State, Federal Courts Conflict on Attorneys Fees In Disability Cases

Two recent appellate decisions in California came to opposite conclusions on the interplay between federal and state attorneys fee provisions.

Each case presented claims under both the both the Americans with Disabilities Act and the California Disabled Persons Act. The first decision came last month in Hubbard v. Sobreck, LLC, --- F.3d ---, 2008 WL 2552244 (9th Cir. Jun. 27, 2008) (No. 06-56870). There, the Ninth Circuit held that Section 55 of the CDPA is preempted because it authorizes fee awards to the defendant for nonfrivolous claims, whereas the ADA permits fee awards to the defendant only for frivolous claims. The court reasoned that since the proof required under both the ADA and the CDPA is identical, allowing fees for nonfrivolous claims under the state law would amount to awarding them under the ADA. The court held that such a result would contradict federal law and was therefore preempted.

By contrast, the California Court of Appeals held this month that state law provides an avenue for the defendant to obtain a fee award for non-frivolous claims in disability access suits, notwithstanding federal law. Molski v. Arciero Wine Group, --- Cal.Rptr.3d ---, 2008 WL 2639446 (Cal. App. 2 Dist. Jul. 7, 2008) (No. B199289).

The court reasoned that California law provides plaintiffs with several options to challenge inaccessible public accommodations – they can sue under the Unruh Civil Rights Act, the monetary relief provision of the CDPA, or the injunctive relief section of that law. Since all three contain different provisions regarding fees, “a plaintiff controls the relative risks, burdens and benefits by selecting from among several statutory options.” Accordingly, California law does not present the same risks of deterring civil rights litigation if fee awards are not strictly limited.

Although the state court did not consider the preemption argument, the holdings are in direct conflict. It is likely that the en banc Ninth Circuit, and/or the California Supreme Court, will be called upon to resolve the issue in the near future.