                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 10 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


                                                 No.   14-17054
IRMA RAMIREZ; DAREN
HEATHERLY,                                       D.C. No. 3:12-cv-05656-LB

              Plaintiff - Appellants,
                                                 MEMORANDUM*
 v.

GOLDEN CRÈME DONUTS; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Laurel D. Beeler, Magistrate Judge, Presiding

                           Submitted October 21, 2016**
                             San Francisco, California

Before: KLEINFELD and M. SMITH, Circuit Judges, and KORMAN,*** District
Judge.



      *
             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).
      ***
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
      Irma Ramirez and Daren Heatherly (the “Appellants”), both of whom are

disabled, sued Golden Crème Donuts and the owners of the building in which it

operates (collectively, “Golden Crème Donuts”), alleging several violations of the

Americans with Disabilities Act (the “ADA”) and California law. After Appellants

filed suit, Golden Crème Donuts remediated all of the alleged ADA violations in

the donut shop except for those associated with the public restroom, to which it

permanently closed off public access. When the parties cross-moved for summary

judgment, the sole disputed ADA violation pertained to the restroom. The district

court granted Golden Crème Donuts’s motion concluding that, because the

restroom was no longer open to the public, it was no longer subject to the dictates

of the ADA, and thus the case was moot. The district court declined to exercise

supplemental jurisdiction over Appellants’ state-law claims. On appeal,

Appellants contend that Golden Crème Donuts’s closure of the restroom did not

moot their claim for injunctive relief under the ADA, and that, because Golden

Crème Donuts violated the California Retail Food Code—which, they argue,

requires Golden Crème Donuts to maintain a public restroom—by closing the

restroom, it was error for the district court to grant Golden Crème Donuts’s motion

for summary judgment.




                                          2
      1. Title III of the ADA only forbids “discrimination on the basis of disability

in ‘any place of public accommodation,’” which means that an “employees-only

restroom” not open to the public “is not a place of public accommodation and thus is

not subject to Title III of the ADA.” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1048

(9th Cir. 2008) (quoting 42 U.S.C. § 12182(a)). In this case, there is no dispute that

Golden Crème Donuts has closed the restroom at the donut shop from public access.

Because “the exclusion of a disabled plaintiff from an employees-only restroom does

not violate the ADA,” the district court could not enjoin Golden Crème Donuts to

make the restroom handicap accessible. See Doran, 524 F.3d at 1048. Appellants no

longer have a claim for injunctive relief under the ADA. Thus, the case is moot.

      2. Nor does any mootness exception apply. Because there is a permanent wall

blocking public access to the restroom corridor, it is “absolutely clear that the

allegedly wrongful behavior could not reasonably be expected to recur,” and thus the

voluntary cessation mootness exception does not apply. Friends of the Earth, Inc. v.

Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting United States

v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968)). Indeed, even if

California law required Golden Crème Donuts to provide a public restroom in the

future, the entity requiring them to open a public restroom would almost certainly

require that future restroom to comply with the ADA. See Cal. Health & Safety Code


                                          3
§ 113715 (requiring that “[a]ny construction, alteration, remodeling, or operation of

a food facility . . . shall be in accordance with all applicable local, state, and federal

statutes, regulations, and ordinances”).

Finally, the exception applicable to cases “where the trial court’s order will have

possible collateral legal consequences” does not apply. Koppers Indus., Inc. v. EPA,

902 F.2d 756, 758 (9th Cir. 1990). The consequence of which Appellants complain

is the closure of the public restroom, but even if the district court ordered Golden

Crème Donuts to make the restroom handicap accessible, it could not order Golden

Crème Donuts to open it to the public. Thus, even if that consequence were a legal

one, which it was not, that consequence did not follow from the district court’s order.

      3. Golden Crème Donuts has moved for judicial notice to be taken of a state-

court complaint that Appellants filed after the district court granted Golden Crème

Donuts’s motion for summary judgment on Appellants’ ADA claim and declined to

exercise supplemental jurisdiction over their remaining state-law claims. Because

Appellants make no argument that the district court erred by declining to exercise

supplemental jurisdiction, that issue is not before the panel.

      The motion requesting that judicial notice to be taken is DENIED and the

decision of the district court is AFFIRMED.




                                            4
