Langer v. Kiser et al

Filing 90

ORDER Denying Plaintiff's Motion in Limine No. 1 to Exclude [ECF Nos. 65 , 66 ]. Signed by Judge Roger T. Benitez on 9/30/2020. (tcf)

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Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.635 Page 1 of 20 1 ~-------------...., 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 CHRIS LANGER, ) Case No.: 3:18-cv-00195-BEN-NLS ) Plaintiff, ) ORDER DENYING PLAINTIFF'S v. ) MOTION IN LIM/NE NO. 1 TO )EXCLUDE MILAN KISER, in individual and representative caP.acity as trustee of the ) Milan and Diana Kiser Revocable Trust dated August 19 2003; DIANA KISER, ) [ECF Nos. 65, 66] in indivicrual and representative C1!_t1acity ) as trustee of the Miran and Diana Kiser Revocable Trust dated August 19, 2003, ) ) Defendants. ) 19 20 I. INTRODUCTION 21 Plaintiff Chris Langer ("Plaintiff') brings this action under the Americans with 22 Disabilities Act of 1990, 42 U.S.C. § 12101, et. seq. (the "ADA"), against Defendants 23 Milan and Diana Kiser, as individuals and in their representative capacities as trustees of 24 the Milan and Diana Kiser Revocable Trust dated August 19, 2003 (collectively, 25 "Defendants") for discrimination by failing to provide full and equal access to the parking 26 lot they own that Plaintiff was unable to access due to his disabilities. ECF No. 1. 27 Before the Court is Plaintiffs Motion in Limine No. 1 to Exclude Evidence of 28 Plaintiffs Litigation History (the "Motion"). ECF No. 65. Defendant opposed Plaintiffs -1Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.636 Page 2 of 20 1 Motion. ECF No. 66. Plaintiff did not file a reply brief. The motions were submitted on the papers without oral argument pursuant to Civil 2 3 Local Rule 7 .1 ( d)( 1). After considering the papers submitted, supporting documentation, 4 and applicable law, the Court DENIES Plaintiffs Motion. 5 II. BACKGROUND 6 A. 7 Plaintiff Chris Langer ("Plaintiff'), is a paraplegic who uses a wheelchair for Statement of Facts 8 mobility. ECF No. 24-2 at 1:24. He has a disabled person parking placard and a 9 "specially equipped van with a ramp that deploys out of the passenger side." ECF No. 1 10 at 2:6-9. On February 27, 2017, Plaintiff went to the 1 Stop Smoke Shop (the "Smoke 11 Shop") and Gour Maine Lobster shop/Wallpaper store (the "Lobster Shop") "to shop at 12 the Smoke Shop and to check for pricing at the Lobster Shop." ECF No. 24-1, 13 Declaration of Chris Langer, at 1:27-2: 1-2. Plaintiff asserts that he encountered barriers 14 that prevented him from patronizing the businesses because there were no compliant 15 handicap-accessible parking spaces. ECF No. 1 at 4:14-21. Due to the inaccessible 16 condition of the parking lot, Plaintiff argues he was denied "full and equal access'' to the 17 property, which caused him "difficulty and frustration." ECF No. 1 at 5:18-19. Plaintiff 18 states that he (1) lives "about 10 minutes away from the Smoke Shop and the Lobster 19 Shop" (2) "would like the ability to safely and independently park and access the 20 Businesses," and (3) plans to vists the business "on a regular basis whenever" he is in the. 21 area. ECF No. 24-1 at 2:4-12. Although Plaintiff states he would like to visit the Smoke 22 Shop, see id, there is no evidence in the record that Plaintiff smokes. 23 Defendants are the trustees of the Milan and Diana Kiser Revocable Trust, which 24 owns the mixed-use real property located at 3002 Barnett Ave., San Diego, California 25 92110 (the "Property"). ECF No. 25 at3:8-1 l. The Property consists "of both residential 26 and commercial units" and is surrounded by one parking lot on the East side (the "East 27 Lot") and another parking lot on the West side (the "West Lot"). Id. at 3:10-11. 28 Defendants lease-the East Lot, which may only be accessed through gated entrances at -2Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.637 Page 3 of 20 1 the front and back, to residential tenants. ECF No. 25 at 3:14-17. At both entrances to 2 the East Lot, signs are posted stating, "OPEN PUBLIC PARKING PROHIBITED - NO 3 TRESPASSING." Id. at 3:17-20. "The owners of the Smoke Shop and Lobster Shop 4 each have a single parking space in the East lot, but for personal use only." Id. at 3: 15- 5 16. The West Lot, on the other hand, "is not leased to the 1 Stop Smoke Shop, rather it 6 is leased to an auto repair shop," and "[t]here are no signs indicating that any of the spaces 7 in the West lot are for either 1 Stop Smoke Shop or Gour Maine Lobster customers." 8 ECF No. 25-1 at 3:6-9 (emphasis in original). The sign in the Smoke Shop window that 9 says "PARKING" has an arrow pointing to the left of the store and "points to the West 10 towards the alley or street parking on the next block." Id. at 3:18-19. Defendants allege 11 that by attempting to park in the East Lot, a lot for Defendants' residential tenants, 12 Plaintiff trespassed in violation of the signs at each entrance, prohibiting public parking. 13 ECF No. 20 at 2. 14 B. Procedural History 15 On January 29, 2018, Plaintiff filed a Complaint in federal court alleging violations 16 of the ADA and Unruh Civil Rights Act. ECF No. 1 at ,r,r 44-60. Plaintiffs complaint 17 requests (1) "injunctive relief, compelling defendants to comply" with the ADA; (2) 18 "[d]amages under the Unruh Civil Rights Act, which damages provide for actual 19 damages and a statutory minimum of $4,000"; and (3) "[r]easonable attorney fees, 20 litigation expenses and costs of suit, pursuant to 42 U.S.C. § 12205; Cal. Civ. Code § 21 52." ECFNo. 1 at 11:8-17. 22 On March 23 and 26, 2018, Defendants filed'answer to the complaint. See ECF 23 Nos. 7, 8. On November 19, 2018, the Court entered an Order granting Defendants 24 Motion for Leave to Amend Answer and Add First Counterclaim for Trespass. ECF No. 25 19. On November 21, 2018, Defendants filed their Amended Answer and Counterclaim. 26 ECF No. 20. On November 12, 2019, Plaintiff filed an answer to the counterclaim 27 against him. ECF No. 55. 28 en February 10; 2020, the Final Pretrial Conference for thiscasewas held before -3Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.638 Page 4 of 20 1 the Hon. Roger T. Benitez, and the Minute Order for this conference provided that (1) 2 motions in limine must be filed by March 9, 2020 and (2) jury instructions must be filed 3 by April 27, 2020. ECF No. 62. On March 9, 2020, Plaintiff timely filed his Motion in Limine No. 1 to Exclude 4 5 Plaintiffs Litigation History. ECF No. 65. On March 23, 2020, Defendants filed an 6 opposition. ECF No. 66. Plaintiff has not filed a reply brief. 7 Ill. LEGALSTANDARD Rulings on motions in limine fall entirely within this Court's discretion. United 8 9 States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999) (citing Luce v. United States, 10 469 U.S. 38, 41-42 (1984)). Evidence is excluded on a motion in limine only if the 11 evidence is clearly inadmissible for any purpose. Mathis v. Milgard Manufacturing, Inc., 12 2019 WL 482490, at *1 (S.D. Cal. 2019). If evidence is not clearly inadmissible, 13 evidentiary rulings should be deferred until trial to allow questions of foundation, 14 relevancy, and prejudice to be resolved in context. See Bensimon, 172 F.3d at 1127 15 (recognizing that when ruling on a motion in limine, a trial court lacks access. to all the 16 facts from trial testimony). Denial ofa motion in limine does not mean that the evidence 17 contemplated by the motion will be admitted at trial. Id. Instead, denial means that the 18 court cannot, or should not, determine whether the evidence in question should be 19 excluded before trial. Id.; see also McSherry v. City ofLong Beach, 423 F.3d 1015, 1022 20 (9th Cir. 2005) (rulings on motions in limine are subject to change when trial unfolds). 21 IV. DISCUSSION 22 Plaintiff advances three primary arguments in his Motion .. First, he argues that his 23 litigation history is inadmissible, and as such, should be excluded. ECF No. 65-1 at 2: 14- 24 17. Second, he argues that any argument regarding tester standing should also be 25 26 excluded as both irrelevant and creating a substantial danger of undue prejudice. Id. at 6:9-12. Third, Plaintiff argues that his litigation history is not an appropriate basis for 27 questioning the sincerity of Plaintiffs intent to return. Id. at 9:1-2. Defendant responds - - - ±811-------~----- -4Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.639 Page 5 of 20 1 that ( 1) Plaintiffs litigation history is admissible for purposes of impeachment, ECF No. 2 66 at 4: 12-15, (2) evidence of Plaintiffs prior litigation history is not unduly prejudicial, 3 id. at 8:25-26, and (3) whether Plaintiff intends to return is "highly probative" of 4 Plaintiffs credibility, and as such, merits any time it may take to cross-examine Plaintiff 5 on that issue, id. at 10:7-16. The Court agrees that Plaintiffs litigation history should 6 not be excluded from trial and may be admissible for purposes of impeachment. 7 "The Americans with Disabilities Act (ADA) was signed into law by President 8 George H. W. Bush on July 26, 1990." H.R. REP. No.115-539, at 6-7 (2018) (citing 42 9 U.S.C. § 12101, et seq.). Its purpose was "to provide a clear and comprehensive national lO mandate for the elimination of discrimination against individuals with disabilities." Id. 11 Although enacted with the most laudable of purposes, the ADA has regrettably produced 12 unintended consequences, namely, extortion suits. 1 In response to vexatious litigants' 13 1 "During its relatively short existence, the ADA has attracted sharp criticism from judges, lawyers, and legal scholars as having been distorted by certain lawyers into a 15 cynical money-making scheme." See, e.g.,Doran v. Del Taco, Inc., 373 F.Supp.2d 1028, 16 1030-31 (C.D. Cal. 2005) (denying the plaintiffs motion for attorneys' fees). "Enterprising plaintiffs and their attorneys have found a way to circumvent the will of 17 Congress by seeking money damages while retaining federal jurisdiction." Doran, 373 18 F.Supp.2d at 1030. Due to the fact that "a violation of the ADA also frequently constitutes a violation of state law, plaintiffs can sue in federal court for injunctive relief 19 under the ADA and add state law claims for money damages." Id. Although the opinion 20 was ultimately vacated and remanded, the Doran opinion, in denying a plaintiffs motion 21 for attorneys' fees, described the perversion of the ADA best: 14 22 23 24 25 26 27 is- The ability to profit from ADA litigation has given rise to 'a cottage industry.' The scheme is simple: An unscrupulous law firm sends a disabled individual to as many businesses as possible in order to have him or her aggressively seek out all violations of the ADA. Then, rather than simply informing a business of the violations and attempting to remedy the matter through 'conciliation and voluntary compliance,' a lawsuit is filed, requesting damage awards that could put many of the targeted establishments out of business. Faced with costly ~ - - - -~lifiga1ion and a potentially drastic Judgment against th'_e_m_,_m_o-st-------j -5Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.640 Page 6 of 20 1 perversion of the ADA, on February 15, 2018, Congress even tried to pass the "ADA 2 Education and Reform Act of2017," which attempted to address perceived abuses of the 3 ADA. ADA Education and Reform Act of 2017, H.R. 620, Committee of the Whole 4 House, 115th Cong., Second Session, 1198-1200 (2018). Although it passed the House 5 of Representatives a vote of 225-192, see id, it was received in the Senate on February 6 26, 2018, and has not been passed into law. 164 Cong. Rec. Sl219-03, S1219 (2018). 7 The House Report for this bill noted that "[t]he ADA has, at least for these serial 8 plaintiffs, been changed from a remedial statute aimed at increasing accessibility into a 9 way for lawyers to make money." H.R. REP. 115-539, LEGISLATIVE HISTORY OF THE 10 ADA EDUCATION AND REFORM ACT OF 2017 (2018). "Businesses sued under the ADA . 11 .. are almost uniformly willing to fix their properties without the expense and hassle of 12 litigating in federal court." Id. 13 willingness to comply voluntarily with the ADA solely to vest plaintiffs' attorneys with 14 an entitlement to fees provides very little societal benefit." Id. Thus, "[h]aling them into court regardless of their 15 Here, Plaintiff admits he "is what the published case law calls a serial litigator." 16 ECF No. 65-1 at 2:8. A search ofPublic Access to Court Electronic Records ("PACER") 17 shows that since May 1, 2002, Chris Langer has been a plaintiff in 4 72 cases before the 18 Southern District. In the Central District, Plaintiff has been a plaintiff in 1,013 cases 19 since November 19, 2008. PACER shows a total of 1,498 cases in which the plaintiff is 20 21 businesses quickly settle. 22 23 24 25 26 27 ... [T]he result of this scheme is that 'the means for enforcing the ADA (attorney's fees) have become more important and desirable than the end (accessibility for disabled individuals).' Serial plaintiffs serve as 'professional pawn[s] in an ongoing scheme to bilk attorney's fees.' It is a 'type of shotgun litigation [that] undermines both the spirit and purpose oftheADA.' 28~ ·1Joran, 3 73~F~Supp.2ctat7~030~(mternal c1tat1ons omrttea). -6Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.641 Page 7 of 20 1 named "Chris Langer" throughout all courts on PACER. Accordingly, the Court takes 2 judicial notice that Chris Langer is a plaintiff in 1,498 federal cases. See FED. R. Evm. 3 201 (b )(1 )-(2) (providing that at any stage of a proceeding, courts may take judicial notice 4 of (1) facts not subject to reasonable dispute and "generally known within the trial court's 5 territorial jurisdiction" and (2) adjudicative facts, which "can be accurately and readily 6 determined from sources whose accuracy cannot reasonably be questioned"); see also 7 Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290, fn. 1 (9th Cir. 1996) 8 (taking judicial notice of court records); Enterprise Bank v. Magna Bank ofMissouri, 92 9 F.3d 743, 746 (8th Cir. 1996) (holding that the district court did not err by taking judicial 10 notice of pleadings in earlier related proceedings). Defendants also note that Plaintiff 11 has filed "approximately 300 cases in San Diego Superior Court." ECF No. 66 at 7:3. 12 As discussed below, this Court holds that evidence of Plaintiffs litigation history 13 (1) is not inadmissible; (2) may be relevant to tester standing; and (3) is an appropriate 14 basis for questioning the sincerity of Plaintiffs intent to return to Defendants' Property. 15 A. 16 Plaintiff argues that his litigation history is inadmissible because it (1) is irrelevant, 17 (2) necessitates undue consumption of time, and (3) creates a substantial danger of undue 18 prejudice. ECF No. 65-1 at 2:14-17. Defendant argues that Plaintiffs litigation history 19 is admissible for purposes of impeachment. ECF No. 66 at 4:12-15. While the Court 20 will not rule that the evidence is admissible, as Defendants must lay foundation for all 21 evidence they seek to admit at trial, the Court will not issue a ruling excluding evidence _ 22 of Plaintiffs litigation history from coming in at trial. 23 24 25 26 27 Plaintiff's Litigation History Is Not Inadmissible. Relevant evidence is admissible unless the United States Constitution, a federal statute, the Rules of Evidence, or other rules prescribed by the Supreme Court of the United States provide otherwise. FED. R. EVID. 402. However, even where evidence is relevant, it may not be admissible. Id. Under Rule 403 of the Federal Rules of Evidence, "[t]he court may exclude relevant evidence if its probative value is substantially ~~~~28--l------~-----------'----------------~-------t--------11 -7Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.642 Page 8 of 20 1 outweighed by a danger of one or more of the following: unfair prejudice, confusing the 2 issues, misleading the jury, undue delay, wasting time, or needlessly presenting 3 cumulative evidence." FED. R. EVID. 403. 4 First, and as analyzed below, Plaintiff's litigation history-especially the 1,013 5 cases filed in the Central District-are unquestionably relevant to Plaintiff's credibility 6 with respect to the legitimacy of his intent to return to businesses, and therefore, his 7 standing. While specific acts may not be used to prove conduct in conformity therewith 8 (e.g., in this case, Defendants should not be allowed to show that because Plaintiff never 9 returned to patronize businesses in other cases, he must not have intended to return in lO 11 this lawsuit), they are permissible to prove motive and intent. FED. R. EVID. 404(b)(2). 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Here, the Court believes the trier of fact may need to consider Plaintiff's litigation history when evaluating Plaintiff's motive and intent in filing this lawsuit. Second, the Court rejects Plaintiff's arguments that the probative value of introducing his litigation history is (1) substantially outweighed by the consumption of time or (2) unduly prejudicial to Plaintiff-especially given Plaintiff himself admits to being a serial litigator. 1. Plaintiff's Litigation History is Relevant. Plaintiff argues his litigation history is not relevant to the current lawsuit, and thus, should be excluded. ECF No. 65-1 at 3:1-2. Defendant reiterates that Plaintiff's litigation history is admissible for purposes of impeachment. ECF No. 66 at 4.:12-15. "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and. (b) the fact is of consequence in determining the action." Fed. R. Evid. 401. Here, in order to analyze what a fact of consequence would be in this case, we must analyze the claims for relief Plaintiff pursues. "A party invoking federal jurisdiction has the burden of establishing that it has satisfied the 'case-or-controversy' requirement of Article III of the Constitution; standing is a 'core component' of that requirement." D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,560 ---~18-•1-----------------------------------j---- -8Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.643 Page 9 of 20 I (1992)). "To establish standing, a plaintiff must demonstrate (1) a concrete and 2 particularized injury that is actual or imminent, not conjectural or hypothetical; (2) a 3 causal connection between the injury and the defendant's challenged conduct; and (3) a 4 likelihood that a favorable decision will redress that injury." Nat'! Family Farm Coalition 5 v. EPA, 966 F.3d 893,908 (9th Cir. 2020) (quoting Pyramid Lake Paiute Tribe ofIndians 6 v. Nev., Dep't of Wildlife, 724 F.3d 1181, 1187 (9th Cir. 2013))." 7 The evidence relevant to the standing inquiry consists of "the facts as they existed 8 at the time the plaintiff filed the complaint." D'Lil, 538 F.3d at 1036 (citing Skaff v. 9 Meridien North America Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir.2007)). In ADA 10 cases, the second prong of standing, or the "injury in fact" requirement, requires"the court 11 to determine whether the plaintiff "demonstrated that [his or] her injury was 'actual or 12 imminent' at the time that [he or] she filed [is or] her complaint." Id. (citing Lujan, 504 13 U.S. at 560). An ADA plaintiff seeking injunctive relief must satisfy this requirement 14 by demonstrating the plaintiff has "a sufficient likelihood that he will again be wrong in 15 a similar way" by establishing "a real and immediate threat of repeated injury." F ortyune 16 v. American Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir.2004) (quoting City of 17 Los Angeles v. Lyons, 461 U.S. 95, 1 U (1983) and O'Shea v. Littleton, 414 U.S. 488, 18 496 (1974)). 19 Both Plaintiff and Defendant cite to D 'Lil v. Best W. Encina Lodge & Suites as 20 instructive on the relation of an ADA plaintiffs litigation history to standing, and the 21 Court agrees that D'Lil merits careful consideration. 538 F.3d at 1035. In D'Lil, the 22 plaintiff was a paraplegic who, like Plaintiff, required the use of a wheelchair for 23 mobility. Id. at 1033. The plaintiff worked as an "accessibility consultant," meaning 24 that she contracted "with private attorneys and local governments to evaluate properties 25 for barriers to disabled access." D'Lil, 538 F.3d at 1034, n. 1. She "traveled from her 26 home in Sacramento to Santa Barbara, California in order to conduct a property 27 inspection for [an] attorney" and encountered numerous barriers to access. Id. at 1034. ~--~18--f--------------------------------~------i -9Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.644 Page 10 of 20 1 After her trip, she filed suit against the defendant hotel, "seeking injunctive relief under 2 Title III of the ADA, injunctive relief and damages under California civil rights laws, as 3 well as attorney's fees, litigation expenses, and costs." Id. 4 litigation, the parties entered into a consent decree that settled all issues related to 5 injunctive relief and damages" but reserved "[t]he issue of attorney's fees, litigation 6 expenses, and costs ... for future resolution." Id. When the plaintiff filed her motion 7 for attorney's fees, the district court, sua sponte, expressed concern over whether the 8 plaintiff had standing to sue and asked the parties to brief the issue. Id. "After three years of 9 On appeal, the Ninth Circuit reversed the district court's finding that the plaintiff 10 lacked standing. D'Lil, 538 F.3d at 1041. First, the court noted that "[f]ederal courts 11 are required sua sponte to examine jurisdictional issues such as standing." Id. at 1035 12 13 14 15 16 17 18 19 20 21 22 (citing Bernhardt v. County ofLos Angeles, 279 F.3d 862, 868 (9th Cir. 2001) (internal quotations omitted). In the context of suits for injunctive relief filed pursuant to the ADA, a plaintiff establishes the "actual or imminent" injury requirement for standing by showing an 'intent to return to the geographic area where the accommodation is located and a desire to visit the accommodation ifit were made accessible." Id. at 1037. The court reviewed evidence in the record that the plaintiff had given "detailed reasons as to why she would prefer to stay at the Best Western Encina during her regular visits to Santa Barbara" and "testified to three upcoming trips that she was planning to the Santa Barbra area." Id. at 1038. As a result, the Ninth Circuit concluded that the district court erred in finding that the plaintiff had "failed to provide evidence of her intent to return at the time that she filed suit." Id. at 1039. Thus, the court held that the plaintiff had 23 24 "established that she suffered an 'actual or imminent' injury sufficient to confer standing." Id. 25 26 27 Notably, in D 'Lil, "the district court explicitly declined to decide the credibility issue, relying instead on the ground that D'Lil did not introduce evidence of her intent to return in December 2002 to find that she lacked standing." D'Lil, 538 F.3d at 1039. ---~28~··~--------------------~~---------- -10Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.645 Page 11 of 20 1 However, the Ninth Circuit noted that to the extent the district court's concerns about the 2 plaintiffs credibility "might be viewed as an adverse credibility finding," the court 3 rejected the legal reasoning on which that finding was based. Id. at 1039-40. It reasoned 4 · that "[t ]he attempted use of past litigation to prevent a litigant from pursuing a valid claim 5 in federal court warrants our most careful scrutiny." Id. at 1040. Ultimately, the court 6 rejected the district court's credibility determination. Id. However, it did not reject the 7 credibility determination because it is per se improper to consider litigation history. Id. 8 Rather, the Ninth Circuit determined that the district court, in arriving at its credibility 9 determination, had engaged in speculation, and the ultimate determination as to the lO plausibility of the plaintiffs intent to return was undermined by evidence that the plaintiff 11 did, in fact, travel frequently throughout the state. Id. 12 13 14 15 16 17 18 19 20 In the D'Lil court's discussion of the considerations courts should bear in mind when deciding to consider past litigation history in ADA cases, it relied on the case of Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007). In Molski, the Ninth Circuit affirmed the district court's decision to enter pre-filing orders against the plaintiff and his lawfirm, stating that it could not "say that the district court abused its discretion in declaring Molski a vexatious litigant and in imposing a pre-filing order against him." 500 F.3d at 1050, 1062. The Molski plaintiff was paralyzed from the chest down, required a wheelchair, and had filed more than 400 lawsuits within the federal courts in California. Id. at 1050. He filed suit against the defendants, who promptly filed 21 22 a motion to have the plaintiff declared a vexatious litigant, which the district court granted, after considering the plaintiffs litigation history. Id. at 1051. The Ninth Circuit, 23 . 24 25 26 27 in reviewing the district court's consideration of the plaintiffs litigation history, reiterated why courts need to exercise caution when considering litigation history: We recognize that the unavailability of damages reduces or removes the incentive for most disabled persons who are injured by inaccessible places of public accommodation to bring suit under the ~---28~··~----------='-------=-----------~~-------+.-.--a -11Case#; 3;!8-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.646 Page 12 of 20 1 2 3 4 5 6 7 8 9 10 11 ADA. As a result, most ADA suits are brought by a small number of private plaintiffs who view themselves as champions of the disabled. District courts should not condemn such serial litigation as vexatious as a matter of course. For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA. But as important as this goal. is to disabled individuals and to the public, serial litigation can become vexatious when, as here, a large number of nearly-identical complaints contain factual allegations that are contrived, exaggerated, and defy common sense. False or grossly exaggerated claims of injury, especially when made with the intent to coerce settlement, are at odds with our system ofjustice, and Molski' s history of litigation warrants the need for a pre-filing review of his claims. 12 Molski, 500 F.3d at 1062 (citing Samuel R. Bagenstos, The Perversity of Limited Civil 13 Rights Remedies: The Case of "Abusive" ADA Litigation, 54 U.C.L.A. L.Rev. 1, 5 14 (2006); De Long v. Hennessey, 912 F.2d 1144, 1148, n. 3 (9th Cir. 1990)). 15 When considering the aforementioned cases, Plaintiffs argument that "[t]he law 16 is clear that Mr. Langer's litigation history is of no relevance to the outcome of the 17 action," ECF No. 65-1 at 5 :25-26, is clearly incorrect. Courts have considered litigation 18 history, such as in Molski, but must do so with caution. Defendants, on the other hand, 19 correctly note that "[c]ourts have regularly raised credibility issues in ADA litigation 20 involving serial plaintiffs." ECF No. 66 at 9: 15-18 (citing Harris v. Stonecrest Care Auto 21 Center, LLC, 472 F.Supp.2d 1208, 1213 (S.D. Cal. 2007)). For instance, in another case 22 before this district court, Harris v. Stonecrest Care Auto Center, LLC, the plaintiff, like 23 Mr. Langer, was disabled and had difficulty walking, requiring braces or a wheelchair 24 and filed suit alleging he encountered a number of barriers while at a Shell gas station. 25 Harris, 472 F.Supp.2d at 1210. The plaintiff also pursued claims under the ADA and 26 27 Unruh Act and tried the case before the Court without a jury. Id. At the close of the plaintiffs case, the defendants moved for judgment as a matter of law, contending that -12Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.647 Page 13 of 20 1 "Plaintiff lacked Article III standing to bring his federal claims." Id. In the Court's 2 findings of fact and conclusions of law after the trial, the Court found the plaintiff's 3 testimony to be unreliable. Id. at 1212. In doing so, it acknowledged the right oflitigants 4 to file ADA lawsuits to remedy denial of access violations but noted that "the reality is 5 he has sued so many different establishments that it is impossible to believe that he 6 routinely visits the same establishments on each of his visits to San Diego." Id. at 1213. 7 The Harris opinion explicitly referred to the relevance of multiple lawsuits and rise of 8 "legal shakedown sheme[s]." Id. at 1215. In order to deal with the high-volume of ADA 9 cases, "[f]ederal courts must be diligent in observing standing requirements." Id. at 1215 10 11 12 13 14 (citing B.C. v. Plumas Unified School Dist., 192 F.3d 1260, 1264 (9th Cir.1999) (holding that federal courts are required to examine jurisdictional issues such as standing, even sua sponte, if necessary). Ultimately, the court held that "because, as of the date of filing, Mr. Harris was not likely to return to the Shell station, he lacks standing to bring a Title III claim." Id. at 1217. 15 16 17 18 19 20 21 22 23 The Harris court also acknowledged the "apparently contrary dicta regarding the relevance ofthe·plaintiff's motivation for visiting a business facility only for the purpose of initiating an ADA lawsuit." Id. at 1217. However, it determined that the cases 2 which ruled that a plaintiff had standing even if he or she visited a facility for the purpose of locating barriers to create pretext for litigation were distinguishable because those cases decided a motion to dismiss. Because at the pleading stage, courts assume the truth of a plaintiff's allegations, and therefore, must assume the plaintiff intends to return if he makes that allegation, those cases were distinguishable. Harris, 472 F.Supp.2d at 1218. See, e.g., Organization for Advancement of Minorities with Disabilities v. Brick 25 Oven Restaurant, 406 F.Supp.2d 1120 (S.D. Cal. 2005) (opining that the plaintiff's standing requirement in the ADA case would be met even ifhe visited the business solely 26 for the purpose of determining whether barriers exist so he could file suit); Molski v. 27 Arby's Huntington Beach, 359 F.Supp.2d 938,941 (C.D. Cal. 2005) (Arby's) (observing, in dicta, that "[i]t simply does not matter, from a jurisdictional and standing point of 2 8- view, what [a plaintiff's] motivation was for visiting [a business establishment]"). -1324 2 Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.648 Page 14 of 20 1 However, "the motivation behind a plaintiffs visit to a defendant business establishment 2 may inform the question of redressability (an element of standing) and therefore takes on 3 greater significance at later stages in litigation." Id. Accordingly, "[a] plaintiff who 4 visits a local business solely in order to bring a Title III claim (to which supplemental 5 state claims may be joined) fails to meet the redressability requirement for Article III 6 standing." Harris, 472 F.Supp.2d at 1219 This is because iflitigation is the sole purpose 7 for a plaintiffs visit to a particular business, "once litigation is complete it is unlikely 8 such a plaintiff will return to avail himself of the business' goods or services, or to visit 9 the local business for any other reason." Id. at 1219. Hence, "[a]ny permanent injunction lO 11 12 13 14 15 16 17 18 19 20 21 22 obtained in the course of litigation might benefit others, but it would not benefit the plaintiff." Id. On the other hand, "where a plaintiffs interests in patronizing or visiting the establishment extend beyond the end of litigation, injunctive relief may redress the plaintiffs injury." Id. The Harris court held "that an individual plaintiffs contact with a local establishment made solely for the purpose ofbringing a claim under Title III of the ADA, without more, is insufficient to confer Article III standing to seek injunctive relief." Harris, 472 F.Supp.2d at 1219-20 ("Because the Court finds Mr. Harris visited the Shell station solely for the purpose of bringing a Title III claim and supplemental state claims, any injunctive relief it might grant would not satisfy the redressability requirement for standing") (citing Lujan, 504 U.S. at 561). Given the Court concluded that the plaintiff lacked Article III standing to pursue claims under Title III of the ADA, the Court lacked jurisdiction to hear the plaintiffs ADA claim and dismissed it with prejudice. Id. at 23 24 25 26 27 1220. With "[t]he federal claim having been dismissed for want of jurisdiction," the Court could not "exercise supplemental jurisdiction to hear Mr. Harris' state law claims" and dismissed the state law claims without prejudice. Harris, 472 F.Supp.2d at 1220. With the Ninth Circuit's precautionary considerations enumerated in D'Lil and Molski in mind, this Court examines the potential reasons for admitting some or all of ---~~8--1-----------------~-----------~-----+--- -14Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.649 Page 15 of 20 1 Plaintiffs lawsuits and weighs the probative value against any unfair prejudice that may 2 arise due to the admission of such evidence. Admittedly, there is no disputing that 3 Defendants cannot admit Plaintiffs previous lawsuits for the sole purpose of proving 4 Plaintiff is a vexatious litigant. 5 character trait, or specific acts is not admissible to prove that on a particular occasion, 6 the person acted in accordance with that character or trait. FED. R. Evrn. 404(a)-(b). 7 Defendants do not dispute this, noting "prior lawsuits are inadmissible to show that the 8 plaintiff is litigious." ECF No. 66 at 4:5-6. However, Defendants correctly argue "such 9 evidence is admissible for other purposes, such as impeachment." Id. at 4:8-9 (emphasis 10 11 12 13 14 15 16 17 18 19 20 21 22 This is because evidence of a person's character, omitted). "Evidence of a witness's character may be admitted under Rules 607, 608, and 609," which relate to impeachment. FED. R. Evrn. 404(a)(3); see also Outley v. City of New York, 837 F.2d 587, 593 (2d Cir. 1988) (noting that "[i]mpeachment has been recognized as one of the 'other purposes' for which evidence of prior acts may be admissible"). Pursuant to Rule 607, "[a]ny party, including the party that called the witness, may attack the witness's credibility." FED. R. EVID. 607. On cross-examination, courts may permit inquiry into specific instances of a witness's conduct in order to attack the witness's character for truthfulness if they are probative of that witness's character for untruthfulness. FED. R. Evrn. 608(a). In this case, at Plaintiffs September 14, 2018 deposition, Plaintiff testified that he had filed 631 cases in the Central District, and although he did not live in the Los Angeles area at the time he filed those lawsuits, he intended to patronize those businesses again. ECF No. 66-1, Ex. A at 114:9-115:2-4. Nonetheless, Plaintiff also testified during his 23 deposition that he could not remember what kind of businesses (e.g., bars, restaurants, 24 25 26 27 etc.) he sued in Los Angeles. Id. To the extent Defendants seek to admit Plaintiffs litigation history for the purpose of showing that Plaintiffs testimony was not truthfulfor instance, by showing that some of the business became accessible, but Plaintiff nonetheless, did not patronize them-such testimony would be admissible under Rules ----2-8~U----------''----------"---------------~-------------t-----ll -15Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.650 Page 16 of 20 1 404, 607, 608, and 609 of the Federal Rules of Evidence. However, Defendants cannot 2 admit the lawsuits as evidence that Plaintiff fails to return to establishments as a general 3 matter unless Plaintiff was asked at his deposition whether he returned to those 4 establishments that he sued. That being said, Defendants argue that "Plaintiffs litigation 5 history raises serious credibility questions about his professed intent to return." ECF No. 6 66 at 8: 19-20. Defendants note that "[g]iven the high number of suits and identical 7 allegations, it is highly implausible that Plaintiff sincerely intends to return to every place 8 he sues." ECF No. 66 at 8:20-21. The court, sua sponte, takes judicial notice of the fact 9 that Plaintiff has filed previous lawsuits in which he admits he never intended to return 1 O to the premises. See, e.g., Langer v. Lapiz Properties Group, United States District Court 11 12 for the Southern District of California Case No. 3 :20-cv-0664-BEN-MDD3 (the "Lapiz Case"). 13 14 15 16 17 18 Further, evidence of specific acts, like Plaintiffs previous lawsuits, "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." FED. R. Evrn. 404(B)(2). "Prior acts include prior lawsuits." Batiste-Davis v. Lincare, Inc., 526 F.3d 377, 380 (8th Cir. 2008). The Court finds that Plaintiffs litigation history may feasibly be useful for other purposes under Rule 404. Plaintiffs arguments as to relevance fail to 19 20 3 21 22 23 24 25 26 27 2 In this case, also before the Hon. Roger Benitez, the defendants moved to dismiss Plaintiffs case by arguing that res judicata bars his April 6, 2020 lawsuit because on May 29, 2013, Langer filed essentially the same lawsuit against the same defendants (in addition to a third defendant) in San Diego County Superior Court as Case No. 37-201300050784-CL-CR-CTL (the "2013 Action") based on the same alleged violations of the ADA and UCRA with respect to the same property. Lapiz Case, ECF No. 10-1 at 2:4-8. In response, Plaintiff argues res judicata does not preclude his new lawsuit because his ADA claim could not have been brought in the prior lawsuit as "Langer had no intention of returning to the ... store and, therefore, had no standing to seek ADA injunctive relief." Lapiz Case, ECF No. 11 at 2:16-3:2; but see ECF No. 66-1, Ex. A, 116:13-17 (Plaintiff testified during his deposition in this case that with respect to the some 950 · cases he filed in the federal courts, he alleged he intended to return in all of them). -16Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.651 Page 17 of 20 1 2 warrant the Court excluding all evidence oflitigation history at trial. 2. 3 4 The Probative Value of Plaintiffs Litigation History Outweighs Any Consumption of Time. Plaintiff also argues that his litigation history should not be admitted because any 5 probative value is substantially outweighed by the consumption of time it will 6 necessitate. ECF No. 65-1 at 4: 18-20. Plaintiff argues that ifhe is "forced to defend the 7 validity of his claims," it "would require Mr. Langer relitigate each of the cases raised 8 by Defendants, to show that the claims were meritorious and negate any inference of 9 impropriety." Id. at 4:23-26. "Given the volume of cases Mr. Langer has filed as an ' 10 admitted serial litigator, his estimate for trial completion would have to be revised from 11 the current short form to several weeks." Id. at 4:27-28-5: 1. Defendants respond that "it 12 13 14 15 16 17 18 19 20 is not necessary for Plaintiff to relitigate all of his prior cases to rebut the inference he is not being truthful." ECF No. 66 at 10:10-11. Rather, "Plaintiff can simply present evidence to show which of the premises he actually returned to." Id. at 10: 12. First, the Court concludes that the burden of any consumption of time spent admitting evidence of Plaintiffs litigation history does not substantially outweigh the probative value of such evidence. · In fact, any consumption of time could be minimized through party cooperation by agreeing to a stipulation on certain issues. However, if the parties are unable to agree on this, Defendants can, through careful pre-trial preparation, select the most important cases about which they would like to cross-examine Plaintiff 21 22 to minimize the consumption of time. Nevertheless, the Court feels the probative value of such evidence warrants the time it may take to question Plaintiff regarding the issue. 23 3. The Probative Value of Plaintiff's Litigation History Is Not 24 25 26 27 Substantially Outweighed by the Probability of Undue Preiudice. Next, Plaintiff contends that his litigation history should not be admitted because any probative value is substantially outweighed by the probability of undue prejudice. -17Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.652 Page 18 of 20 1 history is not unduly prejudicial and appropriate on cross-examination. ECF No. 66 at 2 8:25-26. 3 The Court acknowledges that admission of previous lawsuits has some prejudicial 4 value by establishing that Plaintiff has filed over one thousand other lawsuits, which may 5 cause the trier of fact to unfairly discount the present case based on a bias against litigious 6 plaintiffs. However, on the whole, the Court finds the probative value of the other 7 lawsuits, especially, but not limited to the Central District lawsuits, is outweighed by the 8 risk of prejudice. 9 admission at trial, these lawsuits should be admissible. In particular, the Court would 10 find highly relevant whether any of Plaintiffs lawsuits allege that Plaintiff visited other 11 establishments on the same day that Plaintiff alleges he visited the Smoke Shop and 12 13 14 15 16 17 18 19 20 21 22 As such, provided Defendants lay proper foundation for their Lobster Shop. Plaintiff admits that his counsel's private investigator, rather than Plaintiff himself, entered the shops to measure the aisles and counters. ECF No. 24-1 at 4:6-18. While the ADA does not require efforts in futility to vest a plaintiff with standing, see, e.g., Civil Rights Educ. and Enforcement Ctr. v. Hospitality Props. Tr., 867 F.3d 1093, 1098-99 (9th Cir. 2017) ("[w]hen a plaintiff who is disabled within the meaning of the ADA has actual knowledge of illegal barriers at a public accommodation to which he or she desires access, that plaintiff need not engage in the 'futile gesture' of attempting to gain access in order to show actual injury"); 42 U.S.C. § 12188(a)(l) (same), if Plaintiff never visited the Smoke Shop and Lobster Shop at all, this evidence would not only have high probative value, but it would also deprive Plaintiff of standing. Further, to minimize any prejudice to Plaintiff, the Court cautions Defendants that 23 argument at trial will be limited to the question of whether Plaintiff(!) intended to return 24 25 26 27 ~--~:2 to the establishments and/or (2) in fact visited the establishments and encountered the barriers in question. In admitting evidence pertaining to Plaintiffs litigation history for this limited purpose, the Court is cognizant of the Ninth Circuit's guidance in D'Lil that courts should exercise caution when arriving at credibility determinations based on a -18Case#: 3:18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.653 Page 19 of 20 1 plaintiffs previous ADA litigation history. 538 F.3d at 1034-35. Nonetheless, after 2 careful consideration, the Court believes the probative value of such evidence outweighs 3 any unfair prejudice or consumption of time, and that the prejudice to Defendants from 4 excluding such evidence would be far greater than the prejudice to Plaintiff from 5 admitting the evidence. 6 The Court finds that any prejudice to Plaintiff resulting from admitting his own 7 litigation history does not substantially outweigh the probative value of such evidence- 8 particularly given Plaintiff touts himself as a champion of the ADA. Given Plaintiffs 9 self-proclaimed status as a tester, the Court finds it contradictory that he would now want 1 o to hide the very same status about which he boasts. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 B. Tester Standing Is Not at Issue. Plaintiff paradoxically argues that "argument regarding tester standing and evidence supporting it should be excluded because it is irrelevant and creates a substantial danger of undue prejudice," ECF No. 65-1 at 9: 1-2, while later admitting in the same motion that intent to return, which relates tangentially to whether Plaintiff was a tester, "is certainly a fair issue to raise," id. at 9:4. Defendant responds by noting that "[t]he issue here is not whether Plaintiff is a serial ADA tester, but whether he misrepresented the purpose of his visit to the Shopping Center." ECF No. 66 at 9:18-19. The Court declines to address this issue given Defendant appears to not (1) dispute that testers may have standing, id. at 5:9-21, and (2)raise tester standing as an issue, id. at 9:18-19. C. The Sincerity of Plaintifrs Intent to Return is a Fact of Consequence Relevant to Plaintifrs Article III Standing in His ADA Case. Plaintiff argues that his litigation history is not an appropriate basis for questioning the sincerity of Plaintiffs intent to return. ECF No .. 65-1 at 9:1-2. Defendant responds that "Plaintiff has placed the question of his intent to return squarely at issue." ECF No. 66 at 1: 12. Thus, whether Plaintiff intends to return is "highly probative" of Plaintiffs credibility, and as such, merits any time it may take to cross- ----------'8---'-'-----------------------~----------+----11 -19Case#: 3: 18-cv-00195-BEN-NLS Case 3:18-cv-00195-BEN-AHG Document 90 Filed 10/16/20 PageID.654 Page 20 of 20 1 examine Plaintiff on that issue. Id. at 10:7-16. Again, Plaintiff notes in his motion that 2 "intent to return is certainly a fair issue to raise," ECF No. 65-1 at 9:4. However, Plaintiff 3 argues that Defendants must address this issue "without relying on Plaintiffs litigation 4 history." Id. at 66-1 at 10:3-5. The Court disagrees, and as discussed in section IV(A)(l), 5 finds that Plaintiffs intent to return is "squarely at issue" here and highly relevant to his 6 standing in this lawsuit. The court also concludes that Plaintiffs previous litigation 7 history may prove relevant to this issue. Thus, such evidence will not be excluded. 8 v. CONCLUSION 9 For the above reasons, the Court DENIES Plaintiffs Motion in Limine No. 1 to lO 11 Exclude Evidence of Plaintiffs Litigation History. Although the Court denies Plaintiffs 12 13 14 15 16 17 Motion, the Court does not rule that such evidence is admissible. Defendants must still have to lay foundation and establish a basis for the admissibility of such evidence at trial. Further, Defendants may admit evidence of Plaintiffs litigation history solely for the purposes of impeachment and establishing standing. Such evidence is not admissible to show character (e.g., that Plaintiff has a character tra· litigiousness). IT IS SO ORDERED. DATED: September~ 2020 z 18 19 20 21 22 23 24 25 26 27 ~-------J-8~••1--------------------------------------t---. -20Case#: 3:18-cv-00195-BEN-NLS

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