At least one local business, adjacent to Caruso’s Palisades Village, was served with papers in December that claimed the business did not abide by the Americans with Disabilities Act (ADA).
Brian Whitaker, a quadriplegic, maintains that at least one local store is not in compliance. He has a long history of visiting different businesses in California and filing ADA accessibility complaints.
Pacific Palisades has now appeared on his radar.
Whitaker, who is in a wheelchair, visited a San Diego Tesla store in 2019, and subsequently filed a complaint with the U.S. District Court that he was denied public accommodations. The Court ruled that the complaint lacked sufficient facts because Whitaker did not identify which counter or counters in the dealership failed to accommodate his needs.
In January 2021, Whittaker sued Jimmy Choo, Versace and Gucci stores in U.S. District Courts (California Northern District) because the three stores offer able-bodied people tables in lounge-like settings to sit at while they shop.
According to his complaint, Whitaker said he was unable to enjoy those same privileges of the able-bodied because of the lack of tables.
In an August 2021 Disability Law story (“Two Males File ADA Lawsuits Towards California Enterprise Homeowners”), it was noted that “Since the pandemic started last year, Orlando Garcia, who has cerebral palsy and uses a wheelchair, and co-plaintiff Brian Whitaker, a quadriplegic who also uses a wheelchair, have filed thousands of disability lawsuits against California business owners.”
The story noted that in July 2021, more than 100 restaurants and shops in San Francisco were targeted. “We have received reports of frivolous lawsuits deliberately targeting small businesses in Chinatown – often owned by monolingual immigrants – that seek to undermine the ADA by blackmailing settlements rather than defending disability rights,” said San Francisco District Attorney Chesa Boudin.
In September 2021, ten Redwood businesses were sued by Whitaker for failure to provide outdoor dining surfaces with sufficient knee and toe clearance for his wheelchair.
In Climate, an online publication for Redwood City, California, the executive director of the Downtown Business Group said that about 15 businesses were sued. “Some owners are embarrassed or don’t want litigation hanging over them and have decided to settle. But most others jointly hired attorney Martin Orlick, who is representing about 60 businesses from San Francisco to Mountain View dealing with similar lawsuits.
“Orlick says the same three plaintiffs—Whitaker, Scott Johnson and Orlando Garcia—have filed multiple suits during the last three or four months. Their law firm is San Diego-based Potter Handy LLC, which specializes in ADA litigation through its Center for Disability Access.”
In February 2021, the Ninth Circuit in deciding three cases brought by Whitaker (Whitaker v. Panama Joes, Whitaker v. Body, Art, and Soul Tattoos, Los Angeles, and a case concerning an auto dealership), noted that complaints must specifically allege unlawful conditions.
The court allowed Whitaker to amend the complaints with more specific information, but he refused, noting that providing details would allow the defendant information to remediate the situation, mooting the ADA claims.
The Ninth Circuit wrote: “Defendants should be encouraged to remove barriers from their establishments. This is an important objective of the ADA.”
In the lawsuit Whitaker v. Joe’s Jeans Inc. (in Livermore), Whitaker said he couldn’t access a point-of-sale equipment at one counter (although there was another one that was lower next to it – and he received sales assistance) and that deterred him from visiting the store in the future.
United States District Judge Charles R. Breyer granted $4,000 in damages and $2,087.50 in attorney’s fees and cost.
Garcia and Whitaker are not the first to file numerous ADA lawsuits.
According to the Santa Maria Times, paraplegic Jarek Molski filed more than 400 lawsuits between 1998 and 2004, exclusively with small businesses (only one went to trial).
San Francisco attorney Tom Frankovich, who represented Molski in 232 of his cases, was estimated to have earned more than $10 million from those cases.
In 2004, a federal judge called Molski a “hit-and-run plaintiff,” and barred him from filing further lawsuits. The Ninth Circuit upheld the lower court order in 2007 and the United States Supreme Court refused to hear the case.
Time Magazine ran a 2008 story (“Lawsuits by the Disabled: Abuse of the System”) which noted that “California, along with Hawaii, Illinois and Florida, is a particular hotbed for ADA lawsuits and the law firms that bring them to court. ‘California may be the worst in the country,’ said David Warren Peters, CEO and general counsel of Lawyers Against Lawsuit Abuse, citing several factors for potential abuse, chief among them two California statutes that provide $1,000 or $4,000 in minimum damages, plus attorney fees, per each successful claimant. Many claimants multiply these damage amounts by the number of conditions they observe at a property.
“This frequently results in $50,000 or more in damage demands, says Peters. Some serial claimants will file for damages against dozens of businesses they say they have visited on the same day or for repeated visits to an establishment.
“‘Opportunists see this as a great way to make $12,000 a day or more just by eating out,’ says Peters. ‘Easy money with the help of the courts is bound to attract opportunists. . . .These lawsuits offer an unbelievable amount of money.”