FRIENDS OF TEMESCAL POOL v. SANTA MONICA MOUNTAINS CONSERVANCY (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

This action arises from the closure of the Temescal Canyon pool (the pool).   Plaintiffs and appellants ¹ filed a complaint against defendants and respondents ² seeking to reopen the pool to the public.   The trial court sustained defendants' demurrers to the complaint without leave to amend, and plaintiffs appeal from that ruling.   We hold that the trial court correctly determined that the complaint did not allege facts sufficient to state a cause of action and that the trial court did not abuse its discretion in denying plaintiffs leave to amend.

FACTUAL BACKGROUND3

In 1943, the Presbyterian Synod of Southern California and Hawaii (the Synod) purchased a 140 acre parcel (the parcel) in the Santa Monica mountains, currently known as Temescal Gateway Park, and operated it as a camp, retreat, and recreation center.   In 1957, the Synod built the pool, and, in 1965, the Synod entered into a lease with the YMCA (the lease) under which the YMCA operated the pool for the benefit of the community.   The YMCA operated the pool, which was open to any member of the public, continuously for 43 years.

In 1994, the Synod sold the parcel to the Conservancy for $3 million.   The Conservancy purchased the parcel using part of a $40 million grant allotted to the Conservancy under the 1992 Los Angeles County Proposition A, the Safe Neighborhood Parks, Gang Prevention, Tree Planting, Senior and Youth Recreation, Beaches and Wildlife Protection Proposition (Proposition A), passed by the electorate.   The sales contract for the parcel required the Conservancy to assume the Synod's obligations under the lease with the YMCA, and, as a condition of the sale, the Conservancy agreed to extend the lease on the same terms for the existing useful life of the pool.   The Conservancy also agreed that on the expiration of the useful life of the pool, the Conservancy would enter negotiations for the replacement of the pool under terms that would allow for the continued use and operation of the pool as a facility open to the public.

The pool operated continuously to the benefit of the public until February 2008, when it was closed and drained for needed repairs.   The repairs were estimated to cost between $250,000 and $400,000, far less than the estimated $3 million it would cost to replace the pool.   Following the closure of the pool and the expiration of the lease, the YMCA and the Conservancy attempted to negotiate a new lease, but were unable to reach agreement because the Conservancy was offering a short-term lease that made it impractical for the YMCA to expend the funds necessary to repair and extend the useful life of the pool.   The Conservancy then issued a notice of potential bid proposal offering a five-year lease on the pool, with the lessee to undertake the cost of making the necessary repairs, on terms far less favorable than those in the lease.   The Conservancy's board, however, voted against authorizing the bid proposal and, instead, voted to authorize an application for a waiver from the California Coastal Commission to allow the Conservancy to fill in the pool with gravel and dirt.   The Conservancy then began to take measures to fill in or destroy the pool, including deploying demolition equipment to the pool and beginning demolition of a portion of the pool.

PROCEDURAL BACKGROUND

Plaintiffs filed a complaint against defendants that alleged the following six causes of action:  a first cause of action against the Conservancy to enjoin acts in violation of conditions of acquisition;  a second cause of action to enjoin acts in violation of express condition of receipt of public funds;  a third cause of action for acts in violation of express conditions of receipt of public funds;  a fourth cause of action for mandamus;  a fifth cause of action for violation of California Disabled Persons Act (Civ.Code, §§ 54, 54.1, 54.3);  and a sixth cause of action for violation of the Americans with Disabilities Act (42 U.S.C. §§ 12132, 12133).

Defendants filed demurrers to each cause of action asserted in the complaint and the trial court sustained those demurrers without leave to amend.⁴  The trial court entered a judgment of dismissal based on the order sustaining the demurrers, and plaintiffs timely appealed from that judgment.

DISCUSSION

A. Standard of Review

The trial court's ruling on the demurrer is reviewed under a de novo standard.  “On review from an order sustaining a demurrer, ‘we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose.  [Citations.]’  (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415 [106 Cal.Rptr.2d 271, 21 P.3d 1189].)   We may also consider matters that have been judicially noticed.  (Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96 Cal.Rptr. 601, 487 P.2d 1241];  City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869–870 [13 Cal.Rptr.3d 420].)”  (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.)  “On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled.   We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.   (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [119 Cal.Rptr.2d 709, 45 P.3d 1171].)   Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law.  (Ibid.;  Aubry v. Tri–City Hospital Dist. (1992) 2 Cal.4th 962, 966–967 [9 Cal.Rptr.2d 92, 831 P.2d 317] (Aubry ).)   When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.  (Zelig, supra, 27 Cal.4th at p. 1126.)   And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment:  if it can be, the trial court has abused its discretion and we reverse.  (Ibid.)” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)

B. Second Cause of Action

The trial court sustained the demurrers to the second cause of action on the ground that “plaintiffs' argument that [SMMC] has an obligation to maintain the pool in perpetuity is not supported by the language of Section 16(a)(1) of Proposition A.” Plaintiffs contend that the trial court misinterpreted the requirements of section 16, subdivision (a)(1) by limiting the broad language of that section based on other more specific sections of Proposition A.

Plaintiffs based the second cause of action on an alleged violation of section 16, subdivision (a)(1) of Proposition A. That section provides in pertinent part:  “(a) No funds authorized under Section 8 may be disbursed to any recipient unless the recipient agrees:  [¶] (1) To maintain and operate in perpetuity the property acquired, developed, improved, rehabilitated or restored with the funds.”   According to plaintiffs, because the Conservancy acquired the parcel with Proposition A funds, and the pool was part of the property acquired, the Conservancy was required under section 16, subdivision (a)(1) to maintain and operate the pool in perpetuity.

Plaintiffs' contention requires us to interpret the language of Proposition A. “When we interpret an initiative, we apply the same principles governing statutory construction.   We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole.   If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language.   If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters' intent and understanding of a ballot measure.  (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037 [56 Cal.Rptr.3d 814, 155 P.3d 226].”  (People v. Superior Court (Pearson ) (2010) 48 Cal.4th 564, 571.)  “Where possible, all parts of a statute should be read together and construed to achieve harmony between seemingly conflicting provisions rather than holding that there is an irreconcilable inconsistency.  (Code Civ. Proc., § 1858;  Estate of Stevens, 27 Cal.2d 108 [162 P.2d 918];  County of Los Angeles v. Craig, 52 Cal.App.2d 450 [126 P.2d 448];  23 Cal.Jur. 792–793.)”  (Wemyss v. Superior Court (1952) 38 Cal.2d 616, 621;  see Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [“[S]tatutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible”].)

Plaintiffs' interpretation of section 16, subdivision (a)(1) is based upon a reading of that section in isolation and ignores that section's cross-reference to section 8, which contains the specific provisions under which the purchase of the parcel was funded.   The project agreement relating to a grant under section 8, subdivision (a)(3)(A) of Proposition A ⁵ provides that the Conservancy was granted $1 million for the “[a]cquisition of the northern portion of 141 acres of property, adjacent to Temescal Gateway Park and Topanga State Park to protect existing trails and improve access to the Backbone Trail.”   The project agreement for a second grant under section 8, subdivision (c)(4) ⁶ of Proposition A provides that the Conservancy was granted an additional $3,000,000 for “the purpose of acquiring and developing a portion of the 141 acres of property adjacent to Temescal Gateway Park and Topanga State Park, which will be used as an at-risk youth camping facility.”

When section 16, subdivision (a)(1) is read together and harmonized with the project agreements for the grants and section 8, subdivisions (a)(3)(A) and (c)(4) under which the grants were authorized, the Conservancy's obligations under Proposition A concerning maintaining and operating the property are evident.   The property must be operated and maintained in perpetuity “to protect existing trails and improve access to the Backbone Trail” and also “as an at-risk youth camping facility.”   The sections of Proposition A and the project agreements under which the Conservancy obtained the funds to purchase the parcel make no mention of maintaining and operating a swimming pool or providing facilities for “disabled” persons.   Thus, the Conservancy's obligation to “maintain and operate in perpetuity” under section 16 does not extend to such unrelated purposes.   Moreover, to conclude that the Conservancy must maintain and operate one element of the property, such as the pool, in perpetuity, no matter what the cost or other circumstances, is unreasonable and would lead to “absurd” results.  (MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 650;  Day v. City of Fontana (2001) 25 Cal.4th 268, 272;  Anderson Union High Sch. Dist. v. Schreder (1976) 56 Cal.App.3d 453, 460 [interpretation should produce “a reasonable result”];  Civ.Code, § 3542 [interpretation must be reasonable].)   The trial court therefore correctly interpreted the operative provisions of Proposition A and concluded that the second cause of action did not state a cognizable claim as a matter of law.

C. Third Cause of Action

Plaintiffs based the third cause of action on an alleged violation of the so-called anti-discrimination provision in section 16, subdivision (a)(3) of Proposition A, which reads in pertinent part:  “Any beach, park or other public facility acquired, developed, rehabilitated or restored with funds from this act shall be open and accessible to the public without discrimination as to ․ age ․, physical or medical handicap, [or] medical condition․”  According to plaintiffs, the trial court erred when it sustained the demurrers to this cause of action because the complaint adequately alleged that the Conservancy discriminated against the disabled or elderly plaintiffs by closing the pool and denying them meaningful access to the only portion of the property they could use, while allowing able bodied persons to continue to use the property for activities such as hiking.

Plaintiff's contention that the Conservancy discriminated against them in violation of section 16, subdivision (a)(3) is based on the assertion that the Conservancy closed the pool.   The complaint, however, alleges that the YMCA operated and maintained the pool pursuant to the lease and that, while the lease was still in effect, the YMCA closed and drained the pool for needed repairs.   Thus, the predicate fact upon which the third cause of action was based—the Conservancy's closure of the pool—is contradicted by the allegations of the complaint.   Therefore, the trial court correctly concluded that plaintiffs had failed to state a violation of section 16, subdivision (a)(3) as a matter of law.

Plaintiffs argue that the Conservancy's subsequent conduct during lease negotiations with the YMCA caused, in effect, a permanent closure of the pool to the public.   But, by the time the pool reverted to the control of the Conservancy, it had already been closed, drained, and was allegedly in need of as much as $400,000 in repairs.   Thus, even if we accept defendants' argument that the Conservancy's negotiating posture during the lease renewal negotiations caused the YMCA not to renew the lease, that is not the equivalent of alleging that the Conservancy was operating and maintaining the pool for the benefit of the public, but then closed the pool.

Plaintiffs further argue that the YMCA's closing of the pool was “temporary,” while the Conservancy, in effect, “permanently” closed the pool.   The Conservancy did not close the pool.   The YMCA closed the pool until it could obtain the resources and ability to reopen the pool which it never obtained.   The Conservancy had no obligation under Proposition A to expend the necessary monies to repair and operate the pool.   Given the allegation that the YMCA, not the Conservancy, closed the pool for repairs, the third cause of action failed to allege facts showing a violation of section 16, subdivision (a)(3).

D. Fourth Cause of Action

The fourth cause of action sought a writ of mandate or prohibition based on the violations of section 16 of Proposition A alleged in the second and third causes of action.   Because we have concluded that the second and third causes of action do not state legally viable claims, the fourth cause of action also fails to state a viable claim for mandamus or prohibition.

E. Fifth and Sixth Causes of Action

Plaintiffs based the fifth cause of action on an alleged violation of California Disabled Persons Act (DPA, Civil Code section 54 et seq.) ⁷ and the sixth cause of action on an alleged violation of the Americans with Disabilities Act (ADA, 42 U.S.C. section 12101 et seq.).⁸  On appeal, plaintiffs concede that their DPA cause of action is derivative of their ADA cause of action, i.e., the DPA cause of action states a claim only if plaintiffs' ADA cause of action states a claim.⁹  Thus, we will examine the sixth cause of action under the ADA to determine whether either the fifth or sixth causes of action states facts sufficient to constitute a cause of action.

Plaintiffs' claim under the ADA is based on the allegations showing that in closing the pool, defendants denied plaintiffs access to the only portion of the parcel that was accessible to them due to their disabilities.   According to plaintiffs, those allegations state an actionable “disparate impact” claim under the ADA.¹⁰

Plaintiffs rely on Rodde, supra, 357 F.3d 988 and Concerned Parents to Save Dreher Park Ctr. v. City of West Palm Beach (S.D.Fla.1994) 846 F.Supp. 986 (Concerned Parents ) to support their disparate impact claim under the ADA. But as explained in Rodde, both of those cases involved claims based on the governmental entities' operation of programs or services for the disabled that were subsequently terminated by those entities.  “In both [Concerned Citizens ] and this case, the government first consolidated services for the disabled at a single facility.   Then, due to budget shortages, the government decided to close the single facility providing specialized programs for the disabled, while continuing to operate the facilities providing the same category of services to non-disabled individuals.”  (Rodde, supra, 357 F.3d at p. 998.)

In the instant case, plaintiffs alleged that a private organization, the YMCA, operated and maintained the pool pursuant to the lease, a fact that suggests that the Conservancy had no current interest in the pool during the lease beyond its future reversionary interest and therefore no ability to determine or control whether the pool remained open or not.   Plaintiffs also alleged that the term of the lease was coextensive with the “useful life” of the pool and that the YMCA closed the pool to the general public, not just to disabled persons.   In addition, plaintiffs alleged that following the closure of the pool, lease renewal negotiations took place between the Conservancy and the YMCA, facts that support a reasonable inference that the YMCA's closure of the pool resulted in the termination of the existing lease under the “useful life” provision.   Those allegations distinguish this case from both Rodde, supra, 357 F.3d 988 and Concerned Citizens, supra, 846 F.Supp. 986, because here the Conservancy was not operating and maintaining the pool for the benefit of disabled persons nor did it close the pool to use by such persons.   Rather, from the foregoing allegations, it appears the YMCA was operating and maintaining the pool and then unilaterally closed the pool, causing the existing lease to terminate.   Given the factual differences between this case and Rodde and Concerned Citizens, the trial court correctly concluded that plaintiffs had failed to state a disparate impact claim under those cases.

Plaintiffs argue that their allegations concerning the lease negotiations with the YMCA established that defendants were responsible for the permanent closure of the pool.   As discussed, however, the negotiations occurred after the YMCA made the decision to close the pool and failed to advance the funds necessary to repair and reopen it.   Plaintiffs provide no authority to support a disparate impact claim under the unique circumstances of this case, in which the governmental entity allegedly failed to repair and reopen a facility to the public that was previously operated, maintained, and then closed by a private entity.   Moreover, even assuming that the Conservancy was responsible for the closure of the pool, plaintiffs also alleged that when the pool was in operation, it was open to all members of the public, not just to disabled persons.   Therefore, the closure of the pool impacted disabled and nondisabled persons alike because no member of the public can currently use the pool based on the closure.   The Conservancy has not continued “to operate the facilities providing the same category of services to non-disabled individuals.”   (Rodde, supra, 357 F.3d at p. 998.)

At oral argument, plaintiffs asserted that the decision in Civic Ass'n of the Deaf of New York City, Inc. v. Giuliani (1996) 915 F.Supp. 622 supports their claim that by closing the only portion of the property accessible to them, the Convervancy violated the ADA. In that case, the City of New York provided an emergency reporting system for use by the general public and a part of that system, street alarm call boxes, was accessible to and used by the City's deaf population.  (Id. at pp. 626–627.)   The City proposed and began to eliminate the alarm boxes.  (Id. at p. 628.)   The plaintiffs sued, inter alia, under the ADA to enjoin the removal of the alarm boxes.  (Id. at pp. 630–631.)   According to the plaintiffs, the alarm boxes were accessible to deaf persons to report emergencies on sidewalks, streets, and public places, but the alternative notification system proposed by the City—an enhanced 911 system that relied on telephone communication—was not accessible to deaf persons because they could not communicate emergencies to the City using such a telephone based system.  (Id. at p. 631.)   The federal district court agreed with the plaintiffs concerning the alleged ADA violation, reasoning that “according to [the] Defendants, here the service being eliminated is not meant only for the hearing impaired community.   Everyone—not just the deaf and hearing-impaired—will lose access to street alarm boxes.  [¶] This position overlooks the fact that public telephones will remain accessible to the hearing, thus leaving them with a means of participating in and benefiting from reporting emergencies from the streets.   Although street alarm boxes are accessible to the hearing, they are at present the only means by which the deaf and hearing-impaired can report emergencies from the street and, therefore, they stand in the place of the recreational programs for the disabled in Dreher Park [, supra, 846 F.Supp. 986].   In other words, were [the] Defendants proposing to eliminate fire services in their entirety, no claim would arise under the ADA. But for as long as a service, program, or activity remains in existence, as here, the ADA, requires that it be accessible to the disabled.”  (Id. at pp. 636–637.)

In the instant case, even assuming the Conservancy was providing a service program, or activity to the public—which, as discussed above, it was not—the elimination of that service program, or activity did not have a disparate impact on the disabled.   The only service, program, or activity related available to the public from the operation of the pool was swimming, which activity the disabled participated in along with other nondisabled members of the public.   By allegedly closing the pool, the Conservancy may have eliminated that activity, but it did so in its entirety.   Swimming at the pool was no longer available to anyone.   Thus, no claim under the ADA would arise under such circumstances.

F. Leave to Amend

Plaintiffs contend that even assuming the trial court correctly concluded that the complaint failed to state facts sufficient to constitute a cause of action, the court nevertheless abused its discretion in denying plaintiffs leave to amend.   As to the second cause of action, plaintiffs argue that they should be allowed to include in the complaint allegations and documents showing that the underlying intent of Proposition A included an intent to ensure continued operation of the pool for the benefit of the public.   But, as discussed, the operative provisions of Proposition A are clear and unambiguous, and they do not state or imply that the voters intended Proposition A to impose an obligation on the Conservancy to operate the pool in perpetuity.   Thus, there is no need to resort to extrinsic evidence to interpret Proposition A. (See People v. Superior Court (Pearson), supra, 48 Cal.4th at p. 571.)

As to causes of action three through six, plaintiffs contend they should be allowed to include in the complaint additional allegations showing that the Conservancy was the entity responsible for closing the pool.   The complaint, however, alleges that the YMCA was the entity responsible for closing the pool and terminating the lease, and plaintiffs cannot change that allegation or add facts that are inconsistent with it.   That the Conservancy thereafter may have had some effect on the YMCA's ability or willingness to renew the lease cannot be dispositive.   The fact remains that the YMCA closed the pool, and that is what plaintiffs alleged.  “ ‘ “A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false.  [Citation.]”  [Citations.]’  (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491 [49 Cal.Rptr.3d 227].)   Similarly, ‘[u]nder the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.  (See Hendy v. Losse (1991) 54 Cal.3d 723, 742–743 [1 Cal.Rptr.2d 543, 819 P.2d 1] [affirming an order sustaining defendants' demurrer without leave to amend when the plaintiff filed an amended complaint omitting harmful allegations from the original unverified complaint];  see also Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151 [281 Cal.Rptr. 191] [“If a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations.”].)’ (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425 [42 Cal.Rptr.3d 807] (Deveny ), fn. omitted.)”  (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412.)   Accordingly, defendants are bound by their allegations stating that the YMCA operated and maintained the pool, and thereafter closed the pool and failed to commit the resources necessary to repair or reopen it.   As a result, the trial court did not abuse its discretion in denying plaintiffs leave to amend.

DISPOSITION

The judgment of dismissal is affirmed.   No costs are awarded on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

KUMAR, J.¹⁰

FOOTNOTES

FN1. Plaintiffs and appellants are a nonprofit organization dedicated to ensuring that the pool remains open to the public and 12 individuals that the parties describe as disabled or elderly, who have been denied use of the pool.   They will be referred to collectively as plaintiffs..  FN1. Plaintiffs and appellants are a nonprofit organization dedicated to ensuring that the pool remains open to the public and 12 individuals that the parties describe as disabled or elderly, who have been denied use of the pool.   They will be referred to collectively as plaintiffs.

FN2. Defendants and respondents are the Santa Monica Mountains Conservancy (the Conservancy), which according to the complaint, is a quasi-independent state-government entity formed pursuant to Public Resources Code section 33000 et seq., and the Mountains Recreation and Conservation Authority (the Authority), which is a government entity formed by the Conservancy and two local park agencies under the Joint Exercise of Powers Act (Gov.Code, § 6500 et seq.).   They will sometimes be referred to collectively as defendants..  FN2. Defendants and respondents are the Santa Monica Mountains Conservancy (the Conservancy), which according to the complaint, is a quasi-independent state-government entity formed pursuant to Public Resources Code section 33000 et seq., and the Mountains Recreation and Conservation Authority (the Authority), which is a government entity formed by the Conservancy and two local park agencies under the Joint Exercise of Powers Act (Gov.Code, § 6500 et seq.).   They will sometimes be referred to collectively as defendants.

FN3. Plaintiffs alleged the following facts in their complaint, which facts we accept as true for purposes of assessing the complaint's sufficiency to withstand demurrer.  (Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 957.).  FN3. Plaintiffs alleged the following facts in their complaint, which facts we accept as true for purposes of assessing the complaint's sufficiency to withstand demurrer.  (Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 957.)

FN4. At oral argument, plaintiffs conceded that the first cause of action did not state facts sufficient to constitute a cause of action..  FN4. At oral argument, plaintiffs conceded that the first cause of action did not state facts sufficient to constitute a cause of action.

FN5. Section 8, subdivision (a)(3)(A) provides “[f]ive million dollars ($5,000,000) for competitive grants for the acquisition and development of land and rights-of-way for walking, hiking, horse, bicycle, and handicapped access trails.”.  FN5. Section 8, subdivision (a)(3)(A) provides “[f]ive million dollars ($5,000,000) for competitive grants for the acquisition and development of land and rights-of-way for walking, hiking, horse, bicycle, and handicapped access trails.”

FN6. Section 8, subdivision (c)(4) provides in pertinent part that “[n]ot less than three million dollars ($3,000,000) shall be expended for acquisition of land and development of facilities for at-risk youth and gang prevention․.  FN6. Section 8, subdivision (c)(4) provides in pertinent part that “[n]ot less than three million dollars ($3,000,000) shall be expended for acquisition of land and development of facilities for at-risk youth and gang prevention․

FN7. “The DPA protects the civil rights of disabled individuals, and states:  ‘Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to ․ places of public accommodation, amusement, or resort, and other places to which the general public is invited․’  (Civ.Code, § 54.1, subd. (a)(1).)”  (Californians for Disability Rights v. Mervyn's LLC (2008) 165 Cal.App.4th 571, 585.).  FN7. “The DPA protects the civil rights of disabled individuals, and states:  ‘Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to ․ places of public accommodation, amusement, or resort, and other places to which the general public is invited․’  (Civ.Code, § 54.1, subd. (a)(1).)”  (Californians for Disability Rights v. Mervyn's LLC (2008) 165 Cal.App.4th 571, 585.)

FN8. “ ‘Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.   In studying the need for such legislation, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” ’   (PGA TOUR, Inc. v. Martin (2001) 532 U.S. 661, 674–675 [149 L.Ed.2d 904, 121 S.Ct. 1879].)  ‘ ․ Congress concluded that there was a “compelling need” for a “clear and comprehensive national mandate” to eliminate discrimination against disabled individuals, and to integrate them “into the economic and social mainstream of American life.” ’  (Id. at p. 675.)[¶]  ‘In the ADA, Congress provided that broad mandate․  To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III).’  (PGA TOUR, Inc. v. Martin, supra, 532 U.S. at p. 675, fns. & citation omitted.)”  (Californians for Disability Rights v. Mervyns LLC, supra, 165 Cal.App.4th at p. 583.).  FN8. “ ‘Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.   In studying the need for such legislation, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” ’   (PGA TOUR, Inc. v. Martin (2001) 532 U.S. 661, 674–675 [149 L.Ed.2d 904, 121 S.Ct. 1879].)  ‘ ․ Congress concluded that there was a “compelling need” for a “clear and comprehensive national mandate” to eliminate discrimination against disabled individuals, and to integrate them “into the economic and social mainstream of American life.” ’  (Id. at p. 675.)[¶]  ‘In the ADA, Congress provided that broad mandate․  To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III).’  (PGA TOUR, Inc. v. Martin, supra, 532 U.S. at p. 675, fns. & citation omitted.)”  (Californians for Disability Rights v. Mervyns LLC, supra, 165 Cal.App.4th at p. 583.)

FN9. “ ‘After the ADA was passed in 1990, the California Disabled Persons Act and the Unruh Civil Rights Act were amended to provide that a violation of the ADA constitutes a violation of their provisions.  [Citations.]  Thus, a plaintiff whose rights are violated under the ADA may now seek damages under the California statutes ․,’ and is not limited to injunctive relief as plaintiffs are under federal law.  (Pickern v. Best Western Timber Cove Lodge Marina (E.D.Cal.2002) 194 F.Supp.2d 1128, 1131.)”  (Californians for Disability Rights v. Mervyns LLC, supra, 165 Cal.App.4th at p. 586.).  FN9. “ ‘After the ADA was passed in 1990, the California Disabled Persons Act and the Unruh Civil Rights Act were amended to provide that a violation of the ADA constitutes a violation of their provisions.  [Citations.]  Thus, a plaintiff whose rights are violated under the ADA may now seek damages under the California statutes ․,’ and is not limited to injunctive relief as plaintiffs are under federal law.  (Pickern v. Best Western Timber Cove Lodge Marina (E.D.Cal.2002) 194 F.Supp.2d 1128, 1131.)”  (Californians for Disability Rights v. Mervyns LLC, supra, 165 Cal.App.4th at p. 586.)

FN10. “Title II of the ADA prohibits discrimination in public services and programs.   To establish a violation of the ADA, a plaintiff must demonstrate:  ‘(1) he is a “qualified individual with a disability”;  (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs or activities, or was otherwise discriminated against by the public entity;  and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.’   Weinreich v. Los Angeles County MTA, 114 F.3d 976, 978 (9th Cir.1997) (emphasis omitted).”  (Rodde v. Bonta (9th Cir.2004) 357 F.3d 988, 995 (Rodde ).)   According to the court in Rodde, “state action that disproportionately burdens the disabled because of their unique needs remains actionable under the ADA.” (Id. at p. 998.).  FN10. “Title II of the ADA prohibits discrimination in public services and programs.   To establish a violation of the ADA, a plaintiff must demonstrate:  ‘(1) he is a “qualified individual with a disability”;  (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs or activities, or was otherwise discriminated against by the public entity;  and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.’   Weinreich v. Los Angeles County MTA, 114 F.3d 976, 978 (9th Cir.1997) (emphasis omitted).”  (Rodde v. Bonta (9th Cir.2004) 357 F.3d 988, 995 (Rodde ).)   According to the court in Rodde, “state action that disproportionately burdens the disabled because of their unique needs remains actionable under the ADA.” (Id. at p. 998.)

FN10. Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution..  FN10. Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

KRIEGLER, J.