The art of mass producing disability-access lawsuits in the Modesto area and beyond continues to thrive despite multiple media reports and legislative reform stretching for more than two years.
Reasons? Proposed laws didn’t have enough teeth. Many owners still have not made their businesses wheelchair-friendly. And sue-happy serial litigants continue making money, in the name of making things more fair for the disabled.
“There is too much money to be made” from suing, said Sacramento attorney Rick Morin, who specializes in defending small businesses from such lawsuits. “They’re not going to stop suing.”
The issue came to light when The Modesto Bee reported that the owners of Ripon’s Barnwood Restaurant, highly visible from Highway 99, closed rather than fight a lawsuit claiming violations of the Americans with Disabilities Act in summer 2014. At that point, plaintiff Cynthia Hopson had brought 25 ADA lawsuits.
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Due to Mrs. Hopson’s multiple disabilities and medical conditions the once-active and energetic Mrs. Hopson is confined to using a mobility scooter to arduously complete day-to-day activities which were once effortless.
Standard language in Cynthia Hopson’s lawsuits
Since then, the 69-year-old woman – who says she’s a special education teacher; has lupus, spine and bone problems; and uses a wheelchair – has run up her total to 116 lawsuits. She has targeted many businesses near Lodi, her hometown, and Stockton, but she’s also ventured into Stanislaus and Merced counties and has sued 43 businesses in The Bee’s area.
A disabled woman from Atwater, 57-year-old Aurora Cervantes, has lupus and depression and also was featured in The Bee’s award-winning 2014 series, “Taking a Stand v. Taking Advantage.” She seemed to take a hiatus from suing that lasted 22 months, until a new spurt of lawsuits showed up in late November.
Several Atwater businesses had posted fliers with Cervantes’ photograph. When she resumed suing, she went after a bagel shop and a Burger King in Merced, and in Turlock she sued a Chevron station and a Goodwill Industries store – a nonprofit whose mission is helping the disadvantaged.
The Bee was unable to reach Cervantes or Hopson. Stockton attorney Daniel Malakauskas – who represents both women – did not return a phone call.
3.8 million Disabled Californians
0.01 Percentage of disabled Californians who filed ADA claims in 2014
Malakauskas has clients in other regions, and their lawsuits stretch nearly to the Mexican border. He represents people who filed 53 lawsuits in California in 2016, according to Morin’s research.
Some defendants say payout demands are little more than extortion sanctioned by state and federal law. Statutes require equal access for all patrons and require attention to a lengthy list of specific mandates, including signs, parking spaces, diameter of grab bars, width of restroom stalls and much more.
Serial lawsuits trivialize our struggle, our discrimination, our life difficulties. That’s sad. People are so wrapped up in serial lawsuits that the real issues are falling through the cracks.
Stephen Hamer, disability advocate
“There is no defense for noncompliance,” said Stephen Hamer, a disabled advocate based in Colorado, noting that the ADA was enacted 27 years ago. “I’m sorry; stop your whining, stop your bitching, and get your place into compliance. It’s not that difficult; it’s not that expensive to make changes. I get tired of hearing that the disabled community had the audacity to assert their rights.”
The federal law is bolstered by companion legislation unique to California that makes legal challenges much more profitable here. Both are meant to make life easier for some of society’s most vulnerable people.
Defendants’ failure to remove the barriers were intentional as (they) were intuitive and obvious and defendants ... had the financial resources to remove such barriers. ... Removal of the barriers could have been achieved without much difficulty or expense.
Standard language in Aurora Cervantes’ lawsuits
Reform supporters say the theory may be noble, but in practice it hasn’t worked; disabled people still find it hard to navigate many shops and restaurants, while vulnerable owners say frequent filers can spot problems where no one else thinks there are any.
John Joseph, who controls the property of a longtime Turlock eatery, called a lawsuit against it “blackmail.” Among other allegations, the lawsuit said letters for three words on a required tow-away parking sign measured 3/4 of an inch but by law should have been an inch high.
“For these yahoos to come in and shake down small businesses barely surviving, it’s creating a lot of havoc,” Joseph said.
Malakauskas’ clients typically sue from the curb, claiming exterior violations. For example, of Hopson’s 22 lawsuits against Stanislaus businesses, only two suggest observations from inside.
It’s a huge scam. Most of the time, the plaintiff never steps foot on the damn premises.
Attorney Aldo Flores
“It’s a huge scam,” said Chino attorney Aldo Flores, representing a man sued by Malakauskas in San Bernardino County. “Most of the time, the plaintiff never steps foot on the damn premises.”
It’s hard to find a more outspoken disabled advocate than Hamer, but he acknowledges the theory that some plaintiffs troll for lawsuits from home, using Google Earth or other services providing street views of parking lots.
“To bring a suit, you should be personally affected,” said Hamer, who uses a wheelchair. “And, there has to be a likelihood that you’re going to return to that (business).”
Most of Hopson’s and Cervantes’ lawsuits employ nearly identical language, stating their “wish to patronize the business again.”
3.3 million Small businesses in California
Robert McCarthy of Arizona has used similar wording in many of his 400-plus lawsuits against businesses all over California, including several in Stanislaus and Merced counties. McCarthy previously was convicted of child pornography and stealing his dead brother’s identity to obtain food stamps and keep alimony flowing from his ex-wife; he has sued 11 California businesses this year but has not targeted the Modesto area in nearly two years.
Although he lives in Arizona, some of McCarthy’s lawsuits say he “intends to return ... in the immediate future.”
In a lawsuit against a Turlock restaurant, Malakauskas wrote that Hopson “likes to take drives to relax and unwind and get out of the house. Hopson has no doubt that she will return to the shopping center.”
Bee articles on Hopson, McCarthy and Cervantes helped prompt a number of reform bills by area lawmakers, both state and federal. Sen. Cathleen Galgiani and former Assemblywoman Kristin Olsen found limited success last year, but both were considered small steps stopping well short of meaningful reform.
It’s not about being right or wrong; it’s about the bottom line.
Rick Morin, attorney defending businesses against ADA lawsuits
“California legislators are not going to materially change this law,” said Morin, the attorney fighting ADA lawsuits. That’s because the disabled are a sympathetic group, and because trial attorneys wield extensive influence in Sacramento, he said.
Most of his clients are small mom-and-pop operations, probably targeted because “they don’t have huge legal teams sitting there waiting to defend lawsuits,” Morin said. Most also agree to settle before trial for a few thousand dollars, because that’s less expensive than a court battle, he said.
Jose Espinosa was hit with two lawsuits – from McCarthy in 2013 against the Hot Rod Diner in Turlock and in 2015 by Hopson against the Hot Rod Diner in Hilmar. The latest cost him more than $12,000, including $4,500 to construct improvements and like amounts to pay Malakauskas and Hopson and Espinosa’s own attorney.
“Everyone goes away happy except me,” Espinosa said, “and our government lets them do it. It drives me crazy.”
Garth Stapley: 209-578-2390