# New CA legislation targets predatory ADA lawsuits



## mark handler (Jan 9, 2015)

New legislation targets predatory ADA lawsuits

http://www.modbee.com/news/local/article5657631.html

By Garth Stapley -  gstapley@modbee.com

01/08/2015 6:42 PM

Yet another San Joaquin Valley lawmaker has introduced state legislation to dampen predatory lawsuits against businesses brought in the name of greater access for disabled people.

Sen. Cathleen Galgiani, D-Manteca, this week unveiled Senate Bill 67 to “reduce the profit incentive to file frivolous lawsuits based on minor and technical deficiencies,” she said in a press release.

A wave of lawsuits claiming bias and based on the federal Americans with Disabilities Act has been washing over the Valley, hitting about 60 businesses in Stanislaus and Merced counties alone. The latest targets include Gervasoni’s restaurant in downtown Modesto, and International House of Pancakes and Donut King in Merced.

Suing Gervasoni’s is Robert McCarthy, a pedophile from Arizona who has been steadily going after hundreds of California companies over 14 years, except while incarcerated on child pornography and fraud convictions. He has sued 14 businesses in Modesto, Ceres and Turlock and four in Atwater, Merced and Los Banos, The Modesto Bee and Merced Sun-Star revealed in a September series focused on ADA lawsuits.

Former owner Gary Gervasoni sold the property last month to the state, which intends to build a courthouse on the block bounded by G, H, Ninth and 10th streets in a land deal accommodated by Modesto City Hall. Gervasoni’s intends to move in December, co-owner Serena Sisson said Thursday, although a new location has not been decided on.

Other eateries, including the Barnwood in Ripon and Ming’s in Los Banos, blamed predatory lawsuits when they closed for good in recent months.

All lawsuits detected by The Bee and the Sun-Star were filed by four plaintiffs working independently with separate sets of lawyers. Aside from McCarthy, the plaintiffs are Aurora Cervantes of Atwater, and Cecil Shaw and Juan Moreno, both of Southern California and both of whom have filed hundreds of ADA lawsuits throughout the state. Moreno died soon after the McClatchy series was published in September, while Shaw has filed 16 more since then.

Cervantes targeted the Merced IHOP in December and Donut King on Tuesday, claiming “difficulty finding the proper designated disabled parking space for vans,” with identical wording, in both complaints. She suffers from lupus, say her lawsuits, which have been centered in Merced County and Turlock.

Last month, on the first day of a new legislative session, Assemblywoman Kristin Olsen, R-Riverbank, and Assemblyman Adam Gray, D-Merced, introduced companion bills addressing the same issue. Gray’s AB 52 would give small businesses six months to fix ADA violations, and Olsen’s AB 54 would give companies two months if claimed violations are based on standards that changed in the previous three years.

Galgiani has hosted public workshops aimed at helping business owners learn how to avoid such lawsuits by complying with the law. She had joined a host of Valley legislators from both political parties who signed on to support the two December bills; others include Republican Sens. Tom Berryhill of Twain Harte and Anthony Cannella of Modesto.

Galgiani’s SB 67, which has no co-authors, would require that those suing prove they have suffered “actual harm” when visiting a business instead of simply spotting violations such as mirrors too high for wheelchairs or signs of the wrong size or color. It also would allow businesses four months to fix problems after receiving a complaint.

Like Olsen and Gray, Galgiani said the ADA’s intent – making life easier for the disabled – is good, but that professional victims and unscrupulous attorneys have abused the law to extort money from hardworking business owners.

“The law was not designed to be a get-rich-quick scheme for predatory lawyers,” Galgiani said. She wants to “limit these shakedown lawsuits and protect California business from exploitation.”

Bee staff writer Garth Stapley can be reached at gstapley@modbee.com or (209) 578-2390.

A seminar helping business owners comply with laws requiring access for the disabled will be held Jan. 29 at the State Theatre in downtown Modesto. Early registration costs $25; tickets at the door will be $30. Details are available at the Disability Resource Agency for Independent Living, (209) 521-7260.


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## fatboy (Jan 9, 2015)

It will be interesting to see if it gains any traction, and in the end, makes a difference............


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## mark handler (Jan 9, 2015)

fatboy said:
			
		

> It will be interesting to see if it gains any traction, and in the end, makes a difference............


Senate Bill 67 to “reduce the profit incentive to file frivolous lawsuits based on * minor and technical deficiencies”*

Not everything is "...minor and technical deficiencies”

Everyone thinks There project is "Minor" We will see....


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## ICE (Jan 9, 2015)

Well unless a ramp is off by 20%, virtually everything ADA is a minor deficiency.


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## steveray (Jan 9, 2015)

Wait until he sues them for calling him a pedophile....


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## mark handler (Jan 9, 2015)

steveray said:
			
		

> Wait until he sues them for calling him a pedophile....


He is a convicted pedophile.....


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## steveray (Jan 9, 2015)

But he has been "corrected" right? That is why we send people to jail....Right?   I would believe that he is a convicted possessor of child porngraphy....


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## mark handler (Jan 9, 2015)

steveray said:
			
		

> But he has been "corrected" right? That is why we send people to jail....Right?   I would believe that he is a convicted possessor of child porngraphy....


McCarthy is a 59-year-old pedophile who stole his dead brother’s identity to illegally obtain food stamps and disability payouts, and to keep the alimony flowing from his ex-wife. He also posed as his brother in suing 57 California businesses before he was caught and sent to prison.


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## steveray (Jan 9, 2015)

mark handler said:
			
		

> McCarthy is a 59-year-old pedophile who stole his dead brother’s identity to illegally obtain food stamps and disability payouts, and to keep the alimony flowing from his ex-wife. He also posed as his brother in suing 57 California businesses before he was caught and sent to prison.


So...He is still in prison?...Then maybe some justice has been served or will be before he gets out....And becomes a new free man with his debt to society paid.


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## mark handler (Jan 9, 2015)

No clue, I don't track them

1 out of 40 million people.....


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## ADAguy (Jan 9, 2015)

"ICE", "minor" to you maybe !!!!!!


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## MASSDRIVER (Jan 9, 2015)

"Difficulty in finding the handicapped parking".

I guess being an idiot is a disability now.

Brent.


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## conarb (Jan 9, 2015)

MASSDRIVER said:
			
		

> "Difficulty in finding the handicapped parking".I guess being an idiot is a disability now.
> 
> Brent.


Brent:

Yes they are covered, mental retardation is now considered a mental disability and they are covered every bit as much as people in wheelchairs.


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## mark handler (Jan 13, 2015)

Galgiani hopes to end frivolous ADA lawsuits

By Kyla Cathey/News-Sentinel staff writer | Posted: Tuesday, January 13, 2015 12:27 am

http://www.lodinews.com/news/article_fea30318-9afd-11e4-b3a0-d35e2c4aa656.html

When Pizza Works closed its doors in Lodi last month, the owners offered several reasons for their decision — including a lawsuit claiming the business did not comply with the Americans with Disabilities Act.

They’re not the only local company hit by an ADA lawsuit recently. Several Lodi businesses have been sued in the past five years, including Java Stop, Brodie Jayne’s Photography and Town & Country Liquors.

State Sen. Cathleen Galgiani, who represents the Lodi area, hopes some changes to California’s Civil Code will cut down on frivolous ADA lawsuits. She has introduced a bill that would give businesses more time to make improvements and base monetary damages on the actual harm caused.

The legislation, introduced last week, would give businesses 120 days to comply with ADA requirements once a lawsuit is filed, rather than the current 60. It would also require those filing a lawsuit to prove they’ve been harmed by a business out of compliance.

“The law was not designed to be a ‘get-rich-quick’ scheme for predatory lawyers,” Galgiani said in a press release. “My motivation for introducing SB 67 is to limit these ‘shakedown’ lawsuits and protect California business from exploitation.”

Pat Patrick, president and CEO of the Lodi District Chamber of Commerce, approves of the suggested changes laid out in Galgiani’s bill.

“I like any legislation that puts a damper on the activity of these predatory attorneys,” he said.

Under current state code, businesses that fail to comply with the ADA can be fined $4,000 per infraction, he said. A business with four violations could face $16,000 — an amount most small businesses don’t have readily available, Patrick said.

Bob Casalegno, the owner of Java Stop, is in favor the proposed changes as well.

Java Stop was targeted by an ADA lawsuit in 2011, but the suit was eventually dropped after Casalegno’s attorney pointed out that the changes requested in the suit had already been made.

More business owners would be able to comply with ADA requirements if they were given 120 days, compared to the current 60-day requirement, Casalegno said.

The City of Lodi has also been the subject of an ADA lawsuit. Tokay High School graduate Jeremy Hixson filed a suit in 2009 claiming that the Grape Bowl was not accessible during his graduation. The city and Lodi Unified School District eventually settled with Hixson for $45,000.

The city has since made changes to bring the stadium into compliance with the law. Galgiani has hosted public workshops aimed at helping business owners learn how to avoid such lawsuits by complying with the law.

Two similar bills have been introduced in the Assembly. Assemblywoman Kristin Olsen’s bill would give companies two months to correct ADA violations if the alleged violations are based on standards that had changed in the previous three years. Assemblyman Adam Gray’s would give small businesses six months to fix ADA violations.

Other valley legislators from both political parties — including Republican Sens. Tom Berryhill of Twain Harte and Anthony Cannella of Ceres — have signed on to support the two December bills.

“The filing of these lawsuits is having a devastating financial impact on businesses that comply with the spirit of the law, but get an ‘A-‘ instead of an ‘A+’,” Galgiani said. Garth Stapley of the Modesto Bee contributed to this report.

Contact reporter Kyla Cathey at kylac@lodinews. com.


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## mark handler (Jan 27, 2015)

ACCESS ACT H.R 241 fights frivolous ADA lawsuit practice

California lawmakers are hard at work to advance the fight against “frivolous ADA lawsuits”

Let’s go back two years and look at H.R 777 introduced in the House of Representatives in 2013 as the ADA Notification Act.

The goal of the ADA Notification Act of 2013 intended to amend the Americans with Disabilities Act of 1990 to deny jurisdiction to a state or federal court in a civil action as plaintiff commences for remedies for disability discrimination in public accommodations and certain services provided by private entities unless:

1) The plaintiff notified the defendant in writing of the alleged violations prior to filing the complaint,

2) The notice identified the specific facts that constitute the alleged violation,

3) A remedial period of 90 days elapses after the notice,

4) The notice informed the defendant that the civil action could not be commenced for 90 days, and

5) The complaint states that the defendant has not corrected the alleged violation.

Unfortunately, this act was not enacted.

Now two years later the fight continues to pass legislature to greatly reduce frivolous lawsuit practice throughout the country.

U.S. Representative Jeff Denham (R-Turlock) has joined Rep. Ken Calvert (R-Corona) as a co-sponsor of H.R. 241 the ACCESS Act, a bill intended to give small businesses adequate time to comply with ADA regulations and protect them from predatory lawsuits.

Several states including California have seen a drastic increase in the number of predatory, drive-by lawsuits accusing local small businesses of violating the Americans with Disabilities Act. These predatory attorneys’ target minority and immigrant owned businesses ill-equipped to fight off lawsuits as well as large local and national retailers that are known for settling quickly to reduce costs and attorneys’ fees. The ACCESS Act will enable small businesses to receive notice and have an opportunity to remove any barriers and stop an expensive lawsuit in its tracks.

The ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act would require any disabled individual intending on taking legal action in response to a possible ADA violation to provide the business owner with written notification of the problem. Within 60 days after receiving written notification, the landlord or tenant would be required to respond with a plan to address the violation.

The landlord or tenant would then have an additional 120 days to remove the specific barriers in question.

The ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act would greatly reduce the financial burden small businesses deal with and continue to meet the intent and purpose of the ADA. Any disabled person who feels they have been denied equal access and claim a violation of the ADA would provide the landlord or tenant with a written notice of the violation, specific enough to allow the owner or operator to identify the barrier to their access. Within 60 days the landlord or tenant would be required to provide the complainant with a plan outlining improvements that would be made to remove the barriers. The landlord or tenant would then have 120 days to remove the barriers. The failure to meet any of these conditions would allow the suit to advance forward.

The purpose of the ADA is to ensure appropriate action is taken to remove barriers that would cause any disabled person harm. Although there are times when litigation by harmed individuals is necessary, there are an increasing number of lawsuits brought under the ADA that are for the sole purpose of huge profits rather than to achieve the appropriate accessibility upgrades. ADA lawsuits are especially prevalent in California. According to the California Chamber of Commerce, California has 40% of the nation’s ADA lawsuits but only 12% of the country’s disabled population. Frivolous lawsuits place huge financial burdens on small businesses and often times they are unaware of the specific details of the allegations brought against them.

Below is a list of House members that have signed on to cosponsor the H.R. 241 ACCESS Act:

1)   Doug LaMalfa    (R-CA-1)

2)   Tom McClintock (R-CA-4)

3)   Paul Cook          (R-CA-8)

4)   Jeff Dunham      (R-CA-10)

5)   David Valadao   (R-CA-21)

6)   Devin Nunes      (R-CA-22)

7)   Ed Royce           (R-CA-39)

8)   Mimi Walters      (R-CA-45)

9)   Dana Rohrabacher (R-CA-48)

10) Darrell Issa         (R-CA-49)

11) Lynn Jenkins (R-KS-2)

12) Mike Simpson (R-ID-2)

13) Lynn Westmoreland (R-GA-3)

I applaud these representatives’ and fully support their efforts to provide relief for small business owners as well as an effective method for all landlords and tenants to properly bring their business into compliance with our accessibility standards.

If you don’t see your representatives’ name listed above, reach out to your local representative and urge them to join the growing list of brave lawmakers willing to stand up and make some much needed change to our ADA laws.

Posted on January 26, 2015 by Chris


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