Award of Fees Under California Disabled Persons Act Preempted by Fee-Shifting Directives of Federal Americans with Disabilities Act.
On June 30, 2008, Greg May, Presiding Member of The California Blog of Appeal, had a nice summary that he brought to our attention—and we HAT TIP him for that—of Hubbard v. SoBreck, LLC, Case No. 06-56870 (9th Cir. June 27, 2008) (published). We explore the decision further, but commend his synopsis to you.
After a bench trial, a district judge entered judgment in defendants’ favor on plaintiffs’ claims brought under the Americans with Disabilities Act (ADA) and the California Disabled Persons Act (CDPA). ADA makes an attorney’s fees award to the prevailing party discretionary (see 42 U.S.C. sec. 12205), although courts have interpreted this to mean that fees are only assessed against plaintiffs who bring frivolous claims. CDPA, on the other hand, has a much more liberal fee-shifting provision, with California Civil Code section 55 providing that ‘[t]he prevailing party in the action shall be entitled to recover reasonable attorney’s fees.” Based upon this mandatory language in the California statute, the district judge awarded fees to the defendants.
On appeal by plaintiffs, the Ninth Circuit reversed and vacated the fee award, finding it was preempted by the ADA.
Because the ADA and the CDPA claims involved the same proof, the federal appellate court found that “it is impossible to distinguish the fees necessary to defend against the CDPA claim from those expended in defense against the ADA claim, so that a grant of fees on the California cause of action is necessarily a grant of fees as to the ADA claim.” The Ninth Circuit panel, in the 3-0 decision authored by Circuit Judge Schroeder, found that the state fee award (for bringing a nonfrivolous CDPA claim) was preempted by the ADA, which did not allow for a fee award for bringing a nonfrivolous ADA claim.
The Hubbard court noted, as explained by Mr. May in his June 30 post, that several prior decisions had come to different results (or, in one case, a consistent result), but were not controlling because they did not even consider the preemption issue. Rather, it appears that the court in the unpublished decision of Wilson v. Norbreck LLC, 2007 WL 1063050 (E.D. Cal. Apr. 9, 2007) got the preemption analysis right.
Although the preemption issue was dispositive in leading to a reversal in the matter before it, Hubbard correctly noted that the California state courts have not definitively ruled whether Civil Code section 55 would mandate fees to all prevailing defendants, given the pro-civil rights bent of the Unruh Act. (Earlier, they cite to a foonote from Gunther v. Lin, (2006), a decision authored by Presiding Justice Sills of the Fourth District, Division Three, where the state appellate panel left open the issue of whether fees could be recovered under section 55 by prevailing defendants.)
BLOG OBSERVATION—We would predict that either prevailing defendants may not be entitled to fee recovery or that state courts might apply the “pragmatic test” for prevailing party determination in line with what the Fifth District did in Brawley v. J.C. Interiors, Inc., 161 Cal.App.4th 1126, 1137 (2008). For an interesting discussion of the differences in fee recovery under the ADA, the CDPA, and the Unruh Act, see Justice Sills’ discussion in the unpublished decision of Gunther v. Chapman Plaza Associates, 2007 WL 1831114 (4th Dist., Div. 3 June 27, 2007) (unpublished).