California Supreme Court recently ruled that “plain language” in the California
Disabled Persons Act authorizes awards of mandatory attorneys fees to parties who
successfully defend lawsuits alleging violations of equal access rights. In its unanimous decision in Jankey v. Lee (December 17, 2012,
S180890), the Court rejected an argument that the more restrictive fee
provisions of the Americans with Disabilities Act (“ADA”) trumped state law.
case involved allegations that a four-inch step at the entrance to a small
grocery store in San Francisco was an architectural barrier that denied persons
with disabilities access to the store. By establishing that removing the barrier was
not “readily achievable,” the owner of the store successfully defended the
suit, later obtaining prevailing-party attorney fees under the California
Disabled Persons Act.
losing at both the trial court and Court of Appeal levels, the plaintiff
appealed the ruling to the California Supreme Court and argued that attorney
fees are neither mandatory under state law nor are they allowed under the
ADA. The Court disagreed and determined that
the plain language of section 55 of the Disabled Persons Act allows attorney
fees for any “prevailing party,” not just a prevailing plaintiff. The decision also pointed to the statute’s use
of the phrase “shall be entitled” to indicate that such an award is mandatory
and not discretionary.
Court also examined the claim that attorney fee awards pursuant to state law are
prohibited by the ADA. Here, the Court acknowledged
that in contrast to the Disabled Persons Act, the federal ADA statute makes any
fee award discretionary and allows defending parties to recover fees only when successful
against frivolous lawsuits. However, the
Court reasoned that the ADA addresses such discrepancies between state and
federal law and expressly provides that the ADA does not preempt any state law that
offers greater protections for the rights of individuals with disabilities. The Court concluded that Congress intended “that
if a state remedial scheme is in any regard superior to the ADA, courts should conclude
it is not preempted and instead allow plaintiffs the choice whether to seek
relief under federal law, state law, or both.”
upholding the attorney fees award, the Court disagreed with the U.S. Court of
Appeals for the Ninth Circuit’s conclusions in Hubbard v. SoBreck, LLC (9th Cir. 2009) 554 F.3d 742. In Hubbard, the Ninth Circuit determined
that “fees for defending a state law claim are necessarily fees for ADA work if
the claims overlap” and that, when claims are filed under overlapping federal
and state laws, “if state law provides for fees where federal law does not,
there is a conflict and the state law must yield.” The California Supreme Court
took issue with this premise and reasoned that, in this case, the fee award was
simply a consequence of a plaintiff’s decision to seek additional remedies
under state law and not a result of having to defend an ADA claim.
The Court’s decision to uphold the award of attorney fees in Jankey extends beyond private businesses to any party, including a public agency that successfully defends a lawsuit in state court under the Disabled Persons Act. However, clients should be aware that for claims made in a California federal court, the Ninth Circuit’s decision in Hubbard still holds and will continue to do so until and unless the U.S. Supreme Court decides to take on the issue and rules to the contrary.
We will continue to monitor this issue
and provide updates on any significant developments. If you have any
questions regarding this matter, please call one of our six offices.
F3 NewsFlash prepared by Kimberly Smith and John Norlin.
Kimberly Smith is a partner in the F3 Los Angeles office.
John Norlin is Special Counsel in the F3 San Diego office.
This F3 NewsFlash is a summary only and not legal advice. We recommend that you consult with legal counsel to determine how this legal development may apply to your specific facts and circumstances. Information on a free NewsFlash subscription can be found at www.fagenfriedman.com.
As part of the E-ducation™ Professional Development Series hosted by ACSA and F3, we offer webinars on various topics. You can find the information on the ACSA website at www.acsa.org/e-ducation.
Keep up to the minute on the latest updates, NewsFlashes, and legal news by following F3 on Twitter:@F3Law.