‘If I am guilty of anything, it’s of being a good lawyer and advocating for the rights of the disabled,” proclaims Lynn Hubbard III of Chico, who has filed, by his own reckoning, 2000 lawsuits in the past ten years in California, many in San Diego County. Hubbard and his small staff make their money by suing businesses in federal court for violations of the 1990 Americans with Disabilities Act.
“I have been investigated by the state bar on 14 occasions,” he says, “and it has said there have been no violations of the code of ethics. I have had lawyers who thought they could prove me to be a vexatious litigant [a lawyer suing maliciously for the purpose of annoying or embarrassing an opponent],” says Hubbard. The charges haven’t stuck, as his record with the State Bar of California shows. A district attorney in Shasta County tried to nail him, “but he couldn’t make a case,” boasts the glib Hubbard, who rakes in the dough on legal fees and settlements.
About 95 percent of the companies he sues settle out of court, “and in 99.9 percent of the cases they agree to make changes” to conform to the legislation, he asserts.
But few attorneys and even fewer business owners share Hubbard’s lofty opinion of his own achievements. “It’s a business for him,” says Mia Severson, a San Diego attorney who recently got Hubbard to drop a case against her client, a restaurant in Chula Vista. “He brags that his overhead is $31,000 a month.”
There are several other California lawyers who file multiple suits charging violations of disabilities laws. One is San Diego attorney Theodore Pinnock, himself disabled, who has been sending letters to and filing suits against local enterprises since 1992. In 2007, federal court judge Jeffrey Miller imposed sanctions against Pinnock, ordering him to complete four hours of ethics and professional-responsibility training classes approved by the state bar. Pinnock had sued a business that hadn’t been open for two years. He had to pay the owner’s $15,000 legal fees.
Hubbard often targets San Diego because his Imperial Beach parents often were his plaintiffs, purportedly going to businesses and finding violations. (His mother recently died.) Hubbard says both had disabilities that qualified them to be plaintiffs under the 1990 law.
On October 29, one A.J. Oliver filed suit against Marisol Villasenor and the restaurant she owns, Agave Grill in Chula Vista. Hubbard was the attorney. Among numerous things, the complaint stated that signage was not correct, entrance mats were not secure, there was no seating designated for the disabled, the pipes under the lavatory were improperly wrapped, and the toilet tissue and disposable seat cover dispensers obstructed use of the side grab bar.
Lori Pettigrew, who is Villasenor’s key assistant, says, “None of the things alleged in the complaint were true.” Oliver, who uses a wheelchair, claimed he was there twice with a friend who also uses one. She checked restaurant employees; they were certain the two had not been in the restaurant together. “It was clear it was a shakedown. We don’t want to pay blackmail money.”
Severson did her homework, discovering that Oliver had filed 20 similar San Diego lawsuits with Hubbard as his attorney. She contacted defense attorneys, who generally said they had settled the cases. “The magistrate put pressure on my client to settle, but I insisted on deposing the guy because my client said he had never been in the place,” she says.
On November 4, she deposed Oliver with Hubbard there as his attorney. It was pathos. Oliver, who can neither read nor write and suffered a stroke 13 years ago, could not remember the name of the restaurant, where it was located, what it looked like outside or inside, or whether there were signs for the benefit of the disabled. Severson pressed him on the 20 suits that had been filed with his name as plaintiff, asking if he could remember filing suits against, or being inside, such places as KFC, Moneytree check cashing, Wienerschnitzel, Rally’s, Red Lobster, and Mervyns. He said he had not filed such suits. In fact, he couldn’t remember filing any suit against Villasenor and the Agave Grill. And he claimed he had never received any money for all the suits that he had filed.
Hubbard quickly dropped the suit. “Somebody changed Oliver’s medication,” claims Hubbard. “It was the worst deposition I have ever been to. He didn’t remember anything. I knew then there was no way we could prevail in that suit.”
But, warns the lawyer, “That restaurant was grossly out of compliance. It has made substantial changes, but there are still problems. I am waiting for another client to go in there and get pissed, and I might sue again.”
Severson points out that Hubbard would have to go fishing for another plaintiff. “The depth of his lack of ethics knows no bounds,” she says.
“He wanted to settle for $5000,” says Pettigrew. Hubbard doesn’t deny that but says the defense was willing to pay $1000. Severson says there were negotiations, but they were confidential and Hubbard is not supposed to talk about them.
“My client fixed any problems,” says Severson. “We are not necessarily agreeing that there were problems.” The Agave Grill hired an expert, who found only small infractions. For example, the toilets had to be raised by a quarter of an inch, she says.
For a number of reasons, Villasenor will inform the bar of Hubbard’s conduct, says Severson.
From time to time, bills are introduced in the legislature to help businesses hit with disability act lawsuits. In fact, one was introduced last year by an assemblyman from Chico, Hubbard’s home base. But the bills haven’t gone anywhere, says Severson.
There are people who defend lawyers that file multiple disability act suits. “The truth is, that in a lot of cases, where you get relief is by suing,” says San Diegan William Stothers, deputy director of the Center for an Accessible Society. “Nobody enforces the act, so if places are not accessible, you knock on the door, say, ‘This isn’t right, and you have to fix it.’ ” Often, a lawsuit is necessary. “You can complain to the Justice Department, but it only does a minuscule number of cases,” and those are generally against large companies. However, he concedes, “There are sharks out there who file a ton of these things.”
Agrees Margaret Johnson of Sacramento, advocacy director of Disability Rights California, “The only real enforcement of disability cases is people doing something individually; some write letters, others file lawsuits. We feel fortunate there are lawyers out there, although some may be abusing the system.”