Cecil Shaw v. JAR-RAMONA PLAZA, LLC, a California limited liability company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CECIL SHAW,
Plaintiff-Appellant,
v.
JAR-RAMONA PLAZA, LLC, a
California limited liability company,
Defendant-Appellee.
No. 15-55495
D.C. No.
5:13-cv-01563-CAS-SP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted December 7, 2016
Pasadena, California
Before: CALLAHAN, BEA, and IKUTA, Circuit Judges.
Cecil Shaw is disabled and uses a wheelchair. He brought this action in the
United States District Court for the Central District of California pursuant to the
Americans with Disabilities Act, 42 U.S.C. §§12182–83, and state laws, against
Jar-Ramona Plaza LLC (“JAR”), the owner of the Jar-Ramona Plaza Shopping
FILED
JAN 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

-- 1 of 5 --

Center (“the Plaza”), and a number of the Plaza’s tenants. Shaw alleged that when
he visited the Plaza in September 2011, he encountered a number of barriers,
including an excessively sloped walkway appurtenant to the Grocery Outlet store.
Shaw subsequently entered into a settlement agreement with Grocery Outlet (“the
Settlement Agreement”) that released Grocery Outlet from liability for all claims
against it, and that released JAR from landlord liability for all claims against
Grocery Outlet, except for those claims relating to common areas appurtenant to
Grocery Outlet and not covered in a “Report” attached to the Settlement
Agreement.
Thereafter, Shaw filed a First Amended Complaint that re-alleged his
encounter with the sloped walkway and asserted for the first time the existence of a
number of other barriers at the Plaza, which he had not personally encountered.
Shaw moved for summary judgment. The District Court denied the motion
because there were outstanding genuine issues of material fact. It further held that
Shaw’s entry into the Settlement Agreement precluded him from using his
encounter with the sloped walkway as the predicate for seeking injunctive relief on
the alleged barriers that had existed in 2011, but which he had not personally
encountered.
2

-- 2 of 5 --

Shaw chose to file a stipulated dismissal with prejudice and then filed a
notice of appeal. We affirm.
A stipulated dismissal with prejudice is an appealable order. Berger v.
Home Depot USA, Inc., 741 F.3d 1061, 1065–66 (9th Cir. 2014); Concha v.
London, 62 F.3d 1493, 1507 (9th Cir. 1995). However, such a dismissal only
allows “the appellate court to review the action of the district court that the plaintiff
believes to be determinative of his claim—the action that caused him to dismiss his
case.” Concha, 62 F.3d at 1507.
The denial of summary judgment is reviewed de novo, but “[w]e must
determine, viewing the evidence in the light most favorable to the nonmoving
party, whether there are any genuine issues of material fact and whether the district
court correctly applied the relevant substantive law.” Universal Health Servs., Inc.
v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004) (internal quotation marks
omitted); see also United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.
2003).
Viewing the record in favor of JAR—the non-moving party on Shaw’s
motion for summary judgment—the District Court correctly determined that there
were outstanding genuine issues of material fact. The Settlement Agreement is not
a model of clarity. The sloping sidewalk that Shaw encountered is appurtenant to
3

-- 3 of 5 --

the Grocery Outlet store, but it is not clear whether it is covered in the “Report”
that was attached to the Settlement Agreement. Where, as here, the determination
of the meaning of a document requires consideration of extrinsic evidence, the
district court’s interpretation of the document is entitled to deference. In re U. S.
Fin. Sec. Litig., 729 F.2d 628, 632 (9th Cir. 1984). In addition, there is a factual
dispute as to whether JAR allocated 20 percent of the amount it spent on alterations
to the Plaza to providing an accessible path of travel, as required by the Americans
with Disabilities Act. Accordingly, Shaw has not carried his burden of showing
that the District Court erred in denying summary judgment.
The District Court also determined as a preliminary matter that Shaw, by
entering into the Settlement Agreement, relinquished any claim he otherwise had
for encountering the sloped sidewalk and therefore could not use that encounter as
the predicate for seeking injunctive relief for other alleged barriers in the Plaza in
2011.1 In Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir. 2008), we
recognized the broad prophylactic purposes of the ADA. However, Doran does
not speak to the issue presented here: whether a plaintiff who has settled his actual
claims may thereafter seek injunctive relief for un-encountered barriers. Shaw has
1 At oral argument, Shaw’s counsel agreed that nothing in the
Settlement Agreement barred Shaw from seeking relief from any barriers he might
encounter if he now visits the Plaza.
4

-- 4 of 5 --

not demonstrated to this Court that the District Court’s denial of his motion for
summary judgment was wrong as a matter of law. Moreover, because Shaw chose
to file a stipulated dismissal rather than litigate the outstanding material issues of
fact, he cannot on this appeal argue that the District Court erred in concluding that
genuine issues of material fact preclude the entry of summary judgment in his
favor.
AFFIRMED.
5

-- 5 of 5 --