 549] (1998).

22

In California Medical Association, Inc. v. Regents of the University of California, et.

23 al. 79 Cal.App. 4th 542 [94 Cal.Rptr.2d 194](2000), the Second Appellate District held that

24 the Regents of the University of California could not be liable under the Unfair Competition

25 Act in a suit brought by anesthesiologists who alleged that they had been illegally

26 restricted from practicing at the UCLA Medical Center. Citing Trinkle v. California State

27 Lottery, supra, 71 Cal.App.4th 1198 and Janis v. California State Lottery, supra, 68

28 Cal.App.4th 824, among other cases, the court held that the University of California is a 4

DEFENDANT’S MOTION TO DISMISS PLAINTIFFS' 6TH CLAIM FOR RELIEF Case No. C 02-01808 RMW RS

Case5:02-cv-01808-RMW Document10 Filed07/03/02 Page5 of 5

1 "public entity," not a "person" within the meaning of the Unfair Practices Act, and therefore

2 not amenable to suit under the Act. California Medical Association v. Regents, supra, p.

3 551. The court also noted that UCLA’s involvement in commercial activity did not affect

4 its conclusion that the Regents were not liable under the Unfair Competition Act. Id.

5 footnote 14. Accord, Community Memorial Hospital of San Buena Ventura et al., v.

6 County of Ventura, 50 Cal.App.4th 199 [56 Cal.Rptr.732](1996).

7

C. CONCLUSION

8

Under unequivocal California law, as established by at least four California

9 appellate court decisions, public entities are not subject to suit under the Unfair

10 Competition Act. Accordingly, this Court should grant Metro’s Motion to Dismiss the sixth

11 claim for relief.

12

13 DATED: July 3, 2002

Respectfully submitted,

14

RIVKIN RADLER LLP

15 16 17 18 F:\DOCSOPEN\RR-SR\SHUREEN\#156010

By: /s D. Douglas Shureen D. Douglas Shureen Attorneys for Defendant SANTA CRUZ METROPOLITAN TRANSIT DISTRICT

19

20

21

22

23

24

25

26

27

28 5

DEFENDANT’S MOTION TO DISMISS PLAINTIFFS' 6TH CLAIM FOR RELIEF Case No. C 02-01808 RMW RS

 
 Case5:02-cv-01808-RMW Document17 Filed09/26/02 Page1 of 9

1 FOX & ROBERTSON, P.C. Timothy P. Fox, Cal. Bar No. 157750
2 910 - 16th Street Suite 610
3 Denver, Colorado 80202 Tel: (303) 595-9700
4 Fax: (303) 595-9705

5 DISABILITY RIGHTS EDUCATION & DEFENSE FUND, INC. (DREDF) Linda D. Kilb, Cal. Bar No. 136101
6 2212 Sixth Street Berkeley, California 94710
7 Tel: (510) 644-2555 Fax: (510) 841-8645
8 Attorneys for Plaintiffs DEBORAH A. LANE and JOSHUA E. LOYA
9

10

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

DEBORAH A. LANE

)

Case No. 02-01808-RMW HRL

12

)

and

)

PLAINTIFFS’ MEMORANDUM IN

13

)

OPPOSITION TO DEFENDANT

JOSHUA E. LOYA,

)

SANTA CRUZ METROPOLITAN

14

)

TRANSIT DISTRICT’S MOTION

Plaintiffs,

)

TO DISMISS PLAINTIFFS’ 6TH

15

)

CLAIM FOR RELIEF FOR FAILURE

v.

)

TO STATE A CLAIM UPON WHICH

16

)

RELIEF MAY BE GRANTED

SANTA CRUZ METROPOLITAN

)

17 TRANSIT DISTRICT,

)

a political subdivision of the

)

18 State of California,

)

Date:

October 18, 2002

)

Time:

9:00 a.m.

19

Defendant.

)

20 Plaintiffs Deborah A. Lane and Joshua E. Loya hereby file their Brief in Opposition to
21 Defendant Santa Cruz Metropolitan Transit District’s Motion to Dismiss Plaintiffs’ 6th Claim
22 for Relief for Failure to State a Claim Upon Which Relief May Be Granted (“Mot. to
23 Dismiss”).
24

25
Plaintiffs’ Memorandum in Opposition to Defendant’s
26 Motion to Dismiss Plaintiffs’ 6th Claim for Relief
Lane v. Santa Cruz Metro, Case No.C- 02-1808-RMW

Case5:02-cv-01808-RMW Document17 Filed09/26/02 Page2 of 9

1

ISSUES TO BE DECIDED

2

1. Are Plaintiffs’ claims under the Unfair Competition Act, which do not seek

3 relief in the form of money or damages, barred by the Tort Claims Act?

4

2. Is Defendant subject to the Unfair Competition Act in its operation of a bus

5 system?

6

BACKGROUND

7

Plaintiffs Joshua Loya and Deborah Lane are residents of Santa Cruz County,

8 California. Mr. Loya is blind, and Ms. Lane has multiple sclerosis (along with other

9 disabilities) which causes periodic bouts of double vision. Because of their disabilities, neither

10 Plaintiff can drive, and both rely upon the Santa Cruz public transportation system as their

11 principal means of transportation. This system is operated by Defendant Santa Cruz

12 Metropolitan Transit District.

13

Because of their disabilities, Plaintiffs need bus stops to be announced by bus operators

14 (or electronically on buses equipped with the appropriate technology) and, at bus stops serving

15 more than one route, the routes of the buses announced so that they can board the correct bus.

16 This lawsuit arises out of Defendant’s repeated failures to ensure that bus stops and bus routes

17 are announced. Plaintiffs have asserted claims for violations of Title II of the Americans with

18 Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq., the Rehabilitation Act of 1973, 29

19 U.S.C. § 701, et seq., the Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq., the Public

20 Accommodations Law, Cal. Civ. Code § 54, et seq., California Government Code § 11135, et

21 seq., and the Unfair Competition Statute, Cal. Bus. & Prof. Code § 17200, et seq. Defendant’s

22 Motion to Dismiss seeks dismissal of Plaintiffs’ claims under the Unfair Competition Act.

23

ARGUMENT

24

Defendant’s Motion to Dismiss, although not expressly divided as such, is actually

25

Plaintiffs’ Memorandum in Opposition to Defendant’s

26 Motion to Dismiss Plaintiffs’ 6th Claim for Relief

Lane v. Santa Cruz Metro, Case No.C- 02-1808-RMW

-2-

Case5:02-cv-01808-RMW Document17 Filed09/26/02 Page3 of 9

1 based on two arguments: (1) that California’s Tort Claim Act immunizes Defendant from

2 liability under the Unfair Competition Act; and (2) that Defendant, as a public entity, is not a

3 “person” covered by the Unfair Competition Act. These arguments are incorrect.

4

A. The Tort Claims Act Does Not Apply to Non-Monetary Relief.

5

Defendant argues that the Tort Claims Act protects it from liability under the Unfair

6 Competition Act. (Motion to Dismiss at 3-4.) This argument can be disposed of quickly. The

7 Tort Claims Act, by its express terms, does not immunize public entities from claims seeking

8 “relief other than money or damages.” Cal. Gov’t Code § 814; see also Qwest

9 Communications Corp. v. City of Berkeley, 146 F. Supp. 2d 1081, 1090 (N.D. Cal. 2001)

10 (stating that “injunctive relief . . . is not subject to the procedural requirements of the Tort

11 Claims Act”(citations omitted)); Minsky v. City of Los Angeles, 11 Cal. 3d 113, 121 (1974)

12 (“The claims statutes do not ‘impose any . . . requirements for nonpecuniary actions, such as

13 those seeking injunctive, specific, or declaratory relief.’” (Emphasis and citation omitted.))

14

The Unfair Competition Act provides for injunctive relief, but damages are not

15 recoverable.1 See Cal. Bus. & Prof. Code § 17203; Rosales v. Citibank, Fed. Sav. Bank, 133

16 F. Supp. 2d 1177, 1181 (N.D. Cal. 2001) (stating that damages are not recoverable under the

17 Unfair Competition Act). Because Plaintiffs do not seek money or damages under the Unfair

18 Competition Act, their claims under that statute are not barred by the Tort Claims Act.

19

20

21

1

The Unfair Competition Act also provides for “disgorgement of monies

22 wrongfully obtained.” Vikco Ins. Servs., Inc. v. Ohio Indem. Co., 70 Cal. App. 4th 55, 67

(1999). Claims seeking disgorgement are not subject to the Tort Claims Act. See Minsky, 11

23 Cal. 3d at 117, 124 (holding that complaint seeking recovery of money wrongfully withheld by

the defendant was not subject to the Tort Claims Act). In any event, Plaintiffs in this action do

24 not seek disgorgement under the Unfair Competition Act, and thus the issue of whether

Defendant would be immune to such a claim is irrelevant.

25

Plaintiffs’ Memorandum in Opposition to Defendant’s

26 Motion to Dismiss Plaintiffs’ 6th Claim for Relief

Lane v. Santa Cruz Metro, Case No.C- 02-1808-RMW

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Case5:02-cv-01808-RMW Document17 Filed09/26/02 Page4 of 9

1

B. Defendant Is Covered By The Unfair Competition Act.

2

1. The Unfair Competition Act applies to Defendant unless doing so would

impair Defendant’s sovereign powers.

3

The Unfair Competition Act authorizes relief against any “person,”2 and the Act

4

defines “person” to include “natural persons, corporations, firms, partnerships, joint stock

5

companies, associations and other organizations of persons.” Cal. Bus. & Prof. Code § 17201.

6

Defendant argues that because this definition does not expressly include “public entities,” such

7

entities are not covered by the Unfair Competition Act. (Mot. to Dismiss at 4-5.) This

8

contention is contrary to a long line of California Supreme Court decisions (as well as

9

appellate court decisions cited by Defendant) that hold that a statute of general application

10

covers public entities unless doing so would impair their sovereign powers.

11

Beginning by at least 1942, California courts construing statutes of general application

12

have held that such statutes apply to public entities “[w]here . . . no impairment of sovereign

13

powers would result.” Hoyt v. Board of Civil Serv. Comm’rs, 21 Cal. 2d 399, 402 (1942).

14

Since that time, the California Supreme Court has repeatedly affirmed this principle. See, e.g.,

15

Flournoy v. State, 57 Cal. 2d 497, 498-99 (1962) (holding that a public entity is covered by a

16

statute “unless the state’s position as sovereign warrants special protection” (citations

17

omitted)); City of Los Angeles v. City of San Fernando, 14 Cal. 3d 199, 276-77 (1975) (same);

18

People v. Crow, 6 Cal. 4th 952, 959 (1993) (“In this case, the sovereign powers of the

19

government would not be impaired if defrauded government agencies can be deemed victims

20

within the meaning of section 13967(c). It is thus proper for us to conclude that the

21

Legislature intended the term ‘victim,’ as used in section 13967(c), to include defrauded

22

government agencies.”).

23

24

2

Cal. Bus. & Prof. Code § 17203

25

Plaintiffs’ Memorandum in Opposition to Defendant’s

26 Motion to Dismiss Plaintiffs’ 6th Claim for Relief

Lane v. Santa Cruz Metro, Case No.C- 02-1808-RMW

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Case5:02-cv-01808-RMW Document17 Filed09/26/02 Page5 of 9

1

Indeed, two of the cases cited by Defendant explicitly recognize the principle that

2 “‘[w]here ... no impairment of sovereign powers would result . . . the Legislature may properly

3 be held to have intended that the statute apply to governmental bodies even though it used

4 general statutory language only.’” Cmty. Mem’l Hosp. v. County of Ventura, 50 Cal. App. 4th

5 199, 209 (1996) (citations omitted); Cal. Med. Ass’n, Inc. v. Regents of the Univ. of

6 California, 79 Cal. App. 4th 542, 548 (2000) (“The University of California is excluded from

7 the operation of a general statutory provision if the University’s inclusion would result in an

8 infringement upon the powers granted to it as an instrumentality of the state.” (Citations

9 omitted.). Each of these cases, however, involved operating a hospital, and “there can be no

10 dispute that guarding the public health is within the [defendant’s] sovereign powers.” Cmty.

11 Mem’l Hosp., 50 Cal. App. 4th at 209.

12

Defendant cites two other cases -- Janis v. California State Lottery Commision, 68 Cal.

13 App. 4th 824 (1998) and Trinkle v. California State Lottery, 71 Cal. App. 4th 1198 (1999) -- in

14 which the courts found that the defendants in those cases were not covered by the Unfair

15 Competition Act. Although these cases do not explicitly refer to the statutory construction

16 principles set forth in Hoyt and its progeny, the results in both cases are consistent with these

17 principles. Both Janis and Trinkle concerned operation of a state lottery, and numerous cases

18 have held that operating a lottery is an exercise of sovereign rather than proprietary power.

19 See, e.g., Wojcik v. Mass. State Lottery Comm’n, 300 F.3d 92, 100 (1st Cir. 2002) (“This

20 revenue-raising function [of a state lottery] is decidedly governmental in nature.”(Citations

21 omitted.)); Hilton Apothecary, Inc. v. State, 630 N.Y.S.2d 446, 448 (Ct. Cl. 1995) (“Here, the

22 activity involved, the operation of the Lottery, is fully governmental and not proprietary in

23 nature.”).

24

This action concerns Defendant’s failure to ensure that bus stops and bus routes are

25

Plaintiffs’ Memorandum in Opposition to Defendant’s

26 Motion to Dismiss Plaintiffs’ 6th Claim for Relief

Lane v. Santa Cruz Metro, Case No.C- 02-1808-RMW

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Case5:02-cv-01808-RMW Document17 Filed09/26/02 Page6 of 9

1 announced, and thus pursuant to the numerous authorities set forth above, the Unfair

2 Competition Act applies to Defendant if (1) Defendant’s operation of its bus system is not an

3 exercise of its sovereign power, or (2) subjecting Defendant to the Unfair Competition Act

4 would not impair such power.

5

2. Defendant’s operation of its bus system is not an exercise of its

sovereign powers.

6

Numerous cases in California and elsewhere demonstrate that operating a bus system

7

is not an exercise of sovereign power.

8

For example, in Lopez v. Southern California Rapid Transit District, 200 Cal. Rptr. 779

9

(Ct. App. 1984), aff’d on other grounds, 40 Cal. 3d 780 (1985), a bus passenger who was

10

assaulted by other passengers brought suit against the public corporation that operated the bus

11

system. The court enunciated the established principle that “[a] generally worded code section

12

. . . applies to governmental bodies if no impairment of sovereign powers would result.” Id. at

13

787. The court held that operating a bus system is not an exercise of sovereign power: “[O]nce

14

a government decides to run a bus line it is required to make the same business judgments that

15

a private bus company must make. The government bus line is also subject to the same

16

operational expenses as the privately owned bus line including the cost of providing security

17

for the passengers.” Id. Thus “[b]y voluntarily undertaking the business of a common carrier .

18

. . the RTD became subject to the specific mandatory duty imposed by California statute on

19

every common carrier . . .” Id. at 788.3

20

21

3

The California Supreme Court affirmed this decision on similar, but not

22 identical, grounds that demonstrate that a statute need not expressly cover “public entities” in

order for such entities to be subject to the statute. The Court cited Government Code section

23 815, which provides tort immunity to public entities “[e]xcept as otherwise provided by

statute,” and found that “all governmental tort liability must be based on statute.” Lopez, 40

24 Cal. 3d 780, 785 n.2 (1985). The Court went on to hold, however, that the statute need not

“provide on its face that it is applicable to public entities. ‘Rather, a liability is deemed

25

Plaintiffs’ Memorandum in Opposition to Defendant’s

26 Motion to Dismiss Plaintiffs’ 6th Claim for Relief

Lane v. Santa Cruz Metro, Case No.C- 02-1808-RMW

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Case5:02-cv-01808-RMW Document17 Filed09/26/02 Page7 of 9

1

Lopez is consistent with the decisions of numerous courts across the country holding

2 that operating a bus system is not an exercise of sovereign power. See. e.g., Gleason v. Metro.

3 Council Transit Operations, 582 N.W.2d 216, 221 (Minn. 1998) (“[T]he rational . . . that the

4 inequity of extending official immunity to governmental employees who perform the same

5 proprietary functions as private entities would be unwarranted, applies equally to a bus driver

6 who discriminates against a disabled passenger.”); Board of Comm’rs v. Chatham Advertisers,

7 371 S.E.2d 850, 851 (Ga. 1988) (“The operation of a public transportation system, such as a

8 scheduled fixed-route transit bus system . . . is a proprietary or ministerial function.” (Citations

9 omitted.); Lepore v. R.I. Pub. Transit Auth., 524 A.2d 574, 575 (R.I. 1987) (holding that

10 operation of a public bus system was not a governmental function); Comastro v. Vill. of

11 Rosemont, 461 N.E.2d 616, 619 (Ill. App. 1984) (Holding that “[a] municipal corporation

12 engaged in a non-governmental function, such as the operation of . . . a public transportation

13 system . . . will be held to the same standard of care as that imposed on a private party.”

14 (citations omitted)); Johnson v. Detroit Metro. Airport, 350 N.W.2d 295, 297 (Mich. App.

15 1984) (Holding that “the municipal operation of bus and streetcar companies . . . were always

16 considered proprietary . . .”); Butts v. County of Dade, 178 So. 2d 592, 596 (Fla. Dist. Ct. App.

17 1965) (“We therefore hold that the operation of the transit system is not a governmental

18 operation of Dade County . . .”).

19

The numerous authorities cited above demonstrate that Defendant’s operation of a bus

20 system is not an exercise of its sovereign power. Under Hoyt and its progeny, because

21 subjecting Defendant to the Unfair Competition Act will not impair its sovereign power,

22

23 'provided by statute' if a statute defines the tort in general terms.’” Id. (citation omitted). The Court found that Civil Code section 2100 – which does not expressly apply to “public entities”
24 – nevertheless “otherwise provide[d]” for the liability of public entities within the meaning of section 815. Id.
25

Plaintiffs’ Memorandum in Opposition to Defendant’s

26 Motion to Dismiss Plaintiffs’ 6th Claim for Relief

Lane v. Santa Cruz Metro, Case No.C- 02-1808-RMW

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Case5:02-cv-01808-RMW Document17 Filed09/26/02 Page8 of 9

1 Defendant is covered by the Act.

2

3. Subjecting Defendant’s Bus Stop and Route Announcement Practices to the

Unfair Competition Act Will Not Impair Any Of Its Powers.

3

Plaintiffs’ Unfair Competition Act claim is limited to Defendant’s failure to ensure that

4

bus stops and bus routes are announced. These aspects of Defendant’s bus system are subject

5

to specific requirements set forth in other state and federal laws. Thus even if Defendant’s

6

operational decisions concerning its bus system generally are exercises of its sovereign power,

7

its practices concerning stop and route announcements are highly regulated. Applying the

8

Unfair Competition Act with respect to these aspects of Defendant’s bus system, therefore,

9

cannot impair its sovereign power.

10

The requirements under Title II of the ADA concerning announcement of bus stops and

11

bus routes are specific and clear. Defendant must (1) announce stops at the request of an

12

individual with a disability, (2) announce transfer points with other fixed routes,4 (3) announce

13

other major intersections and destination points, and (4) announce intervals along a route

14

sufficient to permit individuals with visual impairments or other disabilities to be oriented to

15

their location. 49 C.F.R. § 37.167(b)(1), (2). In addition, where buses for more than one route

16

serve the same stop, Metro must provide a means by which an individual with a visual

17

impairment or other disability can identify the proper bus to enter. 49 C.F.R. § 37.167(c).

18

In addition, the California Public Accommodations Law provides that “[i]ndividuals

19

with disabilities shall be entitled to full and equal access, as other members of the general

20

public, to accommodations . . . and privileges of all common carriers . . . motorbuses . . . or any

21

other public conveyances or modes of transportation (whether private, public, franchised,

22

23

4

A transfer point is any stop “where a passenger can get off and transfer to

24 another bus or rail line (or to another form of transportation, such as commuter rail or ferry) . .

. .” 49 C.F.R. pt. 37, app. D, § 37.167.

25

Plaintiffs’ Memorandum in Opposition to Defendant’s

26 Motion to Dismiss Plaintiffs’ 6th Claim for Relief

Lane v. Santa Cruz Metro, Case No.C- 02-1808-RMW

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Case5:02-cv-01808-RMW Document17 Filed09/26/02 Page9 of 9

1 licensed, contracted, or otherwise provided) . . .” Cal. Civ. Code § 54.1(a)(1). The Public

2 Accommodations Law expressly incorporates the requirements of Title II and its regulations.

3 Id. § 54.1(a)(3).

4

Defendant is bound by the requirements of California and federal law. Therefore

5 subjecting Defendant to the Unfair Competition Act based on its failure to ensure that bus

6 stops and bus routes are announced cannot, by definition, impair any of its powers, sovereign

7 or otherwise.

8

CONCLUSION

9

For the reasons set forth above, Plaintiffs respectfully request that Defendant’s Motion

10 to Dismiss be denied.

11

12 Respectfully Submitted,

13

FOX & ROBERTSON, P.C.

14

BY: s/ Timothy P. Fox

15

Timothy P. Fox

16

DISABILITY RIGHTS EDUCATION AND

17

DEFENSE FUND, INC.

18
19 Dated: September 26, 2002
20

Linda D. Kilb Attorneys for Plaintiffs

21

22

23

24

25

Plaintiffs’ Memorandum in Opposition to Defendant’s

26 Motion to Dismiss Plaintiffs’ 6th Claim for Relief

Lane v. Santa Cruz Metro, Case No.C- 02-1808-RMW

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 Case5:02-cv-01808-RMW Document18 Filed10/04/02 Page1 of 6

1 D. Douglas Shureen, SBN 124613 RIVKIN RADLER LLP
2 1330 North Dutton Avenue, Suite 200
Santa Rosa, CA 95401-4646 3 (707) 525-5400
(707) 576-7955 (Fax)
4 Attorneys for Defendant
5 SANTA CRUZ METROPOLITAN TRANSIT DISTRICT

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE DIVISION)

10 DEBORAH A. LANE and JOSHUA E. LOYA, ) CASE NO. C 02 01808 RMW HRL EAI

) ADR

11

Plaintiffs,

)

12

v.

) DEFENDANT SANTA CRUZ ) METROPOLITAN TRANSIT

13 SANTA CRUZ METROPOLITAN TRANSIT

) DISTRICT'S REPLY BRIEF IN ) SUPPORT OF ITS MOTION TO

DISTRICT, a political subdivision of the State of ) DISMISS PLAINTIFFS' 6TH CLAIM

14 California,

) FOR RELIEF FOR FAILURE TO

) STATE A CLAIM UPON WHICH

15

Defendant.

) RELIEF MAY BE GRANTED

) [F.R.C.P. §12(b)(6)]

16

)

) Date:

October 18, 2002

17

) Time:

9:00 a.m.

) Courtroom: 6, 4th Floor

18

) Judge:

Hon. Ronald M. Whyte

Action Filed: April 16, 2002

19

Trial Date: Not Set

20

Defendant, Santa Cruz Metropolitan Transit District (hereafter "Metro"), respectfully

21 submits its Reply to Plaintiffs Deborah Lane and Joshua Loya's (hereafter "Plaintiffs")

22 Opposition to Metro's Motion to Dismiss Plaintiffs' Sixth Claim for Relief, which alleges

23 that Metro violated the Unfair Competition Act, California Business & Professions Code

24 § 17200, et seq.

25

INTRODUCTION AND SUMMARY

26

Plaintiffs' opposition studiously ignores the persuasive authority provided by four

27 separate California Court of Appeal decisions, each of which unambiguously holds that

28 governmental entities are not subject to suit under the Unfair Competition Act (hereafter

1

Defendant’s Reply Brief On Motion To Dismiss--Case # C 02-01808 RMW HRL EAI ADR

Case5:02-cv-01808-RMW Document18 Filed10/04/02 Page2 of 6

1 UCA) because they are not "persons" within the meaning of the Act. Instead of focusing

2 on case law directly resolving this issue under California law, Plaintiffs attempt to create

3 an argument by analogizing to other cases, including a Court of Appeal decision that is

4 "not citable" because of a grant of review by the Supreme Court, and Supreme Court

5 cases that do not apply to the UCA. Nevertheless, this Court should consider the law

6 directly applicable to a governmental entity's liability under the UCA and dismiss the sixth

7 claim for relief.

8

ARGUMENT

9

A. Plaintiffs' Concession That It Will Not Seek Disgorgement of

10

Profits Under the UCA Renders Metro's Tort Claims Act

Argument Moot.

11

12

For the first time, Plaintiffs have clarified in their Opposition that they do not and will

13 not seek "money or damages" or disgorgement of profits from Metro under the UCA

14 (Opposition, p.3, l.17-18 and fn. 1.) Accordingly, Metro believes that the only remaining

15 issue in this motion is whether the UCA applies to Plaintiffs' apparent desire to obtain an

16 injunction against Metro under California Business and Professions Code §17203, the

17 "injunction" provisions of the UCA.

18

B. Metro Is Not Subject to Suit Under the UCA Because It Is Not One of

19

the “Persons” Enumerated Therein.

20

In Trinkle v. California State Lottery (1999) 71 Cal.App.4th 1198 [84 Cal.Rptr. 2d

21 496], one of the most recent cases discussing the amenability of a governmental entity to

22 suit under the UCA, the court upheld a trial court's dismissal of a suit under the UCA

23 against the California State Lottery. The court first stated that "Nowhere in the Unfair

24 Competition Act (UCA; Bus. & Prof. Code §17200 et seq.) is there a provision imposing

25 governmental liability for violations of the act. Because there is no statute making public

26 entities liable under the UCA, the general rule of governmental immunity must prevail."

27 Trinkle, supra, at p. 1202. However, the court upheld the trial court's judgment on a

28 separate ground. The court stated:

2

Defendant’s Reply Brief On Motion To Dismiss--Case # C 02-01808 RMW HRL EAI ADR

Case5:02-cv-01808-RMW Document18 Filed10/04/02 Page3 of 6

1

Words of a statute must be given their ordinary meaning and receive a commonsense construction. (Community Memorial

2

Hospital v. County of Ventura (1996) 50 Cal.App.4th 199, 209

[56 Cal.Rptr.2d 732].) The state is neither a natural person,

3

partnership, corporation, association, nor other "organization[ ]

of persons." It is a sovereign entity representing the people.

4

Only through an unreasonable, strained construction can the

5

state be deemed to fall within any of the statute's definitional

categories.

6

7 Trinkle, supra, p. 1203.

8

Thus, Trinkle did not rely on the governmental immunity rule but rather on the

9 court's determination that interpreting the statute's definition of "person" to include a

10 governmental entity would be 'unreasonable and strained.' This simple, straightforward

11 interpretation of the statute establishes that under California law the UCA does not apply

12 to governmental defendants because they do not fall within the statute's definition of

13 "persons." Metro submits that Trinkle accurately states California law, is persuasive

14 authority, and that this Court should follow Trinkle and dismiss the sixth claim for relief.

15 See, also, Janis v. California State Lottery Commission (1998) 68 Cal.App.4th 824 [80

16 Cal.Rptr.2d 549]; Community Memorial Hospital of San Buena Ventura et al. v. County of

17 Ventura (1996) 50 Cal.App.4th 199 [56 Cal.Rptr.732]; and Santa Monica Rent Control

18 Board v. Bluvshtein (1991) 230 Cal.App.3d 308, 318 [281 Cal.Rptr. 298].

19

Plaintiffs contend that the appropriate rule, established by a series of Supreme

20 Court decisions, is that a statute of general application applies to public entities unless the

21 application of the statute would impair the entity’s sovereign powers. Opposition, p. 4,

22 lines 9 -10. The cases cited by Plaintiffs do not support their contention that the UCA

23 statute should be interpreted in a similar fashion. For example, the statute at issue in

24 Hoyt v. Board of Civil Service (1942) 21 Cal.2d 399 [132 P.2d 804], Code of Civil

25 Procedure §1060, allows any person to bring an action for declaratory relief. That statute

26 does not define "person." Likewise, in People v. Terry Lee Crow (1993) 6 Cal.4th 952 [26

27 Cal.Rptr.2d 1], the statute at issue, Government Code § 13967, requires a defendant to

28 pay restitution to "a victim" of criminal conduct. The defendant contended that a

3

Defendant’s Reply Brief On Motion To Dismiss--Case # C 02-01808 RMW HRL EAI ADR

Case5:02-cv-01808-RMW Document18 Filed10/04/02 Page4 of 6

1 governmental entity could not be a "victim." The court held that a defrauded

2 governmental agency is not a natural person, but is nevertheless a "victim." Id., p. 957.

3 In Flournoy v. State of California (1962) 57 Cal.2d 497 [20 Cal.Rptr. 627], the court held

4 that the wrongful death statute, § 377 of the Code of Civil Procedure, applies to

5 governmental entities. Again, that statute applies to "the person causing the death"

6 without any definition of person. Finally, City of Los Angeles v. City of San Fernando

7 (1975) 14 Cal.3d 199, 276-277 [123 Cal.Rptr. 1] dealt only with a statute that stated "no

8 possession by any person, firm or corporation", without further defining "person."

9

Unlike the statutes in the cases cited by Plaintiffs, the UCA specifically defines the

10 term "person." Only someone falling within the definition of "person" can be liable under

11 the UCA. The UCA defines a "person" as "natural persons, corporations, firms,

12 partnerships, joint stock companies, associations and other organizations of persons."

13 Cal. Bus. & Prof. Code §17201. Trinkle , supra, simply held that a governmental entity

14 does not fall within that definition and therefore cannot be liable under the statute.

15 Plaintiffs' added requirement, that in order to escape liability under a general statute the

16 statute must impair the entity's sovereign powers, was not considered in Trinkle because

17 the statute at issue in that case, the UCA, specifically defined who would and who would

18 not be liable. In other words, the additional requirement, the infringement of sovereignty,

19 does not apply because the UCA is not a statute of general application; it is one of

20 specific application to designated persons.

21

This distinction between statutes of general application and those that specifically

22 identify the parties who are to be held liable thereunder is illustrated by a case cited by

23 Plaintiffs, California Medical Association, Inc. v. The Regents of the University of

24 California, et al. (2000) 79 Cal.App.4th 542 [94 Cal.Rptr.2d 194]. The medical association

25 sought an injunction against the University of California relating to the University’s

26 operation of a hospital in Santa Monica. The court discussed two statutes: Business and

27 Professions Code § 2400, which provides, in part, that “[c]orporations and other artificial

28 legal entities shall have no professional rights, privileges and powers. . . ” and the UCA.

4

Defendant’s Reply Brief On Motion To Dismiss--Case # C 02-01808 RMW HRL EAI ADR

Case5:02-cv-01808-RMW Document18 Filed10/04/02 Page5 of 6

1 The court noted that section 2400 does not apply to a governmental entity because even

2 though it is a statute of general application, application of the statute to the University “. . .

3 would result in an infringement upon the powers granted to it as an instrumentality of the

4 state.” Id. p. 548. The court did not use the same analysis in dealing with the UCA. As to

5 the UCA, the court cited Trinkle, among other cases, and held that the University of

6 California is a public entity and not a “person” within the meaning of section 17201 of the

7 UCA.

8

C. Because the Statute Clearly and Unambiguously Does Not Apply to

9

Governmental Entities, It Is Unnecessary to Decide Whether It Impairs

the Exercise of Metro’s Sovereign Powers.

10

11

Plaintiffs’ efforts to establish that the operation of a governmental bus system is not

12 an exercise of sovereign powers is both wasted, as discussed above, and flawed.

13 Plaintiffs primarily rely on a decision that has no precedential value and is not citable,

14 Lopez v. California Rapid Transit District (1984) 153 Cal.App.3d 1135 [200 Cal.Rptr. 779],

15 superceded by grant of review, 40 Cal.3d 780. See, Cal. Rules of Court, rules 976(d) and

16 977(a). The only published decision regarding this case, Lopez v. Southern California

17 Rapid Transit District (1985) 40 Cal.3d 780 [221 Cal.Rptr. 840], cited in footnote 3 (page

18 6) of the Opposition, does not support Plaintiffs' position. Lopez merely confirms that

19 another statute of general application, Civil Code section 2100, which does not define or

20 specify the parties to be held liable, does apply to governmental entities. However, Civil

21 Code section 2100 applies generally to tort liability for injuries to passengers of "carriers

22 for hire," and does not establish that the operation of governmental entity bus systems is

23 not an exercise of sovereign powers.

24

In fact, there is nothing more intrinsically "sovereign" about the operation of a

25 lottery or a hospital than the operation of a public bus system. All are commercial, albeit

26 typically non-profit, operations, and all potentially compete with other commercial entities

27 in the marketplace. See, for example, Trinkle v. California State Lottery, supra, 71

28 Cal.App.4th 1198 and Community Memorial Hospital of San Buena Ventura, et al. v.

5

Defendant’s Reply Brief On Motion To Dismiss--Case # C 02-01808 RMW HRL EAI ADR

Case5:02-cv-01808-RMW Document18 Filed10/04/02 Page6 of 6

1 Ventura, et al., supra, 50 Cal.App.4th 100 (operation of a county hospital is within

2 County's sovereign powers). The fact that a public bus operation can be held liable in tort

3 is irrelevant to the question of sovereignty; public agencies operating hospitals are just as

4 liable for medical malpractice as are private hospitals.

5

Moreover, Plaintiffs' argument that the operation of a public transit system is not an

6 exercise of sovereign power is an attempt to "have their cake and eat it too." Plaintiffs'

7 First Claim for Relief, violation of Title II of the American's with Disabilities Act, 42 U.S.C.

8 § 12131 et seq., provides for the right to obtain compensatory damages, as well as

9 injunctive relief. Title II, however, only applies to governmental entities. 42 U.S.C.

10 § 12132. Title III of the ADA, 42 U.S.C. § 12181 et seq., applies to private companies, but

11 does not allow for the right to obtain compensatory damages. See Botosan v. Fitzhugh

12 (S.D.Cal. 1998) 13 F.Supp.2d 1047, 1051. In other words, Plaintiffs seek to take

13 advantage of the fact that Metro is a public entity for purposes of Title II of the ADA, but

14 denies that its operations are an exercise of sovereignty for purposes of the UCA. This

15 duplicity does not withstand careful analysis and should not be condoned by this Court.

16

CONCLUSION

17

As indicated above, under California law directly applicable to the UCA, Plaintiffs

18 have no claim for relief of any sort under the UCA against Metro, a public entity.

19 Moreover, since they do not claim recovery of money, damages or disgorgement of profits

20 under the UCA (which Metro contends is not available for a variety of reasons), their claim

21 for injunctive relief under the UCA is of little or no value to them. For each of the reasons

22 discussed above, Metro respectfully requests that this Court grant the relief sought and

23 dismiss the sixth claim for relief.

24 DATED: October 4, 2002

Respectfully submitted,

25

RIVKIN RADLER LLP

26 27 28 F:\DOCSOPEN\RR-SR\SHUREEN\#158542

By: s/ D. Douglas Shureen D. Douglas Shureen
Attorneys for Defendant SANTA CRUZ METROPOLITAN
TRANSIT DISTRICT

6

Defendant’s Reply Brief On Motion To Dismiss--Case # C 02-01808 RMW HRL EAI ADR

 
 Case5:02-cv-01808-RMW Document24 Filed11/07/02 Page1 of 5

1 2

3

4

E-FILED on 11/7/02

5 6 7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

12 DEBORAH A. LANE and JOSHUA E. LOYA, No. C-02-01808 RMW

13

Plaintiffs,

14

v.

15 SANTA CRUZ METROPOLITAN TRANSIT DISTRICT, a political subdivision of the State of
16 California,

17

Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFFS' 6TH CLAIM FOR RELIEF FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED
[Re Docket No. 10]

18

19

DEFENDANT'S motion to dismiss PLAINTIFFS' sixth claim for relief for failure to state a claim

20 upon which relief may be granted was heard on November 1, 2002. For the reasons set forth below, the

21 court grants DEFENDANT'S motion.

22

I. BACKGROUND

23

Plaintiffs Deborah A. Lane and Joshua E. Loya allege that defendant Santa Cruz Metropolitan

24 Transit District ("Metro"), a political subdivision of the State of California, discriminated against plaintiffs

25 because of their disabilities in violation of (1) the Americans with Disabilities Act of 1990, 42 U.S.C. §

26 12101, et seq., (2) the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., (3) the Unruh Civil Rights

27 Act, Cal. Civ. Code, § 51, et seq., (4) the Public Accommodations Law, Cal. Civ. Code, § 54, et seq.,

28 (5) California Government Code § 11135, et seq., and (6) the Unfair Competition Act, Cal. Bus. & Prof.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S 6TH CLAIM FOR RELIEF—C 02-01808 RMW KPO

Case5:02-cv-01808-RMW Document24 Filed11/07/02 Page2 of 5

1 Code, § 17200, et seq. Plaintiffs allege that defendant is a political division of the State of California and a 2 "public entity" under the relevant portions of state and federal law.

3

The gravamen of the complaint is that Metro does not comply with federal regulation which

4 purportedly requires Metro to ". . . announce bus stops at transfer points with other fixed routes, other

5 major intersections and destination points, and intervals along route sufficient to permit individuals with

6 visual impairments or other disabilities be oriented to their location." (Mot. at 3.) As a result of this

7 asserted failure to comply with federal regulations, plaintiffs contends that they have suffered injuries,

8 including emotional distress, apprehension of danger, embarrassment, anguish, pain, exhaustion,

9 inconvenience, delay, and the inability to travel to appointments in a timely manner." (Id.)

10

In this motion, defendant questions whether plaintiffs' claim under the Unfair Competition Act,

11 California Business and Professions Code § 17200, et seq. ("section 17200"), plaintiffs' sixth claim for

12 relief, is sufficient to state a claim for which relief can be granted. Defendant contends that Metro is

13 immune from suit under California Government Code § 815 ("section 815") and that, as a matter of law, as 14 a "public entity" Metro is not subject to section 17200. Plaintiffs counter that governmental immunity under 15 section 815 does not extend to actions for injunctive relief and that section 17200 is a statute of general 16 application and, therefore, covers "public entities" unless enforcement would impair that entity's "sovereign 17 powers."

18

II. ANALYSIS

19

Under Federal Rules of Civil Procedure Rule 12(b)(6) parties may, by motion, assert a defense to

20 any claim for relief that such claim fails to state a claim upon which relief can be granted. In a Rule 21 12(b)(6) motion, all material allegations in the complaint must be taken as true and construed in the light 22 most favorable to the plaintiff. Pilsbury, Madison & Sutro v. Lerner, 31 F.3d 924, 928 (9th Cir. 1994).

23 Dismissal is appropriate only when it "appears beyond doubt that the plaintiff can prove no set of facts in

24 support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct.

25 99, 2 L.Ed.2d 80 (1957).

26

In their sixth claim for relief, plaintiffs allege that defendant has violated section 17200 because

27 defendant's "services are not accessible to individuals with disabilities" in violation of state and federal law.

28

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

PLAINTIFF'S 6TH CLAIM FOR RELIEF—C 02-01808 RMW

KPO

2

Case5:02-cv-01808-RMW Document24 Filed11/07/02 Page3 of 5

1 Defendant moves to dismiss this claim on the grounds that Metro is immune to suit under section 815 and, 2 as a matter of law, section 17200 does not apply to "public entities."

3

In arguing that Metro is not subject to suit under section 17200, defendant relies, in part, on section

4 815 of the California Government Code which states that "[e]xcept as otherwise provided by statute: (a) a

5 public entity is not liable for an injury, whether such injury arises out of an act or omission of the public

6 entity or a public employee or any other person." Cal. Gov. Code § 815 (West 1995). Plaintiffs counter

7 that under section 814, section 815 does not immunize public entities from claims seeking relief other than

8 money damages, see Cal. Gov. Code § 814, and argue that section 815 does not apply to their section

9 17200 claims, which seek only injunctive relief. (Opp. Br. at 3.) In reply, defendant seems to concede this

10 point and relies solely on its arguments regarding the limited scope of section 17200. (Reply Br. at 2.)

11 Because defendant is correct about the limited scope of section 17200, this court does not need to apply

12 California Government Code sections 814 and 815.

13 Section 17200 defines "unfair competition" to include "any unlawful, unfair or fraudulent business
14 act or practice and unfair, deceptive, untrue or misleading practice and unfair, deceptive, untrue or
15 misleading advertising." Cal. Bus. & Prof. Code § 17200 (West 1997). Section 17203, provides for
16 injunctive relief against "persons" who engage in acts of unfair competition. § 17203. Section 17201
17 defines "person" as including "natural persons corporations, firms, partnerships, joint stock companies,
18 associations and other organization of persons." § 17201. This definition of "person" does not include
19 "public entities." See California Medical Association, Inc. v. Regents of the University of California, 79
20 Cal. App. 4th 542, 551 (2000) (holding University of California is a "public entity" and not a "person"
21 within meaning of section 17201); Janis v. California State Lottery Com., 68 Cal. App. 4th 824, 831
22 (1998) (holding California Lottery is a "public entity" and not a "person" within meaning of section 17201);
23 Trinkle v. California State Lottery, 71 Cal. App. 4th 1198, 1203 (1999) (holding that state is not a
24 "person" within meaning of section 17201); see also Community Memorial Hospital, 50 Cal. App. 4th
25 199, 209 (1996) (county hospital may not be sued under section 17200); Santa Monica Rent Control Bd.
26 v. Bluvshtein, 230 Cal. App. 3d 308, 318 (1991) (Rent Control Board, as a government agency, falls
27 outside of definition of "person" set out in section 17201) . The Metro is a political subdivision of the State
28

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

PLAINTIFF'S 6TH CLAIM FOR RELIEF—C 02-01808 RMW

KPO

3

Case5:02-cv-01808-RMW Document24 Filed11/07/02 Page4 of 5

1 of California, a public entity, and cannot constitute a "person" within the meaning of the section 17200. It 2 follows that, as a matter of law, plaintiffs cannot prevail on their section 17200 claim of unfair competition

3 or unfair practices.

4

5

III. ORDER

6

For the foregoing reasons, the court grants defendant's motion to dismiss plaintiffs' sixth claim for

7 relief for failure to state a claim upon which relief can be granted.

8 9 DATED: 11/7/02 10 11 12

/s/ Ronald M. Whyte RONALD M. WHYTE United States District Judge

13 14

15 16 17

18 19

20 21 22

23 24

25 26 27

28

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

PLAINTIFF'S 6TH CLAIM FOR RELIEF—C 02-01808 RMW

KPO

4

Case5:02-cv-01808-RMW Document24 Filed11/07/02 Page5 of 5

1 Notice of this document has been electronically sent to:
2 Timothy P. Fox tfox@foxrob.com, emiot@foxrob.com
3 Linda D. Kilb lkilb@dredf.org,
4
5 D. Douglas Shureen doug.shureen@rivkin.com,
6 A. Smith ted.smith@rivkin.com, 7
Counsel are responsible for distributing copies of this document to co-counsel that have not registered for 8 e-filing under the court's CM/ECF program.
9

10 11 12 Dated: 13 14

11/7/02

/s/ KPO Chambers of Judge Whyte

15 16 17

18 19

20 21 22

23 24

25 26 27

28

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

PLAINTIFF'S 6TH CLAIM FOR RELIEF—C 02-01808 RMW

KPO

5

 
 Case5:02-cv-01808-RMW Document28 Filed11/25/02 Page1 of 11

1 D. Douglas Shureen, SBN 124613 RIVKIN RADLER LLP
2 1330 North Dutton Avenue, Suite 200 Santa Rosa, CA 95401-4646
3 (707) 525-5400 (707) 576-7955 (Fax)
4 Attorneys for Defendant
5 SANTA CRUZ METROPOLITAN TRANSIT DISTRICT

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE DIVISION)

10 DEBORAH A. LANE and JOSHUA E. LOYA, ) CASE NO. C 02-01808 RMW HRL EAI

) ADR

11

Plaintiffs,

)

) DEFENDANT SANTA CRUZ

12

v.

) METROPOLITAN TRANSIT

) DISTRICT'SANSWER TO FIRST

13 SANTA CRUZ METROPOLITAN TRANSIT ) AMENDED COMPLAINT

DISTRICT, a political subdivision of the State of )

14 California,

)

)

15

Defendant.

)

)

16

)

)

17

)

)

18

)

Action Filed: April 16, 2002

19

Trial Date: Not Set

20

Defendant Santa Cruz Metropolitan Transit District ("Metro") hereby answers

21 Plaintiffs' First Amended Complaint as follows:

22

1. In response to Paragraph 1 of Plaintiffs’ First Amended Complaint, Metro

23 denies that the plaintiffs have been, are being or will be denied nondiscriminatory, safe

24 access to bus service operated by Metro. Metro is without sufficient knowledge or

25 information to form a belief as to the truth of the remaining allegations contained in said

26 paragraph, and on that basis denies each and every remaining allegation.

27

2. In response to Paragraph 2 of the First Amended Complaint, Metro denies

28 each and every allegation contained therein.

DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

F:\DOCSOPEN\RR-SR\SHUREEN\#159599 V1 - ANSWER

Case5:02-cv-01808-RMW Document28 Filed11/25/02 Page2 of 11

1

3. In response to Paragraph 3 of the First Amended Complaint, Metro denies

2 each and every allegation contained therein.

3

4. In response to Paragraph 4 of the First Amended Complaint, Metro admits

4 that this Court has subject matter of jurisdiction over portions of this action pursuant to 28

5 U.S.C. §1331 and §1344; 42 U.S.C. §12133; 29 U.S.C. §794a, and further admits that the

6 Court has authority to grant declaratory and other relief pursuant in the appropriate

7 circumstances under 28 U.S.C. Sections 2201 and 2202. Metro denies all of the

8 remaining allegations of Paragraph 4.

9

5. In response to Paragraph 5 of the First Amended Complaint, Metro admits

10 that venue is proper within this district for all causes of action under Federal Law.

11

6. In response to Paragraph 6 of the First Amended Complaint, Metro admits

12 the allegations of Paragraph 6.

13

7. In response to Paragraph 7 of the First Amended Complaint, Metro is

14 without sufficient knowledge or information to form a belief as to the truth of the

15 allegations contained in said paragraph, and on that basis denies each and every

16 allegation contained therein.

17

8. In response to Paragraph 8 of the First Amended Complaint, Metro is

18 without sufficient knowledge or information to form a belief as to the truth of the

19 allegations contained in said paragraph, and on that basis denies each and every

20 allegation contained therein.

21

9. In response to Paragraph 9 of the First Amended Complaint, Metro is

22 without sufficient knowledge or information to form a belief as to the truth of the

23 allegations contained in said paragraph, and on that basis denies each and every

24 allegation contained therein.

25

10. In response to Paragraph 10 of the First Amended Complaint, Metro is

26 without sufficient knowledge or information to form a belief as to the truth of the

27 allegations contained in said paragraph, and on that basis denies each and every

28 allegation contained therein.

DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

F:\DOCSOPEN\RR-SR\SHUREEN\#159599 V1 - ANSWER

Case5:02-cv-01808-RMW Document28 Filed11/25/02 Page3 of 11

1

11. In response to Paragraph 11 of the First Amended Complaint, Metro is

2 without sufficient knowledge or information to form a belief as to the truth of the

3 allegations contained in said paragraph, and on that basis denies each and every

4 allegation contained therein.

5

12. In response to Paragraph 12 of the First Amended Complaint, Metro is

6 without sufficient knowledge or information to form a belief as to the truth of the

7 allegations contained in said paragraph, and on that basis denies each and every

8 allegation contained therein.

9

13. In response to Paragraph 13 of the First Amended Complaint, Metro admits

10 the allegations of Paragraph 13.

11

14. In response to Paragraph 14 of the First Amended Complaint, Metro is

12 without sufficient knowledge or information to form a belief as to the truth of the

13 allegations contained in said paragraph, and on that basis denies each and every

14 allegation contained therein.

15

15. In response to Paragraph 15 of the First Amended Complaint, Metro denies

16 all allegations contained therein.

17

16. In response to Paragraph 16 of the First Amended Complaint, Metro is

18 without sufficient knowledge or information to form a belief as to the truth of the

19 allegations contained in said paragraph, and on that basis denies each and every

20 allegation contained therein.

21

17. In response to Paragraph 17 of the First Amended Complaint, without

22 admitting the applicability of any federal regulations, Metro admits that a federal regulation

23 purports to require that Metro announce bus stops at transfer points with other fixed

24 routes, other major intersections and destination point, and intervals along a route

25 sufficient to permit individuals with visual impairments or other disabilities to be oriented to

26 their location.

27

18. In response to Paragraph 18 of the First Amended Complaint, without

28 admitting the applicability of any federal regulations, Metro admits that a federal regulation

DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

F:\DOCSOPEN\RR-SR\SHUREEN\#159599 V1 - ANSWER

Case5:02-cv-01808-RMW Document28 Filed11/25/02 Page4 of 11

1 purports to require that where buses for more than one route serve the same stop, a

2 means by which an individual with a visual impairment or other disability can identify the

3 proper vehicle to enter or be identified to the vehicle operator as a person seeking a ride

4 on a particular route should be provided.

5

19. In response to Paragraph 19 of the First Amended Complaint, Metro

6 responds that the allegations constitute conclusions of law and on that basis Metro denies

7 each and every allegation contained therein.

8

20. In response to Paragraph 20 of the First Amended Complaint, Metro is

9 without sufficient knowledge or information to form a belief as to the truth of the

10 allegations contained in said paragraph and on that basis denies each and every

11 allegation contained therein.

12

21. In response to Paragraph 21 of the First Amended Complaint, Metro is

13 without sufficient knowledge or information to form a belief as to the truth of the

14 allegations contained in paragraphs 21a, 21b and 21c of the Plaintiff’s First Amended

15 Complaint, and on that basis denies each and every allegation contained therein. Metro

16 denies the remaining allegations in Paragraph 21 of the Plaintiff’s First Amended

17 Complaint.

18

22. In response to Paragraph 22 of the First Amended Complaint, Metro is

19 without sufficient knowledge or information to form a belief as to the truth of the

20 allegations contained in said paragraph, and on that basis denies each and every

21 allegation contained therein.

22

23. In response to Paragraph 23 of the First Amended Complaint, Metro denies

23 each and every allegation contained therein.

24

24. In response to Paragraph 24 of the First Amended Complaint, Metro admits

25 that Plaintiff, Deborah Lane, has met with Metro officials to discuss asserted deficiencies

26 in defendant’s system of public transportation. Metro denies all remaining allegations in

27 Paragraph 24 of the First Amended Complaint.

28 / / /

DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

F:\DOCSOPEN\RR-SR\SHUREEN\#159599 V1 - ANSWER

Case5:02-cv-01808-RMW Document28 Filed11/25/02 Page5 of 11

1

25. In response to Paragraph 25 of the First Amended Complaint, Metro is

2 without sufficient knowledge or information to form a belief as to the truth of the

3 allegations contained in said paragraph and on that basis denies each and every

4 allegation contained therein.

5

26. In response to Paragraph 26 of the First Amended Complaint, Metro denies

6 each and every allegation contained therein.

7

27. In response to Paragraph 27 of the First Amended Complaint, Metro denies

8 each and every allegation contained therein.

9

28. In response to Paragraph 28 of the First Amended Complaint, Metro denies

10 each and every allegation contained therein.

11

29. In response to Paragraph 29 of the First Amended Complaint, Metro denies

12 each and every allegation contained therein.

13

30. In response to Paragraph 30 of the First Amended Complaint, Metro denies

14 each and every allegation contained therein.

15

31. In response to Paragraph 31 of the First Amended Complaint, Metro denies

16 that its services, programs and activities contain any discriminatory barriers. As to the

17 remaining allegations in Paragraph 31 of the Plaintiff’s First Amended Complaint, Metro is

18 without sufficient knowledge or information to form a belief as to the truth of the remaining

19 allegations contained in said paragraph, and on that basis denies each and every

20 remaining allegation contained therein.

21

32. In response to Paragraph 32 of the Plaintiff’s First Amended Complaint,

22 Metro admits the allegations contained therein.

23

33. In response to Paragraph 33 of the First Amended Complaint, Metro denies

24 each and every allegation contained therein.

25

34. In response to Paragraph 34 of the First Amended Complaint, Metro is

26 without sufficient knowledge or information to form a belief as to the truth of the

27 allegations contained therein, and on that basis denies each and every allegation

28 contained therein.

DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

F:\DOCSOPEN\RR-SR\SHUREEN\#159599 V1 - ANSWER

Case5:02-cv-01808-RMW Document28 Filed11/25/02 Page6 of 11

1

35. In response to Paragraph 35 of the First Amended Complaint, Metro

2 reasserts the admissions and/or denials previously set forth in Paragraphs 1-34 as though

3 fully set forth herein.

4

36. In response to Paragraph 36 of the First Amended Complaint, Metro alleges

5 that Paragraph 36 contains only statutory references and paraphrases thereof and that

6 therefore Metro is not required to respond.

7

37. In response to Paragraph 37 of the First Amended Complaint, Metro is

8 without sufficient knowledge or information to form a belief as to the truth of the

9 allegations contained in said paragraph and on that basis denies each and every

10 allegation contained therein.

11

38. In response to Paragraph 38 of the First Amended Complaint, Metro admits

12 the allegations contained therein.

13

39. In response to Paragraph 39 of the First Amended Complaint, Metro denies

14 each and every allegation contained therein.

15

40. In response to Paragraph 40 of the First Amended Complaint, Metro denies

16 each and every allegation contained therein.

17

41. In response to Paragraph 41 of the First Amended Complaint, Metro denies

18 each and every allegation contained therein.

19

42. In response to Paragraph 42 of the First Amended Complaint, Metro

20 reasserts the admissions and/or denials previously set forth in Paragraphs 1-41 as though

21 fully set forth herein.

22

43. In response to Paragraph 43 of the First Amended Complaint, Metro alleges

23 that Paragraph 43 contains only statutory references and paraphrases thereof and that

24 Metro is therefore not required to respond.

25

44. In response to Paragraph 44 of the First Amended Complaint, Metro admits

26 to all allegations contained therein.

27

45. In response to Paragraph 45 of the First Amended Complaint, Metro denies

28 each and every allegation contained therein.

DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

F:\DOCSOPEN\RR-SR\SHUREEN\#159599 V1 - ANSWER

Case5:02-cv-01808-RMW Document28 Filed11/25/02 Page7 of 11

1

46. In response to Paragraph 46 of the First Amended Complaint, Metro denies

2 each and every allegation contained therein.

3

47. In response to Paragraph 47 of the First Amended Complaint, Metro denies

4 each and every allegation contained therein.

5

48. In response to Paragraph 48 of the First Amended Complaint, Metro

6 reasserts the admissions and/or denials previously set forth in Paragraphs 1-47 as though

7 fully set forth herein.

8

49. In response to Paragraph 49 of the First Amended Complaint, Metro denies

9 each and every allegation contained therein.

10

50. In response to Paragraph 50 of the First Amended Complaint, Metro denies

11 each and every allegation contained therein.

12

51. In response to Paragraph 51 of the Plaintiff’s First Amended Complaint,

13 Metro alleges that Paragraph 51 contains only statutory references and paraphrases

14 thereof and that Metro is therefore not required to respond.

15

52. In response to Paragraph 52 of the First Amended Complaint, Metro denies

16 each and every allegation contained therein.

17

53. In response to Paragraph 53 of the First Amended Complaint, Metro denies

18 each and every allegation contained therein.

19

54. In response to Paragraph 54 of the First Amended Complaint, Metro denies

20 each and every allegation contained therein.

21

55. In response to Paragraph 55 of the First Amended Complaint, Metro

22 reasserts the admissions and/or denials previously set forth in Paragraphs 1-54 as though

23 fully set forth herein.

24

56. In response to Paragraph 56 of the First Amended Complaint, Metro admits

25 that it operates transportation made available to the general public and that Metro is within

26 the jurisdiction of the State of California. Metro denies each and every remaining

27 allegation of Paragraph 56.

28 / / /

DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

F:\DOCSOPEN\RR-SR\SHUREEN\#159599 V1 - ANSWER

Case5:02-cv-01808-RMW Document28 Filed11/25/02 Page8 of 11

1

57. In response to Paragraph 57 of the First Amended Complaint, Metro alleges

2 that Paragraph 57 contains only statutory references and paraphrases thereof and that

3 Metro is therefore not required to respond.

4

58. In response to Paragraph 58 of the First Amended Complaint, Metro alleges

5 that Paragraph 58 contains only statutory references and paraphrases thereof and that

6 Metro is therefore not required to respond.

7

59. In response to Paragraph 59 of the First Amended Complaint, Metro denies

8 each and every allegation contained therein.

9

60. In response to Paragraph 60 of the First Amended Complaint, Metro denies

10 each and every allegation contained therein.

11

61. In response to Paragraph 61 of the First Amended Complaint, Metro denies

12 each and every allegation contained therein.

13

62. In response to Paragraph 62 of the First Amended Complaint, Metro denies

14 each and every allegation contained therein.

15

63. In response to Paragraph 63 of the First Amended Complaint, Metro

16 reasserts the admissions and/or denials previously set forth in Paragraphs 1-62as though

17 fully set forth herein.

18

64. In response to Paragraph 64 of the First Amended Complaint, Metro alleges

19 that Paragraph 64 contains only statutory references and paraphrases thereof and that

20 Metro is therefore not required to respond.

21

65. In response to Paragraph 65 of the First Amended Complaint, Metro is

22 without sufficient knowledge or information to form a belief as to the truth of the

23 allegations contained therein, and on that basis denies each and every allegation

24 contained therein.

25

66. In response to Paragraph 66 of the First Amended Complaint, Metro admits

26 all allegations contained therein.

27

67. In response to Paragraph 67 of the First Amended Complaint, Metro denies

28 each and every allegation contained therein.

DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

F:\DOCSOPEN\RR-SR\SHUREEN\#159599 V1 - ANSWER

Case5:02-cv-01808-RMW Document28 Filed11/25/02 Page9 of 11

1

68. In response to Paragraph 68 of the First Amended Complaint, Metro alleges

2 that Paragraph 68 contains only statutory references and paraphrases thereof and that

3 Metro is therefore not required to respond.

4

69. In response to Paragraph 69 of the First Amended Complaint, Metro alleges

5 that Paragraph 69 contains only statutory references and paraphrases thereof and that

6 Metro is therefore not required to respond.

7

70. In response to Paragraph 70 of the First Amended Complaint, Metro denies

8 each and every allegation contained therein.

9

71. In response to Paragraph 71 of the First Amended Complaint, Metro denies

10 each and every allegation contained therein.

11

AFFIRMATIVE DEFENSES

12

FIRST AFFIRMATIVE DEFENSE

13

AS AND FOR A FIRST AFFIRMATIVE DEFENSE, to the First Amended Complaint

14 and each claim for relief contained therein, Metro alleges that plaintiff’s First Amended

15 Complaint fails to state facts sufficient to constitute a claim for relief upon a claim upon

16 which relief may be granted.

17

SECOND AFFIRMATIVE DEFENSE

18

AS AND FOR A SECOND AFFIRMATIVE DEFENSE to the First Amended

19 Complaint and each claim for relief contained therein, Metro alleges that Plaintiffs are

20 barred from recovery by virtue of the applicable statutes of limitations.

21

THIRD AFFIRMATIVE DEFENSE

22

AS AND FOR A THIRD AFFIRMATIVE DEFENSE to the First Amended Complaint

23 and each claim for relief contained therein, Metro alleges that Plaintiffs' recovery is barred

24 by the equitable doctrine of laches.

25

FOURTH AFFIRMATIVE DEFENSE

26

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE to the First Amended

27 Complaint and each claim for relief contained therein, Metro alleges that Plaintiffs'

28 recovery is barred by the doctrine of waiver.

DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

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Case5:02-cv-01808-RMW Document28 Filed11/25/02 Page10 of 11

1

FIFTH AFFIRMATIVE DEFENSE

2

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE to the First Amended Complaint

3 and each claim for relief contained therein, Metro alleges that Plaintiffs' recovery is barred

4 by the doctrine of estoppel.

5

SIXTH AFFIRMATIVE DEFENSE

6

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE to the First Amended Complaint

7 and each claim for relief contained therein, Metro alleges that Plaintiffs' recovery is barred

8 by the doctrine of unclean hands.

9

SEVENTH AFFIRMATIVE DEFENSE

10

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE to the First Amended

11 Complaint and each claim for relief contained therein, Metro alleges that some or all of

12 Plaintiffs' claims are barred by the doctrine of governmental immunity.

13

EIGHTH AFFIRMATIVE DEFENSE

14

AS AND FOR A NINTH AFFIRMATIVE DEFENSE to the First Amended Complaint

15 and each claim for relief contained therein, Metro asserts that it is in substantial

16 compliance with all applicable federal and state regulations pertaining to the rights of

17 individuals with disabilities.

18

WHEREFORE, Metro prays for judgment as follows:

19

1. That Plaintiffs take nothing by virtue of the First Amended Complaint on file

20 herein;

21

2. That Judgment be entered in Metro's favor;

22

3. That Metro be awarded its fees and costs in this matter;

23

4. For such other and further relief as the Court deems just and proper.

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

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Case5:02-cv-01808-RMW Document28 Filed11/25/02 Page11 of 11

1

DEMAND FOR JURY TRIAL

2

Defendant SANTA CRUZ METROPOLITAN TRANSIT DISTRICT demands a trial

3 by jury on all appropriate issues.

4

5 DATED: November 25, 2002

Respectfully submitted,

6

RIVKIN RADLER LLP

7 8 9 F:\DOCSOPEN\RR-SR\SHUREEN\#159599

By: s/ D. Douglas Shureen D. Douglas Shureen Attorneys for Defendant SANTA CRUZ METROPOLITAN TRANSIT DISTRICT

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

F:\DOCSOPEN\RR-SR\SHUREEN\#159599 V1 - ANSWER

 
 Case5:02-cv-01808-RMW Document37 Filed07/22/03 Page1 of 1

United States District Court For the Northern District of California

1

2

3

IN THE UNITED STATES DISTRICT COURT

4

FOR THE NORTHERN DISTRICT OF CALIFORNIA

5

*E-FILED - 7/22/03*

6 DEBORAH A. LANE

CASE NO. C 02-01808 RMW

7 and

ORDER OF DISMISSAL

8 JOSHUA E. LOYA,

9

Plaintiffs,

10 v.

11 SANTA CRUZ METROPOLITAN

12

TRANSIT DISTRICT, a political subdivision of the

13 State of California,

14

Defendant.

/

15 Pursuant to the Settlement Agreement of the parties, the above-captioned matter is hereby
16 dismissed with prejudice, subject to the reservation of jurisdiction by the U.S. District Court to
17 enforce the Agreement.
18
IT IS SO ORDERED. 19

20 Dated:
21

7/22/03

/S/ RONALD M. WHYTE UNITED STATES DISTRICT JUDGE

22

23

24

25

26

27

28

ORDER OF DISMISSAL

REV. 4/01

 
 Case: 5:02-cv-01808-RMW As of: 05/23/2010 11:01 PM PDT 1 of 4
ADRMOP, CLOSED, E−Filing, REFSET−EAI
U.S. District Court California Northern District (San Jose) CIVIL DOCKET FOR CASE #: 5:02−cv−01808−RMW

Lane et al v. Santa Cruz Metropolitan Transit District Assigned to: Hon. Ronald M. Whyte Referred to: Magistrate Judge Howard R. Lloyd Cause: 42:12101 Americans w/ Disabilities Act (ADA)
Plaintiff

Date Filed: 04/16/2002 Date Terminated: 07/22/2003 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Deborah A. Lane

represented by Linda D. Kilb Disability Rights Education/Defense Fund, Inc. 2212 Sixth Street Berkeley, CA 94710 510−644−2555 Fax: 510−841−8645 Email: lkilb@dredf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy P. Fox Fox &Robertson, P.C. 104 Broadway, Suite 400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: tfox@foxrob.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Joshua E. Loya

represented by Linda D. Kilb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy P. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Santa Cruz Metropolitan Transit District a political subdivision of the State of California

represented by Donald Douglas Shureen McMillan &Shureen LLP 50 Santa Rosa Avenue, Fifth Floor Santa Rosa, CA 95404−4952 707−525−5400 Fax: 707−576−7955 Email: doug.shureen@mcmillanshureen.com ATTORNEY TO BE NOTICED
Ted Aubrey Vincett Smith Rivkin Radler LLP 1330 N. Dutton Avenue, Suite 200 Santa Rosa, CA 95401−4646 707−525−5400

Case: 5:02-cv-01808-RMW As of: 05/23/2010 11:01 PM PDT 2 of 4
Email: ted.smith@rivkin.com ATTORNEY TO BE NOTICED

Date Filed 04/16/2002
04/16/2002 04/16/2002 05/02/2002 05/08/2002 05/08/2002 05/20/2002 06/06/2002 06/13/2002 07/01/2002 07/03/2002
07/10/2002 07/12/2002 07/26/2002 08/02/2002
08/05/2002 08/19/2002

# Docket Text
1 COMPLAINT ;Summons issued; Jury Demand; against Santa Cruz Metropolitan Transit District (Filing fee $150 receipt number 5505010). Filed by Deborah A. Lane, Joshua E. Loya. (dhm, ) Additional attachment(s) added on 5/1/2002 (dhm, ). (Entered: 04/16/2002)
Summons Issued as to Santa Cruz Metropolitan Transit District (dhm, ) (Entered: 04/16/2002)
2 ADR SCHEDULING ORDER: Case Management Statement due by 8/9/2002. Case Management Conference set for 8/16/2002 at 10:30 AM. (dhm, ) (Entered: 04/16/2002)
3 CERTIFICATE OF SERVICE by Deborah A. Lane, Joshua E. Loya Proof of Service of Complaint (Fox, Timothy) (Entered: 05/02/2002)
4 STIPULATION re 1 Extension of Time to File Response to Plaintiff's Complaint by Santa Cruz Metropolitan Transit District. (Smith, A.) (Entered: 05/08/2002)
5 CERTIFICATE OF SERVICE by Santa Cruz Metropolitan Transit District re 1 (Smith, A.) (Entered: 05/08/2002)
6 STIPULATION for Extension of Time to File Response to Plaintiffs' Complaint by Santa Cruz Metropolitan Transit District. (Shureen, D.) (Entered: 05/20/2002)
7 STIPULATION Regarding Amended Complaint by Santa Cruz Metropolitan Transit District. (Shureen, D.) (Entered: 06/06/2002)
8 AMENDED COMPLAINT against all defendants. Filed by Deborah A. Lane, Joshua E. Loya. (Attachments: # 1 Signature Page (Declarations/Stipulations) Signatures of Plaintiffs)(Fox, Timothy) (Entered: 06/13/2002)
9 STIPULATION Concerning Punitive Damages by Deborah A. Lane, Joshua E. Loya, Santa Cruz Metropolitan Transit District. (Fox, Timothy) (Entered: 07/01/2002)
10 First MOTION to Dismiss Plaintiffs' 6th Claim for Relief filed by Santa Cruz Metropolitan Transit District. Motion Hearing set for 10/18/2002 09:00 AM. (Attachments: # 1 Affidavit # 2 Proposed Order # 3)(Shureen, D.) (Entered: 07/03/2002)
CASE REFERRED to Magistrate Judge for Discovery Howard R. Lloyd. (dhm, ) (Entered: 07/10/2002)
11 ORDER REFERRING CASE to Magistrate Judge Howard R. Lloyd for Discovery purposes. Signed by Judge Patricia V. Trumbull on 7/11/2002. (dhm, ) (Entered: 07/12/2002)
12 STIPULATION selecting Mediation by Deborah A. Lane, Joshua E. Loya, Santa Cruz Metropolitan Transit District (Attachments: # 1 Proposed Order For Referral to Court−Sponsored Mediation)(Fox, Timothy) (Entered: 07/26/2002)
13 JOINT CASE MANAGEMENT STATEMENT &Stipulation filed by Deborah A. Lane, Joshua E. Loya, Santa Cruz Metropolitan Transit District. (Attachments: # 1 Proposed Order Regarding Case Management Statement)(Fox, Timothy) (Entered: 08/02/2002)
14 ORDER re 12 Selecting ADR Process. Signed by Judge Ronald M. Whyte on 8/5/02. (jv, ) (Entered: 08/05/2002)
15 STIPULATION Requesting Setting of Case Management Conference by Deborah A. Lane, Joshua E. Loya, Santa Cruz Metropolitan Transit District. (Attachments: # 1 Proposed Order Setting Case Management Conference)(Fox, Timothy) (Entered: 08/19/2002)

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08/19/2002 09/26/2002
10/04/2002 10/18/2002 10/30/2002 10/30/2002 10/30/2002 11/04/2002 11/07/2002 11/15/2002
11/18/2002 11/21/2002 11/25/2002 12/04/2002 02/07/2003
03/13/2003 04/21/2003 04/22/2003 04/22/2003

16 ORDER re 15 Setting Case Management Conference. Signed by Judge Ronald M. Whyte on 8/19/02. (jv, ) (Entered: 08/19/2002)
17 Memorandum in Opposition re 10 Defendant Santa Cruz Metropolitan Transit District's Motion to Dismiss Plaintiffs' 6th Claim for Relief for Failure to State a Claim Upon Which Relief May Be Granted filed by Deborah A. Lane, Joshua E. Loya. (Fox, Timothy) (Entered: 09/26/2002)
18 Reply Memorandum to Motion re 10 Motion to Dismiss Plaintiffs' 6th Claim for Relief for Failure to State a Claim Upon Which Relief May Be Granted filed by Santa Cruz Metropolitan Transit District. (Shureen, D.) (Entered: 10/04/2002)
19 CLERK'S NOTICE CONTINUING SETTLEMENT CONFERENCE; Settlement Conference set for 11/15/2002 09:00 AM. (mp, ) (Entered: 10/18/2002)
20 ORDER re Motion to Dismiss 10 Motion Hearing set for 11/1/2002 09:00 AM. Signed by Judge Ronald M. Whyte on 10/30/2002. (dhm, ) (Entered: 10/31/2002)
21 JOINT STIPULATED MOTION re 10 to continue motion date by Deborah A. Lane, Joshua E. Loya, Santa Cruz Metropolitan Transit District. (dhm, ) Modified on 10/31/2002 (dhm, ). (Entered: 10/31/2002)
23 Letter from D. Douglas Shureen dated 10/17/2002 requesting continuance of 10/18/2002 hearing date.. (dhm, ) (Entered: 11/05/2002)
22 Minute Entry: Motion Hearing re 10 held on 11/1/2002 before Ronald M. Whyte. (Court Reporter Lee−Anne Shortridge.) (jv, ) (Entered: 11/04/2002)
24 ORDER by Judge RMW granting 10 Motion to Dismiss Plaintiffs' Sixth Claim for Relief(rmwlc2) (Entered: 11/07/2002)
25 Minute Entry: Settlement Conference held on 11/15/2002 before Edward A. Infante. Further Settlement Conference set for 1/13/2003 at 01:30 PM.; Supplemental briefs are due no later than 01/10/2003 at 12:00 PM.() (mp, ) (Entered: 11/15/2002)
26 STIPULATION JOINT STIPULATION EXTENDING THE DATE TO ANSWER OR OTHERWISE RESPOND TO PLAINTIFFS' FIRST AMENDED COMPLAINT by Santa Cruz Metropolitan Transit District. (Shureen, D.) (Entered: 11/18/2002)
27 Joint MOTION to Continue &Reset Case Management Conference filed by Deborah A. Lane, Joshua E. Loya, Santa Cruz Metropolitan Transit District. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Entered: 11/21/2002)
28 ANSWER to Amended Complaint by Santa Cruz Metropolitan Transit District. (Shureen, D.) (Entered: 11/25/2002)
29 ORDER to Reset Case Management Conference. Case Management Conference set for 2/14/2003 at 10:30 AM. Signed by Judge Ronald M. Whyte on 12/4/02. (jv, ) (Entered: 12/04/2002)
30 JOINT CASE MANAGEMENT STATEMENT &Stipulation Regarding Proposed Spring 2003 Case Schedule &Continuance of CMC filed by Deborah A. Lane, Joshua E. Loya, Santa Cruz Metropolitan Transit District. (Attachments: # 1 Proposed Order Regarding Spring 2003 Case Schedule &Continuance of CMC)(Fox, Timothy) (Entered: 02/07/2003)
31 ORDER re 30 REGARDING SPRING 2003 CASE SCHEDULE AND CONTINUANCE OF CMC. Signed by Judge Ronald M. Whyte on 3/13/03. (jv, ) (Entered: 03/13/2003)
34 CERTIFICATE/PROOF OF SERVICE by Santa Cruz Metropolitan Transit District of Supplemental Settlement Conference Statement (gm, ) (Entered: 04/22/2003)
32 Minute Entry: Settlement Conference held on 4/21/2003 before Judge Edward A. Infante. Case settled. () (mp, ) (Entered: 04/22/2003)
33 AMENDED Minute Entry: Settlement Conference held on 4/21/2003 before Judge Edward A. Infante. () (mp, ) (Entered: 04/22/2003)

Case: 5:02-cv-01808-RMW As of: 05/23/2010 11:01 PM PDT 4 of 4

06/09/2003 07/11/2003 07/22/2003

35 Minute Entry: Status Conference re: settlement held on 6/9/2003 before Judge Edward A. Infante. () (mp, ) (Entered: 06/09/2003)
36 STIPULATION of Dismissal Pursuant to Terms of Settlement by Deborah A. Lane, Joshua E. Loya, Santa Cruz Metropolitan Transit District. (Attachments: # 1 Proposed Order)(Fox, Timothy) (Entered: 07/11/2003)
37 ORDER of Dismissal. Signed by Judge Ronald M.Whyte on 7/22/03. (jv, ) (Entered: 07/22/2003)

 
 Settlement Agreement and Release
This Settlement Agreement and Release (hereinafter “Agreement”) is entered into on this day of ______________, 2003 between the Deborah A. Lane and Joshua E. Loya (collectively “Plaintiffs”), on the one hand, and the Santa Cruz Metropolitan Transit District (“Santa Cruz Metro”) on the other.
WITNESSETH
WHEREAS, Santa Cruz Metro is a political subdivision of the State of California and operates a fixed route transit system in the metropolitan area of Santa Cruz, California;
WHEREAS, Plaintiffs have brought suit in the United States District Court for the Northern District of California, Case Number C 02-01808 (the “Lawsuit”), in which they allege that Santa Cruz Metro violated various California and federal statutes and regulations;
WHEREAS, Santa Cruz Metro does not concede that it has violated these California and federal statutes and regulations; and
WHEREAS, Plaintiffs and Santa Cruz Metro now wish to effect a complete resolution and settlement of all claims, disputes and controversies relating to the allegations made by Plaintiffs and to resolve their differences and disputes by settling the Lawsuit.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties agree as follows:
1 Definitions.
In addition to the terms defined elsewhere in the Agreement, the following terms shall have the meanings set forth below.
1.1 “Bus” means a vehicle used to provide public transportation on a fixed route.
1.2 “Bus stop” means a designated point on a fixed route at which a bus stops for the purpose of boarding or deboarding passengers.
1.3 “Call stop” means a bus stop that is announced to passengers on board a bus whether or not such bus stop is requested to be announced by a passenger.
1.4 “Fixed route” means a prescribed route on which a bus is operated according to a fixed schedule.
1.5 “Talking technology equipment” means equipment that can be programmed to announce call stops and fixed routes.

1.6 “Unannounced stop” means a bus stop that is not a call stop.

2 Required Announcements.

2.1 Santa Cruz Metro will use buses with talking technology equipment on all routes on the following schedule:

2.1.1 With the exception of buses used on the Highway 17 route, talking technology equipment will be installed on all buses used on fixed routes on or before July 31, 2003.

2.1.2

Metro has ordered new buses for use on its Highway 17 route. Metro will install and program talking technology equipment on these buses within 45 days of the date that these buses are delivered and accepted by Metro. Metro will not place these buses in service until talking technology equipment has been programmed and installed on the buses.

2.2 Santa Cruz Metro will program the talking technology equipment so that:

2.2.1 it announces every bus stop as a call stop except those within 600 feet of an earlier stop;

2.2.2 it announces the fixed route number each time the door is opened while the bus is in service.

2.2.3

Notwithstanding the provisions of sections 2.2.1. and 2.2.2., above, the parties recognize that there may be occasions in which the talking technology equipment cannot be programmed to call every stop. The parties also recognize that problems not envisioned may arise that will hinder the operation of the talking bus technology equipment. Accordingly, the parties hereby agree that the inability to effectuate a call stop otherwise required to be made under this Agreement shall not be a violation of this Agreement if such inability is due to the limitations of the talking bus technology equipment in conjunction with a specific route.

2.3 At the request of an individual with a disability, Santa Cruz Metro will announce any bus stop. In addition, at the reasonable request of a person with a disability, Santa Cruz Metro personnel on duty at the time of the request will advise such disabled person of the location of the bus serving the disabled person's desired route, or, if the Metro personnel does not know the correct route, he/she will direct the disabled person to a knowledgeable Metro employee who can provide the requested information.

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2.4 Whether by bus operators or using talking technology equipment, bus stops as defined herein will be announced loud enough to be heard.

2.5 Whether by bus operators or using talking technology equipment, Santa Cruz will make a good faith effort to announce the fixed route numbers required to be announced under this Agreement at a volume that can be heard by passengers waiting at bus stops.

3 Bus Operator Discipline.

Santa Cruz Metro will ensure that complaints by riders relating to violations of the policies set forth in Paragraph 2 above will be handled in the same manner as other types of complaints received by Santa Cruz Metro.

4 Monitoring.

4.1 Throughout the Term of this Agreement, Santa Cruz Metro will monitor compliance with Paragraph 2 (“Monitoring”) as follows:

4.1.1

Santa Cruz Metro will retain an outside agency (the “Agency”) to conduct Monitoring. Santa Cruz Metro will ensure that the Agency uses personnel who are not easily identifiable and that such personnel will conduct Monitoring in such a way as to make it difficult to identify them as monitors.

4.1.2 As it has done in the past, Santa Cruz Metro will ensure that the Agency spends at least 100 hours per quarter riding its buses to conduct Monitoring (“Basic Monitoring”).

4.1.3

In addition to Basic Monitoring, if Santa Cruz Metro receives five (5) complaints in any given quarter that a given operator has violated any provision of this Agreement, it will retain the Agency to monitor that operator by riding his or her buses at least two (2) times in the next three (3) months (“Targeted Monitoring”).

4.1.4 The information tracked and recorded by monitors in the future will be consistent with the information that monitors have tracked and recorded in the past.

5 Damages.

5.1 Within thirty (30) days of the execution of this Agreement, Santa Cruz Metro will pay $5,000 to Deborah A. Lane by sending a check in this amount, made out to

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her, to Fox & Robertson, P.C. at the address in Paragraph 12. This amount will satisfy in full Ms. Lane’s claims for all compensatory, statutory and punitive damages.
5.2 Within thirty (30) days of the execution of this Agreement, Santa Cruz Metro will pay $5,000 to Joshua E. Loya by sending a check in this amount, made out to him, to Fox & Robertson, P.C. at the address in Paragraph 12. This amount will satisfy in full Mr. Loya’s claims for all compensatory, statutory and punitive damages.
5.3 Address and taxpayer identification necessary to preparation of checks and 1099 tax form documentation will be provided to Santa Cruz Metro by side letter from Plaintiffs’ counsel within three (3) days of execution of this agreement.
6 Attorneys’ Fees and Costs
Within thirty (30) days of the execution of this Agreement, Santa Cruz Metro will pay $135,000 to Plaintiffs’ Counsel by sending a check in this amount, made out to Fox & Robertson, P.C., to the address in Paragraph 12. This amount will satisfy in full Plaintiffs’ claims for all attorneys’ fees and costs incurred through the date of execution of this Agreement. This amount does not include any fees or costs incurred in litigation pursuant to the California Public Records Act, and nothing in this Agreement limits Plaintiffs or their counsel from seeking fees or costs in connection with such litigation.
7 Disposition of Documents and Solicitation of Clients.
7.1 Plaintiffs and Plaintiffs’ counsel agree that, at the end of the Term of this Agreement, they will return to Santa Cruz Metro all hard copies of documents produced in discovery by Santa Cruz Metro that do not contain attorney work product or attorney-client communications.
7.2 Plaintiffs and Plaintiffs’ counsel agree that, at the end of the Term of this Agreement, they will destroy all hard copies of documents produced in discovery by Santa Cruz Metro that contain either attorney work product or attorney-client communications.
7.3 Plaintiffs and Plaintiffs’ counsel agree that, with respect to any electronic copies of any documents produced in discovery by Santa Cruz Metro, they will either delete those documents or, if they are burdensome to find and delete, will not access those documents following the end of the Term of this Agreement.
7.4 Plaintiffs’ counsel agree that they will not actively solicit clients with potential claims against Santa Cruz Metro. However, nothing in this Agreement prohibits
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in any way Plaintiffs’ counsel from representing clients with potential claims against Santa Cruz Metro as long as such clients were not actively solicited by Plaintiffs’ counsel.
8 Term of Agreement.
The Term of this Agreement will be two years from the date on which the last bus with talking technology equipment is put into service by Santa Cruz Metro. When that event occurs, Santa Cruz Metro will provide notice to Plaintiffs at the addresses in Paragraph 12.
9 No Admissions.
The parties to this Agreement understand and acknowledge that this Agreement constitutes a compromise and settlement of disputed claims. No action taken by the parties hereto, or any of them, either previously or in connection with the Agreement, shall be deemed or construed to be:
9.1 An admission of the truth or falsity of any claims heretofore made;
9.2 An acknowledgment or admission by either party of any particular fault or liability as to the other party.
10 Release and Dismissal.
10.1 Plaintiffs, for themselves, their heirs and assigns, do hereby forever release and discharge Santa Cruz Metro, its Board of Directors, subsidiaries, affiliates, successors, predecessors, assigns, directors, agents, employees, insurers, attorneys and representatives (collectively, referred to as the “Released Parties”) from any and all causes of action, actions, judgments, liens, indebtedness, damages, losses, claims, liabilities and demands of whatsoever kind and character in any manner whatsoever arising from or relating to the accessibility of the Santa Cruz public transportation system, and/or retaliation by any of the Released Parties, occurring prior to the execution of this Agreement. Plaintiffs understand and expressly agree that this Agreement extends to all of their claims of every nature and kind, known or unknown, suspected or unsuspected, past, present, or future, arising from or relating to any alleged violation by the Released Parties occurring prior to the execution of this Agreement, relating to the accessibility of the Santa Cruz public transportation system for persons with disabilities and/or retaliation by any of the Released Parties.
10.2 Plaintiffs and Santa Cruz Metro mutually waive any and all rights and benefits conferred by the provisions of Section 1542 of the Civil Code of the State of California. This section provides as follows:
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“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
10.3 Within fifteen (15) days of execution of the Agreement by all parties, Plaintiffs shall move to dismiss the Lawsuit with prejudice, subject to the reservation of jurisdiction by the U.S. District Court to enforce the Agreement,
11 Entire Agreement.
This Agreement contains all the agreements, conditions, promises and covenants among Santa Cruz Metro, Plaintiffs, and their respective counsel regarding matters set forth in it and supersedes all prior or contemporaneous agreements, drafts, representations or understandings, either written or oral, with respect to the subject matter of the present Agreement.
12 Communications to Santa Cruz Metro and Plaintiffs’ Counsel.
All notices or communications required by this Agreement shall be in writing by facsimile and U.S. Mail or overnight delivery service addressed as follows:
12.1 To Plaintiffs’ counsel (or their successors):
Timothy P. Fox, Esq. Fox & Robertson, P.C. 910 - 16th Street Suite 610 Denver, CO 80202
Linda D. Kilb, Esq. Disability Rights Education & Defense Fund 2212 Sixth Street Berkeley, CA 94710
12.2 To Santa Cruz Metro:
Margaret Gallagher, Esq. District Counsel Santa Cruz Metropolitan Transit District 370 Encinal Street Suite 100 Santa Cruz, CA 95060
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13 Severability.
If any such provision or any part of this Agreement shall at any time be held unenforceable, then the remaining provisions of this Agreement shall remain effective and enforceable.
14 Execution in Counterparts.
This Agreement may be signed in counterpart and shall be binding and effective immediately upon execution of one or more counterparts by all parties. All parties shall sign three copies of this document and each such copy shall be considered an original.
15 Governing Law.
This Settlement Agreement shall be governed and construed in accordance with the laws of California.

Santa Cruz Metropolitan Transit District

Deborah A. Lane

By: Its:

Joshua E. Loya

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APPROVED AS TO FORM: RIVKIN RADLER LLP
D. Douglas Shureen 1330 North Dutton Avenue Suite 200 Santa Rosa, CA 95401-4646 Attorney for Defendant

APPROVED AS TO FORM:
FOX & ROBERTSON, P.C.
Timothy P. Fox 910 16th Street Suite 610 Denver, CO 80202
Linda D. Kilb, Esq. Disability Rights Education & Defense Fund 2212 Sixth Street Berkeley, CA 94710
Attorneys for Plaintiffs

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