FILED
NOT FOR PUBLICATION
FEB 08 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BYRON CHAPMAN, No. 16-56432
Plaintiff-Appellant, D.C. No.
2:15-cv-02373-SVW-AGR
v.
PISMO FOOD STORE; HAN POM CHO; MEMORANDUM*
PYONG HUI CHO,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted February 6, 2018**
San Francisco, California
Before: THOMAS, Chief Judge, and D.W. NELSON and CHRISTEN, Circuit
Judges.
Byron Chapman appeals the district court’s judgment, following a bench
trial, in favor of Defendants. We have jurisdiction under 28 U.S.C. § 1291. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review a district court’s factual findings for clear error, and the standing
determination de novo. Lozano v. A T & T Wireless Servs., Inc., 504 F.3d 718, 725
(9th Cir. 2007). We affirm in part and vacate in part.
The district court properly determined Chapman lacked standing to sue.
Standing encompasses three elements: (1) the plaintiff must suffer an “injury in
fact”; (2) a “causal connection between the injury and the conduct complained of”
must exist; and (3) the injury must be “‘likely’ . . . [to] be ‘redressed by a favorable
decision.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (quoting
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976). In order to obtain
injunctive relief under the Americans with Disabilities Act, the plaintiff must
establish a “‘real and immediate threat of repeated injury’ in the future.” Chapman
v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (quoting Fortyune
v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)). Chapman failed
to establish a real and immediate threat of future injury through either the
deterrence or intent-to-return theory.
Chapman testified at trial that he was not currently deterred from visiting the
store. See Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1040–41 (9th Cir. 2008)
(reasoning that under the deterrence theory, the plaintiff must demonstrate he
visited the accommodation on a prior occasion and is “currently deterred” from
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returning to the accommodation due to architectural barriers). Chapman also failed
to demonstrate an intent to return to the store. Chapman failed to establish any
regularity in his visits to Pismo Beach, where the store is located, and likewise
failed to present sufficient evidence of more than a vague desire to return to the
store. D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1037–38 (9th Cir.
2008) (finding a real and immediate threat of future injury where the “plaintiff
demonstrates an intent to return to the geographic area where the accommodation
is located and a desire to visit the accommodation if it were made accessible”
through the regularity of the plaintiff’s visits to the area, a stated intent or plan to
return to the accommodation, and an explanation of why the plaintiff preferred the
accommodation at issue over others).
To the extent that the district court reached the merits of the case after
determining Chapman lacked standing to sue, we must vacate that portion of the
judgment. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (holding
that where a plaintiff lacks Article III standing, an Article III federal court lacks
subject matter jurisdiction to hear the case and must dismiss the suit under Rule
12(b)(1)).
AFFIRMED IN PART; VACATED IN PART.
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