Kemper v. Folsom, LLC et al

Filing 41

ORDER signed by Judge Morrison C. England, Jr on 01/20/2009 DENYING 35 Motion to Strike; and DENYING 26 Motion For Summary Judgment. (Streeter, J)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Defendants. 15 ----oo0oo---16 17 18 19 20 21 22 23 24 25 26 27 28 Because oral argument will not be of material assistance, the Court ordered this matter submitted on the briefing. E.D. Cal. Local Rule 78-230(h). 1
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

EDWARD L. KEMPER, Plaintiff, v. FAIRMONT FOLSOM, LLC, and CWS APARTMENT HOMES, LLC,

No. 2:07-cv-00647-MCE-DAD

MEMORANDUM AND ORDER

Through this action, Plaintiff seeks relief from injuries allegedly suffered as a result of Defendants' violations of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., the Fair Housing Act, 42 U.S.C. § 3601 et seq., the California Disabled Persons Act, Cal. Civ. Code § 54, et seq., and the Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq. Presently before the Court are Plaintiff's Motion to Strike

Defendants' Expert Reports and Motion for Summary Judgment.1 ///

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BACKGROUND

Plaintiff is a resident of the Willow Creek apartments in Folsom, California. Willow Creek is owned by Defendant Fairmont

Folsom, LLC, and is operated by Defendant CWS Apartment Homes, LLC. According to Plaintiff, he is disabled as a matter of law

as he is substantially limited in the major life activity of walking. Plaintiff further alleges that, due to his disabled

status, he has suffered discrimination as a result of numerous architectural barriers that exist throughout the Willow Creek complex. Plaintiff initially filed this action on April 4, 2007. Court issued its Pretrial Scheduling Order ("PTSO") on October 15, 2007. Pursuant to the mandates of the PTSO, all The

parties timely submitted their Expert Witness Disclosures on August 13, 2008. Both sides designated accessibility experts and Though

Defendants designated a medical expert, Dr. Sfakianos.

the PTSO allowed twenty additional days for the disclosure of rebuttal experts, Plaintiff neither objected to Defendants' designation of a physician, nor did Plaintiff make any effort to designate a rebuttal witness. Plaintiff filed the instant Motion for Summary Judgment on August 21, 2008. Defendants opposed that Motion on September 19, In Plaintiff's

2008, and Plaintiff replied on October 9, 2008.

Reply, though he objected to various other evidence submitted by Defendants, Plaintiff failed to raise any objections to Dr. Sfakianos' report. /// 2

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Subsequently, in its Memorandum and Order dated October 27, 2008, this Court allowed Defendants additional time in which to file a supplement to Dr. Sfakianos' initial report. responded to the Court's Order on December 4, 2008. Defendants Only then,

on December 17, 2008, did Plaintiff see fit to object to Defendants' expert. Plaintiff now seeks to have Defendants'

expert report stricken both for purposes of Plaintiff's current Motion for Summary Judgment and at trial, or alternatively, leave to amend the PTSO to allow further time for Plaintiff to designate a rebuttal expert and to depose Dr. Sfakianos. Defendants dispute numerous facts proffered by Plaintiff, least of which is Plaintiff's disabled status. Because the Court

finds triable issues of material fact remain unresolved, Plaintiff's Motion for Summary Judgment is denied.

ANALYSIS 1. Plaintiff's Motion to Strike Defendants' Expert Reports

Plaintiff seeks to have the report of Defendants' expert, Dr. Sfakianos, stricken from the record. Federal Rule of Civil

Procedure ("FRCP") 26 requires that, "[i]n addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705...[T]his disclosure must be accompanied by a written report prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case." Fed. R. Civ. Pro. 26(a)(2)(A)-(B). 3

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That written report must contain, inter alia, "a complete statement of all opinions the witness will express and the basis and reasons for them." Fed. R. Civ. Pro. 26(a)(2)(B)(I). "If a

party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. Pro. 37(c)(1).

According to Plaintiff, Dr. Sfakianos' report is incomplete and lacks the detail necessary to comply with Rule 26(a)(2)(B). Thus, Plaintiff seeks to exclude the report under Rule 37. However, this Court finds that Dr. Sfakianos' report substantially complies with the requirements of Rule 26. Therefore, Plaintiff's Motion to Strike is denied. Moreover, Plaintiff has failed to show the requisite good cause necessary to warrant amendment of the PTSO to allow for further discovery and designation of rebuttal experts. Generally, the Court is required to enter a PTSO within 120 days of the filing of the complaint. Fed. R. Civ. P. 16(b). The scheduling

order "controls the course of the action" unless modified by the Court. Fed. R. Civ. P. 16(d). Orders entered before the final

pretrial conference may be modified upon a showing of "good cause," Fed. R. Civ. P. 16(b), but orders "following a final pretrial conference shall be modified only to prevent manifest injustice." Fed. R. Civ. P. 16(e); see also Johnson v. Mammoth

Recreations, 975 F.2d 604, 608 (9th Cir. 1992). Rule 16(b)'s "`good cause' standard primarily considers the diligence of the party seeking the amendment." 4 Johnson at 609.

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"The district court may modify the pretrial schedule `if it cannot reasonably be met despite the diligence of the party seeking the extension.'" Id., quoting Fed. R. Civ. P. 16 advisory committee's notes (1983 amendment). "Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Id. "Although the existence or degree of prejudice to

the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. was not diligent, the inquiry should end." Id. If that party

Defendants designated Dr. Sfakianos on August 13, 2008, as required by the Court's PTSO. Plaintiff failed to timely

challenge that report or to designate a single rebuttal expert. While Defendants' initial report may have been lacking, Plaintiff failed to diligently raise any challenges to that document and the Court will not at this late juncture make any changes to the PTSO. Plaintiff's Motion to Strike is denied.

2.

Plaintiff's Motion for Summary Judgment

The Federal Rules of Civil Procedure provide for summary judgment when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." 56(c). Fed. R. Civ. P.

One of the principal purposes of Rule 56 is to dispose of Celotex Corp. v.

factually unsupported claims or defenses. Catrett, 477 U.S. 317, 323-324 (1986). 5

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Rule 56 also allows a court to grant summary adjudication on part of a claim or defense. See Fed. R. Civ. P. 56(a) ("A party

claiming relief may move...for summary judgment on all or part of the claim."); see also Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992). The standard that applies to a motion for summary adjudication is the same as that which applies to a motion for summary judgment. See Fed. R. Civ. P. 56(a), 56(c); Mora v.

ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. at 323(quoting Rule 56(c)). If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 28889 (1968). In attempting to establish the existence of this factual dispute, the opposing party must tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(e). /// /// 6

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The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). Stated another way, "before the evidence is left to

the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 251 (quoting Schuylkill and Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)). As the

Supreme Court explained, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 586-87.

In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255.

Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. /// 7

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Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987). A threshold matter necessary to the success of each of Plaintiff's claims is that he be found disabled as a matter of law. For example, the Supreme Court has stated that, under the

ADA, "a claimant must initially prove that he or she has a physical or mental impairment...Merely having an impairment does not make one disabled for purposes of the ADA. Claimants also

need to demonstrate that the impairment limits a major life activity." Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 Moreover, "[t]o qualify as disabled, a

U.S. 184, 194-195 (2002).

claimant must further show that the limitation on the major life activity is `substantia[l].'" Id., quoting 42 U.S.C. § 12102(2)(A). "In determining whether an individual is substantially limited in a major life activity, the regulations instruct that the following factors should be considered: `[t]he nature and severity of the impairment; [t]he duration or expected duration of the impairment; and [t]he permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.'" Id. at 196, quoting 29 C.F.R. § 1630.2(j)(2)(i)-(iii). Finally, "[t]hat

the Act defines `disability' `with respect to an individual,' 42 U.S.C. § 12102(2), makes clear that Congress intended the existence of a disability to be determined in...a case-by-case manner." Id. at 198. Thus, the inquiry into Plaintiff's requisite legal disability is wholly factual in nature. Appropriately, Plaintiff

submitted his own declaration substantiating his claims not only of his physical condition, but also of the impact that such condition has had upon his daily activities. 8

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In response, Defendants challenge Plaintiff's credibility with excerpts from Plaintiff's depositions that purportedly do not comport with Plaintiff's claimed level of disability. Additionally, Defendants' expert opined that "one certainly does get the impression that perhaps there is somewhat of a disconnect between [Plaintiff's] subjective complaints and the truly objective findings." Sfakianos Decl., Exh. C. Dr. Sfakianos also

stated that "Mr. Kemper's degree of stated disability is probably not quite in sync with what would be considered purely objective factors of disability." Id.

Accordingly, there remains before the Court a triable issue of fact as to the matter of Plaintiff's legal disability. Thus,

summary judgment is improper and Plaintiff's Motion is denied.

CONCLUSION

Plaintiff's Motion to Strike Defendants' Expert Report or, alternatively to Amend the Pretrial Scheduling Order (Docket No. 35) and Plaintiff's Motion for Summary Judgment (Docket No. 26) are DENIED. IT IS SO ORDERED. Dated: January 20, 2009

_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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