FACTUAL AND PROCEDURAL BACKGROUND
Lee owns and operates the K&D Market, a small grocery store in San Francisco's Mission District. He does not own the building but has operated the market since 1985.
Plaintiff Les Jankey, a wheelchair user, sued Lee for denying him and other similarly situated disabled persons access to the full and equal enjoyment of the goods and services offered by K&D Market.
The trial court granted Lee summary judgment. That K&D Market had a threshold step was undisputed, but Lee conclusively established as an affirmative defense that removal of the barrier was not readily achievable and he thus was entitled to judgment on all four disability access claims. (See Munson v. Del Taco, Inc., supra, 46 Cal.4th at p. 669 & fn. 6; Colorado Cross Disability v. Hermanson Family (10th Cir. 2001) 264 F.3d 999, 1002-1003; 42 U.S.C. § 12182(b)(2)(A)(iv).)
Lee moved for an award of attorney fees under section 55, which provides for prevailing party fees in actions to enjoin disability access violations. Opposing the motion, Jankey argued that section 55 was preempted by the ADA. (See Hubbard v. SoBreck, LLC (9th Cir. 2009) 554 F.3d 742, 745.) In the alternative, Jankey contended an award could be made only upon a finding that the complaint was "frivolous, unreasonable, or groundless."
While not contesting the summary judgment, Jankey appealed the trial court's award of attorney fees. The Court of Appeal affirmed. It "respectfully disagree[d] with the Hubbard [v. SoBreck, LLC, supra, 554 F.3d 742] court's preemption analysis," concluding a mandatory fee award was both required by state law and permitted by federal law. It upheld the trial court's fee award in its entirety.
We granted review to address the conflict between the Ninth Circuit's opinion in Hubbard v. SoBreck, LLC, supra, 554 F.3d 742, finding preemption, and the Court of Appeal's decision, finding none.
I. Federal and State Disability Access Remedies
Congress and the Legislature have afforded persons with disabilities a range of legal tools for remedying denials of access. The ADA and numerous
The ADA prohibits discrimination on the basis of disability in the enjoyment of public accommodations, including with respect to access. (42 U.S.C. § 12182.) Businesses must "`remove architectural barriers ... in existing facilities ... where such removal is readily achievable.'" (Munson v. Del Taco, Inc., supra, 46 Cal.4th at p. 669, quoting 42 U.S.C. § 12182(b)(2)(A)(iv).) Liability does not depend on proof of intentional discrimination, but a private litigant cannot obtain damages for the denial of access, only injunctive relief. (Munson, at pp. 669-670; 42 U.S.C. § 12188(a).)
In 1992, shortly after passage of the ADA, the Legislature amended the state's disability protections "`to strengthen California law in areas where it is weaker than the [ADA] and to retain California law when it provides more protection for individuals with disabilities than the [ADA].'" (Munson v. Del Taco, Inc., supra, 46 Cal.4th at p. 669, quoting Stats. 1992, ch. 913, § 1, p. 4282.) Two overlapping laws, the Unruh Civil Rights Act (§ 51) and the Disabled Persons Act (§§ 54-55.3), are the principal sources of state disability access protection.
The Unruh Civil Rights Act broadly outlaws arbitrary discrimination in public accommodations and includes disability as one among many prohibited bases. (§ 51, subd. (b).) As part of the 1992 reformation of state disability law, the Legislature amended the Unruh Civil Rights Act to incorporate by reference the ADA, making violations of the ADA per se violations of the Unruh Civil Rights Act. (§ 51, subd. (f); Munson v. Del Taco, Inc., supra, 46 Cal.4th at pp. 668-669.) This amendment was intended to extend to disabled individuals aggrieved by an ADA violation the full panoply of Unruh Civil Rights Act remedies. (Munson, at p. 673.) These include injunctive relief, actual damages (and in some cases as much as treble damages), and a minimum statutory award of $4,000 per violation. (§ 52, subds. (a), (c)(3); Turner v. Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 1058 [123 Cal.Rptr.3d 395].)
The Disabled Persons Act substantially overlaps with and complements the Unruh Civil Rights Act. (Munson v. Del Taco, Inc., supra, 46 Cal.4th at p. 675.) More narrow in focus than the Unruh Civil Rights Act, it generally guarantees people with disabilities equal rights of access "to public places, buildings, facilities and services, as well as common carriers, housing and
Section 55 is part of the Disabled Persons Act, but it offers an independent basis for relief. (Molski v. Arciero Wine Group, supra, 164 Cal.App.4th at p. 792.)
II. Section 55 Mandates Attorney Fees for Every Prevailing Party
Here, Jankey sued (and lost) under each of the principal federal and state disability access laws — the ADA, the Unruh Civil Rights Act, and sections 54.3 and 55 of the Disabled Persons Act. Section 55, on which Lee predicated his fee request, is unique among these sources of law in containing a broadly worded two-way fee-shifting clause: "The prevailing party in the action" under section 55 "shall be entitled to recover reasonable attorney's fees." Before considering the interplay between this provision and the narrower fee provision of the ADA, we address, and reject, Jankey's challenge to the lower courts' conclusion that section 55 grants a prevailing defendant a mandatory right to fees.
Second, while the determination that a defendant is a prevailing party is generally discretionary (see Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332 [104 Cal.Rptr.3d 219, 223 P.3d 77]), once a trial court determines that a defendant qualifies, the language of section 55 mandates a fee award: a prevailing party "shall be entitled" to reasonable fees. Here as well, the Legislature has routinely and clearly differentiated, using "may" in circumstances where it intends a fee award to be discretionary and "shall" in circumstances where it intends an award to be mandatory. (Compare, e.g., §§ 52.1, subd. (h) ["the court may award the petitioner or plaintiff reasonable attorney's fees"], 3426.4 ["the court may award reasonable attorney's fees"] with §§ 1785.31, subd. (d) ["prevailing plaintiffs ... shall be entitled to recover ... reasonable attorney's fees"], 3344, subd. (a) [prevailing party "shall ... be entitled to attorney's fees"].)
Consistent with the plain language of section 55, every reported case to consider the question has concluded, as we do, that an award of fees to a prevailing defendant is mandatory. (Molski v. Arciero Wine Group, supra, 164 Cal.App.4th at pp. 790-792; Jones v. Wild Oats Markets, Inc. (S.D.Cal. 2006) 467 F.Supp.2d 1004, 1011-1012; Goodell v. Ralphs Grocery Co. (E.D.Cal. 2002) 207 F.Supp.2d 1124, 1126-1127.)
Against the text of the statute and precedent, Jankey argues the legislative history behind section 55 shows the Legislature intended to afford only prevailing plaintiffs mandatory fees. Section 55 was enacted by Assembly Bill No. 2471 (1973-1974 Reg. Sess.). Jankey selectively cites passages from analyses of this measure that confirm the Legislature's intent to afford prevailing plaintiffs attorney fees, but never demonstrates that the Legislature did not also intend to afford fees to prevailing defendants. Indeed, the history is to the contrary and reveals a conscious choice to ensure prevailing
III. Section 55 Is Not Preempted
A. The ADA's Fee Regime
We turn to Jankey's principal contention, that the ADA preempts section 55 insofar as the state law affords prevailing defendants a broader entitlement to recovery of attorney fees than would federal law.
In contrast with section 55, the ADA allows defendants fees only for responding to frivolous claims and makes fee recovery discretionary: "In any action or administrative proceeding commenced pursuant to this Act, the court or agency, in its discretion, may allow the prevailing party ... a reasonable attorney's fee ...." (42 U.S.C. § 12205.) As the legislative history shows clearly, Congress intended that discretion to be exercised in
B. General Preemption Principles
In both express and implied preemption cases, whether preemption will be found in a given case depends foremost on congressional intent. (Wyeth v. Levine (2009) 555 U.S. 555, 565 [173 L.Ed.2d 51, 129 S.Ct. 1187]; Brown v. Mortensen, supra, 51 Cal.4th at pp. 1059-1060.) Significantly, we begin with a presumption against preemption and will override that presumption only when Congress has made "`clear and manifest'" its intent to displace state law with federal law. (Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485 [135 L.Ed.2d 700, 116 S.Ct. 2240]; accord, Brown, at p. 1060.) 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. (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Cal.4th at p. 936.)
C. Section 501(b) of the ADA
On its face, this clause distinguishes state laws that afford equal or better protection to the disabled than the ADA from those that do not. Laws in the former category are shielded from preemption; nothing in the ADA "shall be construed to invalidate or limit the remedies, rights, and procedures" they provide those with disabilities. (42 U.S.C. § 12201(b).)
Neither the text of the construction clause nor any other language in the ADA addresses how to determine whether a state law affords equal or greater protection than the ADA. Accordingly, we may turn to the legislative history for insight. (E.g., Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 770 [111 Cal.Rptr.3d 666, 233 P.3d 1066].) The committee reports explaining the construction clause reveal an intent that a state law should qualify for protection from preemption whenever at a minimum some part of it is superior to the ADA in the protection it affords, such that an individual with a disability might choose to invoke it, even if the law may in other respects provide procedures or remedies that are arguably inferior.
ADA section 501(b) was intended to ensure "all of the rights, remedies and procedures that are available to people with disabilities under ... other state laws (including state common law) are not preempted by this Act." (H.R.Rep. No. 101-485(II), 2d Sess., p. 135 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News, p. 418; H.R.Rep. No. 101-485(III), 2d Sess., p. 70 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News, p. 493; see Wood v. County of Alameda, supra, 875 F.Supp. at p. 663 [the purpose of ADA § 501(b) is to "maximize the options available to plaintiffs"].) In lieu of broadly preempting every arguably lesser state remedy, Congress elected to maximize individuals' freedom to select whichever legal remedies they desired: "A plaintiff may choose to pursue claims under a state law that does not confer greater substantive rights, or even confers fewer substantive rights, if the plaintiff's situation is protected under the alternative law and the remedies are greater." (H.R.Rep. No. 101-485(III), 2d Sess., p. 70 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News, p. 493.) The House Judiciary Committee gave as one example the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), which at the time unlike the ADA did not protect those with mental disabilities, but did offer superior damages remedies. Such a law should not be construed as conferring lesser rights because of its narrower scope; rather, ADA section 501(b) and the ADA as a whole should be read to preserve individuals' rights to decide whether to sue under the state law as well, or instead. (H.R.Rep. No. 101-485(III), 2d Sess., p. 70 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News, p. 493.)
Applying this approach to preemption, we think it evident section 55 qualifies as a state law that affords, in at least some respects, greater protection compared to the ADA. Most notably, section 55's standing provision is broader than its federal counterpart. Under state law, because a plaintiff need only show he or she is "aggrieved or potentially aggrieved" (§ 55) to seek injunctive relief, "virtually any disabled person can bring an action to compel compliance with" state disability access guarantees (Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 266 [65 Cal.Rptr.3d 838]). In contrast, the ADA requires proof of ongoing disability discrimination or reasonable grounds to believe the plaintiff is "about to be subjected to" such discrimination. (42 U.S.C. § 12188(a)(1).) A personal stake is essential; "[t]he ADA does not permit private plaintiffs to bring claims as private attorneys general to vindicate other people's injuries." (McInnis-Misenor v. Maine Medical Center (1st Cir. 2003) 319 F.3d 63, 69; see Chapman v. Pier 1 Imports (U.S.), Inc. (9th Cir. 2011) 631 F.3d 939, 946 (en banc) [to obtain injunctive relief under the ADA, an access plaintiff "must demonstrate a `real and immediate threat of repeated injury' in the future"].) Thus, while courts have issued injunctive relief under state law without requiring proof that a plaintiff intends to encounter or has been deterred from encountering a given architectural barrier,
Notably, it matters not for purposes of ADA preemption that other aspects of section 55, such as the differing attorney fee regime, might be viewed as less advantageous.
Jankey argues that ADA section 501(b) is an express preemption clause, that it nullifies all state laws less protective of the rights of the disabled than the ADA, and that section 55 is such a law. We are not persuaded. First, as we have discussed, the text of ADA section 501(b) and the legislative history behind it reveal it not as an express preemption clause but as a clause insulating from preemption any state laws offering better protections in some respect. Second, Jankey's contention that section 55 is less protective rests entirely on his assumption that all that matters is what protection or benefit he ultimately obtained from invoking section 55 in this case. This assumption is unfounded. Congress contemplated that state laws would be protected from ADA preemption if in principle they afforded superior protections in some regard. (See H.R.Rep. No. 101-485(III), 2d Sess., p. 70 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News, p. 493.) As we have discussed, section 55 does so. 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
D. Hubbard and Conflict Preemption
In a single paragraph, and without addressing the import of ADA section 501(b), the Ninth Circuit reached a contrary conclusion. (Hubbard v. SoBreck, LLC, supra, 554 F.3d at p. 745.) 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." (Ibid.) In such circumstances, if state law provides for fees where federal law does not, there is a conflict and the state law must yield. (Ibid.; see PLIVA, Inc. v. Mensing (2011) 564 U.S. ___, ___ [180 L.Ed.2d 580, 131 S.Ct. 2567, 2577] ["Where state and federal law `directly conflict,' state law must give way."].)
Gagliardo v. Connaught Laboratories, Inc. (3d Cir. 2002) 311 F.3d 565 illustrates that an award made under a parallel and overlapping state claim is not perforce an award made under the ADA. There, the plaintiff sued under both the ADA and a "virtually identical" state statute and obtained a $2.5 million judgment, undifferentiated as between the two claims. (Gagliardo, at p. 570.) The defendant argued on appeal that a federal statute capping damages under the ADA necessarily limited the damages award. (See 42 U.S.C. § 1981a(b)(3).) Drawing on the reasoning of two title VII cases, Passantino v. Johnson & Johnson Consumer Products (9th Cir. 2000) 212 F.3d 493 and Martini v. Federal National Mortgage Assn. (D.C.Cir. 1999) 336 U.S. App.D.C. 289 [178 F.3d 1336], the Third Circuit disagreed. It explained that a state can authorize liability and damages for the very same acts prohibited by the ADA without any such award constituting an award for ADA
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. Similarly, nothing in the available committee reports discussing the ADA suggests Congress even considered the question. Absent congressional intervention, California has every right to adopt whatever fee regime it deems appropriate upon invocation of state law remedies. It may establish both the costs of and the potential payoffs for seeking a state remedy while leaving undisturbed the corresponding costs and payoffs that flow from invocation of a comparable federal remedy.
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.
E. Obstacle Preemption
Jankey argues that application of section 55's fee-shifting provision is preempted because it stands as an obstacle to the purposes and objectives of Congress in limiting the recovery of fees for defending against ADA claims. (See Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 372-373 [147 L.Ed.2d 352, 120 S.Ct. 2288]; Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Cal.4th at p. 936.) Even if we set aside ADA section 501(b)'s insulation of statutes like section 55 from obstacle preemption, we can identify no way in which the fee award here poses a barrier to congressional objectives.
As Jankey correctly notes, the policy behind the ADA's fee standard is the policy behind the Christiansburg standard for a defendant's recovery of attorney fees. The United States Supreme Court identified a pair of competing considerations underlying its selection of that standard. On the one hand, Congress "wanted to protect defendants from burdensome litigation having
These policies are not implicated in cases where a plaintiff voluntarily invokes a state law remedy that overlaps with the ADA. The heightened ADA standard for defense fee awards, requiring a showing of frivolousness, is intended to avoid chilling the assertion of ADA claims. But because it is only the invocation of the state law remedy, and not the ADA, that triggers the award of fees in cases of overlap, it is only the state law remedy, and not the ADA, that stands to be chilled by the broader availability of defense fees. Plaintiffs can always sue under the ADA alone, safe in the knowledge that even if they lose, defense fees will be available only in accordance with Christiansburg. Alternatively, they can add one or more state law remedies if they view the potential benefits as superior to the potential burdens. If instead the risks appear to exceed the potential rewards, they can omit a given state law claim, at no loss to enforcement of their ADA rights. (See Molski v. Arciero Wine Group, supra, 164 Cal.App.4th at p. 792; Goodell v. Ralphs Grocery Co., supra, 207 F.Supp.2d at p. 1129.) Such a regime is fully consistent with Congress's apparent willingness to allow plaintiffs to freely determine what remedies they pursue. (See H.R.Rep. No. 101-485(III), 2d Sess., p. 70 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News, p. 493; Wood v. County of Alameda, supra, 875 F.Supp. at pp. 663-664.) Congress's concern about not discouraging would-be plaintiffs from availing themselves of the ADA thus offers no reason to preclude states from establishing different fee award regimes for independently established state law remedies.
IV. Fees for Work Overlapping Defense of the ADA Claim Are Not Barred Under State Law
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. (See Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927 [275 Cal.Rptr. 187, 800 P.2d 543].) On remand, the trial court is to fix the amounts.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Chin, J., Corrigan, J., and Liu, J., concurred.