Filed 3/13/15 Pineda v. Bekhor CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


JORGE PINEDA,                                                        B255583

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC493265)
         v.

EZRA BEKHOR,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Joseph R.
Kalin, Judge. (Retired judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed.
         James S. Link for Defendant and Appellant.
         Law Offices of Dayton Magallanes and Dayton Magallanes for Plaintiff and
Respondent.
       Plaintiff, Jorge Pineda, who is a paraplegic, brought this action under state and
federal disability rights laws.1 He claimed that defendant Ezra Bekhor failed to place a
paper towel dispenser at a height accessible to someone in a wheelchair and sought
injunctive relief and statutory damages. When plaintiff voluntarily dismissed his claims,
defendant moved for attorney fees under a statute providing for attorney fees to the
prevailing party. The trial court found neither party prevailed because defendant had
lowered the paper towel dispenser after the litigation was filed and because plaintiff
dismissed his claims due to his ill health. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On October 4, 2012, plaintiff filed his complaint, alleging that eight days earlier,
while patronizing defendant’s coin-operated laundry facility, plaintiff was unable to
extract paper towels from any of the facility’s dispensers because they were mounted too
high above the floor. The complaint contained two causes of action: violation of the
Unruh Civil Rights Act and the ADA, and violation of the DPA (§§ 54, 54.1). Plaintiff
sought $4,000 in statutory damages, attorney fees, and injunctive relief for these alleged
violations.
       In his answer, defendant asserted that plaintiff contrived the lawsuit to extort
money from defendant given that plaintiff lived 26 miles from defendant’s laundry
facility and there were eight other laundry facilities within 2.5 miles from plaintiff’s
home. Attached to defendant’s answer was a list of 76 lawsuits plaintiff filed between
June 29, 2010, and July 18, 2012. In each of these cases, Attorney Dayton Magallanes
represented plaintiff.
       Defendant further alleged, among other defenses, that within 30 days after being
served with the complaint, defendant lowered the towel dispenser, and that the dispenser,



       1Plaintiff pleaded violations of the Unruh Civil Rights Act (Civ. Code, § 51), the
Americans with Disabilities Act (42 U.S.C. § 12182(b)(2)(A)(iv)) (ADA), and the
California Disabled Persons Act (Civ. Code, § 54 et seq.) (DPA). Undesignated statutory
references are to the Civil Code.
                                              2
as originally mounted, complied with all applicable federal and state regulations.2 The
parties subsequently became involved in a discovery dispute. On April 24, 2013,
defendant moved to compel further responses to form interrogatory 11.1, which queried
whether plaintiff had, in the past 10 years, filed actions or made claims for compensation
for his personal injuries. On August 9, 2013, the trial court ordered plaintiff to provide
further responses and ordered him to pay $2,160 in discovery sanctions to defendant
within 20 days. One week later, on August 16, 2013, plaintiff requested that the action be
dismissed with prejudice. Plaintiff did not pay the ordered sanctions.
       After plaintiff voluntarily dismissed the action, defendant filed a motion
requesting $11,300 in attorney fees under section 55 as the prevailing party in a DPA
claim for injunctive relief; this amount included the $2,160 awarded as discovery
sanctions.3 Defendant asserted that he was the prevailing party as that term is defined in
Code of Civil Procedure section 1032, subdivision (a).
       Plaintiff responded that “on a practical level,” no party prevailed. Plaintiff relied
on two photographs purportedly attached as exhibits A and B to his opposition, which
were included to show the locations of the paper towel dispenser before and after plaintiff
filed his complaint.4 Plaintiff argues that relocation of the towel dispenser was the
essence of the injunctive relief he sought in bringing this action.
       Plaintiff also argued that the voluntary dismissal was predicated on his urgent
health problems rather than the trial court’s discovery order. Plaintiff submitted a
declaration in which he stated that he began experiencing significant pain during his

       2 We note that it is not entirely clear whether the dispute was about one or more
towel dispensers. The court’s minute order denying the motion for attorney fees refers to
a single towel dispenser.
       3   Defendant also requested $1,417.90 in costs.
       4 The parties dispute whether these photographs were even appended to plaintiff’s
opposition below. Although they are included in plaintiff’s appendix herein, the photos
are not attached to the copy of the opposition available on the superior court’s Web site
(www.la.court.org). We note, however, that defendant referred to the photographs in his
reply below in arguing that they were not authenticated.
                                              3
deposition on June 13, 2013. He had an MRI on the same date, which revealed arthritis
in his hip from a previous dislocation and sitting too long; plaintiff also stated that he was
advised that he had a loose catheter. Plaintiff further declared that on August 15, 2013,
while in a rehabilitation center, he began to experience fever, chills, abdominal pain, loss
of appetite, low urine output, hallucinations, shallow breathing, a drop in his blood
pressure, and dizziness. Plaintiff was ultimately admitted to an intensive care unit on
August 19, 2013, for septic shock.
       Plaintiff’s attorney also submitted a declaration. He stated that plaintiff’s June 13,
2013 deposition had to be continued when plaintiff began to experience substantial pain.
Plaintiff’s caretaker contacted counsel on August 15, 2013, and advised him that
plaintiff’s condition was grave. Plaintiff’s counsel also represented to the trial court that
he filed the request for dismissal on August 16, 2013, solely on the basis of concern for
his client’s health and “ability to proceed to trial.” Alternatively, plaintiff contended that
under the ADA, defendant could not recover attorney fees unless plaintiff’s action was
frivolous or unreasonable.
       In reply, defendant informed the court that despite plaintiff’s claimed ill health,
plaintiff and his counsel filed nine new complaints after dismissing his case herein,
including one filed within two weeks of that dismissal, one before the scheduled trial
date, and one shortly thereafter. Defendant asserted that plaintiff’s motivation in
dismissing his case was not genuine, but instead to avoid exposure as a “serial litigant”
and to prevent his caretaker’s deposition. Instead of correction of the height of the towel
dispenser, plaintiff’s primary purpose in bringing this action was to collect statutory
damages and attorney fees. Plaintiff, moreover, did not produce admissible evidence that
the litigation caused defendant to modify his behavior because plaintiff’s before and after
photographs were not authenticated. Finally, defendant cited Jankey v. Lee (2012) 55
Cal.4th 1038 (Jankey) in arguing that the ADA’s standard for award of attorney fees was
inapplicable where defendant was seeking fees under section 55.



                                              4
       After taking the matter under submission, the trial court denied defendant’s motion
for attorney fees and costs: “Defendant repaired the architectural barriers as a result of
the lawsuit. Plaintiff dismissed the lawsuit due to his declining health. In that defendant
complied with the law and plaintiff’s actions were not frivolous or unreasonable the
Court finds neither party is the prevailing party and thus defendant is not entitled to
attorney fees.” Defendant filed this timely appeal.
       Pursuant to Government Code section 68081, we asked for letter briefs
(government code letter) addressing the following: What impact, if any, does defendant’s
inclusion of the attorney fees awarded as a discovery sanction in the total fees he was
seeking as a prevailing party, and the trial court’s denial of attorney fees to defendant as a
prevailing party, have on enforceability of the discovery sanctions award? We asked the
parties to consider Newland v. Superior Court (1995) 40 Cal.App.4th 608 (Newland) in
responding to our government code letter. Both parties filed letter briefs.
                                        DISCUSSION
Standard of review
       The issue of whether there was a legal basis to award attorney fees is reviewed de
novo. (Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 6.) The trial court’s
determination of whether a party prevailed is reviewed for abuse of discretion. (Heather
Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574 (Heather
Farms).) “The appropriate test for abuse of discretion is whether the trial court exceeded
the bounds of reason. When two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that of the trial
court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479.)
The trial court did not commit legal error because it did not make its ruling under
the ADA
       Plaintiff’s argument that because his action was not frivolous or unreasonable,
defendant was not entitled to a fee award is not well founded. While it is true that such a
finding is a prerequisite to a fee award under the ADA, there is no such requirement in

                                               5
section 55, which authorizes an award of attorney fees to the prevailing party in a DPA
claim for injunctive relief.5 In Jankey, the Supreme Court declined to engraft such a
requirement onto section 55 when the court held that the ADA’s attorney fee provision
did not preempt section 55: “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.” (Jankey, 55 Cal.4th at pp. 1052–1053.)
       The record does not support plaintiff’s argument either. The fact that the trial
court observed plaintiff’s claim was not frivolous does not evidence that the court applied
the wrong legal standard in considering defendant’s attorney fee request.6
Attorney fees under section 55
       Defendant contends that plaintiff’s voluntary dismissal with prejudice renders
defendant the prevailing party as a matter of law under Code of Civil Procedure
section 1032, subdivision (a)(4). Section 1032, subdivision (a)(4) defines a prevailing
party as “the party with a net monetary recovery, a defendant in whose favor a dismissal
is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a
defendant as against those plaintiffs who do not recover any relief against that defendant.
When any party recovers other than monetary relief and in situations other than as
specified, the ‘prevailing party’ shall be as determined by the court, and under those
circumstances, the court, in its discretion, may allow costs or not and, if allowed may
apportion costs between the parties on the same or adverse sides pursuant to rules
adopted under Section 1034.”


       5 Section 55 provides, in pertinent part, “Any person who is aggrieved or
potentially aggrieved by a violation of Section 54 or 54.1 of this code . . . may bring an
action to enjoin the violation. The prevailing party in the action shall be entitled to
recover reasonable attorney’s fees.”
       6 Defendant argues on appeal that the trial court abused its discretion in applying
the catalyst theory of fee recovery. It does not appear that the trial court relied on this
theory when it found that neither party prevailed. We therefore do not address it.
                                              6
       Courts have consistently held that when a plaintiff dismisses a claim voluntarily,
the defendant is not the prevailing party based merely on Code of Civil Procedure
section 1032. (Galan v. Wolfriver Holding Corp. (2000) 80 Cal.App.4th 1124, 1129
(Galan) [regarding Civil Code section 1942.4 in a landlord tenant dispute]; Gilbert v.
National Enquirer, Inc. (1997) 55 Cal.App.4th 1273, 1275–1276 (Gilbert) [regarding
Civil Code section 3344 in a commercial appropriation case]; Heather Farms, supra, 21
Cal.App.4th at p. 1574 [regarding former Civil Code section 1354 (current section 5975)
in an action to enforce covenants, conditions, and restrictions].)
       Instead, determination of who is a prevailing party is a matter of discretion, and
courts have counseled against “rigid adherence” to Code of Civil Procedure section 1032.
(Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1264.) “[I]f the particular
fee-shifting statute does not define prevailing party, then the trial court should simply
take a pragmatic approach to determine which party has prevailed. That is, the trial court
would determine which party succeeded on a practical level, by considering the extent to
which each party realized its litigation objectives.” (Ibid.)
       For example, in Gilbert, the defendant relied on the plaintiff’s voluntary dismissal
of a commercial appropriation case to argue that it was the prevailing party under section
3344, which did not define “prevailing party.” (Gilbert, supra, 55 Cal.App.4th at
p. 1276.) The Gilbert court concluded that the denial of the attorney fees under
section 3344 was “a valid exercise” of the trial court’s discretion to determine “whether
either side had prevailed on a practical level” where the plaintiff argued that she had
dismissed the claim to expedite her appeal of the trial court’s sustaining of a demurrer as
to other claims in her pleading.7 (Gilbert, at pp. 1277–1278.)
       Like in Gilbert, section 55 does not define “prevailing party.” As a result, the trial
court here was permitted to exercise its discretion to determine the prevailing party “‘on a


       7 We disagree with defendant’s contention that the reason for dismissal is
“irrelevant” to a trial court’s exercise of discretion. Gilbert refutes this assertion. (55
Cal.App.4th 1273.)
                                               7
practical level.’” (Galan, supra, 80 Cal.App.4th at p. 1129; Heather Farms, supra, 21
Cal.App.4th at p. 1574.) Plaintiff argues that the before and after photographs did not
establish that plaintiff achieved his litigation goal because the photographs were not
admissible. Indeed, defendant disputes that the photographs were even attached to
plaintiff’s opposing papers. (See fn. 3, ante.)
       In his answer, defendant admitted that, after the litigation began, he lowered the
paper towel dispenser, albeit he now claims to have done so “altruistically,” and not
because plaintiff filed this case. Thus, notwithstanding the evidentiary dispute over the
photographs, it is undisputed that after the lawsuit began, defendant lowered the paper
towel dispenser that is the subject of plaintiff’s prayer for injunctive relief. Under these
circumstances, the trial court acted within its discretion in finding that plaintiff achieved
his litigation objective.8
       Defendant argues that Salehi v. Surfside III Condominium Owners Assn. (2011)
200 Cal.App.4th 1146 (Salehi) compels a different conclusion. In that case, the plaintiff
condominium owner sued the defendant condominium homeowners association to
enforce certain covenants, conditions, and restrictions. The plaintiff dismissed eight out
of her ten causes of action on the eve of trial after she had lost a similar case in another
county. She contended that the unavailability of her expert due to illness required her to
dismiss these claims, albeit two claims remained for trial. Shortly thereafter, the plaintiff
moved to continue the trial on the remaining two claims because of her expert’s
unavailability; the trial court granted the continuance.



       8 At oral argument, defendant contended that the towel dispenser as originally
mounted complied with all applicable regulations because the towel dispenser was not
located in a rest room. In the trial court proceedings, the parties disputed whether there
was any accessible towel dispenser at defendant’s laundry facility at all, let alone whether
there was a dispenser mounted at the required height. As an appellate court we are
required to assume all implied and express factual findings that would support the trial
court’s ruling. We do so here as to the trial court’s finding that plaintiff had “repaired the
architectural barriers as a result of the lawsuit.”
                                              8
       The association moved to recover its fees as the prevailing party on the dismissed
claims under former section 1354, subdivision (c) (current section 5975), which provided
for attorney fees to the prevailing party. It argued that the motivation for the dismissal
was not the illness of the plaintiff’s expert, but instead the plaintiff’s defeat in the other
case. (Salehi, supra, 200 Cal.App.4th at pp. 1151–1152.)
       The trial court denied the association’s request for attorney fees because it had not
prevailed on a “‘practical level’” and the dismissal was due more to the plaintiff’s
“‘inexperience and poor decisions’” than any concession that her claims lacked merit.
(Salehi, supra, 200 Cal.App.4th at p. 1152.) Division Six of the Second Appellate
District reversed. It reiterated the rule that the dismissal alone did not make the
defendant the prevailing party under Code of Civil Procedure section 1032. The
appellate court, however, concluded that the trial court had abused its discretion in not
finding the defendant to be the prevailing party because the “record does not suggest that
Salehi would have prevailed on the merits. It does not appear that she was ready to go
forward procedurally and prove the case substantively” (Salehi, at p. 1155), and she knew
she could have requested a continuance to accommodate her expert’s illness, and in fact
had done so three days after she dismissed the majority of her claims (ibid.).
       The facts here are different. There was substantial evidence that plaintiff did
achieve one of his litigation objectives—removal of the architectural barrier. Unlike in
Salehi, defendant did not argue to the trial court that a continuance would have been an
alternative to dismissal. In further contrast to Salehi, plaintiff did not dismiss his claims
on the eve of trial and there was substantial evidence that plaintiff was too incapacitated
to proceed.
       Defendant contends that plaintiff’s health issue was a pretext to avoid answering
discovery that would have revealed the large number of cases plaintiff had already filed.
Indeed, defendant evidenced below that plaintiff and his counsel had continued to file
several lawsuits starting 12 days after plaintiff dismissed the instant case allegedly
because he was too ill to proceed.

                                               9
       Plaintiff submitted evidence that he dismissed his case because of urgent medical
problems, including significant pain in his hips, hallucinations, inability to breathe
normally, and septic shock requiring admission to an intensive care facility. The trial
court found this evidence credible, and that decision was supported by substantial
evidence. It is not within our province to second-guess the trial court’s credibility
determination.
       “‘In reviewing the evidence on . . . appeal all conflicts must be resolved in favor of
the [prevailing party], and all legitimate and reasonable inferences indulged in to uphold
the [finding] if possible. It is an elementary, but often overlooked principle of law, that
when a [finding] is attacked as being unsupported, the power of the appellate court begins
and ends with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted, which will support the [finding]. When two or more
inferences can be reasonably deduced from the facts, the reviewing court is without
power to substitute its deductions for those of the trial court.’ (Crawford v. Southern
Pac. Co. (1935) 3 Cal.2d 427, 429.)” (Western States Petroleum Assn. v. Superior Court
(1995) 9 Cal.4th 559, 571.)
       Because substantial evidence established that defendant lowered the dispenser in
response to the litigation and that plaintiff dismissed his claims because of incapacitating
health problems, the trial court was within its discretion to conclude that there was no
prevailing party. We reiterate that the question before us is not whether we would have
evaluated the evidence in the same manner as the trial court, but only whether the trial
court abused its discretion in finding that neither party had prevailed. On the record
before us, we cannot say that it did.
The order awarding attorney fees as a discovery sanctions is enforceable regardless
of defendant’s status as a prevailing party
       Plaintiff argued in his letter brief for the first time that defendant’s inclusion of the
$2,160 in previously ordered discovery sanctions in the amount defendant sought below
in his motion to be awarded attorney fees as the prevailing party had the effect of

                                              10
eliminating the previously ordered discovery sanctions when the trial court denied
defendant’s motion. Had defendant not included the $2,160 in discovery sanctions in the
attorney fee award he sought in his motion to be declared the prevailing party, plaintiff
contends that Newland, supra, 40 Cal.App.4th 608, would make the discovery sanctions
“immediately enforceable.”
       Plaintiff is correct that the order awarding attorney fees as a discovery sanctions is
separately enforceable. In the words of the Newland court: “These orders have the force
and effect of a money judgment, and are immediately enforceable through execution,
except to the extent the trial court may order a stay of the sanction.” (Newland, supra, 40
Cal.App.4th at p. 615.) Plaintiff is incorrect that the trial court’s denial of prevailing
party status to defendant affected the previously ordered sanctions. Plaintiff failed to cite
any authority in the record or in the law that would support that assertion. Nor could any
party alter a court order by his or her fiat, to wit, merely by including the discovery
sanctions awarded in the total amount of fees requested in a subsequent motion.
       Accordingly, our ruling today leaves undisturbed the trial court’s order awarding
$2,160 in attorney fees as a sanctions award against plaintiff, which is separately
enforceable under Newland.




                                              11
                                    DISPOSITION
      The order denying the motion for attorney fees and costs is affirmed. Plaintiff is
awarded his costs on appeal.
      NOT TO BE PUBLISHED.


                                                BENDIX, J.*
We concur:


      CHANEY, Acting P. J.


      JOHNSON, J.




        * Judge of the Los Angeles Superior Court, assigned by the chief Justice pursuant
to article VI, section 21 of the California Constitution.
                                           12
