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Guy B. Wallace (SBN 176151)

gwallace@schneiderwallace.com

Mark T. Johnson (SBN 76904)

mjohnson@schneiderwallace.com

SCHNEIDER WALLACE COTTRELL

 KONECKY WOTKYNS LLP

2000 Powell Street, Suite 1400

Emeryville, CA 94608

(415) 421-7100; (415) 421-7105 (Fax)

Linda M. Dardarian (SBN 131001)

ldardarian@gbdhlegal.com

Andrew P. Lee (SBN 245903)

alee@gbdhlegal.com

Katharine L. Fisher (SBN 305413)

kfisher@gbdhlegal.com

GOLDSTEIN, BORGEN, DARDARIAN & HO

300 Lakeside Drive, Suite 1000

Oakland, CA 94612

(510) 763-9800; (510) 835-1417 (Fax)

Adam B. Wolf (SBN 215914)

awolf@pwcklegal.com 

Catherine Cabalo (SBN 248198)

ccabalo@pwcklegeal.com

PEIFFER WOLF CARR & KANE

4 Embarcadero Center, 14th Floor

San Francisco, CA 94104

(415) 766-3592; (415) 402-0058 (Fax)

Attorneys for Plaintiffs and the Certified Classes

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

ABDUL NEVAREZ and PRISCILLA NEVAREZ, 

on behalf of themselves and all others similarly 

situated, and SEBASTIAN DEFRANCESCO,

Plaintiffs,

vs.

FORTY NINERS FOOTBALL COMPANY, LLC, 

a Delaware limited liability company, et al.,

Defendants.

Case No.: 5:16-cv-07013-LHK (SVK)

PLAINTIFFS’ NOTICE OF MOTION AND 

MOTION FOR PARTIAL SUMMARY 

JUDGMENT; MEMORANDUM OF 

POINTS AND AUTHORITIES IN SUPPORT 

OF MOTION

Date: August 29, 2019

Time: 2:00 p.m.

Dept: Courtroom 8

Before: Hon. Lucy H. Koh

Trial Date: November 18, 2019

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TABLE OF CONTENTS

Page

NOTICE OF MOTION ...................................................................................................................1

MEMORANDUM OF POINTS AND AUTHORITIES.................................................................3

I. INTRODUCTION...............................................................................................................3

II. STATEMENT OF RELEVANT FACTS AND PROCEDURAL BACKGROUND .........4

A. The Defendants and Their Respective Roles...........................................................4

B. Plaintiffs’ Operative Fourth Amended Complaint Identifies Thousands of 

Physical Access Barriers in Levi’s Stadium and Its Related Parking and 

Pedestrian Right of Way Facilities That Violate Applicable Federal and 

California Disability Access Design Standards.......................................................6

III. APPLICABLE STANDARDS............................................................................................6

A. Summary Judgment.................................................................................................6

B. The Americans with Disabilities Act ......................................................................7

C. Unruh Civil Rights Act............................................................................................8

IV. ARGUMENT ......................................................................................................................9

A. Plaintiffs Are Individuals with Disabilities, and Defendants Are Covered 

Entities Under Both Titles II and III of the ADA....................................................9

B. The Forty Niners and City Defendants Are Liable Under the ADA and the 

Unruh Act Because the Six Barriers At Issue Violate Federal and State Access 

Standards. ..............................................................................................................11

1. It is undisputed that the selected drink rail at Levi’s 501 Club South 

exceeds accessible height limits and does not provide an accessible 

section........................................................................................................11

2. It is undisputed that the dining counter in the Bourbon Pub exceeds 

accessible height limits and does not provide accessible spaces...............12

3. It is undisputed that the designated accessible seating for Section 112-

108 Row 1 has excessive slopes................................................................13

4. It is undisputed that the handrail extensions at the ramp serving the 

designated accessible seating at Sections 112-108 Row 1W are too 

short. ..........................................................................................................15

C. Defendant Forty Niners Management Company LLC Failed and Fails to 

Provide the Number of Accessible Parking Spaces for Levi’s Stadium 

Required by Federal and State Disability Access Standards.................................16

D. The City Failed to Construct the Selected Curb Ramp in Compliance with the 

1991 ADAAG........................................................................................................20

V. CONCLUSION .................................................................................................................23

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TABLE OF AUTHORITIES

Federal Cases Page(s)

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ........................................................................................................................6, 7

Barden v. City of Sacramento,

292 F.3d 1073 (9th Cir. 2002).....................................................................................................10, 23

CarePartners LLC v. Lashway,

428 Fed. App’x 734 (9th Cir. 2011)....................................................................................................7

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) ............................................................................................................................7

Chapman v. Pier 1 Imports (U.S.) Inc.,

779 F.3d 1001 (9th Cir. 2015).............................................................................................................7

Disabled Rights Action Comm. v. Las Vegas Events, Inc.,

375 F.3d 861 (9th Cir. 2004).......................................................................................................10, 11

Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc.,

603 F.3d 666 (9th Cir. 2010)...............................................................................................................8

Kalani v. Starbucks Corp.,

81 F. Supp. 3d 876 (N.D. Cal. 2015), aff’d sub nom. Kalani v. Starbucks Coffee Co., 

698 F. App’x 883 (9th Cir. 2017)........................................................................................................7

Kirola v. City & Cty. of San Francisco,

860 F.3d 1164 (9th Cir. 2017).......................................................................................................8, 21

Long v. Coast Resorts, Inc.,

267 F.3d 918 (9th Cir. 2001)...............................................................................................................7

Lopez v. S.F. Unified Sch. Dist.,

No. 3:99-cv-03260-SI, 2004 WL 6061306 (N.D. Cal. Apr. 20, 2004) ...............................................7

Moeller v. Taco Bell Corp.,

816 F. Supp. 2d 831 (N.D. Cal. 2011).................................................................................................8

Moeller v. Taco Bell Corp.,

No. 4:02-cv-05849-PJH, 2007 WL 2301778 (N.D. Cal. Aug. 8, 2007)......................................7, 8, 9

Nevarez v. Forty Niners Football Co., LLC,

326 F.R.D. 562 (N.D. Cal. 2018) ..................................................................................................8, 11

O’Guinn v. Lovelock Corr. Ctr.,

502 F.3d 1056 (9th Cir. 2007).............................................................................................................7

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Oliver v. Ralphs Grocery Co.,

654 F.3d 903 (9th Cir. 2011)...............................................................................................................8

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,

809 F.2d 626 (9th Cir. 1987)...............................................................................................................7

Federal Statutes

42 U.S.C.

§ 12102(1)(A)......................................................................................................................................9

§ 12132 ................................................................................................................................................7

§ 12182(a)............................................................................................................................................8

§ 12183(a)(1).......................................................................................................................................8

§ 12201(b) .....................................................................................................................................8, 11

State Statutes

2010 California Building Code ....................................................................................................... passim

Cal. Gov’t Code § 6532(b)(1) ...................................................................................................................4

Unruh Civil Rights Act, Cal. Civ. Code §§ 51, et seq..................................................................... passim

Rules

Fed. R. of Civ. P.

30(b)(6)..............................................................................................................................................18

56(a).............................................................................................................................................1, 6, 7

Regulations

28 C.F.R.

§ 35.149 .............................................................................................................................................10

§ 35.151(a).........................................................................................................................................21

§ 35.151(a)(1)................................................................................................................................8, 10

§ 36.201(a).......................................................................................................................................5, 9

Other Authorities

1991 Americans with Disabilties Act Accessibility Guidelines...................................................... passim

2010 Americans with Disabilities Act Accessibility Standards...................................................... passim

ADA Best Practices Tool Kit for State and Local Government, Appendices 1 and 2, 

Section D.2 available at https://www.ada.gov/pcatoolkit/introapp1and2.htm .................................21

Title II Technical Assistance Manual § II-1.3000 (Relationship to title III) available at

https://www.ada.gov/taman2.html#II-1.3000....................................................................................11

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NOTICE OF MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT on August 29, 2019 at 2:00 p.m. in Courtroom 8 of the United 

States Courthouse at 280 South 1st Street, San Jose, California, Plaintiffs, on behalf of themselves and 

the certified classes of similarly situated individuals with mobility disabilities and their companions, will 

and hereby do move this Court under Federal Rule of Civil Procedure 56(a) for an order granting partial 

summary judgment against Defendants Forty Niners Football Company, LLC; Forty Niners SC Stadium 

Company, LLC; Forty Niners Stadium Management Company, LLC; Santa Clara Stadium Authority;

and/or the City of Santa Clara with respect to six physical access barriers selected by Plaintiffs pursuant 

to the Court’s Case Management Orders (ECF Nos. 328 & 333). This motion is based upon this Notice; 

the accompanying Memorandum of Points and Authorities; the accompanying declarations and exhibits; 

all pleadings and papers on file in this action; and any argument or evidence that may be presented at the 

hearing of this motion, if a hearing is deemed necessary.

STATEMENT OF ISSUES TO BE DECIDED AND RELIEF SOUGHT

By this Motion, pursuant to Federal Rule of Civil Procedure 56(a), Plaintiffs request that the 

Court grant partial summary judgment in their favor and enter the following findings against Defendants 

as final determinations of these issues, not subject to further proceedings in this case: 

1. Plaintiffs Abdul Nevarez and Sebastian DeFrancesco are persons with disabilities within 

the meaning of Titles II and III of the Americans with Disabilities Act of 1990 (“ADA”).

2. Defendants Santa Clara Stadium Authority and the City of Santa Clara (together, “the 

City Defendants”) are public entities under Title II of the ADA.

3. Defendants Forty Niners Football Company, LLC; Forty Niners SC Stadium Company, 

LLC; and Forty Niners Stadium Management Company, LLC (collectively “the 49ers Defendants”) are 

entities that own, lease, or operate Levi’s Stadium.

4. Levi’s Stadium is a place of public accommodation under Title III of the ADA.

5. Levi’s Stadium is a program, service or activity of the City of Santa Clara and the Santa 

Clara Stadium Authority under Title II of the ADA.

6. Levi’s Stadium is a business establishment under the Unruh Act.

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7. Defendants Forty Niners Football Company, LLC; Forty Niners SC Stadium Company, 

LLC; and Forty Niners Stadium Management Company, LLC violated Title III of the ADA; Defendants 

Santa Clara Stadium Authority and the City of Santa Clara violated Title II of the ADA; and all 

Defendants violated the Unruh Act by failing to design and construct Levi’s Stadium in compliance with 

applicable disability access standards with respect to the following:

a. The drink rail at the Levi’s 501 Club, which exceeds accessible height limits and 

does not provide an accessible section (Barrier 1); 

b. The dining counter in the Bourbon Pub, which exceeds accessible height limits 

and does not provide accessible spaces (Barrier 2); 

c. The designated accessible seating for Section 112-108 Row 1W, which has 

excessive slopes (Barrier 3); and

d. The bottom handrail extensions at the ramp serving the designated seating at 

Sections 112-108 Row 1W, which are too short (Barrier 4).

Plaintiffs also request that the Court enter the following findings against Defendant Forty Niners 

Management Company LLC as final determinations of these issues, not subject to further proceedings in 

this case:

1. Defendant Forty Niners Management Company LLC operates the parking lots that serve 

Levi’s Stadium during events; and

2. Defendant Forty Niners Management Company LLC violated Title III of the ADA and 

the Unruh Act by failing to provide the required number of wheelchair accessible car and van parking 

spaces for Levi’s Stadium (Barrier 5).

Plaintiffs further request that the Court enter the following findings against Defendant City of 

Santa Clara as final determinations of these issues, not subject to further proceedings in this case:

1. The pedestrian right of way serving Levi’s Stadium is a service, program or activity of the 

City of Santa Clara under Title II of the ADA.

2. Defendant City of Santa Clara violated Title II of the ADA by failing to newly construct 

and/or alter the curb ramp at the Northwest corner of the intersection of Democracy Way and Old 

Ironsides Drive in compliance with slope requirements of the 1991 ADAAG (Barrier 6).

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Levi’s Stadium (“the Stadium”) opened to the public in 2014. It hosts approximately ten 

professional football games each NFL season, as well as college football games, soccer matches, 

concerts, motocross events, and marquee events, such as the 2016 Super Bowl. Despite its new 

construction and the fact that thousands of people with mobility disabilities attend events at the Stadium 

every year, the Stadium, its related parking facilities, and the pedestrian right of way serving the Stadium 

are rife with physical and operational barriers that deny full and equal access to persons with mobility 

disabilities and their nondisabled companions in violation of the Americans with Disabilities Act of 1990 

(“ADA”), 42 U.S.C. §§ 12101, et seq. and California’s Unruh Civil Rights Act (“Unruh Act”), Civil 

Code §§ 51, et seq.

Plaintiffs seek partial summary judgment against Defendants Forty Niners Football Company, 

LLC, Forty Niners SC Stadium Company, LLC, and Forty Niners Stadium Management Company, LLC 

(collectively, “the 49ers Defendants”), and Defendants City of Santa Clara and Santa Clara Stadium 

Authority (“the City Defendants”) on the six physical access barriers that Plaintiffs selected to litigate 

through summary judgment and trial (ECF No. 335) pursuant to the Court’s orders (ECF Nos. 328, 333). 

Regarding the Stadium, Plaintiffs seek partial summary judgment against all Defendants under the ADA 

and the Unruh Act arising from two inaccessible dining and drink surfaces; a ramp on the path of travel 

to designated wheelchair accessible seating; and the designated “accessible” seating itself. Plaintiffs also 

seek partial summary judgment under the ADA and Unruh Act that Defendant Forty Niners Stadium 

Management Company, LLC, which operates parking for Levi’s Stadium, failed to provide the required 

number of wheelchair accessible parking spaces. Plaintiffs further seek partial summary judgment 

against the City of Santa Clara under the ADA for failing to comply with the applicable disability access 

standard when constructing a curb ramp in the pedestrian right of way that connects a remote parking lot 

to the Stadium. 

The Parties stipulated to the requirements applicable to each of the six alleged physical access 

barriers selected by Plaintiffs, thus obviating the need for separate analyses under the 2010 ADA 

Standards (“2010 ADAS”), 1991 ADA Accessibility Guidelines (“1991 ADAAG”), and the 2010 

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California Building Code (“2010 CBC”). See ECF No. 341. The six barriers at issue in this motion 

clearly and indisputably violate those standards. 1 As to each physical access barrier, even Defendants’ 

experts either concede the matter or do not meaningfully contest that the barrier violates federal and/or 

state access standards. Accordingly, this Court should rule in Plaintiffs’ favor, as set forth in the 

proposed order submitted herewith.

As necessary predicates to the adjudication of the Plaintiffs’ six physical access barriers, 

Plaintiffs also seek findings that Plaintiffs Abdul Nevarez and Sebastian DeFrancesco are persons with 

disabilities under Titles II and III of the ADA, and that the City Defendants and the 49ers Defendants are 

covered entities under Titles II and III of the ADA, respectively.

II. STATEMENT OF RELEVANT FACTS AND PROCEDURAL BACKGROUND

A. The Defendants and Their Respective Roles 

Defendant Santa Clara Stadium Authority (“Stadium Authority”) owns Levi’s Stadium. ECF No. 

220 (Defs.’ Answer to Pls.’ Fourth Am. Compl. (“Answer”) ¶ 9). The Stadium Authority was formed by 

agreement between Defendant City of Santa Clara (“the City”) and the Redevelopment Agency of the 

City of Santa Clara for “the construction, operation, and maintenance of a stadium and related facilities” 

“suitable for use by a professional football team ....” Cal. Gov’t Code § 6532(b)(1). The Stadium 

Authority has “the power to acquire, finance, construct, manage, maintain, and operate a stadium and 

related facilities.” Id.

The City owns the real property on which Levi’s Stadium was built and leases the property to the 

Stadium Authority in exchange for “a fair market rent,” i.e. fixed ground rent plus additional 

“performance based rents,” including fifty percent of net income from non-NFL events held at the 

Stadium. See ECF No. 220 (Answer ¶ 9); Lee Decl., Ex. A (Ground Lease at SC00006 (Recitals B-D); 

SC00015 (§§ 1.93-1.94 defining “Performance Based Rent” and “Performance Based Rent Credits”); and 

SC00034-7 (Article 4 Rent)).2 Then, pursuant to the Stadium Lease Agreement, the Stadium Authority 

 1 For the Court’s convenience, Plaintiffs have attached relevant excerpts of these disability access 

standards to the Declaration of Andrew P. Lee in Support of Plaintiffs’ Motion for Partial Summary 

Judgment (“Lee Decl.”). See Lee Decl. Exs. U (1991 ADAAG); V (2010 ADAS); W (2010 CBC).

2 The Ground Lease between the City and Stadium Authority also requires the Stadium Authority to 

oversee the construction of the Stadium pursuant to plans approved by the City (Lee Decl. Ex. A (at 

SC00040-42 (Article 7 Construction of Improvements)); and to “use the Stadium Site for the development 

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leases the Stadium, including its ground site and parking spaces, to the Forty Niners SC Stadium 

Company LLC (“StadCo”) for exclusive use during the NFL Game Season and shared use with the

Stadium Authority for all other events. Id. Ex. B (Stadium Lease Agreement, SC00194-5, §§ 1.1 & 1.3). 

The Ground and Stadium Leases define the Forty Niners Stadium Management Company LLC as the 

“Stadium Manager,” which manages and oversees the day-to-day operations of the Stadium and related 

parking lots. ECF No. 220, ¶ 9; see also Lee Decl. Ex. A (Ground Lease at SC00018); Ex. B (Stadium 

Lease at SC00224). Defendants admit that StadCo and Forty Niners Stadium Management Company 

LLC are the lessee and operator of the Stadium, respectively, within the meaning of the Title III 

regulations, 28 C.F.R. section 36.201(a). See Lee Decl., Ex. P (49ers Defendants’ Responses to RFAs, Set 

One, at Nos. 19 and 20). 

The Forty Niners Football Company LLC (“the Team”) leases the Stadium as the “sub-subtenant” on 

the Ground Lease (between the City and Stadium Authority), Stadium Lease (between Stadium Authority and 

StadCo), and the Team Sublease (between StadCo and the Team). Lee Decl. Ex. A (Tenant Recognition 

Agreement at SC00163-4); Ex. C (Team Sublease, Exhibit to Stadium Lease, at SC00504-505, 514-15); see 

also, id., Ex. A (Ground Lease, SC00020, §§ 1.144-5).

The Santa Clara Stadium Authority, acting pursuant to its contractual arrangements with the City 

and the Forty Niners Defendants, hired Third-Party Defendant Turner/Devcon to build Levi’s Stadium 

pursuant to a Design-Build Agreement. See ECF No. 119, ¶ 12; see also Lee Decl. Ex. A at SC00009

§ 1.35 (Ground Lease defining Turner/Devcon as Design-Build Contractor); Ex. B at SC00344 (same 

for Stadium Lease); see generally, ECF No. 316-1, Ex. D (excerpts of Design-Build Agreement, Ex. D 

to the Decl. of Andrew Lee in Supp. of Pls.’ Reply Brief in Further Supp. of First Mot. for Partial 

Summ. J. (“Prior Lee Reply Decl.”)). Defendants have since filed a Third-Party Complaint against 

Turner/Devcon. ECF No. 107.

The pedestrian right of way that leads from the parking lots adjacent to Levi’s Stadium to the 

entrances of the Stadium is a program of the City of Santa Clara. ECF No. 220 ¶ 9 (Answer admitting 

that “the City of Santa Clara owns and maintains the pedestrian rights of way connecting Levi’s Stadium 

 

and operation of the Stadium for the hosting of NFL Games and other events, including concerts, 

sporting events” (i.e. “Permitted Uses”). Id. at SC00038-40 (Article 6, Use of Stadium Site).

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with the parking lots used for Levi’s Stadium events”). 

B. Plaintiffs’ Operative Fourth Amended Complaint Identifies Thousands of Physical Access 

Barriers in Levi’s Stadium and Its Related Parking and Pedestrian Right of Way Facilities 

That Violate Applicable Federal and California Disability Access Design Standards.

In this certified class action, Plaintiffs’ Fourth Amended Complaint alleged more than 2,500 

physical elements in the Stadium, adjacent parking lots, and pedestrian right of way connecting the 

parking lots and the Stadium that violate the 2010 ADAS, the 2010 CBC, and the 1991 ADAAG, in 

addition to illegal policies and procedures regarding ticketing. See ECF No. 195. Plaintiffs’ access 

experts, who are all architects and/or state-certified access specialists, spent ten days inspecting the 

Stadium, its related parking facilities, and connecting pedestrian right of way to determine compliance 

with access standards. Declaration of Jeffrey Scott Mastin in Supp. of Pls.’ Mot. for Summ. J. (“Mastin 

Decl.”) ¶¶ 15-16; Declaration of W. Scott McBrayer in Supp. of Pls.’ Mot. for Summ. J. (“McBrayer 

Decl.”) ¶¶ 8-9; Declaration of Gary K. Waters in Supp. of Pls.’ Mot. for Summ. J. (“Waters Decl.”) ¶¶ 9-

10. Their inspections confirm that the Stadium indisputably has pervasive physical access barriers that 

violate the 2010 ADAS, the 1991 ADAAG, and the 2010 CBC. Defendants’ experts, Kim Blackseth and 

Jonathan Adler, and Third-Party Defendants’ experts, Ed Roether and Engineer Research Group, also 

inspected these facilities. See Lee Decl., Exs. E (Blackseth Stadium Report); F (Blackseth Restaurant 

Report); O (Adler/Puente Peters Report); H (Roether Report); J (ERG Report). 

Among the hundreds of barriers that are either confirmed or not meaningfully disputed by 

Defendants’ experts are the six physical access barriers that are the subject of this Motion. These barriers 

– including a curb ramp with excessive slopes; insufficient accessible parking spaces; an inaccessible

dining counter and drink rail; ramp handrails that are too short; and so-called “accessible” wheelchair 

seating that has excessive slopes – significantly detract from full and equal access to Levi’s Stadium by 

persons with mobility disabilities.

III. APPLICABLE STANDARDS

A. Summary Judgment

Summary judgment is appropriate if the evidence shows that “there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a

reasonable jury to return a verdict for the nonmoving party. Id. A plaintiff “may move for summary 

judgment, identifying each claim . . . - or the part of each claim . . . - on which summary judgment is 

sought.” Fed. R. Civ. P. 56(a).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of 

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the initial burden is met, the burden 

shifts to the nonmoving party to present “specific facts showing that there is a genuine issue for trial.” 

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (emphasis 

original). Conclusory allegations, conjecture, and speculation are insufficient to create a genuine issue of 

material fact. CarePartners LLC v. Lashway, 428 Fed. App’x 734, 736 (9th Cir. 2011).

Numerous courts have granted partial summary judgment where a plaintiff demonstrated 

undisputed violations of federal disability access standards. See, e.g., Kalani v. Starbucks Corp., 81 F. 

Supp. 3d 876 (N.D. Cal. 2015), aff’d sub nom. Kalani v. Starbucks Coffee Co., 698 F. App’x 883 (9th 

Cir. 2017); Chapman v. Pier 1 Imports (U.S.) Inc., 779 F.3d 1001, 1010 (9th Cir. 2015); Long v. Coast 

Resorts, Inc., 267 F.3d 918, 921-24, 926 (9th Cir. 2001); Moeller v. Taco Bell Corp., No. 4:02-cv-05849-

PJH, 2007 WL 2301778, at *2-3, *22 (N.D. Cal. Aug. 8, 2007); Lopez v. S.F. Unified Sch. Dist., No. 

3:99-cv-03260-SI, 2004 WL 6061306, at *1-3 (N.D. Cal. Apr. 20, 2004).

B. The Americans with Disabilities Act 

Under Title II of the ADA, which applies to the City Defendants, “no qualified individual with a 

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

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

entity.” 42 U.S.C. § 12132. To prevail on a discrimination claim under Title II, a plaintiff must show 

that: (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the 

benefit of a public entity’s services, programs or activities; (3) he was either excluded from participation 

in or denied the benefits of the public entity’s services, programs or activities or was otherwise 

discriminated against by the public entity; and (4) such exclusion, denial of benefits or discrimination 

was by reason of his disability. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007).

Under Title III of the ADA, which applies to the 49ers Defendants and the public 

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accommodations that they own, lease or operate, including the Stadium and related parking facilities, 

“[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment 

of the goods, services, facilities, privileges, advantages, or accommodations of any place of public 

accommodation by any person who owns, leases (or leases to), or operates a place of public 

accommodation.” 42 U.S.C. § 12182(a). “To prevail on a discrimination claim under Title III, a plaintiff 

must show that: (1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity 

that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public 

accommodations by the defendant because of his disability.” Arizona ex rel. Goddard v. Harkins 

Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010) (citation omitted).

Discrimination under both Titles II and III includes the failure to newly construct or alter 

facilities to make them “readily accessible to and usable by individuals with disabilities.” See 42 U.S.C. 

§ 12183(a)(1) (Title III); 28 C.F.R. § 35.151(a)(1) (Title II). A newly constructed facility is “readily 

accessible” and “useble” by persons with disabilities only if it complies with the applicable accessibility 

standards adopted by the United States Department of Justice (“DOJ”), including the 1991 ADAAG and 

the 2010 ADAS, in effect at the time of construction. Kirola v. City & Cty. of San Francisco, 860 F.3d 

1164, 1177 (9th Cir. 2017). Absent such compliance, “a plaintiff can bring a civil action claiming that 

the feature constitutes a barrier that denies the plaintiff full and equal enjoyment of the premises in 

violation of the ADA.” Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011). 

In addition, where state law “provides greater or equal protection for the rights of individuals 

with disabilities than are afforded by [the ADA],” those greater protections apply. 42 U.S.C. § 12201(b); 

Nevarez v. Forty Niners Football Co., LLC, 326 F.R.D. 562, 578 (N.D. Cal. 2018); Moeller v. Taco Bell 

Corp., 816 F. Supp. 2d 831, 867 (N.D. Cal. 2011).

C. Unruh Civil Rights Act

The Unruh Act guarantees all persons within California, including those with disabilities, full and 

equal access to the services, facilities, and advantages of public accommodations. Cal. Civ. Code 

§ 51(b). Under California law, all buildings constructed or altered after July 1, 1970 must comply with 

standards governing the physical accessibility of public accommodations. Moeller, 2007 WL 2301778, 

at *6 (citing Cal. Health & Safety Code §§ 19956 & 19959). Since December 31, 1981, those standards 

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have been set forth in the California Building Code (“CBC”), Cal. Code Regs., tit. 24, pt. 2. See Moeller, 

2007 WL 2301778, at *6. Additionally, a violation of “the right of any individual” under the ADA 

constitutes a violation of the Unruh Act. Cal. Civ. Code § 51(f). Thus, a violation of the Unruh Act may 

be established through an underlying violation of either the CBC or the ADA.

IV. ARGUMENT

A. Plaintiffs Are Individuals with Disabilities, and Defendants Are Covered Entities Under 

Both Titles II and III of the ADA.

In order to establish their claim under the ADA, Plaintiffs must demonstrate that they are 

individuals with disabilities within the meaning of Titles II and III, i.e. that they are have “a physical 

impairment that substantially limits” a major life activity. 42 U.S.C. § 12102(1)(A). Both Plaintiffs 

Abdul Nevarez and Sebastian DeFrancesco are substantially limited in the major life activity of walking. 

ECF No. 139 at 38, ¶ 3, 87 ¶ 4. This is undisputed. Lee Decl., Ex. P (49ers Defs.’ Resp. to Pls.’ Req. for 

Admis., Set One, Nos. 6-7 (Title III)) and Ex. R (City Defs.’ Resp. to Pls.’ Req. for Admis., Set Two, 

Nos. 24, 26 (Title II)). The Court should enter partial summary judgment on the first prong of Plaintiffs’ 

ADA claims under both Title II and Title III.

Additionally, there is no dispute that the 49ers Defendants are private entities that lease, manage 

and operate Levi’s Stadium as a place of public accommodation. See supra Section II.A; see also Lee 

Decl., Ex. P (49ers Defs.’ Resp. to Pls.’ Req. for Admis., Set One, No. 3 (Levi’s Stadium is a public 

accommodation subject to Title III); and Nos. 19-20 (admitting that StadCo is lessee and Forty Niners 

Stadium Management Company LLC is operator within the meaning of 28 C.F.R. § 36.201(a))); ECF No. 

220, ¶ 9 (Answer; Defendant Forty Niners Stadium Management Company LLC manages and operates 

the Stadium.); Lee Decl. Ex. A ((Tenant Recognition Agreement at SC00163-4; Forty Niners Football 

Company is “sub-subtenant”). 

Defendants also admit that the “parking lots used for Levi’s Stadium events” are owned either by the 

City of Santa Clara or private owners, and that “during Levi’s Stadium events, the Forty Niners Management 

Company LLC operates the parking lots that are owned by the City of Santa Clara [and] also operates other 

off-site parking lots under the ‘Off-Site’ Parking Permits issued by the City of Santa Clara.” ECF No. 220 

(Answer ¶ 9). Thus, there is no dispute that Defendant Forty Niners Management Company is the private 

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entity “operator” of Levi’s Stadium event parking. See, supra, Section III.B.

Similarly, it is undisputed that the City Defendants are public entities under Title II. Lee Decl., 

Ex. R (City Defs.’ Resp. to Pls.’ Req. for Admis., Set Two, Nos. 21 & 22); see also ECF No. 220 

(Answer ¶ 9). It is undisputed that Defendant City of Santa Clara owns the real property on which the 

Stadium is located, leases that property to the Stadium Authority, and contracted with the Stadium 

Authority to build and operate the Stadium in exchange for ground rent, a portion of event income, and 

oversight into the Stadium’s construction and operation. ECF No. 220, ¶ 9; Lee Decl., Ex. Q (City Defs.’ 

Resp. to Pls.’ Req. for Admis., Set One, No. 19); see also, e.g., Lee Decl. Ex. A (Ground Lease at 

SC00040-42 (Article 7 Construction of Improvements); SC00038-40 (Article 6, Use of Stadium Site)). 

Nor is there any dispute that Defendant Santa Clara Stadium Authority owns the Stadium and contracts 

with the Forty Niners Defendants to operate it. ECF No. 220, ¶ 9; Lee Decl., Ex. Q (City Defs.’ Resp. to 

Pls.’ Req. for Admis. No. 20); Ex. B (Stadium Lease Agreement at SC00194-5 §§ 1.1 & 1.3).

The Stadium is therefore a service, program or activity of the City and Stadium Authority, and 

the City Defendants are liable under Title II if the Stadium and related “facilities are inaccessible to or 

unusable by individuals with disabilities.” See 28 C.F.R. § 35.149; see also id. § 35.151(a)(1) (Title II applies 

to “[e]ach facility [newly] constructed by, on behalf of, or for the use of a public entity”) (emphasis added); 

accord Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002) (“[W]e have construed ‘the 

ADA’s broad language [as] bringing within its scope ‘anything a public entity does.’’”) (citation omitted); 

Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 882 (9th Cir. 2004) (“[A] public 

entity acting as a landlord to a public accommodation is subject to title II, and . . . ‘[a]s a public entity, it 

cannot be subject to title III, even though its tenants are public accommodations covered by title III’”) 

(quoting Title II Technical Assistance Manual, at III-1.7000)). 

Furthermore, there can be no dispute that the pedestrian right of way that serves the Stadium is a 

program of Defendant City of Santa Clara. See Barden, 292 F.3d at 1076-77; see ECF No. 220 ¶ 9

(Answer admits that “the City of Santa Clara owns and maintains the pedestrian rights of way connecting

Levi’s Stadium with the parking lots used for Levi’s Stadium events”). Partial summary judgment 

should therefore be granted on the second prong of Plaintiffs’ claims under ADA Titles II and III.

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B. The Forty Niners and City Defendants Are Liable Under the ADA and the Unruh Act 

Because the Six Barriers At Issue Violate Federal and State Access Standards.

Levi’s Stadium is subject to Titles II and III of the ADA,3 as well as the Unruh Act, because it is 

a private entity’s place of public accommodation; a public entity’s program, service or activity; and a 

business establishment. See Nevarez, 326 F.R.D. at 575. As such, Defendants were required to construct 

it to comply with applicable federal and/or state accessibility standards, whichever provides greater 

access. See 42 U.S.C. § 12201(b); Nevarez, 326 F.R.D. at 578. With regard to the four Stadium barriers 

at issue in this motion, it is undisputed that Defendants failed to do so. 

There is no dispute that the Stadium is subject to the 2010 edition of the California Building 

Standards Code. Lee Decl., Ex. P & Q (Defs.’ Resp. to Pls.’ Req. for Admis., Sets One, No. 5 for each). 

And although the Parties disagree as to whether the Stadium is subject to the 2010 ADAS or the 1991 

ADAAG, the Court need not resolve that dispute now because the accessibility requirements applying to 

the barriers in this motion are the same. See generally, ECF No. 341 at 2-4 (Parties’ stipulation that 

access requirements applicable to Plaintiffs’ six selected barriers do not change depending on which 

access standards apply, whether they be the 1991 ADAAG, the 2010 ADAS, or the 2010 CBC). 

Plaintiffs’ and Defendants’ access experts agree that the barriers presented in this motion are out of 

compliance with any potentially applicable requirement. Accordingly, the Court should enter partial 

summary judgment that these conditions violate the rights of visitors with mobility disabilities and their 

companions to full and equal access to Levi’s Stadium under the ADA and the Unruh Act.

1. It is undisputed that the selected drink rail at Levi’s 501 Club South exceeds 

accessible height limits and does not provide an accessible section.

Levi’s Stadium has numerous counter-like surfaces that the design plans refer to as “drink rails.” 

At the Levi’s 501 Club, which is located near the 50-yard line on the 400 Level of the Stadium, a glass-

 3 DOJ guidance supports Plaintiffs’ interpretation: Where public and private entities “engage in a joint 

venture ... to build a new professional sports stadium ... the new stadium would have to be built in 

compliance with the accessibility guidelines of both titles II and III.” Title II Technical Assistance 

Manual § II-1.3000 (Relationship to title III) available at https://www.ada.gov/taman2.html#II- 1.3000; see also Disabled Rights Action Comm, 375 F.3d at 882 (“[A] public entity acting as a landlord 

to a public accommodation is subject to title II, and . . . ‘[a]s a public entity, it cannot be subject to title 

III, even though its tenants are public accommodations covered by title III’”) (quoting Title II Technical 

Assistance Manual, at III-1.7000)). 

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top drink rail is positioned on the Club’s exterior patio to allow Club patrons to switch from watching the 

game on televisions inside to enjoying live views of the field while still having a surface on which to 

place their food or drinks. See, e.g., McBrayer Decl., Ex. B (photographs depicting Levi’s 501 Club 

drink rail).

The Parties agree that under any potentially applicable building code, the drink rails must (1) 

measure between 28 inches and 34 inches maximum above the finished floor [see 2010 ADAS § 902.3; 

2010 CBC § 1122B.4; 1991 ADAAG § 4.32.4], and (2) the accessible section of the dining surface must 

allow for forward approach, including knee clearance at least 27 inches high, 30 inches wide, and 19 

inches deep [see 2010 ADAS § 306.3; 2010 CBC § 1122B.4; 1991 ADAAG § 4.32.4]. See ECF No. 341 

at 3-4 § 3.b (Stipulation Regarding Alleged Barriers Selected for First Trial).4

Defense expert Blackseth found that the drink rail at the Levi’s 501 Club South (and North)

measured forty-two (42) inches high and eight (8) inches deep. Lee Decl. Ex. E (Blackseth Stadium 

Report at 32-33 & Fig 3.8A (picture of drink rail), Dep. Ex. 522 at Blackseth_43-44); Lee Decl. Ex. D 

(Blackseth Dep. 124:25-126:1) (confirming non-compliant condition); cf. McBrayer Decl. ¶ 16 

(measuring same drink rail at 43.5 inches high). Whether the drink rail exceeds the maximum height 

by eight or ten inches, experts for both Plaintiffs and Defendants agree that the drink rail is too high 

and fails to provide the lowered section required by all standards, which deprives individuals with 

mobility disabilities a full and equal Levi’s 501 Club experience. The Court should therefore grant 

Plaintiffs summary judgment on this barrier.

2. It is undisputed that the dining counter in the Bourbon Pub exceeds accessible 

height limits and does not provide accessible spaces.

The Bourbon Steak & Pub restaurants offer Levi’s Stadium visitors the experience of enjoying 

Michael Mina’s award-winning cuisine while attending Stadium events. However, at Bourbon Pub 

(the more casual, less expensive choice), the dining “counter seating facing the window” lacks any 

 4 Plaintiffs contend that approximately twenty (20) drink rails and dining counters at the Stadium violate 

these requirements, but are only moving on one drink rail and one dining counter herein. See Lee Decl. 

¶ 3; see also ECF No. 288-1 (Prior Lee MPSJ Decl. at 65-69 (Barrier Nos. 178-197)). Moreover, the 

height requirement also applies to other dining surfaces, like tables, and Plaintiffs previously moved for 

summary judgment that 177 tables at the Stadium were higher than 34” from the finished floor. See Lee 

Decl. ¶ 3; see also. ECF No. 288-1 (Prior Lee MPSJ Decl. Ex. D) at pp. 38-64 (Barrier Nos. 1-177).

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accessible section. See Lee Decl. Ex. F (Blackseth Restaurant Report at 10 & Fig. 1.5, Dep. Ex. Ex. 

522 at Blackseth_114).

The Parties agree that the Bourbon Pub dining counter must have a lowered portion that does 

not exceed 34 inches above the finished floor. See ECF No. 341 at 3-4 § 3.b (Stipulation Regarding 

Alleged Barriers Selected for First Trial). The 2010 ADAS, 1991 ADAAG and 2010 CBC all mandate a 

34-inch maximum height. See 2010 ADAS § 902.3; 2010 CBC § 1122B.4; 1991 ADAAG § 4.32.4. 

Plaintiffs’ expert Waters measured the dining counter at 42-1/2 inches high, whereas Defendants’

expert Blackseth measured it at 42 inches. See Waters Decl. ¶ 28 & Ex. D (Photos 4318 thru 4324);

Lee Decl. Ex. F (Blackseth Restaurant Report at 10 & Fig. 1.5, Dep. Ex. 522 at Blackseth_114); id. Ex. 

D (Blackseth Dep. 152:8-153:6) (confirming non-compliant condition). Thus, there is no dispute that 

the Bourbon Pub dining counter lacks an accessible section and is much higher than permitted. 

Summary judgment on this barrier is appropriate.

3. It is undisputed that the designated accessible seating for Section 112-108 Row 1 

has excessive slopes.

Unfortunately for Levi’s Stadium visitors with mobility disabilities, having a ticket to sit in a 

designated “accessible” section is no guarantee of accessibility because many such sections, including 

the field-level seating Section challenged here, have excessive slopes in both the access aisles and the 

wheelchair seating spaces themselves.5 The slopes in the accessible seating—both the seating areas and 

accompanying aisle—for Section 112-108 Row 1 are so severe that they undisputedly violate all three 

disability access standards, even accounting for Defendants’ asserted construction tolerances.

The CBC requires that surface slopes at wheelchair seating spaces be “level.” 2010 CBC § 

1104B.3.4; see also ECF No. 341 at 3 ¶ 2.a (Parties’ stipulation that the “2010 CBC and 1991 ADAAG 

require that accessible seating spaces ‘be level.’”). The ADAS provides a lesser degree of protection for 

persons with mobility disabilities, and therefore is not the governing standard for accessible seating 

 5 Plaintiffs contend that there are excessive slopes in eight (8) of the wheelchair seating spaces and 

seven (7) of the access aisles in other designated accessible seating sections throughout the Stadium. 

Lee Decl. ¶ 4. Plaintiffs previously moved for partial summary judgment regarding the slopes in four 

seating spaces and five access aisles. Id.; see also ECF No. 288-1 (Prior Lee MPSJ Decl. Ex. D at p. 

72 (Barrier Nos. 206-209 (seating spaces)) and p. 73 (Barrier Nos. 210-15 (access aisles)). 

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locations in Levi’s Stadium. See ADAS 802.1.1 (permitting seating-space slopes up to 1:48 (2.1%) at 

the steepest point). Although Plaintiffs contend that the 1991 ADAAG does not apply to Levi’s Stadium, 

it is important to note that, like the 2010 CBC, the 1991 ADAAG requires that wheelchair seating spaces 

be “level.” 1991 ADAAG § 4.33.4; see also ECF No. 341 at 3 ¶ 2.a (Parties’ stipulation). 

Whereas the seating spaces must be “level” under the 2010 CBC and 1991 ADAAG, all three 

standards allow for some slope in the “access aisle,” or the area immediately behind the seating spaces 

used to access them. (This difference makes sense: the access aisle is a path of travel, whereas a seating 

space, in order to be equal to a seat, should allow a wheelchair user to be stationary.) As to these paths of 

travel, the 2010 CBC and the 1991 ADAAG prohibit surface cross slopes (i.e. slopes perpendicular to the 

direction of travel) that exceed 1:50 (2.0%), and the 2010 ADAS allows cross slopes up to 1:48 (2.1%). 

See 2010 CBC § 1133B.7.1.3; 1991 ADAAG § 4.3.7; 2010 ADAS § 403.3. Again, the 2010 CBC is the 

more protective, and thus the governing standard for the slope of the access aisles.

The slight differences between the standards described above make no difference here because 

the slopes in both the seating spaces and access aisle for Sections 112-108 Row 1W violate all three 

standards, even accounting for the construction tolerances advanced by Defendants’ experts’. See Lee 

Decl. Ex. D (Blackseth Dep. Dep. 105:16-106:24) (applies one percent tolerance for all slopes); see also id.

Ex. H, (Roether report at 3) (applying “3% for 1:48 maximum, up to 6% for 1:20 maximum and then up to 

9% for 1:12 maximum”). It is undisputed that the designated accessible seating locations for Sections 

112-108 Row 1W are not level and have significant slopes. Plaintiffs’ expert Gary Waters measured 

severe slopes up to 5.3% in the wheelchair seating spaces and up to 5.4% in the access aisles. Waters 

Decl. ¶¶ 21, 23. 

Defendants’ expert agrees that the designated accessible seating locations contain non-compliant 

slopes. Defendants’ expert confirms that the slopes in the wheelchair seating spaces in this Section

exceed the 2.0% and 2.1% maximums, measuring slopes “between 3.2% to 3.7%,” and finding that 

“[t]he path of travel behind the accessible seating [i.e. the access aisle] has cross slopes up to 3.7% due to 

the drains.” Lee Decl. Ex. E (Blackseth Stadium Report at 23-4, Dep. Ex. 522 at Blackseth_34-35); see 

also id. Ex. D (Blackseth Dep. at 110:23-112:24 (confirming excessive slopes in seating spaces); 111:21-

113:3 (confirming excessive slopes in access aisles)); accord id. Ex. J (ERG Report at sec. 1, para. 7)

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(Third-Party Defendant’s Expert found that “[a]cheiving positive slope to drain has affected levelness 

within this area. Multiple measurements were document[ed] in excess of 3.0%.”). Even if a 1:50 (2.0%) 

slope allowance were applicable to the seating spaces—as opposed to the “level” requirement set forth 

by the 2010 CBC—Defendants’ experts’ measurements exceed that requirement and the construction 

tolerance that they contend should apply. See generally, Lee Decl. Ex D (Blackseth Dep. 105:16-106:24)

(one-percent tolerance for all slopes); id. Ex. H, (Roether report at 3, applying “3% for 1:48 maximum”). 

Accordingly, applying any of the three standards, there is no dispute that the “accessible seating” 

at Sections 112-108 Row 1W is not accessible due to the excessive slopes in the access aisle and seating 

spaces. These excessive slopes can ruin class members’ experiences at the Stadium, as class member 

Rebecca Fortelka described in regard to a different designated-accessible seating section at the Stadium: 

“The floor beneath my seat was very sloped, and I kept feeling like I was going to fall forward out of my 

wheelchair . . . . We tightened my seatbelt and back brace to try to help, but we had to tighten it all the 

way which is very painful. We decided it was better for me to be in pain instead of risking me falling out 

of my chair.” ECF No. 139 at 53 (Ex. J, Fortelka Class Cert. Decl., ¶ 16). The Court should therefore

enter summary judgment on this barrier.

4. It is undisputed that the handrail extensions at the ramp serving the designated 

accessible seating at Sections 112-108 Row 1W are too short.

The designated accessible seating at Sections 112-108 Row 1W, described above, can be 

accessed only via a ramp. However, that ramp has bottom handrails that do not extend the full required 

length before returning to the wall, meaning that class members who rely on the handrails for assistance

are forced to traverse part of the ramp landing without the benefit of the required handrail. 

The ADAAG, 2010 CBC, and ADAS each require that ramp handrails extend 12 inches beyond 

the top and bottom of the ramp. See 1991 ADAAG § 4.8.5(2); 2010 CBC § 1133B.5.5; 2010 ADAS §

505.10.1; accord ECF No. 341 at 5 § 4.b (Parties stipulated that “requirements regarding this barrier are 

the same across the 2010 CBC, 1991 ADAAG, and 2010 ADAS. . . . Handrails must extend 12 inches 

beyond the top and bottom of ramps . . . .”).6 At the ramp to the designated accessible seating at Sections 

 6 Plaintiffs contend that five (5) ramps throughout the Stadium violate these requirements, and 

previously moved for summary judgment on three (3) of them. See Lee Decl. ¶ 5; see also ECF No. 

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112-108 Row 1W, however, the ramps’ bottom handrails extend only approximately eight (8) inches

before starting the return. Waters Decl. ¶ 25. Though measuring a ten-inch extension, Defendants’ 

access expert agrees that the bottom handrail extensions in this location do not comply with the 12-inch

standard and need to be fixed. Lee Decl., Ex. E (Blackseth Stadium Report at 21-22, Dep. Ex. 522 at 

Blackseth_32-33); Ex. D (Blackseth Dep. at 110:10-102:13) (confirming non-compliant condition). In 

other words, under any expert documented measurement, the bottom handrail extension violates the 

ADA and CBC. The Court should enter summary judgment on this barrier.

C. Defendant Forty Niners Management Company LLC Failed and Fails to Provide the 

Number of Accessible Parking Spaces for Levi’s Stadium Required by Federal and State 

Disability Access Standards.

The obligation to provide a minimum amount of wheelchair accessible parking for Levi’s 

Stadium is the same under the 2010 ADAS, the 1991 ADAAG and the 2010 CBC. See ECF No. 341 at 

4-5 §§ 5b-c (Stipulation Regarding Alleged Barriers Selected for First Trial). Under each of these 

standards, the minimum number of required accessible parking spaces is based on the number of 

parking spaces in each parking lot or facility serving the stadium, according to the following formula:

Total Number of Parking Spaces 

Provided in Parking Facility

Minimum Number of Required 

Accessible Parking Spaces

1 to 25 1

26 to 50 2

51 to 75 3

76 to 100 4

101 to 150 5

151 to 200 6

201 to 300 7

301 to 400 8

401 to 500 9

501 to 1000 2 percent of total

1001 and over 20, plus 1 for each 100, or fraction 

thereof, over 1000

 

288-1 (Prior Lee MPSJ Decl. Ex. D) at p. 70 (Barrier Nos. 201-203). Plaintiffs further note that there 

are three (3) stairs with handrails that violate similar requirements for stair handrails that the Parties 

stipulated to. See Lee Decl. ¶ 5; see ECF No. 341 at 5 § 4.b (stipulating to stair handrail 

requirements).

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See ECF No. 341 at 5 (stipulated requirements); see also 2010 ADAS § 208 Table 208.2; 1991 

ADAAG § 4.1.2(5)(a); 2010 CBC § 1129B.1, Table 11B-6. 

Where more than one parking lot or structure serves the facility, as is the case with Levi’s 

Stadium, the number of accessible spaces required is calculated based on the number of spaces in each 

parking lot or structure, not on the total number of spaces provided in all of them combined. 2010

ADAS § 208.2, Advisory 208.2; see also 2010 CBC § 1129B.1 (“Each lot or parking structure where 

parking is provided . . . shall provide accessible parking as required by [Table 11B-6].”); 1991 

ADAAG 4.1.2(5)(a) (“If parking spaces are provided . . . , then accessible spaces . . . shall be provided 

in each such parking area in conformance with the table below.”)) (emphasis added). However, the 

required number of accessible spaces for each parking lot need not actually be located in that lot. They 

may be provided in different lots if equivalent or greater accessibility is provided in terms of distance 

from an accessible entrance or entrances, parking fee and user convenience. 2010 ADAS § 208.3.1, 

Exception 2; 1991 ADAAG § 4.1.2(5)(a); see also 2010 CBC § 1102B (equivalent facilitation). 

Defendants provide parking for patrons of Levi’s Stadium through a combination of one large 

parking facility adjacent to the Stadium (referred to alternatively as “Red Lot 1 and Green Lot 1” or the 

“Main Lot”) and multiple publicly or privately-owned “off-site,” “remote” or “satellite” lots secured 

for that purpose through agreements with the lot’s owner. See ECF No. 282 at 6 (Defs’ prior Mot. for 

Partial Summ. J. explaining that Transportation Management Operations Plan (the “TMOP”) 

contemplates the use of the main lot and various public and private lots near the Stadium because the

Stadium could not accommodate all parking in immediate proximity to Stadium’s entrances); see also 

ECF No. 284 at ¶ 5 (Declaration of Jim Mercurio in Support of Defendants’ prior Motion for Partial 

Summ. J.); ECF No. 283 (Declaration of Maria Lampasona in Support of Defendants’ prior Motion for 

Partial Summ. J. (“Lampasona Decl.”), Ex. 1 (Ng Dep. at 113:18-114:11, 119:18-124:20); id. Ex. 2 

(Riley Dep. at 36:21-38:23); id. Ex. 3 (Tran Dep. at 99:15-102:5)); ECF No. 286 ¶ 3, Ex. 1 

(Defendants’ Request for Judicial Notice in Support of prior Motion for Partial Summ. J.).

Many documents produced in this case indicate that Defendants intended to make off-site 

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parking lots available to persons with mobility disabilities.7 However, confronted in this case with 

allegations that those lots lack compliant designated accessible spaces and that the pedestrian rights of 

way between those lots and the Stadium are inaccessible, Defendants have taken the position that they 

provide all of the required accessible spaces in the Main Lot and none in off-site lots—an approach to 

which Defendants refer as “clustering.” See ECF No. 282 (Defendants’ prior Motion for Partial 

Summ. J.) at 4 (“all spaces designated for people with disabilities are in the Main Lot”); id. at 5 (“all 

accessible parking is in the Main Lot”); id. at 7 (“all accessible parking for Levi’s Stadium is 

“clustered” in the Main Lot”) (emphasis and quotes in original), (“Levi’s Stadium does not designate

any other accessible parking spots for use during events at the Stadium”) (citing Lampasona Decl. Ex. 

1 (Ng Dep. at 478:2-16, 128:7-18 252:17-254:16, 288:14-291:17); id. Ex. 4 (7/25/2018 Dep. of James 

Mercurio, at 13:14-24); ECF No. 286 (Defs.’ RJN ¶ 3, Ex. 1; ¶ 4, Ex. 2)). Accordingly, Defendants’

compliance or lack of compliance with its accessible parking obligation must be based on the number 

of accessible spaces provided in the Main Lot. 

Applying the above-described method of calculation for required accessible spaces to the 

information Defendants provided in discovery about the number of spaces in each lot, 282 accessible 

spaces must be provided in the Main Lot in order for Defendants to satisfy their accessible parking 

obligations through their “clustering approach.” The following table illustrates this calculation.

8

Lot Designation Location by Address Number 

of

Spaces

Required 

Accessible 

Spaces

Basis for 

Calculation9

Blue Lot 1 3050 Democracy Way 5,065 61 20 + (4065/100)

 7 See ECF No. 301-1 (Declaration of Andrew Lee in Opposition to Defendants’ prior Motion for 

Partial Summ. J. (“Prior Lee Opp’n Decl.”) at Exs. A (TMOP at 98-99, 107); B (Riley Dep. at 37:15-

39:16); C (event day parking notes for 46 events identifying the lots being used for a particular event 

and stating that “ADA must be allowed into every lot”); Ex. D (parking permit applications submitted 

to City by Forty Niners require that the number of “ADA spaces” be identified, which the Forty Niners 

provided); Ex. E (referencing “ADA shuttles” that provide transportation from Blue Lot 1 to the 

entrance of Levi’s Stadium)).

8 The information in the first three columns of this table is derived from a chart produced by 

Defendants, which was marked as Deposition Exhibit 226 and authenticated by Defendants’ Rule 

30(b)(6) parking witness, James Mercurio. See Lee Decl. ¶¶ 17-18, Exs. K & L. Mr. Mercurio’s 

testimony regarding the various columns appearing in Exhibit 226 can be found in Lee Declaration 

Exhibit K at 29:17-31:16; 34:4-18, 35:1-11, 43:15-45:7, 48:20-49:24. 

9 Where this calculation resulted in a fraction, the result is rounded up, as required by 2010 ADAS 

section 104.2.

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Lot Designation Location by Address Number 

of

Spaces

Required 

Accessible 

Spaces

Basis for 

Calculation9

Main Lot Great America Parking Lot 5,892 69 20 + (4892/100)

Green Lot 2 4988 Great America Parkway 1,400 24 20 + (400/100) 

Green Lot 3 4633 - 99 Old Ironsides Drive 716 15 2% of Total

Green Lots 4 & 5 3000 Mission College Blvd. 2,229 33 20 + (1,229/100)

Purple Lot 3 4559 Great America Parkway 963 20 2% of total

Red Lot 3 5200 Great America Parkway 507 11 2% of total

Red Lot 4 5100 Patrick Henry Drive 769 16 2% of total

Red Lot 7 5451 Great America Parkway 600 12 2% of total

Yellow Lots 1,2,3 Tasman Drive Lots & Garage 1,008 21 20 + (8/100)

TOTAL: 19,149 282 Sum of column

It is undisputed that the Main Lot contains only 198 designated accessible spaces, far fewer 

than the 282 required by both the federal standards and the 2010 CBC.10 See Lee Decl. Ex. K 

(Mercurio July 25, 2018 Dep. at 48:20-49:24 (Forty Niners designate spaces in Main Lot); 65:14-67:16 

(198 spaces currently, and Defendants calculated 12 more needed); see also id. Ex. L. Equally 

undisputed is the fact that Defendants have designated no (zero) accessible spaces in any of the other 

lots for Levi’s Stadium event use. Id.; see also ECF No. 282 at 4-7 (and evidence cited above). Class 

members confirm that there were too few designated accessible parking spaces for them to park in the 

Main Lot during events at the Stadium.11 For example, accessible seating season ticket holder Rodger 

Robinson testified that he was assigned to park on grass at the Santa Clara Golf and Tennis Club 

 10 Although Defendants asserted that there were plans to add an additional 12 accessible parking 

spaces to this lot by August of 2018 through a re-striping project, there is no evidence that this project 

was ever undertaken, and Defendants have not supplemented their discovery responses or document 

production to establish any such change in the Main Lot’s configuration. And even if those additional 

spaces were provided, it would still fall far short of the required 282 accessible spaces. 

11 ECF No. 139 (App. of Class Cert. Decls.), Ex. A (p. 6-7, Decl. of Frishtah Afifi, ¶¶ 7-9 (no 

accessible spaces in main lot, re-assigned to uneven dirt and gravel lot)); Ex. D (pp. 21-22, Decl. of 

Melanie Casas, ¶ 5 (no accessible spaces available in main lot)); Ex. K (p. 57, Decl. of Barry Flores, 

¶ 5 (often finds not enough accessible spaces, even if hours early)); Ex. R (p. 108, Decl. of Amy 

Nelson, ¶ 4 (no accessible spaces available in main lot)); Ex. T (p. 117, Decl. of Antonio Quistian, ¶ 4 

(directed to remote gravel lot)); Ex. U (pp. 121-2, Decl. of Rodger Robinson, ¶¶ 5, 7-8 (season ticket 

holder assigned space in remote lot; when eventually assigned main lot space, too few accessible 

spaces)); Ex. X (p. 139, Decl. of Sherman Spears, ¶ 5 (no accessible spaces available in main lot)); Ex. 

BB (p. 155, Decl. of Debbie Veazey, ¶ 6 (same)); Ex. CC (p. 160, Decl. of Robert Veazey, ¶ 3 

(same)); Ex. DD (p. 165, Decl. of Doreen Walker, ¶¶ 4-5 (told accessible parking sold out and directed 

to dirt parking lot 1.5 miles away from Stadium entrance)).

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despite requesting accessible parking through an accessibility questionnaire. ECF No. 139 at 121-22 

(Declaration of Roger Robinson ¶¶ 5, 7-8). In another example, Class Member Frishtah Afifi testified 

that she purchased an accessible parking pass and arrived at the Main Lot an hour-and-a-half before the 

event. Id. at 6-8 (Declaration of Frishtah Afifi, ¶¶ 7-9). All of the accessible parking stalls in the Main 

Lot were taken, so she and her 90-year old father were required to park on a dirt and gravel surface in 

an off-site lot. 

Because Defendants have failed to provide the minimum level of required accessible parking 

spaces for Levi’s Stadium, summary judgment should be entered in favor of Plaintiffs on this issue.12

D. The City Failed to Construct the Selected Curb Ramp in Compliance with the 1991 

ADAAG.

The curb ramp at the Northwest corner of the intersection of Democracy Way and Old 

Ironsides Drive is on the path of travel connecting remote parking lots to the Stadium. It is near Blue 

Lot 1, where Defendants allow the use of accessible parking spaces and provide “ADA” shuttle 

services. See generally Mastin Decl. Ex. C (expert map of pedestrian right of way, showing selected 

curb ramp (Seq. 509) at intersection of Democracy Way and Old Ironsides Drive, leading away from 

Blue Lot 1 toward Stadium); see also ECF No. 301-1, Prior Lee Opp’n Decl. Ex. C ((Parking Lot 

Notes for events at Levi’s Stadium describe ADA services in Blue Lot 1, including that “ADA patrons 

can pay cash in this lot to take advantage of the shuttle.”); id. Ex. E (“Parking and Transportation 

Operations” document which on FN01259 and FN01261 references “ADA shuttles” that provide 

transportation from Blue Lot 1 to the entrance of Levi’s Stadium, authenticated at ECF No. 301-1, 

Prior Lee Opp’n Decl. Ex. B). The slopes of this curb ramp clearly and indisputably violate the 

applicable legal standard.

As discussed in Section III.B, above, all facilities built by a government entity on or after 

January 26, 1992 must be designed and constructed such that “the facility or part of the facility is 

 12 Because of the disparity between the required number of accessible spaces and the number 

Defendants purport to provide, this Court can find Defendants liable for violating the ADA and Unruh 

Act without having to consider whether the designated spaces in the Main Lot comply with the 

requirements of an accessible parking space under ADAS section 502, 1991 ADAAG section 4.6 and 

2010 CBC section 1129B.3 or whether parking in the Main Lot provides equal or greater access in 

terms of convenience and cost. 

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readily accessible to and useable by individuals with disabilities.” 28 C.F.R. § 35.151(a). To comply 

with this mandate, public entities must adhere to binding access regulations issued by the United States 

Department of Justice. Kirola, 860 F.3d at 1176. Under Ninth Circuit precedent, these accessibility 

standards “apply to public rights-of-way,” including curb ramps. Id. at 1179. 

The Parties stipulate that the curb ramp in question is subject to the 1991 ADAAG, based on 

their “agreement that the selected curb ramp ‘was constructed or altered after July 26, 1992’ in their 

October 8, 2018 Stipulation of Facts Regarding PROW Construction or Alteration Dates (No. 36).” 

See ECF No. 341 at 2 § 1.a (Stipulation Regarding Alleged Barriers Selected for First Trial); see also

Lee Decl. Ex. M (parties’ construction-date stipulation). The running, counter, and side flare slopes of 

this curb ramp far exceed the slope requirements of the 1991 ADAAG, even accounting for the 

construction tolerances advanced by Defendants’ experts. See Lee Decl. Ex. D (Blackseth Dep. 105:16-

106:24); see also Ex. H, (Roether report at 3) (applying “3% for 1:48 maximum, up to 6% for 1:20 maximum 

and then up to 9% for 1:12 maximum”). They also violate the 2010 CBC and 2010 ADAS, which set 

forth the same requirements as the 1991 ADAAG.

13 See Mastin Decl. ¶¶ 26-28.

First, the running slope of the curb ramp, or the slope in the direction of travel of the ramp, may 

not exceed 1:12 (or 8.33%) plus conventional industry tolerances.14 ECF No. 341 at 2-3 ¶ 1.b 

(Stipulation); 1991 ADAAG §§ 4.7.2 & 4.8.2. Defendants’ experts would apply a 0.67% tolerance and 

allow a slope up to 9% here. See Lee Decl. Ex. D (Blackseth Dep. 105:16-106:24); see also Ex. H, 

(Roether report at 3). Plaintiffs’ expert Mastin measured the running slope of this curb ramp to be 

14.7% across the curb face. See Mastin Decl. ¶ 26. Defendants’ expert Adler agreed that the running 

slope of this curb ramp failed to comply with the 1991 ADAAG. Lee Decl. Ex. O (Adler Rebuttal 

 13 Whether a curb ramp’s slopes comply with applicable access standards depends on the measurement 

at the steepest point, rather than the average slope. See generally ADA Best Practices Tool Kit for 

State and Local Government, Appendices 1 and 2, Section D.2 available at 

https://www.ada.gov/pcatoolkit/introapp1and2.htm (proper slope measuring technique requires 

“measuring where the running slopes appear steepest and where the cross slopes appear steepest.”); 

see also Kirola, 860 F.3d at 1181 (concluding that the ADA Best Practices Tool Kit is entitled to 

“significant weight” and “for a mobility-impaired user like Kirola, it is the steepest point—not the 

average steepness—that determines whether a particular ramp is accessible”).

14 Plaintiffs contend that forty-eight (48) curb ramps have excessive running slopes, twenty-nine (29) 

of which were subject to Plaintiffs’ prior motion for summary judgment. See Lee Decl. ¶ 6; see also

ECF No. 288-1 (Prior Lee MPSJ Decl. Ex. D) at pp. 184-190 (Barrier Nos. 738-766).

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Report at p. 39, Street # 5, Item # 509, COD B03, concluding that the curb ramp exceeds the running 

slope maximum of the 2010 ADAS, 2013 CBC & 1991 ADAAG); see also id. Ex. N (Adler Dep. at 

44:3-13, authenticating Dep. Ex. 597 (PDF version of Mr. Adler’s Report)). Thus, the running slope of 

this curb ramp far exceeds “1:12 (or 8.33%) plus conventional industry tolerances.” Cf. ECF No. 341 

at 2-3 ¶ 1.b (stipulated requirements).

Second, the counter slopes of adjoining gutters and road surfaces immediately adjacent to curb 

ramps may not exceed 1:20 (5%).15 ECF No. 341 at 2-3 ¶ 1.b (Stipulation); 1991 ADAAG § 4.7.2. 

Defendants’ experts would apply a one-percent tolerance and allow a slope up to 6% here. See Lee 

Decl. Ex. D (Blackseth Dep. 105:16-106:24); see also Ex. H, (Roether report at 3). Plaintiffs’ expert 

Mastin found that the counter slopes of adjoining gutters and road surfaces immediately adjacent to 

and within 24 inches of the curb ramp measured 10.4%. See Mastin Decl., ¶ 27. And Defendants’

expert Adler agreed that the counter slopes of this curb ramp fail to comply with the 1991 ADAAG (or 

the 2010 ADAS or 2013 CBC). Lee Decl. Ex. O (Adler Rebuttal Report at p. 40, Street # 5, Item # 

509, COD B11); see also id. Ex. N (Adler Dep. at 44:3-13, authenticating Dep. Ex. 597 (PDF version 

of Mr. Adler’s Report)). Thus, the running slope of this curb ramp far exceeds “1:20 (or 5%) plus 

conventional industry tolerances.” Cf. ECF No. 341 at 2-3 ¶ 1.b (stipulated requirements).

Third, the slopes of the flared sides of a curb ramp may not exceed 1:12 (8.33%) if no top 

landing is provided.16 ECF No. 341 at 2-3 ¶ 1.b (Stipulation); 1991 ADAAG § 4.7.5, Figure 12(a). 

The curb ramp at issue has no top landing, and thus its flared sides may not exceed 1:12 (8.33%). 

Defendants’ experts would apply a 0.67% tolerance and allow a slope up to 9 % here. See Lee Decl. 

Ex. D (Blackseth Dep. 105:16-106:24); see also Ex. H, (Roether report at 3). Plaintiffs’ expert Mastin 

measured the side flare slopes of this ramp to be 13.2% on the right side and 12.0% on the left side. 

See Mastin Decl., ¶ 28. Defendants’ expert Adler agrees that the curb ramp side flare slopes do not 

 15 Plaintiffs contend that fifty-seven (57) curb ramps have excessive counter slopes, thirty-eight (38) of 

which were subject to Plaintiffs’ prior motion for summary judgment. See Lee Decl. ¶ 6; see also ECF 

No. 288-1 (Prior Lee MPSJ Decl. Ex. D) at pp. 192-200 (Barrier Nos. 772-808). 

16 Plaintiffs found that twenty-six (26) curb ramps have excessive side flare slopes for curb ramps 

without top landings, seventeen (17) of which were subject to Plaintiffs’ prior motion for summary 

judgment. See Lee Decl. ¶ 6; see also ECF No. 288-1 (Prior Lee MPSJ Decl. Ex. D) at pp. 202-205 

(Barrier Nos. 812-828).

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comply with the 1991 ADAAG, the 2010 ADAS, or the 2013 CBC. Lee Decl. Ex. O (Adler Rebuttal 

Report at p. 40, Street # 5, Item # 509, COD A17); see also id. Ex. N (Adler Dep. at 44:3-13, 

authenticating Dep. Ex. 597 (PDF version of Mr. Adler’s Report)). Thus, this curb ramp far exceeds 

the side flare slope requirement of “1:12 (or 8.33%) plus conventional industry tolerances.” Cf. ECF 

No. 341 at 2-3 ¶ 1.b (stipulated requirements). 

The City has indicated its intent to argue that these barriers are not relevant to this action 

because Defendants provide accessible parking in the lot closest to the Stadium. Such an argument 

misses the mark in several respects. First, because the City provides a pedestrian right of way to its 

residents and visitors, the pedestrian right of way, including its curb ramps, must be readily accessible 

to and useable by persons with disabilities regardless of the parking facilities the City also makes 

available. See Barden, 292 F.3d at 1076-77. Second, persons with mobility disabilities can and do 

park in the off-site parking lots. Defendants’ “Parking Lot Notes” require that “ADA must be allowed 

into every lot.” See, e.g. ECF No. 301-1 Prior Lee Opp’n Decl., Ex. C at FN00979. Third, not all 

persons with disabilities take a car or van to the Stadium and would enjoy taking the pedestrian right of 

way to the Stadium were it accessible.

Both Plaintiff and Defense experts agree that the curb ramp has excessive running, counter, and 

side-flare slopes. As such, the Court should grant Plaintiffs partial summary judgment on this barrier.

V. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court grant Plaintiffs’ Motion 

for Partial Summary Judgment in its entirety.

Dated: June 20, 2019 Respectfully submitted,

GOLDSTEIN, BORGEN, DARDARIAN & HO

/s/ Katharine Fisher

Katharine Fisher

Attorneys for Plaintiffs and the Certified Classes

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