Metropolitan News-Enterprise


Tuesday, July 8, 2008


Page 1


Disability Activist Wins One Case, Loses Another in C.A.

Panel Rules in Latest Cases Brought by Prolific Plaintiff Molski


By SHERRI M. OKAMOTO, Staff Writer


Controversial self-proclaimed disability rights activist Jarek Molski exposed himself to an adverse fee award by pursuing litigation to enjoin technical violations of California’s disability access statutes under Civil Code Sec. 55, this district’s court of appeal ruled yesterday.

Div. Six affirmed the $33,702.63 award, calling it a reasonable and necessary consequence of Molski’s “scorched earth strategy,” invoking the Unruh Civil Rights Act, Disabled Persons Act, and Sec. 55 for an alleged access barrier at the Arciero Winery. Sec. 55 authorizes a fee award to the prevaling party in an action for injunctive relief from a violation of disability access rights.

The paraplegic, however, won a separate case yesterday dealing with a different attorney fee issue.

Molski sues public accommodations for a living and has filed in excess of 400 such actions in state and federal court. Molski and his attorney Thomas Frankovich have been declared vexatious litigants in both jurisdictions.

Molski initially filed suit against Arciero in federal court for violation of the ADA as well as California’s accessibility laws.

The district court dismissed Molski’s state claims for lack of jurisdiction, leaving only Molski’s ADA claim for injunctive relief pending. Arciero later notified Molski that the alleged violations have been remediated and Molski dismissed the federal action.

Meanwhile, Molski filed an action in the San Luis Obispo Superior Court based upon the same alleged conditions that had formed the basis of Molski’s federal action.

San Luis Obispo Superior Court Judge Barry T. LaBarbera granted Arciero’s motion to strike Molski’s claims for injunctive relief pursuant to Sec. 55 as moot, but Molski’s subsequent amended complaints continued to allege the access barriers had not been remediated and he was entitled to “the relief that is afforded by” Sec. 55, and prayed for attorneys’ fees as a prevailing party under Sec. 55.

LaBarbera eventually granted Arciero’s motion for judgment on the pleadings in the state action, and awarded all of Arciero’s attorneys‘ fees incurred in state court.

Molski contended that Arciero should not have been awarded attorneys fees because his claims had merit and under federal law, attorneys’ fees are not assessed against a plaintiff in an action to enforce the provisions of the federal civil rights act unless the claims were “frivolous, unreasonable, or groundless.”

Writing for the appellate court, Justice Paul H. Coffee concluded that such a consideration was unnecessary because California’s statutory scheme allows a plaintiff to control the relative risks, burdens and benefits” of litigation by selecting from among three statutory options.

He explained that a disabled person who encounters an access barrier may proceed under the Unruh Act or DPA to recover monetary damages without being exposed to any risk of an adverse judgment for fees.

A plaintiff can also proceed under Sec. 55 to enjoin technical violations of California’s access law, Coffee continued, in which case the plaintiff does not need to prove an actual attempt to access the facility or that the violation resulted from discrimination. However, unlike the Unruh Act and DPA, it permits a defendant to recover attorney fees if the defendant prevails.

Coffee reasoned that Molski’s assertion of claims under “every available statutory option,” was a “strategic decision” to minimize his burden of proof, while maximizing the defendant’s litigation expenses, and therefore, he concluded,Arciero was entitled to an award of fees incurred defending against Molski’s state court claims. 

In the separate unpublished case, Div. Six upheld an award of attorney fees to Molski from another winery.

Molski claimed to have encountered access barriers at Peachy Canyon Winery, and Frankovich served the winery with a federal complaint and a demand letter. The demand letter was substantially identical to one used by Molski and his attorney in hundreds of other cases, offering “friendly advice” to the winery about settling.

The winery completed the requested remediation and Molski’s federal claim was dismissed. Molski then filed suit in state court alleging violation of the DPA and Unruh Act.

After San Luis Obispo Superior Court Judge Teresa Estrada-Mullaney granted Peachy Canyon’s motion to strike Molski’s DPA claims, but declined to dismiss Molski’s other claims, Peachy Canyon agreed to pay Molski $4,001 and his attorney fees and costs.

Estrada-Mullaney  awarded $25,391.60 in fees.

On appeal, Peachy Canyon argued that the fee award should have been reduced based on Molski’s limited success and his attorney’s professional misconduct.

Writing again for the appellate court, Coffee reasoned the award did not constitute an abuse of discretion.

He concluded that Molski’s claims for violation of the DPA and the Unruh Act were alternative theories of relief, and that Molski had prevailed under the more difficult of the two theories.

Coffee also noted the trial court was not bound to agree with a district court judge’s evaluation of a similar demand letter in Molski v. Mandarin Touch Restaurant (C.D. Cal., 2005) 359 F.Supp.2d 924 and did not make an express finding of professional misconduct.

Frankovich and Walnut Creek attorney Jennifer L. Steneberg of The Dale Law Firm represented Molski in both cases. They could not be reached for comment.

Jon D. Cantor of Dykema Gossett and San Luis Obispo attorney Jere N. Sullivan represented the Arciero Wine Group. Sullivan also represented Peachy Canyon Winery.

Cantor said that yesterday’s published decision sent a message to Molski and his attorney that “they cannot have free access to the court” and cannot keep filing complaints “to seek attorney fees rather than truly and honestly attempting to advance the issue of handicap access to public places.”

He said he hoped the state courts would use the decision as precedent to award attorney fees against Molski in the future in the proper situations.

Presiding Justice Arthur Gilbert and Justice Steven Z. Perren joined Coffee in his opinions.

The cases are Molski v. Arciero Wine Group, 08 S.O.S. 3959, and Molski v. Peachy Canyon Winery, B198886.


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