Two thousand, two hundred and fifteen Americans With Disabilities Act lawsuits were filed in the Central District of California in the past year.
One thousand, eight hundred and twenty five—or 82%—were filed by one attorney.
Jason Kim of the So Cal Equal Access Group had to file an average of seven cases a weekday to meet those numbers. His pace is consistent. From Jan. 1, 2021 to Jan. 1, 2023, he filed 4,482 ADA cases.
Kim did not respond to multiple requests to participate in this story.
Protecting access
The Americans with Disabilities Act of 1990 was designed to remove barriers that excluded disabled Americans from participating in society. The text of the act found that disabled individuals had had no legal way to combat disability discrimination, and that the United States of America’s proper goals are to ensure equality of opportunity and independent living. The ADA gives disabled people the right to sue businesses that fail to have accommodations up to specified standards.
Magic Lamp Inn
Among Kim’s cases is the Magic Lamp Inn, a restaurant that had been permanently closed for months before Kim’s client claims he visited.
On Oct. 18, Kim filed a federal suit on behalf of his client Nelson Chilin, who uses a wheelchair. The suit claims that Chilin visited the Magic Lamp Inn at 8189 Foothill Blvd., Rancho Cucamonga, in June 2023. The complaint said the restaurant was open to the public, but failed to provide parking up to ADA standards.
The establishment had not posted required signage that indicated a parking spot was van accessible and designated for people with disabilities, the suit claimed. The suit also said that the required signage was posted, but was lower than the height allowed by standards. They also did not have an access aisle for a wheelchair drop-off, or a level surface slope in the access aisle, the suit went on. The suit also said the business failed to paint the van’s access aisle as required and did not mark the parking spot with the ADA symbol.
The Magic Lamp Inn had been closed for at least two months. The owners had died months earlier, according to their obituaries. A call to the company’s agent confirmed that the business was closed after their deaths. Yelp reviews starting in April complained about the restaurant being closed.
Kim voluntarily dismissed the case Oct. 12, saying that the defendants had not responded to his complaint.
The Inland region
Kim’s clients file suits against swaths of the Inland Empire at a time. Dennis Cooper, one of his clients, filed 11 ADA suits against Big Bear businesses in October: Community Market, Cocina de Mexico, Big Bear Family Clothing Store, Fuji Japanese Cuisine, Gaby’s Latin Flavors, Lumber Jack Cafe, El Pollo Loco and the liquor stores Lippy’s Country Mart, Home of the Hangover, Liquor Junction and Alla’s Sewing, owned by Alla Johnston. Each suit says Cooper visited the business in July, and that the business violated ADA parking requirements
“(Alla Johnston’s) sin is that she has a couple of potholes in her parking lot, and she’s missing an ADA placard—the parking spot is there,” said David Philipson, her Big Bear attorney.
Targeted businesses
Philipson, who also represents Fuji Japanese Cuisine, said Big Bear businesses are targeted because they are small, immigrant-owned and inherently violate the ADA’s requirement to have a flat parking lot.
“The reason they come to places like Big Bear is because it’s hilly, it’s mountainous, and the big kicker is the grades in the parking lot. Can’t be more than 2% grades. Every parking lot here has got more than a 2% grade,” Philipson said.
Being in an impoverished part of town and immigrant-owned are among the criteria for an attractive target to ADA litigators, Philipson said, because those businesses’ owners often don’t have an expectation of due process, and likely won’t have the legal funds to fight back.
Both of his clients are immigrants—Alla Johnston is a Ukrainian immigrant, and the owner of Fuji Japanese Cuisine is a Japanese immigrant.
“This is an outrage. Congress should do something about it, because it’s no different from gangbangers in the ‘70s and ‘80s stealing welfare checks from old ladies on the 1st and 3rd of the month,” Philipson said.
Cocina de Mexico settled Jan. 25, and Lumber Jack Cafe settled Nov. 28, without legal representation, according to the online case documentation.
“Big Bear Lake and Big Bear Valley are a very small community, and a lot of our businesses are mom-and-pop shops who can’t defend themselves against an ADA lawsuit,” said Ellen Clark, executive director of the Big Bear Chamber of Commerce.
“It’s very concerning. As the Chamber, we are constantly reminding our members that not only does the business (need to be mindful of their) opening, and the steps, and the handrails, but that they need to be watching their websites, and need to make sure their websites are 100% compliant,” Clark continued.
ADA fraud cases
Other attorneys bringing ADA charges have been accused of submitting forged documents.
Riverside District Attorney Michael Hestrin filed a suit in Riverside Superior Court against attorney Ross Cornell and his client Bryan Estrada, claiming they submitted forged documents to the federal court that lied about Estrada visiting the businesses he filed suit against.
Cornell filed a countersuit in federal court arguing the suit was an overreach.
Both cases were thrown out. California Central District Judge John Holcomb and Riverside Superior Judge Matthew Perantoni both ruled that they did not have the authority to review lawsuits filed in each other’s courts.
“A holding order in this case would have chilled ADA lawsuits across the country. But thankfully, people’s right to ensure businesses comply with discrimination laws remains protected,” wrote Estrada’s counsel, Meghan Blanco.
The State Bar has not posted any notice of discipline against Cornell.
In December, Los Angeles and San Francisco attorneys prosecuted attorneys associated with the firm Potter Handy under the Unfair Competition Law and attorney deceit laws. Prosecutors claimed Potter Handy’s complaints included knowingly false claims, and that their cases were attempts to solicit cash settlements from small businesses.
Their Unfair Competition Law cause of action was thrown out Dec. 8. The case has not gone to trial. No notice of discipline or investigation has been posted regarding the Potter Handy attorneys.
Hestrin had filed a similar complaint against The Association for Equal Access, run by attorney James Rutherford, in 2020. The complaint also named as defendants The Law Offices of Babak Hashemi and Manning Law. Prosecutors argued the attorneys had filed 120 fraudulent ADA lawsuits. The case attempted to bar the attorneys from filing fraudulent ADA lawsuits, and to provide restitution to businesses who had settled. That case was also thrown out due to the litigation privilege. The dismissal was affirmed in an unpublished Dec. 23, 2020 appellate ruling.
Reforms
In 2008, 2012 and 2015, the California Legislature tightened the state’s rules for filing ADA cases under the Unruh Civil Rights Act.
The 2012 reform banned demand letters, which were sent before a complaint was filed.
The 2015 bill found that 54% of all construction-related ADA complaints filed from 2012 to 2014 were brought by two law firms, and that 46% of all complaints were filed by 14 plaintiffs.
“Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the state’s Unruh Civil Rights Act,” the bill read.
To curb abuse, the state required that litigants who have filed more than 10 cases in a year must state in their complaint that they are a high-frequency litigant, the number of cases they filed in the past year, why they were in the area of the defending business and why they chose to access the defendant’s business.
The law also required high frequency litigants to pay higher filing fires, to certify that the complaint is not presented for an improper purpose such as to harass, and to report to the California Commission on Disability Access how their claims are resolved.
Outcomes
Settlements made up 90% of all ADA case resolutions in 2022, according to a 2022 report from the CCDA. Thirty-eight percent of ADA cases in both federal and state court that year brought an injunction to fix the ADA problem, and 72% of cases ended with damages or a monetary settlement, the report says.
A June 2023 report from the U.S. Chamber of Commerce Institute for Legal Reform said that the reforms have cleared many ADA claims from state court, but that litigants get around them through filing in federal court.
“The problem is that the firms can still take advantage of the current federal procedures (and avoid the state requirements) by filing paired state- and federal-law claims in federal court. Thus, to the extent the state policy is to protect local businesses from voluminous, abusive and costly litigation, that policy cannot be attained until the federal government undertakes similar reforms,” the report says.
In 2020, 3,210 California ADA cases were filed in federal court, compared to 411 in state courts, according to a 2022 report from the California Commission on Disability Access. In 2013, before the most recent reform, 627 of ADA cases were filed in federal court, compared to 2,078 in state courts, according to the CCDA’s 2013 report.
