Terry Hubbard v. Sola Real Estate Fund I, LLC

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TERRY HUBBARD, No. 22-55562

Plaintiff-Appellee, D.C. No. 2:20-cv-06964-MWF-AGR v.

SOLA REAL ESTATE FUND I, LLC, a MEMORANDUM* Delaware Limited Liability Company,

Defendant-Appellant,

and

DOES, 1-10,

Defendant.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted July 10, 2023 San Francisco, California

Before: BEA, BENNETT, and H.A. THOMAS, Circuit Judges.

SoLa Real Estate Fund I, LLC (SoLa) appeals the district court’s grant of

summary judgment to Terry Hubbard in a lawsuit brought under the Americans

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA). We have jurisdiction

under 28 U.S.C. § 1291. We review the district court’s grant of summary judgment

de novo. Duarte v. City of Stockton, 60 F.4th 566, 570 (9th Cir. 2023). We affirm.

The district court correctly held that SoLa’s remediation efforts at Navarro’s

Market were insufficient to moot Hubbard’s ADA claim as to the paths of travel

barrier. SoLa states, and Hubbard does not contest, that Navarro’s Market had

remediated the paths of travel to be 36" or wider. For SoLa’s voluntary cessation to

moot Hubbard’s claim, however, SoLa “bears the formidable burden of showing

that it is absolutely clear the allegedly wrongful behavior could not reasonably be

expected to recur.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,

528 U.S. 167, 190 (2000).

SoLa has not met its burden. SoLa’s remediation did not involve permanent

architectural changes. Navarro’s Market could slip into noncompliance with the

ADA simply by, as it has done in the past, leaving boxes extending past the shelf

length, stacking merchandise on the floor, or setting up displays in a way that

narrows the store’s aisles. Cf. Kohler v. Bed Bath & Beyond of Cal., LLC, 780 F.3d

1260, 1262, 1267 (9th Cir. 2015) (installing a new, ADA-compliant paper towel

dispenser mooted a plaintiff’s ADA claim). SoLa’s twice-weekly verification

policy could be changed or rescinded at any time and at best provides supervision

only at two points of time during the week. SoLa, moreover, provides no

2 explanation of how noncompliance will be addressed or how future employees will

be trained to conduct verifications.

Hubbard’s ADA claim is not moot as to the paths of travel barrier and SoLa

makes no other argument as to why Hubbard is not entitled to summary judgment.1

Because the facts underlying SoLa’s remediation efforts are not in dispute, there is

no genuine dispute of material fact precluding summary judgment.

AFFIRMED.

1 Although, at oral argument, SoLa’s counsel appeared to challenge Hubbard’s standing, counsel also conceded that SoLa’s argument on appeal is based on events that occurred after Hubbard filed his complaint. See West Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587, 2607 (2022) (“It is the doctrine of mootness, not standing, that addresses whether an intervening circumstance has deprived the plaintiff of a personal stake in the outcome of the lawsuit.” (cleaned up)). Nor has any dispute of material fact as to Hubbard’s standing been raised.