No One Prevailed in This Case, Both Trial and Appellate Courts Agreed, Under The Facts—But Prior Discovery Sanctions Award Did Survive.
The California Disabled Persons Act (Civ. Code, § 54 et seq.) [DPA] does have a reciprocal fee-shifting provision in favor of a “prevailing party.” (Unlike the American with Disabilities Act [ADA], which requires a showing of frivolousness or unreasonableness in order to fee shift against a disabled person, the California statutory equivalent does not have a similar requirement.) With that in mind, Pineda v. Bekhor, Case No. B255583 (2d Dist., Div. 1 Mar. 13, 2015) (unpublished) focused on a lower court’s determination that neither plaintiff nor defendant prevailed after plaintiff voluntarily dismissed a case after architectural barrier corrections were made.
Plaintiff sued because a towel dispenser was mounted too high above a floor in defendant’s coin-operated laundry facility, based on both the ADA and DPA. Within 30 days after service of the complaint, defendant lowered the towel dispenser so as to be disability compliant. Defendant did win $2,160 in discovery sanctions along the way. Then, one week later, plaintiff dismissed with prejudice, but never paid the sanctions order.
Defendant then moved to recover $11,300 in attorney’s fees under the DPA statutory provision, inclusive of the $2,160 discovery sanctions. The trial court denied the fee request, finding neither side “prevailed.”
The Second District, Division 1 affirmed, but with one clarification. Although the lower court found the action was not frivolous (introducing some confusion as to ADA and DPA claims), defendant moved under the DPA such that the pragmatic definition of who really “prevailed” was at issue. The lower court did not abuse its discretion in determining that neither side really won, given that the plaintiff voluntarily dismissed due to health issues and that the defendant did lower the towel dispenser. However, nothing in what the lower court did disturbed the earlier discovery sanctions order, given that plaintiff could not “alter a court order by his or her fiat, to wit, merely by including the discovery sanctions awarded in the total amount of fees requested in a subsequent motion.” So, the $2,160 sanctions award was separately enforceable, notwithstanding the fee denial. (Newland v. Superior Court, 40 Cal.App.4th 608, 615 (1995).)
Los Angeles County Superior Court Judge Helen Bendix, sitting by assignment, authored the 3-0 opinion.