“I ABSOLUTELY THINK I should get my money back,” Jihan Bayyari said.
Bayyari is one of a group of restaurant and bar owners in Redwood City who were hit with a cluster of suits under the Americans with Disabilities Act in May 2021.
The suits were all filed in the same week, by the same plaintiff, Brian Whitaker, a prolific Americans with Disabilities Act litigator. All the suits asserted that outdoor dining tables were not accessible for a person in a wheelchair because the tables lacked “sufficient knee or toe clearance under outside dining surfaces”
Bayyari, like most of the other defendants, settled the case against her by agreeing to make a one-time payment. She settled reluctantly, but she was very worried about the cost of litigation and didn’t feel she could take the risk.
The experience left a bad taste in her mouth, only made worse by recent developments.
Another Redwood City restaurant — Alhambra Irish House — did not settle and after a hearing, U.S. District Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California dismissed Whitaker’s case.
The judge found that key parts of Whitaker’s testimony were “not credible.”
Whitaker’s lawyer, Dennis Price of the San Diego law firm Potter Handy LLP, said that they will appeal.
Bayyari thinks the money she paid to settle should be refunded.
Whether Bayyari and the other restaurants can recoup any of the money they paid in settlement is an open question, and the answer may depend on the outcome of a suit that the district attorneys of San Francisco and Los Angeles have filed against Whitaker’s lawyers.
Revisiting the law
The unusual civil case alleges that Potter Handy and 15 of its lawyers schemed to bring thousands of lawsuits in federal court, knowing that their clients did not have the right to bring such actions.
The ADA allows claims by disabled plaintiffs who encounter barriers to access a store or restaurant, but only if they can prove that they plan to return to the business once the barrier is removed.
The suit alleges that the law firm used false statements by clients with no real intention of ever revisiting the small businesses they sued, to force settlements from owners trying to avoid the expense of litigation.
Judge Corley’s case dealt with the question of whether Whitaker genuinely planned to return.
After hearing the evidence, Corley did not find it credible that Whitaker intended to go back to the Alhambra Irish House when the accommodations were made accessible. She concluded that Whitaker did not have legal standing to bring his suit in federal court.
While Corley’s decision is limited to the single suit she had in front of her, her findings are consistent with some of the district attorneys’ allegations on the standing issue.
The district attorneys are seeking — in addition to injunctive relief — an order that would require the law firm to repay the money collected from settlements in ADA cases in the last four years. Were that aspect of the suit to be successful, refunds would likely be owed to the Redwood City restaurateurs who settled their suits that Whitaker.
The Potter Handy firm said in a statement, “We dispute the factual and legal contentions in this lawsuit, including the allegations of ‘false standing,’ which are completely unfounded and wrong as a matter of law.”
The firm also stated, “The District Attorneys’ civil lawsuit is motivated to distract from their own political problems. This lawsuit is without merit, [and] is [a] misguided attack on the ADA intended to chill our clients’ First Amendment rights. We look forward to addressing these issues in Court.”
Bayyari’s experience with ADA litigation is painful for her to discuss even a year after the suit was filed.
She remembers that May 2021 was “a tough time.”
Her restaurant had hung on through the COVID-19 pandemic, but things were very difficult. Outdoor seating was a crucial part of providing service to her customers and keeping the restaurant open. She said that the city granted emergency permits to allow the outdoor service.
She had outdoor seating in several areas, and she had ADA-compliant tables in one area. She doesn’t know when Whitaker visited the cafe, but as far as she knows, no one asked about the availability of ADA-compliant tables. She says that it would have been easy to move one of those tables.
She was shocked to be sued. She learned about it first — not from Whitaker or his lawyers — but from lawyers who told her she had been sued and offered to defend her. She later realized that they had likely learned of the suit from records at the courthouse and were reaching out to get hired even before official service of the complaint. She said she found that “really crazy.”
Bayyari said that when the complaint was ultimately delivered, the process server “said, I’ve been doing this all day. You probably can settle for $5,000 to $10,000.”
She couldn’t understand how the process server could say that, saying, “Their job is to literally hand over legal documents. How do they know these things?”
She reached out to several lawyers who said that they could represent her for “anywhere from $500 an hour to $800 an hour,” but there wasn’t much she could do. She says they told her that they could help her settle the cases.
She banded together with some of the other restaurants but, “you get these bills coming up, you naturally start falling by the wayside. ”
A flurry of lawsuits
During the seven-day period from May 14-May 21, 2021, Whitaker filed 24 ADA cases in the district. Nineteen of those cases, including the cases involving Alhambra Irish House and Bayyari’s Cyclismo Cafe, concerned restaurants or retail stores in Redwood City.
Excluding the case involving the Alhambra Irish House, all but one has settled.
Settlement amounts are not publicly available, but if the 19 owners settled for the same amount for the low end of what is estimated in the suit by the district attorneys, the overall payments to Whitaker and his law firm would have been $190,000.
Court records show that many of the lawsuits concerned properties in a triangular cluster of busy streets in downtown Redwood City near the Redwood City Library and San Mateo County History Museum, the area roughly bounded by Pennsylvania Avenue, Broadway and Main Street.
Within and around that triangle of streets, Whitaker found much to litigate over.
Whitaker brought suits against the owners of the establishments on Middlefield Road located at street numbers 801 (Five Guys), 835 (Vitality Bowls), 855 (Hella Mediterranean), 871 (Cyclismo Cafe), and 885 (Arya Steakhouse).
On Broadway, Whitaker sued the owners of numbers 2039 (Zareen’s), 2048 (The Blacksmith), 2050 (Yokohama), 2098 (Margaritas), 2116 (Philz Coffee) and 2397 (Broadway Masala).
On Main Street, numbers 831 (Alhambra Irish House) and 695 (Coupa Cafe) and on Hamilton, 801 (Starbucks) and 823 (Go Fish Poke Bar)
Because the asserted violations were all for the lack of accessibility of outdoor dining tables, a wheelchair going down the sidewalk would be able to observe the outdoor tables without needing to enter the restaurants.
Banding together to fight
Camelia Coupal, co-founder and owner of Coupa Cafe, one of the places sued by Whitaker, remains bitter about the experience. After the suit was filed, she said, “we start looking through camera footage and at least in our restaurant, we can’t find anyone in the time frame that … comes in a wheelchair.”
She worked with some of the other defendants and decided to band together to fight.
“We were so upset with the whole situation, feeling it was unfair … we decided, hey, let’s take a chance and fight this,” Coupal said.
But the cost of an attorney — even split among the group — soon eclipsed the cost to settle.
Others advised her that the suits were a “cost of doing business” and the best thing to do was settle quickly, so she settled her case feeling “like the system is so broken on both ends.”
When asked if she thought she should get a refund, she said “100 percent.”
Bayyari said that among the most dispiriting realizations has been that “it’s not a dirty secret. This is very well known. This is not some big underground thing.”
She said the consequences are not in accord with “the spirit that this law was written.”
She recounted another restaurant owner who said, “Now, every time I see someone in a wheelchair, I’m wondering, is this the SOB who sued me?”