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Matt Strong v. Valdez Fine Foods Dba Peter Piper

February 4, 2011


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

[Doc.No. 35] [Doc. No. 56] [Doc. No. 32]


Currently before the Court are three motions: (1) Plaintiff Matt Strong's motion for summary judgment; (2) Defendants Valdez Fine Foods (doing business as Peter Piper Pizza #223) and Vestar California XVII, LLC's motion for summary judgment; and (3) Plaintiff's motion for leave to file a first amended complaint. The Court in its discretion found each of the above motions suitable for decision on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1).


The following facts are not reasonably in dispute. Plaintiff Matt Strong is a C-5 quadriplegic who is unable to walk or stand. [Pl.'s Stmt. of Undisputed Facts, Doc. No. 32-2, Fact Nos. 1-2.] Plaintiff requires the use of a wheelchair to travel about in public. [Id. at Fact No. 2.] Defendant Valdez Fine Foods, Inc. owns Peter Piper Pizza #223,*fn1 located at 2983 Jamacha Road, El Cajon, California 92019. [Defs's Resp. to Pl.'s Stmt of Facts, Doc. No. 43, Fact No. 4.] Peter Piper Pizza was built in 2000-2001. [Id. at Fact No. 31.] Defendant Vestar California XVII, Inc. ("Vestar") owns the shopping wherein Peter Piper Pizza is located. [Id. at Fact No. 4.]

On April 29, 2009 and June 9, 2009, Plaintiff patronized Peter Piper Pizza. [Pl.'s Resp. to Defs's Stmt. of Undisputed Facts, Doc. No. 45-3, Fact Nos. 2-3.] Shortly thereafter on June 12, 2009, Plaintiff filed a complaint alleging he encountered multiple barriers during his visit to the restaurant that "interfered with-if not outright denied-his ability to use and enjoy the goods, services, privileges, and accommodations offered at the facility." [Cmplt., Doc. No. 1, ¶10.]*fn2

Plaintiff provided a non-exclusive list of 10 barriers that allegedly exist at the restaurant:

1. The disabled parking spaces have slopes that exceed 2.0% 2. The adjacent access aisles have slopes that exceed 2.0% 3. There is no International Symbol of Accessibility 4. The slope of the sidewalk exceeds 2.0% 5. There is no seating designated as being accessible to the disabled 6. There is no seating accessible to the disabled 7. There is no handle mounted below the lock of the water closet stall door 8. There is insufficient clear floor space in front of the water closet 9. The pipes underneath the lavatory are improperly and/or incompletely wrapped 10. There is insufficient strike side clearance when exiting the restroom [Id.] The Complaint further asserts Plaintiff was, and continues to be, deterred from visiting Peter Piper Pizza because of the threat of future injury created by the barriers. [Id. at ¶11.] Plaintiff admits, however, that he has visited Peter Piper Pizza several times since his Complaint was filed. [Amended Decl. of Strong, Doc. No. 45-2, ¶4; Strong Depo., Doc. No. 42-2, Exh. A, p.16.]

Based on the barriers allegedly present in and around Peter Piper Pizza, Plaintiff asserts the following four causes of action: (1) violations of the Americans with Disabilities Act of 1990; (2) violations of California's Disabled Persons Act (Cal. Civ. Code §§ 54 et seq.); (3) violations of California's Unruh Civil Rights Act (Cal. Civ. Code §§ 51 et seq.); and (4) violations of California's Health and Safety Code §§ 19955 et seq. [See generally Cmplt.]

In due course, Magistrate Judge Adler issued a Scheduling Order which set forth the following pertinent deadlines:

3. All expert disclosures required by Fed. R. Civ. P. 26(a) shall be served on all parties on or before March 19, 2010. Any contradictory or rebuttal information shall be disclosed on or before April 23, 2010. . . . Please be advised that failure to comply with this section or any other discovery order of the Court may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on the introduction of experts or other designated matters in evidence.

[Doc. No. 23, ¶3 (emphasis in original).] Defendants timely disclosed their expert Philippe Heller, and the expert report prepared from Heller's site inspection of Peter Piper Pizza. Plaintiff, however, did not designate any expert by March 19, 2010. [Doc. No. 42-5, Exh. D.] Instead, on April 23, 2010-the deadline to submit rebuttal information-Plaintiff designated Reed Settle as his rebuttal expert, and provided a rebuttal to Heller's expert report. [Doc. No. 42-7, Exh F.] Settle's rebuttal report identifies 24 alleged barriers in and around Peter Piper Pizza, only some of which appear in Plaintiff's Complaint.*fn3 [Id.; Pl.'s MSJ, Doc. No. 32-1.]

Plaintiff moves for summary judgment in his favor, as to all 24 asserted barriers. [Pl.'s MSJ, Doc. No. 32-1, p.3-5, 9.] Defendants concurrently move for judgment in their favor, asserting Plaintiff lacks standing to assert the barriers not identified in his Complaint, and that Plaintiff has no admissible evidence to support his ADA and state-based claims. [Defs's MSJ, Doc. No. 35.]


Pursuant to Federal Rule of Civil Procedure 56(c), a party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Hubbard v. 7-Eleven, 433 F. Supp. 2d 1134, 1139 (S.D. Cal. 2006) (citing Fed. R. Civ. P. 56(c)(2)). It is beyond dispute that "[t]he moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007) (citation omitted). "Once the moving party meets its initial burden, . . . the burden shifts to the nonmoving party to set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks and citations omitted).

A mere scintilla of evidence is not sufficient "to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some 'significant probative evidence tending to support the complaint.'" Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (quoting Anderson, 477 U.S. at 249, 252). Thus, in opposing a summary judgment motion it is not enough to simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). However, when assessing the record to determine whether there is a "genuine issue for trial," the court must "view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in h[is] favor." Horphag, 475 F.3d at 1035 (citation omitted). On summary judgment, the Court may not make credibility determinations; nor may it weigh conflicting evidence. See Anderson, 477 U.S. at 255. Thus, as framed by the Supreme Court, the ultimate question on a summary judgment motion is whether the evidence "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.



As a preliminary matter, the Court considers Defendants' objections to and motion to strike the declaration of Reed Settle and his accompanying rebuttal expert report submitted in support of Plaintiff's motion for summary judgment. [Doc. No. 44.] Defendants argue the Court should exclude Settle's declaration and report because Plaintiff did not timely disclose Settle as an expert by March 19, 2010, as required by the Court's Scheduling Order. Nor did Plaintiff move the Court to amend the Scheduling Order or otherwise seek leave to designate Settle after the deadline to do so expired. Rather, Plaintiff introduced Settle-for the first time-on April 23, 2010, solely as a rebuttal expert. [Doc. No. 32-4, Exh. B.] Defendants therefore assert that Settle's testimony and report cannot be introduced to support Plaintiff's motion for summary judgment or carry his burden at trial.

With respect to Defendants' first argument, the Court agrees that Settle's declaration and rebuttal report are not admissible to support Plaintiff's motion for summary judgment, except for rebuttal purposes. Plaintiff's decision to designate Settle solely as a rebuttal expert necessarily limits how Plaintiff may utilize Settle's testimony. Federal Rule of Civil Procedure 26(a)(2)(A) requires that, each "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." Ordinarily, each "disclosure must be accompanied by a written report-prepared and signed by the witness-if that witness is one retained or specially employed to provide expert testimony in the case . . . ." Fed.R. Civ. P. 26(a)(2)(B). Rule 26(a)(2)(C) expressly authorizes courts to set scheduling deadlines for the parties' expert disclosures. Fed. R. Civ. P. 26(a)(2)(C) ("A party must make these disclosures at the times and in the sequence that the court orders."). Here, the ...

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