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Business Sued by ‘Serial’ ADA Filer Can’t Appeal Denial of Vexatious-Litigant Order
By a MetNews Staff Writer
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Depicted above is Lola’s Chicken Shack in the City of Alameda. The Ninth U.S. Circuit Court of Appeals said yesterday that Lola’s and its owners cannot appeal an order denying a motion to declare a man who sued it a vexatious litigant because they have no personal stake and therefore lack standing.
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A business that was sued by a serial filer of actions claiming disability discrimination has no standing to appeal an order denying the branding of the plaintiff as a vexatious litigant, the Ninth U.S. Circuit Court of Appeals held yesterday.
The decision of a three-judge panel—comprised of Circuit Judges Patrick J. Bumatay and M. Margaret McKeown and Senior Circuit Judge Jay Bybee—came in a memorandum opinion. It dismisses the appeal by Peter and Lola Beck and their business, Lola’s Chicken Shack, from the Nov. 15, 2021 order by District Court Judge Charles R. Breyer denying their motion to designate Orlando Garcia a vexatious litigant.
The order they sought would have required that Garcia gain court permission before filing any more actions under the Americans with Disabilities Act (“ADA”). They pointed out in Garcia has filed 732 ADA cases since 2014, which includes 31 against businesses in the City of Alameda in May 2021, including Lola’s.
(The number has increased since then. An action filed last April by the district attorneys of Los Angeles and San Francisco says that Potter Handy, which represents Garcia and others in its stable of litigants has filed “over 800 federal cases on behalf of Serial Filer Orlando Garcia.” It notes that “a single one of Potter Handy’s Serial Filers. Orlando Garcia, has settled more than 500 federal ADA/Unruh lawsuits since December 2019.”)
Breyer’s Ruling
Breyer, in denying the motion, said:
“Defendants do not nearly come close to establishing that Garcia is a vexatious litigant….The Ninth Circuit has recognized that ‘[f]or the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.’…ADA testers can still be vexatious litigants, just like any litigant can be. But Defendants have failed to demonstrate that Garcia’s cases generally are—or that this case in particular is—meritless, harassing, or improper. Indeed, Defendants here claim to have taken action to bring their restaurant into compliance with the ADA as a direct result of the lawsuit.”
Breyer added:
“For the same reasons the Court will not deem Garcia a vexatious litigant, it will not sanction Garcia’s counsel ‘for their actions of filing thirty-one complaints against Alameda County business, including Lola’s, for harassment purposes to extort early settlement without any intention of litigation on the merits.’…Garcia and his counsel are permitted to bring ADA cases. It is unfortunate that Defendants ‘incurred $2000 for the vexatious motion,’…but Garcia is not responsible for that expenditure.”
Ninth Circuit’s Dismissal
The Ninth Circuit panel, in repelling the appeal from the order denying a vexatious-litigant order, said:
“Lola’s Chicken Shack lacks Article in standing to appeal this decision. To having standing to appeal, appellants must have a ‘direct stake’ in the outcome of their appeal….Since an order requiring Garcia to seek court permission for future ADA claims would not impact the instant suit. Lola’s Chicken Shack has no “direct stake” in the outcome of the appeal. Any injury caused by Garcia’s instant lawsuit and suffered by Lola’s Chicken Shack has already occurred, and is not redressable by a reversal of the vexatious litigant order. Instead, the vexatious litigant order would only benefit third parties from Garcia’s lawsuits.”
The panel continued:
“Furthermore, even if Lola’s Chicken Shack had argued that the pre-filing order could protect it from future suits by Garcia, such an allegation is so speculative that it would not confer Article III standing here….Garcia has never sued Beck before, and the record does not reflect that Garcia makes a practice of repeatedly suing the same businesses once ADA violations are remediated. Thus, it would be entirely speculative to assume that Garcia may sue appellants in the future.”
Denial of Sanctions
The judges affirmed the order denying sanctions, saying:
“[H]ere, given that Lola’s Chicken Shack remediated the ADA violations alleged in Garcia’s lawsuit, the district court did not abuse its discretion in finding the lack of ‘meritless, harassing, or improper’ conduct to warrant the award of sanctions against Garcia.”
The case is Garcia v. Beck, 22-15594.
In December the Ninth Circuit affirmed a $36,775 award of attorney fees against Garcia for suing a business under the ADA where he did not actually intend to patronize that business if it became ADA compliant.
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