JANKEY v. LEE

Appellant, Les Jankey, Petition for Review

Cal.March 11, 2010

S180890 Supreme Court Case No.| Supreme Court of California SUPREME COURT LES JANKEY F [ L E D Plaintiff-Petitioner MAR 112010 ‘ Frederick K. Ohirich Clerk SONG KOO LEE Deputy 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 PETITION FOR REVIEW Scottlynn J Hubbard IV, SBN 212970 LAW OFFICES OF LYNN HUBBARD 12 Williamsburg Lane Chico, California 95926 (530) 895-3252 lawofchaos@aol.com TABLE OF CONTENTS Table of Authorities oo...cece ccccceesccecccsscececsecsseseessesessssessesssessecessensesecerseseusecscceseces ili Issue Presented: Should California state courts split with California federal district courts and award mandatory (non-discretionary) attorney’s fees to prevailing defendants againstthe plaintiff — under a state law the Ninth Circuit has already found preempted — for a non-frivolous yet unsuccessful Americans Disabilities Act (“ADA”) claim? wo...eceeeeeeeeee 1 Introduction: Why Review Should Be Granted ......0.0.0.0cccceececcsesseseseescessatecsstseseesens I Statement Regarding Petition for Rehearing in Court ofAppeal...cceeeceeeee: 3 Factual and Procedural Background ..0.0........ccccccccssesssesssessscsesscsvecsesseceseececeusevatacanaes 4 Legal Discussion oo... eee eeccessesssesssesesesessescrsesacsecsevsvscsesssscsssessessecsasarsrsasassvacsaaces 6 I. Court of Appeal’s 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 (much less addressing) the test developed by the Supreme Court to make SUCH a AeterMimationeeeecceeeeeseseseesesssesesscacscsescecscscessseceusevsssersvacaeataevavevaes 6 II. 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 claimsare preempted. ..........ccceccsesseseseeee 1] Ill. Third Error — Assuming that the award of attorneys fees to a prevailing plaintiff, as opposed to the amount of attorneys fees awarded, is discretionary under the ADA and mandatory under Section 55. ......cccccccscese. 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....0...0ccccecesescseseeeeeeee 17 V._ Fifth Error — \gnoring that Section 55 sits in pari materia with the ADA and other California disabled civil rights statutes — none of which permit a mandatory award ofattorney fees and costs to a prevailing defendant (much less an award for non-frivolous ADA claims). ............ccccscsseceeeeeees 20 VI. Sixth Error -~ Relying on a vexatious litigant order that was widely criticized 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. .......c ccc cccccccceesseseeseescsecescsesscsccevsceasevacens 22 CONCIUSION oo... eee cececececcneceseeseseeseessesseseesecsssesecsecsensssscsessscssessssscecevactataseeeaaseasseeaes 26 Certificate ofWord Count ......ccccccccecccecescsccssessessscescscsscsesscsserscscssscasaeescesaeeasareneas 28 Attachment No. 1 (Court of Appeal decision). ......0..ccccccecesssseesscsscteseseecereeseeeess 29 Attachment No. 2 (State Bar Court decision)......0...ccccccccccecccessccssceseseeessceecesceaeees 30 Certificate Of Service oo... ececcesesssesssssssessceseessesscsesessccsssesscssssscessesecsesastaruesateasaes 31 TABLE OF AUTHORITIES Cases Barrios v. Cal. Interscholastic Fed'n, 277 F.3d 1128 (9th Cir. 2002)occcececcceecseeeeseesseenees Bartling v. Glendale Adventist Medical Ctr., 184 Cal. App. 3d 97 (1986)oo. ceccccceccceeeeseceesesseseeeeneees Bingham v. Obledo, 147 Cal.App.3d 401 (1983) oo. cccccesesessssessessereseseeseens Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000) oeeeecceesesecseesesesseetenees Californiansfor Responsible Toxics Managementv. Kizer, 211 Cal.App.3d 961 (1989) oecccceseeseccsetseresseereees Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978) csccsccsssssscecsssssesssccueessssseesessstesssessecee Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000)... eceeceececeseescsseeesesseenseeseessensesseens Cummings v. Benco Bldg. Servs., 11 Cal-App.4th 1381 (1992) ooocccceeceeeesseesteeeeees De Canas v. Bica, 424 US. 351 (1976)eiececceseesseesseeeeeseeseeeseeecesecsenseeaes Dodson v. Dollar Tree Stores, Inc., 2006 U.S. Dist. Lexis 90416 (E.D. Cal. Dec. 14, 2006) Feminist Women's Health Center v. Blythe, 32 Cal.App.4th 1641 (1995) ooo.cececeseesseeeesecees -1l- ses eeeeseeteseeesaeeeseereaees 8, 13 wesc cseseeeesseseaeeeseeeesneseeaes 15 eceeeeeseceveeeesseeesetneeeeeees 15 a eeeeeeeeeesssecsacevsneeeeeeeteas 12 ee setesecesseesseceaeeteneeeeeaeeess 15 seeeeescesceseseeesesereeeeenenteess 8 ve eeseseeeeeseteeeeeessteeesaees 6,7 ee ceeteneeccsueesesnseeeeneetenseues 21 seceeseeeeesecssessessaeeseenetenes 7 ve seceeeesaeenseeesateeneeteeneeeees 16 seseeasesseeeseeceeestaeeessatensees 15 Fischer v. SJB-P.D. Inc., 214 F.3d 1115 (Oth Cir. 2000) eeecccccccccscsecsceesscssesecsssscsstsesssecsesacterasess 8, 14 Fogerty v. Fantasy, Inc., SLO U.S. S17 (1994)icesceseeeseeeeseeecseessecsesecseesesecseescesessssceesscsseeecseaeausaeeaeas 9 Free v. Bland, 369 U.S. 663 (1962)... eeeeceecsesecseseesesesseseeseceesecsessssesecssssesssecsecsscaveesareetseaseaes 7 Gade v. Nat'l Solid Wastes Mgmt. Ass'n, SOS U.S. 88 (1992)... ccccccseeecseseseeecseseseeseseescsesecsesssesesscscsssscavsssacsesausutacacsusacaees 7 Gibbons v. Ogden, 22 US. 1 (1824)oocecececeeecesesesesetsesseseessesesscsecssecessescessscsevassavsussasarsatsavateasaes 7 Hensley v. Eckerhart, A61 U.S. 424 (1983).ccccceseseseeesseeseseceesecescsecaececsssesescssssessessevueaeeasentaees 8, 13 Herrington v. County ofSonoma, 883 F.2d 739 (9th Cir. 1989) oceccccccceccseessesesecscssescscscescsesacsvesssecsesacersecseesens 14 Hines v. Davidowitz, 312 U.S. 52 (194)eececcceeseseeessnecsecsesscsessecsessssseessesesscsesavssvesuaesssatsaesessees 6, 7 Hubbard v. SoBreck, 531 F.3d 983 (Oth Cir. 2008) oo. cececeesccsscsececcsescescessssestsscsccecsssseavsevsesstssssseaeasees 2 554 F.3d 742 (Oth Cir. 2009) oo. eececceseeccssesecseescseesseceseessesssecscecssessseaeetsesvseeaseas 5 In the Matter ofThomas Edward Frankovich, Case No. 04-O-15890 (State Bar Court June 25, 2009) .o..oeccccccesessecessseeseees 24 Jankey v. Poop Deck, S37 F.3d 1122 (2008)... ceceeceescseseseseesesesesacsccscsesacsescssescsecsvecstscssesensansesenas 8, 14 Jankey v. Song Koo Lee, --- Cal.Rptr.3d ----, 2010 WL 396355 (Feb. 5, 2010) w..ccccccccceeeeeeeseeeespassim -iv- Jones v. Rath Packing Co., 430 U.S. 519 (1977). eceeeesenessessseeseessscesecseseesessessessesessessssesscevssssceeeaceaseaeaneas 7 Louie v. Carichoff, 2006 WL 662742 (E.D. Cal. March 16, 2006) ......cccccccccceeccessssscseeresseeeeees 23 Mixon v. Fair Employment & Hous. Comm'n, 192 CalApp.3d 1306 (1987) .ooceceecccccesccscsccecscescssessesessssessssstsssstesssceseatesstereaas 21 Molski v. Arciero Wine Group, 164 CalApp.4th 786 (2008)oo... ecceeccessesescessessssessscsscsececsecscsecsceevscencessaenatareaees 2 Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007) ..occeccecccccsscsessessesseseescsscsessesseacestaveavsesaceeses 22, 25 521 F.3d 1215 (9th Cir. 2008) (Dissent) 0...ccc cccccecescescsseseseseecesceesesereseeerens 23 Molski v. Mandarin Touch Restaurant, 347 F.Supp.2d 860 (C.D. Cal. 2004) oo. cecccc cece ccsecsseeccccsececseceseceresssersueesseens 22 Moreland v. Department ofCorporations, 194 CalApp.3d 506 (1987) o..cccccceccsssesessescsesscseseessseessecssssesscsvecsssavevacensaeeasseas 21 Natural Resources Defense Council v. Fish & Game Commission, 28 Cal.App.4th 1104 (1994) ooo ccccccccssescescsessesesessesecessseseseveessasaverssacaesases 20 Newmanv. Piggy Park Enterprises, 390 U.S. 400 (1968)...eccceeeseessessesesseseseceesesecsestescseceesssscseestevisesevaeeneass 14,15 People v. Hedgecock, 183 Cal.App.3d 810 (1986) oo. cicceccsesscsssscscscesesessesssscssesssssssscscsssssesacenataceasaees 21 Phalen v. Commonwealth of Virginia, AD U.S. 163 (1850).ee cecceeceseesseseeseescsseesessecscceecsecsesssessevsssssesevevessaersnssessessevaes 20 Price v. Civil Serv. Comm'n ofSacramento Cnty., 26 Cal.3d 257 (1980) wooo ecccecccssesseseseeseesesscsecssescsscscesessusussusvssvevsccacausateesseeanes 21 Savage v. Jones, 225 U.S. 501 (1912). cceeeceseessssessseseecesesesecaeseseessessescecsesscsssasacssseceesaraeeaes 7 Serrano v. Unruh, 32 Cal. 3d 621 (1982) .occeccsecscssesscessecsssssecssssssessssueessssesssesssitssssssessssessstteseseveseees 15 Sokolow v. County ofSan Mateo, 213 Cal.App.3d 231 (1989) occccccccccsescsssesscseseescssscesesscsusevecsssavsesesasestsesasansasas 15 Stephens v. Coldwell Banker Commercial Group, Inc., 199 Cal.App.3d 1394 (1988) oo. ccccccccescsccccssescscssssessssssscscsseevscassatatsssusseeasaes 21 Summers v. Teichert & Son, Inc., 127 F.3d 1150 (9th Cir.1997) ooocccccccceccceececcesecesecesseessssecssseusessscssssessessuseceeceece 8 Tutor-Saliba Corp. v. City ofHailey, 452 F.3d 1055 (Oth Cir, 2006) o..eecccccccecccssessescescscssssscsesssscstsctavecsassaeeusesesatecsees 8 White v. J.A. Sutherland, Inc., 2005 U.S. Dist. LEXIS 40713 (E.D. Cal. May 9, 2005) wo..eccecccecceceseceeeseeees 16 White v. Save Mart Supermarkets, 2005 U.S. Dist. Lexis 24386 (E.D. Cal. Oct. 20, 2005) ...cccccccccecesssessesseseseees 16 Wilson v. Murillo, 163 Cal. App. 4th 1124 (2008) oocececcccsevecessseessessecesesasetscesaescevesevass 21 Wilson v. Norbreck LLC, 2007 WL 1063050 (E.D. Cal. Apr. 9, 2007) ....ccccccceccceccscescesesscersesessetsessacseeees 9 Wilson v. Pier Imports (US), Inc., 411 F.Supp.2d 1196 (E.D. Cal. 2006) ooo. cccecccescesccessseecesevesearessseeaes 8, 23, 25 Woodv. County ofAlameda, 875 F. Supp. 659 (N.D. Cal. 1995) occ cccccccccescscessesssscacsesescsecacevsessecatsessassuass 12 -vi- Statutes, Rules, and Regulations 28 C.F.R. Pt. 36, App. Bun. eeeeccecccseesessessssssseeecsecsesssesssesssssescssssessssseseevsceareaeecsees 13 A2 ULS.C. §§ 12101 et SCG. .eeeeeceeeccesssessssessecscsesessesscssssssscseseccstsessesacseceaeatattacsenacsasas 4 A2Z U.S.C. § L220 1D) eeecee ceccesesesseeseeseesessesecscesessecsecscsssescsscsesresseveseareatsnsaeeas 12 42 U.S.C. § 12205 eee cccccceseeseesesseeeseecsecseesessesecessssscessscssvessvsesaccaceueeaeeasausaeecsaceases 7 California Civil Code §§ 51 et S€Q..c.cccceccecsscsssessssesscesesssssscsseacescsesacecsaesasstaceacateaseee 4 California Civil Code § S1(f) oo. cccccccccccscscsscscsscsesesssssesssssssevscesavsceecsessesacavstessasaees 2] California Civil Code §§ 54 ef S€Q. c.ecececccccseccccccsssecscssessscssessscesssvsesesuseseavatstestacseasses 4 California Civil Code § S54(C) .occccccccccccccsessssesscecescescesescessacersasssceststesseascsevassseasens 21 California Civil Code § 54.1(d) .cccccccccccccescescescescessscseescnssesesvsssaeesesaecateussecassesses 21 California Civil Code, § 55 ..0..ccccccccccccseeecsessescsscsessesecscsvscsssvsssssesutavaueessseaeeaespassim California Health and Safety Code §§ 19955 ef S€Q. .o.cccccccecsssssessssseecevevevstsvensesees 4 California Rules of Court, Rule 8.504(e)(2)(C)...cccecccccccseceseesescssesessesssetecssseceees 23 Miscellaneous 136 Cong Rec H 4169.cccccccccesecsesseseeesenecseccessesssceseesarsussvaseavaceuseavavutavscseeess 12 136 Cong Ree H 4582 oo ecccescsesessssessesesecsececscessescessesevssscsevsvssssaseuvaesaeessaesevavsvass 13 Assembly Bill No. 1547 (proposed).0......cccceccccsccsesssescssesccscseceeceeecsessesesssssesecsesscece 19 Assembly Bill No. 1547, Bill Analysis, March 4, 1972 oo... cccceccsscesscescssesseseeesees 19 -Vil- Assembly Bill No. 2471, Bill Description, Assembly Committee on Judiciary, Charles Warren - Chairman,Bill Digest, August 14, 1973 ...c.ccssessssssesesesseees 18 Assembly Bill No. 2471, Enrolled Bill Report, Enforcement of Architectural Barrier Laws, Analysis, September 1974 ....0...c.c.ccccececsccssssssescscscecseseseseesececeeee 18 H.R. REP. 101-485(1D, reprinted 1990 U.S.C.C.A.N, 303 ooecececcecesessesesesecsecsessscsesssscacscssevacsavassesevstsavavscsesavacseses 7-8 H.R. REP. 101-485(111), reprinted 1990 ULS.C.C.LALN. 445 occecccccccescscscsscsssesescscssssssscsssessvarasasscsesasaracavsestsevevavesees 8 Letter to Assemblyman Charles Warren from Saralea Altman, Legislative Chairwoman, California Coordinating Council, May 30, 1973 uo...eeeeees 17 Molski v. Arciero Wine Group., Petition for Review, Case No. $165946, 2008 WL 6137582 (Aug. 15, 2008) oo... ccccecsessesesesesesseeseees 2 Title Il Technical Assistance Manual, § I[I-1.8200 (1994 Supp.) .....c.ccsscscesseeseeees 13 -Vili- 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? WHY REVIEW SHOULD BE GRANTED Theissue raised by this petition is oneof first impression before this Court — (1) Does Section 55 of the California Civil Code mandate an award of attorney 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 whether a defendant, who prevails over a disabled plaintiff's 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. For simplicity’s sake, petitioner will use the single term “frivolous” to denote claims that are “frivolous, unreasonable or groundless.” -|- 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) (“we leave it to California courts to interpret Section 55 in a definitive way, and to decide authoritatively whether it would mandate fees to 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's fees, regardless of whetherthe plaintiff's claims were meritorious (but unsuccessful) on the one hand; or frivolous on the other. See Jankey v. Song Koo Lee, --- Cal.Rptr.3d ----, 2010 WL 396355, at **7-8 (Feb. 5, 2010), citing with approval, Molski v. Arciero Wine Group, 164 Cal.App.4th 786 (2008) (“Arciero Wine”). With all due respect to these courts of appeal, their rulings are contrary to thetest -2- established by the Supreme Court to determine whether a state law conflict is preempted; are inconsistent with the public policy that underlies all of California's disabled accesslegislation; are inconsistent with the legislative history of Section 55; and cut against the clearly emerging body oflaw interpreting and applying the fee-shifting provisions of various state and federal civil rights legislation. Although previous invitations have been declined, petitioner hopes the Court will take this opportunity to resolve what is now a full-blown split between California state and federal courts; and overturn the Song Koo Lee opinion with an authoritative and definitive interpretation that will bring Section 55 in line with other fee-shifting statute standards and theintent of the California legislature. STATEMENT REGARDING PETITION FOR REHEARING The decision of the court of appeal was final, and no petition for rehearing before that court was filed by either party. FACTUAL AND PROCEDURAL BACKGROUND” Petitioner Les Jankey (“Jankey” or “petitioner”) broughtthis lawsuit against Respondent Song Koo Lee (“Lee”), 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 seq.); the California Disabled Persons Act (“CDPA”), (Calif. Civil Code §§ 54, et seq.); the California Unruh Civil Rights Act (“Unruh 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 other relief, Jankey sought injunctive relief under the ADA and Section 55 to “make [the store] readily accessible to and usable by [the disabled.” Lee moved for (and the trial court granted) summary judgmentin the defendant’s favor on the grounds that Lee had provedhis affirmative defense to all causes of action. Unless specified otherwise, the facts contained in this section are drawn from the court of appeal’s published opinion. Song Koo Lee, --- Cal.Rptr.3d ----, 2010 WL 396355, at **1 - 2. 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 plaintiffs 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 were frivolous. Arciero Wine, 164 Cal.App.4th at 791. Upon considering the parties' arguments,the trial court determined that the Arciero Wine analysis controlled, and that Lee wasentitled to a mandatory award of $118,458 in attorney fees and $3,544.54 in costs under Section 55. Jankey appealed thetrial 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 seeks review. LEGAL DISCUSSION Because the court of appeal acknowledgedthat its analysis in Song Koo Lee wasin direct conflict with the Ninth Circuit’s analysis in Sorbeck, petitioner will not belabor that point here. Instead, he will focus on why the Song Koo Lee analysis was erroneousas a matter of law and should be overturned. 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 (much less 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 applying (much less addressing) the test developed by the Supreme Court to make such a determination. Song Koo Lee, --- Cal.Rptr.3d ----, 2010 WL 396355, at **6-7. 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 standsas an obstacle to the accomplishment and execution ofthe 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 circumstances of 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 lawsas they are interpreted and applied, not merely as they are written. See Jones v. Rath Packing Co., 430 US. 519, 526 (1977), citing De Canas v. Bica, 424 U.S. 351, 363-365 (1976). Whatis 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 awardthe prevailing party attorney's fees, including litigation expenses and costs. 42 U.S.C. § 12205; H.R. -7- REP. 101-485(I1), 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 F.3d 1115, 1119, n.2 (9th Cir. 2000). When defendants are the prevailing parties, however, Congress intended fortrial courts to only award fees “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 U.S.C.C.A.N.at 423 (“Tt 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 A claim is frivolous if it is clear from “the outset of the litigation” that “it lacked a factual and legal basis.” See Tutor-Saliba Corp. v. City ofHailey, 452 F.3d 1055, 1060-61 (9th Cir. 2006); see also Wilson v. Pier Imports (US), Inc., 411 F.Supp.2d 1196, 1198 (E.D. Cal. 2006) (Frivolous defined with respect to the ADA.). 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 omitted).* By contrast, on its face, Section 55 neither gives courts the discretion to award fees, nor distinguishes between prevailing plaintiffs and prevailing defendants. As a result disabledplaintiffs, including the plaintiff 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 * 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 preemption principles.”). 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 therest of the act, and ignoring its role and purpose within the CDPA. Song Koo Lee, --- Cal.Rptr.3d ----, 2010 WL 396355, at **6-7. 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 ADA claim is stil/ contrary to the stated objectives of Congress, regardless of whether that 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 of protecting 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. -10- 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. Havingestablished 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 was frivolous, 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. Song Koo Lee, --- Cal.Rptr.3d ----, 2010 WL 396355,at *6 (“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 abrogate the scope of the rights available under the ADA in any fashion. Id. at **6 - 7 (quote omitted). “We have found no legal authority,” the court of appeal opined, “requiring each and every element of a multi-faceted state -11- remedial act to offer equal or greater benefits under all circumstances over a similar federal law in order to avoid a preemption finding.” Jd. at *7. Onits face, however, this statement is in direct conflict with the ADA’s preemption provision and the intent of Congress. The text of the ADA makesclear that Congress intended to preemptstate or local laws that limited or reduced the protections available under the Acct: “[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 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 of one statutory provision into the ADA,to the exclusion of another, must be presumed intentional under the statutory canon of expressio unius.); 136 Cong Rec H 4169, 4191 (Joint Explanatory Statement of the Committee of -12- 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 IIT 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 (underall circumstances) wasincorrect and reversal is warranted. fil. Third Error — Assuming that the award of attorneys fees to a prevailing plaintiff, as opposed to the amount of attorneys fees awarded, is discretionary under the ADA and mandatory underSection 55. The court of appeal’s third error was to conclude that an award ofattorney fees to a prevailing plaintiff is discretionary under the ADA and mandatory under Section 55. Song Koo Lee, --- Cal.Rptr.3d ----, 2010 WL 396355 at *7. Neither conclusion was correct. As alluded above, it is an abuse of discretion fora 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 -13- 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 explained that[,] in civil rights cases, the district court's discretion is limited.”). Congress enactedthe fee-shifting provisions of the ADAto 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 (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 ofSonoma, 883 F.2d 739, 743 (9th Cir. 1989). This is, incidentally, the same standardthat is applied to fee requests under Section 55. 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.”). -14- 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 Medical Ctr., 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, when the 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 Cal.App.3d 961, 974-975 (1989). Disabled plaintiff are no more “guaranteed an attorney fee award” under Section 55 by establishing “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, --- Cal.Rptr.3d ----, 2010 WL 396355 at *7 (italics in original). Quite the opposite, California dockets are replete with orders reducing fee awards (under both the ADA and Section 55) to -15- disabled plaintiffs who prove “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 under Section 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 success or 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) (Plaintiff's fee award under ADA and Section 55 reduced twenty-percent to account for limited success); White v. J.A. Sutherland, Inc., 2005 U.S. Dist. LEXIS 40713, **5, 22-23 (E.D. Cal. May 9, 2005) (Plaintiff's fee award under ADAandSection 55 reduced twenty-percent to accountfor limited success.). -16- IV. Fourth Error — \gnoring the legislative 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 guaranteeing their 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 against those 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 -|7- authority has ever been offered to even suggest that the California legislature intended for prevailing defendantsto 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 and intent behind that provision: Starting in 1968, several laws requiring buildings and otherfacilities 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 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. 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 providesthat if the 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 waslater deleted from the bill through amendment. -18- It is clear from the abovethat the intent behind what became Section 55 was — and is — to provide for an award of attorney's 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 nonconforming facility ... 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 court costs. 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 operationofa 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 of strict equivalence betweena plaintiff and a defendant as a “prevailing party;” indeed, the legislative history points strongly 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 -19- 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 absurd result, and petitioner respectfully requests the Court granthis review and overturn the underlying decision on that ground. V. ‘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 award of attorney fees and costs to a prevailing defendant (muchless an awardfor 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 v. Commonwealth of Virginia, 49 U.S. 163, n.1 (1850). Similarly, when 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 whena state law is patternedafter a federal law, the federal cases interpreting the federal law offer persuasive rather -20)- than controlling 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 have often followed the federal lead by looking 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, eg., 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 CDPAare but twoofa series of anti-discrimination statutes enacted by the California legislature, all of which were modeled on federal civil rights laws, e.g., the ADA, and share the same purpose and intent 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 federal legislation. Because that public policy is the same, California’s disabled access -2]- laws sit in pari materia with the ADA,and the same rule concerning recovery of attorney's fees to a prevailing party ought to apply, petitioner respectfully submits that the award of mandatory fees to the defense violated that policy and should be overturned. 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 andlegal support. Finally, the court of appeal’s analysis may have been colored by the vexatious litigant order issued against petitioner’s trial counsel, attorney Thomas Frankovich, and the forty lawsuits filed by petitioner on behalf of DREES. Song Koo Lee, --- Cal.Rptr.3d ----, 2010 WL 396355, at *7, fn. 9, citing, inter alia, Molski v. Mandarin Touch Restaurant, 347 F.Supp.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 widely criticized by the State Bar of California, numerous California district courts, and -22- 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 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 offactual, legal, and judicial support for that order:* While Judge Rafeedie made substantive findings that respondent {Frankovich] engaged in a scheme to extort ADA settlements, 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 not rise to the level of clear and * Although a copy of the State Bar’s opinion is available at http://members.calbar.ca.gov/courtDocs/04-O-15890-2.pdf, a copy of the relevant parts of this not readily accessible opinion is attached pursuant to California Rules of Court, Rule 8.504(e)(2)(C). -23- (State Bar Court June 25, 2009). 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 respondentorhis client to be a vexatiouslitigant. This is despite the fact that respondent has filed hundreds of ADA 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 abuse of discretion. 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 schemeto defraud. While Judge Rafeedie found that this letter violated the Model Code of Professional Responsibility, the State Bardid not allege, 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 summarized, the vexatious litigant order was based more on assumption and innuendo than testimonial and documentary evidence, and petitioner would respectfully suggestthat 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 -24- As the State Bar Court opinion succinctly Section 55 justified because the petitioner has filed 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 complaints filed in Mandarin Touch and the instant case is also of no import becausethe 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 of the disabled.” See, e.g., id. at 1062. These beliefs were not only unfounded, they stemmed primarily from a discredited vexatiouslitigant order and should not have been consider. -25- CONCLUSION The court of appeal in the instant action held that, because Section 55 does not on its face distinguish between a successful plaintiff and a successful defendant in a civil rights action, a successful defendant must be awarded its reasonable attorney's fees, regardless of whether vel non the plaintiff's claims were meritorious but simply unsuccessful. With all due respect to the court of appeal, this decision runs counter to logic, the legislative history of Section 55, and the emerging case law. Thirty years ago the Supreme Court declared that, where a piece ofcivil rights legislation states that a prevailing party is entitled to recover a reasonable attorney's fee, slightly different standards must apply to successful plaintiffs on the one hand and to successful defendants on the other. Thus, while a presumption exists in favor of awarding a reasonable attorney's fee to a successful plaintiff, a successful defendant may be awarded its fees against a non-prevailing plaintiff if and only if the plaintiff's claims were frivolous. That ruling has been 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 -26- 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 first day ofMarch 2010. Scottlynn J Hubbard IV Law Offices of Lynn Hubbard 12 Williamsburg Lane Chico, California 95926 Attorney for Petitioner ‘ttorney for Petitioner -27- CERTIFICATE OF WORD COUNT This Petition contains 6,055 words from the cover page to signature block below. Respectfully submitted this first day of March 2010. Scottlynn J Hubbard IV Law Offices of Lynn Hubbard 12 Williamsburg Lane Chico, California 95926 Attorney for Petitioner y Jottlynn J Hubbard IV Attorney for Petitioner -28- Attachment No.1 Jankey v. Song Koo Lee, --- Cal.Rptr.3d ----, 2010 WL 396355 (Feb. 5, 2010) -29- Westlaw. 2010 WL 396355 Page| --- Cal.Rptr.3d ----, 2010 WL 396355 (Cal.App. 1 Dist.) (Cite as: 2010 WL 396355 (Cal.App.1 Dist.) Only the Westlaw citation is currently available. Court of Appeal, First District, Division 4, California. Les JANKEYetal., Plaintiffs and Appellants, v. SONG KOO LEEetc., Defendant and Respondent. No. A123006. Feb. 5, 2010. Certified for Partial Publication. [FN*] San Francisco City and County Superior Court, Hon. Patrick J. Mahoney. Thomas E. Frankovich, for Appellants. Livingston Law Firm, Renée Welze Livingston, Jason G. Gong, for Respondent. RUVOLO,P.J. INTRODUCTION *1 Les Jankey (Jankey), a person with a disability who uses a wheelchair for mobility, brought an action against Song Koo Lee (Lee), the owner of K & D Market, a small grocery/liquor store in San Francisco's Mission District. The suit alleges that Lee discriminated against Jankey on the basis of his disability because architectural barriers denied him entry to the market. 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 Disabled Persons Act (Civ.Code, § 54 et seq. (CDPA)). The court entered summary judgmenton all causes ofaction for Lee, whichis notat issue in this appeal. Instead, this appeal is from an order awarding Leehis attorney fees in the amount of $118,458 under Civil Code section 55 [FN1] (Section 55), which mandates that the prevailing party in an action to enjoin a violation of disabili- ty access requirements "shall 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 |), opinion amended and su- perseded on denial of rehearing by Hubbard v. SoBreck, LLC (9th Cir.2009) 554 F.3d 742 (Hubbard I), Jankey claims that attorney fees were improperly awardedto Lee as a prevailing defendant on Jankey’s claim for injunctive relief under Section 55. Hubbard I/ held that a mandatory awardoffees to a prevailing defendant under Section 55 without a showing that the plaintiff's lawsuit was frivolous, unreasonable, or groundless "is inconsistent with, and therefore preempted by, the ADA." (Hubbard If at p. 744.) We respectfully disagree with the Hubbard IJ court's preemption analysis, and conclude that attorney fees were properly awarded to Lee as a prevailing defendant under Section 55. We further find that the amount of attorney fees and costs was well within the trial court's discretion. Consequently, we affirm. © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 2010 WL 396355 Page 2 --- Cal.Rptr.3d ----, 2010 WL 396355 (Cal.App. 1 Dist.) (Cite as: 2010 WL 396355 (Cal.App. 1 Dist.)) I. FACTS AND PROCEDURALHISTORY Jankey and Disability Rights Enforcement Education Services: Helping You Help Others (DREES) {FN2] brought this 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. Jankey asserted that Lee violated his rights by “denying plaintiffs and the class of other similarly situated persons with physical disabilities access to, the full and equal enjoyment of, 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 wasan architectural barrier that prevented him and other wheelchair bound individuals from wheeling directly into the store. Jankey claimed Lee was in violation of: (1) the ADA (42 U.S.C. § 12101 et seq.); (2) the CDPA (§ 54et 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 injunctive relief pursuant to the ADA (42 U.S.C. § 12188(a)(2)) and under Section 55, “to make [the subject place of public accommodation] readily accessi- ble to and usable by persons with disabilities..." *2 Lee filed a motion for summary judgment contending that 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 and services; (3) Lee utilized alternative methods to provide goods and ser- vices to Jankey which complied with ADA requirements; (4) Jankey's claim under Health and Safety Code section 19955 was not cognizable because the market does not have a public restroom; and (5) DREESlacked standing to prosecute this lawsuit. The trial 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 because of the regulatory permit process, the removal ofthe architec- tural barrier and the installation 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 chal- lenged by Jankey in this appeal. Lee, as the prevailing party, thereafter brought a motion to recoverhis attorney fees under Section 55. In ruling on the fee motion, the parties below disagreed whetherthe trial court should apply the Ninth Circuit's decision in Hub- bard 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 under Section 55, to show that the disabled plain- tiffs claims were frivolous, unreasonable, or groundless. [FN3] (Hubbard /I, supra, at pp. 746-747.) In Molski, the court held that attorney fees were automatically available to a prevailing defendant under Section 55, notwithstand- ing that the disabled plaintiffs claims could not be characterized as frivolous. (Molski, supra, 164 Cal.App.4th at p. 791, 79 Cal.Rptr.3d 574.) Uponconsidering the parties’ arguments, the trial court determined that the Molski court's analysis controlled, and that Lee wasentitled to a mandatory award ofattorney fees under Section 55. The court made nofinding on whether Jankey's lawsuit could be characterized as frivolous. The court awarded Lee $118,458 in attorney fees and $3,544.54 in costs. Judgment was entered on August 28, 2008. Jankey then filed an appeal from the court's award of attorney fees and costs to Lee. © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 2010 WL 396355 Page 3 --- Cal.Rptr.3d ----, 2010 WL 396355 (Cal.App. 1 Dist.) (Cite as: 2010 WL 396355 (Cal.App.1 Dist.)) HI. DISCUSSION A. Standard of Review Generally,a trial court's determination of whether a party is entitled to an award of attorney fees, and the calcula- tion of such a fee award, are both reviewed for abuse of 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 claims the trial court used the wrong legal standard in granting Lee at- torney fees under Section 55. "[A]lthough the normal standard of review regarding an attorney fees award is abuse of discretion, ‘discretion may not be exercised whimsically, and reversal is required where there is no reasonable basis for the ruling or when thetrial court has applied the wrongtest to determine if the statutory requirements were satisfied.’ [Citation.]" (Ramos v. Countrywide Home Loans, Inc., supra, at p. 621, 98 Cal.Rptr.2d 388.) In determin- ing whether the court used the correct legal standard in awarding attorney fees, de novo review is required. (Harman v. City and County ofSan 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.) B. Analysis *3 Jankey's argument that Section 55's mandatory fee award provision is preempted by the discretionary standard under the ADA is supported by the Ninth Circuit's decision in Hubbard II, supra, 554 F.3d 742. [FN4] The com- plaint filed by the disabled plaintiffs in Hubbard alleged, among otherthings, 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 enjoymentofthe restaurants’ servic- es and facilities. (/d. at p. 744.) Defendants then moved for attorney fees under the ADA and Section 55 of the CDPA. (HubbardIf, supra, at p. 744.) The district court concluded that attorney fees were not warranted under the ADAbecause the plaintiffs' claims for injunctive relief were not frivolous, but awarded defendants attorney fees under Section 55 of the CDPA, which is mandatory and guarantees attorney fees to a prevailing party. (Hubbard II, supra, at p. 744.) Plaintiffs appealed. Although the issue of preemption was notraised or ruled onin the district court, the Ninth Circuit reversed and va- cated the award of attorney fees to the prevailing defendants under Section 55, because the court believed the attor- ney fee award was inconsistent with, and thus preempted by, the ADA. (Hubbard I, supra, 554 F.3d at p. 744.) The Hubbard court noted that, while both plaintiffs and defendants may be declared prevailing parties under the ADA, attorney fees may not be awardedto a prevailing defendant under the ADA unless the defendantestablishes that the plaintiff's suit was frivolous. (See Summers v. 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 recoverattorney fees under the ADA].) [FN5] The Hubbard court went on to point out that a violation of the ADA constitutes a violation of the CDPA. (See §§ 54, subd. (c), 54.1, subd. (d), 54.2, subd. (b).) (Hubbard Il, supra, 554 F.3d at p. 745.) Consequently, the proofre- quired to establish a violation of the CDPA and the ADAis identical, and “it is impossible to distinguish the fees necessary to defend against the CDPA claim from those expended in defense of the ADA claim...." (/d. at p. 745.) Accordingly, "a grant of fees on the California cause of action is necessarily a grant of fees as to the ADA claim." (/bid.) Because the ADAbars fees to defendants for nonfrivolousactions, the Hubbard court concluded "preemption principles preclude the imposition of fees on a plaintiff for bringing non-frivolous claims under state law that paral- lel claimsalso filed pursuant to the federal law. [Citation.]" (Ibid) 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 awardin favor ofa prevailing defendant, regard- less of whetherthe plaintiff's claims could be characterized as frivolous. In Molski, the plaintiff filed an action alleg- ing that he encountered barriers to wheelchair access while visiting the defendant winery. After his federal action © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 2010 WL 396355 Page 4 --- Cal.Rptr.3d ----, 2010 WL 396355 (Cal-App. 1 Dist.) (Cite as: 2010 WL 396355 (Cal.App. 1 Dist.)) was dismissed, Molski filed a lawsuit in state court asserting claims for relief under the Unruh Act, the CDPA, Health and Safety Code section 19955, and for injunctive relief under Section 55. (Molski, supra, at p. 789.) The trial court ultimately granted defendant's motion for judgment on the pleadings. (/d. at p. 790, 79 Cal.Rptr.3d 574.) The defendant then movedto recoverattorney fees as the prevailing party under Section 55 for fees incurred in both the federal and state court proceedings. (Molski, supra, at p. 790.) Thetrial court awarded defendantits attorney fees for the state court action only. (/bid.) Plaintiff appealed. *4 On appeal, the appellate court first found Section 55's mandatory language to be unambiguousauthorizing "bila- teral 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 determined that the defendant winery was the "prevailing party" because Molski had obtained none oftherelief he sought. (/d. at p. 791, 79 Cal.Rptr.3d 574.) The court then considered Molski's assertion that, "notwithstanding the plain language of section 55 and the out- comeofthis litigation,” attorney fees should not be assessed against a plaintiff unless the defendant demonstrates that the claims were frivolous. (Molski, supra, 164 Cal.App.4th at p. 791, 79 Cal.Rptr.3d 574.) The Molski court rejected plaintiff's assertion that the Christiansburg standard (434 U.S.at p. 421) should be applied to Section 55 as well. The Molski court noted that Christiansburg involved a case broughtunderTitle VII, not to "accesslitigation 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.) Specifically, the Mo/ski court noted that, unlike a Title VII plaintiff, a plaintiff prosecuting an access claim in California "has several alternatives under California law" and can seek relief under the Unruh Civil Rights Act, the CDPA,orhe or shecanfile an action under Section 55 for injunc- tive relief. (Molski, supra, at pp. 791-792.) The Molski court noted that a plaintiff could seek monetary relief under section 54 of the CDPAorsection 51 of the Unruh Act without being exposed to the risk of an adverse judgment for attorney fees. Because fees are only autho- rized for prevailing plaintiffs, the same is not true when plaintiff seeks relief under Section 55 to enjoin a technical violation of California's access laws. (Molski, supra, 164 Cal.App.4th at 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] something to lose if he ... [did] not carefully assess the merits" of his claim. (/bid.) The court con- cludedthat entitling a prevailing defendant to fees on the samebasis as a prevailing plaintiff under Section 55, with- out 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 consequences ofthis scorchedearth strategy" of electing to pursue every available statutory option available to enforce his right of access under California law, thereby "max- imiz [ing] the litigation expenses of his adversary." (/bid.) In response to the Mo/ski opinion, the Ninth Circuit granted a petition for rehearing in Hubbard 1, supra, 531 F.3d 983 and issued an amended opinion. (Hubbard IH, supra, 554 F.3d 742.) Although the Ninth Circuit reaffirmed its ultimate conclusion that the defendants’ mandatory awardof attorney 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 not to be frivolous. (Hubbard II, supra, at p. 745.) The Hubbard court went on to note that under Section 55 "[f]ees are not discretionary; they are mandatory... Given this language, we have no basis for doubting that the California Supreme Court will agree with Molski as to the meaning of Section 55. [Citation.]" [FN6] (Hub- bard II, supra, at p. 745.) *5 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 p. 789, 79 Cal.Rptr.3d 574.) Thus,it is unsur- prising that the court's opinion in Molski does not contain a word aboutparallel state and federal claims for injunc- tive relief, nor does it address whether federal preemption principles preclude giving effect to the provision in Sec- tion 55, which automatically grants attorney fees to prevailing defendants. © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 2010 WL 396355 Page 5 --- Cal.Rptr.3d ----, 2010 WL 396355 (Cal.App. 1 Dist.) (Cite as: 2010 WL 396355 (Cal.App. 1 Dist.)) Procedurally, the case before us is analogous to Hubbard, where the plaintiff madeparallel claims for injunctive relief under the ADA and Section 55 of the CDPA,and the defendantprevailed on the ADA claim for the same rea- sons he prevails on the CDPA claim. [FN7] Because the instant case is procedurally identical to Hubbard and Molski, supra, 164 Cal.App.4th 786, 79 Cal.Rptr.3d 574 did not directly address this issue, we must decide whether Hubbard's preemption analysis has merit. (Wagner v. Apex Marine Ship ManagementCorp. (2000) 83 Cal.App.4th 1444, 1451, 100 Cal.Rptr.2d 533 ["' “decisions of the lower federal courts, while persuasive, are not binding onus." t ").) Westart with long-settled preemption principles. "Whetherfederal law preempts state law is fundamentally a ques- tion whether Congress has intended such a result. [Citations.] [{] The ‘starting presumption’ is that Congress has not so intended. [Citations.] [{]] Preemption of state law by federal law is foundin 'three circumstances.’ [Citations.] [4] 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 where it regu- lates conduct in a field that Congress intended the Federal Government to occupyexclusively.’ [Citations.] [{] Third, there is so-called ‘conflict preemption’: '[S]tate law is pre-empted to the extent that it actually conflicts with federal law.’ [Citations.] Such conflict must be ‘of substance and not merely trivial or insubstantial.’ [Citation.] It exists whenit is ‘impossible ... to comply with both state and federal requirements’[citations] or when state law ‘standsas an obstacle to the accomplishment and execution of the full purposes and objectives' underlying federal law [cita- tions]." (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 congressionalintentis " ‘clear and manifest.’ " (Spielholz v. Superior Court (2001) 86 Cal-App.4th 1366, 1371-1372, 104 Cal.Rptr.2d 197; Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700.) In considering the different categories of federal preemption, it appears the Hubbard court employed. a conflict preemption analysis. According to Hubbard, a violation of the ADAis a violation of the CDPA (§§ 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 ADAclaim...." (Hubbard II, supra, 554 F.3d at p. 745.) Because the ADAbarsattorney 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. *6 In our view, Hubbard improperly used conflict preemption principles to decide the issue before it, and in apply- ing thoseprinciples, erroneously concluded that the ADA andSection 55 were in conflict. Certainly, there is nothing in the ADA which would support Hubbard's conclusion that in enacting the ADA, Congress intended to impose uniform standards for complementary state law remedies.In fact, the ADA's express preemption clause, whichis not even mentioned in Hubbard, leads to the opposite conclusion. The ADAhasexplicitly defined the extent to which its enactment preempts other laws. The text of that provision provides that "[nJothing in [the ADA]shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal taw orlaw of any State ... that provides greater or equal protection for the rights of individuals with disabilities than are afforded by [the ADA]." (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 may potentially pro- vide the plaintiff with equal or greater relief than he or she maybeentitled to under the ADAalone. (See Dichnerv. Liberty Travel (1st Cir.1998) 141 F.3d 24, 32 ["the ADA anticipates that disabled personswill enjoy the full protec- tion of both federal andstate 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 extent that those state laws are consistent with the accomplishment of the federal purposes stated in the federal law"}. (Originalital- ics.).) © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 2010 WL 396355 Page 6 --- Cal.Rptr.3d ----, 2010 WL 396355 (Cal.App. 1 Dist.) (Cite as: 2010 WL 396355 (Cal.App. 1 Dist.)) 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 plaintiff's rights and remedies while freeing the states to construct a statutory "ceiling." (Wood, supra, 875 FSupp.at p. 663.) In California, the Legislature has proclaimedits intent that California provide more protection to individuals than the ADA: "The law ofthis state in the area of disabilities provides protections independent from those in the federal [ADA].... Although the federal act providesa floorof protection, this state's law has always, even prior to passage ofthe federalact, afforded additional protections." (Gov.Code, § 12926.1, subd.(a).) Indeed,a perusalof the array of remedies available under California Jaw leads quickly to the inescapable conclusion that the protections of state law go far beyond the ADA. Asnoted, the ADA provides only injunctive relief, not money damages. (42 U.S.C. § 12188(a)(2).) In contrast, both the Unruh Act and the CDPA allow plaintiff whois denied equal access or accommodation to sue for money damages. (§§ 52, 54.3.) The importance ofthis expansion of remedies 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 was passed in 1990, the California Disabled Persons Act and the Unruh Civil Rights Act were amended to provide that a violation of the ADA constitutes a violation of their provisions. [Cita- tions.] Thus, a plaintiff whose rights are violated under the ADA may now seek damages underthe California sta- tutes..." (/d. 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 prove intentional discrimination. (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 665, 94 Cal.Rptr.3d 685, 208 P.3d 623.) *7 Furthermore, when money damagesare sought under both the CDPA and the UnruhAct, the attorney fee provi- sions offer a unique departure from the ADA'sbilateral attorney fee provision. Under the CDPA and the Unruh Act, the prevailing plaintiff is entitled to seek recovery of attorney fees, but a prevailing defendant is not similarly en- titled to fees. (See §§ 54.3, 52, subd. (a); Molski, supra, 164 Cal.App.4th at pp. 791-792, 79 Cal.Rptr.3d 574.) As noted, unlike the ADA, which makesattorney fee recovery discretionary (42 U.S.C. § 12205), attomey fees are mandatory under Section 55. Consequently,if the plaintiff proves a single violation of a broad rangeofstatutory requirements, of which a violation of the ADAis merely a subset, the plaintiff is guaranteed an attorney fee award. Far from weakening the rights ofplaintiffs, the legislative history reveals that the California Legislature designed Section 55's guaranteed attorney fee provision to promote, and encourage plaintiffs to seek enforcement of Califor- nia's disability access statutes. [FN8] The fact 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 scope ofthe rights available under the ADA in any fashion. Sec- tion 55, like other provisions of the CDPA and the Unruh Act, provides greater incentives and rights to a person pursuing a disability access claim in California. Therisk that a plaintiff will be liable to a defendantfor attorney fees if a Section 55 injunction claim fails is more than offset by the greater rights afforded plaintiff, including money damages and a guaranteed attorney fee recovery in all instances wherethe plaintiff prevails. The Hubbard court also went astray when it failed to look at the CDPA as a whole in measuring it against the ADA's protection, and instead improperly parsed the law. We have found no legal authority requiring each and every element of a multi-faceted state remedial act to offer equal or greater benefits under all circumstances over a similar federal law in order to avoid a preemption finding. Rather than dissecting the fee provision as did Hubbard. when Section 55's role and purpose within the CDPAis considered, it represents precisely the kind ofstate law au- thorized 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.) © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 2010 WL 396355 Page 7 --- Cal.Rptr.3d ----, 2010 WL 396355 (Cal.App. 1 Dist.) (Cite as: 2010 WL 396355 (Cal.App. 1 Dist.)) Lastly, Hubbard failed to acknowledge the point so persuasively made by Molski that, in California, "a plaintiff con- trols the relative risks, burdens and benefits by selecting among several statutory options," and that by invoking Sec- tion 55, Jankey knew he “ha[d] somethingto 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 injunc- tive relief under both the ADA and Section 55. [f his lawsuit had been successful, he certainly would have claimed a mandatory right to attorney fees under Section 55. Nullifying Section 55 to the extent that it 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.) Moreover, if we accepted Jankey’s argument, it wouldresult in giving plaintiffs in disability discrimination litigation an unfair strategic advantage over defendants, whowill be subject to Section 55's mandatory attorney fee provision if they lose and the ADA's discretionary attor- ney fee provision if they win. This result would potentially inject even greater tactical gamesmanshipinto 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.) [FN9] *8 We therefore reject Jankey's claim, based on HubbardII, supra, 554 F.3d 742,that "[t]he discretionary attorneys’ fee provision of the ADA and the mandatory nature of fees under section 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 was frivolous, unreasonable, or groundless." We conclude no such finding was required under Section 55, nor is the statute preempted by the ADA. Accordingly, the trial court properly awarded Lee,as the prevailing party,his attorney fees in this case. C. Amountof Attorney Fees Award [FN**] Iv. DISPOSITION The judgmentis affirmed. Lee is entitled to his costs and an awardof attorney fees on appeal in an amount to be determinedin the trial court. (See Cal. Rules of Court, rule 8.278(a)(1); Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927, 275 Cal.Rptr. 187, 800 P.2d 543 ["statutes authorizing attorney fee awards in lowertribunals in- clude attorney fees incurred on appeals of decisions from those lowertribunals."].) Weconcur: SEPULVEDAand RIVERA,JJ. 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 HI.C. FNI. All undesignated statutory references are to the Civil Code. Section 55 also provides that "[a]ny per- son whois aggrieved orpotentially aggrieved by a violation of Section 54 or 54.1 of this code, Chapter 7 (commencing with Section 4450) of Division 5 of Title 1 of the Government Code, or Part 5.5 (commenc- ing with Section 19955) of Division 13 of the Health and Safety Code maybring an action to enjoin the vi- olation." FN2. DREESis described in Jankey’s pleadings as a nonprofit organization "that works with persons with disabilities to empower them to be independent in American society." FN3. For simplicity's sake, we will hereafter use the single term "frivolous" to denote claims that are "fri- volous, unreasonable or groundless." © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 2010 WL 396355 Page 8 --- Cal.Rptr.3d ----, 2010 WL 396355 (Cal.App.1 Dist.) (Cite as: 2010 WL 396355 (Cal.App.1 Dist.)) FN4. The relevant language regarding preemption in Hubbard I, supra, 531 F.3d 983, and Hubbard Il, su- pra, 554 F.3d 742, is identical. Therefore, for the sake of convenience, our references to Hubbard are to Hubbard II unless otherwise noted. FNS. In prescribing the appropriate criteria for discretionary decisions whether to award attorney fees to a prevailing defendant under the ADA,the Ninth Circuit in Summers applied the test established for Title VII employment discrimination cases in Christiansburg, supra, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648. That is, where the prevailing party in an ADA action is the defendant, the court may award fees only if the plaintiff's action is found to be "frivolous, unreasonable, or without foundation.” (/d. at p. 421; see, Sum- mers, supra, 127 F3d at p. 1154.) No argument is madein this appeal that Summers was incorrect by using the Christiansburg standard in an ADAcontext. FN6. The California Supreme Court denied review of the Molski decision on October 16, 2008 (S165946). FN7. However, we point out one difference in Hubbard and the instant case. While the prevailing defen- dants in Hubbard movedfor attorney 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. FN8. In working to pass Assembly Bill 2471 during the 1973-1974 legislative session, which became Sec- tion 55, a proponentof the bill wrote: "The disabled in the State need the courts to back them upintheir ef- forts to movefreely in their community. However, attorneys and courts cost money and according to Fed- eral 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 with- outthe 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." (Saralea Altman, Legis. Chairwoman, Cal. Coordinating Council, letter to Assemblyman Charles Warren, May 30, 1973.) FN9. This concern is hardly speculative. The similarity between the complaints filed in Molski and thein- stant 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 behalfofplaintiffs invaria- bly combine 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 a// 223 of the Frankovich complaints it examined combined roughly the same causes ofac- tion. (/bid.) Moreover, as the Molski opinion noted, Frankovich is 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 sanction is sufficiently tailored to combat the Francovich Group's practice of repetitive 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.) FN** See footnote *, ante. --- Cal.Rptr.3d ----, 2010 WL 396355 (Cal.App. 1 Dist.) END OF DOCUMENT © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Attachment No. 2 In the Matter ofThomas Edward Frankovich, Case No. 04-O-15890 (State Bar Court June 25, 2009) -30- FILED JUNE 25, 2009 STATE BAR COURT OF CALIFORNIA HEARING DEPARTMENT - SAN FRANCISCO In the Matter of Case No.: 04-0-15890-PEM; 06-J-13032 (Cons.) THOMAS EDWARD FRANKOVICH MemberNo. 74414 ) ) ) ) DECISION ) ) A Memberofthe State Bar. ) I. Introduction The aggressive pursuit oflitigation involving violations of the Americans with Disabilities Act (ADA) has becomea highly contested area of law. Attorneys, such as respondent Thomas Edward Frankovich, who seek out and profit from violations of the ADA are at the center of this controversy. Some see these attorneys as championsofthe disabled, while others view them as unscrupulouspariahs. The flamesofthis controversy have spread beyond the realm of public 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 misconductincludes schemingto extort settlements, seeking to mislead a judge, and committing acts of moral turpitude. Respondentis also charged with an unrelated allegation that he committed misconductin a foreign jurisdiction by improperly communicating with a represented party. Based on the evidence presentedattrial, C. Respondent’s ADA Practice - Case No. 04-O-15890 I. Findings ofFact Background The ADA, 42 U.S.C. §12101 et seq., was signed into 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 Iof the ADA, 42 U.S.C. §12181 et seq., requires the removalof structural barriers in existing public accommodations “where such removal is 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 III, 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. §12188(b). While the Attorney General may seek monetary damageson behalf of an aggrieved party, the only remedies available underthe private right of action are injunctive relief and the 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)) and the California Disabled Persons Act (Cal. Civ. Code §54(c)) plaintiffs can sue in federal court for injunctive relief under the ADA,and tack on state law claims for money damages underthe Unruh Act and the California Disabled Persons Act. 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 werefiled on behalf of Jarek Molski,” and 40 were filed on behalf of either Les Jankey°or Patrick Connally.’ Disability Rights Enforcement Education Services (DREES) wasa co- plaintiff tn all of the lawsuits. Molski Foundto be a Vexatious Litigant in the Central District Court ofCalifornia In or about 2004, respondentfiled an ADAaction on behalf of Mr. Molski entitled Molskiv. Evergreen Dynasty Corporation d/b/a Mandarin Touch Restaurant, et al., United States District Court, Central District ofCalifornia, Case No. CV 04-0450 ER. Defendant Evergreen Dynasty, doing business as Mandarin Touch Restaurant, sought an order declaring Mr. Molski a vexatiouslitigant and requiring him to obtain leave ofcourt beforefiling additional ADA suits. 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. UnitedStates Lines, Inc, 792 F.2d 19, 24 (2d Cir. 1986). Thesefactors include: (1) the litigant’s history oflitigation, in particular whetherit entailed vexatious, harassing or duplicative suits; (2) the litigant’s motive in pursuingthelitigation, for example, whetherthelitigant had a good faith expectation ofprevailing; (3) whetherthe litigant was represented by counsel; (4) whetherthelitigant caused unnecessary expenseto the parties or placed needless burden on the courts; and (5) whether other sanctions would be adequate to protect the courts and otherparties. Judge Rafeedie found that Mr. Molski had filed approximately 400 lawsuits alleging violations of ADAinthe federal courts since 1998. Manyofthese were nearly identicalin termsofthefacts alleged, the claims presented, and the damages requested. Judge Rafeedie foundit very unlikely that Mr. Molski suffered the sameinjuries, often multiple times in one day. ? Mr. Molskiresides in Woodland Hills, California, and is an individual whois paralyzed from the chest down and uses a wheelchair for mobility. * Mr.Jankey is an individual whorelies on a wheelchair for mobility. 4 Mr. Connally is a disabled individual and president of Disability Rights Enforcement Education Services. -4- Judge Rafeedie further found that Mr. Molski’s primary motivation forfiling ADA lawsuits was to extract a cash settlement. This finding was based onthefact 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 ofa court orderor failure 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 was notentitled to the protection generally accordedpro se litigants. The court further reasoned that since Mr. Molskifiled countless numbers of vexatious 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 ADAinthe United States District Court for the Central District ofCalifornia. MolskiAided by Respondent In his December9, 2004 order, Judge Rafeedie noted that Mr. Molski had notacted alone. Judge Rafeedie acknowledged that Mr. Molski was aided and abetted by his attorneys, often respondent’s law offices, and his corporate co-plaintiffDREES. Forthat reason, Judge Rafeedie issued an order to show causeagainst respondent’slaw office to show whythey should notbe required to obtain leave ofcourt to file any future lawsuits alleging violations ofthe ADA. On March8, 2005, Judge Rafeedie issued a memorandum decision ordering respondentto obtain leave ofcourt before filing any new complaints alleging violationsofTitle III ofthe ADA in the United States District Court for the Central District ofCalifornia. This decision was based onthe following factual findings: (1) respondent’s law firm filed at least 223 lawsuits in the Northern and Central -5- Districts ofCalifornia in 2004, one-third ofwhich were against ethnic restaurants; (2) because ofthe similarity and multitude ofMr. Molski’s injuries, many ofhis claimed physicalinjuries were contrived; (3) the only reason respondent madea claim for physical injury in every complaint was to 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. The basis for Judge Rafeedie’s finding that respondent unethically pursued cash settlements was the letter respondent sent defendants with each complaint. Judge Rafeedie found thatthis letter violated the Model CodeofProfessional Responsibility in that it: (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 respondentwaited a year beforefiling suit was to intimidate small businesses by increasing the statutory damages claim. Molski Foundnot to 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 Molskiet al v. Rapazzini Winery, brought a motion to declare Mr. Molski a vexatiouslitigant in the Northern District Court ofCalifornia. However, on April 6, 2005, the HonorablePatricia V. Trumbull declined to follow Judge Rafeedie’s ruling. After examining the contents of Mr. Molski’s pleadings, Judge Trumbull found that his ADA claims werenotfrivolous, and that Mr. Molski provided reasonable explanationsfor 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 and failure to take cases through trial evidenced lack ofa good faith expectation ofprevailing on the merits. Judge Trumbull instead -6- concluded that a high settlementrate is merely a fact ofmodern litigation. Judge Trumbull further concluded that Mr. Molski did not cause needless expense to the federal court system because he has a right to seek redress in federal court, even though he also seeks remedies under pendantstate claims that are not available under federallaw. Respondent’s Appeal ofthe Central District Court’s Findings Respondent appealed and the Ninth Circuit Court ofAppeal reviewed Judge Rafeedie’s orders for abuse ofdiscretion.” On August 31, 2007, the Ninth Circuit Court ofAppealissued 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 Kozinski argued that Judge Rafeedie had no basis to find that Mr. Molski made meritless claims or lied about his injuries. In his scathing assessment of Judge 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 happened instead is this: The judge spentthefirst half of the hearing berating Molski and his lawyers, in pretty much the sametermsashis subsequent order-which suggests that his views were cast in cementby the time of the “hearing.” [Citations.] After the judge was done, Molski’s counsel was allowed to address the court, [Citation], but no witnessestestified, no evidence waspresented, there was no cross-examination and there were no evidentiary rulings-in short, there was notrial. Molski, whose veracity the district court impugned, was not even present. How then did the judge manage to makefactual findings, and how does this panelaffirm those findings on appeal? It’s bad enoughthat the panel relies on its own armchair wisdom aboutplaintiff's supposed ability to avoid repetitive injuries, [Citation], rather than looking to whetherthe record supportsthe findings of the district court. Worsestill is that there is no record the panel could consult if > Abuseofdiscretion can be found when district court bases its decision on an incorrect view of the law ora clearly erroneousfinding of fact. (United States v. Finley, 301 F.3d 1000, 1007 9" Cir.2002); Does 1-5 v. Chandler, 83 F.3d 1150, 1152 cg" Cir.1996).) -7- it were of a mind to do so. There is no statementat all from Molski himself, as the complaint is not verified. The panel does notfind the absence of an evidentiary record remarkable, perhaps laboring 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 making findings 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 obstacle to affirming a district court’s factual finding. The bottom lineis this: The district court made, and the panelaffirms, a finding that Molskiis a liar and a bit of a thief, without any evidenceatall. The district court and the panel also manageto find that plaintiffjust couldn’t have suffered the injuries he alleges, without the benefit of an expert or any other proof. But does the district court have authority to make findingsthat severely curtail access to the federal court, not only for plaintiff but also for his lawyers and their other clients (present and future), without swearing in a single witness? Without giving notice and an opportunity to present evidence? Without cross- examination? Without any of 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 been defined as “an act of baseness, vileness or depravity in the private and social duties which a man owesto his fellowmen, or to society in general .... [Citations.] Moralturpitude 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.” (Jn re Higbie (1972) 6 Cal.3d 562, 569-570.) TheState Bar alleges that respondent engaged in a schemeto extort by: (1) filing claims that contained false and contrived claims of bodily injury; (2) filing numerous complaints alleging plaintiffs had been injured numeroustimes in a single day; (3) making misleading statements to defendants abouthiring 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 any claims; and (4) not notifying the defendants ofthe claim until after significant time had passed so that a large daily damage total could accumulate. The State Bar has the burden ofproving that respondentis culpable by clear and convincing evidence. The State 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 made substantive findings that respondent engaged in a scheme to 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 innuendothan 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 respondenthasreceived in the federal court system. Facing a similar motion, Judge Trumbull of the Northern District declined to follow Judge Rafeedie’s lead onthis issue. Further, there is no indication in the record that any other court has found respondentorhis client to be a vexatiouslitigant. This is despite the fact that respondenthas filed 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 abuse of discretion. Based on the strenuousdissenting opinions voiced by ChiefJudge Kozinski, and others, the Ninth Circuit Court’s affirmation washardly a ringing endorsement. The court also took into consideration the testimony of attorney James Link. Mr. Link’s practice is made upoflitigation and appellate work. In the last four years, he’s worked on 80 cases where ADA wasan issue. Of these 80 ADA cases, Mr. Link never represented plaintiff. Mr. Link opinioned that 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 whetherthe letter respondent sent defendants with each complaint supports the allegation that he was engaged in a schemeto defraud. While Judge Rafeedie found that this letter violated the Model Code of Professional Responsibility, the State Bar did not allege, and the court does not find, that it 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 scheme to extort. Accordingly, the court finds that the State Bar did not prove, by clear and convincing evidence, that respondent committed moral turpitude by engaging in a schemeto 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 mislead the judge or any judicial officer by an artifice or false statement offact or law. The State Bar alleges that by filing complaints containing allegations of bodily injury whenthere were no facts to support such a claim, respondent soughtto mislead the judge or judicial officer by an artifice or false statement of fact or law. -10- The State Barfailed to establish, by clear and convincing evidence, their underlying premise that no facts supported respondent’s allegationsof his 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) The State 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 I. Findings ofFact Professional Misconduct in a Foreign Jurisdiction Section 6049.1, subdivision (a) provides, in pertinent part, that a certified copyofa final order madeby any court of record ofany state of the United States, determining that a member ofthe California State Bar committed professional misconductin that jurisdiction is conclusive evidence that the memberis culpable of professional 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 undera lower evidentiary standard. (Cal. § 6049.1, -ll- CERTIFICATE OF SERVICE I, the undersigned, certify that I am a citizen of the United States and a resident of Marin County, California. I am over the age of eighteen years and not a party to the within action; I am employed in the office of a memberof the 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 date this affidavit is signed below, a true copy of the PETITION FOR REVIEW, was placed by me in 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 March 9t#, 2010.