Scherer v. Simco Fin. Servs.

• Decision Date: 02 August 2021
• Docket Number: CV 19-4077 AS
• Court: U.S. District Court — Central District of California
• Parties: GARY SCHERER, Plaintiff, v. SIMCO FINANCIAL SERVICES, INC. et al., Defendants.

GARY SCHERER, Plaintiff, v. SIMCO FINANCIAL SERVICES, INC. et al., Defendants.

No. CV 19-4077 AS

United States District Court, C.D. California

August 2, 2021

ORDER DISMISSING FEDERAL CLAIM AS MOOT AND DECLINING SUPPLEMENTAL JURISDICTION OVER STATE LAW CLAIM

ALKA SAGAR UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

On May 10, 2019, Gary Scherer (“Plaintiff”) filed a Complaint for Damages and Injunctive Relief (“Complaint”) against Simco Financial Services Inc. (“Simco”), Serafin Alcantar (“Alcantar”) and Does 1-10 (collectively “Defendants”). (Dkt. No. 1). In his Complaint Plaintiff alleges that, at all relevant times, Simco owned real property located at 18541 Sherman Way in Reseda, California (“the Property”) and that Alcantar owned Super Close Out Discount Store (“the Store”), a retail establishment located on the Property and open to the public. (Complaint, ¶¶ 2-5, 11). Plaintiff asserts that in April 2019, he went to the Store “to avail himself of [the Store's] goods or services and to assess the business for compliance with the disability access laws.” (Id., ¶ 10). However, Plaintiff claims that when he attempted to visit the Store, he discovered the Store “did not provide accessible paths of travel inside the Store, ” an accessible sales counter, or accessible parking spaces in conformance with the Americans With Disabilities Act (“ADA”). (Id., ¶¶ 12-14, 16-17, 19-20 & fns. 1-2). Based on these barriers to accessibility, Plaintiff raises claims under Title III of the ADA and California's Unruh Civil Rights Act (“Unruh Act”). (Complaint, ¶¶ 28-42). Plaintiff seeks damages under the Unruh Act, injunctive relief compelling Defendants to comply with the ADA and Unruh Act, and reasonable attorney's fees, litigation expenses and costs of suit. (Complaint at 7-8).

On June 10, 2021, Plaintiff filed a Motion for Summary Judgment (“Motion”), which, among other things, noted that “[d]uring the pendency of the federal case, the Store has closed and ceased to operate.” (Plaintiff's Memorandum of Points and Authorities in Support of Summary Judgment at 1). On June 17, 2021, Defendant Simco filed an Opposition that, among other things, agreed that the Store was closed and out of business.^[1] (See Declaration of Joseph Shayfar in Opposition to Summary Judgment, ¶ 9 (The Store “no longer exists. Some time in the beginning of 2020, the tenant who owned the Store moved out.”)).

Based on the parties' statements, on July 9, 2021, the Court issued an Order to Show Cause (“OSC”) requiring Plaintiff to show cause “why his ADA claim should not be dismissed as moot” and also to “address whether, in the event the ADA claim is moot, the Court should retain supplemental jurisdiction over Plaintiff's Unruh Act claim.” (Dkt. No. 85). The OSC also afforded Defendants an opportunity to address these issues. (Id.).

On July 19, 2021, Plaintiff filed a Response to the OSC. (Dkt. No. 86). In his Response, Plaintiff acknowledged that the Store had closed since his original visit and, therefore, Plaintiff is no longer “seeking injunctive relief[, ]” but noted he is still “seeking damages under the Unruh Act” and asserted that the Court should retain supplemental jurisdiction over his Unruh Act claim. (Id.). That same day, Defendant Simco filed a Memorandum of Contentions of Law and Fact arguing, among other things, that Plaintiff's ADA claim is moot. (Dkt. No. 88).

II. DISCUSSION

“Article III of the Constitution limits federal courts to the adjudication of actual, ongoing controversies between litigants.” Deakins v. Monaghan, 484 U.S. 193, 199 (1988); Preiser v. Newkirk, 422 U.S. 395, 401 (1975). “[F]ederal courts may not ‘give opinions upon moot questions or abstract propositions.'” Calderon v. Moore, 518 U.S. 149, 150 (1996) (per curiam) (citation omitted). “This means that, throughout the litigation, [Plaintiff] ‘must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.'” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). Mootness is a threshold jurisdictional issue. Alliance for the Wild Rockies v. Savage, 897 F.3d 1025, 1031 (9th Cir. 2018); United States v. Strong, 489 F.3d 1055, 1059 (9th Cir. 2007); see also Shell Offshore Inc. v. Greenpeace, Inc., 815 F.3d 623, 628 (9th Cir. 2016) (“We first address, as we must, the question of mootness before we can consider the substance of the parties' contentions.”); Rivera v. Crema Coffee Co. LLC, 438 F.Supp.3d 1068, 1073 (N.D. Cal. 2020) (“Before the Court may consider the substance of Mr. Rivera's ADA claim, it must first resolve the threshold issue of mootness and whether this Court possesses subject matter jurisdiction over the action.”). “‘The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted.'” Bayer v. Neiman Marcus Group, Inc., 861 F.3d 853, 862 (9th Cir. 2017) (citation omitted).

“Damages are not recoverable under Title III of the ADA - only injunctive relief is available for violations of Title III.” Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002); see also Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1174 (9th Cir. 2010) (“Injunctive relief is the sole remedy available to private parties under the [ADA]; it does not authorize a claim for money damages.”). And a “‘request for injunctive relief remains live only so long as there is some present harm left to enjoin.'” Bayer, 861 F.3d at 864 (citation omitted). Here, however, it is undisputed that the Store has permanently closed, which renders Plaintiff's ADA claim moot. See Kohler v. Southland Foods, Inc., 459 Fed.Appx. 617, 618 (9th Cir. 2011) (“Kohler's claims for prospective injunctive relief became moot once the restaurant ceased operation.”); Rivera, 438 F.Supp.3d at 1073 (“Because the only remedy available to Mr. Rivera under Title III is injunctive relief, the permanent closure of the Coffeehouse renders that prospective relief moot.”); Johnson v. Cala Stevens Creek/Monroe, LLC, 401 F.Supp.3d 904, 910 (N.D. Cal. 2019) (“Here, the Spa at the center of Plaintiff's [ADA Title III] suit closed in March 2018. . . . [T]his fact renders the request for an injunction moot. . . .”); Fernandez v. Wind Chime Props., L.P., 2020 WL 5802416, *4 (C.D. Cal. 2020) (“Defendants' uncontroverted contention that the Market has permanently closed renders Plaintiff's ADA claim moot.”). Accordingly, Plaintiff's ADA claim must be dismissed as moot.

Plaintiff does not dispute that his ADA claim is moot, but contends the Court should retain supplemental jurisdiction over his Unruh Act claim. (Response at 1-11). However, a district court “may decline to exercise supplemental jurisdiction” over a state law claim if, as here, “the district court has dismissed all claims over which it has original jurisdiction[.]” 28 U.S.C. § 1367(c)(3); Velazquez v. City of Long Beach, 793 F.3d 1010, 1029 (9th Cir. 2015). “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine - judicial economy, convenience, fairness, and comity - will point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010). Such is the case here. Accordingly, the Court declines to exercise supplemental jurisdiction over Plaintiff's Unruh Act claim.^[2]See Lima v. United States Dep't of Educ., 947 F.3d 1122, 1128 (9th Cir. 2020) (“Because no federal claims remain, the district court did not abuse its discretion by declining to exercise supplemental jurisdiction over Plaintiff's state-law claim.”); Oliver v. Ralphs Grocery Co., 654 F.3d 903, 911 (9th Cir. 2011) (“Because the balance of the factors of ‘judicial economy, convenience, fairness, and comity' did not ‘tip in favor of retaining the state-law claims' after the dismissal of the ADA claim, the district court did not abuse its discretion in dismissing Oliver's state law claims without prejudice.” (citation omitted)); Vogel v. Winchell's Donut Houses Operating Co., LP, 252 F.Supp.3d 977, 985-88 (C.D. Cal. 2017) (declining to exercise supplemental jurisdiction over Unruh Act claim after dismissing ADA claim as moot); Pappion v. R-Ranch Prop. Owners Ass'n, 110 F.Supp.3d 1017, 1026 (E.D. Cal. 2015) (declining to retain supplemental jurisdiction over plaintiff's Unruh Act claim after granting summary judgment to defendant on plaintiff's ADA claim). Therefore, the Court dismisses Plaintiff's Unruh Act claim without prejudice. See Watison v. Carter, 668 F.3d 1108, 1117 (9th Cir. 2012) (when court declines to exercise supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367(c)(3), dismissal of the state law claims is without prejudice).

Plaintiff requests that if the Court declines to exercise supplemental jurisdiction over his Unruh Act claim, the Court stay this Order pending the Ninth Circuit's decision in Arroyo v. Rojas, 19-55974 or, alternatively, grant Plaintiff leave to seek an interlocutory appeal. (Response at 11-14).

“A stay is an ‘intrusion into the ordinary processes of administration and judicial review,' and accordingly ‘is not a matter of right, even if irreparable injury might otherwise result. . . .'” Nken v Holder, 556 U.S. 418, 427 (2009) (citations and internal quotation marks omitted); Indiana State Police Pension Trust v. Chrysler LLC, 556 U.S. 960, 961 (2009) (per curiam). “It is instead ‘an exercise of judicial discretion,' and ‘[t]he propriety of its issue is dependent upon the circumstances of the particular case.'” Nken, ...