Peters v. Winco Foods, Inc.

• Decision Date: 29 April 2004
• Docket Number: No. CIV.S02-2010 FCD KJM.,CIV.S02-2010 FCD KJM.
• Citation: 320 F.Supp.2d 1035
• Parties: Jo Ann PETERS, Plaintiff, v. WINCO FOODS, INC., Waremart, Inc., and Does 1 through 20 Defendants.
• Court: U.S. District Court — Eastern District of California

320 F.Supp.2d 1035

Jo Ann PETERS, Plaintiff, v. WINCO FOODS, INC., Waremart, Inc., and Does 1 through 20 Defendants.

No. CIV.S02-2010 FCD KJM.

United States District Court, E.D. California.

April 29, 2004.

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

Samuel T McAdam, Anna Tuyet Ngo, Seyfarth Shaw, Sacramento, CA, for defendants.

MEMORANDUM AND ORDER

DAMRELL, District Judge.

This matter is before the court on motion by defendant Winco Foods, Inc. ("defendant") for attorney's fees. Plaintiff Jo Ann Peters ("Plaintiff") disputes that she is liable for attorneys fees, but does not specifically challenge the reasonableness of defendant's request for $62,605.00 in fees and $3,353.00 in court costs.

BACKGROUND

Plaintiff Jo Ann Peters ("plaintiff"), an amputee who requires use of a wheelchair for mobility, filed suit against defendant, the owner/operator of WincCo Foods, a grocery store of recent construction located near plaintiff's residence. The complaint alleged numerous violations of the Americans with Disabilities Act, 42 U.S.C. 12200 et seq, and state law.

On November 14, 2003, defendant filed a motion for summary judgment. By order dated December 18, 2003, the court granted defendant's motion for summary judgment as to all federal causes of action and declined to exercise supplemental jurisdiction over plaintiff's state law claims. Defendant subsequently filed the instant motion seeking $62,605.00 in attorneys fees and $3,353.00 in court costs.

STANDARD

While attorney's fees generally are not recoverable, such fees may be awarded if authorized by enforceable contract or by applicable statute. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 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.

In the context of the ADA and other civil rights statutes, strong policy considerations support awarding attorney's fees to prevailing plaintiffs. Plaintiffs play an integral role in enforcement of the statute through private litigation, and the award of attorneys fees provides an incentive to file such suits. applying rationale of Christianburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 418, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978).

However, the "policy considerations which support the award of attorneys fees to a prevailing plaintiff are not present in the case of a prevailing defendant." Id. at 418-419, 98 S.Ct. 694. To the contrary, awards to prevailing defendants could have a chilling effect on the filing of ADA lawsuits by plaintiffs. For this reason, 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 plaintiff's action was frivolous, unreasonable, or without foundation." Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1154 (9th Cir.1997) (adopting Christiansburg standard for Title I ADA cases). An action is frivolous if it lacks an arguable basis in law or in fact, though it need not be brought in bad faith. Schutts v. Bently Nevada Corp., 966 F.Supp. 1549, 1557 (D.Nev.1997). 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. Id.

ANALYSIS

Defendant seeks an award of attorney's fees expended to defend this litigation, asserting that plaintiff's claims were frivolous and without any basis in law or fact. (Defendant's Motion for Attorney's Fees ("Mot.") at 1.)

At first glance, this claim appears to fall squarely within the category of exceptional cases meriting an award of attorney's fees. Plaintiff filed a form complaint against defendants, identical to thirty other complaints filed by plaintiff in this court. The complaint alleged a host of violations of the ADA and state law:

(1) Defendants failed to provide access to the store from public sidewalks, parking or transportation. This failure may include, but is not limited to, installing an entrance ramp, widening entrances, reducing door pressure, and providing accessible parking spaces ...

(2) Defendants failed to provide access to those areas of the store where goods and services are made available to the public. This failure may include, but is not limited to, adjusting the layout of display racks, widening doors, rearranging furniture, providing Brailled and raised character signage, providing visual alarms, adding an accessible check-out counter, and installing ramps...

(3) Defendants failed to provide access to restroom facilities at the store. This failure may include, but is not limited to removal of obstructing furniture or vending machines, widening of doors, installation of ramps, providing accessible signage, widening or toilet stalls and installation of grab bars.

(Complaint ¶¶ 28-30.)

The vast majority of these allegations appear to have been factually unsupported because they were almost entirely abandoned after plaintiff's expert visited the store. Gone were allegations of significant barriers to access, such as inadequate accessible parking, missing wheelchair ramps, obstructed entrances and aisles, and inaccessible products. Instead, plaintiff's expert identified five potential violations: 1) absence of detectable warnings before wheelchair ramps, 2) absence of required TDD signage at the public telephone, 3) height of the produce scales, 4) height of the meat and deli counter, and 5) absence of required "tow away" signage in the parking lot. The court granted summary judgment as to all five claims.¹

Three of plaintiff's claims were frivolous ab initio. Plaintiff alleged that the wheelchair ramps lacked detectable warnings and the telephone did not have required TDD signage. Based on clear Ninth Circuit precedent, plaintiff only has standing to assert claims for barriers related to her disability. Detectable warnings are designed to assist the visually impaired and TDD signage is designed to assist the hearing impaired. Plaintiff does not allege she has either visual and hearing impairment, and consequently she did not have standing to assert these claims. Further, ADAAG regulations and advisory notes make clear that meat counters are outside the scope of the ADA. Given the volume of disabilities litigation filed by plaintiff's counsel, the court must assume a passing familiarity with the law in this area. A cursory review of the regulations and applicable case law would have revealed that these claims wholly lacked merit.

However, plaintiff did assert a single non-frivolous claim, that the produce scale at Winco violated the ADA. While the court ultimately granted summary judgment in favor of defendant on this claim, neither the ADA nor its implementing regulations specifically addressed the issue presented. Defendant persuasively argued that the court should find the scale to be outside the scope of the ADA by drawing analogy to merchandise shelves and displays, which are not covered by the ADA. Plaintiff's counsel made little effort to support his position with relevant legal authority.² Nonetheless, the law on this point was unclear, and as a result the claim was not frivolous.³ See, e.g., Int'l Bhd. of Teamsters Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local 631 v. Silver State Disposal Service, Inc., 109 F.3d 1409, 1412 (9th Cir.1997) (refusing to award fees and costs because of the lack of case law defining the precise contours of the issue); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1489 (9th Cir.1995) (holding that the prevailing defendant was not entitled to attorney fees under § 1988 because there "was very little case law directly apposite.").

In cases where some of plaintiff's losing claims are frivolous but others are not, some Circuits have applied the Supreme Court's reasoning from Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), to conclude that, where plaintiff's frivolous and nonfrivolous claims are interrelated, the defendant may not recover attorney's fees for time spent defending the frivolous claims. Tarter v. Raybuck, 742 F.2d 977 (6th Cir.1984) (finding district court abused its discretion in awarding attorneys' fees to defendant because action that included one non-frivolous Fourth Amendment claim was not wholly meritless or without foundation); Colombrito v. Kelly, 764 F.2d 122, 132 (2d Cir.1985) (reversing district court's award of attorneys' fees where plaintiff's claims were closely intertwined and continuation of the meritless claim past discovery had only scant effect on the time and other resource costs of the litigation); See also Conte, Alba, Attorney Fee Awards 2d Ed. (2003).

However, other Circuits have permitted an award of attorneys fees for costs of defending the frivolous claims even where they are interrelated with non-frivolous claims. See Ward v. Hickey, 996 F.2d 448 (1st Cir.1993) (stating that "a district court should not deny fees for defending frivolous claims merely because calculation would be difficult"); Curry v. A.H. Robins Co., 775 F.2d 212 (7th Cir.1985) (holding that a prevailing defendant may be awarded fees incurred in defending against a frivolous claim or portion thereof, even if other claims asserted by the plaintiff were not frivolous); Head v. Medford, 62 F.3d 351 (11th Cir.1995) (reversing district court's denial of attorneys' fees for frivolous federal due process claims even though no finding had been made regarding merit of state law claims over which court declined to exercise supplemental jurisdiction).

The Ninth Circuit has not addressed this question, although two reported cases offer some guidance. In Jensen v. Stangel, 762 F.2d 815, 818 (9th Cir.1985), the Court appeared...