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Crandall v. Starbucks Corp.

United States District Court, N.D. California

April 5, 2017

CRAIG CRANDALL, Plaintiff,
v.
STARBUCKS CORPORATION, Defendant.

          ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 64, 65

          JACQUELINE SCOTT CORLEY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Craig Crandall, an individual who requires a wheelchair for mobility, sues for disability discrimination in connection with access barriers he encountered when visiting a Starbucks cafe in San Jose, California. In his First Amended Complaint (“FAC”), Plaintiff alleges that Defendant violated the Americans with Disabilities Act of 1990 (“ADA”), the Unruh Act, and the California Health and Safety Code. (Dkt. No. 37.[1]) Now pending before the Court are the parties' cross-motions for summary judgment. (Dkt. Nos. 64, 65.) Having considered the parties' submissions, and having had the benefit of oral argument on March 23, 2017, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion and DENIES IN PART and GRANTS IN PART Defendant's motion.

         BACKGROUND

         I. Summary Judgment Evidence

         Plaintiff became a paraplegic due to injuries from a traffic accident and, as a result, is unable to walk and uses a manual wheelchair for mobility. (Dkt. No. 64-1 ¶ 2; Dkt. No. 64-10 ¶ 1.) He has lived in the San Jose area since 2000. (See Dkt. No. 68-3.) Defendant operates Starbucks No. 5262 (the “Starbucks”), a public accommodation located at 6471 Almaden Expressway, Suite 90, in San Jose. (Dkt. No. 64-10 ¶¶ 2, 4.) The Starbucks opened in May 1996. (Dkt. No. 66-7 at 2-3.) On January 17, 2015, Plaintiff visited the Starbucks for the first time to buy coffee. (Dkt. No. 64-1 ¶ 5; Dkt. No. 66-2 at 11.) While he was able to buy a coffee on that visit (Dkt. No. 64-1 ¶ 5; Dkt. No. 62-4 at 4), he alleges that he experienced two access barriers that denied him full and fair enjoyment of the Starbucks.

         The first access barrier Plaintiff alleged in the FAC was difficulty reaching the transaction counter. (Dkt. No. 37 ¶ 10.) First, there were merchandise displays in the middle of the store floor that divided the floor space in two and created traffic-flow problems, which is often very busy and full of customers. (See Dkt. No. 64-10 at 86.) At his deposition, Plaintiff testified that it “was difficult for people to get past [him]” because of the displays. (Dkt. No. 66-2 at 10.) He avers that he had difficulty getting around “because merchandise and displays were placed in the center of the store such that they created a bottleneck for all of the customers who were waiting to order and pick up their drinks[, ]” which meant that “[t]he path through the store was not wide enough for [him] to get through in [his] wheelchair without asking people to move.” (Dkt. No. 64-1 ¶ 5.) There was also merchandise displayed at the transaction counter that blocked access to the cashier. (See Dkt. No. 66-2 at 10; Dkt. No. 64-1 ¶ 6.) The combined effect of these two displays made it difficult for Plaintiff to reach the counter. (Dkt. No. 66-2 at 13 (“The baskets in the center of the store and the point-of-sale displays made it for [sic] a very tight fit, especially with other people walking around.”).) Plaintiff estimates that the path of travel to the merchandise counter was less than 27 inches wide. (Dkt. No. 70-1 ¶ 5.)

         Private investigator Brian Ferris visited the Starbucks on March 31 and April 7, 2015. (Dkt. No. 64-5 ¶ 4.) The merchandise display was still in the center of the store on those visits. (Id. ¶ 7.) Based on measurements and photographs he took, and his own observations-discussed in further detail below in the context of each barrier alleged-Mr. Ferris concluded that the path of travel to the cashier was limited to 20 or 25 inches when customers were present in the store and the path of travel on the other side of the merchandise display was equally limited. (Id.; see also Dkt. Nos. 64-6 at 6, 10, 12.) Sometime after Plaintiff filed suit, the merchandise display was moved from the middle of the open floor space to a location against the wall across from the cashier's counter. (Dkt. No. 64-10 at 6.)

         The second access barrier Plaintiff alleges that he experienced was a barrier in the path of travel to the men's restroom. (Dkt. No. 37 ¶ 10.) Plaintiff avers that he “was unable to locate an accessible route of travel to the restroom” because his “route was blocked by tables and chairs being used by other patrons, ” and the space in between the tables and chairs and the drink pick-up counter “was not wide enough for [his] wheelchair to fit through.” (Dkt. No. 64-1 ¶ 7.) Specifically, one of the three chairs for the table adjacent to the drink pick-up counter obstructed the path and Plaintiff had to ask the patrons sitting at the particular table to stand and move a chair to permit him to pass. (Dkt. No. 66-2 at 14-15.) Plaintiff recalls that “the space between the table/chairs and the nearby pick-up counter was no more than two feet wide, and thus not wide enough for [his] wheelchair to get through.” (Dkt. No. 64-1 ¶ 7.) Plaintiff estimates that the path of travel to the men's bathroom was no more than 24 inches wide. (Dkt. No. 70-1 ¶ 7.) Mr. Ferris avers that the path of travel to the restroom-namely, the space between the pick-up counter and the tables and chairs-was limited to 26 to 29 inches when there were no customers waiting for drinks and even less or no space when customers were present. (Dkt. No. 64-5 ¶ 8; Dkt. No. 64-6 at 14, 16-17, 19, 21.)

         The table adjacent to the pick-up counter was removed sometime after Plaintiff filed suit. (Dkt. No. 64-10 at 6; Dkt. No. 66-4 at 5.) One Starbucks employee testified that it was removed because it was broken, but Starbucks Facilities Manager Chelsea Austin testified that she asked the store to remove it because it was creating a bottleneck of customers. (Dkt. No. 64-10 at 8; Dkt. No. 66-5 at 3.) As of September 30, 2016, the high-top tables on the path to the men's restroom have only two chairs at each table, not three as Plaintiff experienced. (Dkt. No. 65-1 at 15; Dkt. No. 67 ¶ 11.) Ms. Austin notes that there is no set policy about permitting customers to move furniture inside of the stores, but Starbucks customers often move tables and chairs around. (Dkt. No. 66-3 at 3; Dkt. No. 64-10 at 7.) Starbucks employees are trained to reposition chairs back where they were at the beginning of the day-i.e., to push the chairs back into the table so they do not block the path of travel-though they are not given any instruction about how much space to leave between the tables. (Dkt. No. 66-3 at 4-5; Dkt. No. 66-4 at 3-4; Dkt. No. 66-5 at 3; Dkt. No. 66-6 at 4.) They perform sweeps of the store every eight to ten minutes checking for, among other things, out of place furniture, but they only reposition furniture once customers are finished using it. (Dkt. No. 66-3 at 4; Dkt. No. 66-5 at 4.)

         Plaintiff lives ten miles from the Starbucks and visits it “sometimes when [he] is in that area and feel[s] like having a coffee.” (Dkt. No. 64-1 ¶ 10.) At his deposition, he stated that he had “possibly” been to the Starbucks more than five times, but the visit alleged in the FAC was his first visit and the last visit was six months before his deposition. (Dkt. No. 66-2 at 9, 11.) In his declaration, he avers that he has “been to this [Starbucks] location probably between five and ten times” but only remembers experiencing the access barriers twice. (Dkt. No. 64-10 ¶ 10; see also Dkt. No. 70-1 ¶ 10.) He further avers that he has returned to the Starbucks several times since the visit alleged in the complaint, including one time when he chose to stay in his car when his wife went to get his coffee because he remembered that the store was too difficult to navigate. (Dkt. No. 64-10 ¶ 10; Dkt. No. 70-1 ¶ 10.) Plaintiff avers that the Starbucks is located about one mile from his family's church, where his children attend summer programs. (Dkt. No. 70-1 ¶ 11.) When Plaintiff drops his children off at the summer programs, he often needs to do work at a place with WiFi; he would like that to be the Starbucks. (Dkt. No. 70-1 ¶ 12.) In addition, the Starbucks is near a restaurant Plaintiff and his family like and frequent; Plaintiff does not like the coffee there and would like to buy coffee at Starbucks after lunch. (Dkt. No. 70-1 ¶ 13.) According to Plaintiff, he would return to the Starbucks if the barriers he encountered-and a number of other barriers identified by Plaintiff's expert-were removed. (Dkt. No. 64-1 ¶ 10; Dkt. No. 70-1 ¶¶ 10, 14.)

         Defendant submits evidence that there are a number of other Starbucks locations closer to Plaintiff's home and that Plaintiff's original stated reason for visiting the Starbucks-proximity to his son's lacrosse games-is not credible because the team's website indicates that it did not play at a school near that location. (See Dkt. No. 65-1 at 18; Dkt. Nos. 68-1-68-10.)

         The parties have each submitted reports prepared by experts in disability access. Plaintiff's expert, Michael Bluhm, opines that all of the conditions Plaintiffs allege in the FAC fail to meet the height, width, or other requirements of the 2010 ADA Accessibility Guidelines (“2010 ADAAG”) control. (Dkt. No. 64-3.) Defendant's expert, Kim Blackseth, submitted a declaration and report in which he opines that the interior of the store does not have any access barriers. (Dkt. No. 67 ¶ 9; Dkt. No. 67-1.) The Court will address the substance of each barrier and the experts' opinions below.

         II. Procedural History

         Plaintiff filed this action on April 23, 2015 against Starbucks and the owners of the property, contending that the barriers he encountered at the Starbucks prevented him from enjoying full and equal access to the store.[2] (Dkt. No. 1.)

         Plaintiff dismissed the owners of the property from the action and filed the First Amended Complaint (“FAC”) against Starbucks-as owners of the store-only. (Dkt. Nos. 26, 37.) In the FAC, in addition to alleging the two barriers Plaintiff experienced himself, he alleged a number of other violations based on his expert's inspection of the Starbucks relating to the entry door's threshold height, closing speed, and door pressure; the arrangement of interior accessible tables; elevated counter seating; inaccessible location of self-service items; unsecured floor mats; and a number of issues with the men's restroom. (Id. ¶ 11(a)-(p).)

         The parties have each filed a motion for summary judgment seeking judgment in their favor on the FAC claims.[3] The gravamen of the dispute concerns the validity and potential mootness of Plaintiff's ADA claims. Plaintiff contends that there is no genuine dispute of fact that he experienced the access barriers alleged in the FAC and that their presence has deterred him from returning to the Starbucks. He argues that an injunction is necessary to ensure the barriers he and his experts identified are removed and do not return in the future and that judgment in his favor should follow on the state law claims. Defendant counters that Plaintiff lacks standing to bring ADA claims because he did not experience any access barriers, has failed to establish that he intends to return to the Starbucks, and that, in any event, his claims are moot because Starbucks has remedied any unlawful barriers that previously existed. Defendant also argues that the Court should decline to exercise supplemental jurisdiction over Plaintiff's state-law claims.

         DISCUSSION

         I. Evidentiary Requests & Objections

         Before turning to the substance of the parties' motions, the Court must resolve a number of evidentiary disputes. Specifically, Defendant filed a request for judicial notice and both parties have objected to certain evidence.

         A. Request for Judicial Notice

         To support its argument that Plaintiff does not intend to return to the Starbucks, Defendant offers evidence that Plaintiff's son's lacrosse team did not play games near the Starbucks and that there are a number of other Starbucks locations closer to Plaintiff's house. (Dkt. No. 65-1 at 18.) The evidence includes (1) public record information regarding Plaintiff's purchase of his home; (2) Google maps showing routes from Plaintiff's home to the Starbucks, other Starbucks located near his home, and routes from his son's lacrosse team's fields to the Starbucks; and (3) game schedules and home field information from Plaintiff's son's lacrosse team-all of which are the subject of Defendant's Request for Judicial Notice. (Dkt. No. 68; Dkt. No. 68-1-68-10.)

         First, with respect to the public record information of Plaintiff's home, courts may take judicial notice of “matters of public record[.]” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (citation omitted). Likewise, as to the maps, “[c]ourts have generally taken judicial notice of facts gleaned from internet mapping tools such as Google Maps or Mapquest.” United States v. Brown, 636 F.Supp.2d 1116, 1124 n.1 (D. Nev. 2009) (collecting cases); see, e.g., Carson v. Adams, No. CV 09-9194-CAS (AGR), 2013 WL 169845, at *2 n.3 (C.D. Cal. Jan. 14, 2013) (citation omitted). Plaintiff does not object to these requests. The Court therefore GRANTS Defendant's requests for judicial notice as to these documents.

         Plaintiff objects to the requests for judicial notice of information from Plaintiff's son's lacrosse team's website, contending that information about where the team played is not “generally known, ” its accuracy is reasonably questionable, there is “no way to authenticate the screen captures, ” and there is “no way to determine if what is on the website is an accurate reflection of what actually transpired or will transpire.” (Dkt. No. 70 at 7-8.) “It is not uncommon for courts to take judicial notice of factual information found on the world wide web.” Barnes v. Marriott Hotel Servs., Inc., No. 15-cv-01409-HRL, 2017 WL 635474, at *4 (N.D. Cal. Feb. 16, 2017) (citations omitted). And indeed, Plaintiff never states that the information on the webpage is not accurate; he merely states that there is no way to determine if it is. While Plaintiff cites cases where courts have declined to take judicial notice of websites (Dkt. No. 70 at 8), the circumstances in those cases were different, the information on the website was crucial to the parties' claims, or the courts declined judicial notice with no little to no analysis. See, e.g., in re Yagman, 473 Fed.Appx. 800, 801 n.1 (9th Cir. 2012); Bingham v. Holder, 637 F.3d 1040, 1045 n.3 (9th Cir. 2011). Here, Plaintiff has not really challenged the authenticity of the websites or maintained that the information is inaccurate, and the websites are tangential to the issues, not central to Plaintiff's claims. Accordingly, the Court GRANTS Defendant's motion to take judicial notice of the lacrosse team websites. However, the Court notices the websites solely for the purpose of establishing that the team did not list the school next to the Starbucks as one of its home fields, not for the truth of the matter asserted-i.e., not to show that the team never actually played there.

         B. Plaintiff's Evidentiary Objections

         1. Declaration of Kim Blackseth

         Plaintiff objects to the declaration of Defendant's expert, Kim Blackseth, because (1) portions must be excluded under the “sham affidavit” rule; (2) portions contain impermissible legal opinion and legal conclusions; and (3) he “may have relied upon information provided to him by one of his associates which is not the practice of experts within his field.” (Dkt. No. 70 at 11-14.)

         a. Sham Affidavit Rule

         The “sham affidavit” rule provides that a “party cannot create an issue of fact by an affidavit contradicting . . . prior deposition testimony.” Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (quotation marks and citation omitted). To apply the rule, the court must “make a factual determination that the contradiction [is] actually a sham” and conclude that the inconsistency is “clear and unambiguous.” Van Asdale v. Int'l Game Tech., 577 F.3d at 989, 998 (9th Cir. 2009). A declaration that “elaborates upon, explains, or clarifies prior testimony” does not trigger exclusion. Id. (citation omitted).

         Plaintiff identifies eight instances that he argues must be excluded under the sham affidavit rule because Mr. Blackseth's declaration conflicts with his expert report and earlier deposition testimony even though his declaration states that the opinions therein are based on his September 30, 2016 visit to the store and his expert report. (Dkt. No. 67 ¶¶ 2, 9.) First, in his declaration Mr. Blackseth states that the “metal threshold at the entry/exit doors is no more than 1/2[ inch] beveled and complies with all accessibility requirements.” (Dkt. No. 67 ¶ 9(E).) Mr. Blackseth's expert report is inconsistent in that there he agreed with Plaintiff's expert that the entrance threshold was 1/4 inch higher than the 2010 ADAAG requirements and he further noted that Starbucks would fix the issue. (Dkt. No. 67-1 at 3.) Likewise, at his deposition he testified that the threshold exceeded the maximum height and that he had recommended it be repaired, but he did not know if it had been repaired yet. (Dkt. No. 70-10 at 13-14.) In his declaration Mr. Blackseth does not explain why he changed his conclusion-by, for example, stating that he has since visited the Starbucks and has changed his opinion based on renovations to the store-or explain how he is somehow clarifying the statement in his expert report or previous deposition testimony. Although Defendant argues that Mr. Blackseth's declaration is “based on observations that were current through the date of the declaration - February 2, 2017” (Dkt. No. 72 at 9 (citing Dkt. No. 67)), the Blackseth Declaration nowhere states as much; instead, the Declaration represents that it is based on his earlier expert report. Defendant likewise maintained at oral argument that the revised Blackseth Declaration was based on a subsequent expert inspection, but was unable to identify any evidence in the record to support that statement.[4] The Court therefore sustains the objection to paragraph 9(E) of the Blackseth Declaration.

         The same result is required for six of the other statements in the Blackseth Declaration to which Plaintiff objects. In each these instances, in his expert report and deposition Mr. Blackseth agreed with Plaintiff's expert that the feature-door pressure, elevated counter seating, and the location of the mirror, toilet paper dispenser, and toilet-failed to comply with the 2010 ADAAG. But in his summary judgment declaration he avers that each complies without indicating that Defendant conducted remediation and subsequent to that he visited the Starbucks again, took new measurements, and thus changed his conclusions. The Court therefore sustains Plaintiff's objections to paragraphs 9(F), (I), (L), (P), (Q), and (O) of the Blackseth Declaration.

         The Court overrules the objection as to Mr. Blackseth's comments about the location of the trashcan in the men's bathroom. (See Dkt. No. 70 at 12-13.) In his expert report, Mr. Blackseth stated that the trashcan was no longer obstructing the entry door because it had been relocated so “[t]here is no barrier or action required.” (Dkt. No. 67-1 at 8.) At his deposition, he testified that the trashcan had been moved from the place where Plaintiff encountered it and that even if it blocked access to other elements-like the sink or the toilet-it is not a barrier because it is easily moveable. (Dkt. No. 64-10 at 20-21.) This does not conflict with his Declaration statement that, notwithstanding the trashcan, the bathroom has enough clear floor space to comply with regulations. (Dkt. No. 67 ¶ 9(M).) The Court therefore overrules Plaintiff's objection to that paragraph.

         b. Legal Opinion or Legal Conclusions

         Plaintiff next objects to four particular paragraphs of the Blackseth Declaration and the conclusions of all subparagraphs on the grounds that they contain impermissible legal opinion or legal conclusions. (Dkt. No. 70 at 13.)

         Although an expert may not provide testimony on an ultimate legal issue, he may testify as to findings that support the ultimate issue. See Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016-17 (9th Cir. 2004). “Further, an expert may refer to the law in expressing an opinion without crossing the line into a legal conclusion.” Kalani v. Starbucks Corp., 81 F.Supp.3d 876, 882 (N.D. Cal. 2015))(citation omitted). But mere “legal conclusions without underlying factual support . . . constitute ‘unsupported speculation' and are therefore inadmissible.” Plush Lounge Las Vegas LLC v. Hotspur Resorts Nev. Inc., 371 Fed.Appx. 719, 720 (9th Cir. 2010) (citation omitted).

         Plaintiff objects to the following statements:

B) The subject store fully complies with all federal and state access regulations as Plaintiff Craig Crandall alleges them and as they relate to his disability of a mobility-impaired person who uses a manual wheelchair.
G) The arrangement of the interior tables and chairs provide an equivalent experience and comply with all access regulations.
K) The floor mats are properly installed and secured and comply with all access regulations.
M) The men's restroom has clear floor space of 60” wide by 51” deep and is not obstructed by the trash can. Therefore, the clear space in the men's restroom complies with all access regulations.

(Dkt. No. 67 ¶¶ 9(B), (G), (K), (M).)

         The Court sustains Plaintiff's objections to paragraphs 9(B), (G), and (K). Conclusory opinions that the entire facility or particular features fully comply with regulations and access requirements constitute improper legal conclusions. See, e.g., Hangarter, 373 F.3d at 1016-17; Kalani, 81 F.Supp.3d at 882 (“Conclusory opinions that the ‘facility is free of non-compliant issues, ' or that particular features, e.g., the accessible parking or point of sale, ‘compl[y] with all applicable access requirements, ' constitute improper legal conclusions.”) (citations omitted); Sharp v. Islands Cal. Ariz. LP, 900 F.Supp.2d 1101, 1112 (S.D. Cal. 2012) (statement that the “waiting area is accessible to wheelchair users and complies with all ADAAG requirements” constituted improper legal conclusions). The statements in paragraphs 9(B), (G), and (K) do not identify any factual support for Mr. Blackseth's opinions. The Court therefore finds that these paragraphs are impermissible legal conclusions without factual support and are therefore inadmissible. See Plush Lounge, 371 Fed.Appx. at 720. In contrast, paragraph 9(M) provides factual support for his conclusion and therefore the Court overrules the objection to that paragraph. See Kalani, 81 F.Supp.3d at 882-83.

         Plaintiff also objects to “the portion of every other subparagraph in paragraph 9 that concludes with a legal opinion.” (Dkt. No. 70 at 13.) But the case on which he relies, Kalani v. Starbucks Corp., 81 F.Supp.3d 876 (N.D. Cal. 2015)-in which the court entertained the plaintiff's objections to portions of an expert declaration from the same expert witness, Mr. Blackseth- does not support this objection. In Kalani, the court sustained the plaintiff's objections to portions of Mr. Blackseth's opinion that-like paragraphs 9(B), (G), and (K) here- included legal conclusions alone without any factual support. Id. at 882-83. But the Kalani court noted that the plaintiff “properly d[id] not object” to another paragraph in which Mr. Blackseth opined that “[t]he pick-up counter . . . as modified now provides a length of 36 inches and a height of 34 inches, as such it complies with access regulations” because that paragraph provided factual support for the conclusion. Id. at 882 (record citation omitted). So too here with the remaining subparagraphs in paragraph 9 of Mr. Blackseth's declaration.

         Third, Plaintiff objects to the Blackseth Declaration on the grounds that he “may have relied upon information provided to him by an associate which is not the practice of experts within his field.” (Dkt. No. 70 at 13.) Specifically, Plaintiff laments that Mr. Blackseth did not take the photographs and measurements of the Starbucks himself and instead relied on his associates for such information; Plaintiff argues that, as a result, the Blackseth Declaration lacks foundation and constitutes hearsay. (Id. at 13-14.) Plaintiff's expert testified that reliance on others' photographs and measurements is not the practice in the disability access field; based on that, Plaintiff argues that Mr. Blackseth's declaration is also improper expert opinion. (Dkt. No. 70 at 14; Dkt. No. 70-3 ¶ 33.) Defendant responds that Mr. Blackseth has long relied on photographs and measurements of other certified disability access specialists in his firm because he is a quadriplegic. (See Dkt. No.72 at 10; Dkt. No. 72-3 at 3.[5]) Ironically, Plaintiff's objection undermines Plaintiff's own expert, who based his opinions about the width of the store when the merchandise displays were in the center on photographs that Plaintiff's counsel provided. (See Dkt. No. 64-3 ¶ 24.) At bottom, given that the measurements and photographs were taken by other certified specialists in Mr. Blackseth's practice, the Court overrules Plaintiff's objection. Plaintiff is free to seek to undermine the strength of Mr. Blackseth's opinion through cross-examination.

         The cases Plaintiff cites do not change the Court's conclusion. For example, Chapman v. Starbucks Corp., No. 2:09-cv-2526-GEB-EFB, 2011 U.S. Dist. LEXIS 3570, at *12-13 (E.D. Cal. Jan. 7, 2011), involved the plaintiff's objection to Mr. Blackseth's expert declaration on the grounds that his report was based entirely on pictures the defendant had provided to him. The court overruled the objection, noting that the plaintiff had failed to establish that Mr. Blackseth's use of the photographs was not the type of evidence reasonably relied upon by experts in the disability access field given that Mr. Blackseth conducted an inspection himself and therefore had personal knowledge of the store conditions. Id. at *13.

         2. Chelsea Austin Testimony

         Plaintiff also objects to the testimony of Starbucks Facilities Manager Chelsea Austin, first on the grounds that it is improper lay opinion. (Dkt. No. 70 at 9.) Presumably, here, Plaintiff refers to paragraph 6, where Ms. Austin states that she has personal knowledge about the Starbucks to give measurements about eight different aspects of the store-for example, stating that the threshold of the entry door is no more than 1/2 inch high and the door has an operating pressure of no more than five pounds, there is no elevated counter seating, and the men's restroom mirror is no more than 40 inches high-and to paragraphs 7 through 9, where she states that three images in Defendant's motion are true and correct images of certain features within the Starbucks. (Dkt. No. 65-2 ¶ 6.) In Plaintiff's view, the Court should exclude these statements because Defendant has “tacitly acknowledg[ed]” that testimony about such measurements requires an expert, since Defendant submitted the same information in Mr. Blackseth's declaration. (Dkt. No. 70 at 9.) But lay witnesses can testify about the height of a fixture or the threshold of a door. See Strong v. Valdez Fine Foods, 724 F.3d 1042, 1046 (9th Cir. 2013) (“It's commonly understood that lay witnesses may estimate size, weight, distance, speed and time even when those quantities could be measured precisely.”) (citations omitted). Although Ms. Austin's vague statement that she has personal knowledge of the Starbucks generally would not, on its own, be enough foundation for her to testify to the measurements, she states that she is the facilities manager for the store responsible for accessibility issues or complaints, which demonstrates her familiarity with the access-related store elements. (See generally Dkt. No. 65-2.) Indeed, she testified that she is familiar with the layout and other accessibility-related aspects of the Starbucks. For the same reason, she also has averred enough information to demonstrate personal knowledge that the photographs included in the motion accurately depict the store. Accordingly, the Court overrules Plaintiff's objections to paragraphs 6 through 9 of the Austin Declaration with the exception of subparagraph 6(g), which appears to state a legal conclusion. (See Dkt. No. 69-2 ¶ 6(g) (“The plumbing beneath the men's restroom is fully insulated.”).)

         However, in paragraph 10, Ms. Austin avers that based on Starbucks's policy of striving to make its locations accessible to persons that are disabled, “the subject store provides more than adequate and lawful access to Plaintiff Craig Crandall” and “never intentionally discriminated against [Plaintiff].” (Dkt. No. 65-2 ¶ 10.) To the extent that Plaintiff also objected to this paragraph, the Court sustains the objection or sua sponte sustains its own objection to this paragraph as it contains impermissible legal opinion or legal conclusions.

         C. Defendant's Evidentiary Objections

         1. Objections to Evidence Submitted in Support of Plaintiff's Motion

         Defendant objects to one paragraph of Plaintiff's declaration as well as the declarations of Plaintiff's two private investigators, all submitted in support of Plaintiff's opening summary judgment brief. (Dkt. No. 69-1.) Plaintiff urges the Court to disregard or overrule Defendant's evidentiary objections because they were filed separately from Defendant's opposition brief in contravention of Civil Local Rule 7-3(a). (Dkt. No. 71 at 6.) See N.D. Cal. Civ. L.R. 7-3(a) (“Any evidentiary and procedural objections to the motion must be contained within the brief or memorandum.”). The essence of Plaintiff's opposition is that, by ignoring Rule 7-3(a), Defendant fit more argument into its brief than it otherwise could have-and more than Plaintiff did, because his objections were properly within his brief. (See Dkt. No. 71 at 6.) The Court agrees and overrules Defendant's objections.[6] The Court reminds defense counsel of its obligation to know and follow the Court's Local Rules. See Civ. L.R. 11-4(a)(2), 11-4(a)(4).

         Defendant also objects to evidence that Plaintiff submitted in support of his reply, contending that “[i]t is improper for Plaintiff to submit any evidence in his Reply that was not initially submitted in his motion.” (Dkt. No. 73.) But Local Rule 7-3(c) permits a party to attach a declaration or affidavit to a reply. On the other hand, courts typically do not consider new evidence first submitted in a reply brief because the opposing party has no opportunity to respond to it. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (citation omitted) (“Where new evidence is presented in a reply to a motion for summary judgment, the district court should not consider the new evidence without giving the [non-]movant an opportunity to respond.”); see, e.g., BoomerangIt, Inc. v. ID Armor, Inc., No. 5:12-CV-0920 EJD, 2012 WL 2368466, at *4 n.1 (N.D. Cal. June 2012) (citation omitted).

         Here, Plaintiff's reply includes some evidence that is new-i.e., that he did not include in his opening brief or his opposition to Defendant's motion, including: a portion of Ms. Austin's deposition testimony (Dkt. No. 71-2 at 15-22); portions of the depositions of Starbucks employees Cher Hubert (id. at 15-22), Kelly Schaub (id. at 24-27), Micaela Wandrocke (id. at 29-35), and Samantha Jordan (id. at 37-46); and a supplemental declaration of Plaintiff's private investigator Nick Quinn describing his observation that Starbucks employees did not conduct eight minute “spins” of the store (Dkt. No. 71-3). The Court sustains Defendant's objection to this evidence and will not consider it. However, Plaintiff has also submitted a portion of his own deposition that he ...


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