Matt Strong v. Valdez Fine Foods

Discussion

There is no dispute that Strong is disabled, that the restaurant is covered by the ADA or that the restaurant qualifies as new construction under 42 U.S.C. § 12183(a)(1). The only question is whether any barriers interfered with Strong’s ability “‘to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations’” of the restaurant.2 Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc) (quoting 42 U.S.C. § 12182(b)(1)(A)(I)).

1 The other counts allege violations under (1) California Civil Code § 54; (2) the Unruh Civil Rights Act, Cal. Civ. Code § 51; and (3) California Health & Safety Code § 19955 et seq.

2 The state-law claims incorporate the ADA requirements.

STRONG V . VALDEZ FINE FOODS

Strong’s declaration states as follows:

The barriers that I encountered included, but are not limited to the following: (1) disabled parking spaces that have slopes that exceeding [sic] 2.0%; (2) access aisles next to those spaces that have slopes exceeding 2.0%; (3) no International Symbol of Accessibility (“ISA”) on those spaces; (4) sidewalk slopes exceeding 2.0%; (5) no accessible…

Perhaps we’ve become too expert-prone.

Matt Strong, a C-5 quadriplegic, is a customer of Peter Piper Pizza, but not a pleased one. He claims that when he patronized the restaurant in El Cajon, California, he encountered barriers that prevented him from perambulating the place. Strong’s suit alleges unlawful discrimination under the Americans with Disabilities Act (ADA) and related California disability laws. 1 But, in the course of pre-trial proceedings, Strong plowed into a palisade: He missed the period for disclosing his expert. Strong never moved for more time or offered a pretext for passing the deadline. Instead, he incorporated the expert’s pronouncements into his own presentation and put forth the expert as a rebuttal expert.

The district court granted summary judgment for defendants, ruling that Strong lacked personal knowledge of the barriers he encountered and that his declaration was insufficient because he failed to “assert he is an ADA expert or is otherwise qualified to opine whether certain conditions constitute barriers within the meaning of the Act.”

Discussion

There is no dispute that Strong is disabled, that the restaurant is covered by the ADA or…

concurring in part and dissenting in part:

Strong, having had his expert precluded for lack of timely disclosure, unabashedly sought to get his expert’s observations into evidence by way of another route. Strong’s declaration says:

Strong then states that he “reviewed the report of Reed Settles entitled, ‘Rebuttal Comments to Heller Review of Facility,’ dated April 24, 2010, and have learned from said report that [various architectural] barriers continue to exist at the subject restaurant” such as that “[t]he cross slope of the curb cut ramp varies in slope from 2.1% to 2.7% making it difficult for me to travel up the ramp” and that “[t]he landing at the top of the curb cut ramp slopes 3.1%, making it difficult for me to use the landing at the top of the curb cut ramp.” Strong’s declaration also recites other exact measurements taken from Settles’s report.

This is important because in a case claiming a failure to comply with the de *1048 tailed measurements prescribed by the ADA Accessibility Guidelines, exact measurements are required. See Doran v. 7-Eleven, 524 F.3d 1034, 1048 (9th Cir.2008). (“Doran bears the burden of showing a violation of the ADA Accessibility Guidelines,…