Langer v. Kiser

495 F.Supp.3d 904

Chris LANGER, Plaintiff,

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.

Case No.: 3:18-cv-00195-BEN-NLS

United States District Court, S.D. California.

Signed September 30, 2020

Filed October 16, 2020

Isabel Rose Masanque, Christopher A. Seabock, Potter Handy LLP, Bradley Alan Smith, Potter Handy, Matt Valenti, Valenti Law APC, San Diego, CA, for Plaintiff.

Samy S. Henein, Suppa Trucchi and Henein, San Diego, CA, for Defendants.

ORDER DENYING PLAINTIFF'S MOTION IN LIMINE NO. 1 TO EXCLUDE

[ECF Nos. 65, 66]

ROGER T. BENITEZ, United States District Judge

I. INTRODUCTION

Plaintiff Chris Langer ("Plaintiff") brings this action under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et. seq. (the "ADA"), against Defendants Milan and Diana Kiser, as individuals and in their representative capacities as trustees of the Milan and Diana Kiser Revocable Trust dated August 19, 2003 (collectively, "Defendants") for discrimination by failing to provide full and equal access to the parking lot they own that Plaintiff was unable to access due to his disabilities. ECF No. 1.

Before the Court is Plaintiff's Motion in Limine No. 1 to Exclude Evidence of Plaintiff's Litigation History (the "Motion"). ECF No. 65. Defendant opposed Plaintiff's Motion. ECF No. 66. Plaintiff did not file a reply brief.

The motions were submitted on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1). After considering the papers submitted, supporting documentation, and applicable law, the Court DENIES Plaintiff's Motion.

II. BACKGROUND

A. Statement of Facts

Plaintiff Chris Langer ("Plaintiff"), is a paraplegic who uses a wheelchair for mobility. ECF No. 24-2 at 1:24. He has a disabled person parking placard and a "specially equipped van with a ramp that deploys out of the passenger side." ECF No. 1 at 2:6-9. On February 27, 2017, Plaintiff went to the 1 Stop Smoke Shop (the "Smoke Shop") and Gour Maine Lobster shop/Wallpaper store (the "Lobster Shop") "to shop at the Smoke Shop and to check for pricing at the Lobster Shop." ECF No. 24-1, Declaration of Chris Langer, at 1:27-2:1-2. Plaintiff asserts that he encountered barriers that prevented him from patronizing the businesses because there were no compliant handicap-accessible parking spaces. ECF No. 1 at 4:14-21. Due to the inaccessible condition of the parking lot, Plaintiff argues he was denied "full and equal access" to the property, which caused him "difficulty and frustration." ECF No. 1 at 5:18-19. Plaintiff states that he (1) lives "about 10 minutes away from the Smoke Shop and the Lobster Shop" (2) "would like the ability to safely and independently park and access the Businesses," and (3) plans to visits the business "on a regular basis whenever" he is in the area. ECF No. 24-1 at 2:4-12. Although Plaintiff states he would like to visit the Smoke Shop, see id. , there is no evidence in the record that Plaintiff smokes.

Defendants are the trustees of the Milan and Diana Kiser Revocable Trust, which owns the mixed-use real property located at 3002 Barnett Ave., San Diego, California 92110 (the "Property"). ECF No. 25 at 3:8-11. The Property consists "of both residential and commercial units" and is surrounded by one parking lot on the East side (the "East Lot") and another parking lot on the West side (the "West Lot"). Id. at 3:10-11. Defendants lease the East Lot, which may only be accessed through gated entrances at the front and back, to residential tenants. ECF No. 25 at 3:14-17. At both entrances to the East Lot, signs are posted stating, "OPEN PUBLIC PARKING PROHIBITED – NO TRESPASSING." Id. at 3:17-20. "The owners of the Smoke Shop and Lobster Shop each have a single parking space in the East lot, but for personal use only." Id. at 3:15-16. The West Lot, on the other hand, "is not leased to the 1 Stop Smoke Shop, rather it is leased to an auto repair shop," and "[t]here are no signs indicating that any of the spaces in the West lot are for either 1 Stop Smoke Shop or Gour Maine Lobster customers." ECF No. 25-1 at 3:6-9 (emphasis in original). The sign in the Smoke Shop window that says "PARKING" has an arrow pointing to the left of the store and "points to the West towards the alley or street parking on the next block." Id. at 3:18-19. Defendants allege that by attempting to park in the East Lot, a lot for Defendants' residential tenants, Plaintiff trespassed in violation of the signs at each entrance, prohibiting public parking. ECF No. 20 at 2.

B. Procedural History

On January 29, 2018, Plaintiff filed a Complaint in federal court alleging violations of the ADA and Unruh Civil Rights Act. ECF No. 1 at ¶¶ 44–60. Plaintiff's complaint requests (1) "injunctive relief, compelling defendants to comply" with the ADA; (2) "[d]amages under the Unruh Civil Rights Act, which damages provide for actual damages and a statutory minimum of $4,000"; and (3) "[r]easonable attorney fees, litigation expenses and costs of suit, pursuant to 42 U.S.C. § 12205 ; Cal. Civ. Code § 52." ECF No. 1 at 11:8-17.

On March 23 and 26, 2018, Defendants filed answer to the complaint. See ECF Nos. 7, 8. On November 19, 2018, the Court entered an Order granting Defendants Motion for Leave to Amend Answer and Add First Counterclaim for Trespass. ECF No. 19. On November 21, 2018, Defendants filed their Amended Answer and Counterclaim. ECF No. 20. On November 12, 2019, Plaintiff filed an answer to the counterclaim against him. ECF No. 55.

On February 10, 2020, the Final Pretrial Conference for this case was held before the Hon. Roger T. Benitez, and the Minute Order for this conference provided that (1) motions in limine must be filed by March 9, 2020 and (2) jury instructions must be filed by April 27, 2020. ECF No. 62.

On March 9, 2020, Plaintiff timely filed his Motion in Limine No. 1 to Exclude Plaintiff's Litigation History. ECF No. 65. On March 23, 2020, Defendants filed an opposition. ECF No. 66. Plaintiff has not filed a reply brief.

III. LEGAL STANDARD

Rulings on motions in limine fall entirely within this Court's discretion. United States v. Bensimon , 172 F.3d 1121, 1127 (9th Cir. 1999) (citing Luce v. United States , 469 U.S. 38, 41-42, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) ). Evidence is excluded on a motion in limine only if the evidence is clearly inadmissible for any purpose. Mathis v. Milgard Manufacturing, Inc. , 2019 WL 482490, at *1 (S.D. Cal. 2019). If evidence is not clearly inadmissible, evidentiary rulings should be deferred until trial to allow questions of foundation, relevancy, and prejudice to be resolved in context. See Bensimon , 172 F.3d at 1127 (recognizing that when ruling on a motion in limine, a trial court lacks access to all the facts from trial testimony). Denial of a motion in limine does not mean that the evidence contemplated by the motion will be admitted at trial. Id. Instead, denial means that the court cannot, or should not, determine whether the evidence in question should be excluded before trial. Id. ; see also McSherry v. City of Long Beach , 423 F.3d 1015, 1022 (9th Cir. 2005) (rulings on motions in limine are subject to change when trial unfolds).

IV. DISCUSSION

Plaintiff advances three primary arguments in his Motion. First, he argues that his litigation history is inadmissible, and as such, should be excluded. ECF No. 65-1 at 2:14-17. Second, he argues that any argument regarding tester standing should also be excluded as both irrelevant and creating a substantial danger of undue prejudice. Id. at 6:9-12. Third, Plaintiff argues that his litigation history is not an appropriate basis for questioning the sincerity of Plaintiff's intent to return. Id. at 9:1-2. Defendant responds that (1) Plaintiff's litigation history is admissible for purposes of impeachment, ECF No. 66 at 4:12-15, (2) evidence of Plaintiff's prior litigation history is not unduly prejudicial, id. at 8:25-26, and (3) whether Plaintiff intends to return is "highly probative" of Plaintiff's credibility, and as such, merits any time it may take to cross-examine Plaintiff on that issue, id. at 10:7-16. The Court agrees that Plaintiff's litigation history should not be excluded from trial and may be admissible for purposes of impeachment.

"The Americans with Disabilities Act (ADA) was signed into law by President George H. W. Bush on July 26, 1990." H.R. REP. No. 115-539, at 6-7 (2018) (citing 42 U.S.C. § 12101, et seq. ). Its purpose was "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." Id. Although enacted with the most laudable of purposes, the ADA has regrettably produced unintended consequences, namely, extortion suits.¹ In response to vexatious litigants' perversion of the ADA, on February 15, 2018, Congress even tried to pass the "ADA Education and Reform Act of 2017," which attempted to address perceived abuses of the ADA. ADA Education and Reform Act of 2017, H.R. 620, Committee of the Whole House, 115th Cong., Second Session, 1198-1200 (2018). Although it passed the House of Representatives a vote of 225-192, see id. , it was received in the Senate on February 26, 2018, and has not been passed into law. 164 Cong. Rec. S1219-03, S1219 (2018). The House Report for this bill noted that "[t]he ADA has, at least for these serial plaintiffs, been changed from a remedial statute aimed at increasing accessibility into a way for lawyers to make money." H.R. REP. 115-539, LEGISLATIVE HISTORY OF THE ADA EDUCATION AND REFORM ACT OF 2017 (2018). "Businesses sued under the ADA ... are almost uniformly willing to fix their properties without the expense and hassle of litigating in federal court." Id. Thus, "[h]aling them into court regardless of their...