Friday, October 27, 2006
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Court: Showing of Discriminatory Intent Required to Trigger Greater Penalties for ADA Violations
By TINA BAY, Staff Writer
Disabled persons seeking the greater of two possible statutory recoveries for design violations must prove the violations were intentional, the Fourth District Court of Appeal ruled yesterday.
Affirming a summary judgment order by Orange Superior Court Commissioner Jane D. Myers, Div. Three said wheelchair user David Gunther showed no evidence entitling him to the $8,000 damages he was suing for.
Gunther sued Jack-in-the Box franchise owner John Lin under Civil Code Sec. 52, permitting a minimum penalty of $4,000 for each violation of the Unruh Civil Rights Act—which, as a result of a 1992 amendment, fully incorporates the terms of the Americans with Disabilities Act.
Gunther alleged that on a visit to Lin’s business, he found the restroom violated ADA design standards on two counts: the pipe under the sink lacked insulation and the wall mirror was placed too high.
In his answer, Lin claimed Gunther entered the restroom while it was being remodeled, just before the insulation work had been completed. He also replied that the restroom walls normally did not have mirrors due to vandalism concerns, and an employee had hung one by mistake.
Lin moved for summary judgment based on Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, which said discriminatory intent is required to trigger Sec. 52’s damage provisions.
While conceding Lin had no discriminatory intent, Gunther argued that the Legislature in 1992 superceded Harris by importing the ADA into the Unruh Act. Since the ADA automatically penalizes even the most technical violations, Gunther said, lawmakers intended for Sec. 52 to similarly permit automatic penalties for unintentional conduct.
But the trial judge held Harris remained good law and granted Lin’s motion.
Writing for Div. Three, Presiding Justice David G. Sills agreed the amendment did not change Harris, and explained that Sec. 54.3 already authorized penalties for unintentional violations.
An alternative means of enforcing ADA violations, Sec. 54.3 provides for a minimum penalty of $1,000 per violation and states that plaintiffs suing under that section may not also sue under Sec. 52. To interpret Sec. 52 to apply to unintentional conduct would render Sec. 54.3 largely redundant, Sills said, adding:
“Gunther’s proffered interpretation (no requirement of intentional discrimination) opens the door for abusive litigation; the alternative interpretation respects the need for compliance—nonintentional violations still carry a minimum penalty under section 54.3—while not creating the incentive for abuse, much less sabotage.”
The primary purposes of the 1992 legislation was not to overturn Sec. 52’s intentional discrimination requirement, but to expand the scope of this state’s disability law to include mental as well as physical disabilities, the justice explained.
Otherwise, he noted, businesses would be subject to the “worst of all possible worlds”—strict liability for ADA design violations combined with the $4,000 penalty under Sec. 52, without the counterbalancing protection of an intent requirement.
“Did the Legislature really mean to do that?” he wrote.
The justices declined to follow two federal cases whose rationale supported Gunther’s position—Presta v. Peninsula Corridor Joint Powers Board (N.D. Cal. 1998) 16 F.Supp.2d 1134, and Lentini v. California Center for the Arts (9th Cir. 2004) 370 F.3rd 837.
Noting that Lentini—which held that intentional discrimination need not be shown where an Unruh Act violation is premised on an ADA violation—resulted in a flood of lawsuits seeking the minimum $4,000 penalty, Sills commented:
“[S]tate law claims have become the tails that wag the dog of federal ADA litigation in California, as plaintiffs seek to cash in on the higher minimum penalties provided by section 52, ignoring section 54.3.”
The justice concluded:
“Gunther could have sued Lin based on Lin’s unintentional ADA violations, but recovered the smaller statutory minimum penalty under section 54.3. Rather, he elected to try to obtain the larger statutory minimum penalty under section 52, but that remedy is reserved for intentional violations.”
Justices William F. Rylaarsdam and Richard M. Aronson concurred in the opinion.
Gunther’s attorney Morse Mehrban, based in Los Angeles, told the MetNews the decision would devastate the disabled community if left standing, and said he would petition for review.
“With one opinion, three members of the Court of Appeal have undone the will and intent of the entire state of California, and in my opinion there is no question it’s going to be reviewed by the Supreme Court,” he said.
The Legislature intended to punish unintentional discrimination in order to create a strong monetary incentive for the business community to comply with the ADA and thereby protect the interests of disabled persons, he explained.
Century City attorney Al Mohajerian, representing Lin, told the MetNews the ruling would not hurt the disabled.
“All it does is put an end, hopefully, to the frivolous lawsuits that are just solely about money, where plaintiffs don’t even care about the problem,” he said.
Without an intent requirement, he maintained, plaintiff’s lawyers will continue to make a business out of suing every small business for any conceivable ADA violation.
Mehrban responded:
“Frivolous or not, this is the intent of the Legislature, and if the Legislature says something is the law, it’s the law—someone’s opinion that is it’s frivolous or not does not change the law.”
The case is Gunther v. Lin, G036042.
Copyright 2006, Metropolitan News Company