United States District Court, N.D. California, San Jose Division
ORDER SUBMITTING PLAINTIFF'S MOTION TO COMPEL
FURTHER SITE INSPECTION WITHOUT ORAL ARGUMENT AND VACATING
HEARING; AND GRANTING MOTION [Re: ECF 16]
LABSON FREEMAN UNITED STATES DISTRICT JUDGE
disability discrimination action, Plaintiff Dmitry
Yanushkevich alleges that he lost his sight as a child and
thus is a “physically disabled person” and a
“physically handicapped person” as those terms
are used in federal and state law. See Compl. ¶
6. He sues Fry’s Electronics, Inc.
(“Fry’s”) under the federal American with
Disabilities Act (“ADA”) and state law, alleging
that on multiple occasions he encountered architectural
barriers at the Fry’s Electronics retail store
(“the Store”) located in Palo Alto,
California. Compl. ¶¶ 14-19.
this Court’s General Order 56, the parties and their
counsel, accompanied by experts if the parties so elect, must
conduct a joint inspection of the premises that are the
subject of an ADA claim. The joint inspection of the Store
and its adjacent parking lot took place on March 11, 2016.
During the inspection, Plaintiff’s expert, Bassam
Altwal, was not permitted to open an emergency door and thus
was not able to determine the pressure required to open the
emergency door or its closing speed. The post-inspection
correspondence between Plaintiff’s counsel and
Fry’s counsel, as well as the declaration of
Fry’s expert, Kim Blackseth, reveals that Mr. Blackseth
made a unilateral determination that Mr. Altwal did not
“need” to open the emergency door. See
Correspondence, Exhs. A-C to Karbelashvli Decl., ECF 16-2,
16-3, 16-4; Blackseth Decl., Exh. 21. Mr. Blackseth voiced
that opinion to Fry’s management personnel, who then
refused to disable the alarm on the emergency door to permit
Mr. Altwal to open it. Blackseth Decl. ¶ 5, ECF 21.
March 26, 2016, Plaintiff filed the present motion to compel
a further site inspection so that Mr. Altwal can fully
inspect the emergency door. Plaintiff noticed the motion for
hearing on July 28, 2016, but the caption of the motion
contained the phrase “Administrative Relief.”
See Pl.’s Mot., ECF 16. Fry’s responded
to the motion as though it were an administrative motion, and
complained that Fry’s was not given sufficient time to
respond. See Def.’s Orig. Opp., ECF 17. Given
the confusion regarding the nature of Plaintiff’s
motion, the Court granted Fry’s leave to file a
substitute opposition brief, replacing its original
opposition brief in its entirety, on or before May 12, 2016.
See Order re Briefing on Motion to Compel Site
Inspection, ECF 19. The Court also granted Plaintiff leave to
file a reply to any substitute opposition brief on or before
May 19, 2016. Id. Fry’s filed its substitute
brief, erroneously captioned as a “Supplemental
Opposition, ” on May 12, 2016, see
Def.’s Substitute Opp., ECF 20, and Plaintiff filed a
reply brief on May 13, 2016, see Pl.’s Reply,
reviewed the parties’ briefing, the Court concludes
that Plaintiff’s motion is appropriate for disposition
without oral argument. See Civ. L.R. 7-1(b).
Accordingly, the motion to compel further site inspection is
hereby SUBMITTED for decision and the hearing set for July
28, 2016 is VACATED.
Court has no difficulty determining that Plaintiff is
entitled to a further site inspection, such inspection to
include opening the emergency door. Under Ninth Circuit law,
“[a]n ADA plaintiff who has Article III standing as a
result of at least one barrier at a place of public
accommodation may, in one suit, permissibly challenge all
barriers in that public accommodation that are related to his
or her specific disability.” Chapman v. Pier 1
Imports (U.S.) Inc., 631 F.3d 939, 950-51 (9th Cir.
2011) (internal quotation marks and citation omitted). An ADA
plaintiff may sue based upon barriers that he himself has not
encountered but that were “identified in his
expert’s site inspections.” Doran v.
7-Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir. 2008).
Thus if the emergency door constitutes a barrier, Plaintiff
may challenge it in this lawsuit even though he admittedly
has not used the emergency door.
otherwise limited by a court order, parties “may obtain
discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the
needs of the case, considering the importance of the issues
at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.”
Fed.R.Civ.P. 26(b)(1) (as amended eff. Dec. 1, 2015).
“Information within this scope of discovery need not be
admissible in evidence to be discoverable.”
argues that the “burden” of disarming the
emergency door alarm to permit it to be opened for inspection
“is outweighed by the relevancy” of the discovery
that would have been obtained by a full inspection of the
door. In support of that argument, Fry’s presents the
declaration of its expert, Mr. Blackseth, who opines that
under California law the Store was required to have only one
accessible means of egress; the store’s “main
door” satisfied the code section; and the emergency
door was not a primary source of ingress and egress.
Blackseth Decl. ¶ 6. Based on those facts, Mr. Blackseth
concluded that, “[i]n my professional opinion, there
was no need for Plaintiffs to require disarming a fire escape
door because access was met by the use of another existdoor
[sic]-namely the front entrance.” Id. ¶
Court is unpersuaded that the “burden” of
disarming the emergency door alarm outweighed the likely
benefit of a full inspection of the door. As discussed above,
if the emergency door constitutes a barrier - for example,
because it requires too much pressure to open or closes too
quickly - Plaintiff has standing to assert such barrier in
this lawsuit, even if it is discovered for the first time
during the site inspection. Plaintiff was not required to
accept Mr. Blackseth’s opinion that the Store’s
“main door” satisfied all legal requirements. In
the event that Plaintiff - after completing discovery -
asserts claims based on the emergency door, Fry’s of
course may defend based on the legal argument raised in Mr.
Blackseth’s declaration. However, assertion of that
legal defense during a site inspection was
completely inappropriate. Fry’s was not entitled to
limit Plaintiffs inspection of the premises based upon its
own unilateral determination regarding the merits of any
potential claims Plaintiff might bring. This is particularly
true where, as here, the “burden” of the
discovery was quite minimal, and would have required that the
door alarm be disabled only briefly. Fry’s has not
cited any authorities supporting its “burden”
argument under these circumstances.
Plaintiffs motion to compel a further site inspection is
GRANTED. During the further inspection, the alarm on the
emergency door shall be disabled to permit full inspection of
the emergency door, including opening and closing the door.
The further site inspection shall be completed on or before
August 21, 2016.
 The complaint also names as defendants
SI43, LLC and SI11, LLC on the basis that they
“purchased and/or took possessory control of the
premises now known as Fry’s Electronics