A recent Metropolitan News story, “Pre-Suit Demand Can’t Serve As ‘Catalyst’ For Public Benefit, Justifying Fee Award,” reports that an attorney fee award may not be made based on a pre-litigation demand having been the “catalyst” for bringing about alterations to a public accommodation which caused it to be accessible to persons in wheelchairs, Div. One of the First District Court of Appeal held.
Richard Skaff, who is wheelchair bound, sued the Rio Nido Roadhouse in Sonoma County, owned by Lowbrau, LLC, for injunctive relief and damages based on his inability to gain access to the facility on the night of Oct. 18, 2012. However, that was before he complained to the owner, who was in the process of effecting renovations which provided access to the handicapped when suit was filed in 2013, with the work having been completed by the time of trial in 2017.
Skaff sued under Health and Safety Code §19955 et seq., pertaining to accessibility of public accommodations to the handicapped, and the Unruh Civil Rights Act. Civil Code §55 provides that where a suit is brought under §19955, “[t]he prevailing party in the action shall be entitled to recover reasonable attorney’s fees. Sonoma Superior Court Judge Allan Hardcastle ruled against Skaff on the Unruh claim, finding there was no access barrier that needed to be remediated. He held in his favor under §19955, however, awarding Skaff $242,672 in attorney fees and costs.
Hardcastle reasoned that the §19955 claim “would have entitled him to obtain injunctive relief for all non-compliant conditions at the Rio Nido Roadhouse relative to his disability” had they not already been remediated, but since they had been, he “already obtained all the injunctive relief he sought in his pre-litigation correspondences and in his complaint,” rendering him the prevailing party.
Justice Gabriel P. Sanchez wrote the opinion reversing the judgment on the §19955 cause of action and the fee award. He wrote: “It is axiomatic that plaintiff cannot prevail on a cause of action in which no violation of law was ever demonstrated or found. Nor is the catalyst theory available when a claim lacks legal merit. That a pre-litigation demand may have spurred action that resulted in positive societal benefit is not reason alone to award attorney fees under the Civil Code.”
Sanchez said the catalyst theory originated in connection with the private attorney general statute, Code of Civil Procedure §1021.5, but has been applied since 2010 to attorney fee awards under Civil Code §55. However, he pointed out, the theory “requires a causal connection between the plaintiff’s lawsuit and the relief obtained.” The jurist said the pre-litigation demand, not the lawsuit, prompted the remediation and, in any event, remediation was not required under §19955 which requires remediation only where certain other repairs or alterations were made—which weren’t.
Sanchez set forth: “Plaintiff cannot be deemed the prevailing party because no evidence was adduced at trial establishing a violation or potential violation of section 19955. Nor can plaintiff be awarded his attorney fees under a catalyst theory because the claim on which it is based was objectively without legal merit. While Lowbrau accomplished all the remediation plaintiff sought in his pre-litigation demands, plaintiff concedes that none of that remediation was required by section 19955. The fee award must therefore be reversed.”