MEMORANDUM AND ORDER RE: MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO EXCLUDE EXPERT WITNESS AND STRIKE DECLARATIONS
After unsuccessfully attempting to access the restroom at a 7-Eleven convenience store in Redding, California, plaintiff Roger Stevey initiated this action to enforce the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and corresponding state laws. Presently before the court are plaintiff's motion and defendants 7-Eleven, Inc., Salinder Kaur Kang, and Satvinder Singh Kang's cross-motion for summary judgment and plaintiff's motion to exclude defendants' expert witness and strike particular declarations that defendants submitted.
I. Factual and Procedural Background
At a lake in 1997, plaintiff overshot his landing when performing a forward flip on a rope swing and suffered severe physical injuries that resulted in paralysis. (Singleton Decl. Ex. A ("Stevey Dep.") 7:5-23.) Since that time, plaintiff has been a quadriplegic and required the assistance of a wheelchair. (Id.) On January 16, 2008, plaintiff spent the day at Whiskeytown Lake with his wife and son and, on his way home that evening, stopped at the 7-Eleven convenience store owned and operated by defendants and located at 1860 Eureka Way in Redding, California. (Id. at 5:7-15, 6:3-7, 10:11-17; Compl. ¶ 5.) The 7-Eleven is about 17.2 miles from plaintiff's home in Anderson, California (Grabowski Decl. Ex. A), and is "one of the stores" plaintiff stops at when driving to or from Whiskeytown Lake. (Stevey Dep. 6:2-5.) Prior to his visit in January 2008, plaintiff's family had stopped at the 7-Eleven on one prior occasion, but plaintiff remained in his van while a member of his family went in the store to purchase beer and chips. (Id. at. 11:4-7, 15:24-25, 16:1-6.)
Upon arriving at the 7-Eleven on the evening of January 16, 2008, plaintiff successfully maneuvered through the aisles in the store to select some donuts and "junk food." (Id. at 19-7-16.) After paying for his items, plaintiff asked the cashier for the location of the restroom. (Id. at 20:12-22.) Plaintiff then proceeded in the direction the cashier indicated and, after entering a hallway and passing a door that appeared to give access to a storage room, he found the bathroom door. (Id. at 22:1-6.) Plaintiff was able to maneuver about a quarter of the way into the single occupant restroom, but was prevented from completely entering it or reaching the toilet because of "boxes and toilet paper, metal cabinets, mops [and] every other thing" that was stored in the bathroom. (Id. at 22:1-6, 23:20-24, 24:17-21.) Plaintiff told the cashier that he could not use the bathroom because of the "stuff... crammed up in" it, but the cashier apparently did not say or do "much of anything." (Id. at 23:25-24:7, 25.) Plaintiff indicates that he felt his "blood pressure rising[ ] and throbbing in his neck," and he proceeded to exit the store and relieve himself on the ground behind the 7-Eleven. (Id. at 25:10-11, 30:19-24.)
Plaintiff has not returned to the 7-Eleven since the visit giving rise to this suit, and he does not currently have plans to go back to the store. (Id. at 33:18-34:2.) At his deposition, he testified that he "[m]ight go [to the 7-Eleven] in the summertime" because he "stop[s] at whatever is on the way[ to Whiskeytown Lake,] especially when [he is] in a hurry to go get in the water when it's a hundred degrees." (Id. at 33:21-34:2.)
After his inability to access the restroom at the 7-Eleven, plaintiff wrote a letter expressing his concern and mailed it to 7-Eleven on three occasions, but did not receive a response. (Id. at 40:4-9, 48:19-25.) On August 25, 2008, plaintiff initiated this action against defendants, seeking injunctive relief under the ADA and injunctive relief and damages pursuant to California Health and Safety Code section 19955, California's Disabled Person's Act, Cal. Civ. Code §§ 54 et seq., and California's Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq.
On April 1, 2009, plaintiff moved for summary judgment and, on May 12, 2009, defendants opposed plaintiff's motion and filed a cross-motion for summary judgment. In their respective motions for summary judgment, the parties dispute (1) whether plaintiff has Article III standing; (2) whether plaintiff's claims have been rendered moot by defendants' recent alterations to the 7-Eleven; (3) whether the 7-Eleven is subject to the "readily achievable" standard governing existing facilities or the "maximum extent feasible" standard governing new or altered facilities, see generally Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001); and (4) whether the alterations defendants have recently made to the 7-Eleven comply with the applicable federal and state standards. In response to evidence defendants submitted, plaintiff also filed a motion to exclude defendants' expert witness and strike the declarations of Neal Casper and Olan Smith.*fn1
Summary judgment is proper "if 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 judgment as a matter of law."
Fed. R. Civ. P. 56(c). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial.
Once the moving party meets its initial burden, the non-moving party "may not rely merely on allegations or denials in its own pleading," but must go beyond the pleadings and, "by affidavits or as otherwise provided in [Rule 56,] set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324; Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). In its inquiry, the court must view any inferences drawn from the underlying facts in the light most favorable to the nonmoving party, but may not engage in credibility determinations or weigh the evidence. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When, as in this case, parties submit cross-motions for summary judgment, the court must "evaluate each motion separately, giving the nonmoving party in each instance the benefit of all reasonable inferences." ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003), cert. denied, 540 U.S. 1110 (2004); accord Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).
"Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals." PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). "To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life," including public accommodations. Id. at 675. Under Title III of the ADA, a plaintiff who has been discriminated against "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation" may enforce the ADA through a private suit for an injunction and attorney's fees. 42 U.S.C. § 12182(a); see also Wander v. Kaus, 304 F.3d 856, ...