California Court of Appeals Awards Fees Against Activist for They Disabled
A winery that corrected its barriers to access as required by the Americans with Disabilities Act and state access laws was entitled to recover some of its attorney fees from the activist who filed the claims, the California Court of Appeal has ruled. The plaintiff was a wheelchair-bound activist for rights for the disabled. He filed several hundred lawsuits claiming access violations, leading to rulings that he was a vexatious litigant in state and federal courts in California.
The state laws regarding handicapped access provide for a claim against violators, even where the plaintiff hasn’t actually encountered the barrier to access. A “prevailing party” is entitled to recover reasonable attorney fees for actions that seek to enjoin violations.
The activist filed an action against the winery in federal court, and the winery was ordered to correct the violations. The activist then filed a complaint in state court alleging the same violations, but failed to verify that the winery had remediated the problem.
The state court judge dismissed the complaint, and the winery sought recovery of its attorney fees in both actions as the “prevailing party” under the state access law.
The judge awarded fees only in the state court action, finding that the winery was not the “prevailing party” in the federal case since it was ordered to correct the violations.
The activist argued that awarding the winery the fees was an abuse of discretion.
But the court disagreed.
“Other provisions of California’s disability access statutes allow only a prevailing plaintiff to recover [attorney] fees … but the plain language of [the access law at issue] allows bilateral fee recovery. The statute is unambiguous and [the activist] cites no authority interpreting [the law] to disproportionately benefit plaintiffs.”
“In this case, [the activist] chose to pursue every available statutory option, without election and notwithstanding completed remediation. The strategic inclusion of the [the state access law claim] minimized his burden of proof, but it also exposed him to an adverse fee award. At the same time, his approach maximized the litigation expenses of his adversary. The spirit of California’s statutory scheme is not offended by the consequences of this scorched earth strategy.”
The 9th Circuit recently held to the contrary. (See “ADA preempts award of attorney fees under state law,” Lawyers USA, July 14, 2008. Search terms for Lawyers USA website: Hubbard and restaurant.)
California Court of Appeal, 2nd District. Molski v. Arciero Wine Group, No. B199289. July 7, 2008. Lawyers USA No. 99310311. Click here for the full text of this opinion.
Originally published by Lawyers USA Staff.
(c) 2008 Lawyers USA. Provided by ProQuest Information and Learning. All rights Reserved.