ADA Compliance and Defense Blog
Mass-produced ADA litigation: Plaintiff and his lawyer sanctioned
The end to sue-and-settle “drive bys”?
A couple of weeks ago, a Los Angeles County Superior Court Judge granted a business owner’s motion for sanctions under California Code of Civil Procedure Section 128.7 against a plaintiff who has filed many ADA cases against Southern California businesses.
The Court ordered the plaintiff to pay the defendant, who owns a restaurant, sanctions of $28,500 to reimburse him for attorney fees and litigation costs associated with defending the ADA lawsuit. More importantly, the Court also ordered his attorney, Los Angeles based Morse Mehrban Esq., to pay $29,000 in sanctions. The Court determined that the plaintiff’s claim was meritless and entered judgment for the defense. The defendant then moved for sanctions against the plaintiff and his counsel claiming that the lawsuit should never have been brought in the first place and that the plaintiff’s attorney should have verified the merits of the case before or during the lawsuit.
The plaintiff’s attorney tried to duck the sanctions by arguing that he had the right to accept as true his client’s statements about the accessibility conditions at the restaurant. Apparently, the plaintiff’s counsel did little or nothing to independently verify the alleged accessibility violations before filing suit and did not investigate the restaurant’s defenses after the suit was filed.
The Court noted that this failure to perform pre-filing due diligence, and counsel’s failure to investigate or conduct discovery of the restaurant’s defenses warranted sanctions against both the plaintiff and his counsel.
What it all means
This ruling is important to all businesses in California that are targeted by ADA plaintiffs, particularly in plaintiff “drive by” campaigns. Numerous hotels, restaurants and retailers in California have been targeted in these campaigns, in which a disabled plaintiff makes a cursory stop at a number of establishments in a given area, finding similar violations at each location and filing nearly identical lawsuits against each of them. This ruling demonstrates that ADA plaintiffs’ attorneys now need to carefully investigate the facts and defenses and cannot simply rely upon the accounts of their clients. If they fail to conduct proper pre-filing due diligence or conduct proper discovery, these lawyers can face sanctions when the defendant prevails.
The ruling also has significant implications to all ADA cases filed by Mr. Mehrban, as defendants in those lawsuits are likely to scrutinize the merits of the lawsuits and fight back instead of opting to settle.
Those who defend ADA lawsuits now know that the use of sanction motions (under Section 128.7) can effectively prevent or curtail frivolous ADA litigation in California. Knowledgeable ADA lawyers will advise their hotel and retail clients accordingly and use this strategy when it is appropriate and effective.
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotels, restaurants, retailers, shopping centers, banks and other commercial property owners defend more than 600 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. Marty is the Chair of JMBM’s ADA Compliance & Defense Group, a Partner in JMBM’s Real Estate Group, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.