The official worst heat-wave ever is now over in both the U.S. and France, but Sirius is still rising just before dawn and nothing has cooled off in the courts. Here are the latest cases on ADA and FHA issues.

HOAs and the FHA

Lau et al v. Honolulu Park Place, AOAO,  2019 WL 3208644 (D. Haw. July 16, 2019) is a kind of short treatise on how the FHA applies to accommodation claims made by parents or others associated with a disabled person. What is surprising is the degree of ignorance or obtuseness shown by the HOA’s counsel in defending the case. Here’s what the Court says:

“Defendants appear to misunderstand the FHA as well as the injury-in-fact requirements of Article III. . . . Only the most obtuse reading of the Complaint could fail to construe the allegations as an injury to the person. . . . But Defendants’ conclusion is only possible when accepting their misrepresented version of what Plaintiffs seek. In other words, it is a straw man of their own creation.

HOAs should remember that the firm handling their assessment collections or dealing with personal injury suits may not have the specialized knowledge necessary for FHA defense.

It’s easy to do it wrong

U.S. ex rel. Mei Ling v. City of Los Angeles,  2019 WL 3213581 (C.D. Cal. July 15, 2019) is not strictly speaking an ADA or FHA case, but rather involves the government’s effort to get back federal funds spent on housing that turned out not to be accessible. While the allegations have yet to be proven, everything on the alleged list of problems seems plausible. Architects, contractors and project owners must realize that the folks who pour the concrete, set the doors and light switches, and do the framing do not know or care what the FHA requires. For them an inch or two here or there, or a few degrees of slope, seems trivial and frankly unnoticeable. That’s why the only way to build ADA and FHA compliant buildings is to constantly inspect the work as it is completed to make sure you are not building in problems that are expensive to fix later. It is advisable to err on the side of caution in creating the plans – a kitchen that is drawn to be exactly the minimum width allowed by the FHA has a good chance of coming out too narrow in many cases, and you don’t get to average out the apartments have a kitchen that is a few inches wider than necessary. Care in construction could put the lawyers like me out of business. No, wait, I take that back. Don’t be careful, just note my phone number on the right column.

ADA Policies and Procedures – you’ve got to walk the walkº

The defendant in Kahn v. Cleveland Clinic Florida Hospital, 2019 WL 3282949 and 2019 WL 3290542, (S.D. Fla. July 22, 2019) was trying to do the right thing, but couldn’t quite manage it. The plaintiff’s complaint concerned the location of linen bins and trash bins in accessible restrooms. The defendant had a policy for the placement of these bins that minimized, but did not eliminate, their intrusion on required clear space for wheelchair users. Equally important, there was evidence the policy was consistently ignored by the cleaning staff, one of whose members insisted on sensibly putting the trash bin below the paper towel dispenser, which unfortunately obstructed access by wheelchair users. The court examined trial evidence in minute detail before concluding it was appropriate to enter an injunction against future ADA violations. Along the way it held that the trash bins and linen bins, while easily movable by those without disabilities, were not easily movable by those with the plaintiff’s disability, especially since they contained material that could be hazardous.

The court’s analysis of whether a waste bin is an architectural barrier is just wrong. Given the wide variety of disabilities covered by the ADA it is likely that even the smallest and lightest of movable objects is unmovable by some plaintiffs. The case primarily relied on by the court, Crandall v. Starbucks Corp., 249 F. Supp. 3d 1087, 1095 (N.D. Cal. 2017) was determined not by whether the obstruction was movable, but whether it was truly temporary. Temporary barriers do not violate the ADA even if they cannot be moved with less than a fork lift. Permanent barriers do violate the ADA no matter how easy they might be to move.

The court was on more solid ground in its discussion of policies and mootness. A policy that is not followed cannot constitute a defense to an ADA claim. Equally important, a policy whose purpose is not understood by those who implement it (in this case, the cleaning crew) is not going to be followed, meaning there will be evidence the policy was inadequate. The cleaning person who consistently put the trash bin under the paper towel dispenser may have known where she was supposed to put it, but she also knew that paper towels were dropped on the floor if the waste bin was in a far corner and she didn’t know why it mattered. As a rule, a company that expects ADA compliance to rest on policies and procedures must not only announce them to the staff, it must also explain them so they make sense.

Default as a strategy – this month’s market report.

In  Ngoc Lam Che v. Shit Fong Lo, 2019 WL 2579205 (N.D. Cal. June 24, 2019) we learn that in San Jose you can do nothing to defend an ADA lawsuit and the net cost will be $4,000 in statutory penalties plus $3,220 in costs and plaintiffs’ attorneys’ fees. Could any defense attorney get a better result? As a bonus, sort of, the injunctive relief granted is probably not sufficiently specific for the injunction to be enforced.
Default cost the defendants a little more in Johnson v. Express Auto Clinic, Inc., 2019 WL 2996431 (N.D. Cal. July 9, 2019) with the plaintiff’s attorneys receiving $4,987.50 over and above the $4000 statutory penalty provided for in the Unruh Act. The attorneys fees seem high, with five lawyers spending more than 11 hours filing forms, but courts cannot disregard claims that are presented under oath and only look unreasonable.

Mootness done right – extreme version

In Johnson v. 162 Los Gatos-Saratoga Rd., LLC, 2019 WL 2869949, (N.D. Cal. July 3, 2019) the defendant made the plaintiff’s claims for lack of accessibility about as moot as you can get. After the plaintiff’s visit the building had been gutted. Johnson argued that the business might come back, but the court found the change was permanent to eliminate any possibility that injunctive relief would redress any potential future wrong.

Endless liability under Title III of the ADA

In Carlos Alonso, as guardian of Angie Alonso, Pl.. v. Dr. Gladys Y. Alonso, M.D., Def., 2019 WL 3337233,  (S.D. Fla. July 25, 2019) the court adopted a rule for the accrual of an ADA claim for injunctive relief that as applied eliminates any statute of limitations. The ADA claim concerned physical accessibility problems at a medical office. The plaintiff first became aware of the problems more than four years before suit was filed. The applicable statute of limitations, borrowed from state law, was four years. Nonetheless the Court found limitations had not expired. It reasoned that because the ADA permits injunctive relief a claim does not accrue so long as the condition violating the ADA continues to exist, provided only that the plaintiff claims he or she would return in the future. This is an extension of the notion that being deterred from returning to a business is itself an ADA injury, the deterrent effect doctrine was not intended to define a new injury, but rather explain why injunctive relief was meaningful. Applied in this way it allows plaintiffs to wait as long as they please because, after all, they might return someday.

Standing for ADA serial litigants.

Johnson v. Alhambra & O Associates, 2019 WL 2577306 (E.D. Cal. June 24, 2019) stands, although the court does not admit it, for the proposition that in the Ninth Circuit an ADA plaintiff is not required to allege a plausible future injury in order to maintain standing to sue at the Rule 12 stage of the lawsuit. Only the Supreme Court can fix this problem, which exists because the Ninth Circuit simply refuses to apply Supreme Court precedents on this matter.*
The defendants in Johnson v. Rehman, 2019 WL 2918023 (E.D. Cal. July 8, 2019) couldn’t get over their “immature” belief that the plaintiff’s ability to get into their store and buy things was proof they had not violated the ADA. Like it or not, the ADA physical accessibility standards are a national building code and an ADA claim does not require fault on the part of the defendant or substantial economic or similar harm to the plaintiff, especially in the Ninth Circuit.
Aaron Dalton, Pl., v. Simonson Station Stores, Inc., and Bemidji Mgt. Co. L.L.C., Defendants., 2019 WL 3243257 (D. Minn. July 18, 2019), on the other hand shows that standing can be successfully challenged on summary judgment because at that phase the plaintiff must not only allege, but provide plausible evidence of an intent to return in order to show a future injury that justifies injunctive relief. In most cases a Motion to Dismiss a typical serial filer case will be a waste of money, but defendants willing to invest in discovery can have a very good chance of succeeding on summary judgment.
Smith v. RW’s Bierstube, Inc. et al,  2019 WL 3304919 (D. Minn. July 23, 2019) reached the same result and includes a good review of the 8th Circuit’s standing precedents. In the Eighth Circuit merely seeing an ADA violation does not constitute an injury sufficient to confer Article III standing. The plaintiff must have intended to use the facility in a way the ADA violation at least deterred. In this case, the plaintiff could not claim he was unable to use the facility despite the existence of problems with one of three accessible parking spaces when the other two were available and complied with all ADA requirements.
In Carello v. Aurora Policemen Credit Union, 2019 WL 3072152 (7th Cir. July 15, 2019) the Seventh Circuit followed the Fourth Circuit in finding that a person who is legally barred from joining a credit union cannot suffer an injury from encountering its inaccessible website.† The Court insists, as did the 4th Circuit, that the holding is narrow. Nonetheless, a holding that rejects the notion of abstract dignitary harm is a victory for every defendant because most of the standing arguments in favor of plaintiffs ultimately rest on precisely that kind of dignitary harm. The Court also usefully defines and rejects the notion that “informational injury” might give rise to standing. The process of getting standing jurisprudence back on track for ADA cases is going to be a long one, but every step is important.
Basta v. Novant Health, Inc. 2019 WL 3310098 (W.D.N.C. July 23, 2019) has a good discussion of the limits of the deterrent effect doctrine in the 4th Circuit. Unlike the 9th Circuit, in which alleging deterrence seems to be a way of avoiding an allegation of intent to return, the 4th Circuit sensibly realizes that you can’t be deterred from doing something you never intended to do in the first place.

Want to spend a lot of money on legal fees? Try being rude to a disability rights advocate.

The defendant won after a bench trial Sabel v. St. Lazarus B., 2019 WL 2754742 (E.D. Pa. July 1, 2019), an outcome that appears inevitable based on the facts but was achieved only after a long and presumably expensive battle. The defendant was a bar in a 19th century building in Philadelphia. The accessibility of the only entrance was constrained by the structure of the building and various immovable objects on the sidewalk outside, so the bar had a temporary steel ramp that could be assembled for wheelchair users. This was proven with expert testimony that the plaintiff did not challenge. So why did the case go to trial despite what the court describes as several efforts to mediate?  I think the answer is simple. The plaintiff claimed that when she asked the manager to make the bar accessible during a visit, the manager “became combative and threatened to call the police if they did not leave the Bar immediately.” Being unpleasant and insulting to a customer is bad business but no big deal unless the customer has the ability, by paying a $400 filing fee, to force you to spend tens of thousands of dollars on lawyers and experts. Being polite is always a good policy, and perhaps even more important when it comes to dealing with customers who are disabled.

Supplemental jurisdiction of Unruh Act claims

Castillo-Antonio v. Hernandez, 2019 WL 2716289 (N.D. Cal. June 28, 2019) does not resolve the issue of supplemental jurisdiction over state law claims under California’s Unruh Act: Only the 9th Circuit can do that. It does, however, include a thorough discussion that lawyers new to these issues will find helpful. While the Unruh Act provides that ADA liability can also give rise to Unruh Act liability the Act adds pleading requirements in state court intended to reduce abusive serial litigation. Some California federal courts find this makes exercise of supplemental jurisdiction over Unruh Act claims inappropriate. Others, including this court, disagree. The takeaway for businesses in California is that you have to know your judge. Very few ADA lawsuits make it to the 9th Circuit, and on issues like this every federal judge can decide for him or herself what the law should be. Defense strategy has to look not just at the law, but also at the judge.

It’s complicated – ASL interpretation in the hospital

Bax v. Doctors Med. Ctr. of Modesto, Inc., 2019 WL 2763912 (E.D. Cal. July 2, 2019) shows just how complicated an ADA lawsuit can be when there is a relationship between the plaintiff and defendant that lasts over weeks or months. The vast majority of ADA cases under Title III involve a one-time encounter. Under Title II and the Rehabilitation Act cases are more likely to involve, as this one did, multiple encounters and many opportunities for confusion and disagreement. Add to that the possibility of money damages and you have a different kind of lawsuit. The plaintiffs in this case had a number of visits to a hospital, some of which went well because an ASL interpreter was present and some of which did not. At the end of the day the court dismissed many of the claims on summary judgment, but found that those based on the messiest kind of fact issue would have to go to trial. As in Title I cases, which are often equally difficult to resolve, defendants wanting to avoid litigation need to have a degree of care and awareness that can be hard to sustain.

Good enough for government work.

Governments live by procedures and regulations, but proof that the i’s were dotted and t’s crossed is not sufficient to prove that sidewalks and curb ramps are in fact ADA compliant, as the Court explained in Mote v. City of Chelsea, 2019 WL 2865262 (E.D. Mich. July 3, 2019). For reasons that are not clear the principal defendant – a county road commission – didn’t bother to inspect the various parts of sidewalks and curb ramps that it built before trial. It relied instead on an argument that amounted to “our rules require that it be accessible, and we had inspections, so it must have been accessible when built.” The Court found that this was inadequate and that the current conditions proven by the plaintiffs showed a violation of the ADA standards. States like Texas require a post-construction inspection that documents compliance with ADA standards, and when a city or similar entity is going to build something that lasts for decades that kind of documentation is crucial to defending a claim the facility was never compliant. The argument “it must have been right because we got a green card” just won’t work.

Website accessibility litigation.

Scott Ferrell and his Pacific Trial Group will be adding Martinez v. Adidas Am., Inc., 2019 WL 3002864 (C.D. Cal. July 9, 2019) to the list of tiny victories they include in their demand letters. The Court agreed with other federal courts in California that it is possible to avoid federal question jurisdiction by alleging only California state law claims under the Unruh Act. Ferrell now seems to file most of his lawsuits in state court, probably to avoid procedures in federal court that promote the rapid inexpensive resolution of ADA lawsuits.

Just because you’re mad . . .

Strojnik v. Evans Hotels, LLC, 2019 WL 2918176 (S.D. Cal. July 8, 2019) is another in a line of cases brought pro se by disbarred Arizona attorney Peter Strojnik Sr. He tends to spark outrage, and the motion to strike many of his pleadings that was before the Court seems based on that kind of outrage. Unfortunately outrage is not a substitute for being substantively correct, no matter how bad you think the plaintiff might be.** The result? Strojnick won this round at least.

Two bites at the apple?

The Midwest Disability Initiative is an organization that files ADA lawsuits. Those who want to know more can refer to the news report at “Drive-by ADA lawsuits target small businesses” It appears from Midwest Disability Initiative v. JANS Enterprises, Inc., 2019 WL 2909325 (8th Cir. July 8, 2019) that the owners of MDI got greedy and decided to sue a company they had already sued and settled with. Neither the District Court nor the Eighth Circuit were willing to allow it, finding that since MDI had agreed to the dismissal with prejudice of the first lawsuit it was bound by res judicata in the second lawsuit. The discussion of associational standing and res judicata is interesting, but the article in the news about MDI is far more so.

Hillesheim v. Morris-Walkers, Ltd., 2019 WL 3245106 (D. Minn. July 19, 2019) is a second bite at the apple attempt by Zach Hillesheim and his partner Melanie Davis. Davis lost a lawsuit claiming parking deficiencies at the defendant company, so Hillesheim went back, went inside, and filed suit alleging both parking violations and interior violations. The court parsed out the claims and dismissed those based on parking because Hillesheim was collaterally estopped by the prior judgment. The remaining claims were allowed to go forward under the ADA, but state law claims were dismissed for failure to provide the state required notice. The most interesting feature of this case is a reminder that in the original Davis case the court found Davis did not have standing to complain of interior violations because she never tried to go inside. That finding, affirmed by the Eighth Circuit, rejects the Ninth Circuit’s absurd rule that seeing one violation gives standing to sue for violations that were never encountered.‡

Make up your mind.

Gonzalez v. Machado, 2019 WL 3017647 (N.D. Cal. July 10, 2019) should remind defense counsel that for Title III ADA cases the strategy has to be decided before any answer is filed so that non-remediation costs can be reduced as much as possible. If there are architectural barriers to access that must be fixed every effort to defend the case is likely to involve unneeded expense. That’s why default is often a good strategy, and if it is not a pre-answer negotiation or Rule 68 offer of judgment may be the best. In this case the defendant fiddled around with an answer, joint inspection and mediation, then seems to have backed out of a settlement and finally came back claiming that it wanted a trial because it couldn’t afford to settle. The net result was an order to pay the plaintiffs more than $18,000 in legal fees. Defaulting would have been cheaper (see cases above).

You may not really need an expert

The ADA’s physical accessibility requirements are generally precise and objective – slopes, widths and heights either are or are not compliant. In O’Campo v. Golden Bear Rest. Group, Inc., 2019 WL 3067103 (E.D. Cal. July 12, 2019) the court admitted non-expert testimony about slopes and widths as lay testimony because use of a digital level and tape measure, “does not require any “scientific, technical, or other specialized knowledge.” This is good news for parties who find the cost of an expert more than they can afford; however, the Court’s eventual finding that conflicting measurements created a fact issue with respect to some claims should serve as a warning that a good deal of care has to be taken by a defendant (or plaintiff) wanting to prove conclusively that there is no ADA violation.°°

Is Johnson losing the will to fight?

Johnson v. Starbucks Corp., 2019 WL 3202849 (E.D. Cal. July 16, 2019) is another of the several decisions a week involving Starbucks nemesis and serial filer Scott Johnson. This is one of several cases in which Johnson argues that the Department of Justice is wrong in its interpretation of the ADA Standards (maybe Auer abstention has a role to play here). Two others are on appeal and in this one Johnson asked for a stay pending the outcome of those cases. The Court declined, noting that Johnson made additional claims that were unique to the case and that Starbucks would be prejudiced by a delayed resolution of the lawsuit. There’s nothing startling in the law here, but Starbucks’ efforts to make serial filing unprofitable for Johnson are pleasant to watch.


** See the discussion of Johnson v Starbucks in my earlier blog “Quick Hits – Serial Filer edition” as well as the many other times I’ve discussed this issue – just search for “outrage.”

‡ See Davis v. Morris-Walker, LTD, 922 F.3d 868 (8th Cir. 2019) and my blogs “Quick Hits – Memorial Day edition” and “Common Sense from the 8th Circuit

º For a longer discussion of this subject, see my blogs “You’ve got to walk the walk” and “You’ve got to walk the walk part II

°° Keep your eye on this space because within a month I will announce an updated DIY ADA inspection webinar.