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Les Jankey et al v. Song Koo Lee Etc

December 17, 2012

LES JANKEY ET AL., PLAINTIFFS AND APPELLANTS,
v.
SONG KOO LEE ETC.,
DEFENDANT AND RESPONDENT.



Court: Superior County: San Francisco Judge: Patrick J. Mahoney Super. Ct. No. CGC07-463040 Ct.App. 1/4 A123006

The opinion of the court was delivered by: Werdegar, J.

San Francisco City & County

Sued under state and federal law for disability access discrimination, defendant Song Koo Lee prevailed and sought attorney fees. The trial court concluded fees for a prevailing defendant under Civil Code section 55 were mandatory and awarded $118,458, and the Court of Appeal affirmed.*fn1 We consider two principal challenges to the award: whether the trial court erred in determining that section 55 fees are mandatory, and whether an award of mandatory fees is preempted by the federal Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.; ADA). We conclude the plain language of section 55 makes an award of fees to any prevailing party mandatory, and the ADA does not preempt this part of the state's attorney fee scheme for disability access suits. Accordingly, we affirm the judgment of the Court of Appeal.

Factual and Procedural Background

Lee owns and operates the K&D Market, a small grocery store in San Francisco's Mission District. He does not own the building but has operated the market since 1985.

Plaintiff Les Jankey, a wheelchair user, sued Lee for denying him and other similarly situated disabled persons access to the full and equal enjoyment of the goods and services offered by K&D Market.*fn2 Jankey contended a four-inch step located at the entry of the market was an architectural barrier that prevented him and other wheelchair-bound individuals from wheeling into the store. Jankey asserted violations of the federal ADA, the Unruh Civil Rights Act (§ 51 et seq.), the Disabled Persons Act (§ 54 et seq.),*fn3 and Health and Safety Code section 19955 et seq. Among other relief, Jankey sought an injunction under state and federal law compelling Lee to make K&D Market readily accessible to individuals with disabilities. (See § 55; 42 U.S.C. § 12188(a)(2).)

The trial court granted Lee summary judgment. That K&D Market had a threshold step was undisputed, but Lee conclusively established as an affirmative defense that removal of the barrier was not readily achievable and he thus was entitled to judgment on all four disability access claims. (See Munson v. Del Taco, Inc., supra, 46 Cal.4th at p. 669 & fn. 6; Colorado Cross Disability v. Hermanson Family (10th Cir. 2001) 264 F.3d 999, 1002-1003; 42 U.S.C. § 12182(b)(2)(A)(iv).)

Lee moved for an award of attorney fees under section 55, which provides for prevailing party fees in actions to enjoin disability access violations. Opposing the motion, Jankey argued that section 55 was preempted by the ADA. (See Hubbard v. SoBreck, LLC (9th Cir. 2009) 554 F.3d 742, 745.) In the alternative, Jankey contended an award could be made only upon a finding that the complaint was "frivolous, unreasonable, or groundless."*fn4 (Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 422.) Without directly addressing preemption, the trial court concluded Lee was entitled to a mandatory fee award under Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786.*fn5 The court awarded Lee $118,458 in fees, most of the approximately $130,000 originally sought.

While not contesting the summary judgment, Jankey appealed the trial court's award of attorney fees. The Court of Appeal affirmed. It "respectfully disagree[d] with the Hubbard [v. SoBreck, LLC, supra, 554 F.3d 742] court's preemption analysis," concluding a mandatory fee award was both required by state law and permitted by federal law. It upheld the trial court's fee award in its entirety.

We granted review to address the conflict between the Ninth Circuit's opinion in Hubbard v. SoBreck, LLC, supra, 554 F.3d 742, finding preemption, and the Court of Appeal's decision, finding none.

Discussion

I. Federal and State Disability Access Remedies

Congress and the Legislature have afforded persons with disabilities a range of legal tools for remedying denials of access. The ADA and numerous state statutes each prohibit access discrimination on the basis of disability, but they vary in the remedies they provide.

The ADA prohibits discrimination on the basis of disability in the enjoyment of public accommodations, including with respect to access. (42 U.S.C. § 12182.) Businesses must " 'remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable.' " (Munson v. Del Taco, Inc., supra, 46 Cal.4th at p. 669, quoting 42 U.S.C. § 12182(b)(2)(A)(iv).) Liability does not depend on proof of intentional discrimination, but a private litigant cannot obtain damages for the denial of access, only injunctive relief. (Munson, at pp. 669-670; 42 U.S.C. § 12188(a).)

In 1992, shortly after passage of the ADA, the Legislature amended the state's disability protections " 'to strengthen California law in areas where it is weaker than the [ADA] and to retain California law when it provides more protection for individuals with disabilities than the [ADA].' " (Munson v. Del Taco, Inc., supra, 46 Cal.4th at p. 669, quoting Stats. 1992, ch. 913, § 1, p. 4282.) Two overlapping laws, the Unruh Civil Rights Act (§ 51) and the Disabled Persons Act (§§ 54-55.3), are the principal sources of state disability access protection.

The Unruh Civil Rights Act broadly outlaws arbitrary discrimination in public accommodations and includes disability as one among many prohibited bases. (§ 51, subd. (b).) As part of the 1992 reformation of state disability law, the Legislature amended the Unruh Civil Rights Act to incorporate by reference the ADA, making violations of the ADA per se violations of the Unruh Civil Rights Act. (§ 51, subd. (f); Munson v. Del Taco, Inc., supra, 46 Cal.4th at pp. 668-669.) This amendment was intended to extend to disabled individuals aggrieved by an ADA violation the full panoply of Unruh Civil Rights Act remedies. (Munson, at p. 673.) These include injunctive relief, actual damages (and in some cases as much as treble damages), and a minimum statutory award of $4,000 per violation. (§ 52, subds. (a), (c)(3); Turner v. Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 1058.)

The Disabled Persons Act substantially overlaps with and complements the Unruh Civil Rights Act. (Munson v. Del Taco, Inc., supra, 46 Cal.4th at p. 675.) More narrow in focus than the Unruh Civil Rights Act, it generally guarantees people with disabilities equal rights of access "to public places, buildings, facilities and services, as well as common carriers, housing and places of public accommodation." (Munson, at p. 674, fn. 8; see §§ 54, subd. (a), 54.1, subd. (a)(1).) As with the Unruh Civil Rights Act, the Legislature amended the Disabled Persons Act to incorporate ADA violations and make them a basis for relief under the act. (§§ 54, subd. (c), 54.1, subd. (d); Munson, at p. 674; Wilson v. Murillo (2008) 163 Cal.App.4th 1124, 1131.) The available remedies include actual damages (and in some cases as much as treble damages), with a $1,000 minimum recovery. (§ 54.3, subd. (a); Molski v. Arciero Wine Group, supra, 164 Cal.App.4th at p. 792.) Recognizing the overlap between the Unruh Civil Rights Act and the Disabled Persons Act, the Legislature expressly foreclosed double recovery. (§ 54.3, subd. (c); Munson, at p. 675.)

Section 55 is part of the Disabled Persons Act, but it offers an independent basis for relief. (Molski v. Arciero Wine Group, supra, 164 Cal.App.4th at p. 792.)*fn6 It is broader in two respects than the private right of action authorized by section 54.3: section 55 extends standing to those "potentially aggrieved," not just those who have been actually denied access, and relief may be predicated on potential violations not only of sections 54 and 54.1 but also of various provisions in both the Government Code and the Health and Safety Code.*fn7 (§ 55; see Turner v. Association of American Medical Colleges, supra, 193 Cal.App.4th at p. 1059; Molski, at p. 792.) Section 55 is also narrower than section 54.3 in one significant respect: it authorizes only injunctive relief, not damages. (Molski, at p. 792.)

II. Section 55 Mandates Attorney Fees for Every Prevailing Party

Here, Jankey sued (and lost) under each of the principal federal and state disability access laws--the ADA, the Unruh Civil Rights Act, and sections 54.3 and 55 of the Disabled Persons Act. Section 55, on which Lee predicated his fee request, is unique among these sources of law in containing a broadly worded two-way fee-shifting clause: "The prevailing party in the action" under section 55 "shall be entitled to recover reasonable attorney's fees." Before considering the interplay between this provision and the narrower fee provision of the ADA, we ...


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