Michael Rocca v. Vip Plaza Investment, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL ROCCA,
Plaintiff-Appellee,
v.
VIP PLAZA INVESTMENT, INC.,
Defendant-Appellant.
No. 17-56841
D.C. No.
8:16-cv-00891-AG-DFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted May 14, 2019**
Pasadena, California
Before: NGUYEN and OWENS, Circuit Judges, and ANTOON,*** District Judge.
Defendant VIP Plaza Investment, Inc., (VIP Plaza) appeals from the district
court’s order granting attorneys’ fees and costs to Plaintiff Michael Rocca after he
* 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 John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
FILED
MAY 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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prevailed at summary judgment in his ADA lawsuit arising from VIP Plaza’s
maintenance of access barriers at its shopping center. As the parties are familiar
with the facts, we do not recount them here. We affirm.
To establish standing in a lawsuit seeking injunctive relief, “a plaintiff must
show that he is under threat of suffering ‘injury in fact’ that is concrete and
particularized; the threat must be actual and imminent, not conjectural or
hypothetical; it must be fairly traceable to the challenged action of the defendant;
and it must be likely that a favorable judicial decision will prevent or redress the
injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). VIP Plaza
argues that Rocca failed to show that the threat of future injury was imminent
because Rocca “was not likely to revisit [the shopping center] nor had any such
intentions.” However, Rocca declared that he “intend[s] to return to the [shopping
center].” VIP Plaza does not dispute, or even address, Rocca’s declaration.
Therefore, Rocca has established that the threat of future injury was imminent. See
Chapman v. Pier 1 Imps. (U.S.), 631 F.3d 939, 953 (9th Cir. 2011) (en banc) (“The
threat of repeated injury in the future is ‘real and immediate’ so long as the
encountered barriers either deter him from returning or continue to exist at a place
of public accommodation to which he intends to return.”).
In one sentence, VIP Plaza also contends that the district court should not
have awarded attorneys’ fees to Rocca. But VIP Plaza waived its challenge to the

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attorneys’ fees award because a “bare assertion of an issue does not preserve a
claim.” Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).
AFFIRMED.

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