ALAMEDA (CBS SF) — Dozens of Bay Area businesses got slapped with lawsuits this past summer for violating the Americans with Disabilities Act and all the lawsuits were filed by one disabled man. While most merchants settle to avoid an expensive trial, two businesses have decided to fight back.
Kevin Moreland’s been in a wheelchair since a bicycle accident 25 years ago. But that hasn’t stopped him from getting around in Alameda where he lives. The Sandwich Board is one of his favorite lunch spots.
So he was surprised to learn another disabled person had sued the mom-and-pop sandwich shop for violating the Americans with Disabilities Act. “It’s not blocked. There’s no blockage. I mean, you roll right in there and get a sandwich and pay,” said Moreland.
Orlando Garcia from Southern California has also sued more than sixty other businesses around the same time.
“First of all I was shocked,” said Sandwich Board owner Michael Lee. “We never saw the plaintiff come into my business,” said Lee.
He wants the lawsuit dismissed and wants Garcia to be declared a so-called vexatious litigant, a serial lawsuit filer who is abusing the court system.
“Because it’s not fair. This law is not fair,” said Lee. “We’ve been in business for almost 40 years and never had a complaint. So we are not going to settle.”
Mark Rogers, owner of Lola’s Chicken Shack down the street, is also fighting back.
“At first everyone’s advice is to just pay it off and be done with it, and that’s the cheapest way to do it,” said Rogers. “But at some point, if somebody doesn’t stand up and say enough’s enough, this just keeps going on and on.”
“That’s not why the ADA was enacted, or the California Unruh Act,” said attorney Catherine Corfee who represents both Lee and Rogers. “The people who are suing are not intending to ever return. They are simply suing for the greenback, access to cash is what they want.”
Corfee says just a handful of plaintiffs file hundreds of cases. Garcia alone has filed more than 700 ADA lawsuits in federal court since 2014, most of them since the beginning of the pandemic in 2020. The law firm in all the cases is San Diego-based Potter Handy.
“I think they’re a mill because they have all these repeat plaintiffs going out and suing, extorting for early cash settlements, and off they go,” said Corfee.
“Without serial litigation, without these regular plaintiffs who are forcing these businesses to be compliant we simply would not have compliance with the ADA,” said Dennis Price, an attorney with Potter Handy.
Price says his client Orlando Garcia is “an active ADA tester” and as such, he is not abusing the system.
“Tester litigation has been around for decades. It’s the way that civil rights are litigated,” said Price.
“Typically, you will find these cases being brought against companies that are small,” said UC Hastings Law Professor David Levine. Levine says labeling someone a vexatious litigant is a hard legal bar to meet.
In the Alameda cases, Levine says the defendants would have to show Garcia specifically targets small businesses that don’t have deep pockets for minor violations, then settles for relatively small sums.
“Then you might be able to start amassing evidence that would suggest there’s a pattern to this and it’s not being done for legitimate purposes,” said Levine.
There are several changes in the law that could be made that would slow the flood of lawsuits, according to Levine.
“The opportunity to cure, would be one, that you would have to give 60 days, 90 days notice, something like that, before bringing the lawsuit,” said Levine.
The ADA doesn’t allow for that so it would be up to Sacramento lawmakers to modify a California civil rights law, the Unruh Act, that also gives plaintiffs damages of $4,000 dollars per visit. Another possible fix he says would be to make it easier for defendants to get their legal fees paid back. He says that would deter some frivolous filings.
“You would have to have some legislators willing to push this, to say, look, there really is a problem here,” said Levine.
Moreland hopes a judge will side with his favorite Alameda neighborhood sandwich shop.
“This guy’s just trying to make a business. He’s been here for like 35 years and he’s trying to survive and make it like everybody else,” said Moreland. “I am glad that he is fighting it and I hope the outcome is good.”
California has the most federal ADA filings in the country with just over 6,000 in 2020 according to federal court data. It’s likely in part because California also allows plaintiffs to recover those civil rights damages.
Both Alameda businesses did have minor ADA violations that they have since fixed. The Sandwich Board has added a small ADA-compliant folding table at the front of the counter for taking payments and removed a table and two chairs that were out on the sidewalk. Lola’s Chicken Shack modified the front door and set up an ADA-compliant table in the sidewalk parklet of the restaurant next door.