Sandi Rush v. DENCO ENTERPRISES, INC., DBA Denny’s 7156

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDI RUSH,
Plaintiff - Appellee,
v.
DENCO ENTERPRISES, INC., DBA
Denny’s #7156,
Defendant - Appellant.
No. 12-56565
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.**
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
FILED
FEB 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

-- 1 of 3 --

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.1
1 Because we reverse the district court on these grounds, we do not reach any
of Denco’s other issues.
2

-- 2 of 3 --

Further, Appellee’s Motion to Strike Appellant’s Excerpts of Record is
DENIED.
REVERSED AND REMANDED.
3

-- 3 of 3 --