Two Good ADA Title III Cases from the Ninth Circuit

Yesterday, the Ninth Circuit issued opinions in two cases that were brought under the ADA's public accommodations title. One, D'Lil v. Best Western Encina Lodge & Suites, involved a question of standing. The plaintiff, Hollynn D'Lil, was visiting Santa Barbara on business and tried to stay at, among other hotels, the Best Western. She found lots of barriers to access and sued under the ADA and state law. The parties entered into a consent decree, in which the hotel agreed to remove the barriers. The decree left open the question of attorneys' fees, however. When D'Lil filed a motion for attorneys' fees, the district court, sua sponte, raised the question whether D'Lil had standing to sue in the first place. The court ultimately concluded that, because she had no concrete plans to return to the specific Best Western she sued again -- and because her pattern of filing lots of ADA accessibility suits cast doubt on the credibility of her assertion taht she did plan to return -- she had no standing to bring the suit.

The Ninth Circuit, in an opinion by one of the best judges in America, Judge Reinhardt, reversed. The court explained:

D'Lil's intent to return to the Santa Barbara area is evidenced by the regularity with which she visited the city before, during, and after her stay at the Best Western Encina. By her declaration, and her testimony at the evidentiary hearing, D'Lil demonstrated that she has been visiting the Santa Barbara area since the early 1980s for both business and pleasure. From 1993 to 2000, she visited approximately 1-3 times per year in connection with her work for the state Department of Rehabilitation. In 2001, the year that D'Lil stayed at the Best Western Encina, she took three trips to Santa Barbara to visit her friends the Marshes, to vacation with her children, and to perform work for attorney Singleton. In the three years between her visit to the Best Western Encina and the filing of her declaration in the case, D'Lil returned to Santa Barbara four times to conduct business inspections and to visit the Marshes. At the evidentiary hearing, D'Lil testified to three upcoming trips that she was planning to the Santa Barbara area, including a vacation to visit the Marshes,
an evidentiary hearing for another trial, and a prospective work trip to Carpinteria.

D'Lil's desire to stay at the Best Western Encina on future trips to Santa Barbara if it were made accessible is also well supported by the evidence that she submitted at each successive stage of the litigation. In her complaint, D'Lil stated that she “would like to return and use the subject Best Western Encina on a spontaneous, but full and equal basis” but that she “is prevented from doing so by defendants' failure and refusal to provide disabled persons ... with ‘full and equal access' [to its] facilities.” In opposing defendants' motion for summary judgment, D'Lil submitted a declaration again reiterating that she “definitely plan[s] on staying at the [Best Western Encina] when it is made accessible.” In that declaration, she explained that her preference
for staying at the Best Western Encina during future trips to Santa Barbara was based on the hotel's proximity to downtown, its accessibility from the freeway, and its amenities, including lush gardening and fresh country linen quilts. At the close of her declaration, she summarized her preference for the Best Western Encina as follows: “It is a nice facility and fits with my needs with regards to taste, style, price and location.... If made accessible, I would definitely choose it again during my visits to Santa Barbara.” At the evidentiary hearing, D'Lil, consistent with her declaration, testified that she had a desire to stay at the Best Western Encina because “it's the kind of hotel that I would like to stay at. It's simple, and you park close to your room, and it has a place to eat so I don't have to get in the car and drive somewhere else to go eat. .... It meets the configuration of the kind of hotel I like to stay at. It's also less
expensive than some of the other hotels.”

And the court rejected the suggestion that D'Lil's filing of many other accessibility suits against other hotels made her allegations of intent to return incredible. Citing, among other things, a great article someone wrote, the court stated that "we must be particularly cautious about affirming credibility determinations that rely on a plaintiff's past ADA litigation." And the court concluded that her past suits did not undermine her credibility:

Here, the district court relied on D'Lil's prior ADA suits to question the sincerity of her intent to return to the Best Western Encina. The court noted that D'Lil had not returned to six hotels that she sued during a 2002 trip to Redding, California and found it implausible that a plaintiff with approximately sixty prior ADA suits sincerely “intends to return to nearly every place she sues.” The record contains no evidence of whether those places had been made accessible, such that D'Lil could have safely returned if she so wished. Moreover, whether or not D'Lil visited the hotels in Redding says little about her intent to visit the Best Western Encina, considering that D'Lil identified specific reasons-including the presence of the Marshes and expected future work in Solvang-for returning to Santa Barbara. The district court's speculation about the plausibility of D'Lil's intent to return to each place of public accommodation that she sued is further undermined by evidence of D'Lil's extensive and frequent travel throughout the state, buttressing her claim that
she would again have occasion to patronize the establishments she sued if they were made accessible.

Judge Rymer dissented.

In the other case, Jankey v. Poop Deck, the court addressed an attorneys' fees question. The plaintiff, Les Jankey, challenged various barriers to access at the defendant restaurant, the parties entered into a settlement in which the defendant agreed to remove some barriers, and Jankey moved for attorneys' fees. The district court recognized that the plaintiff was the prevailing party, but it refused to award attorneys' fees. The court explained that an award of attorneys' fees would be "unjust" because:

Here plaintiff has failed to provide prelitigation notice and has unreasonably protracted litigation by waiting nearly five months to reply to defendants' proposal remedy of the A.D.A. violation. Mr. Frankovich and his firm's abusive litigation tactics have been well documented. The purpose of the A.D.A. is to ensure accessibility to public accommodations for disabled individuals, not to enrich attorneys.

The Ninth Circuit reversed. In an opinion by Judge Graber, the court held that a district court may not refuse to award attorneys' fees in an ADA public accommodations case based on the plaintiff's failure to give presuit notice to the defendant:

Denying attorney fees altogether as “unjust” because of a lack of prelitigation notice would constitute, in essence, a sanction for failing to provide notice. But as we held in Skaff, the ADA does not require prelitigation notice. Litigants and their lawyers should not be penalized for failing to meet a purported technical requirement that does not exist. And failing to provide prelitigation notice cannot, by itself, be considered harrassing or improper because the ADA permits the conduct. Nor does it matter whether the district court considers the lack of notice in conjunction with other adverse considerations. If the other conduct is sufficient to render a fee award unjust, then the lack of prelitigation notice need not be considered; if the other conduct is not sufficient, then the lack of prelitigation notice would be, in the end, what justifies denying fees, in contravention of Skaff.

We therefore hold that a district court may not use a lack of prelitigation notice as a factor in determining whether to deny as unjust a request for attorney fees under the ADA. Here, the district court erred when it used Plaintiff's failure to provide prelitigation notice as a factor to deny him attorney fees as a prevailing plaintiff.

The court of appeals also explained that while unduly prolonging the litigation may be a basis for reducing the attorneys' fees awarded to a prevailing plaintiff, they are not a basis for denying fees altogether. And the court concluded that Jankey's lack of prelitigation notice did not prolong the litigation: "Defendant did not initiate settlement discussions until seven months after the lawsuit was filed, and there is no reason to believe Defendant would have responded any more quickly once the complaint was filed had there been notice first." But the court concluded that some of the conduct of Jankey's counsel after the filing of the litigation -- dithering on a settlement proposal by the defendant -- might have unduly prolonged the litigation. It remanded to the district court for a determination of whether the fee award should be reduced for that conduct.

All in all, two very good opinions.