No matter which side they’re on, the people involved in disability access lawsuits seem to have one thing in common: supreme frustration.
The disabled are tired of feeling like second-class citizens when they meet obstacles parking, shopping or using a restroom because of a building’s features.
Companies slapped with lawsuits – almost always generated by frequent filers demanding big money – say they’ve been shaken down.
Lawyers complain when newspapers explain their strategies. They also blame legislators for not fixing the problem.
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And legislators point fingers at one another for making reform nearly impossible.
The result: 24 years after the Americans with Disabilities Act became federal law, millions of dollars have changed hands in lawsuits – likely raising prices to other consumers – yet millions of small businesses still haven’t complied. They remain vulnerable to the so-called drive-by lawsuits that, once mostly confined to Southern California and the Bay Area, are starting to appear in the Northern San Joaquin County.
“It’s moving in. It’s coming your way,” said Julie Griffiths of California Citizens Against Lawsuit Abuse. She has visited more than 1,000 hotels, shops and restaurants, many in the Valley, to document predatory lawsuits against blindsided business owners.
When Ripon’s Barnwood Restaurant, a longtime familiar sight on Highway 99, closed in June rather than fight in court, a quick check suggested that nearby Stanislaus County might have eluded serial litigants. Since then, The Modesto Bee has determined that 52 such lawsuits have been filed in recent times against companies in Stanislaus and Merced counties, in federal court and county courthouses.
Of those, 20 confront Stanislaus businesses, while Merced County, with about half the population, has been hit with 32 lawsuits.
All were brought by serial litigants working separately with different lawyers. They include Robert McCarthy, a convicted thief and pedophile from Arizona who in 13 years has filed at least 254 lawsuits in California, which is the nation’s Mother Lode for cashing in on ADA violations. He sued 13 Stanislaus and four Merced businesses and was profiled in last week’s Bee.
Aurora Cervantes of Atwater is the only known homegrown mass producer of disability lawsuits. She sued seven Turlock companies and 14 in Merced County.
Southern California residents Cecil Shaw and Juan Moreno, traveling independently, have dined and shopped at 14 additional businesses in Los Banos, Merced and Atwater, and sued them all. One visited a Merced Shell station in February and slapped it with a lawsuit; less than seven weeks later, the other sued another Shell station owned by the same man, also in Merced.
A Bee review found that Riverside County resident Shaw has filed at least 134 lawsuits in less than four years, and Los Angeles County resident Moreno at least 16 this year. A court file says Moreno is behind 375 lawsuits.
They are among at least a couple of dozen disabled people who have sued an estimated 35,000 shops and restaurants up and down the state, according to California Justice Alliance.
“Something needs to be done,” said Tom Scott, executive director of California Citizens Against Lawsuit Abuse. “We have 3.6 million small businesses out there (in California) trying to comply with a variety of laws, and there are bad actors taking advantage with bad intent. This shakedown of small businesses is not stopping because people are seeing it as a way to make quick money.”
Some people have sued after finding a mirror or soap dispenser an eighth of an inch above the required height for use by someone in a wheelchair, said Catherine Corfee, a Carmichael attorney. Local lawsuits complained of faded paint in disabled parking spots and square handrails instead of round. Cervantes’ lawyer did not change the gender of his clients in some lawsuits that have nearly identical language; in one, he apparently forgot to insert Cervantes’ name to replace that of his client in the Barnwood case.
Many of the local cases quickly settled, with dismayed businesses paying a few thousand dollars each, plus a few thousand in upgrades to fix whatever was wrong. Kim Stone, president of the Civil Justice Association of California, said a typical settlement demand is $5,000 to $10,000.
“It’s legalized extortion,” said Stone, whose group is the largest lobbying organization in Sacramento pushing ADA reform. Her staff of lobbyists is outnumbered 8-to-1 by those representing trial lawyers, whose political contributions are nine times greater, Stone said.
Almost all deals are cloaked in confidentiality, insisted on by plaintiff’s lawyers “because of the outrage that would occur if your readers found out how much money it takes to pay off these people,” said Rick Morin, a Sacramento attorney defending many businesses hit with ADA lawsuits.
Fighting for rights of disabled
Those behind the lawsuits say they’re standing up for the rights of disabled people everywhere.
Atwater’s Cervantes “now fights for all disabled,” reads one of her lawsuits.
Some McCarthy lawsuits say, “There is a national public interest in requiring accessibility in places of public accommodation,” and not removing barriers hurts “a substantial segment of the disability community.”
Businesses were put on notice in 1990 that they must make life easier for the blind and the wheelchair-reliant. Daniel Malakauskas, a Stockton attorney who, by his count, has filed about 55 ADA lawsuits for disabled clients in the past year, asks: Who needs 24 years to put things in order?
“Nevertheless, business owners have remained apathetic to the rights of the disabled. Enough is enough,” said Malakauskas, who represents Cervantes and the Barnwood plaintiff, in an email.
Honey may attract more flies than vinegar, Malakauskas continued, but “the only thing that motivates (some businesses) is the fly swatter.”
Barbara Brown of Modesto questions why many businesses make it hard for her to maneuver her wheelchair. “But lawsuits are not always the answer,” she said.
Steve Castellanos, executive director of the California Commission on Disability Access, said he understands frustration on all sides. “This separation of interests that seems to result (from lawsuits) causes a lack of ability to focus on solutions,” he said.
Suing attorneys say they’re only fulfilling the destiny laid out for them by lawmakers.
When President George H.W. Bush signed the Americans with Disabilities Act in 1990, he acknowledged having a premonition of unintended consequences. Congressional leaders made it clear that they didn’t want taxpayer money regulating the law. A few years later, judges agreed that enforcement could be handled through private lawsuits. Some California judges have said serial plaintiffs represent the best hope of widespread change in favor of access for the disabled.
“Now it is 2014 and the business community has not complied with the ADA,” said San Diego attorney David C. Wakefield, whose office has represented McCarthy for 13 years, in an email. In the first three years, Wakefield and his partner – who since was disbarred for misappropriating money in other ADA cases – filed 57 lawsuits in the name of McCarthy’s dead brother, The Bee found. McCarthy hid his income from lawsuit settlements so he could get higher welfare checks and more alimony from his ex-wife, Arizona authorities said.
“What (businesses) want to do is to stop the lawsuits and to gut the laws protecting people with disabilities,” Wakefield said. If that happens, he predicts, “the result will be no enforcement of the laws. ... The evidence shows that (businesses) want to water down the laws so that people with disabilities will have their rights only in name but not in reality.”
Attorney Morin said, “If it wasn’t for the money, I’d have to agree that it’s a noble cause. We all want businesses to be accessible to the disabled. But when you’re filing serial lawsuits, this is about making money.”
$4,000 per violation
California has about 12 percent of the nation’s disabled but attracts 40 percent of ADA lawsuits. That’s mostly because California has a companion law known as the Unruh Civil Rights Act, which is unique in setting damages in discrimination claims – $4,000 per violation.
A trained eye often spots several violations at a single business. Most common are problems with signs, parking, doors and restrooms. If a plaintiff finds four violations, it’s possible to get $16,000 at trial from a shop owner, who also could be ordered to pay attorneys’ fees for both sides. And he or she still must correct physical barriers; one Modesto business has forked out nearly $60,000 since McCarthy sued late last year.
The result: “Everyone settles,” said Corfee, whose practice is almost entirely dedicated to defending ADA challenges. “It’s ransom. Why spend $80,000 on a trial when you can get out for $15,000?
“I can’t stand the injustice,” Corfee continued. “These guys say, ‘You’ve violated the code! Boom, I get my money,’ without proving they want to enjoy the business.”
Though he lives in Arizona, McCarthy’s California lawsuits say he “intends to return ... in the immediate future” to patronize the businesses he’s sued. The men suing Merced County businesses, Shaw and Moreno, both live in Southern California.
When McCarthy sued downtown Modesto’s DoubleTree Hotel and Country Ford Trucks in Ceres, both hired the same defense firm. Attorneys contended that McCarthy “was not a bona fide consumer of the subject facility. If (he) visited the facility, he did so for the sole and primary purpose of instituting the (lawsuit).”
“I view them as shills,” Scott said of serial plaintiffs. “They’re sophisticated about it. They use Google Maps so they don’t have to waste time. They can zero in on a business with a satellite photo to see if they’ve got handicapped access.”
Wakefield said his office requires that clients prove that they encountered barriers before suing. McCarthy submitted receipts in most of his court files.
Lawsuits not the remedy
Despite Scott’s disdain, he does not condone business owners stubbornly refusing to correct property problems.
“When people come to me and say someone is a vexatious litigant and this is frivolous, to be honest with you, it’s not,” Scott said. “He’s basing his lawsuit on the fact that you’re in violation of the law, and 10 out of 10 times, he’s right.”
A Turlock business sued by McCarthy had posted a handicapped-accessible parking sign – facing the business, not the parking lot, the lawsuit said. Others offered no disabled parking. A Los Banos hotel refused to refund his money when McCarthy found numerous ADA violations preventing him from using its swimming pool and the shower in his room, he claimed.
Still, most critics of serial litigation say the private enforcement experiment has been a spectacular failure.
“If earthquake codes were enforceable by the private sector, instead of suing building inspectors, we would wait until after an earthquake, then sue the engineers and the builders,” Stone said. “It was an unwise public policy measure, and here we are 25 years later and everywhere you go there are noncompliant businesses.”
Scott agreed. “When you’re dealing with complicated public policy, having trial lawyers as the enforcement mechanism is just not the way to deal with it.”