Jankey v. Song Koo Lee

Filed 12/17/12

IN THE SUPREME COURT OF CALIFORNIA

LES JANKEY et al., )

)

Plaintiffs and Appellants, ) S180890

)

v. ) Ct.App. 1/4 A123006

)

SONG KOO LEE etc., ) San Francisco City & County

) Super. Ct. No. CGC07-463040

Defendant and Respondent. )

____________________________________)

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.1 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.

1 All further unlabeled statutory references are to the Civil Code.

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.2 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.),3 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).)

2 Jankey was originally joined by a second plaintiff, a nonprofit disability

rights organization, but the trial court concluded it lacked standing and the

organization plays no role in this appeal.

3 “Part 2.5 of division 1 of the Civil Code, currently consisting of sections 54

to 55.3, is commonly referred to as the „Disabled Persons Act,‟ although it has no

official title.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 674, fn. 8.)

2

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.”4 (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 786.5 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.

4 Consistent with common practice, we use “frivolous” as shorthand for this

formulation.

5 Accordingly, the trial court made no finding as to whether Jankey‟s claims

could be characterized as frivolous.

3

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

4

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

5

p. 792.)6 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.7 (§ 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

address, and reject, Jankey‟s challenge to the lower courts‟ conclusion that section

55 grants a prevailing defendant a mandatory right to fees.

6 In full, section 55 provides: “Any person who is aggrieved or potentially

aggrieved by a violation of Section 54 or 54.1 of this code, Chapter 7

(commencing with Section 4450) of Division 5 of Title 1 of the Government

Code, or Part 5.5 (commencing with Section 19955) of Division 13 of the Health

and Safety Code may bring an action to enjoin the violation. The prevailing party

in the action shall be entitled to recover reasonable attorney‟s fees.”

7 Here, Jankey invoked relevant provisions of the Health and Safety Code,

seeking injunctive relief for violations of Health and Safety Code section 19955 et

seq.

6

Two aspects of the plain language of section 55 are dispositive. First, the

statute was written to allow fees for a “prevailing party,” not just a prevailing

plaintiff. The Legislature knows how to write both unilateral fee statutes, which

afford fees to either plaintiffs or defendants, and bilateral fee statutes, which may

afford fees to both plaintiffs and defendants. “When the Legislature intends that

the successful side shall recover its attorney‟s fees no matter who brought the legal

proceeding, it typically uses the term „prevailing party.‟ ” (Stirling v. Agricultural

Labor Relations Bd. (1987) 189 Cal.App.3d 1305, 1311; see also Molski v.

Arciero Wine Group, supra, 164 Cal.App.4th at p. 790; cf. §§ 52.1, subd. (h)

[attorney fees only for “petitioner or plaintiff”], 54.3, subd. (a) [“Any person” who

violates specified statutes “is liable for . . . attorney‟s fees as may be determined

by the court”].) The Legislature chose in section 55 to enact a bilateral fee statute,

granting defendants as well as plaintiffs the opportunity for a fee award.

Second, while the determination that a defendant is a prevailing party is

generally discretionary (see Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332),

once a trial court determines that a defendant qualifies, the language of section 55

mandates a fee award: a prevailing party “shall be entitled” to reasonable fees.

Here as well, the Legislature has routinely and clearly differentiated, using “may”

in circumstances where it intends a fee award to be discretionary and “shall” in

circumstances where it intends an award to be mandatory. (Compare, e.g.,

§§ 52.1, subd. (h) [“the court may award the petitioner or plaintiff reasonable

attorney‟s fees”], 3426.4 [“the court may award reasonable attorney‟s fees”] with

§§ 1785.31, subd. (d) [“prevailing plaintiffs . . . shall be entitled to recover . . .

reasonable attorney‟s fees”], 3344, subd. (a) [prevailing party “shall . . . be entitled

to attorney‟s fees”].)

Consistent with the plain language of section 55, every reported case to

consider the question has concluded, as we do, that an award of fees to a

7

prevailing defendant is mandatory. (Molski v. Arciero Wine Group, supra, 164

Cal.App.4th at pp. 790-792; Jones v. Wild Oats Markets, Inc. (S.D.Cal. 2006) 467

F.Supp.2d 1004, 1011-1012; Goodell v. Ralphs Grocery Co. (E.D.Cal. 2002) 207

F.Supp.2d 1124, 1126-1127.)

Against the text of the statute and precedent, Jankey argues the legislative

history behind section 55 shows the Legislature intended to afford only prevailing

plaintiffs mandatory fees. Section 55 was enacted by Assembly Bill No. 2471

(1973-1974 Reg. Sess.). Jankey selectively cites passages from analyses of this

measure that confirm the Legislature‟s intent to afford prevailing plaintiffs

attorney fees, but never demonstrates that the Legislature did not also intend to

afford fees to prevailing defendants. Indeed, the history is to the contrary and

reveals a conscious choice to ensure prevailing defendants a right to fees. As

originally drafted, the new injunctive provision would have granted fees only to

prevailing plaintiffs. (Assem. Bill No. 2471 (1973-1974 Reg. Sess.) § 1, as

introduced May 15, 1973 [“If successful in obtaining an injunction, the physically

disabled person may be awarded reasonable attorney‟s fees . . . .”].) The

Legislature specifically amended Assembly Bill No. 2471 to make the fee

provision bilateral. (Assem. Bill No. 2471 (1973-1974 Reg. Sess.) § 1, as

amended in Sen., Apr. 22, 1974 [substituting “prevailing party” language]; Legis.

Counsel‟s Dig., Assem. Bill No. 2471 (1973-1974 Reg. Sess.) 2 Stats. 1974,

Summary Dig., p. 242 [the law “[s]pecifies that prevailing party is entitled to

reasonable attorney‟s fees.”].) We would do violence to the language of the

statute were we to disregard that change.8

8 Jankey‟s reliance on the legislative history of a predecessor bill, Assembly

Bill No. 1547 (1972 Reg. Sess.) is equally unpersuasive. Like Assembly Bill

No. 2471 (1973-1974 Reg. Sess.), Assembly Bill No. 1547 was originally drafted

(footnote continued on next page)

8

Jankey also argues section 55 is in pari materia with the ADA and other

state laws protecting disability access, like the Unruh Civil Rights Act, and its fee

provision thus should be interpreted similarly. But statutes on the same subject

will be read in a consistent fashion only “to the extent their language permits.”

(Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1091.) The text of section 55

marks a clear departure from that of the Unruh Civil Rights Act (§ 52.1, subd. (h)

[awarding fees only to a “petitioner or plaintiff”]) and the ADA (42 U.S.C.

§ 12205 [allowing that a court “in its discretion, may allow” fees]). Its fee

provision mandates an award to all prevailing parties, including prevailing

defendants.

III. Section 55 Is Not Preempted

A. The ADA’s Fee Regime

We turn to Jankey‟s principal contention, that the ADA preempts section 55

insofar as the state law affords prevailing defendants a broader entitlement to

recovery of attorney fees than would federal law.

In contrast with section 55, the ADA allows defendants fees only for

responding to frivolous claims and makes fee recovery discretionary: “In any

action or administrative proceeding commenced pursuant to this Act, the court or

agency, in its discretion, may allow the prevailing party . . . a reasonable

attorney‟s fee . . . .” (42 U.S.C. § 12205.) As the legislative history shows clearly,

Congress intended that discretion to be exercised in accord with principles set

forth in Christiansburg Garment Co. v. EEOC, supra, 434 U.S. 412

(footnote continued from previous page)

to allow only prevailing plaintiffs attorney fees. (Assem. Bill No. 1547 (1972

Reg. Sess.) § 1, as introduced Mar. 15, 1972.) But unlike Assembly Bill No.

2471, it was never amended to extend fees to prevailing parties and went down to

defeat.

9

(Christiansburg). (See H.R.Rep. No. 101-485(II), 2d Sess., p. 140 (1990),

reprinted in 1990 U.S. Code Cong. & Admin. News, p. 423; H.R.Rep. No. 101-

485(III), 2d Sess., p. 73 (1990), reprinted in 1990 U.S. Code Cong. & Admin.

News, p. 496.) Under Christiansburg, while prevailing plaintiffs should receive

fees unless an award would be unjust (Christiansburg, at pp. 416-417), prevailing

defendants may receive fees only when the trial court finds that a plaintiff‟s claim

is “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate

after it clearly became so” (id. at p. 422; see, e.g., Bercovitch v. Baldwin School,

Inc. (1st Cir. 1999) 191 F.3d 8, 11 [holding that fees are available to an ADA

defendant only upon a showing of frivolousness]; Summers v. A. Teichert & Son,

Inc. (9th Cir. 1997) 127 F.3d 1150, 1154 [same]; Bruce v. City of Gainesville, Ga.

(11th Cir. 1999) 177 F.3d 949, 951-952 [same]). Jankey contends 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.

B. General Preemption Principles

“The supremacy clause of the United States Constitution establishes a

constitutional choice-of-law rule, makes federal law paramount, and vests

Congress with the power to preempt state law.” (Viva! Internat. Voice for Animals

v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935; see

U.S. Const., art. VI, cl. 2; Arizona v. United States (2012) 567 U.S. ___, ___ [132

S.Ct. 2492, 2500-2501].) “Congress may exercise that power by enacting an

express preemption provision, or courts may infer preemption under one or more

of three implied preemption doctrines: conflict, obstacle, or field preemption.”

(Brown v. Mortensen (2011) 51 Cal.4th 1052, 1059.)

In both express and implied preemption cases, whether preemption will be

found in a given case depends foremost on congressional intent. (Wyeth v. Levine

10

(2009) 555 U.S. 555, 565; Brown v. Mortensen, supra, 51 Cal.4th at pp. 1059-

1060.) Significantly, we begin with a presumption against preemption and will

override that presumption only when Congress has made “ „clear and manifest‟ ”

its intent to displace state law with federal law. (Medtronic, Inc. v. Lohr (1996)

518 U.S. 470, 485; accord, Brown, at p. 1060.) As the party asserting preemption,

Jankey has the burden of overcoming that presumption and establishing that

Congress in fact intended to invalidate a law such as section 55. (Viva! Internat.

Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41

Cal.4th at p. 936.)

C. Section 501(b) of the ADA

Here, Congress has spoken to preemption directly: a construction clause in

the ADA spells out the act‟s intended effect on state laws. The clause disavows

any broad preemptive intent, instead permitting states to enact and enforce

complementary laws: “Nothing in this Act shall be construed to invalidate or limit

the remedies, rights, and procedures of any . . . law of any State or political

subdivision of any State or jurisdiction that provides greater or equal protection for

the rights of individuals with disabilities than are afforded by this Act.” (42

U.S.C. § 12201(b) (hereafter sometimes ADA § 501(b)).)

On its face, this clause distinguishes state laws that afford equal or better

protection to the disabled than the ADA from those that do not. Laws in the

former category are shielded from preemption; nothing in the ADA “shall be

construed to invalidate or limit the remedies, rights, and procedures” they provide

those with disabilities. (42 U.S.C. § 12201(b).)9 Laws in the latter category are,

9 See also House of Representatives Reports, report No. 101-485(II), 2d

Session, page 135 (1990), reprinted in 1990 United States Code Congressional and

Administrative News, page 418 (“Congress does not intend to displace any of the

(footnote continued on next page)

11

by negative implication, not shielded from preemption. The construction clause,

however, does not expressly preempt these less protective laws; it does not

categorically declare that any law providing lesser protection than the ADA is

invalid. In the absence of either express preemption or a shield against

preemption, it follows that such laws are invalid to the extent standard conflict or

obstacle preemption principles would require their displacement.10

We previously have recognized the congressional “ „power to preclude

conflict [and obstacle] preemption, allowing states to enforce laws even if those

laws are in direct conflict with federal law or frustrate the purpose of federal

law.‟ ” (Viva! Internat. Voice for Animals v. Adidas Promotional Retail

Operations, Inc., supra, 41 Cal.4th at p. 945, fn. 9; see Geier v. American Honda

Motor Co. (2000) 529 U.S. 861, 872 [acknowledging that Congress has the

constitutional power to limit implied preemption].) Congress can determine that,

so long as a state law affords equal or greater protection than the ADA, it

categorically should be treated as not preempted. (See Wood v. County of

Alameda (N.D.Cal. 1995) 875 F.Supp. 659, 663-664 [ADA § 501(b) is intended to

ensure plaintiffs are never denied on preemption grounds the benefits of such

(footnote continued from previous page)

rights or remedies available under other . . . state laws . . . which provide greater or

equal protection to individuals with disabilities.”); House of Representatives

Reports, report No. 101-485(III), 2d Session, page 70 (1990), reprinted in 1990

United States Code Congressional and Administrative News, page 493 (same).

10 In contrast, neither express nor field preemption bears on state laws

protecting the rights of individuals with disabilities. ADA section 501‟s

construction clause aside, the ADA contains no express preemption clause. As

well, ADA section 501‟s express preservation of the several states‟ authority to

regulate in the area of disability discrimination negates any argument that

Congress intended to occupy the field of disability rights protection.

12

compatible state statutes].) Our first task, then, is to determine whether section 55

qualifies as such a law.

Neither the text of the construction clause nor any other language in the

ADA addresses how to determine whether a state law affords equal or greater

protection than the ADA. Accordingly, we may turn to the legislative history for

insight. (E.g., Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 770.) The

committee reports explaining the construction clause reveal 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.

ADA section 501(b) was intended to ensure “all of the rights, remedies and

procedures that are available to people with disabilities under . . . other state laws

(including state common law) are not preempted by this Act.” (H.R.Rep. No. 101-

485(II), 2d Sess., p. 135 (1990), reprinted in 1990 U.S. Code Cong. & Admin.

News, p. 418; H.R.Rep. No. 101-485(III), 2d Sess., p. 70 (1990), reprinted in 1990

U.S. Code Cong. & Admin. News, p. 493; see Wood v. County of Alameda, supra,

875 F.Supp. at p. 663 [the purpose of ADA § 501(b) is to “maximize the options

available to plaintiffs”].) In lieu of broadly preempting every arguably lesser state

remedy, Congress elected to maximize individuals‟ freedom to select whichever

legal remedies they desired: “A plaintiff may choose to pursue claims under a

state law that does not confer greater substantive rights, or even confers fewer

substantive rights, if the plaintiff‟s situation is protected under the alternative law

and the remedies are greater.” (H.R.Rep. No. 101-485(III), 2d Sess., p. 70 (1990),

reprinted in 1990 U.S. Code Cong. & Admin. News, p. 493.) The House Judiciary

Committee gave as one example this state‟s Fair Employment and Housing Act

(Gov. Code, § 12900 et seq.), which at the time unlike the ADA did not protect

13

those with mental disabilities, but did offer superior damages remedies. Such a

law should not be construed as conferring lesser rights because of its narrower

scope; rather, ADA section 501(b) and the ADA as a whole should be read to

preserve individuals‟ rights to decide whether to sue under the state law as well, or

instead. (H.R.Rep. No. 101-485(III), 2d Sess., p. 70 (1990), reprinted in 1990

U.S. Code Cong. & Admin. News, p. 493.)

The House Judiciary Committee‟s report reflects a congressional desire to

preserve for the several states the ability to provide those with disabilities

additional remedial options, even options that might in some respects be less

inclusive than federal law or offer lesser relief, if another feature of the state

avenue for redress might render it more desirable or beneficial. Essentially,

Congress embraced a cafeteria approach in which those with disabilities, rather

than being restricted to a single federal remedy, could pick and choose from

among federal and state remedies and procedures the avenues for relief they

thought most advantageous. It follows that if a state remedial scheme is in any

regard superior to the ADA, courts should conclude it is not preempted and instead

allow plaintiffs the choice whether to seek relief under federal law, state law, or

both.

Applying this approach to preemption, we think it evident section 55

qualifies as a state law that affords, in at least some respects, greater protection

compared to the ADA. Most notably, section 55‟s standing provision is broader

than its federal counterpart. Under state law, because a plaintiff need only show

he or she is “aggrieved or potentially aggrieved” (§ 55) to seek injunctive relief,

“virtually any disabled person can bring an action to compel compliance with”

state disability access guarantees (Urhausen v. Longs Drug Stores California, Inc.

(2007) 155 Cal.App.4th 254, 266). In contrast, the ADA requires proof of

ongoing disability discrimination or reasonable grounds to believe the plaintiff is

14

“about to be subjected to” such discrimination. (42 U.S.C. § 12188(a)(1).) A

personal stake is essential; “[t]he ADA does not permit private plaintiffs to bring

claims as private attorneys general to vindicate other people‟s injuries.” (McInnis-

Misenor v. Maine Medical Center (1st Cir. 2003) 319 F.3d 63, 69; see also

Chapman v. Pier 1 Imports (U.S.), Inc. (9th Cir. 2011) 631 F.3d 939, 946 (en

banc) [to obtain injunctive relief under the ADA, an access plaintiff “must

demonstrate a „real and immediate threat of repeated injury‟ in the future”].)

Thus, while courts have issued injunctive relief under state law without requiring

proof that a plaintiff intends to encounter or has been deterred from encountering a

given architectural barrier,11 courts interpreting the ADA have generally required

more, denying injunctive claims for want of standing in the absence of evidence a

plaintiff intends to use a facility or would do so but for the presence of the

challenged barrier.12 Accordingly, an individual with a disability might choose to

11 See Hankins v. El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 526

(upholding injunctive relief for a plaintiff who never attempted to use a

noncompliant wheelchair lift because the plaintiff was still “at least potentially

aggrieved”); Molski v. Arciero Wine Group, supra, 164 Cal.App.4th at page 792 (a

§ 55 plaintiff “will not be required to prove an actual attempt to access the

facility” in order to obtain relief).

12 See, e.g., Steger v. Franco, Inc. (8th Cir. 2000) 228 F.3d 889, 893

(rejecting the standing of access plaintiffs who argued simply that “they are

disabled and may enter the building in the future.”); McInnis-Misenor v. Maine

Medical Center, supra, 319 F.3d at pages 68-73 (affirming dismissal on standing

grounds where a disabled plaintiff could show only that she potentially might

encounter architectural barriers in a hospital, not that a denial of access was

imminent); Milani, Wheelchair Users Who Lack “Standing”: Another Procedural

Threshold Blocking Enforcement of Titles II and III of the ADA (2004) 39 Wake

Forest L.Rev. 69, 84-85 and footnote 68 (collecting cases).

15

sue under section 55, in addition to or instead of the ADA, because of this lower

standing hurdle. ADA section 501(b) preserves against preemption such a law.13

Notably, it matters not for purposes of ADA preemption that other aspects

of section 55, such as the differing attorney fee regime, might be viewed as less

advantageous.14 ADA section 501(b) relieves courts of the need to parse every

aspect of a state law to determine whether, on balance, the state law is equally or

more advantageous as a whole. Instead, that question is left to individual plaintiffs

who may pick and choose the remedies they think worth invoking according to

their particular circumstances.

Jankey argues that ADA section 501(b) is an express preemption clause,

that it nullifies all state laws less protective of the rights of the disabled than the

13 Standing is not the only way in which section 55 is broader than the ADA.

Section 55 enforces a range of state access requirements above and beyond those

contained in the ADA and its enabling regulations. (See § 55; Gov. Code, § 4450

et seq.; Health & Saf. Code, § 19955 et seq.) For purposes of preemption,

however, we need only identify at least one superior aspect of the state law

remedy.

14 Whether all would-be plaintiffs would in fact view the different state law

fee regime as less desirable than the ADA‟s regime is unclear. Some potential

plaintiffs might prefer the state rule, under which every prevailing plaintiff is

“entitled” to recover reasonable attorney fees (§ 55), to the federal rule, under

which fees can be denied a prevailing plaintiff if “ „special circumstances would

render such an award unjust‟ ” (Christiansburg, supra, 434 U.S. at pp. 416-417,

quoting Newman v. Piggie Park Enterprises (1968) 390 U.S. 400, 402). And

some plaintiffs might prefer as well the possibility of recovering fees under a

catalyst theory, available under section 55 but not the ADA. (Compare Mundy v.

Neal (2010) 186 Cal.App.4th 256, 259 [recognizing that under § 55 a plaintiff

might recover fees for triggering voluntary changes in a defendant‟s conduct] with

Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and

Human Resources (2001) 532 U.S. 598, 610 [holding that the ADA does not

authorize catalyst theory recovery, instead requiring a favorable judgment or

consent decree].)

16

ADA, and that section 55 is such a law. We are not persuaded. First, as we have

discussed, the text of ADA section 501(b) and the legislative history behind it

reveal it not as an express preemption clause but as a clause insulating from

preemption any state laws offering better protections in some respect. Second,

Jankey‟s contention that section 55 is less protective rests entirely on his

assumption that all that matters is what protection or benefit he ultimately obtained

from invoking section 55 in this case. This assumption is unfounded. Congress

contemplated that state laws would be protected from ADA preemption if in

principle they afforded superior protections in some regard. (See H.R.Rep. No.

101-485(III), 2d Sess., p. 70 (1990), reprinted in 1990 U.S. Code Cong. & Admin.

News, p. 493.) As we have discussed, section 55 does so. Clearly Jankey himself

at the time of filing saw some benefit to adding a section 55 claim to his ADA

claim or else he would have omitted it. Having invoked section 55, he cannot now

be heard to complain that it has brought him only a bill for attorney fees.

D. Hubbard and Conflict Preemption

In a single paragraph, and without addressing the import of ADA section

501(b), the Ninth Circuit reached a contrary conclusion. (Hubbard v. SoBreck,

LLC, supra, 554 F.3d at p. 745.) Hubbard reasoned that where parallel state and

federal claims are filed, such that the work in defending the two claims overlaps, a

grant of fees on the state law claim “is necessarily a grant of fees as to the ADA

claim.” (Ibid.) In such circumstances, if state law provides for fees where federal

law does not, there is a conflict and the state law must yield. (Ibid.; see PLIVA,

Inc. v. Mensing (2011) 564 U.S. ___, ___ [131 S.Ct. 2567, 2577] [“Where state

and federal law „directly conflict,‟ state law must give way.”])

We disagree with the Ninth Circuit‟s premise, that fees for defending a

state law claim are necessarily fees for ADA work if the claims overlap. Lee

would have been entitled to the same fees whether or not Jankey pleaded an ADA

17

claim; the pleading of an ADA claim was neither a necessary nor a sufficient

cause of the fee award. The fee award here is not in any meaningful sense for or

on account of having to defend against an ADA claim, but instead a consequence

of Jankey‟s purely voluntary decision to seek additional state remedies. State law

does not declare ADA fees compensable, only section 55 fees; it does not dictate

an outcome at odds with federal law.15

Gagliardo v. Connaught Laboratories, Inc. (3d Cir. 2002) 311 F.3d 565

illustrates that an award made under a parallel and overlapping state claim is not

perforce an award made under the ADA. There, the plaintiff sued under both the

ADA and a “virtually identical” state statute and obtained a $2.5 million judgment,

undifferentiated as between the two claims. (Id. at p. 570.) The defendant argued

on appeal that a federal statute capping damages under the ADA necessarily

limited the damages award. (See 42 U.S.C. § 1981a(b)(3).) Drawing on the

reasoning of two title VII cases, Passantino v. Johnson & Johnson Consumer

Products (9th Cir. 2000) 212 F.3d 493 and Martini v. Fed. Nat. Mortgage Assn.

(D.C. Cir. 1999) 178 F.3d 1336, the Third Circuit disagreed. It explained that a

state can authorize liability and damages for the very same acts prohibited by the

ADA without any such award constituting an award for ADA violations and

violating the ADA ceiling. (Gagliardo, at pp. 570-572.) So it is here; an attorney

fee award under state law for defending against a nearly identical state law claim

does not automatically become an award under the ADA, even if the same work is

15 Jankey repeatedly describes section 55 as a law imposing fees “for” a

nonfrivolous ADA action. Such a law would be preempted; a state law that

provided state court defendants with prevailing party fees for defending against

federal ADA access claims under 42 United States Code section 12182 would, in

fact, conflict with federal law. But section 55 does no such thing.

18

involved, and thus need not conflict with the ADA‟s limits on defense attorney

fees.

The Ninth Circuit‟s finding of conflict preemption implicitly rests on the

view that Congress not only established the rule for awarding attorney fees

incurred on account of defending an ADA claim, but also intended to immunize

plaintiffs from paying for any of that same work, absent grounds for payment

under the ADA, even when it was also necessary to defend against an overlapping

state law claim. From the text of the ADA we discern no such intent. Similarly,

nothing in the available committee reports discussing the ADA suggests Congress

even considered the question. Absent congressional intervention, California has

every right to adopt whatever fee regime it deems appropriate upon invocation of

state law remedies. It may establish both the costs of and the potential payoffs for

seeking a state remedy while leaving undisturbed the corresponding costs and

payoffs that flow from invocation of a comparable federal remedy.

Accordingly, we respectfully disagree with the Ninth Circuit‟s conclusion

that conflict preemption forecloses an award of fees for a section 55 claim that

overlaps with a nonfrivolous ADA claim.

E. Obstacle Preemption

Jankey argues that application of section 55‟s fee-shifting provision is

preempted because it stands as an obstacle to the purposes and objectives of

Congress in limiting the recovery of fees for defending against ADA claims. (See

Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 372-373; Viva!

Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra,

41 Cal.4th at p. 936.) Even if we set aside ADA section 501(b)‟s insulation of

statutes like section 55 from obstacle preemption, we can identify no way in which

the fee award here poses a barrier to congressional objectives.

19

As Jankey correctly notes, the policy behind the ADA‟s fee standard is the

policy behind the Christiansburg standard for a defendant‟s recovery of attorney

fees. The United States Supreme Court identified a pair of competing

considerations underlying its selection of that standard. On the one hand,

Congress “wanted to protect defendants from burdensome litigation having no

legal or factual basis.” (Christiansburg, supra, 434 U.S. at p. 420; accord, Fox v.

Vice (2011) 563 U.S. ___, ___, fn. 3 [131 S.Ct. 2205, 2215, fn. 3].) On the other,

“[t]o take the further step of assessing attorney‟s fees against plaintiffs simply

because they do not finally prevail would substantially add to the risks inhering in

most litigation and would undercut the efforts of Congress to promote the vigorous

enforcement of the provisions of [civil rights law].” (Christiansburg, at p. 422.)

Fee awards in cases other than those truly “unreasonable or without foundation

. . . . could discourage all but the most airtight claims, for seldom can a

prospective plaintiff be sure of ultimate success.” (Ibid.) The differentiated

approach to fee awards in civil rights cases, with prevailing plaintiffs recouping

fees more readily than prevailing defendants, is necessary to “advance[] the

congressional purpose to encourage suits by victims of discrimination while

deterring frivolous litigation.” (Roadway Express, Inc. v. Piper (1980) 447 U.S.

752, 762.)

These policies are not implicated in cases where a plaintiff voluntarily

invokes a state law remedy that overlaps with the ADA. The heightened ADA

standard for defense fee awards, requiring a showing of frivolousness, is intended

to avoid chilling the assertion of ADA claims. But because it is only the

invocation of the state law remedy, and not the ADA, that triggers the award of

fees in cases of overlap, it is only the state law remedy, and not the ADA, that

stands to be chilled by the broader availability of defense fees. Plaintiffs can

always sue under the ADA alone, safe in the knowledge that even if they lose,

20

defense fees will be available only in accordance with Christiansburg.

Alternatively, they can add one or more state law remedies if they view the

potential benefits as superior to the potential burdens. If instead the risks appear

to exceed the potential rewards, they can omit a given state law claim, at no loss to

enforcement of their ADA rights. (See Molski v. Arciero Wine Group, supra, 164

Cal.App.4th at p. 792; Goodell v. Ralphs Grocery Co., supra, 207 F.Supp.2d at

p. 1129.) Such a regime is fully consistent with Congress‟s apparent willingness

to allow plaintiffs to freely determine what remedies they pursue. (See H.R.Rep.

No. 101-485(III), 2d Sess., p. 70 (1990), reprinted in 1990 U.S. Code Cong. &

Admin. News, p. 493; Wood v. County of Alameda, supra, 875 F.Supp. at pp. 663-

664.) Congress‟s concern about not discouraging would-be plaintiffs from

availing themselves of the ADA thus offers no reason to preclude states from

establishing different fee award regimes for independently established state law

remedies.

These conclusions do not shift if, as Jankey urges, we focus solely on the

application of section 55 in this case. (See Crosby v. National Foreign Trade

Council, supra, 530 U.S. at p. 373 [obstacle preemption turns on whether, “ „under

the circumstances of [a] particular case, [the challenged state law] stands as an

obstacle to the accomplishment and execution of the full purposes and objectives

of Congress,‟ ” quoting Hines v. Davidowitz (1941) 312 U.S. 52, 67].) Nothing in

the prospect of owing attorney fees under section 55 could have deterred Jankey

from invoking his federal ADA rights here. He asserted them, and the trial court

concluded they had not been impaired, a conclusion Jankey has not challenged.

Nor will the fee award chill Jankey or others from asserting ADA rights in the

future. It may inspire reluctance to invoke section 55 rights, but that is a matter

for the Legislature to consider; it is no concern of Congress‟s, and it is no basis for

finding preemption.

21

IV. Fees for Work Overlapping Defense of the ADA Claim Are Not

Barred Under State Law

Preemption aside, Jankey and amicus curiae the Impact Fund argue that

state law should be read to foreclose fees for overlapping work done to defend

against both ADA and section 55 claims. The general rule is that where a non-fee-

shifting claim overlaps with a fee-shifting claim, it does not limit fee awards under

the fee-shifting claim. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124,

129-130.) An exception may arise where to award fees on the fee-shifting claim

would impair legislative policies implicated by the respective claims. (E.g., Mann

v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 342-343 [“The

issue of the proper amount of fees to be awarded when an attorney‟s time is

attributable to recoverable and nonrecoverable claims depends on the legislative

intent and policies underlying the specific fee-shifting scheme at issue.”]; Carver

v. Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 498, 504-506; cf. Fox v. Vice,

supra, 131 S.Ct. at p. 2215 [under federal law, limiting the amount of fees for

overlapping work based on a determination that Congress so intended].) But as

discussed in connection with conflict preemption, we have found no indication in

the ADA or its legislative history that Congress intended state fees for overlapping

state claims to be foreclosed, nor, as discussed in connection with obstacle

preemption, are we able to discern any policy that would be impaired. Likewise,

we have found nothing in the text or sparse legislative history of section 55 to

indicate fee recovery should be limited as a matter of state law based on overlap

with federal remedies. Accordingly, we decline to read state law as limiting an

award of section 55 fees on this basis.16

16 Jankey and amicus curiae the Impact Fund also argue that section 55 does

not authorize fees for work overlapping with Unruh Civil Rights Act and section

54.3 defense. (See Turner v. Association of American Medical Colleges, supra,

(footnote continued on next page)

22

DISPOSITION

The Court of Appeal‟s judgment is affirmed. Lee seeks his costs and

attorney fees on appeal. As the prevailing party, he is entitled to costs and, under

section 55, to appellate attorney fees as well. (See Morcos v. Board of Retirement

(1990) 51 Cal.3d 924, 927.) On remand, the trial court is to fix the amounts.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

(footnote continued from previous page)

193 Cal.App.4th at p. 1054.) Jankey did not raise the issue in the trial court, the

Court of Appeal, or the petition for review. Because the issue is thus waived, we

do not consider it.

23

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Jankey v. Lee

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 181 Cal.App.4th 1173

Rehearing Granted

__________________________________________________________________________________

Opinion No. S180890

Date Filed: December 17, 2012

__________________________________________________________________________________

Court: Superior

County: San Francisco

Judge: Patrick J. Mahoney

__________________________________________________________________________________

Counsel:

Thomas E. Frankovich; Law Offices of Lynn Hubbard and Scottlynn J. Hubbard IV for Plaintiffs and

Appellants.

Brag Seligman for the Impact Fund, Disability Rights Advocates, Disability Rights California, Disability

Rights Education and Defense Fund, Disability Rights Legal Center, Lawyers‟ Committee for Civil Rights

of the San Francisco Bay Area, Public Advocates, Public Counsel, Public Justice and the Western Center

on Law and Poverty as Amici Curiae on behalf of Plaintiffs and Appellants.

Law Offices of Charles S. Roseman, Charles S. Roseman, Richard D. Prager; LaFave & Rice, John J. Rice;

Law Office of Gary L. Simms and Gary L. Simms for Rosa Miller, Manuel Miller, Ana Maya, Blanca

Miller and Aida Masliah as Amici Curiae on behalf of Plaintiffs and Appellants.

Horvitz & Levy, David M. Axelrad, Andrea M. Gauthier; Livingston Law Firm, Renée Welze Livingston

and Jason G. Gong for Defendant and Respondent.

Dennis J. Herrera, City Attorney, Danny Chou, Chief of Complex and Special Litigation, and James M.

Emery, Deputy City Attorney, for League of California Cities as Amicus Curiae on behalf of Defendant

and Respondent.

Weintraub Genshlea Chediak, Lizbeth V. West, Charles L. Post and Brenda J. Begley for the California

Hotel & Lodging Association, the Golden Gate Restaurant Association, the California Parks Company, the

California Restaurant Association, the California Business Properties Association, Small Business

California, the San Francisco Chamber of Commerce, Building Owners and Managers Association of

California, the California Building Industry Association, the National Federation of Independent Business

Small Business Legal Center and the California Chamber of Commerce as Amici Curiae on behalf of

Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Scottlynn J. Hubbard IV

Law Offices of Lynn Hubbard

12 Williamsburg Lane

Chico, CA 95926

(530) 895-3252

Brag Seligman

Impact Fund

125 University Avenue, Suite 102

Berkeley, CA 94710

(510) 845-3473

David M. Axelrad

Horvitz & Levy

15760 Ventura Boulevard, 18th Floor

Encino, CA 91436-3000

(818) 995-0800