Law Office of Rick Morin, PC

Jose Velez is a relatively new entrant to the world of frequent ADA litigation in California. A few years back, Jose Velez sued Il Fornaio in the Southern District of California for typical ADA violations. Il Fornaio, to their credit, moved to dismiss Jose Velez’s lawsuit.

The District Court dismissed Jose’s lawsuit against Il Fornaio. The court ruled that Jose Velez did not have standing under the ADA to sue Il Fornaio. The Court specifically cited that Jose Velez did not sufficiently plead that his alleged disability subjected him to the protections under the ADA. Jose Velez appealed.

On June 11, 2020, the Ninth Circuit Court of Appeals handed Jose Velez a victory. The Court of Appeals vacated the order dismissing Jose Velez’s lawsuit and remanded it back to the District Court.

The Court of Appeals Ruled that Jose Velez is Disabled

One primary reason the District Court dismissed Jose Velez’s lawsuit was that he did not allege he was disabled under the ADA.

In his original complaint, Jose Velez complained that he was morbidly obese. The District Court was not impressed with Jose Velez’s alleged disability. However, the Ninth Circuit held that Jose Velez sufficiently alleged that his morbid obesity “substantially limits his ability to walk and stand.”

Under controlling Ninth Circuit authority, these allegations place Jose Velez Under the protections of the ADA.

An impairment is a disability . . . if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.

Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014)

Jose Velez’s Lawsuit Against Il Foranio Will Continue

Having ruled that Jose Velez’s alleged disability qualifies him to sue under the ADA, the Ninth Circuit also found that the remaining portions of Jose Velez’s lawsuit was drafted correctly.

The Court of Appeals sent the lawsuit back down to the District Court for further proceedings. In other words, the lawsuit against Il Fornaio will continue.

Here is a link to the decision: https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/06/11/19-55344.pdf

Please contact my office at 916-333-2222 if you are facing a lawsuit by a frequent ADA litigant such as Jose Velez.