Serial ADA Lawsuit Filer Impacts Several Local Businesses

(Diane Earnes, Photographer)
ADA lawsuits have struck Lamorinda businesses, including Orinda’s Genuine Goodness, resulting in temporary and permanent closures in the community.

    Multiple Americans with Disabilities Act lawsuits have hit small Lamorinda businesses this year, causing Orinda’s Genuine Goodness to postpone kitchen upgrades and the Moraga Garden Center Nursery to close early.
   Meryl Pomponio, who filed 55 similar cases in the California Northern District Court this year, filed these local ADA lawsuits. These types of suits are not new and have only increased in recent years. 
   ADA lawsuits, citing Title III, have increased by 254% since 2015, and now make up 53% of all ADA lawsuits in America, according to Seyfarth Shaw LLP.
   Diane Earnes, co-owner of restaurant Genuine Goodness, was served the summons and complaint earlier this year, citing there was “furniture in the handicap parking spot.”
   “After already being a small business and working through COVID to get what we saw was a pretty incorrect lawsuit served to us regarding things that were not relevant was, and is, a strong source of stress,” said Earnes. 
   She is estimating that costs after this suit can be anywhere from $500 to $40,000 depending on what the judge rules, if it does not get settled outside of court. 
   This is in part because of the Unruh Civil Rights Act, which, as defined by the California legislature, is the promise that all Americans are “free and equal” no matter their age, race, disability, religion, etc.
   Under the Unruh Act, plaintiffs are entitled to be paid damages for each violation they suffered “up to a maximum of three times the amount of actual damage, but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto,” according to the Civil Code § 52(a). 
   The uncertainty of how much this suit will cost the self-representing business owners has put a hold on upgrades to their kitchen.
   “[It] doesn’t allow us to grow in any way. We wait to see if we can invest $40,000 into our business or pay the plaintiff,” said Earnes. “This makes me question whether or not I would open another small business.”
   The Unruh Act has been criticized by many ADA defense attorneys, cited as being a “clumsy, poorly conceived ADA law” by Moraga attorney Lawrence Pines.
   Pine is an advocate and affected by ADA litigation. His eldest son is a T-6 paraplegic, giving him a perspective many attorneys do not have in these cases.
   “The law tries to – well the intention was to – create a one size fits all with things like door size, switch, counter and table heights, and path of travel slopes and turning areas, etc.,” said Pines. “The remedy is oftentimes overinclusive and underinclusive. If the only tool in your toolbox is a hammer, everything looks like a nail.”
   Businesses get no warning before they are served with the summons and complaint, resulting in being blindsided in most cases.
   “The minute they’re served, they’re in too deep,” said Pines.  
   Other defense attorneys agree and go as far to say ADA laws in their current forms are “nuisance claims” and that courts do not “put the hammer down on these cases consistently,” said attorney Philip Stillman, who represented Lafayette Park Hotel and got a complaint dismissed.
   “No one wants to be anti-disabled. Everyone supports the idea that businesses and hotels should be accessible to people with disabilities,” said Stillman. “[But] what needs to be done is disincentivize these serial plaintiffs’ lawyers from profiting on these cases. This has just turned into a cottage industry of suing. They make hundreds of thousands of dollars; this is their job.” 
   Some disagree with these opinions and believe that ADA laws as written allow “individuals who are disabled or have medical conditions to more fully participate in society,” said ADA attorney Daniel Malakauskas, who represents Pomponio in many cases.
   “The values of our country can only truly be realized when we allow all members of our society to fully participate,” said Malakauskas. “We should strive to allow all individuals in society, at all ages, and with any medical conditions, to be welcomed into our American family.”
   Along with suits about the physical location of a place not being ADA compliant, a new trend of suing over website accessibility is making its way through the courts, according to attorney Cris Vaughn, who represented Lafayette’s Diablo Foods in a suit from Pomponio. 
   “Twenty percent of these lawsuits in federal court are website cases,” said Vaughn. “We’re seeing a higher frequency of contact of people claiming that their website is not accessible.”
   Moraga Garden Center Nursery owner Kenny Murakami was planning to retire by 2022 due to family health issues and getting older, but the ADA lawsuit just accelerated it. He took it as a “sign from the universe that it was time to retire,” and plans to close the nursery in October.
   While Murakami admits his building is not in compliance because of its gravel pathways, he believes some people take advantage of the law and that it should change. 
   “I don’t think that small businesses have been given much support; we’re left to do it on our own,” said Murakami. “We’re scrambling to do what we do, and those things are pushed on the back burner. The help that comes to small businesses comes after we’ve been sued.”
   Residents are disheartened by the news of planned closings and the reasons behind them. 
   “I almost cried when I heard the news. We have had this house for 30 years and we’ve been going to the nursery every week,” said Zoreh Malek, a 30-year Moragan. “He is part of the community. It’s a sad thing.”

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