Page 3 of 5
Cable's prevailed at trial after Beardsley put forth a novel argument: that Molski had brought so many ADA lawsuits that he should be considered a business, not an individual, and thus is not qualified to collect damages under the state's Unruh Act. (An appeals court reversed the decision, and the outcome remains unresolved.)
But it was in an unusually blunt (and exhaustive) 2005 edict in another case that U.S. District Judge Edward Rafeedie, by declaring Molski a "vexatious litigant," all but put an end to what critics belittled as Molski's "reign of litigation terror" in the sprawling federal judicial district that stretches from Los Angeles to halfway up the Central Coast. Molski was prohibited from filing any more federal lawsuits in the jurisdiction without Rafeedie's approval.
But the judge was arguably even harsher with Frankovich. He accused him of teaming up with Molski and other "serial filers" to file a barrage of "cookie-cutter" lawsuits that were essentially identical "down to the typos." Frankovich had engaged in "a pattern of unethical behavior designed ultimately to extort money from businesses and their insurance companies," the judge said. He decried the lawyer's tactics as "bordering on extortionate shysterism" and prohibited the Frankovich firm from representing clients in the Central District without the judge's permission.
Rafeedie then referred Frankovich to the State Bar of California for possible disciplinary action.
Frankovich appealed the ruling, and a three-judge panel of the Ninth U.S. Circuit Court of Appeals heard oral arguments in April. But Frankovich is nervous. His personal attorney assured him that his appearance before the panel went well, but he isn't sure. "I wasn't comfortable with it; they kept pounding me."
If Rafeedie's condemnation stands, it means Frankovich will likely continue to be barred from involvement in any federal cases in the expansive Central District without the judge's express consent. But he's really worried about something else that an affirmative appeals court decision could prompt the state bar to impose sanctions, maybe even suspend him.
From a practical standpoint, though, the edict appears to have had little effect at least thus far. Although he no longer represents Molski (he attributes their split to "philosophical differences" unrelated to Rafeedie's action), Frankovich continues to bring ADA suits on behalf of others in federal jurisdictions elsewhere in California, including the Northern District that includes San Francisco, where Rafeedie's order has no bearing.
And the clients, he insists, continue to pour in.
"People with disabilities tend to be fighters," he says. "They see me attacking the establishment, and if everybody seems to be out after me, then they figure I must be doing something right."
Patrick Connally is one of Frankovich's most outspoken defenders.
As host of a weekly public affairs show for persons with disabilities that airs on KUSF, the University of San Francisco radio station, Connally, 57, who is a paraplegic, occupies a unique position to sound off on ADA matters. "He's someone at the forefront of the disability rights struggle," Connally says of Frankovich. In recent years, lawyers from Frankovich's office have turned up as guests on his program, as has Frankovich himself on at least two occasions.
Connally praises the lawyer as a civil rights crusader and denigrates many in the business community whom he sees as largely resistant to disability rights issues. A self-described visual artist and self-employed events programmer, he has sat on a KQED advisory board, and back in 1992, was a phone bank coordinator and liaison to the disabled in the Bay Area during Bill Clinton's first campaign for the White House.
But his claim to fame is as the head of Disability Rights Enforcement Education Services, or DREES, a nonprofit entity he founded a dozen years ago, and which he directs from his home in Marin County.
Its detractors see DREES as little more than a Frankovich front group, something Connally vehemently denies. Although its stated mission is to promote disability rights education, the group appears to have little to show for it. He concedes that it's a struggle just to keep its modest Web site up and running.
Yet there is one area in which DREES enjoys an indisputably high profile: as co-plaintiff in practically all of Frankovich's lawsuits.
Although defense attorneys often succeed in getting judges to remove DREES from cases against their clients on grounds that it has no legal standing to sue, they say DREES's initial presence nonetheless serves to add a patina of credibility to Frankovich's legal efforts. "It looks good on a [legal] brief, or at least he must think it does," says an attorney who has represented several clients sued by Frankovich.
Judge Rafeedie, in his excoriation of Frankovich and Molski, offered a similar appraisal of DREES, saying that the group's inclusion in Frankovich lawsuits appeared to be an attempt to provide "an aura of legitimacy" to what he described as "predatory litigation" for the purpose of encouraging settlements.
Craig Beardsley, the Bakersfield lawyer who got access to Frankovich's settlement records, says that in cases where DREES manages to remain as co-plaintiff, it collects $1,000 or less from settlements, a figure that Connally doesn't dispute. "DREES doesn't derive much money from Mr. Frankovich," Connally says.
But as a frequent filer of ADA lawsuits, Connally has a relationship with Frankovich that extends beyond DREES. Court records show that since 1998, he has filed at least 70 ADA claims with Frankovich as his attorney, including six since February of this year. He and the lawyer met by chance at a gathering in Marin County in the mid-'90s at a mutually beneficial time. Connally had just started DREES, and Frankovich had just retooled his practice to focus on disabilities law.
Among their first triumphs together were a string of settlements in cases brought against merchants in San Rafael, where Connally lives. That was followed by a litigation victory in neighboring Tiburon, where Frankovich maintains a home. Besides Connally, the effort there involved several other Frankovich clients, including the late Ed Roberts, the disability barrier-breaking former UC Berkeley student considered the father of the independent living movement. After Frankovich and his clients went after more than two dozen of the town's merchants for accessibility shortcomings, the city became involved and ultimately reconfigured Tiburon's main shopping thoroughfare.