Tuesday, July 08, 2008

California Court of Appeal Upholds Award of Attorneys' Fees Against Molski

Yesterday, in Molski v. Arciero Wine Group, the California Court of Appeal, Second District, upheld an award of attorneys' fees against Jarek Molski, the (in)famous serial litigant. The case involved claims, under the ADA and state law, of inaccessiblility in defendant's public accommodations. The court awarded the defendant attorneys' fees under Section 55 of the California Civil Code, and it specifically rejected Molski's argument that attorneys' fees should be awarded to prevailing defendants under Section 55 only in cases in which the plaintiff's claims were "frivolous, unreasonable, or groundless."

This decision seems pretty clearly to conflict with last week's decision by the Ninth Circuit in Hubbard v. SoBreck, LLC, about which I blogged last week. In Hubbard, the Ninth Circuit held that Section 55 is preempted to the extent that it authorizes an award of fees to prevailing defendants in nonfrivolous state-law accessibility claims that parallel ADA accessibility claims. Expect a petition for rehearing in the Ninth Circuit in Hubbard, an appeal to the California Supreme Court in Molski, or both. This seems like a conflict that can't be allowed to stand.

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