Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1196073, Timothy Staffelp, Judge
Krasnow Saunders Cornblath, LLP, Charles A. Valente, Margaret A. Lavanish; Lascher and Lascher, Wendy Cole Lascher for Defendant and Appellant.
Center for Disability Access, LLP, Mark D. Potter, Russell C. Handy for Plaintiff and Respondent.
YEGAN, A.P.J.
Defendant Costco Wholesale Corporation (Costco) appeals a judgment in favor of plaintiff Ken Barrette for $4,000 statutory damages under the Unruh Civil Rights Act (Civ. Code, §§ 51, subd. (f), 52), which incorporates the provisions of the Americans with Disabilities Act (ADA; 42 U.S.C. § 12182). Barrette appeals the order awarding him attorney fees, claiming that the fee award is inadequate. We conclude: 1. Barrette had standing to pursue an ADA claim, 2. substantial evidence supports the trial court’s finding that Costco’s policies or practices involving accessible parking for the disabled violated the ADA, 3. the evidence is sufficient to support an award of statutory damages, and 4) the trial court did not abuse its discretion in awarding Barrette $12,436 attorney fees. We affirm.
All statutory references are to the Civil Code.
Factual and Procedural Background
Costco operates a retail warehouse and a tire center which are located in the same building with separate entrances approximately 500 feet apart. The warehouse entrance is at the front of the building; the tire center entrance is around the corner.
Barrette is a Costco member who is disabled and uses an electric wheelchair. His van has a "side lift gate," but he needs a disabled parking space with an "eight foot access aisle" to get in and out of the van. Barrette shops at Costco’s warehouse but uses the disabled parking spaces near the tire center because the disabled parking spaces in front of the warehouse “are not van accessible.”
In 2005 Barrette’s wife, Mary, drove the van to the disabled parking area near the tire center so that Barrette could use the side lift gate for his wheelchair. Before she entered the parking space, a Costco employee drove a car into the disabled parking spot. Mary asked whether the car had a disabled placard and the employee admitted there was none. The car belonged to a customer who just had tires installed at the tire center. Mary warned the employee that she could be cited for parking in a handicapped zone. The employee agreed to move the car.
Barrette sued Costco under the Unruh Civil Rights Act for injunctive relief and statutory damages. He claimed that Costco had a practice of parking "non-disabled" customers cars in the "van accessible" disabled parking spot near the tire center. Barrette testified that he had repeatedly confronted Costco tire center employees at the service desk about illegally parked vehicles in the handicapped parking area. On each occasion, the employees "always had the key to the vehicle...."
Charles Buchert, a Costco member, testified that he purchased tires at the tire center. He parked his car in a regular parking spot, but a Costco employee later moved it to a handicapped spot.
Garrett Frisby, a friend of the Barrettes, testified that he saw a car without disability placards parked in the disabled parking space near the tire center. It had a set of new tires that were "completely black, no wear at all, and they had the little nob things on them still."
Ramiro Diaz, the tire center manager, testified that when he became manager in 2003 there was no policy "that barred employees from parking vehicles in the accessible parking spaces outside the Tire Shop." The current policy is that when a vehicle has been serviced, employees should not park customer cars in disabled parking spaces. Diaz did not believe there was a need for a parking policy until August of 2005 when a Costco customer told them that an employee had illegally parked a car in the disabled parking area. After the customer complained, Diaz warned employees not to park cars there.
Dell Davis, general manager of the Costco warehouse, testified that prior to the lawsuit nobody told him that employees were parking in handicapped spaces. Davis said that Diaz acted appropriately in notifying employees not to park cars there.
The trial court found that Costco had a policy or practice of parking cars in disabled parking spaces which contravened the ADA. The court awarded Barrette $4,000 statutory damages. It found that Costco “moved quickly to put in place policies designed to ensure that no further possible violations would occur.”
Standing
Costco contends that Barrette lacks standing to bring an ADA action. We disagree. A violation of the rights of a disabled person under the ADA constitutes a violation of California’s Unruh Civil Rights Act. (§ 51, subd. (f).) "[T]he ADA proscribes discrimination in places of public accommodation against persons with disabilities." (Steger v. Franco, Inc. (8th Cir. 2000) 228 F.3d 889, 892.) Businesses which do not provide adequate handicapped parking spaces are subject to potential liability under this Act. (Botosan v. Paul McNally Realty (9th Cir. 2000) 216 F.3d 827, 835.)
Costco argues that Barrette does not have standing because he wanted to enter the Costco warehouse and elected to use the disabled parking spaces near the tire center. The tire center parking area was 500 feet from the warehouse entrance which had accessible parking.
But whether closer handicapped parking existed and was reasonably accessible to Barrette is a factual issue. (Botosan v. Paul McNally Realty, supra, 216 F.3d at p. 835.) Barrette is a Costco member and uses an electric wheelchair. He needs a disabled parking space with an "eight foot access aisle." A smaller access aisle does not give him enough room to "maneuver" his wheelchair onto the van lift ramp.
Barrette testified that handicapped parking spaces at the front of Costco’s store "are not van accessible." If a car is parked in the next stall there is not enough room for him to exit his van. He therefore uses the van accessible parking spaces near the tire center. The area is safer because Barrette does not have to drive his wheelchair through the congested parking area in the front of the store.
The trial court properly found that Barrette had standing to bring the ADA action. "[U]nder the ADA, once a plaintiff has actually become aware of discriminatory conditions existing at a public accommodation, and is thereby deterred from visiting or patronizing that accommodation, the plaintiff has suffered an injury." (Pickern v. Holiday Quality Foods Incorporated (9th Cir. 2002) 293 F.3d 1133, 1136-1137.)
Substantial Evidence
Costco contends there is no substantial evidence to support the trial court’s finding that it had a policy or practice of parking customer vehicles in handicapped parking spaces. It also claims the evidence is insufficient to support the award of statutory damages.
In deciding the sufficiency of the evidence we draw all reasonable inferences in support of the judgment and do not reweigh the evidence or decide witness credibility. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479; Akopiantz v. Board of Medical Examiners (1961) 190 Cal.App.2d 81, 90.) "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Shamblin v. Brattain, supra, 44 Cal.3d at pp. 478-479.)
Barrette correctly notes that a single ADA violation is sufficient to support the judgment. (Botosan v. Paul MaNally Realty, supra, 216 F.3d at p. 835.) Barrette's wife, Mary, testified that a Costco employee parked a car without a handicapped placard in a handicapped spot before she could park the van. The car belonged to a customer who just had tires installed at the tire center. Mary complained to a Costco manager. She testified that she complained to Costco on five or six occasions about employees parking cars in handicapped spaces. Barrette’s, Buchert’s, and Frisby’s testimony clearly supported the inference that Costco employees were using disabled parking spaces to park cars belonging to non-disabled tire center customers. The trial court reasonably inferred it was a pattern of conduct that continued notwithstanding complaints by Barrette and his wife.
Costco argues that the testimony of its management showed there was no company policy or practice to violate the rights of the disabled. But the credibility of these witnesses was a matter for the trial court to decide, and its finding on the issue of policy and practice was a rejection of Costco’s position.
Citing Skaff v. Meridien North America Beverly Hills, LLC (9th Cir. 2007) 506 F.3d 832, Costco argues that the judgment must be reversed. In Skaff, the disabled plaintiff requested a special hotel accommodation, a "roll-in shower." But the hotel assigned plaintiff a room with a bathtub and promptly corrected the mistake. The Ninth Circuit found "no cognizable injury" under the ADA. (Id., at p. 839.)
Here the trial court, based on substantial evidence, found that Costco had a policy or pattern which led to ADA violation. Unlike the hotel employees in Skaff who made a one-time "mistake," Costco employees regularly parked customer vehicles in disabled parking spaces. Those spaces were marked and any reasonable driver would know the spaces were exclusively for the disabled.
Costco contends that the harm is minimal and that it should not be subject to liability. It suggests that any inconvenience experienced by Barrette vanished after a Costco employee moved the customer car. But allowing a party who violates the ADA to be immune simply because it corrects an obvious violation after the disabled complain would undermine the Act. The ADA was intended to remove obstructions for the disabled, not to allow companies to create them until there is an objection.
Statutory Damages
As to the award of $4,000 statutory damages, Costco claims that the judgment is not authorized under the Unruh Act (§ 52). It notes that in Gunther v. Lin (2006) 144 Cal.App.4th 233, 257, the Court of Appeal held that statutory damages under section 52 are for intentional violations, not inadvertent ones. But here the trial court did not find that Costco acted inadvertently. It found "a policy or practice" by Costco which contravened the ADA.
Attorney Fees
After Barrette presented documentation for $24,871.75 in attorney fees, the trial court reduced that amount to $12,436. No abuse of discretion occurred here.
Although Barrette is entitled to attorney fees as a matter of right (§ 52, subd. (a)), the amount of fees lies within the trial court's sound discretion. (Engel v. Worthington (1997) 60 Cal.App.4th 628, 632-633; Estate of Gilkison (1965) 65 Cal.App.4th 1443, 1448-1449 [abuse of discretion standard on appeal.) Once the lodestar is determined, the trial court may use a variety of equitable considerations to reduce or increase the lodestar amount. (Edgerton v. State Personnel Bd. (2000) 83 Cal.App.4th 1350, 1363.) Among those factors are the nature and difficulty of the litigation, the amount of damages involved, the legal skill required and employed, the hours expended, the result obtained, and the contingent risk presented. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49; Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 416, fn. 5.) " '[T]he most critical factor is the degree of success obtained.' [Citation.]" (HArman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 1312, quoting Hensley v. Eckerhart (1983) 461 U.S. 424, 436 [76 L.Ed.2d 50, 52].)
Barrette sued for negligence, injunctive relief, and statutory damages for an ADA violation that was corrected two months before the action was filed. At the conclusion of the trial, Barrette's attorney conceded that his client "seeks no more than an award of $4,000 – the statutory minimum award." The trial court found that Costco "took immediate remedial action to correct whatever practice was possibly in violation of the [Unruh] Act and moved quickly to put in policies designed to ensure that no further possible violations would occur.... Whether such a commendable response vitiates the violation is questionable. It does reduce the amount of damages and the Court finds that plaintiff sustained no actual damages and therefore is entitled to an award of the statutory minimum of $4,000 provided for in Civil Code, Section 52 plus attorney's fees."
The trial court reviewed the attorney billing and, after "add[ing] everything up," determined that the lodestar amount was $24,871.75 but "in light of this litigation" and the result obtained, awarded fees for half the lodestar amount. As an aside, the trial court noted that the award for fees was "roughly three times" the $4,000 minimum statutory damages.
We reject the argument that the trial court used a formula or arbitrarily "slashed" the award for fees. Although reasonable minds may differ on whether Barrette should be awarded the entire lodestar amount, it is a discretionary matter for the trial court who is the best judge of the value of the professional services rendered and the results obtained. (Serrano v. Priest, supra, 20 Cal.3d at p. 49.) Where "the plaintiff achieved only limited success, the [trial] court 'should award only that amount of fees that is reasonable in relation to the results obtained." (Hensley v. Eckerhart, supra, 461 U.S. at p. 440 [76 L.Ed.2d at p. 55].)
The judgment is affirmed. The parties shall bear their own costs on appeal.
I concur: COFFEE, J.
PERREN J., Concurring and Dissenting
I concur with the opinion of my colleagues in all particulars save one: I would reverse the order of the trial judge reducing the attorney fees. In that particular, I respectfully dissent.
This action was brought to vindicate the rights of persons with disabilities, rights which, as the majority quite correctly note, are guaranteed under law. The enabling legislation contains attorney fees provisions to "ensure 'effective access to the judicial process' for persons with civil rights grievances. [Citation.]" (Hensley v. Eckerhart (1983) 461 U.S. 424, 429.) To unreasonably reduce the attorney fees when such an action is successfully prosecuted would improperly place the burden on plaintiff, instead of defendant, to pay the cost of enforcing vindicating important public rights. (Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 273.) Where, as here, the defense is vigorous, plaintiff must respond and incur fees in doing so. The failure of the trial court to reimburse those fees has the very real effect of transferring the cost of defense to plaintiff and, in so doing, chilling the prosecution of such actions. This is contrary to the spirit and intent of the statute. (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1175-1176.)
The trial court found that the lodestar figure was $27,278. It reduced this sum by $2,856.25, after carefully analyzing plaintiff's fee submission. In doing so, the trial court stated that counsel were "very efficient," Costco had made a "vigorous defense," the hourly rates sought by plaintiff's counsel were "appropriate," and that "there was a real effort by both sides and the court to minimize costs in this case...." These findings align with the issues to be considered in awarding attorney fees as directed by our Supreme Court in Serrano v. Priest (1977) 20 Cal.3d 25, 49. (See Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 323 [trial court improperly measured results of petition signing campaign in reducing attorney fees].)
The factors to be considered include: "(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing lawsuits of the character here involved [fn. omitted]; [and] (6) the fact that the monies awarded would inure not to the benefit of the attorneys involved but the organizations by which they are employed...." (Ibid.)
Despite these findings, the trial court reduced the attorney fees to $12,436, or 50 percent of the amount it determined to be justified in setting the lodestar figure less deductions. It characterized the sum awarded as, "roughly three times damages." In so concluding, however, the trial court acknowledged that, early on, plaintiff offered to settle but was rebuffed. It concluded, "I think I indicated that I thought that defense had institutional issues that they had to protect and that therefore their position in this case there (sic) was a very strong policy reason why they needed to pursue the matter and not accept a cost of defense kind of settlement."
Under the lodestar method, a party who qualifies for a fee should recover for all hours reasonably spent unless special circumstances would render an award unjust. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 446, citing Serrano v. Unruh (1982) 32 Cal.3d 621, 632-633.) Here, plaintiff incurred fees and expenses resulting from defendant's intransigence in resolving the matter. Was plaintiff to capitulate because the case had grown too expensive to further litigate? Such an analysis would run afoul of the public policy encouraging civil rights litigation. A rule that considers the proportionality of award and fees "would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts." (City of Riverside v. Rivera (1986) 477 U.S. 561, 578.) This is inconsistent with the legislative purpose. (Ibid.)
Plaintiff offered to settle but received no offer in response. Thereafter, plaintiff pursued his civil rights claim incurring expenses in large part attributable to the defense it encountered. Ultimately, plaintiff achieved the objective contemplated by the law. He did so by incurring attorney fees found by the trial court to be reasonable in every respect. Having found that the lodestar represented fees reasonably incurred, the trial court implicitly found that this was the sum necessary to achieve the result. The amount awarded, however, was inconsistent with the trial court's findings and contrary to the purpose of the rule that civil rights claims should be favored.
I would reverse and remand with instructions to the trial court to properly determine the award of attorney fees.