Jones v. Wild Oats Markets, Inc.

• Decision Date: 06 July 2006
• Docket Number: No. CIV. 04-1018-WQH.,CIV. 04-1018-WQH.
• Citation: 467 F.Supp.2d 1004
• Court: U.S. District Court — Southern District of California
• Parties: Gypsie JONES, Plaintiff, v. WILD OATS MARKETS, INC., dba Henry's Marketplace, et al., Defendants.

Page 1004

467 F.Supp.2d 1004

Gypsie JONES, Plaintiff, v. WILD OATS MARKETS, INC., dba Henry's Marketplace, et al., Defendants.

No. CIV. 04-1018-WQH.

United States District Court, S.D. California.

July 6, 2006.

COPYRIGHT MATERIAL OMITTED

Lynn Hubbard, III, Law Offices of Lynn Hubbard III, Chico, CA, for Plaintiff.

Jon D. Meer, DLA Piper Rudnick Gray Cary, Los Angeles, CA, for Defendants.

ORDER

HAYES, District Judge.

Pending before the Court is Defendant Wild Oats' Motion for Attorney's Fees and Costs. The Court finds this matter suitable for submission on the papers and without oral argument pursuant to Local Civil Rule 7.1. After considering the arguments raised by the parties in their briefing, the Court now issues the following rulings.

BACKGROUND

Plaintiff is a thirty-three year-old woman who has been a paraplegic since she was seventeen. Plaintiff uses a wheelchair when traveling in public. On December 14, 2003,¹ Plaintiff visited Henry's Marketplace (hereinafter "the Store") in Pacific Beach, San Diego. According to Plaintiff, she encountered numerous architectural barriers that deprived her of full and equal access to the Store. Plaintiffs Complaint alleged violations of the ADA and state law for barriers inside the Store.

Plaintiff and Defendant filed cross motions for Summary Judgment in this matter. On November 25, 2005, the Court denied Plaintiffs Motion for Summary Judgment and granted Summary Judgment in favor of Defendant Wild Oats. Defendant now moves for attorney's fees and costs.

STANDARD OF REVIEW

While attorney's fees generally are not recoverable, such fees may be awarded if authorized by enforceable contract or by applicable statute. Alyeska Pipeline Service Company v. Wilderness Society, 421 U.S. 240, 257, 95 S.Ct. 1612, 44 L.Ed.2d 141, (1975). The Americans with Disabilities Act provides that "the court in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses and costs." 42 U.S.C. § 12205.

Strong policy considerations support awarding attorney's fees to prevailing plaintiffs. Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 418, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). However, "fees are not awarded as a matter of course to prevailing defendants, and should only be awarded under exceptional circumstances, `upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation."' Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1154 (9th Cir. 1997).

"An action is frivolous if it lacks an arguable basis in law or in fact, though it need not be brought in bad faith. Even where plaintiff is unaware at the commencement of the suit that the claim is frivolous, he may be liable for attorneys fees if he continues to litigate after it becomes clear that the action lacks, factual substance." Peters v. Winco Foods, Inc., 320 F.Supp.2d 1035, 1037 (N.D.Cal.2004) (internal citations omitted).

DISCUSSION

On November 25, 2005, the Court granted Summary Judgment in favor of Wild Oats. From the Order, it is clear that Wild Oats prevailed on each of the claims. Attached to Plaintiffs Complaint was a "preliminary site report" containing forty-three (43) alleged violations. Of those alleged violations, only a few were the subject of the Summary Judgment Motions filed in this case. The alleged violations can be easily categorized into five "claims": (1) alleged barriers regarding the width of the store aisles; (2) alleged barriers regarding the height of the produce scales; (3) alleged barriers regarding the check out stands (4) alleged barriers regarding the drainpipes under the sink in the women's restroom; and (5) alleged barriers in the women's restroom. Of those that were at issue in the Motions, the Court granted summary judgment on several of the claims after finding that Plaintiff wholly failed to submit evidence in support of its claims, and after finding that in some cases, the evidence of the Plaintiffs own expert confirmed that the claims were without merit.

I. Federal Claims

As to the alleged barriers regarding the width of the store aisles, the Court finds that the barriers did not exist and will grant fees on this claim. Plaintiffs own expert found the width of the aisles and the check out stands to be in compliance with the applicable regulations. See MSJ Order; See also Settle Depo, 129:7-18. The Court finds that this claim lacked "an arguable basis in law or in fact" at the time the summary judgment motions were filed, and the Court will therefore award fees based on this claim.

As to the alleged barriers regarding the check out stands, Plaintiff argued that the Store lacked a designated check out stand for the disabled, leaving Plaintiff unable to use the Pay-Point credit card machine because it was too high and unable to sign a credit card receipt on the counter because the counter was too high. However, as noted by the Court in the Order granting Summary Judgment in favor of Defendants, Plaintiff's own expert found the width of the aisles and the check out stands to be in compliance with the applicable regulations. See MSJ Order; See also Settle Depo, 81:1-9. The Court finds that this claim lacked "an arguable basis in law or in fact" at the time the summary judgment motions were filed, and the Court will therefore award fees based on this claim.

As to the alleged barriers regarding the drainpipes under the sink in the women's restroom, the Plaintiff argues that the Court's request for supplemental briefing on this issue deems it non-frivolous. The Court notes that the Court requested supplemental briefing not because there was a arguable basis in law or in fact, but because questions regarding the drainpipe claim remained after oral argument. After consideration of the supplemental briefing, the Court found that the evidence showed that any problem with respect to the lack of insulation around the drainpipe had been fixed. See Summary Judgment Order at 15; Pltf's Depo 155:17-17, 156:6-14. The Court noted that the Plaintiffs own expert conceded during deposition, and before the summary judgment phase, that the drainpipe "is probably adequately insulated." See Deposition of Reed Settle at 83:21.

The Court finds that this claim did not wholly lack any "an arguable basis in law or in fact" at the time the summary judgment motions were filed. While Defendants ultimately prevailed on the claim, it was not so clear as to deem the claim frivolous. Thus, the Court will deny fees based on this claim.

As to the alleged barriers regarding the height of the produce scales, and the alleged barriers in the women's restroom, while Plaintiff did not ultimately prevail on these claims, the Court finds that Plaintiffs claims were not wholly without factual substance.

Defendants argue that Plaintiffs claims regarding the produce bags and scales were frivolous because " ...Plaintiff's counsel knew that this claim entirely lacked merit at the time Plaintiffs Complaint was filed. In fact, Plaintiff's counsel litigated exactly the same issues in Peters, with the court granting summary judgment in favor of the defendant on May 4, 2004. Here, Plaintiff's Complaint was not filed until May 18, 2004, a full two weeks after entry of the order granting summary judgment in Peters. Thus, Plaintiffs counsel had actual notice that Plaintiffs claim based on the height of the produce bags and scales was baseless at the time it was filed." See Reply at 4.

In its Order granting Summary Judgment, the Court found that Plaintiff failed to show how the Store denied her full and equal treatment with regard to the produce scales and bags. While the Court ultimately found that the Plaintiff could not establish that a genuine issue of material fact existed with regard this particular claim, the claim did not clearly lack an arguable basis in law or in fact. Furthermore, the ruling by the court in Peters did not deem this claim frivolous. The merit of the claim turned entirely on whether Plaintiff was denied equal access under the circumstances, a fact specific inquiry.

Similarly, with respect to Plaintiff's claims regarding additional barriers in the restroom, the Court ultimately ruled in favor of Defendants finding' that Plaintiff failed to set forth evidence establishing a genuine issue for trial. However, the Court's finding indicated that Plaintiff lacked evidence that she was denied access. For example, the Court found that Plaintiff failed to establish that she was denied full use and enjoyment of the Store due to the placement of a garbage can in the women's restroom. However, while the Defendant ultimately prevailed after a fact specific inquiry by the Court, the Plaintiff's claims did not clearly lack an arguable basis in law or in fact. It is conceivable that a plaintiff could bring successful claims under the ADA if the plaintiff could show both a violation of the ADAGGs regarding scales, produce bags; fixtures AND a denial of full and fair use and enjoyment of the Store. While Plaintiff could not show a denial of full and fair use and enjoyment here, the Plaintiffs allegations were not wholly without factual substance or an arguable basis in law or in fact when they were filed. Thus, finding that these claims were not frivolous, the Court will decline to award fees on these claims.

In support of its argument that the Court should grant fees, the Defendant relies on Peters v. Winco Foods, Inc., 320 F.Supp.2d 1035 (E.D.Cal.2004). In Peters, the court found that a 60% award of the fees sought was proper because three of the five claims still being pursued at summary judgment phase were patently frivolous. See Id. The court stated:

The court finds that attorney's fees are warranted under the circumstances of this case. The sweeping allegations of ADA violations contained in plaintiffs form complaint stated only one legally and factually tenable claim regarding the height of a produce...