1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 DALFIO, Case No.: 3:21-cv-1699-L-AHG

10 Plaintiff,

11 v. ORDER ON CONVERTED MOTION 12 BARLAS, et al., FOR SUMMARY JUDGMENT (ECF 13 Defendants. 3) 14 15 Pending before the Court in this ADA action is a converted motion for summary 16 judgment. (ECF 3). Plaintiff opposed, and Defendants replied. The Court decides the 17 matter on the papers submitted and without oral argument. Civ. L. R. 7.1. For the reasons 18 stated below, the Court denies the motion. 19 Background 20 Plaintiff Victor Dalfio “has had two hip replacements. He also dislocated his hip. 21 He has difficulty walking and standing. Plaintiff uses a cane most of the time and uses a 22 walker as needed.” (ECF 1, Complaint (“Compl.”) at ¶ 1). Plaintiff alleges he is a 23 disabled person as defined under federal and state law. Id. Plaintiff has been issued a 24 permanent disabled person parking placard. Id. 25 Defendants own the property at 1501 Rosecrans Street, San Diego, California. (Id. 26 at ¶ 2). There is a business establishment at that property named, “Winchell’s Donut 27 House.” (Id. at ¶ 3). 28 1 Plaintiff alleges he visited the property on two occasions to patronize the business. 2 (Id. at 13). He “encountered barriers, both physical and intangible, that interfered with, 3 and denied, [him] the ability to use and enjoy the goods, services, privileges, and 4 accommodations offered at the property.” (Id. at ¶ 15). For example, Plaintiff alleges 5 “there was no accessible parking for disabled patrons.” (Id. at ¶ 17). 6 Discussion 7 Defendants moved to dismiss Plaintiff’s complaint, arguing he lacked standing, 8 and the ADA claim was moot. The Court determined Plaintiff had standing. The Court 9 converted the remaining motion to dismiss into a motion for summary judgment because 10 Defendants relied on extrinsic material, and the mootness issue was intertwined with the 11 merits of the ADA claim. See Safe Air For Everyone v. Meyer,

(9th 12 Cir. 2004). 13 “If there is no longer a possibility that [a plaintiff] can obtain relief for [their] 14 claim, that claim is moot and must be dismissed for lack of jurisdiction.” Ruvalcaba v. 15 City of L.A.,

(9th Cir. 1999); Foster v. Carson,

(9th 16 Cir. 2003). “Because a private plaintiff can sue only for injunctive relief (i.e., for removal 17 of the barrier) under the ADA, a defendant’s voluntary removal of alleged barriers prior 18 to trial can have the effect of mooting a plaintiff’s ADA claim.” Oliver v. Ralphs Grocery 19 Co.,

(9th Cir. 2011). However, the voluntary removal of the barriers 20 only moots the ADA claim where there is no “sufficient likelihood that [the plaintiff] will 21 again be wronged in a similar way.” City of Los Angeles v. Lyons,

, 111 22 (1983); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

, 189 23 (2000). 24 In response to the converted motion, Plaintiff submitted an expert report that 25 demonstrates there are still ADA compliance issues at the property. Plaintiff’s expert 26 visited the property on May 11, 2022, months after Defendants purportedly corrected the 27 barriers. Defendants dispute those findings. But Plaintiff’s report is enough to show the 28 1 || ADA claim is not moot. The record demonstrates there is some genuine dispute as to the 2 alleged ADA violations. For that reason, the Court denies the motion.! 3 IT IS SO ORDERED. 4 Dated: May 26, 2022 pee ep? 6 H . James Lorenz, United States District Judge

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ' This Order does not bar Defendants from filing a motion for summary judgment later in the proceedings. See Fed. R. Civ. P. 56.