Argued and Submitted February 15, 2013—Pasadena, California
Appeal from the United States District Court for the Southern District of California D.C. No. 3:09-cv-01278-MMA-JMA Michael M. Anello, District Judge, Presiding
Scottlynn J. Hubbard IV (argued), Lynn Hubbard III, Law Offices of Lynn Hubbard, Chico, California, for Plaintiff-Appellant.
Al Mohajerian (argued), Mohajerian, Inc., Los Angeles, California, for Defendants-Appellees.
Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld and Barry G. Silverman, Circuit Judges.
Americans with Disabilities Act
The panel reversed the district court's summary judgment for the defendants in an action alleging unlawful discrimination under the Americans with Disabilities Act and related California disability laws.
The panel held that the district court erred in refusing to consider the plaintiff's evidence of barriers that he encountered at a restaurant. The panel held that the plaintiff's statements in his declaration, including statements regarding measurements, met the requirement of personal knowledge because the plaintiff stated that he was present as the measurements were taken and also related his personal experience with the barriers. The panel held that expert testimony was not necessary because no specialized or technical knowledge was required to understand the plaintiff's straightforward assertions.
The panel also held that the district court erred in requiring the plaintiff to prove that the removal of the barriers was readily achievable because there is no such requirement for barriers found in new construction.
Concurring in part and dissenting in part, Judge Silverman wrote that the declaration's repetition of the assertions of the expert who took the measurements was hearsay. Judge Silverman wrote that, by contrast, the plaintiff's testimony about his own observations of signage and the configuration of the restaurant's restroom were sufficient to raise factual questions precluding summary judgment.
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. 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 ...