Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Dennis S. Choate, Judge, Super. Ct. No. 05CC11876.
Law Offices of Thomas B. Cummings, Thomas B. Cummings and Audrey L. Myer for Appellant.
Law Offices of Morse Mehrban and Morse Mehrban for Respondent.
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OPINION
SILLS, P. J.
Plaintiff David Gunther visited a cell phone retail store in Garden Grove, accompanied by his wife, and bought two phone chargers, paying for them at a sales counter after waiting in line for a short period. Being in a wheelchair at the time, Gunther could not reach the countertop due to its height, so he signed the credit card sales receipt against his leg. As he left the store, Gunther paused to take two photographs of the sales counter. Then he sued the owner of the property for violation of the Unruh Act.
As it turned out, there was a “standard size desk” which complied with applicable ADA (Americans with Disabilities Act) height requirements immediately adjacent to the counter. The desk was available for use by disabled clients. Gunther did not include the desk in his photographs.
The property owner didn’t settle and took the case to trial. At trial, Gunther claimed that he did not see the (accessible) desk when he was in the store. The jury didn’t believe him and returned a defense verdict.
Now we come to the subject of this appeal. The property owner filed a motion for attorney fees based on its being the prevailing party and therefore otherwise entitled to fees under section 1033.5, subdivision (a)(10)(C) of the Code of Civil Procedure. That statute provides that attorney fees may be awarded as costs “when authorized by . . . Law.” The property owner’s motion was denied even though, at the hearing, the trial judge stated on the record that Gunther’s action was a “totally meritless case.”
We pause to note the nature of the legal basis of the motion -- the “authorized by law” part. The motion was not a motion for sanctions under section 128.7, subdivision (b)(3), which provides for sanctions when claims are presented in court without evidentiary support (or at least obtainable evidentiary support after reasonable opportunity for further investigation or discovery). In that regard, we are informed in the appellant’s brief that a “Motion for Sanctions” was indeed made, though it is not in the record, and its brief hastens to assure us that its sanction motion “is not the subject of this appeal.”
Rather, this appeal is based on the theory that Gunther’s action was brought under the ADA, and the ADA allows discretionary fees to be awarded to prevailing parties (see 42 U.S.C. § 12205), at least when the ADA action is “‘frivolous, unreasonable, or without foundation’” under the federal statute. (See Goodell v. Ralphs Grocery Co. (E.D. Ca. 2002) 207 F.Supp.2d 1124, 1125, quoting Brown v. Lucky Stores, Inc. (9th Cir. 2001) 246 F.3d 1182, 1190.) Since this suit was indeed without foundation, the prevailing defendant property owner reasons that it is entitled to fees here.
We are forced to disagree. We conclude that the even in the face of the trial court’s explicit finding concerning the meritlessness of the action, the trial court was correct to deny the motion.
First, Gunther’s action was clearly not an “ADA” action, and therefore not governed by federal law concerning the claim by a prevailing defendant to attorney fees in the case of a suit without foundation. Rather, it was obviously an Unruh Act suit brought under state law.
As this court noted in Gunther v. Lin (2006) 144 Cal.App.4th 223 -- same Gunther, by the way -- under the ADA, a plaintiff cannot recover damages absent intentional discrimination. (Id. at p. 230.) A typical (federal) ADA suit is one where the plaintiff sues to “force the businessperson into compliance” and in that instance only attorney fees are recoverable. (Ibid.) By contrast, under California law, at least up to the time of the Gunther v. Lin decision, there was the possibility that a plaintiff could obtain a minimum $4,000 penalty for even an unintentional violation of a highly technical regulation under the ADA -- such technical violations having been incorporated into the Unruh Act in Civil Code section 51, subdivision (f). The possibility of an Unruh Act violation based on a violation of a technical ADA regulation meant there was profit to be made by bringing actions for such technical violations -- but, of course, the action had to be brought pursuant to the Unruh Act’s incorporation of ADA standards as distinct from the ADA itself. In search of such a profit Gunther himself had filed more than 120 lawsuits in Orange County alone by August 2006. Thus, it is not surprising that Gunther’s lawsuit against the cell phone store here, filed in 2005 and before the Gunther v. Lin decision, was framed as a one-cause-of-action complaint explicitly denominated as “for violation of Unruh Civil Rights Act.” The name of the lawsuit thus indeed corresponded to its substance.
Second, considering the lawsuit as what it clearly was, an Unruh Act action, the defendant property owner cannot recover fees as a prevailing party. In Gunther v. Lin, supra, 144 Cal.App.4th at pp. 242-243, this court had occasion to contrast the potential exposure a losing plaintiff has for a defendant’s attorney fees in an Unruh Act action (with fees determined under Civil Code section 52) with an action under the Disabled Persons Act based on section 54.3 of the Civil Code (with attorney fees determined under Civil Code section 55). We noted that, under the Unruh Act, a plaintiff did not need to fear exposure to an award of the fees incurred by the defendant: “To the degree that section 52 and section 54.3 may differ on exposure to attorney fees, with no exposure to a losing plaintiff if he or she proceeds under section 52 but with exposure to the plaintiff if he or she proceeds under section 54.3 -- and there is authority for such a reading -- our analysis is further confirmed, though the definitive statement on that point can await another case. It makes sense that the Legislature would insulate plaintiffs from the risk of exposure to paying defense fees if they lose where the showing required of the plaintiff -- intentional discrimination --- is higher. This incentive furthers the legislative policy of attacking the greater evil of intentional discrimination by removing a potential impediment to private enforcement. Where the burden is as easy as it is under section 54.3, allowing exposure to fees if the plaintiff loses would be a logical deterrent against genuinely frivolous lawsuits.” (Gunther v. Lin, supra, 144 Cal.App.4th at pp. 242-243, italics added and original italics deleted.) There is no question, of course, that Gunther did not bring this lawsuit under the Disabled Persons Act.
Cases relied on by the property owner, such as Goodell, Brown, and Christiansburg Garment Co. v. Equal Employment Opportunity Commission (1978) 434 U.S. 412 are readily distinguishable because they were not brought under the Unruh Act and were brought under federal statutes which provided attorney fees to “the prevailing party.”
However, we again stress that the defendant’s fee request considered in this appeal was not made pursuant to section 128.7 of the Code of Civil Procedure, so our affirmance of the trial court’s decision to not award fees in this instance should not be construed as a comment on the viability of any such motion. (Cf. Gunther v. Lin, supra, 144 Cal.App.4th at p. 242, fn. 18 [“In any event a frivolous lawsuit under the Unruh Act could be presumably redressed by such means as sanctions under section 128.7 of the Code of Civil Procedure.”].)
And, while the order is affirmed, the interests of justice certainly require that each side bear its own appellate costs.
WE CONCUR: RYLAARSDAM, J., FYBEL, J.