Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, No. 56-2008-00311633-CU-PO-VTA, Vincent J. O'Neil, Judge
Donna M. Standard, for Appellant.
Center for Disabilities Access, Russell Handy, for Respondent.
YEGAN, J.
Fillmore & Western Railway, Inc. (FWR) appeals from an order denying its request for attorney fees after judgment was entered in favor of FWR in a wheelchair disability access action. The trial court rejected the argument that the action was frivolous or that FWR, as the prevailing defendant, was entitled to attorney fees under federal or state law. We affirm. (Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786, 792, (Molski).)
Facts and Procedural History
Respondent Arnie T. Pike is 72 years old, suffers from hemi-paralysis, and uses a wheelchair for mobility. He receives Social Security Disability Income and has a handicap placard issued by the State of California. In 2008, Pike sued FWR for not providing a wheelchair lift to access a train owned by FWR. The complaint sought injunctive relief pursuant to the Americans with Disabilities Act of 1990 (ADA; 42 U.S.C. § 12101 et seq.) and damages under the California Unruh Civil Rights Act (Unruh Act: Civ. Code, § 51-53) and the California Disabled Persons Act (DPA; Civ. Code, §§ 54-54.8).
FWR's motion for summary judgment was denied before trial. Following a four day court trial, the trial court entered judgment for FWR because Pike "has not proven he is disabled to the point where he could not walk with assistance the few steps involved in the case at hand." The trial court found that even if Pike had an ADA disability, a statutory exemption barred the action (42 U.S.C. § 12184(c)) because a wheelchair lift would "alter the historic or antiquated character of the [r]ailway even if limited to providing a lift on the platforms."
FWR moved for attorney fees under the ADA and the DPA. The trial court denied attorney fees because the complaint "specifically disclaimed injunctive relief under the DPA, Disabled Persons Act, and it appears the law on ADA attorney's fees is that it's limited to frivolous or unreasonable actions, and I'm not sure I can make that finding in this case...."
Discussion
We review for abuse of discretion. (Molski v. Arciero Wine Group, supra, 164 Cal.App.4th at p. 790.) In Molski, we held that a prevailing defendant in an action to enjoin violation of California's disability access laws could recover reasonable attorney fees pursuant to Civil Code section 55. (Ibid.) "Other provisions of California's disability access statutes allow only a prevailing plaintiff to recover attorney fees (§§ 52, 54.3), but the plain language of section 55 allows bilateral fee recovery" where the action is for injunctive relief. (Ibid.)
"Thus, a disabled person who has actually encountered a barrier to full and equal access can proceed under the Unruh Civil Rights Act or the DPA without being exposed to any risk of an adverse judgment for fees. On the other hand, a person who has suffered no injury and initiates litigation simply to enjoin technical violations of the access statutes under [Civil Code] section 55 has something to lose if he or she does not carefully assess the merits of his or her claim." (Id., at p. 792.)
Here the complaint sought damages but not injunctive relief under the Unruh Act and the DPA. (See Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1218 [damages not recoverable under the ADA, only injunctive relief].) The prayer to the complaint stated: "Note: the plaintiff is not invoking section 55 of the California Civil Code and is not seeking injunctive relief under that section."
The complaint, as drafted, immunized Pike from attorney fees even though FWR was a prevailing defendant. (Molski, supra, 164 Cal.App.4th at p. 792.) The trial court correctly found that Civil Code section 55 did not permit an award of attorney fees absent a claim for injunctive relief under the DPA. (Ibid; see Turner v. Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 1059-1060.)
In Hubbard v. Sobreck, LLC (9th Cir. 2009) 554 F.3d 742, 744, the Ninth Circuit Court of Appeal concluded that a Civil Code section 55 fee award to a prevailing defendant is preempted by the ADA and requires a finding that the action is frivolous or groundless. Our State Supreme Court, in Jankey v. Lee (2010) 181 Cal.App.4th 1173 (S180890, rev. grntd 5/12/10) has granted review on the same issue, i.e., whether an award of fees to a prevailing defendant under the DPA is inconsistent with and preempted by the ADA.
Attorney Fees Under The ADA
Under the ADA, attorney fees are discretionary and may be awarded to a prevailing defendant if the action is frivolous, unreasonable, or without foundation. (Summers v. Teichert & Son, Inc. (9th Cir. 1997) 127 F.3d 1150, 1154, citing Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 [54 L.Ed.2d 648].) Attorney fees "'should only be awarded under exceptional circumstances.... [Citations.] This cautious approach is necessary in order to avoid the chilling effect that regular imposition of such fees could have upon plaintiffs' commencement of ADA claims. [Citation.]" (Palmer v. Chelsea Financing Partnership, LP (E.D.Cal. 2006) 423 F.Supp.2d 1092, 1093.)
The trial court denied the motion for summary judgment and, after a four day trial, concluded Pike had not proven, to a reasonable medical certainty, that he had a disability within the meaning of the ADA, the Unruh Act, or the DPA. Consistent with federal law, the trial court reasonably concluded that Pike's failure to prove an ADA violation was not in itself justification for an award of attorney fees. In Christiansburg Garment Co. v. EEOC, supra, 434 U.S. 412, 421-422 [54 L.Ed.2d 648, 657] the United States Supreme Court warned trial courts to "resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success."
FWR asserts that the statutory exemption for historical or antiquated rail passenger cars was obvious and barred the action. (42 U.S.C. § 12184 (c)(1).) If that was true, the trial court would have granted summary judgment. Pike opposed the motion for summary judgment on the ground that FWR was exempt for ensuring wheelchair accessibility only if did not "significantly alter the historic or antiquated character of a historic or antiquated rail passenger car or a rail station served exclusively by such cars...." (49 C.F.R. § 37.107(c).)
42 United States Code section 12184(c) (1) states: "To the extent that compliance with subsection (b)(2)(C) or (b)(7) of this section would significantly alter the historic or antiquated character of a historical or antiquated rail passenger car, or a rail station served exclusively by such cars, or would result in violation of any rule, regulation, standard, or order issued by the Secretary of Transportation under the Federal Railroad Safety Act of 1970 [45 U.S.C.A. § 431 et seq.], such compliance shall not be required." There are no published cases construing this statutory exception.
The trial court proceeded to trial, weighed and considered four days of oral and documentary evidence, and ruled against Pike. It did not find the statutory exemption was obvious or conclude that the action was so factually or legally groundless that it was frivolous. (See e.g., Tutor-Saliba Corp. v. City of Hailey (9th Cir. 2006) 452 F.3d 1055, 1060; Bruce v. City of Gainsville, G.A. (11th Cir. 1999) 177 F.3d 949, 952; Palmer v. Chelsea Financing Partnership, LP, supra, 423 F.Supp.2d at p. 1093.)
Based on the scant record presented, FWR makes no showing that the trial court abused its discretion in denying the request for attorney fees.
The judgment (order denying attorney fees) is affirmed. Pike is awarded costs on appeal.
We concur: GILBERT, P.J., COFFEE, J.