Molski v. Evergreen Dynasty ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAREK MOLSKI; DISABILITY RIGHTS 
ENFORCEMENT EDUCATION SERVICES:
HELPING YOU HELP OTHERS, a
California public benefit
corporation, No. 05-56452
Plaintiffs-Appellants,
v.  D.C. No.
CV-04-00450-ER
EVERGREEN DYNASTY CORP., d/b/a OPINION
MANDARIN TOUCH RESTAURANT;
BRIAN MCINERNEY; KATHY S.
MCINERNEY, as joint tenants,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Edward Rafeedie, District Judge, Presiding
Argued and Submitted
April 17, 2007—Pasadena, California
Filed August 31, 2007
Before: Jerome Farris and Ronald M. Gould, Circuit Judges,
and Kevin Thomas Duffy,* District Judge.
Per Curiam Opinion
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
11053
MOLSKI v. EVERGREEN DYNASTY CORP. 11057
COUNSEL
Thomas E. Frankovich and Jennifer L. Steneberg, Thomas E.
Frankovich, A Professional Law Corporation, San Francisco,
California, for plaintiff-appellant Jarek Molski and appellant
Thomas E. Frankovich, A Professional Law Corporation.
Robert H. Appert, San Gabriel, California, for defendants-
appellees Mandarin Touch Restaurant and Evergreen Dynasty
Corporation.
Alan H. Boon and David B. Ezra, Berger Kahn, Irvine, Cali-
fornia, for defendants-appellees Brian McInerney and Kathy
McInerney.
Lizbeth V. West, Charles L. Post, and Thadd A. Blizzard,
Weintraub Genshlea Chediak, Sacramento, California, for
11058 MOLSKI v. EVERGREEN DYNASTY CORP.
amici curiae California Restaurant Association, National Fed-
eration of Independent Businesses Legal Foundation, Califor-
nia Retailers Association, California Grocers Association, and
California Farm Bureau.
OPINION
PER CURIAM:
This appeal presents two orders of the district court for our
review. The first order declared Jarek Molski a vexatious liti-
gant and ordered that Molski obtain leave of the court before
filing any claims under Title III of the Americans With Dis-
abilities Act (“ADA”) in the United States District Court for
the Central District of California. The second order sanc-
tioned the law firm representing Molski, Thomas E.
Frankovich, a Professional Law Corporation (“the Frankovich
Group”), by requiring it to obtain leave of the court before fil-
ing any claims under Title III of the ADA in the Central Dis-
trict of California. We dismiss two of the defendants-
appellees from this appeal for lack of jurisdiction. As to the
remaining parties, we hold that the district court acted within
its sound discretion in entering the pre-filing orders against
Molski and against the Frankovich Group, and we affirm the
orders of the district court.
I
Molski, who is paralyzed from the chest down, needs a
wheelchair to get around. He has filed about 400 lawsuits in
the federal courts within the districts in California. Molski
lives in Woodland Hills, California, but frequently travels.
According to Molski’s amended complaint in this case, during
his travels, he stopped at the Mandarin Touch Restaurant in
Solvang, California on January 25, 2003. After finishing his
meal, Molski decided to use the restroom. Molski was able to
MOLSKI v. EVERGREEN DYNASTY CORP. 11059
pass through the narrow restroom door, but there was not
enough clear space to permit him to access the toilet from his
wheelchair. Molski then exited the restroom, and in the course
of doing so, got his hand caught in the restroom door, “caus-
ing trauma” to his hand. Molski’s amended complaint also
alleged that Mandarin Touch contained other accessibility
barriers “too numerous to list.”
Asserting claims under the ADA and California law, Mol-
ski, along with co-plaintiff Disability Rights Enforcement,
Education Services: Helping You Help Others (“DREES”), a
non-profit corporation, sought injunctive relief, attorneys’
fees and costs, and damages. Specifically, the complaint
sought “daily damages of not less than $4,000/day . . . for
each day after [Molski’s] visit until such time as the restaurant
is made fully accessible” as well as punitive damages and pre-
judgment interest. The amended complaint named as defen-
dants Mandarin Touch Restaurant, Evergreen Dynasty Corp.,
and Brian and Kathy McInerney.
Shortly after the defendants answered the complaint, Man-
darin Touch and Evergreen Dynasty filed a motion for an
order (1) declaring Molski a vexatious litigant; (2) requiring
Molski to obtain the court’s permission before filing any more
complaints under the ADA; and (3) imposing monetary sanc-
tions against Molski and his counsel, Thomas E. Frankovich.
Defendants Brian and Kathy McInerney did not join the
motion. In a published order, the district court granted the
motion in part, declaring Molski a vexatious litigant and
granting the defendants’ request for a pre-filing order. Molski
v. Mandarin Touch Rest., 347 F. Supp. 2d 860, 868 (C.D. Cal.
2004) [hereinafter Mandarin Touch I].
In determining that Molski was a vexatious litigant, the dis-
trict court applied the five factors set forth in the opinion of
the United States Court of Appeals for the Second Circuit in
Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir.
1986). Those factors are: (1) the litigant’s history of litigation
11060 MOLSKI v. EVERGREEN DYNASTY CORP.
and in particular whether it entailed vexatious, harassing, or
duplicative suits; (2) the litigant’s motive in pursuing the liti-
gation, for example, whether the litigant had a good faith
expectation of prevailing; (3) whether the litigant is repre-
sented by counsel; (4) whether the litigant has caused unnec-
essary expense to the parties or placed a needless burden on
the courts; and (5) whether other sanctions would be adequate
to protect the courts and other parties. Id.The district court first noted that Molski had an extensive
history of litigation. Mandarin Touch I, 347 F. Supp. 2d at
864. While acknowledging that the fact that a plaintiff has
filed a large number of suits, standing alone, does not warrant
a pre-filing order, the district court noted that a large volume
of suits might indicate an intent to harass defendants into
agreeing to cash settlements. Id. The district court also noted
that Molski’s complaints were all textually and factually simi-
lar. Id. While again not entirely dispositive, the district court
surmised that boilerplate complaints might indicate an intent
to harass defendants. Id.Against this background, the district court’s reasoning
made clear that the most important consideration was its spe-
cific finding that the allegations in Molski’s numerous and
similar complaints were “contrived and not credible.” See id.The court stressed that Molski often filed multiple complaints
against separate establishments asserting that Molski had suf-
fered identical injuries at each establishment on the same day.
Id. at 865. The district court pointed out that Molski had filed
thirteen separate complaints for essentially identical injuries
allegedly sustained during one five-day period in May 2003.
Id. In particular, Molski had alleged that, at each establish-
ment, he injured his “upper extremities” while transferring
himself to a non-ADA-compliant toilet. See id. at 864-65. The
district court explicitly found that, in making these duplicitous
injury claims, Molski had “plainly lied” in his filings to the
court because the district court “simply [did] not believe that
Molski suffered 13 nearly identical injuries, generally to the
MOLSKI v. EVERGREEN DYNASTY CORP. 11061
same part of his body, in the course of performing the same
activity, over a five-day period.” Id. at 865, 867.
Applying the second Safir factor, the district court con-
cluded that Molski’s motivation in bringing numerous suits
alleging both violations of the ADA and California state civil
rights laws was to extract cash settlements from defendants.
Id. at 866-67. Although the ADA grants private plaintiffs like
Molski only the rights to seek injunctive relief, attorneys’
fees, and costs, the California state civil rights laws amplify
the scope of relief available under federal law by also permit-
ting the recovery of money damages. Compare 42 U.S.C.
§§ 2000a-3(a), 12188(a)(1), with Cal. Civ. Code §§ 51(f),
52(a), 54(c), 54.3(a); see also Moeller v. Taco Bell Corp., 220
F.R.D. 604, 606-07 (N.D. Cal. 2004) (discussing the remedies
available under California law). The district court acknowl-
edged that raising multiple claims in one suit is, in and of
itself, not vexatious. Mandarin Touch I, 347 F. Supp. 2d at
866. However, because Molski had tried on the merits only
one of his approximately 400 suits and had settled all the oth-
ers, the district court concluded that Molski’s consistent
approach was to use the threat of money damages under Cali-
fornia law to extract cash settlements and move on to his next
case. Id.Applying the third factor from Safir, the district court found
that Molski had been represented by counsel in every suit he
filed. Id. The court wrote that “courts are generally protective
of pro se litigants,” but reasoned that “this same protection
does not apply to litigants represented by counsel,” and con-
cluded that this factor also weighed in favor of issuing a pre-
filing order. Id.Under the fourth Safir factor, the district court determined
that the large number of vexatious claims Molski had filed
had placed an undue burden on the courts. Id.Finally, applying the fifth factor from Safir, the district
court found that the only effective way to protect the courts
11062 MOLSKI v. EVERGREEN DYNASTY CORP.
and other parties from future vexatious litigation by Molski
was by entering a pre-filing order. Id. Accordingly, the district
court held that, “[b]efore filing any new litigation alleging
violations of Title III of the ADA in the United States District
Court for the Central District of California, Molski [must] file
a motion for leave to file a complaint.” Id. at 868. The court
required that Molski “submit a copy of this order and a copy
of the proposed filing with every motion for leave.” Id.In the same order, the district court denied the motion of
Evergreen Dynasty and Mandarin Touch for sanctions as pre-
mature. Id. Finally, the district court issued an order to show
cause why it should not impose a pre-filing sanction on Mol-
ski’s attorneys, the Frankovich Group. Id. at 867.
About three months later, the district court issued a pub-
lished memorandum decision regarding that order to show
cause. See Molski v. Mandarin Touch Rest., 359 F. Supp. 2d
924 (C.D. Cal. 2005) [hereinafter Mandarin Touch II]. The
district court imposed a pre-filing order on the Frankovich
Group similar to the order that it had imposed on Molski. Id.
at 926. In its decision, the district court first observed that in
2004 the Frankovich Group filed at least 223 nearly identical
lawsuits in the Northern and Central Districts of California,
that the complaints all stated an ADA claim and the same four
claims under California state law, that the damages requested
in each case were identical and that, other than superficial
alteration of the names and facts, the complaints were textu-
ally identical down to the typos. Id. The district court also
noted that plaintiffs represented by the Frankovich Group
would often file multiple complaints regarding similar or
identical injuries sustained at multiple establishments on a
single day. See id. at 926-27. The district court noted that one-
third of the suits were against ethnic restaurants and com-
mented that “such establishments are seen as easy prey for
coercive claims.” Id. at 926.
Supplementing its findings from its decision accompanying
the pre-filing order entered against Molski, the district court
MOLSKI v. EVERGREEN DYNASTY CORP. 11063
found that the Frankovich Group had filed sixteen lawsuits on
Molski’s behalf alleging injuries sustained over a four-day
period from May 20, 2003 to May 23, 2003, all alleging that
Molski suffered injuries to his upper extremities as a result of
transfers or negotiating barriers. Id. at 928. The district court
also noted that, on thirty-seven occasions in 2004 alone, Mol-
ski alleged that he had been injured two or more times on the
same day. Id. On nineteen occasions, Molski alleged that he
had been injured three or more times in one day. Id. And, on
nine occasions in 2004, Molski alleged that he suffered four
or more injuries in one day. Id.Additionally, the district court discussed what it character-
ized as an “astonishing” letter the Frankovich Group had sent
to defendants in at least two cases after suing them. See id. at
928. The letter described itself as “friendly advice” and coun-
seled the unrepresented defendant against hiring a lawyer. Id.The letter warned that a defense attorney would embark on a
“billing expedition” and that the defendant’s money would be
best spent on settlement and remediation of the ADA viola-
tions, rather than hiring a defense attorney. Id. The letter also
advised the defendant that its insurance policy might cover
the claim. Id. Finally, the letter advised the defendant that it
had no bona fide defense to the lawsuit. Id.Relying on its inherent power to levy sanctions, the district
court ordered
that The Frankovich Group, as presently constituted,
and as it may hereafter be constituted, including
shareholders, associates and employees, is required
to file a motion requesting leave of court before fil-
ing any new complaints alleging violations of Title
III of the Americans with Disabilities Act in the
United States District Court for the Central District
of California. Such a motion must include a copy of
this order.
11064 MOLSKI v. EVERGREEN DYNASTY CORP.
Id. at 926.
As the basis for its sanction, the court first emphasized the
ethics rules violations contained in the letter discussed above.
Id. at 929. For example, the letter offered legal advice to an
unrepresented party whose interests conflicted with the inter-
ests of the Frankovich Group’s clients. Id. (citing Model
Rules of Prof’l Conduct R. 4.3).
Next, the district court found that many of the claims of
bodily injury in complaints filed by the Frankovich Group
were “contrived.” Id. at 930. The court found in particular that
“the rate of physical injury defies common sense,” noting that
the plaintiffs alleged similar injuries sustained in a similar
fashion at different businesses on the same day. Id. The court
noted that the similar injuries did not excuse the existence of
accessibility barriers, but that its finding that the injury claims
were contrived was “merely a recognition of the fact that rea-
sonable people, once injured, tend to take affirmative steps to
avoid similar physical injuries, rather than repeat that same
activity 400 times (or five times in the same day).” Id. at 931.
The district court also criticized the practice of the
Frankovich Group of waiting one year before filing their com-
plaints, in order to maximize the damages threatened and to
intimidate the small businesses against whom the Frankovich
Group frequently filed its suits. Id. at 932.
Finally, the district court found that the high settlement rate
in cases brought by the Frankovich Group, coupled with the
volume of cases filed, showed a pattern of extortion. Id. at
933-34.
In addition to imposing a pre-filing order on the Frankovich
Group, the district court requested that the California state bar
investigate the Frankovich Group’s practices and consider
disciplinary action. Id. In the same order, the district court
MOLSKI v. EVERGREEN DYNASTY CORP. 11065
dismissed the plaintiffs’ state law claims, declining to exer-
cise supplemental jurisdiction over them. Id. at 937.
On August 31, 2005, the district court, in a third published
order, granted the defendants summary judgment on Molski’s
ADA claim for lack of standing. Molski v. Mandarin Touch
Rest., 385 F. Supp. 2d 1042, 1044 (C.D. Cal. 2005). Because
Molski’s ADA claim was the final claim remaining in the
case, the district court also entered an order dismissing with
prejudice the plaintiffs’ case in its entirety. Id. at 1048. (The
district court had already dismissed DRESS’s ADA claim for
lack of standing in an unpublished order filed on February 9,
2005.)
On September 13, 2005, Molski and DREES filed their
notice of appeal. The notice provided that the plaintiffs were
appealing four rulings of the district court: (1) the December
2004 order declaring Molski a vexatious litigant; (2) the Feb-
ruary 2005 order dismissing DREES’s ADA claim for lack of
standing; (3) the March 2005 order sanctioning the
Frankovich Group;1 and (4) the August 2005 order granting
the defendants summary judgment on Molski’s ADA claim
for lack of standing and dismissing the case.
II
We first address whether the appeal of the pre-filing orders
1
In the notice of appeal and in their brief to this court, the Frankovich
Group characterizes the order entered against it as an order declaring it a
“vexatious litigant.” The Frankovich Group characterizes the order in this
fashion likely because we have held that “an attorney appearing on behalf
of a client cannot be sanctioned as a vexatious litigant; by definition, he
or she is acting as an attorney and not as a litigant.” Weissman v. Quail
Lodge, Inc., 179 F.3d 1194, 1197 (9th Cir. 1999). However, the district
court’s order is an order imposing sanctions. In its order, the district court
repeatedly refers to its inherent power to levy sanctions against attorneys
who abuse the litigation process. See Mandarin Touch II, 359 F. Supp. 2d
at 928-29.
11066 MOLSKI v. EVERGREEN DYNASTY CORP.
is timely. 28 U.S.C. § 2107(a) and Federal Rule of Appellate
Procedure 4(a)(1)(A) provide that the notice of appeal in a
civil case must be filed with the district court clerk within
thirty days after the judgment or order appealed from is
entered. If a party does not file a notice of appeal within the
prescribed time limits, we have no jurisdiction to hear the
case. Bowles v. Russell, 127 S. Ct. 2360, 2363-64 (2007).
Under 28 U.S.C. § 1291, parties may appeal to this court
only “final decisions” of the district courts. A final decision
is one that “ends the litigation on the merits and leaves noth-
ing for the court to do but execute the judgment.” Cunning-
ham v. Hamilton County, 527 U.S. 198, 204 (1999) (internal
quotation marks omitted); Catlin v. United States, 324 U.S.
229, 233 (1945). Neither party disputes that the August 31,
2005 order dismissing the case was an appealable final deci-
sion. However, the McInerneys argue that the December 2004
pre-filing order entered against Molski and the March 2005
pre-filing order entered against the Frankovich Group were
also final decisions and therefore immediately appealable.
They maintain we must dismiss the appeal because the notice
of appeal, filed on September 13, 2005, was filed more than
thirty days after the entry of the pre-filing orders. Conversely,
Molski and the Frankovich Group argue that the only final
decision in this case is the district court’s August 31, 2005
order dismissing the plaintiffs’ case in its entirety and that,
because they filed a notice of appeal within thirty days of the
entry of that order, their appeal is timely.
[1] The appeal of the Frankovich Group is timely under the
Supreme Court’s decision in Cunningham and our subsequent
decision in Stanley v. Woodford, 449 F.3d 1060 (9th Cir.
2006). In Cunningham, the Supreme Court held that an order
imposing sanctions on an attorney pursuant to Federal Rule of
Civil Procedure 37(a)(4) was not an immediately-appealable
“final decision.” 527 U.S. at 200. In Stanley, we extended
Cunningham and held that we do not have jurisdiction to
entertain interlocutory appeals of district court orders sanc-
MOLSKI v. EVERGREEN DYNASTY CORP. 11067
tioning attorneys pursuant to the district court’s inherent
power to levy sanctions.2 Stanley, 449 F.3d at 1065. In this
case, the district court entered the pre-filing order against the
Frankovich Group under its inherent sanctioning power. Man-
darin Touch II, 359 F. Supp. 2d at 928. Because the
Frankovich Group could not immediately appeal the pre-filing
order entered against it, and because it filed its notice of
appeal within thirty days of the district court’s August 31,
2005 order dismissing the entire case, its appeal is timely.
[2] Molski’s appeal is also timely. As a general matter, a
district court order imposing sanctions on a party is not
appealable before the entry of a final judgment. See Riverhead
Sav. Bank v. Nat’l Mortg. Equity Corp., 893 F.2d 1109, 1113
(9th Cir. 1990); Johnny Pflocks, Inc. v. Firestone Tire & Rub-
ber Co., 634 F.2d 1215, 1216 (9th Cir. 1980). However, we
have not previously and specifically addressed whether pre-
filing orders entered against vexatious litigants are
immediately-appealable final decisions. As far as we can tell,
no other circuit has considered this question either. We begin
with the general presumption that “an appeal ordinarily will
not lie until after final judgment has been entered in a case.”
Cunningham, 527 U.S. at 203. For vexatious litigant orders to
be appealable immediately, then, those orders would have to
fall within the small category of decisions in which appeal is
grounded on the collateral order doctrine which permits
immediate appeal of orders that are conclusive and that can-
not be effectively reviewed on the appeal of the final judg-
ment. Swint v. Chambers County Comm’n, 514 U.S. 35, 42
(1995).
2
Prior to Cunningham, we had permitted interlocutory appeals of sanc-
tions orders entered against attorneys. See, e.g., Telluride Mgmt. Solutions,
Inc. v. Telluride Inv. Group, 55 F.3d 463, 465 (9th Cir. 1995); Reygo Pac.
Corp. v. Johnston Pump Co., 680 F.2d 647, 648 (9th Cir. 1982); see also
Stanley, 449 F.3d at 1063 (noting that “Cunningham effectively overruled
earlier Ninth Circuit decisions allowing immediate appeal by attorneys
from orders imposing sanctions”).
11068 MOLSKI v. EVERGREEN DYNASTY CORP.
[3] As we see it, pre-filing orders entered against vexatious
litigants are not conclusive and can be reviewed and corrected
(if necessary) after final judgment. Though during the pen-
dency of the appeal, the order might delay or prohibit a liti-
gant from filing claims without leave of court, we have the
authority to vacate the order entirely if we conclude the order
was unjustified on the merits. Johnny Pflocks, 634 F.2d at
1216. Moreover, allowing immediate appeals of pre-filing
orders would permit piecemeal appeals and result in a costly
succession of appeals from the district court’s rulings before
entry of final judgment. Firestone Tire & Rubber Co. v. Ris-
jord, 449 U.S. 368, 374 (1981). We see no good reason to part
ways from our case law holding that sanctions orders entered
against a party are not immediately appealable, and we hold
that pre-filing orders entered against vexatious litigants are
also not immediately appealable. Because Molski filed his
notice of appeal within thirty days of the district court’s
August 31, 2005 order dismissing the plaintiffs’ entire case,
Molski’s appeal is timely.
III
[4] Before we address the merits of the pre-filing orders,
we must address a second jurisdictional issue. Brian and
Kathy McInerney ask us to dismiss them from this appeal
because they were not parties to the motion that led to the pre-
filing orders entered against Molski and the Frankovich
Group. Because Article III limits our jurisdiction to “cases”
and “controversies,” we dismiss appeals as moot when “the
parties lack a cognizable interest in the outcome of the suit.”
H.C. v. Koppel, 203 F.3d 610, 612 (9th Cir. 2000); see City
of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000); Powell v.
McCormack, 395 U.S. 486, 496 (1969). As noted above, the
plaintiffs initially appealed four rulings of the district court:
the two pre-filing orders and the two orders dismissing Mol-
ski and DREES’s claims for lack of standing. However, in
their briefs, Molski and the Frankovich Group limit their
MOLSKI v. EVERGREEN DYNASTY CORP. 11069
arguments to the two pre-filing orders entered against them.3
The McInerneys were not a party to the motion that led to the
pre-filing orders that now form the sole basis of the appeal in
this case. See Mandarin Touch I, 347 F. Supp. 2d at 861. The
McInerneys thus have no cognizable interest in whether we
affirm or vacate the pre-filing orders, and there is no justicia-
ble dispute between the McInerneys and Molski and the
Frankovich Group. We dismiss Brian and Kathy McInerney
from this appeal for lack of jurisdiction.
IV
We next address whether the district court erred in declar-
ing Molski a vexatious litigant and in entering a pre-filing
order against him. Two district courts in our circuit disagree
about whether Molski’s frequent litigation is vexatious. In this
case, the Central District of California deemed Molski a vexa-
tious litigant. See Mandarin Touch I, 347 F. Supp. 2d at 868.
However, the Northern District of California has denied a
motion to declare Molski a vexatious litigant in that district.
See Molski v. Rapazzini Winery, 400 F. Supp. 2d 1208, 1212
(N.D. Cal. 2005). We review a pre-filing order entered against
a vexatious litigant for abuse of discretion. De Long v. Hen-
nessey, 912 F.2d 1144, 1146 (9th Cir. 1990). A district court
abuses its discretion when it bases its decision on an incorrect
view of the law or a clearly erroneous finding of fact. United
States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002); Does
1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir. 1996).
The All Writs Act, 28 U.S.C. § 1651(a), provides district
3
In their reply brief, Molski and the Frankovich Group state:
Since the filing of their Notice of Appeal, appellants have nar-
rowed the issues for appeal, and through their opening brief seek
this Court’s review of two of the lower court’s orders—the order
deeming appellant Jarek Molski a vexatious litigant and the order
imposing a pre-filing petition sanction on appellant Thomas E.
Frankovich, A Professional Law Corporation.
11070 MOLSKI v. EVERGREEN DYNASTY CORP.
courts with the inherent power to enter pre-filing orders
against vexatious litigants. Weissman v. Quail Lodge Inc., 179
F.3d 1194, 1197 (9th Cir. 1999). However, such pre-filing
orders are an extreme remedy that should rarely be used. De
Long, 912 F.2d at 1147. Courts should not enter pre-filing
orders with undue haste because such sanctions can tread on
a litigant’s due process right of access to the courts. Cromer
v. Kraft Foods N. Am., Inc., 390 F.3d 812, 817 (4th Cir.
2004); Moy v. United States, 906 F.2d 467, 470 (9th Cir.
1990); see also Logan v. Zimmerman Brush Co., 455 U.S.
422, 429 (1982) (noting that the Supreme Court “traditionally
has held that the Due Process Clauses protect civil litigants
who seek recourse in the courts, either as defendants hoping
to protect their property or as plaintiffs attempting to redress
grievances”); 5A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1336.3, at 698 (3d ed.
2004). A court should enter a pre-filing order constraining a
litigant’s scope of actions in future cases only after a cautious
review of the pertinent circumstances.
Nevertheless, “[f]lagrant abuse of the judicial process can-
not be tolerated because it enables one person to preempt the
use of judicial time that properly could be used to consider the
meritorious claims of other litigants.” De Long, 912 F.2d at
1148; see O’Loughlin v. Doe, 920 F.2d 614, 618 (9th Cir.
1990). Thus, in De Long, we outlined four factors for district
courts to examine before entering pre-filing orders. First, the
litigant must be given notice and a chance to be heard before
the order is entered. De Long, 912 F.2d at 1147. Second, the
district court must compile “an adequate record for review.”
Id. at 1148. Third, the district court must make substantive
findings about the frivolous or harassing nature of the plain-
tiff’s litigation. Id. Finally, the vexatious litigant order “must
be narrowly tailored to closely fit the specific vice encoun-
tered.” Id.The district court in this case did not apply the factors we
outlined in De Long. Instead, the district court looked to Sec-
MOLSKI v. EVERGREEN DYNASTY CORP. 11071
ond Circuit case law for guidance, applying that circuit’s vex-
atious litigant standard as outlined in Safir. See Mandarin
Touch I, 347 F. Supp. 2d at 863-64. Molski argues that the
district court erred by structuring its analysis around the Safir
factors rather than the factors we have identified.
[5] One district court in our circuit has correctly observed
that the Safir factors “have never been adopted by the Ninth
Circuit.” Doran v. Vicorp Rests., Inc., 407 F. Supp. 2d 1115,
1117 n.3 (C.D. Cal. 2005); see also Wilson v. Pier 1 Imports
(US), Inc., 411 F. Supp. 2d 1196, 1198 (E.D. Cal. 2006) (not-
ing that the Ninth Circuit has developed a vexatious litigant
standard separate from Safir). However, the Second Circuit’s
standard is not irreconcilable with our standard, but rather can
be viewed as a tool for analyzing some of the factors we set
forth in De Long, insofar as Safir and De Long in substance
cover much of the same ground. As we noted above, we held
in De Long that district courts considering imposing a pre-
filing order on a vexatious litigant should consider four fac-
tors. The first two requirements, (1) notice and an opportunity
to be heard and (2) the creation of an adequate record, are
procedural considerations—that is, the factors define “[a] spe-
cific method or course of action” that district courts should
use to assess whether to declare a party a vexatious litigant
and enter a pre-filing order. Black’s Law Dictionary 1241 (8th
ed. 2004). The latter two factors, requiring (3) findings of
frivolousness or harassment and (4) that the order be narrowly
tailored to prevent the litigant’s abusive behavior, are substan-
tive considerations—that is, the factors help the district court
define who is, in fact, a “vexatious litigant” and construct a
remedy that will stop the litigant’s abusive behavior while not
unduly infringing the litigant’s right to access the courts.
The Second Circuit, by contrast, has instructed district
courts, in determining whether to enter a pre-filing order, to
look at five factors:
(1) the litigant’s history of litigation and in particular
whether it entailed vexatious, harassing or duplica-
11072 MOLSKI v. EVERGREEN DYNASTY CORP.
tive lawsuits; (2) the litigant’s motive in pursuing the
litigation, e.g., does the litigant have an objective
good faith expectation of prevailing?; (3) whether
the litigant is represented by counsel; (4) whether the
litigant has caused needless expense to other parties
or has posed an unnecessary burden on the courts
and their personnel; and (5) whether other sanctions
would be adequate to protect the courts and other
parties.
Safir, 792 F.2d at 24. These five factors are substantive in that
they all address whether a party is a vexatious litigant and
whether a pre-filing order will stop the vexatious litigation or
if other sanctions are adequate. The Second Circuit has held
that district courts should use the five Safir factors to answer
the ultimate substantive issue in resolving a motion for a pre-
filing order: “whether a litigant who has a history of vexatious
litigation is likely to continue to abuse the judicial process and
harass other parties.” Id.; see also Cromer, 390 F.3d at 818(using the Safir factors to “determin[e] whether a prefiling
injunction is substantively warranted”).
[6] Thus, the Second Circuit’s five-factor standard provides
a helpful framework for applying the two substantive factors
(factors three and four) of our own four-factor standard. See
Rapazzini Winery, 400 F. Supp. 2d at 1210 (“The Safir test[’]s
examination of history of litigation, motive, and needless bur-
den [is] useful in determining whether the current filings are
frivolous and the question of whether other sanctions are ade-
quate [is] similar to the Ninth Circuit’s requirement that any
pre-filing order be narrowly tailored.”). While we structure
our analysis here around the four factors we outlined in De
Long, it was not reversible error for the district court to struc-
ture its analysis around the similar factors identified by the
Second Circuit.4
4
Because the facts underlying the district court’s imposition of the pre-
filing order on Molski are undisputed, we could decide the merits of this
appeal even if the district court had applied an incorrect legal standard.
See Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982); Kelley v. S.
Pac. Co., 419 U.S. 318, 331-332 (1974).
MOLSKI v. EVERGREEN DYNASTY CORP. 11073
[7] The first factor under De Long is whether Molksi was
given notice and an opportunity to be heard before the district
court entered the pre-filing order. This is a core requirement
of due process. De Long, 912 F.2d at 1147. In this case, Mol-
ski had fair notice of the possibility that he might be declared
a vexatious litigant and have a pre-filing order entered against
him because the district court’s order was prompted by a
motion filed by the defendants and served on Molski’s coun-
sel. Also, Molski had the opportunity to oppose the motion,
both in writing and at a hearing. Cf. Pac. Harbor Capital, Inc.
v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir.
2000) (holding, in a case involving sanctions levied against an
attorney, that “an opportunity to be heard does not require an
oral or evidentiary hearing on the issue,” but instead that
“[t]he opportunity to brief the issue fully satisfies due process
requirements”).
[8] The second factor of the De Long standard is whether
the district court created an adequate record for review. “An
adequate record for review should include a listing of all the
cases and motions that led the district court to conclude that
a vexatious litigant order was needed.” De Long, 912 F.2d at
1147. The record before the district court contained a com-
plete list of the cases filed by Molski in the Central District
of California, along with the complaints from many of those
cases. Although the district court’s decision entering the pre-
filing order did not list every case filed by Molski, it did out-
line and discuss many of them. See Mandarin Touch I, 347 F.
Supp. 2d at 864-65. The district court supplemented its find-
ings in Mandarin Touch I with a further discussion of Mol-
ski’s litigation history in Mandarin Touch II. See Mandarin
Touch II, 359 F. Supp. 2d at 927-28. The district court com-
piled a record adequate for review of its order.
The third factor set forth by De Long gets to the heart of
the vexatious litigant analysis, inquiring whether the district
court made “ ‘substantive findings as to the frivolous or
harassing nature of the litigant’s actions.’ ” De Long, 912
11074 MOLSKI v. EVERGREEN DYNASTY CORP.
F.2d at 1148 (quoting In re Powell, 851 F.2d 427, 431 (D.C.
Cir. 1988)). To decide whether the litigant’s actions are frivo-
lous or harassing, the district court must “look at ‘both the
number and content of the filings as indicia’ of the frivolous-
ness of the litigant’s claims.” Id. (quoting Powell, 851 F.2d at
431). “An injunction cannot issue merely upon a showing of
litigiousness. The plaintiff’s claims must not only be numer-
ous, but also be patently without merit.” Moy, 906 F.2d at
470.
[9] Molski concedes that he has filed numerous claims.
However, Molski contends that his suits were not vexatious
because they had merit. As the district court observed, it is
likely that many of the businesses Molski sued were not in
compliance with the ADA. Mandarin Touch I, 347 F. Supp.
2d at 865. However, while Molski’s complaints may have
stated a legitimate claim for relief, it was not clearly errone-
ous for the district court to find that the claims of injury con-
tained in those complaints were patently without merit.
Because many of the violations Molski challenged were simi-
lar, it would have been reasonable for Molski’s complaints to
contain similar allegations of barriers to entry, inadequate
signage, and so on. However, 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 activity; even a
young child who touches a hot stove quickly learns to avoid
pain by not repeating the conduct. The district court’s conclu-
sion that Molski “plainly lied” in making his injury allega-
tions was not clearly erroneous.
[10] In light of the district court’s finding that Molski did
not suffer the injuries he claimed, it was not clearly erroneous
for the district court to conclude that the large number of
complaints filed by Molski containing false or exaggerated
allegations of injury were vexatious.
MOLSKI v. EVERGREEN DYNASTY CORP. 11075
[11] The district court’s determination that Molski harassed
defendants into cash settlements was justified by its findings
regarding Molski’s litigation strategy. California law provides
that a plaintiff who suffers discrimination based on his or her
disability may recover up to three times the amount of actual
damages for each offense, and that, at a minimum, the plain-
tiff must recover damages of not less than $4000. Cal. Civ.
Code § 52(a). Thus, Molski usually sought damages of not
less than $4000 for each day that a facility did not comply
with the ADA. Because Molski would often wait to file suit
until a full year elapsed since his visit to the defendants’
establishments, defendants often faced claims for statutory
damages of over one million dollars. While Molski’s claim
for daily damages might have been legally justified,5 it was
not clearly erroneous for the district court to find that Mol-
ski’s litigation strategy evidenced an intent to harass busi-
nesses into cash settlements.6
5
District courts in our circuit disagree about whether a plaintiff may
seek daily damages under California Civil Code sections 52(a) and
54.3(a). Compare Rapazzini Winery, 400 F. Supp. 2d at 1211 (holding that
daily damages are not available under section 52(a)), and Doran v.
Embassy Suites Hotel, No. C-02-1961, 2002 WL 1968166, at *6 (N.D.
Cal. Aug. 26, 2002) (holding that daily damages are not available under
either section 52(a) or 54.3(a)), with Botosan v. Fitzhugh, 13 F. Supp. 2d
1047, 1051-52 (S.D. Cal. 1998) (holding that an allegation that a plaintiff
“is being subjected to a discrimination” meant that the plaintiff had been
deterred from visiting a public accommodation on a daily basis, and sup-
ported a claim for daily damages under sections 52(a) and 54.3(a)); see
also Arnold v. United Artists Theatre Circuit, Inc., 866 F. Supp. 433, 439
(N.D. Cal. 1994) (suggesting that a plaintiff can claim damages under sec-
tions 52(a) and 54.3(a) for each particular occasion of deterrence). We
could not find any California court that has spoken on this issue.
6
We note that there was a substantial disconnect between the magnitude
of injuries Molski suffered and the amount of damages he sought to
recover. For example, in this case, in a declaration submitted to the district
court, Molski admitted that the injury he suffered at Mandarin Touch—
scraping his hand on the door frame—was “not a big injury.” Nonetheless,
Molski claimed damages of “not less than $4,000” for each of the 363
days that elapsed between when he visited Mandarin Touch on January 25,
11076 MOLSKI v. EVERGREEN DYNASTY CORP.
[12] The district court also did not err when it inferred an
intent to harass defendants into settlement from the fact that
Molski had tried on the merits only one of his roughly 400
ADA cases and the fact that Molski and the Frankovich
Group targeted ethnic restaurants viewed as easy prey for
coercive claims.
Frivolous litigation is not limited to cases in which a legal
claim is entirely without merit. It is also frivolous for a claim-
ant who has some measure of a legitimate claim to make false
factual assertions. Just as bringing a completely baseless
claim is frivolous, so too a person with a measured legitimate
claim may cross the line into frivolous litigation by asserting
facts that are grossly exaggerated or totally false. In an adver-
sary system, we do not fault counsel or client for putting their
2003, and when he filed his complaint on January 23, 2004. Molski thus
made a damage claim of no less than $1,452,000 on the day he filed his
complaint, with that amount growing by the day. Even if Molski could
claim statutory minimum damages in an amount far greater than any
actual injury he suffered, see Continental Cablevision, Inc. v. Poll, 124
F.3d 1044, 1049 (9th Cir. 1997) (suggesting that statutory damages do not
require proof of injury); Six (6) Mexican Workers v. Ariz. Citrus Growers,
904 F.2d 1301, 1306 (9th Cir. 1990) (same), Molski’s claims of damages
far in excess of the injuries he suffered are not entirely irrelevant to deter-
mining whether his litigation was vexatious.
By seeking damages of not less than $4000 per day, Molski would
claim actual damages beyond those to which he was arguably entitled
under the California statutes. See Cal. Civ. Code §§ 52(a), 54.3(a) (permit-
ting the recovery of actual damages). Also, there existed a possibility that
the district court would reject the notion that Molski could recover daily
damages, see supra note 5, and that Molski would be forced to seek, for
the most part, actual damages. Additionally, Molski’s complaints usually
sought punitive damages. In all of those situations, to recover actual or
punitive damages, Molski would need to prove a corresponding injury. Cf.
Continental Cablevision, Inc., 124 F.3d at 1049; Six (6) Mexican Workers,
904 F.2d at 1306. Because he claimed damages far in excess of his actual
injuries, his exaggerated claims of damages support a pre-filing order to
the extent that he sought to recover more than the statutory minimum of
damages.
MOLSKI v. EVERGREEN DYNASTY CORP. 11077
best arguments forward, and it is likely the unusual case in
which a finding of frivolous litigation follows in the train of
a legitimate legal claim. It is a question of degree where the
line falls between aggressive advocacy of legitimate claims
and the frivolous assertion of false allegations. In this case,
the district court, looking at the allegations of hundreds of
lawsuits, made a decision that Molski’s baseless and exagger-
ated claims of injuries exceeded any legitimacy and were
made for the purpose of coercing settlement. We cannot on
this record conclude that the district court’s factual determina-
tions were clearly erroneous or that the district court errone-
ously reached the legal conclusion that Molski’s litigation was
vexatious.
[13] The fourth and final factor in the De Long standard is
that the pre-filing order must be narrowly tailored to the vexa-
tious litigant’s wrongful behavior. In De Long, we held over-
broad an order preventing the plaintiff from filing any suit in
a particular district court. De Long, 912 F.2d at 1148. Like-
wise, in O’Loughlin, we held that an order requiring a plain-
tiff to show good cause before making any request to proceed
in forma pauperis was not narrowly tailored. O’Loughlin, 920
F.2d at 618. Also, in Moy we held that an order requiring a
plaintiff to obtain leave of court to file any suit was overly
broad when the plaintiff had only been highly litigious with
one group of defendants. Moy, 906 F.2d at 470. Here, by con-
trast, the district court’s order is much narrower—it only pre-
vents Molski from filing actions under Title III of the ADA
in the Central District of California. The order thus appropri-
ately covers only the type of claims Molski had been filing
vexatiously—ADA claims. Cf. Cromer, 390 F.3d at 818-19(vacating a pre-filing order that prevented the plaintiff from
making “any and all filings” in the present case and also
enjoined him from making any future filings in any unrelated
case in the district court without obtaining permission from
the magistrate judge who issued the order); In re Packer Ave.
Assocs., 884 F.2d 745, 748 (3d Cir. 1989) (vacating as not
narrowly tailored a pre-filing order “prohibiting a litigant
11078 MOLSKI v. EVERGREEN DYNASTY CORP.
from ever again filing a document in federal court”). The
order also does not prevent Molski from filing any ADA com-
plaints, it merely subjects Molski’s complaints to an initial
screening review by a district judge. The order is narrowly
tailored because it will not deny Molski access to courts on
any ADA claim that is not frivolous, yet it adds a valuable
layer of protection, which we think was warranted, for the
courts and those targeted by Molski’s claims. See Franklin v.
Murphy, 745 F.2d 1221, 1232 (9th Cir. 1984).
In summary, we reemphasize that the simple fact that a
plaintiff has filed a large number of complaints, standing
alone, is not a basis for designating a litigant as “vexatious.”
De Long, 912 F.2d at 1147; In re Oliver, 682 F.2d 443, 446
(3d Cir. 1982). We also emphasize that the textual and factual
similarity of a plaintiff’s complaints, standing alone, is not a
basis for finding a party to be a vexatious litigant. Accessibil-
ity barriers can be, and often are, similar in different places
of public accommodation, and there is nothing inherently vex-
atious about using prior complaints as a template. See Wilson,
411 F. Supp. 2d at 1196 (stating that uniform instances of
misconduct can justify uniform pleadings).
As we discussed above, the ADA does not permit private
plaintiffs to seek damages, and limits the relief they may seek
to injunctions and attorneys’ fees. We recognize that the
unavailability of damages reduces or removes the incentive
for most disabled persons who are injured by inaccessible
places of public accommodation to bring suit under the ADA.
See 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). As a result, most ADA suits are
brought by a small number of private plaintiffs who view
themselves as champions of the disabled. District courts
should not condemn such serial litigation as vexatious as a
matter of course. See De Long, 912 F.2d at 1148 n.3. For the
ADA to yield its promise of equal access for the disabled, it
may indeed be necessary and desirable for committed individ-
MOLSKI v. EVERGREEN DYNASTY CORP. 11079
uals to bring serial litigation advancing the time when public
accommodations will be compliant with the ADA. But as
important as this goal is to disabled individuals and to the
public, serial litigation can become vexatious when, as here,
a large number of nearly-identical complaints contain factual
allegations that are contrived, exaggerated, and defy common
sense. False or grossly exaggerated claims of injury, espe-
cially when made with the intent to coerce settlement, are at
odds with our system of justice, and Molski’s history of litiga-
tion warrants the need for a pre-filing review of his claims.
[14] 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. On the
other hand, the district court had ample basis to conclude that
Molski trumped up his claims of injury. The district court
could permissibly conclude that Molski used these lawsuits
and their false and exaggerated allegations as a harassing
device to extract cash settlements from the targeted defen-
dants because of their noncompliance with the ADA. In light
of these conflicting considerations and the relevant standard
of review, we cannot say that the district court abused its dis-
cretion in declaring Molski a vexatious litigant and in impos-
ing a pre-filing order against him.
V
The final issue in this case is whether the district court
erred in imposing a pre-filing order against the Frankovich
Group. We review the district court’s imposition of sanctions
against an attorney for abuse of discretion. Weissman, 179
F.3d at 1197; Yagman v. Republic Ins., 987 F.2d 622, 628 (9th
Cir. 1993). “A district court abuses its discretion in imposing
sanctions when it bases its decision ‘on an erroneous view of
the law or on a clearly erroneous assessment of the evi-
dence.’ ” Mark Indus., Ltd. v. Sea Captain’s Choice, Inc., 50
F.3d 730, 732 (9th Cir. 1995) (quoting Cooter & Gell v. Hart-
marx Corp., 496 U.S. 384, 405 (1990)).
11080 MOLSKI v. EVERGREEN DYNASTY CORP.
The district court in this case sanctioned the Frankovich
Group with a pre-filing order pursuant to its inherent power
to regulate abusive or bad-faith litigation. Mandarin Touch II,
359 F. Supp. 2d at 928; see Chambers v. NASCO, Inc., 501
U.S. 32, 43-44 (1991); Link v. Wabash R.R. Co., 370 U.S.
626, 632 (1962). “This inherent power derives from the law-
yer’s role as an officer of the court which granted admission.”
In re Snyder, 472 U.S. 634, 643 (1985) (citations omitted).
The Supreme Court has cautioned that, because of the potency
of attorney sanction orders, courts must exercise their inherent
sanctioning authority with restraint and sound discretion.
Chambers, 501 U.S. at 45; Roadway Express, Inc. v. Piper,
447 U.S. 752, 764 (1980).
As a procedural matter, before imposing sanctions on an
attorney, the district court must afford the attorney notice and
an opportunity to be heard. Weissman, 179 F.3d at 1198. As
a substantive matter, justifications for imposing a pre-filing
sanction on an attorney “include the attorney’s willful abuse
of the judicial process, bad faith conduct during litigation, or
filing frivolous papers.” Id. (citations and internal quotation
marks omitted). Violations of ethics rules can also serve as a
ground for imposing sanctions. See, e.g., Gomez v. Vernon,
255 F.3d 1118, 1134 (9th Cir. 2001); Erickson v. Newmar
Corp., 87 F.3d 298, 303 (9th Cir. 1996); see also C.D. Cal.
Local R. 83-3.1.2 (providing that attorneys practicing in the
district court must comply with the Rules of Professional
Conduct of the State Bar of California, that any violation of
those rules “may be the basis for the imposition of discipline,”
and that the Model Rules of Professional Conduct of the
American Bar Association may also be considered as guid-
ance when disciplining attorneys). Additionally, the sanction
imposed must be tailored to curtail the attorney’s particular
misconduct. Chambers, 501 U.S. at 57; Support Sys. Int’l, Inc.
v. Mack, 45 F.3d 185, 186 (7th Cir. 1995) (per curiam); Orlett
v. Cincinnati Microwave, Inc., 954 F.2d 414, 420 (6th Cir.
1992).
MOLSKI v. EVERGREEN DYNASTY CORP. 11081
In this case, the district court afforded the Frankovich
Group notice and an opportunity to be heard before imposing
its sanction. On December 10, 2004, the district court issued
an order to show cause why the court should not impose a
pre-filing order on the Frankovich Group for its role in facili-
tating Molski’s litigation. Mandarin Touch I, 347 F. Supp. 2d
at 867. The Frankovich Group responded to the order in writ-
ing, and on February 7, 2005, the district court conducted a
hearing on the order. These proceedings provided the
Frankovich Group the notice and opportunity to be heard that
due process requires. See Pac. Harbor Capital, 210 F.3d at
1118; Weissman, 179 F.3d at 1198.
The district court also did not abuse its discretion in making
the substantive determination that a pre-filing order was justi-
fied based on the conduct of the Frankovich Group. As dis-
cussed above, Molski’s complaints repeatedly alleged injuries
that the district court found to be contrived and untrue. Also,
the claims of injuries often were inconsistent with the barriers
alleged. For example, complaints filed by the Frankovich
Group would allege bodily injury suffered as a result of inade-
quate signage or the lack of an accessible parking space.
[15] In light of the similarity and exaggerated nature of the
frequent injuries Molski alleged, we concluded above that the
district court’s findings regarding the lack of veracity in Mol-
ski’s complaints were not clearly erroneous and that the dis-
trict court was within its discretion in imposing a pre-filing
order on Molski. When a client stumbles so far off the trail,
we naturally should wonder whether the attorney for the client
gave inadequate or improper advice. That the Frankovich
Group filed numerous complaints containing false factual
allegations, thereby enabling Molski’s vexatious litigation,
provided the district court with sufficient grounds on which to
base its discretionary imposition of sanctions. Weissman, 179
F.3d at 1198.
The district court also emphasized that the letter that the
Frankovich Group sent to the defendants in at least two cases
11082 MOLSKI v. EVERGREEN DYNASTY CORP.
may have violated multiple ethics rules. While we do not rely
on the possible ethical violations as a ground for affirming the
sanction imposed on the Frankovich Group, we note that
Frankovich Group’s decision to send letters that many might
view as intimidating to unrepresented defendants was, at best,
a questionable exercise of professional judgment. The letters
gave legal advice to unrepresented parties whose interests
conflicted with the interests of the Frankovich Group, and this
advice quite possibly ran afoul of relevant ethical rules. See
Model Rules of Prof’l Conduct R. 4.3 (“The lawyer shall not
give legal advice to an unrepresented person, other than the
advice to secure counsel, if the lawyer knows or reasonably
should know that the interests of such a person are or have a
reasonable possibility of being in conflict with the interests of
the client.”); Model Code of Prof’l Responsibility DR 7-
104(A)(2) (providing that “a lawyer shall not . . . [g]ive
advice to a person who is not represented by a lawyer, other
than the advice to secure counsel, if the interests of such per-
son are or have a reasonable possibility of being in conflict
with the interests of his client”).
Additionally, the letters advised the defendant that it had no
bona fide defense to the ADA action, when in fact this might
not be true in a particular case. For example, the ADA
requires the removal of barriers in certain structures only
when “such removal is readily achievable.” 42 U.S.C.
§ 12182(b)(2)(A)(iv). This possibly false statement of law
may have violated ethics provisions regarding a lawyer’s can-
dor to third parties. See Model Rules of Prof’l Conduct R.
4.1(a) (providing that “[i]n the course of representing a client
a lawyer shall not knowingly . . . make a false statement of
material fact or law to a third person”); Model Code of Prof’l
Responsibility DR 7-102(A)(5).
The advice that the defendant might have insurance cover-
ing the alleged ADA violation might also have violated
Model Rule 4.1(a) and Disciplinary Rule 7-102(A)(5) because
California courts have held that an insurance company has no
MOLSKI v. EVERGREEN DYNASTY CORP. 11083
contractual duty to defend in an ADA suit alleging that a
defendant’s facilities were inaccessible. See Modern Dev. Co.
v. Navigators Ins. Co., 111 Cal. App. 4th 932, 943 (2002).
But because the district court was within its discretion in
sanctioning the Frankovich Group based on the questionable
allegations of physical injury in the complaints they filed, we
need not rely on the possible ethics rules violations as a
ground for affirming the district court’s sanction.7
[16] Finally, we hold that the district court’s pre-filing
sanction is sufficiently tailored to combat the Frankovich
Group’s practice of repetitive litigation based on false allega-
tions of injury. The sanction requires the Frankovich Group
to seek leave of the court before filing any more ADA com-
plaints in the Central District of California, and requires that
the district court’s order in this case accompany the
Frankovich Group’s motion for leave. Functionally, the sanc-
tion ensures that a judge will initially determine whether the
factual allegations in future complaints are colorable. The
order will protect against the extracting of possibly unjustified
settlements from uncounseled small-business defendants
intimidated by the spectre of a federal complaint coupled with
a coercive and misleading communication from a law firm.
However, the order does not make it impossible for the
Frankovich Group to pursue meritorious ADA litigation in the
district court. See Franklin, 745 F.2d at 1232. Moreover, as
far as the evidence before the district court showed, the
Frankovich Group only used abusive litigation tactics in con-
nection with litigation under the ADA. The pre-filing order
rightly applies only to complaints asserting claims for relief
7
Because we do not need to rely on the possibility of ethical rule viola-
tions to sustain the district court’s pre-filing order against the Frankovich
Group, and we decline to do so, we also do not make an ultimate determi-
nation whether or not any ethical rule violations occurred. As a general
matter, decisions on whether lawyers have violated their ethical obliga-
tions are best made in the context of formal bar association proceedings
where procedural due process protects the lawyer’s rights while assessing
any harm to the public.
11084 MOLSKI v. EVERGREEN DYNASTY CORP.
under the ADA. See De Long, 912 F.2d 1148; O’Loughlin,
920 F.2d at 618. For these reasons, we hold that the pre-filing
order imposed in this case is adequately tailored to punish the
past sanctionable conduct of the Frankovich Group, and, more
importantly, to protect the courts and the public from any
future misconduct by that law firm.8 Lawyers are required to
give their clients’ interests zealous advocacy, and while the
pre-filing order in this case will not stand in the way of advo-
cacy for legitimate claims, it will help to ensure that the ser-
vices of the Frankovich Group are used in support of valid
claims and not as a device to encourage settlement of unwar-
ranted or exaggerated claims. We affirm the district court’s
order imposing sanctions on the Frankovich Group.
VI
In summary, we dismiss defendants Brian and Kathy McIn-
erney from this appeal for lack of jurisdiction. We affirm the
district court’s order declaring Molski a vexatious litigant and
requiring him to obtain leave of the court before filing another
ADA complaint in the Central District of California. We also
affirm the district court’s order sanctioning the Frankovich
Group and imposing a similar pre-filing order on it. Costs are
awarded to the appellees.
AFFIRMED IN PART, DISMISSED IN PART.
8
District courts have broad discretion in fashioning sanctions. Leon v.
IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 2006); Ritchie v. United
States, 451 F.3d 1019, 1026 (9th Cir. 2006); Falstaff Brewing Corp. v.
Miller Brewing Co., 702 F.2d 770, 786 (9th Cir. 1983) (Wallace, J., dis-
senting in part). Permissible sanctions when vexatious litigation is encoun-
tered may include not only a pre-filing order, but also monetary sanctions
or even the ultimate sanction of dismissal of claims. We do not here hold
that, if a court encounters vexatious litigation, a pre-filing order is the only
permissible form of sanction. Rather, the district court may exercise its
sound discretion under the facts presented to choose any appropriate sanc-
tion that will punish the past misconduct and prevent the future miscon-
duct of the lawyer or party at issue.