(San Francisco City & County Super. Ct. No. CGC07-463040). Trial Judge: Hon Patrick J. Mahoney.
The opinion of the court was delivered by: Ruvolo, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Les Jankey (Jankey), a person with a disability who uses a wheelchair for mobility, brought an action against Song Koo Lee (Lee), the owner of K & D Market, a small grocery/liquor store in San Francisco's Mission District. The suit alleges that Lee discriminated against Jankey on the basis of his disability because architectural barriers denied him entry to the market. Jankey's action sought, among other relief, parallel causes of action for injunctive relief pursuant to the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq. (ADA)) and the California Disabled Persons Act (Civ. Code, § 54 et seq. (CDPA)). The court entered summary judgment on all causes of action for Lee, which is not at issue in this appeal.
Instead, this appeal is from an order awarding Lee his attorney fees in the amount of $118,458 under Civil Code section 55*fn2 (Section 55), which mandates that the prevailing party in an action to enjoin a violation of disability access requirements "shall be entitled to recover reasonable attorney's fees." (Italics added.) Relying on the Ninth Circuit's decision in Hubbard v. SoBreck, LLC (9th Cir. 2008) 531 F.3d 983 (Hubbard I), opinion amended and superseded on denial of rehearing by Hubbard v. SoBreck, LLC (9th Cir. 2009) 554 F.3d 742 (Hubbard II), Jankey claims that attorney fees were improperly awarded to Lee as a prevailing defendant on Jankey's claim for injunctive relief under Section 55. Hubbard II held that a mandatory award of fees to a prevailing defendant under Section 55 without a showing that the plaintiff's lawsuit was frivolous, unreasonable, or groundless "is inconsistent with, and therefore preempted by, the ADA." (Hubbard II at p. 744.) We respectfully disagree with the Hubbard II court's preemption analysis, and conclude that attorney fees were properly awarded to Lee as a prevailing defendant under Section 55. We further find that the amount of attorney fees and costs was well within the trial court's discretion. Consequently, we affirm.
II. FACTS AND PROCEDURAL HISTORY
Jankey and Disability Rights Enforcement Education Services: Helping You Help Others (DREES)*fn3 brought this lawsuit against Lee doing business as K & D Market, a small independently owned and operated grocery/liquor store that has been in the Mission District for 61 years. Lee does not own the building, but has operated the market since 1985.
Jankey asserted that Lee violated his rights by "denying plaintiffs and the class of other similarly situated persons with physical disabilities access to, the full and equal enjoyment of, opportunity to participate in, and benefit from, the goods, facilities, [and] services" offered by the market. Specifically, Jankey alleged that a four-inch step located at the entry of K & D Market was an architectural barrier that prevented him and other wheelchair bound individuals from wheeling directly into the store. Jankey claimed Lee was in violation of: ( ( ( the ADA (42 U.S.C. § 12101 et seq.); (2) the CDPA (§ 54 et seq.); the Unruh Civil Rights Act (§ 51 et seq. (the Unruh Act)); and Health and Safety Code section 19955. Among other relief, Jankey's lawsuit sought injunctive relief pursuant to the ADA (42 U.S.C. § 12188(a)(2)) and under Section 55, "to make [the subject place of public accommodation] readily accessible to and usable by persons with disabilities . . . ."
Lee filed a motion for summary judgment contending that Jankey's claims were deficient because: (1) removing the threshold step at the market was not a "readily achievable task" within the meaning of the ADA; (2) Jankey was not denied reasonable access to goods and services; (3) Lee utilized alternative methods to provide goods and services to Jankey which complied with ADA requirements; (4) Jankey's claim under Health and Safety Code section 19955 was not cognizable because the market does not have a public restroom; and (5) DREES lacked standing to prosecute this lawsuit.
The trial court granted summary judgment in Lee's favor on June 12, 2008. The court found that Lee had proved his affirmative defense to all causes of action that because of the regulatory permit process, the removal of the architectural barrier and the installation of a ramp was "contrary to applicable law" and not readily achievable. The court also found that DREES lacked standing to maintain this action. As noted, the correctness of this ruling is not challenged by Jankey in this appeal.
Lee, as the prevailing party, thereafter brought a motion to recover his attorney fees under Section 55. In ruling on the fee motion, the parties below disagreed whether the trial court should apply the Ninth Circuit's decision in Hubbard II, supra, 554 F.3d 742, or the California appellate court's decision in Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786 (Molski). As noted, in Hubbard, the court used preemption principles to require a prevailing defendant, seeking an award of attorney fees under Section 55, to show that the disabled plaintiff's claims were frivolous, unreasonable, or groundless.*fn4 (Hubbard II, supra, at pp. 746-747.) In Molski, the court held that attorney fees were automatically available to a prevailing defendant under Section 55, notwithstanding that the disabled plaintiff's claims could not be characterized as frivolous. (Molski, supra, 164 Cal.App.4th at p. 791.)
Upon considering the parties' arguments, the trial court determined that the Molski court's analysis controlled, and that Lee was entitled to a mandatory award of attorney fees under Section 55. The court made no finding on whether Jankey's lawsuit could be characterized as frivolous. The court awarded Lee $118,458 in attorney fees and $3,544.54 in costs. Judgment was entered on August 28, 2008. Jankey then filed an appeal from the court's award of attorney fees and costs to Lee.