Molski v. Arciero Wine Group, B199289.

• Court: California Court of Appeals
• Citation: 79 Cal. Rptr. 3d 574,164 Cal.App.4th 786
• Decision Date: 07 July 2008
• Docket Number: No. B199289.,B199289.
• Parties: JAREK MOLSKI, Plaintiff and Appellant, v. ARCIERO WINE GROUP, Defendant and Respondent.

164 Cal.App.4th 786 79 Cal. Rptr. 3d 574 JAREK MOLSKI, Plaintiff and Appellant,
v.
ARCIERO WINE GROUP, Defendant and Respondent. No. B199289. Court of Appeals of California, Second District, Division Six. July 7, 2008.

[164 Cal.App.4th 788]

Thomas E. Frankovich and Jennifer L. Steneberg for Plaintiff and Appellant.

Dykema Gossett, Jon D. Cantor and Jere N. Sullivan, Jr., for Defendant and Respondent.

OPINION

COFFEE, J.

Jarek Molski appeals from an order awarding attorney fees in the amount of $33,702.63 to respondent Arciero Winery Group (Arciero). In this lawsuit over disability access to Arciero's winery, Arciero obtained judgment in its favor on all causes of action. Molski contends that Arciero should not have been awarded its attorneys fees as a prevailing party under Civil Code section 55¹ because Molski's claims were not frivolous, unreasonable or groundless. Alternatively, Molski contends that the award should be reduced. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Molski is a disabled person who uses a wheelchair. On May 25, 2003, Molski visited Arciero's winery. In a federal lawsuit, Molski alleged that he encountered barriers to full and equal access in violation of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.; the ADA), the Unruh Civil Rights Act (§ 51), the Disabled Persons Act (§§ 54, 54.1, 54.3; the DPA), Health and Safety Code section 19955, and Business and Professions Code section 17200 et seq. (Case No. CV 03-5880 LGB; the

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federal action.) Molski has filed in excess of 400 such actions in state and federal court, and has been declared a vexatious litigant in both jurisdictions.² His present counsel has represented him in many of these actions and is also subject to a prefiling order in federal court.

In July of 2005, the federal trial court dismissed Molski's state law claims against Arciero without prejudice for lack of jurisdiction. Subsequently, only the ADA claim for injunctive relief remained pending in federal court. In July of 2005, Arciero's counsel notified Molski's counsel that all alleged violations had been remediated. Arciero provided photographic evidence. Molski's expert personally verified the remediation on August 24, 2005. On August 31, 2005, Molski and Arciero stipulated that the claim for injunctive relief was moot because all alleged noncompliance had been remediated. Pursuant to the stipulation, Molski dismissed the federal action with prejudice.

On August 10, 2005, after Molski received notice and evidence of the completed remediation but before Molski sent his expert to verify it, Molski filed the present action against Arciero in San Luis Obispo Superior Court (the state action). Molski did not serve the state action until after the federal stipulation had been filed. Molski's state action was based upon the same alleged conditions that had formed the basis of Molski's federal action. Molski asserted claims for monetary relief under the Unruh Civil Rights Act, the DPA, Health and Safety Code section 19955 and for injunctive relief under section 55.

In January 2006, the state trial court granted Arciero's motion to strike Molski's claims for injunctive relief (§ 55) as moot, leaving only Molski's claims for monetary relief and attorney fees pursuant to sections 51, 51.5, 52, 54, 54.1 and 54.3. Nevertheless, Molski's amended complaint retained a request "for relief that is afforded by Civil Code ... [section] 55" and continued to allege (incorrectly) that the access barriers had not been remediated. Molski corrected some of these allegations in a second amended complaint, filed pursuant to stipulation and order, but the second amended complaint still alleged he was entitled to "the relief that is afforded by" section 55 and prayed for attorney fees as a prevailing party under section 55.

In June 2006, Arciero moved for judgment on the pleadings in the state action as to all remaining causes of action. Arciero argued that Molski was asserting in state court the same primary right that he had previously dismissed with prejudice in federal court. The trial court denied Arciero's motion. We issued an alternative writ of mandate directing the trial court to

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set aside its order and to instead grant Arciero's motion for judgment on the pleadings, or to show cause why it should not. The trial court set aside its previous order and entered a new order granting Arciero's motion for judgment on the pleadings in the state action.

Arciero then moved for an order awarding its attorney fees as the prevailing party pursuant to section 55. Arciero sought to recover fees that it incurred in federal and state court defending against Molski's claims. Molski opposed the motion on the grounds that Arciero should not be considered to be the prevailing party, and that even if Arciero prevailed it should not recover any fees that were incurred in federal court or after dismissal of the state court claim for injunctive relief.

The trial court awarded all of Arciero's attorney fees incurred in state court, but not the fees incurred in federal court. The trial court found that Arciero prevailed in the state action because the state action was filed after remediation was complete and "played no role" in bringing about the remediation....