Disability lawsuits frustrate county businesses

Mary and Wayne Gose, owners of The Pawn Shop in Atwater, talk in their store Aug. 15, 2014. They were hit with an ADA lawsuit for not having proper handicapped-accessible signage in their parking lot.
Mary and Wayne Gose, owners of The Pawn Shop in Atwater, talk in their store Aug. 15, 2014. They were hit with an ADA lawsuit for not having proper handicapped-accessible signage in their parking lot. cwinterfeldt@mercedsunstar.com

It was a day like any other when Aurora Cervantes paid a visit to a popular Atwater eatery.

Before she could finish her meal, Cervantes complained about finding a “foreign object” in her broccoli soup, according to a statement obtained by the Merced Sun-Star.

“She said she found a little wire ring in her food,” said Matthew Jerkovich, the 68-year-old owner of the Brook’s Ranch restaurant. “I apologized and bought her dinner.”

Jerkovich thought that was the last he’d hear from Cervantes. But not long after her visit Feb. 15, 2012, Jerkovich received a letter from an attorney demanding more than $5,000 for “bleeding, swelling and bruising” to Cervantes’ tongue and mouth, as well as chest pain and anxiety.

Documents show the restaurant’s insurance company paid Cervantes $1,000 to settle the claim.

Less than six months later, Cervantes filed a lawsuit alleging violations of the Americans with Disabilities Act of 1990.

What Jerkovich didn’t know was that his restaurant is one of 21 local businesses Cervantes has sued: seven in Turlock, 10 in her hometown of Atwater and four in Merced.

Among her Turlock targets was Bilson’s Sport Shop. Owner Brad Bilson said Cervantes took issue with what she saw in his parking lot and apparently never came in the store.

“It’s really frustrating,” said Bilson, who takes prides in his staff’s “old-school” catering to the elderly and disabled. “We help anybody who needs it, then all of a sudden we get this lawsuit for thousands and thousands of dollars, we’re treated like criminals and there’s no way out.”

His wasn’t the only sporting goods store slapped with a lawsuit from Cervantes, who also went after Big 5 in Turlock. Additionally, she has sued the Boot Barn, Cost Less, the Geer Road Jack in the Box, Turlock Chinese and Wendy’s Hamburgers next door on Geer, and the strip mall that formerly housed OxRods Motorsports.

“These are characterized as drive-by lawsuits, where the person is intent upon claiming an ADA violation,” said Modesto attorney Philip Avila, who defended Turlock Chinese and Wendy’s.

Cervantes, who claims to suffer from lupus and depression, said she was denied access to Brook’s Ranch on Feb. 15, 2012, because of a lack of signage for handicapped-accessible parking spots and no pavement markings or “tow away” warning signs above the handicapped-accessible parking spots, according to the lawsuit filed Jan. 17, 2013.

Jerkovich has been in business since 1983, employing more than 20 people, and said he’s never gotten complaints from dozens of elderly and disabled people who visit his restaurant.

Russell Humphrey, the Lodi attorney who represented Cervantes in both complaints, said he doesn’t recall the details of the case. Humphrey said he hasn’t heard from Cervantes in more than a year.

“It is a very old case and I’m sure the file is in storage, so I’m not sure how much help I would be,” Humphrey said in an email. “It’s been a really long time and I don't have much recollection of the case.”

Jerkovich said he put up handicapped-accessible parking signs within four hours, but the fight wasn’t over. The business had to hire an attorney to settle the lawsuit; the entire process cost the restaurant $15,000, with Cervantes’ settlement estimated at $5,500.

New place, similar claim

Six of the seven cases investigated by the Sun-Star were filed by Cervantes’ Stockton-based attorney, Daniel Malakauskas. He’s the same lawyer behind an ADA lawsuit that shut down Ripon’s Barnwood Restaurant in June.

The restaurant’s owners said they couldn’t afford to fight allegations of improper parking, ramp, handrail and restroom access brought by a woman who they said took photographs outside without trying to enter. Malakauskas told The Modesto Bee that he had brought 46 recent ADA cases on behalf of clients.

Malakauskas did not respond to requests for comment for this article. He previously told The Bee he believes the disabled have a right to equal access that people should not take lightly.

Less than a mile down the road from Brook’s Ranch is Little Caesars Pizza on Bellevue Road.

Similar to the Brook’s Ranch lawsuit, Cervantes claims she encountered a number of “violations and barriers to entry and access.” Handicapped-accessible parking spaces were not identified and there were no signs stating the fines for parking in a handicapped-accessible spot, according to the lawsuit.

The lawsuit against Little Caesars also claims the service counter was too tall and the path from the parking lot to the restaurant exceeded a 5 percent slope, requiring a ramp with handrails.

Owner Kristy Hellam closed the restaurant for nearly a week to make the upgrades. “My sidewalk, which was fine for 40 years, all of a sudden wasn’t fine, and I didn’t know,” Hellam said, estimating she spent nearly $20,000 on attorney’s fees, construction costs and the settlement. “I didn’t realize the regulations changed and there was no grandfathering.”

Hellam said the ADA regulations are not the issue; it’s the people and their attorneys who take advantage of the laws and target small businesses.

She said Cervantes did not identify herself or complain to anyone during her visit Nov. 7, 2013. If she knew there was a problem, Hellam said, she would have immediately fixed it.

“I want everyone to access my business, but I got absolutely nothing other than a lawsuit,” she said.

Motivated by money?

Cervantes’ lawsuits say she was a “once active and energetic” 55-year-old who now is often confined to her bed because of severe back and leg pain. She was sitting in the front yard of her Atwater home on Wednesday.

Cervantes, clutching a cane, declined to answer questions about the lawsuits and referred the Sun-Star to her attorney. But she declined to give her attorney’s name or phone number.

“As you can see, I’m on a cane and use a walker,” Cervantes said, adding that her legs “give out” and she falls. “These are very confidential cases. There’s a lot more to it than meets the eye.”

When asked to elaborate, Cervantes said Brook’s Ranch served her “tainted soup.”

“Did Brook’s Ranch tell you I almost choked on the soup?” she asked. “I have too many (medical) procedures coming up. You can talk to my attorney.”

Cervantes said she was employed as a production worker before being diagnosed with lupus in 1996. She refused to discuss the amount of money awarded to her from the numerous lawsuits. “If I had money, you think I’d be living here?”

Legal experts say the settlements demanded in many ADA lawsuits are modest, usually $5,000 or less, so that small businesses just pay it. Most mom and pop shops can’t afford to fight the cases in court.

“They may only make $5,000 on each case, but they have hundreds of cases,” said Deborah Barron, a Sacramento-based attorney who’s worked on ADA defense cases since 2005. “A lot of the business owners think they can settle the claim if they fix the violations. But these litigants don’t care about the violations, they just care about the money, and then they move on to the next one.”

The Pawn Shop in Atwater also was sued by Cervantes. The lawsuit alleges the same handicapped-access violations as the previous lawsuits. Owner Wayne Gose told the Sun-Star he was remodeling the lot to make the necessary changes, but he didn’t get to finish the project before he was sued by Cervantes.

“I think ... she’s out to make money for her and her lawyer,” Gose said.

He paid about $10,000 in attorney fees, the settlement and upgrades to the parking lot of his Broadway Avenue business.

His wife and business partner, Mary, described what Cervantes is doing in two words: “legal extortion.”

“Basically, that’s what it is, because what she’s doing is legal,” Mary Gose said. “It’s hard to believe she couldn’t find parking. There just wasn’t a (disabled) sign.”

Brook’s Ranch owner Jerkovich said he may never look at his business in the same way.

“You live in fear. You never know who’s going to sue you,” he said. “How can you run a business like that? Every person that comes through the door, I’m thinking, are they going to sue me?”