Disabled Man’s Suits Restricted

Most people never file a single suit in federal court. Jarek Molski of Woodland Hills has filed 400.

Now, a federal judge, accusing Molski of a “scheme of systematic extortion,” wants to shut him down.

Since 1998, a decade after a motorcycle accident left him in a wheelchair, Molski, now 34, has made something of a career of suing restaurants, wineries, bowling alleys, banks and other businesses throughout the state, accusing them of violating his rights under the Americans with Disabilities Act.

In three separate suits filed last year, for example, Molski, a law school graduate, claimed to have suffered identical injuries at three restaurants, all on May 20, 2003 -- “highly unusual, to say the least,” U.S. District Judge Edward Rafeedie wrote in a decision issued Thursday.

Molski routinely asks for damages of $4,000 per day for each day a facility is not brought into compliance with the disabilities law, then agrees to a cash settlement, the judge said, adding that “Molski’s M.O. is clear: sue, settle and move on to the next suit.”

This year though, the Mandarin Touch restaurant in Solvang fought back after being sued by Molski. The restaurant’s lawyer, Robert H. Appert of San Gabriel, accused Molski of abusing the disabilities law.

The judge agreed, saying Molski was “misusing a noble law” and trying to “harass and intimidate business owners.”

With that, Rafeedie issued an order labeling Molski a “vexatious litigant” -- someone who files lawsuits “maliciously and without good cause.”

The order means Molski can no longer file suits under the disabilities act without seeking permission from a judge, who has to be informed of Rafeedie’s order when the suit is lodged.

It is highly unusual for a federal judge to declare someone a vexatious litigant, according to legal experts, and some praised the ruling by Rafeedie, who was appointed to the bench by President Reagan.

Stanford University law professor Pamela Karlan said the ruling, though rare, made “perfect sense,” adding, “you don’t want to create a backlash against” the disabilities law by allowing litigants to misuse it.

But not all legal experts were applauding.

Eve L. Hill, a visiting professor of law at Loyola Law School, called the decision “outrageous.”

“To label someone a vexatious litigant because he has a disability, and these restaurants are out of compliance, really discourages someone from enforcing their rights,” said Hill, who also is executive director of the Western Law Center for Disability Rights.

Molski’s suits are about enabling disabled people to gain access to restaurants and other facilities, Hill said, adding that “whether he is doing it right does not justify barring him from the courts” and making him “hang a ‘kick me’ sign around his neck.”

In at least one case, she said, Molski obtained a settlement from a hamburger chain that resulted in significant changes to the company’s facilities that brought them into compliance with the disabilities law.

Samuel R. Bagenstos, a law professor at Washington University in St. Louis, also expressed reservations about the decision.

“Judge Rafeedie’s frustration is understandable, but I think it’s a bit misdirected,” Bagenstos said. “Why do you think this plaintiff was able to obtain so many quick settlements? Because, even today, over 14 years after the ADA first went on the books, violations of the statute are widespread.”

Rafeedie acknowledged in his order that “it is possible, even likely, that many of the businesses [Molski] sued were not in full compliance with the ADA.”

But, he said, the volume of suits that Molski filed, many of them identical, coupled with his pattern of seeking quick monetary settlements in most cases and failing to pursue others, “calls into question Molski’s good faith expectation of prevailing on the merits of his claim.”

The judge emphasized that his ruling “does not limit the right of a legitimately aggrieved disabled individual to seek relief under the ADA; it only prevents abuse of the law by professional plaintiffs, like Molski and their lawyers ... whose priority is their own financial gain, and not ‘the elimination of discrimination against individuals with disabilities’ ” -- the purpose of the disabilities law.

Rafeedie focused in particular on the three suits Molski filed stemming from incidents on May 20, 2003, at El 7 Mares restaurant in Gilroy, Casa Medina in Hollister and Rapazzini Winery in Gilroy.

In each suit, Molski asserted that the restaurant lacked adequate parking and the food counter was too high.

And in each case, according to the judge, the suit alleged that “after the meal, Molski attempted to use the restroom, but because the toilet’s grab bars were improperly installed, he injured his shoulder in the process of transferring himself from his wheelchair to the toilet. Thereafter, he was unable to wash his hands because of the lavatory’s design.”

The claims “appear credible” standing on their own, the judge said. But laid side by side, their validity “is undermined.”

“It would be highly unusual -- to say the least -- for anyone to sustain two injuries, let alone three, in a single day, each of which necessitated a separate federal lawsuit. But in Molski’s case, May 20, 2003, was simply business as usual.”

Thomas E. Frankovich, a lawyer from San Francisco who represented Molski in many of his suits, responded that it was common for people who use wheelchairs to suffer injuries to their “upper extremities” when a restroom does not have grab bars.

Frankovich called the decision “a miscarriage of justice” and said he would ask Rafeedie to reconsider the ruling. If that does not succeed, he will try to get the ruling reversed by the U.S. 9th Circuit Court of Appeals, he said.

Rafeedie had harsh words for Frankovich and his law firm, as well as Molski, saying the lawyers had “aided and abetted” Molski’s “abusive litigation practices.”

As a result, the judge said he was issuing an order that Frankovich’s firm and an organization affiliated with Molski called Disability Rights Enforcement Education Services had to come to court and show why they also should not be sanctioned.

Frankovich said he and his firm had “done everything correctly and should be commended, not condemned.”

His office, he said, files more individual suits under the disabilities law than any other law firm in California. The judge is “taking a very disparaging approach against our firm” without investigating, he said.