Unpublished Decision Faces Some Interesting Fee-Shifting Issues In ADA Case.
Many of the California intermediate appellate unpublished decisions we examine have some very interesting legal issues for jurists to grapple with and resolve. The next one is no exception, containing some gnarly fee-shifting issues that involve Code of Civil Procedure section 998 (pretrial offer statute), Code of Civil Procedure section 1038 (fees shifting under the California Tort Claims Act), fee shifting under 42 U.S.C. section 1988 (federal civil rights act), and fee shifting under the Americans with Disabilities Act. So, buckle up and here we go on this one: Suarez v. County of Los Angeles, Case No. B210823 (2d Dist., Div. 1 June 19, 2009) (unpublished).
Suarez (not Betty, of “Ugly Betty” fame) involved civil rights, ADA, and California Torts Claim Act claims brought by a deaf person against Los Angeles County for mistakenly keeping him in jail for 8 days without the assistance of a sign-language interpreter to demonstrate he was wrongfully jailed. After his release, plaintiff sued and won a jury verdict under the ADA claim, a verdict under which he was awarded damages of $5,000. Earlier, County had served Mr. Suarez with a CCP section 998 offer for $8,000, together with a caveat that reasonable fees were to be determined by the trial court in an amount not to exceed $12,000—an offer rejected by Suarez before the jury trial occurred. Mr. Suarez moved to recover $193,582.50 in fees and $9,095.12 in costs under the ADA, while County moved to recoup fees of $113,512.50 and costs of $11,072.26 based on obtaining summary adjudication of the California Tort Claims Act claim and the civil rights violation. County also sought recovery of $12,164 in routine costs by reason of its 998 offer.
The trial court determined the 998 offer was facially void, ruled that County was not entitled to fees for winning the Tort Claims Act claim, did not address the County’s fee request under the federal civil rights statute, granted Mr. Suarez’s motion to strike County’s costs memorandum, awarded plaintiff his routine costs, and finally awarded Mr. Suarez attorney’s fees in the sum of $193,582.50. County appealed.
County did not overturn the trial court’s determination that the 998 offer was invalid. One main reason dictated this result: County failed to include a provision that allowed Mr. Suarez to indicate acceptance of the offer by signing a statement that the offer was accepted. The appellate panel found that this requirement was mandatory and was not met, meaning that the 998 offer was invalid because it did not contain a written acceptance provision.
County also did not win the argument that its summary adjudication of the California Tort Claims Act claim meant that it was a prevailing party under a fee-shifting provision in Code of Civil Procedure section 1038. The reason was simple: it only applied if County had obtained summary judgment. Because the statute did not mention summary adjudication, the Court of Appeal’s hands were tied; any policy argument otherwise should be addressed to the Legislature.
County did get a reversal and remand on its argument that the trial court did not consider its fee request under the federal civil rights statute. The argument was not addressed, so a remand was needed to decide the issue. However, the appellate panel did note that County’s burden was quite high: a prevailing party only obtains recovery of fees on these claims only where the plaintiff’s action is found to be “unreasonable, frivolous, meritless, or vexatious.” (Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir. 1994).)
County then argued that plaintiff did not recover on the ADA claim, even though the jury awarded him damages of $5,000. Because plaintiff’s recovery of fees under the ADA is “the rule rather than the exception,” see Jankey v. Poop Deck, 537 F.3d 1122, 1131 (9th Cir. 2008), the $5,000 award did make plaintiff a prevailing party. Because prevailing party status under this type of civil rights statute does not depend on the magnitude of the relief, Farrar v. Hobby, 506 U.S. 103, 114 (1992), plaintiff was entitled to an award of fees under the ADA claim.
The appellate panel also determined that the ADA fee award was reasonable, but remanded so that the trial court could consider County’s specific objections to individual costs items claimed by Mr. Suarez.
So, in the end, Mr. Suarez’s fee award was affirmed, although the matter was remanded so that the lower court could rule on County’s counter-fee request under the federal civil rights statute and its specific cost item objections.
BLOG UNDERVIEW—The Court of Appeal’s ruling on section 1038 perfectly tracks the same conclusion that was reached by the Fourth District, Division 1 earlier this year in Jeld-Wen, Inc. v. Action Iron Works, Inc. (Jeld-Wen II), reviewed in our February 20, 2009 post. We are not aware of any published decisions on this precise issue.