Defense Fee Recovery Reversed, But No Fees To Plaintiff Because She Did Not Seek Fees Below.
This one is somewhat of an object lesson because the 2/4 DCA not only reversed fee recovery against a disabled person dismissing an action for injunctive relief under the Disabled Person Act (DPA), but would have found that plaintiff was the prevailing party entitled to attorney’s fees herself had she sought them below (although she didn’t).
After plaintiff dismissed her DPA and Unruh Act action after a grocery store made modifications to a parking lot such that there was an accessible path for disabled persons, defendant moved for attorney’s fees against her and was awarded $28,008 (the full defense request) in Baskin v. Hughes Realty, Inc., Case No. B279645 (2d Dist., Div. 4 Aug. 6, 2018) (unpublished). The 2/4 DCA reversed the fee award against plaintiff/appellant.
The DPA has a unilateral fee provision applicable to prevailing plaintiffs under the remedial provisions of the statute, and it also has a bilateral fee provision when injunctive relief is sought. Under the Unruh Act, no matter what the remedy, the fee provision is unilateral in favor of a prevailing plaintiff. Plaintiff, although not requesting fees, argued she was the prevailing party under the “catalyst” theory, rather than defendant. She next argued that defendant grocery failed to show that the fees it requested pursuant to the one bilateral fee-shifting provision were not inextricably intertwined with the defense of the other claims involving prevailing plaintiff only fee-shifting provisions (see Turner v. Association of American Colleges, 193 Cal.App.4th 1047 (2011)). The appellate panel agreed that plaintiff, not grocery store, was the prevailing party under the catalyst theory and that her action was not frivolous given that lot modifications were made. (Stivers v. Pierce, 71 F.3d 732, 739-740 (9th Cir. 1995).) Finally, the reviewing court agreed that the defense efforts on the one putative fee-shifting statute was intertwined with the defense of the other claims, accepting the rationale of Turner in this regard such that fee recovery was not warranted. (Turner, 193 Cal.App.4th at 1027.)