Weekly Law Resume - December 27, 2012: ADA Defendant Granted Attorney Fees as a “Prevailing Party”

by Low, Ball & Lynch

Les Jankey v. Song Koo Lee
California Supreme Court (December 17, 2012)

The Supreme Court upheld an award of attorney fees in favor of a defendant in a disability access discrimination case pursuant to California Civil Code §55 concluding such an award was not preempted by the federal Americans with Disabilities Act (ADA).

Defendant Lee owns and operates the K&D Market, a small grocery store in San Francisco’s Mission District. 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. Jankey alleged a four-inch step located at the entry of the market was an architectural barrier that prevented him from wheeling into the store. The complaint asserted violations of the federal ADA, the Unruh Civil Rights Act (§51 et seq.), the Disabled Persons Act (§54 et seq.), and Health and Safety Code §19955 et seq. Jankey sought injunctive relief under state and federal law compelling Lee to make the market readily accessible to individuals with disabilities (§55; 42 U.S.C. §12188(a)(2).)

The trial court granted Lee summary judgment on all four disability access claims as Lee conclusively established as an affirmative defense that removal of the barrier was not readily achievable. Lee moved for an award of attorney fees under §55, which provides for prevailing party fees in actions to enjoin disability access violations. Plaintiff’s opposition argued that §55 was preempted by the ADA and that a defendant could only be awarded attorney fees upon a finding the complaint was “frivolous, unreasonable, or groundless.” The trial court concluded fees for a prevailing defendant under Civil Code §55 were mandatory and awarded $118,458. The Court of Appeal affirmed. The Supreme Court granted review to address the conflict between the Ninth Circuit’s opinion in Hubbard v. SoBreck, LLC (9th Cir. 2009) 554 F.3d 742, finding preemption, and the Court of Appeal’s decision, finding none.

The Supreme Court discussed the ADA and California state statutes which prohibit access discrimination and the varying remedies they provide. Section 55 is part of the Disabled Persons Act, but it offers an independent basis for injunctive relief. The statute states that a prevailing party shall be entitled to recover reasonable attorney’s fees. Recognizing the Legislature knows how to write both unilateral fee statutes and bilateral fee statutes, the Court concluded the statute was written to allow fees for a “prevailing party,” not just a prevailing plaintiff. The text of the statute constitutes a clear departure from that of the Unruh Civil Rights Act (awarding fees only to a “petitioner or plaintiff”) and the ADA (allowing that a court “in its discretion, may allow” fees).

The Court rejected Jankey’s principal contention that the ADA preempts §55 insofar as the state law affords prevailing defendants a broader entitlement to recovery of attorney fees than would federal law. In contrast to §55, the ADA allows defendants fees only for responding to frivolous claims and makes fee recovery discretionary. Jankey contended Congress’s adoption of this more stringent federal standard should preempt the award of fees under a lesser state standard for overlapping work done to defend against both state and federal claims. The Supreme Court noted that Congress spoke to preemption directly in a construction clause that disavowed any broad preemptive intent, instead permitting states to enact and enforce complementary laws. (42 U.S.C. §12201(b).) The legislative history revealed an intent that a state law should qualify for protection from preemption whenever at a minimum some part of it is superior to the ADA in the protection it affords, such that an individual with a disability might choose to invoke it, even if the law may in other respects provide procedures or remedies that are arguably inferior. The Court found §55 qualified as a state law that afforded, in at least some respects, greater protection compared to the ADA. Most notably, the statute’s standing provision is broader than its federal counterpart.

The Court noted that Congress had embraced a cafeteria approach in which those with disabilities could pick and choose from among federal and state remedies and procedures the avenues for relief they thought most advantageous. It followed that if a state remedial scheme is in any regard superior to the ADA, courts should conclude that it is not preempted and instead allow plaintiffs the choice whether to seek relief under federal law, state law, or both. The Court of Appeal’s judgment was affirmed. As the prevailing party, Lee was granted his costs and attorney fees under §55, including his appellate attorney fees.


The decision will result in ADA plaintiffs critically analyzing whether the benefits associated with asserting a Civil Code §55 claim for injunctive relief outweighs the risk of a potential award of attorney’s fees in favor of a defendant should the defendant obtain a judgment in its favor.

For a copy of the complete decision see:


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