Flag of UkrainePictures of bombed out buildings and civilian casualty counts are a reminder that aggravating and expensive as ADA and FHA lawsuits can be, taking these disputes to court is a luxury most people in the world do not enjoy.  For those of us who can engage in a civilized discussion of legal issues, here are the latest cases and other news. You’ll see where I think the courts and administration have gone wrong, but I’d rather be here than most of places in the news these days.

HUD and DOJ pushing hard on ESA cases.


This is a very typical headline from HUD’s website these days, with HUD and DOJ taking a very active role prosecuting cases involving emotional support animals. Many concern truly horrible behavior (a paralyzed veteran being denied an accommodation for his service dog) but others are typical cases of a tenant with a dubious disability (“generalized anxiety”) and no obvious disability related need. It appears these agencies have decided to double down on the fake science¹ concerning ESA’s and their general “everybody who feels bad deserves a puppy” approach to the Fair Housing Act, so landlords and HOA’s need to be careful how they handle these requests.

“not every impairment will constitute a disability,”

I have included this quote from Wilson v. Ly Investments, L.L.C., 2022 WL 493669,  (S.D. Miss. Feb. 17, 2022) because it relates directly to the preceding topic. In Wilson the plaintiff suffered from arthritis and sometimes had trouble walking, but failed to show that this substantially limited any major life activity. Wilson cites an earlier Fifth Circuit case observing that PTSD is not necessarily a disability. Whetstone v. Jefferson Par. Pub. Sch. Bd., 529 F. App’x 394, 395 (5th Cir. 2013). ESA claims are almost always based on the notion that just having a mental disorder is the equivalent of having a disability, something that is wrong as a matter of law, but which DOJ chooses to ignore.

Personal jurisdiction for real estate developers.

CNY Fair Hous., Inc. v. Welltower Inc., 2022 WL 595695, at *9 (N.D.N.Y. Feb. 28, 2022) has an extensive explanation of why an ultimate partial owner several levels above the actual owner of a specific real estate development is not subject to personal jurisdiction just because of that ownership. Multiple layers of ownership serve many purposes, including insulation from ordinary liabilities. Developers might also want to consider the advantages of locating their principal place of business in states whose federal courts have a more conservative approach to fair housing issues.

Specificity of pleading how defects caused injury

Requiring an ADA plaintiff to explain why they suffered an injury is usually fatal to their claim because, of course, they can’t. The discussion in Mosley v. QuikTrip Corp., 2021 WL 5493444, at *3 (D. Ariz. Nov. 23, 2021) will be useful for defendants faced with physical access cases although it should be noted that federal courts in California are much more liberal in their reading of ADA pleadings. Brooks v. Lola & Soto Business Group, Inc., 2022 WL 616798, (E.D. Cal. Mar. 2, 2022) applies a similar principal in a website accessibility case. In Brooks the Ninth Circuit’s limit on ADA coverage of websites worked to the defendant’s advantage because the plaintiff could not tie her trolling the web for ADA violations to any desire to access a physical store. See also Gomez v. Gates Estates, Inc.,2022 WL 458465, at *5 (N.D. Cal. Feb. 15, 2022) to the same effect.

Mootness done right

Cleveland v. Ung, 2022 WL 529256 (C.D. Cal. Feb. 11, 2022) has a good discussion of the kind of thorough evidence of remediation required to establish a mootness defense. Lawyers wishing to raise such a defense should study this and similar cases to avoid the common pitfalls this defense presents.³ Johnson v. Blackburn,  2022 WL 425489, at *4 (N.D. Cal. Feb. 11, 2022) adds a twist favorable to the defense. Because the plaintiff continued the lawsuit after the claims were moot he was ordered to reimburse the defendant’s attorneys fees incurred after that date.

Pleading readily achievable

Soto v. Rio Gary II, L.P.,  2022 WL 112047 (C.D. Cal. Jan. 12, 2022) has a very useful discussion of the case law concerning the plaintiff’s obligation to plead that removal or architectural barriers is readily achievable. It is worth ready by every defense attorney.

Doing it right and not so much.

The following excerpt from Arroyo v. Club Donatello Owners Assn., 2021 WL 5889349, (N.D. Cal. Dec. 13, 2021) explains what will and will not work when a motion to dismiss is made as a factual attack.

To support its factual assertions, Club Donatello cites the exhibits attached to its RJN. As discussed above, Club Donatello has not established that the exhibits are judicially noticeable. It also cites the declaration of an individual named Marie Vergara. Mot. 2. However, Club Donatello did not file Vergara’s declaration with its motion.3 Accordingly, the court cannot consider Club Donatello’s descriptions of Vergara’s statements. Given Club Donatello’s failure to support its factual attack on jurisdiction with extrinsic evidence, its motion to dismiss is ultimately based on argument alone and must be denied.

Mr. Arroyo has had his share of jurisdictional defeats, but defendants have to be careful to have a chance of success.

Personal jurisdiction in website cases

Therefore, lacking more, Plaintiff has not shown that Defendant owns or operates the Website. As a result, Plaintiff fails to show that Defendant directed its activities toward California.

Brooks v. Y.Y.G.M. SA, , 2021 WL 5450232, at *3 (E.D. Cal. Nov. 22, 2021)

Reservations rule defines ADA requirements – a few new cases.

Arroyo v. Davi, LLC, 2:21-CV-00273-MCE-DB, 2022 WL 256867, at *5 (E.D. Cal. Jan. 27, 2022)
Langer v. Music City Hotel LP, 21-CV-04159-PJH, 2021 WL 5919825, at *6 (N.D. Cal. Dec. 15, 2021)

Reservation rule applies only to hotel operator.

Liability under the Reservations Rule does not extend to an entity that operates a reservation website unless that entity is also responsible for the physical place of lodging.

Garcia v. Seven Seas Associates, LLC, 21-CV-294 JLS (MDD), 2022 WL 36518, at *5 (S.D. Cal. Jan. 3, 2022)

A collateral estoppel twist on the reservations rule

In Arroyo v. Pleasant Canyon Hotel, Inc. 2021 WL 5865499, at *4 (N.D. Cal. Dec. 10, 2021) a serial litigant found that his prior losses came back to haunt him when he sued a website more or less identical to websites in earlier cases, resulting in dismissal based on collateral estoppel.

Supplemental Jurisdiction in California

Not so much.
Cleveland v. Shiv Shakti Enterprises, Inc., 221CV09144FLAAGR, 2021 WL 5507218, at *2 (C.D. Cal. Nov. 24, 2021)
Johnson v. Hurwicz, 5:21-CV-02027-EJD, 2022 WL 444404, at *1 (N.D. Cal. Feb. 14, 2022)
Frazier v. Karrass, 221CV08906FLAGJS, 2021 WL 5494161, at *2 (C.D. Cal. Nov. 21, 2021)
Delapaz v. Adriatica Intl., Inc., 2:21-CV-08908-FLA-KS, 2021 WL 5494163, at *2 (C.D. Cal. Nov. 21, 2021)
Maldonado v. Basdeo, 221CV08991FLAPVC, 2021 WL 5494162, at *1 (C.D. Cal. Nov. 21, 2021)
Jones v. Han, 221CV09166ODWMARX, 2021 WL 6539715, at *6 (C.D. Cal. Dec. 28, 2021)
Hwan Kim v. Mike Shalabi, et al., CV219466MWFGJSX, 2022 WL 193967, at *6 (C.D. Cal. Jan. 6, 2022)Luz Zendejas v. SAB Inv. Properly LLC, et al., CV 21-9493 MWF (JCX), 2022 WL 194074, at *6 (C.D. Cal. Jan. 6, 2022)
Johnson v. Opa Los Altos, LP, 21-CV-04307-BLF, 2022 WL 159343, at *4 (N.D. Cal. Jan. 18, 2022)

The problem of industrial litigation – we’ve all heard about supply chain problems

A number of recent decisions decline to continue cases in which the plaintiff’s counsel fail to prosecute the claim, almost certainly because the attorneys are so busy filing new lawsuits they don’t pay attention to those already on file. The following are a sample:

Mason v. Int. Define, Inc., CV 21-7868 FMO (KSX), 2021 WL 5507212, at *2 (C.D. Cal. Nov. 24, 2021) [failure to move for default]
YIUN v. Shrestha, CV217608FMOMAAX, 2021 WL 6125846, at *2 (C.D. Cal. Dec. 28, 2021) [failure to timely effect service]
Myers v. Garcia, CV218113FMOGJSX, 2022 WL 138069, at *2 (C.D. Cal. Jan. 14, 2022) [Failure to effect service.]
Brooke v. NK Inv. LP, EDCV211807FMOKKX, 2021 WL 5908843, at *2 (C.D. Cal. Dec. 14, 2021) [failure to move for default]
Ahn v. 146 Bonita LLC, CV 21-8683 FMO (JCX), 2022 WL 279278, at *2 (C.D. Cal. Jan. 31, 2022) [failure to move for default]

Deterrence and intent to return

On the one hand, recent cases agree that “Conclusory allegations of deterrence, however, are insufficient” to establish the intent to return necessary for standing in ADA cases. See, Gastelum v. Tc Heritage Inn 2 of Bakersfield LLC, 2022 WL 541791 (E.D. Cal. Feb. 23, 2022), Gastelum v. TJX Companies, 2022 WL 174230, (N.D. Cal. Jan. 19, 2022), and Monegro v. St. Insider Dot Com Inc.,  2022 WL 445797, at *4 (S.D.N.Y. Feb. 11, 2022)

On the other hand, some courts refuse to require much more than conclusory allegations. “The Court declines to require these additional elements on top of the allegations the Ninth Circuit has already found sufficient to confer injunctive relief standing.” Johnson v. Smith, 2022 WL 228305 (N.D. Cal. Jan. 26, 2022). And see, Hernandez v. ARS Hosp., Inc., 2022 WL 525461 (E.D. Cal. Feb. 22, 2022), and Whitaker v. URBN US Retail LLC, 21-CV-01480-BLF, 2022 WL 267403, at *5 (N.D. Cal. Jan. 28, 2022).

In the Eleventh and some other circuits the courts evaluate allegations of intent to return using a four factor test that may lead to dismissal if the allegations are insufficient. Medley v. Wear Me Out of Tampa Inc.,  2022 WL 484964 (M.D. Fla. Feb. 16, 2022). Federal courts in California may or may not consider these factors, as the cases above show. The lesson, often repeated and ever true in ADA case is that it is as important to know your judge as to know the law.

Non-conclusory allegations related to deterrence continue to be sufficient, as illustrated in Mortland v. NAFFAH Investments, LLC, 2022 WL 562531 (N.D. Ohio Feb. 24, 2022). Defendants contemplating a motion to dismiss should look at this and similar cases to determine if the motion is worthwhile.

Hotel website standing

The Laufer cases I have blogged about before² continue to serve as a model for dismissing similar claims by other plaintiffs. Here are the latest decisions:

Shumway v. Patel, 2022 WL 203690, at *2 (S.D. Ill. Jan. 24, 2022)
Mackin v. OM Sai Corp., 2022 WL 611486, at *1 (D.N.M. Mar. 2, 2022)
Laufer v. Boulderado Hotel Ltd, 2022 WL 523433, at *4 (D. Colo. 2022)
Laufer v. Red Door 88, LLC, 1:20-CV-02434-RBJ, 2022 WL 474698, at *1 (D. Colo. Feb. 16, 2022)
Nonetheless, these cases have been found not to be in bad faith, which means we can expect plaintiffs’ attorneys to continue pursuing them. See, Love v. CHSP TRS San Francisco LLC, 2022 WL 597034, at *7 (N.D. Cal. Feb. 28, 2022)

A real head scratcher . . .

In Arroyo v. Mehrabi, 2022 WL 564001, (E.D. Cal. Feb. 24, 2022) the defendant managed to provide evidence of the existence of an accessible parking space that was sufficient to defeat a plaintiff motion for summary judgment, but failed to lower a restroom mirror and move a toilet paper dispenser, either of which can be done with almost no expense or effort. Why? I can’t imagine.

Default as a strategy

The cost of default in California remains at around $6,000 to $7500 dollars. See, Castillo-Antonio v. Dabwan, 2022 WL 210395, at *10 (N.D. Cal. Jan. 7, 2022), report and recommendation adopted, 2022 WL 206786 (N.D. Cal. Jan. 24, 2022) and Johnson v. An Khang Mi Gia, 2021 WL 5908389, at *10 (N.D. Cal. Dec. 14, 2021). In New York a default earned $8,250.18 Treyger v. First Class Furniture and Rugs Inc., 2022 WL 541795, at *1 (E.D.N.Y. Feb. 23, 2022) but only $3600 in a website case. Suris v. Collive Corp., 2022 WL 541765, at *1 (E.D.N.Y. Feb. 23, 2022).  A more thoughtful judge in Vermont awarded on $542 in costs, finding that an award of fees to a serial filer would only encourage more pointless website related litigation. Sarwar v. Andal LLC, 2022 WL 538257, (D. Vt. Feb. 23, 2022). Physical access cases seem to be viewed with less skepticism by the courts; however, looking at whether an ADA lawsuit genuinely serves any public interest is something more courts should be willing to do when awarding default attorneys’ fees, because fees are awarded to promote the public policies behind the ADA, not to reward lawyers who have hit on a good way to make money.

Strojnik, again

This pretty much sums it up:

“This is yet another meritless lawsuit filed by pro se Plaintiff Peter Strojnik (“Strojnik”), a disbarred former attorney who has been declared a vexatious litigant by multiple courts since his disbarment.”

Peter Strojnik, Pl., v. Super 8 Worldwide Inc., et al., Defendants.  2022 WL 613227 (D. Ariz. Mar. 2, 2022) and see Strojnik v. R.F. Weichert V, Inc., 2022 WL 94924, at *5 (N.D. Cal. Jan. 10, 2022) [requiring a $75,000 bond as a condition to continuing the lawsuit.] and Strojnik v. Ashford Scottsdale LP, 2022 WL 279586, at *3 (D. Ariz. Jan. 31, 2022). [Awarding defense attorneys’ fees because the action was frivolous. Nonetheless, in Strojnik v. Hyatt Hotels Corp., 2022 WL 504480 (D. Ariz. Feb. 18, 2022) Strojnik avoided sanctions and an expansion of the vexatious litigant order already in existence. What the law requires depends on the judge who administers it.

No damages under the ADA Title III

We all knew it, here’s a court that confirms. it. Edwards v. Sentara Hosps., 2022 WL 19262, at *5 (E.D. Va. Jan. 3, 2022)

One mistake does not a future injury make.

The plaintiff in Grechko v. Calistoga Spa, Inc.,  2022 WL 298571 (N.D. Cal. Feb. 1, 2022) managed, after years of patronage, to find the one employee who wouldn’t accommodate her disability.  The Court found that one mistake did not create a likelihood of future mistakes, so there was no standing to obtain injunctive relief under the ADA.

¹ See Science v. HUD – science and business are the losers. The study referred to in this blog was completed in 2021. See, https://www.research.va.gov/REPORT-Study-of-Costs-and-Benefits-Associated-with-the-Use-of-Service-Dogs-Monograph1.pdf It is quite lengthy, but it was limited to a comparison of service dogs v. emotional support animals; that is, it did not directly ask to what extent emotional support animals were better than no animal at all. As the report says: “Given the absence of a true control group, we cannot conclude that the changes are different than would be found in a no-dog control group.” In short, after years of study, there is still no scientific evidence of real benefits from emotional support animals even among a very carefully selected and diagnosed group of veterans with disabling levels of PTSD. Other other interesting observation: “Service dog fraud, when pet or emotional support dogs are taken into public places where they are not normally allowed, is an increasingly prevalent issue . . .  and this would be consistent with behavior observed in the general public.”
³ Searching this blog for “mootness” will turn up many other cases in which defendants succeeded and failed in raising a mootness defense.