Court of Appeal Is First To Answer Unsettled Question Noted in Our July 3, 2008 Post.
On July 3, 2008, we posted a discussion of Hubbard v. SoBreck, LLC, a Ninth Circuit case that found an award of attorney’s fees to a prevailing defendant in federal court—granted under California’s Disabled Persons Act (CDPA)–was preempted by the fee directives of the American with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.). However, Hubbard did observe at the end of its decision that California courts have not yet decided whether a prevailing defendant can be awarded attorney’s fees under Civil Code section 55, the fee-shifting provision of California’s disabled access statutory scheme relating to injunctive claims. We did not have to wait long. The Sixth District, Division Six Court of Appeal answered this unsettled question “yes” in the first published decision to squarely rule on the issue.
Molski v. Arciero Wine Group, Case No. B199289 (2d Dist., Div. 6 July 7, 2008) (certified for publication) involved some bad facts for the suing, nonprevailing plantiff.
Molski brought a federal lawsuit alleging violations under the ADA, the Unruh Act, the CDPA, and other statute statutes. He had filed over 400 such actions in both federal and California venues, being declared a vexatious litigant in at least two cases. The federal court dismissed the state law claims without prejudice, the defendant remedied the wheelchair access issues, and plaintiff dismissed the federal action with prejudice in light of defendant’s remediating actions. After plaintiff received notice of remediation (but before he sent his expert to verify), plaintiff filed a state court action, asserting money claims under the Unruh Act, the CDFA, and Health and Safety Code section 19955 and an injunctive claim under Civil Code section 55. The state judge struck the injunctive claim as moot and, eventually, granted a motion for judgment on the pleadings on the money claims based on the res judicata effect of the federal court dismissal.
Defendant then moved for an award of attorney’s fees under Civil Code section 55, an injunctive claim fee-shifting provision that allows an award to the “prevailing party” (an undefined term). The trial court awarded all defendants’ fees of $33,702.63 incurred in the state court action because it was filed after remediation was completed and “played no role” in catalyzing the remediation. On appeal, a 3-0 panel of the Ventura-based appellate court—in an opinion authored by Justice Coffee—affirmed the fee award.
The Court of Appeal found that “the plain language of section 55 allows bilateral fee recovery. The statute is unambiguous and [plaintiff] cites no authority interpreting section 55 to disproportionately benefit plaintiffs.” (Slip Opn., at p. 4.) In supporting this viewpoint, Justice Coffee further observed that plaintiff could have chosen to sue only for monetary relief under the Unruh Act or the CDPA, which does not allow fee awards to prevailing defendants on such claims. “Thus, a disabled person who has actually encountered a barrier to full and equal access can proceed under the Unruh Civil Rights Act or the [CDPA] without being exposed to any risk of an adverse judgment for fees. On the other hand, a person who has suffered no injury and initiates litigation simply to enjoin technical violations of the access statutes under section 55 has something to lose if he or she does not carefully assess the merits of his or her claim.” (Id., at pp. 5-6.) The appellate court rejected engrafting a “frivolous, unreasonable or groundless” caveat to a defendant fee award, noting that this requirement under Title VII of the Civil Rights Act of 1964 is not found in section 55. (BLOG NOTE—The ADA has been interpreted in a way requiring a frivolousness determination before a prevailing defendant can be awarded fees, the preemption issue decided by the Ninth Circuit in Hubbard.)
As we noted in our July 3 post before Molski was published, either no fee award would be allowed to defendants or California state courts would adopt a “pragmatic test” for determining if defendants prevailed. This latter course of action is what happened in Molski. The access violations had been remediated and plaintiff obtained no relief at all, meaning that defendant was a clear winner. The appellate court was also swayed by the fact plaintiff took a “kitchen sink” approach without regard to his adversary’s expenses, finding “[t]he spirit of California’s statutory scheme is not offended by the consequences of this scorched earth strategy.” (Slip Opn., at p. 6.)