This wheelchair-bound plaintiff is vexatious litigant | SierraSun.com

This wheelchair-bound plaintiff is vexatious litigant

Jim Porter

Jarek Molski is paralyzed from the chest down and needs a wheelchair to get around. He and a group called Disability Rights and Enforcement Education Services: Helping You Help Others filed about 400 lawsuits in federal courts in California alleging violations under the Americans With Disabilities Act (ADA) and Californias complementary laws.

In one such lawsuit against Mandarin Touch Restaurant in Solvang, Molski claimed he injured his hand trying to access the toilet from his wheelchair causing trauma. He also alleged the Mandarin Touch had other accessibility barriers too numerous to list.Molski sought recovery of damages of $4,000 a day for each day after his visit. While the ADA does not allow money damages, California law does. Molski also sued for punitive damages and attorneys fees.Molskis attorney, Thomas E. Frankovich of San Francisco, had similarly filed 223 essentially identical lawsuits. The Mandarin Touch Restaurant defended claiming Molski was a vexatious litigant and his attorney Frankovich should be sanctioned for abusing the litigation process.

Molski v. Mandarin Touch Restaurant made it all the way to the Ninth Circuit Court of Appeals, the appellate circuit routinely overturned by the U.S. Supreme Court.The Ninth Circuit noted that two lower courts in the Ninth Circuit had disagreed whether Molskis frequent litigation was vexatious. He was a well-known plaintiff who was either a champion for the disabled or an extortionist, depending upon your point of view.

The Court of Appeals described the factors that must be present before a plaintiff is determined to be a vexatious litigant in federal court: (1) a history of litigation involving vexatious, harassing or duplicative suits, (2) whether the litigant had a good-faith expectation of prevailing, (3) whether the litigant was represented by counsel (more likely to be vexatious), and (4) the burden on the courts of multiple lawsuits. The court noted Molski had alleged identical injuries to his upper extremities in most of his lawsuits. In fact, in 13 suits he claimed to have suffered 13 nearly identical injuries to the same part of his body while attempting to use bathroom facilities over a five-day period. The court concluded Molski had plainly lied.Additionally, Molski had settled all but one of his lawsuits using the threat of money damages under California law to extract cash settlements and move to his next case, as the court wrote. The court noted one-third of the suits were against ethnic restaurants seen as easy prey for coercive claims. The court found the magnitude of Molskis claimed physical injuries greatly exceeded his claim of damages. In some cases the lawsuits would allege bodily injury suffered as a result of inadequate signage or lack of accessible parking. Frankovich wrote what the court characterized as an astonishing letter sent to defendants described as friendly advice, counseling the unrepresented defendants against hiring a lawyer, even advising the defendants that they had no defense to the lawsuit and should ask their insurance company to pay for Molskis claim. As evidence of harassment, the court noted that Molski would wait to file suit until a full year elapsed since his visit to the restaurant establishments, so at the rate of $4,000 per day defendants often faced claims for damages of over $1million. Apparently the lawsuits sought money damages, not accessibility improvements.

The Court of Appeals concluded that many of Molskis lawsuits were probably meritorious in part because many of the establishments he sued were likely not in compliance with the ADA.The court did not condemn serial ADA litigation as automatically vexatious, but concluded Molski had used false and exaggerated allegations as a harassing device to extract cash settlements from targeted defendants because of their technical noncompliance with the ADA.A rare pre-filing order was issued against Frankovich and Molski requiring that they obtain court approval before filing ADA lawsuits. Probably appropriate in this case. Jim Porter is an attorney with Porter & Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at porter@portersimon.com or at the firms web site http://www.portersimon.com. 2007