Johnson v. Overlook At Blue Ravine, LLC

Filing 29

ORDER signed by Judge John A. Mendez on 7/20/12 ORDERING This action is DISMISSED for lack of subject matter jurisdiction; Defendant's Motion for Summary Judgment is DENIED as moot; and Defendant's Request for an Order Declaring Plaintiff Vexatious Litigant is DENIED. Plaintiff and Defendant shall submit supplemental filings in accordance with this Order by August 10, 2012. CASE CLOSED.(Matson, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT N. JOHNSON,

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Plaintiff,

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v.

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OVERLOOK AT BLUE RAVINE, LLC, a
California limited liability
company,
Defendant.

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Case No. 2:10-CV-02387 JAM-DAD
ORDER DISMISSING CASE FOR LACK
OF SUBJECT MATTER
JURISDICTION; DENYING
DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT; DENYING MOTION TO
DECLARE PLAINTIFF A VEXATIOUS
LITIGANT; AND TO SHOW CAUSE AS
TO WHY SANCTIONS SHOULD NOT BE
IMPOSED AGAINST PLAINTIFF

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This matter comes before the Court on Defendant Overlook at

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Blue Ravine, LLC’s (“Defendant”) Motion for Summary Judgment and

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For an Order Declaring Plaintiff a Vexatious Litigant (Doc. #10).

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Plaintiff Scott N. Johnson (“Plaintiff”) opposes the motion

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(Doc. #22).1

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230 (g). The hearing was scheduled
for June 27, 2012.
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I.

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FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, a quadriplegic, lives in Carmichael, California.

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Finnerty Decl., Ex. C (“Johnson Depo. Excerpt”) (Doc. #15-1) at

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9:13-18.

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service animal, a wheelchair, and a full size van with hand-

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controls and a wheelchair lift.

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plans to continue to reside at his home in Carmichael, California,

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Plaintiff claims he is looking for an apartment for his twenty-one

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year old son.

As a quadriplegic, Plaintiff requires the use of a

Compl. (“Doc. #1) ¶ 1.

Though he

Decl. of Scott N. Johnson (“Johnson Decl.”) (Doc.

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#23) ¶ 7.

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in Rocklin, California.

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will continue to live at home, he will frequently visit his son and

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will stay with him periodically.

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complex, the Overlook at Blue Ravine (“the Overlook”), is located

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in Folsom, California.

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miles from Carmichael and Rocklin, is not convenient to either

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city.

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3) (“Aerial Map”).

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Plaintiff’s son lives in Carmichael and attends college
Id.

Plaintiff anticipates that while he

Id.

Compl. ¶2.

Defendant’s apartment

The Overlook, about fifteen

See Decl. of Cathy Tustin (“Tustin Decl.”) Ex. 1 (Doc. #27-

Although the date of Plaintiff’s first visit to the Overlook

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is unknown, Plaintiff informed Defendant about its violations of

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Title III of the American with Disabilities Act of 1990 (“ADA”), 42

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U.S.C. § 12182, in a letter dated March 2, 2010.

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Specifically, Plaintiff alleged that Defendant’s parking lot lacked

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a properly configured van accessible disabled parking space,

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accessibility route, and appropriate signage.

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Plaintiff requested that the parking lot be brought into compliance

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within ninety days.

Id.

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2

Id.

Compl. ¶ 3.

In the letter,

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Four months after sending the letter, on July 12, 2010,

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Plaintiff visited the Overlook to allegedly obtain rental

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information, but encountered the same accessibility barriers he

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complained about in his March 2, 2010 letter.

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Since Plaintiff could not access the rental office, he left.

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On July 28, 2010, Plaintiff returned a second time to the Overlook,

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but claims that he left after observing that the parking lot

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remained non-compliant.

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Johnson Decl. ¶ 2.
Id.

Johnson Decl. ¶ 4.

On September 3, 2010, Plaintiff filed the instant Complaint

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alleging Defendant violated Title III of the ADA by having an

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improperly configured van accessible disabled parking space,

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accessibility route, and appropriate signage.

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Plaintiff sought injunctive relief to require Defendant to remove

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all architectural barriers related to his disability under the ADA

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and monetary damages pursuant to California Civil Code §§ 51, 52.

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Compl. at 18-19.

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Compl. ¶¶ 11-20.

Defendant filed its Motion for Summary Judgment and an Order

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Declaring Plaintiff a Vexatious Litigant on May 4, 2012.

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Mot. for Summ. J. (“MSJ”) (Doc. #10).

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than oppose the MSJ, Plaintiff filed a Request for Dismissal with

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Prejudice on May 10, 2012 contending that since Defendant removed

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the architectural barriers, this action is moot (Doc. #18).

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Defendant filed Objections to Plaintiff’s Request for Dismissal on

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May 15, 2012 arguing that the action should not be dismissed

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because Plaintiff is requesting a voluntary dismissal only to avoid

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a near-certain adverse ruling (Doc. #19).

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Plaintiff’s Request for Dismissal on May 16, 2012 (Doc. #20).

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Def.’s

Shortly thereafter, rather

The Court denied

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II.
A.

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OPINION

Legal Standard
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Summary Judgment

Summary judgment is appropriate when “the pleadings,

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depositions, answers to interrogatories, and admissions on file,

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together with affidavits, if any, show that there is no genuine

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issue as to any material fact and that the moving party is entitled

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to a judgment as a matter of law.”

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Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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Fed. R. Civ. P. 56(c); Celotex

Plaintiff does not dispute any of the facts listed in

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Defendant’s Motion for Summary Judgment.

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summary judgment, “there can be no genuine issue as to any material

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fact, since a complete failure of proof concerning an essential

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element of the nonmoving party’s case necessarily renders all other

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facts immaterial.”

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omitted).

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facts, the Court accepts all of Defendant’s facts as true.

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B.

To grant a motion for

Celotex, 477 U.S. at 323 (internal quotations

Since there are no genuine issues as to any material

Claims for Relief
1.

The Americans With Disabilities Act

The American with Disabilities Act of 1990 (“ADA”), 42 U.S.C.

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§ 12182, was enacted “to provide clear, strong, consistent,

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enforceable standards addressing discrimination against individuals

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with disabilities.”

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premised on Congress's finding that discrimination against the

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disabled is “most often the product, not of invidious animus, but

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rather of thoughtlessness and indifference,” of “benign neglect,”

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and of “apathetic attitudes rather than affirmative animus.”

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Alexander v. Choate, 469 U.S. 287, 295–96 (1985).

42 U.S.C. § 12101(b)(2).

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Its passage was

The concept of

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“discrimination” under the ADA “does not extend only to obviously

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exclusionary conduct — such as a sign stating that persons with

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disabilities are unwelcome, but rather the ADA proscribes more

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subtle forms of discrimination — such as difficult-to-navigate

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restrooms and hard-to-open doors — that interfere with disabled

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individuals' ‘full and equal enjoyment’ of places of public

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accommodation.”

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939, 946 (9th Cir. 2011) (quoting 42 U.S.C. § 12182(a)).

Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d

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A disabled person claiming access discrimination must

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establish Article III standing in order to maintain a suit under

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the ADA.

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available to a private litigant under the ADA is an injunction,

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Plaintiff has the burden of proving both an injury in fact and the

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real threat of future injury.

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standing to pursue injunctive relief by proving either an injury-

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in-fact coupled with an intent to return or deterrence from

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returning to the premises.

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view of constitutional standing in disability access cases.

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946.

Chapman, 631 F.3d at 946.

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a.

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Id.

Because the only remedy

An ADA plaintiff may show

Id. at 944.

Courts are to take a broad
Id. at

Injury-in-Fact and Intent to Return
(i) Injury-in-Fact

Because the ADA Accessibility Guidelines (“ADAAG”) establish

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the technical standards required for “full and equal enjoyment,” if

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a barrier violating these standards relates to a plaintiff's

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disability, it will impair the plaintiff's full and equal access,

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which constitutes “discrimination” under the ADA.

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F.3d at 947.

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element.

Chapman, 631

That discrimination satisfies the “injury-in-fact”

Id.
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Defendant argues that Plaintiff did not suffer an injury-in-

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fact because he only photographed the alleged barriers and did not

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personally encounter them.

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accessible space was not properly configured, he could not exit the

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car using his wheelchair lift and had to leave the premises before

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entering the rental office.

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Plaintiff counters that because the van

Because Plaintiff is a quadriplegic, he requires the use of a

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wheelchair and wheelchair lift.

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accessible parking space violated the ADAAG and subsequently

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impaired Plaintiff’s full and equal access to the premises.

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Plaintiff has shown an injury-in-fact.

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The improperly configured van

Thus,

(ii) Intent to Return
“Although encounters with the noncompliant barriers related to

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one's disability are sufficient to demonstrate an injury-in-fact

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for standing purposes, a plaintiff seeking injunctive relief must

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additionally demonstrate ‘a sufficient likelihood that he will

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again be wronged in a similar way.’”

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(citing City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)).

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Chapman, 631 F.3d at 948

Defendant argues that Plaintiff is unlikely to return to the

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apartment complex.

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engage in the “futile gesture” of actually returning to the

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inaccessible place of public accommodation, but that he would like

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to be able to return once the violations are cured.

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Plaintiff counters that he is not required to

To determine whether a plaintiff's likelihood of returning to

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a place of public accommodation is sufficient to confer standing,

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courts examine factors such as “(1) the proximity of defendant’s

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business to plaintiff's residence, (2) plaintiff's past patronage

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of defendant's business, (3) the definitiveness of plaintiff's
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plans to return, and (4) the plaintiff's frequency of travel near

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defendant.”

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WL 1037467 at *5 (E.D. Cal. Mar. 27, 2012) (citing D’Lil v.

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Stardust Vacation Club, CIV-S-00-1496DFl PAN, 2001 WL 1825832 at *3

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(E.D. Cal. Dec. 21, 2001)).

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Lema v. Comfort Inn, Merced, 1:10-cv-00362-SMS, 2012

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A.

Proximity of Place of Public Accommodation

The location of Defendant’s apartment complex to Plaintiff’s

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residence is approximately fifteen miles.

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the relatively close proximity between the complex and the

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Plaintiff’s residence tilts slightly in favor of the Plaintiff.

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Thus, the Court finds

B.

Past Patronage of Public Accommodation

Before Plaintiff’s July 12, 2010 visit, he had never been to

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the Overlook.

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the Court finds this factor strongly favors the Defendant.

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Johnson Depo. Excerpt at 64:25-65:1-2.

C.

Therefore,

Definitiveness of Plans to Return

Currently, Plaintiff has no ties to Folsom, California where

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the Overlook is located.

Plaintiff does not know anyone in the

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facility, nor has he ever known anyone who resided there.

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64:25-65:2.

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in Carmichael and attends school in Rocklin.

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The apartment complex is neither close to Rocklin nor in between

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Carmichael and Rocklin.

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no definitive plan to return.

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he has no specific plans to revisit the facility until the action

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is resolved and the property altercations are complete).

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‘some day’ intentions - without any description of concrete plans,

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or indeed even any specification of when the some day will be - do

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not support a finding of the ‘actual or imminent’ injury.”

Id. at

Plaintiff lives in Carmichael; Plaintiff’s son lives

See Aerial Map.

Johnson Decl. ¶ 7.

Plaintiff has expressed

See Id. at 64:16-24 (testifying that

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“Such

Lujan

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v. Defenders of Wildlife, 504 U.S. 555, 564 (1992).

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indicate Plaintiff has no definite intent to return to the

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Overlook, thus this factor strongly favors the Defendant.

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These facts

Additionally, Defendant argues that Plaintiff’s extensive

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litigation history undermines his professed intent to return.

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Defendant cites Molski v. Mandarin Touch Restaurant, in which a

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Central District Court found Molski’s litigation history undercut

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his credibility and belied his professed intent to return to the

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restaurant.

385 F.Supp.2d 1042, 1046 (C.D. Cal. 2005).

Defendant

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points out that in addition to looking for an apartment at the

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Overlook, on July 12, 2012, Plaintiff visited between five and ten

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other facilities.

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Johnson Depo. Excerpt at 68:1-6.

Since Mandarin Touch Restaurant, the Ninth Circuit has opined

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that courts must be cautious about affirming credibility

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determinations that rely on a plaintiff’s past ADA litigation.

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D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1040

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(9th Cir. 2008) (“For the ADA to yield its promise of equal access

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for the disabled, it may indeed be necessary and desirable for

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committed individuals to bring serial litigation advancing the time

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when public accommodations will be compliant with the ADA. . . .

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Accordingly, [courts] must be particularly cautious about affirming

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credibility determinations that rely on a plaintiff's past ADA

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litigation.”).

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has no definite intent to return to the Overlook based on the facts

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of the case and not on Plaintiff’s litigation history.

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See

Thus, the Court bases its finding that Plaintiff

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D. Frequency of Travel Near Public Accommodation
Plaintiff presents no evidence that he has specific ties to

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Folsom or the Overlook.

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Therefore, this factor strongly favors the

Defendant.

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In summary, the Court finds while Plaintiff has shown an

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injury-in-fact, he has not demonstrated an intent to return to the

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Overlook.

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b.

Deterrence From Returning to the Premises

Demonstrating injury-in-fact coupled with an intent to return

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is but one way for an injured plaintiff to establish Article III

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standing.

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if he is deterred from visiting a noncompliant accommodation

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because he has encountered barriers related to his disability

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there.”

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must be sufficiently “imminent” to permit a plaintiff to sue for

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injunctive relief.

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1034, 1040-41 (9th Cir. 2008) (finding that plaintiff suffered an

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imminent harm because the ADA violations barred him from

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patronizing a convenience store and plaintiff demonstrated an

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intent to return annually once the barriers were removed); Pickern

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v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002)

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(holding that plaintiff has standing because the alleged ADA

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violations prevented plaintiff from shopping at his preferred

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grocery store, causing plaintiff to suffer an “imminent injury”).

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“A disabled individual also suffers a cognizable injury

Chapman, 631 F.3d at 949.

The threat of future injury

Id.; see also Doran v. 7-Eleven, Inc., 524 F.3d

As discussed supra, though Plaintiff testifies that the ADA

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violations deter him from returning to the Overlook and that he

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would like to return once the property altercations are complete,

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he presents no corroborating evidence.
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Thus, the Court finds that

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while the ADA violations deterred Plaintiff from his full and equal

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enjoyment of the apartment complex, he completely failed to prove

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that he was likely to return to the Overlook.

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failed to satisfy the “imminent injury” requirement.

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524 F.3d at 1040 (9th Cir. 2008) (plaintiff alleged that he has

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plans to visit the convenience store at least once a year on his

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annual trips to Disneyland); Pickern, 293 F.3d at 1135 (plaintiff

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alleged that the grocery store is near his grandmother and he would

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like to patronize that store when he visits her).

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Plaintiff has, thus,
C.f. Doran,

Accordingly, the Court finds that Plaintiff lacks standing.

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Plaintiff has not demonstrated a real and immediate threat of

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repeated injury in the future.

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case for lack of subject matter jurisdiction and DENIES Defendant’s

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Motion for Summary Judgment as moot.

Therefore, the Court DISMISSES this

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2.

Vexatious Litigant

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The Court’s lack of subject matter jurisdiction does not

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strip it of its power to award sanctions.

28 U.S.C. § 1919; Wilson

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v. Kayo Oil Co., 535 F.Supp.2d 1063, 1072 (S.D. Cal. 2007) (citing

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Branson v. Nott, 62 F.3d 287, 293 n. 10 (9th Cir. 1995).

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Court now turns to issue of whether Plaintiff is a vexatious

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litigant.

Thus, the

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“[T]here is strong precedent establishing the inherent power

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of federal courts to regulate the activities of abusive litigants

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by imposing carefully tailored restrictions under the appropriate

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circumstances.”

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Cir. 1990).

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enjoining litigants with abusive and lengthy histories is one such

De Long v. Hennessey, 912 F.2d 1144, 1147 (9th

Under the power of 28 U.S.C. § 1651(a) (1988),

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form of restriction that the district court may take, however, such

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pre-filing orders should be rarely filed.

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Id.

To issue a pre-filing order, “[t]he plaintiff’s claims must

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not only be numerous, but also be patently without merit.”

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United States, 906 F.2d 467, 470 (9th Cir. 1990).

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cannot issue merely upon a showing of litigiousness.”

Moy v.

“An injunction
Id.

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The Ninth Circuit requires four factors be proven before a

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plaintiff may be declared a vexatious litigant: (1) a plaintiff

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must be given adequate notice to oppose a restrictive pre-filing

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order before it is entered; (2) a trial court must present an

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adequate record for review by listing the case filings that support

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its order; (3) the trial court must further make substantive

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findings as to the frivolousness or harassing nature of the

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plaintiff's filings; and (4) the order must be narrowly tailored to

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remedy only the plaintiff's particular abuses.

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920 F.2d 614, 617 (9th Cir. 1990).

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a.

O'Loughlin v. Doe,

Adequate Notice

Defendant filed a motion asking the Court to issue an order

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declaring Plaintiff a vexatious litigant on May 4, 2012.

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opposed the motion on June 6, 2012.

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that Plaintiff had adequate notice and an opportunity to respond.

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b.

Plaintiff

Therefore, the Court finds

Record for Review

“An adequate record for review should include a listing of all

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the cases and motions that led the district court to conclude that

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a vexatious litigant order was needed.

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needs to show, in some manner, that the litigant's activities were

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numerous or abusive.”

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omitted).

At the least, the record

De Long, 912 F.2d at 1147 (internal citation

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Defendant presents the Court with a comprehensive list of over

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2,000 cases organized by name and number.

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(Doc. #12-1).

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terms of the listing of cases but, as discussed below, is lacking

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in proof that the litigant’s activities were abusive.

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See Finnerty Decl.

The Court finds the record for review is adequate in

c.

Frivolousness or Harassing Nature of Claims

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This is the heart of the vexatious litigant analysis.

The

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district court must “look at both the number and content of the

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filings as indicia of the frivolousness of the litigant’s claims.”

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Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1059 (9th Cir.

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2007) (internal quotations omitted).

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court to make substantive findings as to the frivolous or harassing

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nature of the litigant’s actions.”

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“[I]t is incumbent on the

De Long, 912 F.2d at 1148.

Defendant argues that nearly all of Plaintiff’s complaints

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contain the same boilerplate language, Plaintiff’s contrived

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allegations are not credible, Plaintiff claims duplicitous

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injuries, and Plaintiff has a high settlement rate.

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Plaintiff counters by distinguishing this action from Molski

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v. Evergreen Dynasty Corp., a case in which the Ninth Circuit

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affirmed the district court’s order declaring the plaintiff a

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vexatious litigant.

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Dynasty, the plaintiff, Molski, traveled to several restaurants on

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the same day, several days in a row, and alleged that at each

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restaurant he injured his shoulders in the process of transferring

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himself from his wheelchair to the toilet.

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Evergreen Dynasty court found that Molksi had plainly lied in his

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filings because the court did not believe he suffered thirteen

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nearly identical injuries, generally to the same part of his body,

500 F.3d 1047 (9th Cir. 2007).

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In Evergreen

500 F.3d at 1051.

The

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in the course of performing the same activity, over a five-day

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period.

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file suit to rack up daily damages.

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Dynasty court found this strategy evidenced an intent to harass

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businesses into settlements.

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argues that he includes at least one written notice and a period

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for which the defendant could remove the barriers before filing

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suit.

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damages or actual damages in excess of the statutory minimum.

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Id. at 1052.

Additionally, Molski often waited a year to

Id.

Id. at 1060.

The Evergreen

Plaintiff, on the other hand,

Furthermore, he argues that he does not ask for daily

The Court finds that while Plaintiff has filed a high volume

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of cases, it cannot say with any certainty that all, or even a

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majority of the cases are so frivolous or harassing as to warrant

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the conclusion that Plaintiff is a vexatious litigant.

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instant case, for example, the evidence appears to support a

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conclusion that Defendant violated the ADA.

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Defendant’s argument that the instant lawsuit is frivolous because

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Plaintiff engages in duplicitous injury claims is based upon

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Defendant’s assertion that “[t]hese benign parking elements are not

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the kind of architectural barriers that give rise to [humiliation,

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embarrassment, emotional damage and minimal physical injury].”

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at 22:27-28.

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and indifference” the ADA is designed to discourage.

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Choate, 469 U.S. 287, 295–96 (1985).

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Plaintiff’s cases are frivolous because Plaintiff lacks standing to

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prosecute those cases.

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case for lack of standing, “[m]erely because a claim lacks

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jurisdiction does not make the claim per se frivolous.”

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912 F.2d at 1148.

In the

Furthermore,

MSJ

That argument demonstrates the exact “thoughtlessness
Alexander v.

Defendant also argues that

While the Court is dismissing the instant

De Long,

Additionally, Defendant’s argument that
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Plaintiff’s other cases must lack standing because they are

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textually and factually similar to the instant case is unsupported

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by the evidence before the Court.

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about the merits of cases not before it.

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The Court will not speculate

Finally, Defendant’s argument that Plaintiff’s high settlement

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rate evinces harassing legal tactics is unpersuasive.

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provides no support that a high settlement rate demonstrates a

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harassing litigation strategy.

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for speculation.

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11

d.

Defendant

Additionally, that argument calls

Narrowly Tailored Remedy

Narrowly tailored orders are needed to “prevent infringement

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on the litigator’s right of access to the courts.”

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F.2d at 1148 (internal citation omitted). The Court does not have

14

to reach this issue because it finds that Defendant failed to

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provide sufficient evidence to support a substantive finding as to

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the frivolousness or harassing nature of Plaintiff’s filings.

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DeLong, 912

Accordingly, after evaluating the DeLong factors, the Court

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finds that an order declaring Plaintiff a vexatious litigant is not

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warranted.

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Plaintiff a vexatious litigant is DENIED.

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3.

Thus, Defendant’s motion for an order declaring

Sanctions

The District Court has the inherent power to levy sanctions in

23

response to abusive litigation practices.

24

Piper, 447 U.S. 752, 765–66 (1980).

25

power to award attorney's fees for bad faith conduct.”

26

Sound Corp. v. Bumper Indus., 352 F.3d 1210, 1220 (9th Cir. 2003).

27

Furthermore, the Local Rules allow the Court to use its inherent

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power to sanction for noncompliance with its rules.
14

Roadway Express, Inc. v.

“A district court has inherent
Earthquake

L.R. 110.

1

This Court has adopted the Rules of Professional Conduct for the

2

State Bar of California and the Model Rules of Professional

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Responsibility of the American Bar Association may be considered

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for guidance.

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L.R. 180(e).

Despite the Court’s refusal to grant Defendant’s motion for

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an order finding Plaintiff to be a vexatious litigant, the Court

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still believes that sanctions should be imposed against Plaintiff

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in the instant case for his failure to dismiss this lawsuit after

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it became clear that he lacked standing.

Plaintiff presumably

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relied on the 2002 Ninth Circuit case Pickern v. Holiday Quality

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Foods Inc. to support his apparent belief that did not need to

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engage in a “futile gesture” of actually returning to the Overlook

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to establish standing.

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that argument might have been plausible when the Complaint was

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filed in 2010, in January 2011, in Chapman v. Pier 1 Imports (U.S.)

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Inc., the Ninth Circuit clarified the standing requirements for ADA

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Plaintiffs.

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plaintiff lacks standing “if he is indifferent to returning to the

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[place of public accommodation] or if his alleged intent to return

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is not genuine.”).

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any fact or present any evidence of an imminent injury supported by

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a concrete or genuine intent to return to the Overlook.

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Furthermore, Plaintiff never sought leave to amend his Complaint to

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meet the Chapman standing requirements.

293 F.3d 1133, 1133 (9th Cir. 2002).

While

631 F.3d 939, 953 (9th Cir. 2011) (holding that a

As discussed supra, Plaintiff fails to allege

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Once Chapman was issued in January 2011, Plaintiff had a

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professional obligation to dismiss this lawsuit, since he knew, at

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that time, that there were no facts to support his belief that he

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had standing.

See Model R. of Prof’l Conduct Rule 3.1 (“A lawyer
15

1

shall not bring . . . a proceeding . . . unless there is a basis in

2

law. . . .”); Model R. of Prof’l Conduct R. 3.3(a)(2) (“A lawyer

3

shall not knowingly fail to disclose to the tribunal legal

4

authority . . . known to the lawyer to be directly adverse to the

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position of the client. . . .”).

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May 10, 2012, well over a year after Chapman was issued, and after

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Defendant had already filed its Motion for Summary Judgment, to

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voluntarily dismiss his case, on grounds unrelated to standing.

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Instead, Plaintiff waited until

The Court notes that this case is distinguishable from Wilson

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v. Kayo Oil Co., 563 F.3d 979, 980 (9th Cir. 2009).

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Ninth Circuit reversed the district court’s imposition of sanctions

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for lack of standing in an ADA case.

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that the Wilson district court’s standing decision was contrary to

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the Ninth Circuit’s opinion in Doran v. 7-Eleven, 524 F.3d 1034,

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1041 (9th Cir. 2008).

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while Plaintiff may have believed he had standing when he filed his

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case in 2010, Chapman made it abundantly clear that he lacked

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standing and, therefore, should have dismissed this action rather

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than allow it to continue for approximately eighteen additional

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months.

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Id.

There, the

The Ninth Circuit found

The instant case is distinguishable because

This Court has previously sanctioned Plaintiff for his failure

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to make a reasonable inquiry as to whether the factual allegations

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of his complaint had evidentiary support.

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No. 2:08-cv-02651-JAM-KJN, Doc. #24 (E.D. Cal. May 21, 2009).

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Similarly, in this case, Plaintiff failed to make a reasonable

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inquiry as to whether he had standing under the applicable law.

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an attorney who has filed over 2,000 ADA cases, Plaintiff should be

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well-aware of the requirements for standing under the ADA.
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See Johnson v. Kybych,

As

1
2

Thus, for all the aforementioned reasons, the Court finds that

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sanctions against Plaintiff should be imposed in the form of a

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reimbursement payment to Defendant for its reasonable attorneys’

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fees for the period from or about February 1, 2011 to the present.

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Before it can impose sanctions, however, the Court is required to

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provide notice to Plaintiff of exactly which conduct is

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sanctionable and give him an opportunity to show cause as to why

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sanctions should not be imposed.

See In re DeVille, 361 F.3d 539,

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549 (9th Cir. 2004).

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required notice.

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response to this Order to Show Cause by August 10, 2012.

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same time, the Court invites Defendant’s counsel to submit a

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supplemental affidavit with billing timesheets by August 10, 2012

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demonstrating the amount of attorneys’ fees and costs incurred by

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Defendant between February 1, 2011 and the present.

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for guidance. Upon receipt of this information, the Court will

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issue a supplemental Order setting forth the amount of sanctions,

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if any, to be paid by Plaintiff to Defendant.

This Order to Show Cause serves as the

The Court orders Plaintiff to submit a written
At the

See L.R. 293

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III. ORDER

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For the reasons set forth above:

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This action is DISMISSED for lack of subject matter

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jurisdiction;

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Defendant’s Motion for Summary Judgment is DENIED as moot;
and
Defendant’s Request for an Order Declaring Plaintiff
Vexatious Litigant is DENIED.
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Plaintiff and Defendant shall submit supplemental filings
in accordance with this Order by August 10, 2012.
IT IS SO ORDERED.
Dated:

July 20, 2012.

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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