1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 SCOTT JOHNSON, Case No. 21-cv-04307-BLF

8 Plaintiff,

ORDER GRANTING MOTION TO

9 v. DISMISS ADA CLAIM FOR LACK OF

SUBJECT MATTER JURISDICTION;

10 OPA LOS ALTOS, LP, et al., DECLINING SUPPLEMENTAL

JURISDICTION OVER UNRUH ACT

11 Defendants. CLAIM 12 [Re: ECF No. 21]

13 14 Before the Court is a motion to dismiss brought by Defendants Opa Los Altos LP and Opa 15 Management Group, Inc. (“Opa”). ECF No. 21 (“Mot.”); see also ECF No. 24 (“Reply”). Opa 16 argues that Plaintiff Scott Johnson’s lone federal claim—brought under the Americans with 17 Disabilities Act of 1990 (“ADA”), 42 U.S.C. §12101, et seq.—is moot because Opa has ceased all 18 business operations and permanently vacated the premises at issue. Johnson opposes the motion. 19 ECF No. 23 (“Opp.”). The Court agrees with Opa that the ADA claim is moot, and for the 20 following reasons GRANTS Opa’s motion to dismiss the ADA claim. The Court declines to 21 exercise supplemental jurisdiction over the remaining state law claim under the Unruh Act. 22 Accordingly, Johnson’s Complaint is DISMISSED WITHOUT PREJUDICE. 23 I. BACKGROUND 24 Johnson is a level C-5 quadriplegic who relies on a wheelchair for mobility. ECF No. 1 25 (“Compl.”) ¶ 1. He also has significant manual dexterity impairments. Id. Johnson alleges that in 26 March and May 2021, he visited the Opa Authentic Greek Cuisine restaurant located at 325 Main 27 Street in Los Altos. Id. ¶¶ 2–3, 8. During these visits, Johnson observed that the restaurant lacked 1 those visits. Id. ¶ 2. Johnson filed this action against Opa on June 7, 2021, alleging violations of 2 the ADA and the California Unruh Civil Rights Act, Cal. Civ. Code § 51–53. See generally 3 Compl. For his ADA claim, he seeks only injunctive relief to remove the alleged barriers to 4 access. See Compl., Prayer ¶ 1. 5 II. LEGAL STANDARD 6 Federal courts can adjudicate only those cases which the Constitution and Congress 7 authorize them to adjudicate: those involving diversity of citizenship or a federal question, or 8 those to which the United States is a party. Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 376– 9 77 (2012); see also Chen-Cheng Wang ex rel. United States v. FMC Corp., 975 F.2d 1412, 1415 10 (9th Cir. 1992) (“Federal courts have no power to consider claims for which they lack subject- 11 matter jurisdiction.”). The Court has a continuing obligation to ensure that it has subject matter 12 jurisdiction. See Fed. R. Civ. P. 12(h)(3). A defendant may raise the defense of lack of subject 13 matter jurisdiction by motion pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. 14 The plaintiff bears the burden of establishing subject matter jurisdiction. Kokkonen v. Guardian 15 Life Ins., 511 U.S. 375, 377 (1994). 16 A jurisdictional challenge may be facial or factual. Safe Air for Everyone v. Meyer, 373 17 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the Court determines whether the 18 allegations contained in the complaint are sufficient on their face to invoke federal jurisdiction, 19 accepting all material allegations in the complaint as true and construing them in favor of the party 20 asserting jurisdiction. Id.; see also Warth v. Seldin, 422 U.S. 490, 501 (1975). Where the attack is 21 factual, however, “the court need not presume the truthfulness of the plaintiff’s allegations.” Safe 22 Air for Everyone, 373 F.3d at 1039. In resolving a factual dispute as to the existence of subject 23 matter jurisdiction, the Court may review extrinsic evidence beyond the complaint without 24 converting a motion to dismiss into one for summary judgment. Id. Once the moving party has 25 made a factual challenge by offering affidavits or other evidence to dispute the allegations in the 26 complaint, the party opposing the motion must “present affidavits or any other evidence necessary 27 to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.” 1 High Sch. Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). 2 “Jurisdictional dismissals in cases premised on federal-question jurisdiction are 3 exceptional, and must satisfy the requirements specified in Bell v. Hood, 327 U.S. 678, 66 S. Ct. 4 773, 90 L. Ed. 939 (1946).” Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 5 1983). The Supreme Court has determined that jurisdictional dismissals are warranted “where the 6 alleged claim under the Constitution or federal statues clearly appears to be immaterial and made 7 solely for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial 8 and frivolous.” Bell, 327 U.S. at 682–83. 9 III. DISCUSSION 10 A. ADA Claim 11 Opa brings a factual challenge to the Court’s subject-matter jurisdiction, arguing that it 12 cannot be liable for an ADA violation because the restaurant terminated its occupancy on July 25, 13 2021 and ended its lease of the premises on September 30, 2021, meaning that Opa no longer 14 owns or leases the restaurant at that address. Mot. at 5; Adams Decl., ECF No. 21-1 ¶¶ 3–4. Opa 15 says that it vacated the building that it previously occupied, surrendered possession of the facility, 16 and has no ownership interest in the facility. Id. ¶ 5. 17 Johnson does not offer any evidence to meet his burden to establish subject matter 18 jurisdiction in the face of this evidence from Opa. See St. Clair, 880 F.2d at 201; Savage, 343 19 F.3d at 1040 n.2. Instead, Johnson makes several arguments that have been repeatedly rejected in 20 similar ADA cases in which defendants have alleged that they have vacated the subject premises. 21 First, Johnson argues that Opa’s jurisdictional challenge is improperly brought as a Rule 22 12(b)(1) motion because “the very question this Court needs to address in determining whether it 23 has jurisdiction is the same question that must be answered to determine the merits of the case and 24 whether plaintiff can prove his claims.” Opp. at 3. Where defendants have moved to dismiss on 25 jurisdictional grounds based on their alleged compliance with the ADA, this argument has 26 sometimes prevailed. See Johnson v. Fogo De Chao Churrascaria (San Jose) LLC, 2021 WL 27 3913519, at *3 (N.D. Cal. Sep. 1, 2021). But in cases alleging mootness due to a defendant 1 unsuited to the issue, courts have instead applied a summary judgment standard to decide the 2 motion without converting the motion to a Rule 56 motion. See Whitaker v. A&S Hershenson, 3 LLC, 2019 U.S. Dist. LEXIS 226805, at *4 (C.D. Cal. Nov. 13, 2019) (holding that because the 4 issue also determined whether defendant could be liable under federal accessibility laws, the court 5 “must apply a summary judgment standard”). The Court will apply the summary judgment 6 standard here. 7 Second, Johnson argues that Opa’s evidence of the restaurant’s closure is insufficient 8 because a declaration from its Chief Executive Officer Molly Adams is “self-serving” and 9 inadequate to support its argument that the case against it is moot. Opp. at 6. But the Ninth 10 Circuit has recognized that affidavits are perfectly appropriate evidence for determining whether 11 the Court has subject-matter jurisdiction. See Johnson v. Otter, 2019 WL 452040, at *3 (N.D. Cal. 12 Feb. 5, 2019) (citing Safe Air for Everyone, 373 F.3d at 1039). 13 Finally, Johnson argues that Opa has not shown that it has permanently ceased operations 14 at the restaurant and suggests that the Court infer that Opa will resume operations because it “only 15 closed its business after being sued by Plaintiff.” Id. at 3–5 (emphasis in original). The Court 16 need not consider Opa’s purported motivations for ceasing to operate the restaurant. The 17 uncontroverted evidence shows that Opa does not have an interest in the subject property and that 18 the restaurant has permanently vacated the property. 19 A claim may become moot if (1) subsequent events have made it absolutely clear that the 20 allegedly wrongful behavior cannot reasonably be expected to recur, and (2) interim relief or 21 events have completely and irrevocably eradicated the effects of the alleged violation. Norman- 22 Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1274 (9th Cir. 1998) (citing United States v. 23 Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968); Lindquist v. Idaho State Bd. Of 24 Corrections, 776 F.2d 851, 854 (9th Cir. 1985)). In Kohler v. Southland Foods, Inc., the Ninth 25 Circuit held that the plaintiff’s “[ADA] claims for prospective injunctive relief became moot once 26 the restaurant ceased operation.” 459 F. App’x 617 (9th Cir. 2011) (unpublished); see also Otter, 27 2019 WL 452040, at *3; Johnson v. Lake Tahoe Partners, No. CIV. S-13-2534 KJM, 2014 WL 1 challenged premises have closed with no plans to reopen or lease to new tenants.” (citing cases)). 2 This is precisely the scenario here. In view of the record before the Court, Johnson cannot 3 plausibly expect to encounter any of the alleged barriers in the future because the restaurant is no 4 longer in operation and Opa has vacated the property. Moore, 708 F. App’x at 485; see also City 5 of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). The Court finds Johnson’s ADA claim moot 6 and on that basis grants Opa’s motion to dismiss the ADA claim for lack of subject matter 7 jurisdiction. 8 B. Unruh Act Claim 9 Opa argues that the Court should decline supplemental jurisdiction over the Unruh Act 10 claim because the only federal claim has been dismissed. Mot. at 5–6. In opposition, Johnson 11 does not provide argument for why the Court should exercise supplemental jurisdiction over the 12 Unruh Claim if it were to dismiss the ADA claim and nothing but the Unruh Act claim is 13 remaining. See Opp. at 9–11 (addressing situations in which (1) the ADA claim is not dismissed 14 and (2) the ADA claim is dismissed but other federal claims remain). 15 “District courts may—and often do—decline to exercise supplemental jurisdiction if, as 16 here, it has dismissed all claims over which it has original jurisdiction.” Johnson v. Opa Campbell 17 LP, 2021 WL 3493712, at *4 (N.D. Cal. Aug. 9, 2021) (quoting Johnson v. Montpelier One LLC, 18 2020 WL 3504458, at *3 (N.D. Cal. June 28, 2020), and citing 28 U.S.C. § 1367(c)(3)). The 19 Supreme Court and Ninth Circuit have “often repeated” that “in the usual case in which all 20 federal-law claims are eliminated before trial, the balance of factors will point toward declining to 21 exercise jurisdiction over the remaining state-law claims.” Acri v. Varian Assocs., Inc., 114 F.3d 22 999, 1001 (9th Cir. 1997). 23 Just last month, the Ninth Circuit weighed in on this issue as applied to construction- 24 related accessibility cases. See Arroyo v. Rojas, 19 F.4th 1202 (9th Cir. 2021). In that case, the 25 Ninth Circuit noted that under the Unruh Act, the California legislature chose to “impose filing 26 restrictions designed to address [the concern that] high-frequency litigants may be using the statute 27 to obtain monetary relief for themselves without accompanying adjustments to locations to assure 1 litigants” to pay an additional $1,000 filing fee and disclose how many complaints they have filed 2 || inthe last year, the reason the plaintiff was in the geographic area of defendant’s business, and 3 || why plaintiff desired to access the business. See id. at 1207-08. “Due to the shift of ADA-based 4 Unruh Act cases to federal court[s],” which have not applied these restrictions, the Ninth Circuit 5 || found that Unruh Act’s goal of “simultaneously providing damages relief for ADA violations 6 || while ‘limit[ing] the financial burdens California’s businesses may face for statutory damages’” 7 has been undermined. Jd. at 1212-13. Thus, the court held that district courts should consider 8 || “on a case-by-case basis” whether to decline supplemental jurisdiction over Unruh Act claims. Id. 9 || at 1205. 10 Applying these considerations to this specific case, the Court will decline supplemental 11 || jurisdiction. Johnson has not shown that this is anything but the “usual case” in which the Court 12 should decline supplemental jurisdiction where no federal claims remain. Acri, 114 F.3d at 1001. 5 13 || The Court has not considered the merits of the Unruh Act claim and there is no interest in judicial 14 || economy in keeping the case. The Court will therefore decline to exercise supplemental 3 15 || jurisdiction over the Unruh Act claim. Plaintiff may bring that claim in state court, subject to any 16 || procedural requirements under the Unruh Act that may be applicable to him. 2 17 || IV. ORDER Z 18 For the foregoing reasons, IT IS HEREBY ORDERED that: 19 e Opa’s motion to dismiss Johnson’s ADA claim for lack of subject-matter 20 jurisdiction under Rule 12(b)(1) is GRANTED; 21 e the Court DECLINES to exercise supplemental jurisdiction over the Unruh Act 22 claim; and 23 e Johnson’s complaint is DISMISSED WITHOUT PREJUDICE. 24 25 || Dated: January 18, 2022 han hewn Lr ama

BETH LABSON FREEMAN

27 United States District Judge 28