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.