1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 ORLANDO GARCIA, Case No. 22-cv-00158-CRB

9 Plaintiff,

ORDER GRANTING MOTION TO 10 v. DISMISS FOR LACK OF JURISDICTION 11 MARTIN PENA, et al., 12 Defendants.

13 Before the Court is a motion to dismiss for lack of subject matter jurisdiction by 14 Defendants Martin Pena and Sara Pena (collectively, Pena). See Mot. (dkt. 14). Pena 15 argues that Plaintiff Orlando Garcia lacks standing for injunctive relief because a CASp 16 inspector has found that the barriers that allegedly violated the Americans with Disabilities 17 Act (ADA) have been removed. The Court ordered the parties to schedule a site inspection 18 and file declarations as to whether the barriers exist. Pena declares that Garcia’s counsel 19 did not bring a CASp inspector to the site inspection and did not dispute that the barriers 20 have been removed. Dkt. 20. Garcia’s counsel declined to file a declaration at all. The 21 Court finds oral argument unnecessary and GRANTS Pena’s motion to dismiss. 22 I. BACKGROUND 23 Garcia is a California resident who “suffers from Cerebral Palsy” and uses a 24 wheelchair for mobility. See Compl. (dkt. 1) ¶ 1. Martin and Sara Pena own Pena Meat & 25 Food Market, a store in Redwood City, California. Id. ¶¶ 2-3. 26 Garcia alleges that he went to Pena’s store three times in December 2021, but was 27 deterred because Pena had failed to provide “wheelchair accessible paths of travel in 1 inches. Id. ¶¶ 8, 11-12. Garcia also alleges that Pena failed to “provide wheelchair 2 accessible sales counters in conformance with the ADA Standards” because “there was not 3 enough clear floor space.” Id. ¶¶ 16-17. Garcia alleges that he plans to return to the store 4 to avail himself of its goods in the future. Id. ¶ 25. 5 On January 10, 2022, Garcia filed this lawsuit, alleging violations of the Americans 6 with Disabilities Act of 1990 (ADA) and the California Unruh Civil Rights Act. See id. at 7 5-7. Pena immediately employed CASp inspector Roberto Cortez to determine what 8 barriers existed and then remediate them. Mac Bride decl. (dkt. 14-1) ¶ 5. On the Cortez’s 9 return on February 15, he found that all barriers had been removed. Id. ¶¶ 5-6; Cortez 10 decl. (dkt. 14-2) ¶ 6-14. On February 24, Pena informed Garcia that “all barriers to access 11 alleged in the complaint have been removed” and offered to pay legal fees incurred to date. 12 Mac Bride decl. ¶ 8 & Ex. 1. On February 28, Pena filed this motion to dismiss. 13 In his opposition, Garcia suggested that dismissal would be premature because a 14 site inspection date had not occurred. Opp. (dkt. 16) at 3 & n.2. The Court therefore 15 ordered the parties to schedule this site inspection and file declarations with the Court by 16 April 12 as to “what occurred at the site inspection and whether the barriers still exist.” 17 Order (dkt. 17). On April 12, Pena filed the required declaration as to what occurred at the 18 inspection. Dkt. 20. Garcia declined to do so. 19 II. LEGAL STANDARD 20 “If the court determines at any time that it lacks subject-matter jurisdiction, [it] must 21 dismiss the action.” Fed. R. Civ. P. 12(h)(3). A party can challenge subject matter 22 jurisdiction in two different ways: (1) a facial attack based solely on the allegations of the 23 complaint, or (2) a factual attack based on extrinsic evidence apart from the pleadings. See 24 Safe Air for Everyone v. Meyer,

(9th Cir. 2004). If a defendant 25 initiates a factual attack by submitting a declaration with extrinsic evidence of the lack of 26 subject matter jurisdiction, “the court need not presume the truthfulness of the plaintiff’s 27 allegations.”

The plaintiff “must present affidavits or any other evidence necessary to 1 City of Chico,

(9th Cir. 1989). 2 Standing for injunctive relief requires a “real and immediate threat of repeated 3 injury.” Fortyune v. Am. Multi-Cinema, Inc.,

(9th Cir. 2004). A 4 claim may become moot if (1) subsequent events have made it absolutely clear that the 5 allegedly wrongful behavior cannot reasonably be expected to recur, and (2) interim relief 6 or events have completely and irrevocably eradicated the effects of the alleged violation. 7 Norman-Bloodsaw v. Lawrence Berkeley Lab.,

, 1274 (9th Cir. 1998) 8 (citations omitted). Therefore, in an ADA case seeking injunctive relief, the “voluntary 9 removal of alleged barriers prior to trial can have the effect of mooting a plaintiff’s ADA 10 claim.” Oliver v. Ralphs Grocery Co.,

(9th Cir. 2011); see, e.g., 11 Johnson v. 1082 El Camino Real, LP,

, at *2 (N.D. Cal. Feb. 28, 2018). 12 When the jurisdictional issue is intertwined with the merits, a court must apply the 13 summary judgment standard in deciding the motion to dismiss. Johnson v. Techbusiness 14 Resources, LLC,

, at *1 (N.D. Cal. Nov. 28, 2020). A motion for 15 summary judgment should be granted if “there is no genuine dispute as to any material fact 16 and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). 17 Because the defendant bears the burden of establishing mootness, see In re Pintlar Corp., 18

, 1312 (9th Cir. 1997), it must “affirmatively demonstrate” that there is no 19 genuine dispute that the relevant accessibility barriers no longer exist. Soremekun v. 20 Thrifty Payless, Inc.,

(9th Cir. 2007). 21 III. DISCUSSION 22 A. The ADA Claim 23 This Court lacks jurisdiction because Pena has affirmatively demonstrated that there 24 is no material dispute as to whether the barriers exist. See Johnson v. Blackburn,

425489 (N.D. Cal. Feb. 11, 2022) (Breyer, J.) (dismissing a similar ADA case on a similar 26 ground). Pena has presented ample factual evidence that all ADA barriers have been 27 removed. Mac Bride decl. ¶¶ 5-6; Cortez decl. ¶ 6-14. Although Garcia had the benefit of 1 ordered by this Court. See St. Clair,

. Because the two alleged barriers 2 || have been fully remediated, Garcia faces no “real and immediate threat of repeated injury.” 3 || Fortyune,

. And the doctrine of voluntary cessation does not apply here 4 || because the barriers—noncompliant paths of travel and sales counters—were structural. 5 || See Blackburn,

at *4 (because “structural modification[s] undo the 6 || offending conduct,” it is “absolutely clear the allegedly wrongful behavior could not 7 || reasonably be expected to occur in the future” (quoting Johnson v. Opa Campbell LP, 2021 8 || WL 3493712, at *3 (N.D. Cal. Aug. 9, 2021)). 9 B. —_ Unruh Act Claim 10 Having dismissed Garcia’s sole federal law claim, the only remaining claim is his 11 || claim under California’s Unruh Act. Supplemental jurisdiction is discretionary. Acri v. 3 12 || Varian Assocs., Inc.,

(9th Cir. 1997), see

(a). “Courts 13 || in this district have declined to exercise supplemental jurisdiction over Unruh Act claims C 14 || after dismissing the parallel ADA claim.” Techbusiness,

, at *3 3 15 (citations omitted); see, e.g., Blackburn,

at *4. The Court declines to 16 || exercise supplemental jurisdiction over the Unruh Act claim here because “it would not 5 17 || further the interest of judicial economy, convenience, fairness and comity.” Techbusiness, 5 18 ||

, at *3 (citation omitted). 19 || IV. CONCLUSION 20 For the foregoing reasons, the Court GRANTS Pena’s motion to dismiss for lack of 21 || jurisdiction. 22 IT IS SO ORDERED. 23 Dated: April 18, 2022 Lo K~— CHARLES R. BREYER 24 United States District Judge 25 26 27 28