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Cohen v. City of Culver City

Feb 27, 2013
Case No. CV 12-00156-RGK (PJWx) (C.D. Cal. Feb. 27, 2013)


Case No. CV 12-00156-RGK (PJWx)




Present: The Honorable R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE Sharon L. Williams (Not Present)
Deputy Clerk Not Reported
Court Reporter / Recorder N/A
Tape No. Attorneys Present for Plaintiffs: Not Present Attorneys Present for Defendants: Not Present Proceedings: (IN CHAMBERS) Order Re: Defendants' Motion for Attorney's Fees (DE 156)


On January 6, 2012, Plaintiff William C. Cohen ("Plaintiff") instituted the current Action against City of Culver City ("Culver City"), Exchange Club of Culver City ("ECCC"), Culver City Downtown Business Association, Drivelines, Inc., and the Culver Hotel. Plaintiff's claims arose from personal injuries that he sustained when he tripped while attempting to step onto a curb located in the City of Culver City. Plaintiff dismissed the latter three defendants from this Action on April 4, 2012 and July 12, 2012. The remaining Defendants, Culver City and ECCC (collectively "Defendants"), filed separate motions for summary judgment on July 30, 2012, as to all of Plaintiff's causes of action. The Court granted Defendants' motions and subsequently entered judgment in their favor. Based on the Court's entry of judgment, Defendants filed the present Motion for Attorney's Fees on January 22, 2012, seeking a fee award of $91,223.50.

As discussed below, the Court DENIES Defendants' Motion.


Plaintiff is an 87-year-old resident of the State of Florida who was visiting California between May 6-9, 2011, for a wedding. He injured himself on May 7, 2011, while walking back to the Culver Hotel, where he was staying, after attending a car show in Culver City.

Defendant Culver City is a municipal corporation and a charter city in California. Defendant ECCC is a corporation located in Los Angeles County.

On January 6, 2012, Plaintiff filed this Action against defendants, alleging violations of Titles II and III of the Americans with Disabilities Act ("ADA"); the California Disabled Persons Act ("CDPA"), California Civil Code §§ 54, 54.1, 54.3; California's Unruh Civil Rights Act, California Civil Code § 51 et seq.; and California Government Code §§ 830, 835. Plaintiff dismissed Defendants Culver City Downtown Business Association and Culver Hotel on April 4, 2012, and the Court granted the Parties' stipulation to dismiss Defendant Drivelines, Inc. on July 12, 2012. Thus, Defendant Culver City and Defendant ECCC are the only remaining defendants in this Action.

On July 30, 2012, both Defendants filed separate motions for summary judgment as to Plaintiff's entire Complaint. The Court granted Defendants' motions on October 26, 2012, and Plaintiff subsequently filed a motion for reconsideration on the issue of whether Plaintiff was excluded from the sidewalk, car show, and his hotel even though alternative access routes were available. The Court denied Plaintiff's motion on December 17, 2012, and on December 28, 2012, the Court entered judgment in Defendants' favor and awarded costs. Plaintiff filed a second motion for reconsideration on January 7, 2013, this time on the issue of whether Plaintiff was excluded from the sidewalk even though alternative access routes were available. On January 11, 2013, while the second motion for reconsideration was pending, Plaintiff appealed to the Ninth Circuit this Court's order granting Defendants' motions for summary judgment. On January 22, 2013, Defendants filed the current Motion for Attorneys Fees. Plaintiff filed his Opposition to the Motion on February 4, 2013; Defendants filed a belated Reply on February 13, 2013.


The attorney fee provision for the ADA is codified in 42 U.S.C. § 12205: "In any action . . . commenced pursuant to this chapter, the court . . . in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses and costs . . . ." See Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1154 (9th Cir. 1997). The Ninth Circuit has interpreted Section 12205 to mean that a district court may award attorney's fees to a prevailing defendant only in narrow, exceptional circumstances "upon a finding that the plaintiff's claims were frivolous, unreasonable, or without foundation." Id.; see also Hubbard v. SoBreck, LLC, 554 F.3d 742, 744-45 (9th Cir. 2009). "An action is frivolous if it lacks an arguable basis in law or in fact, though it need not be brought in bad faith." Peters v. Winco Foods, Inc., 320 F. Supp. 2d 1035, 1037 (E.D. Cal. 2004), aff'd, 151 Fed. Appx 549 (9th Cir. 2005). Furthermore, "[a]n action becomes frivolous when the result appears obvious or the arguments are wholly without merit." Galen v. Cnty. of L.A., 477 F.3d 652, 666 (9th Cir. 2007). Although the Ninth Circuit "affords the district court discretion to award attorneys fees, even where plaintiff's action is not wholly frivolous. . . . such awards will rarely be appropriate where plaintiff has asserted significant meritorious claims." Peters, 320 F. Supp. at 1040 (citing Summers, 127 F.3d at 1154).

Unlike the ADA, which gives the court discretion in awarding attorney's fees, California Civil Code § 55 mandates that attorney's fees be awarded to the prevailing party in an action brought under the CDPA, regardless of whether the plaintiff's claims are frivolous. See Hubbard, 554 F.3d at 745; Jankey v. Lee, 55 Cal. 4th 1038, 1045-47 (2012). However, the Ninth Circuit noted in Hubbard that because a violation of the ADA constitutes a violation of the CDPA and identical proof is required to show violation of either Act, when a plaintiff brings "both a nonfrivolous ADA action and a parallel action under Section 55, an award of attorney's fees under Section 55 would be inconsistent with the ADA." Hubbard, 554 F.3d at 745. Thus, the Ninth Circuit found that to the extent that Section 55 authorizes an award of attorneys' fees "to a prevailing defendant on nonfrivolous CDPA state claims that parallel nonfrivolous ADA claims, there is a conflict and the ADA preempts Section 55 of the CDPA." Id. at 747. "[P]reemption principles preclude the imposition of fees on a plaintiff for bringing nonfrivolous claims under state law that parallel claims also filed pursuant to the federal law." Id. at 745.


As a preliminary matter, the Court finds that Defendants are the prevailing parties in this Action because the Court granted their motions for summary judgment. Johannes v. Karant, 319 Fed. Appx. 568, 569 (9th Cir. 2009). However, "[d]efeating a claim on summary judgment, by itself, does not entitle an ADA-defendant to an award of fees." White v. Divine Investments, Inc., No. S-04-0206 FCD/DAD, 2006 WL 13222 at *3 (E.D. Cal. Jan. 3, 2006). Despite their status as prevailing parties, the Court declines to grant Defendants' request for attorney's fees on the basis of Plaintiff's ADA claim because the Court is not convinced that Plaintiff's case against Defendants was unreasonable, frivolous, or pursued with improper motive. See Wilson v. Tony M. Sanchez & Co., Inc., No. Civ.S-07-0822 JAM GGH, 2009 WL 1079984 at *2 (E.D. Cal. Apr. 21, 2009) ("Although Plaintiff presented insufficient evidence to prove Defendants violated the ADA or related state law claims . . . this Court does not find Plaintiff's claims to be frivolous, unreasonable, or without foundation."). Even though the Court ultimately decided the ADA claim in Defendants' favor, "there is a significant difference between the bringing of cases with no foundation in law or facts at the outset and the failure to present evidence sufficient to justify relief" at summary judgment. Mitchell v. Office of L.A. Cnty. Superintendent of Sch., 805 F.2d 844, 847 (9th Cir. 1986). The only argument that Defendants set forth in their Motion as to why Plaintiff's lawsuit was "frivolous" is a sub-section heading, "Plaintiff's Lawsuit is Frivolous," followed by a recitation of the Court's findings in its order granting Defendants' motions for summary judgment. Mot. 4:4-18. This is insufficient for the Court to make "a finding that the plaintiff's action was frivolous, unreasonable, or without foundation." Summers , 127 F.3d at 1154 (9th Cir. 1997). Thus, Defendants are not entitled to recover attorney's fees on the basis of having defeated Plaintiff's ADA claim.

Pursuant to the Ninth Circuit's holding in Hubbard, Defendants are also not entitled to recover attorney's fees on the basis of Plaintiff's CDPA claim because it parallels the claim Plaintiff filed under Title II of the ADA. Hubbard, 554 F.3d at 745 (9th Cir. 2009); see Compl. ¶ 58 ("By violating the ADA, defendants also violated Plaintiff's civil rights under California Civil Code § 54."). Because Defendants are not entitled to attorney's fees under the ADA, preemption principles preclude the imposition of attorney's fees on Plaintiff for bringing a parallel, nonfrivolous CDPA state claim. Hubbard, 554 F.3d at 745, 747.

As to Plaintiff's Unruh Civil Rights Act claim, Defendant is not entitled to an award of attorney's fees because only plaintiffs may recover under the Unruh Act. See Barrios v. Cal. Interscholastic Fed'n, 277 F.3d 1128, 1137 (9th Cir. 2002); Pittman v. Avish P'ship, No. CV 10-1390-JST OPX, 2011 WL 9160942 at *2 (C.D. Cal. June 2, 2011); Molski v. Arciero Wine Group, 164 Cal. App. 4th 786, 791 (2008).

Furthermore, Defendants do not even address in their Motion whether attorney's fees should be awarded for having prevailed on Plaintiff's claim under California Government Code §§ 830 and 835. Instead, Defendants dedicate the whole of their argument to the attorney fee provisions of the ADA and CDPA. Absent legal support for an award of attorney's fees under Sections 830 and 835, the Court is not inclined to award Defendants attorneys' fees based on this claim.


For the foregoing reasons, Defendants' Motions for Attorneys' Fees is hereby DENIED. Accordingly, Plaintiff's request for additional time to evaluate the merits of Defendants' Statement for Legal Services is also DENIED.


__________ : __________

Initials of Preparer __________

Summaries of

Cohen v. City of Culver City

Feb 27, 2013
Case No. CV 12-00156-RGK (PJWx) (C.D. Cal. Feb. 27, 2013)
Case details for

Cohen v. City of Culver City

Case Details



Date published: Feb 27, 2013


Case No. CV 12-00156-RGK (PJWx) (C.D. Cal. Feb. 27, 2013)