Business Sued by ‘Serial’ ADA Filer Can’t Appeal Denial of Vexatious-Litigant Order

Metropolitan News-Enterprise


Tuesday, February 14, 2023




Business Sued by ‘Serial’ ADA Filer Can’t Appeal Denial of
Vexatious-Litigant Order


a MetNews Staff Writer


above is Lola’s Chicken Shack in the City of Alameda. The  Ninth U.S. Circuit
Court of Appeals said yesterday that Lola’s and its owners cannot appeal an
order denying a motion to declare a man who sued it a vexatious litigant
because they have no personal stake and therefore lack standing.


A business that was sued by a serial filer
of actions claiming disability discrimination has no standing to appeal an
order denying the branding of the plaintiff as a vexatious litigant, the Ninth
U.S. Circuit Court of Appeals held yesterday.

The decision of a three-judge panel—comprised
of Circuit Judges Patrick J. Bumatay and M. Margaret McKeown and Senior Circuit
Judge Jay Bybee—came in a memorandum opinion. It dismisses the appeal by Peter
and Lola Beck and their business, Lola’s Chicken Shack, from the Nov. 15, 2021
order by District Court Judge Charles R. Breyer denying their motion to
designate Orlando Garcia a vexatious litigant.

The order they sought would have required
that Garcia gain court permission before filing any more actions under the
Americans with Disabilities Act (“ADA”). They pointed out in Garcia has filed
732 ADA cases since 2014, which includes 31 against businesses in the City of
Alameda in May 2021, including Lola’s.

(The number has increased since then. An
action filed last April by the district attorneys of Los Angeles and San
Francisco says that Potter Handy, which represents Garcia and others in its
stable of litigants has filed “over 800 federal cases on behalf of Serial Filer
Orlando Garcia.” It notes that “a single one of Potter Handy’s Serial Filers.
Orlando Garcia, has settled more than 500 federal ADA/Unruh lawsuits since
December 2019.”)


Breyer, in denying the motion, said:

“Defendants do not nearly come close to
establishing that Garcia is a vexatious litigant….The Ninth Circuit has
recognized that ‘[f]or the ADA to yield its promise of equal access for the
disabled, it may indeed be necessary and desirable for committed individuals to
bring serial litigation advancing the time when public accommodations will be
compliant with the ADA.’…ADA testers can still be vexatious litigants, just
like any litigant can be. But Defendants have failed to demonstrate that
Garcia’s cases generally are—or that this case in particular is—meritless,
harassing, or improper. Indeed, Defendants here claim to have taken action to
bring their restaurant into compliance with the ADA as a direct result of the

Breyer added:

“For the same reasons the Court will not
deem Garcia a vexatious litigant, it will not sanction Garcia’s counsel ‘for
their actions of filing thirty-one complaints against Alameda County business,
including Lola’s, for harassment purposes to extort early settlement without
any intention of litigation on the merits.’…Garcia and his counsel are
permitted to bring ADA cases. It is unfortunate that Defendants ‘incurred $2000
for the vexatious motion,’…but Garcia is not responsible for that expenditure.”

Circuit’s Dismissal

The Ninth Circuit panel, in repelling the
appeal from the order denying a vexatious-litigant order, said:

“Lola’s Chicken Shack lacks Article in
standing to appeal this decision. To having standing to appeal, appellants must
have a ‘direct stake’ in the outcome of their appeal….Since an order requiring
Garcia to seek court permission for future ADA claims would not impact the
instant suit. Lola’s Chicken Shack has no “direct stake” in the outcome of the
appeal. Any injury caused by Garcia’s instant lawsuit and suffered by Lola’s
Chicken Shack has already occurred, and is not redressable by a reversal of the
vexatious litigant order. Instead, the vexatious litigant order would only
benefit third parties from Garcia’s lawsuits.”

The panel continued:

“Furthermore, even if Lola’s Chicken Shack
had argued that the pre-filing order could protect it from future suits by
Garcia, such an allegation is so speculative that it would not confer Article
III standing here….Garcia has never sued Beck before, and the record does not
reflect that Garcia makes a practice of repeatedly suing the same businesses
once ADA violations are remediated. Thus, it would be entirely speculative to
assume that Garcia may sue appellants in the future.”

of Sanctions

The judges affirmed the order denying
sanctions, saying:

“[H]ere, given that Lola’s Chicken Shack
remediated the ADA violations alleged in Garcia’s lawsuit, the district court
did not abuse its discretion in finding the lack of ‘meritless, harassing, or
improper’ conduct to warrant the award of sanctions against Garcia.”

The case is Garcia v. Beck, 22-15594.

In December the Ninth Circuit affirmed a
$36,775 award of attorney fees against Garcia for suing a business under the
ADA where he did not actually intend to patronize that business if it became
ADA compliant.


2023, Metropolitan News Company

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