481 F.3d 724 (9th Cir. 2007), 05-55347, Molski v. M.J. Cable, Inc.

Docket Nº:05-55347.
Citation:481 F.3d 724
Party Name:Jarek MOLSKI; Disability Rights Enforcement, Education Services: Helping You Help Others ("DREES"), Plaintiffs-Appellants, v. M.J. CABLE, INC., a California corporation, d/b/a Cable's Restaurant, Defendant-Appellee.
Case Date:March 23, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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481 F.3d 724 (9th Cir. 2007)

Jarek MOLSKI; Disability Rights Enforcement, Education Services: Helping You Help Others ("DREES"), Plaintiffs-Appellants,


M.J. CABLE, INC., a California corporation, d/b/a Cable's Restaurant, Defendant-Appellee.

No. 05-55347.

United States Court of Appeals, Ninth Circuit.

March 23, 2007

Argued and Submitted Feb. 5, 2007.

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[Copyrighted Material Omitted]

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Thomas E. Frankovich and Jessica A. Dayton, Thomas E. Frankovich, A Professional Law Corporation, San Francisco, CA, for the plaintiffs-appellants.

Craig N. Beardsley, Jones & Beardsley, Bakersfield, CA, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CV-03-04809-DT.

Before FERGUSON, EUGENE E. SILER, JR., [*] and HAWKINS, Circuit Judges.

FERGUSON, Circuit Judge.

Jarek Molski ("Molski") appeals the District Court's denial of his motion for a new trial following a jury verdict in favor of M.J. Cable Inc., owner of Cable's Restaurant ("Cable's"). Molski, who is paraplegic, sued Cable's for violations of the Americans with Disabilities Act ("ADA") and California's Unruh Civil Rights Act ("Unruh Act"), alleging that Cable's failed to accommodate the disabled. Although Molski provided uncontradicted evidence that Cable's did not identify and remove architectural barriers, the jury returned a verdict for the restaurant. The District Court denied Molski's motion for a new trial, speculating that the jury could have reasonably concluded that because of Molski's record of litigiousness, he was a "business" and not an "individual" entitled to the ADA's protections. We reverse.


Molski is a paraplegic who has been confined to a wheelchair since a motorcycle accident paralyzed him at the age of 18. Considered by some to be a controversial figure, Molski has brought hundreds of lawsuits against inaccessible public accommodations throughout California. Molski considers himself a civil rights activist who uses litigation to force compliance with the ADA; California businesses and a federal district court consider him a vexatious litigant who exploits the ADA and its state law counterpart for pecuniary gain. 1

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On January 26, 2003, Molski took his grandmother to church, then to lunch at Cable's Restaurant in Woodland Hills, California, where he spent thirty-five dollars on their meal. After eating lunch, Molski excused himself to use the restaurant's public restroom.

Upon entering the restroom, Molski noticed numerous architectural barriers to his accessing the facilities. The door pressure on the bathroom door was too heavy, and the door lacked a handicap accessible sign. Inside, the stall doors could not close with Molski's wheelchair in the stall. The stall lacked grab bars on both the rear wall and side wall, which prevented Molski from maneuvering from his wheelchair to the toilet. The toilet seat cover dispenser was unreachable. The pipes underneath the sink were not insulated, and therefore, according to Molski, posed a special risk to those without feeling in their legs, as hot pipes could burn them without their realization. The sink also lacked levered hardware, a type of fixture that is easily moveable without strong grip strength. Molski was unable to reach at least one of the paper towel dispensers. Molski testified that the hygienic violations were especially important in his case because, due to his chest-down paralysis, he uses a catheter and a urine bag that must be emptied frequently. He explained that failure to empty the urine bag can cause autonomic dysreflexia, a condition that can result in whole body spasms and even cardiac arrest. Handling the bag with unwashed hands can also lead to bladder infections.

On March 7, 2003, Rick Sarantschin ("Sarantschin"), the principal of Access Investigation Monitoring, conducted an inspection of Cable's and confirmed Molski's observations using the ADA Accessibility Guidelines for Buildings and Facilities ("ADAAG"). See 28 C.F.R. § 36 App. A. Four months later, Molski brought a lawsuit against Cable's in the Central District of California, alleging violations of the ADA and state laws. The District Court held a three-day trial.

At trial, Molski, Sarantschin, and construction expert Michael Beall ("Beall") testified on behalf of Molski, and Cable's vice president Anthony Dalkas ("Dalkas") testified as an adverse witness. Molski testified primarily about his experience at Cable's, his prior lawsuits, and his views on disability access discrimination. Sarantschin testified about his investigation of Cable's and the ADA violations he observed.

Beall testified about the construction costs of making Cable's compliant with the ADA. He estimated that the approximate total cost to remodel both the men's and women's bathrooms would be $8,600, or $6,000 for just the men's bathroom. Beall noted that incremental steps were even cheaper: lowering the toilet seat cover dispenser would cost $20 and take about 15 minutes; insulating the pipes would cost under $20 and take "about a minute and a half to do." Other repairs were as inexpensive as $30.

In his testimony, Dalkas acknowledged that the company had not attempted to identify barriers to the disabled. He admitted that Cable's had not made the renovations because "[w]e weren't compelled to do it." Dalkas testified that Cable's could afford each of the repairs but stated, "once you start down that path[,] you're opening a can of worms that will cost a lot of money." Dalkas described issues with Cable's landlord, as well as the economic

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costs of remodeling, such as the need to close the restaurant during renovations. Dalkas said he had received estimates of $40,000 to "bring the two bathrooms up to the current [c]ode," although Cable's had not disclosed any such remodeling bids during discovery.

The defendant did not call any witnesses, but relied primarily on its cross-examination of Molski and Dalkas. In essence, the defendant's strategy was to discredit Molski by exposing an ulterior motive for bringing suit: Molski and his lawyer Thomas Frankovich ("Frankovich") were purportedly in the business of tracking down public accommodations with ADA violations and extorting settlements out of them. On cross examination, Molski acknowledged that: he did not complain to any of Cable's employees about his access problems; he had filed 374 similar ADA lawsuits as of October 8, 2004; Frankovich had filed 232 of the 374 lawsuits; even more lawsuits had been filed since that date; Molski and Frankovich averaged $4,000 for each case that settled; Molski did not pay any fees to Frankovich; Molski maintained no employment besides prosecuting ADA cases, despite his possession of a law degree; Molski's projected annual income from settlements was $800,000; 2 Molski executed blank verification forms for Frankovich to submit with responses to interrogatories; they had also filed lawsuits against two other restaurants owned by Cable's; they had filed a lawsuit against a nearby restaurant; and Sarantschin obtained up to 95% of his income from Frankovich's firm for performing investigations for ADA lawsuits. 3

During closing arguments, Molski focused primarily on the ADA violations, and Cable's focused primarily on Molski. The Court instructed the jury on, inter alia, the elements of an ADA claim, and gave it a Special Verdict Form. The jury returned a verdict for Cable's, responding "No" to the threshold question: "Do you find that the defendant failed to identify and remove architectural barriers at Cable's restaurant?"

Pursuant to Rule 59(a) of the Federal Rules of Civil Procedure, Molski moved for a new trial on the grounds that the verdict was against the weight of the evidence. The District Court denied the motion. Molski timely appealed.


A. Standard of Review

We review a district court's denial of a motion for a new trial under Federal Rule of Civil Procedure 59(a) for an abuse of discretion. Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1189 (9th Cir.2005); see also Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir.1999) (applying abuse of discretion standard where the motion for a new trial was "grounded on the assertion that the jury's verdict was against the clear weight of evidence").

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"The district court's denial of the motion for a new trial is reversible only if the record contains no evidence in support of the verdict." Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342, 1347 (9th Cir.1985). We may reverse the denial of the motion where the District Court has "made a mistake of law." 12 James Wm. Moore et al., Moore's Federal Practice § 59.54 (3d ed.2006).

B. Rule 59(a)

Rule 59(a) states, "A new trial may be granted ... in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed.R.Civ.P. 59(a)(1). 4 As this circuit has noted, "Rule 59 does not specify the grounds on which a motion for a new trial may be granted." Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir.2003). Rather, the court is "bound by those grounds that have been historically recognized." Id. Historically recognized grounds include, but are not limited to, claims "that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving." Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940). We have held that "[t]he trial court may grant a new trial only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice." Passantino...

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