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Ninth Circuit Affirms Attorney-Fee Award Against Serial Filer of ADA Actions
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday upheld a $36,775 award of attorney fees against a serial filer of actions under the Americans With Disabilities Act who sued a check-cashing business because its counter was too high.
On Jan. 19, then-Judge (now Senior Judge) Virginia A. Phillips of the Central District of California’s District Court made the award against Orlando Garcia, reciting her Dec. 21, 2021 finding that “Plaintiff did not prove at trial that he had a credible, genuine intent to return to the check-cashing location,” a requisite for standing.
She said:
“Plaintiff has filed hundreds of ADA cases in the Central District of California. Many of those cases have resulted in settlements but some have been dismissed for lack of standing….
“Moreover, the evidence Plaintiff presented at trial in support of his claimed standing to pursue his ADA claim was not credible. To wit, Plaintiff admitted that he had sued at least 14 check-cashing stores in Los Angeles and has not returned to any of those locations; he visited Defendants’ store on August 18, 2020 for the first time and has not returned.”
Precedent Cited
Yesterday’s memorandum—signed by Circuit Judges Morgan Christen and Sandra S. Ikuta and Senior Judge Carlos Bea—rejects Garcia’s contention that Phillips’s order contravenes the Ninth Circuit’s 2008 holding in D’Lil v. Best Western Encina Lodge & Suites that an adverse credibility determination in an ADA case cannot be predicated solely on a party’s litigation history. The judges said:
“In the context of Defendants’ fee motion, the district court relied on Garcia’s litigation history only to show that he was on ‘notice that the same issue [of standing| would arise in this case.’ Garcia is correct that D ‘Lil cautioned against the use of past ADA litigation as the sole basis for credibility determinations…, but D ‘Lil did not speak to the use of litigation history to show that the defendant was on notice that a particular legal argument was frivolous, unreasonable, or groundless. Here, the district court’s credibility determination did not depend on Garcia’s litigation history. Rather, the district court found Garcia’s stated intent to return was not credible….”
The case is Garcia v. Alcocer, 22-55183.
Law Firm Sued
An action was filed on April 11 by the district attorneys of Los Angeles and San Francisco counties in San Francisco Superior Court against the law firm of Potter Handy LLP, which does business as “Center for Disability Access,” and 15 of its attorneys, alleging a fraudulent scheme. The complaint mentions Garcia, alleging:
“[T]he astonishing number of cases Potter Handy files on behalf of the Serial Filers—over 800 federal cases on behalf of Serial Filer Orlando Garcia, approximately 1,700 federal cases on behalf of Serial Filer Brian Whitaker. and thousands more on behalf of Chris Langer, Scott Johnson. Rafael Arroyo, and the various other Serial Filers—make it literally impossible for the Serial Filers to have personally encountered each listed barrier, let alone to intend to return to hundreds of businesses located hundreds of miles away from their homes.”
The pleading goes on to say:
“Based on the People’s review of the federal courts’ PACER filing system, a single one of Potter Handy’s Serial Filers. Orlando Garcia, has settled more than 500 federal ADA/Unruh lawsuits since December 2019. Assuming an average settlement figure of $10,000, that means that Potter Handy has extracted more than $5,000,000 from small businesses based on a single Serial Filer’s cases in less than three years.”
San Francisco is appealing a dismissal of that action.
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