1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 SCOTT JOHNSON, Case No. 21-cv-08188-CRB

9 Plaintiff,

ORDER GRANTING MOTION TO 10 v. DISMISS FOR LACK OF JURISDICTION 11 DO RAKU, INC., 12 Defendant.

13 Before the Court is a motion to dismiss for lack of subject matter jurisdiction by 14 Defendant Do Raku, Inc. See Mot. (dkt. 20). Do Raku argues that Plaintiff Scott Johnson 15 lacks standing for injunctive relief because a CASp inspector has found that the barriers 16 that allegedly violated the Americans with Disabilities Act (ADA) have been removed. 17 The Court finds oral argument unnecessary and GRANTS Do Raku’s motion to dismiss. 18 I. BACKGROUND 19 Johnson is a California resident and “level C-5 quadriplegic” who uses a wheelchair 20 for mobility. See Compl. (dkt. 1) ¶ 1. Do Raku owns i-Tea Do Raku, a restaurant in 21 Milpitas, California. Id. ¶¶ 2-3. 22 Johnson alleges that he went to the restaurant three times in August 2021, but was 23 deterred because Do Raku had failed to provide “wheelchair accessible inside and outside 24 dining surfaces” in conformance with ADA Standards. Id. ¶¶ 8, 10-11. Specifically, he 25 encountered a “lack of sufficient knee or toe clearance under the inside and outside dining 26 surfaces for wheelchair users.” Id. ¶ 12. Johnson alleges that he plans to return to the 27 store to avail himself of its goods in the future. Id. ¶ 20. 1 Americans with Disabilities Act of 1990 (ADA) and the California Unruh Civil Rights 2 Act. See id. at 4-7. Within two weeks of waiving service of the complaint, Do Raku 3 employed CASp inspector Michael Miyaki, who inspected the premises on January 25, 4 2022 to determine what barriers existed. Olson Decl. (dkt. 20-2) ¶ 6; Miyaki Decl. (dkt. 5 20-1). Do Raku promptly removed all barriers. On February 8, Do Raku informed 6 Johnson of this fact, provided photos, and served a Rule 68 Offer of Judgment. Olson 7 Decl. ¶ 8. Johnson did not then (or subsequently) request a site inspection. Miyaki 8 reinspected the premises on March 15 and confirmed that all surfaces were in compliance. 9 Olson Decl. ¶ 9; Miyaki Decl. ¶¶ 9-10, Ex C. Do Raku moved to dismiss on April 11. 10 Johnson filed a late opposition. Opp. (dkt. 21). 11 II. LEGAL STANDARD 12 “If the court determines at any time that it lacks subject-matter jurisdiction, [it] must 13 dismiss the action.” Fed. R. Civ. P. 12(h)(3). A party can challenge subject matter 14 jurisdiction in two different ways: (1) a facial attack based solely on the allegations of the 15 complaint, or (2) a factual attack based on extrinsic evidence apart from the pleadings. See 16 Safe Air for Everyone v. Meyer,

(9th Cir. 2004). If a defendant 17 initiates a factual attack by submitting a declaration with extrinsic evidence of the lack of 18 subject matter jurisdiction, “the court need not presume the truthfulness of the plaintiff’s 19 allegations.”

The plaintiff “must present affidavits or any other evidence necessary to 20 satisfy its burden that the court, in fact, possesses subject matter jurisdiction.” St. Clair v. 21 City of Chico,

(9th Cir. 1989). 22 Standing for injunctive relief requires a “real and immediate threat of repeated 23 injury.” Fortyune v. Am. Multi-Cinema, Inc.,

(9th Cir. 2004). A 24 claim may become moot if (1) subsequent events have made it absolutely clear that the 25 allegedly wrongful behavior cannot reasonably be expected to recur, and (2) interim relief 26 or events have completely and irrevocably eradicated the effects of the alleged violation. 27 Norman-Bloodsaw v. Lawrence Berkeley Lab.,

, 1274 (9th Cir. 1998) 1 removal of alleged barriers prior to trial can have the effect of mooting a plaintiff’s ADA 2 claim.” Oliver v. Ralphs Grocery Co.,

(9th Cir. 2011); see, e.g., 3 Johnson v. 1082 El Camino Real, LP,

, at *2 (N.D. Cal. Feb. 28, 2018). 4 When the jurisdictional issue is intertwined with the merits, a court must apply the 5 summary judgment standard in deciding the motion to dismiss. Johnson v. Techbusiness 6 Resources, LLC,

, at *1 (N.D. Cal. Nov. 28, 2020). A motion for 7 summary judgment should be granted if “there is no genuine dispute as to any material fact 8 and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). 9 Because the defendant bears the burden of establishing mootness, see In re Pintlar Corp., 10

, 1312 (9th Cir. 1997), it must “affirmatively demonstrate” that there is no 11 genuine dispute that the relevant accessibility barriers no longer exist. Soremekun v. 12 Thrifty Payless, Inc.,

(9th Cir. 2007). 13 III. DISCUSSION 14 A. The ADA Claim 15 This Court lacks jurisdiction because Do Raku has affirmatively demonstrated that 16 there is no material dispute as to whether the barriers exist. See Johnson v. Blackburn, 17

(N.D. Cal. Feb. 11, 2022) (dismissing a similar ADA case on a similar 18 ground); Garcia v. Pena,

(N.D. Cal. April 18, 2022) (same). Do Raku 19 has presented ample factual evidence that all ADA barriers have been removed. See 20 generally Miyaki Decl. & Ex. C. Despite having notice of these facts and nearly two 21 months to dispute them, Johnson has not done so. To the contrary, Johnson “admits that 22 the tables identified in Defendant’s CASp’s report appear to meet ADA Standards.” Opp. 23 at 1. Johnson’s only argument is that the barrier could conceivably recur and claims that 24 Do Raku must produce an official “plan” to continue using these tables. Id. at 6. But 25 Johnson’s claim that the barrier might recur is “pure speculation.” See Johnson v. Opa 26 Campbell LP,

, at *4 (N.D. Cal. Aug. 9, 2021) (finding future violation 27 unlikely because the defendant promptly remediated the barrier and there was no history of 1 |} reason why Do Raku, having invested in legally compliant tables, would resume using 2 |} noncompliant tables and subject itself to another ADA lawsuit. Johnson therefore faces no 3 |} “real and immediate threat of repeated injury.” Fortyune,

. 4 B. Unruh Act Claim 5 Having dismissed Johnson’s sole federal law claim, the only remaining claim is his 6 || claim under California’s Unruh Act. Supplemental jurisdiction is discretionary. Acri v. 7 || Varian Assocs., Inc.,

(9th Cir. 1997), see

(a). “Courts 8 || in this district have declined to exercise supplemental jurisdiction over Unruh Act claims 9 || after dismissing the parallel ADA claim.” Techbusiness,

, at *3 10 || (citations omitted); see, e.g., Blackburn,

at *4. The Court declines to 11 || exercise supplemental jurisdiction over the Unruh Act claim here because “it would not 12 || further the interest of judicial economy, convenience, fairness and comity.” Techbusiness, € 13 ||

, at *3 (citation omitted). 14 || Iv. CONCLUSION 15 For the foregoing reasons, the Court GRANTS Do Raku’s motion to dismiss for a 16 || lack of jurisdiction. 5 17 IT IS SO ORDERED. 5 18 Dated: May 12, 2022 19 United States District Judge 20 21 22 23 24 25 26 27 28