Chris Langer v. Milan Kiser ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRIS LANGER, No. 21-55183
Plaintiff-Appellant,
D.C. No.
v. 3:18-cv-00195-
BEN-AHG
MILAN KISER, in individual and
representative capacity as trustee of
the Milan and Diana Kiser Revocable OPINION
Trust dated August 19, 2003; DIANA
KISER, in individual and
representative capacity as trustee of
the Milan and Diana Kiser Revocable
Trust dated August 19, 2003,
Defendants-Appellees,
and
FRANK P. ROFAIL; DAVID
MATTHEW TAYLOR; DOES, 1-10,
Defendants.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted March 18, 2022
San Francisco, California
2 LANGER V. KISER
Filed January 23, 2023
Before: William A. Fletcher, Ronald M. Gould, and Daniel
P. Collins, Circuit Judges.
Opinion by Judge Gould;
Dissent by Judge Collins
SUMMARY *
Americans with Disabilities Act
The panel reversed the district court’s judgment, after a
bench trial, in favor of defendants Milan and Diana Kiser
and vacated the district court’s award of costs in an action
brought by Chris Langer under Title III of the Americans
with Disabilities Act.
Title III prohibits places of public accommodation from
discriminating against people on the basis of disability, and
the ADA Accessibility Guidelines require parking lots of a
certain size to have van-accessible spaces with access aisles.
The Kisers rented their property to commercial
tenants. Langer tried to visit two businesses on the property,
the Gour Maine Lobster (the “Lobster Shop”) and the 1 Stop
Smoke Shop. One of the Kisers’ tenants, David Taylor,
owned the Lobster Shop. Taylor’s lease assigned him a
space in the parking lot on the property for his personal
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LANGER V. KISER 3
use. Taylor placed a “Lobster Shop Parking Sign” near his
assigned space. The Kisers asked Taylor to remove the sign,
but he did not do so. Because the parking lot did not have a
van-accessible parking space, Langer could not access either
business when he visited the property.
First, the panel held that Langer had Article III standing
to bring his claim for injunctive relief under Title III of the
ADA. The panel held that, to establish standing, a plaintiff
suing a place of public accommodation must show actual
knowledge of an access barrier or ADA violation and must
show a sufficient likelihood of injury in the future. The
panel also held that so-called “serial litigants” can have
tester standing to sue for Title III violations because a
plaintiff’s motive for going to a place of public
accommodation is irrelevant to standing. Thus, the fact that
Langer was a serial litigant had no place in the panel’s
standing analysis. His testimony at trial, however, was
relevant to the standing inquiry because he was required to
demonstrate an intent to return to the Lobster Shop or current
deterrence from returning, and thus a likelihood of injury in
the future.
The panel rejected the district court’s adverse credibility
determination regarding Langer’s trial testimony because
the court relied on his motivation for going to the Lobster
Shop and his ADA litigation history. The panel held that
Langer met his burden to establish standing because he
demonstrated that he was currently deterred from
patronizing the Lobster Shop because of its inaccessibility
and that he intended to return as a customer once the store
provided accessible parking. The panel held that district
courts cannot use the doctrine of standing to keep
meritorious ADA cases out of federal courts simply because
they are brought by serial litigants. Nor can district courts
4 LANGER V. KISER
use improper adverse credibility determinations to
circumvent this court’s holding allowing tester standing for
ADA plaintiffs. The panel held that courts must take a broad
view of standing in civil rights cases, particularly in the
ADA context where private enforcement is the primary
method of securing compliance with the act’s mandate.
The panel next held that the district court erred in ruling
that Langer did not establish an ADA violation because the
Lobster Shop’s parking lot “was not a place of public
accommodation.” Title III of the ADA provides that “no
individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or
accommodations of any place of public
accommodation.” Looking to the statutory text, as well as
the regulations implementing the ADA, the panel held that
the district court erred as a matter of law by analyzing
whether the parking lot itself was a “place of public
accommodation” rather than whether it was a “facilit[y] . . .
of any place of public accommodation.” The panel
determined that the parking lot was a facility and was not
itself a place of public accommodation. Thus, the question
was whether the Kisers discriminated against Langer on the
basis of his disability by not offering a van-accessible
parking space in their parking lot.
The panel held that, to determine whether a facility is
open to the public, and thus subject to the requirements of
Title III, courts must rely upon the actual usage of the facility
in question. Absent information about actual usage,
considerations such as the nature of the entity and the
facility, as well as the public’s reasonable expectations
regarding use of the facility, may further guide a court’s
analysis. Because actual usage was the key, the district court
LANGER V. KISER 5
erred by giving controlling weight to the terms of the lease
agreement between the Kisers and Taylor, to determine
whether there was an ADA violation. The panel concluded
that overwhelming evidence at trial, including Taylor’s
testimony, showed that the parking lot was, in fact, open to
customers of the Lobster Shop. The panel therefore reversed
the entry of judgment for the Kisers and remanded with
instructions for the district court to enter judgment for
Langer.
Finally, the panel held that the district court did not err
in denying Langer’s motion to strike a trespass counterclaim
pursuant to California’s anti-SLAPP statute, which allows
for the pre-trial dismissal of certain actions “intended
primarily to chill the valid exercise of the constitutional
rights of freedom of speech and petition for the redress of
grievances.” The panel held that the fact that Langer waited
until after trial to appeal the denial of his motion to strike did
not deprive the court of appeals of jurisdiction, even though
the denial of an anti-SLAPP motion is an immediately
appealable collateral order. The panel held that Langer met
his burden of a threshold showing that approaching the
Kisers’ property to assess ADA compliance was an act in
furtherance of Langer’s right to petition under the First
Amendment. The Kisers, however, established a reasonable
probability of prevailing on the trespass claim. Accordingly,
the district court did not err in denying Langer’s anti-SLAPP
motion. The district court, however, erred in ruling that
Langer committed a trespass because the district court
declined supplemental jurisdiction over the trespass claim
and therefore lacked jurisdiction to rule on it. The panel
therefore vacated the district court’s legal holding regarding
the trespass claim.
6 LANGER V. KISER
Dissenting, Judge Collins wrote that the district court
properly found that Langer was not a credible witness in
light of his less-than-trustworthy demeanor, the stark
inconsistencies in his testimony and past statements, and the
implausibility of some of his claims. Accordingly, the
district court did not clearly err in its factual finding that, in
light of that credibility determination, Langer did not have
any intention of returning to and patronizing the Lobster
Shop. Judge Collins wrote that Langer therefore lacked
Article III standing to seek prospective injunctive relief, the
only remedy available in a private suit under the
ADA. Judge Collins would affirm the dismissal of Langer’s
ADA claim with prejudice, but only on the threshold ground
that Langer failed to prove Article III standing. In addition,
because the district court lacked jurisdiction over the only
federal claim in the case, it did not abuse its discretion in
declining to exercise supplemental jurisdiction over the
remaining state law claims.
COUNSEL
Dennis J. Price II (argued), Center for Disability Access, San
Diego, California; Russell C. Handy, Potter Handy LLP, San
Francisco, California; for Plaintiff-Appellant.
Samy S. Henein (argued), Suppa Trucchi & Henein LLP,
San Diego, California, for Defendants-Appellees.
LANGER V. KISER 7
OPINION
GOULD, Circuit Judge:
Chris Langer is a paraplegic man, disability advocate,
and serial litigant. Langer cannot walk, so he uses a
wheelchair to get around and drives a van that deploys a
ramp from the passenger side. For Langer to park and exit
his vehicle, a parking lot must have an accessible parking
space with an adjacent access aisle. Title III of the
Americans with Disabilities Act of 1990 (“ADA”) prohibits
places of public accommodation from discriminating against
people on the basis of disability, 42 U.S.C. § 12182, and the
ADA Accessibility Guidelines (“ADAAG”) require parking
lots of a certain size to have van-accessible spaces with
access aisles. ADAAG § 208.1; 502.1 (2010) (codified at 28
C.F.R. pt. 36, subpart D and apps. B and D). When Langer
comes across a place that he believes is not compliant with
the ADA, he takes photos to document the condition of the
premises and often sues. Langer is a “serial” ADA litigant,
a fact featured prominently at trial, and he has filed close to
2,000 ADA lawsuits in the thirty-two years since Congress
enacted the ADA.
This appeal arises from one such lawsuit. The central
question we must answer is whether a place of public
accommodation violates the ADA by opening up its private
parking lot to customers without making it accessible to
customers with disabilities. Because the business owner in
this case testified that he allowed customers to park in the
parking lot, we must reverse the district court’s judgment in
favor of the defendant property owners, regardless of what
the terms of their lease with the business owner specified. A
business cannot offer parking to customers without
8 LANGER V. KISER
disabilities while not offering that same benefit to customers
with disabilities—that discrimination goes to the heart of the
ADA. A second question raised by this appeal is whether a
district court may rely on a plaintiff’s litigation history to
question his credibility and intent to return to a place of
public accommodation. We hold that a district court may
not reject an ADA litigant’s stated intent to return to a
location simply because the litigant is a serial litigant who
brings numerous ADA cases.
I. BACKGROUND
Defendants Milan and Diana Kiser own a mixed-use real
estate property near Langer’s home in San Diego and rent it
to residential and commercial tenants. In September 2017,
Langer tried to visit two businesses on the property: the Gour
Maine Lobster (the “Lobster Shop”) and the 1 Stop Smoke
Shop (the “Smoke Shop”).
One of the Kisers’ tenants, David Taylor, owns the
Lobster Shop. The lease between the Kisers and Taylor
assigned Taylor a space in the parking lot for his personal
use. Taylor placed a sign near his assigned parking space
with the words “lobster” and “parking” to “show customers
where the store is, where to go, and where to park.” At some
point, Kiser noticed Taylor’s “Lobster Shop Parking Sign”
and asked Taylor to remove it, but Taylor did not do so.
Because the parking lot on the Kisers’ property did not
have a van-accessible parking space, Langer could not
access either business when he visited the property. Langer
sued the Kisers over the lack of accessible parking, bringing
claims under Title III of the ADA and California’s Unruh
LANGER V. KISER 9
Civil Rights Act, Cal. Civ. Code §§ 51–53. 1 The Kisers filed
a trespass counterclaim against Langer.
The district court held a one-day bench trial and at its
conclusion entered judgment for the Kisers. The district
court first held that Langer had standing to bring this action,
although it did so “reluctantly,” doubting that Langer had a
“legitimate” intent to return. It concluded that Langer’s
testimony was unreliable because of his extensive litigation
history as an ADA litigant. Reaching the merits of Langer’s
ADA claim, the district court entered judgment in favor of
the Kisers, holding that the parking lot they owned was not
a place of public accommodation. Despite contrary
testimony from the Lobster Shop owner, Taylor, that his
customers parked in the parking lot, the district court instead
relied upon the lease, which stated that the parking spot was
for Taylor. 2 Relying on that term, the district court
concluded that all members of the public were denied access
to the parking lot, not only people with disabilities.
1
Langer sued the Kisers in their individual and trustee capacities. He
also sued the respective business owners of the two stores, but the parties
agreed to dismiss the business owners as defendants before trial.
2
Paragraph 8 of the “Rental Agreement And/Or Lease” between Kiser
and Taylor provides:
When and if RESIDENT is assigned a parking space
on OWNER’s property, the parking space shall be
used exclusively for parking of passenger automobiles
and/or those approved vehicles listed on RESIDENT’s
‘Application to Rent/Lease’ or attached hereto.
RESIDENT is hereby assigned parking space ONE.
Said Space shall not be used for the washing, painting,
or repair of vehicles. No other parking space shall be
used by RESIDENT or his guests.
10 LANGER V. KISER
We have jurisdiction under 28 U.S.C. § 1291. We
reverse the district court’s holding that the parking lot was
not a place of public accommodation, and we vacate the
district court’s costs award.
II. STANDING
We first examine standing because we have an
independent duty to do so before turning to the merits.
Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 868 (2002).
In this case, however, Langer’s testimony at trial is relevant
to whether he has standing, so our standing analysis proceeds
in several steps. We first provide an overview of standing in
the ADA Title III context. We next examine the district
court’s credibility determination against Langer. We then
determine, on de novo review, whether Langer has standing.
A.
Because Article III limits our jurisdiction to cases and
controversies, the “irreducible constitutional minimum of
standing” requires a plaintiff to have suffered an injury in
fact, caused by the defendant’s conduct, that can be
redressed by a favorable result. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). The elements of
causation and redressability are not contested, so we need to
evaluate only Langer’s asserted injury in fact. To confer
standing, an injury in fact must be concrete, particularized,
and actual or imminent, not hypothetical. Id. Although a
plaintiff must establish standing at each stage of the
litigation, id. at 561, whether a plaintiff has standing depends
upon the facts “as they exist when the complaint is filed,” id.at 569 n.4 (quoting Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826, 830 (1989)).
LANGER V. KISER 11
Private plaintiffs are limited to seeking injunctive relief
under Title III of the ADA, so a plaintiff suing a place of
public accommodation must show a sufficient likelihood of
injury in the future to establish standing. Fortyune v. Am.
Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004).
Encountering ADA violations at a place of public
accommodation in the past is not itself sufficient for
standing, though it provides some evidence supporting the
likelihood of future harm. Id.Our understanding of what standing requires in the ADA
Title III context has evolved over time. In Pickern v.
Holiday Quality Foods Inc., 293 F.3d 1133 (9th Cir. 2002),
we established what became known as the deterrent effect
doctrine for ADA standing. There, a plaintiff brought an
ADA action against a grocery store, but the district court
dismissed it for lack of standing because the plaintiff had not
attempted to enter the store during the statute of limitations
period. Id. at 1135. We reversed, holding that to bring an
ADA claim against a place of public accommodation, it is
enough for a plaintiff to have actual knowledge of
accessibility barriers there. Id. Quoting from Title III, we
confirmed that a person with a disability need not engage in
the “futile gesture” of trying to access a noncompliant place
just to create an injury for standing. Id. Rather, to establish
a cognizable future injury, all a plaintiff needs to do is be
“currently deterred” from visiting the place of public
accommodation because of the accessibility barriers. Id. at
1138.
We next examined standing in a pair of ADA cases
where plaintiffs sued places of public accommodation far
from their homes. In Doran v. 7-Eleven, Inc., 524 F.3d 1034,
1040–41 (9th Cir. 2008), we held that the plaintiff had
standing to sue a convenience store 500 miles from where he
12 LANGER V. KISER
lived because he was “currently deterred” from visiting the
store due to the barriers he encountered. We added that the
ongoing uncertainty about whether the barriers remain is
“itself an actual, concrete and particularized injury under the
deterrence framework of standing articulated in Pickern.”
Id. at 1043. We held that the plaintiff had standing to
challenge not just the barriers he personally encountered, but
also other barriers related to his disability that he became
aware of through discovery. Id. at 1043–44.
We reached a similar conclusion in D’Lil v. Best Western
Encina Lodge & Suites, 538 F.3d 1031, 1034–39 (9th Cir.
2008) and held that a plaintiff had standing to challenge
ADA violations at a hotel she stayed at in Santa Barbara, far
from her home in Sacramento. D’Lil worked as an
accessibility consultant and traveled around California
evaluating properties for ADA compliance. Id. at 1034. The
district court doubted that she had a “legitimate” intent to
return because of her involvement in so many ADA lawsuits,
and it dismissed her case for lack of standing. Id. at 1035.
We reversed, clarifying that when the place of public
accommodation is far from a plaintiff’s home, a plaintiff can
establish standing by demonstrating “an intent to return to
the geographic area where the accommodation is located and
a desire to visit the accommodation if it were made
accessible. Id. at 1037 (citing Pickern, 293 F.3d at 1138).
Reviewing the record evidence, we concluded that her
declaration and testimony “plainly evidence[d]” an intent to
return. Id. at 1039. We also rejected the district court’s
adverse credibility finding against the plaintiff because it
used her past ADA litigation to doubt her intent to return.
Id. at 1040.
We further clarified our standing jurisprudence for
claims brought under Title III of the ADA in Chapman v.
LANGER V. KISER 13
Pier 1 (U.S.) Imports Inc., 631 F.3d 939 (9th Cir. 2011) (en
banc). In Chapman, a disabled plaintiff sued a retail store
because of barriers encountered on past visits, as well as for
barriers not personally encountered. Id. at 943. The plaintiff
admitted that he was not deterred from visiting the store
because of the barriers, but he testified that he intended to
return to the store and believed the barriers would impede
his access. Id. We held that current deterrence is sufficient
but not necessary for standing, and that plaintiffs with
knowledge of an ADA violation at a place of public
accommodation can establish a sufficient future injury for
standing by either (1) showing that they are currently
deterred from returning to the place of public
accommodation because of a barrier, or (2) showing that
they were previously deterred and intend to return to the non-
compliant place of public accommodation. Id. at 944. We
ultimately held that the plaintiff in Chapman, however, did
not have standing because he did not describe with
specificity the barriers he encountered. Id. at 954.
Most recently, we revisited the standing requirements for
plaintiffs suing under Title III of the ADA in Civil Rights
Education and Enforcement Center v. Hospitality Properties
Trust (“CREEC”), 867 F.3d 1093 (9th Cir. 2017). There,
plaintiffs brought a class action alleging that hotels across
the country provided shuttle transportation to guests without
disabilities but did not provide equivalent wheelchair-
accessible transportation for guests who use wheelchairs. Id.at 1096–97. The named plaintiffs in CREEC had not
actually visited any of the hotels and instead made calls to
inquire about the availability of accessible transportation.
Id. at 1097. We first held that a plaintiff need not visit the
place of public accommodation or personally encounter a
barrier in order to suffer an injury in fact. Id. at 1099–1101.
14 LANGER V. KISER
That the plaintiffs had called the hotels and learned that they
did not offer accessible transportation was enough. Id. And
we again affirmed that a plaintiff must allege “continuing,
present adverse effects” but can do so through either the
“deterrent effect doctrine” or by showing an intent to return
“when the non-compliance is cured.” Id. at 1099–1100.
We also held, for the first time, that a plaintiff suing
under Title III of the ADA can establish standing through
being a tester plaintiff. Id. at 1101. We concluded that a
plaintiff’s motivation for visiting a place of public
accommodation is “irrelevant to the question of standing.”
Id. Drawing upon the Supreme Court’s decision in Havens
Realty Corp. v. Coleman, 455 U.S. 363 (1982), in which it
recognized tester standing under the Fair Housing Act, we
noted that Congress used the same “any person” language in
Title III of the ADA as it did in the Fair Housing Act. Id. at
1101–02. This broad language, allowing “any person” to
bring a claim under Title III of the ADA, indicated to us that
Title III did not contain a “bona fide” customer requirement
for standing. Id.; see also 42 U.S.C. § 12188(a)(1).
So where does that leave us? We know that a plaintiff
bringing a claim under Title III of the ADA must have actual
knowledge of an access barrier or ADA violation. Pickern,
293 F.3d at 1135. But the plaintiff need not personally
encounter the barrier or physically visit the place of public
accommodation. CREEC, 867 F.3d at 1100. And we know
that an ADA plaintiff has standing to sue for all barriers,
even ones that surface later during discovery, as long as
those barriers relate to the plaintiff’s specific disability.
Doran, 524 F.3d at 1047; Chapman, 631 F.3d at 950–53.
But because private plaintiffs are limited to injunctive relief
under Title III, encountering an ADA violation in the past at
a place of public accommodation is not enough. Fortyune,
LANGER V. KISER 15
364 F.3d at 1081. Instead, a plaintiff must establish a
sufficient future injury by alleging that they are either
currently deterred from visiting the place of public
accommodation because of a barrier, or that they were
previously deterred and that they intend to return to the place
of public accommodation, where they are likely to
reencounter the barrier. Chapman, 631 F.3d at 944. Finally,
we know that so-called “professional plaintiffs,” “paid
testers,” or “serial litigants” can have tester standing to sue
for Title III violations because a plaintiff’s motive for going
to a place of public accommodation is irrelevant to standing.
See CREEC, 867 F.3d at 1102.
B.
Langer is one such serial litigant, having filed nearly
2,000 ADA lawsuits in federal and state courts. This fact
has no place in our standing analysis. CREEC, 867 F.3d at
1102. Instead, we may only consider whether Langer has
actual knowledge of a barrier or ADA violation at the
Lobster Shop and whether he can establish a sufficient future
injury for the injunctive relief he seeks.
Because Langer must demonstrate an intent to return to
the Lobster Shop or current deterrence from returning to the
Lobster Shop in order to establish a sufficient future injury,
his testimony at trial is relevant to the standing inquiry. The
district court expressed concerns about Langer’s credibility
throughout its opinion and found his testimony to be
unreliable. To the extent that these concerns amount to an
adverse credibility determination, we reject it. Although we
give “great deference to district court findings relating to
credibility,” we may “reject its ultimate determination” if the
district court relied upon impermissible legal reasoning or
inferences. D’Lil, 538 F.3d at 1035, 1039–40 (citation and
16 LANGER V. KISER
alteration omitted); see also Kirola v. City & Cnty. of San
Francisco, 860 F.3d 1164, 1182 (9th Cir. 2017) (rejecting a
district court’s credibility determination in the ADA context
where it “was based on legal errors”). We reject the district
court’s “ultimate determination” regarding Langer’s
credibility because it relied on Langer’s motivation for going
to the Lobster Shop and his ADA litigation history, contrary
to D’Lil and CREEC. For the following reasons, the district
court’s credibility determination cannot stand.
1.
First, the district court’s credibility determination
contravenes our holding in D’Lil. There, the district court
dismissed the plaintiff’s action for lack of standing,
expressing doubt that the plaintiff had a “legitimate” intent
to return because of her involvement in so many previous
ADA lawsuits. Id. at 1035. We rejected the district court’s
adverse credibility determination because it “focused on
D’Lil’s history of ADA litigation as a basis for questioning
the sincerity of her intent to return.” Id. at 1040. Warning
that we “must be particularly cautious about affirming
credibility determinations that rely on a plaintiff’s past ADA
litigation,” we explained that because the ADA limits suits
brought by private plaintiffs to injunctive relief and does not
allow suits for damages, most ADA lawsuits are brought by
serial litigants. Id. at 1040. We commented that it may be
“necessary and desirable for committed individuals to bring
serial litigation advancing the time when public
accommodations will be compliant with the ADA.” Id. at
1040 (quoting Molski v. Evergreen Dynasty Corp., 500 F.3d
1047, 1062 (9th Cir. 2007) (citing Samuel R. Bagenstos, The
Perversity of Limited Civil Rights Remedies: The Case of
“Abusive” ADA Litigation, 54 U.C.L.A. L. Rev. 1, 5
(2006))).
LANGER V. KISER 17
Here, as in D’Lil, the district court focused on Langer’s
past ADA litigation to impugn his credibility, expressing
doubt that Langer would return to the Lobster Shop
expressly because of the previous lawsuits he filed. The
district court emphasized that Langer “has been a plaintiff in
1,498 federal lawsuits” over the last eighteen years and this
“extensive litigation history” coupled with his inability to
remember details about the businesses involved in those
lawsuits weighed against the credibility of his stated intent
to return to the Lobster Shop. But, as in D’Lil, the record
does not contain information about whether the places of
public accommodation in Langer’s previous cases were
made accessible. Id. at 1040. Nor does the record contain
information about whether Langer actually returned to those
places, and the defense did not ask him if he had. Instead,
the defense only asked him whether he had alleged an intent
to return in his previous complaints, which he had.
Langer’s intent to visit unrelated places he previously
sued “says little” about his intent to visit the Lobster Shop,
D’Lil, 538 F.3d at 1040, particularly in light of its proximity
to his house, his professed taste for lobster, and that he
returned to the premises since filing the lawsuit to assess its
compliance with the ADA. His inability to recall details
from other lawsuits without any opportunity to refresh his
memory—for example, which specific items he picked up
three years earlier from an auction house that he sued—does
not shed light on his intent to return to the Lobster Shop.
And Langer’s work as an accessibility advocate, like the
plaintiff in D’Lil, undermines the district court’s
“speculation about the plausibility” of his intent to return to
the Lobster Shop. Id. His several return visits to the
premises remove any doubt.
18 LANGER V. KISER
2.
Nor does the sheer number of Langer’s previous lawsuits
provide grounds for doubting his intent to return. In
questioning Langer’s credibility, the district court
emphasized that Langer filed “six (6) other lawsuits” on the
same day he filed this lawsuit. At trial, Langer’s counsel
confirmed that he filed six lawsuits on Langer’s behalf in one
day. But examining those complaints, which were entered
into trial as exhibits, dispels any credibility concern. The
complaints reveal that Langer visited one defendant (a bank)
in September 2017, two defendants (a tree nursery and an
auto body shop) in October 2017, two others (a marijuana
dispensary and an auction shop) in November 2017, and the
final defendant (a shopping center) in December 2017.
Langer’s history and frequency of visiting places of public
accommodation shows nothing more than Langer going
about his ordinary course of business and gives no reason to
think that he would be unable to return to these
establishments in the future. The district court was wrong to
rely upon the number of complaints Langer’s lawyer chose
to file in one day on his behalf to question the reliability of
Langer’s testimony at trial.
3.
The district court also relied upon Langer’s decision to
forgo claims related to the Smoke Shop, the Lobster Shop’s
neighboring business, in questioning his intent to return to
the Lobster Shop. This proves nothing. When Langer filed
his complaint, the Kisers’ property was home to two
businesses: the Lobster Shop and the Smoke Shop. Langer
initially challenged accessibility barriers at both
establishments but stipulated at trial that he was foregoing
claims against the Smoke Shop. His counsel explained that
LANGER V. KISER 19
because Langer was only challenging the lack of accessible
parking, and the Kisers owned the lot for both properties, it
was redundant to pursue a separate claim challenging the
lack of accessible parking at the Smoke Shop.
Despite appearing to accept this explanation at trial, the
district court used Langer’s decision against him in making
its adverse credibility finding, reasoning that Langer’s
decision to forego the Smoke Shop claim “directly undercuts
his credibility with respect to having a legitimate intent to
return to the Property.” The district court further noted that
Langer “never alleged that he smoked, and as such, a
legitimate intent to return to the Smoke Shop would be
suspect” absent an expressed interest in smoking.
Consequently, the district court found it “[n]ot surprising[]”
that Langer stipulated to foregoing these claims. The district
court committed legal error by concluding that Langer’s
“professed intent to return” was not credible and finding
“[t]o the contrary” that Langer’s “purpose in visiting the
Property was to identify potential ADA violations.” This
part of the district court’s credibility analysis is riddled with
impermissible reasoning in the wake of our decision in
CREEC permitting tester standing for ADA claims. Being
an ADA tester is, in fact, a legitimate reason to go to a
business, see 867 F.3d at 1101–02, and the district court’s
insinuation otherwise is legally flawed. Visiting the
property to identify potential ADA violations is consistent
with having a credible intent to return; in other words,
credibility is not mutually exclusive with being a tester. See
id. For this reason, we expressly reject the “Harris Test”
relied upon by this district court and others in the circuit that
attempts to measure the legitimacy of a plaintiff’s intent to
return by considering factors such as the plaintiff’s “past
patronage of defendant’s business.” Harris v. Del Taco,
20 LANGER V. KISER
Inc., 396 F. Supp. 2d 1107, 1113 (C.D. Cal. 2005); see also
Harris v. Stonecrest Care Auto Ctr., LLC, 472 F. Supp. 2d
1208, 1216 (S.D. Cal. 2007). There is no past patronage or
bona fide customer requirement to bring an ADA claim.
CREEC, 867 F.3d at 1102. The Harris Test cannot coexist
with CREEC, and we have not adopted it since it was first
articulated over fifteen years ago. The district court’s
suggestion that the Ninth Circuit endorses this test is flat
wrong.
Along the same line of reasoning, the district court
opined that if Langer “truly desired to make the premises
handicap accessible for others as well as himself, he would
not have foregone claims pertaining to the Smoke Shop.”
Though it may be “desirable for committed individuals to
bring serial litigation advancing the time when public
accommodations will be compliant with the ADA,” D’Lil,
538 F.3d at 1040 (quoting Molski, 500 F.3d at 1062), ADA
testers need not take every claim to trial in order for their
intentions to be credible. Holding claims that ADA testers
decide to forego against them (while also criticizing them for
the amount of claims they have brought in the past) puts
disability advocates in an impossible position and can have
a chilling effect on accessibility litigation.
We reject the district court’s credibility determination
against Langer because it rests on impermissible legal
reasoning, D’Lil, 538 F.3d at 1040, Kirola, 860 F.3d at 1185,
and leaves us with a “definite and firm conviction” that the
district court made a mistake, United States v. Elliott, 322
F.3d 710, 715 (9th Cir. 2003) (quoting United States v.
LANGER V. KISER 21
Maldonado, 215 F.3d 1046, 1050 (9th Cir. 2000)). 3 The
district court directly and repeatedly used Langer’s extensive
litigation history to question the sincerity of his intent to
return in violation of D’Lil, and its supporting, ancillary
findings rely upon flawed reasoning that we cannot, and
should not, accept.
We do not read D’Lil as imposing an outright prohibition
on making credibility determinations against serial litigants,
and district courts ought not interpret our opinion today to
endorse that view. A court may still make a credibility
determination against a serial litigant, but there must be
something other than the fact that the litigant files a lot of
ADA cases to instill doubt in his testimony. For instance, if
a plaintiff alleged that he broke his leg multiple times in one
day from the same barrier at different locations, a court
would be prudent to question his credibility. Cf. Molski, 500
F.3d at 1051–52. Or, if Langer had alleged personally
encountering inaccessible parking at businesses in
California, Hawaii, and Alaska on the same day, an adverse
credibility determination would be well taken. But merely
driving around, documenting ADA noncompliance, and
filing multiple lawsuits is not in and of itself a basis for being
found noncredible. Our precedent demands more.
3
We find D’Lil to be the most instructive case on credibility
determinations in the ADA context and follow its procedure. There, we
rejected outright the district court’s credibility determination against the
serial litigant and remanded so that the district court could consider the
merits of the plaintiff’s motion for attorney’s fees, which it had not
considered because it dismissed the motion based on lack of standing.
538 F.3d at 1040–41. Here, because the district court found that Langer
has standing—a conclusion we agree with on de novo review—and
reached the merits of Langer’s ADA claim, we need not remand for the
district court to consider the merits in the first instance after rejecting its
credibility determination.
22 LANGER V. KISER
C.
After rejecting the district court’s credibility
determination because it rests on legal error, we now
consider whether Langer has standing, “a question of law
that we review de novo.” D’Lil, 538 F.3d at 1035. Despite
its credibility determination, the district court repeatedly
concluded that Langer had standing, summarizing that
“while Plaintiff has Article III standing, the subject property
. . . was not a place of public accommodation,” and including
in its legal conclusions that “Plaintiff has standing to pursue
his ADA claims.” The district court concluded that Langer
“has standing on the basis that he encountered a barrier on
the date of his visit,” noting that Langer “stated he intended
to return both in his complaint as well as at trial.”
Notwithstanding its multiple statements that Langer had
standing, the district court explained that it “arrive[d] at this
conclusion reluctantly, and only . . . by following the Ninth
Circuit’s instructions to liberally construe standing in ADA
cases.” We hold that Langer has standing to bring this
action.
1.
We start with the facts as they existed when Langer filed
his complaint. Langer personally encountered the lack of
accessible parking when he visited the Lobster Shop in
September 2017 and sufficiently described this barrier in his
complaint, satisfying the actual knowledge requirement for
standing. See Chapman, 631 F.3d at 954. As for deterrence
or intent to return, Langer alleged in his complaint that he
would like to return to the Lobster Shop “but will be deterred
from visiting until the defendants cure the violations.” He
claimed that he “is and has been deterred from returning” to
the Lobster Shop as a customer, but that he “will,
LANGER V. KISER 23
nonetheless, return to the business to assess ongoing
compliance with the ADA.” Langer also affirmed that he
“will return to patronize” the Lobster Shop “as a customer
once the barriers are removed.”
At trial, Langer testified on direct examination that he
went to the Lobster Shop in September 2017 for lobster, a
food that he likes. He submitted into evidence the 52 photos
he took during this visit, documenting the accessibility
barriers that existed at the time he filed his complaint. On
cross-examination, he testified that he has been back to the
Lobster Shop premises four or five times since filing the
lawsuit, and most recently he went there the night before
trial. He lives ten minutes from the store.
While standing “ordinarily depends” on the facts that
exist at the time the complaint is filed, Lujan, 504 U.S. at569 n.4, Langer stated in his complaint that he intends to
return to the Lobster Shop, and his repeated return visits
support that fact. Because the defense attempted to impeach
his stated intent to return at trial, we may properly consider
his return visits as evidence of his intent to return. See id. at
561 (“[A]t the final stage, those facts (if controverted) must
be supported adequately by the evidence adduced at trial.”)
(internal quotation marks omitted); see also D’Lil, 538 F.3d
at 1038–39 (considering the plaintiff’s testimony that she
visited the area after filing the complaint as evidence of her
intent to return, which was the “obvious and most reasonable
inference” from her testimony).
That Langer returned four or five times in a three year
period is convincing evidence that his professed intent to
return is sincere and plausible. In fact, the Eleventh Circuit
has held that a plaintiff’s profession as an ADA tester makes
it more likely that he would suffer the injury in fact again in
24 LANGER V. KISER
the future. See Houston v. Marod Supermarkets, Inc., 733
F.3d 1323, 1340 (11th Cir. 2013) (“Given that ADA testing
appears to be Houston’s avocation or at least what he does
on a daily basis, the likelihood of his return for another test
[at the defendant’s business] is considerably greater than the
Lujan plaintiffs’ return to far away countries . . . .”). ADA
testing appears to be Langer’s avocation, which he
confirmed in his briefing to us and at oral argument. Oral
Argument 4:40–4:50. He testified at trial that he carries a
camera so that he can document ADA violations whenever
he comes across them. The defense cross-examined Langer
about the many ADA lawsuits he has filed, emphasizing that
the number was nearly 2,000.
On redirect, Langer affirmed that he would “absolutely”
return to the Lobster Shop if they were to “fix the parking
and have van-accessible parking” because he loves lobster
and “purchase[s] lobster all the time.” On recross, the
defense attempted to show that Langer’s intent to return to
the Lobster Shop was not “genuine” because he also alleged
an intent to return in the other ADA complaints he filed. But,
as described previously, this reflects the type of reasoning
we unmistakably rejected in D’Lil and CREEC, in which we
instructed district courts not to question an ADA plaintiff’s
standing simply because they file numerous ADA lawsuits
or are an ADA tester. See also Gordon v. Virtumundo, Inc.,
575 F.3d 1040, 1069 (9th Cir. 2009) (Gould, J., concurring)
(“[W]e accord standing to individuals who sue defendants
that fail to provide access to the disabled in public
accommodation as required by the Americans with
Disabilities Act[], even if we suspect that such plaintiffs are
hunting for violations just to file lawsuits.”).
LANGER V. KISER 25
2.
Though the district court found that Langer had standing,
it did so reluctantly. Today we make clear that district courts
cannot use the doctrine of standing to keep meritorious ADA
cases out of federal courts simply because they are brought
by serial litigants. Nor can district courts use improper
adverse credibility determinations to circumvent our holding
in CREEC allowing tester standing for ADA plaintiffs.
Courts must “take a broad view” of standing in civil rights
cases, particularly in the ADA context where private
enforcement is “the primary method” of securing
compliance with the act’s mandate. Doran, 524 F.3d at1039–40 (quoting Trafficante v. Metro. Life Ins. Co., 409
U.S. 205, 209 (1972); see also Elizabeth F. Emens,
Disability Admin: The Invisible Costs of Being Disabled,
105 Minn. L. Rev. 2329, 2375 (2021) (“[A] system that
relies on private attorneys general should respect and value
the work done by those who take up the mantle . . . rather
than expecting every disabled person to use whatever spare
time and energy they have to litigate each trip to the
movies.”).
Here, Langer has met his burden to establish standing.
He physically went to a store near his home, saw that there
was a lack of accessible parking in violation of the ADA,
and spent time taking 52 photos to document the violations.
He has established that he is currently deterred from
patronizing the Lobster Shop because of this inaccessibility,
and that he intends to return as a customer once the store
provides accessible parking. He also intends to return, and
has returned, to assess the Lobster Shop’s ongoing
compliance with the ADA because of his avocation as an
ADA tester.
26 LANGER V. KISER
Langer, a serial ADA litigant, pulled into what he
thought was the parking lot for customers of the Lobster
Shop. He went there because he liked lobster, or to test for
ADA compliance, or perhaps both. His motivation is not
relevant. We only evaluate whether a plaintiff has an intent
to return, and we hold that Langer does. We agree with the
district court that Langer has standing to bring this claim
against the defendants. 4
III. ADA CLAIM
Having discussed Langer’s credibility and standing, we
next address the merits of his ADA claim. Entering
judgment for the defendants, the district court held that
Langer did not establish an ADA violation because the
Lobster Shop’s parking lot “was not a place of public
accommodation.” After a bench trial, we review the district
court’s findings of fact for clear error and its legal
conclusions de novo. Lentini v. Cal. Ctr. for the Arts,
Escondido, 370 F.3d 837, 843 (9th Cir. 2004). A district
court’s interpretation, construction, and application of the
ADA is reviewed de novo. Robles v. Domino’s Pizza, LLC,
913 F.3d 898, 904 (9th Cir. 2019). We reverse the district
court because its judgment rests on legal error and its factual
finding that the parking lot was not open to the public is
clearly erroneous in light of the business owner’s testimony.
4
We also agree with the district court that the lawsuit is not moot.
Although the defendants now keep the front gate to the lot closed, Milan
Kiser admitted it might be on a “temporar[y]” basis. Gates can be
reopened after lawsuits, and painted lines demarcating spaces can be
painted over. We hold, like the district court, that this action is not moot
under the voluntary cessation doctrine. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).
LANGER V. KISER 27
A.
Congress enacted the ADA to “provide clear, strong,
consistent, enforceable standards addressing discrimination
against individuals with disabilities.” 42 U.S.C. §
12101(b)(2). The ADA recognized that discrimination
against people with disabilities often comes not from
“invidious animus, but rather of thoughtlessness and
indifference.” Alexander v. Choate, 469 U.S. 287, 295
(1985). Title II of the Act applies to state and local
governments and ensures that people with disabilities are not
“excluded from . . . or denied the benefits of the services,
programs, or activities of a public entity.” 42 U.S.C § 12132.
Title III, by contrast, applies to private entities that open
themselves up to the public. Id. at § 12182.
Title III’s general rule, and the basis for an action under
Title III, is that “no individual shall be discriminated against
on the basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation.”
Id. The district court erred as a matter of law by analyzing
whether the parking lot itself was a “place of public
accommodation” rather than whether it was a “facilit[y] . . .
of any place of public accommodation.” Id. In bringing this
action, Langer did not contend that the Lobster Shop runs a
public parking lot but rather that the Lobster Shop offered
“facilities, privileges, advantages” in the form of parking to
some of its customers but not to other customers, like
Langer, who need a van-accessible parking space. The
district court’s analysis of the parking lot as a place of public
accommodation misinterprets the ADA and its
implementing regulations.
28 LANGER V. KISER
We start with the text of the statute, as we must. Van
Buren v. United States, 141 S. Ct. 1648, 1654 (2021). In the
definitions section of Title III, Congress did not define “a
place of public accommodation” but instead provided an
illustrative list of twelve types of private entities that qualify
as public accommodations. 42 U.S.C. § 12181(7). The
Lobster Shop, as the district court correctly found, falls
under § 12181(7)(e) which includes “a bakery, grocery store,
clothing store, hardware store, shopping center, or other
sales or rental establishment.”
Parking lots, however, are notably absent from §
12181(7)’s list. So, too, are similar terms like bathrooms,
doors, ramps, and pathways. We have previously noted that
the types of establishments included in the ADA’s list of
public accommodations have something in common:
They are actual, physical places where goods
or services are open to the public, and places
where the public gets those goods or services.
The principle of noscitur a sociis requires
that the term, “place of public
accommodation,” be interpreted within the
context of the accompanying words[.]
Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104,
1114 (9th Cir. 2000). Under traditional principles of
statutory interpretation such as expressio unius and noscitur
a sociis, we interpret the text of Title III to indicate that a
parking lot is not itself a place of public accommodation but
rather is a “facility” encompassed in the “goods, services,
facilities, privileges, advantages, or accommodations”
offered by a place of public accommodation. 42 U.S.C. §
LANGER V. KISER 29
12182(a). See Yates v. United States, 574 U.S. 528, 543–46
(2015).
The regulations implementing the ADA support our
conclusion. Though the text of the ADA does not define
facility, the ADA’s regulations do define this term. A
facility is “all or any portion of buildings, structures, sites,
complexes, equipment, rolling stock . . . roads, walks,
passageways, parking lots, or other real or personal property,
including the site where the building, property, structure, or
equipment is located.” 28 C.F.R. § 36.104 (emphasis
added). By explicitly including a parking lot within the
definition of a facility, the implementing regulations
demonstrate that the district court committed legal error by
considering whether the Lobster Shop parking lot is itself a
separate place of public accommodation rather than a facility
of such place.
Further, the specific Title III prohibition implicated by
this appeal is § 12182(b)(2)(A)(iv), which provides that a
place of public accommodation discriminates on the basis of
disability by “fail[ing] to remove architectural barriers” in
“existing facilities” where removal is “readily achievable.”
The corresponding regulation lists “[c]reating designated
accessible parking spaces” as one example of “readily
achievable” steps to remove architectural barriers. 28 C.F.R.
§ 36.304(b)(18). The regulation also prioritizes the barriers
that places of public accommodation should remove,
designating as the first priority “provid[ing] access to a place
of public accommodation from public sidewalks, parking, or
public transportation,” which includes “providing accessible
parking spaces.” § 36.304(c)(1). The district court needed
to look no further than the text of Title III and its
implementing regulations to discern that the Lobster Shop
parking lot constitutes a facility of a place of public
30 LANGER V. KISER
accommodation rather than a free-standing place of public
accommodation.
B.
After determining that the parking lot at issue is a facility
and not itself a place of public accommodation, the next
question is whether the Kisers discriminated against Langer
on the basis of his disability by not offering a van-accessible
parking space in their parking lot. This requires examining
whether the parking lot facility was open to the public.
We find guidance in two of our prior decisions. In
Doran, we affirmed the district court’s grant of summary
judgment to a convenience store where the plaintiff claimed
that the store violated the ADA by excluding him from an
employees-only restroom. 524 F.3d at 1048. While
excluding people with disabilities from the “retail portion”
of the store would be illegal discrimination under Title III,
we decided the same cannot be said for the “portion that is
closed to the public,” including the employees-only
restroom. Id. Doran provides instructive value to answering
the question at issue in this case, but its value is limited by a
significant factual difference. Unlike here, the plaintiff in
Doran had not alleged that the store was allowing customers
without disabilities to use the employees-only restroom but
not customers with disabilities. Instead, he alleged that the
store violated the ADA per se by refusing to open its
employees-only restroom for use by disabled people. See
Doran v. 7 Eleven, No. SACV 04-1125 JVS (ANx), 2005
WL 5957487, at *6 (C.D. Cal. Aug. 19, 2005).
Another case in which we have examined the public-
versus-private distinction under Title III is Jankey v.
Twentieth Century Fox Film Corp., 212 F.3d 1159 (9th Cir.
2000). There, a disabled plaintiff sued a film studio under
LANGER V. KISER 31
the ADA because three facilities on the private studio lot—
an event space, a shop, and an ATM—contained
accessibility barriers. Id. at 1160–61. The film company
restricted its studio lot to employees and authorized guests,
but the plaintiff presented evidence that he visited the lot
without a guest pass several times and was waved through
by security. See Jankey v. Twentieth Century Fox Film
Corp., 14 F. Supp. 2d 1174, 1180 (C.D. Cal. 1998). We
affirmed summary judgment in favor of the defendant,
agreeing with the district court that because the facilities at
the studio lot were “not in fact open to the public,” Title III
did not require those facilities to be accessible. 212 F.3d at
1161. We rested our holding on the text of 42 U.S.C. §
12187, which states that Title III of the ADA “shall not apply
to private clubs or establishments exempted from coverage
under Title II of the Civil Rights Act.” Because Title II of
the Civil Rights Act exempts any “private club or other
establishment not in fact open to the public,” 42 U.S.C. §
2000a(e) (emphasis added), we reasoned that any private
entity or facility “not in fact open to the public,” is also
exempt from Title III of the ADA. See 212 F.3d at 1161.
A helpful principle that can be drawn from our decisions
in Doran and Jankey is that when facilities within a place of
public accommodation are closed to the public, those
facilities do not need to comply with Title III of the ADA.
This does not mean, however, that places of public
accommodation can circumvent the commands of Title III
simply by claiming a facility is “private” or hanging up an
employees-only sign when a person using a wheelchair
enters the building.
We have not previously delineated the bounds of when a
facility is, in fact, open or closed to the public, but do so here.
We hold that courts must rely upon the actual usage of the
32 LANGER V. KISER
facility in question to determine whether it is “in fact” open
to the public. Absent information about actual usage,
considerations such as the nature of the entity and the
facility, as well as the public’s reasonable expectations
regarding use of the facility, may further guide a court’s
analysis.
C.
The actual usage of a facility controls because the ADA
specifies that it does not apply to private entities exempt
from Title II of the Civil Rights Act, and Title II of the Civil
Rights Act exempts private establishments “not in fact open
to the public.” 42 U.S.C. § 2000a(e) (emphasis added).
Whether a facility is “in fact” open to the public requires
examining the actual, not the theoretical or intended, use of
a facility. See In fact, Black’s Law Dictionary (11th ed.
2019) (“Actual or real; resulting from the acts of parties
rather than by operation of law.”). Thus, actual usage has
dispositive weight in evaluating whether a facility needs to
be accessible to people with disabilities.
Because actual usage is the key, the district court erred
by giving controlling weight to the terms of the lease
agreement between the Kisers and Taylor, the Lobster Shop
owner, to determine whether there was an ADA violation.
For example, the district court concluded that the lease
agreement “did not permit Mr. Taylor or the Lobster Shop to
have customers park in its designated parking space” and
that the Lobster Shop “only had the authority to invite
[Langer] into the areas which it had control under pursuant
to the Lease Agreement.” The district court stressed that the
“Lobster Shop lacked the authority to invite customers into
space that was not leased to it under the Lease Agreement.”
And in discussing whether Langer’s presence on the
LANGER V. KISER 33
property constituted a trespass, the district court found that
“the intent of the Lease Agreement was that Mr. Taylor and
his wife, and no one else, were to park in the designated
parking spot . . . . indicat[ing] that the East Lot was not a
place of public accommodation.”
These conclusions conflict with our precedent that
property owners cannot contract away liability under the
ADA. See Botosan v. Paul McNally Realty, 216 F.3d 827,
832 (9th Cir. 2000). In Botosan, much like the posture of
this case, a plaintiff sued property owners and their tenant,
alleging noncompliance with the ADA due to a lack of
accessible parking at the tenant’s business. Id. at 829–30.
The lease agreement between the landlord and tenant
allocated responsibility to the tenant for maintenance of the
property and compliance with laws. Id. at 830. We relied
upon the text of the ADA, its legislative history, and its
implementing regulations to hold that the defendant property
owner could not contract away ADA liability. Id. at 832–34.
We held that “contractual allocation of responsibility has no
effect on the rights of third parties,” i.e., disabled individuals
like Langer seeking access to places of public
accommodations. Id. at 833. The landlord is a necessary
party to an ADA suit “regardless of what the lease provides”
because the landlord can later “seek indemnification from
the tenant pursuant to their lease agreement.” Id. at 834.
If the Kisers’ liability was dictated by the terms of the
lease, as the Kisers contend, this would violate Botosan and
contravene the definition of what is “in fact” open to the
public. Giving actual usage controlling weight, rather than
terms of a lease inconsistent with usage, makes good sense
because a person with a disability who attempts to park in a
store’s parking lot does not know the specific terms of the
lease between the property owner and the business owner.
34 LANGER V. KISER
The disabled person sees customers parking in the lot, and
naturally wants the equal access to which the disabled person
is entitled under the ADA.
D.
Overwhelming evidence at trial showed that the parking
lot was, in fact, open to customers of the Lobster Shop.
Throughout the bench trial, the Lobster Shop owner, Taylor,
testified that customers would park in the lot at issue. He
testified that he understood the lease with the Kisers to mean
that customers could park in the lot “if a space was
available.” He suggested that the Kisers gave Taylor four
spots “two for [his] trucks and then two for parking.” When
asked if it was “common for customers” to park in the lot, he
testified that “if there was a space available, they would
park” there. As to the gate, Taylor testified that before
Langer brought this lawsuit, the gate was “always open.”
Taylor agreed that a customer would not have been
trespassing if he parked in the lot in September 2017 because
customers had “a right to park there.” He testified that it was
his understanding upon signing the lease that he or his
customers could park in the lot if space was available.
Taylor’s testimony establishes that customers were allowed
to, and did, park in the lot. In fact, the district court itself
summarized that “Plaintiff solicited testimony from both Mr.
Taylor and Mr. Kiser that despite Defendants’ intent to keep
the East Lot limited to tenant parking, Mr. Taylor had
customers and family park in his designated parking spot.”
The district court’s finding that the parking lot was
closed to all members of the public regardless of their
disability status is directly contradicted by the testimony of
Taylor and Kiser that the district court itself cited. The
district court’s conclusion that the parking lot was not open
LANGER V. KISER 35
to the public is also in tension with its holding that the case
was not moot “because the Lobster Shop could offer parking
to customers again.”
The testimony at trial suggests not only that customers
parked in the lot, but that Taylor himself encouraged
customer parking. He explained that “he installed the
Lobster Parking Sign in between parking stalls 1 and 2 to
show customers where the store is, where to go, and where
to park.” And even after Kiser noticed the “Lobster Parking
Sign” and asked Taylor to remove it, Taylor did not. Langer
also provided a photo from his investigator showing lobsters
painted on the ground in front of parking space #1 “that, per
the shop owner, ‘let[] customers know, ‘Follow these
lobsters into the building from parking stall 1.’” The actual
practice of customers routinely and indiscriminately using
the parking lot for Lobster Shop parking is strong evidence
that the facility was, in fact, open to the public. 5
Properly viewed as a facility of the Lobster Shop, the
defendants’ parking lot was open to the public and within
Title III’s reach. We reverse the entry of judgment for the
defendants and remand with instructions for the district court
to enter judgment for Langer.
IV. TRESPASS CLAIM
After Langer filed his ADA claim against the Kisers,
they filed a counterclaim against him for trespassing on their
property. Langer contends the Kisers filed the trespass
counterclaim in retaliation for him exercising his First
Amendment right to petition the government and sue for
5
Because the actual practice was not disputed, we need not discuss
ancillary considerations such as the commercial nature of the Lobster
Shop or the reasonable expectations of customers.
36 LANGER V. KISER
equal access under the ADA. Langer filed a motion to strike
the trespass counterclaim as a strategic lawsuit against public
participation (“SLAPP”). California has an anti-SLAPP
statute allowing for the pre-trial dismissal of certain actions
that “masquerade as ordinary lawsuits,” but are intended
“primarily to chill the valid exercise of the constitutional
rights of freedom of speech and petition for the redress of
grievances,” Cal. Civ. Proc. Code § 425.16(a). The district
court denied the motion to strike, and Langer appeals this
decision.
A.
Although Langer did not appeal the district court’s
interlocutory order denying the motion to strike the trespass
claim, we still have jurisdiction to reach this issue. The
denial of an anti-SLAPP motion is an immediately
appealable final decision pursuant to the collateral order
doctrine. See Batzel v. Smith, 333 F.3d 1018, 1025–26 (9th
Cir. 2003), superseded in part by statute on other grounds
as stated in Breazeale v. Victim Servs., Inc., 878 F.3d 759,
766–67 (9th Cir. 2017); Makaeff v. Trump Univ., LLC, 715
F.3d 254, 261 (9th Cir. 2013). That Langer waited until after
trial to appeal the district court’s denial of his motion to
strike does not deprive us of jurisdiction. Appeals of
interlocutory orders are “permissive, not mandatory.”
Baldwin v. Redwood City, 540 F.2d 1360, 1364 (9th Cir.
1976). “We have never held that failure to appeal an
interlocutory order barred raising the decided issue after
entry of a final judgment.” In re Frontier Props., Inc., 979
F.2d 1358, 1364 (9th Cir. 1992). We have jurisdiction to
review the district court’s denial of Langer’s motion to strike
the trespass counterclaim.
LANGER V. KISER 37
Similarly, because “the purpose of an anti-SLAPP
motion is to determine whether the defendant is being forced
to defend against a meritless claim” that seeks to intimidate
or harass him, “the anti-SLAPP issue therefore exists
separately from the merits of the [underlying] claim itself.”
Batzel, 333 F.3d at 1025. Thus, even though the district
court ultimately declined to exercise supplemental
jurisdiction over the trespass counterclaim, we may still
review its pretrial decision to decline to strike the trespass
claim as a SLAPP.
B.
In ruling on an anti-SLAPP motion, courts are to use a
two-step process. First, a court must decide whether the
defendant of the potential SLAPP (here, Langer), made “a
threshold showing” that the cause of action in the challenged
SLAPP arises from an act in furtherance of First Amendment
“right of petition or free speech . . . in connection with a
public issue.” Hilton v. Hallmark Cards, 599 F.3d 894, 903
(9th Cir. 2010) (quoting Equilon Enters., LLC v. Consumer
Cause, Inc., 52 P.3d 685, 694 (2002)). Second, if the
defendant satisfies that threshold showing, the burden shifts
to the plaintiff bringing the SLAPP claim (here, the Kisers)
to show a “reasonable probability” of prevailing on the
merits of the underlying claim. Batzel, 333 F.3d at 1024.
This requires showing that “the complaint is both legally
sufficient and supported by a sufficient prima facie showing
of facts to sustain a favorable judgment.” Hilton, 599 F.3d
at 903.
Langer met his burden for the first step. Approaching
the Kisers’ property to assess ADA compliance was an act
in furtherance of Langer’s right to petition under the First
Amendment. The threshold showing encompasses “not
38 LANGER V. KISER
merely actual exercises of free speech rights,” such as the
ADA action Langer later filed, but also “conduct that
furthers such rights,” such as entering the property and
documenting ADA noncompliance. Hilton, 599 F.3d at 903;
see also Cal. Civ. Proc. Code § 425.16(e)(4) (defining an act
in furtherance of a person’s right to petition to include “any
conduct in furtherance of the constitutional right of petition
. . . in connection with . . . a public issue or an issue of public
interest”). California’s anti-SLAPP statute is to be
“construed broadly.” Mindys Cosmetics, Inc. v. Dakar, 611
F.3d 590, 595 (9th Cir. 2010) (quoting Cal. Civ. Proc. Code
§ 425.16(a)).
As to the second step, the district court held that the
Kisers established a “reasonable probability” of prevailing
on their trespass claim. The potential SLAPP claim should
be dismissed only if “no reasonable jury could find for” the
party bringing the action. Makaeff, 715 F.3d at 261 (quoting
Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 840 (9th Cir.
2001)). For a trespass claim in California, a plaintiff must
prove, among other elements, a “lack of permission for the
entry or acts in excess of permission.” Ralphs Grocery Co.
v. Victory Consultants, Inc., 225 Cal. Rptr. 3d 305, 317 (Ct.
App. 2017). The bench trial revealed, however, that
customers had permission from the Lobster Shop owner to
park in the lot. But the district court did not have the benefit
of these facts arising from trial at the time it ruled on
Langer’s motion to strike the trespass counterclaim. The
Kisers raised “sufficient factual questions” at the pretrial
stage to prevent us from concluding that “no reasonable jury
could find for” them on the trespass claim. Makaeff, 715
F.3d at 261.
While the circumstances of this case, and the unusual
parking situation at the Lobster Shop, do not permit us to
LANGER V. KISER 39
hold that the district court erred in denying the pretrial
motion to strike the trespass counterclaim, our holding on
this issue should not be interpreted as encouragement of
landlords filing trespass claims against ADA complainants.
State-law trespass claims may not be wielded as a weapon to
silence accessibility advocates.
C.
Though we hold that the district court did not err in
denying Langer’s motion to strike the trespass counterclaim,
this is not the end of our discussion of this claim. The district
court determined in its “Conclusions of Law” section that
“Plaintiff’s presence within the East Lot constituted a
trespass.” That legal conclusion is a decision on the merits
to the trespass counterclaim. But the district court
“decline[d] supplemental jurisdiction over Defendants’
counterclaim for trespass,” and so had no jurisdiction to
issue a ruling on it. District courts may not issue holdings
for claims on which they decline jurisdiction, so we vacate
the district court’s legal holding regarding the trespass claim.
V. CONCLUSION
The parking lot was a facility of the Lobster Shop, which
is a place of public accommodation. The parking lot should
have been accessible to Langer. We reverse the district
court’s judgment and remand with instructions to enter
judgment for Langer. If the ADA is to live up to its promise
of being a “comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities,” 8 U.S.C. § 12101(b)(1), we must interpret it to
require businesses to make facilities that are open to some
customers accessible to those that are disabled. And we
must not allow district courts to question the “legitimacy” of
an ADA plaintiff’s intent to return to a place of public
40 LANGER V. KISER
accommodation simply because the plaintiff is an ADA
tester or serial litigant.
The judgment of the district court is REVERSED. The
district court’s award of costs is VACATED.
COLLINS, Circuit Judge, dissenting:
After a bench trial in this Americans with Disabilities
Act (“ADA”) lawsuit, the district court found that Plaintiff-
Appellee Chris Langer was not a credible witness in light of
his less-than-trustworthy demeanor, the stark
inconsistencies in his testimony and past statements, and the
implausibility of some of his claims. In light of that
credibility determination, the court specifically found that
Langer did not have any intention of returning to and
patronizing the property at issue here—namely, the “Gour
Maine Lobster” shop, a store operated by a tenant of
Defendants-Appellants Milan and Diana Kiser. This factual
finding is not clearly erroneous, and it means that Langer
lacked Article III standing to seek prospective injunctive
relief. Because such relief is the only remedy available in a
private suit under the ADA, Langer’s ADA claim should
have been dismissed for lack of Article III standing.
Although the district court failed to recognize that its
findings meant that Langer lacked Article III standing, it
nonetheless proceeded to reject Langer’s ADA claim on the
merits. I would affirm the dismissal of Langer’s ADA claim
with prejudice, but only on the threshold ground that Langer
failed to prove Article III standing. Because the majority
finds standing and reverses the dismissal of Langer’s ADA
claim on the merits, I respectfully dissent.
LANGER V. KISER 41
I
A
Langer is a disabled man who requires the use of a
wheelchair for mobility. He is an avowed ADA “tester”
plaintiff who seeks to enforce that statute by routinely
bringing private actions against businesses that fail to
comply with the Act’s strict requirements. Over the last 18
years, Langer has filed roughly 2,000 lawsuits against
various businesses, including this action and six others that
Langer filed on the same day. More than 1,000 of Langer’s
ADA suits were filed between 2008 and 2020 in the Los
Angeles-based Central District of California, even though
Langer lived in the San Diego area the entire time.
The current suit is based on Langer’s attempt to visit the
Gour Maine Lobster shop in San Diego on September 19,
2017. Langer testified that the purpose of his visit was “for
lobster,” which he described as a food that he likes. The
Gour Maine Lobster shop is located on Barnett Avenue,
which is a major street in that part of San Diego. The shop’s
storefront is prominently marked overhead with a large sign
stating “Live Maine Lobster,” and the store’s street-facing
window also contains lettering stating “Gael’s Wallpaper.”
As Langer drove past the shop, which was on his left, he saw
a banner on the fence of an adjacent parking lot that said
“Live Maine Lobster, Goods, Wallpaper.” However, on
either side of the entrance to the lot were signs stating “No
Public Parking.” Langer proceeded past the shop to an
intersection where he could make a U-turn, and he then
headed back towards the shop and turned into the adjacent
parking lot.
Inside the lot, Langer saw a sign that said “Wallpaper”,
“Live Lobster”, and “Parking,” and that sign had an arrow
42 LANGER V. KISER
above it pointing to a designated parking space. Three
spaces over from that designated space was a marked
handicapped space, but it “lacked an ‘access aisle’ to the
right of the space.” The lack of such a dedicated aisle posed
an obstacle for Langer, who uses a special mobility van with
an extendable ramp that deploys from the passenger side.
Because the ramp must extend eight feet from the vehicle,
Langer can park only in handicap-accessible parking spaces
with a dedicated access aisle to the right. Langer could not
safely park in a handicapped space that lacks a dedicated
access aisle even if the adjacent space on the right happens
to be vacant, because if that space is taken by another vehicle
while he is shopping, he would then be unable to re-enter his
van.
Seeing that there was no spot in which he could park,
Langer did not attempt to enter the lobster shop. Instead,
using a camera that he carries with him for documenting
ADA violations and for other purposes, Langer proceeded to
take 53 photographs of the shop and the parking lot, and he
then left.
Langer has driven by the lobster shop on several
occasions, but he has not stopped there again since his first
visit. Langer drove by the store the night before trial, and he
saw that the gate into the adjacent parking lot was now
closed. Langer testified that, because he likes lobster and
“purchase[s] lobster all the time,” he would return to the
Gour Maine Lobster shop if it were made ADA compliant.
B
In January 2018, Langer sued the Kisers, alleging that
the parking lot violated Title III of the ADA. Specifically,
he alleged that the failure to provide an access aisle adjacent
to the handicap-accessible parking space constituted a
LANGER V. KISER 43
violation of the ADA. For his claims under the ADA,
Langer sought only injunctive relief, attorney fees, and costs.
Langer also asserted a pendent claim under California law,
and the Kisers filed a counterclaim against Langer for state
law trespass.
After a bench trial, the district court found that Langer
had failed to show a violation of the ADA and dismissed his
ADA claim with prejudice. En route to that result, the court
also made findings as to Langer’s credibility and his
standing under Article III.
The district court found that Langer’s testimony was “not
credible,” and that it was “rehearsed,” and “unreliable.”
Based on this adverse credibility determination, the district
court made a specific finding that, at the time Langer filed
this suit, Langer in fact “did not intend to return” to the Gour
Maine Lobster shop “to purchase lobster.” Relatedly, the
court concluded that Langer’s “purpose” in originally
visiting the property had been “to identify potential ADA
violations, not to actually purchase lobster.”
The court based its adverse credibility finding both on
Langer’s demeanor while testifying and on the substance of
what he claimed. The court observed that Langer’s direct
testimony “was delivered in a rote fashion” and “without
noticeable reflection.” When Langer was cross-examined,
the court noted, his counsel “appeared to be visibly
coaching” him, and Langer “peppered his testimony with
professions of uncertainty, lack of knowledge, or an inability
to recall.” As to the substance of Langer’s testimony, the
court noted that it was flatly contradictory as to critical
points. For example, when asked about the “Live Lobster”
parking sign with an arrow, Langer testified that he was “not
sure” whether he saw it from the street before entering the
44 LANGER V. KISER
lot, but then a few minutes later he stated that he saw it as he
was “driving down the street.” When confronted with this
inconsistency, Langer first tried to explain it as a
misunderstanding, claiming that counsel had been “talking
about as [Langer] was entering the lot,” and Langer was
“talking about when [he] was in the car.” Perhaps sensing
that this explanation made no sense, Langer stopped himself
in mid-sentence and then shifted to a different explanation,
claiming that “it may have been after [he] drove by again”
that he saw the sign from the street. An additional
“consideration with respect to [Langer’s] credibility,”
according to the district court, was the fact that he had given
contradictory dates for the timing of his visit to the lobster
shop. At trial, Langer testified that the visit occurred on
September 19, 2017, but in his declaration under penalty of
perjury in support of his summary judgment motion, Langer
averred that the date was February 27, 2017.
The district court also concluded that Langer’s
“professed intent to return” to the lobster shop was
undermined by evidence concerning his prior similar
statements about “whether he intended to return” to the
nearly 2,000 businesses he had previously sued for ADA
violations. For example, when asked about the other
businesses at issue in the six other suits he filed on the same
day as this case, Langer was largely “unfamiliar with those
suits as well as the businesses involved.” The court also
pointed to Langer’s 2018 deposition testimony in this case,
in which Langer testified that, for the nearly 1,000 cases he
had by then filed in federal court, he “intend[ed] to patronize
all of those 950 different businesses that [he] sued after they
corrected their violations.” These included more than 600
businesses in the Los Angeles-based Central District of
California, even though Langer lived in San Diego and had
LANGER V. KISER 45
never lived in the Los Angeles area. The court also noted
that Langer’s blanket testimony about intending to return to
every business he sued contradicted his statements in another
suit pending before the same district judge. In that case,
Langer was re-suing the same defendants as in a prior state
court case, and he sought to avoid the preclusive effect of
that earlier suit by claiming that, at the time that state suit
was brought, he “had no intention of returning” to that store
and so that state case did not address his “standing to seek
ADA injunctive relief.” The court concluded that the
contradictory and opportunistic nature of the latter claim
further undermined Langer’s credibility.
In questioning Langer’s professed intention to return to
the Gour Maine Lobster shop, the district court also pointed
to additional evidence concerning Langer’s lobster-
purchasing habits and his visit to this particular property. At
trial, Langer testified that he had recently bought a “big lot”
of lobster from Costco, which was delivered directly to him.
The district court concluded that, given the complete
absence of evidence about “whether the Lobster Shop has
better prices than Costco,” it was “doubtful” that Langer
“would frequently travel to [Gour Maine Lobster] to
purchase lobster, as he testified.” The court also noted that
Langer’s complaint in this case originally claimed that he
visited the property in question because he wanted to
patronize both the lobster shop and a “Smoke Shop” that
shared the same parking lot. Langer, however, “never
alleged that he smoked,” and he abandoned any claims
“relating to the Smoke Shop” before trial, thereby
“undercutting” the credibility of his original claim that he
had intended to return to the Smoke Shop.
Despite specifically finding that Langer did not intend to
return to Gour Maine to purchase lobster if it became ADA
46 LANGER V. KISER
compliant, the district court nonetheless “reluctantly” found
that Langer had standing to assert an ADA claim for
prospective injunctive relief. The court found such standing
“on the basis that [Langer] encountered a barrier on the date
of his[] visit” to the lobster shop. Although, in the district
court’s view, standing required an “intent to return in the
‘imminent future’ (rather than some day) but for the barriers
described,” the court concluded that it was bound to
“follow[] the Ninth Circuit’s instructions to liberally
construe standing in ADA cases.”
The court also noted that its conclusion on standing did
not “change the outcome,” because the court concluded that
Langer’s ADA claim failed on the merits anyway.
Specifically, the court held that, given the signage in and
around the parking lot, the “parking was for tenants only.”
As a result, the court held both that the lot was “not a place
of public accommodation” subject to the ADA and Langer
“was not denied equal access.” Having rejected Langer’s
ADA claim on the merits, the district court declined to
exercise supplemental jurisdiction over Langer’s pendent
state law claim and the Kisers’ pending state law
counterclaim for trespass.
II
The district court did not clearly err in rejecting, as not
credible, Langer’s testimony that he intended to patronize
the Gour Maine lobster shop if its parking lot were made
ADA compliant. But contrary to what the district court
seemed to think, that finding is fatal to Langer’s Article III
standing.
LANGER V. KISER 47
A
“[T]o satisfy Article III’s standing requirements, a
plaintiff must show (1) it has suffered an ‘injury in fact’ that
is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it
is likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.” Friends of the
Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 180–81 (2000) (citation omitted); see also Central
Sierra Env’t Res. Ctr. v. Stanislaus Nat’l Forest, 30 F.4th
929, 937 (9th Cir. 2022). These core standing requirements
reflect an “irreducible constitutional minimum” that must be
satisfied in every case. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992).
It is well settled that “a plaintiff must demonstrate
standing for each claim he seeks to press and for each form
of relief that is sought.” Town of Chester, N.Y. v. Laroe
Estates, Inc., 581 U.S. 433, 439 (2017) (citation omitted).
Here, Langer’s only federal claim is based on Title III of the
ADA, which prohibits discrimination “on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by
any person who owns, leases (or leases to), or operates a
place of public accommodation.” 42 U.S.C. § 12182(a).
Title III creates a private right of action on behalf of “any
person who is being subjected to discrimination on the basis
of disability,” id. § 12188(a)(1), but the remedies available
are limited to those “set forth in § 204 of the Civil Rights Act
of 1964, namely, ‘preventive relief, including . . . a
permanent or temporary injunction.’” Arroyo v. Rosas, 19
F.4th 1202, 1205 (9th Cir. 2021) (quoting 42 U.S.C.
48 LANGER V. KISER
§ 2000a-3(a)); see also 42 U.S.C. § 12188(a)(1).
Accordingly, Langer had the burden at trial to establish that
he has standing to seek prospective relief with respect to the
parking lot adjacent to the Gour Maine Lobster shop.
To satisfy that burden, Langer had to show that, at the
time the suit was filed, he had an ongoing or future injury-
in-fact that was traceable to the parking lot’s alleged lack of
compliance with the ADA and that would be redressed by
prospective injunctive relief. Instances of past
discrimination—such as allegedly occurred during Langer’s
September 2017 visit to the parking lot—are not sufficient,
without more, to establish standing to obtain prospective
injunctive relief. See City of Los Angeles v. Lyons, 461 U.S.
95, 102–03 (1983); Civil Rts. Educ. & Enf’t Ctr. v.
Hospitality Props. Tr. (CREEC), 867 F.3d 1093, 1098 (9th
Cir. 2017). To establish the requisite ongoing or future
injury, Langer had to show either that (1) he “intend[ed] to
return to a noncompliant place of public accommodation
where he will likely suffer repeated injury”; or (2) he was
“currently deterred from patronizing [the] public
accommodation due to [the] defendant’s failure to comply
with the ADA,” and “he ‘would shop at the [facility] if it
were accessible.’” Chapman v. Pier I Imports (U.S.) Inc.,
631 F.3d 939, 948, 950 (9th Cir. 2011) (en banc) (emphasis
added) (citation omitted). Langer does not rely on the first
theory, but only on the second.
In CREEC, we noted that this “deterrence” theory of
standing for prospective injunctive relief rests critically on
the premise that the facility at issue is one “to which [the
plaintiff] desires access.” 867 F.3d at 1098 (citation
omitted). That makes sense, because if the facility is one
that the plaintiff has no interest in patronizing anyway, there
is no sense in which the then-present ADA violations could
LANGER V. KISER 49
be said to “deter” the plaintiff from going and also no sense
in which the correction of those facilities would inure to the
concrete and particularized benefit of that plaintiff.
Accordingly, in finding the allegations of standing to be
adequate as to the hotels at issue in CREEC, we emphasized
that the plaintiffs there averred that “they will visit the hotels
when the non-compliance is cured” and that the existing
ADA violations therefore “prevented them from staying at
the hotels.” Id. at 1099. Indeed, we specifically held that,
“[w]ithout such averments, they would lack standing.” Id.That is, persons “who do not in fact intend to use the facility”
if it were made ADA compliant lack Article III standing. See
id.We have reiterated this critical aspect of the deterrence
theory of standing on many occasions. For example, in
Doran v. 7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008), we
underscored that, when an ADA plaintiff rests his standing
arguments on the theory that he is “deter[red] from
patronizing” the defendant’s facility, the plaintiff must plead
and prove “his intention to return in the future once the
barriers to his full and equal enjoyment of the goods and
services offered there have been removed.” Id. at 1041. And
in D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d
1031 (9th Cir. 2008), we specifically held that, in order for
the out-of-town plaintiff there to invoke a deterrence theory
of ADA standing against the defendant hotel, she “must
demonstrate her intent to return to the Santa Barbara area
and, upon her return, her desire to stay at the Best Western
Encina if it is made accessible.” Id. at 1037 (emphasis
added).
Accordingly, to establish his standing to sue for
prospective relief under the ADA, Langer had to prove by a
preponderance of evidence at trial that, at the time he filed
50 LANGER V. KISER
suit, he actually intended to patronize the Gour Maine
Lobster store if the parking lot adjacent to it were made ADA
compliant. See Lujan, 504 U.S. at 561 (holding that the
elements of standing “must be supported in the same way as
any other matter on which the plaintiff bears the burden of
proof”); Skaff v. Meridien N. Am. Beverly Hills, LLC, 506
F.3d 832, 838 (9th Cir. 2007) (“The existence of standing
turns on the facts as they existed at the time the plaintiff filed
the complaint.”).
B
After the bench trial in this case, the district court
expressly concluded that Langer “did not intend to return”
(emphasis added) to the Gour Maine Lobster shop “to
purchase lobster” if the store became ADA compliant.
Because Langer thus failed to prove that he would patronize
the Gour Maine Lobster shop if the challenged barriers were
removed, he thereby failed to establish a critical requirement
of the deterrence theory of standing upon which his ADA
claim was based. His ADA claim therefore should have
been dismissed for lack of Article III standing without
addressing the merits of his ADA claim. See Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 101–02 (1998).
In nonetheless finding that Langer had standing, the
district court relied on several premises that are all legally
erroneous. First, the court reasoned that Langer had standing
“on the basis that he encountered a barrier on the date of his[]
visit” in September 2017. That reasoning is directly contrary
to settled law confirming that a past injury, without more, is
not sufficient to establish standing to seek prospective
injunctive relief. See Lyons, 461 U.S. at 102–03; CREEC,
867 F.3d at 1098. Second, the court concluded that it was
bound by our “instructions to liberally construe standing in
LANGER V. KISER 51
ADA cases.” But no amount of liberal construction can
provide a basis for disregarding the “irreducible
constitutional minimum” requirements of standing at issue
here. Lujan, 504 U.S. at 560. Third, the court concluded
that it should err on the side of finding standing because it
concluded that Plaintiff loses on the merits anyway. That
reasoning rests on a variant of the doctrine of “hypothetical
jurisdiction” that was squarely rejected in Steel Co. See 523
U.S. at 101–02. In short, the district court erred in failing to
recognize that its factual findings were fatal to Langer’s
standing.
C
The majority nonetheless concludes that Langer has
standing, but its grounds differ from those given by the
district court. First, the majority holds that the “district
court’s credibility determination cannot stand,” and the
majority therefore rejects that court’s relevant factual
findings. See Opin. at 16. Second, the majority concludes
that, under what it considers to be the correct view of the
facts and the law, Langer “has met his burden to establish
standing.” See Opin. at 25. The majority’s conclusions are
wrong.
1
We review the district court’s factual findings after a
bench trial only for clear error, and we must give “due regard
to the trial court’s opportunity to judge the witnesses’
credibility.” See FED. R. CIV. P. 52(a)(6). Here, the district
court’s factual finding that Langer did not intend to patronize
the Gour Maine Lobster shop in the future is unassailable,
and it is the majority’s reasons for setting it aside that are
clearly erroneous.
52 LANGER V. KISER
As explained earlier, the district court gave multiple
reasons for concluding that Langer was not credible when he
claimed that he would patronize the Gour Maine Lobster
shop if it were made ADA compliant. Unlike us, the district
court observed the live testimony, and it noted that Langer’s
demeanor and delivery was “rote” and “rehearsed” and that
his attorney was “visibly coaching” him on the stand. The
district court also pointed out that Langer’s testimony was at
times internally inconsistent and contrary to his prior sworn
testimony or statements. The court concluded that the
credibility of Langer’s professed future interest in buying
lobster from this particular shop was further undermined by
the fact that (1) Langer’s supposed reason for initially
visiting this particular property was the dubious claim that
Langer also wanted to patronize an adjacent smoke shop;
and (2) Langer conceded that lobster was readily available
for delivery from Costco and he had recently bought a “big
lot” there. Finally, noting that Langer had brought nearly
2,000 ADA lawsuits, more than half of which were filed in
another federal district, the court found it doubtful that
Langer really intended to patronize this enormous number of
businesses. Considering all of these circumstances, the
district court concluded that Langer was not credible when
he claimed that he was interested in patronizing Gour Maine
Lobster if it became ADA compliant.
All of the points identified by the district court are proper
considerations in weighing Langer’s testimony, and there is
no clear error in the court’s conclusions. Indeed, the district
court’s detailed findings concerning Langer’s demeanor and
the multiple clear contradictions in his testimony, see supra
at 43–44, are alone sufficient to support the district court’s
adverse credibility determination. See, e.g., Valenzuela v.
Michel, 736 F.3d 1173, 1177 (9th Cir. 2013) (finding no
LANGER V. KISER 53
clear error in adverse credibility determination in light of
contradictions and coaching); Nicacio v. INS, 797 F.2d 700,
705 (9th Cir. 1986) (noting that failure to recall details is a
proper consideration in evaluating credibility).
Although the majority explicitly “reject[s]” the district
court’s “adverse credibility determination,” see Opin. at 15,
the majority ignores much of that court’s reasoning and fails
even to address the court’s findings concerning Langer’s
demeanor and multiple inconsistent statements. Instead, the
majority’s conclusion rests primarily on the view that the
district court committed legal error by relying on evidence
concerning Langer’s extensive litigation history. Such
history, the majority categorically declares, “has no place in
our standing analysis.” See Opin. at 15. The majority claims
that our decision in D’Lil supposedly established this
evidentiary privilege against consideration of an ADA
plaintiff’s litigation history, see Opin. at 16, but that is
wrong.
D’Lil merely states that, because using “past litigation”
to assess credibility in ADA cases raises the potential for
discouraging the vigorous private enforcement that
Congress clearly intended, any such consideration of
litigation history “warrants our most careful scrutiny.” 538
F.3d at 1040. But while we must therefore “be particularly
cautious about affirming credibility determinations that rely
on a plaintiff’s past ADA litigation,” id., that does not mean
that the underlying factual assertions made by a plaintiff in
prior litigation are somehow off limits simply because they
were made in litigation and not in some other forum. Just as
the inclusion of an underlying fact in an attorney-client
communication does not somehow make that underlying fact
privileged, see Upjohn Co. v. United States, 449 U.S. 383,
395–96 (1981), so too the underlying factual assertions
54 LANGER V. KISER
reflected in Langer’s nearly 2,000 ADA suits are not in any
sense privileged and are properly considered for whatever
relevance or logical significance they may have. Here, there
is no dispute that Langer’s prior ADA suits reflected an
underlying factual contention that he actually had the
subjective intention to patronize each and every one of those
stores if it were made ADA compliant. That underlying
fact—just like any other relevant fact—was properly
considered by the district court in assessing Langer’s
credibility.
Our opinion in D’Lil confirms that consideration of
litigation history is not governed by a categorical rule, but
instead turns upon the specific facts of a given case. In
D’Lil, we concluded that the record did not support the
district court’s view that it was “implausible that a plaintiff
with approximately sixty prior ADA suits sincerely ‘intends
to return to nearly every place she sues.’” 538 F.3d at 1040.
The notion that D’Lil actually intended to patronize that
relatively modest number of facilities was hardly
implausible given the undisputed record “evidence of
D’Lil’s extensive and frequent travel throughout the state.”
Id. Moreover, D’Lil had presented undisputed evidence
establishing “specific reasons” why she was likely to return
to Santa Barbara and to the defendant hotel. Id. D'Lil thus
did nothing more than make a case-specific assessment that
the underlying facts about the plaintiff’s other ADA suits did
not provide a basis, in that case, for questioning her
otherwise amply established intention to return to Santa
Barbara and to patronize the defendant’s hotel if it were
made ADA compliant. D’Lil did not establish, as the
majority would have it, an evidentiary privilege that
precludes—as having “no place in our standing analysis”—
any consideration of the implausibility of a litigant’s
LANGER V. KISER 55
assertion that he or she actually intends to patronize
thousands of stores. See Opin. at 15; see also Opin. at 21
(holding that “there must be something other than the fact
that the litigant files a lot of ADA cases to instill doubt in his
testimony”).
The majority alternatively suggests that, even under a
case-specific assessment of the trial record, the facts
concerning Langer’s litigation history do not in fact
undermine his credibility. See Opin. at 18–21. According
to the majority, Langer’s declared intention to patronize each
and every one of nearly 2,000 businesses (more than half of
which were in the Los Angeles area) “says little” about the
credibility of his declared intention to patronize the Gour
Maine Lobster shop, particularly in light of Langer’s
“professed taste for lobster,” the proximity of the store to his
home, and the multiple times Langer said that he drove by
the business. See Opin. at 17.
But in reaching these conclusions, the majority simply
ignores the “significantly deferential” standard of review,
under which we review the district court’s factual findings
only for clear error. Concrete Pipe & Prods. of Cal., Inc. v.
Construction Laborers Pension Tr. for S. Cal., 508 U.S. 602,
623 (1993). It is for the district court to assess credibility
and to choose among competing reasonable inferences, and
that court properly did so. The court provided specific
reasons for concluding that Langer did not come across as a
credible witness, and it also explained why his professed
subjective interest in patronizing the Gour Maine Lobster
store seemed doubtful. And as to Langer’s litigation history
specifically, the court properly concluded that—in contrast
to the merely 60 facilities at issue in D’Lil—it was
implausible to think that Langer intended to actually
patronize the nearly 2,000 businesses that he had sued.
56 LANGER V. KISER
Because “the district court’s account of the evidence is
plausible in light of the record viewed in its entirety, [we]
may not reverse it even though convinced that had [we] been
sitting as the trier of fact, [we] would have weighed the
evidence differently.” Anderson v. City of Bessemer City,
470 U.S. 564, 573–74 (1985). The majority flagrantly
violates that standard by reweighing the evidence for itself
and drawing debatable inferences that are more to its liking.
Accordingly, there is no clear error in the district court’s
decision to discredit Langer’s claim that he intended to
patronize the Gour Maine Lobster shop if it were ADA
compliant.
2
The majority alternatively concludes that the district
court committed legal error by focusing on whether Langer
intended to return to the Gour Maine Lobster store as a
patron. Under the majority’s reasoning, even if the district
court did not clearly err in finding that Langer had no
intention of patronizing the store in the future, that finding
was insufficient to defeat Langer’s standing. According to
the majority, an intention to return as an ADA tester is
sufficient to establish Langer’s standing, even if he has no
interest in patronizing the store. See Opin. at 19–20, 25–26.
The majority’s view is contrary to precedent and would
eviscerate the strictures of Article III.
As explained earlier, Langer’s theory of injury-in-fact is
based on the deterrence theory of standing endorsed in our
en banc opinion in Chapman. Under that theory, an ADA
plaintiff has a sufficient current injury-in-fact if that plaintiff
is “currently deterred from patronizing [the] public
accommodation due to [the] defendant’s failure to comply
with the ADA,” and “he ‘would shop at the [facility] if it
LANGER V. KISER 57
were accessible.’” Chapman, 631 F.3d at 950 (emphasis
added) (citation omitted). This deterrence theory of standing
is distinct from the alternative theory under which an ADA
plaintiff may establish a sufficiently imminent future injury
based on a likelihood to visit the premises in the future while
it is still not ADA compliant. Id. at 948. Under that latter
theory, the ADA plaintiff would actually encounter the
barriers and suffer the resulting injury-in-fact. But under the
deterrence theory, the injury is not that the plaintiff will
encounter the barriers. Rather, the injury-in-fact is that, due
to the presence of barriers that the plaintiff wants to avoid
and intends to avoid, the plaintiff is currently being deprived
of an opportunity to patronize a facility that the plaintiff
otherwise would patronize and that the plaintiff intends to
patronize if the barriers are removed. As the district court
correctly concluded, Langer failed to carry his burden of
proof on that point.
The majority nonetheless concludes that the district court
applied the wrong legal standard and that the requirements
of Chapman’s deterrence theory of ADA standing can be
satisfied even in the absence of any desire or intention to
patronize the property if the barriers were removed.
According to the majority, the deterrence theory of standing
can be satisfied merely by showing that the plaintiff intends
to return to the compliant property for purposes of verifying,
as an ADA “tester,” that such compliance has been achieved.
That is flatly wrong.
The whole premise of the deterrence theory of ADA
standing is that the plaintiff’s current desire to patronize the
store, and intention to do so when the barriers are removed,
gives rise to a current injury that would be redressed by the
sort of prospective injunctive relief that is the ADA’s sole
remedy. See Chapman, 631 F.3d at 949–50. That is, under
58 LANGER V. KISER
the deterrence theory, an ADA plaintiff who is being
deprived of access to a desired store thereby suffers a
concrete and particularized injury that is sufficient for
Article III purposes. But in the absence of any such current
or future desire to patronize the store, an ADA plaintiff
cannot invoke the deterrence theory to establish a cognizable
injury-in-fact. In such circumstances, the plaintiff’s only
“injury” is the unhappiness of knowing that some store he
does not want to patronize is not obeying the law, and his
only theory of redressability is that he would be gratified to
see that store brought into compliance with the ADA. “But
although a suitor may derive great comfort and joy from the
fact . . . that a wrongdoer gets his just deserts, or that the
Nation’s laws are faithfully enforced, that psychic
satisfaction is not an acceptable Article III remedy because
it does not redress a cognizable Article III injury.” Steel Co.,
523 U.S. at 107.
The majority is therefore wrong in contending that
Langer sufficiently established his standing based on
evidence “that he returned to the premises since filing the
lawsuit to assess its compliance with the ADA.” See Opin.
at 17. As an initial matter, the majority misstates the record,
because the only evidence is that Langer had “gone by” the
store on “four or five” occasions, not that he actually stopped
and personally encountered the property and its then-current
condition. Indeed, that is why Langer rested solely on a
deterrence theory of standing and not on Chapman’s
alternative theory that he had “show[n] a likelihood of future
injury” by proving that he “intend[ed] to return to a
noncompliant accommodation and [was] therefore likely to
reencounter a discriminatory architectural barrier.” 631 F.3d
at 950. But in the absence of proof of a future likelihood of
personally encountering the barriers, and in the absence of a
LANGER V. KISER 59
desire to patronize the business, an ADA plaintiff who
merely drives by a store and observes its parking lot suffers
no cognizable injury. Likewise, an ADA plaintiff who
intends to visit such a store, after the barriers are removed,
solely in order to verify compliance with the ADA is
asserting merely a generalized interest in enforcement of the
law that is insufficient for Article III standing.
The majority nevertheless contends that its expansive
theory of tester standing was adopted by this court in
CREEC. See Opin. at 20. That is wrong. In the cited portion
of CREEC, we addressed and rejected the statutory
argument that the text of the ADA excluded “tester”
plaintiffs. 867 F.3d at 1101–02. Nothing in that discussion
suggests, much less holds, that an ADA plaintiff who has no
desire to patronize a business can establish Article III
standing under a deterrence theory merely by claiming to be
a “tester.” On the contrary, elsewhere in CREEC, we noted
that the named plaintiffs in that case had adequately alleged
their intention to stay at the hotels “when the non-
compliance is cured,” and we said that, “[w]ithout such
averments, they would lack standing” under a deterrence
theory. Id. at 1099. CREEC thus merely held that nothing
in the text of the ADA’s private right of action excludes from
its coverage a plaintiff whose desire to patronize a facility is
motivated in whole or in part by a desire to assess
compliance with the ADA. Id. at 1101. But that holding
about the text of the ADA did not, and could not, purport to
alter the “irreducible” constitutional requirements of Article
III standing. See Spokeo, Inc. v. Robins, 578 U.S. 330, 339
(2016) (“[I]t is settled that Congress cannot erase Article
III’s standing requirements by statutorily granting the right
to sue to a plaintiff who would not otherwise have standing.”
(citation omitted)). And nothing in CREEC purported to
60 LANGER V. KISER
alter Chapman’s articulation of the requirements of the
deterrence theory of ADA standing, which (unlike the
majority’s radical expansion of that theory) is consistent
with those constitutional limits.
Under the majority’s extraordinary theory, if an ADA
plaintiff has an interest in examining a property in the future
to confirm its compliance with the ADA, that plaintiff has
standing to sue the owner to enforce such compliance, even
if the plaintiff has no interest in patronizing the facility and
will not personally encounter its barriers in the future. This
is pure private attorney general standing of a sort that Article
III simply does not permit a plaintiff to invoke in federal
court. See, e.g., Lee v. American Nat’l Ins. Co., 260 F.3d
997, 1001–02 (9th Cir. 2001).
It is particularly odd for the majority to rely on such a
theory of standing here, because Langer himself insisted
under oath that he was not relying on such a view. When
asked at his deposition whether it was his “purpose in going
to these businesses, to find ADA violations,” Langer said
“No” and instead agreed that he was “genuinely going to
these businesses because [he] want[s] to patronize them all.”
Ironically, even the majority apparently thinks that Langer is
not credible.
III
For the foregoing reasons, the district court did not
clearly err in finding that Langer’s testimony was not
credible and that Langer had no intention of patronizing the
Gour Maine Lobster store if it were made ADA compliant.
That factual finding is fatal to Langer’s theory of Article III
standing, which rested on the contention that, at the time the
suit was filed, he was deterred from visiting a store that he
wanted to patronize and would patronize if it were made
LANGER V. KISER 61
ADA compliant. Because the district court lacked
jurisdiction over the only federal claim in the case, it did not
abuse its discretion in declining to exercise supplemental
jurisdiction over the remaining state law claims in the case.
I would therefore affirm the district court’s judgment on
these grounds. I respectfully dissent.