JANKEY v. LEE

Appellant, Les Jankey, Opening Brief on the Merits

Cal.June 10, 2010

Supreme Court Case No. 8180890 Supreme Court of California JUN 10 2019 LES JANKEY Fredarict K. Ohiren Cet PE CP Plaintiff-Petitioner |95> Vv. SONG KOO LEE Defendant-Respondent Petition after a Decision by the Court of Appeal, First Appellate District, Division Four Ruvolo, P. J., Sepulveda and Rivera, JJ Case No. A123006 OPENING BRIEF ON THE MERITS Scottlynn J Hubbard IV, SBN 212970 LAW OFFICES OF LYNN HUBBARD 12 Williamsburg Lane Chico, California 95926 (530) 895-3252 lawofchaos@aol.com Supreme Court Case No. $180890 Supreme Court of California LES JANKEY Plaintiff-Petitioner Vv. SONG KOO LEE Defendant-Respondent Petition after a Decision by the Court of Appeal, First Appellate District, Division Four Ruvolo,P. J., Sepulveda and Rivera,JJ Case No. A123006 OPENING BRIEF ON THE MERITS Scottlynn J Hubbard IV, SBN 212970 LAW OFFICES OF LYNN HUBBARD 12 Williamsburg Lane Chico, California 95926 (530) 895-3252 lawofchaos@aol.com CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Petitioner hereby certifies that there are no interested entities or persons — other than the petitioner himself— that must belisted in this certificate under Rule 8.208 of the California Rules of Court. Respectfully submitted this tenth day of June 2010. Scottlynn J Hubbard IV Law Offices of Lynn Hubbard 12 Williamsburg Lane Chico, California 95926 Attomey for Petitigner /s/ ScottlyngJ Hubbard IV Attorney for Petitioner TABLE OF CONTENTS Certificate of Interested Entities Or Persons ........cccccccccccceccececsecececscccecccecesssssstecccecenees 1 Table of Authorities 2.0... ccccccccccccccecsecscsccecccsscceesscsesscscceecescescssssssssstanesssessastssesseeees lil Issue Presented: Should California state courts split with California federal district courts and award mandatory (non-discretionary) attorney’s fees to prevailing defendants against the plaintiff— under a state law the Ninth Circuit has already found preempted — for a non-frivolousyet unsuccessful Americans Disabilities Act (“ADA”) claim? .....0..cccceeeeeseeeees 1 Statement of Fundamental Background Information....0....00.0ccccececcessecseseeeseeesseesees ] Statement of Appealability 00.00... cccccccccccsesscsessscessessccesssscscsssssessecsevssecseesstteeeesars 3 Legal Discussion .0........cccccccccsscesecsesessscesesccecscscsssnssescasevesaessusustsstsessessetstevavssenseees 4 I. Court ofAppeal’s First Error — Determining that the mandatory fee- shifting provision for prevailing defendants under California’s Disabled Persons Act wasnot conflict preempted by the ADA without applying (muchless addressing) the test developed by the Supreme Court to make SUCH a determination... cecccccsssccseeseccsessesesssccsssccesscscsvsssassssesssevsvevevenseevanesaes 6 II. Second Error — Believing that neither Congressional intent nor the ADA’s expressed preemption provision supported the Ninth Circuit’s conclusionthat state laws “guaranteeing” fee awards toprevailing defendants for non-frivolous ADA claimsare preempted.........0..ccceeeeeee ee 10 Ill. Third Error — Assuming that the award ofattorney fees to a prevailing plaintiff, as opposed to the amountof attorney fees awarded, is discretionary under the ADA and mandatory under Section 55.000... 13 IV. Fourth Error — Ignoring the legislative history behind Section 55, which showsthat the California legislature was only concerned with fee awards to prevailing plaintiffs, to conclude that that statute contains a “two-way guaranteed fee provision” for prevailing defendants. .......0......ccececcseseseseeesees 16 ~il- V. Fifth Error — \gnoring that Section 55 sits in pari materia with the ADA and other California disabledcivil rights statutes — none of which permit a mandatory award of attorney fees andcosts to a prevailing defendant (much less an award for non-frivolous ADA claim). ..0...0...00ccccceeeseeceeeeees 19 VI. Sixth Error — Relying on a vexatiouslitigant orderthat was criticized by the State Bar Court of California, nine Circuit Judges from the Ninth Circuit, and numerous Califomia district courts, as being devoid of factual and legal support. 0.0.00... ccc ccccsessessescsececescecsessssssesssecesscsasaeseseeesenacens 22 COMCIUSION 0... eee eeecsteeeceeccseeeetesesseeseeeseesssesssuecssssseesssescsesecsseseceuscsssresssstssenssenaeas 25 Certificate of Word Count oo...eeecesses eeseseeessneseeesaesesesseesssneasseaeseseesessssescsevecaes 27 Appendix of Unpublished Authority ....0...0.ccccccceccccsscsssessssssseecessvsvsesteseseesseeenes 28 Certificate Of Service oo... ecececesssseseeseeesessssessessesscsaecessscsussseescescesscseansrsstsaseeeeaeerees 36 -iii- TABLE OF AUTHORITIES Cases Barrios v. Cal. Interscholastic Fed'n, 277 F.3d 1128 (Oth Cir. 2002) ooo. eccccccccescccsccssscsesssseescseessesssessesessteasesseeeaes 7, 13 Bartling v. Glendale Adventist MedicalCtr., 184 Cal. App. 3d 97 (1986) oo... eecccecccecscesccesscestesssessessesesssccsesssrssseserseseessnsaees 14 Bingham v. Obledo, 147 Cal.App.3d 401 (1983) .o.e.ccccccccccccscesccssssesessssstscsecssssavevssssuessessesessaee, 14 Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir, 2000) ee cececccccscccceseccscsessessssesacsesecssesvscsnsmsavsrseeesevacaes 12 Californiansfor Responsible Toxics Managementv. Kizer, 211 Cal.App.3d 961 (1989) .o...ccccccccecccccccssecessessessessvsssseeseevsussvaresesrsseecses 14-15 Christianburg Garment Co. v. EEOC, AB4 US. 412 (1978). ecccecccsscesesesesessesessesessessssescstsssssesuecvaesavecseenesessasensueesenevs 8 Covenant Mutual Ins. Co. v. Young, 179 Cal.App.3d 318 (1986) ......ccccccccssescssccsscessscsescssecsssssecesvasscersneestssesesaesavees 21 Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000)... eeeccccceesesesssssessecscsesececscscsvsssstsseseessssevscessesstesteessaeenens 6,7 Cummings v. Benco Bldg. Servs., 11 Cal.App.4th 1381 (1992) ooo. ccccccccesccssssscsesstescecsaecsevscserssusssassauessevaeavs 20 De Canasv. Bica, 424 US. 351 (1976)... ceecccccccessesesesstscsssesssccenvevscsesseatstessesessssassestssrsseaceseesesesees 6 Dodson v. Dollar Tree Stores, Inc., 2006 U.S. Dist. Lexis 90416 (E.D. Cal. Dec. 14, 2006) oo... ceeeesssesceseseeases 15 -iv- Earley v. Superior Court, 79 Cal.App.4th 1420 (2000) ....ccccccceccccccsssssssscsscsscseeseesssesstessesvesseseessatavavacseeass 21 Feminist Women's Health Center v. Blythe, 32 Cal.App.4th 1641 (1995)ccccccescsesssssesssesecsscssssssstsevsesauseetatstansrecseeaes 14 Fischer v. SJB-P.D. Inc., 214 F.3d 1115 (9th Cir. 2000) oocecccceesccssssscesssseestsereseacestesesseees 7-8, 13 Fogerty v. Fantasy, Inc., STO US. 517 (1994)ccc cccceesssecseecaecsssecscseesescsessscsssssscsusesseceeseesatatasstavseeansaes 8 Free v. Bland, 369 U.S. 663 (1962)... ee eccccceeessesesenseceseesesesessssssecseessecsvavssecvevsuvaeseesstavssssscaeceease 7 Gade v. Nat'l Solid Wastes Memt.Ass'n, S05 U.S. 88 (1992).ececeecsesesseseseseecssesecsssesessssscseesssssssssstsseusseeasssssutasseavereess 7 Gibbonsv. Ogden, 22 U.S. 1 (1824).ccc ceccccesesessesesceceecescescssssssssesssassasevavesavavssaessesatatecensvsctacseeess 6 Hensley v. Eckerhart, AOL U.S. 424 (1983)cecceecccscccesesceseeeseesesecsessesscesscssssssusucessssasatenseeseerecevas 7, 13 Herrington v. County ofSonoma, 883 F.2d 739 (Oth Cir. 1989) oecccccescssccsssscsssssesessevssevecsesassteatssscssavsesesees 14 Hines v. Davidowitz, BIZ US. 52 (1941)eeeccecsccenecsecesecseecscsesssstssessssasscsesessaseessiesavatsessesseees 6, 7 Hubbard v. SoBreck, 531 F.3d 983 (Oth Cir. 2008)oo. eccccccsccsccsssessstssscssssecsssecsesssrsecsarsatacstsesseavstecceees 4 554 F.3d 742 (Oth Cir. 2009) ..cccccccccccccsesssssessessecesecssscsssessnscecessasssssscsssevsveceess 2 In the Matter ofThomas Edward Frankovich, Case No. 04-O-15890 (State Bar Court June 25, 2009) oo.cceesecessescssesesesees 24 Jankey v. Poop Deck, S37 F.3d 1122 (2008)... eecccceeseesessesecsesceseesesecseesssscsessessveceseesecessesssveavees 7, 13, 14 Jankey v. Song Koo Lee, 105 Cal.Rptr.3d 290 (Feb. 5, 2010) ooo. ecceeeecseeeseessneesseseseseesesessessesseseeePASSHM Jones v. Rath Packing Co., 430 U.S. S19 (1977) eee ecceeeceeeeeceeseesesesesseesesssesssacsesessssacseseceusescssavseavevasenseaaaras 6 Louie v. Carichoff, 2006 WL 662742 (E.D. Cal. March 16, 2006) 0.0... cccccsccceeseesescssstescesereeeesees 22 Mixonv. Fair Employment & Hous. Comm'n, 192 Cal.App.3d 1306 (1987)oc. ccceccccecesessescsecsseeseesessesssesseessecsssstsasavevaveaeesaeete 20 Molski v. Arciero Wine Group, 164 Cal.App.4th 786 (2008) oe. cecccccceccesssscsecsseesesesessessescescascassssssueevevseeasenes 2,5 Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir, 2007)... ccccccccccccsesseecsecescsesssesscsssstsessassversneseseeees 22, 24 521 F.3d 1215 (9th Cir. 2008) (Dissent) occcecceccccscceecescesseecessrsscscsseceseeaes 23 Molski v. Mandarin Touch Restaurant, 347 F.Supp.2d 860 (C.D. Cal. 2004) ooo.cescesssseseensecesssessesesesessecaseessesees 22 Moreland v. Department ofCorporations, 194 Cal.App.3d 506 (1987) ...ccccccccccsescscssessseesesescsssscssssvssssecsssacssscsasscessenuesaes 20 Munson v. Del Taco, Inc., 46 Cal. 4th 661 (2009) o.oociescssccessssccscecescececsescsesvecseeessscssscsssssecsecessuses 20 Natural Resources Defense Council v. Fish & Game Commission, 28 Cal.App.4th 1104 (1994)occccscccessescssesscsssssessessessessessessrsasstsstacseeaeeass 19 Newman v. Piggy Park Enterprises, 390 U.S. 400 (1968)...ee cecccesssecssesceecsestesssseseceecsessesstessssvsseaevsarevssesucataesees 13, 14 -Vi- People v. Hedgecock, 183 Cal.App.3d 810 (1986) .....ccecccccsescccsscsscessssscsessssessecscesssessesneecscesesasserenevanes 20 Phalen v. Commonwealth of Virginia, AD U.S. 163 (1850)... cceceeeseesesesessesnsessensecsesesescesssecseessesuvscsvsneevsesieeaeeeseeneates 19 Price v. Civil Serv. Comm'n ofSacramento Cnty., 26 Cal.3d 257 (1980) .oeeecccccccccsesssscscssesseescsecceesscsvssescsssssssvssesevsusnesnsssesaseaeasesees 20 Savage v. Jones, 225 U.S. S01 (1912)oeccccsceseecesssstesecseeseesscsssessesseessessessesssussveecatessvsaeeasavsaees 7 Serrano v. Unruh, ; 32 Cal. 3d 621 (1982) occeececcssessesenseesecessacsessescsseecssssessssneseeessasenevsaesaaees 14 Sokolow v. County ofSan Mateo, 213 Cab.App.3d 231 (1989) o..ccecccccccsccscseseccsesescsssescecessessssssssseessesasasreacaeers 14 Stephens v. Coldwell Banker Commercial Group,Inc., 199 Cal.App.3d 1394 (1988) ooo. cccccccecscccsccescsesssseeecsecesecsecsesssseevsesrseeaeessenses 20 Summers v. Teichert & Son, Inc., 127 F.3d 1150 (9th Cir.1997) ooo ccccccceseesecsessesscssecssecsscsssesnsssesecseeseesasecsaes 8 Tutor-Saliba Corp. v. City ofHailey, 452 F.3d 1055 (Oth Cir. 2006) .o..cccccccccsccsecsessssssssscscsscssceecsesesessuesssessvsesanscseses 8 White v. Save Mart Supermarkets, 2005 U.S. Dist. Lexis 24386 (E.D. Cal. Oct. 20, 2005) oo... cececccesceecesseseeeeeens 15 Wilson v. Murillo, 163 Cal. App. 4th 1124 (2008)...ececcccesecssssssecscesecssesvsnssssassectsesaesnesaeens20 Wilson v. Norbreck LLC, 2007 WL 1063050 (E.D. Cal. Apr. 9, 2007) .....ececceccccssssssseseseecesessseseeees 9,21 -Vii- Wilson v. Pier Imports (US), Inc., 411 F.Supp.2d 1196 (E.D. Cal. 2006) oo...ccceecesseesesseesecseesserseeees 8, 22, 25 Wood v. County ofAlameda, 875 F. Supp. 659 (N.D. Cal. 1995)... ccccccccscsscccscscsscsesssesscssscssvacsesevaratecsesvaeaas 12 Statutes, Rules, and Regulations 28 C.F.R. Part 36, Appendix Bo...ccecccccccccccsesssessstessssscscsecssssscscavevavacseseseensacateeaees 12 A2 U.S.C. §§ 12101 et SG... ececcccesesseseseesesssssesscsseesssesescscssstessacessasaeertavatsvesacsaes 1 A2 U.S.C. § 12201 (D) eeececcsesesssessesessesesesscsusssvesceessssnestsevsusvavavaceevavataeecavacsees 12 A2 U.S.C. § 12205 ooeccccceecesessstsneesessasenesavesesessesevscsacscscssestsssvevavavaseavatavatesevassees 7 California Civil Code §§ 51 et SQ. .cccceccccceccescssssesssssessesecssstetsssesessssecsecssesesvevsceees 2 California Civil Code § S1(f).....c.ccccccccesccescescesssesessesssssessvavsuensensesesssevatsesavsticessterens 20 California Civil Code § 52(a) ....c.ccccccccesesccssssessssssssecessssesssusvstevsteaesassecsevsvavecesees 21 California Civil Code §§ 54 ef S€Q. .eccccccccesscsscssssstsssscsccessssusstacsvavsecsecsseacsssststeseeseese 1 California Civil Code § 54(C) ...cccccscsscccsscsssscssssssssssessesssststsvstsessesesassasscasesaveeees 20 California Civil Code § 54.1(d) .....ccccccccccccccsssssscssscsceceesssstecesrssseetsesaesesesavsvscevsuses20 California Civil Code § 55.0... cececcecsesceeeeeestesssstesecstesessseessessestessseeseseens passim California Code of Civil Procedure § 904.1(a)(2) ...cc.c.ceecsccsssesesssssesesessscesveesssscseceees 3 California Health and Safety Code §§ 19955 ef S€q....c.ceccccssssesesssssesessstsesssssssescesseees 2 -Vili- Miscellaneous 136 Cong Rec H 4169... ccccccccccccsesccecscstessseecessesaesassesvarscesseeaaesatssssscssseseeesees 12 136 Cong Rec H 4582 o.oo... cccecccsesssceacescscsessessssesseusecavscsssssasseeaesevaesatstersnesecseeaeens 12 Assembly Bill No. 1547 (proposed).........cccccccccsccescessssscssesteveresesaseseststeevstesscesees 18 Assembly Bill No. 1547, Bill Analysis, March 4, 1972 oo..cccccceccccsccssesesesssesececesees 18 Assembly Bill No. 2471, Bill Description, Assembly Committee on Judiciary, Charles Warren - Chairman,Bill Digest, August 14, 1973 .....0..eccccccsscccssssseesees 17 Assembly Bill No. 2471, Enrolled Bill Report, Enforcement of Architectural Barrier Laws, Analysis, September 1974 o..0...0..c.ccccccccesscssseseeseescscsessescstseeseeaees 17 H.R. REP. 101-485(1), reprinted 1990 U.S.C.C.AN. 303 ooeccceccececsccsssscsesessescscesssesesesevsstssssssseveceaesaeststesseseeasens 7,8 H.R. REP. 101-48S(IID), reprinted 1990 U.S.C.C.A.N. 445 ooo eeccccececcsceseesesesessescsscescesesesansussssssesvaeessvacasseetatsascsseseeets 8 Letter to Assemblyman Charles Warren from Saralea Altman, Legislative Chairwoman,California Coordinating Council, May 30, 1973, ....ccscccsssccseeseees 16 Molski v. Arciero Wine Group., Petition for Review, Case No. $165946, 2008 WL 6137582 (Aug. 15, 2008) oo... .ceececccscscscscsecseesecees 5 Title III Technical Assistance Manual, § JI-1.8200 (1994 Supp.) .....eccceesesseeees 12 -ix- ISSUE PRESENTED Should California state courts split with California federal district courts and award mandatory (non-discretionary) attorney’s fees to prevailing defendants against the plaintiff — under a state law the Ninth Circuit has already found preempted — for a non-frivolous yet unsuccessful Americans Disabilities Act (“ADA”) claim? STATEMENT OF FUNDAMENTAL BACKGROUND INFORMATION! Petitioner Les Jankey (“Jankey”or “‘petitioner”) broughtthis lawsuit against Respondent Song Koo Lee (“Lee” or “respondent”), doing business as K & D Market, a small independently owned and operated grocery/liquor store in the Mission District of San Francisco. Jankey — a person with a disability who uses a wheelchair for mobility — alleged that a four-inch step located at the entry of K & D Market was an architectural barrier that prevented him and other wheelchair users from wheeling directly into the store. Jankey claimed Lee violated the ADA, (42 U.S.C. §§ 12101, et seqg.); the California Disabled Persons Act (“CDPA”), (Calif. Civil Code §§ 54, et seq.); the California Unruh Civil Rights Act (“Unruh Unless specified otherwise, the facts contained in this section are drawn from the court of appeal’s published opinion. Jankey v. Song Koo Lee, 105 Cal.Rptr.3d 290 (Feb 5, 2010) (“Song Koo Lee”). -|- Act”), (Calif. Civil Code §§ 51, et seq.); and Part 5.5 of the California Health and Safety Code, (Calif. H & S Code §§ 19955, et seg.). Among otherrelief, Jankey sought injunctive relief under the ADA and Section 55 to “make [thestore] readily accessible to and usable by [the disabled.]” Lee moved for (and thetrial court granted) summary judgment in the defendant’s favor on the grounds that Lee had provedhis affirmative defense to all causes of action. The court never found that Jankey’s lawsuit wasfrivolous. Lee, as the prevailing party, brought a motion to recover his attorney fees under Section 55. The parties disagreed, however, on whether the trial court should apply the Ninth Circuit's analysis in SoBreck, or the California court of appeal's analysis in Arciero Wine. In SoBreck, the Ninth Circuit used preemption principles to require a prevailing defendant, seeking an award of attorney fees under Section 55, to show that the disabled plaintiff's claims were frivolous. Hubbard v. SoBreck, LLC, 554 F.3d 742, 746-747 (9th Cir. 2009). In Arciero Wine, the court of appeal held that attorney fees were automatically available to a prevailing defendant under Section 55, regardless of whether the disabled plaintiff's claims werefrivolous. Molski v. Arciero Wine Group, 164 Cal-App.4th 786, 791 (2008) (“Arciero Wine”). Upon considering the parties' arguments, the trial court determined that the Arciero Wine analysis controlled, and that Lee was -2.- entitled to a mandatory award of $118,458 in attorney fees and $3,544.54 in costs under Section 55. Jankey appealedthetrial court's decision, but the court of appeal ~ “respectfully disagreeing” with the Ninth Circuit’s preemption analysis — affirmed. It is from this ruling that petitioner sought review. STATEMENT OF APPEALABILITY The Superior Court for the County of San Francisco had original jurisdiction over appellant's claims brought for violation of his civil and personal rights under the CDPA. This appealrises from the Superior Court's ruling on respondent's post- judgment motion for attorney fees underthe samestatute, and this Court, therefore, has jurisdiction over the appeal. Calif. Code of Civ. Pro. § 904.1(a)(2). The subject motion for award of attorney fees was granted on August 28, 2008. [CT 1674]. Notice of this ruling was given on the same date. [CT 1683], A timely Notice of Appeal wasfiled on September 26, 2008. [CT 1691]. LEGAL DISCUSSION Theissue raised bythis petition is one offirst impression before this Court — (1) Does Section 55 of the California Civil Code mandate an award ofattorney fees to prevailing defendants; and, if it does, (2) Is Section 55 preempted to the extent it permits the award of fees against a disabled plaintiff for pursuing a non- frivolous ADA claim.’ These are critically important questions that present significant precedential and public policy importance with which the lower courts — not only the state courts of California, but the federal district courts in the Ninth Circuit — have struggled. Both California state and federal courts have considered whethera defendant, whoprevails over a disabledplaintiffs request for injunctive relief under Section 55 based on the denial of full and equal treatment under the ADA, is entitled to fees, and both have arrived at the opposite conclusions. Indeed, the Ninth Circuit noted the split among federal district courts that have dealt with this issue, and invited this Court to provide an authoritative and definitive interpretation of the “prevailing party” language of this statute. See Hubbard v. SoBreck, 531 F.3d 983, 987 (9th Cir. 2008) (“weleave it to California courts to interpret Section 55 in a definitive way, and to decide authoritatively For simplicity’s sake, petitioner will use the single term “frivolous” to denote claimsthat are “frivolous, unreasonable or groundless.” -4. whether it would mandate feesto all prevailing defendants.”). In addition to the Ninth Circuit, petitioner’s counsel — who served as lead counsel in that federal appeal — has also previously asked the Court to resolve this conflict. Molski v. Arciero Wine Group., Petition for Review, Case No. $165946, 2008 WL 6137582 (Aug. 15, 2008). Both requests were declined. With no clear guidance from this Court, California courts of appeal have now (erroneously) concluded that because Section 55 does not, on its face, distinguish between plaintiffs and defendants, a successful defendant is automatically entitled to a mandatory, non-discretionary award of attorney fees, regardless of whether the plaintiffs claims were meritorious (but unsuccessful) on the one hand; or frivolous on the other. See Song Koo Lee, 105 Cal.Rptr.3d at 294-300, citing with approval, Arciero Wine Group, 164 Cal.App.4th 786. With all due respect to these courts, their rulings are undercut by both state and federal law. Although previousinvitations have been declined, petitioner hopes the Court will take this opportunity to resolve whatis now a full-blownsplit between California state and federal courts; and overturn the Song Koo Lee and Arciero Wine opinions with an authoritative and definitive interpretation that will bring Section 55 in line with other fee-shifting statute standardsand theintent of the Californialegislature. I. First Error — Determining that the mandatory fee-shifting provision for prevailing defendants under California’s Disabled Persons Act was not conflict preempted by the ADA without applying (muchless addressing) the test developed by the Supreme Court to make such a determination. The court of appeal’s first error was to determine that Section 55 was not conflict preempted by the ADA without first applying (muchless addressing) the test developed by the Supreme Court to make such a determination. Song Koo Lee, 105 Cal.Rptr.3d at 296-299. According to the Supreme Court, when analyzing a conflict preemption, the primary function of a court is to determine “whether, under the circumstances of this particular case, [California] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” See Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (italics added); Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 (2000) (A court will find conflict preemption “where under the circumstancesof a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”). Accord, Gibbons v. Ogden, 22 U.S. 1 (1824). This inquiry requires the court to consider the relationship between state and federal laws as they are interpreted and applied, not merely as they are written. See Jones v. Rath Packing Co., 430 U.S. 519, 526 (1977), citing De Canas v. Bica, 424 U.S. 351, 363-365 (1976). What is a sufficient obstacle to a Congressional objective is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects. See Crosby, 530 U.S. at 373, quoting Savage v. Jones, 225 U.S. 501, 533 (1912); see also Hines, 312 U.S.at 67, fn. 20 (quoting same). Any state or local law that “interferes with or is contrary to federal law, must yield.” Free v. Bland, 369 U.S. 663, 666 (1962); Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992) (Preemption“is compelled whether Congress' commandis explicitly stated in the statute's language or implicitly containedin its structure and purpose.”). In this particular case, the court of appeal erred in allowing prevailing defendants to receive fees under state law for non-frivolous ADA claims, as such an award is inconsistent with Congressional objectives. Congress drafted the ADA with the intentthattrial courts, in their discretion, would award the prevailing party attorney fees, includinglitigation expenses and costs. 42 U.S.C. § 12205: H.R. REP. 101-485(ID, at p. 140, reprinted 1990 U.S.C.C.A.N. 303, 423. Prevailing plaintiffs would automatically receive attorney fees, unless such an award would be “unjust.” See Barrios v. Cal. Interscholastic Fed'n, 277 F.3d 1128, 1134 (9th Cir. 2002), citing Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); see also Jankey v. Poop Deck, 537 F.3d 1122, 1130 (2008), citing Fischer v. SJB-P.D. Inc., 214 -7- F.3d 1115, 1119, n.2 (9th Cir. 2000). When defendantsare the prevailing parties, however, Congress intended fortrial courts to only awardfees “upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation.” Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1154 (9th Cir.1997), quoting Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978); H.R. REP. 101- 485(111) at p. 73, reprinted 1990 U.S.C.C.A.N. 445, 496 (quoting same); 1990 US.C.C.AN.at 423 (“It is intended that the term ‘prevailing party’ be interpreted consistently with other civil rights laws. Plaintiffs should not be assessed opponents’ attorneys’ fees unless a court finds the plaintiffs claim is frivolous, unreasonable, or groundless.”) (citation and quotations omitted). Although the court of appeal considered the Christianburg standard for fee awards under federal civil rights laws as an unfair strategic advantage over defendants,it is precisely the standard that Congress intended in order to advance “the important policy objectives of the Civil Rights Statutes, and the intent of Congress to achieve such objectives through the use ofplaintiffs as private attorney[s] general.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 523 (1994) (internal quotation marks and citations ° A claim is frivolous if it is clear from “the outset of the litigation” that “‘it lacked a factual andlegal basis.” See Tutor-Saliba Corp. v. City ofHailey, 452 F.3d 1055, 1060-61 (9th Cir. 2006); see also Wilson y. Pier Imports (US), Inc., 411 F.Supp.2d 1196, 1198 (E.D.Cal. 2006). -8- omitted).* By contrast, on its face, Section 55 neither gives courts the discretion to award fees, nor distinguishes between prevailing plaintiffs and prevailing defendants. Asa result, disabled plaintiffs, including theplaintiff in this particular case, are forced to pay fees and costs to prevailing defendants for what is in essence an unsuccessful, non-frivolous ADA claim for injunctive relief. To justify this irreconcilable conflict with Congress’s objective (and marginalize the harm suffered by the plaintiffs burdened with such an award), the court of appeal focused its conflict-preemption analysis on whether the entire CDPA was generally in conflict the ADA,and not just Section 55 in this particular case. In so doing, the court of appeal drew upon the broader scope of remedies available to disabled plaintiffs under both the Unruh Act and CDPA (when compared to the ADA), and criticized the Ninth Circuit for “parsing” and “dissecting” Section 55 from the rest of the act, and ignoring its role and purpose within the CDPA. Song Although the Supreme Court was speaking of federal civil rights statutes in general, Congress intended that the protections of the ADA would apply the same standard and preempt lesser state laws, which logically include less stringent standards for fee awards to prevailing defendants under California law. Wilson v. Norbreck LLC, 2007 WL 1063050 at fn. 3 (E.D. Cal. Apr. 9, 2007) (“The same result would likely follow under federal law under preemptionprinciples”). Koo Lee, 105 Cal.Rptr.3d at 296-299. With all due respect to the court of appeal, this “big picture” analysis contradicts two hundred years of American jurisprudence and Congressional intent regarding attorney fees under the ADA. Assuming arguendo the criticism is valid, awarding attorney fees to prevailing defendants under state law for a non-frivolous ADAclaim is still contrary to the stated objectives of Congress, regardless of whetherthat state law is examined as a single statute (Section 55) or an entire act (CDPA). In either scenario, the result is inconsistent with the ADA’s objective ofprotecting disabled plaintiffs from paying attorney fees to the defense for unsuccessful, non-frivolous ADA lawsuits; and petitioner would ask this Court to overturn the underlying decision on that ground. Il. Second Error — Believing that neither Congressional intent nor the ADA’s expressed preemption provision supported the Ninth Circuit’s conclusion that state laws “guaranteeing” fee awards to prevailing defendants for non-frivolous ADA claims are preempted. Having established that the court of appeal applied the incorrect standard for determining whethera state law is conflict preempted, and shown that Section 55 conflicts with Congress’ objective that prevailing defendants only receive attorney fees if the underlying ADA claim wasfrivolous, we turn to the court of appeal’s second error: assuming that Congress never intended to preempt state laws that mandated fee awards to prevailing defendants for non-frivolous ADA claims. -10- Song Koo Lee, 105 Cal.Rptr.3d at 297 (“there is nothing in the ADA which would support [SoBreck’s] conclusion that[,] in enacting the ADA, Congress intended to impose uniform standards for complementary state law remedies.”). Although the court of appeal acknowledged that Congress intended to protect the disabled from lesser state laws, and that the ADA provided a “floor” on state law rights and remedies, the court of appeal nevertheless found that a two-way guaranteed fee provision did not put Section 55 in irreconcilable conflict with the ADA or abrogatethe scope of the rights available under the ADA in any fashion. Jd. at 297-298 (quote omitted). “We have found no legalauthority,” the court of appeal opined, “requiring each and every element of a multi-faceted state remedial act to offer equal or greater benefits underall circumstances over a similar federal law in order to avoid a preemption finding.” Jd. at 299. Onits face, however, this statementis in direct conflict with the ADA’s preemption provision and the intent of Congress. The text of the ADA makesclear that Congress intended to preempt state or local laws that limited or reduced the protections available under the Act: “[nJothing in [the ADA] shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State ... that provides greater or equal protection for the rights of individuals with disabilities than are -11- afforded by [the ADA].” See 42 U.S.C. § 12201(b). By providing an express exemption for state laws that provide an equal or greater level of protection than the ADA, Congress intented to preempt all laws that conflict with the ADA by providing lesser levels of protection. See Wood v. County of Alameda, 875 F. Supp. 659, 663 (N.D. Cal. 1995) (noting that ADA was enacted to guarantee individuals with disabilities a baseline level of protection); Botosan v. Paul McNally Realty, 216 F.3d 827, 831 (9th Cir. 2000) (Congress' explicit incorporation ofone statutory provision into the ADA,to the exclusion of another, must be presumedintentional under the statutory canon of expressio unius.); 136 Cong Rec H 4169, 4191 (Joint Explanatory Statement of the Committee of Conference); 136 Cong Rec H 4582, 4604 (same). The United States Department of Justice, which is entitled to Chevron deference, joined in this conclusion. 28 C.F.R. Pt. 36, App. B at 681; Title III Technical Assistance Manual, § III-1.8200 (1994 Supp.) (“Title II does not disturb other Federal laws or any State law that provides protection for individuals with disabilities at a level greater or equal to that provided by the ADA. It does, however, prevail over any conflicting State laws.”). In light of this expressed preemption provision, the legislative record, and supporting regulations, the court of appeal’s conclusion that nothing requires each and every element of the CDPA to offer equal or greater benefits than the ADA -12- (under all circumstances) was incorrect and reversal is warranted. Ii. Third Error — Assuming that the award of attorney fees to a prevailing plaintiff, as opposed to the amount of attorney fees awarded, is discretionary under the ADA and mandatory underSection 55. The court of appeal’s third error was to conclude that an award of attorney fees to a prevailing plaintiff is discretionary under the ADA and mandatory under Section 55. Song Koo Lee, 105 Cal.Rptr.3d at 298-299. Neither conclusion was correct. As alluded above, it is an abuse ofdiscretion for a trial court to deny prevailing plaintiffs an award of attorney fees under the ADA, unless such an award would be “unjust.” See Barrios, 277 F.3d at 1134, quoting Hensley, 461 U.S. at 429 (A prevailing plaintiff under the ADA “should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.”);° see also Poop Deck, 537 F.3d at 1130, quoting Fischer, 214 F.3d at 1119, n.2 (“The Supreme Court has explainedthat[,] in civil rights cases, the district court's discretion is limited.”). Congress enacted the fee-shifting provisions of the ADA to ensure effective access to the judicial process for persons with civil rights grievances. Poop Deck, 537 F.3d at 1130, citing Hensley, 461 U.S. at 429 The origin of the Hensley quote can be found in Newman v. Piggy Park Enterprises, 390 U.S. 400, 402 (1968) (“It follows that one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.”’). -13- (quotation marks omitted). If successful plaintiffs were routinely forced to bear their own attorney fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the courts. Jbid., citing Newman, 390 U.S. at 402. Consequently, recovery under the ADA is the rule rather than the exception. Jbid. citing Herrington v. County of Sonoma, 883 F.2d 739, 743 (9th Cir. 1989). This is, incidentally, the same standard thatis applied to fee requests under Section 55. Even though the plain language of the statute would suggest that fees to prevailing plaintiffs are mandatory, California courts have independently adopted the Newman/Hensley standard and declined to award fees to prevailing plaintiffs when such an award would be unjust. See, e.g., Bartling v. Glendale Adventist MedicalCtr., 184 Cal. App. 3d 97, 104 (1986), citing Serrano v. Unruh, 32 Cal. 3d 621, 639 (1982) and Newman, 390 U.S. at 402. California courts also have discretion to reduce the fees awarded to prevailing plaintiffs under Section 55, whenthe lawsuit produces only limited success and the plaintiff fails to obtain a substantial part of the relief he or she sought. See, e.g., Sokolow v. County ofSan Mateo, 213 Cal.App.3d 231, 249-250 (1989); Feminist Women's Health Center v. Blythe, 32 Cal.App.4th 1641, 1674 (1995); Bingham v. Obledo, 147 Cal.App.3d 401, 407 (1983); Californians for Responsible Toxics Management v. Kizer, 211 -14- Cal.App.3d 961, 974-975 (1989). Disabled plaintiff are no more “guaranteed an attorney fee award” underSection 55 byestablishing “a single violation of a broad range of statutory requirements, of which a violation of the ADA is merely a subset,” than they are under the ADA. Song Koo Lee, 105 Cal.Rptr.3d at 298 (italics in original). Quite the opposite, California dockets are replete with orders reducing fee awards (under both the ADA and Section 55) to disabled plaintiffs whoprove “‘a single violation” of statutory requirement;° and therein lies the flaw of the Song Koo Lee analysis. If trial courts apply the same standard to fee requests for prevailing plaintiffs under the ADA and Section 55, then the mandatory-fee awards to prevailing defendants under Section 55 offers less protection than the discretionary fee awards under the ADA. In other words, the benefit disabled plaintiffs purportedly receive underSection 55 is illusionary; and the court of appeal’s belief that successful plaintiffs could demand, and were entitled to receive, mandatory attorney fees under Section 55 — regardless of their limited successor the unjustness of the award — is simply wrong. See, e.g., Dodson v. Dollar Tree Stores, Inc., 2006 U.S. Dist. Lexis 90416, **3, 13 (E.D. Cal. Dec. 14, 2006) (Plaintiffs fee award under ADA and Section 55 reduced forty-three percent to accountfor limited success); White v. Save Mart Supermarkets, 2005 U.S.Dist. Lexis 24386, **3, 12 (E.D. Cal. Oct. 20, 2005) (Plaintiffs fee award under ADA and Section 55 reduced twenty-percentto account for limited success). -15- 1V. Fourth Error — \gnoring thelegislative history behind Section 55, which shows that the California legislature was only concerned with fee awardsto prevailing plaintiffs, to conclude that that statute contains a “two-way guaranteed fee provision” for prevailing defendants. The court of appeal’s fourth error was to presume that the California legislature intended to allow prevailing defendants to request attorney fees under Section 55. That was a mistake. The California legislature designed Section 55 to promote and encourage disabled plaintiffs to seek enforcement of California's disability access statutes by guaranteeingtheir attorney fees: While California has some of the most progressive laws in terms of removing mobility barriers, there has been a constant problem of enforcement of those laws ... The disabled in the State need the courts to back them up in their efforts to move freely in their community. However, attorneys and courts cost money and according to Federal and State statistics, the disabled are among the most financially disadvantaged. For this reason, AB2471 is needed to allow the disabled to bring action againstthose builders in violation of the law without the prohibitive burden of attorney's fees and court costs. This would put the disabled in the State on a more equal footing with their able-bodied peers. Letter to Assemblyman Charles Warren from Saralea Altman, Legislative Chairwoman, California Coordinating Council, dated May 30, 1973 (emphasis added). The California legislature never intended for Section 55 to serve as a “two-way guaranteed fee provision,” as the court of appeal believed. In fact, except for the plain language of the statute, which is ambiguous at best, no -16- authority has ever been offered to even suggest that the California legislature intendedfor prevailing defendants to receive fees under Section 55; andpetitioner respectfully submits that the court of appeal's decision otherwise runs contrary to what the California legislature intended. Such a reading of Section 55 puts it squarely at odds with the legislative purpose andintent behindthat provision: Starting in 1968, several laws requiring buildings and other facilities be accessible to the physically handicapped have been passed. Enforcement of these architectural barrier laws have [sic] been very weak. Physically handicapped persons do not generally have income or resources necessary to pay for attorney fees whenit is necessary to take flagrant violators to court. This bill will make clear that the prevailing party will be entitled to attorney's fees. Enrolled Bill Report, AB 2471, Enforcement of Architectural Barrier Laws, Analysis (September 1974) (emphasis added). This bill provides that a physically disabled person can give written notice of a deviation to the owner of a private facility... . If the deviation is not corrected within 90 days,the physically disabled person can then seek an injunction against further construction or operation of the nonconforming facility until the deviation is corrected.’ The bill also providesthatifthe person is successful in obtaining an injunction the court can award him reasonable attorneys’fees and courtcosts. Assembly Committee on Judiciary, Charles Warren - Chairman, Bill Digest, AB 2471, Bill Description, August 14, 1973 (emphasis added). ’ This notice provision was later deleted from the bill through amendment. -17- It is clear from the above that the intent behind what became Section 55 was — and is — to provide for an award of attorney fees in favor of the disabled person whobrings the action and prevails. This point is madeall the more evident when one looks further into the legislative history of this enactment, viz., Assembly Bill 1547, which laid the groundwork for AB 2471: If such deviation [architectural barrier] is not rectified ... a blind or physically handicapped person may bring an action for an injunction against further construction or operation of the nonconformingfacility ... Such blind or physically disabled person shall not be required to post a bond... and, ifsuccessful in obtaining an injunction, shall be awarded reasonable attorneys’fees and courtcosts. Assembly Bill No. 1547 (proposed) (emphasis added). Assembly Bill 1547 would allow a blind or physically disabled person to obtain an injunction against construction or operation ofa facility... The bill would also award reasonable attorney fees and costs to the personinitiating the action. Bill Analysis, AB 1547, March 4, 1972 (emphasis added). Nothing in the legislative history of either AB 1547 or AB 2471 points to any sort ofstrict equivalence between a plaintiff and a defendant as a “prevailing party;” indeed, the legislative history pointsstrongly in favor of a mandatory, non-discretionary award solely in favor of the disabled plaintiff. To hold otherwise would not only run contrary to the legislative record, but burden a group the California legislature found to be “the most financially disadvantaged,” and who “do not generally have -18- incomeor resources necessary to pay for attorney fees,” with the chilling threat of paying the opposing party's fees and costs. Obviously, the California legislature never intended such an absurdresult, and petitioner respectfully requests the Court grant his review and overturn the underlying decision on that ground. Vv. Fifth Error — Ignoring that Section 55 sits in pari materia with the ADA and other California disabled civil rights statutes — none of which permit a mandatory awardof attorney fees and costs to a prevailing defendant (muchless an award for non-frivolous ADAclaims). The court of appeal’s fifth error was to ignore that Section 55 sits in pari materia with the ADA,the Unruh Act, and other provisions of the CDPA; and the what the court of appeal considered “an unfair strategic advantage over defendants” was, in fact, a conscientious decision by the California legislature to draft fee-shifting provisions, which favored prevailing plaintiffs, into the state’s civil rights laws. It is an elementary principle in the interpretation of written law that statutes in pari materia are to be construed together. Phalen y. Commonwealth of Virginia, 49 U.S. 163, n.1 (1850). Similarly, when a state law is patterned after a federal law, the two are to be construed consistently with each other. Natural Resources Defense Council v. Fish & Game Commission, 28 Cal.App.4th 1104, 1117-18 (1994). In situations where state law is patterned after a federal law, federal cases interpreting the federal law offer persuasive -19- authority in construing the state law. Moreland v. Department of Corporations, 194 Cal.App.3d 506, 512 (1987). It is largely for this reason that California courts look to federal precedent for guidance. See, e.g., Price v. Civil Serv. Comm'n of Sacramento Cnty., 26 Cal.3d 257, 276 (1980); Mixon v. Fair Employment & Hous. Comm'n, 192 Cal.App.3d 1306, 1316-17 (1987). This has been true with respect to civil rights attorney fee and cost-shifting provisions. See, e.g., Cummings v. Benco Bldg. Servs., 11 Cal.App.4th 1381, 1386-88 (1992); Stephens v. Coldwell Banker Commercial Group, Inc., 199 Cal.App.3d 1394, 1405-1406 (1988) (“California courts should follow interpretations of similar federal laws in awarding attorney fees in [] discrimination cases.”); People v. Hedgecock, 183 Cal.App.3d 810, 815- 17 (1986). Here, the Unruh Act and CDPA were modeled by the California legislature on federal civil rights laws, e.g., the ADA, and share the same purposeandintent as their federal counterparts. See, e.g., Wilson v. Murillo, 163 Cal. App. 4th 1124, 1133 (2008); Calif. Civil Code §§ 51(f), 54(c), 54.1(d). The public policy underlying California's legislation is, thus, the same as the public policy underlying that federal legislation. Munson v. Del Taco, Inc., 46 Cal. 4th 661, 666-676 (2009). Becausethatpublic policy is the same, the CDPAsits in pari materia with the Unruh Act and ADA,andthe same rule concerning recovery of attorney fees to -20- a prevailing party ought to apply. Phrased somewhatdifferently, the Unruh Act’s one-sided fee shifting provision prohibits an award of fees to defendants for an unsuccessful claim based on ADA violations. Calif. Civil Code § 52(a). By contrast, the CDPA — under the court of appeal’s interpretation — permits an award of fees to defendants for an unsuccessfulclaim based on the same ADAviolations. Song Koo Lee, 105 Cal.Rptr.3d at 296-299. Under California law, however, prevailing defendants cannot receive attorney fees for defending claims that inextricably overlap with other claims when a fee award is inappropriate for the defense of the latter. See, e.g., Covenant Mutual Ins. Co. v. Young, 179 Cal.App.3d 318, 324 (1986); see also Earley v. Superior Court, 79 Cal.App.4th 1420, 1429 (2000). Accord, Norbreck, 2007 WL 1063050 at **2-3. Since Jankey’s CDPA and Unruh Act claims were based on the same ADAviolations, the defense should not have received an award of fees under the CDPA because it could not have received fees under the Unruh Act. Furthermore, because Jankey’s CDPA claims paralleled his ADA claims, the award of fees under Section 55 was tantamount to the award of fees under the ADAitself and thus inappropriate under both state and federal law. Jbid. -2]- VI. Sixth Error — Relying on a vexatiouslitigant order that wascriticized by the State Bar Court of California, nine Circuit Judges from the Ninth Circuit, and numerous California district courts, as being devoid of factual and legal support. Finally, the court of appeal’s analysis may have been colored by the vexatiouslitigant order issued against petitioner’s trial counsel, attorney Thomas Frankovich, and the forty lawsuits filed by petitioner on behalf of DREES. Song Koo Lee, 105 Cal.Rptr.3d at 299, fn. 9, citing, inter alia, Molski v. Mandarin Touch Restaurant, 347 FSupp.2d 860 (C.D. Cal. 2004), affirmed sub nom, Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1064 (9th Cir. 2007) (Frankovich accused of “scorched-earth” litigation strategy, “tactical gamesmanship,” and “unfair strategic advantage[s]” based on findings of vexatious litigant order). Petitioner would respectfully suggest that reliance on that order, and consideration of his (Jankey’s) litigation history, was inappropriate and does not support the Song Koo Lee analysis. The order in question has been widelycriticized by the State Bar of California, numerous California district courts, and nine Circuit Judges from the Ninth Circuit, as being devoid of both factual and legal support. See, e.g., Louie v. Carichoff, 2006 WL 662742, at *5 (E.D. Cal. March 16, 2006), citing Wilson v. Pier 1 Imports, Inc., 411 F.Supp.2d 1196 (E.D.Cal. 2006) (“the reasoning of the district court in the [Mandarin Touch Rest.] decision has recently 22. been compellingly refuted.”). Accord, Molski v. Evergreen Dynasty Corp., 521 F.3d 1215 (9th Cir. 2008) (Dissent by Kozinski, CCJ, Berzon, CJ, joined by Pregerson, Reinhardt, Hawkins, Mckeown, Wardlaw, W.Fletcher, and Paez, CJs). In fact, in its recent published decision exonerating attorney Frankovich of any ethical wrong-doing based on the conduct alleged in the vexatious litigant order, the State Bar Court of California recognized the overwhelming lack of factual, legal, and judicial support for that order: While Judge Rafeedie made substantive findings that respondent [Frankovich] engaged in a schemeto extort ADAsettlements, these findings were derived from a questionable evidentiary hearing that, according to Chief Judge Kosinski, was void of testimony and evidence. Based on the record before the court, it appears that Judge Rafeedie’s findings were based more on assumption and innuendo than testimonial and documentary evidence. While Judge Rafeedie’s findings were sufficient to meet the lower threshold of proof necessary to warrant pre-filing sanctions, they do notrise to the level of clear and convincing evidence. Any weight the court gives to Judge Rafeedie’s orders is diminished by the disparity in treatment respondent has received in the federal court system. Facing a similar motion, Judge Trumbull of the Northern District declined to follow Judge Rafeedie’s lead on this issue. Further, there is no indication in the record that any other court has found respondentor his client to be a vexatiouslitigant. This is despite the fact that respondent has filed hundreds of ADA lawsuits in the Central and Northern Districts. -23- Atfirst blush, the Ninth Circuit Court’s affirmation of Judge Rafeedie’s orders appears to bolster the State Bar’s case. However, following closer examination, it’s clear that the Ninth Circuit Court’s holding demonstrateslittle aside from the fact that Judge Rafeedie’s orders did not constitute an abuse ofdiscretion. Based on the strenuous dissenting opinions voiced by Chief Judge Kozinski, and others, the Ninth Circuit Court’s affirmation was hardly a ringing endorsement. [. . .] Finally, the court also considered whether the letter respondent sent defendants with each complaint supports the allegation that he was engaged in a scheme to defraud. While Judge Rafeedie found that this letter violated the Model Code of Professional Responsibility, the State Bardid notallege, and the court does not find, that it violates either the Rules of Professional Conduct or the Business and Professions Code. And although respondent’s letter seeks to expedite settlement, this is not necessarily indicative of a schemeto extort. In the Matter of Thomas Edward Frankovich, Case No. 04-O-15890, at pp. 3-11 (State Bar Court June 25, 2009). As the State Bar Court opinion succinctly summarized, the vexatious litigant order was based more on assumption and innuendo than testimonial and documentary evidence, and petitioner would respectfully suggest that the court of appeal erred by relying on its factual findings. Moreover, to the extent the court of appeal considered an award of fees under Section 55 justified because the petitioner hasfiled forty ADA lawsuits, even the Ninth Circuit panel in Mandarin Touch found that filing a large number of complaints, standing alone, has no bearing on the merit of a claim. Evergreen Dynasty Corp., 500 F.3d at 1061 (citation omitted). The similarity between the -24- complaints filed in Mandarin Touch and the instant case is also of no import because the textual and factual similarity of a plaintiff's complaints, standing alone, also has no bearing on the merit of a claim. Jbid., citing Wilson v. Pier I Imps. (US), Inc., 411 F. Supp. 2d at 1201 (uniform instances of misconduct can justify uniform pleadings). Boiled to its essence, the court of appeal believed that petitioner engaged in “tactical gamesmanship” because his trial counsel was deemed a vexatious litigant (under questionable circumstances), and_ that mandatory fees were justified because he is one of the “small number ofprivate plaintiffs who view themselves as champions ofthe disabled.” See, e.g., id. at 1062. These beliefs were not only unfounded, they stemmedprimarily from a discredited vexatious litigant order and should not have been considered. CONCLUSION Thirty years ago the United States Supreme Court declared that, where a piece of civil rights legislation states that a prevailing party is entitled to recover a reasonable attorney fee, slightly different standards must apply to successful plaintiffs on the one handand to successful defendants on the other. Thus, while a presumption exists in favor of awarding a reasonable attorney fee to a successful plaintiff, a successful defendant may be awardedits fees against a non-prevailing plaintiff if and only if the plaintiff's claims were frivolous. That ruling has been -25- followed and expanded upon by lowercourts, both state and federal, throughout the country in the subsequent years in other areas of civil rights legislation. Consequently, the notion that because a statute does not, on its face, distinguish between plaintiffs and defendants where fees are concerned mandates a non- discretionary award of fees to a successful defendant should not be allowed to stand. Petitioner therefore respectfully asks this Court to overturn the court of appeal’s ruling and accept the Ninth Circuit's invitation to provide the courts, both state and federal, with a definitive interpretation of Section 55. Respectfully submitted this tenth day of June 2010. Scottlynn J Hubbard IV Law Offices of Lynn Hubbard 12 Williamsburg Lane Chico, California 95926 Attorney for Petitioner By: /s/ Scottlynng Hubbard IV Attorney for Petitioner -26- CERTIFICATE OF WORD COUNT This Petition contains 6,025 words from the cover page to signature block below. Respectfully submitted this tenth day of June 2010. Scottlynn J Hubbard IV Law Offices of Lynn Hubbard 12 Williamsburg Lane Chico, California 95926 Attorney for Petitioner Attorne¥ for Petitioner -27- APPENDIX OF UNPUBLISHED AUTHORITY Name Attachment No. Jankey v. Song Koo Lee, 105 Cal.Rptr.3d 290 (Feb 5, 2010)... eccccccccecescescsssssssseceecessesevsevsnsesteeeeees 1 In the Matter ofThomas Edward Frankovich, Case No. 04-O-15890 (State Bar Court June 25, 2009) ......cccce ee ceseeeeeeeeee 2 Excerpts of the Legislative History for Section 55 of the California Civil Code... cccecccseceesecescescestesssssseeeee 3 Dodsonv. Dollar Tree Stores, Inc., 2006 U.S. Dist. Lexis 90416 (E.D. Cal. Dec. 14, 2006) oo...eeeceeceeeeee 4 White v. Save Mart Supermarkets, 2005 U.S. Dist. Lexis 24386 (E.D. Cal. Oct. 20, 2005) wo... ceeeseeeecerees 5 Wilson v. Norbreck LLC, 2007 WL 1063050 (E.D. Cal. Apr. 9, 2007) ..c.ccccecccccscecccsssscenseessestusvesseseae 6 Louie v. Carichoff, 2006 WL 662742 (E.D. Cal. March 16, 2006) .0........ccccceeseceesescsesenststeseneee 7 -28- Attachment No. | Jankey v. Song Koo Lee, 105 Cal.Rptr.3d 290 (2010) -29- FOR EDUCATIONAL USE ONLY Page 1 181 Cal.App.4th 1173, 105 Cal-Rptr.3d 290, 10 Cal. Daily Op. Serv. 1648, 2010 Daily Journal D.A.R. 2024 Review Granted Previously published at: 181 Cal.App.4th 1173 (Cal.Const.art. 6, s 12; Cal. Rules of Court Rules 8.500, 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125) (Cite as: 105 Cal.Rptr.3d 290) > Court of Appeal, First District, Division 4, California. Les JANKEYet al., Plaintiffs and Appellants, v. SONG KOOLEEetc., Defendant and Respondent. No. A123006. Feb. 5, 2010. Certified for Partial Publication.*™* FN* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publica- tion with the exception of part III.C. Background: Wheelchair user brought action against store owner, seeking injunctive relief under Americans with Disabilities Act (ADA) and California Disabled Persons Act (CDPA). The Superior Court, City and County of San Francisco, No. CGC07-463040,Patrick J. Mahoney, J., granted summary judgment for store owner, and awarded attorney fees. Wheelchair user appealed. Holding: The Court of Appeal, Ruvolo,P.J., held that CDPA's mandatory attorney fee provision wasnot subject to conflict preemption by the ADA. Affirmed. *291 ThomasE. Frankovich, San Francisco, for Appellants. Livingston Law Firm, Renée Welze Livingston, Walnut Creek,Jason G. Gong, San Ramon,for Respondent. RUVOLO,P.J. *11761. INTRODUCTION Les Jankey (Jankey), a person with a disability who uses a wheelchair for mobility, brought an action against Song Koo Lee(Lee), the owner ofK & D Market, a small grocery/liquorstore in San Francisco's Mission District. The suit alleges that Lee discriminated against Jankey on the basis ofhis disability because architectural barriers denied him entry to the market. *1177 Jankey's action sought, amongotherrelief, parallel causes of action for injunctive relief pursuant to the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq. (ADA)) and the California Dis- abled Persons Act (Civ.Code, § 54 et seq. (CDPA)). The court entered summary judgmenton all causes of action for Lee, whichis not at issue in this appeal. Instead, this appeal is from an order awarding Lee his attorney fees in the amount of $118,458 under Civil Code section 55 *! (Section 55), which mandatesthat *292 the prevailing party in an action to enjoin a violation of disa- bility access requirements “shail be entitled to recover reasonable attorney's fees.”(Italics added.) Relying on the Ninth Circuit's decision in Hubbard v. SoBreck, LLC (9th Cir.2008) 531 F.3d 983 (Hubbard 1), opinion amended and © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. FOR EDUCATIONAL USE ONLY Page 2 181 Cal.App.4th 1173, 105 Cal.Rptr.3d 290, 10 Cal. Daily Op. Serv. 1648, 2010 Daily Journal D.A.R. 2024 Review Granted Previously publishedat: 181 Cal.App.4th 1173 (Cal.Const.art: 6, s 12; Cal. Rules of Court, Rules8.500, 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125) (Cite as: 105 Cal.Rptr.3d 290) superseded on denial of rehearing by Hubbard v. SoBreck, LLC (9th Cir.2009) 554 F.3d 742 (Hubbard II ), Jankey claimsthat attorney fees were improperly awarded to Lee as a prevailing defendant on Jankey's claim for injunctive relief under Section 55. Hubbard H held that a mandatory award offees to a prevailing defendant under Section 55 without a showingthat the plaintiff's lawsuit was frivolous, unreasonable, or groundless “is inconsistent with, and therefore preempted by, the ADA.” (Hubbard II at p. 744.) We respectfully disagree with the Hubbard Icourt's preemption analysis, and conclude that attomey fees were properly awarded to Lee as a prevailing defendant under Section 55. We further find that the amountof attorney fees and costs was well within thetrial court's discretion. Consequently, we affirm. FN1. All undesignated statutory references are to the Civil Code. Section 55 also provides that “[a]ny person who is aggrieved or potentially aggrieved bya violation of Section 54 or 54.1 of this code, Chapter 7 (commencingwith Section 4450)ofDivision 5 ofTitle | of the Government Code,or Part 5.5 (commencing with Section 19955) of Division 13 of the Health and Safety Code may bring an action to enjoin the viola- tion.” II. FACTS AND PROCEDURAL HISTORY Jankey and Disability Rights Enforcement Education Services: Helping You Help Others (DREES) "? broughtthis lawsuit against Lee doing business as K & D Market, a small independently owned and operated grocery/liquor store that has been in the Mission District for 61 years. Lee does not own the building, but has operated the market since 1985. FN2. DREESis described in Jankey's pleadings as a nonprofit organization “that works with persons with disabilities to empower them to be independentin American society.” *1178 Jankey asserted that Lee violated his rights by “denying plaintiffs and the class of other similarly situated persons with physical disabilities accessto,the full and equal enjoymentof, opportunity to participate in, and benefit from, the goods, facilities, [and] services” offered by the market. Specifically, Jankey alleged that a four-inch step located at the entry of K & D Market was an architectural barrier that prevented him and other wheelchair bound individuals from wheeling directly into the store. Jankey claimed Lee wasin violation of: (1) the ADA (42 U.S.C. § 12101 et seq.); (2) the CDPA (§ 54 et seq.); (3) the Unruh Civil Rights Act (§ 51 et seq. (the Unruh Act)); and (4) Health and Safety Code section 19955. Among otherrelief, Jankey's lawsuit sought injunctiverelief pursuantto the ADA (42 U.S.C.§ 12188(a)(2)) and under Section 55, “to make [the subject place of public accommodation]readily accessible to and usable by persons with disabilities...” Lee filed a motion for summary judgment contendingthat Jankey's claims were deficient because: (1) removing the threshold step at the market was nota “readily achievable task” within the meaning of the ADA; (2) Jankey was not denied reasonable access to goods andservices; (3) Lee utilized alternative methods to provide goods and services to Jankey which complied with ADA requirements; (4) Jankey's claim under Health and Safety Code section 19955 was not cognizable becausethe marketdoesnot have a public restroom;*293 and (5) DREESlacked standing to prosecute this lawsuit. Thetrial court granted summary judgmentin Lee's favor on June 12, 2008. The court found that Lee had provedhis affirmative defenseto all causes of action that becauseofthe regulatory permit process, the removal ofthe architec- tural barrier andtheinstallation of a ramp was “contrary to applicable law”and not readily achievable. The court also found that DREESlacked standing to maintain this action. As noted, the correctness ofthis ruling is not challenged by Jankey in this appeal. © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. FOR EDUCATIONAL USE ONLY Page 3 181 Cal-App.4th 1173, 105 Cal.Rptr.3d 290, 10 Cal. Daily Op.Serv. 1648, 2010 Daily Journal D.A.R. 2024 Review Granted Previously published at: 181 Cal.App.4th 1173 (Cal.Const.art. 6, s 12; Cal. Rules of Court, Rules 8.500, 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125) (Cite as: 105 Cal.Rptr.3d 290) Lee,as the prevailing party, thereafter brought a motion to recover his attorney fees under Section 55. In ruling on the fee motion,the parties below disagreed whetherthetrial court should apply the Ninth Circuit's decision in Hubbard II, supra, 554 F.3d 742, or the California appellate court's decision in Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786, 79 Cal.Rptr.3d 574 (Molski ). As noted, in Hubbard, the court used preemption principles to require a prevailing defendant, seeking an award ofattorney fees underSection 55, to show that the disabled plaintiff's claims werefrivolous, unreasonable, or groundless."(Hubbard II, supra, at pp. 746-747.) In Molski, *1179 the court held that attorney fees were automatically available to a prevailing defendant under Section 55, notwithstanding that the disabled plaintiff's claims could not be characterized as frivolous. (Molski, supra, 164 Cal.App.4th at p. 791, 79 Cal.Rptr.3d 574.) FN3. For simplicity's sake, we will hereafter use the single term “frivolous”to denote claims that are “fri- volous, unreasonableor groundless.” Uponconsidering the parties’ arguments,the trial court determined that the Molski court's analysis controlled, and that Lee was entitled to a mandatory award of attomey fees under Section 55. The court made no finding on whether Jankey’s lawsuit could be characterizedasfrivolous. The court awarded Lee $118,458 in attorney fees and $3,544.54 in costs. Judgment was entered on August 28, 2008. Jankey thenfiled an appeal from the court's award of attomey fees and coststo Lee. Hi. DISCUSSION A. Standard of Review Generally,a trial court's determination of whether a partyis entitled to an award of attorney fees, and the calculation of such a fee award, are both reviewedfor abuseof discretion. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 315, 193 Cal.Rptr. 900, 667 P.2d 704; Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 621, 98 Cal.Rptr.2d 388.) However, Jankey claimsthetrial court used the wrong legal standard in granting Lee attorney fees underSection 55. “{A]Ithough the normal standard of review regarding an attorney fees award is abuse of discretion, ‘discretion may not be exercised whimsically, and reversalis required where there is no reasonable basis for the ruling or when thetrial court has applied the wrongtest to determineifthe statutory requirements weresatisfied.” [Citation.]” (Ramosv. Countrywide Home Loans, Inc., supra, at p. 621, 98 Cal.Rptr.2d 388.) In determining whether the court usedthe correct legal standard in awarding attorney fees, de novo review is required. (Harmanv. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 1308, 39 Cal.Rptr.3d 589; Silver v. Boatwright Home Inspection, Inc. (2002) 97 Cal.App.4th 443, 448-449, 118 Cal.Rptr.2d 475.) *294 B. Analysis Jankey’s argumentthat Section 55's mandatory fee award provision is preempted by the discretionary standard under the ADAis supported by *1180 the Ninth Circuit's decision in Hubbard II, supra, 554 F.3d 742. ™The complaint filed by the disabledplaintiffs in Hubbard alleged, amongotherthings, that the defendant restaurant owners violated both the federal ADA and California's CDPA. The court entered judgmentfor the defendants,finding that plaintiffs had failed to show that the alleged barriers denied them full and equal enjoymentof the restaurants’ services and facilities. (/d. at p. 744.) Defendants then moved for attorney fees under the ADA and Section 55 of the CDPA. (Hubbard II, supra, at p. 744.) The district court concluded that attorney fees were not warranted under the ADA becausethe plaintiffs' claims for injunctive relief were not frivolous, but awarded defendants attorney fees under Section 55 ofthe CDPA,which is mandatory and guaranteesattomey fees to a prevailing party. (Hubbard IT, supra, at © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. FOR EDUCATIONAL USE ONLY Page 4 18] Cal-App.4th 1173, 105 Cal.Rptr.3d 290, 10 Cal. Daily Op. Serv. 1648, 2010 Daily Journal D.A.R. 2024 Review Granted Previously published at: 181 Cal.App.4th 1173 (Cal.Const.art. 6, s 12; Cal. Rules of Court, Rules 8.500, 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125) (Cite as: 105 Cal.Rptr.3d 290) p. 744.) Plaintiffs appealed. FN4. Therelevantlanguage regarding preemption in Hubbard J, supra, 531 F.3d 983, and HubbardII, supra, 554 F.3d 742,is identical. Therefore,for the sake of convenience, our references to Hubbard are to Hubbard /T unless otherwise noted. Althoughthe issue ofpreemption wasnotraised or ruled on in thedistrict court, the Ninth Circuit reversed and vacated the awardofattorney feesto the prevailing defendants under Section 55, because the court believed the attorney fee award wasinconsistent with, and thus preempted by, the ADA. (HubbardII, supra, 554 F.3d at p. 744.) The Hubbard court noted that, while bothplaintiffs and defendants maybe declared prevailing parties under the ADA,attorney fees maynot be awardedto a prevailing defendant under the ADA unless the defendant establishes that the plaintiff's suit wasfrivolous. (See Summersv. A. Teichert & Son, Inc. (9th Cir.1997) 127 F.3d 1150, 1154 (Summers ) [adopting Title VII standard in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (Christiansburg ), for defendants to recover attorney fees under the ADA].) FNS.In prescribing the appropriate criteria for discretionary decisions whether to award attomey fees to a prevailing defendant under the ADA,the Ninth Circuit in Summers applied the test established for Title VII employmentdiscrimination casesin Christiansburg, supra, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648. That is, where the prevailing party in an ADAactionis the defendant, the court may award fees only if the plain- tiffs action is found to be “frivolous, unreasonable, or without foundation.” (/d. at p. 421, 98 S.Ct. 694; see, Summers, supra, 127 F.3d at p. 1154.) No argumentis made in this appeal that Summers wasincorrect by using the Christiansburg standard in an ADA context. The Hubbard court went on to point outthat a violation of the ADAconstitutes a violation of the CDPA. (See §§ 54, subd.(c), 54.1, subd. (d), 54.2, subd. (b).) (Hubbard I, supra, 554 F.3d at p. 745.) Consequently, the proof requiredto establish a violation of the CDPA and the ADAisidentical, *1181 and “it is impossible to distinguish the fees ne- cessary to defend against the CDPA claim from those expended in defense of the ADA claim....” (Ud. at p. 745.) Accordingly, “a grant of fees on the California cause ofaction is necessarily a grant of fees as to the ADA claim.” (/bid.) Because the ADAbarsfees to defendants for nonfrivolous actions, the Hubbard court concluded “preemption principles preclude the imposition of fees ona plaintiff for bringing non-frivolous claims understate law that parallel claimsalso filed pursuantto the federal law.[Citation.]” (/bid.) *295 A few days after the Hubbard J opinion was issued, the court in Molski, supra, 164 Cal.App.4th 786, 79 Cal.Rptr.3d 574, addressed the question of whether Section 55 authorizes a fee award in favor of a prevailing de- fendant, regardless ofwhetherthe plaintiff's claims could be characterizedasfrivolous. In Molski, the plaintiff filed an action alleging that he encountered barriers to wheelchair access while visiting the defendant winery. After his federal action was dismissed, Molskifiled a lawsuit in state court asserting claimsforrelief under the Unruh Act, the CDPA, Health and Safety Codesection 19955, and for injunctive relief under Section 55. (Molski, supra, at p. 789, 79 Cal.Rptr.3d 574.) Thetrial court ultimately granted defendant's motion for judgmenton the pleadings. (/d. at p. 790, 79 Cal.Rptr.3d 574.) The defendant then moved to recover attorney fees as the prevailing party under Section 55 for fees incurred in both the federal and state court proceedings. (Molski, supra,at p. 790, 79 Cal.Rptr.3d 574.) Thetrial court awarded defendantits attorney fees for the state court action only. (/bid.) Plaintiff appealed. Onappeal, the appellate court first found Section 55's mandatory language to be unambiguousauthorizing “bilateral fee recovery” for both prevailing plaintiffs and prevailing defendants. (Molski, supra, 164 Cal.App.4th at p. 790, 79 Cal .Rptr.3d 574.) Next, the court determinedthat the defendant winery was the “prevailing party” because Molski had obtained noneofthe relief he sought. (/d. at p. 791, 79 Cal.Rptr.3d 574.) Thecourt then considered Molski's assertion that, “notwithstandingthe plain language of section 55 and the outcome ofthislitigation,” attorney fees should not be assessed againsta plaintiff unless the defendant demonstrates that the © 2010 ThomsonReuters. No Claim to Orig. US Gov. Works. FOR EDUCATIONAL USE ONLY Page 5 181 Cal-App.4th 1173, 105 Cal.Rptr.3d 290, 10 Cal. Daily Op. Serv. 1648, 2010 Daily Jounal D.A.R. 2024 Review Granted Previously published at: 181 Cal.App.4th 1173 (Cal.Const. art. 6, s 12; Cal. Rules of Court, Rules 8.500, 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125) (Cite as: 105 Cal.Rptr.3d 290) claims were frivolous. (Molski, supra, 164 Cal.App.4th at p. 791, 79 Cal.Rptr.3d 574.) The Molski court rejected plaintiffs assertion that the Christiansburg standard (434 U.S. at p. 421, 98 S.Ct. 694) should be applied to Section 55 as well. The Molski court noted that Christiansburg involved a case broughtunderTitle VII, not to “access litigation in California state court, where a plaintiff controls the relative risks, burdens and benefits by selecting from among several statutory options.” (Molski, supra, at p. 791, 79 Cal.Rptr.3d 574.) Specifically,*1182 the Molski court noted that, unlike a Title VII plaintiff, a plaintiff prosecuting an accessclaim in California “hasseveral alternatives under California law” and can seek relief under the Unruh Civil Rights Act, the CDPA,or he or she can file an action under Section 55 for injunctive relief. (Molski, supra, at pp. 791-792, 79 Cal.Rptr.3d 574.) The Molski court noted thata plaintiff could seek monetary relief under section 54 of the CDPA orsection 51 of the Unruh Act without being exposedto the risk of an adverse judgmentfor attorney fees. Because fees are only autho- rized for prevailing plaintiffs, the same is not true whena plaintiff seeks relief under Section 55 to enjoin a technical violation of California's access laws. (Molski, supra, 164 Cal.App.4that p. 792, 79 Cal.Rptr.3d 574.) By including a claim for injunctive relief under Section 55, Molski knew that he could be exposed to an adverse fee award, and therefore “ha[d] somethingto lose ifhe ... [did] not carefully assess the merits” ofhis claim. (/bid.) The court con- cludedthatentitling a prevailing defendantto fees on the same basisasa prevailing plaintiff under Section 55, without a finding that the plaintiff's claims were frivolous, does not violate “[t]he spirit of California's statutory scheme.” (/bid.) A plaintiff should be held accountable for “the consequencesof this scorched earth strategy”of electing to pursue every available*296statutory option available to enforce his right of access under California law, thereby “maximiz [ing] thelitigation expenses of his adversary.” (/bid.) In responseto the Molski opinion,the Ninth Circuit granted a petition for rehearing in Hubbard I, supra, 531 F.3d 983 and issued an amended opinion. (HubbardI, supra, 554 F.3d 742.) Although the Ninth Circuit reaffirmedits ultimate conclusionthat the defendants' mandatory award of attomey fees under Section 55 was preempted by the ADA, the court acknowledged that Molski upheld an award ofattorney fees to a prevailing defendant on a Section 55 claim found notto befrivolous. (HubbardII, supra, at p. 745.) The Hubbard court went onto note that under Section 55 “[flees are not discretionary; they are mandatory... Given this language, we have no basis for doubting that the Cal- ifornia Supreme Court will agree with Mo/ski as to the meaning ofSection 55. [Citation.]” ™° (HubbardI] supra, at p. 745.) FN6.The California Supreme Court denied review of the Molski decision on October 16, 2008 (S165946). The Molski court had no reason to address the preemption issue Jankey raises because the plaintiff in Molski had voluntarily dismissed his federal claims under the ADA,and the operative complaint contained only state law claims whenattorney fees were awarded. (Molski, supra, 164 Cal.App.4th at *1183 p. 789, 79 Cal.Rptr.3d 574.) Thus, it is unsurprising that the court's opinion in Molski does not contain a word aboutparallel state and federal claims for ° injunctiverelief, nor does it address whether federal preemption principles preclude giving effect to the provision in Section 55, which automatically grants attorneyfees to prevailing defendants. Procedurally, the case before us is analogous to Hubbard, wheretheplaintiffmade parallel claims for injunctive relief under the ADAand Section 55 of the CDPA,andthe defendantprevailed on the ADAclaim for the same reasons he prevails on the CDPA claim."™’ Becausethe instantcaseis procedurally identical to Hubbard, and Molski, supra, 164 Cal.App.4th 786, 79 Cal.Rptr.3d 574 did notdirectly address this issue, we must decide whether Hubbard's preemp- tion analysis has merit. (Wagner v. Apex Marine Ship Management Corp. (2000) 83 Cal.App.4th 1444, 1451, 100 Cal.Rptr.2d 533[* * “decisionsofthe lower federal courts, while persuasive, are not binding on us.” ’ ”].) FN7. However, wepoint out one difference in Hubbard andtheinstant case. While the prevailing defendants in Hubbard movedfor attomey fees and costs pursuant to both the ADA and Section 55 of the CDPA (Hubbard Il, supra, 554 F.3d at p. 744), Lee sought attorney fees under Section 55 only. © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. FOR EDUCATIONAL USE ONLY Page 6 181 Cal.App.4th 1173, 105 Cal.Rptr.3d 290, 10 Cal. Daily Op. Serv. 1648, 2010 Daily Journal D.A.R. 2024 Review Granted Previously published at: 181 Cal.App.4th 1173 (Cal.Const.art. 6, s 12; Cal. Rules of Court, Rules 8.500, 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125) (Cite as: 105 Cal.Rptr.3d 290) Westart with long-settled preemption principles. “Whether federal law preempts state law is fundamentally a ques- tion whether Congress has intendedsuch a result. [Citations.] [4] The ‘starting presumption’is that Congresshasnot so intended. [Citations.] [{]] Preemption ofstate law by federal law is found in ‘three circumstances.’ [Citations.] [J] First, there is so-called ‘express preemption’: ‘Congress can define explicitly the extent to which its enactments pre-emptstate law.’ [Citations.] [{] Second,there is so-called ‘field preemption’: ‘[S]tate law is pre-empted whereit regulates conductin a field that Congress intended the Federal Governmentto occupy exclusively.’ [Citations.] []] Third, there is so-called ‘conflict preemption’: ‘[S]tate law is pre-emptedto the extentthatit actually conflicts with federal law.’ [Citations.] Such conflict must be ‘of substance and not *297 merelytrivial or insubstantial.’ [Citation.] It exists when it is ‘impossible ... to comply with both state and federal requirements' [citations] or when state law ‘stands as an obstacle to the accomplishment and execution ofthe full purposes and objectives’ underlying federal law [citations].” (Peatros v. Bank ofAmerica (2000) 22 Cal.4th 147, 157-158, 91 Cal.Rptr.2d 659, 990 P.2d 539; Capital Cities Cable, Inc. v. Crisp (1984) 467 U.S. 691, 698-699, 104 S.Ct. 2694, 81 L.Ed.2d 580.) In determining whether a state statute is preempted by federal law, courts may find preemption only when congressionalintent is ‘‘ ‘clear and manifest.’ ” (Spielholz v. Superior Court (2001) 86 Cal.App.4th 1366, 1371-1372, 104 Cal.Rptr.2d 197; Medtronic, Ine. v. Lohr (1996) 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700.) *1184 In considering the different categories of federal preemption,it appears the Hubbard court employed conflict preemption analysis. According to Hubbard, a violation of the ADAis a violation ofthe CDPA (8§ 54, subd. (c), 54.1, subd.(d), 54.2, subd. (b)), and it is “impossible to distinguish the fees necessary to defend against the CDPA claim from those expendedin defense against the ADA claim...” (HubbardII, supra, 554 F.3d at p. 745.) Because the ADA bars attorney fees to defendants for nonfrivolous actions, the Hubbard court believed that the mandatory fee award to a prevailing defendant under Section 55 of the CDPA wasinconsistent with and thus preempted by the ADA. In our view, Hubbard improperly used conflict preemption principles to decide the issue before it, and in applying those principles, erroneously concluded that the ADA and Section 55 werein conflict. Certainly, there is nothing in the ADA which would support Hubbard's conclusion thatin enacting the ADA, Congress intended to impose uniform standards for complementary state law remedies. In fact, the ADA's express preemption clause, which is not even mentioned in Hubbard, leads to the opposite conclusion. The ADAhas explicitly defined the extent to which its enactment preempts other Jaws. The text of that provision providesthat “[n]othing in [the ADA]shall be construedto invalidate orlimit the remedies,rights, and procedures of any Federal law or law of any State ... that provides greater or equal protection for the rights of individuals with disabilities than are afforded by [the ADAJ.” (42 U.S.C. § 12201(b).) Accordingly, rather than express an intent to displace state law in the field of disability discrimination, Congress envisioned that a plaintiff will be permitted to pursue state law remedies simultaneously with the remedies provided under the ADA, which maypotentially provide the plaintiff with equalor greaterreliefthan he or she maybeentitled to under the ADA alone. (See Dichnerv. Liberty Travel (1st Cir.1998) 141 F.3d 24, 32 [“the ADA anticipatesthat disabled personswill enjoythefull protection ofboth federal and state antidiscrimination schemes”); Wood v. County ofAlameda (N.D.Cal.1995) 875 F.Supp. 659, 665 (Wood) [“plaintiffs are free to bring suit under both state statutes and the ADA,to the extentthat those state lawsare consistent with the accomplishmentofthe federal purposesstated in the federal law”). (Original italics.).) It has been recognized that the express purpose of the ADA's preemption provision is to maximize the options available to plaintiffs by ensuring that the ADA provides a “floor” for a plaintiffs rights and remedies while freeing the states to construct a statutory “ceiling.” (Wood, supra, 875 F.Supp.at p. 663.) In California, the Legislature has proclaimedits intent *1185 that California provide more protection to individuals*298 than the ADA:“Thelaw ofthis state in the area of disabilities provides protections independent from those in the federal [ADA].... Although the federal act providesa floor of protection,this state's law has always, even prior to passageofthe federal act, afforded additional protections.” (gov.code, § 12926.1, subd. (a).) Indeed,a perusalofthe array of remedies available under California law leads quickly to the inescapable conclusion © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. FOR EDUCATIONAL USE ONLY Page7 181 Cal.App.4th 1173, 105 Cal.Rptr.3d 290, 10 Cal. Daily Op. Serv. 1648, 2010 Daily Journal D.A.R. 2024 Review Granted Previously published at: 181 Cal.App.4th 1173 (Cal.Const. art. 6, s 12; Cal. Rules of Court, Rules 8.500, 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125) (Cite as: 105 Cal.Rptr.3d 290) thatthe protectionsofstate law go far beyond the ADA.Asnoted, the ADAprovides only injunctive relief, not money damages. (42 U.S.C. § 12188(a)(2).) In contrast, both the Unruh Act and the CDPA allow a plaintiff who is denied equal access or accommodation to sue for money damages. (§§ 52, 54.3.) The importance ofthis expansion ofre- medies was explained by the court in Pickern v. Best Western Timber Cove Lodge Marina (E.D.Cal.2002) 194 F.Supp.2d 1128: “After the ADA waspassed in 1990, the California Disabled Persons Act and the Unruh Civil Rights Act were amendedto provide that a violation of the ADA constitutes a violation oftheir provisions.[Citations.] Thus, a plaintiff whose rights are violated under the ADA may now seek damages underthe California statutes...” (Cd. at p. 1131.) More recently, our Supreme Court settled a disagreement among the appellate courts and held that a plaintiff who seeks damages under section 52, claiming the denial of full and equal treatment on the basis of disability in violation of the Unruh Act and the ADA,neednot proveintentional discrimination. (Munsonv. Del Taco, Inc. (2009) 46 Cal.4th 661, 665, 94 Cal._Rptr.3d 685, 208 P.3d 623.) Furthermore, when money damagesare sought under both the CDPA andthe Unruh Act, the attomey fee provisions offer a unique departure from the ADA'sbilateral attorney fee provision. Under the CDPA and the Unruh Act, the prevailing plaintiffis entitled to seek recovery of attorney fees, but a prevailing defendantis not similarly entitled to fees. (See §§ 54.3, 52, subd. (a); Molski, supra, 164 Cal.App.4th at pp. 791-792, 79 Cal.Rptr.3d 574.) Asnoted, unlike the ADA, which makes attomey fee recovery discretionary (42 U.S.C. § 12205), attorney fees are mandatory under Section 55. Consequently,if the plaintiff proves a single violation of a broad range of statutory requirements, of whicha violation ofthe ADAis merely a subset, the plaintiff is guaranteed an attorney fee award. Far from weakening the *1186 rights ofplaintiffs, the legislative history reveals that the California Legislature designed Section 55's guaranteedattorney fee provision to promote, and encourage plaintiffs to seek enforcement of California's disability access statutes.“ FN8.In working to pass Assembly Bill 2471 during the 1973-1974 legislative session, which becameSection 55, a proponentofthe bill wrote: “The disabled in the State need the courts to back them up in their efforts to movefreely in their community. However, attorneys and courts cost money and according to Federal and State statistics, the disabled are among the mostfinancially disadvantaged. Forthis reason, AB2471 is needed to allow the disabled to bring action against those builders in violation of the law without the prohibitive burden of attomey's fees and court costs. This would put the disabled in the State on a more equal footing with their able-bodied peers.” (Saralea Altman, Legis. Chairwoman, Cal. Coordinating Council, letter to Assemblyman Charles Warren, May30, 1973.) Thefact that the Legislature decided to impose a two-way guaranteedfee provision does not put Section 55 in irre- concilable conflict with the ADA or abrogate the scopeofthe rights available under the ADAin any fashion. Section 55, like other *299 provisions of the CDPA and the Unruh Act, provides greater incentives and rights to a person pursuinga disability access claim in California. Therisk that a plaintiffwill be liable to a defendantfor attorneyfeesif a Section 55 injunction claim fails is more than offset by the greater rights afforded a plaintiff, including money damages and a guaranteed attorney fee recovery in all instances where the plaintiff prevails. The Hubbard court also went astray whenit failed to look at the CDPA as a whole in measuringit against the ADA's protection, and instead improperly parsed the law. Wehave found nolegal authority requiring each and every element of a multi-faceted state remedial act to offer equal or greater benefits underall circumstances over a similar federal law in orderto avoid a preemption finding. Rather than dissecting the fee provision as did Hubbard, when Section 55's role and purpose within the CDPA is considered,it represents precisely the kind of state law authorized by 42 U.S.C, section 12201(b)-a law where “the potential available remedies would be greater than those available under the ADA....” (Appen. to 29 C.F.R. § 1630.1, subds. (b)(c) (2009), p. 369.) Lastly, Hubbard failed to acknowledge the point so persuasively made by Molski that, in California, “a plaintiff controls the relative risks, burdens and benefits by selecting among several statutory options,” and that by invoking © 2010 ThomsonReuters. No Claim to Orig. US Gov. Works. FOR EDUCATIONAL USE ONLY Page 8 18] Cal.App.4th 1173, 105 Cal.Rptr.3d 290, 10 Cal. Daily Op. Serv. 1648, 2010 Daily Journal D.A.R. 2024 Review Granted Previously published at: 181 Cal.App.4th 1173 (Cal.Const.art. 6, s 12; Cal. Rules of Court, Rules 8.500, 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125) (Cite as: 105 Cal.Rptr.3d 290) Section 55, Jankey knew he “ha[d] something to lose if he ... [did] not carefully assess the merits” of his claim. (Molski, supra, 164 Cal.App.4th at pp. 791-792, 79 Cal.Rptr.3d 574.) In this case, Jankey chose to pursue claimsfor injunctive relief*1187 under both the ADAand Section 55. Ifhis lawsuit had been successful, he certainly would have claimed a mandatory right to attorney fees under Section 55. Nullifying Section 55 to the extentthatit guarantees prevailing defendants attorney fees now that Jankey has lost would give him all the benefits of a “scorched-earth” litigation strategy while incurring noneofthe risks. (Molski, supra, at p. 792, 79 Cal.Rptr.3d 574.) Moreover, if we accepted Jankey's argument, it would resultin giving plaintiffsin disability discriminationlitigation an unfair strategic advantage over defendants, who will be subject to Section 55's mandatory attorney fee provision if they lose and the ADA's discretionary attorney fee provision if they win. This result would potentially inject even greatertactical ga- mesmanship into an area of the law where gamesmanship is already an acute concern. (See generally Molski v. Mandarin Touch Restaurant (C.D.Cal.2004) 347 F.Supp.2d 860, 863.) *Y? FN9. This concer is hardly speculative. The similarity between the complaints filed in Molski and the instant case goes beyond mere coincidence. Both Jankey and Molski are represented by the same attorney-Thomas Frankovich. As one court has noted, complaints filed by Frankovich on behalf of plaintiffs invariably com- bine an ADAclaim with claims under the Unruh Act, the CDPA,and the Health and Safety Code. (Molski v. Mandarin Touch Restaurant (C.D.Cal.2005) 359 F.Supp.2d 924, 926.) Indeed, the court in that case found that al? 223 of the Frankovich complaints it examined combined roughly the same causesofaction. (/bid.) Moreover,as the Molski opinion noted, Frankovichis subject to a prefiling order in federal court. (Molski, supra, 164 Cal.App.4th at p. 789, 79 Cal.Rptr.3d 574; see Molski v. Evergreen Dynasty Corp. (9th Cir.2007) 500 F.3d 1047, 1064 [“district court's pre-filing sanctionis sufficiently tailored to combat the Frankovich Group's practice ofrepetitive litigation based on false allegations of injury”].) It noted further that while 156 such lawsuits were filed on behalf of Molski, another 40 were filed on behalf of Jankey or Patrick Connally, the president of DREES. (Molski v. Mandarin Touch Restaurant, supra, 359 FSupp.2d at p. 926.) *300 Wetherefore reject Jankey's claim, based on Hubbard II, supra, 554 F.3d 742,that “[t]he discretionary attorneys’ fee provision of the ADA andthe mandatory nature of fees undersection 55 raise [an irreconcilable] conflict” and that “preemption principles preclude the imposition of fees on [Jankey] unless the trial court was to find that [his] action wasfrivolous, unreasonable, or groundless.” We conclude no such finding was required underSection 55, nor is the statute preempted by the ADA. Accordingly,thetrial court properly awarded Lee,as the prevailing party, his attomey fees in this case. C. AmountofAttorney Fees Award *”* FN**See footnote *, ante. *1188 IV. DISPOSITION The judgmentis affirmed. Lee is entitled to his costs and an award of attorney fees on appeal in an amountto be determinedin the trial court. (See Cal. Rules of Court, rule 8.278(a)(1); Morcos v. Board ofRetirement (1990) 51 Cal.3d 924, 927, 275 Cal.Rptr. 187, 800 P.2d 543 [statutes authorizing attorney fee awards in lower tribunals include attorney fees incurred on appeals of decisions from those lowertribunals.”].) We concur: SEPULVEDAand RIVERA,JJ. Cal.App. | Dist.,2010. © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Attachment No. 2 In the Matter ofThomas Frankovich, Case No. 04-O-15890 (State Bar Court 2009) -30- FILED JUNE25, 2009 STATE BAR COURT OF CALIFORNIA HEARING DEPARTMENT— SAN FRANCISCO In the Matter of Case No.: 04-O-15890-PEM; 06-J-13032 (Cons.) THOMAS EDWARD FRANKOVICH ) ) ) ) DECISION Member No. 74414 )- ) )A Memberofthe State Bar. I. Introduction The aggressive pursuit oflitigation involving violations of the Americans with Disabilities Act (ADA) has becomea highly contestedareaof law. Attorneys, such as respondent Thomas Edward Frankovich, who seek outandprofit from violations of the ADA are at the center of this controversy. Somesee these attorneys as championsof the disabled, while others view them as unscrupulouspariahs. The flamesof this controversy have spread beyond the realm ofpublic opinion and into the federal court system. In this contested matter, respondentis alleged to have committed multiple acts of misconductinvolving his federal ADA practice. Said misconduct includes schemingto extort settlements, seeking to mislead a judge, and committingacts of moral turpitude. Respondentis also charged with an unrelated allegation that he committed misconductina foreign jurisdiction by improperly communicating with a represented party. Based on the evidence presentedattrial, C. Respondent’s ADA Practice - Case No. 04-0-15890 I. Findings ofFact Background The ADA,42 U.S.C. §12101 et seq., was signedinto law in 1990. Its stated goalis to remedy discrimination against individuals with disabilities. A major source of discrimination suffered by disabled individualsis the inability to gain access to public accommodations. Title Il of the ADA, 42 U.S.C. §12181 et seq., requires the removalofstructural barriers in existing public accommodations “where such removalis readily achievable.” Where removal of the barrier is not readily achievable, the facility must provide access through alternative methodsif such methodsare readily achievable. (U.S.C. §12182(b)(2)(A)(v).) To enforce Title Il, the ADA contains both a private right of action, 42 U.S.C. §12188(a), and a right of action for the Attorney General, 42 U.S.C. §121 88(b). While the Attorney General may seek monetary damageson behalf of an aggrieved party, the only remedies available under the private right of action are injunctive relief andthe recovery of attorneys’ fees and costs. (42 U.S.C. §12188(a)(1); 42 U.S.C. §2000a-3(a).) Onthe other hand, California’s state civil rights law amplifies the available scope of relief by permitting the recovery of money damages. Because violations of the ADA also constitute a violation of California’s Unruh Civil Rights Act (Cal. Civ. Code §51(f)) andthe California Disabled Persons Act (Cal. Civ. Code §54(c)) plaintiffs can sue in federal court for injunctive relief under the ADA,and tack onstate law claims for money damages underthe Unruh Act and the California Disabled PersonsAct. In 2004,respondentfiled at least 223 lawsuits in the United States District Courts for the Northern and Central Districts of California alleging violations of the ADA. Ofthose lawsuits, 156 were filed on behalf of Jarek Molski,” and 40 were filed on behalfofeither Les Jankey’or Patrick Connally.’ Disability Rights Enforcement Education Services (DREES)wasa co- plaintiff in all of the lawsuits. Molski Found to be a Vexatious Litigantin the Central District Court ofCalifornia In or about 2004, respondentfiled an ADAaction on behalf of Mr. Molski entitled Molski y. Evergreen Dynasty Corporation d/b/a Mandarin Touch Restaurant, et al., United States District Court, Central District ofCalifomia, Case No. CV 04-0450 ER. Defendant Evergreen Dynasty, doing business as Mandarin Touch Restaurant, soughtan order declaring Mr. Molski a vexatiouslitigant and requiring him to obtain leave ofcourt before filing additional ADAsuits. On November 15, 2004, District Court Judge Edward Rafeedie presided over a hearing onthis issue. In determining that Mr. Molski was a vexatiouslitigant, Judge Rafeedie applied five factors set forth in Safir v. United States Lines, Inc, 792 F.2d 19, 24 (2d Cir. 1986). These factors include:(1) the litigant’s history oflitigation, in particular whetherit entailed vexatious, harassing or duplicativesuits; (2) the litigant’s motivein pursuingthelitigation, for example, whether thelitigant hada good faith expectation ofprevailing; (3) whetherthe litigant was represented by counsel; (4) whetherthe litigant caused unnecessary expense to the parties or placed needless burden onthe courts; and (5) whether other sanctions wouldbe adequateto protectthe courts and otherparties. Judge Rafeedie found that Mr. Molski had filed approximately 400 lawsuits alleging violations of ADAin the federal courts since 1998. Manyofthese were nearly identical in termsofthe facts alleged, the claims presented, and the damages requested. Judge Rafeedie foundit very unlikely that Mr. Molski suffered the sameinjuries, often multiple timesin oneday. * Mr. Molskiresides in Woodland Hills, California, andis an individual who is paralyzed from the chest down and uses a wheelchair for mobility. >Mr. Jankey is an individual who relies on a wheelchair for mobility. “Mr. Connally is a disabled individualandpresident of Disability Rights Enforcement Education Services. -4. Judge Rafeedie further found that Mr. Molski’s primary motivationfor filing ADA lawsuits was to extract a cash settlement. This finding was based on the fact that Mr. Molski always raised additional state law claimsthat allow for the recovery ofmoney damages. Moreover, Judge Rafeedie concluded that because an overwhelming majority ofthe casessettle, with a significant minority dismissed for a violation of a court orderorfailure to prosecute the claim,it calls into question Mr. Molski’s goodfaith expectation ofprevailing on the merits ofhis claim, and suggests that he does not have a reasonable expectation (or intention) oflitigating the suit on the merits. Additionally, the Judge Rafeedie determined that since Mr. Molski was represented by counselin every lawsuit the court was aware of, Moslki wasnotentitled to the protection generally accordedpro se litigants. The court further reasoned thatsince Mr. Molski filed countless numbers ofvexatious claims, he caused needless expenseto other parties and obviously burdenedthe courts. Therefore, on December 9, 2004, Judge Rafeedie issued an order declaring Mr. Molski a vexatious litigant and ordering him to obtain leave ofcourt before filing any other lawsuits alleging violations ofthe ADA in the United States District Court for the Central District of California. MolskiAided by Respondent In his December9, 2004 order, Judge Rafeedie noted that Mr. Molski hadnotacted alone. Judge Rafeedie acknowledged that Mr. Molski was aided and abetted byhis attorneys, often respondent’s law offices, and his corporate co-plaintiffDREES. Forthat reason, Judge Rafeedie issued an order to show cause against respondent’s law office to show whytheyshould not be required to obtain leave ofcourt to file any future lawsuits alleging violationsofthe ADA. On March 8, 2005, Judge Rafeedie issued a memorandum decision ordering respondentto obtain Jeave ofcourt before filing any new complaints alleging violations ofTitle III ofthe ADA in the United States District Court for the Central District ofCalifomia. This decision was based onthe following factualfindings: (1) respondent’s law firm filed at least 223 lawsuits in the Northem and Central -5- Districts ofCalifornia in 2004, one-third ofwhich were against ethnic restaurants; (2) because ofthe similarity and multitude ofMr. Molski’s injuries, manyofhis claimed physical injuries were contrived; (3) the only reason respondent madea claim for physical injury in every complaint wasto invoke the personalinjury provisions ofdefendant’s insurance policy; and (4) respondent’s law firm had aggressively and unethically pursued and obtained a high rate ofcash settlements - indicative of an extortion scheme. Thebasis for Judge Rafeedie’s finding that respondent unethically pursuedcash settlements was the letter respondentsent defendants with each complaint. Judge Rafeedie found thatthis letter violated the Model CodeofProfessional Responsibility in thatit: (1) advised an unrepresented party against obtaining counsel; (2) provided a considerable amountoflegal advice on pursuing a claim against the defendant’s insurance company; and (3) advised the unrepresented party that it does not have “a bona fide defense” to the lawsuit and recommended a quick settlement, rather than wasting money on “needlesslitigation.” Judge Rafeedie further concluded that the only reason respondent waited a year beforefiling suit was to intimidate small businesses byincreasing the statutory damagesclaim. Molski Foundnotto be a Vexatious Litigant in the Northern District Court ofCalifornia Once Judge Rafeedie declared Mr. Molski a vexatiouslitigant in the Central District Court of California, defendants in Jarek Molski et al v. Rapazzini Winery, brought a motion to declare Mr. Molski a vexatiouslitigant in the Northem District Court of California. However, on April 6, 2005, the Honorable Patricia V. Trumbull declined to follow Judge Rafeedie’s ruling. After examiningthe contents ofMr. Molski’s pleadings, Judge Trumbull foundthat his ADA claimswere notfrivolous, and that Mr. Molski provided reasonable explanations for the number of violations he discovers and for the numberofinjuries he suffers. Judge Trumbull disagreed with Judge Rafeedie’s conclusion that Mr. Molski’s high settlementrate andfailureto take cases through trial evidenced lack ofa goodfaith expectation ofprevailing on the merits. Judge Trumbull instead — -6- concluded thata high settlement rate is merely a fact ofmodem litigation. Judge Trumbull further concluded that Mr. Molski did not cause needless expenseto the federal court system becausehe has a night to seek redress in federal court, even though he also seeks remedies under pendantstate claimsthat are not available under federal law. Respondent’s Appealofthe Central District Court’s Findings Respondent appealed and the Ninth Circuit Court ofAppeal reviewed Judge Rafeedie’s orders for abuse of discretion.” On August 31, 2007, the Ninth Circuit Court ofAppeal issued an opinion affirming Judge Rafeedie’s orders declaring Mr. Molski a vexatiouslitigant and requiring that he and respondent obtain leave of court prior to filing any new ADA complaints. After the Ninth Circuit affirmed Judge Rafeedie’s orders, respondentfiled a petition for rehearing. The panel denied the petition for rehearing, but not without vigorous dissent. In his dissenting opinion, Chief Judge Alex Kozinskiargued that Judge Rafeedie had no basis to find that Mr. Molski made meritless claimsor lied about his injuries. In his scathing assessmentofJudge Rafeedie’s “hearing,” Judge Kozinski wrote: Oh, sure, the docket indicates (somewhat misleadingly) that a “hearing” washeld on the vexatious litigant motion, but it plainly was not an evidentiary hearing. What happenedinsteadis this: The judge spentthefirst half of the hearing berating Molski and his lawyers, in pretty much the sametermsas his subsequent order-which suggests that his views were cast in cement by the time of the “hearing.” [Citations.] After the judge was done, Molski’s counsel was allowed to address the court, [Citation], but no witnesses testified, no evidence waspresented, there was no cross-examination and there were no evidentiary rulings-in short, there wasnotrial. Molski, whose veracity the district court impugned, wasnoteven present. How thendid the judge manage to make factual findings, and how does this panel affirm those findings on appeal? It’s bad enoughthatthe panelrelies on its own armchair wisdom aboutplaintiff's supposed ability to avoid repetitive injuries, [Citation], rather than looking to whetherthe record supports the findings ofthe district court. Worsestill is that there is no record the panel could consultif ° Abuseof discretion can be found when a district court basesits decision on an incorrect view of the law or a clearly erroneous findingof fact. (United States v. Finley, 301 F.3d 1000, 1007 cg Cir.2002); Does 1-5 v. Chandler, 83 F.3d 1150, 1152 cg Cir.1996).) -7- it were of a mind to do so. Thereis no statement at all from Molski himself, as the complaint is not verified. The panel does not find the absence of an evidentiary record remarkable, perhapslaboring under the mistaken impression that there must be an evidentiary record somewhere underall that paper. Still and all, those of us unfamiliar with the alchemy of makingfindings based on no evidence-and affirming them based on no record-would dearly love to know why the absence of an evidentiary record is not an insuperable obstacleto affirming a district court’s factual finding. The bottom lineis this: The district court made, and the panel affirms, a finding that Molskiis a liar and a bit of a thief, without any evidence at all. The district court and the panel also manageto find thatplaintiffjust couldn’t have suffered the injuries he alleges, without the benefit of an expert or anyother proof. But doesthedistrict court have authority to makefindingsthat severely curtail access to the federal court, not only for plaintiff but also for his lawyers andtheir other clients (present and future), without swearing in a single witness? Withoutgiving notice and an opportunity to present evidence? Without cross- examination? Without anyof the other rudiments of due process? Isn’t Molski at least entitled to get on the stand, look the judge in the eye and tell his story? 2. Conclusions ofLaw Count One: Moral Turpitude Scheme to Extort (Bus. & Prof. Code § 6106)° Moralturpitude has beendefined as“an act of baseness, vileness or depravity in the private and social duties which a man owesto his fellowmen,orto society in general . . . . {Citations.] Moral turpitude has also been described as any crime and misconduct committed without excuse [citations] or as any ‘dishonest or immoral’ act, not necessarily a crime. [Citations.] The concept of moral turpitude depends uponthestate of public morals . . . as well as on the degree of public harm produced by the act in question.” (In re Higbie (1972) 6 Cal.3d 562, 569-570.) TheState Bar alleges that respondent engaged in a schemeto extort by: (1) filing claims that containedfalse and contrived claimsofbodily injury; (2) filing numerous complaints alleging plaintiffs had been injured numeroustimes in a single day; (3) making misleading statements to defendants about hiring counsel, the merits of their defense, and discussing ° All references to section are to Business and Professions Code, unless otherwise indicated. -8- whethertheir insurance might cover anyclaims; and (4) not notifying the defendants of the claim until after significant time had passed sothat a large daily damagetotal could accumulate. The State Bar has the burden ofproving that respondentis culpable by clear and convincing evidence. TheState Bar’s case, however,relies almost entirely on: (1) Judge Rafeedie’s orders, (2) the Ninth Circuit Court’s decision affirming Judge Rafeedie’s orders, and (3) the testimony of James Link. While Judge Rafeedie madesubstantive findings that respondent engagedin a schemeto extort ADAsettlements,these findings were derived from a questionable evidentiary hearing that, according to Chief Judge Kosinski, was void oftestimony and evidence. Based on the record before the court, it appears that Judge Rafeedie’s findings were based more on assumption and innuendothan testimonial and documentary evidence. While Judge Rafeedie’s findings were sufficient to meet the lower threshold ofproof necessary to warrant pre-filing sanctions, they do notrise to the level of clear and convincing evidence. Any weightthe court gives to Judge Rafeedie’s orders is diminished by the disparity in treatment respondenthasreceivedin the federal court system. Facing a similar motion, Judge Trumbull of the Northern District declined to follow Judge Rafeedie’s lead on this issue. Further, there is no indication in the record that any other court has found respondentorhisclient to be a vexatious litigant. This is despite the fact that respondent hasfiled hundreds ofADA lawsuits in the Central and Northern Districts. Atfirst blush, the Ninth Circuit Court’s affirmation of Judge Rafeedie’s orders appears to bolster the State Bar’s case. However,following closer examination,it’s clear that the Ninth Circuit Court’s holding demonstrateslittle aside from the fact that Judge Rafeedie’s orders did not constitute an abuseof discretion. Based on the strenuousdissenting opinions voiced by Chief Judge Kozinski, and others, the Ninth Circuit Court’s affirmation was hardly a nnging endorsement. Thecourt also took into consideration the testimony of attorney James Link. Mr. Link’s practice is madeup oflitigation and appellate work. In the last four years, he’s worked on 80 cases where ADA wasanissue. Of these 80 ADA cases, Mr. Link never represented a plaintiff. Mr.Link opinionedthat respondent overbills, works cases longer than needed, and asks for outrageous attorney fees. The court, however, found Mr. Link to be a biased witness considering his perspective, demeanor, and extensive background in ADA defense. Finally, the court also considered whether the letter respondentsent defendants with each complaint supports the allegation that he was engaged in a schemeto defraud. While Judge Rafeedie found thatthis letter violated the Model Code ofProfessional Responsibility, the State Bar did notallege, and the court does notfind, thatit violates either the Rules ofProfessional Conductor the Business and Professions Code. Andalthough respondent’s letter seeks to expedite settlement, this is not necessarily indicative ofa schemeto extort. Accordingly, the court findsthat the State Bar did not prove, by clear and convincing evidence, that respondent committed moral turpitude by engaging in a scheme to extort. Count Oneis dismissed with prejudice. Count Two: Seeking to Mislead a Judge (§ 6068, Subd. (d)) Section 6068, subdivision (d), prohibits an attorney from seeking to misleadthe judgeor anyjudicialofficer by an artifice or false statementof fact or law. The State Bar alleges that by filing complaints containing allegations of bodily injury when there were nofacts to support such a claim, respondent sought to mislead the judge orjudicial officer by anartifice orfalse statement of fact or law. -10- The State Bar failed to establish, by clear and convincing evidence, their underlying premisethat no facts supported respondent’s allegationsofhis clients’ bodily injuries. As noted above,the findings of Judge Rafeedie on this issue were conclusory and subsequently contradicted by the findings of Judge Trumbull. Consequently, Count Twois dismissed with prejudice. Count Three: Moral Turpitude — (§ 6106) TheState Baralleges that respondent committed acts of moral turpitude by making settlement demandsandsettling with defendants without “appropriately apportioning” each defendants’ responsibility for the repetitive, continuous, and cumulative trauma Mr. Molski suffered, thereby making defendants responsible for more than their share. The State Bar, however,failed to present clear and convincing evidenceofthe alleged misconduct. Furthermore,the State Bar did not establish under what duty respondentis required to “appropriately apportion” for each defendant’s responsibility. Consequently, there is no basis in the record to support a finding of culpability in Count Three. Count Three is dismissed with prejudice. D. Case No. 06-J-13032 1. Findings ofFact Professional Misconduct in a Foreign Jurisdiction Section 6049.1, subdivision (a) provides, in pertinentpart, that a certified copy of a final order madeby any court of record of anystate of the United States, determining that a member of the California State Bar committed professional misconductin that jurisdiction is conclusive evidencethat the memberis culpable ofprofessional misconductin this State. This court accepts such a determination as conclusive evidence of misconduct, even when the findings of the court of foreign jurisdiction were made under a lower evidentiary standard. (Cal. § 6049.1, -ll- Attachment No. 3 Excerpts of the Legislative History for Section 55 of the California Civil Code -31- OFFICERS Chairman A. Milton Miller 9025 Wilshire Blvd Suite 414 Beverly Hills, Ca. 90212 Vice Chairman Mary Wiitamson San Jose, Calif. Treasurer Ray Williams Sacramento Secretary Saralea Altman Los Angeles Delegates-At-Large Robert Hawkins Sacramento Charles Murphy Pleasant Hil! CHAPTERS Southern Callfornia Los Angeles Sacramento Valley Sacramento San Joaquin Valley Fresno San Diego San Bernardino Riverside Los Padres Santa Barbara Coast Counties San Jose East Bay Oakland San Mateo Sacramento State University Campus HARBOR CHAPTER Long Beach R.C.A.C. San Franctsco NATIONAL ASSOCIATION NG CALIFORNIA COORDINATING COUNCIL May 30, 1973 Assemblyman Charles Warren State Capitol Building Sacramento, California Assemblyman Warren: The California Coordinating Council of the National Rehabilitation Association on behalf of its statewide membership wishes to urge your YES vote for AB2471 when it is heard in the Assembly Judiciary Committee. While California has some of the most progressive laws in terms of removing mobility barriers, there has been a con- stant problem of enforcement of thee laws. Public educa- tion of the architects and builders has helped, but it is not enough. The disabled in the State need the courts to back them up in their efforts to move freely in their community. However, attorneys and courts cost money and according to Federal and State statistics, the disabled are among the most financially disadvantaged. For this reason, AB2471 is needed to allow the disabled to bring action against those builders in violation of the law without the prohibi- tive burden of attorney's fees and court costs. This would put the disabled in the State on a more equal footing with their able-bodied peers. Respectfully Saralea Altman Legislative Chairwoman California Coordinating Council 2385 Roscomare Rd, #21 Los Angeles, California 90024 SA:bn cc: Assemblyman Alan Sieroty | _ 4. SENROLLED BILL REPORT. a pe,ne wt : oo , AGENC?T > a BILC NUMBER [Realth and Welfare Agency AB 2471 (8/8/74) , DEPARTMHNT, BOARDOR COMMISSION AUTHOR Department of Rehabilitation Sieroty SUBJECT: Enforcement of Architectural Barrier Laws | aSPONSORSHIP: Assemblyman Sieroty RELATED BILIS;, AB 1547 (Steroty), 1972 AISTORY: Assemb] nm Sieroty. carried AB 1547 (1972) which would have permitted a blind’ physically handicapped person to brirs action for an injunction to stop construction or operation of a building or facility which did not meet the architectural barrier laws without being required to post a bend. - uO ANALYSIS: Ttig-bill is mich more moderate specifying that an injunction may be brought and specifies that the prevailing party will be entitled to reasonable attorney fees. Under AB 2471, the plaintiff would have to post bond tn order to bring the action. Starting in 1968, several laws requiring buildings and other facilities be accessible to the physically handicapped have been passed. Enforcement of these architectural barrier laws have been very weak. Physically handicapped persons do not generally have income or resources necessary to pay for attorney fees when it is necessary to take flagrant violators to court. This bill will make clear that the prevailing party will be entitled to attorney's fees. FISCAL IMPACT: No impact on state general funds. Other fiscal impact will depend upon awards made by the court. FINANCE'S POSITION: Neutral RECOMMENDATION: Sign the bill - . aot DEPARTMENT DIRECTOR DAaTt Pe l AGENCY SECRETARY DATE ban 0. Attia Wes “A TU. kel HWA 4980 September 1912 ASSEMBLY COMMITTEE ON JUDICIARY CHARLES WARREN, CHAIRMAN BILL DIGEST Bill: AB 2471 Hearing Date: 8/14/73 AUTHOR: Sieroty SUBJECT: Physically Handicapped; Access to Buildings BACKGROUND: Under existing law, all buildings and facilities built since 1968 using state or local funds, and all gas stations, office buildings, shopping centers, hospitals, convalescent homes, hotels, motels, restaurants and other places of amusement built since 1970, must insure reasonable access to the physically handicapped. All such buildings and facilities built before the applicable dates must comply with the necessary standards whenever they alter, repair or add to the building or facility. Enforcement of this law presently rests with the Director of General Services if state funds were used. It rests-with the building department of the applicable local government if local funds were used. Unauthorized deviations must be rectji- fied within 90 days after discovery. BILL DESCRIPTION: This bill provides that a physically disabled person can give written notice of a deviation to the owner of a private facility, or to the person responsible for enforcing the law if the deviation is in a public facility. If the deviation is not corrected within 90 days, the physically disabled person can then seek an injunction against further construction or operation of the nonconforming facility until the deviation is corrected. The bill also provides that if the person is successful in obtaining an injunction the court can award him reasonable attorney's fees and court costs. CONTINUED AB 2471 - page 2 SUPPORT: National Rehabilitation Association. OPPOSITION: North Coast Builders Exchange. — a oe BILLY ANALYSIS | wae a DEPARTMENT — " ~ ~TRoTHOR GHC NUMBER ___* "GENERAL SERVICES _- ___|ASSEMBLYMAN SIEROTY lap 2547.SPONSORED DY ——“TRELATED BILLS DATE LAST AMENDED UNKNOWN ___ UNKNOWN. RIGINAL Specific Findings: Assembly Bill No. 1547 provides procedures for obtaining an injunction against further construction or operation of a : private or public facility not conforming to buliding require-~ oe ments in respect to the Physically Handicapped. Law. Assembly Bill No. 1547 would allow a blind or physically dis- abled person to obtain an injunction against construction or operation of a facility without being required to pest a bond forthe purposes of reimbursing the owner for monies lost as’ a result of such action. The bill would also award reasonable attorney fees and court costs to the person initiating the. action. We are concerned that the bill could result in unreasonable actions being taken against the owner of a building or facility.‘A handicapped person could initiate action against the owner of& building or facility without posting a bond to protect the owner &gainst excessive losses of revenue. If enacted Assembly Bill No. 1547 could result in unreasonable actions being initiated. . ‘Financial Analysis: The bill would have no fiscal impact upon the Departmentof General Services fa indeterminate: hevever, {f wnucberOf lezel actions ware flied aguinst the state it eould be substantLel, (Burye: $/4/72.) . INFORMAL POSITION: Legislative Analyst July 12, 1972 ANALYSIS OF ASSEMBLY BILL NO. 1547 (Sieroty) As Amended in Assembly, June 19, 1972 1972 Session Fiscal Effect: Cost: None. Revenue: None. Analysis: This bill would allow blind or physically disabled persons to obtain an injunction against further construction or operation of a public or private facility if the Facility contains unauthorized deviations from statutes regulating building accessibility for the physically handicapped and if 90 days have elapsed from the time said person gave written notice to the owner informing him of the deviations. A bond will not be required for filing of the injunction if the courtfinds evidence of nonconformity to be clear and convi ncing. If the injunction is obtained, the plaintiff is to be awarded all reasonable attorney's fees and court costs. This procedure is to apply only to future construction or alterations of facilities. : 62 “( 61 /9 "W W) L¥ SL BY CALIFORNIA LEGISLATURE—1972 REGULAR SESSION ASSEMBLYBILL No. 1547 Introduced by Assemblyman Sieroty March 15, 1972 ——— REFERRED TO COMMITTEE ON JUDICIARY An act to add Section 55 to the Civil Code, relating to disabled persons. LEGISLATIVE COUNSEL'S DIGEST AB 1547, as introduced, Sieroty (Jud.). Disabled persons. Provides procedurefor obtaining injunction against further construction or operation of a public or private facility not conforming to building requirements with respect to blind or disabled persons. Vote—Majority; Appropriation—No; Fiscal Committee—No. The people ofthe State of California do enactas follows: SECTION |. Section 55 is added to the Civil Code, to read: 55. (a) Notwithstanding anyother provision of law, a blind or other physically disabled person maygive notice to the ownerofanyprivate facility, or, in the case of a publicfacility, to the person designated in Section 4453 of the GovernmentCodeor in Section 19958 of the Health and Safety Code,that such facility contains unauthorized deviations from the requirementsof Sections 54 and 54.1, Section 445] of the GovernmentCode, or Section 19955 or 19955.5 of the Health and Safety Code. . 12 = (b) If such deviation is not rectified within 90 days of W O N O A A R O N = — _ — — _ = © 01547 2134720 4 AB 1547 —2— — C O M N A A R A N such notice, a blind or other physically disabled person may bring an action for an injunction against further construction or operation of the nonconforming facility until the deviation is corrected. Such blind or physically disabled person shall not be required to post a bond pursuant to Section 529 of the Code of Civil Procedure, and, if successful in obtaining an injunction, shall be awarded reasonable attorney’s fees and court costs, irregardless of whetherthefacility in question is public or private in character. OIM? 2134725 62 Attachment No.4 Dodsonv. Dollar Tree Stores, Inc., 2006 U.S. Dist. Lexis 90416 (E.D. Cal. 2006) -32- Page | LEXSEE 2006 U.S. DIST. LEXIS 90416 ROBERT DODSON,Plaintiff, v. DOLLAR TREE STORES,INC. dba, DOLLAR TREE# 1203,et al., Defen- dant. 2:04-cv-1068-MCE-CMK UNITED STATES DISTRICT COURT FOR THE EAST- ERN DISTRICT OF CALIFORNIA 2006 U.S. Dist. LEXIS 90416 December13, 2006, Decided December14, 2006, Filed PRIOR HISTORY: Dodson v. Dollar Tree Stores, Inc., 2006 U.S. Dist. LEXIS 54529 (ED. Cal., July 25, 2006) COUNSEL: [*1] For Robert Dodson, Plaintiff: Adam Sorrells, Disabled Ad- vocacy Group, APLC, Chico, CA.; Lynn Hubbard, Mark W. Emmett, Law Offic- es of Lynn HubbardIII, Chico, CA. For Dollar Tree Stores, Inc., Doing business as Dollar Tree # 1203, Defen- dant: Shalend Shane Singh, Kring & Chung, Sacramento, CA. Jason B Matecki, Defendant, Pro se, Modesto, CA. JUDGES: MORRISON C. ENGLAND, JR, UNITED STATES DISTRICT JUDGE. OPINION BY: MORRISON C. ENG- LAND,JR OPINION MEMORANDUMAND ORDER Through the present motion, Plaintiff Robert Dodson ("Dodson") seeks attor- ney's fees and litigation expenses pur- suant to both state law and 42 U.S.C. § 12205 of the Americans with Disabili- ties Act ("ADA"),as a result of a favor- able judgment by this Court on July 25, 2006. Plaintiff requests $ 52,250.00 for Page 2 2006 U.S. Dist. LEXIS 90416, * fees incurred by various attorneys, $ 3,480.00 for paralegals, and $ 9,663.41 in costs andlitigation expenses, for a to- tal of $ 65,393.41. Plaintiff further seeks a total of $ 1,095.15 pursuant to a Bill of Costs. Defendant Dollar Tree ("Dollar Tree") opposes Plaintiffs requests, claiming that the fees, expenses, and costs sought are unwarranted, unrea- sonable, and, or, excessive.' 1 Becauseoral argumentwill not be of material assistance, the Court orders this matter submitted on the _ briefs. E.D. Cal. Local Rule 78-230(h). [*2] BACKGROUND This dispute arises from Plaintiff's claim that he encountered various archi- tectural barriers when attempting to visit Double Tree's 98 Cents 'n Deals Store at Sacramento, California. Plaintiff is a quadriplegic unable to walk, stand or use his arms. As a result, Plaintiff must use an electronic wheelchair when traveling about in public. On June 28, 2006, a one-day court trial was held, which resulted in judg- ment in favor of Plaintiff. On July 25, 2006, the Court granted Plaintiff's in- junctive relief on four of seven issues: 1) placement of the entry door's ISA sign; 2) provision of two _handi- capped-accessible checkstands; 3) Clo- sure of the second primary entrance; and 4) fire exit requirements. On September 11, 2006, Plaintiff filed the instant mo- tion seeking litigation expenses in the amount of $ 9,663.41, as well as attor- neys' fees totaling $ 52,250,00 and para- legal fees in the amount of $ 3,480.00, itemizedas follows: Lynn Hubbard 55.65 hours at $ 300/hr AdamSorrells 63.15 hours at $ 250/hr 8.40 hours at $ 175/hr Scott Hubbard 24.10 hours at $ 175/hr Mark Emmett 70.40 hours at $ 200/hr Paralegals 46.60 hours at $ 75/hr Additionally, [*3] as stated above, Plaintiff further requested taxable costs in the amount of $ 1,095.15 pursuant to a Bill of Costs. STANDARD Plaintiffs Complaint alleged viola- tions of federal and California law. Plaintiffs federal claim arose under the ADA, while her state law claims arose under the California's Unruh Act, Cal. Civ. Code § 51, California Health & Safety Code§ 19953, and the California Disabled Persons Act, Cal. Civ. Code § 54-55. Page 3 2006 U.S. Dist. LEXIS 90416, * Section 12205 of the ADA authorizes a court, in its discretion, to "allow the prevailing party, other than the United States, a reasonable attorney's fee, in- cluding litigation expenses, and costs w' 42 USC. § 12205. A prevailing plaintiff under a statute so worded "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.” Barrios v. Cal. Interscholastic Fed'n, 277 F.3d 1128, 1134 (9th Cir. 2002), quoting Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). A plaintiff who enters a legally enforce- able settlement agreement is considered a prevailing party. Id. [*4] Section 55 of the California Disabled Persons Act provides that "the prevailing party in the action shall be entitled to recover reasonable attorney's fees." Cal. Civ. Code § 55. Also, under California Health & Safety Code § 19953, "[a]ny person who is aggrieved or potentially aggrieved bya violation of this part ... may bring an action to enjoin the violation. The prevailing party in the action shall be entitled to recover rea- sonable attorney's fees." ANALYSIS Dollar Tree first asks the Court to follow the Central District's recent deci- sion in Doran v. Del Taco, Inc., 373 F. Supp. 2d 1028 (C.D. Cal. 2005), which denied attorneys’ fees in an ADA case where the plaintiff had neither provided pre-litigation notice of his intent to sue nor afforded the defendant,prior to suit, a reasonable opportunity to cure anyal- leged violations. As even the Doran court recognized, however, there is no Ninth Circuit precedent requiring an ADAplaintiff to provide notice before filing suit. Jd. at 1031. Indeed, in Boto- san v. Paul McNally Realty, 216 F.3d 827, 832 (9th Cir. 2000), [*5] the Ninth Circuit held squarely to the con- trary. Moreover, as Doran further con- cedes, repeated efforts by Congress failed. Jd. Consequently, even assuming Plaintiff failed to provide Dollar Tree with adequate notice of its ADA short- comings before instituting this lawsuit, the Court declines to rely on the reason- ing of Doran in altogether denying Plaintiff's instant request for fees or ex- penses. This Court must therefore determine the extent to which attorneys' fees and litigation expenses are recoverable. In making that assessment, the Court must identify the applicable "lodestar" for calculating attorneys’ fees. Under the lodestar method, a court multiplies the numberof hours the prevailing attorney reasonably expendedonthelitigation by a reasonable hourly rate. See Hensley, 461 U.S. at 433; see also Ketchum v. Moses, 24 Cal. 4th 1122, 1132, 104 Cal. Rptr. 2d 377, 17 P.3d 735 (2001) (ex- pressly approving the use of prevailing hourly rates as a basis for the lodestar). Courts may then adjust the lodestar to reflect other aspects of the case. See Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975); see also Serrano v. Priest, 20 Cal. 3d 25, 141 Page 4 2006 U.S. Dist. LEXTS 90416, * Cal. Rptr. 315, 569 P.2d 1303 (1977). [*6] That adjustment can go either up- wards or downwards depending on the circumstances present. Van Gerwen v. Guar. Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). Turning first to the numberof hours reasonably billed, the Court finds that the amount claimed by Plaintiff for cer- tain tasks are unreasonable and must be adjusted accordingly. Plaintiff's counsel has filed literally hundreds of ADA lawsuits similar to this one. Those cases share similar pleadings, discovery re- quests and motions. Certain documents generated in this matter, such as the Complaint and discovery requests, are almost identical to those generated in other cases, and the reasonable fee claimed by Plaintiff's counsel in per- forming those tasks must therefore be reduced. After analyzing the billing entries generated by Plaintiffs counsel, the Court will strike from the award the 1.7 hours Lynn Hubbardbilled for drafting the Complaint, the 2.0 hours Scott Hub- bard billed for drafting Plaintiffs Re- quest for Admissions, and the 2.0 hours Scott Hubbard billed for drafting Plain- tiffs Request for Production of Docu- ments. Even more significant than the fees generated by Plaintiff's Complaint and [*7] discovery requests were fees in- curred in drafting Plaintiffs Motion for Summary Judgment. After analyzing the Plaintiff's billing entries, the Court iden- tified 24.1 hours credited to the time spent on Plaintiff's Motion for Summary Judgment. The 24.1 hours credited is highly dubious since the motion hereis nearly identical to the unsuccessful Mo- tion for Summary Judgment filed by Plaintiff's attorneys in Jones vy. Dollar Tree, Case No. 2:04-cv-2002-MCE-KJM, 2005 US. Dist. LEXIS 31517 (December 2005). As such, the Court supports Defendant's recommendation that fifty percent of the hours spent on the motion should only be compensated. Accordingly, Lynn Hubbard's compensation for time spent on the Plaintiffs Motion for Summary Judgment will be reduced to 12.05 hours. Another general classification of fees sought by Plaintiff will also not be per- mitted. Plaintiff seeks compensation for 8.4 hours of travel time by Adam Sor- rells to Sacramento from Chico. This is despite the fact that Plaintiff's counsel, Adam Sorrells, has a history of working with Lynn Hubbard's Chico-based law firm in filing similar ADA cases in the Sacramento Division of the Eastern Dis- trict. No evidence has been presented sug- gesting [*8] that Plaintiffs counsel tries more cases in Chico than in Sacra- mento, or that Plaintiff's counsel main- tains offices outside the Sacramento area for any reason other than his own con- venience. Assuming Sorrells charges his regular paying clients for travel time, this does not justify shifting these ex- Page 5 2006 U.S. Dist. LEXIS 90416, * penses to Dollar Tree since a paying chent can negotiate travel expenses in advance. Martinez v. Longs Drugs Stores, TInc., No. 2:03-cv-1843-DFL-CMK, 2005 US. Dist. LEXIS 30226, 2005 WL 3287233 at *5 (E.D. Cal. Nov. 28, 2005). More spe- cifically, Dollar Tree did not have a paying client's choice of seeking other representation if travel expenses were deemed too costly. Consequently, Dollar Tree should not be required to shoulder Sorrells' travel expenses to Sacramento, and as such, will not be compensated for the 8.4 hours of travel time. Finally, Defendant asserts that $ 921.50 should be disallowed from Plain- tiffs attorney's fees attributed to clerical work. Upon reviewing counsel's billing entries, the work deemed by Defendant to constitute overhead was performed by paralegals; thus, Defendant argues that certain paralegal costs should be disal- lowed because they were "cleri- cal/secretarial" in nature. [*9] Al- though secretarial costs are deemed by courts within this Circuit to constitute overhead, the Court will permit recovery of time expended by paralegals. (See Shaffer v. Superior Court, 33 Cal. App. 4th 993, 39 Cal. Rptr. 2d 506 (1995)). Defendant failed to demonstrate, how- ever, that the tasks represented by the billing entries in question were not properly performed by paralegals. Ac- cordingly, the Court will require Defen- dant to reimburse Plaintiff for paralegal services. The above analysis all pertains to the reasonableness of the number of hours for which compensation is sought. The second step of the lodestar analysis re- quires that the rate sought to be charged per houralso be reasonable. Courts gen- erally calculate reasonable hourly rates according to the prevailing market rates in the relevant legal community. Blum v. Stenson, 465 U.S. 886, 895, 104 S. Ct. 1541], 79 L. Ed. 2d 89] (1984). The gen- eral rule is that courts use the rates of attorneys practicing in the forum district, in this case, the Eastern District of Cali- fornia, Sacramento Division. Gates v. Deukmejian, 987 F.2d 1392, 1405 (1993); Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir. 1991), cert. denied [*10] 502 U.S. 899, 112 S. Ct. 275, 116 L. Ed. 2d 227 (1991). The burden is on the fee applicant to produce satisfactory evidence that the requested rates are "in line with those prevailing in the community for similar services by lawyers of reasonably com- parable skill, experience and reputation." Blum, 465 U.S. at 895 n.11. A court will normally deem a rate determined this way to be reasonable. /d. Previously in White v. Save Mart Su- permarkets, the Court awarded the Plaintiff's attorney, Lynn Hubbard, $ 250.00 per hour, limited associate attor- ney compensation to $ 150.00 per hour and confined paralegal services to $ 75.00 per hour in cases of this nature. No. 2:03-cv-2402-MCE-KJM, 2005 U.S. Dist. LEXIS 24386, 2005 WL 2675040, at *3 (E.D. Cal. Oct. 20, 2005). Page 6 2006 U.S. Dist. LEXIS 90416, * Consequently, after deducting the un- reasonable hours expendedin this matter and adjusting the hourly rate, Lynn Hubbard's compensation should be re- duced from $ 16,695 to $ 10,475, Adam Sorrells' compensation should be re- duced from $ 17,257.50 to $ 15,787.50, Scott Hubbard's compensation should be reduced from $ 4,217.50 to $ 3,015.00, and Mark Emmett's compensation should be reduced from $ 14,080.00 to $ 10,560.00. As outlined above, after [*11] ad- justing for reasonable attorney rates and for reasonable hours expended, a lodes- tar figure for professional fees in this matter is calculated to be $ 43,317.50. However, Dollar Tree further claims that Plaintiff's attorney fees should be re- duced to reflect the fact that Plaintiff ul- timately prevailed on only four of seven issues. In assessing whether the lodestar figure should be adjusted, the Court must consider the extent to which Plain- tiff prevailed on the demandspresented, especially if she did not succeed on such demands in their entirety. Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 901 (9th Cir. 1995). In cases achieving partial success, courts must follow a two-part analysis in deciding whether to reduce an attorneys' fee award: First, the court asks whether the claims upon which the plaintiff failed to prevail were related to the plaintiffs successful claims. If unrelated, the final fee award may not include time expended on the unsuccessful claims. If the unsuccessful and successful claims are re- lated, then the court must ap- ply the second part of the analysis, in which the court evaluates the 'significance of the overall relief obtained [*12] by the plaintiff in rela- tion to the hours reasonably expended on the litigation.' If the plaintiff obtained ‘excellent results,’ full com- pensation may beappropriate, but if only partial or limited success' was obtained, full compensation may be exces- sive. Such decisions are within the district court's dis- cretion. Td. at 901-02. In determining whetherthe unsuccessful and successful claimsarerelated, ...the test is whether relief sought on the unsuccessful claim is intended to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury on which the relief granted is premised. Thus, the focus is to be on whether the unsuccessful and Page 7 2006 U.S. Dist. LEXIS 90416,* successful claims arose out of the same course of conduct. Id. at 903, quoting Thorne y. City ofEl Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986). If a court finds the unsuccessful claims to be unrelated to the successful claims, it may either attempt to identify specific hours that should be eliminated or simply reduce the award to account for the limited success.Id. at 904. In the present matter, the Court finds it [*13] appropriate to reduce the lo- destar figure based on Plaintiff's limited success. Plaintiff succeeded on four of seven claims, in which the remaining three claims were notrelated to the suc- cessful four claims, since each was a distinct alleged violation requiring sepa- rate evidence. See White v. GMRI. 2:04-cv-0465-DFL-CMK, 2005 US. Dist. LEXIS 44231, *16 (E.D. Cal. Aug. 19, 2005) (finding that "alleged viola- tions are premised on different facts and require the application of different sec- tions of the ADA Accessibility Guide- lines to determine liability"). The facts and evidence needed for claims pertain- ing to the pressure required to open the front door, for example, are completely separate from claims relating to handi- capped-accessible checkstands, or to claims relating to the entry door's ISA sign. Because it is impossible to appor- tion attorneys’ fees between the unsuc- cessful claims from the successful claims with any degree of certainty, the Court reduces Plaintiff's award of attor- neys' fees by 3/7, or forty three percent, to account for his limited success. Forty three percent of the $ 43,317.50 lodestar is $ 18,626.52. Total fees awarded for Plaintiff's claimed attorney fees will thus be $ [*14] 24,690.98. Lastly, Plaintiff may recover, as part of the award of his fees in this matter, litigation expenses pursuant to 42 U.S.C § 2205. The term "litigation expenses" in Section 12205 has been interpreted to include "the same out-of-pocket ex- penses that are recoverable under 42 U.S.C. § 1988." Robbins v. Scholastic BookFairs, 928 F. Supp. 1027, 1037 (D. Or. 1996). Under Section 1988, Plaintiff recover those out-of-pocket expenses that "would normally be charged to a fee paying client." Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994). Plaintiff seeks a total of $ 9,663.41 in litigation expenses. Of that amount, De- fendant contests $ 7,442.50 sought for expert fees and costs submitted by Plaintiff's expert, Joe Card. Specifically, Defendant claims that Mr. Card's charges relating to travel and inspection should be reduced by 50% because a similar inspection was conducted in Jones v. Ralph's. 2:04-cv-2002-MCE-KJM, 2006 U.S. Dist. LEXIS 94565 (E.D. Cal. Nov. 17, 2006). However, Plaintiff fails to ad- dress the fact that the Dollar Trees in Jones and in this matter are in different locations. Thus, the Court does not find [*15] an issue of double billing in re- gards to Mr. Card's work. Consequently, Page 8 2006 U.S. Dist. LEXIS 90416, * the Plaintiff will be awarded the full amount sought for Mr. Card's services. Defendant further asserts that certain litigation expenses amounting to $ 932.15 should be disallowed because they were also included in the Bill of Costs. > The Court found that Plaintiff has double billed for the aforementioned items. However, the Court will only dis- allow $ 569.15 from the $ 932.15 re- quested because the expensesrelating to the rental of audio-visual equipment is an appropriatelitigation expense.: 2 Specifically, the costs at issue include: fee for subpoena of build- ing records, fee for subpoena of records, costs for creating trial binders and exhibits, and the rental cost for audio visual equipment for the PowerPoint presentation at tri- al. 3 Assuch, $ 363 will be disal- lowed from the Bill of Costs for expenses relating to the au- dio-visual equipment. ThustheBill of Costs will be reduced to $ 732.15 from the $ 1,095.15 re- quested. [*16] CONCLUSION Based on the foregoing, Plaintiff is entitled to reasonable attorneys’ fees in the amount of $ 24,690.98 and reasona- ble litigation expenses in the amount of $ 9,094.26 for a total of $ 33,785.24. Additionally, the Plaintiff is entitled to $ 732.15 in taxable costs pursuant to her Bill of Costs. IT IS SOORDERED. DATED: December13, 2006 MORRISON C. ENGLAND,JR UNITED STATES DISTRICT JUDGE Attachment No. 5 White v. Save Mart Supermarkets, 2005 U.S. Dist. Lexis 24386 (E.D. Cal. 2005) -33- ao, © > * ® LexisNexis’ Page 1 LEXSEE 2005 U.S. DIST. LEXIS 24386 SHERIE WHITE,Plaintiff, v. SAVE MART SUPER- MARKETS dba FOOD MAXX; WRI GOLDEN STATE, LLC; and DOES| through 10, Defendants. NO.CIV. S 03-2402 MCE KJM UNITED STATES DISTRICT COURT FOR THE EAST- ERN DISTRICT OF CALIFORNIA 2005 U.S. Dist. LEXIS 24386 October 20, 2005, Decided PRIOR HISTORY:White v. Save Mart Supermarkets, 2004 U.S. Dist. LEXIS 29265 (E.D. Cal., Apr. 26, 2004) COUNSEL: [*1] For Sherie White, Plaintiff: Lynn Hubbard, Law Offices of Lynn Hubbard III, Chico, CA. For Save Mart Supermarkets, Doing business as Food Maxx, Defendant: Martin H. Orlick, Jeffer, Mangels, But- ler & Marmaro LLP, San Francisco, CA. For WRI Golden State, Defendant: Lel- and Peter Ryan MBV Law, San Fran- cisco,.CA. JUDGES: MORRISON C. ENGLAND, JR., UNITED STATES DISTRICT JUDGE. OPINION BY: ENGLAND, JR. MORRISON C. OPINION MEMORANDUM AND ORDER Through the present motion, Plaintiff Sherie White ("Plaintiff") seeks attor- ney's fees and litigation expenses, pur- suant to both state law and 42 U.S.C. § 12205 of the Americans with Disabili- ties Act ("ADA"), following her settle- ment with Defendant SaveMart Super- markets dba Food Maxx ("SaveMart") for violations of Title III of the ADA Page 2 2005 U.S. Dist. LEXIS 24386, * pertaining to SaveMart's facility located at 1330 Churn Creek Road in Redding, California. Plaintiff requests $ 11,211.25 for fees incurred by various attorneys and paralegals, and $ 5,927.64 in costs and litigation expenses, for a total of $ 17,138.89. Save Mart opposes Plaintiff's motion, claiming that the fees and ex- penses sought are unwarranted, unrea- sonable and/or excessive. BACKGROUND [*2] This dispute arises from Plaintiffs claim that she encountered various architectural barriers when at- tempting to visit SaveMart's Redding fa- cility. Plaintiff is a quadriplegic unable to walk, stand or use her arms. Plaintiff must use an electronic wheelchair when traveling about in public. Plaintiff filed her complaint against Save Mart on November 18, 2003. The- reafter, her counsel conducted site as- sessments of the Save Mart facility and had a report prepared which listed some thirty-nine (39) separate ADA violations within that facility. In August of 2005, Plaintiff and SaveMart entered into a settlement agreement pursuant to which SaveMart agreed to pay Plaintiff dam- ages in the amount of $ 4,000 andtore- medycertain of the claimed ADAviola- tions. Prior to settling the case, Plaintiff dropped her demandspertaining to many of the alleged violations identified in the site report prepared by her expert. Spe- cifically, Plaintiff did not pursue some eighteen (18) claims pertaining to defi- ciencies involving the men's restroom. Since the parties also agreed that the Court would retain jurisdiction to hear Plaintiffs request for fees and expenses, the present motion was filed on Sep- tember14, 2005. [*3] STANDARD Plaintiffs complaint alleged viola- tions of federal and California Jaw. Plaintiffs federal claim arose under the ADA,while her state law claims arose under the California's Unruh Act, Cal. Civ. Code § 51, California Health & Safety Code § 19953, and the California Disabled Persons Act, Cal. Civ. Code § 54-55, Section 12205 of the ADA authorizes a court, in its discretion, to "allow the prevailing party, other than the United States, a reasonable attorney's fee, in- cluding litigation expenses, and costs. . . “" 42 US.C. § 12205. A_ prevailing plaintiff under a statute so worded "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Barrios v. Cal. Interscholastic Fed'n, 277 F.3d 1128, 1134 (9th Cir. 2002), quoting Hensley v. Eckerhart, 461 U.S. 424, 429, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). A plaintiff who enters a legally enforce- able settlement agreement is considered a prevailing party.Id. Section 55 of the California Disabled Persons Act providesthat "the prevailing party in the action shall be entitled [*4] to recover reasonable attorney's fees." Cal. Civ. Code § 55. Also, under Cali- Page 3 2005 U.S. Dist. LEXIS 24386,* fornia Health & Safety Code § 19953, "{alny person who is aggrieved or po- tentially aggrieved by a violation ofthis part . . . may bring an action to enjoin the violation. The prevailing party in the action shall be entitled to recover rea- sonable attorney's fees." ANALYSIS SaveMart does not dispute that this Court has discretion to award Plaintiff, as the prevailing party in this litigation, both attorneys’ fees, as well as litigation expensesandcosts, in pursuing hercase. Rite Aid nonetheless asserts that the Court should exercise its discretion in determining that, under the circums- tances present, those fees and expenses should either be disallowed in their enti- rety or significantly reduced. SaveMart first asks the Court to fol- low the Central District's recent decision in Doran v. Del Taco, Inc., 373 F. Supp. 2d 1028 (C.D. Cal. 2005), which denied attorneys' fees in an ADA case where the plaintiff had neither provided pre-litigation notice of his intent to sue nor afforded the defendant, prior to suit, a reasonable opportunity [*5] to cure any alleged violations. As even the Do- ran court recognized, however, there is no Ninth Circuit precedent requiring an ADAplaintiff to provide notice before filmg suit. Jd. at 1031. Indeed, in Bo- tosan v. Paul McNally Realty, 216 F.3d 827, 832 (9th Cir. 2000), the Ninth Cir- cuit held squarely to the contrary. Moreover, as Doran further concedes, repeated efforts by Congress to amend the ADA to provide pre-suit notice have uniformly failed. Id. Consequently, even assuming Plaintiff failed to provide Sa- veMart with adequate notice of its ADA shortcomings before instituting this lawsuit, the Court declines to rely on the reasoning of Doran in altogether deny- ing Plaintiffs instant request for fees/expenses. This Court must therefore determine the extent to which attorneys’ fees and litigation expenses are recoverable. In making that assessment, the Court must identify the applicable "lodestar" for calculating attorneys' fees. Under the lodestar method, a court multiplies the numberof hours the prevailing attorney reasonably expendedonthe litigation by a reasonable hourly rate. See Hensley, 461 U.S. at 433; [*6] see also Ket- chum v. Moses, 24 Cal. 4th 1122, 1132, 104 Cal. Rptr. 2d 377, 17 P.3d 735 (2001) (expressly approving the use of prevailing hourly rates as a basis for the lodestar). Courts may then adjust the lo- destar to reflect other aspects ofthe case. See Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975); see also Serrano v. Priest, 20 Cal. 3d 25, 141 Cal. Rptr. 315, 569 P.2d 1303 (1977). That adjustment can go either upwards or downwards depending on the cir- cumstances present. Van Gerwen vy. Guar. Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). Turning first to the numberof hours reasonably billed, the Court finds that the amounts claimed by Plaintiff for certain tasks are unreasonable and must Page 4 2005 US. Dist. LEXIS 24386, * be adjusted accordingly. As SaveMart points out, Plaintiff's counsel has filed literally hundreds of ADA lawsuits sim- ilar to this one. Those casesshare similar pleadings, discovery requests and mo- tions. Certain of the documents generat- ed in this matter are almost identical to those generated in other cases, and the reasonable fee claimed by Plaintiff's counsel in performing those tasks must therefore be reduced. After analyzing the billing entries generated [*7] by Plain- tiffs counsel, along with evidence sub- mitted by SaveMart, the Court finds that a total of 4.55 hours billed by attorney Lynn Hubbard at $ 250/hour are not reasonable, and that a further 3.0 hours of paralegal time at $ 75/houris also not reasonable. Consequently $ 1,137.50 will be deducted from the total attorneys’ fees sought on behalf of Plaintiff. While SaveMart also claims that hours expended by paralegals in this matter are not legally compensable, and hence are unreasonable, thatis incorrect. Paralegal time has been consistently deemed compensable by federal courts if the local practice is to separately bill clients for paralegal services. See, e.g., Missouri v. Jenkins, 491 US. 274, 285-87, 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989); United Steelworkers of America vy. Phelps Dodge Corp. 896 F.2d 403, 407-08 (9th Cir. 1990). The defense has not disputed that paralegal services are so billed, and accordingly the hours spent are deemedreasonable.' 1 Save Mart does argue that cer- tain paralegal costs should be dis- allowed because they were "cleri- cal/secretarial" in nature. The Court declines, however, to parse the paralegal tasks performed that closely and will permit reimburse- ment of the amounts claimed by Plaintiff for paralegal services. [*8] The above analysis all per- tains to the reasonableness of the num- ber of hours for which compensation is sought. The second step of the lodestar analysis requires that the rate sought to . be charged per houralso be reasonable. Courts generally calculate reasonable hourly rates according to the prevailing market rates in the relevant legal com- munity. Blum v. Stenson, 465 U.S. 886, 895, 79 L. Ed. 2d 891, 104 8. Ct. 1541 (1984). The general rule is that courts use the rates of attorneys practicing in the forum district, in this case, the East- em District of California. Gates v. Deukmejian, 987 F.2d 1392,1405 (1993); Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir. 1991), cert. denied 502 U.S. 899, 116 L. Ed. 2d 227, 112 8. Ct. 275 (1991). The burden is on the fee applicant to produce satisfactory evidence that the requested rates are "in line with those prevailing in the community for similar services by lawyers of reasonably com- parable skill, experience and reputation." Blum, 465 U.S. at 895 n.11. A court will normally deem a rate determined this way to be reasonable. Id. Page 5 2005 U.S. Dist. LEXIS 24386, * While the Court agrees with Plaintiff that the both the $ 250/hourrate sought on behalf [*9] of attorney Lynn Hub- bard is reasonable, and further concurs that the rate of $ 75/hour claimed for paralegal services is also reasonable, it does not agree that $ 175/hour, as sought for associate attorney Scott Hubbard's time, is reasonable. Courts in this district have generally limited associate attorney compensation to $ 150 per hourin cases of this nature. See, e.g., Loskot v. USA Gas Corp, 2004 US. Dist. LEXIS 29174, CIV. S-01-2125 WBS KJM (E.D. Cal. April 26, 2004); Pickern v. Marino's Pizza & Italian Rest. CIV. S-01-1096 WBS GGH (E.D. Cal. April 9, 2003); Loskot v. Pine Street Sch. Off. Bldg., CIV. S-00-2405 DFL JFM (ED. Cal. Nov. 7, 2002). Consequently, the 7.85 hours sought for Scott Hubbard's servic- es should be reduced from $ 1,373.75 to $ 1,177.50, for a total net reduction of $ 196.25 from the attorneys' fees claimed herein. As outlined above, after deducting time not deemed by the Court to have been reasonably expended in this matter ($ 1,137.50), and after adjusting the hours claimed to a reasonable hourly rate (for an additional deduction of $ 196.25 from the originally claimedtotal of $ 11,211.25 in attomey andparalegal fees), a lodestar figure for professional fees [*10] in this matter is calculated to be $ 9,877.50. SaveMart claimsthis fig- ure should also be reduced to reflect the fact that Plaintiff ultimately abandoned many of the ADA compliance demands she initially made in connection with this case. Specifically, of some thir- ty-nine (39) different claimed violations identified in Plaintiff's expert report as constituting disability access violations, Plaintiff dropped eighteen (18) before deciding to settle this case. Those eigh- teen (18) alleged violations all pertained to claimed inadequacies involving the men's restroom, claims that as a woman Plaintiff lacked standing to pursue under the ADA. Lujan v. Defenders of Wild- life, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). In assessing whetherthe lodestarfig- ure should be adjusted, the Court must consider the extent to which Plaintiff prevailed on the demandspresented, es- pecially if she did not succeed on such demands in their entirety. Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 901 (9th Cir. 1995). In cases achieving partial success, courts must follow a two-part analysis in deciding whether to reduce an attorneys' fee award: First, the court asks whether [*11] the claims upon whichthe plaintiff failed to prevail were related to the plaintiffs successful claims. If unrelated, the final fee award may not include time expended on the unsuccessful claims. If the unsuccessful and successful claims are re- lated, then the court must ap- ply the second part of the Page 6 2005 U.S. Dist. LEXIS 24386, * analysis, in which the court evaluates the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.’ If the plaintiff obtained excellent results,' full compensation may be ap- propriate, but if only partial or limited success’ was obtained, full compensation may be excessive. Such decisions are within the district court's dis- cretion. Id. at 901-02. In determining whether the unsuccessful and successful claims are related, ... the test is whether re- lief sought on the unsuccess- ~ ful claim is intended to re- medy a course of conduct en- tirely distinct and separate from the course of conduct that gave rise to the injury on which the relief granted is premised. Thus, the focus is to be on whether the unsuc- cessful and successful claims arose out of the same course of conduct. Id. at 903, [*12] quoting Thorne v. City ofEl Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986). If a court finds the un- successful claims to be unrelated to the successful claims, it may either attempt to identify specific hours that should be eliminated or simply reduce the award to account for the limited success. Jd. at 904. In the present matter, the Court finds it appropriate to reduce the lodestar fig- ure based on Plaintiff's limited success, as demonstrated by the fact that she ul- timately prevailed by way of settlement on just more than half of ADA viola- tions she originally identified. Each of violations claimed by Plaintiff represent different and unrelated claims that are premised on different sections of the ADA Accessibility Guidelines to deter- mine liability. Claims pertaining to the accessibility of plastic bags in the pro- duce department, for example, are com- pletely separate from claimsrelating to checkstand height, or to claims involv- ing restroom access. Consequently, Plaintiff's claims relating to the men's bathroom, with respect to which she failed to prevail, are both unrelated and distinct. Because it is impossible to ap- portion attorneys’ fees between these unsuccessful [*13] claims from the claims upon which Plaintiff did prevail with any degree of certainty, the Court reduces Plaintiffs award of attorneys' fees by twenty percent to account for her limited success. Twenty percent of the $ 9,877.50 lodestar is $ 1,975.50. Total fees awarded for Plaintiff's claimed at- torney/paralegal fees will thus be $ 7,902.00. Lastly, Plaintiff may recover, as part of the award of her fees in this matter, litigation expenses pursuant to 42 U.S.C. Page 7 2005 U.S. Dist. LEXIS 24386, * § 2205. The term "litigation expenses"in Section 12205 has been interpreted to include "the same out-of-pocket ex- penses that are recoverable under 42 U.S.C. § 1988." Robins v. Scholastic Book Fairs, 928 F. Supp. 1027, 1037 (D. Or. 1996). Under Section 1988, Plaintiff recover those out-of-pocket expenses that "would normally be chargedto a fee paying client." Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994). As stated above, Plaintiff seeks a to- tal of $ 5,927.64 in litigation expenses. Of that amount, SaveMart has contested only the $ 4,401.25 sought for expert fees and costs submitted by Plaintiff's expert, Joe Card. SaveMart claims that [*14] Mr. Card's invoices should be rejected in their entirety because they do not provide enough detail for the Court to discern whether the requested amount is reasonable. Plaintiff has submitted, however, two invoices from Mr. Card which furnish seven different time en- tries showing the tasks performed and the hourly rate. Plaintiff has also sub- mitted Mr. Card's opinion and report which detail the accessibility violations he identified. > Hence Mr. Card's invoic- es are sufficiently detailed and are prop- erly subject to reimbursement. 2 While SaveMart also claims that a total of $ 1,523.75 for draftsman services contained with- in Mr. Card's invoice is not fac- tually supported, the Card report contains architectural drawings pertaining to many of the claimed violations that appear to be the productofthose services. CONCLUSION Based on the foregoing, Plaintiff is entitled to reasonable attorneys’ fees in the amount of $ 7,902.00 and reasonable litigation expenses in the amount of $ 5,927.64, for a total of $ [*15] 13,829.64. Plaintiff will accordingly be awarded that amount.: 3 Because oral argument would not be of material assistance, this matter was deemedsuitable for de- cision without oral argument. E.D. Local Rule 78-230(h). IT IS SO ORDERED. DATED:October 20, 2005 MORRISON C. ENGLAND,JR UNITED STATES DISTRICT JUDGE Attachment No. 6 Wilson v. Norbreck LLC, 2007 WL 1063050 (E.D. Cal. 2007) 34. Slip Copy Ship Copy, 2007 WL 1063050 (E.D.Cal.) (Cite as: Slip Copy) H Wilson v. Norbreck LLC E.D.Cal.,2007. Only the Westlaw citation is currently available. United States District Court,E.D. California. Ronald WILSON,Plaintiff, Vv. NORBRECK LLC DBAJohnny Carino's; Fairbreck, LLC; AH Foods Corporation, and Does 1 to 10 Defendants. No. CIV S-04-690DFLJFM. April 9, 2007. Memorandum ofOpinion and Order LEVI, J. *1 Plaintiff Ronald Wilson, who is disabled, brought suit against defendant Norbreck LLC, makingvarious ADAandstate related claims. Wilson visited one of Norbreck's Johnny Carino's restaurants and allegedly encountered numerous architectural barriers. The court dismissed Wilson's claims based on five of these allegations at summary judgment, and, after a benchtrial, the court ruled in favor of Norbreck on Wilson's remaining claims, Norbreck now moves for attomey's fees and costs under the ADA and the California Disabled Persons Act (““CDPA”). For the reasons below, the court denies Norbreck’s motion. FN]. In its reply, Norbreck argues that, under Local Rule 78-230(c), the court should disregard Wilson's opposition because Wilson served his opposition one day late. While Norbreck is correct that Wilson did not timely serve his opposition, the court finds the requested sanction too harsh in this case. 1. Wilson visited a Johnny Carino's restaurant (“the restaurant”) and allegedly encountered various architectural barriers. Norbreck owns the restaurant. On April 7, 2004, Wilson filed suit against Norbreck, seeking compensatory and punitive damages, injunctive and declaratory relief, and attomey’s fees and costs under: (1) the ADA; (2) Cal. Health & Safety Code § § 19955 et seq.; (3) the Unruh Civil Page | Rights Act; (4) the California Disabled Persons Act; (5) the Unfair Business Practices Act; and (6) Cal. Civ.Code § 1714. Both parties subsequently moved for summary judgment. In the course ofthe litigation, Wilson “alleged”that there were more than 60 different ADA violations at the restaurant. But Wilson failed to include many of these allegations in his complaint. Instead, Wilson listed many ofhis allegationsonly in a letter he sent to Norbreck or in his expert report. Wilson further complicated matters when he moved for summary judgment on some ofthese allegations. Because of the resulting confusion as to which claims were part ofthis case, the court ordered both parties to submit a final list of alleged violations Wilson intended to pursue. The parties submitted list of 24 allegations. On December 15, 2005, the court found that Wilson adequately pleaded 11 alleged ADA violations in the complaint. The court then granted Norbreck summary Judgment on Wilson's claims based on five of these allegations. On August, 1, 2006, the court held a benchtrial for Wilson's remaining claims. At trial, Wilson sought only damages and injunctive relief under the ADA and the Unruh Civil Rights Act, abandoning his other causes of action. After a onedaytrial, the court found that Wilson failed to prove any ADA violation. I. Under the ADA, the court, in its discretion, may award “the prevailing party” attorney's fees, including litigation expenses and costs. 42 U.S.C. § 12205. When defendants are the prevailing parties, however, courts should award fees and costs only “upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation.” Summers v. Teichert & Son, Inc, 127 F.3d 1150, 1154 (9th Cir.1997) (quoting Christiansburg Garment Co. v. EEOC, 434 US. 412, 421 (1978). A claim is frivolousif it is clear from “the outset of the litigation” that “it lacked a factual and legal basis.” See Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1060-61 (9th Cir.2006). *2 Norbreck is correct that Wilson made 69 “allegations”of architectural barriers but the majority of these allegations were not claims in suit. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Slip Copy Slip Copy, 2007 WL 1063050 (E.D.Cal.) (Cite as: Slip Copy) Accordingly, the court finds that Norbreck prevailed only as to 11 ADA claims that were part ofthis lawsuit. Just as the court disregarded Wilson's assertions that were not part of the complaint upon summary judgment, so does the court disregard them now.Neither party is entitled to any advantage from assertions that were never in suit. Thus, while Norbreck contends in its motion that it defended more than 60 different violations, most of this work is not compensable because the allegations were never made part of the case. To considerassertionsin letters, reports, and briefs as if such assertions were part of an amended complaintis inconsistent with the architecture of the civil rules as well as the pre-trial scheduling order. The court declines to follow a path that can only lead to confusion and inefficiency. Out of Wilson's eleven ADA claims, the court finds that nine had a factual and Jegal basis from the outset of litigation, and, therefore, were not frivolous. Although lacking in merit, Wilson's punitive damages claim and his Cal. Bus.Code § 17200 claim were colorable. Similarly, five of Wilson's claims were based on colorable, albeit incorrect, interpretations of the Accessibility Guidelines (“ADAAG”) and the California Business Code (“CBC”): (1) unsecured floor mats, (2) dining booths spacing, (3) accessible seating in the bar and restaurant, (4) entrance door pressure, and (5) bar accessibility. As to Wilson's toilet paper dispenser claim and his encroaching wastebasket claim, the court determined that Wilson failed to provide sufficient evidence to establish ADA violations. However, neither claim was frivolous. Norbreck is correct that the remaining two claims werefrivolous: (1) lack of signage directing disabled patrons along accessible route to the restaurant entrance and (2) uninsulated hot water lines. Both claims cite ADAAG and CBCprovisionsthat clearly do not apply to the restaurant's configuration at the time of Wilson's visits. The court, however, declines to award Norbreck attorney's fees and costs for their defense. Any fees and costs award would be de minimus. Moreover, it is impossible for the court to separate the fees and costs related to Norbreck's defense against the two frivolous claims from the fees and costs related to Norbreck's defense against Wilson's other allegations. Hi. Norbreck also arguesthat it is entitled to attorney's fees and costs under Wilson's failed CDPA claims, Page 2 Cal. Civ.Code § § 54.1 and 54.3 (2007). As with Wilson's ADA claims, Norbreck prevailed on 11 CDPAclaimsbrought by Wilson in the complaint.*%? FN2.In his opposition, Wilson contends that Norbreck did not prevail as to any CDPA claim because he abandoned such claims before trial. This argument is unconvincing. Defendants prevail for the purpose of attorney's fees even if plaintiffs voluntarily dismiss their claims before trial. See Corcoran v. Columbia Broadcasting Sys., 121 F.2d 575, 576 (9th Cir.1941). The CDPAhasits own attorney's fees provision. Cal. Civ.Code § 55, provides that “[t]he prevailing party in the action shall be entitled to recover reasonable attomey's fees.” On its face, § 55 does not give courts discretion as to awarding fees, and it does not distinguish between prevailing plaintiffs and prevailing defendants. Accordingly, some courts have found that prevailing defendants are automatically entitled to fees under § 55 without further inquiry as to whether the claims werefrivolous. See, e.g., Jones v. Wild Oats Markets, Inc., 467 FSupp.2d 1004, 1011 (S.D.Cal.2006); Goodell v. Ralphs Grocery Co., 207 F.Supp.2d 1124, 1126 (E.D.Cal.2002). But in a recent case, a California court left open the issue of whether a prevailing defendant could recover attorney's fees under § 55. Gunther, 144 Cal.App. 4th at 243 n. 18 (“We leave for another day the issue of how section 55 interacts with section 54.3 [of the CDPA] and specifically whether a section 543 plaintiff is vulnerable as the nonprevailing party under section 55.”) *3 Without deciding this precise issue, the court holds that whena plaintiff brings parallel CDPA and ADA claims, the ADA fees provision controls as a matter of state law.'™? FN3. The same result would likely follow under federal Jaw under preemption principles. Under California law, prevailing defendants cannot receive attorney's fees for defending claims that inextricably overlap with other claims when a fee award is inappropriate for the defense of the latter. Carver v. Chevron U.S.A., Inc., 119 Cal.App. 4th 498, 506 (2004). In Carver, plaintiffs sued defendant for alleged antitrust violations under the Cartwright © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Shp Copy Slip Copy, 2007 WL 1063050 (E.D.Cal.) (Cite as: Slip Copy) Act and also brought various commonlaw claims./d. at 501. Defendant ultimately prevailed on all of plaintiffs causes of action and moved for attorney's fees. /d. at 502. Many of the Carver plaintiffs' common law claims inextricably overlapped with their Cartwright Act claims. But while defendant could receive fees for prevailing as to the former, the Cartwright act allows an award offees only to prevailing plaintiffs and not prevailing defendants. /d. at 503-04. “The public policy implicit in the unilateral fee-shifting provision of [the Cartwright Act] is to encourage injuredparties to broadly andeffectively enforce the Cartwright Act ‘in situations where they otherwise would not findit economical to sue.” °’ /d. at 504 (citation omitted). The court concluded that awarding defendants fees for the defense of claims that overlapped with the Cartwright Act claims would violate that public policy. /d. (noting that “‘{t]o allow Chevron to recover for fees for work on Cartwright Act issues ... would superimpose a judicially declared principle of reciprocity of the [Cartwright Act's] fee provision... and would thereby frustrate the legislative intent to ‘encourage improved enforcementof public policy”’ (citation omitted). Similarly, in this case, where the CDPA claims parallel the ADA claims, to award fees under the CDPA would compromise the public policy underlying the ADA's attorney's fees provision, which distinguishes between prevailing plaintiffs and prevailing defendants. See Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1154 (9th Cir.1997). Accordingly, the court declines to award fees to defendant under the CDPA where to do so would be tantamount to awarding fees under the ADA upon a standard inconsistent with the fees provision in the ADA.Therefore, the court also finds that Norbreckis not entitled to fees and costs under the CDPA. Vv. For the reasons above, the court denies Norbreck’s motion for attorney's fees andcosts. IT IS SO ORDERED. E.D.Cal.,2007. Wilson v. Norbreck LLC Slip Copy, 2007 WL 1063050 (E.D.Cal.) END OF DOCUMENT © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Page 3 Attachment No. 7 Louie v. Carichoff, 2006 WL 662742 (E.D. Cal. 2006) -35- Westlaw. Slip Copy Slip Copy, 2006 WL 662742 (E.D.Cal.) (Cite as: 2006 WL 662742 (E.D.Cal.)) Motions, Pleadings and Filings Only the Westlaw citation is currently available. United States District Court, E.D. California. George S. LOUIE,Plaintiff, Vv. Robert A. CARICHOFF,et al., Defendants. No. S-05-0984 DFL DADPS. March 16, 2006. Jeff Grant Kennedy, Law Offices of J. Grant Kennedy, West Lake Village, CA, for Plaintiff. Robert A. Carichoff, Law Office of Robert A. Carichoff, Sacramento, CA, for Defendant pro se and Jessica Lynn Coleman. FINDINGSAND RECOMMENDATIONS DROZD,MagistrateJ. *1 This matter is before the court on defendants’ motion to dismiss plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative summary judgment. Attorney Robert A. Carichoff appeared on his own behalf and on behalf of defendant Jessica Lynn Coleman at the hearing on the motion. J. Grant Kennedy appeared on behalf of plaintiff. Having considered all written materials submitted in connection with the motion, and after hearing oral argument, the undersigned will recommend that defendants' motion to dismiss be granted and this action be dismissed with prejudice. PLAINTIFF'S AMENDED COMPLAINT [FN1] FN1. At the time defendants filed their motion to dismiss the operative pleading in this case was plaintiff's original complaint. In response to defendants’ motion, plaintiff filed an amended complaint, which he was entitled to do. See Fed.R.Civ.P. 15(a)("[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served); Doe v. United States, 58 F.3d 494, 496-97 (9th Cir.1995). While in someinstancesthe filing Page | of an amended pleading moots a motion to dismiss, such is not the case here. As explained below, plaintiff's |amended complaint does not cure the deficiencies detailed in defendants' motion. Therefore, the undersigned has considered defendants' motion to dismiss as directed at plaintiff's amended complaint. See Schwarzer, Tashima and Wagstaffe, Federal Procedure Before Trial, | 9:262 (The Rutter Group 2004) ("An amended complaint supersedes the prior complaint as a pleading. Thus, the court will usually treat the motion to dismiss as mooted. It may, however, proceed with the motion if the amendment does not cure the defect."). The court has disregarded plaintiffs second amended complaint because it was filed without leave of court. See Fed.R.Civ.P. 15(a). Plaintiff has brought this action under the Americans With Disabilities Act ("ADA"), against defendant Jessica Lynn Coleman and her lawyer, defendant Robert A. Carichoff. Mr. Carichoff represents Ms. Coleman in connection with the defense of an action brought by plaintiff against her in Yolo County Superior Court, George Louie v. Jessica Lynn Coleman, No. CV 04-885. This federal action arises out of a dispute over whereplaintiffs deposition in that state court action shouldbe taken. According to the amended complaint, during discovery in state court Mr. Carichoff noticed the deposition of plaintiff to occur at a local deposition reporters’ office. [FN2] On the same day the deposition notice was served, plaintiff, who often requires a wheelchair to travel about in public, paid a visit to the office in question and "encountered discriminatory conditions (including, but not limited to, inaccessible handicapped parking and a lack of lower service counters.") (Compl. at 3.) Plaintiff advised the deposition reporters' office of those conditions. Several weekslater, and four days prior to the noticed deposition, plaintiff advised Mr. Carichoff of the access problem and "insisted that any deposition location ... meet federal requirements for accessibility." (Compl. at 3.) Plaintiff declined Mr. Carichoff's invitation to identify a suitable location for the deposition. Mr. Carichoff then re- noticed the deposition to be held at a large commercial office building in downtown © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Slip Copy Ship Copy, 2006 WL 662742 (E.D.Cal.) (Cite as: 2006 WL 662742 (E.D.Cal.)) Sacramento. FN2. Mr. Carichoff is the main defendant. Ms. Coleman is named because, as her counsel's client, she allegedly "acted so as to precipitate" and/or "failed to prevent" Mr. Carichoff's actions. (Compl. at 3.) A few weeks prior to the re-scheduled deposition, plaintiff visited the commercial office building in question and again "encountered discriminatory conditions (including, but not limited to, a lack of lower service counters)." (Am. Compl.at 4.) Plaintiff advised the building's management of such conditions. While it is unclear from the amended complaint, since Mr. Carichoff filed a motion in the State court proceedings to compel plaintiff's attendance at the re-noticed deposition he appears to have been made aware of plaintiffs concerns regarding conditions at that location. The amended complaint alleges that the motion to compel wasfiled prior to the date for plaintiff's deposition and that — plaintiff did not cancel either of his depositions nor did he refuse to appear as suggested in the motion to compel. According to the amended complaint, plaintiff perceived the motion to compelas "an effort to force the abdication of federal rights..." (Compl. at 4-5.) Plaintiff then initiated this ADAaction. *2 The amended complaint alleges that Mr. Carichoff "showed that he planned to operate" the deposition reporters’ office and commercial office building by noticing depositions there. (Am. Compl. at 3, 4.) The amended complaintalleges six causes of action. Thefirst cause of action is brought underTitle III [FN3] of the ADA pursuant to’ 42 U.S.C. § 12182(b)(1)(D)G) which provides that "[a]n individual or entity shall not, directly or through contractual or other arrangements,utilize standards or criteria or methods of administration... that have the effect of discriminating on the basis of disability{.}" The amended complaintalleges that Mr. Carichoff's "standards or criteria for the selection of venues for depositions have the effect of discriminating on the basis ofdisability..." (Am. Compl.at 5.) FN3. As onedistrict court has explained: The ADAinitially was enacted as Public Law 101-336 and was organized into Titles I through V. When the ADA wascodified as 42 U S.C. § 12101, et seq., the "Titles" were re-labeled as "Subchapters." Titles I, H, and HI became SubchaptersI, II, and HI, Tespectively, and Title V became Subchapter IV. Page 2 Van Hulle v. Pacific Telesis Corp., 124 F.Supp.2d 642, 643 n. 2 (N.D.Cal.2000). Plaintiff's second cause ofaction is a Title II claim brought pursuant to 42 U.S.C. § 12182(b)(2)(A){ii) which, in prohibiting discrimination on the basis of disability, defines discrimination as follows: a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations[.] Here, plaintiff alleges that Mr. Carichoff "has failed to make reasonable modifications to his policies" regarding noticing depositions of disabled persons "even though he has been put on notice that the venues he has selected have repeatedly been inaccessible.” (Am. Compl.at 6.) The third cause of action is brought under Title V of the ADA and alleges that Mr. Carichoff retaliated againstplaintiff in violation of 42 U.S.C. § 12203(a), which providesas follows: Nopersonshall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge,testified, assisted, or participated in any mannerin an investigation, proceeding, or hearing underthis chapter. According to plaintiff's allegations, the motion to compel filed by Mr. Carichoff, and a related motion to haveplaintiff declared a vexatiouslitigant, amount to retaliatory conduct in response to plaintiff's “protected opposition to Carichoff's discriminatory standards ... vis-a-vis selection of venues for depositions ofdisabled persons..." (Compl. at 6.) The amended complaint's fourth cause of action also is brought under Title V and alleges that Mr. Carichoff engaged in coercive, intimidating and threatening conduct in violation of 42 U.S.C. § 12203(b) whichstates: It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account ofhis or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoymentof, any right granted or protected by this chapter. *3 In this regard,plaintiff alleges that Mr. Carichoff has coerced, threatened and intimated plaintiff by © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Slip Copy Shp Copy, 2006 WL 662742 (E.D.Cal.) (Cite as: 2006 WL 662742 (E.D.Cal.)) "repeatedly" noticing his depositions for locations that are inaccessible and "attempt[ing] to arrogate unto himself the authority to require [plaintiff] to locate an accessible venue...." (Am. Comp]. at 7.) Finally, in the fifth and sixth causes of action plaintiff alleges that defendants’ conduct has denied plaintiff equal access to deposition facilities in violation of California's Unruh Civil Rights Act, California Civil Code § 51, and the California Disabled Persons Act, Califomia Civil Code § 54, respectively. [FN4] FN4.Plaintiff's use of boilerplate allegations tenders the fifth and sixth causes of action somewhat difficult to decipher. Nonetheless the fifth cause of action refers to California Civil Code § 51 and the sixth cause of action refers to § 54. Therefore, the court has construed the causes of action as described above. LEGAL STANDARDS A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint. See Ileto v. Glock Inc., 349 F.3d 1191, 1199-1200 (9th Cir.2003), cert. denied 543 U.S. 1050, 125 S.Ct. 865, 160 L.Ed.2d 770 (2005); North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.1983). Dismissal of the complaint or of any claim within it "can be based on the lack of a cognizable legal theory or the absenceof sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990); see also Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.1984). In considering a motion to dismiss for failure to state a claim, the court accepts as true all material allegations in the complaint and construes those allegations, as well as the reasonable inferences that can be drawn from them, in the light most favorable to the plaintiff. See Hishon v. King & Spalding, 467 USS. 69, 73, 104 S.Ct. 2229, 81 L-Ed.2d 59 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1989). In a case wherethe plaintiff is pro se, the court has an obligation to construe the pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of a claim that are not pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir.1992); Ivey v. Bd. ofRegents of Univ. ofAlaska, 673 F.2d 266, 268 (9th Cir.1982). [FN5] Page 3 FNS. Plaintiff was proceeding pro se when he drafted the amended complaint which is the subject of the pending motion. ANALYSIS The allegations of plaintiffs amended complaint speak for themselves. As the undersigned observed at the hearing on defendants’ motion, this action borders on frivolous. Nonetheless, the undersigned resolves the instant motion as if the allegations in the amended complaint are pled in goodfaith. [FN6] FN6.For this reason, the undersigned does not reach defendants’ contention that the court lacks subject matter jurisdiction over this matter, although there is authority to support such a contention. See Bell v. Hood, 327 US. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946) (recognizing that a claim is subject to dismissal for want of jurisdiction where it is “wholly insubstantial and frivolous" and "so patently without merit"); Hagans v. Levine, 415 U.S. 528, 543, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (a claim may be dismissed for lack of jurisdiction where it is "so insubstantial, implausible, foreclosed by prior decisions of this Court or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court"). As set forth above, plaintiff's first and second causes of action are brought under Title III pursuant to 42 U.S.C. § § 12182(b)(1)(D)(i) and 12182(b)(2)(A)(ii), respectively. Byits terms, § 12182 applies to "any person who owns,leases (or leases to), or operates a place of public accommodation." Defendants argue that plaintiffs first and second causes of action must be dismissed because they are not "operators" of a place of public accommodation as alleged in the amended complaint. [FN7] The undersigned agrees. FN7. The amended complaint alleges that Mr. Carichoff "showed that he planned to operate” the venues in question by noticing depositions at these locations. (Am. Compl. at 3, 4.) *4 Because the ADA does not define the term “operates,” the court should "construe it in accord with its ordinary and natural meaning ." See Smith vy. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993). Relying on a variety of dictionary definitions, the Ninth Circuit recently © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Slip Copy Ship Copy, 2006 WL 662742 (E.D.Cal.) (Cite as: 2006 WL 662742 (E.D.Cal.)) recognized that to "operate," in the context of a business, means "to put or keep in operation," "[t]o control or direct the functioning of," and "[t]o conduct the affairs of; manage." Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861, 878 n. 14 (9th Cir.2004) (citations omitted). In that samecase the court observed: [Whether Title IY applies to [a rodeo's sponsor and presenter] depends on whether those private entities exercise sufficient control over the Center, and in particular over the configuration of the facilities, even temporarily, with regard to accessibility, that they can besaid to ‘operate’ the stadium. 375 F.3d at 878. Here, defendants do not rise to the level of “operators” simply by noticing depositionsat a space in a court reporter's office or in a commercial office building. By convening a deposition in a conference room, a person does not put or keep the entire building in operation; he or she does not control the functioning of the facilities; nor does he or she managetheaffairs of the buildings. In the context of litigating the underlying state court action and conducting routine discovery, defendants did not exercise the required management, control or oversight of the subject buildings to become “operators” of those facilities. There is no allegation that the defendants exercised sufficient control over the configuration of the facilities with regard to accessibility. For all of these reasons, defendantsare not "operators" of the venues in question and Title III does not apply to them. See Aikins v. St. Helena Hosp., 843 F.Supp. 1329, 1335 (N.D.Cal.1994)(Title I did not apply to independent contractor physician at a hospital where the physician was not on hospital's board of directors, had no authority to enact or amendhospital policy, and lacked powerto control hospital policy on use of interpreters). Therefore, plaintiffs first and second causes of action under Title II] should be dismissed. [FN8] FN8. Plaintiff's citation to Martin v. PGA Tour, Inc., 204 F.3d 994 (9th Cir.2000), affd, 532 U.S. 661, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001) in a post-hearingletter brief is not persuasive with respect to the issue posed here. The court in Martin was not called upon to address the meaning of “to operate” in that it appears to have been undisputed in that case that "[o]n days of tour competition, PGAis the operator of the golf course." 204 F.3dat 996. Page 4 The undersigned also will recommend dismissal of the third and fourth causes of action for retaliation and intimidation under Title V, respectively. There currently is a split among the circuits as to whether individuals can be liable under Title V of the ADA. Compare Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179-80 (11th Cir.2003)(holding that an individual may be sued in his personal capacity for violating § 12203) with Baird v. Rose, 192 F.3d 462, 472 (4th Cir.1999) (holding that Congress did not intend individuals to be liable under § 12203). The Ninth Circuit has not addressed the issue in a published opinion and district courts within this circuit are split on the matter. Compare Cable v. Dep't. ofDev. Servs. of the State ofCal. 973 F.Supp. 937, 943 (C.D.Cal.1997\"individuals cannot be held liable under Title V of the ADA") and Stern v. California State Archives, 982 F.Supp. 690, 691 (E.D.Cal].1997)("the court holds that individuals who do not qualify as ‘employers’ are not subject to personal liability under section 12112(a)" with Ostrach v. Regents of the Univ. of Cal., 957 F.Supp. 196, 200 (E.D.Cal.1997) ("[p]laintiff may sue the individual defendants under the anti-retaliation provision of the ADA"). *5 Nonetheless, even if the Ninth Circuit were to determine that individuals can be held liable under § 12203(a) and (b), the court finds that the actions allegedly engaged in by defendants Carichoff and Coleman do not fall within the "retaliation," "coercion," "intimidation," "threats," or “interference” contemplated by Congress in enacting § 12203. A motion to compel plaintiff's deposition within the context of a civil lawsuit initiated by plaintiff, and after at least two unsuccessful attempts to secure plaintiff's deposition testimony, can hardly be characterized as retaliation. Nor can defendants' efforts in noticing the deposition, and attempting to cooperate with plaintiff to find a suitable location for the deposition, be characterized as any kind of coercive or threatening behavior. The unfortunate events leading to the initiation of this action amount to a routine discovery dispute in state court, not a federal civil rights lawsuit. For these reasons, the undersigned findsthat plaintiff's Title V claims fail as a matter of law and will recommendthat the third and fourth causes of action be dismissed with prejudice. See Douris v. Office of the Pennsylvania Attorney General, No. Civ. A. 03-CV-5661, 2004 WL 322907, *3 (E.D.Pa. Feb.9, 2004)(evenif individuals could be held liable under Title V, "[c]ertainly the refusal to pay money to settle a claim and the refusal to capitulate to all demands of accommodation cannot be characterizedas'retaliation"'). © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. Slip Copy Slip Copy, 2006 WL 662742 (E.D.Cal.) (Cite as: 2006 WL 662742 (E.D.Cal.)) Next, plaintiffs state law claims are predicated on his ADA claims. A violation of the ADA also constitutes a violation of California's Unruh Civil Rights Act, Cal. Civ.Code § 51(f), and the California Disabled Persons Act, Cal. Civ.Code § 54(c). Molski v. Mandarin Touch Restaurant, 347 F.Supp.2d 860, 862-63 (C.D.Cal.2004); Moeller v. Taco Bell Corp., 220 F.R.D. 604, 607 (N.D.Cal.2004). Because plaintiff is unable to state a cognizable claim under the ADA, plaintiffs state law claims must also be dismissed without leave to amend. Finally, defendants seek an order declaring plaintiff a vexatiouslitigant and subjecting him to a pre-filing order. Defendants seek such an order on the grounds that plaintiff has filed over 1,000 lawsuits alleging violations of the ADA. Theyrely on the decision in Molski v. Mandarin Touch Restaurant, 347 F.Supp.2d 860 (C.D.Cal.2004). However, the reasoning of the district court in the Molski decision has recently been compellingly refuted. See Wilson v. Pier 1 Imports, Inc., 411 F.Supp.2d 1196 (E.D.Cal.2006) Moreover, vexatious litigant orders are rarely justified. See De Long v. Hennessey, 912 F.2d 1144, 1146-47 (9th Cir.1990); Wood v. Santa Barbara Chamber ofCommerce,Inc., 705 F.2d 1515, 1523-26 (9th Cir.1993); Wilson, 347 F.Supp.2d at 1199. Clearly "mere litigiousness is insufficient" to Justify such an order. De Long, 912 F.2d 1147; Wilson, 347 F.Supp.2d at 1200. *6 Here, defendants have not even attempted to demonstrate that any of plaintiff's previously filed lawsuits were frivolous. There has been no representation by defendants that plaintiff has filed other meritless actions arising out of discovery disputes in state court actions. Therefore, the court will recommendthat defendants’ request for an order declaring plaintiff a vexatious litigant be denied without prejudice to renewal in the event plaintiff were to pursue additional abusive lawsuits of this same nature. CONCLUSION Accordingly, IT IS HEREBY RECOMMENDED that: 1. Defendants’ motion to dismiss be granted andthis entire action be dismissed with prejudice; and 2. Defendants' request for an order declaring plaintiff a vexatiouslitigant be denied without prejudice. These findings and recommendations are submitted Page 5 to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. 8 636(b)\(1). Within ten (10) days after being served with these findings and recommendations, any party mayfile written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. See Martinez v. Yist, 951 F.2d 1153 (9th Cir.1991). Slip Copy, 2006 WL 662742 (E.D.Cal.) Motions, Pleadings and Filings (Back to top) * 2:05cv00984 (Docket) (May. 18, 2005) END OF DOCUMENT © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. CERTIFICATE OF SERVICE I, the undersigned, certify that I am a citizen of the United States and a resident ofMarin County, California. I am overthe age of eighteen years and not a party to the within action; I am employedin the office of a memberofthe bar of this court at whose direction service was made; my business address is 4328 Redwood Hwy., Ste. 300, San Rafael, California 94903. The documentidentified below and this affidavit has been printed on recycled paper meeting EPA guidelines. On the datethis affidavit is signed below, a true copy of the OPENING BRIEF ON THE MERITS, wasplaced by mein an envelope addressed to the person(s) at the address(es) set forth below, then sealed and, following ordinary business practices, placed for delivery with the Federal Express Service in San Rafael, California. Supreme Court of California Renee Welze Livingston,esq. (Original plus 13 copies) Jason G. Gong,esq. Office of the Clerk Livingston Law Firm (1 copy) 350 McAllister Street A Professional Corporation San Francisco, CA 94102-4783 1600 South Main Street, Suite 280, Walnut Creek, CA 94596 Court of Appeal First Appellate District (1 copy) Solicitor General (1 copy) 350 McAllister Street Office of the Attorney General San Francisco, CA 94102 1300 "I" Street P.O. Box 944255 San Francisco County Superior Court Sacramento, CA 94244-2550 — Main (1 copy) Civic Center Courthouse 400 McAllister Street San Francisco, CA 94102 I declare under penalty of perjury that the foregoing is true and correct, Executed in San Rafael, California on June /O2010. e -36-