Daily Blast December 17, 2012

On December 17, 2012, the California Supreme Court issued an opinion in Jankey v. Lee(December 17, 2012, S180890) ____ Cal.4th ____, analyzing Civil Code section 55 of California’s Disabled Persons Act, which provides for prevailing party attorney fees in actions to enjoin disability access violations. (Slip opn., p. 3.) The Supreme Court held that the “plain language of section 55 makes an award of fees to any prevailing party mandatory,” including prevailing defendants. (Id. at pp. 1, 9.) The court also held that the federal Americans with Disabilities Act of 1990 (“ADA”) “does not preempt this part of the state’s attorney fee scheme for disability access suits.” (Id. at p. 1.)

Plaintiff filed suit against an owner of a grocery store for “denying him and other similarly situated disabled persons access to the full and equal enjoyment of the goods and services offered by K&D Market.” (Slip opn., p. 2.) Plaintiff asserted violations under the ADA, the Unruh Civil Rights Act and the Disabled Persons Act (“DPA”). (Ibid.) The trial court granted defendant’s summary judgment motion and awarded defendant attorney fees pursuant to Civil Code section 55 of the DPA. (Id. at pp. 2-3.) Section 55 provides that “prevailing party in the action shall be entitled to recover reasonable attorney’s fees.” (Id. at p. 6, fn. 6 quoting Civil Code, § 55.) The Court of Appeal affirmed the attorney fee award and rejected plaintiff’s contention that section 55 was preempted by the ADA. (Slip opn., p. 3.) 

The Supreme Court granted review to address the conflict between the Court of Appeal’s decision and the Ninth Circuit’s opinion in Hubbard v. SoBreck, LLC (9th Cir. 2009) 554 F.3d 742, 745, finding preemption. (Slip opn., p. 3.) The court first concluded that by using the term “prevailing party,” the legislature intended Civil Code section 55 to allow attorney fees to both the plaintiff and the defendant. (Id. at p. 7.) In addition, the “shall be entitled” language of Civil Code section 55 demonstrated a clear intent to make the fee award mandatory. (Id. at pp. 7-8.) The court then held that “the text of ADA section 501(b) and the legislative history behind it reveal it not as an express preemption clause but as a clause insulating from preemption any state laws offering better protections in some respect.” (Id. at p. 17.)  According to the court, Civil Code section 55 affords superior protections, in at least some respects, than the ADA. (Id. at p. 14.) As a result, the court disagreed with the Ninth Circuit’s conclusion in Hubbard v. SoBreck, LLC, supra, 554 F.3d 742, 745, “that conflict preemption forecloses an award of fees for a section 55 claim that overlaps with a nonfrivolous ADA claim.” (Id. at p. 19.) Instead, the court determined that Civil Code section 55’s fee provision does not pose a barrier to congressional objectives nor “should it be limited as a matter of state law based on overlap with federal remedies.” (Id. at pp. 19-22.)

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