Langer v. Kiser ( 2020 )

7) FILED 4 | oct 1 § 2020 | CLERK ig. UlsTFeCT COURT 5 SOUTHERS THe" OF et voeMt ; 8 _ UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || CHRIS LANGER, Case No.: 3:18-cv-00195-BEN-NLS 12 Plaintiff, ) _ ) ORDER DENYING PLAINTIFF’S 13 || ¥: ) MOTION IN LIMINENO.1TO □ 14 || MILAN KISER, in individual and ) EXCLUDE. representative capacity as trustee of the ) 15 ilan and Diana Kiser Revocable Trust . dated August 19, 2003; DIANA KISER, ) [ECF Nos. 65, 66] in individual and pepresentative capacity ) 16 as trustee of the Milan and Diana Kiser 7 Revocable Trust dated August 19, 2003, ) Defendants. ) □ 18 ) 19 - 20 INTRODUCTION | . 21 Plaintiff Chris Langer (“Plaintiff”) brings this action under the Americans with 22 Disabilities Act of 1990,.42 U.S.C. § 12101, et seg. (the “ADA”), against Defendants 23 || Milan and Diana Kiser, as individuals and in their representative capacities as trustees of 24 ||the Milan and Diana Kiser Revocable Trust dated August 19, 2003 (collectively, 25 ||““Defendants”) for discrimination by failing to provide full and equal access to the parking 26 ||lot they own that Plaintiff was unable to access due to his disabilities. ECF No. 1. ‘Before the Court is Plaintiff's Motion in Limine No. | to Exclude Evidence of || Plaintiff's Litigation History (the “Motion”). ECF No. 65. Defendant opposed □□□□□□□□□□□ Case #: 3:18-cv-00195-BEN-NLS 1 ||Motion. ECF No. 66. Plaintiff did not file a reply brief. 2 The motions were submitted on the papers without oral argument pursuant to Civ 3 || Local Rule 7. 1(d)(1). After considering the papers submitted, supporting documentatior 4 || and applicable law, the Court DENIES Plaintiff's Motion. 5 ||. BACKGROUND 6 A. Statement of Facts 7 Plaintiff Chris Langer (“Plaintiff”), is a paraplegic who uses a wheelchair fo 8 mobility. ECF No. 24-2 at 1:24. He has a disabled person parking placard and | 9 “specially equipped van with a ramp that deploys out of the passenger side.” ECF No. | 10 |! at 2:6-9. On February 27, 2017, Plaintiff went to the 1 Stop Smoke Shop (the “Smok _ 11 ||Shop”) and Gour Maine Lobster shop/Wallpaper store (the “Lobster Shop”) “to shop a 12 |lthe Smoke Shop and to check for pricing at the Lobster Shop.” ECF: No. 24-1 13 Declaration of Chris Langer, at 1:27-2: 1-2. Plaintiff asserts that he encountered barrier: 14 that prevented him from patronizing the businesses because there were no complian 15 ||handicap-accessible parking spaces. ECF No. 1 at 4:14-21. Due to the inaccessibl 16 |/ condition of the parking lot, Plaintiff argues he was denied “full and equal access” to the 17 || property, which caused him “difficulty and frustration:” ECF No. 1 at 5:18-19. □□□□□□□□□ 18 1 states that he (1) lives “about 10 minutes away from the Smoke Shop and the □□□□□□□ 19 ||Shop” (2) “would like the ability to safely and independently park and access the 20 || Businesses,” and (3) plans to vists the business “on a regular basis whenever” he is in the _ 21 |larea. ECF No. 24-1 at 2:4-12. Although Plaintiff states he would like to visit the Smoke 22 || Shop, see id, there is no evidence in the record that Plaintiff smokes. 23, Defendants are the trustees of the Milan and Diana Kiser Revocable Trust, which _ 24 llowns the mixed-use real property located at 3002 Barnett Ave., San Diego, Californiz 25 {192110 (the “Property”). ECF No. 25 at3:8-11. The Property consists “of both residential 26 land commercial units” and is surrounded by one parking lot on the East side (the “East 27 ||Lot”) and another parking lot on the West side (the “West Lot”). Id. at 3:10-11. -28 || Defendants: lease the East: Lot; which may only be accessed through gated entratices at >. 1 the front and back, to residential tenants. ECF No. 25 at 3:14-17. At both entrances te the East Lot, signs are posted stating, “OPEN PUBLIC PARKING PROHIBITED — NC 3 || TRESPASSING.” Jd. at 3:17-20. “The owners of the Smoke Shop and Lobster Sho} 4 || each have a single parking space in the East lot, but for personal use only.” Jd. at 3:15 5 1116, The West Lot, on the other hand, “is net leased to the 1 Stop Smoke Shop, rather i 6 || is leased to an auto repair shop,” and “[t]here are no signs indicating that any of the space: 7 ||in the West lot are for either 1 Stop Smoke Shop or Gour Maine Lobster customers.’ 8 || ECF No. 25-1 at 3:6-9 (emphasis in original). The sign in the Smoke Shop window tha 9 || says “PARKING” has an arrow pointing to the left of the store and “points to the Wes 10 towards the alley or street parking on the next block.” Jd. at 3:18-19. Defendants alleg: 11 |/that by attempting to park in the East Lot, a lot for Defendants’ residential tenants 12 || Plaintiff trespassed in violation of the signs at each entrance, prohibiting public parking 13 || ECF No. 20 at 2. : 14 B. Procedural History . 15 |) January 29, 2018, Plaintiff filed a Complaint in federal court alleging violation: 16 || of the ADA and Unruh Civil Rights Act. ECF No. 1 at 99 44-60. Plaintiffs complain 17 || requests (1) “injunctive relief, compelling defendants to comply” with the ADA; (2 18 ||“[dJamages under the Unruh Civil Rights Act, which damages provide for actua _ 19 |\damages and a statutory minimum of $4,000”; and (3) “reasonable attorney fees 20 litigation expenses and costs of suit, pursuant to 42 U.S.C. § 12205; Cal. Civ. Code § 21 |/52.” BCF No. | at 11:8-17. 22 On March 23 and 26, 2018, Defendants filed'answer to the complaint. See ECF 23 ||Nos. 7, 8... November 19, 2018, the Court entered an Order granting Defendants 24 || Motion for Leave to Amend Answer and Add First Counterclaim for Trespass. ECF No. 25 |)19. On November 21, 2018, Defendants filed their Amended Answer and Counterclaim. 26 ||ECF No. 20. On November 12, 2019, Plaintiff filed an answer to the counterclaim 27 against him. ECF = t-—~ On-February +0; 2020, the Final Pretrial Conference for this case was held before 3. 1 ||the Hon. Roger T. Benitez, and the Minute Order for this conference provided that (1 2 || motions in limine must be filed by March 9, 2020 and (2) jury instructions must be file 3 |/by April 27, 2020. ECF No.62, 4|| On March 9, 2020, Plaintiff timely filed his Motion in Limine No. 1 to Exclud 5 Plaintiff's Litigation History. ECF No. 65. On March 23, 2020, Defendants filed a 6 || opposition. ECF No. 66. Plaintiff has not filed a reply brief. 7 ||. LEGAL STANDARD» 8 Rulings on motions in limine fall entirely within this Court’s discretion. Unite: 9 || States v. Bensimon, 172. F.3d 1121, 1127 (9th Cir. 1999) (citing Luce v. United States 10 || 469 U.S. 38, 41-42 (1984)). Evidence is excluded on a motion in limine only if th 11 || evidence is clearly inadmissible for any purpose. Mathis v. Milgard Manufacturing, Inc. 12 ||2019 WL 482490, at *1 (S.D. Cal. 2019). If evidence is not clearly inadmissible 13 |/evidentiary rulings should be deferred until trial to allow questions of foundation 14 |\}relevancy, and prejudice to be resolved in context. See Bensimon, 172 F.3d at 112° 15 || (recognizing that when ruling on a motion in limine, a trial court lacks access to all the 16 |! facts from trial testimony). Denial of a motion in limine does not mean that the □□□□□□□□ 7 contemplated by the motion will be admitted at trial. Jd. Instead, denial means that the 18 Ilcourt cannot, or should not, determine whether the evidence in question should bs 19 || excluded before trial. Id.; see also McSherry v. City of Long Beach, 423 F.3d 1015, 1022 20 || (9th Cir. 2005) (rulings on motions in limine are subject to change when trial unfolds). 21 IV. DISCUSSION ‘Plaintiff advances three primary arguments in his Motion. First, he argues that hi: 23 ||| litigation history is inadmissible, and as such, should be excluded. ECF No. 65-1 at 2:14. 241/17. Second, he argues that any argument regarding tester standing should also be excluded as both irrelevant and creating a substantial danger of undue prejudice. Jd. at 26 !/6:9-12. Third, Plaintiff argues that his litigation history is not an appropriate basis for 27 questioning the sincerity of Plaintiff's intent to return. Jd. at 9:1-2. Defendant responds ff 1 || that (1) Plaintiff's litigation history is admissible for purposes of impeachment, ECF Nc 2 1/66 at 4:12-15, (2) evidence of Plaintiff's prior litigation history is not unduly prejudicia 3 |lid. at 8:25-26, and (3) whether Plaintiff intends to return is “highly probative” Plaintiff's credibility, and as such, merits any time it may take to cross-examine Plaintit |lon that issue, id. at 10:7-16. The Court agrees that Plaintiff's litigation history shoul: 6 not be excluded from trial and may be admissible for purposes of impeachment. 7 “The Americans with Disabilities Act (ADA) was signed into law by Presiden 8 || George H. W. Bush on July 26, 1990.” H.R. REP. No. 115-539, at 6-7 (2018) (citing 4 ? 1ULS.C. § 12101, et seg.). Its purpose was “to provide a clear and comprehensive nationa | mandate for the elimination of discrimination against individuals with disabilities.” Ja 1] || Although enacted with the most laudable of purposes, the ADA has regrettably produce 12 || unintended consequences, namely, extortion suits. □ In response to vexatious litigants 13 _ 14 1 “During its relatively short existence, the ADA has attracted sharp criticism fron judges, lawyers, and legal scholars as having been distorted by certain lawyers into : cynical money-making scheme.” See, e.g., Doran v. Del Taco, Inc., 373 F.Supp.2d 1028 16 || 1030-31 (C.D. Cal. 2005) (denying the plaintiff's motion for attorneys’ fees) “Enterprising plaintiffs and their attorneys have found a way to circumvent the will o Congress by seeking money damages while retaining federal jurisdiction.” Doran, 37: 18 |/F.Supp.2d at 1030. Due to the fact that “a violation of the ADA also □□□□□□□□□□ 19 constitutes a violation of state law, plaintiffs can sue in federal court for injunctive relie: under the ADA and add state law claims for money damages.” Jd. Although the opinior || was ultimately vacated and remanded, the Doran opinion, in denying a plaintiff's motior oy for attorneys’ fees, described the perversion of the ADA best: 22 The ability to profit from ADA litigation has given rise to ‘a 23 _ cottage industry.’ The scheme is simple: An unscrupulous law firm sends a disabled individual to as many businesses as □ 24 . possible in order to have him or her aggressively seek out all 25 violations of the ADA. Then, rather than simply informing a business of the violations and attempting to remedy the matter 26 through ‘conciliation and voluntary compliance,’ a lawsuit is filed, requesting damage awards that could put many of the targeted establishments out of business. Faced with costly. `` litigation and a potentially drastic judgment against them, most og. 1 j|perversion of the ADA, on February 15, 2018, Congress even tried to pass the “ADz 2 Education and Reform Act of 2017,” which attempted to address perceived abuses of th 3 ||ADA. ADA Education and Reform Act of 2017, H.R. 620, Committee of the Whol 4 House, 115th Cong., Second Session, 1198-1200 (2018). Although it passed the Hous 5 || of Representatives a vote of 225-192, see id, it was received in the Senate on Februar 6 □□□ 2018, and has not been passed into law. 164 Cong. Rec. $1219-03, $1219 (2018) 7 {|The House Report for this bill noted that “[t]he ADA has, at least for these seria 8 || plaintiffs, been changed from a remedial statute aimed at increasing accessibility into : 9 || way for lawyers to make money.” H.R. REP. 115-539, LEGISLATIVE HISTORY OF TH! 10 || ADA EDUCATION AND REFORM ACT OF 2017 (2018). “Businesses sued under the ADA 11 ||. . are almost uniformly willing to fix their properties without the expense and hassle o 12 || litigating in federal court.” Jd. Thus, “[h]aling them into court regardless of thei: 13 || willingness to comply voluntarily with the ADA solely to vest plaintiffs’ attorneys □□□□ 14 || an entitlement to fees provides very little societal benefit.” Jd. 15 Here, Plaintiff admits he “is what the published case law calls a serial litigator.’ 16 □□□ No. 65-1 at 2:8. A search of Public Access to Court Electronic Records (“PACER” || shows that since May 1, 2002, Chris Langer has been a plaintiff in 472 cases before the _ 18 ||Southern District. In the Central District, Plaintiff has been a plaintiff in 1,013 cases 19 || since November 19, 2008. PACER shows a total of 1,498 cases in which the plaintiff is 20 21 businesses quickly settle. 22 93 _,.. [T]he result of this scheme is that ‘the means for enforcing the _ ADA (attorney’s fees) have become more important and □ _ desirable than the end (accessibility for disabled _ 25 individuals).’ Serial plaintiffs serve as ‘professional pawn[s] in an ongoing scheme to bilk attorney’s fees.’ It is a ‘type of 26 _ Shotgun litigation [that] undermines both the spirit and purpose 7 ofthe ADA.” □ Doran, 373 F.Supp.2d at 1030 (internal citations omitted). 6. . . 1 ||named “Chris Langer” throughout all courts on PACER. Accordingly, the Court take 2 judicial notice that Chris Langer is a plaintiff in 1,498 federal cases. See FED. R. EVIL 3 ||201(b)(1)-(2) (providing that at any stage of a proceeding, courts may take judicial notic 4 || of (1) facts not subject to reasonable dispute and “generally known within the trial court’ 5 || territorial jurisdiction” and (2) adjudicative facts, which “can be accurately and readil: 6 ||determined from sources whose accuracy cannot reasonably be questioned”); see als 7 || Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290, fn. 1 (9th Cir. 1996 8 (taking judicial notice of court records); Enterprise Bank v. Magna Bank of Missouri, 9. 9 F.3d 743, 746 (8th Cir. 1996) (holding that the district court did not err by taking judicia 10 || notice of pleadings in earlier related proceedings). Defendants also note that Plaintif 11 thas filed “approximately 300 cases in San Diego Superior Court.” ECF No. 66 at 7:3. 12 As discussed below, this Court holds that evidence of Plaintiffs litigation histor; 13 |/(1) is not inadmissible; (2) may be relevant to tester standing; and (3) is an appropriat 14 | basis for questioning the sincerity of Plaintiff's intent to return to Defendants’ Property 13 A. Plaintiffs Litigation History Is Not Inadmissible. 16 Plaintiff argues that his litigation history is inadmissible because it (1) is irrelevant 17 || (2) necessitates undue consumption of time, and (3) creates a substantial danger of undue 18 || prejudice. ECF No. 65-1 at 2:14-17. Defendant argues that Plaintiff's litigation history 19 admissible for purposes of impeachment. ECF No. 66 at 4:12-15. While the Cour |/ will not rule that the evidence is admissible, as Defendants must lay foundation for ali 21 || evidence they seek to admit at trial, the Court will not issue a ruling excluding evidence Plaintiff's litigation history from coming in at trial. Relevant evidence is admissible unless the United States Constitution, a federal 24 statute, the Rules of Evidence, or other rules prescribed by the Supreme Court of the 2> || United States provide otherwise. FED, R. Evip. 402. However, even where evidence is 26 relevant, it may not be admissible. Jd. Under Rule 403 of the Federal Rules of Evidence, 27 [t]he court may exclude relevant evidence. if its probative value is substantially og . -7. . ‘1 || outweighed by a danger of one or more of the following: unfair prejudice, confusing th 2 |lissues, misleading the jury, undue delay, wasting time, or needlessly presentin 3 || cumulative evidence.” FED. R. Evip. 403. 4 First, and as analyzed below, Plaintiffs litigation history—especially the 1,01 5 || cases filed in the Central District—are unquestionably relevant to Plaintiff’ credibilit 6 || with respect to the legitimacy of his intent to return to businesses, and therefore, hi 7 standing, While specific acts may not be used to prove conduct in conformity therewit 8 (e.g., in this case, Defendants should not be allowed to show that because Plaintiff neve ? || returned to patronize businesses in other cases, he must not have intended to return i 10 Il this lawsuit), they are permissible to prove motive and intent. FED. R. Evi. 404(b)(2} Here, the Court believes the trier of fact may need to consider Plaintiff's litigation histor 12 when evaluating Plaintiffs motive and intent in filing this lawsuit. Second, the Cour rejects Plaintiffs arguments that the probative value of introducing his litigation histor (1) substantially outweighed by the consumption of time or (2) unduly prejudicial t 19 Plaintiff—especially given Plaintiff himself admits to being a serial litigator. 16 1, Plaintiff ’s Litigation History is Relevant. □ "7 Plaintiff argues his litigation history is not relevant to the current lawsuit, and thus | should be excluded, ECF No. 65-1 at 3:1-2. Defendant reiterates that Plaintiff’ ? litigation history is admissible for purposes of impeachment. ECF No. 66 at 4:12-15. 20 _ “Evidence is relevant if: (a) it has any tendency to make a fact more or les: a1 probable than it would be without the evidence: and (b) the fact is of consequence ir 22 determining the action.” Fed. R. Evid. 401. Here, in order to analyze what a fact o: 2 consequence would be in this case, we must analyze the claims for relief Plaintiff pursues _ “A party invoking federal jurisdiction has the burden of establishing that it has 2 satisfied the ‘case-or-controversy’ requirement of Article III of the Constitution; standing 6 is a ‘core component’ of that requirement.” D’Lil v. Best W. Encina Lodge & Suites, □□□ F.3d 1031, 1035-(9th Cir. 2008) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 56C 8. 1 |/(1992)). “To establish standing, a plaintiff must demonstrate (1) a concrete an 2 particularized injury that is actual or imminent, not conjectural or hypothetical; (2) 3 || causal connection between the injury and the defendant's challenged conduct; and (3). 4 || likelihood that a favorable decision will redress that injury.” Nat'l Family Farm Coalitioi > |lv. EPA, 966 F.3d 893, 908 (9th Cir. 2020) (quoting Pyramid Lake Paiute Tribe of Indian Nev., Dep't of Wildlife, 724 F.3d 1181, 1187 (9th Cir. 2013)). “ 7 The evidence relevant to the standing inquiry consists of “the facts as they existe 8 ||at the time the plaintiff filed the complaint.” D’Lil, 538 F.3d at 1036 (citing Skaff v ? || Meridien North America Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir.2007)). In ADA 10 || cases, the second prong of standing; or the “injury in fact” requirement, requires the cour _ determine whether the plaintiff “demonstrated that [his or] her injury was ‘actual o 12 ||imminent’ at the time that [he or] she filed [is or] her complaint.” Jd. (citing Lujan, 50 13 U.S. at 560),. An ADA plaintiff seeking injunctive relief must satisfy this requiremen «14 by demonstrating the plaintiff has “a sufficient likelihood that he will again be wrong ir 13 ||a similar way” by establishing “a real and immediate threat of repeated injury.” Fortyune American Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir.2004) (quoting City o 17 ||Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) and O’Shea v. Littleton, 414 U.S. 488. 18 || 496 (1974)). 19 Both Plaintiff and Defendant cite to D’Lil v. Best W. Encina Lodge & Suites. as _ 20 |linstructive on the relation of an ADA plaintiff's litigation history to standing, and the 21 | Court agrees that D’Lil merits careful consideration. 538 F.3d at 1035. In D’Lil, the 22 |Iplaintiff was a paraplegic who, like Plaintiff, required the use of a wheelchair for 23 || mobility. Jd. at 1033. The plaintiff worked as an “accessibility consultant,” meaning 24 |/ that she contracted “with private attorneys and local governments to evaluate properties 25 |! for barriers to disabled access.” D’Lil, 538 F.3d at 1034, n. 1. She “traveled from het home in Sacramento to Santa Barbara, California in order to conduct a property 27 inspection for fan] attorney” and encountered numerous barriers to access. Id. at 1034. . _9- 1 |) After her trip, she filed suit against the defendant hotel, “seeking injunctive relief unde 2 || Title IIT of the ADA, injunctive relief and damages under California civil rights laws, a 3 || well as attorney’s fees, litigation expenses, and costs.” Jd. “Afier three years 0 4 litigation, the parties entered into a consent decree that settled all issues related t 5 |linjunctive relief and damages” but reserved “[t}he issue of attorney’s fees, □□□□□□□□□□ 6 expenses, and costs . . . for future resolution.” Jd. When the plaintiff filed her □□□□□□ 7 |i for attorney’s fees, the district court, sua sponte, expressed concern over whether th 8 plaintiff had standing to sue and asked the parties to brief the issue. Id. ? On appeal, the Ninth Circuit reversed the district court’s finding that the □□□□□□□□ 10 Illacked standing. D’Lil, 538 F.3d at 1041. First, the court noted that “[fJederal court IT Hare required sua sponte to examine jurisdictional issues such as standing.” Jd. at 103: '? ll (citing Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2001) (interna 13 quotations omitted). In the context of suits for injunctive relief filed pursuant to th ADA, a plaintiff establishes the “actual or imminent” injury requirement for standing b: showing an ‘intent to return to the geographic area where the accommodation is locatec 16 and a desire to visit the accommodation if it were made accessible.” Jd. at 1037. Th court reviewed evidence in the record that the plaintiff had given “detailed reasons as tc 8 why she would prefer to stay at the Best Western Encina during her regular visits. □□ Sant: Barbara” and “testified to three upcoming trips that she was planning to the Santa Barbr: area.” Jd. at 1038. Asa result, the Ninth Circuit concluded that the district court errec in finding that the plaintiff had “failed to provide evidence of her intent to return at the time that she filed suit.” Jd. at 1039. Thus, the court held that the plaintiff hac “established that she suffered an ‘actual or imminent’ injury sufficient to confer anding” Id Notably, in D’Zil, “the district court explicitly declined to decide the credibility “44 issue, relying instead on the ground that D’Lil did not introduce evidence of her intent tc return in December 2002 to find that she lacked standing.” D’Lil, 538 F.3d at 1039 10 1 || However, the Ninth Circuit noted that to the extent the district court’s concerns about th 2 plaintiff's credibility “might be viewed as an adverse credibility finding,” the cour 3 || rejected the legal reasoning on which that finding was based. Jd. at 1039-40. It reasone 4 that “(t]he attempted use of past litigation to prevent a litigant from pursuing a valid clain 5 lin federal court warrants our most careful scrutiny.” /d. at 1040. Ultimately, the cour 6 rejected the district court’s credibility determination. Id. However, it did not reject th: 7 credibility determination because it is per se improper to consider litigation history. Jd 8 Rather, the Ninth Circuit determined that the district court, in arriving at its credibilits 9 determination, had engaged in speculation, and the ultimate determination as to th 10 || plausibility of the plaintiff's intent to return was undermined by evidence that the plaintif did, in fact, travel frequently throughout the state. Id □ 2 In the D’Lil court’s discussion of the considerations courts should bear in minc 13 when deciding to consider past litigation history in ADA cases, it relied on the case □□ 14 | Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007). In Molski, th IS Ninth Circuit affirmed the district court’s decision to enter pre-filing orders against the plaintiff and his lawfirm, stating that it could not “say that the district court abused it 7 discretion in declaring Molski a vexatious litigant and in imposing a pre-filing □□□□□ 8 against him.” 500 F.3d at 1050, 1062. The Molski plaintiff was paralyzed from the ches 9 down, required a wheelchair, and had filed more than 400 lawsuits within the federal courts in California. Id, at 1050. He filed suit against the defendants, who promptly filec 2 a motion to have the plaintiff declared a vexatious litigant, which the district court granted, after considering the plaintiff's litigation history. fd. at 1051. The Ninth Circuit, in reviewing the district court’s consideration. of the plaintiff's litigation history, || reiterated why courts need to exercise caution when considering litigation history: 26 We recognize that the unavailability of damages reduces or removes 27 the incentive for most disabled persons who are injured by 1 . ADA. As aresult, 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 3 as a matter of course. For the ADA to yield its promise of equal 4 access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time □ 5 when public accommodations will be compliant with the ADA. But 6 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 8 contrived, exaggerated, and defy common sense. False or grossly 9 exaggerated claims of injury, especially when made with the intent to coerce settlement, are at odds with our system of justice, and Molski’s 10 history of litigation warrants the need for a pre-filing review of his’ claims. 1] 12 || Molski, 500 F.3d at 1062 (citing Samuel R. Bagenstos, The Perversity of Limited Civi 13 ||Rights Remedies: The Case of “Abusive” ADA Litigation, 54 U.C.L.A. L.Rev. 1, □ 14 (2006); De Long v. Hennessey, 912 F.2d 1144, 1148, n. 3 (9th Cir. 1990)). 15 When considering the aforementioned cases, Plaintiffs argument that “[t]he lav 16 |/is clear that Mr. Langer’s litigation history is of no relevance to the outcome of th 17 || action,” ECF No. 65-1 at 5:25-26, is clearly incorrect. Courts have considered litigatior 18 history, such as in Molski, but must do so with caution. Defendants, on the other hand 19 |/ correctly note that “[clourts have regularly raised credibility issues in ADA □□□□□□□□□□ 20 || involving serial plaintiffs.” ECF No. 66 at 9:15-18 (citing Harris v, Stonecrest Care Aute 21 || Center, LLC, 472 F.Supp.2d 1208, 1213 (S.D. Cal. 2007)). For instance, in another □□□□ |! before this district court, Harris v. Stonecrest Care Auto Center, LLC, the plaintiff, like Mr, Langer, was disabled and had difficulty. walking, requiring braces or a wheelchai _ 4 Vand filed suit alleging he encountered a number of barriers while at a Shell gas station ging 25 Harris, 472 F.Supp.2d at 1210. The plaintiff also pursued claims under the ADA anc 26 Unruh Act and tried the case before the Court without a jury. Jd. At the close of the 27 plaintiff's case, the defendants moved for judgment as a matter of law, contending tha Jucg Ja 12 1 || “Plaintiff lacked Article III standing to bring his federal claims.” Jd. In the Court’ 2 || findings of fact and conclusions of law after the trial, the Court found the plaintiff 3 testimony to be unreliable. Jd. at 1212. In doing so, it acknowledged the right of litigant 4 |/to file ADA lawsuits to remedy denial of access violations but noted that “the reality i 5 |lhe has sued so many different establishments that it is impossible to believe that h 6 routinely visits the same establishments on each of his visits to San Diego.” Jd. at 1213 7 | The Harris opinion explicitly referred to the relevance of multiple lawsuits and rise o 8 “legal shakedown sheme{s].” Jd. at 1215. In order to deal with the high-volume of ADA 9 cases, “[flederal courts must be diligent in observing standing requirements.” Jd. at 121. 10 (citing B.C. v. Plumas Unified School Dist., 192 F.3d 1260, 1264 (9th Cir.1999) (holdin; that federal courts are required to examine jurisdictional issues such as standing, evel sponte, if necessary). Ultimately, the court held that “because, as of the date of filing 3 || Mr. Harris was not likely to return to the Shel! station, he lacks standing to bring a Titl "4 Vin claim.” Id. at 1217. □ 1S The Harris court also acknowledged the “apparently contrary dicta regarding the relevance of the plaintiff's motivation for visiting a business facility only for the purpose "7 of initiating an ADA lawsuit.” Jd. at 1217. However, it determined that the cases? whicl ruled that a plaintiff had standing even if he or she visited a facility for the purpose o locating barriers to create pretext for litigation were distinguishable because those case: decided a motion to dismiss. Because at the pleading stage, courts assume the truth of : 1 plaintiff's allegations, and therefore, must assume the plaintiff intends to return if he makes that allegation, those cases were distinguishable. Harris, 472 F.Supp.2d at 1218 24 IIo See, e.g., Organization for Advancement of Minorities with Disabilities v. Bricl 95 || Oven Restaurant, 406 F.Supp.2d 1120 (S.D. Cal. 2005) (opining that the □□□□□□□□□□□ | standing requirement in the ADA case would be met even if he visited the business □□□□□□ 26 |! for the purpose of determining. whether barriers exist so he could file suit); Molski v. 27 || Arby's Huntington Beach, 359 F .Supp.2d 938, 941 (C.D. Cal. 2005) (Arby’s) (observing, | jin dicta, that “[i]t simply does not matter, from a jurisdictional and. standing point of view, what [a plaintiffs] motivation was for visiting [a business establishment]”). -13- I However, “the motivation behind a plaintiff's visit to a defendant business establishmer 2 may inform the question of redressability (an element of standing) and therefore takes o 3 || greater significance at later stages in litigation.” Jd Accordingly, “[a] plaintiff wh 4 visits a local business solely in order to bring a Title III claim (to which supplementa state claims may be joined) fails to meet the redressability requirement for Article II 6 || standing.” Harris, 472 F.Supp.2d at 1219 This is because if litigation is the sole purpos 7 for a plaintiff's visit to a particular business, “once litigation is complete it is unlikel 8 such a plaintiff will return to avail himself of the business’ goods or services, or to visi the local business for any other reason.” /d. at 1219. Hence, “[a]ny permanent □□□□□□□□□□ 10 |! obtained in the course of litigation might benefit others, but it would not benefit th i plaintiff.” Jd. On the other hand, “where 7 plaintiff's interests in patronizing or visitin; 12 || the establishment extend beyond the end of litigation, injunctive relief may redress th: 3 | laintiff's injury.” Id. The Harris court held “that an individual plaintiff's contact with a loca IS establishment made solely for the purpose of bringing a claim under Title III of the ADA ‘6 without more, is insufficient to confer Article III standing to seek injunctive relief.’ Harris, 472. F Supp.2d at 1219-20 (“Because the Court finds Mr. Harris visited the Shel 8 station solely for the purpose of bringing a Title III claim and supplemental state claims " any injunctive relief it might grant would not satisfy the redressability requirement for * standing”) (citing Lujan, 504 U.S. at 5 61). Given the Court concluded that the □□□□□□□□ lacked Article IIT standing to pursue claims under Title III of the ADA, the Court lackec jurisdiction to hear the plaintiff's ADA claim and dismissed it with prejudice. Id. a 1/1220. With “[t]he federal claim having been dismissed for want of jurisdiction,” the Court could not “exercise supplemental jurisdiction to hear Mr. Harris’ state law claims” and dismissed the state law claims without prejudice. Harris, 472 F.Supp.2d at 1220. 4 With the Ninth Circuit’s precautionary considerations enumerated in D’Lil anc in mind, this Court examines the potential reasons for admitting some or all o -14- 1 || Plaintiffs lawsuits and weighs the probative value against any unfair prejudice that ma 2 ||arise due to the admission of such evidence. Admittedly, there is no disputing the 3 ||Defendants cannot admit Plaintiffs previous lawsuits for the sole purpose of provin 4 ||Plaintiff is a vexatious litigant. This is because evidence of a person’s charactet 5 |i character trait, or specific acts is not admissible to prove that on a particular occasior 6 person acted in accordance with that character or trait. FED. R. Evin. 404(a)-(b, 7 || Defendants do not dispute this, noting “prior lawsuits are inadmissible to show that th 8 plaintiff is litigious.” ECF No. 66 at 4:5-6. However, Defendants correctly argue “sucl ? || evidence is admissible for other purposes, such as impeachment.” Jd. at 4:8-9 (emphasi 10 omitted). “Evidence of a witness’s character may be admitted under Rules 607, 608, an 609,” which relate to impeachment. FED. R. EVID. 404(a)(3); see also Outley v. City o '2 |New York, 837 F.2d 587, 593 (2d Cir. 1988) (noting that “[ilmpeachment has beer 13 recognized as one of the ‘other purposes’ for which evidence of prior acts may bi 4 admissible”). Pursuant to Rule 607, “[a]ny party, including the party that called th 1S witness, may attack the witness’s credibility.” FED-R. EVID. 607. On cross-examination courts may permit inquiry into specific instances of a witness’s conduct in order to attacl "7 the witness’s character for truthfulness if they are probative of that witness’s characte: for untruthfulness. FED. R. Evin. 608(a). _ In this case, at Plaintiff's September 14, 2018 deposition, Plaintiff testified that he had filed 631 cases in the Central District, and although he did not live in the Los Angele: 2! area at the time he filed those lawsuits, he intended to patronize those businesses again ECF No. 66-1, Ex. A at 114:9-115:2-4. Nonetheless, Plaintiff also testified during hi: ° deposition that he could not temember what kind of businesses (e.g., bars, restaurants. |/etc.) he sued in Los Angeles. Id. To the extent’ Defendants seek to admit Plaintiff's 06 litigation history for the purpose of showing that Plaintiff's testimony was not truthful— 9 for instance, by showing that some of the business became accessible, but Plaintifi nonetheless, did not patronize them—such testimony would be admissible under Rule: 15. 1 11404, 607, 608, and 609 of the Federal Rules of Evidence. However, Defendants cannc 2 admit the lawsuits as evidence that Plaintiff fails to return to establishments as a generé 3 |/matter unless Plaintiff was asked at his deposition whether he returned to thos 4 || establishments that he sued. That being said, Defendants argue that “Plaintiff's litigatio: 5 || history raises serious credibility questions about his professed intent to return.” ECF Ne 6 1166 at 8:19-20. Defendants note that “[g]iven the high number of suits and identica 7 allegations, it is highly implausible that Plaintiff sincerely intends to return to every plac 8 || he sues.” ECF No. 66 at 8:20-21. The court, sua sponte, takes judicial notice of the fac ? || that Plaintiff has filed previous lawsuits in which he admits he never intended to returt 10 Il to the premises. See, e.g., Langer v. Lapiz Properties Group, United States District Cour Il for the Southern District of California Case No. 3 :20-cv-0664-BEN-MDD? (the “Lapi 12 Case”). 13 Further, evidence of specific acts, like Plaintiff's previous lawsuits, “may b * | admissible for another purpose, such as proving motive, opportunity, intent, preparation 1S plan, knowledge, identity, absence of mistake, or lack of accident.” FED. R. EvID 404(B)(2). “Prior acts include prior lawsuits.” Batiste-Davis v. Lincare, Inc., 526 F.3¢ 377, 380 (8th Cir. 2008), The Court finds that Plaintiff's litigation history may □□□□□□□□ 18 . . be useful for other purposes under Rule 404. Plaintiff's arguments as to relevance fail tc 19 3 In this case, also before the Hon. Roger Benitez, the defendants moved.to dismis: Plaintiffs case by arguing that res judicata bars his April 6, 2020 lawsuit because on May 22 |/29, 2013, Langer filed essentially the same lawsuit against the same defendants (ir ||addition to a third defendant) in San Diego County Superior Court as Case No. 37-2013- 00050784-CL-CR-CTL (the “2013 Action”) based on the same alleged violations of the #4 || ADA and UCRA with respect to the same property. Lapiz Case, ECF No. 10-1 at 2:4-8. 5 ||In response, Plaintiff argues res judicata does not preclude his new lawsuit because his ADA claim could not have been brought in the prior lawsuit as “Langer had no intentior |! of returning to the . . . store and, therefore, had no standing to seek ADA injunctive 7 ||relief.” Lapiz Case, ECF No. 11 at 2:16-3:2; but see ECF No. 66-1, Ex. A, 116:13-17 (Plaintiff testified during his deposition in this case that with respect to the some 950 cases he filed in the federal courts, he alleged he intended to return in all of them). -16- 1 || warrant the Court excluding all evidence of litigation history at trial. 2. The Probative Value of Plaintiff's Litigation History Outweigh 3 Any Consumption of Time. 4 Plaintiff also argues that his litigation history should not be admitted because an 5 || probative value is substantially outweighed by the consumption of time it wil 6 || necessitate. ECF No. 65-1 at 4:18-20. Plaintiff argues that if he is “forced to defend th 7 validity of his claims,” it “would require Mr. Langer relitigate each of the cases raise 8 by Defendants, to show that the claims were meritorious and negate any infererice 0 ? ||impropriety.” Jd. at 4:23-26. “Given the volume of cases Mr. Langer has filed as a 10 || admitted serial litigator, his estimate for trial completion would have to be revised fron the current short form to several weeks.” Id. at 4:27-28-5: 1. Defendants respond that “4 2 Nis not necessary for Plaintiff to relitigate all of his prior cases to rebut the inference hei 13 not being truthful.” ECF No. 66 at 10:10-11. Rather, “Plaintiff can simply presen evidence to show which of the premises he actually returned to.” Id. at 10:12. First, the Court concludes that the burden of any consumption of time spen ' admitting evidence of Plaintiff's litigation history does not substantially outweigh th probative value of such evidence.. In fact, any consumption of time could be minimizec through party cooperation by agreeing to a stipulation on certain issues. However, if the 9 parties are unable to agree on this, Defendants can, through careful pre-trial preparation select the most important cases about which they would like to cross-examine Plaintif 2 to minimize the consumption. of time. Nevertheless, the Court feels the probative value of such evidence warrants the time it may take to question Plaintiff regarding the issue. 3. ‘The Probative Value of Plaintiff Litig ation History Is_No Substantially Outweighed by the Probability of Undue Prejudice. 6 Next, Plaintiff contends that his litigation history should not be admitted □□□□□□□ 4 any probative value is substantially outweighed by the probability of undue prejudice -17- _ 1 |lhistory is not unduly prejudicial and appropriate on cross-examination. ECF No. 66 : 2 118:25-26, . 3 The Court acknowledges that admission of previous lawsuits has some prejudici: 4 || value by establishing that Plaintiff has filed over one thousand other lawsuits, which ma 5 || cause the trier of fact to unfairly discount the present case based on a bias against litigiou 6 || plaintiffs. However, on the whole, the Court finds the probative value of the othe 7 lawsuits, especially, but not limited to the Central District lawsuits, is outweighed by th 8 |Irisk of prejudice. As such, provided Defendants lay proper foundation for thei ? || admission at trial, these lawsuits should be admissible. In particular, the Court woul 10 find highly relevant whether any of Plaintiff's lawsuits allege that Plaintiff visited othe 11 |! establishments on the same day that Plaintiff alleges he visited the Smoke Shop an _ |? |lLobster Shop. Plaintiff admits that his counsel’s private investigator, rather than Plaintif 13 himself, entered the shops to measure the aisles and counters. ECF No. 24-1 at 4:6-18 '4 || While the ADA does not require efforts in futility to vest a plaintiff with standing, sec . IS e.g., Civil Rights Educ. and Enforcement Ctr. v. Hospitality Props. Tr., 867 F.3d 1093 |] 1098-99 (9th Cir. 2017) (“[w]hen a plaintiff who is disabled within the meaning of th ADA has actual knowledge of illegal barriers at a public accommodation to which he o OB || She desires access, that plaintiff need not engage in the ‘futile gesture’ of attempting te gain access in order to show actual injury”); 42 U.S.C. § 12188(a)(1) (same), if Plaintif never visited the Smoke Shop and Lobster Shop at all, this evidence would not only hav. high probative value, but it would also deprive Plaintiff of standing. ey Further, to minimize any prejudice to Plaintiff, the Court cautions Defendants tha 8 argument at trial will be limited to the question of whether Plaintiff (1) intended to returt ‘||to the establishments and/or (2) in fact visited the ‘establishinents and encountered th 6 barriers in question. In admitting évidence pertaining to Plaintiffs litigation history for | this limited purpose, the Court is cognizant of the Ninth Circuit’s guidance in D’Lil tha TB 1 plaintiff's previous ADA litigation history. 538 F.3d at 1034-35. Nonetheless, afte 2 careful consideration, the Court believes the probative value of such evidence outweigh 3 |/any unfair prejudice or consumption of time, and that the prejudice to Defendants fror 4 excluding such evidence would be far greater than the prejudice to Plaintiff fron |ladmitting the evidence. 6 The Court finds that any prejudice to Plaintiff resulting from admitting his ow 7 litigation history does not substantially outweigh the probative value of such evidence— _ 8 |/particularly given Plaintiff touts himself as a champion of the ADA. Given Plaintiff? 9 self-proclaimed status as a tester, the Court finds it contradictory that he would now wan 10 hide the very same status about which he boasts. B. ‘Tester Standing Is Not at Issue. 12 Plaintiff paradoxically argues that “argument regarding tester standing an OB evidence supporting it should be excluded because it is irrelevant and creates a substantia danger of undue prejudice,” ECF No. 65-1 at 9:1-2, while later admitting in the same motion that intent to return, which relates tangentially to whether Plaintiff was a tester “is certainly a fair issue to raise,” id. at 9:4, Defendant responds by noting that “[tjhe issue here is not whether Plaintiff is a serial ADA tester, but whether he misrepresentec 8 the purpose of his visit to the Shopping Center.” ECF No. 66 at 9:18-19. The Cour declines to address this issue given Defendant appears to not (1) dispute that testers may have standing, id. at 5:9-21, and (2)-raise tester standing as an issue, id. at 9:18-19. 71 C. The Sincerity of Plaintiff's Intent to Return is a Fact of Consequence Relevant to Plaintiff's Article IN| Standing in His ADA Case. Plaintiff argues that his litigation history is not an appropriate basis fot 9s |/questioning the sincerity of Plaintiff's intent to return. ECF No. 65-1 at 9:1-2. Defendant responds that “Plaintiff placed the question of his intent to return squarely 7 at issue.” ECF No. 66 at 1:12, Thus, whether Plaintiff ‘intends to return is “highly 119. 1 || examine Plaintiff on that issue. Jd. at 10:7-16. Again, Plaintiff notes in his motion th: 2 |/“intent to return is certainly a fair issue to raise,” ECF No. 65-1 at 9:4. However, Plainti: 3 |/argues that Defendants must address this issue “without relying on Plaintiff's litigatio 4 \Ihistory.” Jd. at 66-1 at 10:3-5. The Court disagrees, and as discussed in section IV(A)(1 > || finds that Plaintiff's intent to return is “squarely at issue” here and highly relevant to hi 6 || standing in this lawsuit. The court also concludes that Plaintiff's previous litigatio 7 ||history may prove relevant to this issue. Thus, such evidence will not be excluded. 8 |lv. CONCLUSION | 9 For the above reasons, the Court DENIES Plaintiffs Motion in Limine No. I t 10 Exclude Evidence of Plaintiff's Litigation History. Although the Court denies Plaintiff? 1 Motion, the Court does not rule that such evidence is admissible. Defendants must stil 12 ll have to lay foundation and establish a basis for the admissibility of such evidence at trial _ |lPurther, Defendants may admit evidence of Plaintiff's litigation history solely for th 14 purposes of impeachment and establishing standing. Such evidence is not admissible te 15 show character (e.g., that Plaintiff has a character trait-of litigiousness). '° IT IS SO ORDERED. . 2 DATED: Septembery9O 2020 My Athi 18 HOM ROGER T. BENIPEZ 19 United"States District Jédge 20 21 | 22 24 □ 26 27 : -20-