Langer v. Kiser

• Decision Date: 23 January 2023
• Docket Number: 21-55183
• Parties: Chris LANGER, Plaintiff-Appellant, v. Milan KISER, in individual and representative capacity as trustee of the Milan and Diana Kiser Revocable Trust dated August 19, 2003; Diana Kiser, in individual and representative capacity as trustee of the Milan and Diana Kiser Revocable Trust dated August 19, 2003, Defendants-Appellees, and Frank P. Rofail; David Matthew Taylor; Does, 1-10, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

57 F.4th 1085

Chris LANGER, Plaintiff-Appellant,

v.Milan KISER, in individual and representative capacity as trustee of the Milan and Diana Kiser Revocable Trust dated August 19, 2003; Diana Kiser, in individual and representative capacity as trustee of the Milan and Diana Kiser Revocable Trust dated August 19, 2003, Defendants-Appellees,andFrank P. Rofail; David Matthew Taylor; Does, 1-10, Defendants.

No. 21-55183

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 18, 2022 San Francisco, California

Filed January 23, 2023

Dennis J. Price II (argued), Center for Disability Access, San Diego, California; Russell C. Handy, Potter Handy LLP, San Francisco, California; for Plaintiff-Appellant.

Samy S. Henein (argued), Suppa Trucchi & Henein LLP, San Diego, California, for Defendants-Appellees.

Before: William A. Fletcher, Ronald M. Gould, and Daniel P. Collins, Circuit Judges.

Opinion by Judge Gould ;

Dissent by Judge Collins

GOULD, Circuit Judge:

Chris Langer is a paraplegic man, disability advocate, and serial litigant. Langer cannot walk, so he uses a wheelchair to get around and drives a van that deploys a ramp from the passenger side. For Langer to park and exit his vehicle, a parking lot must have an accessible parking space with an adjacent access aisle. Title III of the Americans with Disabilities Act of 1990 ("ADA") prohibits places of public accommodation from discriminating against people on the basis of disability, 42 U.S.C. § 12182, and the ADA Accessibility Guidelines ("ADAAG") require parking lots of a certain size to have van-accessible spaces with access aisles. ADAAG § 208.1; 502.1 (2010) (codified at 28 C.F.R. pt. 36, subpart D and apps. B and D). When Langer comes across a place that he believes is not compliant with the ADA, he takes photos to document the condition of the premises and often sues. Langer is a "serial" ADA litigant, a fact featured prominently at trial, and he has filed close to 2,000 ADA lawsuits in the thirty-two years since Congress enacted the ADA.

This appeal arises from one such lawsuit. The central question we must answer is whether a place of public accommodation violates the ADA by opening up its private parking lot to customers without making it accessible to customers with disabilities. Because the business owner in this case testified that he allowed customers to park in the parking lot, we must reverse the district court's judgment in favor of the defendant property owners, regardless of what the terms of their lease with the business owner specified. A business cannot offer parking to customers without disabilities while not offering that same benefit to customers with disabilities—that discrimination goes to the heart of the ADA. A second question raised by this appeal is whether a district court may rely on a plaintiff's litigation history to question his credibility and intent to return to a place of public accommodation. We hold that a district court may not reject an ADA litigant's stated intent to return to a location simply because the litigant is a serial litigant who brings numerous ADA cases.

I. BACKGROUND

Defendants Milan and Diana Kiser own a mixed-use real estate property near Langer's home in San Diego and rent it to residential and commercial tenants. In September 2017, Langer tried to visit two businesses on the property: the Gour Maine Lobster (the "Lobster Shop") and the 1 Stop Smoke Shop (the "Smoke Shop").

One of the Kisers' tenants, David Taylor, owns the Lobster Shop. The lease between the Kisers and Taylor assigned Taylor a space in the parking lot for his personal use. Taylor placed a sign near his assigned parking space with the words "lobster" and "parking" to "show customers where the store is, where to go, and where to park." At some point, Kiser noticed Taylor's "Lobster Shop Parking Sign" and asked Taylor to remove it, but Taylor did not do so.

Because the parking lot on the Kisers' property did not have a van-accessible parking space, Langer could not access either business when he visited the property. Langer sued the Kisers over the lack of accessible parking, bringing claims under Title III of the ADA and California's Unruh Civil Rights Act, Cal. Civ. Code §§ 51 – 53.¹ The Kisers filed a trespass counterclaim against Langer.

The district court held a one-day bench trial and at its conclusion entered judgment for the Kisers. The district court first held that Langer had standing to bring this action, although it did so "reluctantly," doubting that Langer had a "legitimate" intent to return. It concluded that Langer's testimony was unreliable because of his extensive litigation history as an ADA litigant. Reaching the merits of Langer's ADA claim, the district court entered judgment in favor of the Kisers, holding that the parking lot they owned was not a place of public accommodation. Despite contrary testimony from the Lobster Shop owner, Taylor, that his customers parked in the parking lot, the district court instead relied upon the lease, which stated that the parking spot was for Taylor.² Relying on that term, the district court concluded that all members of the public were denied access to the parking lot, not only people with disabilities.

We have jurisdiction under 28 U.S.C. § 1291. We reverse the district court's holding that the parking lot was not a place of public accommodation, and we vacate the district court's costs award.

II. STANDING

We first examine standing because we have an independent duty to do so before turning to the merits. Bernhardt v. Cnty. of Los Angeles , 279 F.3d 862, 868 (2002). In this case, however, Langer's testimony at trial is relevant to whether he has standing, so our standing analysis proceeds in several steps. We first provide an overview of standing in the ADA Title III context. We next examine the district court's credibility determination against Langer. We then determine, on de novo review, whether Langer has standing.

A.

Because Article III limits our jurisdiction to cases and controversies, the "irreducible constitutional minimum of standing" requires a plaintiff to have suffered an injury in fact, caused by the defendant's conduct, that can be redressed by a favorable result. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The elements of causation and redressability are not contested, so we need to evaluate only Langer's asserted injury in fact. To confer standing, an injury in fact must be concrete, particularized, and actual or imminent, not hypothetical. Id. Although a plaintiff must establish standing at each stage of the litigation, id. at 561, 112 S.Ct. 2130, whether a plaintiff has standing depends upon the facts "as they exist when the complaint is filed," id. at 569 n.4, 112 S.Ct. 2130 (quoting Newman-Green, Inc. v. Alfonzo-Larrain , 490 U.S. 826, 830, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) ).

Private plaintiffs are limited to seeking injunctive relief under Title III of the ADA, so a plaintiff suing a place of public accommodation must show a sufficient likelihood of injury in the future to establish standing. Fortyune v. Am. Multi-Cinema, Inc. , 364 F.3d 1075, 1081 (9th Cir. 2004). Encountering ADA violations at a place of public accommodation in the past is not itself sufficient for standing, though it provides some evidence supporting the likelihood of future harm. Id.

Our understanding of what standing requires in the ADA Title III context has evolved over time. In Pickern v. Holiday Quality Foods Inc. , 293 F.3d 1133 (9th Cir. 2002), we established what became known as the deterrent effect doctrine for ADA standing. There, a plaintiff brought an ADA action against a grocery store, but the district court dismissed it for lack of standing because the plaintiff had not attempted to enter the store during the statute of limitations period. Id. at 1135. We reversed, holding that to bring an ADA claim against a place of public accommodation, it is enough for a plaintiff to have actual knowledge of accessibility barriers there. Id. Quoting from Title III, we confirmed that a person with a disability need not engage in the "futile gesture" of trying to access a noncompliant place just to create an injury for standing. Id. Rather, to establish a cognizable future injury, all a plaintiff needs to do is be "currently deterred" from visiting the place of public accommodation because of the accessibility barriers. Id. at 1138.

We next examined standing in a pair of ADA cases where plaintiffs sued places of public accommodation far from their homes. In Doran v. 7-Eleven, Inc. , 524 F.3d 1034, 1040–41 (9th Cir. 2008), we held that the plaintiff had standing to sue a convenience store 500 miles from where he lived because he was "currently deterred" from visiting the store due to the barriers he encountered. We added that the ongoing uncertainty about whether the barriers remain is "itself an actual, concrete and particularized injury under the deterrence framework of standing articulated in Pickern . " Id. at 1043. We held that the plaintiff had standing to challenge not just the barriers he personally encountered, but also other barriers related to his disability that he became aware of through discovery. Id. at 1043–44.

We reached a similar conclusion in D'Lil v. Best Western Encina Lodge & Suites , 538 F.3d 1031, 1034–39 (9th Cir. 2008) and held that a plaintiff had standing to challenge ADA violations at a hotel she stayed at in Santa Barbara, far from her home in Sacramento. D'Lil worked as an accessibility consultant and traveled around California evaluating properties for ADA compliance. Id. at 1034. The district court doubted that she had a "legitimate" intent to return because of her involvement in so many ADA lawsuits, and it dismissed her case for lack of standing. Id. at 1035. We reversed, clarifying that when the place of public accommodation is far from a plaintiff's home, a plaintiff can establish standing by...