Vexatious ADA Litigants Back in Business in California

On Friday, the California Supreme Court gave vexatious wheelchair litigants their groove back in Munson v. Del Taco, Inc., overturning an earlier 2006 decision in Gunther v. Lin that required a showing of intent in order to qualify for the minimum $4,000-per-infraction awards. Gunther had held that California's Unruh Act, the California civil rights law, required a showing of intentional discrimination: the mere fact of disparate impact on a suspect class was not enough. However, in 1992, the Legislature amended the Civil Code to make violations of the ADA also a violation of the Unruh Act. Thus it happened that, when serial plaintiff David Gunther paid a visit to Lin's Jack-in-the-Box restaurant, he experienced the following violations of his newly incorporated civil rights: uninsulated pipes under the bathroom sink, and a mirror mistakenly left by an employee (without Lin's permission) higher than the required specifications.

As the Santa Ana Court of Appeal noted, ADA violations are hyper-technical, and practically impossible not to violate at some point or another:

Other ADAAG's [ADA Architectural Guidelines], however, do not implicate any intentional conduct at all, such as the requirement that the pipes underneath the sink in a public restroom be wrapped with insulation, or the remarkable requirement that any visual alarms be exactly 80 inches above the highest floor level within the space or exactly six inches below the ceiling, whatever is lower. For example, a customer using a wheelchair who entered a public restroom before a contractor had finished working on a remodel of it and had gotten around to wrapping insulation on the pipes under the sink would find a restroom in “violation” of the ADA even though the owner was remodeling the restroom precisely in order to ensure that wheelchair customers had equal access to its toilet facilities.

In fact, the ADA itself does not even permit private litigation. That would seem, well, stupid. And so the court charitably declined to impute such stupidity onto our own Legislature.

And it was precisely because it was so easy for businesspeople—particularly small businesspeople—to inadvertently violate the ADA that Congress limited the circumstances under which they might be sued for such a technical violation. Under the ADA, a private individual suing a businessperson has no right to damages absent intentional discrimination. . . .

By contrast with the federal ADA, California's section 52 allows private parties to seek damages, and in fact even provides for an automatic minimum penalty—now up to $4,000—when the statute is triggered.

. . . .

To interpret what is now subdivision (f) of section 51 to provide for automatic penalties for even the most technical violations of the ADAAG's would contravene the rule that no statute should be interpreted so that it becomes redundant, in this case the statute made redundant being section 54.3. . . .

. . . .

Private enforcers of the ADA are presented with a choice between the strict liability regime of section 54.3 or the regime requiring intentional discrimination of section 52. The alternative interpretation, as a number of federal courts have already indicated (e.g., Doran v. Del Taco, Inc. (C.D.Cal. 2006) 2006 WL 2037942), has led to unconscionable abuses.

Indeed, in Gunther, there was no intentional discrimination. Gunther even conceded as much.

There is also no question that defendant Lin never intended to violate the ADA. In his answer to Gunther's complaint Lin claimed that Gunther had entered the restroom “before our handyman had finished his work” of wrapping insulation around the pipe under the sink. Moreover, normally the restroom never has mirrors for anybody (because the mirror was subject to vandalism); an employee simply hung one by mistake.

The Supreme Court noted that Gunther's reading of the statute was a reasonable one.

As a purely linguistic matter, therefore, another reasonable interpretation of section 51, subdivision (f) is that it makes all violations of the ADA violations of section 51 but, together with section 52, authorizes a private action for damages under the Unruh Civil Rights Act only for ADA violations involving intentional discrimination. This is the reading embraced by the Gunther court

But Gunther's reading was not the one most likely to jibe with the Legislature's likely intent. Instead, the Court delved deep into the legislative history and tracked the various changes over the past decades to glean the Legislature's intent in incorporating the ADA into California's civil rights regime. The Court concluded that, while there were several reasons suggesting that the Legislature intended plaintiffs to base their claims on Civil Code section 54.3, which would require a showing of intent, the better supported conclusion was that the Legislature purposely overlapped the statutes--even though this meant that no litigant in his right mind would go forward with a claim that required a showing of intent when he could choose to plead one that didn't.

On the other hand, the Legislature recently enacted new legislation to curb potential abuses.

Most pertinent here, the new legislation (applicable to claims filed on or after January 1, 2009 (§ 55.57)) restricts the availability of statutory damages under sections 52 and 54.3, permitting their recovery only if an accessibility violation actually denied the plaintiff full and equal access, that is, only if ―the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion‖ (§ 55.56, subd. (b)). It also limits statutory damages to one assessment per occasion of access denial, rather than being based on the number of accessibility standards violated. (Id., subd. (e).)

Munson at 21.

But what exactly does the new Civil Code section 55.57 require to turn away those would-be vexatious litigants?

(a) Statutory damages under either subdivision (a) of Section 52 or subdivision (a) of Section 54.3 may be recovered in a construction-related accessibility claim against a place of public accommodation only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion.
(b) A plaintiff is denied full and equal access only if the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion.
(c) A violation personally encountered by a plaintiff may be sufficient to cause a denial of full and equal access if the plaintiff experienced difficulty, discomfort, or embarrassment because of the violation.

Ah, yes. That will send those serial plaintiffs packing. I'm sure they will be quite at a loss wondering how in the world they might try to convince a jury that a poor chap in a wheelchair sustained sustained "difficulty, discomfort, or embarrassment." Handy work indeed.

As Oliver Wendel Holmes said, "if my fellow citizens want to go to Hell I will help them. It is my job." It is now a job that our California Supreme Court seems perfectly comfortable performing, if this case is an indication.

All this raises the more interesting question that I will try to tackle in a subsequent post, which is, how does a court, such as the Munson Court here, muster up the motivation to overturn a perfectly well-reasoned decision, like the Gunther one, in order to open up floodgates of vexatious litigation? It does seem like this is one of the "5%" of really tough cases that is susceptible to more than one outcome. (Gunther's attorney, a colorful fellow, was less equivocal, calling Gunther "a results-driven, ass-backwards judicial activist decision from the start.")

At any rate, if it takes some sort of "activism" to get to the outcome from where legal analysis ends, what sort might be appropriate, or at least, more appropriate than others?