1 2 JS-6 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GARY SCHERER, ) NO. CV 19-4077 AS ) 12 Plaintiff, ) ) 13 v. ) ORDER DISMISSING FEDERAL CLAIM AS ) MOOT AND DECLINING SUPPLEMENTAL 14 SIMCO FINANCIAL SERVICES, INC., ) JURISDICTION OVER STATE LAW CLAIM et al., ) 15 ) Defendants. ) 16 ) 17 I. 18 INTRODUCTION 19 20 On May 10, 2019, Gary Scherer (“Plaintiff”) filed a Complaint for 21 Damages and Injunctive Relief (“Complaint”) against Simco Financial 22 Services, Inc. (“Simco”), Serafin Alcantar (“Alcantar”) and Does 1-10 23 (collectively “Defendants”). (Dkt. No. 1). In his Complaint, 24 Plaintiff alleges that, at all relevant times, Simco owned real 25 property located at 18541 Sherman Way in Reseda, California (“the 26 Property”) and that Alcantar owned Super Close Out Discount Store (“the 27 Store”), a retail establishment located on the Property and open to the 28 public. (Complaint, ¶¶ 2-5, 11). Plaintiff asserts that in April 1 2019, he went to the Store “to avail himself of [the Store’s] goods or 2 services and to assess the business for compliance with the disability 3 access laws.” (Id., ¶ 10). However, Plaintiff claims that when he 4 attempted to visit the Store, he discovered the Store “did not provide 5 accessible paths of travel inside the Store,” an accessible sales 6 counter, or accessible parking spaces in conformance with the Americans 7 With Disabilities Act (“ADA”). (Id., ¶¶ 12-14, 16-17, 19-20 & fns. 8 1-2). Based on these barriers to accessibility, Plaintiff raises 9 claims under Title III of the ADA and California’s Unruh Civil Rights 10 Act (“Unruh Act”). (Complaint, ¶¶ 28-42). Plaintiff seeks damages 11 under the Unruh Act, injunctive relief compelling Defendants to comply 12 with the ADA and Unruh Act, and reasonable attorney’s fees, litigation 13 expenses and costs of suit. (Complaint at 7-8). 14 15 On June 10, 2021, Plaintiff filed a Motion for Summary Judgment 16 (“Motion”), which, among other things, noted that “[d]uring the 17 pendency of the federal case, the Store has closed and ceased to 18 operate.” (Plaintiff’s Memorandum of Points and Authorities in Support 19 of Summary Judgment at 1). On June 17, 2021, Defendant Simco filed an 20 Opposition that, among other things, agreed that the Store was closed 21 and out of business.1 (See Declaration of Joseph Shayfar in Opposition 22 to Summary Judgment, ¶ 9 (The Store “no longer exists. Some time in 23 the beginning of 2020, the tenant who owned the Store moved out.”)). 24 25 Based on the parties’ statements, on July 9, 2021, the Court 26 issued an Order to Show Cause (“OSC”) requiring Plaintiff to show cause 27 1 On April 7, 2020, Alcantar filed a change of address indicating 28 he had moved to Texas. (Dkt. No. 56). 2 1 “why his ADA claim should not be dismissed as moot” and also to 2 “address whether, in the event the ADA claim is moot, the Court should 3 retain supplemental jurisdiction over Plaintiff’s Unruh Act claim.” 4 (Dkt. No. 85). The OSC also afforded Defendants an opportunity to 5 address these issues. (Id.). 6 7 On July 19, 2021, Plaintiff filed a Response to the OSC. (Dkt. 8 No. 86). In his Response, Plaintiff acknowledged that the Store had 9 closed since his original visit and, therefore, Plaintiff is no longer 10 “seeking injunctive relief[,]” but noted he is still “seeking damages 11 under the Unruh Act” and asserted that the Court should retain 12 supplemental jurisdiction over his Unruh Act claim. (Id.). That same 13 day, Defendant Simco filed a Memorandum of Contentions of Law and Fact 14 arguing, among other things, that Plaintiff’s ADA claim is moot. (Dkt. 15 No. 88). 16 17 II. 18 DISCUSSION 19 20 “Article III of the Constitution limits federal courts to the 21 adjudication of actual, ongoing controversies between litigants.” 22 Deakins v. Monaghan,

(1988); Preiser v. Newkirk, 422

(1975). “[F]ederal courts may not ‘give opinions upon 24 moot questions or abstract propositions.’” Calderon v. Moore,

149, 150 (1996) (per curiam) (citation omitted). “This means that, 26 throughout the litigation, [Plaintiff] ‘must have suffered, or be 27 threatened with, an actual injury traceable to the defendant and likely 28 to be redressed by a favorable judicial decision.’” Spencer v. Kemna, 3 1

(1998) (quoting Lewis v. Continental Bank Corp.,

(1990)). Mootness is a threshold jurisdictional issue. 3 Alliance for the Wild Rockies v. Savage,

(9th Cir. 4 2018); United States v. Strong,

(9th Cir. 2007); 5 see also Shell Offshore Inc. v. Greenpeace, Inc.,

, 628 6 (9th Cir. 2016) (“We first address, as we must, the question of 7 mootness before we can consider the substance of the parties’ 8 contentions.”); Rivera v. Crema Coffee Co. LLC,

, 9 1073 (N.D. Cal. 2020) (“Before the Court may consider the substance of 10 Mr. Rivera’s ADA claim, it must first resolve the threshold issue of 11 mootness and whether this Court possesses subject matter jurisdiction 12 over the action.”). “‘The basic question in determining mootness is 13 whether there is a present controversy as to which effective relief can 14 be granted.’” Bayer v. Neiman Marcus Group, Inc.,

, 862 15 (9th Cir. 2017) (citation omitted). 16 17 “Damages are not recoverable under Title III of the ADA – only 18 injunctive relief is available for violations of Title III.” Wander v. 19 Kaus,

(9th Cir. 2002); see also Antoninetti v. 20 Chipotle Mexican Grill, Inc.,

(9th Cir. 2010) 21 (“Injunctive relief is the sole remedy available to private parties 22 under the [ADA]; it does not authorize a claim for money damages.”). 23 And a “‘request for injunctive relief remains live only so long as 24 there is some present harm left to enjoin.’” Bayer,

25 (citation omitted). Here, however, it is undisputed that the Store has 26 permanently closed, which renders Plaintiff’s ADA claim moot. See 27 Kohler v. Southland Foods, Inc.,

(9th Cir. 2011) 28 (“Kohler’s claims for prospective injunctive relief became moot once 4 1 the restaurant ceased operation.”); Rivera, 438 F. Supp. 3d at 1073 2 (“Because the only remedy available to Mr. Rivera under Title III is 3 injunctive relief, the permanent closure of the Coffeehouse renders 4 that prospective relief moot.”); Johnson v. Cala Stevens Creek/Monroe, 5 LLC,

, 910 (N.D. Cal. 2019) (“Here, the Spa at the 6 center of Plaintiff’s [ADA Title III] suit closed in March 2018. . . . 7 [T]his fact renders the request for an injunction moot. . . .”); 8 Fernandez v. Wind Chime Props., L.P.,

, *4 (C.D. Cal. 9 2020) (“Defendants’ uncontroverted contention that the Market has 10 permanently closed renders Plaintiff’s ADA claim moot.”). Accordingly, 11 Plaintiff’s ADA claim must be dismissed as moot. 12 13 Plaintiff does not dispute that his ADA claim is moot, but 14 contends the Court should retain supplemental jurisdiction over his 15 Unruh Act claim. (Response at 1-11). However, a district court “may 16 decline to exercise supplemental jurisdiction” over a state law claim 17 if, as here, “the district court has dismissed all claims over which it 18 has original jurisdiction[.]”

(c)(3); Velazquez v. 19 City of Long Beach,

(9th Cir. 2015). “[I]n the 20 usual case in which all federal-law claims are eliminated before trial, 21 the balance of factors to be considered under the pendent jurisdiction 22 doctrine — judicial economy, convenience, fairness, and comity — will 23 point toward declining to exercise jurisdiction over the remaining 24 state-law claims.” Carnegie-Mellon Univ. v. Cohill,

, 350 25 n.7 (1988); Sanford v. MemberWorks, Inc.,

(9th Cir. 26 2010). Such is the case here. Accordingly, the Court declines to 27 28 5 1 exercise supplemental jurisdiction over Plaintiff’s Unruh Act claim.2 2 See Lima v. United States Dep’t of Educ.,

(9th Cir. 3 2020) (“Because no federal claims remain, the district court did not 4 abuse its discretion by declining to exercise supplemental jurisdiction 5 over Plaintiff’s state-law claim.”); Oliver v. Ralphs Grocery Co., 654

(9th Cir. 2011) (“Because the balance of the factors of 7 ‘judicial economy, convenience, fairness, and comity’ did not ‘tip in 8 favor of retaining the state-law claims’ after the dismissal of the ADA 9 claim, the district court did not abuse its discretion in dismissing 10 Oliver’s state law claims without prejudice.” (citation omitted)); 11 Vogel v. Winchell’s Donut Houses Operating Co., LP,

(C.D. Cal. 2017) (declining to exercise supplemental 13 jurisdiction over Unruh Act claim after dismissing ADA claim as moot); 14 15 2 Plaintiff argues in his Response that this Court should retain supplemental jurisdiction over this action, but his contentions are 16 unpersuasive, often irrelevant, and suggest the Response has been repurposed without proper attention being paid to the relevance of the 17 arguments advanced therein. (See, e.g., Response at 2-5, 8-9 18 (discussing irrelevant arguments); Response at 10 & n.25 (discussing purported attached exhibits when the Response has no attachments)). 19 Indeed, the entirety of the Response appears directed at a situation in which this Court declines jurisdiction over Plaintiff’s state law 20 claims while retaining jurisdiction over the ADA claim. (See, e.g., Response at 6 (complaining that “[w]ere the Court to deny federal 21 jurisdiction to Plaintiff’s state claims, Plaintiff would have to 22 litigate these claims in parallel in state court, or abandon the right to file well-pleaded and meritorious claims in federal court 23 entirely”); Response at 7, 10 & ns. 21, 25 (citing cases in which courts have declined supplemental jurisdiction over Unruh Act claims 24 filed by high-frequency litigators such as Plaintiff while ADA claims 25 remained pending). But that is most certainly not the case here. To the contrary, this Court retained supplemental jurisdiction over 26 Plaintiff’s Unruh Act while Plaintiff had an ADA claim pending in the Court and only now declines to exercise supplemental jurisdiction 27 because the ADA claim has been dismissed as moot and the balance of factors do not favor retention of supplemental jurisdiction over 28 Plaintiff’s state law claim. 6 1 Pappion v. R-Ranch Prop. Owners Ass’n,

(E.D.

) (declining to retain supplemental jurisdiction over 3 plaintiff’s Unruh Act claim after granting summary judgment to 4 defendant on plaintiff’s ADA claim). Therefore, the Court dismisses 5 Plaintiff’s Unruh Act claim without prejudice. See Watison v. Carter, 6

(9th Cir. 2012) (when court declines to exercise 7 supplemental jurisdiction over state law claims pursuant to 28 U.S.C. 8 § 1367(c)(3), dismissal of the state law claims is without prejudice). 9 10 Plaintiff requests that if the Court declines to exercise 11 supplemental jurisdiction over his Unruh Act claim, the Court stay this 12 Order pending the Ninth Circuit’s decision in Arroyo v. Rojas, 19-55974 13 or, alternatively, grant Plaintiff leave to seek an interlocutory 14 appeal. (Response at 11-14). 15 16 “A stay is an ‘intrusion into the ordinary processes of 17 administration and judicial review,’ and accordingly ‘is not a matter 18 of right, even if irreparable injury might otherwise result. . . .’” 19 Nken v. Holder,

(2009) (citations and internal 20 quotation marks omitted); Indiana State Police Pension Trust v. 21 Chrysler LLC,

(2009) (per curiam). “It is instead 22 ‘an exercise of judicial discretion,’ and ‘[t]he propriety of its issue 23 is dependent upon the circumstances of the particular case.’” Nken, 24 556 U.S. at 433 (citations omitted). “A party seeking a stay must 25 establish that he is likely to succeed on the merits, that he is likely 26 to suffer irreparable harm in the absence of relief, that the balance 27 of equities tip in his favor, and that a stay is in the public 28 interest.” Humane Soc. of the United States v. Gutierrez,

1 896, 896 (9th Cir. 2009); see also Nken,

(“The party 2 requesting a stay bears the burden of showing that the circumstances 3 justify an exercise of that discretion.”). 4 5 Plaintiff has not met this burden. Indeed, Plaintiff has not 6 established even one of the relevant stay factors, let alone all of 7 them.3 Accordingly, Plaintiff’s request for a stay is denied. Indiana 8 State Police Pension Trust v. Chrysler LLC,

; Humane 9 Soc. of the United States,

. Plaintiff’s request for an 10 interlocutory appeal is also denied. See Wilkins v. Stanislaus Cnty., 11

, *4 (E.D. Cal. 2018) (“Following dismissal of this 12 action, Plaintiff may seek a direct appeal, if he so chooses, and an 13 interlocutory appeal will [not] be necessary.”), affirmed by,

App’x 739 (9th Cir.), cert. denied,

(2019); Mitchell v. 15 WinCo Foods, LLC,

, *2 (D. Idaho 2019) (“[T]he 16 17 3 Once again, Plaintiff raises what appear to be “canned” 18 arguments without considering their applicability to the circumstances of this case. See, e.g., Garcia v. KFT Enters. No. 2, L.P.,

6694332, *5 (C.D. Cal. 2020) (rejecting request to stay the matter pending resolution of the appeal in Arroyo v. Rosas or certify an 20 interlocutory appeal after declining to exercise supplemental jurisdiction over the plaintiff’s Unruh Act claim while retaining 21 jurisdiction over the plaintiff’s ADA claim); Langer v. Cavi Invs., 22 LLC,

, *4 (C.D. Cal. 2020) (same); Vogel v. Chun Nuen Kwan,

, *4 (C.D. Cal. 2020) (same); Whitaker v. 23 Menchie’s Group, Inc.,

, *4 (C.D. Cal. 2020) (same); Kong v. Anderson,

, *4 (C.D. Cal. 2020) (same); Arroyo 24 v. Winco Foods, LLC,

, *4 (C.D. Cal. 2020) (same); 25 Scherer v. Woodland Owner, LLC,

, *4 (C.D. Cal. 2019) (same). In so concluding, the Court notes that Plaintiff is 26 represented by the same law firm that raised these arguments in the above-cited cases (and too many others to list in this footnote). In 27 any event, Plaintiff’s “canned” filing is particularly unpersuasive since it does not attempt to thoughtfully address the circumstances of 28 this action. 8 1 litigation is over. There is nothing to be gained by allowing this 2 case to linger on the docket while plaintiff pursues her appeal. The 3 Court will therefore . . . deny plaintiff’s motion to certify an 4 interlocutory appeal.”), affirmed on other grounds,

5 (9th Cir. 2020). 6 7 III. 8 ORDER 9 10 For the foregoing reasons, Plaintiff’s ADA claim is dismissed as 11 moot, his Unruh Act is dismissed without prejudice under

1367(c)(3), and his requests for a stay of this action pending 13 resolution of Arroyo v. Rosas or for certification of this matter for 14 immediate appeal are denied. 15 16 DATED: August 2, 2021 17 /s/ ALKA SAGAR 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 9