Legal hell on wheels
Lingering fog shrouds the Venice boardwalk midday as Thomas Mundy rolls past ice cream vendors, T-shirt shacks and falafel stands, a discerning eye trained on the warrens of beach-themed kitsch and quick nibbles.
He’s not looking for leather thong pendants or Jamaican trinkets in memory of Bob Marley, or to commune with the manic crowd of in-line skaters and street artists.
Mundy is trolling for barriers to his patronage -- a threshold too high for his wheelchair, a parking lot with blue-striped access lanes narrower than eight feet, a public restroom where the coat hook on the back of the door, if there is one, is above his reach.
One fighter in a burgeoning army of crusaders for disabled access, Mundy says he has filed more than 150 lawsuits in 18 months demanding damages from small businesses in violation of the exacting requirements of the Americans with Disabilities Act.
Suing for ADA noncompliance has become a cottage industry for dozens of disabled Californians who have taken on the role of freelance enforcers of an often ignored federal statute. They secure piecemeal correction of offending premises and often enrich themselves and their lawyers in the process.
“I don’t go looking for problems. I just notice them as I go around,” said Mundy, who moved to Los Angeles last year from Hawaii. It was in Honolulu that he learned the intricacies of the ADA as a building department employee, a de facto apprenticeship for his new career as a serial litigant.
Mundy, a beefy ex-contractor with longish brown hair and a daily routine of dining out and enjoying the ocean, spies an 8-inch concrete platform on which a woman in a dark-green sari has set up a table of sunglasses under an awning.
“There’s nothing in there that I’d want to buy but this might be of interest to a judge,” 50-year-old Mundy, a paraplegic since a 1988 motorcycle accident in Maryland, observed with a knowing air.
Divorced and jobless except for the self-assigned ADA work, Mundy won’t say how much he has earned by filing lawsuits demanding five-figure sums then settling out of court with business owners keen to escape a costlier defense. Attorneys representing those he has sued estimate Mundy’s proceeds at about $300,000 in little more than a year, and a similar sum for his attorney, Morse Mehrban, from Mundy’s cases alone.
“You basically have to take the law into your own hands,” said Mehrban, whose dozen or so disabled clients provide 90% of his practice. “The ADA was enacted with the idea that the mere fear of litigation would shock people into compliance. But it hasn’t.”
California is one of the few states to put teeth into the disabilities law by mandating penalties from businesses or government entities whose premises impede the disabled.
“Confined to a wheelchair in California?” Mehrban asks potential clients on his website, www.mehrban.com. “You may be entitled to $1,000 each time you can’t use something at a business because of your disability.”
If someone in a wheelchair has been doing laundry once a month for a year at a laundromat where the paper-towel dispenser is too high, “you’re entitled to $12,000,” the lawyer advertises.
Serial litigants have cut a swath across the state, targeting family-run restaurants, boutiques, bowling alleys and wineries.
“He might as well have had a gun and asked me for $1,000 when he came in,” Paul Venetos, owner of Anaheim’s Varsity Burgers, said of an April visit by Mundy that led to a lawsuit over a condiments counter that was half an inch too high.
The burger joint’s security camera recorded Mundy wheeling in, looking around for a few minutes then leaving without perusing a menu or attempting to order, Venetos said. He believes Mundy came in only to look for a chink in his ADA armor.
“This hurts their cause,” Venetos said of the disabled suing proprietors who are making good-faith efforts to meet ADA standards. “It’s a bad thing to say, but you feel wary when you see someone come in who is handicapped, someone you’ve never seen before. You wonder if they are going to try to do something that is basically extortion.”
Long Beach attorney Ted Batsakis has had four clients sued for ADA infractions over the past few months. He calls the litigation “an old Chicago-style shakedown.” Like his clients, Batsakis said the law would be more just if it gave businesses 30 or 60 days to fix the problems.
Absent that warning period, attorneys often advise their clients to pay the litigants a few thousand dollars to drop the suit, even if they believe they haven’t violated the law.
But some attorneys are less willing to capitulate.
When Mundy sued Culver City gas station owner Azizedin Taghizadeh in September, demanding $1,000 and attorney fees for each alleged violation encountered during a July 18 visit, attorney Bert Rogal decided to push back.
“They’re bottom feeders -- both of them,” Rogal said of Mundy and Mehrban. “I really feel strongly about this, about these kinds of guerrilla tactics. It’s shameful, especially in this day and age when people are struggling to make a living.”
Rogal accuses Mehrban of singling out immigrant business owners. He vows to defeat Mundy’s suit against his Iranian-born client, then sue Mehrban for malicious prosecution.
But Mehrban isn’t the only attorney making his living from ADA suits. Lynn Hubbard III of Chico estimates he has filed 1,500 suits over the past decade, settling out of court 95% of the time. The Irvine law firm of Azimy-Nathan has filed at least 400 suits on behalf of six disabled clients over the past five years.
In San Francisco, attorney Thomas E. Frankovich handled many of serial litigant Jarek Molski’s 400 suits before a federal judge in Los Angeles barred them from bringing more legal actions without court permission.
It was in Solvang, the faux-Danish village in the Santa Barbara wine country, that the litigious Molski met his Waterloo.
Rather than settling for $2,000 or $3,000, the owners of the Mandarin Touch restaurant -- which serves waffles by day and Chinese food to the dinner crowd -- persuaded U.S. District Judge Edward Rafeedie to declare the Polish-born law school graduate a “vexatious litigant” and bar him from filing more suits in the seven-county Central District of California.
Molski, who has used a wheelchair since a 1988 motorcycle accident, appealed Rafeedie’s order to the U.S. 9th Circuit Court of Appeals and the U.S. Supreme Court without success.
Even so, “this issue is not dead. It’s coming back. There are already others stepping into his shoes,” said Frankovich, who faces disciplinary action before the State Bar of California.
Frankovich, Mehrban and Hubbard say lawsuits are the only means of enforcing compliance.
“It doesn’t make you a vexatious litigant just because you’re doing good work for the disabled,” Frankovich said.
Tom Hagerman is coming around to that way of thinking.
The Pasadena native descends gingerly from his white Dodge van, grimacing as he slowly lurches the length of the parking lot behind Shoppers Lane to show how far he has to walk from the disabled parking spaces to his weekly rendezvous at Hamburger Hamlet.
A 61-year-old retired furniture manufacturer with multiple sclerosis, Hagerman walks with a cane but doesn’t yet need a wheelchair -- a limited-mobility problem often overlooked in planning accommodations for the disabled, he said.
Hagerman would like to resolve his problems with the city without having to file a lawsuit. But he’s come to regard the Mr. Nice Guy approach as a failure.
“I have to admit I’ve gotten more sympathetic about these people whose first inclination is to sue,” said Hagerman, who has been writing city officials for a year to complain about the parking layout behind the South Lake Avenue retail strip and in several municipal garages.
The city responded to his point about poor arrangement of the north lot by properly scattering the handicapped spots in the south lot when it was reconfigured earlier this year. But officials haven’t budged from their refusal to fix the north lot, Hagerman said.
“Both lots are in compliance. They have the required number of handicapped spaces,” said Bill Bortfeld, Pasadena parking manager. He said the changes sought by Hagerman aren’t possible because the city must provide safe paths of travel from the disabled parking section to the sidewalk, and only a small number of paths can cross the lane carrying incoming traffic.
Hagerman has come to believe city officials are being spiteful because he complained.
“It’s almost as if when I made them comply [on the south lot], they were saying, ‘we’ll do it but we’re going to put them in a place where you can’t use them anyway,’ ” Hagerman said. He is now looking for a lawyer.
Mundy has learned the lingo of the successful suer. He talks of “instances of noncompliance” rather than things out of reach. He has his own definition of what constitutes “reasonable accommodation” if he needs help from a business owner to open a door or turn on a faucet. He can identify “readily achievable” fixes for defective structures and offers a “courtesy service” of an ADA compliance inspection to businesses that want to be proactive, he said.
Physically fit from the occasional game of wheelchair tennis, Mundy’s upper body is strong enough that he can lift himself and his wheelchair over short steps. It is a skill he demonstrates for dramatic effect when he encounters obstacles, such as the raised plazas outside high-rises along Wilshire Boulevard or stairs to a second-floor cash register at a local car wash.
“Sometimes I slide out of my wheelchair and drag myself up the steps, then pull my chair behind me,” Mundy said with an impish smile.
In a diary he has begun keeping in the third person, he casts himself as an action figure serving others in need.
“When it comes to access, watch out!” reads an entry he’s titled Ramps of Gold. “He’ll roll through your business with a keen eye for wheelchair compliance, from parking lots to wheelchair ramps to narrow doorways.”
While Mundy and Mehrban have racked up out-of-court settlements in all but a few cases, they lost one in mid-December.
A lawyer for a Garden Grove Del Taco franchise -- one of a handful of Del Taco outlets Mundy has sued -- cast him before a jury as an abuser of laws intended to help the disabled.
“The first thing he said wasn’t even about Del Taco, it was about how ‘Mr. Mundy can afford a Rolex watch,’ and then he went after the number of lawsuits and the money I’ve made in settlements,” Mundy said, apparently baffled at the portrayal of his work as something other than noble. “I wasn’t able to talk hardly at all about all the good things I’ve done.”
The setback won’t derail his quest to right ADA wrongs, though, Mundy said.
“I’m just going to write it off,” he said. “We just have to figure out how to beat them at their own game.”