                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

LYNN J. HUBBARD; BARBARA J.           
HUBBARD,
             Plaintiffs-Appellants,
               v.
SOBRECK, LLC, dba: JOHNNY                 No. 06-56870
CARINOS,                                    D.C. No.
             Defendant-Appellee,         CV-04-01129-
DOES I THROUGH X INCLUSIVE,                WQH/LSP
             Defendant-Appellee,           OPINION
              and
EASTLAKE VILLAGE MARKETPLACE
LLC,
                        Defendant.
                                      
       Appeal from the United States District Court
         for the Southern District of California
       William Q. Hayes, District Judge, Presiding

                 Argued and Submitted
           May 12, 2008—Pasadena, California

                    Filed June 27, 2008

   Before: Mary M. Schroeder, Barry G. Silverman, and
            Marsha S. Berzon, Circuit Judges.

                Opinion by Judge Schroeder




                           7715
                  HUBBARD v. SOBRECK, LLC                 7717


                         COUNSEL

Scottlynn J. Hubbard, Chico, California, for plaintiffs-
appellants Lynn J. Hubbard, et al.

Donald Merkin, San Diego, California, for defendant- appel-
lee, Sobrek, LLC, et al.


                         OPINION

SCHROEDER, Circuit Judge:

   Plaintiffs-appellants Lynn and Barbara Hubbard filed paral-
lel claims for violations of both the Americans with Disabili-
ties Act (“ADA”) and the California Disabled Persons Act
(“CDPA”). Their complaint alleged barriers that deprived
them of full and equal access to the restaurant operated by
defendants-appellees SoBreck, LLC, dba Johnny Carino’s.
We consider whether the district court properly awarded attor-
ney’s fees to defendants under the California Act, in circum-
stances where fees were not authorized under the federal
ADA. We hold that the award of fees under state law was pre-
empted by federal law.

I.   Background

   Plaintiffs’ complaint originally alleged thirty-eight viola-
tions of federal and California statutes, many of which were
7718              HUBBARD v. SOBRECK, LLC
settled in a settlement agreement prior to trial, and others
which were abandoned before trial. The district court consid-
ered the remaining charges during a two-day bench trial. It
found that plaintiffs failed to present sufficient evidence to
establish they were denied full and equal enjoyment of the
restaurant’s services and facilities. The court entered a judg-
ment in defendants’ favor on all of plaintiffs’ remaining
claims. Defendants subsequently moved for attorney’s fees
and costs pursuant to the ADA and Section 55 of the CDPA.

   The district court found that plaintiffs’ claims were not
frivolous and that fees were not warranted under the ADA,
which authorizes fees only on frivolous claims. Section 55 of
the CDPA, however, authorizes fees to the “prevailing party.”
The district court awarded fees to the defendants under this
section.

   The principal issue on appeal is whether the award of fees
to a prevailing defendant under the CDPA is inconsistent
with, and therefore preempted by, the ADA. The issue of pre-
emption was not raised below, so the district court did not
have an opportunity to rule on it. It is an issue of law, how-
ever, which may be considered for the first time on appeal.
See Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985).
Because our district courts have been called upon, from time
to time, to consider whether fees may be awarded to a prevail-
ing defendant under Section 55 when fees are precluded by
the ADA, we consider the issue.

II.    Analysis

   We begin by observing that for federal law to preempt state
law, it is not necessary that a federal statute expressly state
that it preempts state law. Federal law preempts state law if
the state law “actually conflicts” with federal law. Cal. Fed.
Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 280-81 (1987)
(“Cal. Fed. Sav.”). In this case, federal law, the ADA, makes
an award of attorney’s fees to the prevailing party discretion-
                   HUBBARD v. SOBRECK, LLC                   7719
ary. It provides that “[T]he court or agency, in its discretion,
may allow the prevailing party . . . a reasonable attorney’s fee
. . . .” 42 U.S.C. § 12205 (emphasis added). Courts have inter-
preted this to mean that only plaintiffs who bring frivolous
claims are to be saddled with paying attorney’s fees to the
defendant. See Summers v. Teichert & Son, Inc., 127 F.3d
1150, 1154 (9th Cir. 1997).

   Under the California statute, however, at least on its face
and as the district court interpreted it, an award to a prevailing
defendant does not turn on whether the plaintiff’s claim was
frivolous. Fees are not discretionary; they are mandatory. Sec-
tion 55 provides, “The prevailing party in the action shall be
entitled to recover reasonable attorney’s fees.” Cal. Civ. Code
§ 55 (emphasis added).

   [1] A violation of the federal ADA constitutes a violation
of the CDPA. See, e.g., Cal. Civ. Code §§ 54(c), 54.1(d),
54.2(b). Therefore, to the extent that California’s Section 55
mandates the imposition of fees on a losing plaintiff who
brought both a nonfrivolous ADA action and a parallel action
under Section 55, an award of attorney’s fees under Section
55 would be inconsistent with the ADA, which would bar
imposition of fees on the plaintiff. In such a case, the proof
required to show a violation of the CDPA and of the ADA is
identical. In that circumstance, it is impossible to distinguish
the fees necessary to defend against the CDPA claim from
those expended in defense against the ADA claim, so that a
grant of fees on the California cause of action is necessarily
a grant of fees as to the ADA claim. As federal law does not
allow the grant of fees to defendants for non-frivolous ADA
actions, we must conclude that preemption principles preclude
the imposition of fees on a plaintiff for bringing nonfrivolous
claims under state law that parallel claims also filed pursuant
to the federal law. See Cal. Fed. Sav., 479 U.S. at 280-81.

  In defense of the fee award in this case, defendants rely on
two federal district court cases that awarded attorney’s fees to
7720               HUBBARD v. SOBRECK, LLC
prevailing defendants under the CDPA, even though the
claims were not frivolous under the ADA. See Jones v. Wild
Oats Markets, Inc., 467 F. Supp. 2d 1004 (S.D. Cal. 2006);
Goodell v. Ralphs Grocery Co., 207 F. Supp. 2d 1124 (E.D.
Cal. 2002). Neither of these cases, however, considered the
issue of preemption.

   In Goodell, the district court expressly decided not to award
attorney’s fees under the ADA because the plaintiff’s claims
were not frivolous. 207 F. Supp. 2d at 1125-26. It imposed
fees under Section 55, holding that the imposition of fees on
the prevailing party was not discretionary under the state stat-
ute. Id. at 1126, 1128, 1129. The opinion, however, looked
only to the language of the statutes and did not consider the
issue of preemption, which was apparently not raised.

   In Jones, the district court awarded fees under the CDPA
on all five of the claims on which the defendant prevailed. It
awarded fees under the ADA for only the two of those claims
that the district court found “lacked an arguable basis in fact
or law and were frivolous.” 467 F. Supp. 2d at 1017. The
court in Jones relied on Goodell, and likewise did not con-
sider the issue of preemption.

   The district court’s decision in a third case, Edwards v.
Princess Cruise Lines, Ltd., 471 F. Supp. 2d 1032 (N.D. Cal.
2007), is consistent with the result we reach here, although it
did not discuss preemption. In Edwards, the district court did
not award fees under the ADA because it ruled the plaintiff’s
claims were not frivolous. Id. at 1033. The district court also
declined to award fees under Section 55, even though it had
granted defendant’s motion for summary judgment. As the
district court noted, Section 55 itself does not define “prevail-
ing party.” Id. The defendant urged the definition of “prevail-
ing party” as found in California Code of Civil Procedure
§ 1032(a)(4), and which was relied upon in Goodell and
Jones. That statute defines the term “prevailing party” for pur-
poses of awarding costs: “As used in this section, unless the
                   HUBBARD v. SOBRECK, LLC                  7721
context clearly requires otherwise: ‘Prevailing party’ includes
. . . a defendant in whose favor a dismissal is entered, a defen-
dant where neither plaintiff nor defendant obtains any relief,
and a defendant as against those plaintiffs who do not recover
any relief against that defendant.” Id. at 1033 & n.1 (quoting
Cal. Civ. Proc. Code § 1032(a)(4)).

   The Edwards court rejected this definition, holding that a
prevailing party entitled to costs under § 1032 is not necessar-
ily entitled to fees under Section 55. Id. at 1033-34. The court
in Edwards held that California courts have some discretion
under Section 55 to determine “whether there was a prevail-
ing party on a practical level.” Id. at 1034. The court also dis-
tinguished Goodell on the ground that Goodell was a decision
on the merits, whereas the plaintiff in Edwards was time-
barred, so the defendant in Edwards did not prevail for pur-
poses of awarding fees. Id. at 1034 & n.3. The district court
in Edwards provided additional reasons for its decision, id. at
1034-35, but it did not expressly consider the issue of pre-
emption.

   In challenging this fee award, plaintiffs cite to the unpub-
lished district court decision in Wilson v. Norbreck LLC, No.
CIV S-04-690DFLJFM, 2007 WL 1063050 (E.D. Cal. Apr. 9,
2007) (unpublished disposition), and it is also consistent with
the result we reach regarding preemption. The district court
there held that awarding fees to a prevailing defendant under
the CDPA, when the defendant would not be entitled to attor-
ney’s fees under the ADA, would violate public policy. Id. at
*3. The Wilson court also questioned the availability of fees
to a prevailing defendant under state law, noting that in Gun-
ther v. Lin, 50 Cal. Rptr. 3d 317, 332 n.18 (Ct. App. 2006),
the California Court of Appeal “left open the issue of whether
a prevailing defendant could recover attorney’s fees under
§ 55.” 2007 WL 1063050, at *2. The district court in Wilson
did not rule on this issue, but held that “when a plaintiff
brings parallel CDPA and ADA claims, the ADA fees provi-
sion controls as a matter of state law” because “[u]nder Cali-
7722              HUBBARD v. SOBRECK, LLC
fornia law, prevailing defendants cannot receive attorney’s
fees for defending claims that inextricably overlap with other
claims when a fee award is inappropriate for the defense of
the latter.” Id. at *3. The district court cited to Carver v.
Chevron U.S.A., Inc., 14 Cal. Rptr. 3d 467, 503-04 (Ct. App.
2004), which held it would violate public policy to award fees
to a defendant for defending common-law claims that over-
lapped its defense of state antitrust claims, for which fees
were available only to plaintiffs and not to defendants.

   [2] The federal district courts are thus in disagreement over
the proper interpretation of Section 55. For purposes of our
decision, we leave it to California courts to interpret Section
55 in a definitive way, and to decide authoritatively whether
it would mandate fees to all prevailing defendants. We hold
only 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.

   [3] The order awarding attorney’s fees is REVERSED and
the matter REMANDED with instructions to vacate the fee
award.
