Lack of Prelitigation Demand for Corrective Action Was Damning.
Here is one for practitioners that either prosecute or defend disability accommodation claims, which frequently revolve around the attorney’s fees that can be recouped by their attorneys. Attorneys did not do so well in this case.
In Mundy v. Neal, Case No. B219711 (2d Dist., Div. 2 June 30, 2010) (certified for publication), disabled plaintiff dismissed a failure to designate handicap parking space suit with prejudice after the landowner defendant installed the parking space. Plaintiff moved to recover $3,409.50 in attorney’s fees under Civil Code section 55 which does allow the “prevailing party” to recover attorney’s fees (mandatory in nature). The trial judge denied them, and the appellate court affirmed, in a 3-0 decision authored by Justice Ashmann-Gerst.
The problem with the fee request was that, under the “catalyst theory,” Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 577 (2004) required a prelitigation demand for corrective action as a necessary predicate for fee recovery. Plaintiff argued that Vasquez v. State of California, 45 Cal.4th 243 (2008) limits Graham to discretionary (rather than mandatory) fee awards. The Court of Appeal rejected this limitation, holding “for purposes of section 55, a plaintiff who files a dismissal is not the prevailing party under the catalyst theory unless the plaintiff made a prelitigation demand for corrective action.” (Slip Opn., p. 5.) Also, a policy reason existed for the result reached: “ . . . if the catalyst theory does not reward an opportunistic lawsuit in one context [discretionary fee awards], it should not award such a lawsuit in any context.” (Id.)
BLOG UNDERVIEW—Although this decision involved the “catalyst theory,” it bears observing that for actions filed after January 1, 2009, the relevant statutory scheme relating to “construction-related accessibility claims” has been amended to promote corrective actions by both sides, with Civil Code section 55.55 providing for the trial judge to consider written settlement offers made and rejected by the parties—among other relevant information—in deciding fee award requests.