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Lobato v. Gomez

United States District Court, E.D. California

March 8, 2017

EVERARDO O. GOMEZ, individually and dba EL SARAPE RESTAURANT; DOLORES B. GOMEZ, individually and dba EL SARAPE RESTAURANT, Defendants.


         This is 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 remedy.[1]

         A. Background

         This 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.[2]

         B. Plaintiff's Motion to Exclude Evidence Concerning Her Prior Litigation History

         Lobato 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.)

         In 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 nature.

         In her 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.

         C. Legal Standards

         Rule 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.

         Under 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).

         “The 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).

         In 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

         On 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)).

         After 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 ...

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