Preemption Issue Between State and Federal Disability Schemes Under Consideration in Fee Shifting Area
For the week of May 10, 2010, the California Supreme Court accepted review of Jankey v. Lee, No. S180890, a former First District, Division 4 decision which we reported on in our February 6, 2010 post (formerly published at 181 Cal.App.4th 1173).
Jankey affirmed an attorney’s fees award of $118,458 to a prevailing defendant under the California Disabled Persons Act’s fee shifting provision (Civil Code section 55) despite the fact that the federal analog, the American with Disabilities Act, only allows a defendant to recover fees if plaintiff’s action was “frivolous, unreasonable, or groundless.” Jankey awarded fees to the defense without factoring in the heightened standard applicable to defendant fee claimants under the federal statute.
The issue framed by the state supreme court in its weekly press release on cases accepted for review reads like this: “Is an award of fees to a prevailing defendant under the California Disabled Persons Act (Civ. Code, § 54 et seq.) inconsistent with, and therefore preempted by, the federal American with Disabilities Act (42 U.S.C. § 12101 et seq.)?”
Kiss of Death: Richard Widmark, as gangster Tommy Udo, pushes disabled woman in wheelchair down a flight of stairs.