Moving Party: Defendant California Chicken Cafe LP (“defendant”)
Resp. Party: Plaintiff Ryan McCurdy (“plaintiff”)

Defendant’s motion for attorney’s fees is DENIED.

BACKGROUND:

Plaintiff commenced this action on January 14, 2013, against defendant for violations of the Unruh Civil Rights Act (the “Unruh Act”), the ADA, and the California Disabled Persons Act (“DPA”). Plaintiff is a person with a disability in that he has congenital absence of the left forearm and hand. (Compl., ¶ 9.) Plaintiff has been a patron of defendant’s restaurants. (Id., ¶ 11.) For customers inside the facilities, it has been defendant’s policy and practice to have its customers procure barbecue sauce for themselves via a dispensing device. (Id., ¶¶ 12-13.) Because of plaintiff’s condition, his use of the device is awkward and embarrassing. (Id., ¶ 14.) In July 2012, plaintiff learned that those who place orders for curbside takeaway receive prepacked containers of barbecue sauce. (Id., ¶ 15.) In October 2012, plaintiff entered the dining facility and requested prepackaged barbecue sauce, but was directed to the dispensing machines. (Id., ¶¶ 16-17.) Plaintiff noticed that there was prepackaged ketchup near the barbecue sauce, that has since been replaced with a dispensing device. (Id., ¶ 18.) In November 2012, plaintiff entered the dining facility at various locations and again asked for prepackaged barbecue sauce and ketchup, and was again directed to the dispensing devices. (Id., ¶¶ 19-36.) Plaintiff’s complaint alleges that defendant violated state and federal statutes by not offering the prepackaged sauces to its dining-in patrons.

On 4/18/13, plaintiff dismissed the third cause of action for violations of the DPA.

On 6/25/13, Defendant filed its Motion for Summary Judgment. Plaintiff never opposed the Motion for Summary Judgment.

On 10/22/13, prior to the court ruling on the Motion for Summary Judgment, plaintiff dismissed his entire action without prejudice.

On 1/22/14, the Court denied plaintiff’s motion to strike costs. The Court found that defendant was entitled to recover its costs because it fit within the definition of “prevailing” under section 1032(a)(4), plaintiff failed to establish that recovery of costs under the state law claims required a showing of frivolous, and even if such a showing were necessary, defendant had established the plaintiff’s claims were frivolous, unreasonable, or without merit.

ANALYSIS:

Attorney’s fees may only be recovered from an opposing party where they are authorized either by statute or contract. Plaintiff’s claims were made under the Unruh Act, the DPA, and the ADA.

Defendant is correct that Civil Code section 55 (DPA) allows a prevailing defendant to recover its attorney’s fees. The Court rejects plaintiff’s argument that it did not seek relief under section 55. Section 55 allows a party aggrieved by a violation of section 54 or 54.1 to assert an action to enjoin the violation. (Civ. Code, § 55.) Plaintiff sought injunctive relief prohibiting defendant from continuing the allegedly wrongful conduct. (See Compl., ¶ 66.)

However, a prevailing defendant cannot recover its attorney’s fees for claims under the Unruh Act. (See Civil Code, § 52(a); Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786, 791.) Where a defendant has defended against claims arising under both the Unruh Act and the DPA and the fees are inextricably intertwined, a conflict arises between section 52 and section 55. (Turner v. Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 1059-1060.) In such a situation, the statutes are irreconcilable and an implied exception is created to a prevailing defendant’s right to recover attorney’s fees under section 55. (Id. at pp. 1068-1069.) In Turner, the court noted that the bilateral fee-shifting provision in section 55 was likely enacted to discourage frivolous or non-meritorious lawsuits, while the unilateral fee-shifting provision in the Unruh Act served the public purpose of encourage enforcement of disability rights law. (Id. at p. 1069.) The court noted that allowing a fee award against a plaintiff for identical hours used in defending against the plaintiff’s Unruh Act claim “would not be consistent with that legislative intent.” (Id. at p. 1070.)

On balance, the public policy analysis supports our conclusion that sections 52 and 54.3 should be read to create an exception to section 55 by implication. The objectives underlying the unilateral fee-shifting provisions in sections 52 and 54.3 are well established in the legislative history and case law. To conclude that section 55 mandates a fee award to a prevailing defendant for hours intertwined with the defense of claims under sections 52 and 54.3 would frustrate the purposes of the unilateral fee-shifting provisions in sections 52 and 54.3 and undermine enforcement of section 55, even where its inclusion would not add to the burden of the litigation. (Id. at p. 1071.)

[W]e hold that where a defendant prevails against a plaintiff who sought relief under section 55 as well as under section 52 and/or section 54.3, the defendant may not obtain an attorney fee award under section 55 for attorney hours inextricably intertwined with hours spent defending claims under section 52 and/or section 54.3.[footnote omitted] Although defendant argues that denying it fees in this case would effectuate a repeal of section 55, our decision does not foreclose a defendant from seeking an award under section 55 for hours that it can show were not intertwined with defense of a cause of action with a unilateral fee-shifting provision; those are the only hours that represent additional litigation expenses due to inclusion of a request for relief under section 55. (Id. at p. 1073.)

Here, plaintiff’s claim under the DPA was based on the same facts as the Unruh Act claim. (See Compl., ¶ 63.) Defendant makes no showing that the hours expended defending against the DPA claim were separate from those relating to the Unruh Act claim. Therefore, under Turner, defendant may not recover fees incurred in defending against the DPA claim.

Defendant’s references to a section 998 offer do not change this result. “‘Costs’ awardable to defendant under CCP § 998 are those costs itemized in CCP § 1033.5.” (Wegner, Fairbank, Epstein & Chernow, Cal. Prac. Guide: Civil Trials and Evidence (The Rutter Group 2012) ¶ 17:123.4.) “CCP § 998 does not provide greater rights to attorney fees than provided for by the underlying statute or contract.” (Id., ¶ 17:123.5a.)

[T]he Legislature has in certain limited instances made a policy decision to treat prevailing plaintiffs and prevailing defendants differently for purposes of attorney fees and other costs. Section 998 takes these differences as it finds them, applying them for purposes of postoffer costs as if the defendant were the prevailing party but neither expanding nor contracting the categories of costs to which a prevailing defendant in the circumstances would be entitled. Thus, if the case is governed by a statute under which a prevailing plaintiff but not a prevailing defendant is entitled to attorney fees, then a defendant who does not prevail but is nonetheless entitled to its postoffer costs under section 998 is not entitled to its postoffer attorney fees as part of those costs, even though the prevailing plaintiff may obtain its preoffer attorney fees as part of its preoffer costs.

(Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1115, fn. 3.) Because defendant cannot recover attorney’s fees under the state statutes, section 998 cannot provide relief.

Defendant also seeks to recover its attorney’s fees under the ADA. “In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee, including litigation expenses, and costs.” (42 U.S.C. § 12250.) Though a court has discretion to allow attorney’s fees to prevailing parties, “attorney’s fees should be granted to a defendant in a civil rights action only ‘upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation.'” (Summers v. Teichert & Son, Inc. (9th Cir. 1997) 127 F.3d 1150, 1154 [quoting Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421]; see also Bercovitch v. Baldwin School, Inc. (1st Cir.1999) 191 F.3d 8, 11 [“We hold that attorney’s fees may not be awarded to a prevailing defendant under the ADA unless the defendant establishes that the plaintiff’s suit was totally unfounded, frivolous, or otherwise unreasonable or that the plaintiff continued the litigation after it clearly became so.”]; Bruce v. City of Gainesville, Ga. (11th Cir.1999) 177 F.3d 949, 951-952.)

Plaintiff argues that defendant is not a “prevailing party” under the ADA. In Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. Of Health and Human Resources (2001) 531 U.S. 589 [hereinafter “Buckhannon”], the United States Supreme Court considered what constitutes a “prevailing party” under the fee-shifting provisions under the Fair Housing Amendments Act and the ADA. In Buckhannon, the plaintiff brought an action under the FHAA and the ADA, the district court granted a motion to dismiss the action as moot because state legislation had addressed the alleged violations, and the plaintiff thereafter moved for attorney’s fees, arguing that it had achieved its desired result and therefore was the prevailing party. (Id. at p. 602.) The Supreme Court rejected the plaintiff’s theory of a prevailing party, noting that the theory would allow an attorney’s fees award “where there is no judicially sanctioned change in the legal relationship of the parties.” (Id. at p. 605.) “A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change. Our precedents thus counsel against holding that the term ‘prevailing party’ authorizes an award of attorney’s fees without a corresponding alteration in the legal relationship of the parties.” (Ibid. [italics in original].) The court noted that a “material alteration of the legal relationship of the parties” is necessary to permit an award of attorney’s fees, and that such material alteration could result from enforceable judgments upon the merits or court-ordered consent decrees. (Id. at p. 604.)

Therefore, in order to be a prevailing party under the fee-shifting provision of the ADA, there must have been a material alteration of the legal relationship of the parties. (See Miles v. State of California (9th Cir. 2003) 320 F.3d 986, 989.) Here, plaintiff voluntarily dismissed the action without prejudice. Generally, a dismissal without prejudice “ ‘is not a decision on the merits’ ” and “ ‘does not constitute a change in the legal relationship of the parties because the plaintiff is free to refile its action.’ ” (Oscar v. Alaska Dept. of Educ. and Early Development (9th Cir. 2008) 541 F.3d 978, 981.) A dismissal without prejudice may constitute a material alteration of the legal relationship of the parties where further proceedings are precluded. (See Miles, 320 F.3d at p. 989 [federal court’s dismissal without prejudice to seeking relief in state court was a material alteration of the legal relationship of the parties because the dismissal eliminated further federal proceedings and thus changed the legal relationship of the plaintiff with respect to the defendant]. Accord J.B. ex rel. H.S. v. San Jose Unified School Dist. (N.D. Cal. 2013) 2013 WL 1891398, *3 [“if a dismissal without prejudice nevertheless precludes refiling a complaint, it alters the legal relationship of the parties; this ‘material alteration of the legal relationship of the parties’ may be sufficient to find that one party is the prevailing party.”]. See also Cadkin v. Loose (9th Cir. 2009) 569 F.3d 1142, 1150 [“Miles and Oscar, taken together, compel the conclusion that a defendant is a prevailing party following dismissal of a claim if the plaintiff is judicially precluded from refiling the claim against the defendant in federal court.”].)

Here, there is no showing that plaintiff is precluded from re-filing his complaint in state or federal court. This action is distinguishable from Miles, where further proceedings in federal court were prohibited, because defendant remains at risk that plaintiff will re-file the action in state or federal court. (See Oscar, 541 F.3d at p. 982 [distinguishing Miles].) Therefore, plaintiff’s dismissal of the action without prejudice did not confer prevailing party status on defendant and defendant is not entitled to an award of attorney’s fees under the ADA.

Defendant’s motion for attorney’s fees is DENIED.