After two years of enduring thousands of ADA "access" lawsuits, some California businesses are starting to fight back – and win. The federal Americans with Disabilities Act obligates nearly all businesses that serve the public to make their facilities accessible to disabled persons by either complying with current construction standards or, in existing facilities, removing those barriers that are "readily achievable." Non-compliance with this mandate is considered discrimination against disabled persons and is a per se civil rights violation.

California has been particularly hard hit by ADA lawsuits because the Unruh Civil Rights Act (California Civil Code §51) deems any violation of the ADA to be a civil rights violation; moreover, that section provides that any person or entity that discriminates "is liable for each and every offense … up to a maximum of three times the amount of actual damages, but in no case less than $4,000, plus attorney’s fees." As a result, thousands of California businesses, including hundreds of restaurants and wineries, have been hit with "drive-by" lawsuits by disabled persons and their lawyers demanding tens of thousands of dollars in settlement where no discernable injury or damage has been suffered.

As often occurs, the ADA began with good intentions and ended with frivolous lawsuits. ADA plaintiffs have hit state businesses with a costly legal barrage of lawsuits that have businesses paying off plaintiffs rather than incur the risk and cost of defending themselves at trial – until recently.

Lately, a few angry businesses have taken up the good fight – and won. Winco Foods had seen enough of the boilerplate complaints filed by attorney Lynn Hubbard, III from Chico – a single law firm that has filed more than 1,000 lawsuits across the state and continues to file new cases almost daily. Winco defended itself, and proved that nearly all of plaintiff’s alleged "barriers" to access were abandoned once plaintiff’s own expert visited the store, and that three of the four remaining claims were frivolous from the outset, stating "[A] cursory review of the regulations and applicable law would have revealed that these claims wholly lacked merit." The court then found that the one remaining claim, while not viable, was based on unclear law and therefore not frivolous. The verdict in favor of the defendant gave nothing to the plaintiff!

In a clear expression of the court’s intent not to stand idly by and permit these frivolous claims, Judge Frank C. Damrell, a former civil lawyer from the Central Valley, heard Winco’s motion to have its attorneys fees paid by the plaintiff. Judge Damrell acknowledged that attorney fee awards to prevailing defendants are not ordered as a matter of course, but can and should be awarded under exceptional circumstances, "upon a finding that the plaintiff’s action was frivolous, unreasonable or without foundation." The court specifically found that because of the "staggering number of complaints" filed by the lawyer, the "plaintiff’s remarkable litigiousness" and the "multiplicitous off-the-shelf filings of questionable merit," the circumstances of this case suggested that "it was filed for the purpose of obtaining a quick settlement, rather than remedying the barriers to access for the disabled." The Judge further expressed that such litigation "brings into disrepute" the important objectives of the ADA by focusing public attention on the injustice suffered by defendants forced to expend large sums to mount defenses to groundless or hyper-technical claims. He ordered the plaintiff to pay $37,563.00 in attorneys fees, plus reasonable court costs, to the defendant.

Several other clients have recently decided to defend their ADA lawsuits on the merits, rather than pay off the frivolous suits. Clearly, some ADA claims are based on legitimate barriers to access. However, in the approximately 300 cases handled by Livingston & Mattesich, every client was willing to make remedial repairs in response to reasonable requests – without need of litigation. Some plaintiffs demanded unreasonable repairs (e.g. installing a wheelchair ramp in the lobby of a historical landmark), while others sought to impose restrictions not contained in the law. Conversely, for those who bring lawsuits merely as shakedowns, the momentum has shifted as businesses have begun to stand up and fight to turn back the tidal wave of unmeritorious claims.

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