Weekly Law Resume - March 22, 2012: ADA Plaintiff Subject to Breach of Contract Claim For Suing a Business Owner a Second Time

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Thomas Mundy v. Laura D. Lenc Court of Appeal, Second Appellate District (February 29, 2012)

Plaintiff Thomas Mundy is confined to a wheelchair. In June 2009, he went to a bar owned by Laura Lenc and could not use the restroom because it was not equipped with two adjacent grab bars. He was also unable to use the restroom mirror because it was mounted too high above the floor. Represented by attorney Morse Mehrban, Mundy sued Lenc for violating Civil Code sections 51, 54 and 54.1 because the restroom did not comply with the design accessibility standards set forth in the Americans with Disabilities Act (ADA). The parties entered into a settlement wherein plaintiff received $2,500, his attorney received $3,000 and Lenc received a general release of known and unknown claims. A year later, Mundy sued Lenc once again under Civil Code section 51 again claiming violation of the ADA. This time, he claimed that Lenc’s facility did not provide him with van-accessible handicap parking. In response, Lenc filed a cross-complaint for breach of the settlement agreement, false promise, intentional misrepresentation, negligent misrepresentation and abuse of process. Mundy responded by filing a special motion to strike. The trial court denied the motion and ordered the parties to submit briefs regarding Lenc’s entitlement to attorney fees as the prevailing party. Lenc was subsequently awarded $21,506 in attorney fees against Mundy and Mehrban based on the trial court’s finding that Mundy’s motion was frivolous. An appeal followed.

On appeal, Mundy and Mehrban argued that the trial court’s orders must be reversed because: the claims in Lenc’s cross-complaint arose from acts in furtherance of Mundy’s right of petition and Lenc failed to demonstrate a probability of prevailing on her causes of action; and Mundy’s special motion to strike was neither frivolous nor brought in bad faith, as a consequence, there was no basis for an award of attorney fees.

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