Opinion
D070433
07-13-2017
WILLIAM LAWRENCE TURNER, Plaintiff and Appellant, v. VEERINDER S. ANAND et al., Defendants and Respondents.
Center for Disability Access, Russell Handy and Dennis Price for Plaintiff and Appellant. Horton, Knox, Carter & Foote, Orlando B. Foote and Margarita Haugaard for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. ECU08903) APPEAL from an order of the Superior Court of Imperial County, L. Brooks Anderholt, Judge. Affirmed. Center for Disability Access, Russell Handy and Dennis Price for Plaintiff and Appellant. Horton, Knox, Carter & Foote, Orlando B. Foote and Margarita Haugaard for Defendants and Respondents.
William Lawrence Turner appeals from the trial court's order granting in part and denying in part his motion to recover attorney fees and costs from the defendants in an action in which Turner alleged a violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) (the Unruh Act) based on the defendants' provision of a handicapped parking space at their place of business that did not conform to accessibility guidelines. Turner contends that the trial court erred in failing to award the attorney fees that Turner incurred in a previous action filed in federal district court against defendants, which was dismissed as moot after the defendants promptly fixed the parking space. We conclude that the trial court properly omitted the fees incurred in the federal action, and we accordingly affirm the order.
Unless otherwise indicated, all further statutory references are to the Civil Code.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Turner is an individual with physical disabilities who uses a wheelchair. On May 12, 2014, Turner served a complaint that was filed in United States District Court in the Southern District of California (case No. 14-cv-1147-BEN JLB) (the federal action) against Veerinder S. Anand, Sandhya Anand, and Veerinder S. Anand, M.D., Inc. (collectively, Defendants). According to the federal complaint, Veerinder S. Anand, M.D., Inc. owns and operates a medical office in El Centro, and Veerinder S. Anand and Sandhya Anand own the property at which the medical office is located. The federal complaint alleged that while Turner was visiting the Defendants' medical office as a patient, he encountered difficulty because the parking lot did not contain an accessible parking space. Specifically, Turner alleged that partly due to fading paint and lack of maintenance, the designated handicapped parking space lacked blue striping and adequate signage, and the access aisle was too narrow and lacked a "no parking" warning. Turner alleged four causes of action in the federal complaint: (1) a violation of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) (ADA); (2) a violation of the Unruh Act; (3) a violation of the Disabled Persons Act (§ 54 et seq.); and (4) negligence.
"The ADA's public accommodations provisions are contained in title III of that law (42 U.S.C. §§ 12181-12189). This part of the ADA prohibits, among other things, the 'failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable.' (42 U.S.C. § 12182(b)(2)(A)(iv).)" (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 669.) For purposes of evaluating accessibility under the ADA, a federal agency has developed the ADA Accessibility Guidelines, which contain detailed architectural guidelines. (See Chapman v. Pier 1 Imports (U.S.) Inc. (9th Cir. 2011) 631 F.3d 939, 945.) These guidelines " 'lay out the technical structural requirements of places of public accommodation.' " (Ibid.)
On June 12, 2014, Turner was served with notice that Defendants had completed work on the parking lot to bring it into compliance with ADA requirements. This work, which took place on June 12, 2014, included demolition, grinding, preparing a new surface, applying asphalt, striping, and installing a new pole and signs.
On June 13, 2014, Defendants served Turner with an offer to compromise the federal action for the amount of $4,600 plus an agreement to make modifications to address the accessibility violations alleged in the federal complaint.
Defendants filed a motion to dismiss the federal action on October 15, 2014, arguing that (1) the claim under the ADA was moot because they had made changes to the parking lot, and (2) the court should dismiss the pendent state law claims.
On November 3, 2014, as part of his opposition to the motion to dismiss, Turner submitted a report from an expert who, in mid-October, had inspected Defendants' improvements to the parking lot and the accessibility of their other facilities. According to the expert's report, in certain places the grade of the handicapped parking space in Defendants' lot was too steep to meet the accessibility guidelines. In response, Defendants fixed the problem with the grade on November 6, 2014.
The issue regarding the grade of the slope was not alleged in the federal complaint.
On November 13, 2014, Turner filed a motion for leave to file a first amended complaint in the federal action, in which he sought to add allegations about the steepness of the grade (which Defendants had already corrected), and to add other allegations concerning accessibility violations that the expert had found when inspecting the property, but which Turner did not allege that he personally encountered.
The accessibility violations proposed to be added to the first amended complaint concerned handrails on a walkway, a counter in the lobby and features of the restroom.
On April 27, 2015, Turner filed a motion for partial summary judgment in the federal action, in which he sought summary judgment on the pendent state law causes of action.
On July 21, 2015, the federal district court judge issued an order (1) granting Defendants' motion to dismiss; (2) granting in part and denying in part Turner's motion for leave to file a first amended complaint; and (3) denying as moot Turner's motion for partial summary judgment on the pendent state law claims.
In granting the motion to dismiss, the federal court concluded that the ADA claim was moot and the court therefore lacked subject matter jurisdiction, as the parking space was currently compliant with accessibility guidelines and the problem could not reasonably be expected to recur. Further, the court explained that because the ADA claim was dismissed for lack of subject matter jurisdiction, rather than on the merits, the court was required to dismiss the pendent state law claims. The motion for partial summary judgment on the pendent state law claims was denied as moot because the entire complaint was dismissed.
In granting in part and denying in part Turner's motion for leave to file a first amended complaint, the court concluded that, as pled, the proposed first amended complaint indicated that Turner would lack standing to pursue it, but because there might be some set of facts under which Turner could establish standing, the court granted Turner leave to file an amended complaint that alleged standing "if he can plausibly do so." The court set forth a deadline of August 7, 2015, for Turner to file an amended complaint if he was able to allege standing. Turner did not file an amended complaint in the federal action by the deadline and did not file a motion to recover any attorney fees in the federal action.
Instead, on September 17, 2015, Turner filed the instant action in the Superior Court of Imperial County against Defendants (the superior court action). The complaint contains a single cause of action, which alleges a violation of the Unruh Act. As pled in the complaint, the factual basis for the superior court action is Defendants' violation of the ADA as pled in the federal action, based solely on the inaccessibility of the parking space. The complaint acknowledged that "the [D]efendants actually corrected the parking lot violation within weeks of being sued in federal court."
The complaint prayed for attorney fees pursuant to section 52, subdivision (a) "for the entire prosecution of the plaintiff's Unruh Civil Rights Act complaint."
On October 20, 2015, Defendants made a Code of Civil Procedure section 998 offer to compromise the instant action, in the amount of $5,500. Turner rejected the offer.
Following an early evaluation conference, the parties entered into a stipulation agreeing to a resolution of the action, which was approved by the court on February 29, 2016. According to the stipulation, Defendants agreed to pay $2,000 to Turner. Further, Defendants agreed that Turner was "generally entitled to an order awarding fees by the Court," subject to their right to (1) oppose the amount requested and (2) argue that the recovery should be reduced based on their offer to compromise made under Code of Civil Procedure section 998. According to the stipulation, the parties agreed "that the determination of the effect of the [section ]998 [o]ffer and the determination about what a reasonable amount of attorney's fees and costs are will be determined by the Court on noticed motion brought by [Turner]." The stipulation specifically stated that the parties were not waiving their right to appeal.
We note that at the time of the parties' stipulation in early 2016, a settlement in the amount of $2,000 was consistent with the statutory damages limitation set forth in former section 55.56, subdivision (f)(2), under which "a defendant's liability for statutory damages in a construction-related accessibility claim against a place of public accommodation is reduced to a minimum of two thousand dollars ($2,000) for each offense if the defendant demonstrates both of the following: [¶] (A) The defendant has corrected all construction-related violations that are the basis of a claim within 30 days of being served with the complaint. [¶] (B) The defendant is a small business" as defined in the statute. (Ibid.) According to Defendants, they meet the definition of a small business.
In accordance with the stipulation, on March 7, 2015, Turner filed a motion for attorney fees and costs. The fee motion was expressly based on section 52, subdivision (a) and sought fees and costs in the amount of $36,022. The majority of the amount that Turner sought to recover was based on fees incurred in the litigation of the federal action. Most of the fees in the federal action reflected work performed after Defendants had already fixed the parking lot and Turner had rejected the offer to compromise, including engaging in discovery, filing a motion for partial summary judgment and filing a motion for leave to amend the complaint.
In their opposition to the fee motion, Defendants argued, among other things, that Turner should not recover any of the fees incurred in the federal action because Defendants were prevailing parties in the federal action. They also argued that none of the fees generated in the federal action after June 13, 2014, were necessary because they had addressed the accessibility issues in the parking lot by that date.
The trial court held a hearing on the fee motion on March 29, 2016. After posing several questions to counsel and entertaining argument, the trial court ruled that it would award Turner a reasonable amount of the fees that he had incurred in the superior court action, but would not award any of the fees that Turner incurred in the federal action. Among other things, the trial court explained that "the amount of attorney's fees requested . . . , in light of the settlement of this case, is egregious. If counsel felt that there was more to this case and more damages, the case should have been pursued; however it was settled." The trial court stated that the case was "over-litigated to the detriment of the parties, specifically the defendants having to defend and respond to discovery and conduct depositions over what was essentially the grading and painting and striping of a handicapped space." As the trial court explained, it was not awarding any fees incurred in the federal action because "pursuant to . . . section 52, [subdivision ](e) . . . , this case does stand independent of the federal case. If plaintiff's counsel desires to seek attorney's fees for the work in the federal court, they can seek those fees in the federal court where the action was litigated at one point. That would be the appropriate place, in this court's opinion, to determine those."
Turner contends that "the trial court declined, without explanation, to award any fees or costs from the federal court action." In light of the trial court's comments in ruling on the fee motion, Turner's statement is plainly inaccurate.
On April 13, 2016, the trial court filed a written order granting in part and denying in part Turner's motion for fees and costs, along with an order of dismissal. As reflected in those orders, the court denied the fees and costs corresponding to the federal action, and granted fees and costs corresponding to the superior court action in the amount of $4,380.
The trial court did not reduce the amount of the fee award based on Defendants' offer to compromise, but Defendants have not appealed from that decision.
On May 31, 2016, Turner filed a notice of appeal from the order ruling on the motion for fees and costs.
II.
DISCUSSION
Turner's sole contention on appeal is that the trial court erred in omitting the attorney fees that he incurred in the federal action when it calculated the total amount of the fee award. A. Applicable Legal Authority
The single cause of action set forth in Turner's complaint filed in the superior court action alleged that Defendants violated the Unruh Act. As part of the Unruh Act, section 51, subdivision (f) provides that "[a] violation of the right of any individual under the [ADA] . . . shall also constitute a violation of [the Unruh Act]." (Ibid.) Section 52, subdivision (a) provides that a person who violates section 51 of the Unruh Act is liable for damages and "any attorney fees that may be determined by the court in addition thereto." (§ 52, subd. (a).) Therefore, Turner's request for an award of attorney fees was necessarily premised on the attorney fee provision in the Unruh Act appearing in section 52, subdivision (a). Indeed, Turner's motion to recover his attorney fees expressly relied on section 52, subdivision (a) as the basis for his fee motion. B. Standard of Review
Defendants discuss the attorney fee provision contained in Code of Civil Procedure section 1021.5, sometimes referred to as the private attorney general doctrine (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933), as if it formed the basis for Turner's fee motion, but that statute is not applicable here. Similarly, as this appeal concerns the fee provision in section 52, subdivision (a), we find no relevance to Turner's citations and argument concerning case law interpreting the attorney fee provisions of other statutes, such as title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and the Fair Employment and Housing Act (Gov. Code, § 12965).
Under section 52, subdivision (a), a prevailing plaintiff is entitled to recover attorney fees, but the trial court "possesses discretion to determine the amount of the fees." (Engel v. Worthington (1997) 60 Cal.App.4th 628, 632, italics added.) "A reviewing court may not disturb a trial court's decision on the matter of attorney fees absent a clear abuse of discretion." (Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786, 790.) C. The Trial Court Was Within Its Discretion to Deny the Attorney Fees Incurred in the Federal Action
Turner's fundamental argument is that the trial court should have included the attorney fees incurred in the federal action when determining the amount of fees to award in this action under section 52, subdivision (a) because "[t]his matter originated in federal court[,]" and the federal action was a "predicate action[]" to the superior court action. As we will explain, we reject this argument for several reasons.
First, the federal action and the superior court action were two completely separate proceedings. The federal action was not remanded to superior court or in any other way transferred to superior court as the same legal proceeding. Instead, the federal action was dismissed for lack of subject matter jurisdiction, and Turner started a completely new action in superior court. Under these circumstances, there is no merit to Turner's contention that he should be awarded fees incurred in the federal action on the ground that the "matter originated in federal court." Nothing in the language of section 52, subdivision (a) gives the trial court authority to award attorney fees incurred in a separate proceeding which was litigated and resolved in a different forum, and Turner has cited no other authority that would allow such an award.
Apparently recognizing that the federal action and the superior court action are two separate proceedings, Turner contends that nevertheless the two actions "should be treated as a continuous action, just as a case that was remanded or removed, or sent on appeal and back is treated as the same action." (Italics added.) Similarly, in his reply brief Turner attempts to characterize the situation by stating that the federal action was simply "redocketed in state court," that the two actions were "two battles from the same war" and that the filing of the superior court action was "effectively a remand." However, these statements ignore the reality of the situation presented, as the federal action and the superior court action do not constitute a single proceeding. It was well within the discretion of the trial court to decline to treat the two separate actions as the same proceeding for the purpose of determining whether attorney fees should be awarded for both actions.
Second, even if there was some legal basis under section 52, subdivision (a) for the trial court to award attorney fees incurred in a separate proceeding, the trial court was well within its discretion to determine that Turner's litigation of the federal court action did not assist him in obtaining relief from Defendants in the instant action and, on that basis, to disallow the fees incurred in the federal action. Instead of prevailing on the merits of his ADA claim in the federal action, Turner was denied relief because the action was dismissed as moot. The federal court never made any ruling that Defendants were in violation of the ADA. Therefore, by incurring attorney fees in the federal action, Turner did not establish the predicate for the Unruh Act claim. The trial court could reasonably exercise its discretion to conclude that the amount of the fee award should not include the fees incurred in the federal action because the work performed in that action did not contribute to the parties' stipulated settlement in this action.
Turner states that he originally filed his action in federal court because the federal court was "the forum best equipped to adjudicate whether a violation of the ADA, a federal statute, had occurred," and should therefore be awarded his attorney fees incurred in that forum. However, Turner fails to recognize that he obtained no adjudication in federal court on his ADA claim, and thus has no basis for recovering fees for that claim. In light of the failure to obtain an adjudication in the federal court, we reject Turner's contention that the fees incurred in the federal action were "required to competently prosecute his state court claim."
Moreover, as the trial court correctly pointed out, if Turner believed that he was entitled to recover the attorney fees incurred in the federal action, he could have attempted to recover those fees by filing a motion in the federal action, but he did not do so. Likely this is because it is well established in federal case law that when an action under the ADA is dismissed as moot, rather than litigated on the merits, the plaintiff has no basis to seek an award of attorney fees. (Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources (2001) 532 U.S. 598, 610.) Specifically, under the ADA a "prevailing party" may recover attorney fees. (42 U.S.C. § 12205.) But, a party is a "prevailing party" only if it obtains a court-ordered change in the legal relationship between the plaintiff and the defendant (Buckhannon, at p. 604), and not when a party voluntarily makes its property ADA compliant without the plaintiff obtaining a judgment or a consent decree. (Id., at pp. 605-606; see also Am. Assn. of People With Disabilities (11th Cir. 2011) 647 F.3d 1093, 1108, fn. 33.) Therefore, by seeking in this action to recover attorney fees incurred in the federal action, Turner is seeking an award that would be barred to him in federal court because he was not a prevailing party there. The trial court was well within its discretion to conclude that because Turner did not seek to recover fees in the federal action, he should not be awarded those fees in this forum, as such an award would improperly reward Turner for attempting to make an end-run around the procedures and legal standards that apply in the federal court by electing to seek fees for the first time in this action.
We do not agree with Turner that it would constitute an improper application of the federal preemption doctrine for the trial court to take into account the fact that fees would not have been awarded to Turner in the federal action, had he applied for them, when deciding not to award those same fees in this action. (Cf. Jankey v. Song (2012) 55 Cal.4th 1038 [holding that the doctrine of federal preemption did not preclude the court from awarding attorney fees to defendant under the Disabled Persons Act (§ 54 et seq.) in a superior court lawsuit that also asserted a claim under the ADA].) The trial court did not deny the fees because they were preempted by federal law. Instead, it made the reasonable observation that because the fees were incurred in the federal action, Turner should be required to seek fees in that forum in the first instance. --------
For all of the reasons set forth ante, we conclude that the trial court was well within its discretion to omit the fees incurred in the federal action when determining the amount of fees to be awarded to Turner in this action.
DISPOSITION
The order is affirmed.
NARES, J. WE CONCUR: MCCONNELL, P. J. AARON, J.