Plaintiff Jankey filed a lawsuit under the ADA, Unruh Civil Rights Act (including Civil Code § 55), the CA Disabled Persons Act, and Health & Safety Code § 19955, alleging that a four-inch step located at the entry of Lee’s K & D Market was an architectural barrier preventing him and other wheelchair bound individuals from “wheeling directly into the store.” Lee’s motion for summary judgment was granted and he brought a motion to recover his attorney fees under Civil Code § 55. In ruling on the fee motion, the parties disagreed as to the applicable law. Jankey argued that the court should require Lee to show that his claims were frivolous, unreasonable or groundless, as required under the ADA (based on Hubbard v. SoBreck, LLC, 554 F.3d 742). Lee argued that the fees were automatically available to a prevailing defendant under Section 55, regardless of the characterization of Plaintiff’s claims, and the ADA does not preempt such an award (based on Molski v. Arciero Wine Group, 164 Cal.App.4th 786). The trial court applied Molski and awarded Lee his attorneys’ fees under Section 55. Jankey appealed.
Affirmed. The mandatory fee award under Civil Code § 55 is not preempted by the discretionary standard under the ADA. Civil Code § 55 exposes a plaintiff to an adverse fee award because if it is not enforced, plaintiffs might take a “scorched earth” approach to litigation with no consequences.