Prevailing Property Owners May Recover Attorney Fees After Defending Accessibility Lawsuit


California Supreme Court issues more liberal rule for property owner to recover attorney fees after defending accessibility lawsuit.

The California Supreme Court has issued a ruling making it easier for a commercial property owner to recover attorney fees after successfully defending a lawsuit over accessibility.  The case is Jankey v. Lee, No. S180890.

The plaintiff brought a lawsuit under the federal Americans with Disability Act (ADA) and under the California Disabled Persons Act, Civil Code §54 et seq.  Plaintiff contended that a small sill at the front door prevents wheelchair access.  The defendant, operator of a small market in San Francisco, successfully defended by proving that it was not feasible to install a ramp.  The defendant then sought his attorney fees (some $140,000) under Civil Code §55.

Under the ADA, a prevailing defendant must show that the lawsuit was “frivolous” in order to get attorney fees.  Under Civil Code §55, the prevailing party is entitled to an award of reasonable attorney fees, without having to prove that the lawsuit was frivolous.  Some federal courts had held that the ADA preempts the California statute and that no attorney fees could be awarded under the mandatory fee shifting rule in §55.

The Supreme Court disagreed and held that, to the extent the defendant had to defend a claim made under §55, he could recover his fees without having to prove frivolity.  Even if some of the attorney fees would be attributable to both the ADA and the §55 claims, the prevailing defendant could recover.

This case is a step forward for property owners and tenants in California.  It remains to be seen whether the decision will have the unintended consequence of discouraging plaintiffs from suing under §55 (which does have some favorable procedures for owners and tenants) and forcing them to file solely under the ADA to avoid potential attorney fees.

If you have any questions, please contact Mark Hudak at or at (650) 342-9600.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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