Argued and Submitted, Pasadena, California February
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Central District of California. D.C. No. 2:10-cv-04680-PSG-PJW, D.C. No. 2:10-cv-08952-PSG-PJW. Philip S. Gutierrez, District Judge, Presiding.
Americans with Disabilities Act
The panel affirmed in part and vacated in part the district court's judgment after a bench trial in an action under the Americans with Disabilities Act and California state law.
Vacating the district court's judgment regarding an alleged violation of an ADA requirement that a store checkout counter be at most thirty-six inches high, the panel held that under Strong v. Valdez Fine Foods, 724 F.3d 1042 (9th Cir. 2013), the plaintiff was not required to present expert evidence of the counter height. The panel held that the store's provision of a clipboard was not an " equivalent facilitation" making the counter " accessible" under California law.
Following Kohler v. Flava Enters., Inc., 779 F.3d 1016, 2015 WL 968232 (9th Cir. Mar. 6, 2015), the panel held that a dressing room bench that was sixty inches long, rather than forty-eight inches, as required by the 1991 ADA Accessibility Guidelines, qualified as an equivalent facilitation because the plaintiff was able to make a parallel transfer onto it from a wheelchair.
The panel affirmed the district court's ruling that a claim of blocked aisles did not constitute an ADA violation.
The panel affirmed the district court's denial of the defendant's motion for attorneys' fees under section 55 of the California Disabled Persons Act. The panel held that under Hubbard v. SoBreck, LLC, 554 F.3d 742 (9th Cir. 2009), section 55 was preempted by the ADA's provision of fees for prevailing defendants only in rare circumstances.
Scottlyn J. Hubbard IV (argued), Law Offices of Lynn Hubbard, Chico, California, for Plaintiff-Appellant/Cross-Appellee.
Jon D. Meer (argued), Myra B. Villamor, and Andrew C. Crane, Seyfarth Shaw LLP, Los Angeles, California, for Defendant-Appellee/Cross-Appellant.
Before: Stephen Reinhardt and Ronald M. Gould, Circuit Judges, and J. Frederick Motz,[*] Senior ...