Strong v. Johnson

Filing 26

ORDER Granting Motion to Continue Stay; and Directions to Parties Regarding the Court's Expectations. Signed by Judge Larry Alan Burns on 7/7/2017.(lrf)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MATT STRONG, 12 CASE NOS. 16cv1289-LAB (JMA) and 16cv2524-LAB (JMA) Plaintiff, vs. 13 ORDER GRANTING MOTION TO CONTINUE STAY; AND 14 15 DIANA E. JOHNSON, TRUSTEE OF THE DIANA E. JOHNSON TRUST DATED JULY 25, 2013, DIRECTIONS TO PARTIES REGARDING THE COURT’S EXPECTATIONS 16 17 Defendant. ________________________________ 18 DOROTHY WHITE, Plaintiff, 19 vs. 20 21 22 DIANE E. JOHNSON, TRUSTEE OF THE DIANE E. JOHNSON TRUST DATED JULY 25, 2013, Defendant. 23 24 25 The Court stayed these consolidated actions and ordered the parties to jointly file a 26 status report by July 7. The report was to have shown whether conditions in the Miss Donuts 27 parking lot at 9729 Camp Road in Spring Valley were now ADA-compliant. 28 /// -1- 16cv1289/16CV2524 1 The parties instead each filed their own status report. Defendant hired a contractor 2 to resurface the parking space and to remediate ADA violations. It appears Plaintiff’s 3 counsel then visited the facility and looked at the parking lot. Plaintiff now agrees the 4 signage complies with the ADA. But the parties disagree about whether the slope of the 5 parking space is ADA-compliant. 6 According to both reports, an attorney from Plaintiff’s firm who admittedly is a non- 7 expert measured the slope using only a 24-inch digital level. Plaintiff’s report suggests this 8 is the method recommended by the government. That is not accurate; the government 9 recommends several methods, which include hiring a surveyor or using a digital slope meter 10 or other sophisticated electronic instrument. A less-accurate option involves using a 11 carpenter’s level. But this method requires use of a tape measure and bracing the level with 12 an object such as a pencil.1 Defendant says its contractor’s work is still under warranty, 13 implying that Defendant stands ready to make any further changes that are needed, as long 14 as Plaintiff is prepared to show the contractor what is wrong. 15 The Court’s orders contemplated that the parties would rely on measurements or 16 observations by someone with expertise in determining ADA compliance. See Rush v. 17 Islands Restaurants, LP, 2012 WL 4849016, at *2 and n.1 (S.D. Cal., Oct. 11, 2012) 18 (observing that it was much more appropriate for a disability claimant to hire someone with 19 training in surveying, architecture, construction, or some allied field rather than having an 20 attorney measure parking lot slope using a carpenter’s level). 21 The Court also expects Plaintiff’s counsel to send someone to inspect and measure 22 the parking lot who has experience and training in such matters. If the parking lot is still out 23 of compliance, that person should be able to demonstrate to Defendant’s contractor what 24 is wrong, so that Defendant can get the work redone. Or if it is now ADA-compliant, the 25 person Plaintiff designates should confirm that so that this case can continue towards 26 27 28 1 See dimensional-tolerances/part-iii-appendices (“Carpenter's levels are used for setting level and plumb only. To determine angles the level must be used with a measuring tape to determine slope.”). -2- 16cv1289/16CV2524 1 resolution. The parties are directed to work together, to avoid the need for any further 2 extensions or parallel filings. 3 The joint motion is GRANTED in part. No later than 14 calendar days from the date 4 this order is issued, Plaintiff shall designate someone with appropriate training in 5 determining a parking lot’s compliance with the ADA, who shall promptly meet and confer 6 with Defendant’s contractor. No later than 30 days from the date this order is issued, the 7 parties shall submit a joint status report giving the current status of the parking lot, as 8 previously ordered. 9 10 IT IS SO ORDERED. DATED: July 7, 2017 11 12 HONORABLE LARRY ALAN BURNS United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 16cv1289/16CV2524

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