United States District Court, E.D. California
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION IN LIMINE (ECF, 61-1)
an action under Title III of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12181 et
seq., alleging that Plaintiff Rachel Lobato was denied
full access and enjoyment of Defendants' restaurant-El
Sarape Restaurant-because of various structural barriers in
the restaurant that Defendants have failed to
case is set for trial on June 27, 2017. On January 25, 2017,
Plaintiff filed a motion in limine consisting of four
requests to exclude the following evidence. The Court ruled
on three of those requests, as set forth in its order dated
February 24, 2017. (ECF No. 80). It took under advisement
Plaintiff's Motion in Limine to exclude evidence of
Plaintiff's prior litigation history (ECF NO. 61-1), and
now issues its order on that motion.
Plaintiff's Motion to Exclude Evidence Concerning Her
Prior Litigation History
requests that her prior litigation history be excluded from
trial on the grounds that it is irrelevant, and the probative
value of such evidence is substantially outweighed by the
potential prejudice under Rule 403 of the Federal Rules of
Evidence. While Lobato acknowledges that inquiry into whether
she is merely filing lawsuits for pure personal gain could be
relevant, it is not relevant here because she is seeking only
statutory damages in this case. Therefore, she argues that
“there is no reason to focus on any facts other than
those presented in this action.” (ECF No. 61-1 at 2).
In support of her motion, Lobato further states that the fact
that she has brought multiple ADA actions is “a sad
reminder that many businesses have sought to avoid compliance
with the ADA which was enacted over 20 years
ago…” (Id. at 3.)
their opposition, Defendants argue that Lobato's prior
litigation history is relevant to the issue of standing to
bring her ADA claim. (ECF No. 76 at 2.) Defendants have
claimed in this case, including in opposition to
Plaintiff's motion for summary judgment, that Plaintiff
did not in fact patronize Defendants' restaurant or
personally encounter barriers there. In support, Defendants
point to more than 30 lawsuits filed by Plaintiff and contend
that Plaintiff failed to recognize the names of those
lawsuits, calling into question Plaintiff's credibility
in asserting that she truly encountered barriers at those
establishments. Defendants claim they are not seeking to
admit the evidence to demonstrate Plaintiff's litigious
reply, Plaintiff argues that Plaintiff failed to recognize
the names of other establishments at her deposition because
they were listed by the owners or landlords and not the
businesses themselves. (ECF No. 81) Plaintiff contends she
did in fact remember certain businesses subject to her
lawsuits, and that she would recall more of them if provided
photos and other information to refresh her recollection.
Plaintiff also notes that she was not asked if she returned
to any of the businesses she sued.
403 provides that “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.” Fed.R.Evid. 403.
Federal Rule of Evidence 404, evidence of a person's
character trait or other acts to show that on a particular
occasion the person acted in accordance with the character or
trait is not admissible. Fed.R.Evid. 404(a)(1), (b)(1). Under
Rule 404(b), however, such evidence “may be admissible
for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Fed.R.Evid. 404(b)(2).
character trait of litigiousness and acts of filing other
lawsuits fall within Rule 404.” Barker v.
Yassine, 2016 WL 4264149, at *2 (E.D. Cal. Aug. 15,
2016) (citing Outley v. City of N.Y., 837 F.2d 587,
592-93 (2d Cir. 1988) (“Litigiousness is the sort of
character trait with which Rule 404(b) is concerned.”)
“To admit evidence of prior acts, it must: (1) tend to
prove a material point in issue; (2) not be too remote in
time; (3) be proven with evidence sufficient to show the act
was committed and; (4) if admitted to prove intent, must be
similar to the offense charged.” Yates v. Sweet
Potato Enterprises, Inc., 2013 WL 4067783, at *3 (N.D.
Cal. Aug. 1, 2013) (citing United States v. Beckman,
298 F.3d 788, 794 (9th Cir. 2002)). “In analyzing
whether to the admit Rule 404(b) evidence, the Court is
mindful that the rule is ‘a rule of inclusion-not
exclusion.'” Id. (quoting United
States v. Cherer, 513 F.3d 1150, 1157 (9th Cir. 2008)).
“If evidence satisfies Rule 404(b), ‘the court
must then decide whether the probative value is substantially
outweighed by the prejudicial impact under Rule
403.'” Id. (quoting United States v.
Romero, 282 F.3d 683, 688 (9th Cir. 2002));
Barker, 2016 WL 4264149, at *2 (granting
plaintiff's motion to exclude the evidence for the
purpose of showing plaintiff's bias and motive to sue and
finding that any permissible purpose is substantially
outweighed by the danger of unfair prejudice). See also
Outley, 837 F.2d at 592-93 (Evidence of previous
lawsuits filed by arrestee against city and city police
department was not admissible, in civil rights action arising
out of officers' alleged unlawful arrest, either for
purpose of impeachment or to show that arrestee was biased
against officers when city failed to establish that prior
lawsuits were fraudulently filed).
D'Lil v. Best W. Encina Lodge & Suites, the U.S.
Court of Appeals for the Ninth Circuit reviewed a trial court
decision dismissing an ADA action for lack of subject matter
jurisdiction after an ADA case involving a hotel patron and
hotel settled by consent decree. See 538 F.3d at
1034-35. In considering a subsequent motion for attorney
fees, the trial court found that the plaintiff lacked
standing under the ADA and professed skepticism that the
plaintiff could establish standing because the plaintiff
would be unlikely to provide evidence of an “intent to
return” to the hotel. See id. at 1035. The
trial court expressed concerns about the credibility of the
plaintiff's professed desire to return in light of her
involvement in multiple prior ADA suits. See id.
Accordingly, the trial court found that the plaintiff lacked
Article III standing because she could not establish that she
would suffer harm in the future and denied the motion for
attorney fees. See id
appeal, the Ninth Circuit in D'Lil reversed the
trial court and found that the plaintiff had Article III
standing. Id. at 1033. With respect to ADA cases
where the public accommodation is far from the
plaintiff's home, such as here, the Ninth Circuit
summarized its prior ADA decisions finding actual or imminent
injury sufficient to establish standing. See id.
1037. Those cases found standing “where a plaintiff
demonstrates an intent to return to the geographic area where
the accommodation is located and a desire to visit the
accommodation if it were made accessible.” Id.
(collecting cases.) The Ninth Circuit added that it has
“explicitly not required ADA plaintiffs to engage in
the ‘futile gesture' of visiting or returning to an
inaccessible place of public accommodation in order to
satisfy the standing requirement.” Id. (citing
Pickern v. Holiday Quality Foods, Inc., 293 F.3d
1133, 1135 (9th Cir. 2002)).
finding the plaintiff's statements concerning intent to
return sufficient to establish standing, the Ninth Circuit in
D'Lil rejected the trial court's credibility
finding based on her past ADA litigation history
(approximately 60 prior ADA suits). See id. at 1040.
The Ninth Circuit stressed that the “attempted use of
past litigation to prevent a litigant from pursuing a valid
claim in ...