Quick Hits – St. Patrick’s Day Edition

By Richard Hunt on March 18, 2019

I’m a day late with the St. Patrick’s Day Edition of Quick Hits but that’s no reason not to raise a toast to the saint who, as my great-grandfather William Mullin said, drove all the snakes out of Ireland except the politicians.

Counter widths and the ADA

Johnson v. Starbucks Corp., 2019 WL 699136 (E.D. Cal. Feb. 20, 2019) confirms what DOJ recently announced* – the ADA standards do not require that a sales counter be of any particular width. This has been an area of disagreement for years and now seems to be resolved.

Just who “operates” a transportation system?

The discussion in Cupolo-Freeman v. Hosp. Properties Tr., 2019 WL 935134, at *5 (N.D. Cal. Feb. 26, 2019) is too lengthy to explain in this quick hits blog, but the bottom line is easy. The entity that owns a hotel will be liable for ADA violations by the management company it hires, at least when it comes to transportation services offered by the hotel. The defendant’s arguments are clever and may stand up on appeal, but the general rule is that the owner of a public accommodation will be liable for ADA violations no matter how many layers of other entities are between it and the daily operations.

Experts on ADA compliance

Disabled in Action v. City of New York, 2019 WL 1017268 (S.D.N.Y. Mar. 4, 2019) makes what should be an unremarkable observation – when compliance with a technical standard is at issue the opinion of an expert who merely “eyeballs” conditions is not sufficiently reliable to be admissible in evidence. However, this holding contradicts cases in which a disabled plaintiff was allowed to testify that conditions were did not meet ADA standards based on his observations without any measurements. See, Strong v. Valdez Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013). Given the precision of the standards, allowing anyone, whether expert or plaintiff, to testify based on observations unsupported by measurements is a dubious proposition. The court also excluded testimony from the plaintiff’s expert that violations of the standards interfered with access to the defendant’s programs and services. That was a opinion she was not qualified to give because it described the effect of ADA violations rather than the violations themselves.

FHA modification and accommodation

In a closely reasoned opinion the court in Lefkowitz v. Westlake Master Assn., Inc., 2019 WL 669806, at *1 (D.N.J. Feb. 19, 2019) disagrees (without saying so) about what the reasonable accommodation provisions in the FHA require. Observing that the reasonable modification section requires that modifications be allowed at the tenant’s expense the Court concludes that the reasonable accommodation section never requires a landlord or homeowners association to incur any expense. HUD disagrees with this position†, and the line between a modification and an accommodation may be less precise than this opinion indicates.

Mootness done right

Whitaker v. BOP Fighat7th LLC et al, 2019 WL 1081207 (C.D. Cal. Mar. 6, 2019) demonstrates mootness done correctly. There was one problem – no accessible transaction counter – and the defendant fixed it, thus mooting the ADA claim, which was dismissed. The Court stated in passing that the counter was required to be at least 36 inches in length, a misreading of the relevant standard.*

Boitnott v. Border Foods, Inc., 2019 WL 722753, at *4 (D. Minn. Feb. 21, 2019) shows the value of hiring an ADA consultant to supervise remediation and certify that it has been done right. While the plaintiff tried hard to keep the case alive the fact that the problems were fixed doomed his claim.

Mootness and “an endless cycle of allegations and remediation”

In Nekouee v. Captain D’s, LLC, 2019 WL 846048, at *4 (M.D. Ala. Feb. 21, 2019) the District Court was faced with a common situation in ADA lawsuits. The original complaint identified one set of problems, all of which the defendant corrected, but the plaintiff’s expert discovered additional problems, leading to an amended complaint, followed by the discovery of still more problems. It appears the court is cutting off this cycle at round 3, but the message for defendants seeking a mootness defense is to have your expert find everything so it can be fixed at the beginning. Some judges will deny leave to amend, but the only safe way to moot a case is to fix everything.

Mootness and existential doubt.

“Plaintiff worries that uncertainties, such as the future fading of paint that signifies an accessible parking spot make any current certification short lived. . . .” With these words the court in Johnson v. Barrita, 2019 WL 931769, at *2 (N.D. Cal. Feb. 26, 2019) gave notorious serial filer Scott Johnson two months to come up with an explanation of why a completely accessible building as certified by a state certified inspector might not in fact moot the case. Nothing in the ADA requires a guarantee of perpetual accessibility just because the plaintiff is worried; if it did even the most perfect building could be the subject of a lawsuit today based on the fear it might be imperfect someday.

Serial litigants

In Rutherford v. Ara Lebanese Grill, 2019 WL 1057919 (S.D. Cal. Mar. 6, 2019) dismissed a claim under California’s Unruh Act that was based on the same facts as the plaintiff’s claim under the ADA. The Court found that the Unruh Act’s damage remedy and requirement of intent made state law issues predominate over the common issue concerning accessibility. More important, the Court recognized that the federal venue had been selected to avoid the pleading requirements for such lawsuits in state court and that the plaintiff was a serial filer following a “sue, settle and move on” strategy. This is good news for the defense because t forces the defendant to file a separate suit in order to obtain damages; however, it doesn’t eliminate the underlying ADA claim. Fixing the real problems is the only way to reduce future risk and comply with the law. Is this a valuable precedent for other defendants? Maybe. A single district judge’s opinion has no binding effect on any other district judge; in fact, the judge himself can change his mind in a later case. For ADA defense knowing your judge is crucial.

Injury and standing.

Rutherford v. Econolodge, 2019 WL 950329 (S.D. Cal. Feb. 27, 2019) is a rare ADA case in which the complaint was dismissed on standing grounds at the pleading stage. The plaintiff’s failure to allege that he was always required to use a wheelchair made the court focus on whether the allegations of injury from various architectural barriers were sufficiently pleaded and conclude they were not. In general the Ninth Circuit finds that merely seeing an architectural barrier is sufficient injury when the barrier relates to the plaintiff’s disability.‡ The question is which barriers relate to the particular plaintiff’s disability. When lumped together with all “mobility” disabilities Rutherford’s difficulty walking would give him standing to sue for anything a wheelchair bound person might sue for even though they had no effect on him. If his disability is limited to ambulatory mobility disabilities it does not. This kind of distinction shows the inherent logical flaw in the notion that standing comes from merely seeing an architectural barrier. If a person in a wheelchair cannot sue for architectural barriers that affect only the blind why can he sue for architectural barriers that don’t affect him because he is strong enough to go up a ramp that is 1/2% too steep? In either case he suffers no injury. The serial litigation industry is built on cheap standing. The ADA was not written to make the disabled feel good or protect them from feeling bad; it was written to guarantee equal access, and only if access is obstructed has an ADA injury been suffered.

In Velez v. Il Fornaio (Am.) Corp., 2019 WL 857964, at *5 (S.D. Cal. Feb. 22, 2019) the court was similarly unwilling to allow a person not confined to a wheelchair to claim injury from conditions that would not affect a person who could stand. It also pointed out that obesity, even morbid obesity, is not a disability unless it substantially interferes with a major life activity.

Intent to return and standing.

The defendant in Powell v. Win Glob. Group, Inc., 2019 WL 917052 (C.D. Cal. Feb. 25, 2019) had far less luck in its efforts to obtain dismissal based on standing. The plaintiff alleged the right things and the claim of intent to return was not implausible on its face. The defendant also tried to prove mootness with unauthenticated photographs, evidence the court properly rejected. In ADA cases a bad defense is just a waste of money, and defendants should decide at the earliest stage whether they have any choice other than to settle.

ADA website litigation

Mitchell v Buckeye State Credit Union, 2019 WL 1040962 (N.D.Ohio Mar. 5, 2019) is another credit union victory based on standing. Like similar cases it finds that someone who does not qualify for membership cannot suffer an injury from an inaccessible website. The case contains a very useful discussion of tester standing, observing that while being a tester does not preclude standing, neither does it confer standing in the absence of an injury. “Tester standing” is a myth created by carelessly written opinions and judges for whom logic and law are only distant relatives.

Display racks

Kamal v. Kohl’s Corp., 2019 WL 1051007 (W.D. Wis. Mar. 5, 2019) is one of many cases considering the ADA consequences of display racks placed too close together for a disabled plaintiff to pass between them. In fact, this is one of three cases severed from an original purported class action lawsuit. As the Court observes, the results have been mixed, with one defense summary judgment granted and, with this case, two denied. The case also takes an expansive view of a “policies and practices” claim, finding that good policies don’t matter if they are not put into practice. We’ve said it before: To avoid ADA lawsuits you need a policy, and you need to enforce it. See our earlier blog ADA Compliance Policies and Procedures.

Default as a strategy

Johnson v. Prithviraj, LLC, 2019 WL 718117, at *5 (E.D. Cal. Feb. 20, 2019) is a standard default case illustrating why default may make sense for a small business. The court’s remediation order was limited to the pleadings, which can reduce the total burden since no inspection of the property was made. Fees and costs of $4500 plus damages of $4000 bring the total bill to less than the cost of any reasonable defense. Defendants should note, however, that the plaintiff requested $12,000 in damages and they could have been awarded. Default has its risks.

The defaulting defendants in filing fees Johnson v. Wen Zhi Deng, 2019 WL 1098994 (E.D. Cal. Mar. 8, 2019) did about as well, ending up with an award of around $6300 in fees and costs. The non-defaulting defendants apparently no longer owned the property and had no ADA liability, so the Unruh Act claims were dismissed as well. Once again, default as a strategy can work.

Surrender as a strategy.

The defendant in Johnson v. L. J. Quinn’s Rest. & Supply, Inc., 2019 WL 1116257 (N.D. Cal. Mar. 11, 2019) did not default, but did give up, making a Rule 68 offer of judgment the plaintiff could not refuse. Then things went south for the plaintiff’s lawyers, who failed to file their application for fees within the 14 days required by Rule 54. The application was denied because of the late filing. A firm like Mr. Johnson’s that is trying to keep several hundred cases going at one time is bound to slip up from time to time and it doesn’t appear this court is sympathetic.

Attorneys’ fees for a plaintiff

Love v. Martinez, 2019 WL 1090761 (C.D. Cal. Mar. 13, 2019) has a lesson for defendants in serial ADA cases. Making an early decision on how to respond can save thousands of dollars. In this case the plaintiff prevailed on an unopposed motion for summary judgment. The Court cut the plaintiff’s claimed attorneys fees by a substantial amount, but they still amounted to almost $10,000, about double the typical award in a default case. In serial ADA litigation about easy to fix violations there are really only two meaningful options; surrender immediately or fight to the death and hope to win. Half a defense is likely to increase costs without any benefit.

The best defense – an incompetent opponent.

In Madrinan v. City of Miami Beach, 2019 WL 978814, (S.D. Fla. Feb. 28, 2019) the City of Miami Beach faced a plaintiff whose lawyer was clearly incompetent. The opinion provides the necessary details. Unfortunately, most of us don’t have such luck.

‡ See, Doran v. 7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008) and our blogs concerning standing.

† See, May 17, 2004 Joint Statement concerning Reasonable Accommodations, question no. 9.