Appellant Failed To Raise The Winning Argument For Reversal.
Horsley v. Tourmaline Real Estate Partners, LLC, Case No. B277926 (2d Dist., Div. 3 Dec. 19, 2017) (unpublished) is a lesson in being careful what you plead in your complaint prayer for relief, because it might trigger a bilateral fee-shifting statute.
Plaintiff pled for Unruh Act/Disabled Persons Act violations under Civil Code sections 51, 54, and 54.1, with section 51(f) incorporating federal ADA protections. Most of these sections only award fee recovery to a prevailing plaintiff, but section 55 is a bilateral fee-shifting provision allowing recovery to either side if injunctive relief is sought under sections 54 or 54.1. Plaintiff lost his case after a bench trial, with the trial judge awarding the defense $29,600 in attorney’s fees under section 55.
The fee award was affirmed on appeal. Although not mentioning injunctive relief in the substantive claims, plaintiff did plead for permanent injunctive relief in the prayer of his Complaint, which was enough to invoke the bilateral “bite” of section 55 against the non-prevailing plaintiff. However, the appellate court also noted that plaintiff may have failed to raise the right argument: on appeal, but not in the trial court (hence, a waiver), plaintiff argued that he wanted injunctive relief under section 52 for a section 51 violation (which carries no bilateral “bite”); and, had he done so, this would have been persuasive because defendant may not obtain a fee award under section 55 for hours inextricably intertwined with hours spent defending the section 51 claim. Ouch!