Case Pitted Unruh Act State Provisions Against Federal ADA Fee-Shifting Provisions--State’s Rights Prevailed On This One.
Jankey v. Lee, Case No. S180890 (Cal. Sup. Ct. Dec. 17, 2012) (published) is a case pitting a bilateral attorney’s fees provision to prevailing parties under the state Unruh Act (Civ. Code, § 55) against a federal Americans with Disabilities Act provision where fees are not mandatory, but only awarded to prevailing defendants proving plaintiff’s case was frivolous or without bases. The defense had prevailed in a state disabilities act case and was awarded $118,448 in fees, with the intermediate appellate court sustaining the fee award. However, the case went up given a preemption decision to the contrary by the Ninth Circuit in the Hubbard case (554 F.3d 742).
State’s rights prevailed in this one.
The Unruh bilateral fee-shifting provision was not preempted by the federal ADA. “Essentially, Congress embraced a cafeteria approach in which those with disabilities, rather than being restricted to a single federal remedy, could pick and choose from among federal and state remedies and procedures the avenues for relief they thought most advantageous. It follows that if a state remedial scheme is in any regard superior to the ADA, courts should conclude it is not premepted and instead allow plaintiff the choice whether to seek relief under federal law, state law, or both.” (Slip Opn., pp. 13-14.) Our state supreme court disagreed with Hubbbard’s preemption analysis, letting stand the fee recovery under the Unruh bilateral fee-shifting scheme.