Civil Rights: Failure To Offer A Prelitigation Settlement To Defendant, For A Second Time, Did Not Justify Fee Recovery To Disabled Plaintiff Under “Catalyst Theory”

 

Second District, Division 1 Follows Suit With Division 8—and Relative to the Same Plaintiff.

     On July 1, 2010, we examined Mundy v. Neal, where the Second District, Division 8—in an opinion authored by Justice Ashmann-Gerst—denied fees to a plaintiff claiming fees as a “catalyst” under Civil Code section 55. Well, now Division 1 of the same District has reached a similar result and with respect to the same plaintiff.

     In Mundy v. Besharat, Case No. B218683 (2d Dist., Div. 1 July 2, 2010) (unpublished), the Second District, Division 1—in a 3-0 opinion authored by Presiding Justice Mallano—also affirmed the denial of fees to the same plaintiff in a van-accessible handicap parking spot lawsuit. Although Civil Code section 55 does not define “prevailing party,” the appellate panel found that catalyst theory principles were apposite where nonmonetary relief is sought, namely an injunction against further disability access violations. (Molski v. Arciero Wine Group, 164 Cal.App.4^th 786, 790 (2008).) However, under the catalyst theory, the plaintiff must make a reasonable attempt to settle the issue with the defendant before the lawsuit—something missing in this case and in Mundy v. Neal. A prelitigation settlement attempt is mandatory in catalyst cases. Beyond this, however, plaintiff did not show a causal connection between the lawsuit and his relief because defendants had already provided adequate parking width for handicapped persons in substantial compliance with the law.

     So, at least two divisions of the Second District are in accord on fee recovery when Civil Code section 55-seeking plaintiffs rely on the catalyst theory as a predicate for an award of attorney’s fees.

     BLOG UNDERVIEW—To all of our readers and viewers, have a happy and safe July 4^th. Happy Birthday, USA.