ADA Frivolousness Was Only Fee Basis, Which Was Not Established.
Handicapped plaintiff in Pike v. Fillmore & Western Railway, Inc., Case No. B225578 (2d Dist., Div. 6 May 17, 2011) (unpublished) dodged a fee exposure bullet after not prevailing in a lawsuit brought under California’s Unruh Civil Rights Act, the California Disabled Persons Act (DPA), and the American with Disabilities Act of 1990 (ADA). Defendant moved for fee recovery, but was rebuffed at the lower court level. This prompted an appeal of the fee denial.
Denial affirmed, said Justice Yegan on behalf of a 3-0 panel of the Second District, Division 6.
Here, plaintiff carefully crafted his Complaint to only seek damages under the Unruh Act and the DPA, expressly not seeking injunctive relief under the DPA. This meant he was immunized from attorney’s fees even though defendant prevailed. (Molski v. Arciero Wine Group, 164 Cal.App.4th 786, 792 (2008); Turner v. Ass’n of American Medical Colleges, 193 Cal.App.4th 1047, 1059-1060 (2011).) [BLOG NOTE–Pending in the California Supreme Court is Jankey v. Lee, Case No. S180890, which will be considering the issue of whether an award of fees to a prevailing defendant under the DPA is inconsistent with and preempted by the ADA.)
That brought the appellate court to consider whether fees were properly denied under the ADA, which gives a discretionary grant to the trial court if the action is found to be frivolous, unreasonable, or without foundation (Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1154 (9th Cir. 1997).) Because the matter proceeded to a four-day bench trial in which evidence was weighed and considered, the action could hardly be deemed frivolous such that no abuse of discretion in denying fees was shown. (Palmer v. Chelsea Financing Partnership, LP, 423 F.Supp.2d 1092, 1093 (E.D.Cal. 2006).)