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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

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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, Sixth 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’ NOTICE OF MOTION

AND MOTION FOR SUMMARY

JUDGMENT; MEMORANDUM OF

POINTS AND AUTHORITIES IN

SUPPORT OF MOTION

Date: August 29, 2019

Time: 1:30 p.m.

Dept.: Courtroom 8

Judge: Hon. Lucy H. Koh

[Fed. R. Civ. Proc. 56(a)]

Trial Date: November 28, 2019

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TABLE OF CONTENTS

Page

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

MEMORANDUM OF POINTS AND AUTHORITIES .............................................................2

I. INTRODUCTION .............................................................................................................2

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

III. LEGAL ARGUMENT.......................................................................................................5

A. Summary Judgment Standards...............................................................................5

B. The Accessibility Of Remote Parking Lots And Pedestrian Rights Of Way

Outside Of Levi’s Stadium Is Not Part Of This Class Action; Plaintiffs’ Claims

Regarding Such Areas Therefore Be Dismissed....................................................5

1. Factual Background Related to Stadium Parking Plans and Santa Clara

Transition Plan...........................................................................................5

2. The Condition of the Satellite Parking Lots is Irrelevant to this Lawsuit

Because Defendants Cluster ADA Parking in the Closest Lot to the

Stadium’s Entrance ....................................................................................9

3. The Condition of the Rights of Way Is Irrelevant to this Lawsuit Because

Defendants Cluster ADA Parking in the Closest Lot to the Stadium’s

Entrance ...................................................................................................11

4. An Injunction Related to the Rights of Way is Unnecessary Because the

City of Santa Clara Already is Evaluating and Correcting the Rights of

Way in Connection with its Transition Plan............................................13

C. ISA Signage On Stadium Restrooms 3.43.02 And 3.44.02 Is Not Required

Under The ADA...................................................................................................14

D. The Outdoor Wheelchair Seating Adjacent To Stadium Suite 517 Is ADACompliant.............................................................................................................15

E. The Countertops In The Main Team Store In The Stadium Are ADA-Compliant

..............................................................................................................................15

F. The Wheelchair-Accessible Seating On The Selected Platform Is ADACompliant.............................................................................................................15

G. The Forty Niners Defendants’ Ticketing Policies And Practices Comply With

The ADA..............................................................................................................16

IV. CONCLUSION................................................................................................................16

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TABLE OF AUTHORITIES

Page

Federal Cases

Celotex Corp. v. Catrett,

477 U.S. 317 (1986)..................................................................................................................5

City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283 (1982)..................................................................................................................9

Wander v. Kaus,

304 F.3d 856 (9th Cir. 2002).....................................................................................................9

Federal Statutes

42 U.S.C. § 12188(a)(1)...............................................................................................................9

Federal Rules

Fed. R. Civ. P. 56 .....................................................................................................................1, 5

Fed. R. Civ. P. 56(c).....................................................................................................................5

Federal Regulations

Chapter 28, section 35.150 of the Code of Federal Regulations................................................13

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NOTICE OF MOTION AND MOTION

TO PLAINTIFFS AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on August 29, 2019, at 1:30 p.m., or as soon thereafter

as this matter may be heard, in Department 8 of this Court, 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 (collectively, “Defendants”) will move this

Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an Order granting

summary judgment in favor of Defendants related to Plaintiffs’ Fourth Amended Complaint

(“FAC”) on the following issues:

First, as a matter of law and based on the subject matter of this lawsuit, Plaintiffs’

claims regarding satellite parking lots (see ECF 195-1 at 161, 186) and so-called “pedestrian

rights of way” (see ECF 195-1 at 189-264) are irrelevant to whether Defendants have made

Levi’s Stadium accessible to Plaintiffs and members of the plaintiff classes, and should be

dismissed.

Second, regarding Stadium women’s restroom 3.43.02 and men’s restroom 3.44.02,

Plaintiffs’ claims that they must have signage that bears the International Symbol of

Accessibility (“ISA”) (see ECF 195-1 at 21) are legally incorrect. An ISA is required on an

accessible restroom only where not all restrooms are accessible. At Levi’s Stadium, all public

restrooms are designed and constructed to be accessible to persons with disabilities. Therefore,

the ISA signage is not required.

Third, the outdoor wheelchair seating adjacent to Suite 517 at the Stadium is ADAcompliant. (See ECF 195-1 at 45).

Fourth, the countertop height at the Main Team Store in the Stadium is ADA-compliant.

Because this entire counter is properly accessible, no ISA signage identifying accessible

portions of the counter is required. (See ECF 195-1 at 35).

Fifth, the wheelchair-accessible seating on the platform identified in FAC, Exhibit A,

ECF 195-1 at 12, is ADA-compliant.

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Sixth, the ticketing policies and practices employed by the Forty Niners Defendants,

which are wholly non-discriminatory, comply with the ticketing requirements of the ADA.

The Court should dismiss all of these claims on summary judgment.

This Motion is based upon this Notice of Motion and Motion, the Memorandum of Points

and Authorities, Declarations of Kim Blackseth, Cris C. Vaughn, Jim Mercurio, Craig Mobeck

and Maria Lampasona, and Request for Judicial Notice filed herewith, and the pleadings,

memoranda, Orders, exhibits and other documents already on file in this action.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

In the Court’s Order dated February 5, 2019, it directed Plaintiffs and Defendants,

respectively, each to select six discrete issues to litigate through trial. (ECF 328). In its April 4,

2019 Case Management Order (ECF 337), the Court set a summary judgment briefing and

hearing and trial (if necessary) schedule of those issues. Defendants seek summary judgment

as to the six issues they have selected to be decided in this first phase. Plaintiffs’ claims with

respect to these issues are untenable as a matter of law and/or raise no genuine issue of

material fact. They are as follows:

First, as a matter of law and based on the subject matter of this lawsuit, Plaintiffs’

claims regarding satellite parking lots (see ECF 195-1 at 161, 186) and so-called “pedestrian

rights of way” (see ECF 195-1 at 189-264) are irrelevant to whether Defendants have made

Levi’s Stadium accessible to Plaintiffs and members of the plaintiff classes, and should be

dismissed.

Plaintiffs’ Fourth Amended Complaint alleges that defendants’ configuration of Levi’s

Stadium (“Levi’s Stadium” or the “Stadium”), and the parking lots and rights-of-way (e.g.

sidewalks, crosswalks, and curb ramps) that serve the Stadium, violate the Americans with

Disabilities Act (“ADA”) and the California Unruh Civil Rights Act, and that Plaintiffs have

been denied full and equal access to the Stadium due to these alleged violations.

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Parking at the Stadium can be broken into two categories: one large lot that is

immediately adjacent to the Stadium (the “Main Lot”), and “satellite lots,” which are a mix of

publicly and privately-owned lots that are connected to the Stadium via the rights-of-way

Defendants’ parking plan provides that (1) all ADA (handicapped) parking spaces are to be in

the Main Lot immediately adjacent to the Stadium, and (2) there is an ADA drop-off zone on

an accessible path of travel close to the Stadium. This Stadium-adjacent parking lot is

designed to provide the ADA-required number of accessible parking spaces (including vanaccessible spaces), which is based on the total number of parking spaces made available to the

public at large. Therefore, the number of accessible parking spaces in off-site, or satellite

parking lots, which lots are not owned by Defendants, is legally immaterial to the issues before

the Court in this case, and cannot serve as a proper basis for Plaintiffs’ claims.

Moreover, accessibility of the rights-of-way is governed by the Code of Federal

Regulations, which requires that public entities like the City of Santa Clara develop an ADA

Title II Transition Plan related to accessibility of its streets and walkways. The City of Santa

Clara already is in the process of developing a Transition Plan with required accessibility

elements covering the rights-of-way leading to the Stadium. The Court only certified a single

injunctive relief class as to the City of Santa Clara and the Santa Clara Stadium Authority

defendants; they are not parties to the damages class or companion class. Because the City of

Santa Clara already is in the process of making accessible all of its pedestrian rights-of-way

through the procedure proscribed by Federal law (the “Title II ADA Transition Plan”), the

issue is largely moot, and any injunctive decree related to the rights-of-way here would be

unnecessary and ineffective. Accordingly, Plaintiffs’ claims related to the rights-of-way

should be dismissed.

Second, regarding Stadium women’s restroom 3.43.02 and men’s restroom 3.44.02,

Plaintiffs’ claims that they must have signage that bears the International Symbol of

Accessibility (“ISA”) (see ECF 195-1 at 21) are legally incorrect. An ISA is required on an

accessible restroom only where not all restrooms are accessible. At Levi’s Stadium, all public

restrooms are designed and constructed to be accessible to persons with disabilities. Therefore,

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the ISA signage is not required.

Third, the outdoor wheelchair seating adjacent to Suite 517 at the Stadium is ADAcompliant. Plaintiffs’ experts’ measurements and contentions to the contrary (see ECF 195-1

at 45) are in error.

Fourth, the countertop height at the Main Team Store in the Stadium is ADAcompliant. Because this entire counter is properly accessible, no ISA signage identifying

accessible portions of the counter is required. Plaintiffs’ contentions to the contrary (see ECF

195-1 at 35) are erroneous.

Fifth, the wheelchair-accessible seating on the platform identified in FAC, Exhibit A,

ECF 195-1 at 12, is ADA-compliant. Plaintiffs’ contentions to the contrary are erroneous.

Sixth, the ticketing policies and practices employed by the Forty Niners Defendants

comply, which are wholly non-discriminatory, comply with the ticketing requirements of the

ADA.

The Court should dismiss all of these claims on summary judgment.

II. STATEMENT OF FACTS

Levi’s Stadium is a multi-use facility in Santa Clara, California, that has served as the

home venue for the National Football League (“NFL”)’s San Francisco 49ers since 2014.

Levi’s Stadium also has hosted various other non-NFL events since its opening to the public in

2014, including concerts, high school and college sporting events, professional hockey,

wrestling, and soccer events, including national and international games. Levi’s Stadium is

situated on approximately 22 acres of land owned by the City of Santa Clara, and is leased to

the Santa Clara Stadium Authority, a public entity that was established specifically to provide

for the development and operation of Levi’s Stadium, who in turn has leased the stadium to

Forty Niners SC Stadium Company LLC for part of each year of the lease term (generally, the

football season). Forty Niners Football Company LLC owns and operates the San Francisco

49ers football team, and Forty Niners Stadium Management Company manages the stadium

on behalf of both Forty Niners SC Stadium Company LLC and the Santa Clara Stadium

Authority. See Declaration of Jim Mercurio ¶ 4.

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Plaintiffs have alleged that there exist numerous accessibility barriers both inside

Levi’s Stadium, and in the pedestrian rights of way and parking lots serving Levi’s Stadium,

including the following six alleged barriers addressed in this motion: barriers in the pedestrian

rights of way connecting Levi’s Stadium to satellite parking lots, lack of accessible signage at

Stadium restrooms, non-compliant outdoor wheelchair seating near suites, non-complaint

countertop height at the Team Store, and inaccessible wheelchair seating platforms.

III. LEGAL ARGUMENT

A. Summary Judgment Standards

Federal Rule of Civil Procedure 56 states, in part: “A party may move for summary

judgment, identifying each claim or defense – or the part of each claim or defense – on which

summary judgment is sought.” (emphasis added). Summary judgment is appropriate where

there is no genuine dispute as to any material fact and the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

B. The Accessibility Of Remote Parking Lots And Pedestrian

Rights Of Way Outside Of Levi’s Stadium Is Not Part Of

This Class Action; Plaintiffs’ Claims Regarding Such Areas

Therefore Be Dismissed

1. Factual Background Related to Stadium Parking

Plans and Santa Clara Transition Plan

Unlike other NFL stadiums, Levi’s Stadium was not built in the middle of an

undeveloped lot that could accommodate all parking for the venue in immediate proximity to

the Stadium’s entrances. See Declaration of Maria M. Lampasona, Exh. 3, Deposition of

David Tran, 05/24/18, at 99:15-102:5; see also Exh. 2, Deposition of Kevin Riley, 04/24/18, at

36:21-38:23. Instead, Levi’s Stadium was built adjacent to the California’s Great America

Amusement Park, in the middle of suburban area with nearby residential and commercial

zones. See Request for Judicial Notice ¶ 1. Accordingly, as part of the planning for the

operation of Levi’s Stadium, the City of Santa Clara, in coordination with other entities such

as AECOM Transportation and the Forty Niners, developed a Transportation Management and

Operations Plan (the “TMOP”). See Declaration of Jim Mercurio, ¶ 5; see also Declaration of

Maria M. Lampasona, Exh. 1, Deposition of Dennis Ng, 03/19/18, at 113:18-114:11; see also

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Request for Judicial Notice, ¶ 3, Exhibit 1. The original TMOP contemplated the use of the

large lot immediately adjacent to the Stadium (Red Lot 1 / Green Lot 1, hereinafter the “Main

Lot”), as well as various public and private lots near the Stadium (the “satellite lots”) (see

Declaration of Maria M. Lampasona, Exh. 1, Deposition of Dennis Ng, 03/19/18, at 119:18-

124:20):

The original TMOP also provided that the primary supply of ADA parking would be in

the Main Lot, and that the total number of spaces in that lot would be sufficient to meet ADA

parking requirements for all patrons expected to arrive at the Stadium by automobile. See

Declaration of Maria M. Lampasona, Exh. 1, Deposition of Dennis Ng, 03/19/18, at 252:17-

254:16, 288:14-289:7; see also Request for Judicial Notice ¶ 3, Exhibit 1. Although the TMOP

makes reference to accessible parking in Blue Lot 1 and Green Lot 4, the ultimate goal was to

place all ADA parking in the Main Lot. The original TMOP also contained provisions for a

courtesy shuttle for guests with mobility disabilities who chose to park in Blue Lot 1 or Green

Lot 4. See Declaration of Maria M. Lampasona, Exh. 1, Deposition of Dennis Ng, 03/19/18, at

114:4-115:22; see also Request for Judicial Notice ¶ 3, Exhibit 1.

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The TMOP was updated in August 2017, but the provision relating to the Main Lot

containing sufficient accessible parking to meet ADA parking requirements for all patrons

expected to arrive at the Stadium by vehicles did not change. See Declaration of Maria M.

Lampasona, Exh. 1, Deposition of Dennis Ng, 03/19/18, at 47:2-16, 128:7-18; see also

Request for Judicial Notice, ¶ 4, Exhibit 2. The TMOP also stated that patrons intending to use

parking spaces not located within the Main Lot can park in Blue Lot 1, which would be

serviced by courtesy shuttles. See Declaration of Maria M. Lampasona, Exh. 1, Deposition of

Dennis Ng, 03/19/18, at 289:25-291:17; see also Request for Judicial Notice, ¶ 4, Exhibit 2.

The parking map for the 2018 football season is below, and the “Main Lot” is

designated as Red Lots 1 and V, and Green Lots 1 and RV. All spaces designated for people

with disabilities are in the Main Lot (see Declaration of Maria M. Lampasona, Exh. 4,

Deposition of James Mercurio, 7/25/18, at 13:14-24):

Currently, the parking plan at the Stadium is as follows: guests needing accessible

parking spaces are directed to the Main Lot. All accessible parking is in the Main Lot. The

Stadium offers courtesy shuttles from Blue Lot 1 as a courtesy to event attendees. The shuttle

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is not intended as part of the accessible parking plan. The Stadium has publicized that

accessible parking is located in the Main Lot, and signs are placed in all satellite lots directing

guests who need ADA spaces to park in the Main Lot. The Stadium also will ensure that there

are enough accessible standard vehicle and van spaces in the Main Lot so that the total number

of accessible spaces in the Main Lot is sufficient to meet the ADA parking requirement for the

Stadium. A recent topographic survey of the Main Lot indicates that locations in which

accessible parking will be located are ADA compliant in terms of slopes and paths of travel

issues. See Declaration of Jim Mercurio ¶ 6.

On May 16, 2018, the City of Santa Clara issued a Request for Proposal for

Professional Services related to the Transition Plan. See Declaration of Craig Mobeck ¶ 2.

Following the review process, the City of Santa Clara selected Moore Iacofano Goltsman,

Incorporated (“MIG”) as the professional design company tasked with the preparation of a

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

Plan. The project specifically calls for MIG to perform a survey of the City’s rights-of-way –

including those identified by plaintiffs in this case – and issue a report related to any alleged

barriers identified therein as the first step in enacting its 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”). See Declaration of Craig Mobeck

¶ 3.

Plaintiffs in this case allege that the City of Santa Clara “owns, maintains, and

exercises control and authority over the pedestrian rights-of-way and the path of travel

between the Stadium and the parking facilities servicing the Stadium, which rights-of-way is a

service, program and/or activity of Defendant CITY. Defendant CITY also owns and/or

exercises control over the parking facilities serving the Stadium, which also constitute a

service, program and/or activity of Defendant CITY.” See ECF 195, Fourth Amended

Complaint (“FAC”), ¶ 9. The Court has certified two injunctive relief classes as to the City of

Santa Clara (a class comprised of persons with mobility disabilities who use mobility aids and

have allegedly been denied equal access to Levi’s Stadium, and those individuals’

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companions). The Court has not certified a damages class as to the City of Santa Clara and the

Santa Clara Stadium Authority (collectively, the “Santa Clara defendants”). See ECF 186,

Order Granting in Part and Denying in Part Motion for Class Certification. Accordingly, the

only remedy available to private ADA plaintiffs as it relates to the Santa Clara defendants is

injunctive relief (as well as attorneys’ fees and costs). 42 U.S.C. § 12188(a)(1); Wander v.

Kaus, 304 F.3d 856, 858 (9th Cir. 2002).

As described in further detail below, injunctive relief is unnecessary because any

outstanding issues, to the extent they exist against the Santa Clara defendants, will be moot.

Given the agreed-upon remediation, and the already-in-progress TMOP, all evidence shows

that “the allegedly wrongful behavior could not reasonably be expected to recur.” City of

Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.10 (1982) (internal quotation marks

omitted).

2. The Condition of the Satellite Parking Lots is

Irrelevant to this Lawsuit Because Defendants Cluster

ADA Parking in the Closest Lot to the Stadium’s

Entrance

Chapter 2 of the 2010 ADA Standards for Accessible Design (the “Standards”) governs

accessible parking at a facility like Levi’s Stadium. Section 208 provides that a certain number

of spaces and van spaces must be made available, and that accessible parking must be located

on the shortest accessible route from parking to the facility’s entrance. The Standards

specifically state that “parking spaces shall be permitted to be located in different parking

facilities if substantially equivalent or greater accessibility is provided in terms of distance

from an accessible entrance or entrances, parking fee, and user convenience.” Section

208.3.1.

Here, all accessible parking for Levi’s Stadium is “clustered” in the Main Lot. See

Declaration of Maria M. Lampasona, Exh. 4, Deposition of James Mercurio, 7/25/18, at 13:14-

24). The Main Lot offers greater accessibility because it is closest to the Stadium entrance on

accessible routes, and therefore more convenient, and the fee for accessible parking in that lot

is the same as the fee for parking in any other lot. Levi’s Stadium does not designate any other

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accessible parking spots for use during events at the Stadium.

This method of locating all accessible parking in the most user-convenient and

accessible lot is not only adequate under the plain language of the relevant guidelines, it

follows the guidance of previous Department of Justice (“DOJ”) Settlement Agreements with

similarly-situated facilities, such as the Tulsa County Fairgrounds and the University of

Michigan. See Settlement Agreement Between the United States of America and Expo Square

under the Americans with Disabilities Act, DJ No. 202-59N-48 (May 12, 2011); see also

Consent Decree between United States Department of Justice and the University of Michigan

RE: Michigan Paralyzed Veterans of America v. The University of Michigan, No. 07-11702

(E.D. Mich. Mar. 10, 2008). In each of these, the DOJ worked with large facilities to arrange

where the accessible parking would be best located over numerous parking facilities,

relocating spaces required in certain facilities to others because of increased accessibility or

convenience. While not law, these agreements bolster the plain language of the 2010 ADAAG

and show that the DOJ sanctions large facilities, such as Levi’s Stadium, relocating parking to

the most convenient and accessible location.

Additionally, Plaintiffs’ designated expert on the rights-of-way and parking lots, Jeff

Mastin, was examined at length on defendants’ parking plan. He agreed that “clustering is, I

think, a good idea and a good intention.” See Declaration of Maria M. Lampasona, Exh. 6,

Deposition of Jeff Mastin, at 94:23-25. He also testified that he does not expect to offer an

opinion at trial that defendants are obligated to provide accessible parking spaces in each of

the satellite lots. See Declaration of Maria M. Lampasona, Exh. 6, Deposition of Jeff Mastin,

at 93:16-21.

Accordingly, because Defendants do not designate accessible parking in the satellite

lots, and because Plaintiffs will not offer an opinion that Defendants are obligated to provide

accessible parking in satellite lots, the accessibility of the spaces in the satellite parking lots

themselves should not be an issue at trial. Accordingly, Defendants respectfully request that

the Court dismiss from the case any claims related to the alleged nonconformance of any

satellite parking lot under the ADA or Unruh Act.

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3. The Condition of the Rights of Way Is Irrelevant to

this Lawsuit Because Defendants Cluster ADA

Parking in the Closest Lot to the Stadium’s Entrance

As the satellite lots are not used by the Stadium for accessible parking, and the

accessible lot that is used is immediately adjacent to the Stadium and does not require travel

on any public rights-of-way to access, the accessibility of the rights-of-way from the satellite

parking lots to the Stadium also is irrelevant.

As part of Mr. Mastin’s examination, defense counsel made reference to one of the

satellite (or “remote”) parking lots – the Mission College lot (or Green Lots 4 and 5 in the

image above) – in order to clarify Mr. Mastin’s opinions regarding defendants’ obligations as

they relate to the satellite lots and the rights-of-way connecting the lots to the Stadium. The

Mission College lot is approximately 2 miles away from the Stadium entrance. See Request for

Judicial Notice ¶ 2.

Mr. Mastin agreed that he would not recommend that Levi’s Stadium make available

accessible parking in each of the satellite lots because “the spaces are too far away for most

people to use.” See Declaration of Maria M. Lampasona, Exh. 6, Deposition of Jeff Mastin, at

77:11-22. Instead, he agreed that the number of accessible spaces required for the Mission

College lot could be made available in a lot closer to the Stadium, and that would comply with

Standards, provided that the spaces offered otherwise complied with the Standards. See

Declaration of Maria M. Lampasona, Exh. 6, Deposition of Jeff Mastin at 77:15-78:2.

In addition, he agreed that, if Levi’s Stadium did not designate any accessible spaces in

the Mission College lot or run accessible shuttles to that lot, then the rights-of-way between

the Mission College lot and the Stadium would not need to be accessible:

Q: Let’s assume that the stadium does not designate any

accessible spaces in the Mission College lot and let’s

assume that there is no shuttle that goes to the Mission

College lot. Is it still your opinion that the pedestrian

rights-of-way between the Mission college lot and the

Stadium need to be accessible due to the lot servicing the

Stadium?

Plaintiffs’ Counsel: Objection: Vague, incomplete hypothetical.

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A: I don’t think they would have to be accessible, the ones

necessary to communicate between that parking lot and the

stadium.

Upon further examination, Mr. Mastin shared that he believed the rights-of-way may

need to be accessible because someone might get dropped off somewhere along the rights-ofway. Upon further examination, he conceded that he would be speculating as to where guests

may get dropped off for Stadium events and when asked if the City was obligated to make all

rights-of-way in the City of Santa Clara that could possible lead to the Stadium accessible, he

replied that it would not extend as far as the borders of the City, although he could not identify

exactly where it would end. See Declaration of Maria M. Lampasona, Exh. 6, Deposition of

Jeff Mastin at 90:4-93:15.

When asked if a designated drop-off spot would change this opinion, he replied that it

“could” if there were effective means to notify people of the location of accessible parking and

the drop off point (e.g. giant signs or the like). See Declaration of Maria M. Lampasona, Exh.

6, Deposition of Jeff Mastin at 81:10-86:7. In fact, the Stadium clusters its ADA parking in the

Main Lot, and offers a well-publicized ADA drop-off point close to the Stadium.

Further, third-party Jim Terry, an access expert from Evan Terry Associates, the access

consultant retained by the Stadium designer, was questioned about what effect the clustered

parking in the Main Lot would have on the accessibility requirements related to the satellite

lots. He testified as follows:

I’d have to look at the circumstances to see exactly what you’re

referring to, but if the obligation for the whole stadium is to have

X hundred spaces and you put those X hundred spaces dispersed

around – at least as good as what you would have had for the

routes other places, then while – when you’re providing those

accessible spaces in equal or greater – or more accessible

locations typically closer to the facility, then when that is

happening, then the other routes to get to the other remote lots

that are no longer being used for accessible parking, those other

routes, unless they’re required for some other reason, are not

required to comply with the standards for the operator who is

doing – who is meeting those obligations there.

See Declaration of Maria M. Lampasona, Exh. 5, Deposition of James Terry at 276:24-

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278:5 (emphasis added).

This is a case about the accessibility of Levi’s Stadium. It is not a case about the

accessibility of the rights-of-way in the City of Santa Clara in general, or the duty of a public

entity even when its sidewalks are not connected to any particular service, program, or

activity. This crux of this case is a particular service, program, or activity – events at Levi’s

Stadium. The classes the Court certified involve access to Levi’s Stadium, and if the satellite

parking lots are not required to provide access to Levi’s Stadium, then the rights-of-way

leading from those parking lots to the Stadium are not relevant to plaintiffs’ claims in this

case. The notion that someone may decide to get dropped off at some undisclosed location on

or near the rights-of-way – despite there being a designated drop-off spot near the Stadium –

does not result in the imposition of a duty on the City to make accessible every rights-of-way

that could conceivably lead to Levi’s Stadium in order to make the Stadium and its facilities

accessible. For this reason, the Court should dismiss plaintiffs’ claims as they relate to any

alleged barriers in the rights-of-way leading from satellite parking lots to the Stadium.

4. An Injunction Related to the Rights of Way is

Unnecessary Because the City of Santa Clara Already

is Evaluating and Correcting the Rights of Way in

Connection with its Transition Plan

Chapter 28, section 35.150 of the Code of Federal Regulations provides that a public

entity shall operate each service so that the service is “readily accessible to and usable by

individuals with disabilities.” It also provides that a public entity that has responsibility or

authority over streets, roads, or walkways, must identify obstacles to accessibility, describe in

detail the methods that will be used to make the facilities accessible, and specify the schedule

for those alterations. The development of a Transition Plan is a requirement of the Federal

regulations, and is a tool used to ensure a public entity’s compliance with access standards.

Here, the City has retained a design consultant to conduct a comprehensive

accessibility evaluation of its rights-of-way (including the rights-of-way identified by plaintiffs

in this lawsuit), and to prepare a Transition Plan report as the first step toward implementation

of the ADA Title II Transition Plan, the aim of which is to ensure that the rights-of-way are

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accessible to the public under ADA requirements. See Declaration of Craig Mobeck ¶¶ 2-3.

Thus, the City of Santa Clara is already in the process of developing its required Transition

Plan and making its rights-of-way accessible as required by relevant law. There is nothing

related to the rights-of-way for the Court to enjoin.

The Court certified an injunctive relief class only as to the City of Santa Clara. That

means plaintiffs’ remedy in this case as it relates to the rights-of-way (should they establish

liability) is a Court order directing defendants to modify the rights-of-way. However, the City

already is in the process of evaluating and correcting any non-compliant rights-of-way via its

Transition Plan. Thus, to the extent the Plaintiffs argue in opposition to this motion that the

City has the obligation to make all of its rights-of-way accessible (regardless of their nexus to

Levi’s Stadium), the City already has taken affirmative steps to identify and correct access

barriers in the rights-of-way. In addition, a City-wide Transition Plan, not an injunction related

to the specific streets surrounding Levi’s Stadium, is a more robust response to potential

accessibility issues and will be based on the City’s operating budgets and its realistic ability to

fund such improvements – not abstract directives that fail to take into account the

interrelatedness of the City’s accessible routes and facilities. As the City already has been and

is addressing the issues on which Plaintiffs seek an injunction, an injunction is unnecessary.

C. ISA Signage On Stadium Restrooms 3.43.02 And 3.44.02 Is

Not Required Under The ADA

Plaintiffs wrongly contend that the door at Stadium women’s room 3.43.02 and men’s

room 3.44.02 are missing “required” ISA signage. (See FAC, Ex. A, ECF 195-1 at 21,22).

Even assuming the current Code (2010 ADAS) were to apply, it does not require ISA signage

on all restrooms. Rather, ISA signage is only required in a situation in which not all of the

subject restrooms are accessible. In such a situation, the accessible restroom(s) would require

an ISA. (Declaration of Kim Blackseth [“Blackseth Dec.”] ¶ 11). At Levi’s Stadium, all

restrooms are have accessible facilities and are designed and constructed to be accessible to

persons with mobility (and other) disabilities. Therefore, ISA signage is not required on the

doors to the Stadium restrooms. (Id. at ¶ 11).

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D. The Outdoor Wheelchair Seating Adjacent To Stadium Suite

517 Is ADA-Compliant

Plaintiffs incorrectly claim that the wheelchair-accessible seating next to Suite 517 at

the Stadium is not Code-complaint. (See FAC, Exh.A, ECF 195-1 at 45, Item 1671). They fail

to note that the end seat of the upper row of this exterior can be removed if need to become a

wheelchair-accessible space. (Blackseth Dec., ¶ 12). The width of that wheelchair seating

space is 33 inches, which is fully compliant with the current Code. (Id.; see also CBC

1104B.3.6. Summary judgment as to this condition is therefore warranted.

E. The Countertops In The Main Team Store In The Stadium

Are ADA-Compliant

Plaintiffs erroneously contend that the countertops in the Stadium’s Main Team Store

are not high enough and should include ISA signage. (FAC, Exh. A, ECF 195-1 at 35). All

sales counters in this store are no higher than 34 inches above the floor, and are thus ADAcompliant. (Blackseth Dec. ¶ 13). No ISA signage (designating accessible sections of the

counters) is required since all of the counters are properly accessible. (Id.) In addition, the

point of sales machines are 48 inches above the floor to the highest operable part, and are thus

ADA-compliant. (Id. at ¶ 13). Therefore, these claims should be dismissed on summary

judgment.

F. The Wheelchair-Accessible Seating On The Selected Platform

Is ADA-Compliant

Plaintiffs incorrectly assert that the seating space designated for wheelchair seating on

this particular platform is not wide enough. (See FAC, Exh. A, ECF 195-1 at 12). The space

designated for wheelchair seating at this location, marked by painted lines on the ground, is 33

inches wide. (Blackseth Dec. ¶ 14). Both the current (2010 ADAS) and the 1991 ADAAG

have identical guidelines for wheelchair seating spaces: 66 inches for double wheelchair

spaces, and 33 inches for each individual wheelchair space. Therefore, the wheelchair

locations at this platform location are ADA-compliant. Summary judgment dismissing this

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claim is thus appropriate.

G. The Forty Niners Defendants’ Ticketing Policies And

Practices Comply With The ADA

Plaintiffs have conjectured that persons with mobility disabilities or persons on their

behalf should be able to exchange tickets for single-day events by contacting Forty Niners

personnel by telephone. (FAC, ECF 195 at ¶ 18). This “wouldn’t it be nice” contention is not

grounded in the requirements of the ADA or its companion regulations and accessibility

standards. It is undisputed that (1) the Forty Niners Defendants contract out to Ticketmaster to

handle the great majority of ticketing services for events held at Levi’s Stadium, (2)

Ticketmaster does allow ticket purchases and exchanges by telephone and email, (3) the Forty

Niners Defendants do provide for day-of-event purchases and exchanges at the Stadium Box

Office, and (4) perhaps most significantly for this issue, treat all single event ticket holders, be

they disabled or otherwise, exactly the same with respect to their ability to change the location

or type of their seating for Stadium events. That is, all such ticket holders, disabled and nondisabled alike, may exchange their tickets in person at the Stadium on event days, on a firstcome, first-served basis. No single event ticket holder, be he/she disabled or non-disabled, is

able to exchange his/her tickets via telephone or online. (Declaration of Cris C. Vaughan

[“Vaughan Dec.”] ¶ 7). Non-disabled persons are not permitted to purchase wheelchairaccessible seating by falsely representing they are a person with a disability. (Id. at ¶ 7).

Therefore, there is no discrimination based on disability whatsoever that can be

ascribed to this ticketing policy. The ADA prohibits discrimination based on disability, but

does not require the use of any particular technology with regard to ticket exchanges so long as

persons with disabilities are not treated any differently than persons without disabilities. (Id. at

¶ 7). Plaintiffs’ arguments find no support in the law. This claim regarding ticket exchange

protocols also should be dismissed on summary judgment.

IV. CONCLUSION

The Court certified classes related to accessibility of Levi’s Stadium. The satellite

parking lots and the rights-of-way leading from those parking lots to the Stadium are not part

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of the Stadium’s accessibility plan, and therefore claims related to those issues should be

dismissed. The rights-of-way throughout the City are not at issue in this case. Further, because

the City of Santa Clara already has taken, and continues to take, affirmative steps to address

barriers in all of its rights-of-way, plaintiffs’ request for an injunction related to particular

rights-of-way near Levi’s Stadium is unnecessary and is not grounds to revive Plaintiffs’

causes of action regarding alleged barriers in those locations.

The other specific conditions addressed above with respect to signage on two

restrooms, the wheelchair accessible seating adjacent to Suite 517 at the Stadium, the

countertop heights at the Main Team Store at Gate A in the Stadium, and the dimensions of the

wheelchair accessible seating in the outdoor platform, all comply with the ADA and applicable

regulations and guidelines. Plaintiffs have raised no genuine issue of material fact or viable

legal challenge with respect to any of these conditions. Last, Plaintiffs’ criticisms of the Forty

Niners’ ticketing practices do not describe or amount to any violation of the ADA or the

California Unruh Act. These practices unquestionably do not discriminate on the basis of

disability, and are not actionable under these laws.

For the reasons set forth above, the Court should enter summary judgment in favor of

Defendants on all six of the issues addressed in this Motion.

Dated: June 20, 2019 Respectfully submitted,

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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