Soares v. City of San Diego

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MANUEL M. SOARES,
Plaintiff,
v.
CITY OF SAN DIEGO,
Defendant.
Case No.: 23-cv-369-WQH-DEB
ORDER
HAYES, Judge:
The matter before the Court is the Motion for Reconsideration filed by Plaintiff
Manuel M. Soares. (ECF No. 55.)
I. 	BACKGROUND
On February 27, 2023, Plaintiff Manuel M. Soares (“Plaintiff”), proceeding pro se,
initiated this action by filing a Complaint against Defendant City of San Diego (the “City”
or “San Diego”). Plaintiff alleges that Defendant San Diego violated Title II of the
Americans with Disabilities Act (“ADA”) when it added bike lanes to Voltaire Street and
thereby decreased the width of the public street’s parking spaces. (Compl., ECF No. 1 at
1.)
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On May 22, 2023, Defendant San Diego filed a Motion to Dismiss. (ECF No. 10.)
On October 19, 2023, the Court denied the Motion to Dismiss. (ECF No. 17.) On
November 1, 2023, Defendant San Diego filed an Answer. (ECF No. 19.)
On April 3, 2024, Plaintiff filed a Motion for Summary Judgment. (ECF No. 32.)
On June 28, 2024, Defendant San Diego filed an Opposition. (ECF No. 41.) On July 19,
2024, Plaintiff filed a Reply. (ECF No. 44.)
On August 2, 2024, Defendant San Diego filed a Motion for Summary Judgment.
(ECF No. 46.) On September 10, 2024, Plaintiff filed an Opposition. (ECF No. 50.)
On March 28, 2025, the Court issued an Order granting Defendant San Diego’s
Motion for Summary Judgment (ECF No. 46) and denying the Plaintiff’s Motion for
Summary Judgment (ECF No. 32) (the “Order on Motions for Summary Judgment”). (ECF
No. 53.) On the same day, the Clerk of the Court entered judgment in favor of Defendant
San Diego and against Plaintiff. (ECF No. 54.)
On April 16, 2025, Plaintiff filed the pending Motion for Reconsideration. (ECF No.
55.) On May 9, 2025, the City filed an Opposition. (ECF No. 57.) On May 19, 2025,
Plaintiff filed a Reply. (ECF No. 58.)
II. 	CONTENTIONS
Plaintiff moves the Court for reconsideration of its Order on Motions for Summary
Judgment (ECF No. 53) pursuant to Federal Rule of Procedure 60(b). (ECF No. 55 at 1.)
Plaintiff contends that he failed to “explain in detail his disability parking issues” in
his earlier filings and that the Court denied his Motion for Summary Judgment because of
this “failure.” Id. at 2–3. Plaintiff now “attempt[s] to rectify the deficiencies” in his
Complaint. 	Id. at 3. Plaintiff describes in greater detail the challenges that he encounters
while entering and exiting his vehicle when parked on Voltaire Street:
After having suffered two strokes, the [P]laintiff has been afflicted with the
loss of muscle function, muscle weakness, and partial paralysis on the entire
right side of his body. . . .
Plaintiff owns a 2006 Toyota Truck with a factory installed foot-rail. The foot
rail is about 5 feet long, 3 inches wide, and sits approximately 1 ½ feet off the
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ground. The plaintiff uses this foot rail along with a factory installed handle
affixed on the upper left-hand side of his driver’s seat door to enter/exit his
truck.
When parked on a level surface he does not have to exert himself with as much
effort or concern. However, when parked on Voltaire Street he experiences
difficulties when exiting/entering his vehicle with an unlevel surface and a
higher risk of falling, specifically with a 3-inch foot fail in inclement weather.
When the plaintiff opens his driver’s door, he places his right hand on the
upper-left handle and his right foot on the foot-rail to enter the truck. Here is
where he experiences great difficulties having to exert additional effort using
both his right hand and foot to lift himself up while simultaneously lifting his
left foot and placing it on this foot-rail next to his right foot. This causes
excruciating pain to the entire right side of his body, including the right hand,
wrist, shoulder, lower back, and lower limbs, specifically his right ankle. . . .
Because he parks at an angle on the curb [when parking on Voltaire Street],
he can’t use the foot rail as intended.1 Parking this way causes extra physical
strain, leading to pain in his right arm and both legs.
Id. at 3–4. Plaintiff requests that the Court reconsider its Order on Motions for Summary
Judgment (ECF No. 53) because the deficiency of his earlier pleadings “should be regarded
as excusable neglect.” (ECF No. 55 at 3.) Plaintiff submits a statement of verification in
which he “swear[s] under penalty of perjury” that the statements in his Motion for
Reconsideration are true and correct. Id. at 8.
Plaintiff also purports to “raise newly discovered evidence demonstrating[] that the
City of San Diego has not been forthcoming with this [C]ourt.” Id. at 3. Plaintiff s requests
that the Court take judicial notice of twenty-five (25) photographs purportedly “taken at
various locations” on Voltaire Street. Id. at 5; see ECF Nos. 55-3, 55-4. Plaintiff contends
that these photographs indicate that the City committed a “fraud upon the [Court]” by
making misrepresentations during the discovery process about its plans for development
1 Plaintiff previously alleged that the narrowed parking spaces on Voltaire Street require him “and his
neighbors . . . to park partially up on the curb in order to be safe while entering/exciting their vehicles.”
(Compl. at 4.)
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on the street. Id. at 5–6. Plaintiff contends that this “new evidence” merits reconsideration
of the Order. Id. at 6.
In response, Defendant San Diego contends that Plaintiff “is attempting to relitigate
the issues” that the Court addressed at the summary judgment phase. (ECF No. 57 at 3.)
With respect to Plaintiff’s first argument, Defendant San Diego contends that Plaintiff
“adequately demonstrated his disabilities and difficulties” in his earlier filings and does not
now present “new or different facts or circumstances” that merit reconsideration. Id.
Defendant San Diego also contends that the Court “held on grounds unrelated to
[Plaintiff’s] specific disabilities that the City was entitled to judgment,” and that the
“information provided in his reconsideration motion . . . would not have changed the
Court’s outcome.” Id. at 5. With respect to Plaintiff’s second argument, Defendant San
Diego contends that Plaintiff “has not met the burden to show that [the photographs are]
actually newly discovered evidence” and that the evidence, if considered, “would not have
any [e]ffect on the substance of the Court’s order.” Id. at 7. Defendant San Diego also
contends that it would be inappropriate for the Court to take judicial notice of the
photographs because they are “not generally well known, and they are subject to reasonable
dispute because they lack foundation and are hearsay.” Id. at 8.
III. 	MOTION FOR RECONSIDERATION
a. Legal Standard
Federal Rule of Civil Procedure 60(b) provides:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
(4) the judgment is void;
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(5) the judgment has been satisfied, released or discharged; it is based on an
earlier 	judgment 	that 	has 	been 	reversed 	or 	vacated; 	or 	applying 	it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
In the Ninth Circuit, courts determine whether “neglect is excusable” based on an
“equitable analysis” that considers “at least four factors: (1) the danger of prejudice to the
opposing party; (2) the length of the delay and its potential impact on the proceedings; (3)
the reason for the delay; and (4) whether the movant acted in good faith.” Lemoge v. United
States, 587 F.3d 1188, 1194 (9th Cir. 2009) (quoting Bateman v. U.S. Postal Serv., 231
F.3d 1220, 1223 (9th Cir. 2000).)
The “excusable neglect” standard of Rule 60(b)(1) is “not intended to remedy the
effects of a litigation decision that a party later comes to regret through subsequently-
gained knowledge.” Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1101 (9th
Cir. 2006). “Neither ignorance nor carelessness on the part of the litigant or his attorney
provide grounds for relief under Rule 60(b)(1).” Engleson v. Burlington R. Co., 972 F.2d
1038, 1043 (9th Cir. 1992) (quotation omitted).
For parties represented by legal counsel, the Ninth Circuit has “clearly and
repeatedly” held that mistake of law by an attorney does not constitute an adequate a basis
for relief under Rule 60(b)(1). Castillo-Antonio v. Iqbal, No. 14-CV-03316-KAW, 2017
WL 3335682, at *4 (N.D. Cal. Aug. 4, 2017) (citing Latshaw, 452 F.3d at 1101)).
Despite courts’ obligation to construe pro se pleadings liberally, see Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010), courts have denied relief to pro se parties seeking relief
under Rule 60(b) who fail to comply with its standards. Schussler v. Webster, Case No.
07cv2016 IEG (AGB), 2009 WL 648925, at *5 n.7 (S.D. Cal. 2009) (denying a pro se
party’s motion under Rule 60(b)(1) claiming that reconsideration was appropriate because
of his “lack of the legal knowledge required to competently oppose the summary judgment
motion”); see also Adams v. Hedgpeth, No. LACV1103852VBFFFM, 2016 WL 4035607,
at *4 (C.D. Cal. June 8, 2016) (denying a pro se prisoner’s motion under Rule 60(b) as
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untimely because, in part, the “petitioner [raised] no colorable argument that he was
somehow unable to learn earlier the bases for his arguments”); Stockton v. Billings, No.
1:10CV00586JLTHC, 2010 WL 2402841, at *1 n.1 (E.D. Cal. June 10, 2010) (stating that
the Rule 60(b)(1) standard is “not satisfied simply because Petitioner lacks legal training.”);
In re Waksberg, No. CV 08-07393 MMM, 2009 WL 10680796, at *3 (C.D. Cal. Aug. 5,
2009) (“The fact that appellant was proceeding pro when [filing a pleading] . . . does not
justify Rule 60(b)(1) relief.”); Sudduth v. Griffis, No. CV 08-4563 PSG JWJX, 2009 WL
592626, at *1 (C.D. Cal. Mar. 5, 2009) (“Despite Plaintiff’s arguments otherwise, the
simple fact that he is proceeding pro se is not reason enough to grant relief under Rule
60(b)(1).”)
b. Discussion
The Court granted Defendant San Diego’s Motion for Summary Judgment (ECF No.
46) and denied Plaintiff’s Motion for Summary Judgment (ECF No. 32) because there was
no genuine dispute of material fact as to whether the City’s resurfacing of Voltaire Street
discriminated against Plaintiff because of his disabilities. (ECF No. 53 at 10.) Defendant
San Diego contended that “Plaintiff was not excluded from any on-street parking program
because everyone near him, along Voltaire Street, has the same amount of parking space
on the street.” (ECF No. 46-1 at 12.) Plaintiff indeed alleged that Defendant San Diego’s
resurfacing of Voltaire Street “affected the whole side of that street, the disabled parking,
the regular parking, everybody” (ECF No. 46-17 at 54:1–4; see id. at 92:14–22).
The Court wrote in its Order on Motions for Summary Judgment: “Plaintiff’s
testimony is devoid of any explanation as to how the difficulties that he experiences with
parking on Voltaire Street are by reason of his disability or otherwise any different from
the difficulties experienced by others without disabilities.” (ECF No. 53 at 11.) Based on
the evidence offered at that stage, the Court held that “no reasonable jury could find from
Plaintiff’s testimony that the width of the on-street public parking on Voltaire Street
burdens Plaintiff in a manner different from or greater than it burdens non-disabled
residents.” Id. at 12.
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The Court also found that Plaintiff failed to produce evidence in support of his claim
that the “Blue Zone” parking space, which Defendant San Diego installed in front of
Plaintiff’s home prior to the initiation of his lawsuit, has been rendered “inoperative and
inaccessible” by the addition of bike lanes on Voltaire Street. Id. at 3, 14. The Court
accordingly granted judgment in favor of Defendant San Diego.
Plaintiff now purports to offer new testimony that, unlike his prior statements,
indicates that he suffers particular and serious harm related to his disability. The sworn
statements submitted with the Motion for Reconsideration (ECF No. 55) purportedly
indicate that the bike lanes on Voltaire Street may impose a more serious burden on
Plaintiff because entering and exiting his truck while parked partially on the sidewalk is
especially strenuous for him due to his alleged physical disabilities. Plaintiff states that he
“mistakenly assumed” that evidence “demonstrating that he and his neighbors were being
forced to park at an angle on the sidewalk” would be sufficient to support his claims at the
summary judgment stage. (ECF No. 55 at 3.) After the Court’s discussion of his legal
burden under the ADA in its Order on Motions for Summary Judgment, Plaintiff now
attempts to plead with greater specificity the challenges imposed on him by reason of his
disability.
Plaintiff’s Motion for Reconsideration does not meet the “excusable neglect”
standard of Rule 60(b)(1). A party’s ignorance of the law is not adequate ground to grant
relief under Rule 60(b)(1). Engleson, 972 F.2d at 1043 (9th Cir. 1992); Schussler, 2009
WL 648925, at *5 n.7 (applying this principle to a pro se litigant). The record indicates that
Plaintiff was aware of the relevant contentions raised by Defendant San Diego and
provided adequate opportunity to respond prior to the Court’s Order on Motions for
Summary Judgment. (ECF No. 53.) Defendant San Diego, in its Motion for Summary
Judgment, contended that Plaintiff failed to establish that he was “singled out for his
disabilities by the City’s resurfacing of [Voltaire Street]” and, separately, that the Blue
Zone program is an existing, reasonable modification program for disabled residents who
require accessible on-street parking. (ECF No. 46 at 12, 20.) In his Opposition to Defendant
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San Diego’s Motion for Summary Judgment, Plaintiff appeared to acknowledge those
contentions and raised his own in response. (See ECF No. 48-3 at 3–4 (contending that
Defendant San Diego “offers no evidence . . . that they haven’t discriminated against him
by creating and subjecting him to this dangerous and unnecessary street alteration” and
contending that the Blue Zone program is not a “reasonable modification parking
program”).) There is no basis to hold that Plaintiff’s failure to timely raise the evidence
and contentions in his pending Motion for Reconsideration resulted from excusable neglect
within the meaning of Rule 60(b)(1).
The Motion for Reconsideration also does not establish that relief would be proper
under any other provision of Rule 60(b). Plaintiff’s contentions related to “duplicitous
pleadings” by the City and the submission of twenty-five photographs taken on Voltaire
Street are insufficient to warrant reconsideration under Rule 60(b)(2) and (b)(3). Rule
60(b)(2) requires that: “(1) the moving party [] show the evidence relied on in fact
constitutes ‘newly discovered evidence’ within the meaning of Rule 60(b); (2) the moving
party exercised due diligence to discover this evidence; and (3) the newly discovered
evidence must be of ‘such magnitude that production of it earlier would have been likely
to change the disposition of the case.’” Feature Realty, Inc. v. City of Spokane, 331 F.3d
1082, 1093 (9th Cir. 2003) (quotation omitted). Here, Plaintiff’s purported discovery that
bike lanes were added to “both sides of the hill where he lives” is not of such magnitude
that it might have changed the disposition of the Court’s Order on Motions for Summary
Judgment. (ECF No. 55 at 6.) Rule 60(b)(3) requires that the moving party “prove by clear
and 	convincing 	evidence” 	that 	the 	earlier 	judgment 	was 	obtained 	through 	fraud,
misrepresentation, or misconduct and that the “conduct complained of preventing the
losing party from fully and fairly presenting the defense.” De Saracho v. Custom Food
Machinery, Inc., 206 F.3d 874, 880 (9th Cir. 2000). Plaintiff contends that the development
of bike lanes on “both sides” of streets in his neighborhood is inconsistent with plans
submitted by the City during this action. (ECF No. 55 at 5–6.) Plaintiff’s basis for
contending fraud by the City is unclear and is unsupported by photographs of his
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neighborhood. (ECF No. 55-3, 55-4.) The Motion for Reconsideration fails to show the
Court’s earlier judgment was obtained through any misrepresentation.
The Motion for Reconsideration (ECF No. 55) is denied. Moreover, for the reasons
discussed below, even if the Court reconsidered its Order on Motions for Summary
Judgment in light of Plaintiff’s new evidence, its holding would remain the same.
IV. 	SUMMARY JUDGMENT
a. Legal Standard for ADA Claim
Title II of the ADA applies to “any State or local government.” 42 U.S.C.
§ 12131(1)(A). The statute provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” Id. § 12132. In order to prove a violation of Title II of the ADA, a plaintiff
must show: (1) he is an individual with a disability; (2) he is otherwise qualified to
participate in or receive the benefit of some public entity’s services, programs, or activities;
(3) he was either excluded from participation in or denied the benefits of the public entity’s
services, programs, or activities, or was otherwise discriminated against by the public
entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of his
disability. McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (quotations
omitted) (quoting Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam)).
“An individual is excluded from participation in or denied the benefits of a public program
if ‘a public entity’s facilities 	are inaccessible to or unusable by individuals 	with
disabilities.’” Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982, 987 (9th Cir. 2014)
(quoting 28 C.F.R. § 35.149). The Ninth Circuit has held that Title II requires public
entities to “maintain accessible on-street public parking.” Fortyune v. City of Lomita, 766
F.3d 1098, 1102 (9th Cir. 2014).
/ / /
/ / /
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b. Plaintiff’s New Testimony
Plaintiff, in his new testimony, states that his “history of medical conditions affecting
physical limitations” causes him “difficulties” when entering and exiting his vehicle while
parked on the curb of Voltaire Street. (ECF No. 55 at 3–4.) Plaintiff, in his Motion for
Reconsideration, now describes with specificity his physical challenges entering and
exiting his vehicle while parked on the curb and the “excruciating pain” he suffers as a
result. (ECF No. 55 at 4.) This new evidence would not provide good cause for the Court
to issue a different holding than it reached in its Order on Motions for Summary Judgment.
The Ninth Circuit has held that “facially neutral policies may violate the ADA when
such policies unduly burden disabled persons, even when such policies are consistently
enforced.” McGary, 386 F.3d at 1265. In other words, a plaintiff may successfully
demonstrate that a neutral policy—here, a resurfacing program affecting all San Diego
residents living on or using a public roadway—discriminates against them “by reason of”
their disability because the policy imposes an unusually large burden on them. Id. In
McGary, the plaintiff suffered from AIDS-related illnesses and was unable to comply with
a municipal rule requiring the removal of debris from outdoor areas of one’s property. Id.
at 1260. The plaintiff sought an extension of time to clean his yard and thereby comply
with the municipal rule, but the city denied his request and imposed a fee for the removal
of debris from his yard. Id. at 1261. The plaintiff then filed a complaint asserting an ADA
claim based on the city’s denial of his request for additional time. Id. The Ninth Circuit
overturned the district court’s dismissal of his complaint because, although the nuisance
abatement policy was facially neutral and universally enforced, the policy burdened the
plaintiff “in a manner different from and greater than it burdened non-disabled residents,
solely as a result of his disabling condition.” Id. at 1265; see also Crowder v. Kitagawa,
81 F.3d 1480, 1484 (9th Cir. 1996) (holding that a mandatory quarantine period for dogs
entering Hawaii discriminated against blind plaintiffs because “its enforcement burden[ed]
visually-impaired persons in a manner different and greater than it burdens others”).
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District courts in the Ninth Circuit have applied the reasoning from McGary to deny
motions to dismiss for cases in which plaintiffs assert ADA claims related to facially
neutral policies that impose additional burdens on disabled persons. See, e.g., Smith v. City
of Oakland, 612 F. Supp. 3d 951, 956, 965 (N.D. Cal. 2020) (alleging that a municipal
program limiting price increases for rental properties discriminated against wheelchair
users because most of the city’s “accessible rental units” were recent developments
excluded by the program’s cutoff date); Cooley v. City of Los Angeles, No. 2:18-CV-
09053-CAS-PLA, 2019 WL 3766554, at *2, *5 (C.D. Cal. Aug. 5, 2019) (alleging that the
systematic disposal of property on the sidewalk discriminated against an unhoused
individual with a hernia who could not carry her property to another location in a single
bag). Prior to the filing of this action, Judge John A. Houston of the Southern District of
California denied a motion to dismiss filed by Defendant San Diego in a case with nearly
identical facts that likewise sought relief under Title II of the ADA based on the City’s
resurfacing of Voltaire Street. See Keith v. City of San Diego, No. 21-cv-1782-JAH-JLB,
2022 WL 4241271, at *3 (S.D. Cal. Sept. 12, 2022). Plaintiff Soares lived with the plaintiff
in the case and described that case in his Complaint.
A plaintiff’s allegation that a facially neutral policy imposes a greater burden on
disabled persons, however, is not alone sufficient to state a claim under Title II of the ADA.
In Navarro v. City of Mountain View, for example, the District Court for the Northern
District of California granted a motion to dismiss an ADA claim on the basis that the
plaintiffs had not adequately alleged discrimination “because of their disabilities.” No. 21-
cv-05381-NC, 2021 WL 5205598, at *7 (N.D. Cal. Nov. 9, 2021). In that case, the
plaintiffs’ ADA claim arose from the passage of city ordinances that prohibited oversized
vehicles—often used as temporary housing for those unable to afford a permanent home—
from parking on public streets. Id. at *1–*2. The district court wrote that enforcement of
the ordinances could necessitate an “impossible” choice between the risk of losing one’s
shelter upon the ticketing and/or towing of their oversized vehicle or “be[ing] forced out
of the City altogether.” Id. at *2. The court wrote that this “burden disproportionally
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impacts people with disabilities. Those individuals face disproportionate harm if they are
forced to move into public shelters or if they are too far from their medical providers and
social support networks.” Id. However, the court granted the motion to dismiss with respect
to the plaintiffs’ ADA claim because this “disproportionate burden is not enough to sustain
a Title II claim.” Id. at *7 (“In fact, it seems inconsistent to argue that the Ban harms all
[oversized vehicle] residents while simultaneously arguing that the Ban targets [oversized
vehicle] residents with disabilities because of their disabilities.”).
The Court notes, as it did in its earlier Order on Motions for Summary Judgment,
that the Navarro court’s reasoning applies to the instant case. (ECF No. 53 at 11.) Plaintiff
alleges that the addition of bike lanes and narrowing of parking spaces on Voltaire Street
endangers all residents. (Compl. at 4–5 (alleging an “elevated increase of car collisions”
and a lack of “safety measures to ensure the safety and welfare of others”.) The physical
burden imposed on Plaintiff—even if it may be heightened by virtue of his disability—is
not necessarily sufficient to plead a claim under Title II of the ADA. “The ADA is not a
public-safety statute.” Armbrester v. Alameda Cnty., No. 17-CV-05231-LB, 2018 WL
4181898, at *3 (N.D. Cal. Aug. 30, 2018). “The purpose of the ADA’s reasonable
accommodation requirement is to guard against the facade of equal treatment when
particular accommodations are necessary to level the playing field.” McGary, 386 F.3d at
1267 (quotation omitted). The McGary court held that neutral policies “may” violate the
ADA “when such policies unduly burden disabled persons,” but not that any difference in
the challenges faced by disabled and non-disabled persons is sufficient for a reasonable
fact-finder that the federal law has been violated by an otherwise “consistently enforced”
policy. Id. at 1265.
The Court, in its earlier Order, discussed a case that Plaintiff had not cited in his
briefing: Cohen v. City of Culver City, 754 F.3d 690, 693–94 (9th Cir. 2014). In Cohen, a
disabled plaintiff brought a claim under Title II of the ADA after falling and suffering
injuries while navigating around a vendor’s display that blocked the disabled-access curb
on a public street. Id. at 693–94. The plaintiff asserted his claim against the defendant
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municipality for permitting the vendor to block the curb and for failing to post signage
directing disabled pedestrians to alternative access routes. Id. at 693. The district court held
that the defendant was entitled to summary judgment, but the Ninth Circuit determined that
the court district erred—in part—because a “genuine dispute of material fact exist[ed] as
to whether the City denied Cohen access to the sidewalk on the basis of his disability by
permitting a private vendor’s display to completely block the existing curb ramp.” Id. at
697, 699 (emphasis added). The Ninth Circuit wrote that a jury might reasonably conclude
that the defendant municipality had “violated a regulation requiring it to maintain disabled
access features in good working order.” Id. (citing 28 C.F.R. § 35.133(a)). As relevant here,
the appellate court continued:
Our discussion of this particular theory of liability is not meant to imply that
it is the only way the City may have denied Cohen access to the sidewalk by
reason of disability. More generally, Title II imposes upon public entities a
“duty to accommodate” disabled persons. Even facially neutral government
actions that apply equally to disabled and nondisabled persons may violate
Title II if the public entity has failed to make reasonable accommodations to
avoid unduly burdening disabled persons.
For this reason, poorly maintained public sidewalks may be a form of
discrimination proscribed by Title II. Obstructed sidewalks exclude disabled
persons from ordinary communal life and force them to risk serious injury to
undertake daily activities. This is precisely the sort of “subtle” discrimination
stemming from “thoughtlessness and indifference” that the ADA aims to
abolish. Here, a jury could conclude that the City discriminated against Cohen
by reason of his disability by failing to take simple, low-cost, reasonable
measures to accommodate persons who rely on curb ramps to navigate public
sidewalks. . . . By failing to adopt them, the City may have engaged in the
“simple 	exclusion” 	of 	disabled 	persons 	through 	“thoughtlessness” 	and
“inaction” that constitutes discrimination under the ADA.
Id. at 700–01 (citations omitted).
In the Court’s earlier Order, it distinguished the instant action from Cohen because
“the causal link between the purported ADA violation and the plaintiff’s disability was
clear in Cohen.” (ECF No. 53 at 18.) The Court wrote that Plaintiff “has not adduced any
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evidence that, because of his disability, he is burdened by the City’s alterations to Voltaire
Street in a manner different from non-disabled residents who park on the street.” Id.
The issue is whether Plaintiff’s specific difficulties in navigating the parking spaces
that “expos[e] plaintiff and other[s] to a substantial risk of life” are sufficient to meet the
standard described in McGary. (Compl. at 3.) Defendant San Diego contends, in its
Opposition to the Motion for Reconsideration, that:
[t]hese additional facts, even if considered by the Court, fail to shift the
analysis. Plaintiff would still not be able to show that the street changes
discriminate against him because they still affect everyone who parks on that
stretch of Voltaire Street equally. Further, Plaintiff’s allegation that he must
park up on the curb, which he argues exacerbates his ability to exit his vehicle
because of his disabilities, has nothing to do with his disabilities . . . . Plaintiff
chooses to park up on the sidewalk curb of his own accord and he pointed to
no evidence showing that because of his disability he needs to park that way.
(ECF No. 57 at 5–6.)
Plaintiff, in response, contends that “he faces a higher risk of falling” while parking
on Voltaire Street compared to other residents who “are not faced with the task of using a
handle and a foot-rail to access their vehicle.” (ECF No. 58 at 2.)
Plaintiff’s new testimony is insufficient to establish that a reasonable factfinder
could determine that Plaintiff suffered discrimination by reason of his disability. In
McGary, the plaintiff was hospitalized “because of his illness” and was accordingly unable
to remove the debris from his front yard in compliance with the municipal ordinance.
McGary, 386 F.3d at 1260, 1264. His neighbors without disabilities could comply with the
ordinance by virtue of their health. The plaintiff claimed that the city’s refusal to
accommodate his request imposed a “greater” burden on him “solely as a result of his
disabling condition.” Id. at 1265. In Cohen, the disabled plaintiff encountered the vendor
on the sidewalk and “reasonably believed he had no other choice but to negotiate the curb
ramp.” 754 F.3d at 693. The “vendor’s display [that] completely block[ed] the curb ramp”
providing disabled access to the sidewalk forced the plaintiff—and others with similar
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disabilities—to “risk serious injury” while undertaking the “daily activit[y]” of walking
down a public sidewalk. Id. at 693, 700.
In these cases, the facially neutral policy imposed a specific and undue burden on
disabled persons that was not merely a magnification of a challenge shared by all who
encountered the policy. In other words, a policy that appeared neutral imposed significant
costs on disabled persons but did not impose the same manner of costs on non-disabled
persons. The disabled plaintiffs in each case suffered from those policies by virtue of their
disability in a style that was not shared with their non-disabled neighbors. The plaintiff in
McGary stated that the city’s policy burdened him “different from and greater than” his
non-disabled neighbors. McGary, 386 F.3d at 1265.
Here, Plaintiff alleges that the narrow parking spaces on Voltaire Street pose a safety
risk to him and his neighbors alike. (Compl. at 4 (alleging that “plaintiff and his neighbors
are forced to park partially up on the curb in order to be safe while entering/exiting their
vehicles”). Plaintiff identifies a burden shared by both disabled and non-disabled persons.
Plaintiff’s new evidence in his Motion for Reconsideration does not establish a different
and undue burden that Plaintiff faces because of the City’s otherwise neutral resurfacing
policy.
Plaintiff’s new evidence also fails to address the Court’s further finding at the
summary judgment stage that Plaintiff failed to create a genuine of issue of material fact
as to Defendant San Diego’s showing that it provided a “Blue Zone” parking space in front
of Plaintiff’s home. (ECF No. 53 at 14–15). In Cohen, the Ninth Circuit explained that
“simple, low-cost, reasonable measures” to accommodate disabled persons, including the
posting of temporary signage near the sidewalk at issue in that case, may qualify as a
reasonable accommodation for persons facing discrimination from a public entity’s
policies. Cohen, 754 F.3d at 700–701; see also Wong v. Regents of Univ. of California, 192
F.3d 807, 818 (9th Cir. 1999), as amended (Nov. 19, 1999) (stating that the reasonableness
of an accommodation “depends on the individual circumstances of each case” but that a
public entity is not required to “make fundamental or substantial modifications to its
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program or standards”). In support of its Motion for Summary Judgment, Defendant San
Diego provided evidence indicating that it installed a Blue Zone in front of Plaintiff’s
home. (ECF No. 46-15 (record of installation); ECF No. 46-19 (describing the street
parking width in the Blue Zone as 6’ 11”). The Motion for Reconsideration does not
provide a basis to hold that the Plaintiff has created a genuine dispute of material fact as to
the reasonableness of the Blue Zone program for accessible on-street parking.
Even if Plaintiff had satisfied the Rule 60(b) standard for reconsideration, the Court
would again conclude that Plaintiff has failed to create a genuine dispute of material fact
as to an essential element of his claim under Title II of the ADA. (ECF No. 53 at 21.)
Defendant San Diego remains entitled to summary judgment in this action.
V. 	CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration (ECF No.
55) is denied.
Dated: March 26, 2026
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