Chris Kohler v. Southland Foods, Inc. , 459 F. App'x 617 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHRIS KOHLER, No. 10-55436
Plaintiff - Appellant, D.C. No. 5:08-cv-01785-VAP-RZ
v.
MEMORANDUM *
SOUTHLAND FOODS, INC., DBA
Arbys #6048; MORENO VALLEY
FESTIVAL, LTD.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted November 7, 2011
Pasadena, California
Before: SCHROEDER and LEAVY, Circuit Judges, and GILLMOR, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Helen W. Gillmor, United States District Judge for the
District of Hawaii, sitting by designation.
Plaintiff-appellant Chris Kohler appeals the district court’s grant of summary
judgment in favor of defendant-appellees Southland Foods, Inc. (“Southland”), and
Moreno Valley Festival, Inc., in Kohler’s action for injunctive relief under Title III
of the Americans with Disabilities Act (“ADA”), and for additional relief under
related state-law claims. When Southland closed the restaurant that was the
subject of Kohler’s ADA action, the district court correctly terminated the action.
The order incorrectly, however, referred to a lack of standing. Kohler did not lack
standing, because standing “turns on the facts as they existed at the time the
plaintiff filed the complaint,” and not on later developments. Skaff v. Meridien
North America Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir. 2007).
We nevertheless must affirm the district court’s grant of summary judgment
to defendants, because Kohler’s claims for prospective injunctive relief became
moot once the restaurant ceased operation. There is no basis in the district court
record for this court to rule that Kohler’s dispute challenging the presence of
access barriers is capable of repetition but evading review, as he now argues. A
challenged action evades review only “if it is ‘almost certain to run its course
before either this court or the Supreme Court can give the case full consideration.’”
American Civil Liberties Union of Nevada v. Lomax, 471 F.3d 1010, 1017 (9th Cir.
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2006) (citation omitted). That is not the case with respect to the operation of a
restaurant.
Kohler maintains that his claim under California’s Unruh Civil Rights Act,
Cal. Civ. Code § 51, is sufficient to sustain federal court jurisdiction even though
his ADA claim is moot. He argues that state-law claim “arises under” federal law
because the Unruh Civil Rights Act incorporates an ADA violation as an element.
We have rejected this position. Wander v. Kaus, 304 F.3d 856, 857 (9th Cir.
2002). The Supreme Court’s intervening decision in Grable & Sons Metal Prod.,
Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), does not affect
the applicability of the principle we recognized in Wander, and that the Supreme
Court earlier established in Merrell Dow Pharmaceuticals Inc. v. Thompson, 478
U.S. 804 (1986).
Given the absence of any available relief under federal law, the district court
did not abuse its discretion in declining to exercise supplemental jurisdiction over
Kohler’s state-law claims. 28 U.S.C. § 1367(c)(3); City of Colton v. American
Promotional Events, Inc.-West, 614 F.3d 998, 1008 (9th Cir. 2010).
AFFIRMED.
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