[blindlaw] Court ruling puts crimp in disability lawsuits

[dlb723]

Court ruling puts crimp in disability lawsuits

Court: L.B. restaurants may benefit from ruling limiting penalties unless an intent to discriminate is proven.

By Wendy Thomas Russell, Staff writer

Article Launched:11/19/2006 10:34:01 PM PST

LONG BEACH - The way Joe Picarelli saw it, he was on the losing end of a bogus lawsuit.

The owner of Cucina Picarelli had inadvertently violated the Americans with Disabilities Act by placing a mirror and towel dispenser a few inches too high

on a bathroom wall. And a lawsuit filed in September by a disabled Anaheim man demanded $4,000 for each violation, plus attorney's fees.

To Picarelli, the damages seemed exorbitant, but his attorney, Alexis Galindo, encouraged him to settle. Time and again, Galindo explained, the courts had

sided with disabled plaintiffs - and Picarelli's case promised to be no different.

"The best thing we can do is negotiate," Picarelli decided.

But that all changed on Oct. 26, when the Fourth District Court of Appeal issued a landmark, 37-page opinion that prevents plaintiffs from collecting the

hefty, $4,000 penalties for ADA violations unless the offending business owners intended to discriminate against the disabled.

he decision in Gunther v. Lin dealt a blow to a relatively new - and extremely lucrative - area of law, experts said. And it turned Picarelli's likely

loss into an almost certain winner.

"I think it's extremely significant," said

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David Warren Peters, CEO of the San Diego-based Lawyers Against Lawsuit Abuse. "A lot of plaintiffs have made a lot of money on what the Lin case now tells

us was an incorrect interpretation of the law."

The Lin case involved an Orange County Jack In The Box franchise owner, John Lin, who was sued by David Gunther, the same plaintiff that filed suit against

Picarelli. Gunther claimed that the franchise's bathroom door was too heavy, and the mirror was too high on the wall. He demanded $8,000.

An Orange County judge granted Jack In The Box's motion for summary judgement - essentially dismissing the case - and the Fourth District upheld the decision.

Among other things, the three-judge panel found, the state's Unruh Civil Rights Act, the statutory equivalent of the ADA, intended to cap penalties for

accidental violations at $1,000 apiece, not $4,000.

"If you're going to get this large award, you're going to need to show that we had the intent to discriminate," said Lin's attorney, Al Mohajerian.

The ruling already has sent ripples through the state court system.

Last week, Long Beach Superior Court Commissioner Douglas Haigh used the appellate decision as his guide in granting summary judgement in another Gunther

lawsuit. That case also involved a Jack In The Box, this one at Seventh Street and Pacific Coast Highway in Long Beach.

Again, the problems were relatively minor: A misplaced mirror, a heavy door and some missing pipe insulation from under a sink. Again, the demand was steep:

$12,000.

Sam Fong, the franchise owner, said he lost thousands of dollars hiring Mohajerian to fight the case - but that he's glad he didn't settle. "It's a loophole

in the law," he said. "The law needs to change."

Gunther's attorney, Morse Merhban, promises to petition the California Supreme Court to review the matter.

"I don't agree with the interpretation of the appellate court," he said. "Failing to take action when you are aware your facility is not in compliance with

the law is tantamount to discrimination."

But the vast majority of business owners are not aware that they are out of compliance, Peters argued. In fact, he said, many have gone out of their way

to install ramps, hand rails and other wheelchair-friendly amenities only to be sued over misplaced mirrors.

The ruling is sure to be embraced by dozens of other Long Beach businesses who have been sued over ADA violations. In addition to Gunther, another disabled

plaintiff, Billie Bishop, has filed a slew of cases in Long Beach Superior Court over the last several years. Many have settled already, but some are still

pending.



Hello All:

I'm new to the list.  I'm interested in your thoughts on the following:

Court ruling puts crimp in disability lawsuits

Wendy Thomas Russell can be reached at

wendy.russell at presstelegram.com
-------------- next part --------------
Court ruling puts crimp in disability lawsuits
 
Court: L.B. restaurants may benefit from ruling limiting penalties unless an intent to discriminate is proven.
 
By Wendy Thomas Russell, Staff writer
 
Article Launched:11/19/2006 10:34:01 PM PST
 
LONG BEACH - The way Joe Picarelli saw it, he was on the losing end of a bogus lawsuit.
 
The owner of Cucina Picarelli had inadvertently violated the Americans with Disabilities Act by placing a mirror and towel dispenser a few inches too high
 
on a bathroom wall. And a lawsuit filed in September by a disabled Anaheim man demanded $4,000 for each violation, plus attorney's fees.
 
To Picarelli, the damages seemed exorbitant, but his attorney, Alexis Galindo, encouraged him to settle. Time and again, Galindo explained, the courts had
 
sided with disabled plaintiffs - and Picarelli's case promised to be no different.
 
"The best thing we can do is negotiate," Picarelli decided.
 
But that all changed on Oct. 26, when the Fourth District Court of Appeal issued a landmark, 37-page opinion that prevents plaintiffs from collecting the
 
hefty, $4,000 penalties for ADA violations unless the offending business owners intended to discriminate against the disabled.
 
he decision in Gunther v. Lin dealt a blow to a relatively new - and extremely lucrative - area of law, experts said. And it turned Picarelli's likely
 
loss into an almost certain winner.
 
"I think it's extremely significant," said
 
Advertisement
 
David Warren Peters, CEO of the San Diego-based Lawyers Against Lawsuit Abuse. "A lot of plaintiffs have made a lot of money on what the Lin case now tells
 
us was an incorrect interpretation of the law."
 
The Lin case involved an Orange County Jack In The Box franchise owner, John Lin, who was sued by David Gunther, the same plaintiff that filed suit against
 
Picarelli. Gunther claimed that the franchise's bathroom door was too heavy, and the mirror was too high on the wall. He demanded $8,000.
 
An Orange County judge granted Jack In The Box's motion for summary judgement - essentially dismissing the case - and the Fourth District upheld the decision.
 
Among other things, the three-judge panel found, the state's Unruh Civil Rights Act, the statutory equivalent of the ADA, intended to cap penalties for
 
accidental violations at $1,000 apiece, not $4,000.
 
"If you're going to get this large award, you're going to need to show that we had the intent to discriminate," said Lin's attorney, Al Mohajerian.
 
The ruling already has sent ripples through the state court system.
 
Last week, Long Beach Superior Court Commissioner Douglas Haigh used the appellate decision as his guide in granting summary judgement in another Gunther
 
lawsuit. That case also involved a Jack In The Box, this one at Seventh Street and Pacific Coast Highway in Long Beach.
 
Again, the problems were relatively minor: A misplaced mirror, a heavy door and some missing pipe insulation from under a sink. Again, the demand was steep:
 
$12,000.
 
Sam Fong, the franchise owner, said he lost thousands of dollars hiring Mohajerian to fight the case - but that he's glad he didn't settle. "It's a loophole
 
in the law," he said. "The law needs to change."
 
Gunther's attorney, Morse Merhban, promises to petition the California Supreme Court to review the matter.
 
"I don't agree with the interpretation of the appellate court," he said. "Failing to take action when you are aware your facility is not in compliance with
 
the law is tantamount to discrimination."
 
But the vast majority of business owners are not aware that they are out of compliance, Peters argued. In fact, he said, many have gone out of their way
 
to install ramps, hand rails and other wheelchair-friendly amenities only to be sued over misplaced mirrors.
 
The ruling is sure to be embraced by dozens of other Long Beach businesses who have been sued over ADA violations. In addition to Gunther, another disabled
 
plaintiff, Billie Bishop, has filed a slew of cases in Long Beach Superior Court over the last several years. Many have settled already, but some are still
 
pending.
 
 
 
Hello All:
 
I'm new to the list.  I'm interested in your thoughts on the following:
 
Court ruling puts crimp in disability lawsuits
Wendy Thomas Russell can be reached at
 
mailto:wendy.russell at presstelegram.com wendy.russell at presstelegram.com