Panel Follows SoBreck, Choosing Not To Reconsider In Light of State Court Jankey Decision To The Contrary—Federal/State Conflict Exists Here.
In Kohler v. Presidio International, Inc., Case Nos. 13-55808/13-56217 (9th Cir. Mar. 20, 2015) (published), a disabled plaintiff challenged certain checkout counters, dressing room bench, and blocked aisles in an Eddie Bauer Outlet store in Cabazon under the American with Disabilities Act (ADA) and California Disabled Persons Act (CDPA). Plaintiff did not prevail, although the Ninth Circuit vacated the defense ruling on the counters but affirmed the other rulings, including the district judge’s refusal to award attorney’s fees to defendant under CDPA (Civil Code) section 55—providing for fees for both parties.
The Ninth Circuit affirmed, based on its prior decision in Hubbard v. SoBreck, LLC, 554 F.3d 742 (9th Cir. 2009), which held that section 55 was preempted by the ADA’s provision of fees for prevailing defendants only in rare circumstances not present in the case before the district judge. Eddie Bauer argued that this prior decision should be reconsidered and overruled in light of Jankey v. Lee, 55 Cal.4th 1039 (2012), which expressly disagreed with SoBreck. The panel rejected this invitation, determining that the CDPA-ADA conflict still existed, that Eddie Bauer relied on 2009 CDPA amendments which did not apply to section 55, and that Jankey accepted arguments which the Ninth Circuit declined to adopt.