Molski v. Evergreen Dynasty ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAREK MOLSKI; DISABILITY RIGHTS 
ENFROCEMENT EDUCATION SERVICES:
HELPING YOU HELP OTHERS, a
No. 05-56452
California public benefit
corporation, D.C. No.
Plaintiffs-Appellants, CV-04-00450-ER
v.  Central District
of California,
EVERGREEN DYNASTY CORP., d/b/a Los Angeles
MANDARIN TOUCH RESTAURANT;
ORDER
BRIAN MCINERNEY; KATHY S.
MCINERNEY, as joint tenants,
Defendants-Appellees.

Filed April 7, 2008
Before: Jerome Farris and Ronald M. Gould, Circuit Judges,
and Kevin Thomas Duffy,* Senior Judge.
Order;
Dissent by Judge Berzon;
Dissent by Chief Judge Kozinski
ORDER
All judges on the panel have voted to deny Plaintiff/
Appellant’s Petition for Panel Rehearing, and so that petition
is DENIED.
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
3643
3644 MOLSKI v. EVERGREEN DYNASTY CORP.
The full court has been advised of Defendant/Appellee’s
Petition for Rehearing En Banc, and a judge of this court
requested a vote on whether this case should be reheard en
banc; however, a majority of the active judges did not vote in
favor of en banc consideration. Fed. R. App. P. 35. Accord-
ingly, the Petition for Rehearing En Banc is also DENIED.
No further petitions for rehearing or rehearing en banc shall
be considered.
BERZON, Circuit Judge, with whom KOZINSKI, Chief
Judge, and PREGERSON, REINHARDT, HAWKINS, Mc-
KEOWN, WARDLAW, W. FLETCHER, and PAEZ, Circuit
Judges, join, dissenting from the denial of rehearing en banc:
Pre-filing orders infringe the fundamental right to access
the courts. They are properly reserved for extreme situations
where there is absolutely no possibility that the allegations
could support judicial relief and filing the suit is a burden on
both the court and the opposing party — a costly exercise in
futility. Under those circumstances, less draconian sanctions
will not suffice. Because, by any measure, this is not such a
case, I respectfully dissent from the denial of rehearing en
banc.
I.
The First Amendment right to “petition the Government for
a redress of grievances” — which includes the filing of law-
suits — is “one of ‘the most precious of the liberties safe-
guarded by the Bill of Rights.’ ” BE & K Constr. Co. v.
NLRB, 536 U.S. 516, 524 (2002) (quoting United Mine Work-
ers v. Illinois Bar Assn., 389 U.S. 217, 222 (1967)). Conse-
quently, a determination that a litigant has repeatedly filed
frivolous and harassing lawsuits itself implicates his First
Amendment interest in access to the courts. Indeed, where an
individual’s use of the courts is declared abusive or baseless,
MOLSKI v. EVERGREEN DYNASTY CORP. 3645
“the threat of reputational harm[,] . . . different and additional
to any burden posed by other penalties,” is alone sufficient to
trigger First Amendment concerns. See id. at 530.
Because the right to access the courts implicates due pro-
cess and First Amendment rights, courts have been exceed-
ingly reluctant to restrict such access. We have noted that
because a pre-filing order “restricts an individual’s access to
the court system, it is an extraordinary remedy that should be
narrowly tailored and rarely used.” Moy v. United States, 906
F.2d 467, 470 (9th Cir. 1990). This is so even though litigants
and lawyers covered by a pre-filing order are not entirely
enjoined from filing suits covered by the order, but must
obtain the court’s approval first. This pre-clearance require-
ment is in itself a serious imposition on the right to access the
courts: “Among all other citizens, he is to be restricted in his
right of access to the courts. As far as he is concerned, his
future filings run the risk of delay and even possible rejection
before he can call upon defendants to respond to those filings.
. . . We cannot predict what harm might come to him as a
result, and he should not be forced to predict it either. What
he does know is that a Sword of Damocles hangs over his
hopes for federal access for the foreseeable future.” Id.
Because it interferes with the basic right of court access,
“[a]n injunction cannot issue merely upon a showing of liti-
giousness.” Id. Rather, “[t]he plaintiff’s claims must not only
be numerous, but also be patently without merit.” Id. (empha-
sis added). Other circuits have similarly emphasized the
extreme caution to be used in imposing such orders. See, e.g.,
In re Powell, 851 F.2d 427, 434 (D.C. Cir. 1988) (“[M]ere
litigiousness alone does not support the issuance of an injunc-
tion. Both the number and content of the filings bear on a
determination of frivolousness or harassment.” (citation and
footnote omitted)); In re Oliver, 682 F.2d 443, 446 (3d Cir.
1982) (“Oliver’s litigiousness alone would not support an
injunction restricting his filing activities. . . . [L]egitimate
3646 MOLSKI v. EVERGREEN DYNASTY CORP.
claims should receive a full and fair hearing no matter how
litigious the plaintiff may be.”).
The insistence that potentially meritorious suits, however
numerous and similar, cannot be the basis for a pre-filing
order has echoes in analogous areas of law that similarly
reflect the First Amendment protection accorded court access.
Under California law, for example, the California Supreme
Court, emphasizing the importance of assuring access to the
courts, has repeatedly held that improper motive alone is not
sufficient basis for establishing the tort of abuse of process.
See Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss
& Karma, Inc., 728 P.2d 1202, 1209 (Cal. 1986) (“[T]he mere
filing or maintenance of a lawsuit — even for an improper
purpose — is not a proper basis for an abuse of process
action.”). The United States Supreme Court has established a
similar test in determining when litigation can be enjoined or
declared unlawful: “[O]ur holdings [in prior cases] limited
regulation to suits that were both objectively baseless and
subjectively motivated by an unlawful purpose.” BE & K
Constr., 536 U.S. at 531 (emphasis in original) (discussing the
sanctioning of litigation under the antitrust laws or as an
unfair labor practice under the National Labor Relations Act).
II.
The panel opinion pays lip service to the long-standing and
constitutionally-based principle that “[a]n injunction cannot
issue merely upon a showing of litigiousness. The plaintiff’s
claims must not only be numerous, but also be patently with-
out merit.” 500 F.3d 1047, 1059 (9th Cir. 2007) (quoting
Moy, 906 F.2d at 470). Yet, neither the panel nor the district
court contend that all or most of Molski’s hundreds of ADA
claims actually lack merit. In fact, both expressly concede that
they are probably meritorious. Id. at 1062 (“We acknowledge
that Molski’s numerous suits were probably meritorious in
part — many of the establishments he sued were likely not in
compliance with the ADA.”); Molski v. Mandarin Touch
MOLSKI v. EVERGREEN DYNASTY CORP. 3647
Rest., 347 F. Supp. 2d 860, 865 (C.D. Cal. 2004) (“It is possi-
ble, even likely, that many of the businesses sued [by Molski]
were not in full compliance with the ADA.”). Instead, the
panel relies on the district court’s finding that Molski’s
“claims of injury . . . were patently without merit,” and con-
cludes this is enough to make the litigation frivolous. 500
F.3d at 1059 (emphasis added).
As an initial matter, the district court’s conclusion that
Molski fabricated many allegations of injury, which was
affirmed by the panel, simply cannot meet our standard for
factual frivolousness. To be frivolous, factual allegations must
be “wholly fanciful” or “conflicting with facts of which the
district court may take judicial notice.” Franklin v. Murphy,
745 F.2d 1221, 1228 (9th Cir. 1984) (internal quotation marks
omitted) (quoting Crisafi v. Holland, 655 F.2d 1305, 1307-08
(D.C. Cir. 1981) (per curiam)); see also In re Thomas, 508
F.3d 1225, 1227 (9th Cir. 2007) (importing Franklin’s factual
frivolousness standard to reviewing appeals submitted pursu-
ant to pre-filing orders).
The district court and the panel relied solely upon the simi-
larity and multitude of Molski’s injuries: Numerous com-
plaints alleged that he incurred physical injuries while
attempting to overcome non-ADA-compliant public accom-
modations. The panel asserts that “it is very unlikely that
Molski suffered the same injuries, often multiple times in one
day, performing the same activities — transferring himself
from his wheelchair to the toilet or negotiating accessibility
obstacles. Common sense dictates that Molski would have
figured out some way to avoid repetitive injury-causing activ-
ity; even a young child who touches a hot stove quickly learns
to avoid pain by not repeating the conduct.” 500 F.3d at 1059.
On this reasoning, the panel concludes that the district court’s
finding that Molski “plainly lied” in his injury allegations was
not clearly erroneous.
But the similarity of these injuries alone does not lead to
the conclusion that the allegations are patently false. First, as
3648 MOLSKI v. EVERGREEN DYNASTY CORP.
the panel concedes, “[b]ecause many of the violations Molski
challenged were similar, it would have been reasonable for
Molski’s complaints to contain similar allegations of barriers
to entry, inadequate signage, and so on.” Id. In addition, Mol-
ski provided a reasonable explanation for the similarity of his
injuries and the injurious nature of seemingly small acts. As
another district court explained, in rejecting the district
court’s analysis here and declining to find Molski a vexatious
litigant:
Molski explains that, as a paraplegic, he relies
entirely on his upper extremities and the strain of the
improper transfers to the toilet are real injuries to
him. Even though the pain might be short-lived, the
cumulative effect of the multiple injuries is to wear
down his upper extremities, joints, and shoulders.
Molski also frequently injures his buttocks when
forced to transfer to a toilet that is not configured in
compliance with the ADA. Molski explains that,
because he sits on his buttocks all day, bruises on his
buttocks do not heal quickly or easily. . . .
Molski supports the veracity of his claims of injury
with a declaration from his treating physician, Dr.
Thomas Lyle Hedge. . . . Dr. Hedge declares that
Molksi [sic] has suffered “repetitive, continuous and
cumulative” trauma/physical injury to the upper
extremities from confronting architectural barriers
such as unpaved pathways and toilets without proper
grab bars or at an improper height.
Molski v. Rapazzini Winery, 400 F. Supp. 2d 1208, 1210-11
(N.D. Cal. 2005) (record citations omitted). Given this explana-
tion,1 the factual allegations of injury here were simply not
1
Molski and Dr. Hedge both submitted declarations in the instant case
providing the same explanations accepted in Rapazinni Winery.
MOLSKI v. EVERGREEN DYNASTY CORP. 3649
“wholly fanciful,” Franklin, 745 F.2d at 1228, even if the
incremental nature of the alleged injury was not spelled out.
But even if Molski’s allegations of injury were meritless,
the pre-filing order would not be justified: The allegations of
injury are entirely irrelevant to Molski’s ADA causes of
action; past actual injury is not necessary to bring a claim
under Title III of the ADA. Molski v. M.J. Cable, Inc., 481
F.3d 724, 730 (9th Cir. 2007). Allegations of injury are not
necessary either to sue for statutory damages under Califor-
nia’s Unruh Act. Botosan v. Paul McNally Realty, 216 F.3d
827, 835 (9th Cir. 2000). The panel appears to so recognize,
but suggests that there are some scenarios under which Mol-
ski might want to pursue actual rather than statutory damages
under state law, so the allegations of physical injury “are not
entirely irrelevant.” 500 F.3d at 1060 n.6. That may be. But
the tangential connection of the physical injury allegation to
the potential for success in the cases certainly makes it diffi-
cult to characterize the complaints as a whole as frivolous in
any ordinary sense of that term.
The panel’s other complaints similarly fail to justify a pre-
filing order. The panel complains that Molski sought daily
statutory damages under California law, yet recognizes that
these claims “might have been legally justified” because of a
split among district courts on the issue. Id. at 1060 & n.5. The
panel also relies upon the fact that Molski often waited a year
before filing suit, which greatly increased the statutory dam-
ages claim. But this conduct is permitted under the statute; if
there is a problem created by the statutory scheme, the appro-
priate fix is legislative, not judicial.
In sum: The panel justifies its ruling by relying on
assertedly false claims of injury that would be relevant only
under California law and on permissible litigation strategies
that increase Molski’s damages claim under California law.
Not only do these reasons entirely fail to justify the extreme
sanction of a pre-filing order, they are also exclusively con-
3650 MOLSKI v. EVERGREEN DYNASTY CORP.
cerned with Molski’s claims under state law. Yet the pre-
filing order enjoins Molski from filing only federal ADA
claims. “If we are to permit pre-filing restrictive orders, these
orders must be narrowly tailored to closely fit the specific
vice encountered.” De Long v. Hennessey, 912 F.2d 1144,
1148 (9th Cir. 1990). At the very least, the pre-filing order
should restrict Molski’s ability to file access claims only
under California law. What we have here, in other words, is
not a “close[ ] fit” but a grotesquely oversized pre-filing
order, going far beyond the only “vice[s] encountered” in the
complaints, none of which have anything at all to do with the
allegations of ADA violations.
III.
I recognize that some of the tactics used by Molski and the
Frankovich Group are cause for concern. But there are ample
avenues for addressing any concerns raised by this case —
avenues that do not involve one judge, acting alone, imposing
a pre-filing order that covers an entire district.2
Let me emphasize the impact of the district court’s deci-
sion: One judge has determined that Molski and the
Frankovich Group are forbidden to file ADA complaints with-
out prior approval in the entire Central District. That judge
has not in any way specified what standards will be used in
deciding which cases may be filed and which may not. Other
judges in that district may disagree with the imposition of the
pre-filing order — in fact, a majority may. Yet, they have no
say at all in the matter. The likelihood of internal disagree-
ment is highlighted by the fact that a judge in the Northern
District has determined, on a similar record, that Molski
should not be subjected to a pre-filing order. Molski v. Rapaz-
zini Winery, 400 F. Supp. 2d at 1209-12. So Molski can now
2
Perhaps because of the existence of so many alternative avenues for
sanctioning counsel, pre-filing orders have been overwhelmingly, if not
exclusively, issued against pro se parties.
MOLSKI v. EVERGREEN DYNASTY CORP. 3651
bring ADA suits in the Northern District seeking to assure
access in places of public accommodation, but cannot do so
in the Central District without subjecting himself to pre-
screening by a single judge.
There are alternative mechanisms for addressing the per-
ception that a litigant or lawyer is engaged in widespread liti-
gation abuse — mechanisms that do not allow one judge,
acting alone, to bar the courthouse door in perpetuity. The
Central District, like most districts, has detailed procedures to
investigate and sanction attorney misconduct. See C.D. CAL.
LOCAL R. 83-3. This process permits the involvement of mul-
tiple judges and members of the bar, rather than the one-judge
disciplinary committee presented here. Or, if the conduct of
ADA litigation concerns the entire Central District judiciary,
the court as a whole can issue a general order setting forth
particular guidelines for ADA access cases, as the Northern
District has. See N.D. CAL. GEN. ORDER 56.
Moreover, Rule 11 is designed to deal on a case-by-case
basis with the precise abuse found here: false factual allega-
tions. See FED. R. CIV. P. 11(b)(3), (c)(1) (requiring an attor-
ney or unrepresented party to certify that “the factual
contentions [contained in a pleading or motion] have evidenti-
ary support” and permitting sanctions on “any attorney, law
firm, or party that violated the rule or is responsible for the
violation”). As far as I can tell, Rule 11 sanctions have never
been imposed on either Molski or the Frankovich Group for
their ADA litigation. Surely a lesser sanction in an individual
case should first be attempted to cure any offending conduct
before a broad pre-filing order covering all future cases is
imposed. See Lysiak v. CIR, 816 F.2d 311, 312 (7th Cir. 1987)
(imposing pre-filing order where “the pattern of baseless liti-
gation generated by Lysiak, even after prior sanction, demon-
strates that it would be fruitless simply to impose an
additional monetary penalty”).
3652 MOLSKI v. EVERGREEN DYNASTY CORP.
IV.
At bottom, the panel may be uncomfortable with ADA liti-
gation that it suspects is being brought to induce settlement.3
This concern with serial access litigation is shared by many,
rightly or wrongly. But the phenomenon is a creature of our
federal and state statutes and cannot justify the issuing of pre-
filing orders that enjoin meritorious lawsuits. Moreover, while
self-interest surely drives serial access litigation in part, the
reason there can be so many lawsuits about access to public
accommodations is that there are so many violations of the
laws that seek to assure access, and so many disabled people
are thwarted from participating equally in the activities of
everyday life. I fear that the panel’s opinion may be widely
used to restrict critical private enforcement of civil rights laws
by other litigants and lawyers. This case should have been
heard en banc to prevent that result.
KOZINSKI, Chief Judge, with whom Judges REINHARDT,
W. FLETCHER and PAEZ join, dissenting from the order
denying the petition for rehearing en banc:
I agree with Judge Berzon that neither the district court nor
our panel had an adequate basis for finding that Molski
“plainly lied” about his injuries, or that his “claims of injury
. . . were patently without merit.” Molski v. Evergreen
Dynasty Corp., 500 F.3d 1047, 1059 (9th Cir. 2007); see Mol-
ski v. Mandarin Touch Restaurant, 347 F. Supp. 2d 860, 867
(C.D. Cal. 2004). But I do so on an additional ground: The
district court had no power to make such findings, nor a
3
It is not clear why the settlements are so troubling. Judging by the doz-
ens of settlement agreements in the record, the vast majority of these set-
tlements include provisions for remedying barriers to access — precisely
the goal sought by the ADA — as well as small amounts of monetary
relief and payment of attorney’s fees.
MOLSKI v. EVERGREEN DYNASTY CORP. 3653
record to base them on, because it never held an evidentiary
hearing.
Oh, sure, the docket indicates (somewhat misleadingly) that
a “hearing” was held on the vexatious litigant motion, but it
plainly was not an evidentiary hearing. What happened
instead is this: The judge spent the first half of the hearing
berating Molski and his lawyers, in pretty much the same
terms as his subsequent order—which suggests that his views
were cast in cement by the time of the “hearing.” Compare
Excerpts of Record (ER) 1094 (“After examining plaintiff’s
extensive collection of lawsuits . . . .”), and ER 1097 (“The
Court simply does not believe that Molski suffered 13 identi-
cal injuries generally to the same part of his body, in the
course of performing the same activity, over a five-day peri-
od.”), with Mandarin Touch Restaurant, 347 F. Supp. 2d at
864 (“After examining Plaintiff’s extensive collection of law-
suits . . . .”), and id. at 865 (“The Court simply does not
believe that Molski suffered 13 nearly identical injuries, gen-
erally to the same part of his body, in the course of perform-
ing the same activity, over a five-day period.”). After the
judge was done, Molski’s counsel was allowed to address the
court, ER 1102-06, but no witnesses testified, no evidence
was presented, there was no cross-examination and there were
no evidentiary rulings—in short, there was no trial. Molski,
whose veracity the district court impugned, was not even
present.
How then did the judge manage to make factual findings,
and how does this panel affirm those findings on appeal? It’s
bad enough that the panel relies on its own armchair wisdom
about plaintiff’s supposed ability to avoid repetitive injuries,
Evergreen Dynasty, 500 F.3d at 1059, rather than looking to
whether the record supports the findings of the district court.
Worse still is that there is no record the panel could consult
if it were of a mind to do so. There is no statement at all from
Molski himself, as the complaint is not verified. The panel
does not find the absence of an evidentiary record remarkable,
3654 MOLSKI v. EVERGREEN DYNASTY CORP.
perhaps laboring under the mistaken impression that there
must be an evidentiary record somewhere under all that paper.
Still and all, those of us unfamiliar with the alchemy of mak-
ing findings based on no evidence—and affirming them based
on no record—would dearly love to know why the absence of
an evidentiary record is not an insuperable obstacle to affirm-
ing a district court’s factual finding.
The bottom line is this: The district court made, and the
panel affirms, a finding that Molski is a liar and a bit of a
thief, without any evidence at all. The district court and the
panel also manage to find that plaintiff just couldn’t have suf-
fered the injuries he alleges, without the benefit of an expert
or any other proof. But does the district court have authority
to make findings that severely curtail access to the federal
court, not only for plaintiff but also for his lawyers and their
other clients (present and future), without swearing in a single
witness? Without giving notice and an opportunity to present
evidence? Without cross-examination? Without any of the
other rudiments of due process? Isn’t Molski at least entitled
to get on the stand, look the judge in the eye and tell his
story?
Fortunately, there’s a cure. The lawyers and judges of the
Central District don’t have to put up with this kind of tyranny
by one judge acting entirely on his own. A member of a
multi-judge court should not be able to single-handedly cut
off one party or law firm’s access to all the other judges of the
court. The Central District judges can and should adopt a
local rule or general order that any judge wishing to bar a liti-
gant or a law firm from accessing the court must obtain the
concurrence of a committee of his colleagues. Enforcement of
the order, too, should not be entrusted to the judge who
entered it, as he may take an unduly broad view as to its
scope. Far wiser, and fairer, to have other judges, drawn at
random, enforce the order in future cases.
By adopting such measures, the court would ensure that
draconian orders such as this one will not be the handiwork
MOLSKI v. EVERGREEN DYNASTY CORP. 3655
of a single judge, subject only to cursory supervision by the
court of appeals, but a shared responsibility of the court’s
judges, as such orders should be. And the new local rule or
general order should be applied retroactively to Molski’s case.
Like Judge Berzon, I’m very sorry that such an order was
ever entered, and on such a non-existent record. I’m even sor-
rier that our panel has seen fit to affirm it, and that our full
court has chosen to look the other way. But ultimately, it’s up
to the judges of the Central District to ensure that due process
is upheld and that an injustice is avoided. I have every confi-
dence that they will be equal to the task.
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