15 June 2010
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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.
Other ADA defense and compliance resources
You can access the full library of ADA materials on Hotel Law Blog by going to the home page, selecting the tab at the top that says “HOTEL LAW TOPICS”, and then clicking on “ADA Defense & Compliance” in the drop down menu . . . or by clicking here.
Below is a partial listing of articles by JMBM’s ADA Defense Lawyer team:
The ADA Compliance and Defense Guide — Free Download
ADA Defense Lawyer: New ADA standards for website accessibility
Starwood Hotels and The Phoenician get an expensive (and unnecessary) lesson in ADA compliance.
DOJ sues 3 of NYC’s top Zagat-rated restaurants for ADA violations
Charles Schwab settles claim over website accessibility
A blast against frivolous, serial ADA lawsuits in striking the right balance
New ADA compliance standards for golf courses. What do they mean to you?
How to handle an ADA lawsuit . . . and How not to do it
How a recent ADA case affects all hotels but particularly conference centers and meeting hotels
Defending ADA lawsuits. How your hotel website can make you a target for ADA lawsuits
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotel, restaurant, retail and other commercial property owners defend more than 500 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. He is also is a senior member of the law firm’s Global Hospitality Group®, a partner in the real estate department, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.
Jim Butler is a founding partner of JMBM, and the founder and chairman of JMBM’s Global Hospitality Group® and Chinese Investment Group®. He is recognized as one of the top hotel lawyers in the world and has authored or co-authored The HMA & Franchise Agreement Handbook, How to Buy a Hotel Handbook, The ADA Compliance and Defense Guide, and The Lenders Handbook. Jim has led the Global Hospitality Group® in more than $87 billion of hotel transactional experience, involving more than 3,900 hotel properties located around the globe. Jim’s team has worked on more than 60 EB-5 projects over the past three years. 310.201-3526 or jbutler@jmbm.comThis is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We’ve done more than $87 billion of hotel transactions and have developed innovative solutions to unlock value from hotels. Who’s your hotel lawyer?
Our Perspective. We represent hotel owners, developers and investors. We have helped our clients find business and legal solutions for more than $125 billion of hotel transactions, involving more than 4,700 properties all over the world. For more information, please contact Jim Butler at jbutler@jmbm.com or +1 (310) 201-3526.
Jim Butler is a founding partner of JMBM, and Chairman of its Global Hospitality Group® and Chinese Investment Group®. Jim is one of the top hospitality attorneys in the world. GOOGLE “hotel lawyer” and you will see why. Jim and his team are more than “just” great hotel lawyers. They are also hospitality consultants and business advisors. They are deal makers. They can help find the right operator or capital provider. They know who to call and how to reach them.