DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL 

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

MARIA L. LAMPASONA (SBN: 259675)

mlampasona@llcllp.com

TAYLOR J. POHLE (SBN: 299794)

tpohle@llcllp.com

LOMBARDI, LOPER & CONANT, LLP

2030 Franklin Street, 7th Floor

Oakland, CA 94612

Telephone: (510) 433-2600

Facsimile: (510) 433-2699

DION COMINOS (SBN: 136522)

dcominos@grsm.com

BRIAN P. MASCHLER (SBN: 111824)

bmaschler@grsm.com

GORDON REES SCULLY MANSUKHANI, LLP

275 Battery Street, 20th Floor

San Francisco, CA 94111

Telephone: (415) 986-5900

Facsimile: (415) 986-8054

Attorneys for Defendants

FORTY NINERS FOOTBALL COMPANY LLC, 

FORTY NINERS SC STADIUM COMPANY LLC, 

FORTY NINERS STADIUM MANAGEMENT 

COMPANY LLC, CITY OF SANTA CLARA, 

and SANTA CLARA STADIUM AUTHORITY

ABDUL NEVAREZ and PRISCILLA 

NEVAREZ,

 Plaintiffs,

FORTY NINERS FOOTBALL COMPANY

LLC, a Delaware limited liability company; 

FORTY NINERS SC STADIUM 

COMPANY LLC, a Delaware limited 

liability company; CITY OF SANTA 

CLARA, SANTA CLARA STADIUM 

AUTHORITY; FORTY NINERS STADIUM

MANAGEMENT COMPANY LLC; and 

DOES 1-10, inclusive,

 Defendants.

CASE NO. 5:16-cv-07013-LHK

DEFENDANTS’ OPPOSITION TO 

PLAINTIFFS’ MOTION FOR 

PARTIAL SUMMARY JUDGMENT

Date: February 7, 2019

Time: 1:30 p.m.

Dept.: Courtroom 8

Judge: Hon. Lucy H. Koh

Trial Date: April 22, 2019

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TABLE OF CONTENTS

I. INTRODUCTION .................................................................................................1

II. STATEMENT OF FACTS ....................................................................................4

A. The Forty Niners Defendants.................................................................................4

B. The Santa Clara Defendants...................................................................................5

C. The Plaintiffs..........................................................................................................5

D. Relevant Procedural Background ..........................................................................7

III. LEGAL STANDARDS .........................................................................................9

A. Summary Judgment Standards...............................................................................9

B. The Americans with Disabilities Act...................................................................12

C. The Unruh Act .....................................................................................................12

IV. ARGUMENT.......................................................................................................14

A. Because Plaintiffs’ Have Failed To Meet Their Burden Of Demonstrating The 

Absence Of Genuine Issues Of Material Fact On Issues On Which They Seek 

Partial Summary Judgment, Their Motion Must Be Denied. ..............................14

1. Plaintiffs Have Failed to Establish That Defendants Each Are Liable for 

the Claimed ADA and Unruh Act Violations..........................................14

2. The Parties’ Fundamental Dispute Over Which Accessibility Standards 

Applied To The Construction of Levi’s Stadium Precludes Partial 

Summary Judgment. ................................................................................15

3. Plaintiffs Lack Standing to Assert the Existence of Alleged Barriers to 

Access They Have Not Personally Encountered. ....................................17

4. Plaintiffs Have Failed to Show That the Forty Niners Defendants or the 

Santa Clara Defendants Are Liable Under the ADA or Unruh Act for 

Allegedly Failing to Construct Levi’s Stadium in Compliance with 

Federal and State Accessibility Standards. ..............................................18

V. CONCLUSION....................................................................................................25

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TABLE OF AUTHORITIES

Cases

Access Now, Inc. v. S. Fla. Stadium Corp.,

161 F.Supp.2d 1357 (S.D. Fla. 2001) .....................................................................................19

Adickes v. S.H. Kress Co., 398 U.S. 144 (1970)................................................................................................................10

Ambat v. City and County of San Francisco, 757 F.3d 1017 (9th Cir. 2010)...................................................................................................9

Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455 (2013)................................................................................................................10

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986)................................................................................................................10

Antoninetti v. Chipotle Mexican Grill Inc., 643 F.3d. 1165 (9th Cir. 2010)................................................................................................13

Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666 (9th Cir. 2010)...................................................................................................12

Blackwell v. City and County of San Francisco, 2010 U.S. Dist. LEXIS 1477339 (N.D. Cal. 2010).................................................................11

Calderone v. United States, 799 F.2d 254 (6th Cir. 1986).....................................................................................................9

Castiglione v. United States Life Ins. Co.,

262 F.Supp.2d 1025 (D. Ariz. 2003).......................................................................................16

Cayette v. PNK (Baton Rouge) P’ship,

2016 U.S. Dist. LEXIS 84592 (2016).....................................................................................20

Celotex Corp. v. Catrett,

477 U.S. 317 (1986)..................................................................................................................9

Cf. A.I. Credit Corp. v. Legion Ins. Co.,

265 F.3d 630 (7th Cir. 2001)...................................................................................................17

Cherry v. City College of San Francisco,

2006 U.S. Dist. LEXIS 98661 (N.D.Cal. 2006)......................................................................19

City & County of San Francisco v. Sheehan, 135 S. Ct. 1765 (2015)............................................................................................................12

Donald v. Café Royal, Inc., 218 Cal.App.3d 168 (1990).....................................................................................................13

Doran v. 7-Eleven, Inc., 509 Fed.Appx.647 (9th Cir. 2013)..........................................................................................13

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Harris v. Costco Wholesale Co.,

389 F.Supp.1244 (S.D. Cal. 2005)................................................................................9, 10, 17

Hintz v. May & Co., 2018 U.S. Dist. LEXI 101374 (S.D. Miss. 2018) ...................................................................10

In re Ramen Antitrust Litig., 281 F. Supp. 992 (N.D. Cal. 2017) .........................................................................................16

Khan v. KIR Tampa 003, LLC. U.S. Dist. LEXIS 163592 (2014)............................................................................................11

Kohler v. Staples the Office Superstore, LLC,

291 F.R.D. 464 (S.D. Cal. 2013).......................................................................................19, 20

Lindsay v. 1777 Westwood C.P., 2018 U.S. Dist. LEXIS 140035 (C.D. Cal. 2018)...................................................................10

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)................................................................................................................17

Madsen v. Boise St. Univ., 976 F.2d 1219 (9th Cir. 1992).................................................................................................17

Mejia v. Marauder Corp., 2007 U.S. Dist. LEXIS 21313 (N.D. Cal. 20017)...................................................................16

Mundy v. Pro Theo Enterprises, 192 Cal.App4th Supp. 1 (2011) ..............................................................................................13

Munson v. Del Taco, Inc.,

46 Cal.4th 661 (2009) .............................................................................................................13

Nissan Fire and Marine Ins. Co. v. Fritz Cos.,

210 F.3d 1099 (9th Cir. 2000).................................................................................................10

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

457 F.3d 963 (9th Cir. 2006)...................................................................................................14

Playboy Enter., Inc. v. Welles,

279 F.3d 796 (9th Cir. 2002)...................................................................................................10

Reycraft v. Lee,

177 Cal.App.4th 1211 (2009)..................................................................................................13

Ricci v. DeStefano, 557 U.S. 557 (2009)..................................................................................................................9

Rush v. Castle & Cooke Corona Inc., 2011 U.S. Dist. LEXIS 162906 (C.D. Cal. 2011)...................................................................11

S. Cal Gas Co. v. City of Santa Ana, 336 F.3d 885 (9th Cir. 2003).....................................................................................................9

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Schutza v. Premier Auto. of Ca. LLC,

2018 U.S. Dist, LEXIS 200748 (S.D. Cal. 2018) ...................................................................10

Shaw v. Jar-Ramona Plaza LLC, 2015 U.S. Dist. LEXIS 33810 (C.D. Cal. 2015).....................................................................11

Sheehan v. City & Cty. of San Francisco, 743 F.3d 1211 (9th Cir. 2014).................................................................................................12

Stack v. Burns,

2016 U.S. Dist. LEXIS 94799 (N.D. Cal. 2016).....................................................................16

Tolan v. Cotton, 572 U.S. 650 (2014)................................................................................................................10

Statutes

42 United States Code

Section 12101............................................................................................................................2

42 United States Code

Section 12111..........................................................................................................................12

42 United States Code

Section 12132............................................................................................................................2

42 United States Code

Section 12182......................................................................................................................2, 12

42 United States Code

Section 12183......................................................................................................................2, 12

California Civil Code

Section 51................................................................................................................................12

California Civil Code

Section 54.3.............................................................................................................................13

California Civil Code

Section 55.56...................................................................................................................2, 3, 13

Rules

Federal Rules of Civil Procedure

Rule 56 ............................................................................................................................1, 9, 11

Regulations

28 Code of Federal Regulations

Section 35.151.............................................................................................................12, 16, 17

35 Code of Federal Regulations

Section 35.151...........................................................................................................................2

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Other Authorities

DOJ Preamble, 28 C.F.R. pt. 36, App.B at 681 (2005).............................................................14

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I. INTRODUCTION

Plaintiffs have not met their burden under Federal Rule of Civil Procedure 56(a) of 

establishing the absence of a genuine issue of disputed material fact as to the matters on which 

they seek partial summary judgment—matters on which they bear the ultimate burdens of 

proof and persuasion. They seek a summary disposition of factual and legal issues that are 

squarely in dispute based on their erroneous contention that Defendants’ liability experts 

“concede” or “have not addressed” them. Not only is that contention untrue, the notion that an 

expert’s failure specifically to address certain claims or positions of opposing experts negates 

a material issue of disputed fact or constitutes a party admission, also is legally untenable. 

Similarly, deposition testimony of a non-party (here, design architect HNTB) is not binding on 

any defendant, nor does it foreclose any defendant from presenting contrary evidence or legal 

authorities. As shown below, genuine issues of disputed material fact exist with respect to the 

“issues” called out in Plaintiffs’ motion. 

The Court will recall that Plaintiffs have presented a moving target with respect to the 

alleged physical barriers at issue in this case. Those alleged barriers were not specifically 

identified in the first four versions of the complaint filed in this action. By Order dated 

February 28, 2018, the Court ordered Plaintiffs to file their lists of alleged physical barriers at 

Levi’s Stadium, restaurants and parking lots. ECF No. 131. Plaintiffs did so. ECF Nos. 132-

134. Plaintiffs then identified additional alleged barriers in connection with their class 

certification motion and during mediation. Defendants objected to this “moving target,” (ECF 

No. 180), and by Order dated July 6, 2018, the Court directed Plaintiffs to file a Fourth 

Amended Complaint that identified all alleged physical barriers to access. ECF No. 181. On 

July 27, 2018, over a year and a half after the case had been filed, approximately two months 

before the close of fact discovery and three months before expert reports were due, Plaintiffs 

filed their Fourth Amended Complaint (“FAC”). ECF No. 195. Attached as Exhibit A to the 

FAC is a 260-page spreadsheet of alleged “physical barriers,” which in fact consists of a 

listing of measurements of various Stadium facilities and access features that allegedly deviate

from the access code provisions which, Plaintiffs contend, apply.

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The instant motion focuses on a small subset of the purported issues listed in the 

Fourth Amended Complaint, which will be decided by the jury at trial. It is critical at the 

outset to recognize what this motion is not. The findings of fact urged by Plaintiffs in the 

motion will not dispose of any of the causes of action or claims alleged in this case. For 

example, to prove that Plaintiffs were discriminated against by the Forty Niners Defendants 

based upon their disabilities in violation of Title III of The Americans with Disabilities Act, 42 

U.S.C. § 12101, et seq. (First Claim of the FAC), they must prove, inter alia, that they were 

deprived of “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 prove that the Santa Clara Defendants, public entities, violated Title II of the 

ADA, 42 U.S.C. § 12132 (Second Claim of the FAC), Plaintiffs must show, inter alia, that 

they were “either excluded from participation in or denied the benefits of the public entity’s 

services, programs or activities or w[ere] otherwise discriminated against by the public entity,”

“by reason of [their] disability.” Id. With regard to newly constructed or altered facilities, 

discrimination may be shown by the defendant owner/operator/lessor/lessee’s failure to make 

those facilities “readily accessible to and usable by persons with disabilities.” 42 U.S.C. 

§ 12183(a)(1) (Title III); 35 C.F.R. § 35.151(a) (Title II). Whether a facility complies with the 

applicable building standard, which is what Plaintiffs’ motion seeks to have adjudicated on

this motion, is certainly relevant to whether the facility is readily accessible to and usable by 

persons with disabilities, but it is not necessarily dispositive of that ultimate issue—

particularly because the alleged deviations from Code are de minimis and do not constitute 

barriers when applying real world tolerances. That is the law, and is reflected in Defendants’

experts’ declarations and reports. See Declaration of Kim Blackseth (“Blackseth Dec.”), ¶ 11.

With respect to Plaintiffs’ Unruh Act claim (which forms the basis for the only 

damages class in this case, see ECF No. 185, at 43), even if a violation of a constructionrelated accessibility standard were shown, that is not enough to establish that a plaintiff was

denied “full and equal access to the place of public accommodation.” Civ. Code § 55.56. The

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plaintiff also must show that he “personally encountered the violation on a particular occasion, 

Civ. Code § 55.56(b), and that he/she “experienced difficulty, discomfort or embarrassment” 

as a result. Civ. Code § 55.56 (c). Thus, alleged departures from accessibility standards on 

their own, even if true (they are not), do not establish an Unruh Act violation in this case. 

Defendants’ experts also have testified that Plaintiffs’ experts’ measurements are in 

error, and the existence of such wide spread discrepancies puts Plaintiffs’ entire data set in 

question. See Declaration of Dominic Marinelli (“Marinelli Dec.”), ¶ 10. W. Andrew Fennell, 

who attempted to validate Plaintiffs’ measurements, found that Plaintiffs’ data sets were 

unreliable, that Plaintiffs’ experts used improper measuring techniques, and that Plaintiffs’ 

experts “cherry-picked” tiny locations on giant ramps in order to identify allegedly noncompliant features. See Declaration of W. Andrew Fennell (“Fennell Dec.”), ¶¶ 5-8.

As a threshold matter, which accessibility standards apply, based on when construction

on the Stadium commenced and the date of permit applications, is itself a contested factual and 

legal issue in this case. Plaintiffs’ requests that the Court make findings of fact based on 

“compliance with the 1991 American with Disabilities Act Accessibility Guidelines or the 

2010 American with Disabilities Act Standards for Accessible Design, whichever is 

applicable” (Notice of Motion & Motion, p. 4, ll. 24-26, p. 5 ll. 3-4; emphasis added), seek

advisory opinions on hypothetical scenarios, which is not a proper exercise of judicial 

authority under Rule 56 or Article III of the Constitution.

Levi’s Stadium’s facilities, including those referenced in this motion, have been 

accessed and used by persons with disabilities countless times. See Declaration of Jim 

Mercurio (“Mercurio Dec.”), ¶ 7. Dominic Marinelli, an expert in Stadium design and 

construction, opined that Levi’s Stadium is as accessible, if not more so, than other stadiums 

with which he has been involved, and he characterizes the alleged accessibility issues as 

“punch list” items common in any construction project of its size. See Martinelli Dec, ¶ 6. 

It is undisputed that the named Plaintiffs, who between them have visited the Stadium 

only a handful of times, have not themselves encountered most of the alleged physical barriers 

at issue in this motion. They do not have standing to assert claims based on alleged barriers 

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they never saw or experienced. Plaintiffs’ glaring lack of evidence that individuals with 

mobility disabilities actually were denied use or access to the Stadium’s facilities, or 

experienced difficulty, discomfort or embarrassment, due to technical deviations from access 

codes—let alone evidence establishing the absence of material factual disputes on those 

issues—is fatal to their motion. So, too, is their misguided attempt to lump together all 

Defendants in conjecturing responsibility for alleged physical access barriers, without any 

showing as to whether any particular Defendant “owned,” “operated” or “leased” the premises

when the facilities were built, or participated in their design or construction. The facts of 

record show that Plaintiffs’ blanket assumptions are in error.

Plaintiffs’ framing of the issues in their motion, that they are seeking partial summary 

judgment that the Forty Niners Defendants and the Santa Clara Defendants “discriminated

against Plaintiffs and the classes certified by the Court in violation of” Titles II and III of the 

ADA and the Unruh Act, “by failing to construct the Stadium in compliance with federal 

disability access standards” (Notice of Motion at 1-2; see also Motion at 12:7-9), is thus

misleading. Properly viewed, their motion simply asks the Court to make discrete findings on 

the parties’ respective experts’ measurements of certain physical features at the Stadium. 

Those measurements, and their legal significance, are squarely in dispute. Indeed, Plaintiffs’

200-page Proposed Order, 185 pages of which consist of (largely illegible) 23-columned

spreadsheets with recitations of, inter alia, dimensional measurements, selective citations to 

diverging testimony and expert reports, and legal and factual arguments regarding descriptions 

of alleged “barriers” and applicability of code provisions, on its face asks the Court to resolve 

disputed factual issues. Those issues are not properly resolved on summary judgment. This 

piecemeal resolution of the issues in any event would not meaningfully narrow the issues that 

must be tried by the jury. The Court should deny Plaintiffs’ motion. 

II. STATEMENT OF FACTS

A. The Forty Niners Defendants

Forty Niners SC Stadium Company LLC (“StadCo”) was formed in March 2012 for 

the express purpose of developing a stadium on the Santa Clara site, and it leases Levi’s 

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Stadium from the Santa Clara Stadium Authority (the “Stadium Authority”) during the 

“Tenant Season” (i.e. August 1 – January 31, or the football season). StadCo and the Stadium 

Authority contracted with Third Party Defendant Turner/Devcon, a Joint Venture, to build 

Levi’s Stadium. See Mercurio Dec., ¶ 3, Exh. A.

Forty Niners Stadium Management Company LLC was formed in March 2012, and has 

contracted with the Stadium Authority and StadCo to provide management services for Levi’s 

Stadium, including the day-to-day operations of the Stadium. See Mercurio Dec., ¶ 4.

Forty Niners Football Company LLC was formed in March 2012 and it owns and 

operates the professional sports club, the San Francisco 49ers. See Mercurio Dec., ¶ 5.

B. The Santa Clara Defendants

The City of Santa Clara (the “City”) owns the real property on which Levi’s Stadium 

was built, as well as the surrounding pedestrian rights of way, and the parking garage that is 

across Tasman Street from Levi’s Stadium, next to the Santa Clara Convention Center. See 

Pimentel Dec., ¶ 2. The City leased the real property where Levi’s Stadium was built to the 

Stadium Authority for the Stadium Authority’s exclusive right to possess, and use, as tenant, 

the Stadium site subject to a certain forty-year Stadium Ground Lease Agreement dated March 

28, 2012. See Pimentel Dec., ¶ 3, Exh. A. The Stadium Authority is the owner of Levi’s 

Stadium (the actual building).

Pursuant the Code of Federal Regulations, the City is in the process of developing an 

ADA Title II Transition Plan related to accessibility of its streets and walkways. On May 16, 

2018, the City of Santa Clara issued a Request for Proposal for Professional Services related to 

the Transition Plan. ECF No. 285, ¶ 2. Following the review process, the City of Santa Clara 

selected a professional design company and tasked it with the preparation of a Transition Plan 

Report as the first step toward implementation of the ADA Title II Transition Plan aimed at 

continuing the City’s ongoing efforts to comply with the various accessibility requirements 

under the ADA and the California Building Code (“CBC”). ECF No. 285, ¶ 3.

C. The Plaintiffs

As noted above, and shown in Plaintiffs’ declarations (the same declarations submitted 

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with Plaintiffs’ motion for class certification), Plaintiffs have not personally encountered the 

vast majority of the physical barriers alleged in this motion. For example, their declarations 

make no mention of: dining areas cited in the motion (ECF No. 288, at Section C.1); drink 

rails (id. at Section C.2); handrails at certain ramps (id. at Section C.3.b); ramps to accessible 

seating in Sections 112-108 (id. at Section C.3.c); ramps to accessible seating in Sections 146-

102 (id. at Section C.3.d); most restrooms (id. at Section C.5); entryway and railings at 

Bourbon Pub (id. at Section C.6); and closets in luxury suites (id. at Section C.7).1

The Nevarezes never purchased or attempted to purchase accessible seating at Levi’s 

Stadium. See Declaration of Maria M. Lampasona (“Lamp. Dec.”), Exh. A, at 134-36; Exh. E 

at 4-5. In Mr. Nevarez’s declaration, ECF No. 139 at 90-91, he complained about arduous 

drives to the Stadium to exchange tickets in person, but he admitted in deposition that he and 

his wife never made a trip to the Stadium to secure tickets. See Lamp. Dec., Exh. A, at 80, 

240-41, 243-44. Every time they went to the Stadium they attended the subject event – they 

were driving there anyway.

The deposition testimony of Plaintiffs calls into question the credibility of their 

declarations. The Nevarezes complain about accessibility of a luxury suite on one occasion, 

but went in that suite without tickets and without notifying the 49ers, and stayed for 2-3 hours. 

They never asked anyone if it had wheelchair-accessible seating (it does). See Lamp. Dec., 

Exh. A at 220-22, 228-31; Exh. C at 211-217. Mr. Nevarez claims in his declaration that he 

has “tried many times to work with the Stadium asking for modifications of its policies...” 

ECF No. 139 at 92, ¶ 20, but admitted in deposition he never called, emailed, or texted anyone 

at the Forty Niners. See Lamp. Dec., Exh. A, at 81, 206-07; Exh. C 99, 155-58, 182, 267, 272.

As a result of his 2012 motorcycle accident and the medication he has taken, Mr. 

Nevarez testified that he has an extremely faulty memory; he cannot remember things from 

day-to-day, week-to-week, or month-to-month. See Lamp. Dec., Exh. A at 87-89, 22-23; Exh.

 1 Plaintiffs erroneously cite other putative class members’ declarations to support their contention that 

certain wheelchair locations in the 100 level of the Stadium have excessive slopes. ECF No. 288, at 

17 n. 4. According to those declarations, those individuals sat in other sections of the Stadium (Ms. 

Fortelka, in 200-level seating (ECF No. 151, at 53, ¶ 15), and Mr. Plunkett in 400-level seating (id., at 

112, ¶ 16).

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C at 99. Mr. Nevarez did not recognize his own declaration, does not know who wrote it, and 

never saw or read interrogatories or his verified responses, or the multiple versions of the 

complaint until he was shown them at his deposition. See Lamp. Dec., Exh. A. at 43, 62-63, 

82, 84, 92, 98, 135-36, 155-57, 167-68, 171, 201-202, 205, 212. The claims of Priscilla 

Nevarez, who is not disabled, in this case and the ten other ADA/Unruh Act cases she also has 

filed with her husband, are derivative of her husband’s claims. See Lamp. Dec., Exh. C at 61-

65, 67-68, 71-81, 91-96; Exh. A at 109, 124-25. 

Mr. DeFrancesco’s primary claim, that he inadvertently was assigned a non-accessible

seat for his season ticket, was an anomaly. See Lamp. Dec., Exh. D at 42, 143; 156-57. He 

was provided with wheelchair accessible seats for every event he attended at the Stadium, all 

as good as, if not better than, the seats he initially purchased. See Lamp. Dec., Exh. D at 69, 

81-85. He was offered, but rejected, superior wheelchair accessible seats for the 2017-18 

seasons. Id. at 92, 96. He admitted he has not encountered many of the features on Plaintiffs’

experts’ “list.” Id. at 169-72. Mr. DeFrancesco opted out from the request to provide class 

member contact information. See Lamp. Dec., Exh. D at 190-91. 

D. Relevant Procedural Background

As noted above, the first four iterations of Plaintiffs’ complaint did not enumerate 

specific alleged physical barriers at Levi’s Stadium. Plaintiffs produced prolix lists of alleged 

barriers with their motion for class certification. After that motion had been filed, Defendants 

objected that “Plaintiffs have subsequently produced lists of claims of barriers that identify 

additional barriers not included in Plaintiffs’ expert reports.” ECF No. 181, at 1-2. In the 

Court’s July 6, 2018 Order Continuing Case Management Conference (id.), the Court ruled 

that “Plaintiffs’ identification of claims of barriers cannot be a moving target, especially this 

late in discovery and in this late stage of the case” (id. at 2), and that “plaintiffs’ evolving 

identification of barriers may deny defendants fair notice as required by Rule 8,” and ordered 

Plaintiffs to amend the complaint to include all barriers. Id. Plaintiffs then filed a Fourth 

Amended Complaint, with a 260-page, single-spaced Exhibit A, which purported to list the 

alleged physical barriers at the Stadium. ECF No. 185. After filing that document, Plaintiffs 

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again attempted to expand their list of alleged physical access barriers, under the guise of two

separate “Errata” filings. ECF Nos. 196, 236. Defendants objected to those filings. ECF No. 

240; ECF No. 270, pp. 9, 10, 13. The Court, ordered that “Plaintiffs’ errata to the fourth 

amended complaint, ECF Nos. 196, 236, are hereby STRICKEN.” ECF No. 271.

Fact discovery closed on October 4, 2018. Plaintiffs propounded thousands of requests 

on Defendants. Much of this discovery addressed Plaintiffs’ physical barrier claims. In 

Defendants’ responses to those discovery requests, they denied, among other things, (1) that 

the physical features cited by Plaintiffs constituted barriers to access, (2) the applicability of 

the accessibility standards urged by Plaintiffs to the facilities in question, (3) the validity of 

Plaintiffs’ interpretations of accessibility standards, and (4) the accuracy of Plaintiffs’

measurements.

2

 See Lamp. Dec., ¶ 4. Defendants also produced hundreds of thousands of 

pages of documents, many related to Plaintiffs’ alleged physical barriers. See Lamp. Dec., ¶ 5. 

In addition to multiple depositions of party representatives from the Forty Niners

Defendants, Santa Clara Defendants, and Third-Party Defendant Turner-Devcon Joint Venture 

(“Turner-Devcon”), Plaintiffs took depositions of non-party HNTB, an architect on the 

Stadium project. HNTB was an independent contractor on the Stadium project; it was not an 

employee, agent or representative of the Forty Niners defendants, and had no contractual 

relationship with the City or the Stadium Authority with respect to the work it did on that 

project. See Mercurio Dec., ¶ 6; see also Pimentel Dec., ¶ 4. The HNTB witnesses deposed in 

this case, represented by their own counsel, were not offered by any Defendant as a Rule 

30(b)(6) designee or other party-representative. 

Regarding with expert discovery, the parties exchanged opening expert witness 

disclosures and reports on October 18, 2018 and rebuttal reports on November 8, 2018. 

 2 In addition, Defendants moved for a protective order regarding over six thousand Requests for 

Admission seeking Defendants to admit or deny certain measurements on the grounds that taking every 

measurement and confirming every photograph taken by Plaintiffs’ consultants would be unduly 

burdensome. ECF No. 222. The Court granted the motion as it related to measurements and 

photographs. ECF No. 228. This procedural history makes more perplexing Plaintiffs’ argument here 

that a measurement unaddressed by Defendants constitutes an admission given Defendants’ stated 

position in the joint discovery letter that taking every single measurement identified by Plaintiffs would 

be unduly burdensome, especially for the public entity Defendants with staffing and budgetary 

restrictions.

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Plaintiffs designated 15 different liability experts, and one damages expert. Plaintiffs’ experts 

adopted some, but not all, of Plaintiffs’ counsel’s list of alleged physical access barriers. See 

Lamp. Dec., Exh. H, Deposition of Scott McBrayer, at 128:1-131:17.

Defendants’ experts challenged the validity of Plaintiffs’ physical access claims, 

including the applicability of the access codes they and their experts had cited, their 

interpretation of accessibility codes and standards, and the accuracy of their measurements. 

See Declarations of Kim Blackseth, Ed Roether, Dominic Marinelli, and W. Andrew Fennell.

In so doing, they were clear that they had not addressed all of the thousands of individual 

claims and measurements offered by Plaintiffs and their experts, and that a failure to address a 

specific claim or measurement did not constitute any admission that they were correct. Id.

III. LEGAL STANDARDS

A. Summary Judgment Standards

Summary judgment, and partial summary judgment, are proper only where there “is no 

genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 

Catrett, 477 U.S. 317, 327 (1986). Because summary judgment is a “drastic device,” cutting 

off a party’s right to present its case to a jury, the moving party bears a “heavy burden” of 

demonstrating the absence of any triable issue of material fact. E.g., Ambat v. City and County 

of San Francisco, 757 F.3d 1017, 1031 (9th Cir. 2010). A “genuine dispute” exists when a 

rational factfinder, considering the evidence in the summary judgment record, could find in 

favor of the non-moving party. E.g., Ricci v. DeStefano, 557 U.S. 557, 586 (2009).

The party moving for summary judgment bears the Lamp. Dec., of showing the 

absence of a genuine, material dispute and an entitlement to judgment. Celotex, 477 U.S. at 

323. Where the moving party has the ultimate burden of persuasion on an issue at trial, “his 

prima facie burden is substantially heavier: “his showing must be sufficient for the court to 

hold that no reasonable trier of fact could find others than for the moving party.” Calderone 

v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (emphasis in original); see also S. Cal Gas 

Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Harris v. Costco Wholesale Co., 

389 F.Supp. 1244, 1246 (S.D. Cal. 2005) (“when the moving party bears the burden of proof 

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on an issue . . . the party must establish beyond peradventure all of the essential elements of 

the claim . . . to warrant judgment in its favor.”) (emphasis in original).)

If the moving party fails to discharge its initial burden of production, summary 

judgment must be denied, and the court need not consider the non-moving party’s evidence. 

See Adickes v. S.H. Kress Co., 398 U. S. 144, 159-60 (1970); Nissan Fire and Marine Ins. Co. 

v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000).

If the moving party satisfies his initial burden, but the non-moving party shows a 

genuine, material dispute or otherwise demonstrates that the moving party is not entitled to a 

judgment, the court must deny the motion. See Amgen Inc. v. Conn. Ret. Plans & Trust 

Funds, 568 U.S. 455, 479-80 (2013) (Rule 56 imposes a “relatively lenient standard” to 

survive the motion and continue on to trial).

When ruling on a motion for summary judgment, the court cannot engage in credibility 

determinations or weighing of the evidence; those are functions for the jury. Anderson, supra, 

477 U.S. at 255; Playboy Enter., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002). Thus, the 

evidence of the non-moving party will be believed as true, all evidence is to be construed in 

the light most favorable to the non-moving party, and all doubts and reasonable inferences are 

to be drawn in the non-moving party’s favor. See Tolan v. Cotton, 572 U.S. 650 (2014).

Applying these standards, in ADA cases the courts routinely have denied plaintiffs’

motions for summary judgment and partial summary judgment. See, e.g., Harris, supra, 389 

F.Supp. at 1251 (denying plaintiff’s motion on ADA and state law claims, granting 

defendant’s cross-motion on ADA claim); Schutza v. Premier Auto. of Ca. LLC, No. 14-cv2653 JCS, 2018 U.S. Dist, LEXIS 200748, **14-18 (S.D. Cal. Nov. 27, 2018) (denying 

plaintiff’s motion for summary judgment on ADA Title III and Unruh Act claims due to 

genuine issues of material fact, including divergences in expert opinions); Hintz v. May & Co., 

No. 3:17cv459-H50-JCG, 2018 U.S. Dist. LEXI 101374, **18-20 (S.D. Miss. June 18, 2018)

(denying plaintiff’s motion on grounds he had not met his burden of demonstrating absence of 

material fact on the “readily accessible” issue); Lindsay v. 1777 Westwood C.P., No. 2:17-cv03333-00WCAS, 2018 U.S. Dist. LEXIS 140035, **9-12 (C.D. Cal. Aug. 17, 2018 (granting

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defendant’s motion for summary judgment on ADA claim, denying plaintiff’s cross-motion 

for summary judgment); Shaw v. Jar-Ramona Plaza LLC, No. 5:13-cv-01563-CAS(SPx); 

2015 U.S. Dist. LEXIS 33810, **9-14 (C.D. Cal. March 15, 2015) (denying plaintiff’s motion 

on physical access barriers due to existence of genuine issues of disputed material fact); Khan 

v. KIR Tampa 003, LLC. No. 8:14-cv-1963-T-17MAP, 2015 U.S. Dist. LEXIS 163592, ** 31-

42 (denying plaintiff’s motion for partial summary judgment on alleged physical access 

barriers due to conflicts in expert testimony on whether surfaces were “slip resistant,” the 

existence of alternative routes of travel, curb ramp landing requirements, and parking space 

and access aisle slopes); Rush v. Castle & Cooke Corona Inc., CV 10-8952-GW, 2011 U.S. 

Dist. LEXIS 162906, **10-21 (C.D. Cal. Nov. 10, 2011) (denying plaintiff’s motion for 

failure to show absence of disputed material facts on alleged architectural barriers in 

restrooms: granting defendants’ motions for summary judgment [based in part on expert 

testimony of Kim Blackseth, Defendants’ expert in this case]); Blackwell v. City and County of 

San Francisco, No. C 07-4629 SBA, 2010 U.S. Dist. LEXIS 1477339, **11-15 (N.D. Cal. 

Aug. 18, 2010) (denying plaintiff’s motion for partial summary judgment on Unruh Act claims 

on alleged physical access barriers, granting defendant’s motion for summary judgment).

Plaintiffs bear the ultimate burden of persuasion and proof with respect to all of the 

issues on which they seek partial summary judgment. They have not met their burden under 

Rule 56(a) of establishing the absence of genuine disputes of material facts as to those issues. 

The improper Exhibit D to the Declaration of Andrew Lee, on which Plaintiffs’ place heaviest 

reliance, invites the Court to resolve factual disputes (e.g., on dimensional measurements and 

conflicts among the parties’ experts), as does Plaintiffs’ 200-page proposed Order.3 As a 

matter of law, resolution of these controverted matters is not proper on partial summary 

judgment. They should be decided by the jury at trial.

 3 Plaintiffs themselves characterize the contents of this exhibit as “arguments,” and state it is offered to 

show that “Defendants’ dispute is legally unfounded.” ECF No. 288 at 12, n. 3. Legal argument 

offered in a declaration or exhibit thereto is inadmissible. See Defendants’ Objections to Exhibit D to 

Declaration of Andrew Lee. Here, the exhibit represents an obvious attempt to circumvent the briefing 

page limit, in contravention of the Court’s Order denying Plaintiffs’ administrative motion to file an 

over-sized brief. See ECF Nos. 279, 280.

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B. The Americans with Disabilities Act

To prevail on a discrimination claim under Title II, asserted against the Santa Clara 

Defendants, a plaintiff must show that: “(1) she is an individual with a disability; (2) she is 

otherwise qualified to participate in or receive the benefit of a public entity’s services, 

programs or activities; (3) she 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 

her disability.” 42 U.S.C. § 12111; Sheehan v. City & Cty. of San Francisco, 743 F.3d 1211, 

1232 (9th Cir. 2014), rev’d in part on other gnds., cert. dismissed in part sub nom. City & 

County of San Francisco v. Sheehan, 135 S. Ct. 1765 (2015).

Under Title III of the ADA, asserted against the Forty Niners Defendants, “[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. Id.; 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 may be shown by a failure to newly 

construct or alter facilities to make them “readily accessible to and useable by individuals with 

disabilities.” See 42 U.S.C. § 12183(a)(1) (Title III); 28 C.F.R. § 35.151(a)(1) (Title II).

In this case, per the Court’s Order on Class Certification (ECF 185 at 42-43), the 

plaintiffs’ Americans with Disabilities Act classes (one and two) seek only injunctive and

declaratory relief. Such relief is not sought under the Unruh Act, Cal. Civ. Code § 51, et seq.

C. The Unruh Act

The Court has certified a statutory damages class under the Unruh Act. ECF 185 at 43.

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With respect to that class, only the Forty Niners Defendants are parties; the Santa Clara 

Defendants are not. 

As noted above, to make out a prima facie case of eligibility for statutory damages 

under the operative California Civil Code provision, Civil Code section 55.56, the plaintiff 

must show that an alleged violation denied him “full and equal access,” which can only occur 

if he “personally encountered” the alleged barrier to access on a “particular occasion.” Civ. 

Code § 55.56 (a), (b); Munson v. Del Taco, Inc., 46 Cal.4th 661, 667 (2009). To sustain a 

claim based on “personally encountering” an alleged accessibility barrier, the plaintiff must 

prove he “experienced difficulty, discomfort or embarrassment because of the violation. Civ. 

Code § 55.56(c). Absent evidence of such injury-in-fact and causation, the plaintiff is not 

entitled to recover statutory damages under the Unruh Act. Mundy v. Pro Theo Enterprises, 

192 Cal.App.4th Supp. 1, 6 (2011) (claim for statutory damages rejected due to plaintiff’s 

failure to offer such evidence, despite showing of access code non-compliance); Doran v. 7-

Eleven, Inc., 509 Fed. Appx. 647,648 (9th Cir. 2013) (citing Civ. Code § 55.56(c)); Antoninetti 

v. Chipotle Mexican Grill Inc., 643 F.3d. 1165, 1177-78 (9th Cir. 2010) (vacating damage

award under Civil Code section 54.3, ruling that “[i]n order to maintain an action for damages 

pursuant to [that section] an individual must establish that he or she was denied equal access 

on a particular occasion” [internal quotation marks omitted]); Reycraft v. Lee, 177 Cal.App.4th 

1211, 1224 (2009) (plaintiff must “actually encounter [ ] access to. . . the [facility] that was not 

full and equal”); Donald v. Café Royal, Inc., 218 Cal.App.3d 168,183 (1990) (same).

Civil Code section 55.56, subd. (e), which addresses claims for multiple violations, 

provides that statutory damages may be assessed for each denial of full and equal access at the 

subject facility on particular occasions, but not upon the number of violations of constructionrelated accessibility standards. Thus, for each alleged violation, the plaintiff must make the 

same showings required under subdivisions (c) and (d); he may not rely simply on the 

presence of multiple alleged barriers. 

Thus, Plaintiffs’ Unruh Act claim is dominated by fact-intensive issues that the jury 

must decide. See also ECF No. 278, Exh. 2 [Court-approved class notice setting Unruh Act 

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issues that will be decided at trial]). There is no “violation of the Unruh Act” unless those 

issues are resolved in favor of Plaintiffs. In their motion, Plaintiffs do not appear to seek 

rulings on statutory damages, but to the extent their loose framing of the issues (see ECF 288 

at p. 3, Item 8) suggests to the contrary, their motion for partial summary judgment as to their 

Unruh Act claim must be denied. 

IV. ARGUMENT

A. Because Plaintiffs’ Have Failed To Meet Their Burden Of Demonstrating 

The Absence Of Genuine Issues Of Material Fact On Issues On Which They 

Seek Partial Summary Judgment, Their Motion Must Be Denied.

1. Plaintiffs Have Failed to Establish That Defendants Each Are Liable 

for the Claimed ADA and Unruh Act Violations.

At the threshold, Plaintiffs’ motion makes no clear delineation – or showing – as 

between which Defendants “owned, operated or leased” the Stadium facilities at issue when 

Plaintiffs visited the Stadium. Rather, they indiscriminately lump them together in arguing 

potential liability under the ADA and Unruh Act. See ECF No. 288 at 2, “Relief Sought” item 

3, at 3, item 8. They adduce no facts that the Santa Clara Defendants “designed or constructed 

Levi’s Stadium.” Id. at 3, item 8.

The law is clear that there can be no liability under the ADA unless the defendant 

owned, operated or leased the subject facility. Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 

963, 966-968 (9th Cir. 2006) (upholding summary judgment in favor of defendant on ADA 

Title III claim on grounds there was no showing made that it controlled or otherwise operated 

a grassy strip of land); see DOJ Preamble, 28 C.F.R. pt. 36, App.B at 681 (2005) (“definition 

of ‘facility’ only includes the site over which the private entity may exercise control.”).

As discussed above, Forty Niners SC Stadium Company leased the Stadium only 

during the “tenant season,” essentially the football season. See Mercurio Dec., ¶ 3, Exh. A. 

Thus, for example, it did not “operate” the Stadium’s facilities when the Nevarezes attended 

the monster truck rally. None of the named Forty Niners defendants contracted with HNTB 

with respect to design of the Stadium, and the Forty Niners Football Company LLC merely 

owns and operates the San Francisco 49ers football team. See Mercurio Dec., ¶¶ 5-6. Triable 

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issues of fact exist with respect to each defendant’s potential liability under the ADA.

2. The Parties’ Fundamental Dispute Over Which Accessibility 

Standards Applied To The Construction of Levi’s Stadium Precludes 

Partial Summary Judgment.

Plaintiffs concede in their motion that: “The issue of which set of federal accessibility 

standards applies depends on the date that the relevant facilities were newly constructed. New 

construction by public entities commenced after September 15, 2010 and before March 15, 

2012 must comply with the 2010 ADAS, the 1991 ADAAG, or the UFAS, and such work by 

private entities during the same time period must comply with either the 2010 ADAS or 1991 

ADAAG.” ECF No. 288 at 9, ll. 5-10 (emphasis added); see also ECF No. 291, at 8, ll 11-13. 

They further admit that “Defendants will likely deny that the Stadium’s construction 

commenced on or after March 15, 2012 and contend that they comply with either elements of 

either set of standards...” Id. at 9, ll. 13-15. That is indeed Defendants’ position, as outlined in

expert Kim Blackseth’s November 8, 2018 expert rebuttal report: 

Construction History

The initial permit for Levi’s Stadium... was dated 03/01/12. 

Therefore, the relevant standards are the 2010 CBC and the 1991 

ADAAG or the 2010 ABA / ADA guidelines. Between March 15, 

2010 and March 15, 2012 either the 1991 ADAAG or the 2010 

ABA / ADA guidelines could have been used.

Plaintiff experts suggest that when considering the appropriate 

standard, the more restrictive standard should be used. That is 

correct when discussing between the CBC (state) and ADA 

(federal). Whichever standard is more restrictive between the two 

would be the correct standard to meet. However, when discussing 

between both federal standards – the 1991 ADAAG and the 2010 

ABA / ADA guidelines (between the timeframe of March 15, 2010 

and March 15 2012), there is a choice. It is not based on which 

standard is more restrictive... We have a fundamental 

disagreement on the applicable standards that could be used. 

We believe either Federal Standard could be met. If the 1991 

Standards are met (and not the 2010 Standards) there is no 

compliance or accessibility issue. [emphasis added] (Exh. D to 

Blackseth Dec., at p. 8; See Blackseth Dec., ¶ 10).

See also Lamp. Dec., Exh. G, Deposition of Jonathan Harvey, at 31:15-24 (testifying that 

construction began at Levi’s Stadium in February 2012 when Turner Devcon began the 

indicator pile program); see also Marinelli Dec., ¶¶ 7-8.

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Plaintiffs have offered no evidence to the contrary, to wit, that construction on the 

Stadium commenced after March 15, 2012. Yet they jump (and ask the Court to jump) to the 

unfounded conclusions that the testimony of non-party HNTB that it chose to comply with the 

2010 ADAS, is somehow binding on all Defendants, that Defendants are thus foreclosed from 

asserting their positions regarding applicable accessibility standards, and that the issue of what 

standards apply is “undisputed.” Plaintiffs are wrong on all counts. 

First, 2010 ADA Title II (§35.151 (c)(2)) provides that the entity may choose between 

the 2010 Standards, UFAS, or the 1991 Standards. HNTB is not the entity. As the architect, 

particularly one who is not employed by the entity, does not have the authority to usurp the 

entity’s right to determine the applicable standard. See Declaration of Ed Roether (“Roether 

Dec.”), ¶ 6. Indeed, there is no evidence that HNTB was in contract with the entity – the Santa 

Clara Stadium Authority – or that the Stadium Authority permitted HNTB to choose the ADA 

Standards on its behalf. See Roether Dec., ¶ 6; see also Declaration of Nora Pimentel

(“Pimentel Dec.”), ¶ 4. Under the ADA regulations, it is the owner/operator/lessor who makes 

the election as to which standard is applied. 28 C.F.R. § 35.151(c)(2) (Title II). The Forty 

Niners Defendants did not elect to apply the 2010 ADAS. See Mercurio Dec., ¶ 9.

Second, the testimony of non-party HNTB is not the testimony of either the Forty 

Niners Defendants or the Santa Clara Defendants, or any of them, and Defendants can and will 

introduce evidence at trial concerning which accessibility standards applied to the Stadium’s 

facilities. See, e.g., In re Ramen Antitrust Litig., 281 F. Supp. 992, 920 n. 28 (N.D. Cal. 2017)

(Judge Orrick, in denying motion for summary judgment, finding that statements by the 

Korean Fair Trade Commission regarding defendants’ alleged price-fixing did “not bind [the 

court’s] resolution of that issue”)); Stack v. Burns, No. 13-cv-05001-EMC, 2016 U.S. Dist. 

LEXIS 94799, **20-21(N.D. Cal. July 20, 2016) (statements by defendant’s attorney held “not 

binding on this Court”); Mejia v. Marauder Corp., No. C06-00520 HRL, 2007 U.S. Dist. 

LEXIS 21313, *13 (N.D. Cal. Mar. 15, 20017) (“Generally, it is true that admissions of one 

defendant are not binding upon a co-defendant”); Castiglione v. United States Life Ins. Co., 

262 F. Supp.2d 1025, 1030 (D. Ariz. 2003) (same). Cf. A.I. Credit Corp. v. Legion Ins. Co., 

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265 F. 3d 630, 637 (7th Cir. 2001) (even a corporation’s own Rule 30(b)(6) designee’s 

testimony may be contradicted or impeached). 

Third, most of Plaintiffs’ contentions regarding alleged compliance with accessibility 

standards depend on their false construct that Defendants have “admitted” the 2010 ADAS 

apply because HNTB allegedly chose the necessary number of accessible seats using the 2010 

standards. However, even if Defendants consulted the 2010 standards as they apply to 

accessible seating, 2010 ADA Title ll (§35.151(c)(2)) states “departures from particular 

requirements of either standard by the use of other methods shall be permitted when it is 

clearly evident that equivalent access to the facility or part of the facility is thereby provided.” 

See Roether Dec., ¶ 7. 

In view of the fundamental disagreement among the parties as to which standards 

apply, Plaintiffs’ motion for partial summary judgment must be denied.

3. Plaintiffs Lack Standing to Assert the Existence of Alleged Barriers 

to Access They Have Not Personally Encountered.

As discussed above, Plaintiffs claim to have encountered only a small fraction of the 

alleged physical access barriers that are the subject of this motion. Compare ECF Nos. 151-1, 

2 with Plaintiffs’ Proposed Order, ECF No. 288-6, pp. 15-200. Plaintiffs do not have standing 

to make claims regarding alleged barriers they never encountered or knew about before this 

case was filed. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (plaintiff 

has the burden of proof and persuasion as to the existence of standing); Madsen v. Boise St. 

Univ., 976 F.2d 1219, 1222 (9th Cir. 1992) (that a student with disability had not himself 

suffered injury-in-fact as a result of campus parking policy disqualified him from challenging 

legality of the policy under the rehabilitation Act of 1973); Harris, supra, 398 F. Supp. at 

1252 (granting defendant summary judgement on ADA Title III claim and denying plaintiff’s 

cross-motion on the grounds that “there are no triable issues of material fact that [plaintiff] did 

not encounter an ADA or ADAAG violation when he visited the cost co store. . . [and] as a 

result [he] does not have standing to bring his claim under Title III”).

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4. Plaintiffs Have Failed to Show That the Forty Niners Defendants or 

the Santa Clara Defendants Are Liable Under the ADA or Unruh 

Act for Allegedly Failing to Construct Levi’s Stadium in Compliance 

with Federal and State Accessibility Standards.

a. As a Matter of Law, a Departure from Access Standards Does 

Not of Itself Establish Liability under the ADA or Unruh Act.

The Declarations of Ed Roether, Dominic Marinelli, and W. Andrew Fennell 

demonstrate that Plaintiffs’ experts’ measurements and measurement techniques are incorrect 

and unreliable. The accuracy of those measurements is squarely in dispute. Partial summary 

judgment should be denied on that basis. Even leaving to one side disputes over the 

correctness of Plaintiffs’ physical measurements, the motion also must be denied because there 

is a fundamental dispute between the parties and their respective experts as to whether the 

claimed departures from applicable accessibility standards (which, again are themselves in 

dispute), amount to statutory violations. As discussed in detail in Kim Blackseth’s November 

18, 2018 report (see Blackseth Dec., Exh. C), the regulations and industry practice standards 

permit construction and manufacturing tolerances, which Plaintiffs’ experts fail to take into 

proper account in drawing their conclusions regarding alleged non-compliance:

The CBC and ADA both allow for construction and manufacturing 

tolerances. We base our tolerances on the American Concrete 

Institute Information and the US Access Boards study called 

Initiative of Dimensional Tolerances in Construction, Dimensional 

Tolerances for Surface Accessibility. The US Access Board was 

established to develop and maintain accessibility guidelines 

implemented by the Americans with Disabilities Act... 

Plaintiffs’ experts used Dimensional Tolerances for New and 

Existing Construction approved by the San Francisco Building 

Inspection Commission (September 16, 1988). Although the 

document provides guidance, Levi’s Stadium is not bound by the 

San Francisco Building Inspection Commission.

We have a fundamental disagreement on construction and 

manufacturing tolerances. Plaintiff’s experts do not take into 

account the digital margin of error. In addition, Paragraph 21 

of Gary Waters report allows for up to 8.8 % for running 

slopes on ramps and allows up to 2.5% for cross slopes or level 

areas...We have a fundamental disagreement with any 

Plaintiff slope measurements that fall within the construction 

tolerance discussion detailed above...

(Exh. E to Blackseth Dec. at 8-9, emphasis added).

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As further noted in Mr. Blackseth’s report and declaration, the CBC and ADA allow 

for conventional industry tolerances in construction and manufacturing in determining 

compliance with the Standards. (Id.at 9). 

CBC 1101B.5: Construction and manufacturing tolerances. All

Dimensions are subject to conventional industry tolerances except 

where the requirement is stated as a range with specific minimum 

and maximum end points.

ADA104.1 Construction and Manufacturing Tolerances. All 

dimensions are subject to conventional industry tolerances except 

where the requirement is stated as a range with specific minimum 

and maximum end points.

28 C.F.R. part 36, App. D, Section 3.2: “All dimensions are subject 

to conventional industry tolerances for field conditions.”

The ADAAG also provides for functional equivalence. ADAAG § 2.2 states: 

“Departures from particular technical and scoping requirements of this guideline by use of 

other designs and technologies are permitted where the alternative designs and technologies 

used will provide substantially equivalent or greater access to and usability of the facility.”

The courts have recognized, in evaluating physical access claims, that ADA 

compliance must be measured in accordance with applicable industry tolerances. As this 

Court stated in Cherry v. City College of San Francisco, No. C. 04-04981 WHA, 2006 U.S. 

Dist. LEXIS 98661, *14 (N.D.Cal. Jan. 12, 2006), the ADAAG tolerance provisions are 

“intended to allow for construction tolerances, such as variations based on field, material, 

manufacturing and workmanship conditions.” The Court added: “[T]he burden is on plaintiffs 

to prove that the variance exceeds the allowed tolerance. It is not enough to simply show that 

a particular bathroom stall, for example, is less than the required width. The approximate 

extent of any shortfall must be proven.” 2006 U.S. Dist. LEXIS 98661 at *17. See also, 

Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464, 473 (S.D. Cal. 2013) (denying 

motion to strike affirmative defense of compliance with industry standards). 

In Access Now, Inc. v. S. Fla. Stadium Corp., 161 F.Supp.2d 1357 (S.D. Fla. 2001), a 

case involving stadium disability access, very similar to the present case, the Court granted 

defendants’ motion for summary judgment on the ADA claims on the grounds that the plaintiff 

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had not met his burden of demonstrating a violation of the law. Id. at 38. In so ruling, the 

Court stated:

Deviation from the standards is relevant but not determinative; it is 

one consideration from which the court may conclude that 

noncompliance impedes access. At trial, a defendant may be able 

to rebut this evidence by showing that despite the technical 

noncompliance, the challenged accommodation in fact allows 

disabled persons effective access. However, on summary 

judgment, the Court cannot weigh the evidence proffered by the 

parties, but may only consider whether Plaintiffs have adduced 

sufficient evidence of each element of their claim in satisfaction of 

their initial burden. 

Id. at 28-29 (emphasis added); See also Cayette v. PNK (Baton Rouge) P’ship, No. 15-

692-SDD-RLB, 2016 U.S. Dist. LEXIS 84592, *9 (upholding validity of defense of “any 

deviations from the applicable guidelines are de minimis and within construction and/or 

manufacturing tolerances.”).

Here, Plaintiffs have not met their burden of establishing that claimed variances from 

accessibility standards impede access. There is a fundamental conflict between the parties’ 

experts as to which tolerances even apply. These issues must be resolved at trial; they are not 

appropriate for summary disposition. 

b. Whether “Dining Areas Throughout the Stadium” Lack 

Accessible Dining Surfaces Is in Dispute.

With regard to the alleged lack of accessible dining surfaces throughout the Stadium, 

Plaintiffs ignore that the dining surfaces are movable – not fixed – and therefore there is no 

ADA liability for these items. Expert Ed Roether opined that the 1991 ADA Standards applies 

only to fixed or built-in dining surfaces per both 4.1.3.18 and 5.1, and that the scoping 

provisions of 226 in the 2010 ADA Standards does not specifically state that it only applies to 

built-in dining surfaces, but requires compliance with 902 and Chapter 9 only provides the 

technical requirements for built-in elements. Plaintiffs’ expert report shows small, clearly 

moveable, tables (see, e.g., photos 26-915, 26-948 in exhibit B to McBrayer declaration). 

Roether Dec., ¶¶ 8-9; see also Marinelli Dec., ¶ 11. 

In the suites are two types of tables; one is a trestle type, which is the most common, 

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clearly movable and not fixed (see, e.g., photos 26-054, 25-888 in exhibit B to McBrayer 

declaration). The other type is more fixed that includes an accessible pull out dining surface 

(see, e.g., photos 26-480, 26-617 in exhibit B to McBrayer declaration). See also Roether 

Dec., ¶¶ 8-9, Exh. A; see also Marinelli Dec., ¶ 12.

c. Whether “Drink Rails Throughout the Stadium” Are Too 

High and/or Lack the Requisite Toe Clearance Is In Dispute.

Plaintiffs allege that drink rails throughout the Stadium (Levi’s 501 Club, Level 300 

Main Concourse, Level 700 Upper Concourse, and Bourbon Pub, etc.) exceed accessible 

height limits or lack sufficient depth for toe clearance; however, these are not “dining areas.” 

Drink rails are not defined as such in the 1991 ADA or 2010 ADA Standards (or the 

applicable 2010 California Building Code). See Marinelli Dec., ¶ 13.

In addition, the 1991 ADA Standards, the 2010 ADA Standards and the 2010 

California Building Code permit equivalent facilitation (i.e., the use of other accessibility 

standards). This is critical as the Plaintiffs’ experts have indicated that drink rails are only 8 

inches of depth. The American National Standard for Accessible and Usable Buildings and 

Facilities (§902, Exception 1 A117.1 – 2009) – the Accessibility Standard referenced by the 

majority of jurisdictions in the country – provide an exception for drink surfaces 12 inches or 

less in depth. See Marinelli Dec., ¶ 14. These issues are squarely in dispute.

d. Whether “Certain Paths of Travel” to Accessible Seating 

Within the Stadium Are Accessible Is In Dispute. 

The experts disagree on measurements or whether paths of travel conditions constitute 

barriers. Mr. Blackseth has opined that, alleged differentials are relatively minor and do not 

affect usability of the path of travel near accessible seating. See Blackseth Dec., ¶ 12e.

e. Elevator Signage. 

Plaintiffs do not cite provisions in the 1991 ADA Standards, the 2010 ADA Standards,

or the 2010 CBC that require signage indicating accessible paths of travel. The 2010 ADA 

Standards 216.3 only provides scoping requirements when directional or informational signs 

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are provided, it does not require directional signs. Section 216.6 only requires directional 

signs to accessible entrances when not all entrances are accessible; all entrances to Levi’s 

Stadium are accessible. Similarly, the 1991 ADA Standard 4.1.3(16)(b) only provide scoping 

requirements when directional or informational signs are provided, it does not require 

directional signs. Also, Plaintiffs do not cite provisions in the 2010 ADA Title II Regulations 

(CFR) that require signage. Section 35.151(a)(1) only requires compliance with the design 

standards and separate from the design standards section 35.163(a) requires “a public entity to 

ensure that interested persons, including persons with impaired vision or hearing, can obtain 

information as to the existence and location of accessible services, activities, and facilities.” 

Plaintiffs’ claim that wayfinding signage is required at major vertical circulation elements is 

simply not correct. See Roether Dec., ¶ 10.

Plaintiffs also argue that, because defense expert Kim Blackseth agreed there could be 

additional signage at Levi’s Stadium, Defendants have conceded that lack of signage is a 

barrier. Mr. Blackseth specifically disputes this, and clarified that his comments regarding 

signage were not intended to mean that he (or Defendants) concede that the alleged lack of 

elevator signage necessarily makes Levi’s Stadium’s elevators not readily accessible or not 

useable. See Blackseth Dec., ¶ 12a.

f. Handrails on Ramps to Accessible Seating Location.

There is a conflict among the experts regarding handrails on ramps to accessible 

seating locations. Mr. Blackseth has opined that, although the bottom handrail extensions in 

some areas were 10” in the horizontal dimension, they are not unusable based on his 

experience as a wheelchair user. See Blackseth Dec., ¶ 12b.

g. Ramp to Accessible Seating Areas.

The experts also disagree regarding the ramps to the accessible seating areas. Mr. 

Blackseth opined that the claimed differentials between the specifications and the conditions 

were relatively minor and do not render the ramps unusable. See Blackseth Dec., ¶ 12c.

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h. Whether Designated Accessible Seating Is Accessible Is In 

Dispute.

Mr. Blackseth opined that claimed differentials between the specifications and the 

conditions were relatively minor and the ramps are unusable. See Blackseth Dec., ¶¶ 12d, 12e.

i. Whether Stadium Restrooms “Have Numerous Barriers to 

Accessibility” Is In Dispute.

Again there is a direct conflict of expert opinion related to accessibility of the 

restrooms at Levi’s Stadium. Mr. Blackseth specifically does not agree that the door hardware 

and floor slope in restrooms constitutes a barrier, or is not readily accessible or not usable by 

individuals with disabilities. Mr. Blackseth opined that the claimed differentials between the 

specifications and the conditions were relatively minor and do not render the features 

unusable. See Blackseth Dec., ¶ 12f.

In addition, using the 1991 Standards (itself a fundamental dispute in this case), Mr. 

Blackseth opined that baby changing stations are not addressed in the Standards, and that the 

toilet paper dispensers are in the appropriate place. See Blackseth Dec., ¶ 12f. Similarly, Mr. 

Roether opined that the 1991 ADA Standards and the 2010 CBC do not address baby changing 

stations and the 2010 ADA Standards does not prohibit them, and that there is no requirement 

that an accessible restroom compartment door clearance be measured with a baby changing 

table in the down position. See Roether Dec., ¶ 12; see also Marinelli Dec., ¶¶ 16-17. Mr. 

Marinelli also opined that the flush controls in the urinals are compliant because they are 

automatic and not hand-operated. See Marinelli Dec., ¶ 18.

Finally, Defendants took issue with the accuracy and reliability with Plaintiffs’ 

measurements related to slope in the restrooms. Plaintiffs measured slope at drains in toilet 

stalls by standing on the digital level causing the end to be forced-up up at transition between 

two types of tiles (improper measuring techniques exemplified in photos 2953, 2954 among 

others in Masten Declaration, Exhibit C). See Marinelli Dec., ¶ 9.

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j. Whether the Stadium’s Bourbon Steak, Bourbon Pub, and 

Tailgate Restaurants “Have Numerous Inaccessible 

Features” Is In Dispute. 

Plaintiffs allege that the Bourbon Steak, Bourbon Pub, and Tailgate Restaurants have 

excessive slopes in their paths of travel. Defendants’ experts disagree. Specifically,

Defendants’ measurements differ materially from the Plaintiffs’ measurements and show an 

accessible path of travel. See Roether Dec., ¶ 13, Exh. C. Plaintiffs’ claim that the slope of an 

entire plaza area needs to be treated as a cross slope in all directions is erroneous. What is 

required is an accessible route at least 48” wide with compliant running slope and cross slope, 

and that is provided at the Stadium. Id.

Contrary to Plaintiffs’ contention, the restaurants’ use of a wheel chair platform lift is 

appropriate. The 1991 ADA Standards would permit an exterior path of travel to serve as the

accessible route between the levels connected by the wheelchair platform lift. A compliant 

exterior accessible route exists between the two levels. Therefore, it would comply with the 

1991 ADA Standards regardless of whether the wheelchair platform lift existed or not. 

Having a wheelchair platform lift enhances accessibility per the 1991 ADA Standards, it does 

not diminish it. Also, it appears that together with the elevator the Santa Clara Building Dept. 

accepted that the wheelchair platform lift facilitated an equivalent accessible route per the 

2010 CBC and approved its use. See Roether Dec., ¶ 14.

Finally, with regard to the handrail extensions at the stairs connecting Bourbon Pub 

and Bourbon Steak lacking the required horizontal dimension; the 1991 ADA Standards did 

not require stairs to comply, including their handrails and extensions, when an accessible route 

is provided per 4.1.3(4). It states that “interior and exterior stairs connecting levels that are not 

connected by an elevator, ramp, or other accessible means of vertical access shall comply with 

4.9”. Section 4.9 provides the technical requirements for stairs, including handrails. Again, a 

compliant exterior accessible route exists between the two levels. Therefore, it would comply 

with the 1991 ADA Standards even if handrails were not provided for the stairs or even if the 

stair treads and risers themselves did not comply since the stairs were not required to comply 

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due to the accessible route provided between the two levels. Further, this issue was not 

identified by the authority having jurisdiction to enforce the 2010 California Building Code 

(the City of Santa Clara) . See Roether Dec., ¶ 15; see also Marinelli Dec., ¶ 19; see also

Blackseth Dec., ¶ 12g.

k. Whether the Stadium’s Luxury Suites “Include NonCompliant Closet Features” Is In Dispute.

The 2010 ADA Standards 225.2, the 1991 ADA Standards 4.1.3(12)(a), as well as the 

2010 CBC 1125B.1, only require compliance for one of each type of storage. Plaintiffs’ 

photos show cabinets on the opposite side of the entry door of the luxury suites which has 

accessible height shelves. The cabinet doors for many are closed in the photos, but some (such 

as photo 25 423 in exhibit B of the McBrayer Declaration) show the cabinet door open with 

the shelves exposed. The shelves in these cabinets are the same type of storage as the shelf in 

the closet. Therefore, accessible shelving is provided and additional accessible shelving is not 

required for the luxury suites, and is provided. See Roether Dec., ¶ 16; see also Marinelli 

Dec., ¶ 20; see also Blackseth Dec., ¶ 12h.

l. Whether the Pedestrian Rights of Way Are Non-Compliant, 

Or Even Relevant, Is In Dispute.

As demonstrated in Defendants’ Motion for Partial Summary Judgment, ECF No. 282, 

the “pedestrian rights of way” between remote parking lots and other undefined locations in 

the City of Santa Clara, on the one hand, and the Stadium, on the other, are not properly part 

of this case. Those City paths of travel do not “serve” Levi’s Stadium; rather, the parking lots 

immediately adjacent to the Stadium are designated for disabled parking. See Mercurio Dec., 

¶ 9. Plaintiffs’ musings (not supported by any evidence) that “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,” (Mtn. at 22, n. 5), does make those purported claims relevant.

V. CONCLUSION

For the foregoing reasons, the Court should DENY Plaintiffs’ Motion for Partial 

Summary Judgment. 

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Respectfully submitted, 

Dated: January 3, 2019 LOMBARDI, LOPER & CONANT, 

LLP

By: /s/ Maria L. Lampasona

GORDON REES SCULLY

MANSUKHANI, LLP

By: /s/ Brian P. Maschler

Brian P. Maschler

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