Am I reading this wrong?

[briana.askew]

My business is currently the victim of a drive-by ADA lawsuit. The lawyer seems like a real scum ball and I'm outraged that he's wasting my time! His claims are all nonsense! Anyway he said that we are in violation of "Title III of Americans with Disabilities Act, 42 U.S.C.§§ 12181, et seq., 28 CFR § 36.302 (e)(1), et seq. ("ADA")". Here's the thing, this part of the ADA that he is referencing (36.302 (e)(1)) is in relation to a place of lodging. We are not a place of lodging, we are a medical documents office. Am I reading this wrong or did this idiot really reference the wrong part of the law? And if so, does this give me any sort of edge? I'm most likely going to be defending myself because I can't afford legal council.

 

[quincy]

My business is currently the victim of a drive-by ADA lawsuit. The lawyer seems like a real scum ball and I'm outraged that he's wasting my time! His claims are all nonsense! Anyway he said that we are in violation of "Title III of Americans with Disabilities Act, 42 U.S.C.§§ 12181, et seq., 28 CFR § 36.302 (e)(1), et seq. ("ADA")". Here's the thing, this part of the ADA that he is referencing (36.302 (e)(1)) is in relation to a place of lodging. We are not a place of lodging, we are a medical documents office. Am I reading this wrong or did this idiot really reference the wrong part of the law? And if so, does this give me any sort of edge? I'm most likely going to be defending myself because I can't afford legal council.

What is the name of your state?

Do you have any idea what the claim could be about, if not about the cited section of the law?

 

[Taxing Matters]

My business is currently the victim of a drive-by ADA lawsuit. The lawyer seems like a real scum ball and I'm outraged that he's wasting my time! His claims are all nonsense!

Was the lawsuit filed in federal or state court? In what state is your business located? And what are the FACTS that the plaintiff alleges in the case — what is that your business allegedly did (or did not do) that violated the plaintiff's rights under the ADA? And what specific remedy (aside from attorney's fees) is the plaintiff seeking? And importantly, just how is your business organized — LLC, corporation, something else?

Anyway he said that we are in violation of "Title III of Americans with Disabilities Act, 42 U.S.C.§§ 12181, et seq., 28 CFR § 36.302 (e)(1), et seq. ("ADA")". Here's the thing, this part of the ADA that he is referencing (36.302 (e)(1)) is in relation to a place of lodging. We are not a place of lodging, we are a medical documents office. Am I reading this wrong or did this idiot really reference the wrong part of the law?

If the case is filed in federal court that won't matter. My guess is that the attorney meant to simply say § 36.302 et seq, which would match with the U.S. Code cite that was provided. In short, the plaintiff is alleging a violation of Title III of the ADA, which is the part of the ADA that deals with places of public accommodation. That's going to be enough to put you on notice as to generally what the complaint is about. Moreover, in federal court it is the recitation of the facts in the complaint that matters most. If the facts as presented by the plaintiff would amount to a good claim under federal law, then the court isn't going to toss it out.

I recommend you find a way to get a lawyer to help you with this lawsuit. Federal court litigation is not particularly easy, and if you are not familiar with that and with the ADA, you'll likely have rough going. And if your business is a separate legal entity under state law like a corporation, LLC, LLP, etc, then you won't have a choice. The business in that case must have a lawyer representing it in court.

 

[briana.askew]

What is the name of your state? California

Do you have any idea what the claim could be about, if not about the cited section of the law?
Oh yea I know exactly what the claim is. He is suing my business (a general partnership) and the building owner. His first claim is that his client was denied access to our services because we are on the second floor of a building that is not wheelchair accessible. His client never contacted us though, he just (allegedly) came to the address and then went and filed a CIVIL lawsuit requesting $4000 in damages and lawyer fees. If he had contacted us he would know, since the removal of barriers allowing him access to the second floor were not reasonably attainable (as allowed for by the ADA), we offer alternatives in the form of curbside service, home delivery and an alternate fully accesible location.

He also has a few complaints about the parking lot. The building we are in is very old and we are 1 of 30 suites in the building so the parking lot is not something we have the ability to alter. It is a common parking lot maintained by the owner of the building. That being said, the spots are all marked correctly and there are the correct number of spots required for the number of spaces in the lot. He claims this is not true. I'm not even sure they came to the building cause from the assessments I've done his allegations are all false. The property owner is going to have an ADA professional come out and assess the property though.

 

[quincy]

Thank you for providing your state name.

Here is a link to 42 USC 12181 et seq:
https://www.law.cornell.edu/uscode/text/42/12181
Here is a link to 28 CFR 36.302:
https://www.law.cornell.edu/cfr/text/28/36.302
I recommend you review the complaint with a lawyer in your area because I don't think you can afford not to have an attorney.

But it appears from what you have said that you have a good defense to the plaintiff's wheelchair claim and could have a good defense to the parking lot claim.

 

[briana.askew]

Was the lawsuit filed in federal or state court? In what state is your business located? And what are the FACTS that the plaintiff alleges in the case — what is that your business allegedly did (or did not do) that violated the plaintiff's rights under the ADA? And what specific remedy (aside from attorney's fees) is the plaintiff seeking? And importantly, just how is your business organized — LLC, corporation, something else?



If the case is filed in federal court that won't matter. My guess is that the attorney meant to simply say § 36.302 et seq, which would match with the U.S. Code cite that was provided. In short, the plaintiff is alleging a violation of Title III of the ADA, which is the part of the ADA that deals with places of public accommodation. That's going to be enough to put you on notice as to generally what the complaint is about. Moreover, in federal court it is the recitation of the facts in the complaint that matters most. If the facts as presented by the plaintiff would amount to a good claim under federal law, then the court isn't going to toss it out.

I recommend you find a way to get a lawyer to help you with this lawsuit. Federal court litigation is not particularly easy, and if you are not familiar with that and with the ADA, you'll likely have rough going. And if your business is a separate legal entity under state law like a corporation, LLC, LLP, etc, then you won't have a choice. The business in that case must have a lawyer representing it in court.

He is suing my business (a general partnership) and the building owner. His first claim is that his client was denied access to our services because we are on the second floor of a building that is not wheelchair accessible. His client never contacted us though, he just (allegedly) came to the address and then went and filed a CIVIL lawsuit requesting $4000 in damages and lawyer fees. If he had contacted us he would know, since the removal of barriers allowing him access to the second floor were not reasonably attainable (as allowed for by the ADA), we offer alternatives in the form of curbside service, home delivery and an alternate fully accesible location.

He also has a few complaints about the parking lot. The building we are in is very old and we are 1 of 30 suites in the building so the parking lot is not something we have the ability to alter. It is a common parking lot maintained by the owner of the building. That being said, the spots are all marked correctly and there are the correct number of spots required for the number of spaces in the lot. He claims this is not true. I'm not even sure they came to the building cause from the assessments I've done his allegations are all false. The property owner is going to have an ADA professional come out and assess the property though.

 

[briana.askew]

Here is a link to 42 USC 12181 et seq:
https://www.law.cornell.edu/uscode/text/42/12181
Here is a link to 28 CFR 36.302:
https://www.law.cornell.edu/cfr/text/28/36.302
I believe you are reading things wrong. I recommend you review the complaint with a lawyer in your area. I don't think you can afford not to have an attorney.

Am I? 36.302 (e)(1) looks to me to be about lodging...if I'm reading this wrong can you clarify what section he is referencing?

 

[quincy]

Am I? 36.302 (e)(1) looks to me to be about lodging...if I'm reading this wrong can you clarify what section he is referencing?

Read 42 USC section 12181, Definition (7)(F), which appears to apply to your business.

The plaintiff appears to have erred with the CFR (e)(1) - but it should be a correctable error.

 

[briana.askew]

Read 42 USC section 12181, Definition (7)(F), which appears to apply to your business.

Yes I agree. This guy has gone out and filed 8 of these lawsuits in the last 2 months and, based on an email I recieved from him, he is specifically hoping that we will settle. I don't want to do that. I have spoken to the ADA and according to the information I have from them, we are not in violation. This is a scam and I'm just trying to see if I'm reading this corretcly. For my own information. To me it appears he is referencing the wrong section of the law. Even if it doesn't matter I would like to know for my own knowledge.

 

[adjusterjack]

He is suing my business (a general partnership) and the building owner.

You haven't said what court. Federal, local Superior Court, Small Claims?

Do you have business liability insurance? Check it carefully on the remote chance that you have coverage for this type of lawsuit. When in doubt, report it to your liability insurance carrier and let a claim rep examine your coverage.

 

[briana.askew]

You haven't said what court. Federal, local Superior Court, Small Claims?

Do you have business liability insurance? Check it carefully on the remote chance that you have coverage for this type of lawsuit. When in doubt, report it to your liability insurance carrier and let a claim rep examine your coverage.

It's a Civil Suite filed with Superior Court of California in San Diego.

I will look in to the insurance. Thank you.

 

[Taxing Matters]

He is suing my business (a general partnership) and the building owner. His first claim is that his client was denied access to our services because we are on the second floor of a building that is not wheelchair accessible. His client never contacted us though, he just (allegedly) came to the address and then went and filed a CIVIL lawsuit requesting $4000 in damages and lawyer fees.

Then clearly the lawyer is not an expert on the ADA or the lawyer is trying to bluff you hoping you'll agree to pay money damages. If the latter, that is a violation of both FRCP 11 (assuming this is in federal Court) and the California Rules of Professional Conduct. If he doesn't have experience in these cases it may be the former. A lot of lawyers who have not studied the ADA would assume that all ADA violations give rise to money damage claims. But in the case of a Title III ADA claim, the only way money damages can be awarded is if the Department of Justice sues to enforce the ADA. Money damages are not possible in a private ADA lawsuit. All he can sue for is preventive relief, including an application for a permanent or temporary injunction, restraining order, etc. If he sought only the monetary relief in the complaint and did not ask for any preventative relief then the complaint is defective and would provide grounds for a motion to dismiss. The court would probably still allow the plaintiff to amend the complaint to cure that defect, but it's worth trying for that anyway. At the very least his claim for money damages is subject to dismissal. Either way, his client is likely to be much less excited about this case if there isn't going to be any potential for money coming his way. Sure, if they win the lawyer gets paid, but that doesn't help the client so much.

The lawyer may, however, ask for the attorney's fees. The lawyer might not get as much as he asks for and only gets anything if he wins.

 

[Taxing Matters]

It's a Civil Suite filed with Superior Court of California in San Diego.

That changes the procedure a bit, but not the substance. Money damages are still not possible in an ADA Title III claim. Money damages might be possible if the suit also includes claims under California's law that prohibits discrimination against disabled persons.

 

[quincy]

Monetary damages can be awarded in California under the Unruh Civil Rights Act (UCRA) and the Disabled Persons Act (CDPA) if there is a violation of the ADA.

Under the UCRA, actual damages can be awarded for each offense (no less than $4000/offense) and under the CDPA, actual damages can be awarded for each offense (no less than $1000/offense), this IF California has not recently changed the laws to address the (apparently rampant) abuses in ADA-related lawsuit filings in the State.

Your attorney needs to review the complaint to see if there can be any support at all for the suit.

 

[briana.askew]

That changes the procedure a bit, but not the substance. Money damages are still not possible in an ADA Title III claim. Money damages might be possible if the suit also includes claims under California's law that prohibits discrimination against disabled persons.

Thank you so much for your response! Getting a lawyer is not an option right now, I am going to have to represent myself so the information is greatly appreciated!

Yes the claim is that, due to the violations of the ADA, the clients rights have been violated and according to Unruh Civil Rights Act he is entitled to monetary damages but he is ALSO requesting injunctive relief. My argument is that the violations of the ADA are not there, I measured everything myself and checked all the guidlines, all of these claims are false.

This is what they are claiming:

• that parking spaces for the disabled are not properly signed - this is not true, they meet all ADA guidlines
• that the signs are not the right size - they are
• that the free standing signs located at the interior end of parking space are not 80" above the finish grade – they are.
• that the van accessible spaces, are not marked "VAN ACCESSIBLE" – they are.
• Tow away signs at each entrance to parking area or adjacent to accessible parking spaces are not there – they are.
• that the parking spaces for the disabled are not proper dimensions - they are
• that the number of spaces provided for the disabled are inadequate - this is not true - they meet ADA guidelines for the size of the lot.
• that there are no accessible spaces at least 8 feet wide with an access aisle at least 5 feet wide. This is not accurate, there are actually two spaces that meet these requirements.
• that none of the parking stalls provided for the disabled had a “$250 fine” warning signs posted. This is true but as the parking lot has not been renovated since before 2008 so it is my understanding that this is not required.
• that the route is greater than 200’ in length - it is not...that it is less than 60" in width - this is not true.
• that my business has failed to maintain, in operable working condition, the features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities. This is not accurate. My business has provided multiple ADA compliant alternatives including curb side service, home delivery and an alternative location.
• that he has personally encountered these barriers; however, he has never made an attempt to contact my business or take advantage of our services.
• that we are an inaccessible facility that has denied him full equal access and that this has caused him difficulty, discomfort and embarrassment. No denial was made, our facility has a multitude of ADA compliant alternatives which would allow him full and equal access to our services.

THIS GUY IS AN ABSOLUTE SCAM ARTIST!!!!