                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 01 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PEDRO RAMOS, CATALINA RAMOS,                     No. 09-56981
as an individual and as Guardian Ad Litem
for K.R., minor; THE FAIR HOUSING                D.C. No. 3:08-cv-00026-JM-JMA
COUNSEL OF SAN DIEGO, INC.,

             Plaintiffs - Appellants,            MEMORANDUM *

  v.

FRITZ NEUMANN, DBA El Camino 76
Mobile Estates; G. N. SELLERS, III, DBA
N.A.P. Consulting Inc.; ADELE TEAL,

             Defendants - Appellees.



                   Appeal from the United States District Court
                       for the Southern District of California
                 Jeffrey T. Miller, Senior District Judge, Presiding

                     Argued and Submitted February 16, 2011
                              Pasadena, California

Before: ALARCÓN, RYMER, and BYBEE, Circuit Judges.

       Plaintiffs-Appellants Pedro and Catalina Ramos (“the Ramoses”) appeal on

behalf of themselves and their minor daughter, K.R., the district court’s judgment


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
that Defendants-Appellees (“Neumann”) did not violate the Ramoses’ rights to

“reasonable accommodation” under the Fair Housing Act Amendments (“FHAA”),

42 U.S.C. § 3604(f), when they refused to permit the Ramoses to install a

trampoline for the benefit of K.R., who is autistic. We affirm.

      Under our precedent in Giebler v. M & B Associates, 343 F.3d 1143 (9th

Cir. 2003), the Ramoses bear the burden of establishing causation between the

requested accommodation, the trampoline in this case, and treatment of K.R.’s

autism. Id. at 1155–56. The Ramoses then must demonstrate that installation of

the trampoline is “possible” or “seems reasonable on its face.” Id. at 1156. Only

after the Ramoses make these showings does the burden shift to Neumann to prove

that the accommodation is not reasonable. Id. at 1157–58.

      The district court properly applied the Giebler test. It held that the Ramoses

did not carry their burden of proving causation between K.R.’s use of the

trampoline and treatment of her autism-related behaviors. Although the district

court’s analysis could have ended here, it went on to conduct a full inquiry into the

reasonableness of the trampoline and found that the danger that trampolines pose

to young children meant that it would be unreasonable to require Neumann to

permit installation of a trampoline.




                                          2
      The evidence in the record supports the district court’s conclusions, and the

Ramoses fail to show any clear error. In finding no causation between K.R.’s

trampoline use and treatment of her autism, the district court relied upon testimony

from the defense’s expert, Dr. Gretsch, who noted that K.R.’s school records

showed continual improvement in her principal problem areas affected by her

autism—socialization and communication skills—even after she no longer had use

of the trampoline. The Ramoses argue that the district court erred in crediting the

testimony of Dr. Gretsch because she never personally examined K.R. A district

court’s decision to credit a witness who presents plausible and coherent testimony,

however, cannot constitute clear error in itself. See Conrad v. United States, 447

F.3d 760, 768 (9th Cir. 2006) (“[W]hen a trial judge’s finding is based on his

decision to credit the testimony of one of two or more witnesses, each of whom has

told a coherent and facially plausible story that is not contradicted by extrinsic

evidence, that finding . . . can virtually never be clear error.” (quoting Anderson v.

City of Bessemer, 470 U.S. 564, 575 (1985))). We further note that the Ramoses’

own expert, Dr. Roe, conceded that there was “not very much” scientific evidence

showing that “self-stimulatory activities” like trampoline use are effective in

treating autism.




                                           3
       The evidence also supports the district court’s finding that trampolines are

dangerous to young children, making it unreasonable to require Neumann to permit

the Ramoses to install one. In making this finding, the district court relied on Dr.

Gretsch’s testimony, along with articles from a newspaper and a scientific journal.

The Ramoses argue the district court erred by crediting these sources and by

disregarding the fact that the Ramoses had used the trampoline for nearly three

years without incident. This is not a showing of clear error, but a request for us to

reweigh the evidence—a request which we are compelled to decline. See id. (“If

the district court’s account of the evidence is plausible in light of the record viewed

in its entirety, [we] may not reverse it even though convinced that had [we] been

sitting as the trier of fact, [we] would have weighed the evidence differently.”

(quoting Anderson, 470 U.S. at 573–74)).

       While the Ramoses’ personal experience may indicate that the trampoline

was helpful to K.R., that is not sufficient to carry their burden. Because the district

court’s findings are not implausible and are supported by evidence in the record,

there is no clear error.

       AFFIRMED.




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