Second District, Division Six Finds For Disabled Plaintiff in Unpublished Decision.
In our July 8, 2008 post, we reviewed the Second District, Division Six’s published decision of Molski v. Arciero Wine Group, in which the appellate court affirmed a fee award against Mr. Molski and in favor of a prevailing defendant under Civil Code section 55. However, in an unpublished decision issued the very same day, the very same appellate panel sustained a fee award in Mr. Molski’s favor. The decision is Molski v. Peachy Canyon Winery, Case No. B198886 (2d Dist., Div. 6 July 7, 2008) (unpublished).
There, Mr. Molski brought similar federal and state lawsuits, albeit against a different winery, as those involved in the published case against Arciero Wine Group. He first filed in federal court, serving a demand letter on the winery encouraging voluntarily compliance before the matter became more contentious and attorney’s fees escalated. Winery retained counsel and responded to the federal complaint. Winery soon became compliant as far as the access violations were concerned. The federal court granted summary judgment and dismissed the federal action. Mr. Molski then filed suit in California state court, alleging claims for money, penalties and attorney’s fees under California’s Disabled Persons Act (CDPA) and the Unruh Civil Rights Act. (Unlike the Arciero suit, no injunctive relief was requested under Civil Code section 55, which meant Mr. Molski faced no fee exposure as he did in Arciero). Eventually, Mr. Molski stipulated to Winery’s CCP section 998 offer of $4,001, with the court authorized to determine attorney’s fees and costs.
Winery never contested that Mr. Molski was the prevailing party. Molski sought $29,672 in fees and $5,166.98 in costs. Winery opposed, arguing that his success was limited and the demand letter was unethical such that only one-half an hour of time was compensable. The trial court reduced the request, but awarded $25,391.60 in fees and $2,105.48 in costs. Winery appealed, and lost.
Winery’s $4,001 section 998 offer—based on an Unruh Act minimum statutory penalty of $4,000—meant that Molski prevailed, with a fee award being mandatory under Civil Code section 52(a). Winery’s arguments for a reduction were found unpersuasive.
With respect to the “limited success” argument, the appellate panel found that Molski prevailed under the more difficult Unruh Act theory, which requires a higher degree of proof and provides higher minimum statutory penalties than does the CDPA. No discretion was abused in failing to apply a negative multiplier to plaintiff’s lodestar based on prevailing under the Unruh Act.
The unethical demand letter attack did not fare better. Only a serious violation of attorney responsibilities will require forfeiture of a fee. (See Pringle v. LaChappelle, 73 Cal.App.4th 1000, 1006 (1999).) There was no such finding by the trial judge and the fact Molski had been reprimanded before was inapt under the circumstances.
The trial judge also awarded fees to Molski for federal litigation work under the “catalyst” theory—the work in the federal action was closely related and useful to the resolution in the state court. Because the federal action was a prod to facility compliance, no error occurred in awarding fees for this prior work.