Garcia v. Quong Fook Tong

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ORLANDO GARCIA, 7 Case No. 21-cv-05539-JCS Plaintiff, 8 v. ORDER TO SHOW CAUSE 9 QUONG FOOK TONG, 10 Defendant. 11

12 13 Plaintiff in this case asserted claims under California’s Unruh Act and Title III of the 14 Americans with Disabilities Act (“ADA”) based on accessibility violations in connections with a 15 business located at 751 Clay Street, San Francisco CA, called Tarta’s Secret. The Court declined 16 to exercise supplemental jurisdiction over Plaintiff’s state law claim, leaving only the ADA claim. 17 Although Plaintiff contends the business was open when he visited it in June 2021, the pictures he 18 produced in his initial disclosures reflect that on July 26, 2021 – the date his investigator visited 19 the business, see Whang Decl., Ex. A (dkt. no. 16-3) – the business was boarded up and closed. 20 Because the only remedy available to Plaintiff under Title III of the ADA is injunctive relief, the 21 permanent closure of Tarta’s Secret would render prospective relief moot and deprive the Court of 22 subject matter jurisdiction over this case. Rivera v. Crema Coffee Co. LLC, 438 F. Supp. 3d 1068, 23 1073–74 (N.D. Cal. 2020) (citing 42 U.S.C. § 12188; Kohler v. Southland Foods, Inc., 459 F. 24 App'x 617, 618 (9th Cir. 2011); Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002) (“Damages are 25 not recoverable under Title III of the ADA—only injunctive relief is available for violations of 26 Title III.”); Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 864 (9th Cir. 2017) (“A request for 27 injunctive relief remains live only so long as there is some present harm left to enjoin.”) (quoting 1 omitted)). Accordingly, Plaintiff is ORDERED TO SHOW CAUSE why this case should not be 2 || dismissed on the basis that the business that is the subject of Plaintiff’s claim is permanently 3 || closed. Plaintiff shall file a response, including evidence that Tarta’s Secret continues to 4 operate as a business, no later than July 22, 2022. 5 IT ISSO ORDERED. 6 || Dated: July 15, 2022 , J PH C. SPERO 8 ief Magistrate Judge 9 10 11 12

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