Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, No. BC406197Yvette M. Palazuelos, Judge.
Morse Mehrban for Plaintiff and Appellant.
R. Lance Belsome for Defendants and Respondents.
MALLANO, P. J.
In this action brought under sections 54 and 54.1 of the Civil Code, plaintiff, Thomas Mundy, an individual with a disability, appeals from an order denying his motion for attorney fees under Civil Code section 55. We affirm because the trial court did not err in determining that Mundy does not qualify as a “prevailing party” under the “catalyst theory” so as to entitle him to an attorney fees award.
We take the facts from the parties’ pleadings, inasmuch as they are undisputed.
Mundy alleged that on November 12, 2008, he could not find a van-accessible handicap parking spot in the parking lot owned by defendants Kambiz and Firouzeh Besharat. Two months later, on January 23, 2009, Mundy filed for permanent injunctive relief against the Besharats for failing to provide Mundy with a van-accessible handicap parking spot in violation of Civil Code sections 54 and 54.1, the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) (ADA), the ADA Standards for Accessible Design (codified at 28 C.F.R. pt. 36, appen. A) (ADA Standards), and former section 1129B of title 24 the California Code of Regulations, also known as the California Building Code.
Civil Code section 54 provides: “(a) Individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities, and other public places. [¶]... [¶] (c) A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section.”
“The ADA required the Department of Justice [DOJ] to issue regulations carrying out the non-transportation requirements of [the ADA]. Pursuant to this statutory mandate, the DOJ promulgated standards for accessible design, which were codified at 28 C.F.R. pt. 36, App. A.... The DOJ standards contain detailed design specifications for public accommodations covering an exhaustive list of architectural elements including, among others, space allowance and reach ranges, accessible routes, parking lots and passenger loading zones....” (Casteneda v. Burger King Corp. (N.D.Cal. 2009) 264 F.R.D. 557, 560.)
“Title 24, part 2 of the California Code of Regulations is also known as the California Building Code and is published separately under that name.” (Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 259, fn. 2.) The state standards governing accessibility of public accommodations in the California Building Code “set forth a comprehensively detailed list of design specifications prescribing the minimum standards for all manner of architectural elements, which are similar but not identical to the requirements in the DOJ standards for the ADA. A violation of a California standard violates both the CDPA [Civil Code section 54] and the Unruh Act [Civil Code section 51].” (Casteneda v. Burger King Corp., supra, 264 F.R.D. at p. 561, fn. omitted.)
The Besharats answered, denying that they violated Civil Code sections 54 and 54.1. In subsequent pleadings, the Besharats stated that Mundy admitted that they had a van-accessible handicap parking spot available for him on the day of his visit, but that the striped portion of the unloading area beside the parking space was 74 inches wide rather than the required 96 inches.
Although the Besharats’ paint lines demarcating the parking spot’s unloading zone enclosed a space that was only 74 inches wide, the actual physical space available for unloading was more than 96 inches wide. The City of Los Angeles Department of Building and Safety approved their handicap parking spot as of July 29, 2002. The City of Los Angeles Department of Building and Safety’s 2001 Information Bulletin referred to the 2001 version of section 1129B of the California Building Code. The 2001 version of section 1129B dealing with the requirements for van-accessible parking spaces did not require that the 96-inch access aisle be striped or hatched.
In 2001, the California Building Code provided in former section 1129B.4.2: “One in every eight accessible spaces, but not less than one, shall be served by an access aisle 96 inches... wide minimum placed on the side opposite the driver’s side when the vehicle is going forward into the parking space and shall be designated van accessible as required by Section 1129B.5. All such spaces may be grouped on one level of a parking structure. The words NO PARKING shall be painted on the ground within each eight-foot... loading and unloading access aisle. This notice shall be painted in white letters no less than 12 inches... high and located so that it is visible to traffic enforcement officials. See Figure 11B–18B.” (Cal. Code Regs., tit. 24, former § 1129B.4.2.)
Nevertheless, the Besharats extended the paint lines of their unloading zone to create a boundary that is 96 inches wide.
Mundy seized upon the Besharats’ act as fulfilling the purpose of his lawsuit, and on July 16, 2009, Mundy moved to dismiss the lawsuit with prejudice. The court granted Mundy’s motion to dismiss with prejudice.
Thereafter, Mundy moved for an award of attorney fees under Civil Code section 55 as the “prevailing party” within the meaning of section 55 on the basis that he was the “catalyst” for the Besharats’ remediation. Mundy conceded that he did not offer a prelitigation settlement to the Besharats but countered that he was not required to do so. The Besharats opposed the request for attorney fees, arguing that Mundy was neither the prevailing party nor the catalyst to the Besharats’ act. The trial court agreed with the Besharats and denied the motion for attorney fees, finding that the Besharats were in substantial compliance with the law.
Civil Code section 55 specifies, in part, that “[t]he prevailing party in the action shall be entitled to recover reasonable attorney fees.”
This appeal followed.
DISCUSSION
The issue before us is a legal issue regarding the interpretation of Civil Code section 55, which we review de novo. (Bussey v. Affleck (1990) 225 Cal.App.3d 1162, 1165.)
To recover attorney fees under Civil Code section 55, the plaintiff must be the prevailing party in the litigation. Because section 55 does not define “prevailing party, ” it is necessary to turn to other sources of California law for guidance. Courts in this jurisdiction have used the language of section 1032, subdivision (a)(4) of the Code of Civil Procedure to define “prevailing party” in the context of Civil Code section 55. (Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786, 790; Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 185.)
Code of Civil Procedure section 1032, subdivision (a)(4) provides that a prevailing party “includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” (Italics added.) The italicized provision pertaining to nonmonetary relief is pertinent here, where plaintiff sought injunctive relief and then dismissed his complaint.
To help determine if such a plaintiff is the prevailing party in the context of nonmonetary relief, courts have relied on the catalyst theory, an offshoot of section 1021.5 of the Code of Civil Procedure, to decide whether or not to award attorney fees. (Molski v. Arciero Wine Group, supra, 164 Cal.App.4th at p. 790; Donald v. Cafe Royale, Inc., supra, 218 Cal.App.3d at p. 185.)
Code of Civil Procedure section 1021.5 provides: “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest....”
Satisfying the catalyst theory requires that (1) the plaintiff must have taken reasonable measures to settle the issue before litigation, and (2) the plaintiff must be a catalyst to the defendant’s behavior. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 576.)
First, the plaintiff must make reasonable attempts to settle the issue with the defendant before the lawsuit. While it is not necessary that the plaintiff engage in lengthy prelitigation negotiations with the defendant through counsel, the plaintiff must notify the defendant of the alleged grievances. (Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 577.) During these negotiations, the plaintiff must propose remedies and give the defendant the opportunity to meet the plaintiff’s demands within a reasonable time. (Ibid.)
Second, to determine if the lawsuit was a catalyst for the defendant’s action, the plaintiff must show that (1) “there must be a causal connection between the lawsuit and the relief obtained, ” and (2) the plaintiff’s lawsuit induced the defendant’s voluntary actions, not by mere nuisance or expense, but by the threat of the plaintiff’s victory. (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 353; Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 575; Northington v. Davis (1979) 23 Cal.3d 955, 960, fn. 2.)
Here, Mundy did not receive a net monetary gain from the lawsuit, so we proceed to the catalyst theory to determine if he is the prevailing party.
The first prong of the catalyst theory requires that the plaintiff take reasonable measures to settle with the defendant before the lawsuit. While Mundy contends that he did not need to attempt a prelitigation settlement, his reasoning applies only to noncatalyst theory cases. (Vasquez v. State of California (2008) 45 Cal.4th 243, 253.) As Graham noted and Vasquez confirmed, for catalyst theory cases there is a mandatory prelitigation settlement attempt rule. (Ibid.; Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at pp. 560–561.) Such a rule reflects an important policy rationale. As the Supreme Court noted, “Awarding attorney fees for litigation when those rights could have been vindicated by reasonable efforts short of litigation does not advance that objective and encourages lawsuits that are more opportunistic than authentically for the public good.” (Graham, at p. 577.)
Because Mundy conceded at trial that he did not offer a settlement to the Besharats before the start of litigation, he cannot recover his attorney fees under the catalyst theory. Given that Mundy is not the prevailing party, his arguments regarding the distinction between mandatory and discretionary attorney fee statutes are irrelevant to the discussion.
Although we need not analyze the second prong of the catalyst theory, we will do so as it is an alternative ground why Mundy’s attorney fees request fails. The second prong of the catalyst theory requires that the plaintiff act as the catalyst to the defendant’s action. To be considered a catalyst, there must be a causal connection between the lawsuit and the plaintiff’s relief. Additionally, the plaintiff’s lawsuit must induce the defendant’s voluntary actions out of the defendant’s fear of losing the suit. Here, Mundy has not shown that he received any relief from his lawsuit inasmuch as the Besharats had complied with the statutory requirements, which incorporate the ADA Standards. The ADA Standards require a van-accessible handicap parking spot to have a loading zone with a width of 96 inches. Mundy does not establish that the ADA Standards require a 96-inch wide demarcation through paint striping. While the diagrams in the ADA Standards’ appendix show painted and striped boundaries, nothing in the ADA Standards’ language requires a painted set of stripes to show the 96-inch wide loading zone. The ADA Standards require a 96-inch wide loading zone; nothing is mandated as to striping. Thus, under the plain meaning rule, the Besharats complied with the law by providing a 96-inch wide loading zone. And the requirements for van-accessible handicap parking in the 2001 version of the California Building Code did not require that the access aisle be striped or hatched. (See Cal. Code Regs., tit. 24, former § 1129B.4.2; ante, fn. 5.)
Mundy, both in the trial court and in his opening brief, did not refer to the current requirements for a van-accessible handicap parking space, set out in section 1129B.3.2 of the January 1, 2009 supplement to the 2007 California Building Code, and the current requirements are not in the record on appeal. But we note that the regulation now requires that the access aisle “be marked by a border painted blue, ” and within the blue border there must be “hatched lines... preferably blue or white.” (Cal. Code Regs., tit. 24, § 1129B.3.2.) Because it is not in the record nor argued by Mundy, we do not discuss the effect of the current regulation on this case.
In sum, we agree with the trial court that the Besharats were in substantial compliance with the law. Even though the Besharats added an extra stripe to extend the loading zone of their van-accessible handicap parking spot to 96 inches, their act was not required by the ADA Standards or Civil Code sections 54 and 54.1. While the Besharats might have added another stripe because of Mundy’s lawsuit, it was not out of fear of losing in court, but to avoid any nuisance or expense. Therefore, Mundy was not the prevailing party under the catalyst theory and is not entitled to recover his attorney fees.
DISPOSITION
The order is affirmed. The Besharats are entitled to costs on appeal.
We concur: ROTHSCHILD, J., JOHNSON, J.
Civil Code section 54.1, subdivision (a)(1) provides: “Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to... places to which the general public is invited, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.”