Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC405950, Conrad R. Aragon, Judge.
Morse Mehrban for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
CROSKEY, J.
James Rodriguez (plaintiff) sued Maria Concepcion Russi (defendant) for violation of the Disabled Persons Act. The parties settled, and in accordance with their compromise, judgment was entered against defendant. Plaintiff then moved for attorney’s fees, which the trial court denied on the basis that plaintiff had not made a prelitigation demand for corrective action. Concluding that no prelitigation demand was necessary, we reverse and remand for an award of reasonable attorney’s fees.
Civil Code sections §§ 54-55.2.
Factual and Procedural Background
On November 15, 2008, plaintiff visited defendant’s restaurant, Pepe’s Finest Mexican Food. During the visit, plaintiff, who was wheelchair-bound, was unable to use the restroom mirror because it was mounted too high. Defendant would subsequently take the position that she had always provided a full-length mirror in the restroom but it had been damaged by vandals, and plaintiff visited the restaurant before she had a chance to replace it. Defendant would also take the position that she had replaced the full-length mirror by late November 2008.
On January 20, 2009, plaintiff filed a complaint against defendant for violation of the Disabled Persons Act and asked for $1,000 in statutory damages, permanent injunctive relief, and attorney’s fees and costs. Between January and early November 2009, when defendant claimed she found out about the lawsuit, plaintiff filed two applications for default judgment and submitted a first amended complaint. In accordance with the default judgment, on November 13, 2009, plaintiff filed a motion for attorney’s fees (“November Fees Motion”).
There was a dispute about whether defendant was ever personally served with the initial complaint.
At this point, defendant said she received notice of the lawsuit and threatened to file a motion to set aside the default judgment. In response, the parties stipulated to set aside the default judgment on December 4, 2009, allowing defendant to answer, which she did on December 8. Around the same time, plaintiff also withdrew the November Fees Motion. On January 21, 2010, defendant sent an offer of compromise to plaintiff pursuant to Civil Code section 998, in which defendant offered to have a judgment entered against her for: (1) $1000 in statutory damages, (2) an order of injunction to mount the full-length mirror, and (3) statutory costs, including attorney’s fees incurred to January 21, 2010. Plaintiff accepted on January 29, 2010. In accordance with the offer to compromise, judgment was entered against defendant on April 28, 2010.
Plaintiff again filed a motion for award of attorney’s fees on June 11, 2010, asking for a total of $8,087.50. Defendant opposed plaintiff’s motion on multiple grounds. First, defendant argued that plaintiff’s request for fees was unsupported by competent evidence in violation of Evidence Code section 1271. Defendant pointed out several discrepancies between plaintiff’s November Fees Motion and the current motion, including: (1) plaintiff’s counsel’s hourly billing rate increased from $300 to $350 for all services listed, including all services performed prior to the November Fees Motion; (2) for May 21, 2009, plaintiff’s counsel billed $30 for 0.1 hour in the November Fees Motion, but billed $350 for 1.0 hour in the current motion for the same work; and (3) for August 6, 2009, plaintiff’s counsel billed $75 for 1.0 hour for a contract attorney to attend an order to show cause hearing in the November Fees Motion, but billed $400 for 2.0 hours for an attorney from his firm to attend the same hearing in the current motion. In addition, defendant argued that plaintiff was not entitled to fees incurred before November 5, 2009 or after January 21, 2010. Apparently, more than half of the fees sought were incurred before defendant found out about the lawsuit on November 5. In addition, plaintiff sought fees incurred after January 21, 2010, contrary to the settlement agreement. Lastly, defendant argued that even if plaintiff was entitled to fees, they must be reasonable and should not exceed $1,705.
For a document to be admitted under the business record hearsay exception under Evidence Code section 1271, subdivision (d), it is required that the “sources of information and method and time of preparation were such as to indicate its trustworthiness.”
Defendant calculated $1,705 by adding the attorney’s fees incurred by plaintiff for filing the complaint to the attorney’s fees incurred between November 5, 2009 and January 21, 2010.
Independent of defendant’s objections, the trial court denied plaintiff’s motion in full, ruling that plaintiff was not the prevailing party because there was no evidence that plaintiff had sought to obtain defendant’s compliance with the Disabled Persons Act before filing the lawsuit. Plaintiff appeals.
Issues on Appeal
Plaintiff argues that a prelitigation request for defendant to correct the violation was not a prerequisite to recovering reasonable attorney’s fees because the catalyst theory does not apply, since there was a judicial resolution of the action in favor of plaintiff.
Discussion
1. Standard of Review
A trial court’s determination of the amount of attorney’s fees is normally reviewed for abuse of discretion, but its determination of whether a party meets the criteria for an award of attorney’s fees is a matter of statutory construction. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175; Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.) Thus, whether a party is entitled to recover reasonable attorney’s fees is a legal question and is reviewed de novo. (Mundy v. Neal (2010) 186 Cal.App.4th 256, 259.) Here, since the trial court ruled as a matter of law that the plaintiff was not entitled to attorney’s fees, we review the issue de novo.
2. Entitlement of Prevailing Party to Attorney’s Fees
Under the Disabled Persons Act, the prevailing party in the action is entitled to recover reasonable attorney’s fees. (Civ. Code, § 55). The fee award to the prevailing party is mandatory, not discretionary, in order to serve the policy behind civil rights legislation. (Engel v. Worthington (1997) 60 Cal.App.4th 628, 634-635.) To interpret what constitutes the “prevailing party” for awarding fees, courts have adopted the analysis used for the private attorney general statute, Code of Civil Procedure section 1021.5. (See, e.g., Mundy v. Neal, supra, 186 Cal.App.4th at p. 259; Tipton Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 610.)
The issue of whether an award of fees to a prevailing defendant under the California Disabled Persons Act is inconsistent with, and therefore preempted by, the federal American with Disabilities Act is pending before the California Supreme Court. (Jankey v. Lee, review granted May 12, 2010, S180890.) However, the parties did not address this issue, and the issue is not presented by this case.
Generally, a plaintiff is a “prevailing party” for the purposes of attorney’s fees if the plaintiff obtained a “judicially recognized change in the legal relationship between the parties” or a favorable “judicial resolution.” (Vasquez v. State of California (2008) 45 Cal.4th 243, 260 (Vasquez).) In the absence of a judicial resolution, however, a plaintiff can nonetheless be the “prevailing party” under the “catalyst theory, ” in which the lawsuit was a catalyst motivating the defendant’s change in behavior, and the lawsuit had merit and achieved the desired result through the threat of victory. (Id. at p. 253.) However, in order to recover attorney’s fees under the catalyst theory, the plaintiff must have made a prelitigation request that the defendant comply with the statute. (Ibid.)
The California Supreme Court has ruled that a stipulated injunction is considered a judicially recognized change in the parties’ relationship and is a “sufficient basis for awarding attorney[’s] fees.” (Vasquez v. State of California, supra, 45 Cal.4th at p. 260.) In Vasquez, prison inmates sought payment of wages by joint venture employers that were comparable to those paid to non-inmate employees. (Id. at p. 248.) Ultimately, the parties agreed to a stipulated injunction that imposed continuing obligations on the State, which the trial court approved and entered as a judgment. (Id. at p. 260.) The Supreme Court ruled that this was not a catalyst case, because “a stipulated injunction approved by a court and entered as a judgment is, in effect, a consent decree, ” and thus no prelitigation demand was needed. (Ibid.) In contrast, when there has been a stipulated dismissal, a party can only prevail if it first made a prelitigation demand under the catalyst theory. (Mundy v. Neal, supra, 186 Cal.App.4th at p. 260.)
In our case, no prelitigation request for compliance was necessary because the catalyst theory did not apply. Here, like in Vasquez, the stipulated injunction approved by the court and entered as judgment, was a “consent decree.” Consequently, the judgment entered against defendant was a judicially recognized change in the parties’ relationship. Plaintiff was therefore the prevailing party in a non-catalyst case, and plaintiff’s motion for attorney’s fees did not fail for lack of a prelitigation request. Thus, plaintiff is entitled to recover reasonable attorney’s fees, provided that there is competent supporting evidence.
3. Reasonable Attorney’s Fees
What constitutes reasonable attorney’s fees is to be determined by the trial court in the exercise of its sound discretion. (Serrano v. Priest (1977) 20 Cal.3d 25, 49-50; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096.) Moreover, although prevailing parties can be compensated for litigating their fee claims, “[a] fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)
In this case, defendant raised questions as to whether plaintiff’s fee request was unreasonably inflated. However, it appears that the trial court did not consider any of defendant’s objections. Upon remand, the trial court should (1) consider defendant’s claims that plaintiff was overreaching in terms of the increase in the hourly billing rate and the hours worked, and (2) the plaintiff’s alleged attempt to recover fees incurred before defendant was actually served with the action. Moreover, the offer to compromise, entered as a judgment, only entitled plaintiff to recover attorney’s fees incurred up to January 21, 2010. Since plaintiff accepted defendant’s compromise, it would be unreasonable for plaintiff to recover fees incurred after that date.
Disposition
The order denying plaintiff’s motion for attorney fees is reversed and the matter is remanded with directions to conduct further proceedings consistent with the views expressed herein. Plaintiff shall recover his costs on appeal.
We concur: KLEIN, P.J., ALDRICH, J.