Dwyer v. City of Chico et al

Filing 56

ORDER signed by Chief District Judge Kimberly J. Mueller on 6/8/2022 DENYING the City's request to strike or disregard Ms. Dwyer's cross-motion and DENYING the cross-motions for 48 and 53 . The City's objection to the declaration b y Dr. Thomas McKnight is SUSTAINED for purposes of the current motions only; and its objection to the declaration of John Peck is OVERRULED IN PART. The Pretrial Conference is CONTINUED to 7/29/2022 at 10:00 AM in Courtroom 3 (KJM) before Chief District Judge Kimberly J. Mueller with a joint pretrial statement due three weeks in advance. (Perdue, C.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Grace Dwyer,

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Plaintiff,

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No. 2:18-cv-01554-KJM-DMC
ORDER

v.
City of Chico, et al.,

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Defendants.

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Plaintiff Grace Dwyer tripped and fell on an uneven sidewalk in downtown Chico,

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California. She claims in this lawsuit that the City of Chico discriminated against her by not

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maintaining its sidewalks, and she asserts claims under the Americans with Disabilities Act

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(ADA), the Rehabilitation Act, and related California laws. The City moves for summary

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judgment on all of her claims. See generally Mot. Summ. J., ECF No. 48. Ms. Dwyer opposes

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the motion and cross-moves for summary judgment, and the City has replied. See generally

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Opp’n, ECF No. 53, Reply, ECF No. 54. The court submitted the matter for decision without a

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hearing, Min. Order, ECF No. 55, and now denies both motions.

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I.

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OBJECTIONS
The City makes three objections the court addresses at the threshold. First, it objects to

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Ms. Dwyer’s cross-motion as untimely. See Reply at 3. Its objection is overruled. This District’s

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Local Rules permit cross-motions to be presented concurrently with an opposition. See E.D. Cal.
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L.R. 230(e) (permitting a “counter-motion . . . related to the general subject matter of the original

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motion” to be “served and filed in the manner and on the date prescribed for the filing of

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opposition”). The court considers these cross motions for summary judgment independently

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under the same legal standard, Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249

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F.3d 1132, 1136 (9th Cir. 2001), which the court summarized in its previous order, see Prev.

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Order at 4–6 (Apr. 9, 2021), ECF No. 43, and incorporates here without repeating.

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Second, the City objects to the declaration by Dr. Thomas McKnight, which Ms. Dwyer

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submitted in support of her opposition and cross-motion. See Objs. at 3, ECF No. 54-1. That

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objection is sustained for purposes of the current motions only. Ms. Dwyer did not disclose her

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intent to rely on Dr. McKnight’s opinions before the deadlines set in this court’s Rule 16

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scheduling order, as required by Federal Rule of Civil Procedure 26(a)(2)(C). “If a party fails to

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provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed

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to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless

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the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Ms. Dwyer has

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not shown the failure here was substantially justified or harmless. Nor has she contended that a

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lesser sanction is more suited to the circumstances. Exclusion is thus “automatic.” See Merchant

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v. Corizon Health, Inc., 993 F.3d 733, 740–41 (9th Cir. 2021) (quoting Yeti by Molly, Ltd. v.

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Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) and distinguishing R & R Sails, Inc.

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v. Ins. Co. of Pa., 673 F.3d 1240, 1246–48 (9th Cir. 2012)). Because the court denies summary

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judgment, however, this order does not preclude Ms. Dwyer from later establishing that her

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failure to disclose Dr. McKnight’s opinions was substantially justified or harmless. Nor does this

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order preclude her from moving for a lesser sanction in advance of trial.

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Third, the court overrules in part the City’s objection to the declaration of John Peck. See

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Objs. at 7–8. The photographs accompanying his declaration and his testimony about them could

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likely be reduced to admissible form at trial, and so the court considers them below. See, e.g.,

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Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003) (considering inadmissible evidence at

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summary judgment because it “could be presented in an admissible form at trial”).

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II.

MERITS
Having resolved these objections, the court turns to the merits of Ms. Dwyer’s claims,

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beginning with her first and second claims under the ADA and the Rehabilitation Act. To prevail

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in these claims, Ms. Dwyer must prove, among other things, that “she is a qualified individual

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with a disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002); see also Zukle v.

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Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999) (“There is no significant

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difference in analysis of the rights and obligations created by the ADA and the Rehabilitation

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Act.”). A “disability” is a condition that “substantially limits one or more major life activities,”

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including “walking.” 42 U.S.C. § 12102(1), (2)(A); see also 29 U.S.C. § 705(9)(A)–(B).

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Ms. Dwyer must also prove she was “excluded from participation” in the City’s “services” or

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“otherwise discriminated against.” Lovell, 303 F.3d at 1052.

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Genuine disputes of fact prevent the court from concluding that either party is entitled to

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judgment as a matter of law on Ms. Dwyer’s first two claims. For the reasons set forth in the

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court’s previous order, a reasonable fact-finder could conclude that symptoms of multiple

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sclerosis substantially limit Ms. Dwyer’s ability to walk, but she has not shown this conclusion is

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the only reasonable interpretation of the evidence. See Prev. Order at 8 (Apr. 9, 2021), ECF

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No. 43. A fact-finder could also rely on Ms. Dwyer’s testimony about the sidewalk and

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photographs of its surface to decide it was a tripping hazard for people with Ms. Dwyer’s

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symptoms. See Dwyer Dep. at 80–83, ECF No. 53-4; Peck Decl. & Exs., ECF No. 53-2.

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Contrary to the City’s argument, the court may consider these photographs in the context of

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Ms. Dwyer’s opposition because they could be reduced to admissible form at trial. See, e.g.,

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Fraser, 342 F.3d at 1036–37 (considering inadmissible evidence at summary judgment because it

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“could be presented in an admissible form at trial”). The court cannot grant summary judgment

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to Ms. Dwyer in reliance on these photographs, however, because she has not cited evidence that

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would permit the court to conclude that they accurately depict the sidewalk’s undisputed

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condition on the day she fell. See Prev. Order at 9; Burch v. Regents of Univ. of Cal.,

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433 F. Supp. 2d 1110, 1121 (E.D. Cal. 2006). The court therefore denies the cross-motions for

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summary judgment with respect to Ms. Dwyer’s claims under the ADA and Rehabilitation Act.
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The court need not decide whether Ms. Dwyer has established or could establish the

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remaining elements of her claims under the ADA and Rehabilitation Act. Nor does the court

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consider now whether Ms. Dwyer might be entitled to damages under the ADA, as she has not

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established the City’s liability.

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The City also moves for judgment of Ms. Dwyer’s remaining claims, 3, 4, 5 and 6. It

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makes two arguments. First, it argues the operative complaint does not give adequate notice that

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Ms. Dwyer intended to pursue these claims against it. Mot. Summ. J. at 18–21. The court

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disagrees. Ms. Dwyer asserts these claims against all of the “defendants,” see First Am. Compl.

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¶¶ 39, 45, 52, 53, which she defines to include the City, id. ¶ 1, based on her allegations about the

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restaurant and surrounding “land” and “development,” id. These allegations suffice under the

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liberal pleading standard of Rule 8. The City does not claim it was unable to respond to

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Ms. Dwyer’s allegations or prepare a defense. See Pac. Coast Fed’n of Fishermen’s Ass’ns v.

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Glaser, 945 F.3d 1076, 1086–87 (9th Cir. 2019) (holding complaint gave “fair notice” of claims

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even though plaintiff had not asserted them “specifically,” because defendants “had enough

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information to respond”).

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Second, the City argues Ms. Dwyer has not stated a claim for premises liability, her sixth

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claim, because her complaint does not “identify a statutory basis for holding the City directly

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liable.” Mot. Summ. J. at 22. The City frames its arguments in terms of the pleadings, so the

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court construes its motion as one for judgment on the pleadings under Rule 12(c). See Randy

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Horn D.D.S., Inc. v. High Point Servs., Inc., No. 12-01604, 2013 WL 12114065, at *4 (C.D. Cal.

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Nov. 19, 2013) (construing motion for summary judgment as motion for judgment on pleadings

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given “the absence of admissible evidence”).

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The City’s argument rests on California appellate decisions requiring “statutory causes of

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action” to be “pleaded with particularity.” Susman v. City of Los Angeles, 269 Cal. App. 2d 803,

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809 (1969). Under the Federal Rules of Civil Procedure, some other federal district courts have

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determined “[p]laintiffs are not required to plead statutory causes of action with particularity,

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unless those statutory causes of action happen to sound in fraud or mistake.” Resendiz v. Cty. of

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Monterey, No. 14-05495, 2015 WL 4040439, at *7 (N.D. Cal. July 1, 2015). The California
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pleading rule therefore conflicts with the federal pleading rule and must yield to the federal rule

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under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). See Greene v. Wells Fargo Bank,

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N.A., No. 15-00048, 2015 WL 2159460, at *3 n.2 (N.D. Cal. May 7, 2015); Rios v. City of

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Fresno, No. 05-0644, 2005 WL 1829614, at *3 (E.D. Cal. July 25, 2005).

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The court acknowledges this is an unsettled question within the Ninth Circuit. Still other

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California federal district courts have enforced the California pleading requirement. See, e.g.,

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Lopez v. Cty. of Los Angeles, No. 15-01745, 2015 WL 3913263, at *3 (C.D. Cal. June 25, 2015);

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Sanwal v. Cty. of Sacramento, No. 11-0187, 2011 WL 2580409, at *5–6 (E.D. Cal. June 28,

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2011). These courts have done so, however, without considering whether the California rule is

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one of substance or procedure and whether it conflicts with the federal rule. This court agrees

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with those that have found the California Rule to be procedural and not to apply in federal courts.

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Whether a plaintiff must allege a specific fact in a pleading is not a substantive question of

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“timing” or “presentation,” as some of the courts finding otherwise seem to have held. See

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Sanwal, 2011 WL 2580409, at *5–6. Federal Rules of Civil Procedure 8, 9 and 12 expressly

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address the required contents of a complaint. See Resendiz, 2015 WL 4040439, at *7. These

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rules are applicable to all complaints, “irrespective of whether the substantive law at issue is state

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or federal.” Id. (quoting Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003));

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see also, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511 (2002) (distinguishing elements of

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claim and parties’ burdens of proof from federal pleading standards).

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This court’s conclusion does not render the California rules irrelevant. “[T]he standard

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for dismissal in state court is highly relevant.” Church of Scientology of Cal. v. Flynn, 744 F.2d

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694, 696 n.2 (9th Cir. 1984). That standard may still assist a federal court in determining whether

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a federal complaint’s factual allegations satisfy the requirements of the Federal Rules. See, e.g.,

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Jinadasa v. Brigham Young Univ.-Hawaii, No. 14-00441, 2015 WL 3407832, at *3 (D. Haw.

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May 27, 2015) (noting “the elements of a [claim] are a useful tool in assessing whether [the

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plaintiff] meets the requirement in Rule 8(a)” and collecting cases). Nor do the federal rules

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relieve Ms. Dwyer of her ultimate obligation to prove the City’s liability, to rebut its claim of

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immunity, and to satisfy the substantive requirements of the California Government Code. See,
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e.g., Van Ort v. Est. of Stanewich, 92 F.3d 831, 840 (9th Cir. 1996) (“In California, a

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governmental entity can only be sued in tort pursuant to an authorizing statute or enactment.”).

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The City’s motion does not raise these questions. It argues only that the complaint does not state

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a claim because it does not plead with particularity statutory duties. See Mot. Summ. J. at 21–23;

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Reply at 11–12. The court finds the complaint gives the City fair notice of the claims against it

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and permits the City to prepare its defense. Its motion is denied.

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III.

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CONCLUSION
In conclusion, (1) the City’s request to strike or disregard Ms. Dwyer’s cross-motion is

denied; (2) the City’s objection to the declaration by Dr. Thomas McKnight is sustained for

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purposes of the current motions only; and its objection to the declaration of John Peck is

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overruled in part; (3) the cross-motions for summary judgment at ECF Nos. 48 and 53 are both

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denied; (4) and the final pretrial conference is reset for July 29, 2022 at 10:00 a.m. before the

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undersigned, with a joint pretrial statement under Local Rule 281 due three weeks in advance.

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IT IS SO ORDERED.
DATED: June 8, 2022.

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