Ninth Circuit Amends Hubbard Decision In Light Of Molski

ADA/CDPA Preemption Decision Is Amended Based on Later State Court Decision, With No Change in Result.

     In our July 3, 2008 post, we discussed Hubbard v. SoBreck, LLC, Case No. 06-56870 (9^th Cir. 2008), which held that an award of attorney’s fees to defendant under the California Disabled Persons Act was preempted by the federal American with Disabilities Act having more restrictive fee-shifting provisions.

     Recently, the Ninth Circuit amended its prior opinion in Hubbard

and denied a petition for panel rehearing on January 12, 2009. See Hubbard v. SoBreck, LLC, Case No. 06-56870 (9^th Cir. Jan. 12, 2009) (amended). The federal appellate court reached the same result, but amended the decision to discuss Molski v. Arciero Wine Group, 164 Cal.App.4^th 786 (2008).

     Molski—discussed in our July 8, 2008 post (a decision coming after the pre-amended Hubbard opinion)—held that CDPA allowed attorney’s fees to be awarded to a prevailing defendant even where the plaintiff’s claim is not deemed frivolous (although the frivolity standard is required to award defense fees under the ADA). Hubbard rewrote and deleted its discussion of California decisions suggesting the issue was in doubt, because they predated Molski. Given Molski’s interpretation of fee shifting under the CDPA, the Ninth Circuit had more definite anchors upon which to hinge its preemption analysis.  Click here for a porthole to California's disability laws and regulations.