Jankey v. Lee (2012)

December 17, 2012

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In this disability access action, Horvitz & Levy LLP persuaded a unanimous California Supreme Court to confirm a mandatory attorney fee award to prevailing defendants under Civil Code section 55 and to hold that such awards are not preempted by the federal American with Disabilities Act (42 U.S.C. § 12101 et seq.) (ADA). Horvitz and Levy represented defendant and respondent, Song Koo Lee.

Civil Code section 55 (section 55), part of the California Disabled Persons Act (Civ. Code, § 54 et seq.), provides for an award of attorney fees to the prevailing party in an action to enjoin disability access violations. The Court explained that the plain language of section 55, which provides that “[t]he prevailing party in the action shall be entitled to recover reasonable attorney’s fees,” makes clear that such fees are mandatory for any prevailing party, including a prevailing defendant. The Court further explained that, while the discretionary fee provision of the ADA allows defendants fees only for responding to “frivolous” claims, the ADA does not preempt state laws that afford protection equal to or better than that afforded by ADA. The Court concluded that section 55 qualifies as a state law that affords, in at least some respects, greater protection than its federal counterpart.

The Court also disagreed with the Ninth Circuit’s decision in Hubbard v. SoBreck, LLC (9th Cir. 2009) 554 F.3d 742, which held that federal conflict preemption principles foreclose a mandatory fee award under section 55 where parallel state and ADA claims are filed and the work in defending the two claims overlaps. The Court explained that the defendant here would have been entitled to attorney fees whether or not the plaintiff pleaded an ADA claim, and that the award was a consequence of the plaintiff's voluntary decision to seek additional state remedies. The Court further held that, because section 55’s mandatory fee provision applies only to the state law remedy, it does not stand as an obstacle to congressional objectives.