Thursday, December 4, 2025
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Court of Appeal:
Action May Proceed Against Serial ADA/Unruh Act Plaintiff
Opinion Says One Los Angeles Superior Court Judge Failed to Give Preclusive Effect to Colleague’s Findings
By a MetNews Staff Writer
The Court of Appeal for this district yesterday ordered reinstatement of a malicious prosecution action against a frequent litigator in actions under state and federal anti-discrimination laws, holding that one Los Angeles Superior Court judge—Timothy Patrick Dillon—did not accord deference to findings by a colleague, Frederick C. Shaller, in earlier litigation.
Litigation in the case began in the U.S. District Court for the Central District of California. Brian Whitaker, who is wheelchair bound sued Landis’ Labyrinth, Inc., then the proprietor of a toy store on Larchmont Boulevard in Hancock Park, alleging that he visited the store on Oct. 12, 2019, and found the counter was too high for him to reach.
A claim under the federal Americans With Disabilities Act (“ADA”) was dismissed as moot when Landis added an extension to the counter at a lesser height, and supplemental jurisdiction under the state Unruh Act was not retained.
Next, Whitaker sued in the Los Angeles Superior Court for an alleged ADA violation under the state Unruh Act. He was represented, as in his numerous other suits, by the controversial San Diego firm of Potter Handy, LLP.
Case Re-Filed
The case was tried before Shaller. He found that Whitaker’s testimony lacked credibility and that the plaintiff “did no more than poke his head into the store to take a photo” of the counter and “never attempted to make a sales transaction or do anything at the store other than to scope it out for purposes of determining whether he could sue” Landis “for an ADA violation.”
Landis then sued Whitaker, Potter Handy, LLP, and name partner Russell Handy for malicious prosecution.
In granting summary judgment in favor of the defendants, Dillon said: “Judge Shaller’s factual findings are not relevant to this court’s determination as to whether there was probable cause on this motion,” adding:
“[T]he ultimate issue of whether there was an ADA violation is not germane to this motion. Therefore, Judge Shaller’s determination is not dispositive on this motion. Rather, the issue is whether there was probable cause for the existence of an ADA violation and its remediation. Given all the litigation and rulings, there seems little doubt that, at a minimum, there was probable cause supporting the existence of an ADA violation.”
Justice Anne H. Egerton authored yesterday’s opinion reversing summary judgment in favor of Whitaker but affirming it as to Handy and the law firm. Egerton said that Landis did not produce evidence rebutting Handy’s declaration that he believed Whitaker’s assurance to him that he entered the store with an intent to make a purchase.
Issue Preclusion
Addressing the action against Whitaker, the jurist said:
“Although we agree with Landis that Judge Shaller’s findings are entitled to preclusive effect, we do not agree that they conclusively prove Whitaker lacked probable cause. Issue preclusion applies only to issues that were actually litigated and decided in the prior case….Judge Shaller did not consider whether Whitaker had probable cause to pursue his Unruh Act claim.”
However, Egerton said, Shaller’s findings do raise triable issues of fact. She explained:
“Landis submitted sufficient evidence from which a reasonable trier of fact could conclude Whitaker knew his Unruh Act claim lacked probable cause. In both federal and state court, Whitaker filed declarations under penalty of perjury asserting he went to the Store ‘to shop.’ Whitaker provided more detailed testimony at trial, claiming he was shopping for a particular board game….Judge Shaller conclusively found Whitaker entered the Store solely to look for ADA violations and did nothing else while inside the Store. Those findings support an inference that Whitaker knowingly and repeatedly gave false testimony concerning his intentions and actions inside the Store.”
She continued:
“From this, a reasonable trier of fact could infer Whitaker knew his actual intentions and actions were fatal to his claim. Whitaker’s history of litigating construction-related accessibility claims provides additional support for that inference. On this record, a reasonable trier of fact could conclude Whitaker knew his claim lacked merit and brought it for an improper purpose….”
Burbank attorney Samuel T. Rees represented Landis. Texas lawyer Jeffrey Hannah joined with Handy in acting for the defendants.
Previous Litigation
In 2022, U.S. District Court Judge Vince Chhabria of the Northern District of California imposed a $35,000 sanction on Whitaker and the law firm, saying they were “willing to peddle whatever lie they thought necessary to allow their lawsuit to survive,” making “facially preposterous” claims and telling “clear lies.”
That same year U.S. District Court Judge Jacqueline Scott Corley of the Northern District of California found that Whitaker “is not credible in light of his litigation history.”
Also in 2022, another Northern District judge, Yvonne Gonzalez Rogers, said that “[g]iven the substantial allegations raised against plaintiff and his firm concerning a potential fraud on the courts,” she was skeptical of Whitaker’s claims.
An ill-fated lawsuit was filed in 2022 in San Francisco Superior Court by then-San Francisco District Attorney Chesa Boudin and then-Los Angeles District Attorney George Gascón accusing Potter Handy of Potter Handy of shaking down small businesses. It noted that Whitaker had filed more than 1,700 cases in U.S. District Court.
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