First District Reverses Summary Judgment in ADA Case; Fee Award Also Reversed Because Appellant Separately Appealed It.
In posts for June 6 and 7, 2008, we reviewed several decisions that denied review of fee awards because the appealing party did not bring a separate appeal. Here, we happily review a decision that shows the right way to do it and the right result—a reversal—when the underlying judgment is reversed.
In Wilson v. Murillo ,Case No. A118499 & A119121 (lst Dist., Div. 4 June 10, 2008) (certified for publication), a disabled plaintiff sued a restaurant for retaliation to ensure compliance under the American with Disabilities Act (ADA, 42 U.S.C. sec. 12101 et seq.). The theories of plaintiff’s complaint were grounded in California’s Unruh Act (Civ. Code sec. 51 et seq.) and California’s Disabled Persons Act (Civ. Code sec. 54 et seq.). Restaurant filed a summary judgment motion, and won. It then sought an award of attorney’s fees under Civil Code section 55, which provides “[t]he prevailing party in the action shall be entitled to recover reasonable attorney’s fees.” (CROSSOVER ISSUE—Contrast this with fee recovery under Civil Code section 52(a), discussed in our review of Ideal Homes in the prior May 29, 2008 post. Section 52(a) does not have “prevailing party” language and is construed as only unilaterally in favor of a successful plaintiff, whereas section 55 is reciprocal with the “prevailing party” mandate.) Restaurant was awarded $48,258 in fees and $4,853 in costs.
However, losing plaintiff appealed both the summary judgment and the fee award order. Good move.
The appellate court, on its own order, consolidated both appeals.
Plaintiff won a reversal of the summary judgment order. Because restaurant was the “prevailing party” based on the summary judgment, the First District also overturned the Civil Code section 55 fee order against disabled appellant. (Slip Opn., at p. 15 n. 8.) Here, an appellant wisely appealed the fee order separately, and garnered the fruits of doing so when the prior underlying judgment was reversed.