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SAWHORSE
Flier with serial litigant’s photo circulates as a warning to Atwater businesses
BY RAMONA GIWARGIS
rgiwargis@mercedsunstar.comSeptember 26, 2014
http://www.mercedsunstar.com/2014/09/26/3870153/flier-with-serial-litigants-photo.html?sp=/99/215/
If Atwater resident Aurora Cervantes, a serial litigant who’s sued 14 Merced County businesses, walks through a popular shopping center on Bellevue Road, she might be in for a big surprise.
Hanging in the window of several Atwater businesses is a picture of Cervantes’ smiling face.
Bold-lettered words at the top of the flier ask, “Has this woman sued your business yet?” followed by the name of her Stockton-based attorney, Daniel Malakauskas.
Dozens of Atwater businesses have banded together to try to protect themselves against Cervantes, who they fear may target them next. A Merced Sun-Star and Modesto Bee series, “Taking a Stand vs. Taking Advantage,” exposed a number of serial litigants, including Cervantes, who use the well-intentioned Americans with Disabilities Act laws to sue countless businesses.
A Sun-Star investigation revealed that Cervantes had sued 21 businesses in Merced and Stanislaus counties as of Aug. 16, the majority of them in her hometown of Atwater.
Cervantes could not be reached for comment Friday.
Malakauskas told the Sun-Star in a previous email that he’s filed about 55 ADA lawsuits on behalf of disabled clients throughout state within the past year. He said the ADA law was enacted in 1990 and businesses have had more than 20 years to become compliant.
“Nevertheless, business owners have remained apathetic to the rights of the disabled. Enough is enough,” Malakauskas wrote in the email. “They say that honey attracts more flies than vinegar, however, unfortunately, in my experience, when it comes to business owners and complying with the ADA, the only thing that motivates them is the fly swatter.”
The flier featuring Cervantes’ picture, the source of which is unknown, first surfaced in Atwater last month. One business owner displayed it in his store’s front window and passed out 15 copies to neighboring businesses.
The 20-year business owner, who asked to remain anonymous for fear of being sued by Cervantes, said the flier sends a message to her loud and clear: “We know who you are and what you’re going to do,” he said. “You better stay away.”
Dean Louis, owner of Atwater Glass, said a number of stores in his Bellevue Road shopping center received copies of the flier. Louis, 55, bought the property, which includes Atwater Glass and three other businesses, in 2007.
“The flier is going around to all the local businesses,” Louis said. “I think it’s going to alienate her from the community. It’s sad that they’ve gone to these measures to make people aware.”
Without waiting to be slapped by an ADA lawsuit, Louis said he spent $3,000 to re-stripe the plaza’s parking lot and $400 to add blue signs for disabled parking. Those costs are in addition to $100,000 he spent on a new roof for the 1960s-era building.
“The only way to stop it is to get up to code,” he said. “It’s made me more aware that I have to do it.”
Hearing about the wave of ADA lawsuits in Merced County has local business owners on edge, Louis said. Most businesses don’t know how to become compliant with the law, he added, because there are no agencies checking for ADA compliance, unlike health or fire department inspections.
“If you’re not compliant, how do you know until you’re sued?” Louis said. “Nobody’s explained that law to anybody. We should be given a chance to upgrade and not just sued right off the bat.”
Expert: ADA law needs changes
A San Francisco-based ADA defense attorney, who grew up in Merced, said he’s seen a steady increase in the number of ADA lawsuits – especially in California.
“California has state laws that make it particularly attractive for ADA plaintiffs to bring lawsuits here,” said Stuart K. Tubis, an attorney with the law firm Jeffer Mangels Butler & Mitchell. “Not only can they get attorney fees for the plaintiff, but they can get statutory damages of $4,000 per visit.”
Until there are significant changes to the legislation, Tubis said, businesses will continue to be the target of “career ADA plaintiffs,” some of whom file hundreds of cases at a time. Some businesses are forced to close their doors, while others pay settlements to avoid an expensive battle in court.
“Until the law is changed, there’s not a lot that can be done to fend off these lawsuits other than businesses trying their best to be fully compliant,” Tubis said, adding that the law is open to abuse and often difficult to understand.
Tubis said the ADA law was written under the philosophy that less government is better and private citizens and their attorneys would be better at enforcing it. A few policy changes could improve the law: creating a government agency to inspect businesses for ADA issues or giving owners time to fix violations before being sued.
“I would provide a warning period that allows the business a reasonable time to make the improvements or repairs needed,” he said. “Businesses have good intentions and the last thing they want to do is make things more difficult for people with disabilities. They all recognize it’s something that’s important.”
Sharing ‘a warning’
One downtown Atwater business owner and longtime resident said he believes the law is well-intentioned, but flawed.
“This is incredibly abused,” said Eric Lee, owner of Lee Insurance Agency. Lee said he received a handful of fliers with Cervantes’ picture earlier this month and distributed copies to his business associates.
“I will share this with individuals I do business with as a warning to them,” he said. “They are scamming people on what I believe is a flawed law. Look at what Cervantes has already done.”
In addition to lawsuits in Turlock and Merced, Cervantes has sued 11 Atwater businesses including Brook’s Ranch restaurant, Little Caesars Pizza, Almond Tree Restaurant, Quick N Snappy Food and Liquor, Sure Stop Market and Fosters Freeze.
The lawsuits filed by Cervantes, who claims to suffer from lupus and depression, usually say she was denied access to the businesses because of a lack of signage for disabled parking spots and no pavement markings.
Lee said he hopes getting the flier out to businesses helps them avoid being Cervantes’ next target.
“People are happy that someone is taking the time to publicize this,” he said, adding that changes need to be made to the ADA law. “This stuff has to stop. This has got to change, and it’s got to change at the political level.”
BY RAMONA GIWARGIS
rgiwargis@mercedsunstar.comSeptember 26, 2014
http://www.mercedsunstar.com/2014/09/26/3870153/flier-with-serial-litigants-photo.html?sp=/99/215/
If Atwater resident Aurora Cervantes, a serial litigant who’s sued 14 Merced County businesses, walks through a popular shopping center on Bellevue Road, she might be in for a big surprise.
Hanging in the window of several Atwater businesses is a picture of Cervantes’ smiling face.
Bold-lettered words at the top of the flier ask, “Has this woman sued your business yet?” followed by the name of her Stockton-based attorney, Daniel Malakauskas.
Dozens of Atwater businesses have banded together to try to protect themselves against Cervantes, who they fear may target them next. A Merced Sun-Star and Modesto Bee series, “Taking a Stand vs. Taking Advantage,” exposed a number of serial litigants, including Cervantes, who use the well-intentioned Americans with Disabilities Act laws to sue countless businesses.
A Sun-Star investigation revealed that Cervantes had sued 21 businesses in Merced and Stanislaus counties as of Aug. 16, the majority of them in her hometown of Atwater.
Cervantes could not be reached for comment Friday.
Malakauskas told the Sun-Star in a previous email that he’s filed about 55 ADA lawsuits on behalf of disabled clients throughout state within the past year. He said the ADA law was enacted in 1990 and businesses have had more than 20 years to become compliant.
“Nevertheless, business owners have remained apathetic to the rights of the disabled. Enough is enough,” Malakauskas wrote in the email. “They say that honey attracts more flies than vinegar, however, unfortunately, in my experience, when it comes to business owners and complying with the ADA, the only thing that motivates them is the fly swatter.”
The flier featuring Cervantes’ picture, the source of which is unknown, first surfaced in Atwater last month. One business owner displayed it in his store’s front window and passed out 15 copies to neighboring businesses.
The 20-year business owner, who asked to remain anonymous for fear of being sued by Cervantes, said the flier sends a message to her loud and clear: “We know who you are and what you’re going to do,” he said. “You better stay away.”
Dean Louis, owner of Atwater Glass, said a number of stores in his Bellevue Road shopping center received copies of the flier. Louis, 55, bought the property, which includes Atwater Glass and three other businesses, in 2007.
“The flier is going around to all the local businesses,” Louis said. “I think it’s going to alienate her from the community. It’s sad that they’ve gone to these measures to make people aware.”
Without waiting to be slapped by an ADA lawsuit, Louis said he spent $3,000 to re-stripe the plaza’s parking lot and $400 to add blue signs for disabled parking. Those costs are in addition to $100,000 he spent on a new roof for the 1960s-era building.
“The only way to stop it is to get up to code,” he said. “It’s made me more aware that I have to do it.”
Hearing about the wave of ADA lawsuits in Merced County has local business owners on edge, Louis said. Most businesses don’t know how to become compliant with the law, he added, because there are no agencies checking for ADA compliance, unlike health or fire department inspections.
“If you’re not compliant, how do you know until you’re sued?” Louis said. “Nobody’s explained that law to anybody. We should be given a chance to upgrade and not just sued right off the bat.”
Expert: ADA law needs changes
A San Francisco-based ADA defense attorney, who grew up in Merced, said he’s seen a steady increase in the number of ADA lawsuits – especially in California.
“California has state laws that make it particularly attractive for ADA plaintiffs to bring lawsuits here,” said Stuart K. Tubis, an attorney with the law firm Jeffer Mangels Butler & Mitchell. “Not only can they get attorney fees for the plaintiff, but they can get statutory damages of $4,000 per visit.”
Until there are significant changes to the legislation, Tubis said, businesses will continue to be the target of “career ADA plaintiffs,” some of whom file hundreds of cases at a time. Some businesses are forced to close their doors, while others pay settlements to avoid an expensive battle in court.
“Until the law is changed, there’s not a lot that can be done to fend off these lawsuits other than businesses trying their best to be fully compliant,” Tubis said, adding that the law is open to abuse and often difficult to understand.
Tubis said the ADA law was written under the philosophy that less government is better and private citizens and their attorneys would be better at enforcing it. A few policy changes could improve the law: creating a government agency to inspect businesses for ADA issues or giving owners time to fix violations before being sued.
“I would provide a warning period that allows the business a reasonable time to make the improvements or repairs needed,” he said. “Businesses have good intentions and the last thing they want to do is make things more difficult for people with disabilities. They all recognize it’s something that’s important.”
Sharing ‘a warning’
One downtown Atwater business owner and longtime resident said he believes the law is well-intentioned, but flawed.
“This is incredibly abused,” said Eric Lee, owner of Lee Insurance Agency. Lee said he received a handful of fliers with Cervantes’ picture earlier this month and distributed copies to his business associates.
“I will share this with individuals I do business with as a warning to them,” he said. “They are scamming people on what I believe is a flawed law. Look at what Cervantes has already done.”
In addition to lawsuits in Turlock and Merced, Cervantes has sued 11 Atwater businesses including Brook’s Ranch restaurant, Little Caesars Pizza, Almond Tree Restaurant, Quick N Snappy Food and Liquor, Sure Stop Market and Fosters Freeze.
The lawsuits filed by Cervantes, who claims to suffer from lupus and depression, usually say she was denied access to the businesses because of a lack of signage for disabled parking spots and no pavement markings.
Lee said he hopes getting the flier out to businesses helps them avoid being Cervantes’ next target.
“People are happy that someone is taking the time to publicize this,” he said, adding that changes need to be made to the ADA law. “This stuff has to stop. This has got to change, and it’s got to change at the political level.”
