Case 2:20-cv-01891-MWF-E Document 77 Filed 09/29/22 Page 1 of 8 Page ID #:672

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ORLANDO GARCIA, )) Case No. CV 20-01891-MWF (Ex) Plaintiff, ) 12 ) FINDINGS OF FACT AND v. ) CONCLUSIONS OF LAW 13 ) ) 14 )

STEVE EDELSON, SONNY ROUEL, )

15 JONATHAN SANDOVAL, JOSUE ) ) 16 ISAIAS MIRANDA JUAREZ, and DOE )

DEFENDANTS 1–10, )

17 ) Defendants. ) 18 ) ) 19

20 21 This matter came for trial before the Court sitting without a jury on October 19–20, 22 2021. Following the presentation of argument, the matter was taken under submission. 23 Having carefully reviewed the record and the arguments of counsel, as presented at 24 the hearing and in their written submissions, the Court now makes the following findings 25 of fact and reaches the following conclusions of law pursuant to Rule 52 of the Federal 26 Rules of Civil Procedure. Any finding of fact that constitutes a conclusion of law is also 27 hereby adopted as a conclusion of law, and any conclusion of law that constitutes a 28 finding of fact is also hereby adopted as a finding of fact. -1- Case 2:20-cv-01891-MWF-E Document 77 Filed 09/29/22 Page 2 of 8 Page ID #:673

1 The verdict is returned in favor of Defendants. Plaintiff’s purported intent to return 2 to Defendants’ property is not genuine. Accordingly, Plaintiff lacks Article III standing 3 and cannot pursue relief under the ADA in federal court. 4 5 I. FINDINGS OF FACT 6 A. The Parties 7 1. Plaintiff Orlando Garcia is a California resident who lives in Highland Park, 8 a neighborhood in northeast Los Angeles, California. 9 2. Garcia suffers from Cerebral Palsy and is a disabled person under the 10 Americans with Disabilities Act (“ADA”). 11 3. Garcia uses a motorized wheelchair for mobility. 12 4. Garcia travels throughout the Los Angeles area via public transportation. 13 5. Garcia earns a living as an “ADA Tester.” In other words, Garcia visits 14 public entities to assess their compliance with access requirements set forth in the ADA. 15 If Garcia determines that a place is not in compliance, he typically files a lawsuit 16 requesting monetary and injunctive relief. 17 6. Defendants Steve Edelson and Sonny Rouel own real property located at 18 2506 W. Pico Blvd., Los Angeles, California. 19 7. The real property owned by Defendants is leased to tenants, including tenants 20 that operate a business known as the Nina Religion store. 21 8. The Nina Religion store sells candles and various religious items. 22 B. Garcia’s travel on January 23, 2020 23 9. On January 23, 2020, Garcia traveled roughly one hour, taking both a train 24 and a bus, to the vicinity of the Nina Religion store. 25 10. Garcia did not travel to this vicinity with the intent to shop at the Nina 26 Religion store. Rather, Garcia made the hour-long trip to visit the Pico Outlet, a nearby 27 general outlet store. 28 -2- Case 2:20-cv-01891-MWF-E Document 77 Filed 09/29/22 Page 3 of 8 Page ID #:674

1 11. Garcia’s friend, “Frank,” recommended that Garcia visit the Pico Outlet. 2 Frank made this recommendation at some point in the 1990s. 3 12. After receiving this recommendation, Garcia waited roughly 20–30 years 4 before visiting the store. 5 13. Garcia traveled to the Pico Outlet in search of a certain shade of charcoal 6 gray pants made by the clothing company Dickies. Garcia used to wear this color pant in 7 the 1970s and 1980s, but at some point in the last 10 years, Dickies discontinued making 8 pants in this specific color. Garcia thought the Pico Outlet may have excess stock and was 9 hopeful they would carry the certain color gray that he prefers. 10 14. On his trip, however, Garcia never entered the Pico Outlet because it was 11 non-compliant with ADA standards. Because of this, Garcia filed a lawsuit against the 12 store. 13 15. The lawsuit between Garcia and the Pico Outlet settled. Garcia does not 14 recall the terms of the settlement or when the settlement took place. Garcia does not know 15 what actions, if any, the settlement required the Pico Outlet to take concerning its ADA 16 compliance. Garcia has not returned to the Pico Outlet. 17 C. Garcia’s practices as an ADA Tester 18 16. Garcia has filed approximately 864 ADA lawsuits in federal court. 19 17. If a case is pending against a particular store, Garcia will not return to the 20 store until the case is resolved by judgment or by settlement. 21 18. Garcia does not have a method to track the status of cases where he is the 22 plaintiff. In other words, Garcia cannot independently verify whether one of his many 23 cases has been resolved or remains pending. 24 19. Garcia does not maintain any type of log or journal to document the locations 25 that he has visited or when he visited them. 26 20. Other than gaining information from his attorneys, Garcia has no way to 27 know which stores have corrected their ADA violations unless he personally visits the 28 store. -3- Case 2:20-cv-01891-MWF-E Document 77 Filed 09/29/22 Page 4 of 8 Page ID #:675

1 21. Garcia intends to relocate to Oakland, CA or San Jose, CA. He is actively 2 searching with the intent to buy property in either location. 3 22. Garcia has filed approximately 50 lawsuits against stores in Oakland, CA for 4 their lack of compliance with ADA standards. 5 23. Among the lawsuits filed in Oakland, at least one settled the week before 6 Garcia testified at trial. However, Garcia could not recall the name of the store or its 7 location. 8 D. Garcia’s encounter with the Nina Religion store 9 24. After Garcia visited the Pico Outlet, he visited the Nina Religion store with 10 hopes of finding a religious item, such as a candle or picture, that honored Saint Martin de 11 Porres. 12 25. Garcia also visited with the intent to check for ADA compliance. 13 26. Garcia entered the Nina Religion store but quickly left after it appeared that 14 the aisles were too narrow for him to maneuver his wheelchair. 15 27. Garcia did not attempt to speak with anyone inside the store before leaving. 16 28. Garcia would like to return to the Nina Religion store to browse around and 17 to check if the alleged violations have been remedied. 18 29. Based on the Court’s ability to observe Garcia as a witness, and applying the 19 authorities in the Conclusions of Law, the Court FINDS as a fact that Garcia’s purported 20 desire to return is not genuine, but rather an empty assertion made simply to prevail at this 21 trial. 22 23 II. CONCLUSIONS OF LAW 24 As with other civil rights statutes, a plaintiff must demonstrate Article III standing 25 to pursue relief under the ADA in federal court. Chapman v. Pier 1 Imports (U.S.) Inc., 26 631 F.3d 939, 946 (9th Cir. 2011) (en banc). To establish Article III standing, a plaintiff 27 must have suffered an injury in fact. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560– 28 61 (1992); D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008). -4- Case 2:20-cv-01891-MWF-E Document 77 Filed 09/29/22 Page 5 of 8 Page ID #:676

1 That injury must be both concrete and particularized as well as actual or imminent. Id. 2 There must be a causal connection between the injury and conduct complained of; and it 3 must be likely, not speculative, that the injury can be redressed by a favorable decision. 4 Id. When seeking injunctive relief under the ADA, “a real and immediate threat of 5 repeated injury” is also required. Chapman, 631 F.3d at 946 (quoting O'Shea v. Littleton, 6 414 U.S. 488, 496 (1974)). 7 “[A]n ADA plaintiff can show a likelihood of future injury when he intends to 8 return to a noncompliant accommodation and is therefore likely to reencounter a 9 discriminatory architectural barrier.” Id. at 950. But a plaintiff “lacks standing if he is 10 indifferent to returning to the store or if his alleged intent to return is not genuine.” Id. at 11 953. To determine whether a plaintiff has a genuine intent to return, Courts often examine 12 four factors: “(1) the proximity of the place of public accommodation to plaintiff’s 13 residence, (2) plaintiff’s past patronage of defendant’s business, (3) the definitiveness of 14 plaintiff’s plans to return, and (4) the plaintiff’s frequency of travel near defendant.” 15 Antonio v. Vanareth Kim Yi, No. 14-04323, 2015 WL 13603781, at *2 (C.D. Cal. Mar. 4, 16 2015) (collecting cases). 17 Garcia’s intent to return to the Nina Religion store is not genuine. This finding is 18 supported by the enumerated factors from Antonio and by a similar finding against Garcia 19 in Garcia v. Alcocer. See 2021 WL 5760300, at *2 (C.D. Cal. Dec. 1, 2021) (“the Court 20 finds that Garcia's demeanor and memory during his testimony undermines the credibility 21 of his intent to return.”). Here too, Garcia’s intent to return is undermined by his lack of 22 memory concerning the voluminous record of ADA cases to which he is a party, his 23 inability to track which cases have been resolved, and his newly expressed interest in 24 moving to Northern California. 25 Not a single factor from Antonio supports Garcia’s intent to return. The first factor 26 – proximity to the Nina Religion store – weighs against Garcia’s intent to return because 27 the journey from Garcia’s residence to the store takes roughly an hour and involves two 28 different forms of public transportation. Moreover, if Garcia relocates to Northern -5- Case 2:20-cv-01891-MWF-E Document 77 Filed 09/29/22 Page 6 of 8 Page ID #:677

1 California as he intends to do, the Nina Religion store will be hundreds of miles from 2 Garcia. Antonio, 2015 WL 13603781, at *2 (“If the plaintiff resides over []one hundred 3 miles away from the place of public accommodation, the distance subverts a professed 4 intent to return.”). 5 The second factor – past patronage – weighs against Garcia’s intent to return 6 because Garcia admits that he never visited the Nina Religion store before his trip on 7 January 23, 2020. Johnson v. MP Quail Chase LLC, No. CIV S-11-1275 KJM, 2013 WL 8 85373, at *4 (E.D. Cal. Jan. 8, 2013) (holding that a lack of past patronage “does not 9 support standing.”). Garcia testified that the only reason he decided to travel to the 10 vicinity of the Nina Religion store was to visit the Pico Outlet based on a recommendation 11 from his friend Frank, which he received some 20–30 years ago. Ironically, Garcia’s 12 memory of this recommendation stands in stark contrast to his lack of memory concerning 13 the details of the lawsuit he filed against the Pico Outlet. Garcia testified that the case 14 against Pico Outlet settled, yet he could not recall the terms of the settlement, when the 15 settlement took place, or what actions the settlement required the Pico Outlet to take 16 concerning its ADA compliance. And even though Garcia knows that the case against 17 Pico Outlet has settled, he has not returned to the store, nor did he express an intent to 18 return through his testimony. Molski v. Mandarin Touch Rest., 385 F. Supp. 2d 1042, 19 1046 (C.D. Cal. 2005) (“the Court finds that [plaintiff’s] litigation history undercuts his 20 credibility and belies an intent to return” because plaintiff’s “own track record 21 demonstrates that he rarely returns to the businesses that he sues.”). 22 The third factor – definitiveness of a plan to return – is perhaps the most critical 23 factor weighing against Garcia because his own testimony contradicts any plan to return. 24 Garcia testified that, as a matter of practice as an ADA Tester, if he files a lawsuit against 25 a particular store, he will not return to that store while the case is pending. However, 26 Garcia also testified that he has no independent practice of tracking which of his 864 cases 27 have been settled or otherwise resolved. Therefore, because Garcia refuses to return to a 28 store while a case is pending, but he has no practice of tracking whether any particular -6- Case 2:20-cv-01891-MWF-E Document 77 Filed 09/29/22 Page 7 of 8 Page ID #:678

1 case has been resolved, his plans to return to any store he has sued are necessarily 2 indefinite. 3 This indefiniteness is underscored by Garcia’s claimed interest in relocating to 4 Northern California. Garcia testified that he is currently looking for property in Oakland 5 or San Jose and is considering a permanent relocation. Garcia also admitted to already 6 filing approximately 50 ADA lawsuits in the Oakland area. These lawsuits necessarily 7 support his intent to relocate because, to have standing for relief under the ADA, Garcia 8 must intend to return to the businesses he sued in Oakland. Even if Garcia’s intent to 9 return to Oakland is not genuine, it will not help his cause in this action, as a propensity to 10 file frivolous lawsuits will weigh against any intent to return to the Nina Religion store as 11 well. Molski, 385 F. Supp. 2d at 1046 (“A serial plaintiff's extensive litigation history can 12 undermine his professed intent to return.”). 13 The fourth factor – frequency of travel – also weighs against Garcia’s intent to 14 return. Garcia did not visit the Nina Religion store because he was determined to shop for 15 religious items. Instead, Garcia was coincidentally in the vicinity of the store because he 16 was searching for a particular color of pants from the Pico Outlet. Garcia did not testify to 17 any future events, repeating or not, that would increase the likelihood Garcia would travel 18 to this area again. 19 For these reasons, Garcia’s intent to return to the Nina Religion store is not genuine. 20 Therefore, he lacks standing to pursue his claim. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// -7- ase 2:20-cv-01891-MWF-E Document 77 Filed 09/29/22 Page 8of8 Page ID #:679

I Il. CONCLUSION 2 Garcia lacks Article II] standing, depriving this Court of jurisdiction to adjudicate 3 claim. Accordingly, Garcia’s ADA claim is DISMISSED. 4 LET JUDGMENT BE ENTERED ACCORDINGLY.

6 || Dated: September 29, 2022. pe

MICHAEL W. FITZGERAL

7 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-8-