Skip to main content
Nossaman LLP


"Courts Growing Weary of Abusive ADA Lawsuits"

California Real Estate Journal

Voluminous and abusive disability access cases filed by so-called "professional plaintiffs" continue to plague property owners in California. One federal judge in Los Angeles noted that a plaintiff in a case before him - Molski v. Mandarin Touch Restaurant - had filed 400 Americans with Disabilities Act lawsuits. In a series of orders, the judge required that the plaintiff and his law firm obtain permission from the court before filing any further ADA lawsuits.

In many disability access cases plaintiffs allege relatively minor violations of the access requirements of the act and comparable California statutes. Defendants in such cases often promptly offer to make the necessary accessibility repairs. However, that is not the end of the story, as plaintiffs then demand that the property owners also pay damages and their attorney fees, which are often multiples of the cost involved in the accessibility renovations.

In a hopeful development for property owners, two recent California court decisions provide new avenues by which property-owner defendants may be able to avoid many of the costs of such lawsuits.

In Cherry v. The City College of San Francisco, Judge William Alsup held that plaintiffs who assert variances from published accessibility guidelines have the burden of proving that the alleged variances are not within building industry tolerances.

In Doren v. North State Grocer Inc., the court held that the plaintiff was not entitled to recover separate attorney fees after accepting the defendant's offer of compromise that did not admit liability.

Cherry v. The City College of San Francisco

San Francisco U.S. District Judge William Alsup was faced with an ADA lawsuit against the City College of San Francisco in which the plaintiff alleged 4,168 violations of the act. As the court said, "In many cases, the list does not tell us by how much; it could be a mere quarter of an inch, as defendants allege is often the case."

The court then analyzed the ADA Accessibility Guidelines, which are incorporated in the federal regulations issued by the Department of Justice regarding enforcement of the act. Those guidelines provide that '[a]ll dimensions are subject to conventional building industry tolerances for field conditions.'"

In other words, if the guidelines require that doorways be at least 32 inches wide, and the carpenter installing the doorframe ends up with a doorway that is 313/4 inches wide, that may be a conventional building industry tolerance and therefore in compliance with the guidelines.

If the City College showed that many of the 4,168 alleged violations involved such minor discrepancies, the court was then confronted with the question of who should have the burden of proving that the discrepancies were or were not within building industry tolerances for field conditions.

This is likely a major burden, especially if a number of minor discrepancies are at issue (as they often are, although not to the magnitude in the Cherry case), because it would require expert testimony possibly in different areas of construction.

For example, tolerances for wood construction may be different from tolerances for concrete or steel construction.

Alsop concluded that "[t]he law is sparse on the allocation of the burden of proof on these issues." Rejecting two cases where courts had placed the burden on the defendant, Alsop held that "plaintiffs should bear the burden of showing, at the threshold, that the discrepancies exceed acceptable tolerances." He reasoned that this should be so, because, unless a discrepancy exceeds the minimum standard, there is no violation of the act as the tolerances themselves are incorporated within the guidelines' minimum standards.

Alsop went on to describe exactly what plaintiffs must prove:

"[T]hey must prove the relevant ADAAG/UFAS specification, the actual dimensions on the ground, and the range of acceptable tolerances at the time of construction."

As noted, the last item will involve not only considerable expense for plaintiffs, but often may result in failure to establish a violation of the act. This requirement, if widely followed, should discourage "piling on" of alleged discrepancies in ADA lawsuits, and should provide significant defenses for property owners who have made a good-faith effort to remove accessibility barriers or construct alterations in compliance with the act.

Doren v. North State Grocery Inc.

North Shore Grocery was a more typical case in which Doren sued several grocery stores operated by North State, claiming he had been denied access within the stores because of a lack of accessible paths of travel, accessible checkout stands and accessible restrooms.

After being sued, North State removed the architectural barriers that Doren claimed were illegal. This made Doren's ADA claim for injunctive relief moot. Nevertheless, Doren pressed forward seeking damages and attorney fees under California's Unruh Act.

The ADA does not provide for damages, and the Supreme Court has ruled that parties can only obtain statutory attorney fees if they obtain some court-ordered relief, which would not occur when defendants voluntarily correct the alleged illegal conditions.

North State then made an offer to settle for $10,000, which Doren accepted. The settlement did not state that North State was liable for a violation of any law, which is fairly typical in most settlements.

Notwithstanding the settlement, Doren's attorney filed a motion seeking more than $280,000 in attorney fees under Section 52 of the California Civil Code. That section provides for attorney fees whenever a party is denied rights guaranteed under Section 51 - the Unruh Act.

The trial court granted the fee motion but the Court of Appeal reversed. The court held that, because the settlement did not state that North State was liable for any violation of the law, there was no determination that Doren had been denied rights provided by Section 51. Furthermore, the settlement agreement terminated the case, so that issue was foreclosed from further adjudication.

Obviously, plaintiffs' attorneys will be reluctant to accept settlements such as that in the North State case, but defendants may have some leverage to hold fast.

If the settlement offer is made under Section 998 of the California Code of Civil Procedure and the plaintiff fails to win a judgment in excess of the offer, the plaintiff loses the right to obtain costs - including attorney fees in this situation - from the defendant.

Because most plaintiffs have not suffered any actual injury in these disability-access cases, which is one reason why the statute provides statutory damages of $4,000, any reasonable offer in excess of the $4,000 minimum poses a real dilemma for the plaintiff - or, more properly, his or her attorney. If the plaintiff does not obtain a judgment in excess of a rejected "998 offer," he or she forfeits the right to costs and fees and does not get the benefit of the higher offer either.

The North State case provides a road map for a good defense strategy.

First, as knowledgeable ADA defense lawyers usually will advise, the property owner defendant should immediately remove accessibility barriers alleged in an ADA lawsuit. Not only does this cause part of the plaintiff's case to become moot but also it is the right thing to do.

Furthermore, in many cases the cost of the alterations is relatively small. Because this is a good defense strategy, sometimes plaintiffs' lawyers will suggest that, if the defendant alters the property, it is destroying evidence. Don't fall for this ruse.

Second, assuming the plaintiff can show some violation of accessibility standards, make an early offer under Section 998, or, if the case is in federal court, under Rule 68 of the federal rules. The offer should be reasonable and in excess of the statutory $4,000 minimum. Don't agree that the defendant has violated any law or allow the plaintiff to carve out attorney fees from the settlement.

Caveat: This strategy applies mostly in so-called "drive-by" lawsuits, where the disabled plaintiff did not actually incur any injury and either did not actually enter the premises or was there only long enough to observe some potential barriers. But keep in mind that some plaintiffs can get very creative in alleging injury.

As the court in Molski v. Mandarin Touch Restaurant found, the plaintiff had alleged more than 200 injuries in the course of one year, including as many as five in one day.

The battle over ADA lawsuits is a continuing "tug-of-war" in which every time property owners develop a new defense, the plaintiffs find creative ways to circumvent the defense.

There are some hopeful signs, however, that more and more courts are growing weary of abusive ADA lawsuits and are beginning to rein in some professional plaintiffs and their attorneys.

John T. Hansen is a partner in the law firm Nossaman Guthner Knox & Elliott LLP in San Francisco.

  • Professionals
  • Practices
  • Success Stories
  • News
  • Events
  • Resources
  • Firm Pages