Opinion
No. 12-56565
02-23-2015
SANDI RUSH, Plaintiff - Appellee, v. DENCO ENTERPRISES, INC., DBA Denny's #7156, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. No. 5:11-cv-00030-DOC-DTB MEMORANDUM Appeal from the United States District Court for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted February 4, 2015 Pasadena California Before: REINHARDT and GOULD, Circuit Judges, and MOTZ, Senior District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable J. Frederick Motz, Senior District Judge for the U.S. District Court for the District of Maryland, sitting by designation.
Based on our decision in Kohler v. Bed Bath & Beyond of California, LLC, ___ F.3d ___, No. 12-56727 (9th Cir. Feb. 19, 2015), we conclude that the district court erred by granting summary judgment to Rush based on (1) Rush's argument that the Americans with Disabilities Act (ADA) and the ADA Accessibility Guidelines (ADAAG) require at least eighteen inches of strike-side wall space and (2) Denco's failure to rebut Rush's prima facie case of discrimination.
Rush did not present a prima facie case of discrimination under the ADA because, as a matter of law, the ADAAG do not require any length of wall space on the strike-side of a doorframe. See Kohler v. Bed Bath & Beyond of California, No. 12-56727, slip op. at 11-12 (9th Cir. Feb. 19, 2015). Also, summary judgment was not warranted by Denco's lack of response in opposition because Rule 56(e) of the Federal Rules of Civil Procedure should not "be misconstrued as condoning summary judgment by default." Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013) (citing the 2010 Advisory Committee Notes accompanying Rule 56 of the Federal Rules of Civil Procedure).
We reverse and remand to the district court for further proceedings consistent with our opinion in Kohler v. Bed Bath & Beyond of California, LLC and our decision here.
Because we reverse the district court on these grounds, we do not reach any of Denco's other issues.
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Further, Appellee's Motion to Strike Appellant's Excerpts of Record is DENIED.
REVERSED AND REMANDED.