With more than 40 new decisions in the last two weeks it hasn’t been easy getting this blog out. I’m not the only lawyer with too much to do too fast, as the following cases demonstrate.
The problem with industrial litigation
In a classic episode of “I Love Lucy” she and her friend Ethel get a job in a chocolate factory but find they can’t keep up with the assembly line and have to resort to stuffing chocolates in their mouths and shirts.³ I thought of their predicament when I read Garcia v. Hwangbo, 2021 WL 149086 (C.D. Cal. Jan. 15, 2021), one of hundreds of cases filed on behalf of Orlando Garcia by the “Center for Disability Access.” The problem with an assembly line practice is keeping up with the speed of the line, and Garcia’s lawyers found they couldn’t keep up on January 15 when Judge Olguin dismissed the Hwangbo case under the terms of a docket control order that required the defendants be served within 90 days of filing.
Judge Olguin did the same thing to a different plaintiff in Whitaker v. Anhar Group, Inc., 2021 WL 76711 (C.D. Cal. Jan. 8, 2021). Whitaker is also represented by the Center for Disability Access, which has filed more than a thousand cases on his behalf . In this case the firm had served the defendant and there had been an extension of time to answer, but when time expired on the extension the plaintiff didn’t promptly file for entry of default and the case was dismissed.
Whether Judge Olguin’s docket control order will have long-term consequences for ADA website lawsuits in California will depend on whether other federal judges are unwilling to let plaintiffs and their lawyers file faster lawsuits faster than they can prosecute them.
Johnson v. Simper Investments, Inc., 2021 WL 179358 (N.D. Cal. Jan. 19, 2021) tells a similar story. Notorious serial filer Scott Johnson sued the owner of a building that was vacant at the time of his alleged visit and had been for several years. Johnson argued that he meant to include other nearby businesses in the same business park, but the Court wasn’t buying. He was given leave to amend so he could find a real defendant, but the case shows how assembly line litigation can fail when the volume isn’t matched by the bona fides of the claims.
Like the plaintiff in Hwangbo, the plaintiff in Grigsby v. Tecomate Corp., 2021 WL 134583 (C.D. Cal. Jan. 14, 2021) had no opposition. The case wasn’t dismissed, but the Court did deny a motion for default because it found the complaint failed to allege all the elements of an ADA claim. Those are worth reviewing because other courts may be equally particular. Under the relevant Ninth Circuit authority a Title III ADA plaintiff must prove:
(1) “he is disabled within the meaning of the ADA”; (2) “the defendant is a private entity that owns, leases, or operates a place of public accommodation”; (3) “the plaintiff was denied public accommodations by the defendant because of his disability”; (4) “the existing facility at the defendant’s place of business [or property] presents an architectural barrier prohibited under the ADA”; and (5) removing the barrier is “readily achievable.”
The Court found the allegations concerning the 4th element were insufficient. The plaintiff alleged that parking and restrooms had barriers to access whose removal was readily achievable, but failed to allege that parking and restrooms were provided by the defendant for customers. Since the ADA Standards only require that a public accommodation provide accessible parking and restrooms where they are provided for customers, the Court found the allegation was deficient. Forcing serial plaintiffs to take the same care that would be taken in any other lawsuit may be the best way to at least slow down the ADA litigation industry.
Or course, playing the same theme, we have the inevitable Peter Strojnik case. The Court observes in Strojnik v. Kamla Hotels, Inc., 2021 WL 75693, at *1 (S.D. Cal. Jan. 8, 2021) that Strojnik:
“has filed thousands of disability discrimination cases against hotel defendants in state and federal courts,” Strojnik v. Bakersfield Convention Hotel, 436 F. Supp. 3d 1332, 1336 (E.D. Cal. 2020), and based on those filings, has been declared a vexatious litigant in at least the United States District Court for the Northern District of California, see Strojnik v. IA Lodging Napa First LLC, No. 19-CV-03983-DMR, 2020 WL 2838814, at *6–13 (N.D. Cal. June 1, 2020), and the United States District Court for the Central District of California. See Strojnik v. SCG Am. Constr. Inc., No. SACV191560JVSJDE, 2020 WL 4258814, at *8 (C.D. Cal. Apr. 19, 2020)
Strojnik is able to file so many pro se lawsuits (he represents himself because he can no longer practice law) because he doesn’t bother to allege much beyond having seen something that might be a barrier to access. Here he is given leave to amend, but without the necessary detail the case will be dismissed.
And last, but not least, an update since this was first published. The extremely prolific (more than a thousand lawsuits in the last few years) Deborah Laufer, who sues hotels based on websites that do not include information about accessible rooms, has had her cases transferred to an MDL panel. (4) She promptly dismissed the plaintiff who created the MDL proceeding and has now moved to have the MDL action dissolved so she can go back to one by one prosecutions. This is undoubtedly because the fees her lawyer can demand on a case by case basis are much higher than any that might be awarded in MDL proceedings. For reasons that are not clear one of the defendants is trying to get out of the MDL proceedings, a move that would allow it to settle quickly and perhaps more cheaply. A full analysis of the proceedings is beyond the scope of this blog, but defendants in serial cases may want to consider whether MDL treatment is a good strategic move.
Your sales office is a public accommodation.
This entry is based on a newly filed lawsuit¹ that illustrates an unfortunate misunderstanding of the ADA’s requirements. The plaintiff sued because the sales office for a real estate development was not accessible. It was located in a model home that was not accessible, probably because the FHA does not require accessible single family housing. The defense seems to be that some sales offices can be inaccessible if there are accessible offices pretty close. Nothing in the ADA suggests that a business can have some inaccessible locations if it has other accessible locations nearby; the requirement is that all public accommodations be accessible, and every sales office open to the public is a public accommodation. Single family developers need to keep this in mind when using model homes as a sales office.
Mootness no, nexus yes – ADA website defense in the 9th Circuit.
Langer v. The Pep Boys Manny Moe & Jack of California, 2021 WL 148237 (N.D. Cal. Jan. 15, 2021) has a thorough and therefore useful discussion of website mootness and the 9th Circuit’s nexus requirement. Despite the fact that Pep Boys had replaced its entire website with a new one that met WCAG 2.0 standards and the defect complained of no longer existed the Court found the claim was not moot because Pep Boys did not meet the high standard for showing that the website would be accessible forever. This holding was triggered by some of the specific statements in the affidavit supporting the mootness motion, so lawyers aiming for a mootness defense should study it carefully; however, it seems that this particular court is unlikely to ever grant a mootness motion in a website case.
Pep Boys lost on mootness but won on nexus because the plaintiff alleged only an intent to return to the website, not to any Pep Boys store. The Court collects the most relevant decisions from the Ninth Circuit and concludes that the requirement of a nexus between a physical place of business and the website means there is no ADA injury if a plaintiff doesn’t intend to visit the physical place of business. The Court doesn’t discuss the Unruh Act, which some California courts say has no such nexus requirement, presumably waiting to address to see if the plaintiff can amend to state a claim under the ADA.
Website litigation consent decrees
Dozens of Consent Decrees have been entered in ADA website cases from the 2nd Circuit in the last year. I haven’t reported on them because, as private agreements, they don’t necessarily reflect the state of the law. Nonetheless, lawyers involved in defending ADA website cases will want to look at the Decree in Monegro v. Greenvale Liquors, Inc., 2021 WL 195144 (S.D.N.Y. Jan. 19, 2021) as a defendant friendly example of what plaintiffs might agree to. It does what any DOJ regulations should do; that is, it provides compliance measured on real accessibility instead of technical standards and it gives the website operator plenty of penalty free time to make the website accessible.
Hitting the pause button on website litigation in the 11th Circuit.
In Lucius v. Hillstone Restaurant Group, Inc. 2021 WL 199701, at *1 (S.D. Fla. Jan. 19, 2021) the Court granted a stay of a more or less standard website accessibility case pending the 11th Circuit’s ruling in Gil v Winn-Dixie Stores, Inc. I first mentioned Gil v Winn-Dixie in 2016, when it was pending in the District Court for the Southern District of Florida, and it has earned a few blogs since as a leading case in the 11th Circuit; however, during the intervening years most courts and most plaintiffs have assumed the most restrictive view of the ADA’s application to websites was that a nexus to a physical place of business is required. Judge Bloom isn’t jumping to any such conclusions because one issue in the Gil v Winn-Dixie appeal is whether the ADA ever applies to websites. The main influence of her decision seems to be her belief that an 11th Circuit decision is imminent. We’ll see if she’s right and if the 11th Circuit surprises us all.
The accommodation obligation may require more than you think.
I don’t usually blog about prisoner cases under the ADA because they usually turn on non-ADA issues like immunity. However, Carter v. City of Shreveport, 2021 WL 217885, at *7 (W.D. La. Jan. 21, 2021) caught my eye with this statement:
Although plaintiffs usually alert defendants of their disability and request accommodations in direct and specific terms, an individual may prevail by showing that the disability and consequential accommodations were “open, obvious, and apparent.” Windham v. Harris County, Texas, 875 F.3d 229, 236 (5th Cir. 2017).
Mr. Carter’s claims survived a motion to dismiss because the Court found there was at least an issue of fact concerning whether the jailers at the City jail should have known that he needed an accommodation in the form of additional help because he was paralyzed and could not change the bandages on his bedsores. Carter is a Title II case, but the same obligation might be imposed on businesses in a Title III case.
I say “might” because a similar accommodation claim was dismissed in Hayes v. Costco Wholesale Corp., 2021 WL 107189 (E.D. Cal. Jan. 12, 2021) The Court found that it was “not clear what reasonable accommodations were necessary.” The facts are too complicated to summarize, but plaintiff believed she was treated badly (and may have been treated badly) when there was an altercation involving a shopping car collision in the store. She did not request an accommodation based on her vision impairments and diabetes and ended up being detained by the police. The Court seemed unwilling to find that the store should have figured out that she needed something and then provide it. I still believe though that courtesy toward anyone having problems is good business practice, and if you see someone with a disability having trouble in your store or office courtesy may be a statutory requirement.
Covid-19 closures may not moot an ADA claim.
ADA Standards as evidence of negligence
They are not according to Dale v. Virginia CVS Pharm., LLC, 2021 WL 129820 (W.D. Va. Jan. 13, 2021). This isn’t a universally held view so whether ADA violations can also give rise the negligence claims is a question businesses will need to find ADA counsel to answer.²
Arbitration of ADA claims
Gilbert v. Indeed, Inc. 2021 WL 169111 (S.D.N.Y. Jan. 19, 2021) tells, as the court says, a brutal story that doesn’t need to be repeated. For our purposes the key discussion concerns arbitration of ADA claims and the conclusion that they are arbitrable just like any other claim.
Declining supplemental jurisdiction of Unruh Act claims.
Easy come, easy go, the law of temporary public accommodations.
Title II entities can’t rely on facially neutral policies to avoid ADA liability.
In Martinez v. County of Alameda, 2021 WL 105771, (N.D. Cal. Jan. 12, 2021) the court refused to dismiss the claims of a blind woman frustrated because county employees would not help her fill out a form. The policy against helping residents was facially neutral and uniformly enforced, but that didn’t mean there was no discrimination. The court observed that:
The Ninth Circuit has “repeatedly recognized that facially neutral policies may violate the ADA when such policies unduly burden disabled persons, even when such policies are consistently enforced.”
Martinez v. County of Alameda, 2021 WL 105771 (N.D. Cal. Jan. 12, 2021). This is a reminder that the ADA is not about equal treatment of those with disabilities; instead it requires unequal treatment in order to create equal opportunity. “I treat everyone the same” is usually not a good defense.
² I summarized the state of the law at the time in Personal injury and the ADA – is every violation per se negligence?, ADA and FHA Quick Hits – is it safe to come out yet edition and Quick Hits – Now is the summer of our discontent edition. Things may have changed in some states, and the coverage isn’t complete.
³ Of course it’s on Youtube. Chocolate Factory
4 In re Hotel Booking Access for Individuals with Disabilities, MDL Docket No. 2978.