Ronald Moore v. Robinson Oil Corp , 588 F. App'x 528 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD MOORE, No. 12-16536
Plaintiff - Appellant, D.C. No. 5:10-cv-01014-HRL
v.
MEMORANDUM*
ROBINSON OIL CORPORATION, DBA
Rotten Robbie #42,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Howard R. Lloyd, Magistrate Judge, Presiding
Submitted October 7, 2014**
San Francisco, California
Before: IKUTA, N.R. SMITH, and MURGUIA, Circuit Judges.
Ronald Moore appeals the district court’s judgment entered in favor of
defendant/appellee Robinson Oil Corp. (“Robinson”), concluding that Moore
failed to establish that Robinson violated Title III of the Americans with
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189. The district court also
dismissed Moore’s parallel state-law claims, finding that each was contingent on
first finding liability under the ADA. We have jurisdiction under 28 U.S.C. §
1291, and affirm.
The district court did not abuse its discretion by concluding that Moore’s
restroom construction proposal was not “readily achievable” under 42 U.S.C.
§ 12182(b)(2)(A)(iv). At trial, Robinson presented evidence that Moore’s proposal
was a significant, costly endeavor, which would require, inter alia, removing load
bearing walls and existing plumbing, installing support columns to support the
roof, and reroofing the facility. Given that Robinson presented ample evidence
about the cost and scope of Moore’s construction proposal, the district court did
not abuse its discretion by concluding that the proposal was not “easily
accomplishable and able to be carried out without much difficulty or expense.”
See 42 U.S.C. § 12181(9); Mannick v. Kaiser Found. Health Plan, Inc., No.
03-5905, 2006 WL 1626909, at *12, *15 (N.D. Cal. June 9, 2006).
Moore’s claim that the district court incorrectly placed the burdens of
production and persuasion on him to show that the proposed restroom construction
was readily achievable is meritless. This circuit has “yet to decide who has the
burden of proving that removal of an architectural barrier is readily achievable.”
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Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1010 (C.D. Cal. 2014). In this case,
regardless of the allocation of the burden of proof, there was insufficient evidence
to support a conclusion that the proposed restroom renovation was “readily
achievable.” The district court did not mention burdens in its analysis and clearly
based its decision on the evidence that both parties presented at trial.
We likewise reject Moore’s argument that Robinson was required to present
evidence rebutting Moore’s expert’s conclusory testimony that a portable restroom
“could be inserted at the exterior of the [Gas Station].” Moore concedes that he
bears the initial burden of production under 42 U.S.C. § 12182(b)(2)(A)(v) to
identify an alternative that is facially feasible, yet contends that his expert’s
testimony is sufficient. We first note that the district court did not find Moore’s
expert credible; the court specifically noted that the expert “appeared to have a
weak understanding of the ADA’s readily achievable standard and made some
assertions that seemed flat-out incorrect.” It was therefore within the district
court’s discretion to reject Moore’s untested speculation that installing a portable
restroom might be possible. See City of Pomona v. SQM N. Am. Corp., 750 F.3d
1036, 1049 (9th Cir. 2014). Moreover, the expert’s conclusory testimony, without
further explanation, is insufficient to meet Moore’s burden of production to
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establish that the portable restroom was readily achievable. See, e.g., Samper v.
Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012).
Moore’s argument that Robinson “is required, as a matter of law, to install
wheel stops along the [Gas Station’s handicap] accessible route” is likewise
without merit. Moore claims that a temporary obstruction to the accessibility route
transforms it into an ADA violation. Moore provides no legal support for his
strained interpretation of the ADAAG, and we reject the argument. See Cohen v.
City of Culver City, 754 F.3d 690, 699 (9th Cir. 2014) (“While temporary
obstructions do not violate the ADA, obstructions that persist beyond a reasonable
period of time do violate the statute.”).
Lastly, we reject Moore’s argument that the district court erred by
dismissing his state-law claims. Moore does not dispute that an ADA violation
was required to support his state-law claims for statutory damages, but argues that
the “district court did in fact find that there were ADA violations.” Moore
misstates the record and relies on the portion of the district court’s decision that
addressed his standing to bring suit—a standard the district court noted was to be
interpreted broadly. Standing to bring suit does not equate to a finding that
Robinson violated the ADA. Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1042 n.5
(9th Cir. 2008) (“Once a disabled individual has encountered or become aware of
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alleged ADA violations that deter his patronage of or otherwise interfere with his
access to a place of public accommodation, he has already suffered an injury in
fact” for standing purposes. (emphasis added)).
Moore also argues that the parties’ pretrial stipulation—that certain “barriers
alleged in Plaintiff’s First Amended Complaint have been removed”—provides a
basis for finding that an ADA violation occurred. This contention fails because the
alleged ADA violations addressed in the stipulation became moot when corrected
before trial, and were not decided on the merits. See Oliver v. Ralphs Grocery Co.,
654 F.3d 903, 905 (9th Cir. 2011) (“[A] defendant’s voluntary removal of alleged
barriers prior to trial can have the effect of mooting a plaintiff’s ADA claim.”).
AFFIRMED
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