Three recent cases from District Courts in California show just how hard it can be to predict what will happen in an ADA case, at least in the early stages. The facts are essentially identical, but the results are diametrically opposed. Is it because the judges have different views of the law? Is it because the lawyers in one case were not as good as the lawyers in the other? The cases leave plenty of room for speculation. What every business should know, however, is that there are no sure things in ADA litigation, and the regulations are more complicated than you might think*.
In Schutza v. CarMax Auto Superstores California, LLC, 2015 WL 1632716 (S.D. Cal. Apr. 13, 2015) the plaintiff, a quadraplegic, sued because CarMax would not install hand controls on a car that he wanted to test drive. The court denied the defendant’s motion to dismiss, finding that the plaintiff had stated a plausible claim under the ADA. In Schutza v. FRN of San Diego, LLC, 2015 WL 574673 (S.D. Cal. Feb. 11, 2015) the same plaintiff sued a different dealership on the exact same claim. The court granted the defendant’s motion to dismiss, finding that the ADA did not even apply to automobiles in the inventory of a dealership. Same case, opposite result. In a third case, decided after FRN of San Diego but before CarMax the court followed FRN of San Diego in a case identical except for the name of the plaintiff. Karczewski v. K Motors, Inc., 2015 WL 1470651, at *1 (S.D. Cal. Mar. 21, 2015)
Of course lawyers always like to take credit for their wins and losses, but these three cases had exactly the same lawyers for both plaintiff and defendant. As we will see, the arguments made were not identical, but neither the plaintiff’s lawyer nor the defendant’s lawyer can really claim to have been the deciding factor.
The cases were decided by three different judges, and so one explanation might be simply a difference in judicial attitude. I’ve written before about how the court’s view of a plaintiff may affect the outcome of a case. Mr. Schutza is a frequent ADA litigant, and perhaps it is significant that the judge who decided the FRN of San Diego case thought this was important enough to mention while the judge who decided CarMax did not. On the other hand, Mr. Karczewski is also a frequent filer but the court who decided against him did not mention it. It can’t really be said that it was the personalities of the judges that made the difference.
Another possibility is that these cases are really just experiments in which the opposing parties try out new legal theories. I suggest this because the three courts seemed to have been dealing in some ways with different legal arguments. In both FRN of San Diego and K Motors the court considered the provisions in the implementing regulations for the ADA that include, as one example of possible steps to remove barriers to access, “installing vehicle hand controls.” 28 CFR 26.304(b)(21). Both FRN of San Diego and the K Motors, Inc. rejected the application of this provision to the cars in a dealership’s inventory. In FRN of San Diego the Court notes that it is not clear how this might apply to architectural barriers at all, but found that in any case it could not apply to the cars in a dealership’s inventory because the cars are not “architectural barriers” covered by the ADA. K Motors, Inc. included a more lengthy analysis of the same regulation, but reaches the same conclusion. What about CarMax, the most recent case? In a footnote to the memorandum opinion the Court writes:
Schutza v. CarMax Auto Superstores California, LLC, 2015 WL 1632716, (S.D. Cal. Apr. 13, 2015). It is frankly hard to imagine that the defendant’s attorneys, having won twice on this issue, simply forgot to include it in their response to the plaintiff’s motion to dismiss. Was it a deliberate omission in order to try a different defense? There is no way to know.
The same question arises with respect to the question of “auxiliary aids.” In FRN of San Diego the plaintiff argued that installation of vehicle hand controls was required by the section of the ADA that covers “auxiliary aids and services.” The Court rejected the argument based on its understanding that the “auxiliary aids and services” provision applied only to communication barriers. The same plaintiffs’ attorneys did not raise this issue in either K Motors or CarMax (or at least the opinions never mention it). Whether this argument turned out to be a loser or not, the failure to raise it is puzzling.
Finally, it is important to remember that when a court decides against one party or the other it may simply decide to not discuss all the issues, and it may even make decisions based on independent research by the court or its law clerks. Trying to read the mind of a district judge is entertaining, but not necessarily useful.
There are, however, two absolutely certain lesson to be learned from these cases. First, you cannot be sure that one judge will do the same thing the last judge did. Uncertainty has to be factored into every strategic decision. Second, there is no avoiding the details of the regulations and commentary on the ADA, at least when the stakes are high, as they are for a dealership faced with having to install hundreds or thousands of hand controls. The “auxiliary aids” provision in the ADA itself does not mention communication barriers. 42 U.S.C.A. § 12182. The implementing regulation largely covers communication devices, but doesn’t limit this provision to such devices. 28 CFR 36.303. Only in the explanatory appendix to the regulations can you find the comment from the Department of Justice that limits auxiliary aids to communications. This is good for those of us who practice in the field, but it is unfortunate for businesses and individuals who would like to know their rights and obligations without having to hire a lawyer