Filed 12/17/12




      IN THE SUPREME COURT OF CALIFORNIA


LES JANKEY et al.,                    )
                                      )
           Plaintiffs and Appellants, )                            S180890
                                      )
           v.                         )                     Ct.App. 1/4 A123006
                                      )
SONG KOO LEE etc.,                    )                San Francisco City & County
                                      )               Super. Ct. No. CGC07-463040
           Defendant and Respondent. )
____________________________________)


        Sued under state and federal law for disability access discrimination,
defendant Song Koo Lee prevailed and sought attorney fees. The trial court
concluded fees for a prevailing defendant under Civil Code section 55 were
mandatory and awarded $118,458, and the Court of Appeal affirmed.1 We
consider two principal challenges to the award: whether the trial court erred in
determining that section 55 fees are mandatory, and whether an award of
mandatory fees is preempted by the federal Americans with Disabilities Act of
1990 (42 U.S.C. § 12101 et seq.; ADA). We conclude the plain language of
section 55 makes an award of fees to any prevailing party mandatory, and the
ADA does not preempt this part of the state‟s attorney fee scheme for disability
access suits. Accordingly, we affirm the judgment of the Court of Appeal.



1       All further unlabeled statutory references are to the Civil Code.
                   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.2 Jankey contended a four-inch step
located at the entry of the market was an architectural barrier that prevented him
and other wheelchair-bound individuals from wheeling into the store. Jankey
asserted violations of the federal ADA, the Unruh Civil Rights Act (§ 51 et seq.),
the Disabled Persons Act (§ 54 et seq.),3 and Health and Safety Code section
19955 et seq. Among other relief, Jankey sought an injunction under state and
federal law compelling Lee to make K&D Market readily accessible to individuals
with disabilities. (See § 55; 42 U.S.C. § 12188(a)(2).)
       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).)

2      Jankey was originally joined by a second plaintiff, a nonprofit disability
rights organization, but the trial court concluded it lacked standing and the
organization plays no role in this appeal.
3       “Part 2.5 of division 1 of the Civil Code, currently consisting of sections 54
to 55.3, is commonly referred to as the „Disabled Persons Act,‟ although it has no
official title.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 674, fn. 8.)




                                          2
       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.”4 (Christiansburg Garment Co. v.
EEOC (1978) 434 U.S. 412, 422.) Without directly addressing preemption, the
trial court concluded Lee was entitled to a mandatory fee award under Molski v.
Arciero Wine Group (2008) 164 Cal.App.4th 786.5 The court awarded Lee
$118,458 in fees, most of the approximately $130,000 originally sought.
       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.




4     Consistent with common practice, we use “frivolous” as shorthand for this
formulation.
5      Accordingly, the trial court made no finding as to whether Jankey‟s claims
could be characterized as frivolous.



                                          3
                                     DISCUSSION

       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
state statutes each prohibit access discrimination on the basis of disability, but they
vary in the remedies they provide.
       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



                                           4
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.)
       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 places of public
accommodation.” (Munson, at p. 674, fn. 8; see §§ 54, subd. (a), 54.1,
subd. (a)(1).) As with the Unruh Civil Rights Act, the Legislature amended the
Disabled Persons Act to incorporate ADA violations and make them a basis for
relief under the act. (§§ 54, subd. (c), 54.1, subd. (d); Munson, at p. 674; Wilson v.
Murillo (2008) 163 Cal.App.4th 1124, 1131.) The available remedies include
actual damages (and in some cases as much as treble damages), with a $1,000
minimum recovery. (§ 54.3, subd. (a); Molski v. Arciero Wine Group, supra, 164
Cal.App.4th at p. 792.) Recognizing the overlap between the Unruh Civil Rights
Act and the Disabled Persons Act, the Legislature expressly foreclosed double
recovery. (§ 54.3, subd. (c); Munson, at p. 675.)
       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




                                          5
p. 792.)6 It is broader in two respects than the private right of action authorized by
section 54.3: section 55 extends standing to those “potentially aggrieved,” not just
those who have been actually denied access, and relief may be predicated on
potential violations not only of sections 54 and 54.1 but also of various provisions
in both the Government Code and the Health and Safety Code.7 (§ 55; see Turner
v. Association of American Medical Colleges, supra, 193 Cal.App.4th at p. 1059;
Molski, at p. 792.) Section 55 is also narrower than section 54.3 in one significant
respect: it authorizes only injunctive relief, not damages. (Molski, 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.



6       In full, section 55 provides: “Any person who is aggrieved or potentially
aggrieved by a violation of Section 54 or 54.1 of this code, Chapter 7
(commencing with Section 4450) of Division 5 of Title 1 of the Government
Code, or Part 5.5 (commencing with Section 19955) of Division 13 of the Health
and Safety Code may bring an action to enjoin the violation. The prevailing party
in the action shall be entitled to recover reasonable attorney‟s fees.”
7     Here, Jankey invoked relevant provisions of the Health and Safety Code,
seeking injunctive relief for violations of Health and Safety Code section 19955 et
seq.



                                          6
       Two aspects of the plain language of section 55 are dispositive. First, the
statute was written to allow fees for a “prevailing party,” not just a prevailing
plaintiff. The Legislature knows how to write both unilateral fee statutes, which
afford fees to either plaintiffs or defendants, and bilateral fee statutes, which may
afford fees to both plaintiffs and defendants. “When the Legislature intends that
the successful side shall recover its attorney‟s fees no matter who brought the legal
proceeding, it typically uses the term „prevailing party.‟ ” (Stirling v. Agricultural
Labor Relations Bd. (1987) 189 Cal.App.3d 1305, 1311; see also Molski v.
Arciero Wine Group, supra, 164 Cal.App.4th at p. 790; cf. §§ 52.1, subd. (h)
[attorney fees only for “petitioner or plaintiff”], 54.3, subd. (a) [“Any person” who
violates specified statutes “is liable for . . . attorney‟s fees as may be determined
by the court”].) The Legislature chose in section 55 to enact a bilateral fee statute,
granting defendants as well as plaintiffs the opportunity for a fee award.
       Second, while the determination that a defendant is a prevailing party is
generally discretionary (see Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332),
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

                                            7
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 defendants a right to fees. As
originally drafted, the new injunctive provision would have granted fees only to
prevailing plaintiffs. (Assem. Bill No. 2471 (1973-1974 Reg. Sess.) § 1, as
introduced May 15, 1973 [“If successful in obtaining an injunction, the physically
disabled person may be awarded reasonable attorney‟s fees . . . .”].) The
Legislature specifically amended Assembly Bill No. 2471 to make the fee
provision bilateral. (Assem. Bill No. 2471 (1973-1974 Reg. Sess.) § 1, as
amended in Sen., Apr. 22, 1974 [substituting “prevailing party” language]; Legis.
Counsel‟s Dig., Assem. Bill No. 2471 (1973-1974 Reg. Sess.) 2 Stats. 1974,
Summary Dig., p. 242 [the law “[s]pecifies that prevailing party is entitled to
reasonable attorney‟s fees.”].) We would do violence to the language of the
statute were we to disregard that change.8

8      Jankey‟s reliance on the legislative history of a predecessor bill, Assembly
Bill No. 1547 (1972 Reg. Sess.) is equally unpersuasive. Like Assembly Bill
No. 2471 (1973-1974 Reg. Sess.), Assembly Bill No. 1547 was originally drafted
                                                          (footnote continued on next page)


                                          8
        Jankey also argues section 55 is in pari materia with the ADA and other
state laws protecting disability access, like the Unruh Civil Rights Act, and its fee
provision thus should be interpreted similarly. But statutes on the same subject
will be read in a consistent fashion only “to the extent their language permits.”
(Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1091.) The text of section 55
marks a clear departure from that of the Unruh Civil Rights Act (§ 52.1, subd. (h)
[awarding fees only to a “petitioner or plaintiff”]) and the ADA (42 U.S.C.
§ 12205 [allowing that a court “in its discretion, may allow” fees]). Its fee
provision mandates an award to all prevailing parties, including prevailing
defendants.

        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 accord with principles set
forth in Christiansburg Garment Co. v. EEOC, supra, 434 U.S. 412

(footnote continued from previous page)
to allow only prevailing plaintiffs attorney fees. (Assem. Bill No. 1547 (1972
Reg. Sess.) § 1, as introduced Mar. 15, 1972.) But unlike Assembly Bill No.
2471, it was never amended to extend fees to prevailing parties and went down to
defeat.



                                          9
(Christiansburg). (See H.R.Rep. No. 101-485(II), 2d Sess., p. 140 (1990),
reprinted in 1990 U.S. Code Cong. & Admin. News, p. 423; H.R.Rep. No. 101-
485(III), 2d Sess., p. 73 (1990), reprinted in 1990 U.S. Code Cong. & Admin.
News, p. 496.) Under Christiansburg, while prevailing plaintiffs should receive
fees unless an award would be unjust (Christiansburg, at pp. 416-417), prevailing
defendants may receive fees only when the trial court finds that a plaintiff‟s claim
is “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate
after it clearly became so” (id. at p. 422; see, e.g., Bercovitch v. Baldwin School,
Inc. (1st Cir. 1999) 191 F.3d 8, 11 [holding that fees are available to an ADA
defendant only upon a showing of frivolousness]; Summers v. A. Teichert & Son,
Inc. (9th Cir. 1997) 127 F.3d 1150, 1154 [same]; Bruce v. City of Gainesville, Ga.
(11th Cir. 1999) 177 F.3d 949, 951-952 [same]). Jankey contends Congress‟s
adoption of this more stringent federal standard should preempt the award of fees
under a lesser state standard for overlapping work done to defend against both
state and federal claims.
              B. General Preemption Principles
       “The supremacy clause of the United States Constitution establishes a
constitutional choice-of-law rule, makes federal law paramount, and vests
Congress with the power to preempt state law.” (Viva! Internat. Voice for Animals
v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935; see
U.S. Const., art. VI, cl. 2; Arizona v. United States (2012) 567 U.S. ___, ___ [132
S.Ct. 2492, 2500-2501].) “Congress may exercise that power by enacting an
express preemption provision, or courts may infer preemption under one or more
of three implied preemption doctrines: conflict, obstacle, or field preemption.”
(Brown v. Mortensen (2011) 51 Cal.4th 1052, 1059.)
       In both express and implied preemption cases, whether preemption will be
found in a given case depends foremost on congressional intent. (Wyeth v. Levine

                                          10
(2009) 555 U.S. 555, 565; 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; 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
       Here, Congress has spoken to preemption directly: a construction clause in
the ADA spells out the act‟s intended effect on state laws. The clause disavows
any broad preemptive intent, instead permitting states to enact and enforce
complementary laws: “Nothing in this Act shall be construed to invalidate or limit
the remedies, rights, and procedures of any . . . law of any State or political
subdivision of any State or jurisdiction that provides greater or equal protection for
the rights of individuals with disabilities than are afforded by this Act.” (42
U.S.C. § 12201(b) (hereafter sometimes ADA § 501(b)).)
       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).)9 Laws in the latter category are,

9     See also House of Representatives Reports, report No. 101-485(II), 2d
Session, page 135 (1990), reprinted in 1990 United States Code Congressional and
Administrative News, page 418 (“Congress does not intend to displace any of the
                                                            (footnote continued on next page)


                                          11
by negative implication, not shielded from preemption. The construction clause,
however, does not expressly preempt these less protective laws; it does not
categorically declare that any law providing lesser protection than the ADA is
invalid. In the absence of either express preemption or a shield against
preemption, it follows that such laws are invalid to the extent standard conflict or
obstacle preemption principles would require their displacement.10
        We previously have recognized the congressional “ „power to preclude
conflict [and obstacle] preemption, allowing states to enforce laws even if those
laws are in direct conflict with federal law or frustrate the purpose of federal
law.‟ ” (Viva! Internat. Voice for Animals v. Adidas Promotional Retail
Operations, Inc., supra, 41 Cal.4th at p. 945, fn. 9; see Geier v. American Honda
Motor Co. (2000) 529 U.S. 861, 872 [acknowledging that Congress has the
constitutional power to limit implied preemption].) Congress can determine that,
so long as a state law affords equal or greater protection than the ADA, it
categorically should be treated as not preempted. (See Wood v. County of
Alameda (N.D.Cal. 1995) 875 F.Supp. 659, 663-664 [ADA § 501(b) is intended to
ensure plaintiffs are never denied on preemption grounds the benefits of such



(footnote continued from previous page)

rights or remedies available under other . . . state laws . . . which provide greater or
equal protection to individuals with disabilities.”); House of Representatives
Reports, report No. 101-485(III), 2d Session, page 70 (1990), reprinted in 1990
United States Code Congressional and Administrative News, page 493 (same).
10     In contrast, neither express nor field preemption bears on state laws
protecting the rights of individuals with disabilities. ADA section 501‟s
construction clause aside, the ADA contains no express preemption clause. As
well, ADA section 501‟s express preservation of the several states‟ authority to
regulate in the area of disability discrimination negates any argument that
Congress intended to occupy the field of disability rights protection.



                                          12
compatible state statutes].) Our first task, then, is to determine whether section 55
qualifies as such a law.
       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.) 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 this state‟s Fair Employment and Housing Act
(Gov. Code, § 12900 et seq.), which at the time unlike the ADA did not protect

                                           13
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.)
        The House Judiciary Committee‟s report reflects a congressional desire to
preserve for the several states the ability to provide those with disabilities
additional remedial options, even options that might in some respects be less
inclusive than federal law or offer lesser relief, if another feature of the state
avenue for redress might render it more desirable or beneficial. Essentially,
Congress embraced a cafeteria approach in which those with disabilities, rather
than being restricted to a single federal remedy, could pick and choose from
among federal and state remedies and procedures the avenues for relief they
thought most advantageous. It follows that if a state remedial scheme is in any
regard superior to the ADA, courts should conclude it is not preempted and instead
allow plaintiffs the choice whether to seek relief under federal law, state law, or
both.
        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). In contrast, the ADA requires proof of
ongoing disability discrimination or reasonable grounds to believe the plaintiff is

                                           14
“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 also
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,11 courts interpreting the ADA have generally required
more, denying injunctive claims for want of standing in the absence of evidence a
plaintiff intends to use a facility or would do so but for the presence of the
challenged barrier.12 Accordingly, an individual with a disability might choose to




11      See Hankins v. El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 526
(upholding injunctive relief for a plaintiff who never attempted to use a
noncompliant wheelchair lift because the plaintiff was still “at least potentially
aggrieved”); Molski v. Arciero Wine Group, supra, 164 Cal.App.4th at page 792 (a
§ 55 plaintiff “will not be required to prove an actual attempt to access the
facility” in order to obtain relief).
12      See, e.g., Steger v. Franco, Inc. (8th Cir. 2000) 228 F.3d 889, 893
(rejecting the standing of access plaintiffs who argued simply that “they are
disabled and may enter the building in the future.”); McInnis-Misenor v. Maine
Medical Center, supra, 319 F.3d at pages 68-73 (affirming dismissal on standing
grounds where a disabled plaintiff could show only that she potentially might
encounter architectural barriers in a hospital, not that a denial of access was
imminent); Milani, Wheelchair Users Who Lack “Standing”: Another Procedural
Threshold Blocking Enforcement of Titles II and III of the ADA (2004) 39 Wake
Forest L.Rev. 69, 84-85 and footnote 68 (collecting cases).




                                          15
sue under section 55, in addition to or instead of the ADA, because of this lower
standing hurdle. ADA section 501(b) preserves against preemption such a law.13
       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.14 ADA section 501(b) relieves courts of the need to parse every
aspect of a state law to determine whether, on balance, the state law is equally or
more advantageous as a whole. Instead, that question is left to individual plaintiffs
who may pick and choose the remedies they think worth invoking according to
their particular circumstances.
       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


13      Standing is not the only way in which section 55 is broader than the ADA.
Section 55 enforces a range of state access requirements above and beyond those
contained in the ADA and its enabling regulations. (See § 55; Gov. Code, § 4450
et seq.; Health & Saf. Code, § 19955 et seq.) For purposes of preemption,
however, we need only identify at least one superior aspect of the state law
remedy.
14      Whether all would-be plaintiffs would in fact view the different state law
fee regime as less desirable than the ADA‟s regime is unclear. Some potential
plaintiffs might prefer the state rule, under which every prevailing plaintiff is
“entitled” to recover reasonable attorney fees (§ 55), to the federal rule, under
which fees can be denied a prevailing plaintiff if “ „special circumstances would
render such an award unjust‟ ” (Christiansburg, supra, 434 U.S. at pp. 416-417,
quoting Newman v. Piggie Park Enterprises (1968) 390 U.S. 400, 402). And
some plaintiffs might prefer as well the possibility of recovering fees under a
catalyst theory, available under section 55 but not the ADA. (Compare Mundy v.
Neal (2010) 186 Cal.App.4th 256, 259 [recognizing that under § 55 a plaintiff
might recover fees for triggering voluntary changes in a defendant‟s conduct] with
Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and
Human Resources (2001) 532 U.S. 598, 610 [holding that the ADA does not
authorize catalyst theory recovery, instead requiring a favorable judgment or
consent decree].)



                                           16
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 omitted it. Having invoked section 55, he cannot now
be heard to complain that it has brought him only a bill for attorney fees.
              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. ___, ___ [131 S.Ct. 2567, 2577] [“Where state
and federal law „directly conflict,‟ state law must give way.”])
       We disagree with the Ninth Circuit‟s premise, that fees for defending a
state law claim are necessarily fees for ADA work if the claims overlap. Lee
would have been entitled to the same fees whether or not Jankey pleaded an ADA

                                          17
claim; the pleading of an ADA claim was neither a necessary nor a sufficient
cause of the fee award. The fee award here is not in any meaningful sense for or
on account of having to defend against an ADA claim, but instead a consequence
of Jankey‟s purely voluntary decision to seek additional state remedies. State law
does not declare ADA fees compensable, only section 55 fees; it does not dictate
an outcome at odds with federal law.15
       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. (Id. 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. Fed. Nat. Mortgage Assn.
(D.C. Cir. 1999) 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 violations and
violating the ADA ceiling. (Gagliardo, at pp. 570-572.) So it is here; an attorney
fee award under state law for defending against a nearly identical state law claim
does not automatically become an award under the ADA, even if the same work is



15      Jankey repeatedly describes section 55 as a law imposing fees “for” a
nonfrivolous ADA action. Such a law would be preempted; a state law that
provided state court defendants with prevailing party fees for defending against
federal ADA access claims under 42 United States Code section 12182 would, in
fact, conflict with federal law. But section 55 does no such thing.



                                         18
involved, and thus need not conflict with the ADA‟s limits on defense attorney
fees.
        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; 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.



                                          19
       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 no
legal or factual basis.” (Christiansburg, supra, 434 U.S. at p. 420; accord, Fox v.
Vice (2011) 563 U.S. ___, ___, fn. 3 [131 S.Ct. 2205, 2215, fn. 3].) On the other,
“[t]o take the further step of assessing attorney‟s fees against plaintiffs simply
because they do not finally prevail would substantially add to the risks inhering in
most litigation and would undercut the efforts of Congress to promote the vigorous
enforcement of the provisions of [civil rights law].” (Christiansburg, at p. 422.)
Fee awards in cases other than those truly “unreasonable or without foundation
. . . . could discourage all but the most airtight claims, for seldom can a
prospective plaintiff be sure of ultimate success.” (Ibid.) The differentiated
approach to fee awards in civil rights cases, with prevailing plaintiffs recouping
fees more readily than prevailing defendants, is necessary to “advance[] the
congressional purpose to encourage suits by victims of discrimination while
deterring frivolous litigation.” (Roadway Express, Inc. v. Piper (1980) 447 U.S.
752, 762.)
       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,

                                          20
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.
       These conclusions do not shift if, as Jankey urges, we focus solely on the
application of section 55 in this case. (See Crosby v. National Foreign Trade
Council, supra, 530 U.S. at p. 373 [obstacle preemption turns on whether, “ „under
the circumstances of [a] particular case, [the challenged state law] stands as an
obstacle to the accomplishment and execution of the full purposes and objectives
of Congress,‟ ” quoting Hines v. Davidowitz (1941) 312 U.S. 52, 67].) Nothing in
the prospect of owing attorney fees under section 55 could have deterred Jankey
from invoking his federal ADA rights here. He asserted them, and the trial court
concluded they had not been impaired, a conclusion Jankey has not challenged.
Nor will the fee award chill Jankey or others from asserting ADA rights in the
future. It may inspire reluctance to invoke section 55 rights, but that is a matter
for the Legislature to consider; it is no concern of Congress‟s, and it is no basis for
finding preemption.

                                          21
       IV. Fees for Work Overlapping Defense of the ADA Claim Are Not
           Barred Under State Law
       Preemption aside, Jankey and amicus curiae the Impact Fund argue that
state law should be read to foreclose fees for overlapping work done to defend
against both ADA and section 55 claims. The general rule is that where a non-fee-
shifting claim overlaps with a fee-shifting claim, it does not limit fee awards under
the fee-shifting claim. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124,
129-130.) An exception may arise where to award fees on the fee-shifting claim
would impair legislative policies implicated by the respective claims. (E.g., Mann
v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 342-343 [“The
issue of the proper amount of fees to be awarded when an attorney‟s time is
attributable to recoverable and nonrecoverable claims depends on the legislative
intent and policies underlying the specific fee-shifting scheme at issue.”]; Carver
v. Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 498, 504-506; cf. Fox v. Vice,
supra, 131 S.Ct. at p. 2215 [under federal law, limiting the amount of fees for
overlapping work based on a determination that Congress so intended].) But as
discussed in connection with conflict preemption, we have found no indication in
the ADA or its legislative history that Congress intended state fees for overlapping
state claims to be foreclosed, nor, as discussed in connection with obstacle
preemption, are we able to discern any policy that would be impaired. Likewise,
we have found nothing in the text or sparse legislative history of section 55 to
indicate fee recovery should be limited as a matter of state law based on overlap
with federal remedies. Accordingly, we decline to read state law as limiting an
award of section 55 fees on this basis.16

16     Jankey and amicus curiae the Impact Fund also argue that section 55 does
not authorize fees for work overlapping with Unruh Civil Rights Act and section
54.3 defense. (See Turner v. Association of American Medical Colleges, supra,
                                                          (footnote continued on next page)


                                            22
                                          DISPOSITION
        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.) On remand, the trial court is to fix the amounts.

                                                        WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




(footnote continued from previous page)

193 Cal.App.4th at p. 1054.) Jankey did not raise the issue in the trial court, the
Court of Appeal, or the petition for review. Because the issue is thus waived, we
do not consider it.



                                              23
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Jankey v. Lee
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 181 Cal.App.4th 1173
Rehearing Granted

__________________________________________________________________________________

Opinion No. S180890
Date Filed: December 17, 2012
__________________________________________________________________________________

Court: Superior
County: San Francisco
Judge: Patrick J. Mahoney

__________________________________________________________________________________

Counsel:

Thomas E. Frankovich; Law Offices of Lynn Hubbard and Scottlynn J. Hubbard IV for Plaintiffs and
Appellants.

Brag Seligman for the Impact Fund, Disability Rights Advocates, Disability Rights California, Disability
Rights Education and Defense Fund, Disability Rights Legal Center, Lawyers‟ Committee for Civil Rights
of the San Francisco Bay Area, Public Advocates, Public Counsel, Public Justice and the Western Center
on Law and Poverty as Amici Curiae on behalf of Plaintiffs and Appellants.

Law Offices of Charles S. Roseman, Charles S. Roseman, Richard D. Prager; LaFave & Rice, John J. Rice;
Law Office of Gary L. Simms and Gary L. Simms for Rosa Miller, Manuel Miller, Ana Maya, Blanca
Miller and Aida Masliah as Amici Curiae on behalf of Plaintiffs and Appellants.

Horvitz & Levy, David M. Axelrad, Andrea M. Gauthier; Livingston Law Firm, Renée Welze Livingston
and Jason G. Gong for Defendant and Respondent.

Dennis J. Herrera, City Attorney, Danny Chou, Chief of Complex and Special Litigation, and James M.
Emery, Deputy City Attorney, for League of California Cities as Amicus Curiae on behalf of Defendant
and Respondent.

Weintraub Genshlea Chediak, Lizbeth V. West, Charles L. Post and Brenda J. Begley for the California
Hotel & Lodging Association, the Golden Gate Restaurant Association, the California Parks Company, the
California Restaurant Association, the California Business Properties Association, Small Business
California, the San Francisco Chamber of Commerce, Building Owners and Managers Association of
California, the California Building Industry Association, the National Federation of Independent Business
Small Business Legal Center and the California Chamber of Commerce as Amici Curiae on behalf of
Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Scottlynn J. Hubbard IV
Law Offices of Lynn Hubbard
12 Williamsburg Lane
Chico, CA 95926
(530) 895-3252

Brag Seligman
Impact Fund
125 University Avenue, Suite 102
Berkeley, CA 94710
(510) 845-3473

David M. Axelrad
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA 91436-3000
(818) 995-0800
