Metropolitan News-Enterprise


Thursday, July 27, 2023


Page 1


Ninth Circuit:

Plaintiff’s Lack of Standing Precluded Attorney-Fee Award

Opinion Says District Court Lacked Jurisdiction to Award Fees to the Defendants Under a Provision of the ADA

Following Dismissal of the Action; Desai Says Other Routes Could Have Been Taken to Secure Such an Award


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals declared yesterday that a District Court judge who dismissed an action for disability discrimination for lack of standing was then without jurisdiction to award attorney fees to a business that was wrongfully sued.

Circuit Judge Roopali H. Desai wrote for a three-judge panel in saying that where the plaintiff lacks standing under the Americans With Disabilities Act (“ADA”), the ADA does not authorize a fee award, though the defendants could have sought an award by other means.

That was one of two Ninth Circuit decisions yesterday arising out of ADA litigation.

Frequent Litigator

Desai’s opinion comes in a case in which frequent-litigator Antonio Fernandez, who is wheelchair-bound, sued 23676-23726 Malibu Road, LLC and others under the ADA on the ground that the aisles in the defendants’ store, Bungalow Lighting & Design, were too narrow. He alleged in his complaint that he personally entered the store in November 2020 to “assess the business for compliance with the disability access laws.”

However, the defendants presented evidence, in connection with their motion for summary judgment, that in that month, only persons with appointments were allowed entry, in light of the pandemic, and that no person in a wheelchair came onto the premises. Fernandez then admitted that he was not present in the lighting store.

District Court Judge Dolly M. Gee of the Central District of California granted summary judgment in favor of the defendants and Fernandez, who is in the Center for Disability Access’s stable of plaintiffs, did not appeal. He did appeal, however, from Gee’s subsequent order that he pay $13,640.10 in attorney fees to the plaintiffs pursuant to a provision in the ADA.

Gee’s Ruling

Gee said:

“The Court has no trouble here finding that Plaintiff’s claim was frivolous and without foundation. The Court granted summary judgment for Defendants because Plaintiff did not refute Defendants’ testimony that Plaintiff never in fact visited their store and so would not have personally encountered or obtained personal knowledge of the alleged accessibility barrier….He thus failed to meet the basic threshold element of having standing to sue by being injured by the alleged violation. Id. This was despite the fact that Plaintiff alleged in his Complaint that he visited Defendants’ store.”

She continued:

“He now admits in his Opposition… that he never entered the store….Plaintiff’s counsel have allegedly made a pattern of falsely pleading that their clients encountered ADA violations and intend to return….This is unacceptable litigation conduct that takes this case out of the mine run of civil rights cases.”

The Center for Disability Access is a department of the law firm of Potter Handy LLP.

Argument on Appeal

Dennis Price of the center’s San Francisco office argued in his appellate brief:

“In this case, Fernandez did not enter a store he sued on the basis that he could tell it was non-compliant from outside the store. The District Court granted summary judgment to the Defendant on the basis that the Defendant never saw Fernandez in the store. This was not refuted, as it was a conceded fact that Fernandez did not enter. However, based on a wealth of Ninth Circuit, as well as black-letter law, the futile gesture of entering a business simply to manufacture standing to sue for removal of a barrier is unnecessary.”

Price maintained that summary judgment was granted “due to a misapplication of the requirements to show injury-in-fact in an ADA case.”

He did not argue that the District Court lacked jurisdiction to make the fee award, the basis upon which the appeal was decided.

Defendants’ Contentions

Long Beach attorney Michele A. Dobson, representing the defendants, contended in the appellee’s brief:

“…Mr. Fernandez has filed 40 or more ADA Complaints alleging a construction related accessibility violation within a 2-month period immediately preceding the filing of the current complaint which alleges construction related accessibility violations. Mr. Fernandez ADA Plaintiff work appears to be his primary means of earning a living.” 

She listed the lawsuits and commented:

“In the boilerplate Complaints, Mr. Fernandez describes himself as a resident of the State of California and nothing more. Essentially, Mr. Fernandez is a tester Plaintiff that files cases in large numbers as a source of income, all with the same law firm, Potter Handy. Based upon this history, there was more than sufficient experience between Mr. Fernandez, and the firm that represented him, to adequately oppose the motion for summary judgment. However, whether Mr. Fernandez had standing is not before the court on this appeal.”

Dobson noted that “[t]he ADA only allows a prevailing defendant to recover fees if the action wasn’t substantially justified,” and recited that Gee had found the action to be frivolous. She also suggested that the award could have been made under California Civil Code §55, a part of the Unruh Act, which authorizes an award to the prevailing party in an action for damages based on ADA violations.

Plaintiffs in California suing for alleged ADA violations routinely add a claim under the Unruh Act because the ADA only provides for injunctive relief, not damages.

 Desai’s Opinion

In her opinion reversing Gee’s order, Desai did not expressly allude to §55. Gee made her award “under the ADA.”

Desai wrote:

“Because the ADA’s fee provision does not independently confer jurisdiction and defendants did not move for fees under any other rule or statute, the district court lacked the authority to award fees under the ADA once it dismissed Mr. Fernandez’s claim for lack of standing. The ADA differs from statutes this court has found independently confer jurisdiction to award fees or costs.”

She went on to say:

“[T]he ADA is primarily substantive and states only that the court ‘may allow the prevailing party...a reasonable attorney’s fee.’ 42 U.S.C. § 12205. The statute says nothing about permitting such awards when a case is dismissed on jurisdictional grounds.”

The judge pointed out, however, that “Rule 11 provides an avenue for defendants to seek fees against plaintiffs who bring frivolous lawsuits.” It provides that a court may “impose an appropriate sanction upon the attorneys, law firms, or parties” responsible for such actions.

The case is Fernandez v. 23676-23726 Malibu Road, LLC, 22-55626.

Other Opinion

Circuit Judge Daniel P. Collins wrote for a three-judge panel in vacating an order by District Court Judge Mark C. Scarsi of the Central District of California dismissing, sua sponte, an ADA action brought by George Jones against L.A. Central Plaza LLC and Central Liquor & Market, Inc. Jones contended that barriers in the “One Stop Liquor” shop on Central Avenue in Los Angeles impeded his access in light of his disability.

When Jones moved for summary judgment, Scarsi declared that the plaintiff failed to meet the pleading standards under the U.S. Supreme Court’s 2009 decision in Ashcroft v. Iqbal, ordered dismissal, and denied the motion for summary judgment as moot.

Collins wrote:

“The question in this case is whether, when presented with the issue of standing in the context of a plaintiff’s fully briefed summary judgment motion, a district court may ignore the factual evidence of standing presented at summary judgment and instead sua sponte examine the adequacy of the complaint’s allegations of standing under Iqbal. We hold that it cannot.”

Rhetorical Question

The circuit judge posed the question:

“What possible justification could there be…for raising a purely technical pleading deficiency that the defendant never saw fit to raise?”

He pointed out that if the defendants had challenged the adequacy of the pleading at the outset, the “deficiencies presumably could have been cured before the allotted time to amend the pleadings expired,” adding:

“For a district court to ignore the parties’ factual presentation on summary judgment, and to instead insist on raising sua sponte an unobjected-to-but-potentially-curable deficiency only after the time to amend has expired, seems hardly to promote the just determination of the action.”

Collins declared:

“[T]he fact that the district court has the power and the obligation to raise jurisdictional issues such as standing sua sponte, does not mean that it has discretion, later in the litigation, to retroactively examine the adequacy of the complaint’s factual allegations of standing under Iqbal.”

The case is Jones v. L.A. Central Plaza, 22-55489.


Copyright 2023, Metropolitan News Company