Tuesday, July 25, 2006

C.D. Cal. on Another Serial ADA Case

New on Westlaw: On July 5, Judge Carney of the Central District of California issued his opinion in Doran v. Del Taco, Inc., 2006 WL 2037942 (C.D. Cal., July 5, 2006). Jerry Doran, a frequent ADA litigant (who has sued other Del Taco restaurants before) claimed that a Del Taco restaurant in Mission Viejo, California, was inaccessible in violation of the statute's public accommodations provisions. After a discussion of the "abuse of the ADA," Judge Carney dismissed the case for lack of standing, because it was not clear that Doran had ever visited this Del Taco before he filed his suit:

The record before the Court is clear: Mr. Doran was, and is, confused about what restaurants he has visited and when those alleged visits occurred. His testimony in this case has changed dramatically over time. He has conceded on more than one occasion that he confused Del Taco restaurant # 415 with another Del Taco restaurant, or with a Taco Bell restaurant, or with some other fast food restaurant. There simply are too many inconsistencies and inaccuracies for the Court to conclude that Mr. Doran visited Del Taco restaurant # 415, which is located over 500 miles from his residence, before he filed his complaint.

I don't have any criticism for Judge Carney's decision given the record he discussed. But I do think it's interesting that the suit did seem to prompt Del Taco to make its restaurant accessible:

Although Mr. Doran did not respond to Del Taco's offer of judgment and its offer to promptly remove any architectural barriers, Del Taco still set out to remove all of the barriers identified by Mr. Doran by way of his expert Reed Settle. Stanley Albright, Del Taco's Director of Construction and Facilities, testified that Del Taco removed every barrier listed in Mr. Settle's June and September 2005 reports. Specifically, Del Taco added tow away contact information in the parking lot; installed ISA signage; installed additional disability van signage; reduced the angle of the slope on the accessible stall; relocated the paper towel dispenser; installed motion control flush valves on the toilets; wrapped the P-trap in the restroom; relocated the toilet paper dispenser, removed and relocated the toilet seat cover dispenser, replaced the sidewalk ramp so the cross slope does not exceed 2%; changed the surface slope of the sidewalk so the slope does not exceed 5%; and installed ISA signage on the sides of the leading edges of the tables in the dining room. (Rep. Tr., Albright Testimony, 28-50.) Mr. Albright testified that all of the barriers listed in Mr. Settle's June and September 2005 reports were removed and that the restaurant was in full compliance with the ADA. (Rep. Tr., Albright Testimony, 40:20-24; 50:5-15.) In addition, Del Taco posted a sign at the restaurant encouraging persons with disabilities to ask for assistance from a Del Taco employee if needed. (Tr. Exh. 106.)
There's no excuse for someone to testify, as a basis for standing, that he went somewhere he didn't actually go (or somewhere he's not sure he went). But the fact that it took an abusive litigant to identify what seem like real barriers to access suggests the incredible degree of underenforcement of the law.


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