Store Owner Entitled to Attorney Fee Award for Successful Defense of Disabled Persons Act Claim


In Jankey v. Lee, 2012 DJDAR 16809 (2012), the California Supreme Court decided an interesting attorney fee case involving a claim for attorney fees by a defendant who was successful in defending against a claim of disability access under the California Disabled Persons Act.

The defendant owned a grocery store in San Francisco. The plaintiff was a wheelchair user. The plaintiff sued the defendant alleging that the grocery store was not accessible for individuals with disabilities. The plaintiff alleged claims arising under the federal Americans with Disabilities Act (ADA), the Unruh Civil Rights Act, and the California Disabled Persons Act.

The defendant moved for summary judgment on the ground that the removal of the “architectural barrier” was “not feasible.” The court granted the defendant’s summary judgment motion. After prevailing on the summary judgment, the defendant moved for attorney fees under Civil Code Section 55 which is a provision contained in the Disabled Persons Act. Section 55 of the code provides fees for prevailing parties in actions relating to alleged disability access violations. The trial court awarded the defendant $118,458 in attorney fees based on the fee application.

The plaintiff appealed the fee award and the court of appeal affirmed the lower court’s decision. The court of appeal noted that under Section 55, the prevailing party, not just a prevailing plaintiff, in the action is entitled to recover reasonable attorney fees. Once a trial court finds that a defendant qualifies for attorney fees under Section 55, such a fee award is mandatory. Although the plaintiff argued that the ADA preempted the California Disabled Persons Act, the court rejected that argument as well. A finding of preemption would have trumped the legal basis for an award of fees.