Petition for Writ of Certiorari — 76 Orinda, Petitioner v. Francisca Moralez

No.

In The

Supreme Court of the United States

__________

76 ORINDA,

Petitioner,

v.

FRANCISCA MORALEZ,

Respondent.

__________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

__________

PETITION FOR A WRIT OF CERTIORARI

Andrew W. Shalaby

Supreme Ct. No. 262436

7525 Leviston Avenue

El Cerrito, CA 94530

Tel. 510-551-8500,

andrew@eastbaylaw.com

Attorney for Petitioner

i

QUESTIONS PRESENTED FOR REVIEW

Definition: “ADA” refers to the Americans with

Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.

1. Should the Supreme Court adopt, as a

national standard, Chapman v. Pier 1 Imports (U.S.)

Inc., 631 F.3d 939, 944 (9th Cir. 2011), to balance the

need to deter abusive serial ADA filings with the need

to afford relief to legitimate ADA claimants, by

requiring the ADA plaintiff to plead and prove

standing for each ADA non-compliance item alleged, as

a condition for recovery of attorney's fees and costs?

2. Does a ADA defendant’s stipulation to fix

certain ADA non-compliance items preclude it from

seeking Rule 11 sanctions against a serial ADA

plaintiff for false assertions pleaded on her complaint?

3. Does the Court of Appeals lose jurisdiction to

entertain a post-mandate motion for attorney’s fees

brought under Ninth Circuit Court of Appeals, Circuit

Rule 39-1.6?

4. Is Ninth Circuit Court of Appeals, Circuit

Rule 39-1.6, unconstitutional because it authorizes the

Court of Appeals to decide post-appeal fee motions,

thereby depriving parties of their right to appellate

review?

ii

PARTIES TO THE PROCEEDING

1.

76 Orinda, Petitioner;

2.

Francisca Moralez, Respondent.

CORPORATE DISCLOSURE STATEMENT

Petitioner, 76 Orinda, aka Orinda Gas Station,

Inc., is a California corporation, has no parent

corporation, and is not publicly held. The Chief

Executive Officer is Ms. Sadia Iqbal. The secretary,

Chief Financial Officer, and Director is Ms. Bushra

Begum.

STATEMENT OF RELATED CASES

There are no proceedings in other courts that

are directly related to this case.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW . . . . . . . i

PARTIES TO THE PROCEEDING. . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . ii

STATEMENT OF RELATED CASES. . . . . . . . . . . ii

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . 2

1. Court of Appeals’ Amended Opinion

Affirming the District Court . . . . . . . . . . . 2

2. District Court’s $164,257.27 Attorney’s Fee

and Costs Award. . . . . . . . . . . . . . . . . . . . 2

3. District Court’s Oral Opinions . . . . . . . . . 2

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATUTORY PROVISIONS INVOLVED . . . . . . . 4

1.

United States Constitution, Art. III,

Section 2, Clause 1 (Standing) . . . . . . 4

2.

42 United States Code section 12205. 4

3.

Federal Rule of Appellate Procedure 41(c)

............................... 4

4.

Ninth Circuit Court of Appeals, Circuit

Rule 39-1.6: . . . . . . . . . . . . . . . . . . . . . 5

5.

United States Constitution,

Amendment 14 . . . . . . . . . . . . . . . . . . 5

6.

Federal Rule of Civil Procedure 11 . . 5

iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 6

1. Nature of Action and Jurisdiction . . . . . . 6

2. Plaintiff is a Serial Filer, having Filed More

Than 200 ADA Suits. . . . . . . . . . . . . . . . . 6

3. Initial Complaint Raising 7 Arguably

Meritorious Claims. . . . . . . . . . . . . . . . . . 7

4. Amended Complaint Asserting 34 Additional

Non-meritorious ADA claims . . . . . . . . . . 7

5. Settlement of Injunctive Relief Portion of the

Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

6. Order Awarding $164,257.27 in Statutory

Fees and Costs . . . . . . . . . . . . . . . . . . . . . 8

7. Court’s Explanation for the High Award. 9

8. The Disagreement Between the Court and

Defendants about the Requirement to

Establish Standing After Resolving the

Injunctive Relief Portion of the Suit . . . 14

9. The Court’s Erroneous Belief Regarding Settlement

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

10. The Court of Appeals Affirmed the District

Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

11. Petition for Rehearing on Issue of Standing

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

(A) Error on October 16, 2020 Decision

[34-1 p.3] . . . . . . . . . . . . . . . . . . . . . . 23

(B) Correction on Amended Opinion 23

REASONS FOR ALLOWANCE OF THE WRIT. . 24

I.

SERIAL NON-MERITORIOUS ADA FILINGS

HAVE BECOME A NATIONAL PROBLEM

WHICH THE UNITED STATES SUPREME

COURT SHOULD NOW REMEDY. . . . . . . . 24

v

New York . . . . . . . . . . . . . . . . . . . . . . . .

Florida. . . . . . . . . . . . . . . . . . . . . . . . . . .

Arizona . . . . . . . . . . . . . . . . . . . . . . . . . .

Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . .

California (re Same Plaintiff Moralez) .

California (re Attorney, Tanya Moore) .

24

26

28

30

31

32

II.

ADOPTING CHAPMAN AS A NATIONAL

STANDARD WILL RESOLVE THE PROBLEM

BY REQUIRING ADA CLAIMANTS TO

ESTABLISH STANDING FOR EACH CLAIM

ASSERTED . . . . . . . . . . . . . . . . . . . . . . . . . 34

III.

IMPOSING SANCTIONS FOR ASSERTION OF

NON-MERITORIOUS ADA CLAIMS EVEN

AFTER RESOLUTION OF THE INJUNCTIVE

RELIEF PORTION OF THE LAWSUIT . . 37

IV.

CERTIORARI SHOULD BE GRANTED TO

DETERMINE IF NINTH CIRCUIT RULE 391.6 IS INVALID DUE TO EARLIER

ISSUANCE OF THE MANDATE . . . . . . . . 39

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

///

///

vi

APPENDICES

Appendix A: Opinion, Amended, Ninth Circuit Court

of Appeals, Affirming District Court’s Order,

November 24, 2020. . . . . . . . . . . . . . . . . . . . . . . . . 1a

Appendix B: Order, Amended, United States District

Court for the Northern District of California,

Awarding Fees to Plaintiff, November 6, 2019 . . . 5a

Appendix C: Oral Opinions, by Court Transcript,

United States District Court for the Northern District

of California, Hearing, September 11, 2019 . . . . . 8a

Appendix D: Order, Ninth Circuit Court of Appeals,

Amending Memorandum of Decision Filed October 16,

2020, and Denying Petitioner 76 Orinda’s Petition for

Rehearing, November 24, 2020 . . . . . . . . . . . . . . 19a

///

///

///

vii

TABLE OF AUTHORITIES

Cases

Adams v. 724 Franklin Ave. Corp., 2016 U.S. Dist.

LEXIS 180432

. . . . . . . . . . . . . . . . . . . . . . . . 24

Barrios v. Cal. Interscholastic Fed'n, 277 F.3d 1128

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Bolker v. Comm'r of Internal Revenue, 760 F.2d 1039

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Cankat v. 41st Avenue Rest. Corp., 15-cv-4963 . . . 24

Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 35

Civil Rights Educ. & Enforcement Ctr. v. Hosp.

Properties Trust, 867 F.3d 1093. . . . . . . . . . . . . . . 28

Deutsch v. Henry, A-15-CV-490-LY-ML . . . . . . . . 25

Francisca Moralez v. 76 Orinda, et al., No. 17-cv03779-VC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 10

Franklin v. Kaypro Corp., 884 F.2d 1222 . . . . . . . 29

Gilkerson v. Chasewood Bank, 1 F. Supp. 3d 570

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Johnson v. Ocaris Mgmt. Group, 2019 U.S. Dist.

LEXIS 144773

. . . . . . . . . . . . . . . . . . . . . 26, 38

viii

Martinez v. Longs Drug Stores, Inc., No.

CIV-S-03-1843 DFL CMK . . . . . . . . . . . . . . . . . . . 36

Molski v. Mandarin Touch Rest., 347 F. Supp. 2d 860

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Moralez v. Boutique Hotel Company-Beverly Hills,

LLC, 2:2021-cv-00738 . . . . . . . . . . . . . . . . . . . . 6, 31

Moralez v. Lowe’s Home Centers. 4:2021-cv-01204

6

Nat'l Alliance for Accessibility, Inc. v. Big Lots Stores,

Inc., No. 11-cv-941 . . . . . . . . . . . . . . . . . . . . . . . . . 25

Perkins v. Standard Oil Co., 399 U.S. 222 . . . . . . 41

Rodriguez v. Investco, L.L.C.,305 F.Supp. 2d 1278 25

Saniefar v. Ronald D. Moore, Tanya E. Moore, et al.,

1:17-cv-00823-LJO-BAM . . . . . . . . . . . . . . . . . . . . 32

Shariff v. Beach 90th St. Realty Corp., No. 11 Civ.

2551 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Steven Brother v. Tiger Partner, LLC, 331 F. Supp. 2d

1368. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Strojnik v. Driftwood Hospitality Mgmt. LLC, 2021

U.S. Dist. LEXIS 1720 . . . . . . . . . . . . . . . . . . . . . . 28

Taylor v. 312 Grand St., No.15-cv-5410 . . . . . . . . 25

White v. Sutherland, No. CIV S-03-2080. . . . . . . . 25

ix

FEDERAL STATUTES AND RULES

28 U.S.C. section 1254(1) . . . . . . . . . . . . . . . . . . . . . 3

28 United States Code section 1331 . . . . . . . . . . 4, 6

28 United States Code section 1343 . . . . . . . . . . 4, 6

28 United States Code section 1367 . . . . . . . . . . . . 6

42 United States Code section 12101 . . . . . i, 4, 6, 26

42 United States Code section 12205 . . . . . . . . . . . 4

Federal Rule of Appellate Procedure 41(b) . . . . . . 39

Federal Rule of Appellate Procedure 41(c) . . . . . . . 4

Federal Rule of Civil Procedure 11 . . . . . . . . . . 7, 15

Federal Rule of Civil Procedure 11(b)(3) . . . . . . . . . 5

Federal Rule of Civil Procedure 12(b)(1) . . . . . . . . 36

Federal Rule of Civil Procedure16(c). . . . . . . . . . . 29

///

x

Constitutional Provisions

United States Constitution, Art. III, Section 2, Clause

1 (Standing) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Supreme Court Rules

Supreme Court Rule 13.1. . . . . . . . . . . . . . . . . . . . . 3

United States Supreme Court, 3/19/2020, Order List

589 U.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATE STATUTES

Unruh Civil Rights Act (CA Civ. Code § 51) . . . . . 38

1

In The

Supreme Court of the United States

__________

76 ORINDA,

Petitioner,

v.

FRANCISCA MORALEZ,

Respondent.

__________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

__________

PETITION FOR A WRIT OF CERTIORARI

__________

Petitioner 76 Orinda respectfully petitions for a

Writ of certiorari to review the Final Opinion of the

Ninth Circuit Court of Appeals.

2

OPINIONS BELOW

1. Court of Appeals’ Amended Opinion Affirming the

District Court

The October 16, 2020 opinion of the United

States Court of Appeals for the Ninth Circuit, as

amended November 24, 2020, affirming the United

States District Court’s order dated November 6, 2019,

granting Plaintiff Francisca Moralez’ motion for

attorney’s fees and costs in the amount of $164,257.27,

is unpublished and reported at 825 Fed.Appx.536, and

is reprinted in the Appendix to this Petition (“App.”),

Appendix A, at App. 1a-4a.

2. District Court’s $164,257.27 Attorney’s Fee and

Costs Award

The November 6, 2019 order of the United

States District Court for the Northern District of

California, awarding $146,806 in attorneys’ fees, and

$17,451.27 in costs, in Francisca Moralez v. 76 Orinda,

et al., No. 17-cv-03779-VC, is reprinted at Appendix B,

at App. 5a-7a.

3. District Court’s Oral Opinions

The relevant portions of the September 11, 2019

Opinions of the United States District Court for the

Northern District of California, in relation to the

hearing on Plaintiff Francisca Moralez’ motion for

attorney’s fees and costs, in Francisca Moralez v. 76

3

Orinda, et al., No. 17-cv-03779-VC, taken from the

Court transcript, are reprinted at Appendix C, at App.

8a-18a.

4. Court of Appeals’ Order Denying Rehearing

The November 24, 2020 order denying rehearing

and amending the opinion of the United States Court

of Appeals for the Ninth Circuit is reprinted at

Appendix D, at App. 19a-20a.

JURISDICTION

The United States Supreme Court has

jurisdiction over the final order from the United States

Court of Appeals pursuant to 28 U.S.C. § 1254(1). The

order of the United States Court of Appeals for the

Ninth Circuit was entered on October 16, 2020 and

amended on November 24, 2020. (App. 1a.) On March

19, 2020 the United States Supreme Court issued an

order (Order List 589 U.S.) extending the time to file

a petition for writ of certiorari to 150 days from the

date of the lower court judgment, order denying

discretionary review, or order denying a timely

petition for rehearing. This petition is timely filed

within 150 days of the date of entry of the order as

required by Supreme Court Rule 13.1, as amended on

March 19, 2020 (Order List 589 U.S.).

The Ninth Circuit Court of Appeals has

jurisdiction over decisions of the U.S. District Courts

pursuant to 28 U.S.C. § 1291.

4

The United States District Court for the

Northern District of California has Federal Question

jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. §

1343 because the underlying action arises under the

Americans With Disabilities Act (ADA), 42 U.S.C. §

12101 et seq.

STATUTORY PROVISIONS INVOLVED

1.

United States Constitution, Art. III, Section 2,

Clause 1 (Standing):

The judicial Power shall extend to all

Cases, in Law and Equity, arising under

this Constitution, the Laws of the United

States, and Treaties made, or which shall

be made, under their Authority; [...]

2.

42 United States Code section 12205:

In any action or administrative

proceeding commenced pursuant to this

Act, the court or agency, in its discretion,

may allow the prevailing party, other

than the United States, a reasonable

attorney’s fee, including litigation

expenses, and costs, and the United

States shall be liable for the foregoing the

same as a private individual.

3.

Federal Rule of Appellate Procedure 41(c):

(c) Effective Date. The mandate is

5

effective when issued.

4.

Ninth Circuit Court of Appeals, Circuit Rule 391.6:

(a) Time Limits (Rev. 7/1/07)

Absent a statutory provision to the

contrary, a request for attorneys’ fees

shall be filed no later than 14 days after

the expiration of the period within which

a petition for rehearing may be filed,

unless a timely petition for rehearing is

filed. If a timely petition for rehearing is

filed, the request for attorneys fees shall

be filed no later than 14 days after the

Court’s disposition of the petition.

5.

United States Constitution, Amendment 14:

[...]nor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.

6.

Federal Rule of Civil Procedure 11(b)(3):

(b) Representations to the Court. By

presenting to the court a pleading,

written motion, or other paper--whether

by signing, filing, submitting, or later

6

ad voc at ing i t - - a n at t or ney or

unrepresented party certifies that to the

best of the person's knowledge,

information, and belief, formed after an

inquiry reasonabl e und er the

circumstances:

[...]

(3) the factual contentions have

evidentiary support or, if specifically so

identified, will likely have evidentiary

support after a reasonable opportunity

for further investigation or discovery[;]

STATEMENT OF THE CASE

1. Nature of Action and Jurisdiction

Francisca Moralez (Plaintiff) filed suit under the

Americans with Disabilities Act of 1990, 42 U.S.C. §

12101 et seq. [dkt. 44]. The District Court has original

jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 28

U.S.C. § 1343, and supplemental jurisdiction over the

State law claims under 28 U.S.C. § 1367.

2. Plaintiff is a Serial Filer, having Filed More Than

200 ADA Suits

Plaintiff is a serial ADA filer, having filed in

excess of 200 ADA suits. (See Appeal 19-17241 dkt. 91, bates pp. 379-382, and noting her most recent

filings, Moralez v. Lowe’s Home Centers, LLC, No.

4:2021-cv-01204 (2/18/21), and Moralez v. Boutique

7

Hotel Company-Beverly Hills, LLC, 2:2021-cv-00738

(1/27/21). Her attorney is also a serial filer, having

filed more than 1,500 such suits. (See appeal no. 1917241, dkt. 43 p.12, Declaration of Tanya E. Moore.)

3. Initial Complaint Raising 7 Arguably Meritorious

Claims

Plaintiff’s initial complaint presented seven

arguably meritorious ADA non-compliance items.

(Moralez v. 76 Orinda, et al., No. 3:17-cv-03779-EDL,

dkt. 1, 6/30/17)

4. Amended Complaint Asserting 34 Additional Nonmeritorious ADA claims

Plaintiff amended her complaint, and added 34

new ADA non-compliance items. (Appeal 19-17241

dkt. 9-1, bates 414-416.) Defendants did not believe

the added claims were meritorious, because Plaintiff

failed to plead allegations to show she had standing.

Defendants’ expert informed them that some of the

added items did not exist at all, while others were

within the normal range of acceptable variances.

Moreover, Plaintiff failed to plead that the remaining

items were capable of causing accessibility hardships

based on her type of disability. Plaintiff also presented

a number of untruthful allegations, therefore

Defendants served a safe-harbor motion for sanctions

under Fed. R. Civ.P. 11. (Appeal 19-17241 dkt. 9-1

bates 054-056.)

8

5. Settlement of Injunctive Relief Portion of the Suit

On June 24, 2019 the parties stipulated to

remediation of a limited number of ADA noncompliance items, resolving the injunctive relief

portion of the lawsuit. (Appendix C, p.15a, transcript

p.17:8-19). The Court characterized the stipulation as

a settlement, although the stipulation did not settle

the entire case because Plaintiff’s claims for fees and

costs were to be adjudicated. (Appendix C, p.15a.)

6. Order Awarding $164,257.27 in Statutory Fees and

Costs

On September 11, 2019 the Court heard

Plaintiff’s motion for fees and costs (Appendix C).

Plaintiff moved for:

(A)

$133,798.50 in attorney’s fees for pursuit of the

41 ADA non-compliance items she alleged on

her initial and amended complaints (case 3:17cv-03779-VC, dkt. 121 p.2, Appendix B (order)

at 6a);

(B)

$26,015 in attorney’s fees for 47.3 hours of

“travel” time at $550 per hour (Appendix B

(order) at 6a);

(C)

$15,875.64 in costs related to all 41 of her

alleged ADA non-compliance items (case 3:17cv-03779-VC, dkt. 121 p.2, Appendix B (order)

at 6a); and

9

(D)

$3,141.86 for “hotel” and “food” (Appendix B at

6a)

(See Appeal 19-17241 dkt. 9-1, bates 168, also

supplemental fee motion at dkt. 9.1 bates 395-6, and

fee award at App. B, pp.6a-7a.)

The Court awarded Plaintiff 100% of the fees and costs

she requested for pursuit of all 41 of her alleged ADA

non-compliance items ($133,798.50 fees, $15,875.34

costs). (Appendix B, pp.6a-7a.) In addition, the Court

awarded her $13,007.50 in attorney’s fees for “travel”

time, and $1,575.93 for “food” and “hotel” expenses

(Appendix B, pp.6a-7a). The total award for fees and

costs was for $164,257.27.

7. Court’s Explanation for the High Award

The Court acknowledged that the amount of fees

and costs were quite high for this type of case, but it

was misinformed, therefore it erroneously justified the

award by blaming Defendants’ counsel for an alleged

ill-conceived, intransigent, and inefficient handling of

the case (Appendix B, pp. 5a-6a):

Although the total amount of fees and

costs is quite high for a case of this type,

that is primarily because (as the written

record and the hearing transcripts will

reflect) the defense's approach to the case

was ill-conceived, intransigent, and

inefficient. In addition, defense counsel

appeared to lack the basic legal or

10

procedural knowledge necessary to move

the case to resolution, not to mention

being totally unprepared for trial. All of

this required the plaintiff to incur more

fees and costs than would normally be

expected. It may well be that none of

this is the fault of the defendants

themselves, but neither is it the fault of

the plaintiff or her counsel, and thus

defense counsel's conduct cannot justify

a reduction in the plaintiff's fee award.

In opining that “[I]t may be none of this is the fault of

the defendants themselves,” the Court disregarded

Defendants’ admission that some ADA violations

existed, and admission that $4,000 in statutory

damages were owed (Francisca Moralez v. 76 Orinda,

et al., No. 17-cv-03779-VC, dkt. 45 ¶ 40):

40. Defendants admit that $4,000 in

statutory damages are owed to Plaintiff,

and further, admit that they tendered

same to Plaintiff unconditionally and

before the Court at the last hearing

before this filing.

The Court opined that despite these admissions, the

defendants “should not have to pay a dime of the

attorney’s fees,” but instead, their counsel “should be

the one to pay” the entire amount (Appendix C, p. 10a):

[Transcript p.3:20-24]

I believe that your clients have a

11

malpractice action against you and that

they should not have to pay a dime of the

attorney's fees for the Plaintiff. I think

you should be the one who pays them for

the way you conducted yourself.

The Court further explained its consternation to the

defendants, who were present in the courtroom

(Appendix C, pp. 10a-11a):

[Transcript p.2:19-20]

THE COURT: Okay. I am glad that your

clients are here.

[Transcript p.3:6-24]

THE COURT: And it seems that the only

reason that, as far as I can tell from

everything I experienced and everything

I have read in connection with this fee

motion, it seems that the only reason this

case did not get resolved quickly, and the

only reason why the Plaintiff racked up

so many attorney's fees is defense

counsel's incompetence. And I believe

that the -- your clients very likely have a

malpractice against you. One question I

have is whether I could require you to

pay the attorney's fees as a sanction for

your conduct, instead of your clients. But

I suspect that I don't have the authority

to do that, unfortunately. But I do think

that it is very likely -- I mean I'm likely

to report you to the California Bar

12

Association for the way you conducted

this case and I believe that your clients

have a malpractice action against you

and that they should not have to pay a

dime of the attorney's fees for the

Plaintiff. I think you should be the one

who pays them for the way you conducted

yourself.

[Transcript p.10:2-6]

THE COURT: Oh I think there's very

little doubt that you have committed

malpractice here, yes. I mean the -merely making the Rule 68 offer that you

made, and refusing to agree to a

judgment that included injunctive relief,

in itself that's probably malpractice.1

The Court was primarily troubled by the defense

counsel’s belief that Plaintiff was required to prove

standing for each ADA non-compliance item for which

she claimed statutory fees and costs, despite the fact

that the parties stipulated to resolving the injunctive

relief portion of the suit (appendix C, p.15a):

1

The Court was not aware that the reason Defendants’

settlement (“Rule 68") offer did not include a provision

for injunctive relief was because their expert advised

them that all of the non-compliance items capable of

affecting the plaintiff had already been remediated.

13

[Transcript p.17:8-19]

THE COURT: So your -- your main

point, as it relates -- I mean on one level,

it kind of sounds like you're arguing that

your client should not have been held

liable, but of course you've entered a

settlement agreement and you've agreed

that the Plaintiff is the prevailing party.

So we're not -- we're not here to

re-litigate the merits of the case, but

what you -- if I understand you correctly,

what you're saying is that the Plaintiff

grossly overreached in the lawsuit and

made allegations that, even if some of the

allegations had merit, made a number of

allegations that lacked merit and to that

extent, should not be permitted to

recover attorney's fees?

The Court found Defendants’ argument troubling

because Defendants agreed that because some of the

non-compliance items asserted by Plaintiff had merit

(7 out of 41), this defined her as the “prevailing party.”

The Court interpreted her “prevailing party” status to

mean that she was not required to prove standing to

recover attorney’s fees and costs for the ADA noncompliance items she withdrew, and for which she

failed to prove she had standing to pursue in the first

instance.

///

14

8.

The Disagreement Between the Court and

Defendants about the Requirement to Establish

Standing After Resolving the Injunctive Relief Portion

of the Suit

Defendants and the Court had a difference of

opinion regarding whether the plaintiff was required

to establish standing for every ADA non-compliance

item for which she sought recovery of fees and costs.

Defendants pointed out that most of Plaintiff’s 41

alleged ADA non-compliance items were without merit

(7 arguably meritorious, 34 non-meritorious). Only

about 17% (17/41) of Plaintiff’s ADA non-compliance

items were meritorious. While this was sufficient to

define her as the “prevailing party,” in Defendants’

view, this did not mean she was entitled to attorney’s

fees and costs on the non-meritorious (83%) ADA noncompliance items, many which she withdrew prior to

settlement, and some which she had no standing to

pursue in the first instance.

The Court disagreed, finding that because the

parties resolved the injunctive relief portion of the suit

by stipulation, this amounted to a settlement that

precluded the defendants from being able to challenge

Plaintiff’s claim for fees on the ADA non-compliance

items she withdrew, and on the ADA non-compliance

items which she did not have standing to pursue in the

first instance. The same discord arose in relation to a

Rule 11 motion for sanctions Defendants had served in

relation to the Amended Complaint, an action which

befuddled the Court (Appendix C, p.18a):

15

[Transcript p.18:12-p.19:5]

THE COURT: But here's -- here's what

I don't understand. Speaking of your

Rule 11 motion, you know, I'm looking at

this meet and confer letter that you sent

to the Plaintiff in connection with the

attorney's fees motion, and you state that

you're renewing your Rule 11 motion

against the Plaintiff and you say in that,

"To date no declaration or evidence of any

kind exists in the record to show that Ms.

Moralez experienced the ADA barriers

and was visiting the facility in good faith,

rather than as a business venture aimed

at earning income.” But you already

reached a settlement agreement in the

case and agreed that she was the

prevailing party.

And now you're

threatening to sanction to her? You're

threatening to file a sanctions motion

against her for filing a lawsuit that

you've already agreed she was the

prevailing party in. I mean this is one of

the most bizarre things I have seen in my

five years on the bench.

Defendants’ counsel explained that the status of

Plaintiff as the “prevailing party” did not mean that

she was insulated from the reach of Rule 11 sanctions

for the many false ADA non-compliance items and

other false allegations presented on her complaint

(appendix C, pp. 11a-12a):

16

[Transcript p.13:1 to p.14:16]

MR. SHALABY: They came into this

courtroom on June 24th. A very large

amount of money was spent on replacing

those gas pumps, and you remember Mr.

Best stood right there and he told you

they were still not in compliance. It’s on

the transcript. We only got one of two

sessions on the transcript. It’s in the

morning transcript. And then you heard

what you did. You said, "Mr. Shalaby,

this is your fault. Have you ever done a

trial before? It looks like you've never

done a trial before and this is all of your

fault." And now you're doing the same

thing.

And then we went back to the room and

after he [Mr. Best] made a comment that

he's going to be very careful, he came

back in here and now it's like, "Oh, guess

what? The pumps are fine. There's no

violation, there's nothing wrong with

these pumps." Same with the cutoff

switch and so many other items.

"Nothing wrong with the cutoff switch."

[Quotations added.] A person in a

wheelchair doesn't get to cutoff the fuel

pumps. He [Mr. Best] puts it on there.

He pleads it on his complaint. He says

"injunctive relief" [quotations added] -they're entitled to injunctive relief on it.

He's billed attorney's fees for it. They're

17

not entitled to that. They're not entitled

to many many items.

"Floor clearance adjacent to public

telephone contains excessive slopes."

And then when we come back [from

settlement conference room], "Oh no,

they've repaired it." It never had it in

the first place.

"Restroom door closes too quickly."

And then when they come back [from the

conference room], "Withdrawn."

"Restroom door closing mechanism

requires tight grasping." They come back

[from the conference room], "They fixed it

and we're waiving that."

"Plumbing beneath restroom sink not

insulated."

They come back [from

conference room], they waived that.

Defendants’ counsel further explained that Plaintiff’s

“prevailing party” status did not mean she could no

longer be sanctioned for violating Rule 11(b)(3), the

mandate for truthfulness (Appendix C, p.17a):

[Transcript p.20:5-7]

MR. SHALABY: Rule 11 mandates

truthfulness. It's not dependent on

whether you're a prevailing party or not,

at all. It mandates truthfulness.

18

[Transcript p.20:20-21:16]

MR. SHALABY: You have a meet and

confer, you have an agreement she's a

prevailing party on the Unruh Act, which

makes her a prevailing party in the

action. It certainly does not make her a

prevailing party on the gas pumps when

they say those gas pumps are out of

compliance and those need to be removed

and redone again.

She can't be a

prevailing party on every item. She's not

a prevailing party on every item. She's a

prevailing party on the Unruh Claim,

which makes her a prevailing party in

the action.

I gave the Court the

authority on that from the Ninth Circuit.

And so for somebody to come into your

courtroom, your Honor, and say, "Hey,

you know, about these pumps, they've

been put up for a couple hundred

thousand dollars or something and they

don't comply." And they do comply. It's

a Rule 11 violation and if you give

somebody a Rule 11 motion saying,

"Come on, this is not the truth, you've got

21 days to retract it, and if you don't then

I'm entitled to sanctions against you."

And if they don't retract it within 21 days

and they've got to plead it on a

complaint, for example, then yes, there's

an entitlement to Rule 11 sanctions.

There's no question about it. Even if

they are the prevailing parties of the

19

action.

The Court understood the point urged by Defendants’

counsel, but believed that the only way Defendants

could challenge Plaintiff’s non-meritorious claims was

not to have stipulated to resolving the injunctive relief

portion of the suit, but instead, to have gone to trial

(Appendix C, pp. 18a):

[Transcript p.22:15-17]

THE COURT: It sounds like -- if you

think the allegations were untrue, then it

sounds like you should have gone to trial

instead of settled.

Defendants’ counsel brought to the Court’s attention

that it’s earlier statements were too indicative of the

likelihood that they would lose the case at trial by way

of judicial prejudice, even though the merits were in

their favor (Appendix C, pp. 18a):

[Transcript p.22:18-19]

MR. SHALABY: That would have been

suicide after the -- the statements made

by the Court.

The Court’s response re-affirmed that Defendants

would not likely have been able to prevail at trial

because of the Court’s repeated misinformed

accusation that Defendants’ counsel was incompetent

(Appendix C, pp. 18a)

20

[Transcript p.22:20-25]

THE COURT: Oh I don't think so. I

would not have held the incompetence of

their lawyer against them. I mean I

would not hold against the Defendants

the incompetence of their lawyer. I mean

that happens all of the time in

courtrooms all across America. The

judges make sure not to hold it against

the client that their lawyer is

incompetent.

The Court spoke in haste because it did not have

sufficient command of the facts upon which it based

it’s belief that Defendants’ counsel was incompetent.

9. The Court’s Erroneous Belief Regarding Settlement

The main reason the Court believed that

Defendants’ counsel was incompetent was because he

communicated Defendants’ settlement offer (“Rule 68"

offer), and their offer did not include a provision for

injunctive relief. The Court was not aware of the

underlying facts. The Court scheduled two settlement

conferences with the Honorable Magistrate Judge

Thomas Hixson.

The settlement efforts were

unsuccessful, but followed by a Rule 68 offer to

compromise presented by Defendants’ counsel. The

Court was not aware of what transpired in the

settlement conferences because settlement discussions

were statutorily confidential. (See Federal Rule of

Evidence 408.)

The Court therefore presumed,

incorrectly, that because there was no injunctive relief

21

provision on the Rule 68 offer to compromise, this

meant that Defendants’ counsel committed

malpractice (Appendix C, p.11a):

[Transcript p.10:2-6]

THE COURT: Oh I think there's very

little doubt that you have committed

malpractice here, yes. I mean the -merely making the Rule 68 offer that you

made, and refusing to agree to a

judgment that included injunctive relief,

in itself that's probably malpractice.

The Court was not aware that the reason the Rule 68

offer did not include injunctive relief provisions was

because Defendants’ ADA inspector advised the

parties at the settlement conference that the ADA noncompliance items applicable to Plaintiff had already

been remediated.

10. The Court of Appeals Affirmed the District Court

On October 16, 2020 the Court of Appeals

affirmed the District Court’s order, finding that a

plaintiff is not required to provide additional evidence

“proving her claims” following settlement of the

injunctive relief portion of the lawsuit, as a condition

for recovery of attorney’s fees for every ADA noncompliance items asserted, whether those items were

withdrawn before “settlement,” or whether she failed

to prove she had standing in the first instance to

pursue those items (Appendix A, p.3a):

22

Contrary to 76 Orinda's contention, a

plaintiff is not required to provide

additional evidence proving her claims,

following settlement, to obtain attorney's

fees.

11. Petition for Rehearing on Issue of Standing

Defendants moved for rehearing on the question

of standing (appeal 19-17241 dkt. 39 p.6):

The plaintiff did not have standing to sue

for ADA barriers which either did not

apply to her based on her type of

disability, or which were not capable of

causing any accessibility hardships for

her. The fact that she was deemed,

generally, the "prevailing party" in the

action, does not mean that she is entitled

to an award of attorney's fees for pursuit

of such barriers which did not apply to

her.

12. Amendment to the Appellate Decision

On November 24, 2020 the Court of Appeals

denied the petition for rehearing, but amended it’s

decision (Appendix D, p.20a):

The panel has voted to amend the

memorandum disposition filed in this

case on October 16, 2020. The amended

memorandum disposition is attached

23

hereto.

The amendment was as follows:

(A) Error on October 16, 2020 Decision [34-1 p.3]

Finally, the district court did not err in

failing to reconcile ADA case law with

California Senate Bill 269. Subject to

exceptions that do not apply here, we will

not consider an issue raised for the first

time on appeal. See Bolker v. Comm'r of

Internal Revenue, 760 F.2d 1039, 1042

(9th Cir. 1985). Moralez waived this

issue by failing to raise the argument

below. [Emphasis added.]

(B) Correction on Amended Opinion

Finally, the district court did not err in

failing to reconcile ADA case law with

California Senate Bill 269. Subject to

exceptions that do not apply here, we will

not consider an issue raised for the first

time on appeal. See Bolker v. Comm'r of

Internal Revenue, 760 F.2d 1039, 1042

(9th Cir. 1985). 76 Orinda waived this

issue by failing to raise the argument

below. [Emphasis added.][Appendix D

p.4a]

This Petition for a Writ of Certiorari now follows.

24

REASONS FOR ALLOWANCE OF THE WRIT

I. SERIAL NON-MERITORIOUS ADA FILINGS

HAVE BECOME A NATIONAL PROBLEM WHICH

THE UNITED STATES SUPREME COURT SHOULD

NOW REMEDY

The grant of Certiorari is requested to remedy

a very serious national problem, best explained by the

Federal Courts from coast to coast.

New York

The Honorable Brian M. Cogan, explains that

judges around the country question whether the ADA

has become a vehicle of abuse by plaintiff’s attorneys.

Adams v. 724 Franklin Ave. Corp., 2016 U.S. Dist.

LEXIS 180432, 3-4, 2016 WL 7495804:

It is true that not only the undersigned,

but other judges in this district, and

indeed judges around the country, have

questioned whether the ADA in some

instances has become a vehicle of abuse

by certain plaintiff's attorneys who have

created a cottage industry by bringing

multiple cases against small businesses

on behalf of the same plaintiff when that

plaintiff has no genuine intention of

using the services of so many businesses.

See Cankat v. 41st Avenue Rest. Corp.,

No. 15-cv-4963, 2016 U.S. Dist. LEXIS

171406, 2016 WL 7217638 (E.D.N.Y. Dec.

25

12, 2016) (Johnson, J.); Deutsch v. Henry,

A-15-CV-490-LY-ML, et al., 2016 U.S.

Dist. LEXIS 168987, 2016 WL 7165993

(W.D. Tex. Dec. 7, 2016); Taylor v. 312

Grand St., No.15-cv-5410, 2016 U.S. Dist.

LEXIS 36623, 2016 WL 1122027

(E.D.N.Y. March 22, 2016) (Cogan, J.);

Shariff v. Beach 90th St. Realty Corp.,

No. 11 Civ. 2551, 2013 U.S. Dist. LEXIS

179255, 2013 WL 6835157 (E.D.N.Y. Dec.

20, 2013) (Bloom, M.J.); Nat'l Alliance for

Accessibility, Inc. v. Big Lots Stores, Inc.,

No. 11-cv-941, 2012 U.S. Dist. LEXIS

58200, 2012 WL 1440226 (M.D.N.C. April

26, 2012); White v. Sutherland, No. CIV

S-03-2080, 2005 U.S. Dist. LEXIS 40713,

2005 WL 1366487 (E.D. Cal. May 6,

2005); Rodriguez v. Investco, L.L.C., 305

F. Supp. 2d 1278 (M.D. Fla. 2004); Steven

Brother v. Tiger Partner, LLC, 331 F.

Supp. 2d 1368 (M.D. Fla. 2004); Molski v.

Mandarin Touch Rest., 347 F. Supp. 2d

860 (C.D. Cal. 2004); see also Caitlin

Nolan and John Marzulli, Disabled

Queens man sues at least 20 momand-pop businesses over 'architectural

barriers' preventing wheelchair access,

New York Daily News (April 28, 2015),

http://www.nydailynews.com/new-york/

queens/disabled-queens-man-sues-20-b

usinessesbarriers-article-1.2201545;

Alison Stateman, Lawsuits by the

Disabled: Abuse of the System?, Time

26

Magazine (Dec. 29, 2008), http://[-]

content.time.com/time/nation/article/0,8

599,1866666,00.html.

Florida

The Honorable Judge Paul C. Huck observed the

illicit joint enterprise between the serial ADA plaintiff

and his counsel, and their abusive billing practices, in

Johnson v. Ocaris Mgmt. Group, 2019 U.S. Dist.

LEXIS 144773, *1-2

Twenty-nine years ago, Congress passed

the Americans with Disabilities Act

("ADA") in an effort to remove and

prevent barriers for the disabled. See

generally 42 U.S.C. § 12101, et seq. The

statute authorizes parties to file lawsuits

against those who violate the ADA in

order to benefit the disabled whom the

ADA serves to protect. Id. Lawyers who

champion these cases are granted

reasonable attorney's fees for advancing

Congress's laudable goal of protecting the

disabled community. Id. This is not one

of those cases. This case reveals an illicit

joint enterprise between Plaintiff,

Alexander Johnson, and his attorney,

Scott R. Dinin of Scott R. Dinin P.A., to

dishonestly line their pockets with

attorney's fees from hapless defendants

under the sanctimonious guise of serving

the interests of the disabled community.

27

Through this illicit joint enterprise,

Johnson and Dinin filed numerous

frivolous claims, knowingly misrepresented the billable time expended to

litigate these claims, made numerous

other misrepresentations to the Court,

and improperly shared attorney's fees in

violation of the Rules Regulating the

Florida Bar, all done without regard to

the interests of those with disabilities.

Judge Huck imposed a remedy very different from the

one fashioned by the District Court on this case. He

articulated the abuse of process, dismissed the cases

with prejudice, and retained jurisdiction to impose

sanctions:

B. Systemic Inflated Billing

The Court finds that in both Ocaris and

Caraf, as well as in other ADA cases,

Dinin egregiously inflated his attorney's

fees claims by overbilling for simple,

repetitive tasks and by billing for work

which he did not perform. (Id. at 9.)

[...]

For the reasons set forth above, both

Ocaris and Caraf are DISMISSED WITH

PREJUDICE. The Court retains

jurisdiction to enforce the sanctions

against Johnson and Dinin. The cases are

CLOSED and all pending motions are

28

denied as moot. The clerk is ordered to

provide a copy of this order, the show

cause order (Ocaris, [ECF No. 36]), and

the transcripts for the May 9, 2019

(Ocaris, [ECF No. 35]) and July 22, 2019

(Ocaris, [ECF No. 78]) hearings to the

Florida Bar and to the Ad Hoc

Committee on Attorney Admissions, Peer

Review and Attorney Grievance. (Id. at

30.)

Arizona

The Honorable Diane J. Humetewa provides

insight on the characterization of a vexatious ADA

litigant in Strojnik v. Driftwood Hospitality Mgmt.

LLC, 2021 U.S. Dist. LEXIS 1720, *5-7, 2021 WL

50456:

In practice, these serial litigants come in

different forms. Some, ADA "testers," go

about intentionally looking for ADA

violations to remedy through litigation, a

prerogative that gives these litigants

legal standing in court. See Civil Rights

Educ. & Enforcement Ctr. v. Hosp.

Properties Trust, 867 F.3d 1093, 1102

(9th Cir. 2017) (holding that a plaintiff's

status as an ADA tester does not deprive

him or her of standing to bring a claim).

Others, however, are vexatious serial

litigants whose claims frustrate the

ADA's central purpose.

29

These vexatious ADA litigants are

characterized by "[f]alse or grossly

exaggerated claims of injury, especially

when made with the intent to coerce

settlement . . . ." Evergreen, 500 F.3d at

1062 (emphasis added). No legal barrier

prevents parties from settling ADA cases.

And generally, federal courts encourage

settlement before trial. Franklin v.

Kaypro Corp., 884 F.2d 1222, 1225 (9th

Cir. 1989). "Since it obviously eases

crowded court dockets and results in

savings to the litigants and the judicial

system, settlement should be facilitated

at as early a stage of the litigation as

possible." Fed. R. Civ. P. 16(c) advisory

committee's note to 1983 amendment.

Indeed, ADA plaintiffs may also prefer

settlement to trial because, in a

settlement agreement, plaintiffs may

receive a monetary award and their

attorneys may still receive an award of

attorney's fees. See e.g., Barrios v. Cal.

Interscholastic Fed'n, 277 F.3d 1128,

1137 (9th Cir. 2002) (holding that a

plaintiff's attorney could receive an

award of fees after the settlement of a

case, which included an ADA claim,

awarded $10,000 for the plaintiff). Put

another way, serial ADA plaintiffs

themselves face a strong financial

incentive to avoid trial, possibly forgoing

injunctive relief and failing to vindicate

30

the rights of the disabled as a whole.

Texas

The Honorable Melinda Harmon pointed out

that the abusive ADA filings proliferating around the

country have lead to a wide and varied spectrum of

judicial decisions addressing complex issues of, and

policies regarding, standing. Gilkerson v. Chasewood

Bank, 1 F. Supp. 3d 570, 573-575, 2014 U.S. Dist.

LEXIS 25849, *5-7:

This case is one of many controversial

putative class actions proliferating

around the country brought often without

notice by disabled individuals, who,

frequently along with an organization

dedicated to the rights of the disabled,

are "serial plaintiffs" or "testers" acting

as private attorneys general challenging

various entities' noncompliance in their

places of public accommodation with

Title III of the ADA, leading to a wide

and varied spectrum of judicial decisions

addressing complex issues of, and policies

regarding, standing. Because the statute

does not authorize an award of damages

to a prevailing plaintiff, but only

equitable relief and an award of

attorneys' fees, concerns about abusive

litigation by plaintiffs' lawyers must be

balanced against widespread

noncompliance with the ADA and

31

inadequate enforcement of the civil rights

of individuals with disabilities. See, e.g.,

Leslie Lee, Giving Disabled Testers Access

to Federal Courts: Why Standing

Doctrine Is Not the Right Solution to

Abusive ADA Litigation Note, 19 Va. J.

Soc. Pol'y & L. 319 (Winter 2011); Kelly

Johnson, Testers Standing Up For Title

III of the ADA, 29 Case W. Res. L. Rev.

683 (Spring 2009); Wayne C. Arnold and

Lisa Herzog, How Many Lawsuits Does It

Take to Declare an ADA Plaintiff

Vexatious? Apparently More Than Judge

Rafeedie Thought," 48-JUL Orange

County Law. 50 (July 2006); Samuel R.

Bagenstos, The Perversity of Limited

Civil Rights Remedies: The Case of

"Abusive" ADA Litigation, 54 UCLA L.

Rev. 1 (Oct. 2006); and Carrie Becker,

Private Enforcement of the Americans

With Disabilities Act Via Serial

Litigation: Abusive or Commendable?, 17

Hastings Women's L.J. 93 (2006).

California (re Same Plaintiff Moralez)

In the most recent case filed by Respondent

Francisca Moralez, Moralez v. Boutique Hotel

Company - Beverly Hills, No. 2:21-cv-00738-MCS

(Central Dist. CA), the Honorable Stephen M. Kerr

stated his observations (dkt. 10):

The Court presides over many cases

32

under the Americans with Disabilities

Act ("ADA") involving physical barriers

in places of public accommodation. Most

of these cases are brought by a small

number of repeat plaintiffs and an even

smaller number of law firms.

California (re Same Attorney, Tanya Moore)

In Saniefar v. Ronald D. Moore, Tanya E.

Moore, et al., 1:17-cv-00823-LJO-BAM (Eastern Dist.

CA), the Honorable Lawrence J. O’Neill presided over

a case alleging that Attorney Moore, the same attorney

representing respondent Moralez, engaged in

Racketeering Influenced and Corrupt Organization

(RICO) activities in pursuit of over 1,400 ADA lawsuits

(dkt. 29 pp. 1-3). The Court found witness tampering

in ADA lawsuits filed by Mr. & Mrs. Moore. Judge

O’Neill stated his findings about the credibility of the

attorney witnesses at trial (transcript, dkt. 180, pp.

132-133):

THE COURT: You mean tampering?

MR. INOUYE: Witness tampering.

Wiretapping and witness tampering.

THE COURT: Well, I suppose I don’t

believe the two witnesses who testified?...

THE COURT: The two witnesses I’m

talking about, Mr. Moore and Mr.

Levinson, the two defendants.

33

MR. INOUYE: Absolutely, your honor.

THE COURT: Because I will tell you, I

think they both have terrible credibility

in this courtroom based on their

testimony.

[...]

THE COURT: Oh, I’m never pleased with

perjury.

[...]

THE COURT: Witness tampering is a

serious, serious matter in any case,

criminal or civil. And as a result of that,

this Court makes a finding that witness

tampering occurred by both the

defendants. And further, that the only

possible remedy that is of any value or

any justice here is a striking of the

Answers by each of the defendants, and

those Answers are stricken.

A news story summarizes the matter well:

Two defendants have been caught

tampering with a witness in a lawsuit

against a San Jose law firm that has

sued thousands of California small

businesses for minor accessibility

violations. A federal judge last month

determined that an attorney and a

compliance consultant linked to the

34

Mission Law Firm had illegally

eavesdropped on a phone call with a

witness and later coached him to act

dumb on the stand.

The Mission Law Firm, headed by

attorney Tanya Moore, has become

notorious for filing countless lawsuits

against small restaurants and shops,

including ones in Menlo Park and

Mountain View, for violations under the

federal Americans with Disabilities Act

(ADA).

The news story is posted at:

https://www.almanacnews.com/news/20

19/07/07/judge-finds-witness-tampering

-in-ada-lawsuit

Petitioner believes that most or all of wrongful acts

observed by the aforementioned federal courts

throughout the country, including those summarized

above, have taken place in the underlying case,

therefore this case well suited for grant of certiorari.

II.

ADOPTING CHAPMAN AS A NATIONAL

STANDARD WILL RESOLVE THE PROBLEM BY

REQUIRING ADA CLAIMANTS TO ESTABLISH

STANDING FOR EACH CLAIM ASSERTED

The Honorable Melinda Harmon identified the

problem: the abusive ADA filings proliferating around

35

the country have lead to a wide and varied spectrum of

judicial decisions addressing complex issues of, and

policies regarding, standing. The case at bar is such a

case. On one end of the spectrum, cases like Chapman

require the ADA plaintiff to plead and establish

standing for every ADA non-compliance item in order

to recover fees and costs. On the other end of the

spectrum are decisions such as the one rendered in

this case, holding that the plaintiff is not required to

plead and prove standing once the injunctive relief

portion of the suit has been resolved by stipulation.

Chapman resolves this problem by requiring the ADA

plaintiff to establish standing for every ADA noncompliance item:

Here, however, Chapman has failed to

allege and prove the required elements of

Article III standing to support his claim

for injunctive relief under the ADA.

Specifically, he has not alleged or proven

that he personally suffered discrimination as defined by the ADA as to

encountered barriers on account of his

disability.

We therefore vacate the

district court's grant of summary

judgment, and remand with instructions

to dismiss Chapman's ADA claim for lack

of jurisdiction and for further

proceedings consistent with this opinion.

Chapman v. Pier 1 Imports (U.S.) Inc.,

631 F.3d 939, 944 (9th Cir. 2011)

The Ninth Circuit Court of Appeals found that

36

Chapman failed to meet the requirements of Article III

standing:

Unlike in other cases where we have

found Article III standing, see, e.g., D'Lil,

538 F.3d at 1037, Chapman leaves the

federal court to guess which, if any, of the

alleged violations deprived him of the

same full and equal access that a person

who is not wheelchair bound would enjoy

when shopping at Pier One. Nor does he

identify how any of the alleged violations

threatens to deprive him of full and equal

access due to his disability if he were to

return to the Store, or how any of them

deter him from visiting the Store due to

his disability. Although Chapman may

establish standing as to unencountered

barriers related to his disability, the list

of barriers incorporated into his

complaint does nothing more than

"perform a wholesale audit of the

defendant's premises." Martinez v. Longs

Drug Stores, Inc., No. CIV-S-03-1843

DFL CMK, 2005 U.S. Dist. LEXIS 23737,

at *12 (E.D. Cal. Aug. 25, 2005).

Because Chapman lacked standing at the

outset of this litigation to assert the ADA

claims, the district court should have

dismissed them. See Fed. R. Civ. P.

12(b)(1); Hays, 515 U.S. at 747 (ordering

the district court to dismiss the

37

complaint for lack of standing). We

therefore vacate the district court's grant

of summary judgment, and remand with

instructions to dismiss Chapman's ADA

claim for lack of jurisdiction and for

further proceedings consistent with this

opinion. (Id. at 955.)

Had Chapman been applied, Plaintiff would have only

recovered fees and costs for her meritorious claims, but

not for her claims which had no merit. Approximately

17 percent of her claims (7/41) arguably had merit.

The Court would then have been able to adjust for her

heavily inflated claim for fees and costs, which the

Court has discretion to do under 42 U.S.C. 12205.

III. IMPOSING SANCTIONS FOR ASSERTION OF

NON-MERITORIOUS ADA CLAIMS EVEN AFTER

RESOLUTION OF THE INJUNCTIVE RELIEF

PORTION OF THE LAWSUIT

Certiorari should also be granted so the

Supreme Court can decide whether Rule 11 sanctions

may be recovered to deter assertions of nonmeritorious ADA non-compliance allegations, even

after the parties have resolved the injunctive relief

portion of the lawsuit. The case at bar illustrates the

problem. The Court stated rather strongly it’s opinion

that a defendant could not move for Rule 11 sanctions

against a “prevailing party” (Appendix C, p.18a):

But you already reached a settlement

agreement in the case and agreed that

38

she was the prevailing party. And now

you're threatening to sanction to her?

You're threatening to file a sanctions

motion against her for filing a lawsuit

that you've already agreed she was the

prevailing party in. I mean this is one of

the most bizarre things I have seen in my

five years on the bench.

The federal courts throughout the country are very

upset over the epidemic of abusive serial ADA filings

seeking fees for non-meritorious claims. Judge Huck

also observed that the serial filer in Johnson v. Ocaris

Mgmt. Group (supra) improperly shared attorney's fees

in violation of the Rules. This appears to be the case

in most or all of the serial ADA filer cases. In

California, the plaintiff is only entitled to $4,000 in

statutory damages under the Unruh Act. However, it

appears that the attorneys for the serial ADA filers

have fee-sharing arrangements with the plaintiffs to

motivate them to continue the abusive filings. The

only way these illicit partnerships will come to an end

is if the Courts allow, and even encourage, use of Rule

11 at all stages of the proceeding, especially in relation

to post-settlement fee motions. The law does not

contain any provision stating that the status of a ADA

plaintiff as a “prevailing party” means that the

plaintiff can get away with violation of the mandate of

truthfulness in Rule 11(b)(3).

Another problem now identified by the

underlying decisions is that federal courts often are

hesitant to award fees to the defendant for defending

39

against the non-meritorious portions of the serial ADA

filers.

As illustrated below, the courts often

understand the term “prevailing party” in ADA actions

to mean that the plaintiff is entitled to recovery of fees,

while the defendant is not entitled to recovery of fees

for successfully defending against non-meritorious

claims. As seen in the underlying case, the defendants

were successful on the ADA non-compliance items

which Ms. Moralez withdrew prior to settling the

injunctive relief portion of the suit, but they were not

able to recover fees for defending against those claims.

A decision by the Supreme Court, establishing that an

agreement by the parties resolving the injunctive relief

portion of an ADA suit does not immunize the ADA

plaintiff from Rule 11 sanctions for non-meritorious

claims she asserted, would provide a more balanced

and equitable result in serial ADA actions, where the

majority of the time the serial filers present a

significant number of non-meritorious claims to bolster

their attorney fee claims.

IV.

CERTIORARI SHOULD BE GRANTED TO

DETERMINE IF NINTH CIRCUIT RULE 39-1.6 IS

INVALID DUE TO EARLIER ISSUANCE OF THE

MANDATE

A mandate under Federal Rule of Appellate

Procedure 41(b) returns the case to the District Court

7 days after entry of the final order, and divests the

Courts of Appeals of jurisdiction:

(b) When Issued. The court's mandate

must issue 7 days after the time to file a

40

petition for rehearing expires, or 7 days

after entry of an order denying a timely

petition for panel rehearing, petition for

rehearing en banc, or motion for stay of

mandate, whichever is later. The court

may shorten or extend the time by order.

However, Ninth Circuit Court of Appeals, Circuit Rule

39-1.6, allows a party to file a motion for attorney’s

fees in the Court of Appeals, in the first instance,

seven days after the mandate is issued:

39-1.6. Request for Attorneys Fees

(a) Time Limits (Rev. 7/1/07)

Absent a statutory provision to the

contrary, a request for attorneys’ fees

shall be filed no later than 14 days after

the expiration of the period within which

a petition for rehearing may be filed,

unless a timely petition for rehearing is

filed. If a timely petition for rehearing is

filed, the request for attorneys fees shall

be filed no later than 14 days after the

Court’s disposition of the petition. (Rev.

12/1/09)

It appears Cir. R. 39-1.6 should be declared void

because the Court of Appeals loses jurisdiction once

the mandate is issued.

It also appears the Rule is unconstitutional

41

because the Court of Appeals decides the fee motion in

the first instance, depriving the aggrieved party of the

right to an appeal as a matter of right. This is

consistent with the holding in Perkins v. Standard Oil

Co., 399 U.S. 222, 223, 90 S. Ct. 1989, 1990:

The amount of the award for such

services should, as a general rule, be

fixed in the first instance by the District

Court, after hearing evidence as to the

extent and nature of the services

rendered.

The grant of certiorari should therefore extend to

determination of validity and constitutionality of

Ninth Circuit Rule 39-1.6.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Andrew W. Shalaby

Counsel for Petitioner

April 2021