State Disabled Persons Act Allows Attorney Fees for Successful Defendants, ADA Notwithstanding

December 2012

The 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.

The 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.

After 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.

The 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.”

In 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.


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