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Ninth Circuit:
Breach of ADA Is Not Necessarily an Unruh Act Violation
Two Members of Three-Judge Panel Depart From Precedent, Yet Opinion Is Unpublished
By a MetNews Staff Writer
A divided panel of the Ninth U.S. Circuit Court of Appeals on Friday created uncertainty as to the interplay between the federal statute barring disability discrimination and California’s statute on the subject, though doing so in a memorandum opinion that lacks precedential value.
A violation of the federal Americans With Disabilities Act (“ADA”)—which authorizes injunctive relief only —does not necessarily constitute a breach of California’s Unruh Civil Rights Act (“UCRA”), which provides for an award of damages, the majority declared, repudiating previous holdings to the contrary.
There was no indication of why, despite the majority’s departure from precedent, the opinions were not designated for publication.
The majority also disagreed with an utterance by another panel less than a month earlier that the number of previous ADA-related cases the plaintiff has brought is to be disregarded in evaluating credibility.
Circuit Judges Consuelo M. Callahan and Ryan D. Nelson formed the majority. Circuit Judge Holly A. Thomas dissented except as to the District Court’s disallowance of a claim raised belatedly.
Serial Filer
The majority’s opinion affirms a denial of relief under the Unruh Act sought by a serial-filer of disability-discrimination complaints, Rafael Arroyo Jr., in an action against Robert Golbahar. District Court Fernando L. Aenlle-Rocha of the Central District of California conducted a one-day trial on the Unruh Act claim after dismissing as moot the ADA claim in light of the access barrier in the defendant’s parking lot at Rainbow Cleaners in Manhattan Beach having been remedied.
Friday’s opinion says:
“Although we have stated that ‘any violation of the ADA necessarily constitutes a violation of the [UCRA],…we have yet to directly address recent California case law instructing that UCRA plaintiffs must show ‘a bona fide intent’ to use the defendant’s services, even where there is an underlying violation of the ADA.”
The opinion cites two 2021 opinions from Div. Two of the Fourth District Court of Appeal, Thurston v. Omni Hotels Management Corp. and Reycraft v. Lee.
“On the record before us, Arroyo has not shown that the district court erred by requiring that in order to obtain damages under UCRA, Arroyo, at trial, had to establish that he actually intended to utilize Rainbow Cleaners’ services,” Callahan and Nelson said.
Credibility Determination
Aenlle-Rocha said in his Jan. 3, 2022, findings of fact and conclusions of law:
“…Plaintiff testified he had filed up to 350 lawsuits alleging violations of the ADA, including an estimated 200 actions involving purportedly noncompliant parking spaces, and that he was ‘pretty familiar’ with parking requirements under the ADA….This evidence cast further doubt on Plaintiffs assertion that he visited the Rainbow Cleaners with the bona fide intent to avail himself of its services, and not for other reasons-such as an intent to inspect the business for possible construction-related accessibility barriers and to file a lawsuit under the ADA and Unruh Act.”
Reliance on his past litigation in determining credibility was improper under the Ninth Circuit’s 2008 decision in D’Lil v. Best W. Encina Lodge & Suites, Arroyo asserted.
“See also Langar v. Kiser,” Callahan and Nelson wrote, pointing to a decision handed down Jan. 23.
Responding to Arroyo’s point, the judges said:
“But even assuming that D’Lil applies to UCRA claims, we only cautioned courts from making ‘credibility determinations that rely on a plaintiffs past ADA litigation.’…Here, Arroyo’s ‘past ADA litigation’ was only one factor in the district court’s factual determination that he lacked a bona fide intent to use Rainbow Cleaners. The district court’s factual finding is entitled to great deference.”
(Another factor noted by Aenlle-Rocha was that Rainbow Cleaners was about 25 minutes to a half hour’s drive from his home.
He said: “Given that Plaintiff regularly used other dry cleaner facilities near his residence in South Gate, where he lived and was present every day, the court finds Plaintiff’s testimony that he chose to use Rainbow Cleaners because of its convenient location to not be credible.”)
Federal Requirement
Although Callahan and Nelson portrayed an intent to return to premises if the barrier to access were removed to be a distinctively California requirement, other Ninth Circuit cases, including Langar, characterize it as a requisite to standing under the ADA.
In Langar, Circuit Judge Ronald Gould, writing for the majority, interpreted D’Lil broadly. He noted that the plaintiff was a “serial litigant, having filed nearly 2,000 ADA lawsuits in federal and state courts,” and declared:
“This fact has no place in our standing analysis.”
In her dissent, Thomas said:
“The ‘bona fide intent’ requirement that the district court applied and which the majority affirms, creates a roadblock to ‘tester’ standing for damages claims brought under the UCRA. California law, though, contains no prohibition on tester litigation, and the Supreme Court of California has already declined invitations to impose extra-statutory restrictions on UCRA standing in order to curb serial litigation tactics…. Because it is undisputed that Golbahar violated the ADA, our precedent requires judgment for Arroyo on his UCRA claim as well.”
Supplemental Jurisdiction
The trend among District Court judges in California in ADA cases has been to decline to assume supplemental jurisdiction over Unruh Act claims—which was Aenlle-Rocha’s initial inclination. He said in a Sept. 1, 2021, order:
“In 2012, California adopted a heightened pleading standard for lawsuits brought under the Unruh Act to combat the influx of baseless claims and vexatious litigation in the disability access litigation sphere….The stricter pleading standard requires a plaintiff bringing construction-access claims to file a verified complaint alleging specific facts concerning the plaintiff’s claim, including the specific barriers encountered or how the plaintiff was deterred and each date on which the plaintiff encountered each barrier or was deterred….California also imposed a ‘high-frequency litigant fee’ in 2015 in response to the ‘special and unique circumstances’ presented by certain plaintiffs and law firms filing an outsized number of Unruh Act Lawsuits….
“In recognition of California’s effort to reduce the abuse of California’s disability access laws, district courts within the state have determined that the interests of fairness and comity counsel against exercising supplemental jurisdiction over construction-access claims brought under the Unruh Act.”
Arroyo was able to persuade Aenlle-Rocha to entertain his Unruh Act claim.
The case is Arroyo v. Golbahar, 22-55182.
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