By Nigel Duara, CalMatters
It all started with a parking spot.
On a breezy afternoon in September 2017, Chris Langer couldn’t find one that would accommodate his van and the ramp he uses for his wheelchair behind a San Diego lobster shop.
What transpired next has been the subject of arguments before two federal courts and opened a wide door to more federal disability lawsuits in California, home to more of these lawsuits in the last litigious decade than any other state.
Four months after that fall day, Langer filed a disability access lawsuit in federal court against the lobster shop, a smoke shop in the same building and the building’s owners, Milan and Diana Kiser, claiming a violation of his rights.
Langer has filed more than 2,000 claims like those over the past decade or so. For the last two years, his case against the Kisers was headed to defeat, with a federal judge ruling against him and questioning his motivation.
But last month, Langer prevailed before a three-judge panel on the 9th U.S. Circuit Court of Appeals. Attorneys who argue federal disability cases say that victory, which itself is being appealed, could open the floodgates to more federal disability rights lawsuits after a brief slowdown last year.
If Langer wins the next round, attorneys who represent businesses sued in disability cases worry that the case would set a precedent for a broader claim of standing to sue among plaintiffs in California disabled access lawsuits.
Typically, these cases are settled — out of tens of thousands of federal disability rights lawsuits filed nationally, only a couple dozen have ever gone to trial, according to a review of federal appellate court decisions by Texas attorney Richard Hunt, who defends businesses sued for disability rights claims.
In most other states, any awards won in federal disability rights cases can only be used to pay legal fees.
California law allows for extra compensation that can benefit plaintiffs in those cases. The Unruh Civil Rights Act provides an additional award to plaintiffs themselves, which begin at a minimum of $4,000.
And that’s a major reason why California has had more than 30,000 federal disability rights lawsuits in the last decade, far outpacing the rest of the country.
Langer declined to be interviewed, according to his attorney, who said people like Langer are forcing businesses to comply with a law they should already be following.
“There’s no three-letter agency that’s going around and enforcing these laws,” said Langer’s attorney, Dennis Price. “What my clients are doing is basic code enforcement, and that’s what California law specifically encourages.”
The Americans with Disabilities Act is one of a few federal laws that operate by turning their enforcement over to the people, with occasional interventions by the U.S. Department of Justice.
Among the courts, the academics who study this issue and the lawyers who argue the cases, there are three interpretations of the actions of Langer, who has acknowledged in court proceedings that he is a “serial litigator.”
In one, serial litigants are warriors for disability access, literally opening doors for other people by identifying obstacles and suing to fix them.
In the second, they are simply pawns of avaricious law firms who have created a cottage industry out of disability rights lawsuits. According to filings in a tax case, one serial litigant in Sacramento accumulated more than $1 million in settlements in 2014 alone. The firm representing him kept more than half of the money and he kept the rest.
The third perspective, and one evidently held by the original judge deciding Langer’s case, is the least generous, handed down when Langer attempted to exclude his history as a serial litigator from trial. Several times in his April 5, 2021, opinion, U.S. District Court Judge Robert Benitez questioned Langer’s credibility.
“The court finds it doubtful that (Langer) would frequently travel to the property to purchase lobster, as he testified,” Benitez wrote. “This is bolstered by the fact (Langer) has filed previous lawsuits in which he admits he never intended to return to the premises.
“On the day he filed this lawsuit, he also filed six other lawsuits. Yet, (Langer) was unfamiliar with those suits as well as the businesses involved.”
Thousands of disability claims every year
The Americans with Disabilities Act was signed into law in 1990, but the volume of lawsuits picked up in 2013, according to Seyfarth Shaw, the law firm that tracks federal disability lawsuits. Since then, 33,100 claims were filed in federal courts in California. New York had 15,427 and Florida had 14,296 in the last decade. The next seven states barely topped 1,000 cases combined.
That initial ruling in the Langer case, coupled with high-profile moves by liberal district attorneys in San Francisco and Los Angeles against a firm known for representing serial filers appeared to chill the number of disability claims filed against California businesses last year, according to data collected by Seyfarth Shaw. Last year, 2,519 cases were filed in California.
In one of the most publicized California cases, an attorney who used a wheelchair filed 67 lawsuits against businesses in 2005 in the tiny San Diego County mountain town of Julian, home of the Apple Days Festival, alleging that he could not access them. The attorney was later disbarred, in part because he pleaded no contest to filing federal disability lawsuits on behalf of a disabled client who had no idea the cases had been filed.
But businesses in the town of Julian did indeed improve their disability access. In the words of a North County Times story from 2007: “wider doors, lower counters, repaved parking lots, more disabled parking and signs, signs, signs.”
Hon’s Wun-Tun House in San Francisco’s Chinatown neighborhood on Feb. 18, 2023.Shelby Knowles / CalMatters
The question in many of these cases comes down to the legal concept of “standing,” which asks whether the plaintiffs have actually suffered a consequence because of their disability, and whether they ever intended to return to the place where they encountered a problem. Benitez ruled that Langer did have standing, but his rights weren’t violated, in part because the parking spot in question wasn’t supposed to be publicly accessible.
On appeal — and this is the other big reason plaintiffs file so often in California — the standing claim was received much more warmly, as it has been in other disability cases filed in the 9th U.S. Circuit Court of Appeals. “The attempted use of past litigation to prevent a litigant from pursuing a valid claim in federal court warrants our most careful scrutiny,” the court, known as one of the country’s most liberal federal appeals courts, had written in a 2008 opinion cited in the Langer appellate decision.
Last month, Langer’s arguments won over two judges on a three-judge panel. They reversed the Benitez decision and found that the lobster shop’s penchant for letting customers park in the tenant space made it, effectively, a public lot.
“A business cannot offer parking to customers without disabilities while not offering that same benefit to customers with disabilities,” the two judges wrote. “That discrimination goes to the heart of the ADA.”
The Kisers have asked for a rehearing before all nine appellate court judges.
A service for disabled Californians
Serial filers are the targets of misdirected anger, said Evelyn Clark, a Washington, D.C., attorney who uses a wheelchair and authored a much-cited paper in law school on serial litigants.
“Something that’s really small for you that just looks like, oh it’s just one little step, could be a total barrier for someone like me trying to get in,” Clark said. “But nobody’s going to be 100% compliant with every tiny regulation under the ADA. So I can understand the frustration of business owners.
“But I’ve heard people in California talk about how they go out in a wheelchair and it’s almost kind of a reverse discrimination, where people just assume you’re there to sue them,” Clark said.
On the defense’s side, there’s another perception: that these lawsuits find the poorest store owners least able to defend themselves in a country where they may not speak the language or understand the legal system, with offers to settle that just so happen to be a little cheaper than mounting a defense.
Business owners on edge
Business owners with a direct interest in the Langer case are hoping the Kisers get a rehearing before the full appeals court. Late last month, they filed a friend-of-the-court brief arguing against the decision by the three-judge panel.
“Make no mistake, these ADA lawsuits are not about promoting the ideals of the ADA,” they wrote, “but rather, they are about the illegitimate transfer of wealth from historically marginalized communities and into the pockets of ADA plaintiff’s lawyers.”
It was a federal disability lawsuit that led Moji Saniefar, one of the authors of that brief, from white collar securities litigation to defending businesses from federal disability rights lawsuits. Like an action movie sequel, this time it was personal: A serial litigant sued Saniefar’s father’s restaurant.
Reza Saniefar was the owner of Zlfred’s, a well-loved Fresno cafe that closed during the coronavirus pandemic. An Iranian fleeing the revolution in 1979, Reza Saniefar operated a small, immigrant-run family business. Locals evidently miss his restaurant enough to post and share copycat recipes.
The cafe was named Zlfred’s because its former name was shared with another restaurant, called Alfred’s. When the other Alfred’s sued, Saniefar said, the previous owner simply stuck a Z where the A was. Thus, Zlfred’s.
The Saniefar family adopted the same defiant attitude when the restaurant was sued over disability access in 2014. Moji was their attorney. They won, and then went on the offensive, taking the law firm that represented the plaintiff to court, claiming they used fraud and deception to coerce small businesses into settling the cases.
The firm settled the case and shut down, but it wasn’t the only firm that represents serial litigants.
An accessibility sign at the entrance of a business in Chinatown, San Francisco on Feb. 18, 2023.Shelby Knowles / CalMatters
A much larger one, called Potter Handy, was accused by the liberal district attorneys in Los Angeles and San Francisco counties of “bombarding California’s small businesses with abusive boilerplate lawsuits,” and instructing serial litigants to pretend to have encountered barriers at a business they never visited. They further accused Potter Handy of having its client file fake disability claims that led to settlements.
“Each year Potter Handy uses ADA/Unruh lawsuits to shake down hundreds or even thousands of small businesses to pay it cash settlements, regardless of whether the businesses actually violate the ADA,” wrote Los Angeles County District Attorney George Gascon and former San Francisco City and County Attorney Chesa Boudin in an April 2022 state court filing.
They said the lawsuits not only threaten small businesses, but also “unfairly taint the reputation of other innocent disabled consumers.”
Potter Handy, which also does business as the Center for Disability Access, did not return calls seeking comment. Neither did Gascon. Boudin and Gascon wrote in their complaint that Potter Handy was particularly active in San Francisco’s Chinatown during the pandemic.
“Multiple Chinatown businesses were sued for allegedly having inaccessible outdoor dining tables during the early months of 2021,” they wrote, but “those businesses were open for takeout only during that time and had no dining tables at all—indoor or outdoor.”
Potter Handy responded in court that Boudin and Gascon were making the accusations for political reasons. San Francisco Superior Court Judge Curtis Karnow dismissed the case, and ruled that Potter Handy’s attorneys were covered by California’s “litigation privilege.”
A client who wanted to fight
In the Langer case, Moji Saniefar is representing a handful of Bay Area merchant associations, including the Chinatown Merchants United Association of San Francisco, who are panicked about the appellate court ruling in Langer’s favor.
“Serial ADA plaintiff’s lawyers recognize that the justice gap makes (small businesses) far more likely to settle cases quickly and without prolonged litigation,” according to the Feb. 16 friend-of -the-court brief.
Hunt, the Texas attorney who defends businesses in disability rights cases, said it’s unusual for his clients to take a case to court, much less all the way up to federal appeals court.
“You have to have a particularly angry, rich, stubborn client to not settle the case,” Hunt said. “I’m looking for angry, rich, stubborn clients. I would love to have some, but so far, when I tell my clients that they can get out of it by settling it for cheaper than the cost of defense, then they’re like, you know, let’s just settle it.”
The attorney for the Kisers, whom Langer is suing, said the Legislature needs to step in. He agrees that his clients may fit Hunt’s description.
“Mr Kiser’s perspective is, hey, we did nothing wrong and we don’t think we should have to pay this guy,” said Sam Henein, a San Diego lawyer. “He says if the judge tells me I did something wrong, I guess then I have to pay, but I don’t think I did.”
The solution, said Clark, the D.C. attorney, is to amend the ADA’s enforcement mechanism from its current iteration to a “notice and cure” standard, which would give businesses 60 or 90 days to fix the accessibility issue without money changing hands.