California's Disabled Persons Act mandatorily grants attorney fees to prevailing defendant.

January 4, 2013
By Justice Steven Vartabedian (Ret.) on January 4, 2013 6:00 AM |

Can a business sued for denial of disabled person access mandatorily recover its attorney fees upon successful defense of an action that includes both claims of violation of Cal. Civil Code section 55 and federal ADA? The California Supreme Court has answered yes in Jankey v. Lee (filed December 17, 2012) 2012 DJDAR 16809, disagreeing with the federal Ninth Circuit opinion of Hubbard v. So Breck, LLC (2009) 554 F.3d 742.

Defendant Lee owns and operates a small grocery store in San Francisco, but does not own the real property. Plaintiff Jankey, who needs a wheelchair, sued Lee claiming a four-inch step at the entry of the store prevented his potential access. The trial judge granted Lee summary judgment based on Lee's conclusive establishment that the barrier was not readily removable. Lee's request for attorney fees in defending the action was awarded for the most part, in the sum of $118,458. Jankey appealed the attorney fee award. The state Court of Appeal affirmed. The Supreme Court granted review to resolve the conflict between this appellate decision and the federal Hubbard opinion. The California high court affirmed, and remanded the matter to allow Lee to further request his attorney fees on appeal.

Section 55 is a part of the state's Disabled Persons Act. While it includes many of the provisions and complements other state statutes as well as the federal ADA, it adds a significant component that these other provisions lack: persons "potentially aggrieved" are granted standing to sue, not just those who have actually attempted access unsuccessfully. Those plaintiffs who choose to allege violation of section 55 are subject to the further express provisions of the statute which state that the prevailing party in the action "shall be entitled to recovery reasonable attorney fees." The legislative history demonstrates that an earlier draft of the law stated entitlement to the prevailing plaintiff, but that language was intentionally altered prior to passage. So the legislative intent is clear that a prevailing party, which includes a successful defendant, as was the case here, shall be awarded attorney fees.

Jankey persisted that the ADA preempts section 55. Not so, responded the high court. The ADA allows defendant's fees only in the court's discretion if the plaintiff's claim is frivolous. But, as the court points out, the ADA does not provide a plaintiff the advantage of standing without actual denial of access as a result of a defendant's alleged barrier. Furthermore, a plaintiff has the burden of proving that Congress intended to preempt state law. Here, the ADA's construction clause states the disavowal of any broad preemptive effect. In this case, Lee would have been entitled to attorney fees whether or not Jankey pleaded the ADA claim, a point left unaddressed by the Hubbard opinion.

Commentaries I have read about Jankey thus far suggest that this opinion will drive these cases away from the state courts and into the federal courts. That is not necessarily so if plaintiff attorneys are representing clients who are alleging actual denial of access rather than potential aggrievement; they need not allege a cause of action under section 55. I am sure there will be other commentaries, these from the defense bar, that say what is good for the goose is good for the gander. Because the relief in section 55 cases is injunctive, the incentive for plaintiff attorneys to take these cases is the award of attorney fees. Prevailing defendants' ability to get attorney fees may cause a disincentive, which the defense bar may view as equal justice, and the plaintiff bar may view as chilling ones rights. While this case is an apparent victory for the defense bar, collecting these attorney fee awards may be problematic.

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