Pinocchio's Pizza #2 has been in business in Gilroy for 29 years. This business and 5 other business in Gilroy have been hit with Drive By ADA lawsuits that could put them out of business.
These lawsuits are brought by unethical attorneys who scam small businesses on the basis of laws intended to help disabled people have a place to park. These laws were never intended for lawyers to get rich off of businesses who are unaware or unable to comply with new ADA regulations.
From the research I've done there are exceptions to ADA regulations where some businesses can be grandfathered in on the basis that the cost of becoming compliant is excessive. That would be the case for Pinocchio's Pizza.
Pinocchio's Pizza started with 5 parking spaces 29 years ago when they opened up. A few years later Gilroy widened the median and because of the narrowing made the one street space part of the traffic lane and painted the sidewalk red, leaving them with only 4 spaces.
If Pinocchio's Pizza provided a handicap parking spot it would take up 2 of the 4 spaces he has left. He can run his business with only two spaces and he would have to shut down.
Gilroy can however fight back. These lawsuits are illegal and I personally find it hard to believe that this individual who has teamed up with a lawyer from San Diego was actually denied a service from all 6 businesses on the same day. I think they are likely making up a story and if they are that is fraud. Fraud is a crime, it's a felony, and there would be lawyers going to jail if convicted.
It's not just the lawyers suing that are part of the scam. Lawyers defending the lawsuits are demanding big ratainer fees and giving advice to just pay the other lawyer anything the other side demands. Like what often happen in litigation like divorce, lawyers cooperate to run up big fees and milk the local merchant on both ends. Whether you are suing or defending it all pays the same.
Unfortunately the California legislature is made up of lawyers who empower lawyers to make money. However in 2012 the legislature passed and the Governor signed Senate Bill 1186 to try to curb these ADA drive by lawsuits. The new law prohibits pre-litigation “demand for money” letters, and requires that any intent to sue letter must be sent at least 30 days prior to filing a lawsuit and must include the specific access problems and date of violation, so that business owners will know why they are being sued.
This was not done in the case of Pinocchio's Pizza. One day a process server shows up at his door and hands him a court summons. Tony could easilly beat this suit by filing a simple moting to dismiss on the basis that the suit fails to coply with the safe harbor provisions with SB 1186 but lawyers who defend these suits just want to collect a chunk of money to do nothing.
Rules of Professional Conduct
Lawyers who practice law in California are bound by the Rules of Professional Conduct. These rules require lawyers to act in an ethical manner and these rules are supposed to be enforced by the California Bar. I don't know if the California Bar actually enforces any of these rules but they would if the public demanded it. Sometimes you have to make some noise to get their attention.
The rules start off by saying:
(A) Purpose and Function.
The following rules are intended to regulate professional conduct of members of the State Bar through discipline. They have been adopted by the Board of Governors of the State Bar of California and approved by the Supreme Court of California pursuant to Business and professions Code sections 6076 and 6077 to protect the public and to promote respect and confidence in the legal profession.So if a law firm were to partner with a handicapped individual to generate ADA lawsuits for the purpose of shaking down local businesses for attorney's fees that would undermine the California Bar's ability to "protect the public and to promote respect and confidence in the legal profession". Such a lawyer should be disbarred. And if the lawyer violated the law by committing fraud then the City should demand a criminal investigation and prosecute the lawyer for fraud.
Fundamentally Wrong
When lawyers abuse laws that were designed to protect disabled people to scam local businesses that is fundamentally wrong and unethical. One can not claim that do to some loopholes or imperfection in the law that this kind of behavior is somehow permissible. It is not! When the ethics are so self evident that any person can see how wrong this is on its face then the California Bar has a duty to act. And we as a community have a right to demand that the Bar does act and is not just some sham organization to create the illusion of ethical oversight. If the Bar doesn't act then we need to go after the Bar.
What can we do?
Gilroy as a city has a lot of options but we have to come together as a community to stop lawyers who use the law in an unethical manner to scam our local citizens. What we can do is get all of the victims together, examine the lawsuits, and try to determine if the lawyer and some disabled person who the lawyer may be paying are bringing these actions in a lawful manner and if the allegation are actually true or if they are falsified.
If this lawyer is violating the law they need to be prosecuted. If the lawyer is acting in a manner that violated the spirit of the Rules of Professional Conduct then the lawyer should be disbarred.
If the Chamber of Commerce and City Council demand an investigation by the California Bar in a very loud manner then we can pressure the Bar into enforcing their own standards. If there is evidence that fraud is indicated then the Gilroy Police can launch a criminal investigation.
I think we should do this. I think we should fight back against predatory lawyers. I think we must fight back.
So - I'm asking that we as a community come together and work on this and stand up against the predators who would victimize us individually. We need to strike back and in this case I think this is winnable. Although lawyers talk tough and scary it is my experience that at the moment they see they are at risk then they back down and run away from a real fight.
