Nine Ninth Circuit U.S. Court of Appeals judges publicly sided with a controversial San Francisco plaintiff lawyer in his fight to keep filing ADA lawsuits in California’s Central District.
But for Thomas Frankovich and his client, Jarek Molski, nine wasn’t enough: The appellate court declined to take the case en banc Monday, over those judges’ objections.
Last August, a three-judge panel upheld Los Angeles Judge Edward Rafeedie’s order barring Frankovich from filing disability access suits without prior court approval. Frankovich argues his litigation is fully authorized under the law and helps bring businesses into ADA compliance. His critics deride it as a mechanism designed to force quick settlements and outsized attorneys fees.
“I recognize that some of the tactics used by Molski and the Frankovich Group are cause for concern,” Judge Marsha Berzon wrote. “But there are ample avenues for addressing any concerns raised by this case � avenues that do not involve one judge, acting alone, imposing a pre-filing order that covers an entire district.”
Chief Judge Alex Kozinski went even further in his own dissent, writing that Rafeedie made a finding “that Molski is a liar and a bit of a thief, without any evidence at all.”
The Central District should adopt a rule or general order that entrusts the vexatious litigant process to a committee of judges drawn at random, Kozinski wrote.
“Ultimately, it’s up to the judges of the Central District to ensure that due process is upheld and that an injustice is avoided,” Kozinski wrote. “I have every confidence that they will be equal to the task.”
Molski is paralyzed from the chest down and has filed about 400 federal ADA lawsuits in California, according to the panel decision, typically alleging physical injury as a result of the business owner’s noncompliance with access standards. Frankovich has filed at least 223 nearly identical ADA lawsuits in the Northern and Central districts.
The per curiam panel was skeptical that Molski had suffered the same injuries, often multiple times in one day. “Even a young child who touches a hot stove quickly learns to avoid pain by not repeating the conduct,” the judges wrote.
Reached Monday, Frankovich said the number of judges agreeing with Berzon and Kozinski makes him optimistic about an appeal to the U.S. Supreme Court.
Rafeedie died of cancer late last month, but Frankovich still holds a grudge.
“What he did is morally reprehensible,” the attorney said Monday. “Acting morally reprehensible creates bad karma, and sometimes you have to pay the piper for bad karma.”
San Gabriel attorney Robert Appert represented the defendant Mandarin Touch Restaurant.
“I didn’t expect that the court would vote to rehear it, but I certainly appreciate the sympathy for Mr. Molski in his situation,” Appert said.
If judges think an attorney deserves to be sanctioned, they should do it in an individual case first before making a district-wide order, Berzon said. In addition, the court could establish a general order to streamline ADA actions; the Northern District has such a process, which mandates a site visit and ADR immediately after the suit is filed.
Berzon complained that neither the panel, nor Rafeedie, have been able to demonstrate that Frankovich’s lawsuits are meritless. Indeed, Frankovich points out that he won a state verdict against Mandarin Touch in Santa Barbara County Superior Court last December. A jury awarded Molski $5,000 in damages.
Judges Kozinski, Harry Pregerson, Stephen Reinhardt, Michael Daly Hawkins, M. Margaret McKeown, Kim McLane Wardlaw, William Fletcher and Richard Paez joined Berzon’s dissent. Reinhardt, Fletcher and Paez joined Kozinksi’s. The case is Molski v. Evergreen Dynasty, 08 C.D.O.S. 4021.