97 Cal.App.5th 121
Cal. Ct. App.2023Background
- Plaintiff Jefferey Lurner, a Marbella Golf & Country Club member, has pulmonary arterial hypertension and needed to drive a cart to his ball across the course.
- Marbella adopted a Special Cart Access Flag (SCAF or "blue flag") policy granting some additional cart access to disabled golfers but barred cart use on certain holes/slopes and within 30 feet of greens.
- Lurner refused to sign the SCAF policy, nevertheless drove on restricted areas, was not disciplined for doing so, and management told complaining members Lurner needed accommodations for his disability.
- Lurner sued under the ADA, Unruh Act, and California Disabled Persons Act alleging defendants failed to reasonably modify SCAF and denied full and equal access; defendants argued SCAF increased access and they did accommodate Lurner.
- A jury found for defendants (no discrimination after May 14, 2016); the trial court denied JNOV and new trial; the Court of Appeal affirmed, concluding substantial evidence the club effectively modified/enforced the policy for Lurner and any expert-testimony error was not reversible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SCAF was facially discriminatory | Lurner: SCAF on its face restricted disabled golfers from full access to some holes | Defendants: SCAF provided greater access to disabled golfers than nondisabled ones | Assumed arguendo discriminatory effect but resolution not necessary; court proceeded to reasonable-modification inquiry |
| Whether defendants failed to provide a reasonable modification | Lurner: Club never gave him an effective accommodation and still purported to enforce SCAF; modification must be written/communicated | Defendants: They effectively modified by not enforcing SCAF against Lurner and by instructing staff to inform complainers | Held: Substantial evidence supports that defendants modified SCAF for Lurner by permitting him to drive in restricted areas and addressing complaints informally |
| Whether modification must be written or broadly communicated to members | Lurner: Informal non-enforcement insufficient; club should have notified membership Lurner was exempt | Defendants: ADA/regulations do not require written modification; individualized, informal modifications can be reasonable | Held: No requirement that modifications be in writing; informal non-enforcement can constitute a valid modification depending on facts |
| Whether defendants' ADA expert improperly testified to legal conclusions | Lurner: Expert opined on modification and accessibility in legal terms (impermissible) | Defendants: Expert testimony was admissible; plaintiff also elicited testimony; any error harmless due to conflicting expert evidence | Held: Even if some testimony erred, conflicting expert testimony and substantial evidence make any error nonprejudicial; no miscarriage of justice |
Key Cases Cited
- Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004) (elements for an ADA discrimination claim and requirement to make reasonable modifications)
- PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) (individualized inquiry on reasonable accommodations)
- Baughman v. Walt Disney World Co., 685 F.3d 1131 (9th Cir. 2012) (public accommodations must take reasonable steps to provide disabled guests a like experience)
- Simmons v. Ware, 213 Cal.App.4th 1035 (Cal. Ct. App. 2013) (standard for JNOV review; resolve conflicts in evidence for jury verdict)
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (Cal. 2012) (abuse of discretion standard for admitting expert testimony)
- Cassim v. Allstate Ins. Co., 33 Cal.4th 780 (Cal. 2004) (miscarriage of justice standard for reversible error)
- King v. State of California, 242 Cal.App.4th 265 (Cal. Ct. App. 2015) (expert may not testify to legal conclusions)