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A federal judge found Thursday that a disabled plaintiff’s testimony was “not credible” and dismissed his lawsuit under the Americans with Disabilities Act (ADA) after he had sued a Redwood City restaurant because its outdoor dining tables were not accessible for someone in a wheelchair.
The case has potentially broad-reaching implications because Brian Whitaker, a prolific ADA plaintiff, has filed more than a thousand lawsuits in the Bay Area against small business owners alleging that their stores or restaurants are not accessible.
Whitaker is represented by the San Diego law firm Potter Handy LLP.
Potter Handy itself is the subject of an unusual and far-ranging lawsuit brought last month in San Francisco Superior Court by the district attorneys of San Francisco and Los Angeles.
That suit contends that by using false allegations from its clients — including Whitaker — Potter Handy filed thousands of ADA cases in federal court in order to end-run obstacles in state court that the California Legislature enacted to deter suits by so-called “high frequency plaintiffs.”
The district attorneys alleged that such allegations enabled the law firm to obtain thousands of settlements from small business owners throughout the state. The district attorneys sought an injunction against the law firm and an order forcing the firm to repay the moneys it has obtained in the ADA cases it settled in the last four years.
While the credibility findings against Whitaker only directly apply in the single case, they are likely to have an impact in hundreds of other cases brought by Whitaker in the Bay Area as well in the district attorneys’ suit.
Whitaker v. Slainte Bars
The decision on Thursday comes in a case captioned Whitaker v. Slainte Bars LLC pending before U.S. District Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California.
Whitaker alleged that in May 2021, he went to the Alhambra Irish House, a restaurant in Redwood City “with the intention to avail himself of its goods or services,” but he encountered barriers to access in the form of outdoor “dining surfaces” not accessible for wheelchair users.
The outdoor tables lacked “sufficient knee or toe clearance under outside dining surfaces” and also were “too high.” The barriers created “difficulty and discomfort” for Whitaker and, accordingly, he brought suit under the ADA on May 19, 2021.
The central issue in the case was whether Whitaker had legal “standing” to bring his case in federal court.
If a plaintiff does not have standing, a federal court has no jurisdiction and the court must dismiss the case. That would force an ADA plaintiff to either drop the case altogether or refile it in state court where the California Legislature has made such filings more expensive for litigants like Whitaker who file multiple cases.
In order for an ADA plaintiff to have standing in federal court, they must not only demonstrate that they have encountered a barrier to accessibility in a public place like a store or a restaurant, but also that there is a real risk that they will suffer harm in the future at that place unless an injunction is issued. If they do not intend to return to the store or restaurant, they would not need an injunction to prevent future harm and therefore would have no standing.
Whitaker’s complaint alleged that he intended to return to the Alhambra Irish House when he is told that it is accessible.
Ara Sahelian, the lawyer for the defendant, challenged that allegation and asserted that Whitaker had no genuine intent to return.
When the judge convened a hearing on the issue, Sahelian produced evidence that Whitaker lives in Los Angeles, four and a half hours by car from the Alhambra Irish House, and came to Redwood City, not to shop or eat, but primarily to file lawsuits.
Sahelian asserted that Whitaker has never returned to any of the 1,733 establishments that he has sued in the past. He said Whitaker could not identify any single business he returned to and he had no list or records of any return visits. Moreover, if Whitaker actually tried to go back to all the places that he sued, it would be a multi-year undertaking.
Those alleged facts, together with the asserted implausibility of some of Whitaker’s other contentions — for example, that he travels twice a month to the Bay Area not to file lawsuits but because he is considering moving there — demonstrated, Sahelian argued, that Whitaker did not actually intend to return.
Whitaker’s lawyer, Dennis Price, a Potter Handy partner, accused Sahelian of mounting an attack on “the victim of discrimination.” He argued that the ADA is a civil rights statute and courts have traditionally shown flexibility on standing for civil rights plaintiffs.
Price said that “Mr. Whitaker factually has returned to numerous, countless businesses that he has sued. He is not obligated to keep receipts of these return visits or document them for the curiosity of future litigation.”
After hearing the evidence, the judge made a series of findings damaging to Whitaker:
Corley found that when Whitaker filed his lawsuit, “he did not have a genuine intent to return to the Alhambra Irish House in Redwood City.” The judge found little evidence of any connection between Whitaker and Redwood City.
She said, “the only testimony the Court could find that touches on Redwood City is that it is on the way from San Jose to San Francisco.”
The judge found that Whitaker “traveled to Redwood City for the purpose of finding business establishments to sue,” not because he was visiting the Bay Area two to three times a month, as he testified, to canvas neighborhoods as possible places to relocate from his home in Los Angeles.
Corley noted that in another case in the district, Whitaker made a one-day trip to Burlingame with a friend, whom he paid $500 to act “as security.”
The few hours Whitaker and his friend spent in Burlingame that day resulted in 14 ADA lawsuits. In that case, like the current case, Whitaker testified that he flew to Burlingame to look for potential residency. The judge found that the “explanation is not credible in light of the circumstances of the trip.”
The judge thought the volume of Whitaker’s ADA lawsuits also belied his testimony that he does not travel to the Bay Area to look for businesses to sue. She said Whitaker had filed 560 cases in the district in 2021 alone. Again she found that his testimony on that issue “is not credible in light of his litigation history.”
The judge found Whitaker’s testimony concerning his intent to return no more credible than his testimony about his reason for being in Redwood City.
“Nothing in the record supports a finding that in May 2021 he intended to return to every business he had sued, let alone an intent to return to the Alhambra Irish House. Indeed, he could not identify a single Bay Area business he had returned to, despite having sued — and settled with — hundreds.”
The judge closed her opinion by challenging Whitaker’s argument that dismissal would defeat the ADA’s purpose of providing equal access for the disabled.
Calling the concern “misplaced,” Corley explained, “The standing question is only about whether Mr. Whitaker must bring his claims in state court rather than federal court. Mr. Whitaker can get all the relief he seeks in state court.”
Following the decision, Price responded to a request for comment stating, “This decision flouts multiple Ninth Circuit decisions about standing in ADA cases. We will be appealing.”
Sahelian was pleased with the outcome. He said “Bay Area small business owners should be relieved with this decision.”
Impact of the decision
While Whitaker v. Slainte Bars is just a single case, the adverse credibility findings are likely to be influential in other cases.
According to Sahelian, the same arguments he made against Whitaker’s standing in this case could be made in many — perhaps most — of Whitaker’s other cases in this district. He also says he has a similar motion pending against another one of Potter Handy’s clients and expects to file more.
Philip Stillman, an attorney who has litigated a number of ADA claims against Potter Handy said, “I expect that other judges in the Northern District with Whitaker cases will take notice of Judge Corley’s well-reasoned opinion and even though it may not be binding on Whitaker in other cases, it will surely make it more difficult for him to remain in federal court on these claims.”
The decision could also reverberate in the suit by the district attorneys. That filing alleges that many — perhaps most — of Potter Handy’s clients did not have standing, and that even though Potter Handy allegedly knew that, they filed the cases anyway.
As previously reported by Bay City News, new ADA filings by the Potter Handy firm have sharply dropped since April 11 when the district attorneys’ suit was filed.
Prior to that date, the Potter Handy firm was filing an average of just under three new cases a day, seven days a week, during 2021. In the following 25 days, the firm has only filed three new cases in the district, the last one on April 26.
Potter Handy has not yet filed a response to the district attorneys’ lawsuit, however Price issued a statement expressing concern about the motivation of the district attorneys.
Price said that the district attorneys were both facing recall threats “and are filing these claims in order to generate support.”