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.

Ninth Circuit Issues Important Attorneys' Fees Decision

In an opinion filed on Friday in the case of Hubbard v. SoBreck, LLC, the Ninth Circuit resolved a very significant attorneys' fees question. The plaintiffs had filed suit under the ADA and the California Disabled Persons Act to challenge various barriers to accesibility at the defendants' restaurant. The parties settled many of the plaintiffs' claims before trial, and the plaintiffs voluntarily abandoned others, so the trial focused on only a few of plaintiffs' claims of inaccesibility. The district court, after a bench trial, ruled for the defendant on those claims. The defendants then moved for attorneys' fees under the ADA and the CDPA. The district court ruled that the defendants could not recover under the ADA -- which authorizes an award of fees to prevailing defendants only in cases where the plaintiff's claim was frivolous -- but could recover under the CDPA -- which the district court interpreted as authorizing an award of fees to any prevailing defendant.

On appeal, the Ninth Circuit did not address whether the district court's interpretation of the state-law attorneys' fees provision was correct. The court of appeals instead held that, "to the extent that Section 55 does authorize the award of fees to a prevailing defendant on nonfrivolous CDPA state claims that parallel nonfrivolous ADA claims, the ADA preempts Section 55 of the CDPA." This is likely to be a very significant ruling, because it takes away a tool that businesses can use to deter nonfrivolous ADA acessibility suits.

California Supreme Court Responds (Indirectly) to Businesses Complaining About Serial Disability Discrimination Litigation

And they say: Take it to the legislature!

On Thursday, the California Supreme Court issued an opinion in Angelucci v. Century Supper Club. Here's how the court described the issue and its holding:

We granted review in the present case to determine whether, in order to state a claim under Civil Code section 52, subdivision (a), the relevant remedial provision of the Unruh Civil Rights Act (Civ. Code, § 51 et seq; also hereinafter sometimes referred to as the Act), plaintiffs must demonstrate that they affirmatively requested nondiscriminatory treatment and were refused.

As we shall explain, we conclude that the text of the Act does not support defendant’s and the Court of Appeal’s assertion that, in order to recover under the Act, plaintiffs who are discriminated against when they present themselves at a business establishment and pay the price of admission also must demand equal treatment and be refused. Nor do we believe it would be consistent with the policy of the Act, or with our case law, to read such a requirement into the language of the Act. Accordingly, the judgment rendered by the Court of Appeal is reversed.

"Great decision," I hear you saying, "but what does this have to do with disability law?" Well, flip to Part III of the court's decision, and you read:

The trial court’s and the Court of Appeal’s interpretation of section 52(a) reflects in part defendant’s assertion that Angelucci and the other men involved in the present case are professional plaintiffs who “shake down” business entities on the basis of assertedly technical violations of civil rights laws and similar enactments, and that they and their attorneys engage in this practice simply to make a living — unmotivated by any desire to eliminate discrimination or to redress any actual injury. Defendant claims that plaintiffs made repeated unannounced visits to defendant’s business establishment in order to increase the statutory damages they could seek for multiple violations of the Act, and defendant accuses plaintiffs and their attorneys of being “bounty hunters” who have been involved in numerous similar lawsuits. Defendant also contends that meritless, abusive litigation of this type is proliferating in California and generally results in the extortion of a settlement on the basis of the plaintiff’s unsupported factual allegations.

[Here, the court dropped a footnote that referred to the ADA serial litigation issue: "Some writers have argued that compliance with the ADA remains elusive, justifying the continued use of the private right of action in spite of occasional abuse. (See Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation (2006) 54 UCLA L.Rev. 1, 15, 21 [“whether a class of litigation unduly burdens the courts necessarily depends on a normative assessment of the importance of that class”].) Other commentators chronicle instances in which a single plaintiff or law firm filed hundreds of ADA claims, some alleging assertedly technical or de minimis variations from applicable accessibility standards, and the authors consider whether such asserted litigation abuse warrants restriction of remedies under the ADA. (See Becker, Private Enforcement of the Americans with Disabilities Act via Serial Litigation: Abusive or Commendable? (2006) 17 Hastings Women’s L.J. 93, 97-99, 113 [describing assertedly abusive ADA litigation in Pennsylvania, Florida, and California and suggesting adoption of “safe harbor” provision in the ADA to protect businesses that undertake good faith efforts to make premises accessible]; McCabe, California Disability Anti-Discrimination Law: Lighthouse in the Storm, or Hunt for Buried Treasure? (2005) 36 McGeorge L.Rev. 661, 679-681, 686-689 [noting the problem and describing the debate]; see also Milani, Go Ahead, Make My 90 Days: Should Plaintiffs Be Required to Provide Notice to Defendants Before Filing Suit under Title III of the Americans with Disabilities Act? (2001) 2001 Wisc. L.Rev. 107, 185 [arguing that title III of the ADA already incorporates a notice provision from another statute].)"]

Although we share to some degree the concerns voiced by the trial court and the appellate court below and by defendant and its amici curiae regarding the potential for abusive litigation being brought under the Act, these concerns do not supply a justification for our inserting additional elements of proof into the cause of action defined by the statute. It is for the Legislature (or the People through the initiative process) to determine whether to alter the statutory elements of proof to afford business establishments protection against abusive private legal actions and settlement tactics. It is for the Legislature, too, to consider whether limitations on the current statutory private cause of action might unduly weaken enforcement of the Act or place unwarranted barriers in the way of those persons who suffer discrimination and whose interests were intended to be served by the Act.

Ninth Circuit: Prior Notice Not Necessary to Get Attorneys' Fees in Title III Case

Earlier this week, in an unpublished memorandum in Doran v. Del Taco, Inc., the Ninth Circuit issued yet another good decision on attorneys' fees in Title III cases. (See earlier discussion here.) The district court had denied thet plaintiff attorneys' fees, even though he had prevailed, because he had not given the defendant restaurant notice and an opportunity to cure the accessibility problems without litigation. The Ninth Circuit reversed. It held that the district court abused its discretion when it "denied fees by subjecting Doran to a [notice] requirement not found in the ADA or the case law."

Ninth Circuit on Molski

Today, the Ninth Circuit issued an opinion in a case brought by Jarek Molski, who should be familiar to readers of this blog. Molski is a well-known serial ADA public accommodations litigant in Southern California, who has been declared a "vexatious litigant" by one court. The case the court decided today, Molski v. M.J. Cable, Inc., involved Molski's suit under the ADA and California's Unruh Civil Rights Act against a restaurant in Woodland Hills. The evidence at trial made clear that the restaurant was inaccessible in violation of Title III of the ADA, but the jury found no violation. Rejecting a motion for a new trial, the district judge concluded that the jury could have properly found that Molski was not an "individual" entitled to protection under the ADA but instead was a business (who makes money bringing accessibility suits).

In today's opinion by Judge Ferguson, the Ninth Circuit reversed. The court concluded that the evidence compelled a finding that the restaurant violated the ADA. As for the notion that Molski wasn't an "individual," the court found no basis in the statute for that reading. These holdings seem to me quite correct. And I have to love that the court cited my UCLA piece in support of its holding!