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Wheelchair User Who Lost Suit May Have to Pay Up
By Scott GrahamContactAll Articles
The RecorderOctober 2, 2012
http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202573523239
SAN FRANCISCO — California’s disability access law offers greater protections to the disabled than its federal counterpart, the Americans with Disabilities Act.
Now it looks like California’s Disabled Persons Act will come with greater potential punishment, too.
On Tuesday, the California Supreme Court seemed poised to rule that attorney fees must be imposed on losing parties under the act — even if the losing party is the plaintiff, and even if the claims were brought under both the state law and the ADA, where fee-shifting is harder to get.
“If you want the greater remedies” of the Disabled Persons Act, “then you have to live with the procedure,” Justice Goodwin Liu told Berkeley attorney Brad Seligman, representing amici curiae the Impact Fund and nine other civil and disability rights groups.
Jankey v. Lee, S180890, was originally brought by Thomas Frankovich, a San Rafael attorney who is a prolific filer of disability rights actions, occasionally bringing him into conflict with the State Bar and federal courts. Frankovich’s client, Les Jankey, sued Song Koo Lee, the owner of K&D Market in San Francisco.
Jankey alleged that a 4-inch step at the store entrance prevented him and other individuals in wheelchairs from entering the store. He sued under three California laws including the Disabled Persons Act, as well as the ADA.
This was standard operating procedure for Frankovich, whose firm filed at least 223 lawsuits in federal courts in 2004 alleging violations of the ADA and California disability laws, according to a 2005 federal court opinion.
S.F. Superior Court Judge Patrick Mahoney granted summary judgment to Lee, saying removal of the step wasn’t practical and that Lee offered alternatives for customers in wheelchairs. He awarded $118,000 in attorney fees to Lee, noting that under California Civil Code §55, “the prevailing party” in a Disabled Persons Act case is entitled to reasonable attorney fees.
Jankey, represented by new counsel, appealed, pointing out that the U.S. Court of Appeals for the Ninth Circuit ruled in 2008 that the Americans with Disabilities Act pre-empts California’s law with respect to attorney fees.
The First District Court of Appeal disagreed with the Ninth Circuit, and on Tuesday it sounded like the Supreme Court would, too.
The ADA explicitly does not pre-empt state laws that provide greater protections for the disabled, Liu noted, and California’s statutory scheme provides broader standing and statutory damages. “So why would it be caught by this conflicts-pre-emption shield?” Liu asked Seligman.
Seligman emphasized that because of the similarities in the law, “the defendant didn’t incur a minute” of extra time defending Jankey’s state law claims. Further, Seligman argued, some of the state laws Jankey invoked, like the Unruh Civil Rights Act, have tighter limits on fee shifting.
But that didn’t appear to persuade Liu, who said Jankey “decided to roll the dice” by adding §55 claims that put the defendant at greater risk. “Isn’t that enough” to justify the tougher fee shifting, he asked?
Justice Joyce Kennard added that fee-shifting provision “couldn’t be said in clearer language.”
When he took the podium, defense attorney David Axelrad of Encino’s Horvitz & Levy argued that because adding a §55 claim is optional, doing so doesn’t create an obstacle that triggers pre-emption. “The plaintiff is master of the complaint,” he told the court, and can “completely avoid any risk of paying the prevailing defendant’s attorneys fees” by choosing to file under other statutes.
Scottlyn Hubbard of Chico also argued on behalf of Jankey.
By Scott GrahamContactAll Articles
The RecorderOctober 2, 2012
http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202573523239
SAN FRANCISCO — California’s disability access law offers greater protections to the disabled than its federal counterpart, the Americans with Disabilities Act.
Now it looks like California’s Disabled Persons Act will come with greater potential punishment, too.
On Tuesday, the California Supreme Court seemed poised to rule that attorney fees must be imposed on losing parties under the act — even if the losing party is the plaintiff, and even if the claims were brought under both the state law and the ADA, where fee-shifting is harder to get.
“If you want the greater remedies” of the Disabled Persons Act, “then you have to live with the procedure,” Justice Goodwin Liu told Berkeley attorney Brad Seligman, representing amici curiae the Impact Fund and nine other civil and disability rights groups.
Jankey v. Lee, S180890, was originally brought by Thomas Frankovich, a San Rafael attorney who is a prolific filer of disability rights actions, occasionally bringing him into conflict with the State Bar and federal courts. Frankovich’s client, Les Jankey, sued Song Koo Lee, the owner of K&D Market in San Francisco.
Jankey alleged that a 4-inch step at the store entrance prevented him and other individuals in wheelchairs from entering the store. He sued under three California laws including the Disabled Persons Act, as well as the ADA.
This was standard operating procedure for Frankovich, whose firm filed at least 223 lawsuits in federal courts in 2004 alleging violations of the ADA and California disability laws, according to a 2005 federal court opinion.
S.F. Superior Court Judge Patrick Mahoney granted summary judgment to Lee, saying removal of the step wasn’t practical and that Lee offered alternatives for customers in wheelchairs. He awarded $118,000 in attorney fees to Lee, noting that under California Civil Code §55, “the prevailing party” in a Disabled Persons Act case is entitled to reasonable attorney fees.
Jankey, represented by new counsel, appealed, pointing out that the U.S. Court of Appeals for the Ninth Circuit ruled in 2008 that the Americans with Disabilities Act pre-empts California’s law with respect to attorney fees.
The First District Court of Appeal disagreed with the Ninth Circuit, and on Tuesday it sounded like the Supreme Court would, too.
The ADA explicitly does not pre-empt state laws that provide greater protections for the disabled, Liu noted, and California’s statutory scheme provides broader standing and statutory damages. “So why would it be caught by this conflicts-pre-emption shield?” Liu asked Seligman.
Seligman emphasized that because of the similarities in the law, “the defendant didn’t incur a minute” of extra time defending Jankey’s state law claims. Further, Seligman argued, some of the state laws Jankey invoked, like the Unruh Civil Rights Act, have tighter limits on fee shifting.
But that didn’t appear to persuade Liu, who said Jankey “decided to roll the dice” by adding §55 claims that put the defendant at greater risk. “Isn’t that enough” to justify the tougher fee shifting, he asked?
Justice Joyce Kennard added that fee-shifting provision “couldn’t be said in clearer language.”
When he took the podium, defense attorney David Axelrad of Encino’s Horvitz & Levy argued that because adding a §55 claim is optional, doing so doesn’t create an obstacle that triggers pre-emption. “The plaintiff is master of the complaint,” he told the court, and can “completely avoid any risk of paying the prevailing defendant’s attorneys fees” by choosing to file under other statutes.
Scottlyn Hubbard of Chico also argued on behalf of Jankey.