White v. Johnson

Filing 30

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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MATT STRONG,

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CASE NOS. 16cv1289-LAB (JMA) and
16cv2524-LAB (JMA)
Plaintiff,

vs.

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ORDER GRANTING MOTION TO
CONTINUE STAY; AND

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DIANA E. JOHNSON, TRUSTEE OF
THE DIANA E. JOHNSON TRUST
DATED JULY 25, 2013,

DIRECTIONS TO PARTIES
REGARDING THE COURT’S
EXPECTATIONS

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Defendant.
________________________________

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DOROTHY WHITE,
Plaintiff,

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vs.

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DIANE E. JOHNSON, TRUSTEE OF
THE DIANE E. JOHNSON TRUST
DATED JULY 25, 2013,
Defendant.

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The Court stayed these consolidated actions and ordered the parties to jointly file a

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status report by July 7. The report was to have shown whether conditions in the Miss Donuts

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parking lot at 9729 Camp Road in Spring Valley were now ADA-compliant.

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///
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16cv1289/16CV2524

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The parties instead each filed their own status report. Defendant hired a contractor

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to resurface the parking space and to remediate ADA violations. It appears Plaintiff’s

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counsel then visited the facility and looked at the parking lot. Plaintiff now agrees the

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signage complies with the ADA. But the parties disagree about whether the slope of the

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parking space is ADA-compliant.

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According to both reports, an attorney from Plaintiff’s firm who admittedly is a non-

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expert measured the slope using only a 24-inch digital level. Plaintiff’s report suggests this

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is the method recommended by the government. That is not accurate; the government

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recommends several methods, which include hiring a surveyor or using a digital slope meter

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or other sophisticated electronic instrument.

A less-accurate option involves using a

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carpenter’s level. But this method requires use of a tape measure and bracing the level with

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an object such as a pencil.1 Defendant says its contractor’s work is still under warranty,

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implying that Defendant stands ready to make any further changes that are needed, as long

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as Plaintiff is prepared to show the contractor what is wrong.

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The Court’s orders contemplated that the parties would rely on measurements or

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observations by someone with expertise in determining ADA compliance. See Rush v.

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Islands Restaurants, LP, 2012 WL 4849016, at *2 and n.1 (S.D. Cal., Oct. 11, 2012)

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(observing that it was much more appropriate for a disability claimant to hire someone with

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training in surveying, architecture, construction, or some allied field rather than having an

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attorney measure parking lot slope using a carpenter’s level).

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The Court also expects Plaintiff’s counsel to send someone to inspect and measure

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the parking lot who has experience and training in such matters. If the parking lot is still out

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of compliance, that person should be able to demonstrate to Defendant’s contractor what

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is wrong, so that Defendant can get the work redone. Or if it is now ADA-compliant, the

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person Plaintiff designates should confirm that so that this case can continue towards

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See
https://www.access-board.gov/research/completed-research/
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.”).
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16cv1289/16CV2524

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resolution. The parties are directed to work together, to avoid the need for any further

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extensions or parallel filings.

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The joint motion is GRANTED in part. No later than 14 calendar days from the date

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this order is issued, Plaintiff shall designate someone with appropriate training in

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determining a parking lot’s compliance with the ADA, who shall promptly meet and confer

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with Defendant’s contractor. No later than 30 days from the date this order is issued, the

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parties shall submit a joint status report giving the current status of the parking lot, as

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previously ordered.

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IT IS SO ORDERED.
DATED: July 7, 2017

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HONORABLE LARRY ALAN BURNS
United States District Judge

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16cv1289/16CV2524