Second of three parts
On a September day last year, as the workweek began, two Northern California attorneys were busy filing lawsuits. That Monday, five businesses were sued in federal court. The next day, four more lawsuits were filed. Another two landed on Wednesday, and four more after that.
In all, 15 lawsuits were filed between Sept. 19 and Sept. 23, 2005, though the actual number of businesses targeted far exceeded that. Among the newly sued: The Shang Hai Garden Restaurant in east Sacramento. A Church's Chicken on Stockton Boulevard. A Battery Bill, a Waffle Square, a Raley's on Marconi and a Big Lots store in suburban Elk Grove.
Then, on Friday, the big one rolled in, as 66 stores -- all at the Folsom Premium Outlets -- were named in a single, 439-page lawsuit filed in the Eastern District of California.
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What these businesses have in common, along with hundreds more, is that each was sued for alleged violations of the Americans With Disabilities Act, signed into federal law in 1990 to ensure that disabled people have access to public places and businesses.
The businesses share something else: Each was sued by Scott N. Johnson of Carmichael or Lynn Hubbard III of Chico, the busiest ADA litigators in California's federal courts.
California, which led the country decades earlier in passing access laws, also has become a national hot spot of controversy over ADA litigation.
In a six-month investigation, The Bee identified 910 lawsuits in California's four federal court districts last year -- nearly 80 percent of them filed by just 10 private attorneys or firms.
At the top of the list in federal ADA complaints were attorneys Johnson and Hubbard, who had 277 suits between them, according to The Bee's analysis.
The two operate quite differently.
Johnson, 44, is a quadriplegic attorney living in Carmichael, where he relies on a full-size van with hand controls and a wheelchair lift, and his service dog, Rocky, for his numerous outings. He lodges his complaints strictly within the Eastern District of California, based in Sacramento, and files on behalf of only himself.
Last year, Johnson sued 114 businesses, most of them restaurants, according to The Bee's analysis. Many are near his home, including a Carmichael pet food store where he had shopped for years.
Hubbard, 66, is not disabled, though he files numerous suits in the Southern District of California, in San Diego, on behalf of his aging parents. In fact, unlike Johnson, he filed suits in federal courts the length of California last year, bringing his total to at least 163 -- the most of any access attorney in the federal courts. A review of Hubbard's cases reveals that he pursues large businesses and chains, including the 66 stores named in the Folsom outlets suit.
Johnson routinely settles for between $4,000 and $6,000, according to extensive interviews by The Bee. Hubbard asks for more when he sues, typically $40,000, court filings state. He sometimes demands millions of dollars.
The vast majority of access cases in California never go to trial, with defendants settling out of court and agreeing to fix the problems.
"My people told me, 'Dude, you have no recourse on this. Just pay,'" said Wayne Hill, owner of Bob's Cycle Center in Fair Oaks, who took their advice and settled with Johnson for $5,000 over parking issues.
In the past decade, according to a legal group monitoring access cases in California, Hubbard has filed 1,222 suits. The group, Lawyers Against Lawsuit Abuse, found that he had filed 220 suits on behalf of his parents, whose demands totaled more than $13 million.
Despite persistent charges of "extortion" and "shakedown tactics" by the business community, and sharp criticism by federal judges, the practice is legal.
And, some believe, it is just.
"There's no reason for the disabled community to have to tell these businesses what they have to do (to comply)," said Ron Wilson, a disabled Dixon man who is a frequent Hubbard client. "There would be no lawsuits if they were in compliance. That's how simple it is."
The Scott Johnson Story
Outside Sacramento, attorney Scott Norris Johnson is not well known among those who follow ADA cases statewide.
Here, he is infamous among small-business owners, who commiserate when he files a series of suits -- often focused on one neighborhood.
Johnson's federal lawsuits last year singled out businesses from Mack Road in south Sacramento to the northern reaches of Auburn Boulevard in Citrus Heights, The Bee found. Though he largely works alone, he used Clayton attorney Thomas N. Stewart III to file five of his 114 suits.
A McGeorge School of Law graduate who was admitted to the California Bar in 1993, Johnson declined to talk with The Bee. In an e-mail, he said: "I am afraid some statements may be taken out of context. The lawsuits which I have filed are public record and speak for themselves.
"I would like to assure you though, that not all businesses participate in discrimination after access violations are brought to their attention," he wrote. "There are many businesses who, ... 16 years after the Americans With Disabilities Act was enacted, are now providing for disability access and, therefore, are not involved with a lawsuit."
The Bee's review of Johnson's 2005 suits showed that small restaurants make up more than half of his suits. In one month, February, Johnson said in court papers he had visited 24 restaurants that he eventually sued -- from Freeport Bakery in Land Park to Sam's Sub Shop on Fulton Avenue to the Flaky Cream Donuts on Madison Avenue.
February was his busiest month patrolling the city, when his own filings show he made 39 visits to establishments that he later sued. If each business settled for $4,000, the statutory minimum under the state's Unruh Act, the attorney/plaintiff would have made more than $150,000 for a month's work.
On one day in November 2004, Johnson's path took him up Watt Avenue in North Highlands, where he paid visits to four businesses along the stretch north of Interstate 80. Two months later, he went back to the same area, revisiting three and adding two more to the list.
In all, Johnson sued 12 businesses along Watt Avenue in 2005, as well as 14 on Fair Oaks Boulevard and 11 on Auburn Boulevard.
"Probably people think he looks bad because he files a lot of lawsuits," said Clayton attorney Stewart, who handles a few of Johnson's more complex cases.
"He gets more access per dollar than anyone else I know of because when he files he never asks for attorney fees. He's extremely efficient."
Johnson's lawsuits reveal the insensitive and insulting treatment he claims to have received.
One Sacramento restaurant owner told Johnson to park his van at a gas station across a busy one-way street if he wanted to come in, according to his lawsuit. Another suit recounts how a Carmichael restaurant manager near Johnson's home offered to put a "wet floor" sign in the parking lot to designate the van- accessible zone. One Citrus Heights fast food stand had Johnson eat off milk crates because it had no wheelchair accessible tables, he stated.
Johnson primarily focuses on the lack of van-accessible parking, in which businesses are required to stripe off a 96-inch access aisle on the passenger side of a disabled van space to accommodate a wheelchair lift, people with walkers, and so on. Over and over in his suits, he explains that the lack of accessible parking prevents him from getting out of his van safely.
As a result of such barriers, his suits state, he was "humiliated and embarrassed, made to feel as if he was a second class citizen, and experienced humiliation, embarrassment, emotional damage, all of which caused personal injury... ."
In an e-mail, Johnson asked The Bee to note that in his complaints he gives businesses warnings of their violations and time to fix them before he sues.
The owner of a tire shop on Watt Avenue confirmed that Johnson had pointed out his lack of disabled parking and, after he fixed it, he never heard from the lawyer again.
However, Matt Boyer, owner of Western Feed & Pet Supply, said he felt shocked and betrayed when Johnson -- a longtime customer -- sued his Carmichael store in February 2005 over parking. In the suit, Johnson said he had explained the problem the previous December to a female manager, who said she was aware of the situation. Still, he said, nothing was done.
Boyer said that isn't true. The manager at the time was male, and no one in his store recalled such a conversation.
The store's current manager, Bobbie Couch, said she had waited on Johnson over the years and remembered him as a pleasant customer who seemed to enjoy his frequent visits. She was especially fond of his service dog, Rocky, and often gave the animal treats.
"People went out of their way to be kind and helpful to this man," she said. "He was the last person I thought would do this to us."
Boyer acknowledged he lacked proper parking, but said it hadn't deterred Johnson over the many years he shopped there. "To be quite honest, I never even thought about it," he said of the parking, quickly adding that he knows "negligence is no excuse."
Had he gotten a warning letter, Boyer said, he would have moved quickly. "I never got that courtesy. I got to give Scott $4,000."
He striped his lot, he said, but Johnson has not been back.
Rocky the dog figured into another Johnson lawsuit filed against a Carmichael business a few blocks away.
In that case, Johnson sued the owners of Grand Illusions, a costume and magic store, after he claimed he drove by on Oct. 30, 2005, hoping to buy a costume for Rocky.
Johnson said in his suit, filed last December, that he did not enter the store because there was no properly configured parking in the front lot.
Leora Johnson, who co-owns the store with her son, Steven, admits that there was no disabled parking space or wheelchair ramp. And she acknowledges that before the suit was filed her business had not made an effort to comply with the ADA.
"We just let it slide over our heads," she said. "However, if we'd put in a ramp before we were sued it wouldn't have been in compliance. It would have been at the wrong angle, or would have had the wrong striping, and we would have gotten sued anyway. After we got sued we went out and got the law, and let me tell you, it's not easy to read."
The Johnsons, who are not related to Scott Johnson, settled the suit by paying $4,000 to him, $2,500 to their own attorney and $3,600 for a wheelchair ramp and parking lot restriping.
"I know he's trying to make a living doing it," Leora Johnson said. "The only thing I don't think is fair is that if he was doing it to see that we were in compliance he would have given us a warning period -- 30 days. But he didn't because he really wanted the money more than anything.
"We don't sell dog costumes, by the way. He could have called us on the phone and we would have told him that."
Johnson's suits reflect the diversity of businesses that he singles out. While restaurants were most prevalent, he also sued a wheelchair store, a surf and skate shop, a lawn equipment company and a pool and hot tub store.
Wayne Hill admits he was surprised that his Fair Oaks bicycle shop, Bob's Cycle Center, was sued over parking issues. Hill, whose father bought the business in 1955, said he feels bad that he lacked the proper striping but disliked the way it was handled.
"This guy was running around town just zapping everybody," he said.
He settled for $5,000 and says, "This was a no-nonsense lawsuit. It was like, 'Dude. Give me the money or else.'"
Timothy Quach, owner of DeAnza Auto Center on Watt Avenue, said he isn't settling and wants his day in court. Quach, who emigrated from Vietnam as a child and runs the small business with his older brother, said he was in the process earlier this year of repaving the parking lot and making interior improvements, with plans submitted to the county for approval. He had striped off a temporary disabled parking spot in the back, with signs pointing to it, while the work was being done.
Johnson came to his shop in February, but Quach refused his request -- as he said he would for any other customer -- to drive his own van into the service bay. Johnson subsequently sued him.
Quach has hired an attorney and said he would rather pay her than Scott Johnson.
"I have everything in progress to get it done," Quach said as he rolled out his remodeling plans and county permit paperwork on the floor of his shop. "Why do I have to pay him?
"I work hard for the money. Me and my brother probably get $1,500 each a month," he said. "One lawsuit could be a half-year loss."
That lawsuit is one of 153 Johnson has filed so far this year, already surpassing his filings for all of 2005.
The Lynn Hubbard story
Lynn Hubbard III is probably the best-known ADA access attorney in California.
With more than 1,000 ADA lawsuits, Hubbard has gone after California businesses using a regular pool of disabled clients who include his elderly parents and a team of lawyers, one of them his son.
Attorneys for one business sued by the Hubbards remarked in court papers last year that "the Hubbards have developed this enterprise as a family business."
In the Eastern District, based in Sacramento, Hubbard's most active plaintiff last year was James Sanford, who was left with little upper body or hand movement after a traffic accident. Hubbard filed 34 of his 68 Sacramento area suits in 2005 on Sanford's behalf, suing such outlets as Peet's Coffee on Fair Oaks Boulevard, Tower Books on Watt Avenue, Dayton Barstools in Citrus Heights and Macy's at Country Club Plaza, according to The Bee's analysis.
In the Southern District in San Diego, Hubbard filed 26 access suits last year for his parents, Lynn J. and Barbara J. Hubbard, whom he describes as having "multiple conditions" that require them to use motorized wheelchairs and a mobility-equipped vehicle.
But last year, attorneys for a Rite Aid store in El Cajon charged that "it is questionable that the Hubbards are even disabled." The store had been sued by the couple for numerous alleged violations, including improper parking, counters that were too high and wheelchair ramps that were too steep.
In response, Rite Aid sent a surveillance video team to follow the Hubbards in public places and said in one court filing that "this video shows plaintiffs moving around without wheelchairs."
The court papers accuse the attorney and his parents of "shotgun" litigation, and claim the trailer the elder Hubbards live in has stairs at the front instead of a ramp.
"Surely," the Rite Aid attorneys said, "if the plaintiffs experienced the anguish and injury they describe in all of their complaints, they would take the steps to make their own home ADA ... compliant."
Hubbard pointed out that later in the ongoing case his parents were ruled to be disabled and that their condition has since worsened.
"My mom can't walk anymore at all," he said in an interview. "She could hobble a little bit back then. And now my dad is in a motorized wheelchair also."
Hubbard's actions have enraged the people he has sued, as well as their attorneys, who have repeatedly sought but not gotten action against him from federal judges, the State Bar, even district attorneys.
Hubbard doesn't care what people think or say about him.
A tall, genial man with a white goatee, Hubbard is straightforward in describing how he makes his living.
"I do think the disabled are as entitled to go to a restaurant and have dinner, or go to a gas station or stay at a motel as anybody else," he said in an interview near his Chico law office. "I see it forcing accessibility. I see it forcing businesses to make things right."
Hubbard was once a personal injury attorney, but says he turned to ADA litigation eight to 10 years ago after repeatedly witnessing the problems his wife, Dale, had in getting access to businesses. The couple have been married for 40 years, and she has been in a wheelchair for 42 years as a result of an auto accident, he said.
"What would happen is my wife refuses to litigate, so I would complain to people and she would complain and nobody would ever do anything," he said.
Hubbard said he insists that his clients visit a business -- or try to -- before they consider filing a suit. And, he claims, he also first writes letters on their behalf to targeted businesses warning them of a lawsuit unless they come into compliance.
"Every one of my clients writes letters," Hubbard said. "But in most cases (the businesses) just ignore them until they're sued.
"And then sometimes it doesn't make any difference. They spend hundreds of thousands of dollars to defend their discrimination."
Once a suit is filed, Hubbard said he typically sends another letter to the business warning of the violations and asking for $25,000. The cases that actually go to trial are rare. "I'd say maybe one case out of 100 or 150," he said.
Not all of the business people remember their contact with Hubbard that way. When he sued Richey's River Mart, a Sacramento gas station near Discovery Park, the first notice the owners got, they say, was a lawsuit demanding $100,000.
"They claim they sent a demand letter first, but we never saw it," said attorney John Montague.
Unlike Johnson's suits that typically target small operations, Hubbard frequently goes after corporations, appending detailed studies of the businesses with photographs of the areas that do not comply with ADA regulations.
No detail is too small to note.
When Hubbard sued a Petco in Chico last June, he included "site accessibility reports" with photos documenting that the tow-away sign near the disabled parking space was the wrong color and had no telephone number listed. Another photo documented that the restroom signs were an "incorrect shape."
The case was dismissed in January after a settlement was reached, court records show.
In a case against a Johnny Carino's restaurant in Fairfield, filed by Hubbard on behalf of Ron Wilson, the final issues before a judge included placement of the toilet paper dispenser and the presence of two wicker wastebaskets in the men's restroom.
In September, a federal judge in Sacramento ruled in favor of the restaurant, pointing out that Wilson, who can walk, had not demonstrated that the toilet paper's location was a barrier, as he could still reach it.
As for the wicker wastebaskets, the judge rejected Wilson's contention that they constituted a "discriminatory policy."
"If the wastebaskets are in the way, ... the vast majority of disabled persons, including Wilson, could with little effort slide them a few inches to the side," the judge ruled.
Wilson and Hubbard have enjoyed some success in court, including a ruling last January in which a federal judge refused Pier 1 Imports' demand that they be declared "vexatious," meaning they would have to get court approval to file any more suits.
Just because the lawsuits use boilerplate language, U.S. District Court Judge Lawrence K. Karlton ruled, doesn't mean they are frivolous. In fact, he said, the large number of suits "appears to reflect the failure of the defendants to comply with the law."
While Johnson largely targets small, family-owned businesses, Hubbard said he doesn't "sue mom and pops because if you take two people that are working 80 to 100 hours a week to make a business go they probably can't afford to make any changes, period."
He doesn't include gas stations in that category, though, because he figures they can afford to make $5,000 to $10,000 worth of changes to come into compliance.
That is how he came to sue Richey's River Mart on Jibboom Street. The suit was filed in January 2004 on behalf of Sherie White, a 40-year-old Corning woman who broke her neck more than eight years ago when a small wave knocked her over in Hawaii.
White's suit alleged dozens of access violations at Richey's market. Typically such cases settle quickly. But owners Cari and Walter Richey weren't in the mood to settle.
"No way," Walt Richey said. "Not ever did it come across my mind to settle. It was the principle of the thing. We weren't wrong."
Many allegations in the lawsuit were gleaned from what the Richeys said was a four-hour inspection visit by four men Hubbard sent to the station with tape measures and levels. Among them were insufficient disabled parking, incorrect counter heights and improper restroom door handles.
The suit also pinpointed other alleged violations, charging that the sign to the accessible restroom was the wrong color. It had a blue drawing of a wheelchair on a white background, instead of the reverse, Walt Richey said.
In October 2005, the Richeys won their case. But the federal judge who ruled in their favor subsequently rejected their request to be reimbursed for $74,000 in fees and expenses.
The Richeys, who have run the station since 1972 and purchased it from Arco in 2001, say the fight has cost them $101,000 so far. That amount may increase: Hubbard has appealed the ruling.
Such battles typically are limited to larger corporations, which Hubbard said often are willing to spend hundreds of thousands of dollars fighting his suits rather than pay him and comply with the ADA.
Money doesn't necessarily flow to plaintiffs, either. White said she doesn't make any money from the lawsuits filed by Hubbard in her name. She firmly believes that suing is the only way to get many businesses to comply with the ADA.
"My experience is no one ever makes any change based on letters without a lawsuit," she said. "I live in a small town, and I don't want to sue businesses."
Gypsie Jones, a 34-year-old Anderson woman, estimates she has filed about 100 access lawsuits, and that occasionally she receives settlements of $2,000 to $4,000 from such suits.
Hubbard says his clients are interested mainly in forcing access after decades of inaction, and Jones echoes that sentiment.
"No one's getting rich off it," she said. "Years and years of the ADA being in effect and no one cared about changing their buildings or doing something about it.
"This is the step that had to be taken for someone to see and understand that it's now time."
As for his parents, Hubbard denies they are getting rich from filing suits. The attorney said in court papers that his parents live in a Chula Vista trailer "slightly bigger than a court's jury box, work out of a cinderblock storage locker" and drive a used van.
"If the Hubbards were extorting settlements," he wrote, "they'd live better."