                                                                            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                           NOT FOR PUBLICATION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


                                            2
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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