The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER GRANTING PLAINTIFF'S MOTION TO RE-TAX AND REVIEW THE AWARDING OF COSTS TO DEFENDANT (ECF No. 106)
Presently before the Court is Plaintiff's motion to re-tax and review the awarding of costs to Defendant pursuant to local rule 54.1.h. (Mot. Re-tax, ECF No. 106) Also before the Court is Defendant Ralphs Grocery Company's response in opposition. (Resp. in Opp'n, ECF No. 109) The hearing set for the motion on December 15, 2011, was vacated, and the matter taken under submission on the papers. Having considered the parties' arguments and the law, the Court GRANTS Plaintiff's motion to re-tax costs.
Plaintiff A.J. Oliver, a stroke victim who requires the use of a motorized wheelchair, suffers speech impairment, and is unable to see clearly out of his right eye, filed suit against Ralphs Grocery and Cypress Creek alleging eighteen barriers in violation of federal and state disability laws at a Food 4 Less grocery store. Although Plaintiff moved to amend his original complaint in order to withdraw certain alleged violations and assert additional others, this Court denied Plaintiff's motion to amend as untimely. (Order, Feb. 18, 2009, ECF No. 71) Prior to the issuance of that Order, the parties filed cross-motions for summary judgment. The Court denied Plaintiff's motion and granted in part Defendant's motion; several of the ADA claims were dismissed as moot, and the Court declined to exercise supplemental jurisdiction over the remaining state-law claims, dismissing them without prejudice. (Order, Aug. 26, 2009, ECF No. 87) The Ninth Circuit affirmed. Oliver v. Ralphs Grocery Company, 654 F.3d 903 (9th Cir. 2011).
Subsequently, the clerk of court issued an order taxing costs in favor of Defendant Ralphs Grocery Company in the amount of $633.90. (Order, Sept. 16, 2011, ECF No. 105) Pursuant to Local Rule 54.1.h, Plaintiff filed a motion to re-tax costs, and Defendant opposed.
Under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12205, a court may, in its discretion, award the "prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs." However, with regard to ADA litigation, the "policy considerations which support the award of fees to a prevailing plaintiff are not present in the case of a prevailing defendant." Christianburg Garment Co. v. Equal Emp't Opportunity Comm'n, 434 U.S. 412, 418--19 (1978). Thus, as to prevailing defendants, fees and costs should only be awarded "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation." Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1154 (9th Cir. 1997).
"An action is frivolous if it lacks an arguable basis in law or in fact, though it need not be brought in bad faith." Peters v. Winco Foods, Inc., 320 F. Supp. 2d 1035, 1037 (E.D. Cal. 2004) (granting in part the motion for attorneys fees and court costs in a case brought by Lynn Hubbard III, plaintiff's counsel in the instant case). "[T]his circuit affords the district court discretion to award attorneys fees, even where plaintiff's action is not wholly frivolous. However, . . . such awards will rarely be appropriate where plaintiff has asserted significant meritorious claims." Id. at 1040.
Defendant contends that Plaintiff's suit was frivolous, given Plaintiff's insistence on asserting violations not included in the original complaint, his untenable legal position that state-law accessibility standards are incorporated into the ADA, and his assertion of alleged architectural violations that have been repeatedly held not to be violations of the ADA. (Resp. in Opp'n 2--3, ECF No. 109) To determine whether Plaintiff's complaint was indeed frivolous or whether it asserted significant meritorious claims, the Court will address each of the eighteen barriers alleged in the original complaint to violate state and federal disability laws.
Plaintiff conceded partial summary judgment as to several of the alleged violations. In addition, Plaintiff failed to oppose Defendant's evidence of compliance as to other alleged violations, thereby implicitly conceding summary judgment as to those barriers. That Plaintiff conceded summary judgment as to these barriers does not necessarily suggest that the claims were frivolous; the question is whether Plaintiff knew that Defendants were compliant with the ADA at the time the case was originally filed. See Martinez v. Home Depot USA, Inc., No. S-04-2272, 2007 U.S. Dist. LEXIS 56421, at *3--4 (E.D. Cal. Aug. 2, 2007) ("Home Depot presents no evidence that the barriers in question were clearly ADA-compliant when the claims were filed. Therefore, the court cannot conclude that Martinez's claims were frivolous.").
A. "There is no stop sign painted on the pavement where the accessible route crosses the vehicular way."
Without explanation, Plaintiff "acquiesce[d] to partial summary judgment on his request for injunctive relief" as to his stop signs at crossings claim. (Resp. in Opp'n to Def. Ralphs Grocery's Mot. Summary J. ("Ralphs MSJ") 18, ECF No. 79) In fact, plaintiff's counsel has asserted and later conceded this claim in prosecuting other ADA cases. See, e.g., Martinez v. Home Depot USA, Inc., No. S-04-2272, 2007 U.S. Dist. LEXIS 21838, at *8 (E.D. Cal. Mar. 27, 2007) ("For Claim 10, concerning stop signs at crossings, Martinez concedes without elaboration that there is no ADA violation."). It is unclear from Martinez whether plaintiff's counsel conceded there was no ADA violation because he recognized that there is no requirement for such a stop sign or because Home Depot took remedial action that mooted the claim. See Martinez, 2007 U.S. Dist. LEXIS 56421, at *4 n.2.
If plaintiff's counsel knew that the stop sign at crossings claim was legally untenable but nevertheless asserted it here, the Court would be inclined to find that the claim was frivolous.Indeed, "[g]iven the volume of disabilities litigation filed by plaintiff's counsel, the court must assume a passing familiarity with the law in this area." Peters, 320 F. Supp. at 1038. However, the only authority provided by either of the parties as to the merits of Plaintiff's stop signs at crossings claim is Defendant's bare assertion that "there is no ...