Orlando Garcia v. Guadalupe Alcocer, in individual

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ORLANDO GARCIA,
Plaintiff-Appellant,
v.
GUADALUPE ALCOCER, in individual
and representative capacity as Trustee of
The Lancor Trust dated November 23,
1976 and of The Trust C (Bypass Trust) of
The I.C. Alcocer Trust dated 6/17/71;
DIGITAL CURRENCY SERVICES,
INC., a California corporation,
Defendants-Appellees,
and
SU CASA DE CAMBIO, INC., a
California corporation; DOES, 1-10,
Defendants.
No. 22-55183
D.C. No.
2:20-cv-08419-VAP-JEM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief District Judge, Presiding
FILED
DEC 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Submitted December 6, 2022**
Pasadena, California
Before: BEA, IKUTA, and CHRISTEN, Circuit Judges.
Orlando Garcia appeals the district court’s award of attorney’s fees against
him in his unsuccessful Americans with Disabilities Act (ADA) / Unruh Act action
against Defendant-Appellees Guadalupe Alcocer and Digital Currency Services,
Inc. After Garcia filed this suit, two of his other ADA / Unruh Act cases were
dismissed on standing grounds. Garcia continued to litigate, and after a one-day
evidentiary hearing, the district court dismissed this suit for failure to establish
standing. Because the dismissal of his earlier cases gave Garcia notice of the
standard for establishing Article III standing in this type of case and his testimony
as to standing was not credible, the district court awarded attorney’s fees. Garcia
appeals only the court’s order awarding attorney’s fees. We have jurisdiction, see
28 U.S.C. § 1291, and we affirm.
We review fee awards for abuse of discretion. Kohler v. Bed Bath & Beyond
of Cal., LLC, 780 F.3d 1260, 1263 (9th Cir. 2015). 42 U.S.C. § 12205 gives courts
discretion to award “a reasonable attorney’s fee” to prevailing parties in ADA
litigation. However, a court may award a prevailing civil rights defendant
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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attorney’s fees only if the court “finds that [the plaintiff’s] claim was frivolous,
unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly
became so.” Hughes v. Rowe, 449 U.S. 5, 15 (1980) (quoting Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)).
1. Garcia challenges the fee award on two grounds: (1) D’Lil v. Best
Western Encina Lodge & Suites, 538 F.3d 1031 (9th Cir. 2008), and Civil Rights
Education & Enforcement Center v. Hospitality Properties Trust, 867 F.3d 1093,
1101 (9th Cir. 2017) [CREEC] provided a colorable legal basis for Garcia’s
standing theory; and (2) the district court improperly awarded fees due to its
unfavorable impression of Garcia’s litigation history. Neither argument
demonstrates that the district court abused its discretion.
In D’Lil, we held that to establish “actual or imminent injury” for the purposes
of Article III standing, an ADA plaintiff must plead “an intent to return . . . and a
desire to visit the accommodation if it were made accessible.” 538 F.3d at 1037.
Garcia invokes D’Lil because the court there held that an ADA plaintiff’s litigation
history, alone, is not a basis for finding that the plaintiff lacks credibility. See id. at
1040. In CREEC, we held that ADA plaintiffs can assert tester standing when their
“intent to visit” an establishment “renders their harm ‘actual or imminent, not
conjectural or hypothetical.’” 867 F.3d at 1099 (quoting Lujan v. Defs. of Wildlife,
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504 U.S. 555, 560 (1992)). Garcia invokes CREEC because the court there
discouraged giving “talismanic weight” to the word “return” and clarified that
secondhand knowledge of a barrier could be enough to establish standing where the
plaintiff had the actual intent to visit the establishment once the barrier was removed.
Id. at 1100. Although D’Lil and CREEC support Garcia’s argument that civil rights
standing is broad, neither D’Lil nor CREEC held that non-credible assertions of intent
to return to a defendant’s establishment are enough to establish ADA standing. The
district court did not abuse its discretion in determining that neither case provided a
colorable legal basis supporting Garcia’s standing.
In the context of Defendants’ fee motion, the district court relied on Garcia’s
litigation history only to show that he was on “notice that the same issue [of standing]
would arise in this case.” Garcia is correct that D’Lil cautioned against the use of past
ADA litigation as the sole basis for credibility determinations, 538 F.3d at 1040, but
D’Lil did not speak to the use of litigation history to show that the defendant was on
notice that a particular legal argument was frivolous, unreasonable, or groundless.
Here, the district court’s credibility determination did not depend on Garcia’s
litigation history. Rather, the district court found Garcia’s stated intent to return was
not credible because: (1) he visited Defendants’ store only once; (2) he testified that
he does not have any use for check-cashing stores; (3) Garcia had not returned to any
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of the 14 Los Angeles check-cashing stores he had sued; (4) Defendants’ store is 10.5
miles from his home and over an hour away on public transit; (5) there were check-
cashing stores closer to Garcia’s home; and (6) Garcia had an account with a bank that
did not charge him for cashing checks and had a branch within half a mile of his
home.
The district court relied on Garcia’s litigation history to show he was on notice
that his legal arguments would not succeed. It found that “two of Plaintiff’s ADA
lawsuits . . . were dismissed for lack of standing . . . months before the [evidentiary
hearing] in this matter took place.” Those lawsuits share pertinent similarities with
this case. In Garcia v. 1971 Fateh, LLC, the court dismissed Garcia’s claims against
an Indian restaurant for failure to allege standing, in part because Garcia asserted
standing based on his intent to return and then incongruously testified that he “doesn’t
remember ever eating Indian food” and that the Indian restaurant would be his “‘last’
choice.” No. 2:20-CV-07661-SVW-AS, 2021 WL 3556674, at *3 (C.D. Cal. Apr. 21,
2021). In Garcia v. Digital Currency Services, Inc., the court dismissed Garcia’s
claims against a check-cashing store, finding that Garcia failed to demonstrate an
intent to return to the business because he “has visited 14 check cashing stores and has
not returned to any of them.” Order Granting Motion to Dismiss at 4–5, No. 2:20-cv-
8986-DSF (C.D. Cal. July 12, 2021), ECF No. 29. The orders of dismissal in 1971
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Fateh and Digital Currency explained in detail the ADA standing requirements under
binding Ninth Circuit and Supreme Court caselaw and why Garcia failed to meet those
requirements. Accordingly, the district court in this case did not improperly consider
Garcia’s litigation history under D’Lil, or otherwise abuse its discretion in concluding
that Garcia was on notice that his assertion of standing was frivolous, unreasonable,
and groundless.
2. For the first time on appeal, Garcia urges the panel to extend the Noerr-
Pennington doctrine to prevent fee-shifting in ADA cases. See Sosa v. DIRECTV,
Inc., 437 F.3d 923, 929 (9th Cir. 2006) (noting that the Noerr–Pennington doctrine
provides that “those who petition any department of the government for redress are
generally immune from statutory liability for their petitioning conduct” (emphasis
added)). Although Garcia did not raise the Noerr-Pennington issue below, we
consider it within our discretion because it is a pure question of law. See Emmert
Indus. Corp. v. Artisan Assocs., Inc., 497 F.3d 982, 986 (9th Cir. 2007).
In Sosa, we extended Noerr-Pennington immunity to prelitigation settlement
demands. 437 F.3d at 931–32. We reasoned that imposing liability for attempts to
settle legal claims burdened a plaintiff’s First Amendment right to petition. See id. at
930–32. But unlike imposing liability based on prelitigation demands or lawsuits, fee
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shifting does not punish or make a party liable for (allegedly) illegal conduct. It
merely requires non-prevailing parties to bear litigation costs.
AFFIRMED.
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