JANKEY v. LEE

Appellant, Les Jankey, Reply to Answer to Petition for Review

Cal.April 22, 2010

Supreme Court Case No. S180890 Supreme Court of California LES JANKEY Plaintiff-Petitioner Vv. SONG KOO LEE Defendant-Respondent Petition after a Decision by the Court of Appeai, First Appellate District, Division Four Ruvolo, P. J., Sepulveda and Rivera, JJ Case No, A123006 REPLY IN SUPPORT OF REVIEW Scottlynn J Hubbard IV, SBN 212970 LAW OFFICES OF LYNN HUBBARD 12 Williamsburg Lane Chico, California 95926 (530) 895-3252 TABLE OF CONTENTS Table of Authorities ..0.......cecssssssssesesssssssssussssssasssesssssusssssasssssucsseseussseeceessecescececcecee, i Introduction ........cccsccsessesecesssesssssescssssescssesssssusessusssssssessusessasesessisssassessestecceseeececececcece, 1 REPLY oe ceccscesescsessssessssessessessssssscsessssssssesasessecsumvessussssabsansssssassesseasaveretseesecesteeeeseecececcce 2 I. Although respondentclaims that the trial court found petitioner’s Section 55 claim “frivolous,” neither the trial court order nor the appellate court affirmanceincludedsuch a finding — as respondent himselfisforced to concede on the second to lastpage ofhis Answer........... 2 II. | Respondent’s accusation that petitioneris not resolving an issue of broad public concern, which affects a significant number ofpeople, would be more believable if the appellate court had notignoredfive United States SupremeCourt decisions, an identical analysis from the Ninth Circuit, and the expressed intent of the California Legislature............. 3 III. Respondent’s statementthat review is not required to secure uniformity of decision is not only untrue, but misrepresents the scope ofissues and cases affected by the underlying decision. .0......ccccccsceccsscccsssecesecsescoceceeecececccs. 5 COMCIUSION 0... sscsessseessessessesssessssessesecssscsssssusssusscsusesesusatsssssavestisesesssesesseseesssscescececcececc 7 Certificate ofWord Count .........cccccccccessesscsssssssssssessesssessssssesssssasarssresssestseecesceseeseesee. 8 Attachment No.3 (Excerpts of Legislative History for Cal. Civil Code § 55) we.9 Certificate Of Service .....eeccccssssscssssecsssssssessussssscassasssuessuusssssseasavstestceeeceesseceecececcece. 10 TABLE OF AUTHORITIES Cases Hines v. Davidowitz, 312 U.S. 52 (1941).eescesssscsesessesssssssssusscsessussstsssssasesavsssarsussuusesscesecescecescesseesce 4 Hubbard v. SoBreck, 554 F.3d 742 (9th Cir. 2009) w...ccceccccsccsscsessessssessescssscesssscsssssssecsececsescecsescc.4,6 Jankey v. SongKoo Lee, 181 Cal.App.4th 1173 (Feb. 5, 2010) ......ecececsssssssecsssessecececseseseseseeececececececeen 2, 3,4 Munson v. Del Taco, Inc., 46 Cal.4th 661 (Sune 11, 2009)...ceccseccsssssesscscscecesssssssessresveececeseeseseeesecee. 6 Statutes California Civil Code § 55 ....c.ccccccccccssessssssscscssscscssssssescecsesevesereeeceveesesececcce. 1, 2, 3,7 Miscellaneous Molski v. Arciero Wine Group, Petition for Review, Case No. $165946, 2008 WL 6137582 (Aug.15,2008) o.ccccccccscsesssecsesccssssecseseee 6 ~ii- INTRODUCTION How many United States Supreme Court decisions does the court of appeals have to ignore before the respondent considers it an institutional failing? How many poverty-stricken quadriplegics need to pay (mandatory) six-figure attorney fee awards before the respondentconsidersthe issue significant? How many Ninth Circuit opinions must berejected before the respondent admits that “uniformity” does not exist on an importantissue? In his original petition, Jankey pointed out — correctly it would seem, since respondent was unable to identify any faults in his legal analysis or factual representations — that the court of appeals in this matter intentionally created a split between the California state and federal courts by ignoring: (1) sixty-nine years of United States Supreme Court precedenton conflict preemption; (2) Congressional intent regarding preemption under the ADA;(3) thirty-years of state and federal court precedent on fee awards; (4) the legislative history of Section 55, and theintent of the California legislature; (5) basic rules of statutory construction involving statutes thatsit in pari materia; and (6) the almost universal rejection of the vexatious litigant order issued against Jankey’s trial counsel, Thomas Frankovich. Unable to deny these truths, respondentfalls back on questionable factual representations, head-in-the-sand legal arguments, and general platitudes about the standards governing California Supreme Court -|- petitions, in an effort to dissuade the court from granting review. As petitioner explains below, the respondent’s arguments are without merit and should be rejected. REPLY I. Although respondent claims that the trial court found petitioner’s Section 55 claim “frivolous,” neither the trial court order nor the appellate court affirmance included such a finding — as respondent himselfisforced to concede on the secondto lastpage ofhis Answer. First, respondent argues that the petition should be rejected because independent grounds support the award offees — i.e., the trial court found Jankey’s case frivolous. Answer, p. 3 (citing fee award). In fact, no such finding was ever madeby the trial court, as respondent is forced to concede on the secondto last page of the Answer. J/d., p. J] (“the trial court did not expressly use the term frivolous in describing the problematic nature of petitioner’s claims and plaintiff DREES’slack of standing from the inception ofthe action ...””), Accord, Jankey v. Song Koo Lee, 181 Cal.App.4th 1173, 1179 (Feb. 5, 2010) (“The court made no finding on whether Jankey's lawsuit could be characterized as frivolous.”). Because the trial court never held that Jankey’s claims were frivolous, it is inappropriate for respondent to now argue that the petition should be rejected based on non-existent factualfindings. II. Respondent’s accusation that petitioner is not resolving an issue of broad public concern, which affects a significant number of people, would be morebelievable if the appellate court had not ignored five United States Supreme Courtdecisions, an identical analysis from the Ninth Circuit, and the expressed intent of the California Legislature. Second, respondent argues that the petition should be rejected because “petitioner is seeking correctional review from this Court, an improper and insufficient reason for granting review ... [and] has not demonstrated (muchless addressed) how the Court of Appeal’s ruling will affect a significant number of people statewide or require resolution of an issue of broad public concern.” Answer, p. 9. Respondent then accusespetitioner of seeking to vindicate his narrow personalinterest in this case by avoiding to pay attorney fees. Ibid. Atthe risk of being accused of giving short-shrift to this argument, and with all due respect to respondent: Balderdash. The court of appeals had to ignore no fewer thanfive United States Supreme Court decisions, the identical analysis of the Ninth Circuit on the sameissue, the documentedhistory of Section 55 (a copy ofwhichis attached to this reply), the intent of the California Legislature, the plain language of ADA preemption, and the rules ofstatutory construction to arrive at what appears to be a result driven analysis — i.e., ADA litigation is bad, Frankovich is bad, his clients are bad, and they must be punished. Song Koo Lee, 181 Cal.App.4th at 1184-1187, and n.9: In so doing, the court of appeals introduced -3- chaos in an otherwise orderly area of law, and rejected over sixty years of United States Supreme Court precedent. Instead of determining whether a specific state law conflicts with a specific federal law underthe circumstances of that particular case (the test established by the United States Supreme Court), California courts — under the Song Koo Lee analysis — are now permitted to take a more holistic view and determine whether federal law conflicts that state law “as a whole.” Compare, Hines v. Davidowitz, 312 U.S. 52, 67 (1941)(the primary function of a court is to determine “whether, under the circumstancesofthis particular case, [California] law standsas an obstacle to the accomplishment and execution ofthefull purposes and objectives of Congress.”) (italics added), with Song Koo Lee, 181 Cal. App. 4th at 1186, citing Hubbard v. SoBreck, LLC, 554 F.3d 742 (9th Cir. 2009) (Ninth Circuit “went astray when it failed to look at the CDPA as a whole in measuring it against the ADA'sprotection, and instead improperly parsed the law.”). No longer will California courts be bound by the circumstances ofa particular case; instead, they can consider the infinite number of hypothetical circumstances in which a party would beentitled to greater protections understate law, and thereby side-step conflict preemption. Contrary to respondent’s claim otherwise, the institutional harm caused by the Song Koo Lee opinion is both significant and important, and the confusion that opinion created needs to be resolved immediately. -4. Ill. Respondent’s statement that review is not required to secure uniformity of decision is not only untrue but misrepresents the scope of issues and cases affected by the underlying decision. Finally, respondent argues that the petition should be rejected because “review is not required to secure uniformity of decision among courts in California because there is no conflict among the appellate courts on the issue presented in [Jankey’s] petition for review.” Answer, pp. 6-8. This statement is not only patently untrue, but misrepresents the scope of issues and cases affected by the underlying decision. Simplyput, this case does not involve a conflict between the Song Koo Lee and Arciero Wine decisions, as respondent suggests. Rather, this case involvesa conflict between Song Koo Lee and every other published decision in existence (except for Arciero Wine). As evincedin his original petition, the court of appeals departed from well known principles of conflict preemption, (Petition, pp. 6-10), ADA preemption, (Petition, pp. 11-13), fee shifting awards, (Petition, pp. 13-16), and statutory construction, (Petition, pp. 20-22); and, in the process, ignored a host ofpublished California opinions establishing those same principles, the string citation for which shall not be repeat here. Unable to deny that departure (or excuse the wholesale abandonment ofthese principles), respondent instead focuses on the one case that ostensibly supportsits position: Arciero Wine. But the Arciero Wineanalysisis itself not without flaws and a poor -5- source of authority for opposingreview.’ Furthermore, brushing aside these other California court decisions (without so much as a footnote) is not only inappropriate but a disservice to this court, since ignoring the problem will neither eliminate the conflict nor correct the institutional harm it caused. Nor is respondent serving the court well by intentionally overlooking federal opinions (e.g., Hubbard v. SoBreck) in order to represent that there is “uniformity of decision.” Answer, pp. 6-9. Respondent fails to cite — and petitioner could not find - any authority discounting federal courts opinions when determining whether there is uniformity of decision. In fact, the opposite appearstrue, as this court routinely grants review to ensure uniformity between California state and federal courts. See, e.g., Munson v. Del Taco, Inc., 46 Cal4th 661 (June 11, 2009) (California Supreme Court resolves dispute of law between state and federal courts.). Boiled to its essence, while petitioner can understand why respondent omitted these conflicting state and federal opinions, ignoring them will not make review of this matter any less compelling or necessary. ' As Jankey’s counsel explained in his original petition for review. See, eg., Molski v. Arciero Wine Group., Petition for Review, Case No. S165946, 2008 WL 6137582 (Aug. 15, 2008). Accord, SoBreck, LLC, 554 F.3d 742. -6- CONCLUSION _ The best evidence supporting reviewis the Answering brief. Unable to rebut the factual representations and legal analysis contained in his original petition, Lee’s response consisted of little more than general platitudes, unsubstantiated factual representations, and non-existent legal arguments. In other words ... a thundering silence. Given respondents’ inability to present a viable basis for rejecting his petition, Jankey hopes the court will take this opportunity to (1) resolve what is now a full-blownsplit between California state and federal courts, and (2) overturn the Song Koo Lee opinion with an authoritative and definitive interpretation that brings Section 55 in line with (a) the other fee-shifting statutes and (b) the intent of the California legislature. Respectfully submitted this seventeenth day of April 2010. Scottlynn J Hubbard IV Law Offices ofLynn Hubbard 12 Williamsburg Lane Chico, Califorgia 95926 Attorney forffetitioner Mottlynn J Hubbard IV ttorney for Petitioner CERTIFICATE OF WORD COUNT This Petition contains 1,513 wordsfrom the cover page to signature block. Respectfully submitted this seventeenth day ofApril 2010. Scottlynn J Hubbard IV Law Offices of Lynn Hubbard 12 Williamsburg Lane Chico, California 95926 Attorney for Pdofitioner Attachment No.3 Excerpts ofLegislative Historyfor Section 55 ofthe California Civil Code Assembly Bill No. 1547 (proposed) ...0..0.....cccccssssecssssssssessessssssssesesesececeseses 3-A Assembly Bill No. 1547, Bill Analysis, March 4, 1972 ...c.cccccccccccccccceseses.. 3-B Assembly Bill No. 2471, Bill Description, Assembly Committee on Judiciary, Charles Warren - Chairman, Bill Digest, August 14, 1973..3-C AssemblyBill No. 2471, Enrolled Bill Report, Enforcement of Architectural Barrier Laws, Analysis, September 1974 ....ccccccccccccossecee 3-D Letter to Assemblyman Charles Warren from Saralea Altman, Legislative Chairwoman,California Coordinating Council, May30, 1973............. 3-E CALIFORNIA LEGISLATURE—1972 REGULAR SESSION ASSEMBLY BILL No. 1547 Introduced by Assemblyman Sieroty March 15, 1972 REFERRED TO COMMITTEEON JUDICIARY An act to add Section 55 to the Civil Code, relating to disabled persons. LEGISLATIVE COUNSELS DIGEST AB 1547, as introduced, Sieroty (Jud.). Disabled persons. Provides procedurefor obtaining injunction against further construction or operation of a public or private facility not conformingto building requirements with respectto blind or disabled persons. Vote—Majority; Appropriation—No; Fiscal Committee—No. The people of the State of California do enactas follows: SECTION 1. Section 55 is added to the Civil Code,to read: 55. (a) Notwithstanding anyother provision of law, a blind or other physically disabled person maygive notice to the ownerof anyprivate facility, or, in the case ofa publicfacility, to the person designated in Section 4453 of the Government Codeor in Section 19958 of the Health and Safety Code,that such facility contains unauthorized deviations from the requirements of Sections 54 and 54.1, Section 4451 of the Government Code, or Section 19955 or 19955.5 of the Health and Safety Code. . 12 (b) If such deviation is not rectified within 90 days of W O O N O D O R W N = — j e n o ) SA ove som« AB 1547 —2— — C O C S N A A R O N = such notice, a blind or other physically disabled person may bring an action for an injunction against further construction or operation of the nonconformingfacility until the deviation is corrected. Such blind or physically disabled person shall not be required to post a bond pursuant to Section 529 of the Code of Civil Procedure, and, if successful in obtaining an injunction, shall be awarded reasonable attorney’s fees and court costs, irregardless of whetherthefacility in question is public or private in character. 3-A OMT 21725 62 BILLZANALYSIS |‘DEFARTIXENT ne ees: i co AUTHOR ° i GKL NUMBER(A __flENERAL SERVICES 4 ~___JASSEMBLYMAN. SIEROTY JAB A547SPONSORED BY : . RELATED GILLS ~ 7 “ONE 'LASE AMENOED, | UNKNOWN __ UNKNOWN, . ORIGINAL,BILL SUMMARY_ Specific Findings: e Assembly Bil] No. 1547 provides procedures forobtaininganinjunction against further construction or operation of aprivate or public facility not conforming to butiding require-"i.ments in respect to the Physically Handicapped: Law. oS Assembly Bill No. 1547 would allow a blindor physically dis~abled person to obtain an injunction against construction oroperation of a facility without being required to post a bondfor the purposes of reimbursing the owner for monieslost as’a result of such action, The bill would also award reascnableattorney fees and court costs to the person initiating the.action. We are concerned that the bill could result in unreasonableactions being taken against the ‘owner of a building or facility.“A handicapped person could initiate action against the owner of@ building or facility without posting a bond to protect theowneragainst excessive losses of revenue. If enactedAssembly Bill No. 1547 could result in unreasonable actionsbeing initiated, . ; ‘Financial Analysis; The bill would have no fiscal impact upon the Departmentof General Services {2 indeteruinete: however, if monwberOf Fogel sections were filed aguinat the ‘state 1t sould be substantial, (Farge: $/4/72.) . INFORMAL POSTTION: Legislative Analyst July 12, 1972 ANALYSIS OF ASSEMBLY BILL NO. 1547 (Sieroty) As Amended in Assembly, June 19, 1972 1972 Session Fiscal Effect: Cost: None, Revenue: None. Analysis: This bill would allow blind or physically disabledpersons to obtain an injunction against further’constructionor operation of a public or private facility if the facilitycontains unauthorized deviations from statutes regulatingbuilding accessibili ty for the physically handicapped and if90 days have elapsed from the time said person gave writtennotice to the owner informing him of the deviations. A bondwill not be required for filing ofthe injunction if the courtfinds evidence of nonconformity to be clear and convincing.if the injunction is obtained, the plaintiff is to be awardedall reasonable attorney's fees and court costs. This procedure is to apply only to future construction_or alterations of facilities, 62 *( 6L /9 “U WY ) ZE SL SY - ™ a p s ASSEMBLY COMMITTEE ON JUDICIARY CHARLES WARREN, CHAIRMAN BILL DIGEST Bill: AB 2471 Hearing Date: 8/14/73 AUTHOR: Sieroty SUBJECT: Physically Handicapped; Access to Buildings BACKGROUND: Under existing law, all buildings and facilities built since 1968 using state or local funds, and all gas stations, office buildings, shopping centers, hospitals, convalescent homes, hotels, motels, restaurants and other places of amusement built since 1970, must insure reasonable access tothe physically handicapped. All such buildings and facilitiesbuilt before the applicable dates must comply with the necessarystandards whenever they alter, repair or add to the building or facility. Enforcement of this law presently rests with the Director of General Services if state funds were used. It rests- withthe building department of the applicable local government iflocal funds were used. Unauthorized deviations must be recti-fied within 90 days after discovery. BILL DESCRIPTION: This bill provides that a physically disabled person cangive written notice of a deviation to the owner of a privatefacility, or to the person responsible for enforcing the lawif the deviation is in a public facility. If the deviationis not corrected within 90 days, the physically disabled personcan then seek an injunction against further construction oroperation of the nonconforming facility until the deviation iscorrected. , The bill also provides that if the person is successful inobtaining an injunction the court can award him reasonable attorney's fees and court costs. CONTIN}IRO" AB 2471 ~- page 2 SUPPORT: National Rehabilitation Association. OPPOSITION: North Coast Builders Exchange. 3-C we bees .!/ das. jGMENROLLED BILL REPORT) se-. * ByNBReee *a ° eh Pan » AGENCT — Bit NUMSER\Realth and Welfare Agency ~ AB 2471 (8/8/74)° DEPARMili, BOARDO8 COMMISSION AUTHORDepartment of Rehabilitation Sieroty SUBJECT: - Enforcement of Architectural Barrier Laws | SPONSORSHIP: Assemblyman Sieroty _ RELATED BILLS;.,. AB 1547 (Steroty), 1972 AISTORY: Assemblyman Sicroty. carried AB 1547 (1972) which would have permitted a blind*Ehysically handicapped person to brir= action for an injunction to stop construction or operation of a building or facility which did not meet the architectural barrier laws without being required to post a bend. - SY ANALYSIS: Thigs~bill is mich more moderatespecifying that an injunction may be: brought ‘and specifies that the prevailing party will be entitled to reasonable attorney fees. Under AB 2471, the plaintif£ would have to post:bond in order to bring the action. Starting in 1968, several laws requiring buildings and other facilities be accessible to the physically handicapped have been passed. Enforcement of theee architectural barrier laws have been very weak. Physically handicapped persons do not generally have income or resources necessary to pay for attorney fees when it is necessary to take flagrant violators to court. This bill will make clear that the prevailing party will be entitled to attorney's fees. FISCAL IMPACT: . No impact on atate general funds. Other fiscal impact will depend upon awards made by the court. FINANCE'S POSITION: Neutral RECOMMENDATION:Sign the bill oyDEPARTMENT DIRECTOR DATE AGENCY SECRETARY Pe]Cb C Aut :lan C Rim| Pra