Tuesday, July 6, 2010
Appeals Court Rejects Serial ADA Litigant’s Request for Attorney’s Fees
By STEVEN M. ELLIS, Staff Writer
This district’s Court of Appeal ruled Friday that a serial Americans With Disabilities Act litigant who dismissed his suit against two parking lot owners after they extended paint striping identifying a handicap-accessible parking space cannot collect attorney’s fees.
Div. One in an unpublished opinion said Thomas Mundy, a paraplegic who has made a cottage industry of suing businesses to enforce ADA compliance, could not show he was the “catalyst” that caused Kambiz and Firouzeh Besharat to increase the striped area’s width from 74 to 96 inches.
Writing for the court, Presiding Justice Robert M. Mallano said that Mundy could not collect fees for his counsel, Los Angeles attorney Morse Mehrban, because he failed to proffer a settlement offer to the Besharats prior to suing.
Mallano further noted that Mundy could not show the Besharats acted in order to avoid losing the suit because ADA standards require only that the loading zone for a handicap-accessible space—not its stripes—be 96 inches wide, which the Besharats’ space was.
Mundy, who has used a wheelchair since a 1988 motorcycle accident in Maryland left him paralyzed, said in a January 2009 interview that he had filed more than 150 lawsuits in 18 months demanding damages from small businesses in violation of the ADA’s exacting requirements.
He has declined to say how much he has earned by filing lawsuits demanding five-figure sums from business owners and then settling, but attorneys representing those he has sued last year estimated Mundy’s proceeds at approximately $300,000 in little more than a year, and a similar sum for Mehrban from Mundy’s cases.
Mundy sued the Besharats seeking injunctive relief for violations of the ADA and state law after he said he could not find a van-accessible handicap parking spot in their lot during a November 2008 visit.
The Besharats denied Mundy’s allegations, and later filed pleadings stating that Mundy admitted that they had a van-accessible handicap parking spot available for him on the day of his visit, but that the striped portion of the unloading area beside the parking space was only 74 inches wide.
The space itself was actually more than 96 inches wide, the Besharats noted, and had been approved by the City of Los Angeles Department of Building and Safety in 2002 pursuant to a 2001 bulletin from the department that did not require the 96-inch access aisle to be striped or hatched.
Nevertheless, the Besharats extended the paint lines to create a 96-inch boundary, and Mundy moved to dismiss his suit with prejudice. He then sought an award of attorney fees under Civil Code Sec. 55 as the “prevailing party” under the theory that he was the catalyst for the Besharats’ remediation.
Los Angeles Superior Court Judge Yvette M. Palazuelos denied the motion, finding that the Besharats were in substantial compliance with the law, and the Court of Appeal affirmed.
Noting that a plaintiff seeking to proceed under the catalyst theory must both have taken reasonable steps to settle before filing suit, and have caused the defendant’s behavior, Mallano wrote that Mundy’s failure to do the former was fatal to his case.
The justice also said that Mundy failed to show his suit had caused the Besharats to alter their behavior to bring it into compliance with the law.
“[T]he plaintiff’s lawsuit must induce the defendant’s voluntary actions out of the defendant’s fear of losing the suit…,” he wrote. “Even though the Besharats added an extra stripe to extend the loading zone of their van-accessible handicap parking spot to 96 inches, their act was not required by the ADA Standards or Civil Code sections 54 and 54.1. While the Besharats might have added another stripe because of Mundy’s lawsuit, it was not out of fear of losing in court, but to avoid any nuisance or expense.”
Justices Frances Rothschild and Justice Jeffrey W. Johnson joined Mallano in his opinion.
The decision marked the second loss for Mundy in a week on a request for attorney’s fees under the catalyst theory. This district’s Div. Two on Wednesday ruled in Mundy v. Neal, B219711, a published decision, that Mundy could not rely on the theory in a similar case where he failed to attempt to settle prior to filing suit.
The Besharats were represented by Beverly Hills attorney R. Lance Belsome.
The case is Mundy v. Besharat, B218683.
Copyright 2010, Metropolitan News Company