Relief for Public Entities Who Prevail in Disability Access Lawsuits

On Monday, December 17, 2012 the California Supreme Court issued an order in a disability access case that will greatly assist public entities in defending against the all too common  lawsuits brought under Civil Code Section 55.  In Jankey v. Lee, the Court confirmed that a prevailing Defendant who successfully defeats a claim of disability access violations brought under Civil Code Section 55 may recover all of its defense fees and costs from Plaintiff, even if the losing party is the Plaintiff and even if the claims were brought under both state law and the ADA.

The case was originally filed on behalf of Plaintiff Les Jankey who was represented by an attorney who is a prolific filer of disability rights actions.  Jankey alleged that a 4-inch step at the store entrance prevented him and other individuals in wheelchairs from entering the store. He sued under three California laws including the Disabled Persons Act, as well as the ADA; such allegations appear standard for Plaintiff’s counsel, whose firm appears to have filed at least 223 lawsuits in federal courts in 2004 alone alleging violations of the ADA and California disability laws, according to a 2005 federal court opinion.

San Francisco Superior Court Judge Patrick Mahoney granted summary judgment to Lee, saying removal of the step wasn’t practical and that Lee offered alternatives for customers in wheelchairs. He awarded $118,000 in attorney’s fees to Lee, noting that under California Civil Code Section 55, “the prevailing party” in a Disabled Persons Act case is entitled to reasonable attorney’s fees.  In overruling Plaintiff’s argument that the ADA pre-empts California’s law with respect to attorney’s fees, the Court held that the ADA explicitly does not pre-empt state laws that provide greater protections for the disabled.  Even though the Court’s holding is contrary to an earlier opinion issued by the Ninth Circuit Court of Appeal in Hubbard v. SoBreck, LLC, 554 F.3d 742 (9th Cir. 2009), it provides significant arguments on behalf of public entities and school districts to combat the onslaught of disability access cases.