Matt Strong v. Valdez Fine Foods, et al

Filing

FILED OPINION (ALEX KOZINSKI, ANDREW J. KLEINFELD and BARRY G. SILVERMAN) REVERSED AND REMANDED. Judge: AK Authoring, Judge: AJK , Judge: BGS Concurring & dissenting. FILED AND ENTERED JUDGMENT. [8708478]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MATT STRONG ,

No. 11-55265
Plaintiff-Appellant,
v.

D.C. No.
3:09-cv-01278MMA-JMA

VALDEZ FINE FOODS, DBA Peter
Piper Pizza #223; PETER PIPER, INC.,
DBA Peter Piper Pizza #223;
VESTAR CALIFORNIA XVII, LLC,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted
February 15, 2013—Pasadena, California
Filed July 18, 2013
Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld
and Barry G. Silverman, Circuit Judges.
Opinion by Chief Judge Kozinski;
Partial Concurrence and Partial Dissent by Judge
Silverman

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STRONG V . VALDEZ FINE FOODS
SUMMARY*

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
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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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.

COUNSEL
Scottlynn J. Hubbard IV (argued), Lynn Hubbard III, Law
Offices of Lynn Hubbard, Chico, California, for PlaintiffAppellant.
Al Mohajerian (argued), Mohajerian, Inc., Los Angeles,
California, for Defendants-Appellees.

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

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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)(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.

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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.
The 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
McCormick on 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 (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,

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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
12–13. 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,

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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 noncompliant) 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 configuration of the
restroom,” but not on those that are “dependent” on the
measurements taken in Strong’s presence. Dissent at 13. But
which claims are “dependent” on such measurements? The
dissent doesn’t say, nor can it. The ten allegations we cite on
page 5 don’t rely on these precise measurements. Dissent at
11. To prevail on them, Strong need only show that the
slopes exceed 2.0%, not prove up a precise measurement.

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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. Even
without tools, Strong could say, based on his experience, that
the slope exceeds the maximum of 2.0% or that there’s
“insufficient clear floor space in front of the water closet,”
just as a man in a wheelchair who struggles to get out of his
car can say that the width of the access aisle next to his
handicap parking spot is less than the required five feet.
ADA Accessibility Guidelines for Buildings and Facilities
§ 4.6.3 fig. 9. The trier of fact may discount such personal
observations, but the weight of the evidence is an issue for
trial, not summary judgment.
It’s commonly understood that lay witnesses may
estimate size, weight, distance, speed and time even when
those quantities could be measured precisely. See 7 John
Henry Wigmore, Evidence in Trials at Common Law § 1977
(James H. Chadbourn ed., rev. ed. 1978); see also Leadbetter
v. Glaisyer, 44 F.2d 350 (9th Cir. 1930) (“Any person of
average intelligence, accustomed to observing moving
objects, is able to express an opinion of some value as to the
rate of speed of an automobile or other moving vehicle. . . .
The opinion might not be so accurate and reliable as that of
one who had been accustomed to observe, with time piece in
hand, the motion of an object of such size and momentum;
but this would only go to the weight of the testimony, and not
to its admissibility.” (internal quotation marks omitted));
Nelson v. City of Davis, 685 F.3d 867, 874, 881, 882 (9th Cir.
2012) (estimating distance); Young v. Illinois Cent. Gulf R.R.,
618 F.2d 332, 337 (5th Cir. 1980) (abuse of discretion not to
allow lay witness estimates of width of rail crossing).

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In light of this caselaw, we cannot read Doran v. 7Eleven, Inc., 524 F.3d 1034, 1048 (9th Cir. 2008), as
prohibiting any and all claims based on personal observation
in ADA cases; there can be no separate rules of evidence
applicable to a single statute. Rather, we read Doran as
rejecting plaintiff’s testimony as insufficiently probative of
the width of the aisles. Plaintiff could, after all, have scraped
his knuckles on the side of an ADA-compliant aisle when he
drove his wheelchair too close to one side or the other.
The district court also ruled Strong’s evidence insufficient
because Strong “does not assert he is an ADA expert or is
otherwise qualified to opine whether certain conditions
constitute barriers within the meaning of the Act.” But these
are not the kind of facts for which expert testimony is
necessary. The Federal Rules of Evidence permit an expert
to provide his opinion if “the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.” Fed.
R. Evid. 702(a). “If the matter testified to is within the
knowledge of jurors,” we’ve held expert testimony is not
appropriate. United States v. Christophe, 833 F.2d 1296,
1299 (9th Cir. 1987).
The ADA was enacted as a boon to disabled people, not
expert witnesses. Specialized or technical knowledge is not
required to understand Strong’s straightforward assertions.
A jury is perfectly capable of understanding that there is “no
handle mounted below the lock of the water closet stall door”
or that the slope of the sidewalk exceeds 2.0%. And an
expert witness is not permitted, much less required, to instruct
the jury on the law of ADA compliance. See, e.g., United
States v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993) (“It
is well settled . . . that the judge instructs the jury in the

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law. . . . The court’s admission of expert testimony on
contested issues of law in lieu of instructing the jury was
manifestly erroneous.”).
The district court further erred by penalizing Strong for
not providing proof that “the removal of the barriers is readily
achievable.” The “readily achievable” standard applies only
to buildings constructed prior to January 26, 1993. Compare
42 U.S.C. § 12182(b)(2)(A)(iv) with 42 U.S.C. § 12183(a);
see also Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th
Cir. 2001). The district court recognized—and the parties do
not dispute—that the restaurant qualified as new construction.
The ADA requires that new construction be “‘readily
accessible to and usable by individuals with disabilities.’”
Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165,
1171 (9th Cir. 2010) (quoting 42 U.S.C. § 12183(a)(1)).
There’s no requirement that removal of barriers found in new
construction be “readily achievable.” New construction
should have been built to ADA standards unless Peter Piper
Pizza can prove that “it [was] structurally impracticable to
meet the requirements.” 42 U.S.C. § 12183(a)(1); Long,
267 F.3d at 923.
Conclusion
The district court abused its discretion in discounting
Strong’s evidence as lacking personal knowledge and
constituting improper expert testimony. And it erred in
requiring a showing that removal of any barriers was “readily
achievable.”
REVERSED and REMANDED for trial.

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SILVERMAN, Circuit Judge, 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:
I made a mental list of the barriers I
encountered, relying on my photographic
memory to assist me in remembering those
barriers. 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.
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.

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This is important because in a case claiming a failure to
comply with the detailed 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, the substantive standard
of ADA compliance. [citation omitted] That Doran scraped
his knuckles, unsupported by any measurements, is
insufficient to demonstrate that 7-Eleven’s aisles do not
comply with the thirty-six-inch clearance that the
Accessibility Guidelines mandate.”)
As the majority notes, it is possible for two people to take
measurements together and thus, for both to have personal
knowledge of what is observed, but tellingly, that is not what
Strong’s declaration says occurred. It is also possible that the
other individual called out the measurements as they were
taken (arguably a statement of “present sense impression”),
but that is not what Strong says occurred, either. Strong says
only that he was “present” when someone else took the
measurements, and that he read Settles’s report. Stuck with
the declaration we actually have – and not the one we may
wish we had – we are left with the out-of-court assertions of
the individual who actually took the measurements, as retold
by Strong, to prove the truth of the matter asserted.
The problem is not that “we’ve become too expertprone,” as the majority quips. The problem is that Strong is
simply repeating what the declarant communicated to him –
classic hearsay whether the declarant is an expert or not. And
it is no less hearsay just because Strong was “present” when
the other person saw what he purported to observe. Strong’s
presence entitles him to testify to what he saw, not to what
the other individual saw. A declaration in support of or in

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opposition to a motion for summary judgment “must be made
on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Rule 56(c)(4),
Federal Rules of Civil Procedure.
This inadmissible hearsay stands in contrast to Strong’s
testimony about his own observations of the signage and the
configuration of the restroom, first-hand perceptions that I
agree are sufficient to raise factual questions precluding
summary judgment. I would allow those claims to go
forward, but not the claims dependent on the observations of
the absent declarant.