I hope everyone had a great holiday weekend.

 

This week’s blog entry is a case out of the Second Appellate District of the Court of Appeal of the State of California. It is a case involving whether attorney fees can be imposed upon plaintiff’s counsel as a sanction when the lawsuit is frivolous. The case is Morgan v. Zarco Hotels Inc. decided on August 21, 2024 and can be found here. As usual, blog entry is divided into categories and they are: facts; court’s reasoning the award of attorney fees against plaintiff’s counsel as a sanction must be thrown out; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts are really straightforward. A plaintiff and the law firm she used, Center for Disability Access, filed a failure of a website to be accessible to a person with a disability lawsuit. While the plaintiff asserted no cause of action under the ADA, the complaint did seek a permanent injunction ordering compliance with the ADA and that defendant’s actions violated the ADA. Early in the litigation, defendant’s counsel contacted plaintiff’s counsel and explained that the hotel’s website was fully accessible and ADA compliant. He also said that the complaint lacked merit and the lawsuit should be dismissed. The defendant then filed a motion for summary judgment supported by a declaration from an expert who conducted an accessibility audit of the hotel website attesting to its accessibility by persons using screen reading technology. Plaintiff did not oppose the summary judgment motion and the action was dismissed. The defendant then filed a motion for attorney fees against the plaintiff and the plaintiff’s attorneys under §12205 of the ADA and California Rules of Court. The trial court found that the plaintiff’s action was meritless, frivolous, unreasonable, and without foundation, based on defendant’s evidence and plaintiff’s failure to present any evidence supporting the merits of the case. The trial court denied the motion as to plaintiff finding no evidence that the plaintiff did anything improper. The trial court granted the motion against plaintiff’s counsel because the court believed that the parties communication should have put plaintiff’s counsel on notice of the problems with the case. Accordingly, the trial court ordered plaintiff’s counsel to pay $55,414.84 in attorney fees. Plaintiff and plaintiff’s counsel appealed.

 

II

Court’s Reasoning That the Award of Attorney Fees Against Plaintiff’s Counsel as a Sanction Must Be Thrown out

 

  1. Under the ADA, a prevailing defendant can only recover attorney fees if the ADA claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate it after it clearly became as such.
  2. The ADA clearly applies to the case as the complaint referenced it in various ways.
  3. Fee awards against attorneys are ordinarily available only as sanctions and are generally not allowed under routine fee shifting provisions.
  4. Trial courts cannot award attorney fees as a sanction for misconduct in the absence of statutory authority or agreement of the parties.
  5. §12205 of the ADA, here, does not expressly authorize an award of attorney fees as sanctions against a party’s counsel. The silence of the statute as to whether attorney fees may be assessed against a party’s counsel does not authorize a court to do so.
  6. Defendant cited no authority where attorney fees under the ADA were assessed against a party’s counsel and the court found no such authority. Accordingly, case law supports the presumption that fee shifting statutes apply only to parties unless the statute expressly states otherwise.
  7. The Supreme Court has declined to make lawyers responsible for fees under other fee shifting statutes, and Federal and California appellate courts have applied that principle to other similar fee shifting statutes.
  8. Cases interpreting fee shifting statutes with similar language to §12205 uniformly disallow attorney fees award against a party’s counsel. There is no reason to interpret the ADA fee shifting statutes differently. The similar language of other fee shifting statutes is a strong indication that they are to be interpreted in the same way.
  9. §12205 of the ADA does not authorize assessment of attorney fees against a party’s attorney.

 

III

Thoughts/Takeaways

 

  1. In most situations, a plaintiff involved in serial lawsuits is likely to be judgment proof. So, that may explain why the defense went after plaintiff’s counsel as well as the plaintiff.
  2. Attorney fees cannot be awarded as a sanction against a plaintiff’s attorney in an ADA matter.
  3. Since most serial plaintiffs are likely to be judgment proof, one wonders how a defendant could collect any attorney fees award in the event of a frivolous lawsuit.
  4. Oftentimes, defendants will just settle a serial web site lawsuit instead of litigating it. This is a situation where the defendant refused to do that.
  5. This is a California case interpreting the ADA. Accordingly, one wonders whether federal courts will interpret the ADA in the same manner. It will be interesting to follow how this particular issue plays out in the federal courts.
  6. The trial court did not award attorney fees against the plaintiff because the plaintiff did nothing wrong. Interesting phrasing. It also makes you wonder whether to recover attorney fees against a plaintiff, the defendant would have to prove some form of wrongdoing involving the plaintiff beyond hiring counsel to prosecute the claim.