The only remedies available under Title III of the ADA are injunctive relief and attorneys’ fees and costs.  Consequently, a defendant who undertakes remedial efforts mid-stream in litigation to eliminate ADA violations can render the plaintiff’s ADA claim moot.  The defendant in Sandi Rush v. Islands Restaurants, LP, Southern District of California Case No. 3:11-cv-01312-LAB-DHB did just that, repaving its parking lot to address alleged ADA violations related to its slope. 

When the plaintiff caught wind of the repaving work, she asked the court to order the defendant to stop its remedial efforts, claiming she was being “irreparably harmed” by supposed “spoliation of evidence.”  In denying the requested restraining order, the court issued an opinion criticizing both plaintiff and her counsel. 

The court deemed the plaintiff’s request “frivolous on many levels.”  Because the alleged ADA violations in the parking lot had been well documented prior to the remedial work, it was “clear beyond any reasonable doubt that no spoliation of evidence [was] occurring.”  Instead, the defendant was simply providing the plaintiff with the relief her lawsuit demanded. 

The court explained that that the plaintiff  “ought to be glad” that the remedial work was occurring, not “seek[ing] to block removal of barriers simply so that the lawsuit can be prolonged.”  Plaintiff was asking the court to “require[] the restaurant to maintain its parking lot in a condition that (allegedly) violates the ADA.”  The court could not heed such a request because doing so would expose the restaurant to other lawsuits and was “decidedly not in the public interest.”  In seeking to restrain remedial efforts, both plaintiff and her counsel evidenced a “misunderstand[ing] [of] the purpose of ADA litigation.”

The opinion, rendered by U.S. District Court Judge Larry Alan Burns, confirms that defendants can undertake remedial efforts to successfully moot a plaintiff’s ADA claims.  It is also highly critical of a prolific ADA plaintiff and her counsel’s motives, suggesting they were litigating for “its own sake” and not “to vindicate legal rights.”