California has long been considered one of the most litigious states in the nation. It is in desperate need of tort reform, particularly for frivolous Americans with Disabilities Act lawsuits that have been used to shake down businesses \u2014 and sometimes force them to close completely \u2014 for the most minor violations that have not caused any actual harm.<\/p>\n
The Golden State is home to about 12% of the nation\u2019s disabled population<\/a>, but nearly 40% of federal ADA lawsuits<\/a> \u2014 the most of any state by far. This is not an accident or a mere statistical anomaly. Under the ADA, courts can order noncompliant features to be fixed and award attorneys\u2019 fees but cannot impose financial penalties. California\u2019s Unruh Civil Rights Act, however, allows plaintiffs to seek at least $4,000 for each violation, plus attorneys\u2019 fees. <\/p>\n Given the additional monetary incentives, it is no surprise that rent-seeking plaintiffs and attorneys have exploited the law to extort money from thousands of California businesses. This is one of many reasons that California repeatedly features prominently in the American Tort Reform Foundation\u2019s annual Judicial Hellholes<\/a> reports.<\/p>\n The ADA is so detailed\u2014and so rigid\u2014that its application often defies common sense.<\/p>\n \u201cAmongst the suits filed are those for a bathroom mirror being one and a half inches too high, the handicap sign on a restroom being the wrong shape and the color of the handicap parking space sign not being the specified shade of blue,\u201d state Sen. Roger Niello, R-Fair Oaks, noted in a legislative analysis<\/a> of his bipartisan bill, SB 84<\/a>, which would allow businesses with 50 or fewer employees 120 days to fix alleged ADA violations without penalty. Rep. Ken Calvert, R-Corona, introduced a similar measure, HR 8396<\/a>, at the federal level in April.<\/p>\n The bulk of these predatory lawsuits are filed by a small number of serial litigants and a handful of law firms, including San Diego firm Potter Handy and Manning Law in Orange County. According to a recent Los Angeles Times analysis<\/a>, just seven plaintiffs have filed a total of more than 9,000 ADA lawsuits over the past decade in Southern California.<\/p>\n In October, the Escondido Downtown Business Association hosted a forum on how members could protect themselves against ADA lawsuits. Attorney Tri Luu described<\/a> how prevalent the problem is in downtown Escondido, and how serial plaintiffs who saturate their local areas will travel great distances to sue in other parts of the state, like the Los Angeles firm that started coming down to San Diego\u2019s City Heights neighborhood last year to sue businesses along El Cajon Boulevard. <\/p>\n SanDiegoVille also noted<\/a> the rash of serial ADA filings across the city over the past couple of years. Earlier reports have covered ADA lawsuits targeting restaurants in Hillcrest<\/a> and hotels across the county<\/a>. A store in Vista<\/a> was sued because the sign for the disabled access parking space was the old style, and not the right dimensions.<\/p>\n There are numerous such examples all across California. Multiple restaurants in San Francisco\u2019s Chinatown were sued<\/a> because their outdoor seating was allegedly inaccessible \u2014 despite the fact that the businesses offered only takeout service at the time and had no indoor or outdoor tables at all because it was during the coronavirus outbreak. A gas station in San Ramon<\/a> was sued for not providing a heat shield for pipes under the restroom sink, which can burn the legs of a person in a wheelchair \u2014 even though the sink was not connected to any hot water source.<\/p>\n Even if a business is fully compliant and the allegations are totally false, usually it still makes sense to pay a $10,000 or $20,000 settlement to the unscrupulous plaintiffs because it typically costs $50,000 or more to take a case to trial.<\/p>\n Abusive ADA lawsuits are yet another example of why we can\u2019t have nice \u2014 or affordable \u2014 things in California. But the fixes are rather simple. A reasonable \u201cnotice and cure\u201d period, such as those included in SB 84 in California and HR 8396 in Congress, would allow for accessibility improvements without fleecing unsuspecting businesses. The ADA should also be reformed to allow for some flexibility in the application of the law to ensure that a plaintiff experienced real harm and remedies actually make sense. In addition, a \u201closer pays\u201d law would force plaintiffs to cover defendants\u2019 legal bills (and possible penalties) for baseless or frivolous lawsuits.<\/p>\n For small businesses across California, these reforms cannot come soon enough. And you cannot open doors to people with disabilities by forcing businesses to close their doors permanently.<\/p>\n