Charles Blackwell v. City and County of San Francisco; 1268 Grant Avenue LLC; Christopher P. Foley

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
Judge Christen was drawn to replace Judge Betty Binns Fletcher.**
Judge Christen has read the briefs, reviewed the record, and listened to the oral
arguments that were held on October 18, 2012.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES BLACKWELL,
Plaintiff - Appellant,
v.
CITY AND COUNTY OF SAN
FRANCISCO; 1268 GRANT AVENUE
LLC; CHRISTOPHER P. FOLEY,
Defendants - Appellees.
No. 10-16907
D.C. No. 4:07-CV-04629-SBA
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted October 18, 2012
San Francisco, California
Before: D.W. NELSON, MURGUIA, and CHRISTEN**, Circuit Judges.
FILED
JAN 28 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Plaintiff-Appellant Charles Blackwell appeals the district court’s grant of
summary judgment to Defendants-Appellees City and County of San Francisco
(“San Francisco”), 1268 Grant Avenue LLC (“1268 Grant”), and Christopher
Foley in an action arising under Title II of the Americans with Disabilities Act
(“ADA”) and various California state statutes. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
Blackwell, who is legally blind, slipped and fell on the flat metal cover of a
nonoperational subterranean service elevator owned by 1268 Grant and Foley
while walking on a public sidewalk in San Francisco. He then brought this suit,
alleging that the metal cover impeded his access to the public sidewalk system and
to the restaurant at 1268 Grant Avenue.
I
Public sidewalks are a “service, program, or activity” as those terms are used
in Title II of the ADA. Barden v. City of Sacramento, 292 F.3d 1073, 1075–77 (9th
Cir. 2002) (citing 42 U.S.C. § 12132). Sidewalks built before January 26,
1992—like those at issue in this appeal—are “existing facilities.” See 28 C.F.R.
§ 35.150. Public entities are not “require[d] . . . to make each of its existing
facilities accessible to and usable by individuals with disabilities[.]” Id.
§ 35.150(a)(1). Rather, public entities must operate existing facilities “so that the

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service, program, or activity, when viewed in its entirety, is readily accessible to
and usable by individuals with disabilities.” Id. § 35.150(a).
Blackwell admitted in a deposition that he knew he was about to step on a
metal door cover before he slipped and that he is generally able to use his cane to
distinguish between metal doors coated with friction surfaces and those without
such coating. Blackwell also stated in a deposition that he had been able to use the
section of sidewalk outside 1268 Grant Avenue without incident more than once
prior to his accident. Blackwell’s own statements established that the metal door
cover was not a hidden danger that rendered the stretch of sidewalk inaccessible to
visually disabled people such as him. The district court correctly granted summary
judgment to San Francisco on Blackwell's ADA claim.
II
A
Blackwell’s state-law claims arise under California Civil Code § 54 and
California Government Code § 4450. The district court correctly concluded that
Blackwell lacks standing to assert a claim for damages under these statutes against
the private defendants, 1268 Grant and Foley. California Civil Code § 54.3(a)
creates a private cause of action against any person who “denies or interferes with
admittance to or enjoyment of . . . public facilities” by individuals with disabilities.

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But a plaintiff asserting the cause of action must have “actually presented himself
or herself to a business or public place with the intent of purchasing its products or
utilizing its services” and must have been “actually denied equal access on a
particular occasion.” Reycraft v. Lee, 99 Cal. Rptr. 3d 746, 756 (Cal. Ct. App.
2009). Blackwell concedes that on the day of his accident he was not attempting to
patronize the restaurant at 1268 Grant Avenue.
B
The district court correctly granted summary judgment to the Defendants-
Appellees on Blackwell’s remaining state-law claims.
The metal elevator cover, which was installed sometime before the late
1970s, predates the adoption in 1981 of new regulations concerning requirements
for handicapped accessibility, which were codified in title 24 of the California
Code of Regulations. See Donald v. Sacramento Valley Bank, 260 Cal. Rptr. 49, 54
n.6 (Cal. Ct. App. 1989); see also Cal. Code. Regs. tit. 24, pt. 2, ch. 11B. For that
reason, it is not required to comply with the accessibility standards in that title. See
Californians for Disability Rights v. Mervyn’s LLC, 81 Cal. Rptr. 3d 144, 154 (Cal.
Ct. App. 2008) (“[T]itle 24 does not require facilities that predate its enactment to
comply with its regulations unless and until the facility is altered.”).

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Blackwell argues instead that the elevator cover is governed by the
American Standards Association’s A117.1-1961 standards for disability access
(“ASA standards”), which were in effect between 1968 and 1982. See Donald v.
Sacramento Valley Bank, 260 Cal. Rptr. 49, 54 n.6 (Cal. Ct. App. 1989).
Blackwell’s evidence is inadequate to establish a genuine dispute of material fact
as to whether the condition of the cover and the surrounding sidewalk violate the
ASA standards, for two reasons. First, Blackwell did not establish that the cover
was installed during the period in which the ASA standards were in effect. The
only record evidence regarding the cover’s installation date was a declaration by
1268 Grant’s previous owner that the cover was already present when he bought
the property in the late 1970s and that it did not appear to have been recently
installed.
Second, even if the cover was subject to the ASA standards, Blackwell did
not produce evidence establishing that the cover infringed any particular standard.
The report prepared by Blackwell’s expert, Barry Atwood, includes conclusory
statements that both the sidewalk and the metal cover violate the ASA standards,
but the report does not identify any particular standard that was infracted.
Blackwell argues that the cover and sidewalk violate ASA standard 4.2.2, which
states that public walks “shall be of a continuing common surface, not interrupted

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by steps or abrupt changes in level.” But pictures of the metal cover in the record
confirm that there is no “abrupt” change in level between the sidewalk and the
cover; both are at roughly the same level. Cf. Donald, 260 Cal. Rptr. at 56
(applying the standard where a walkway leading up to an ATM was “interrupted
by steps”). Blackwell further argues that the cover violates ASA standard 4.2.3,
which states that “[w]herever walks cross other walks, driveways, or parking lots
they should blend to a common level.” The metal covers at issue, however, do not
“cross other walks, driveways, or parking lots.”
C
The district court also correctly granted summary judgment to San Francisco
on Blackwell’s claim under California Government Code § 11135. California’s
administrative regulations require public facilities to be “readily accessible to
disabled persons.” Cal. Code. Regs. tit. 22, § 98254(a) (West 2012). Blackwell did
not present evidence that the segment of sidewalk at issue was rendered
inaccessible to him by the metal door cover. See supra p. 3.
AFFIRMED.

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