Friday, July 24, 2020
Court of Appeal:
Lawyer’s Conduct in Pursuing ADA-Based Claim Questionable
Justice Stratton Authors Opinion Affirming Judge Bryant-Deason’s Order Denying Anti-SLAPP Motion
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed the denial of an anti-SLAPP motion filed by a lawyer who is being sued for malicious prosecution based on allegedly pursuing a bogus case on behalf of a man who claimed that he is disabled and was unable to go into a business because a driver for the defendant company wrongfully used a handicapped parking space.
Justice Maria Stratton of Div. Eight wrote the opinion, filed Wednesday and not certified for publication. It affirms an order by Los Angeles Superior Court Judge Susan Bryant-Deason denying a special motion to strike filed by Santa Monica sole practitioner Jamie R. Schloss in an action against him by Golden State Seafood (“GSS”).
Bryant-Deason said that the first prong of a motion under the anti-SLAPP motion, under Code of Civil Procedure §425.16—that the conduct allegedly arose from protected activity—was met because it stemmed from litigation, which implicates the right to petition, but found that Schloss failed to show that the second prong was established: a probability he would prevail on the merits.
Stratton found no fault with any of Bryant-Deason’s determinations. The panel did detect fault with Schloss’s practices, finding merit in the allegation that he is engaged in a “legal shakedown scheme” in seeking payments based on intrusions on handicapped-only parking spaces.
Parking Space Unavailable
The underlying lawsuit was one Schloss filed on behalf of William Cohen against GSS on Nov. 19, 2015. It was alleged that Cohen, 31 days earlier, went to the Bellaj Banquet Hall in Burbank, wishing to eat there, “but was prevented from doing so because he could not park in the handicapped parking space.”
It was occupied by a vehicle owned by GSS whose driver, who is not handicapped, was making a delivery.
Cohen sued under California’s Unruh Civil Rights Act, which renders actionable in state court any violation of the federal Americans With Disability Act (“ADA”), and under the California Disabled Persons Act (“DPA”). The DPA cause of action was also grounded on the supposed ADA violation.
A snag was encountered, however. Contrary to the pleading, Cohen could not have had a meal at Bellaj; it was closed that day.
At trial, the plaintiff testified that he was thirsty and wanted to go to the 7-11, three doors north of the hall, at Victory Boulevard and Hollywood Way.
It also turned out that he did not have a current handicapped parking permit on the day in question.
The action against GSS went to a jury in the courtroom of Los Angeles Superior Court Judge Bobbi Tillmon, and the verdict was for the defense.
Malicious Prosecution Elements
That victory meant, Bryant-Deason noted in her order denying the anti-SLAPP motion, that the first requirement of an action for malicious prosecution—a favorable outcome for the defendant in the underlying action—was satisfied. So was the second requirement, a lack of probable cause for bringing the action, because “GSS sufficiently argues that Plaintiff’s Unruh Act claim and CDPA claims were legally and factually untenable,” the judge said.
She pointed out that Cohen did possess a handicap parking permit but it had expired on June 30, 2015; he produced a subsequent handicap placard expiring June 30, 2017, but there was nothing showing that it was issued to him; and the jury in Tillmon’s court found that he was, in fact, not disabled.
Even if he had, in fact, been handicapped on Aug. 19, 2015, Bryant-Deason declared, there would have been no liability on the part of the GSS because the ADA forbids discrimination based on a lack of accessibility on the part of public accommodations. That has no applicability to the defendant in the underlying action, she said, which was merely making a delivery, not providing services to the public.
A third element of a cause of action for malicious prosecution, Bryant-Deason recited, is malice. She quoted the California Supreme Court as saying in its 2004 decision in Zamos v. Stroud that “an attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause.”
The judge said:
“Plaintiff GSS argues that malice is evidenced on Cohen’s assertion during trial, by and through Schloss, that GSS denied Cohen access to 7-11 as opposed to the Bellaj Banquet Hall, as alleged in the complaint….A reasonable juror can infer that Schloss continued to prosecute this action after becoming aware that the Underlying Action lacked probable cause by arguing that Cohen attempted to visit 7-11 on August 19, 2015 instead of Bellaj, as alleged in Cohen’s complaint.”
GSS additionally maintained that Schloss is in violation of the Unfair Competition Law, asserting that he makes it a practice to bring meritless actions based on purported ADA violations. That cause of action, Bryant-Deason said, also survives the anti-SLAPP motion, explaining that “Cohen’s claims in the Underlying Action were arguably not legally and factually tenable” and GSS will probably defeat them.
In her opinion affirming Bryant-Deason’s denial of the anti-SLAPP motion, Stratton agreed that the filing of the underlying lawsuit was protected conduct, and that Schloss failed to show a probability that it would win on the merits. Seeing no dispute as to the fact that GSS prevailed below, Stratton said with respect to probable cause:
“Here, GSS was a wholesale seafood distributor. It did not own or operate the Bellaj, the 7-11 convenience store, or any business near the parking spot reserved for vehicles with handicap placards. At best, its driver committed a Vehicle Code violation by blocking the reserved space. This is not the type of discrimination the Unruh Act, DPA, or ADA was intended to remedy.”
She also observed that “Schloss failed to prove at trial that his client had an unexpired placard or license plate and that he had the placard or plate with him to display so that he could legally park in the blocked space.”
(Schloss attempted to make such a showing in his motion for reconsideration of the denial of his anti-SLAPP motion, with Bryant-Deason denying that motion on the ground that the information had been available earlier. The lawyer filed an appeal from that order but, Stratton said, he did not provide briefing on the issue separately, obviating a need to consider it.)
Addressing the malice element of an action for malicious prosecution, Stratton said:
“Here, the evidence suggests Schloss knowingly continued to pursue the action after being advised by opposing counsel of the defects in his case and after watching his client suddenly and completely change material facts pled in the complaint.”
“To knowingly proceed to trial on a claim requiring proof of entitlement to use the space reserved only for valid placard-displaying vehicles without securing proof that Cohen had a placard in effect at the time of the incident is akin to continuing with an action after one discovers it is baseless. It is an additional fact supporting a finding of malice.”
Unfair Competition Law
Stratton agreed with Bryant-Deason that the cause of action under the Unfair Competition Law—embodied in Business & Professions Code §17200 et seq.—was not a SLAPP. She made note that Schloss acknowledges having brought at least 20 similar actions on behalf of clients, frequently with Cohen as the plaintiff, setting forth:
“Knowingly filing or pursuing unmeritorious legal actions that are not factually or legally tenable, for the purpose of earning income, qualifies as an unfair business practice. We have already found GSS has made a prima facie showing [of] a likelihood of success on its malicious prosecution claim. GSS alleges another example of Cohen and Schloss initiating a ‘nearly identical’ action against a delivery truck…similarly parking in a reserved handicapped space. GSS argues Schloss’s business practice ‘appears to consist of utilizing Cohen in order to initiate litigation against companies whose delivery persons park in handicapped spots.’ GSS refers to Schloss’s behavior as part of a ‘legal shakedown scheme’ based on an abuse of the Unruh Act, similar to abuse of the unfair competition law. We are persuaded these facts and this legal theory have merit….”
The case is Golden State Seafood, Inc. v. Schloss, B295937.
Attorneys on appeal were Schloss, representing himself, along with Keith J. Turner and Justin Escano of Santa Monica’s Turner Law Firm, and Pasadena lawyer Collin Seals and downtown Los Angeles practitioner Charles L. Murray III acting for GSS
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