15 June 2010
Hotel ADA defense lawyer alert. LA judge sanctions ADA plaintiff and his lawyer.
Finally, there is a promising new development in California for beleaguered owners of hotels, restaurants and other commercial real estate. An ADA plaintiff and his lawyer were recently sanctioned for lack of merit and failure to perform due diligence prior to filing a lawsuit.
In California, where ADA plaintiffs can recover actual, punitive and statutory damages, “serial plaintiffs” and their lawyers have filed hundreds of “cookie-cutter” lawsuits, turning ADA litigation into a profitable cottage industry.
Today, ADA lawyer Marty Orlick, a senior member of JMBM’s Global Hospitality Group®, reports some good news: a Los Angeles County Superior Court Judge granted a business owner’s request for sanctions against the plaintiff and his lawyer for failing to investigate the merits of the ADA case or the defense provided by the business owner.
Marty Orlick has helped numerous hotels and restaurant clients establish compliance with all aspects of the ADA and resolve more than 300 ADA claims.
California ADA Alert
Mass-produced ADA litigation: Plaintiff and his lawyer sanctioned
The end to sue-and-settle “drive bys”?
by Martin H. Orlick
A couple of weeks ago, a Los Angeles County Superior Court Judge granted a business owner’s motion for sanctions under California Code of Civil Procedure Section 128.7 against a plaintiff who has filed many ADA cases against Southern California businesses.
The Court ordered the plaintiff to pay the defendant, who owns a restaurant, sanctions of $28,500 to reimburse him for attorney fees and litigation costs associated with defending the ADA lawsuit. More importantly, the Court also ordered his attorney, Los Angeles based Morse Mehrban Esq., to pay $29,000 in sanctions. The Court determined that the plaintiff’s claim was meritless and entered judgment for the defense. The defendant then moved for sanctions against the plaintiff and his counsel claiming that the lawsuit should never have been brought in the first place and that the plaintiff’s attorney should have verified the merits of the case before or during the lawsuit.
The plaintiff’s attorney tried to duck the sanctions by arguing that he had the right to accept as true his client’s statements about the accessibility conditions at the restaurant. Apparently, the plaintiff’s counsel did little or nothing to independently verify the alleged accessibility violations before filing suit and did not investigate the restaurant’s defenses after the suit was filed.
The Court noted that this failure to perform pre-filing due diligence, and counsel’s failure to investigate or conduct discovery of the restaurant’s defenses warranted sanctions against both the plaintiff and his counsel.
What it all means
This ruling is important to all hotel owners and other businesses in California that are targeted by ADA plaintiffs, particularly in plaintiff “drive by” campaigns. Numerous hotels in California have been targeted in these campaigns, in which a disabled plaintiff makes a cursory stop at a number of lodging establishments in a given area, finding similar violations at each location and filing nearly identical lawsuits against each of them. This ruling demonstrates that ADA plaintiffs’ attorneys now need to carefully investigate the facts and defenses and cannot simply rely upon the accounts of their clients. If they fail to conduct proper pre-filing due diligence or conduct proper discovery, these lawyers can face sanctions when the defendant prevails.
The ruling also has significant implications to all ADA cases filed by Mr. Mehrban, as defendants in those lawsuits are likely to scrutinize the merits of the lawsuits and fight back instead of opting to settle.
Those who defend ADA lawsuits now know that the use of sanction motions (under Section 128.7) can effectively prevent or curtail frivolous ADA litigation in California. Knowledgeable ADA lawyers will advise their hotel and retail clients accordingly and use this strategy when it is appropriate and effective.
ADA defense lawyer resources
If you found this article of interest, you may want to check out some of the other articles on this topic on www.HotelLawBlog.com which can all be found under the “HOTEL LAW TOPIC” of “ADA” at the top of the home page (or by clicking here).
The following are titles and links to some of those articles:
- ADA Compliance and Defense Lawyer: Starwood Hotels and The Phoenician get an expensive (and unnecessary) lesson in ADA compliance. Who’s next?
- A blast against frivolous, serial ADA lawsuits in striking the right balance
- ADA defense lawyers: When disabled hotel guests’ needs go beyond the norm . . . what do hotel owners and managers have to do?
- Hotel Lawyers and the ADA: Is the DOJ’s ADA Compliance Survey Coming to Your City Soon? What to do when you receive the DOJ’s ADA Compliance Review questionnaire.
- Hospitality Lawyers: ADA Sweeps by U.S. Department of Justice — Coming to a theater district or Hotel near you soon? How to get ready before it’s too late.
- Hotel & Timeshare Lawyer: Does the timeshare exit strategy or repositioning your property create ADA problems?
- Timeshare lawyer advisory for timeshare developers, owners and operators. Impact of new ADA rules on your timeshare project.
- Hotel Lawyers: Americans with Disabilities Act — How recent ADA developments can affect your hotel. Are you ready for a class action ADA lawsuit because of your hotel website?
- Hospitality Lawyer with urgent ADA warning: You won’t believe what they want to do with ADA now
- Hospitality Lawyers: Defending ADA lawsuits. How your hotel website can make you a target for ADA lawsuits
- Hotel Lawyer: How hotel swimming pools may spawn ADA lawsuits and what to do about it.
- Hospitality Lawyer — Who’s crying “Woof”? What you must know about the ADA requirements for disabled guests and their service animals
- Hospitality Lawyer: ADA Update — Federal Courts Denying Plaintiffs’ Attorneys’ Fees
Martin H. Orlick
is a senior member of JMBM’s Global Hospitality Group® and a partner in the Firm’s Real Estate Department. He has helped clients defend more than 300 ADA cases for hotels, restaurants and other commercial real estate. He is also a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty at 415.984.9667 or email@example.com.
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