Nathan Bass Dec. 21, 2012, 2:11pm

SAN FRANCISCO (Legal Newsline) - A California store owner will collect attorney fees after prevailing in a lawsuit filed against him under various California access to individuals with disabilities laws.

The Supreme Court of California affirmed the award of fees made by the trial court which previously had been affirmed by the state Court of Appeals.

Justice Kathryn M. Werdegar wrote the opinion for the Court, and the other six justices concurred.

Song Koo Lee owns and operates the K&D Market in San Francisco's Mission District. He has owned and operated the small grocery store since 1985 but does not own the building.

Plaintiff Les Jankey, a wheelchair user, sued Lee for denying him access to his market due to a four-inch step which he alleged prevented him and other wheelchair bound individuals from being able to wheel into the store.

"Jankey asserted violations of the federal ADA, the Unruh Civil Rights Act (§ 51 et seq.), the Disabled Persons Act (§ 54 et seq.), and Health and Safety Code section 19955 et seq. Among other relief, Jankey sought an injunction under state and federal law compelling Lee to make K&D Market readily accessible to individuals with disabilities. (See § 55; 42 U.S.C. § 12188(a)(2).)"

The trial court granted Lee summary judgment after ruling that Lee had "conclusively established as an affirmative defense that removal of the barrier was not readily achievable."

After summary judgment was awarded, Lee moved for an award of attorney fees "under section 55, which provides for prevailing party fees in actions to enjoin disability access violations."

Jankey's primary argument against the award was that the section 55 award was preempted by the federal Americans with Disabilities Act. He cited Hubbard v. SoBreck, LLC, a 2009 Ninth Circuit Court of Appeals case.

"Without directly addressing preemption, the trial court concluded Lee was entitled to a mandatory fee award under Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786.5. The court awarded Lee $118,458 in fees, most of the approximately $130,000 originally sought."

Jankey did not contest the summary judgment but appealed to the Court of Appeals on the award of attorney fees and the Court of Appeals "respectfully disagree[d] with the Hubbard court's preemption analysis," concluding that a mandatory fee award was both required by state law and permitted by federal law.

"We," wrote Werdegar, "granted review to address the conflict between the Ninth Circuit's opinion in Hubbard v. SoBreck, LLC, finding preemption, and the Court of Appeal's decision, finding none."

"In both express and implied preemption cases, whether preemption will be found in a given case depends foremost on congressional intent.

"As the party asserting preemption, Jankey has the burden of overcoming that presumption and establishing that Congress in fact intended to invalidate a law such as section 55.

"Congress contemplated that state laws would be protected from ADA preemption if in principle they afforded superior protections in some regard.

"Clearly Jankey himself at the time of filing saw some benefit to adding a section 55 claim to his ADA claim or else he would have omitted it. Having invoked section 55, he cannot now be heard to complain that it has brought him only a bill for attorney fees."

The Court then turned to the Ninth Circuit's Hubbard ruling which conflicts with the award of attorney fees in this case.

"Hubbard reasoned that where parallel state and federal claims are filed, such that the work in defending the two claims overlaps, a grant of fees on the state law claim "is necessarily a grant of fees as to the ADA claim.

"In such circumstances, if state law provides for fees where federal law does not, there is a conflict and the state law must yield."

"We disagree with the Ninth Circuit's premise, that fees for defending a state law claim are necessarily fees for ADA work if the claims overlap. Lee would have been entitled to the same fees whether or not Jankey pleaded an ADA claim; the pleading of an ADA claim was neither a necessary nor a sufficient cause of the fee award.

"The fee award here is not in any meaningful sense for or on account of having to defend against an ADA claim, but instead a consequence of Jankey's purely voluntary decision to seek additional state remedies. State law does not declare ADA fees compensable, only section 55 fees; it does not dictate an outcome at odds with federal law."

"The Ninth Circuit's finding of conflict preemption implicitly rests on the view that Congress not only established the rule for awarding attorney fees incurred on account of defending an ADA claim, but also intended to immunize plaintiffs from paying for any of that same work, absent grounds for payment under the ADA, even when it was also necessary to defend against an overlapping state law claim."

"From the text of the ADA we discern no such intent ... Accordingly, we respectfully disagree with the Ninth Circuit's conclusion that conflict preemption forecloses an award of fees for a section 55 claim that overlaps with a nonfrivolous ADA claim.

"The Court of Appeal's judgment is affirmed. Lee seeks his costs and attorney fees on appeal. As the prevailing party, he is entitled to costs and, under section 55, to appellate attorney fees as well. On remand, the trial court is to fix the amounts."

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