Garcia v. Dudum

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA ORLANDO GARCIA, Case No. 21-cv-05081-SI 8 Plaintiff, ORDER DENYING MOTION FOR 9 v. RECONSIDERATION AND ORDERING COMPLIANCE WITH 10 JACK DUDUM, et al., COURT’S PRIOR ORDER 11 Defendants. Re: Dkt. Nos. 36, 37 13 Defendants previously filed a motion to dismiss and a motion to declare plaintiff a vexatious litigant. Dkt. No. 17. The Court converted the motion to dismiss into a motion for summary judgment, requested plaintiff provide additional evidence in support thereof, denied the motion to declare plaintiff a vexatious litigant, and ordered the parties to comply with the original scheduling order requiring them to conduct a joint site inspection on or before December 17, 2021. Dkt. No. 35.

19 In response to the Court’s order, defendants filed a motion to reconsider the denial of their motion to declare plaintiff a vexatious litigant. Dkt. No. 37. Defendants have failed to comply with the rest of the Court’s order, refusing to schedule and conduct a joint site inspection and filing an improper “Brief SUA SPONTE” essentially trying to file another motion to dismiss, this time asserting lack of subject matter jurisdiction. Dkt. No. 36 (Sua Sponte Brief); Dkt. No. 39 at 11 (Plaintiff’s Objection to Sua Sponte Brief) (“Defendants are denying Plaintiff’s entry for a GO-56 site inspection[.]”).

26 First, defendants’ motion for reconsideration is DENIED. The Court agrees with Judge Breyer who recently ruled on a similar motion against the same plaintiff: “Defendants do not nearly || come close to establishing Garcia is a vexatious litigant.” Garcia v. Beck, No. 21-cv-04575-CRB, 2021 U.S. Dist. LEXIS 220156, at *6 (N.D. Cal. Nov. 15, 2021); see also, Fink v. Gomez, 239 F.3d 4 |} 989, 994 (9th Cir. 2001) (sanctions appropriate for “frivolousness, harassment, or an improper || purpose.”). “[T]he simple fact that a plaintiff has filed a large number of complaints, standing alone, is not a basis for designating a litigant as “vexatious.” Molski v. Evergreen Dynasty Corp., 500 F.3d 7 1047, 1061 (9th Cir. 2007). Mr. Garcia admits he is an ADA tester; defendants disapprove of Mr. || Garcia’s tactics but they are permitted by law. Dkt. No. 28 at 9 (“Garcia is an active ADA tester.”); || Dee Civ. Rights Educ. & Enf’t Ctr. v. Hosp. Properties, 867 F.3d 1093, 1101-02 (9th Cir. 2017).

10 || The Ninth Circuit has recognized that “[flor the ADA to yield its promise of equal access for the 11 disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation || advancing the time when public accommodations will be compliant with the ADA.” Molski, 500 13 F.3d at 1062. Any litigant may be deemed vexatious — including ADA testers. But Defendants have || failed to demonstrate Mr. Garcia’s cases generally are—or that this case in particular is—meritless, 15 harassing, or improper. Indeed, Defendants here claim to have taken action to bring their restaurant || into compliance with the ADA as a direct result of the lawsuit. Dkt. No. 17-1 at 13.

3 17 Accordingly, the Court will not deem Garcia a vexatious litigant and defendants’ motion for |] reconsideration is DENIED.

19 Second, defendants have filed a document titled “Brief SUA SPONTE.” Dkt. No. 36. This || filing is improper — it is neither a properly noticed motion nor does it comply with the Court’s 21 previous order. Defendants shall comply with the Court’s previous order and conduct a joint || site inspection on or before January 14, 2022. The Court will not entertain any further || motions from defendant until the joint site inspection is completed.

25 IT IS SO ORDERED.

26 || Dated: December 17, 2021 Site WU tee 27 □ 28 SUSAN ILLSTON United States District Judge