The California Supreme Court has granted review in a case that will determine when public entities (and anyone else) can recover attorneys’ fees for successfully defending themselves against suits under California law by persons with disabilities regarding access to public facilities. The case is Jankey v. Lee, No. S180890. The issue, which has divided state and federal courts, is whether federal law—specifically, the ADA—pre-empts a California statute that requires an award of attorneys’ fees to any prevailing defendant in a suit seeking an injunction regarding access.
The California Disabled Persons Act (CDPA) authorizes suits for injunctive relief by anyone with a disability who is denied full use of public places or facilities, such as streets, sidewalks, transportation, and medical facilities. The provision authorizing injunctive actions automatically awards fees to a prevailing plaintiff or defendant—even if the suit was not frivolous. That differs from California disability laws governing damages actions, which never allow fees for defendants. And it differs from the federal ADA, which only permits fee awards against plaintiffs if their suits were frivolous.
The Ninth Circuit Court of Appeals held last year in Hubbard v. SoBreck, LLC (9th Cir. 2009) 554 F.3d 742 that awarding defendants fees for nonfrivolous injunctive actions under the CDPA is “inconsistent with, and therefore preempted by, the ADA.” In February, i n Jankey v. Lee (2010) 181 Cal.App.4th 1173 , rev. granted May 12, 2010, S180890, a California Court of Appeal disagreed. It noted that California disability law lets plaintiffs choose among many claims and remedies; they only risk a fee award if they choose to seek an injunction. And California disability law as a whole is more protective than the ADA, so preemption is improper.
The California Supreme Court will now decide for all California state courts which view is right. In the short run, its grant of review wipes the Court of Appeal opinion in Jankey off the books; defendants in state court no longer can cite it. In California federal courts, the Ninth Circuit’s view in Hubbard still governs. And it will still do so no matter what the California Supreme Court rules—unless the U.S. Supreme Court gets involved. It might if, in Jankey, the California Supreme Court rejects the Ninth Circuit’s view .