Plaintiffs suing businesses in California for alleged disability access violations usually assert claims under a number of statutes, including the Disabled Persons Act (DPA) (Cal. Civil Code § 54 et seq.) and the Unruh Civil Rights Act (Cal. Civil Code § 51 et seq.), as well as the federal Americans with Disabilities Act (ADA). Yesterday the State’s High Court ruled that the plain language of California Civil Code section 55 (the portion of the DPA which provides for injunctive relief to plaintiffs) makes an award of fees to any prevailing party – defendant or plaintiff – mandatory. The Court said that the ADA does not preempt this provision and that the ADA’s rule requiring prevailing defendants to meet a higher standard to get attorneys’ fees does not apply to access claims brought under this portion of the DPA.
In Jankey v. Lee, the plaintiff alleged a four-inch step at the entry to the market the defendant owned and operated was an architectural barrier that prevented him and other wheelchair users from entering the store. Plaintiff claimed this denial of access violated the ADA, the Unruh Civil Rights Act, the DPA, and California Health and Safety Code section 19955 et seq. The trial court granted the defendant summary judgment on all four disability access claims on the ground that the defendant conclusively established as an affirmative defense that removal of the step was not readily achievable.
The defendant moved for an award of $130,000 in attorney fees under Section 55, which provides for prevailing party fees in actions to enjoin disability access violations brought under the DPA (as well as section 19955 of the Health and Safety Code and section 4450 of the Government Code). Plaintiff argued in opposition that (1) the ADA preempted Section 55’s authorization of broader fees entitlement than the ADA would allow, and (2) an attorneys’ fees award under the ADA for a prevailing defendant is proper only upon a finding that the complaint was “frivolous, unreasonable, or groundless.” The trial court awarded the defendant $118,458 in fees without addressing whether the plaintiff’s claims could be characterized as frivolous and did not address preemption. The appeals court affirmed on the basis that state law required a mandatory fee award. The California Supreme Court held that: (1) prevailing party attorney fees are mandatory under Section 55 and (2) the ADA does not preempt Section 55.
The Court based its finding on the plain language and legislative history of the statute. It said Section 55’s “broadly worded two-way fee-shifting clause”, which states that “the prevailing party in the action” … “shall be entitled to recover reasonable attorney’s fees,” makes it unique among disability access statutes. The Court found dispositive the statute’s use of prevailing “party” – rather than “plaintiff” — and “shall” – rather than “may” or other similar permissive language. The Court found the legislative history of Section 55 further supported the conclusion that the Legislature deliberately chose this plain language to award fees to prevailing defendants as well as plaintiffs. The Court also noted that its finding is consistent with every reported case to consider the question. Finally, the Court noted the text of Section 55 demonstrates a clear departure from that of the Unruh Civil Rights Act, which awards fees only to a “petitioner or plaintiff”; and the ADA, which allows that a court “in its discretion, may allow” fees. Section 55’s mandate is also distinct from the fee mandate to plaintiffs in Section 54.3 of the Disabled Persons Act, which addresses monetary damages available to a plaintiff for a DPA violation.
The Court rejected plaintiff’s preemption argument on the ground that the ADA allows states to enact and enforce complementary laws and does not preempt less protective state laws. The Court found that since Section 55 affords, through its broader standing provision, greater protection than the ADA, it does not matter for purposes of preemption whether other aspects of Section 55, such as the differing attorney fees provision, may be less advantageous than the ADA. The Court also disagreed with the premise that fees for defending a state law claim are necessarily fees for ADA work if the claims overlap because the defendant would have been entitled to the same state law fees regardless of whether the plaintiff pleaded an ADA claim as well. Similarly, the Court found plaintiff’s argument regarding the “frivolous” standard for an attorneys’ fees award under the ADA irrelevant to determination of an award of fees under state law.
This decision should make claims under Section 55 considerably less appealing for plaintiffs because they will have to pay the defendant’s attorneys’ fees if they lose. However, the impact of this decision on the number of disability access claims brought in California will likely be small given the other statutory options available to plaintiffs.