Tag Archives: americans with disabilities act

Prior litigation: admissible; evidence of life with a disability: inadmissible.

[Cross posted at FoxRobBlog, which is involved in some sort of DNS attack.  Whatever that is.]

In Yates v. Sweet Potato Enterprises, Inc., 2013 WL 3662645 (N.D. Cal. July 12, 2013), the plaintiff — a guy who uses a wheelchair — alleges that he encountered barriers at a Popeyes restaurant.  In the order, the judge addresses questions from both the plaintiff and the defendant about what evidence can be used at trial.  In so doing, she does two things that are stunning individually, but that — taken together — turn the plaintiff into the defendant, defending his right to equal access to the businesses that non-disabled people patronize everyday without a second thought.

First, the court grants the defendant’s motion to exclude “sympathy-inducing evidence regarding Plaintiff’s disability” that is not directly relevant to his experience at Popeyes, including “testimony regarding his day-to-day hardships.” The court just doesn’t see how that’s relevant.

Second, the court denies the plaintiff’s motion to exclude evidence that he has filed a large number of other access lawsuits.

Pause.

If people who use wheelchairs filed a lawsuit challenging every illegal barrier they encountered each day, most would file — I’m guessing — five to ten lawsuits each day.  Instead, most people go about their days, swearing at the illegal and thoughtless barriers, but without the time or resources to file those tens and eventually hundreds of lawsuits.  A brave and energetic few take the time to bring the lawsuits that remain necessary — twenty years after the effective date of the ADA’s architectural provisions and thirty years after California’s — to achieve a modicum of compliance.  For their trouble, these people are dubbed — in the press and in court — “serial litigators.”

The Ninth Circuit — the court with appellate authority over the Yates court — has recognized the role of these brave and energetic people in enforcing the law:

Courts must tread carefully before construing a Disability Act plaintiff’s history of litigation against him. As we have noted more than once, “[f]or the [Disabilities Act] to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the [Disabilities Act].” We must therefore be “particularly cautious” regarding “credibility determinations that rely on a plaintiff’s past [Disabilities Act] litigation.”

Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175 (9th Cir. 2010) (internal cites omitted; emphasis — though not nearly enough — added).   One of the cites I pulled out to make that quote more readable was Sam Bagenstos’s excellent article The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L.Rev. 1 (2006).

So despite the fact that the Ninth Circuit has instructed courts to be particularly cautious about credibility determinations relying on past litigation, the Yates judge — without citing Antoninetti — holds that

Plaintiff’s  filing  of  well  over  a  hundred  disability  lawsuits  in  which  he  alleges  identical injuries bears directly upon his credibility.  . . . Plaintiff’s  alleged  scheme  to  generate  income  through  the  serial  filing  of  lawsuits  in  an  effort  to  extract  settlements  from businesses, may, in fact, be probative of his credibility.

More than simply disregarding controlling precedent, this decision has the very immediate and apparently intended effect of converting Mr. Yates from a real, live person who navigates his day to day world  in a wheelchair to a greedy serial litigant, judged on the fact that he has filed other complaints, the legitimacy of which he will likely not be able to prove before the jury.  (This question is not addressed in the decision, but my strong guess is that the defendant will be allowed to show the fact of hundreds of lawsuits, while the plaintiff will not be permitted to show that, in each one, the facility in question was indeed out of compliance.  That would, in essence, require hundreds of mini-trials within this single trial.)

On another level — about which I’ll write more later, as I have to get back to the other outrages on my desk — this is part of the broader scheme on the part of the business world to spin the fact that — 20-30 years after the federal and state standards took effect — there is still massive noncompliance.  When you’re really really wrong, accuse the other guy of “serial litigation” to correct your many many failures.

El Diablo closed. Donate to CCDC. QED.

This may be the strangest charitable donation request you’ve ever gotten.  I’m asking you to donate to the Colorado Cross-Disability Coalition because the El Diablo restaurant closed.*

photo(65).JPG

Huh?

CCDC’s legal team of Kevin Williams and Andrew Montoya represented CCDC and several Mexican food enthusiasts who use wheelchairs in challenging the fact that the owners of El Diablo took an accessible space — in, btw, a beautiful old building in a booming neighborhood — and turned it into a largely inaccessible restaurant by adding raised areas that were not originally there.

Two years, summary judgment for plaintiffs, and a couple hundred thousand in legal fees later — just at the point where the judge was about to order El Diablo to restore accessibility — the city shut it down for (unrelated) code violations.  It reopened, reshut, reopened, reshut, declared bankruptcy, reopened, and — after the latest violation notice from the city — closed for good.

Bottom line:  CCDC spent a lot of attorney time on this case, won the case on summary judgment, and will not see a dime in attorneys’ fees.  Please join us in contributing to CCDC.**

If you’ve heard enough, just click on through to the donation page and send them some cash.  If you want to know more about this case, here are some links:

  • More snarky commentary about the defense counsel’s accusation that alleging discrimination when an accessible space is rendered inaccessible constitutes defamation.

This part of the ADA — requiring businesses to be accessible — has no damages remedy.  The only way lawyers can bring these cases is because the ADA makes defendants pay the plaintiffs’ attorneys’ fees when they lose.  But lawyers like the great team at CCDC always work under the threat that they’ll spend years on a case — and achieve excellent legal results — only to have it disappear.  That happened here.

Please support CCDC’s excellent legal work.  Thanks!

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* This photo is actually from January, but it’s more dramatic than anything I could find for the Final Shut Down.

** If you’re not comfortable with the online donation site — which seems highly unlikely if you’re reading a cutting edge blog like this one! — you can send a check to CCDC at 655 Broadway, Suite 775, Denver, Colorado 80203.

Introducing The Cute Puppies’ Guide to Title III of the ADA

There have been two types of post that have driven most of the traffic on this blog:  photos of my dogs; and my attempt to start an internet meme with the photo of Gus Fring being blown up by the mobster who used a wheelchair (MWD?).   So I try to publish my deep thoughts about disability rights, the practice of law, and adventures in trial technology, and what my immense readership really wants to see is photos of cute dogs and guys with their heads blown off.

This reminded me of one of my favorite Saturday Night Live sketches:  Kevin Nealon with No Attention Span News.  Not the funniest perhaps, but one that was excruciatingly accurate in portraying what it feels like to try to talk about something important but boring.  (Sorry for the ad.  It’s worth it.  Keep watching.)

With these thoughts in mind, I decided that we needed a more attention-grabbing way of presenting the ADA.  Lacking the copyright to the image of Gus Fring, but blessed with two very cute dogs, I decided to inaugurate The Cute Puppies’ Guide to Title III of the ADA:

There now!  Don’t you feel inspired to learn more?  You can check in from time to time on the FoxRobBlog, which will also have scintillating news of our latest case adventures and legal developments.  And puppies!

Stupid Lawyer Tricks: ADA Defense Stupidity

An animated response to all the invective-filled, garment-rending articles about lawsuits against businesses that violate the ADA.  As with my earlier attempt, I think I succeeded only in cracking myself up.   Call it Animation Therapy.   Try it:  http://www.xtranormal.com

Couple of notes.  I love how the animated gestures are almost as awkward as the gestures I generate naturally.  On the other hand, I’m very disappointed that I could not make the automated voice render the word “law-nerd.”  This is a significant gap in the Xtranormal program.  And because I can overthink anything, I feel a tiny bit odd that my alter ego is African-American.  (Of COURSE she’s my alter-ego.  What did you think?)  Felt odd as in “in a post about civil rights what right do I have to speak from an African-American perspective?”  Truth is, of the characters available from Xtranormal in this set, I identified strongly with the obviously coffee-related superpower and did not think a minor difference in skin color should stop me.  In addition, my Caucasian choices were rather limited.  This one was not alter enough of an alter-ego:

This one perhaps TOO alter:

We’ve previously established that I’m no superhero in the kitchen.

And I basically didn’t know wtf this was:

So Super Coffee Woman it is!   Superpowers include:  high caffeine tolerance; overthinking; snark; wasting time she should be working playing with online animation programs.