Jankey

MEMORANDUM **

Plaintiffs Les Jankey, an individual with a physical disability, and Disability Rights Enforcement Education Services appeal the district court’s denial of their motion for judgment as a matter of law. Plaintiffs sued Defendants Los Burritos, Inc., Magda Bass, and Lakewood Development Properties under California’s Unruh Civil Rights Act (“Unruh Act”), Cal. Civ.Code § 51. Plaintiffs alleged that Defendants failed to remove architectural barriers at a Los Burritos restaurant in North Hollywood, California, a place of public accommodation, in violation of the Unruh Act. After a trial on the merits, a jury found in favor of Defendants. Plaintiffs filed a motion for judgment as a matter of law, claiming that the district court erred in its instructions to the jury and that the jury’s verdict was wrong. The district *264 court denied that motion. Plaintiffs timely appealed. Defendants filed a timely cross-appeal, arguing that California state law requires proof of “actual damages” in order for a plaintiff to receive statutory damages.

1. We review de novo a district court’s denial of a renewed motion for judgment as a matter of law. White v. Ford Motor Co., 312 F.3d 998,…

dissenting:

I respectfully dissent with respect to the appeal, because I think it is clear that the jury found that Jankey did not visit the restaurant. Jankey made inconsistent statements at trial regarding his alleged visits to Los Burritos. No witness testified that he had been there. The only evidence he produced, other than his own inconsistent testimony, was a cash receipt, but it did not contain his name or any other identifying information. The jury sent written questions to the judge inquiring about the absence of various kinds of corroborative evidence as to Jankey’s alleged visits to the restaurant. In the circumstances, I am convinced that the jury found that Jankey never went to the restaurant and, therefore, that the instructional error was harmless under the standard set in Dang v. Cross, 422 F.3d 800, 811 (9th Cir.2005).

. Because I find that the instructional error was harmless, I would not reach Defendants’ cross-appeal.