Judge: Frank M. Tavelman, Case: 22BBCV00262, Date: 2024-03-22 Tentative Ruling

Case Number: 22BBCV00262    Hearing Date: March 22, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR ATTORNEY’S FEES

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Anthony Bouyer (Plaintiff) brought this action against FAAS Properties, LLC (Defendant), alleging Defendant’s property contained conditions which discriminated against Plaintiff as a disabled person. The case proceeded to trial and the jury rendered a special verdict judgment in favor of Defendant.

Defendant now moves to recover attorney’s fees Defendant contends they are entitled to fees pursuant to 42 U.S.C. § 12205. In the alternative Defendant seeks recovery of fees incurred after the rejection of its offer pursuant to C.C.P. § 998. Plaintiff opposes the motion and defendant replies.

EVIDENTIARY OBJECTIONS:

Plaintiff objects to various portions of the declaration of Rachelle Golden.

Plaintiff objects to Exhibits A & B, which are billing statements for Defendant’s counsel, as inadmissible hearsay. These objections are OVERRULED.

“For the purpose of fixing attorney’s fees,” the trial court “is not bound by technical rules of evidence, since it is not trying an issue in the case and is merely seeking information upon which to base its order.” (Frank v. Frank (1963) 213 Cal.App.2d 135, 138,; Rose v. Rose (1895) 109 Cal. 544, 546; see Padilla v. McClellan (2001) 93 Cal.App.4th 1100, 1106-1107, [“courts determine the reasonableness of attorney fees every day by ruling on motions,” based on “declarations only, not live testimony” in “hearings [that] are usually short” and “[t]rial courts are afforded wide discretion to determine the amount of attorney fees within that framework”].)

Plaintiff’ objections to paragraphs 4 which summarize the fees and costs are likewise OVERRULED.

Plaintiff’s objections to the contents of paragraph 5 as irrelevant are also OVERRULED.

ANALYSIS: 

Plaintiff’s Claims

Plaintiff’s sole cause of action in his First Amended Complaint (FAC) was for “Violation of the UCRA, California Civil Code § 51 et seq.”

Plaintiff’s prayer for relief requested: (1) a declaratory judgment that Defendant violated 42 U.S.C. § 12181 and California’s Unruh Civil Rights Act, California Civil Code § 51, et seq.; (2) an injunction enjoining Defendant from further violations of 42 U.S.C. § 12181 and California’s Unruh Civil Rights Act, California Civil Code § 51, et seq.; (3)$4,000 in damages for each additional occurrence; and (4) reasonable attorney’s fees, litigation expenses, and costs of suit pursuant to 42 U.S.C. § 12205 and California Civil Code § 52.

Parties’ Arguments

The parties disagree as to whether 42 U.S.C. § 12205 or California Civil Code § 52 governs this motion. If 42 U.S.C. § 12205 governs, Defendant can recover attorney’s fees. If California Civil Code § 52 governs, Defendant cannot recover fees.

42 U.S.C. § 12205 provides, “In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.” This is a bilateral fee provision, meaning that the prevailing party may recover regardless of their status as plaintiff or defendant.

California Civil Code § 52 provides, in relevant part, “Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.”

Civil Code § 52 is a unilateral fee provision, allowing only a prevailing plaintiff to recover attorney’s fees. (See Turner v. Association of American Colleges (2011) 193 Cal.App.4th 1047, 1058-1060.) This is contrasted to other relevant sections of the Civil Code, specifically §§ 55 (governing recovery under the California Disabled Persons Act), which provide for bilateral recovery of fees.

Defendant argues that, because Plaintiff specifically invoked the ADA in his FAC, 42 U.S.C. § 12205 should apply. Defendant argues that Plaintiff’s invocation of the ADA in his FAC brings his action under 42 U.S.C. § 12205 because the statute applies to actions brought “pursuant” to the ADA. Plaintiff responds by citing to a variety of cases which concern federal question jurisdiction.

Discussion of 42 U.S.C. § 12205 & California Civil Code § 52

The Court finds the citations to federal question jurisdiction are irrelevant for purposes of this motion. This is a state action in front of state court concerning a state statute. This is a not a question of whether the Court has jurisdiction, it is instead a question of preemption.

The California Supreme Court decision in Jankey v. Lee is instructive. In Jankey, the California Supreme Court considered whether the bilateral fee provision of Civil Code § 55 was in conflict with 42 U.S.C. § 12205. (Jankey v. Lee (2012) 55 Cal.4th 1038, 1047.) Here the conflict was not who could recover, instead the parties disagreed over the circumstances of recovery. (Id.) Where 42 U.S.C. § 12205 permits the recovery of attorney’s fees to any prevailing party, Civil Code § 55 permits recovery for a prevailing defendant only where they have shown the claims were frivolous. (Id.) In addition, 42 U.S.C. § 12205 makes recovery mandatory, while Civil Code § 55 makes recovery discretionary. (Id.) The defendant in Jankey, having prevailed at trial, sought attorney’s fees pursuant to plaintiff’s failure to prevail on his Civil Code § 55 cause of action. (Id. at 1043.) The plaintiff opposed the award, claiming that Civil Code § 55 was preempted by the ADA. (Id.)

In analyzing 42 U.S.C. § 12201(b), the Jankey court found that it was the intent of Congress that nothing in the ADA would be construed to “invalidate the remedies, rights, and procedures of any…law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this Act. (Id. at 1049.) The Jankey court explained that the function of this code section was to ensure that laws enacted by States with the intent to afford greater protections to disabled persons were not preempted by the provisions of the ADA. (Id.) The court noted that, “[n]either the text of the construction clause nor any other language in the ADA addresses how to determine whether a state law affords equal or greater protection than the ADA.” (Id. at 1050.)

In the absence of statutory explanation, the Court looked to the Congressional history of the statute to ascertain what was meant by “greater protection”. (Id.) Ultimately the court concluded that “Congress embraced a cafeteria approach in which those with disabilities, rather than being restricted to a single federal remedy, could pick and choose from among federal and state remedies and procedures the avenues for relief they thought most advantageous. It follows that if a state remedial scheme is in any regard superior to the ADA, courts should conclude it is not preempted and instead allow plaintiffs the choice whether to seek relief under federal law, state law, or both.” (Id. at 1051.)

In applying the principles of preemption derived from the legislative history, the Jankey court found that Civil Code § 55 was not preempted by the ADA. (Id.) The court reasoned that because the provision of the ADA generally required a higher barrier of proof than the Civil Code, the ADA did not preempt. (Id.) In essence, if any provision of the Civil Code would make the process of maintaining and recovering a claim more accessible to a disabled person it is not preempted by the ADA. The court added that it was irrelevant whether other provisions of the Civil Code were less advantageous to a potential plaintiff, so long as the state law affords better protection in some respect. (Id. at 1052.)

Here, the Court finds the reasoning of Jankey requires the application of Civil Code § 52. Civil Code § 52 affords greater protections to the disabled by virtue of shielding them from liability for attorney’s fees in instances where they do not prevail. Courts have held that the California Legislature’s intent in enacting Civil Code § 52 was expressly to provide greater protections for disabled persons that that provide by the ADA. (See Section 1 of Stats.1992, c. 913 [“It is the intent of the Legislature in enacting this act to strengthen California law in areas where it is weaker than the Americans with Disabilities Act of 1990 (Public Law 101-336) and to retain California law when it provides more protection for individuals with disabilities than the Americans with Disabilities Act of 1990.; see also Turner supra,193 Cal.App.4th at 106 [“the statutory language authorizing fee awards only to prevailing plaintiffs reflects a determination that prevailing defendants should not receive a fee award for hours spent defending such claims. This is reflected strongly in the legislative history to section 52, when, in 1976, it was amended to include the unilateral fee-shifting provision by Assembly Bill No. 2553.”].)

Simply put, to hold that the ADA’s fee provision preempts the California’s fee provision would be to strip Civil Code § 52 of the greater protection it intends to afford disabled persons. This would be contrary not only to the intent of the California legislature but also the Federal legislature.

Further, the Court finds that Plaintiff’s invocation of the ADA renders his cause of action as one made under the ADA rather than the Unruh Civil Rights Act. Plaintiff’s aversion to the ADA was intended to advance the well-established argument that a violation of the ADA is a de facto violation of the Unruh Civil Rights Act. (See Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 631 [“As noted, Assembly members were told that by adding subdivision (f) to section 51 the bill would make a violation of the ADA a violation of the Unruh Act.”].) The Court does not find the invocation of the ADA in the FAC transforms Plaintiff’s claim into one which is no longer governed by the California Civil Code.

To avoid any uncertainty, if permitted under 42 USC §12205 and related California law the court would exercise its discretion and impose attorney’s fees; however, the Court does not believe it has the authority to do so,

Discussion of C.C.P. § 998 Offer

The Court notes that Civil Code § 52 does not operate to bar Defendant’s request for attorney’s fees pursuant to C.C.P. § 998. The obligation to pay costs under CCP § 998 does not arise from the nature of the parties’ claims, but instead from CCP § 998 itself, which imposes an obligation to pay costs arising out of a party’s behavior as a litigant. (Glassman v. Safeco Ins. Co. of America (2023) 90 Cal.App.5th 1281, 1314.)

C.C.P. § 998(c)(1) provides if a defendant made an offer that is not accepted and the plaintiff fails to obtain a more favorable judgment or award in any action or proceeding plaintiff shall pay defendant’s costs from the time of the offer.  Furthermore, the court, in its discretion may order the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial of the case by the defendant, in addition to defendant’s costs.

Whether a pre-trial offer of judgment was reasonable and made in good faith, under the cost-shifting offer of judgment statute is a burden placed on the offferee. (Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 834.) Whether offer of judgment is made in good faith is based on whether, at the time it was made, it carried reasonable prospect of acceptance by offeree. (Glassman supra, 90 Cal.App.5th at 1314.)

“The court inquires First, was the CCP section 998 offer within the range of reasonably possible results at trial, considering all of the information the offeror knew or reasonably should have known? Second, did the offeror know that the offeree had sufficient information, based on what the offeree knew or reasonably should have known, to assess whether the offer was a reasonable one such that the offeree had a fair opportunity to intelligently evaluate the offer?” (Id. [internal citations and quotation marks omitted].)

Here, Defendant rendered a 998 settlement offer of $1 on November 28, 2023. (Golden Decl. Exh. K.) Defendant argues that at the time the 998-settlement offer was made, Plaintiff should have been reasonably aware that his action was without merit. Defendant states that they rendered discovery responses in July of 2022, in which they asserted that the property was a drive-thru and not subject to wheelchair compliance. (Reply. p. 8.) Defendant argues that a simple Google Street View search could have revealed to Plaintiff that the establishment was a drive thru that was not subject to wheelchair accessibility requirements.  Furthermore, Plaintiff actually visited the site and would have been aware of this information prior to filing the lawsuit. (Golden Decl. Exh. 219.) Defendant further states that Plaintiff was presented with the Google Street View images, which depicts a car positioned at the drive-thru, at his June 12, 2023 deposition. (Goden Supp. Decl. Exh. N.) Based on the information presented at trial, which would have, or reasonably should have, been known the offer of $1.00 with all side paying their own costs and expenses was not unreasonable.

Plaintiff does not address the “reasonableness” requirement in earnest. Plaintiff makes no arguments or showing as to his knowledge at the time the 998-settlement offer was made. Instead, Plaintiff’s argument proceeds entirely that the offer was unreasonable because it accounted for only 0.25% of the possible $4,000 statutory recovery. However, courts have found that nominal settlement awards are not per se unreasonable.

The Court finds that the 998-settlement offer was reasonable given the information available to Plaintiff regarding the drive-thru. An apparently “token” offer of e.g., one dollar may—or may not—be a reasonable offer under § 998. The issue is not, precisely, the amount; the issue is whether the offer has an objectively reasonable prospect of acceptance. (Bates v. Presbyterian Intercommunity Hospital, Inc. (2012) 204 Cal.App.4th 210, 220.) Here, Plaintiff’s sole focus on the dollar amount of the offer misstates the standard of reasonableness. The question is not whether Defendant offered a substantial enough settlement, it is instead whether Plaintiff could have evaluated the offer as reasonable in light of the circumstances.

“If a defendant makes a low offer shortly before trial based upon potent evidence likely to insulate defendant from liability, and if the evidence was reasonably available to plaintiff, defendant’s offer may qualify as a valid section 998 offer even though plaintiff did not in fact know of the information because he failed to investigate or pursue discovery.” (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 120 [internal citations omitted].) Here, Plaintiff has presented no evidence or substantive argument as to why he found the offer unreasonable. Defendant has demonstrated that through discovery, Plaintiff was aware that his claims were likely without merit, to wit he went to a drive through tobacco store to purchase a bottle of water. Here, unlike Santantonio, which discussed only negligence in discovering facts, Defendant was actually aware of the facts necessary to make this determination.

The Court finds Defendant has fulfilled their burden to show a valid settlement offer under C.C.P. § 998 was made. The Court also finds that Plaintiff has failed to carry the subsequent burden to show this offer was unreasonable or not made in good faith.   Nonetheless, the Court would award attorney’s fees if it were permitted to do so; however, the Court does not conclude it has such authority in this instance.

Recovery of Fees

Regardless of the reasonableness of Defendant’s offer, C.C.P. § 998 does not automatically allow them to recover attorney’s fees as postoffer costs. C.C.P. § 998 does not provide greater rights to attorney fees than provided for by the underlying statute or contract. (Oakes v. Progressive Transp. Servs., Inc. (2021) 71 Cal.App.5th 486, fn. 6 citing Scott Co. v. Blount, Inc. (1999) 86 Cal.Rptr.2d 614.) A party with no statutory or contractual basis to recover attorney fees cannot add them to the verdict when deciding whether a 998 offer was exceeded. (Id.)

As discussed above, Defendant has not shown that they are entitled to the recovery of attorney’s fees by function of statute. As such, Defendant’s recovery under C.C.P. § 998 is limited to post offer costs. The Court notes that billing statements attached to Defendant’s declarations do not separate costs from attorney’s fees, nor has Defendant submitted a memorandum of costs. 

Conclusion

The Court would deny the motion for attorney’s fees pursuant to 42 U.S.C. § 12205. Defendant may pursue costs pursuant to CCP §998 or a Memorandum of Costs as a prevailing party should they so choose. 

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

FAAS Properties, LLC’s Motion for Attorney’s Fees came on regularly for hearing on March 22, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR ATTORNEY’S FEES IS DENIED.

DEFENDANT MAY STILL PURSUE COSTS PER CCP §998 OR A MEMORANDUM OF COSTS AS THE PREVAILING PARTY PURSUANT TO CCP §1032 ET SEQ.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  March 22, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles