Good C.D. Cal. Vexatious Litigant Opinion

In Wilson v. Pier I Imports (US), Inc., 2006 WL 213823 (E.D.Cal., Jan. 27, 2006), Judge Lawrence Karlton rejected a defendant's motion to have an ADA public accommodations plaintiff declared a vexatious litigant. The case was brought by an individual with severe degenerative joint disease, who had previously brought 85 other cases challenging the lack of accessibility of different businesses; his lawyer had previously brought over a thousand such cases. Judge Karlton properly concluded that these large numbers did not make the plaintiff's or the attorney's conduct vexatious. Here's the crucial analysis:

In the case at bar, Wilson has tendered sufficient evidence which convinces the court that he has visited defendants' premises with his wife, and purchased various items. He avers that each of his visits to the store entailed a struggle to overcome accessible elements with the entrance door (hardware, threshold, pressure, sweep periods), curb ramp, parking, and signage. Wilson Dec. at 11; Dep. at 131:9-13; Pl.'s SUF 10. Plaintiff has testified that he was injured in attempting to enter the door of defendants' premises. Wilson Dec. at 12; Dep. at 144:19-145:19; Pl.'s SUF 11. In the absence of a showing of duplicity, this should put an end to defendants' contention. It is, however, not the end of the story.

Relative to the other suits, plaintiff has filed a declaration which details 43 different suits which he initiated. He is able to provide the dates on which he visited the various premises, the barriers he faced, as well as his interactions with the various defendants he undertook in order to assist them in complying with the ADA. Wilson Dec. at 4-26. Plaintiff explains that in every suit filed by him, he writes a letter or contacts the facility by phone to inform them of non-compliance. Id. at 2. Plaintiff attaches correspondences with numerous defendants where the parties discuss architectural barriers which he faced and which demonstrate failure to comply with the ADA (see, e.g., Ex. F to Wilson Dec., letter from defendant to plaintiff responding to plaintiff's concerns about "level landing of Case C ramps"). In cases where entities removed architectural barriers, plaintiff claims he did not file suit. Id. at 3.

From all that appears, the number of lawsuits plaintiff has filed does not reflect that he is a vexatious litigant; rather, it appears to reflect the failure of the defendants to comply with the law. Accordingly, the court cannot find that plaintiff has filed frivolous ADA lawsuits.

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Defendants argue that Hubbard's conduct is "egregious and vexatious," in part because he files "boilerplate violations of the ADA and state law." Mot. at 6. Indeed, it appears that earlier instance of Hubbard's complaints are virtually identical. It is unclear to this court, however, why uniform instances of misconduct do not justify uniform pleadings. In any event, perhaps spurred on by challenges such as the instant one, and judges unsympathetic to his claims, it appears that counsel has recently begun to attach pictures and other documents which seek to particularize the pleadings and more clearly define the barriers which are the subject of the suit.

Hubbard concedes that 99.8% of his suits settle before going to trial. Defendants argue that this indicates that Hubbard has filed lawsuits without good faith in prosecuting them. Although Judge Rafeedie concluded that a high settlement rate is evidence of a lack of belief in the merits, I cannot agree. A settlement rate no more indicates a plaintiff's lack of confidence than it does a defendant's. A high settlement rate is a fact of modern litigation. Moreover, plaintiff's counsels avers that he has taken four ADA cases to trial in the last two years, and that he prevailed in two of those actions. Opp'n at 12.

Based on the evidence presented, defendants have not shown that Hubbard is a vexatious litigant. Indeed, they have left the court with the distinct fear that the motion is frivolous. Rather than pursuing that issue, thus permitting the tail to wag the dog, however, the court will proceed to the other motions pending in the case.

This seems to me exactly right. If plaintiffs or their counsel have violated ethical rules, they should be punished in due course. But there's nothing unethical about filing lots of suits when lots of people have violated your legal rights. And the sad fact is that noncompliance with the ADA is widespread. Judge Karlton is to be commended for not letting questions about the number of suits the plaintiff has filed get in the way of the real issue -- whether the defendants are violating the law.