Judge Mark E. Windham, Case 19STLC07809 2022-10-14 Tentative Ruling

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Plaintiff Daniel Lopez (“Plaintiff”) filed the instant action for discrimination on the basis of disability against Defendant ADN Group Corp. (“Defendant”) on August 22, 2019. The Complaint alleges Defendant violated the Americans with Disabilities Act (“the ADA”), and as a result, violated the Unruh Civil Rights Act (“the UCRA”), set forth at Cal. Civil Code section 51, subdivision (f). (Compl., ¶¶15-25.) Plaintiff alleged that he initially filed this case in federal court, which reached no determination on the UCRA claim and dismissed it without prejudice. (Id. at ¶14.) The Complaint seeks an award of statutory damages and attorney’s fees and costs pursuant to Civil Code section 52, subdivision (a) and section 55.56. (Id. at ¶¶25-28, Prayer at ¶¶1-2.)

On March 2, 2021, Plaintiff filed a Notice of Unconditional Settlement of Entire Case. The Court set an Order to Show Cause Re Status of Settlement and Filing of Stipulation, which was continued numerous times and is now set for hearing on October 14, 2022.

Plaintiff filed the instant Motion for Attorney’s Fees and Costs on April 8, 2022. Defendant filed an opposition on October 3, 2022 and Plaintiff replied on October 11, 2022. To the extent Plaintiff contends the opposition is untimely because the Court ordered Defendant to file the opposition by August 31, 2022, no such order is cited. (See Reply, p. 1:10-13.) The Court does not find the opposition to be untimely.

Plaintiff moves for attorney’s fees and costs pursuant to Civil Code section 52 and the parties’ settlement agreement. (Notice, p. 1:23-24; Motion, p. 1:23-26.) Civil Code section 52 states 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.

(Civ. Code, § 52, subd. (a).) The Motion offers no analysis as to how this statutory language entitles Plaintiff to an award of attorney’s fees. It cites no finding or admission that Defendant is liable for the offenses cited therein. The Motion goes on to cite case law for the proposition that successful litigants are entitled to reasonable attorney’s fees. The only state law case mentioned, however, involves an award for attorney’s fees pursuant to Civil Code section 55 following a grant of judgment on the pleadings. (See Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786, 789-792.) Those circumstances are inapplicable in this case, where Plaintiff moves for fees under a different statute and there has been no entry of judgment. The other case law cited by Plaintiff pertains to recovery of attorney’s fees in federal civil rights actions. (See Hensley v. Eckerhart (1983) 461 U.S. 424, 426; Jankey v. Poop Deck (9th Cir. 2008) 537 F.3d 1122, 1123.) As this is not a federal civil rights action, these cases also do not support Plaintiff’s request for attorney’s fees under state law.

Plaintiff also points to the parties’ settlement agreement to support the attorney’s fees and costs award. The agreement states, “Defendants agree to pay Plaintiff’s reasonable attorney fees and costs as determined by the Court.” (Motion, Potter Decl., Exh. 7, ¶2.4.) It goes on to state that “Defendants agree to pay Plaintiff’s reasonable attorney fees and costs as determined by the Court but Defendants retain all arguments related to the reasonableness of the Plaintiff’s requested fee award.” (Id. at ¶4.) The Motion, however, again fails to point to any authority regarding the enforceability of such a provision, nor does the provision itself indicate on what authority attorney’s fees and costs may be awarded. It simply reiterates that the Court is to determine the attorney’s fees and costs award. Finally, the Motion offers no authority for recovery of Plaintiff’s costs.

Therefore, the Court finds the Motion does not demonstrate a basis to award Plaintiff attorney’s fees and costs.