Matt Strong v. Valdez Fine Foods

724 F.3d 1042, 28 Am. Disabilities Cas. (BNA) 398, 91 Fed. R. Serv. 1331, 2013 WL 3746097, 2013 U.S. App. LEXIS 14544
Court of Appeals for the Ninth Circuit·Decided July 18, 2013·No. 11-55265·Published·Cited by 48 cases

Opinions

OPINION

KOZINSKI, Chief Judge:

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 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)®).

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 seating designated for the disabled; (6) There is no accessible seating to [sic] the disabled; (7) no handle mounted below the lock of the water closet stall door; (8) insufficient clear floor space in front of the water closet; (9) pipes underneath the lavatory that were improperly and/or incompletely wrapped; and (10) insufficient strike side clearance when exiting the restroom.

[1045]*1045The district court refused to consider Strong’s evidence because it found that he didn’t have personal knowledge. But the requirement of personal knowledge imposes only a “minimal” burden on a witness; if “reasonable persons could differ as to whether the witness had an adequate opportunity to observe, the witness’s testimony is admissible.” See 1 McCormickon Evidence § 10 (Kenneth S. Broun, ed., 7th ed. rev.2013). At summary judgment, the threshold is particularly low because all “justifiable inferences” must be drawn in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We’ve held, for example, that a plaintiff’s verified complaint satisfies the personal knowledge requirement where the “allegations were not based purely on ... belief.” Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir.1995); see also Columbia Pictures Indus., Inc. v. Prof'l Real Estate Investors, Inc., 944 F.2d 1525, 1529 (9th Cir.1991) (declaration not sufficient because “not based on personal knowledge, but on information and belief’).

Here, Strong states under penalty of perjury that these were “[t]he barriers that I encountered.” If believed by the trier of fact, this would certainly be sufficient to support a finding of personal knowledge. Though Strong could not himself handle the instruments used to make measurements, he was “present” while the measuring took place and knew which tools were used:

While I am not able to take measurements myself, I was present while another individual took measurements and photographs of the barriers present at the subject restaurant. That individual brought a gauge to measure door pressure, a measuring stick, a stop watch, and a Smart Tool device that measures slopes so that precise measurements of all the barriers could be taken.

The dissent’s hearsay concerns are misplaced. Dissent at 1048. While some of what Strong says may be hearsay, much purports to reflect his own observations as his companion measured the barriers in his presence. That another person holds the ruler does not deprive an observer of personal knowledge of the measurement, and Strong says he was present as the measurements were taken. See Fraser v. Goodale, 342 F.3d 1032,1037 (9th Cir.2003) (“The contents of the diary are mere recitations of events within Fraser’s personal knowledge and, depending on the circumstances, could be admitted into evidence at trial in a variety of ways.”).

Even without precise measurements, Strong could support his case based on his own personal experience with the barriers. He states in a sworn declaration that, on five separate occasions, he encountered parking spaces, access aisles and sidewalks with slopes exceeding 2.0%. It was only after he experienced these obstacles that Strong sought assistance in measuring them, which he did to “document and verify those barriers.” These measurements confirmed what Strong had already discovered through his personal observations: Peter Piper Pizza was not “readily accessible” to a person in a wheelchair. Under Anderson v. Liberty Lobby, Strong’s declaration suffices to show personal knowledge for purposes of parrying defendants’ push for summary judgment. He would no doubt present a more powerful case at trial if he could proffer evidence of precise measurements, but his personal observations, based on his prolonged experience with ADA-compliant (and non-compliant) access ramps, are enough to propel him past summary judgment.

The dissent argues that Strong is entitled- to go to trial only on the claims that are based on “testimony about his own observations of the signage and the config[1046]*1046uration of the restroom,” but not on those that are “dependent” on the measurements taken in Strong’s presence. Dissent at 1048. But which claims are “dependent” on such measurements? The dissent doesn’t say, nor can it. The ten allegations we cite on page 1044 don’t rely on these precise measurements. Id. at 1047-48. To prevail on them, Strong need only show that the slopes exceed 2.0%, not prove up a precise measurement.

Given that so many public accommodations do comply with the ADA, it’s likely that someone like Strong, who daily navigates the world in a wheelchair, would be attuned to variations in the slope and spacing of his environment.

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Matt Strong v. Valdez Fine Foods, 724 F.3d 1042, 28 Am. Disabilities Cas. (BNA) 398, 91 Fed. R. Serv. 1331, 2013 WL 3746097, 2013 U.S. App. LEXIS 14544 (9th Cir. 2013).

724 F.3d 1042 (Matt Strong v. Valdez Fine Foods) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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