California Supreme Court Responds (Indirectly) to Businesses Complaining About Serial Disability Discrimination Litigation

And they say: Take it to the legislature!

On Thursday, the California Supreme Court issued an opinion in Angelucci v. Century Supper Club. Here's how the court described the issue and its holding:

We granted review in the present case to determine whether, in order to state a claim under Civil Code section 52, subdivision (a), the relevant remedial provision of the Unruh Civil Rights Act (Civ. Code, § 51 et seq; also hereinafter sometimes referred to as the Act), plaintiffs must demonstrate that they affirmatively requested nondiscriminatory treatment and were refused.

As we shall explain, we conclude that the text of the Act does not support defendant’s and the Court of Appeal’s assertion that, in order to recover under the Act, plaintiffs who are discriminated against when they present themselves at a business establishment and pay the price of admission also must demand equal treatment and be refused. Nor do we believe it would be consistent with the policy of the Act, or with our case law, to read such a requirement into the language of the Act. Accordingly, the judgment rendered by the Court of Appeal is reversed.

"Great decision," I hear you saying, "but what does this have to do with disability law?" Well, flip to Part III of the court's decision, and you read:

The trial court’s and the Court of Appeal’s interpretation of section 52(a) reflects in part defendant’s assertion that Angelucci and the other men involved in the present case are professional plaintiffs who “shake down” business entities on the basis of assertedly technical violations of civil rights laws and similar enactments, and that they and their attorneys engage in this practice simply to make a living — unmotivated by any desire to eliminate discrimination or to redress any actual injury. Defendant claims that plaintiffs made repeated unannounced visits to defendant’s business establishment in order to increase the statutory damages they could seek for multiple violations of the Act, and defendant accuses plaintiffs and their attorneys of being “bounty hunters” who have been involved in numerous similar lawsuits. Defendant also contends that meritless, abusive litigation of this type is proliferating in California and generally results in the extortion of a settlement on the basis of the plaintiff’s unsupported factual allegations.

[Here, the court dropped a footnote that referred to the ADA serial litigation issue: "Some writers have argued that compliance with the ADA remains elusive, justifying the continued use of the private right of action in spite of occasional abuse. (See Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation (2006) 54 UCLA L.Rev. 1, 15, 21 [“whether a class of litigation unduly burdens the courts necessarily depends on a normative assessment of the importance of that class”].) Other commentators chronicle instances in which a single plaintiff or law firm filed hundreds of ADA claims, some alleging assertedly technical or de minimis variations from applicable accessibility standards, and the authors consider whether such asserted litigation abuse warrants restriction of remedies under the ADA. (See Becker, Private Enforcement of the Americans with Disabilities Act via Serial Litigation: Abusive or Commendable? (2006) 17 Hastings Women’s L.J. 93, 97-99, 113 [describing assertedly abusive ADA litigation in Pennsylvania, Florida, and California and suggesting adoption of “safe harbor” provision in the ADA to protect businesses that undertake good faith efforts to make premises accessible]; McCabe, California Disability Anti-Discrimination Law: Lighthouse in the Storm, or Hunt for Buried Treasure? (2005) 36 McGeorge L.Rev. 661, 679-681, 686-689 [noting the problem and describing the debate]; see also Milani, Go Ahead, Make My 90 Days: Should Plaintiffs Be Required to Provide Notice to Defendants Before Filing Suit under Title III of the Americans with Disabilities Act? (2001) 2001 Wisc. L.Rev. 107, 185 [arguing that title III of the ADA already incorporates a notice provision from another statute].)"]

Although we share to some degree the concerns voiced by the trial court and the appellate court below and by defendant and its amici curiae regarding the potential for abusive litigation being brought under the Act, these concerns do not supply a justification for our inserting additional elements of proof into the cause of action defined by the statute. It is for the Legislature (or the People through the initiative process) to determine whether to alter the statutory elements of proof to afford business establishments protection against abusive private legal actions and settlement tactics. It is for the Legislature, too, to consider whether limitations on the current statutory private cause of action might unduly weaken enforcement of the Act or place unwarranted barriers in the way of those persons who suffer discrimination and whose interests were intended to be served by the Act.