No Violation of Law Shown Under Various Disability Statutes, With Catalyst And Prelitigation Demand Contentions Not Helping Either.
Because construction/website disability claims are flooding the federal and state courts, Skaff v. Rio Nido Roadhouse, Case Nos. A152462/A153606 (1st Dist., Div. 1 Oct. 5, 2020) (published) is a case showing that the judiciary is eyeballing these claims closely where attorney’s fees and costs are the main thrust of the claims—especially where there are no triggering new construction alterations and all the remediations have been made. This case has an excellent discussion of remedies and fees/costs analysis under Health and Safety Code section 19955, the American with Disabilities Act (ADA), the Unruh Act, and the Disabled Persons Act.
In Skaff, disabled plaintiff asserted two claims, one under Health and Safety Code section 19955 et seq. and the second under the Unruh Civil Rights Act (Civ. Code, § 51 et seq.). The thrust of the claims was that plaintiff visited The Roadhouse, a restaurant and bar located near Guerneville in Sonoma County, on a fall 2012 day where there were two San Francisco team televised events such that he could not find a space to accommodate his van even though there were van accessible spaces – though already occupied—in short, a full parking lot. After plaintiff’s visit and an exchange with a Roadhouse representative, the accessibility concerns were remediated as essentially stipulated to during the subsequent trial. After a 12-day bench trial, the lower court ultimately concluded that plaintiff prevailed on the section 19955 claim, even though plaintiff’s counsel withdrew a request for injunctive relief, based upon catalyst/prelitigation demand “retroactive” theories. However, plaintiff lost his Unruh Act claim because he only encountered a full parking lot and never encountered other alleged ADA non-compliance issues. The trial judge did grant in part plaintiff’s Unruh Act fee request for $242,672 in fees/costs (with almost $193,000 being the fee component).
All of that went POOF! on appeal as a matter of law, after an enlightening analysis of construction disability liability claims under both federal and state statutes.
On the section 19955 claim, because it does not contain an ongoing obligation for existing facilities to remedy barriers to access (only those alterations which trigger state access regulations), no liability occurred because The Roadhouse was not new construction and had not undergone any alterations triggering compliance—triggers conceded by plaintiff’s counsel during trial. So, could fees be based on a catalyst theory under section 19955? No, also. The catalyst theory contemplates a situation where the case was not fully litigated to final judgment; but, even if this is not a requirement, there was no legal merit of the claim because no accessibility modifications were required under the California Building Code.
That took plaintiff to arguing that fees were warranted on the basis of the Unruh Act claim (supplemented by the structural barrier definition under the ADA). The major problem here was that plaintiff did not prevail on this claim and, additionally, plaintiff only encountered a full parking lot, as well as not encountering any issues on non-parking ADA violations because he drove away.
Finally, in a “hail Mary” attempt, plaintiff argued fees were allowable under Code of Civil Procedure section 1032, but this only applies to routine statutory costs, not an award of attorney’s fees.
BLOG COMMENT—Although many construction disability cases are resolved before a legal adjudication, the discussion of remedies and fee availability under federal and state statutes should aid judges, mediators, the bar, and clients in general, both at pre-trial and especially trial phases of litigation.
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