California Attorney Fee Recovery Preempted by ADA – and a Note on Missed Issues

It’s quite common for plaintiffs to sue under similar state and federal provisions.  The disabled plaintiffs who sued under both the federal Americans with Disabilities Act and the California Disabled Persons Act in Hubbard v. Sobreck LLC, case no. 06-56870 (9th Cir. June 27, 2008) did themselves a favor by doing so, as the court finds that the prevailing defendant’s right to attorney fees under the CDPA is preempted by the more stringent fee provision in the ADA.

The ADA fee provision makes fees discretionary, but that has led to a practice of awarding fees to defendants only where the plaintiff’s case is frivolous.  The CDPA, on the other hand, makes fees recoverable by the “prevailing party.”  Since liability is coextensive – a violation of the ADA is a violation of the CDPA  –  the   federal provision wins out.

From an appellate angle, the interesting thing about the case is that the court addressed the preemption issue even though it was not raised in the district court.  Because it is an issue of law, the Ninth Circuit had discretion to consider the issue for the first time on appeal.

More interesting yet, this wasn’t the first time a district court missed the issue.  The defendants cited two district court opinions that awarded fees to prevailing defendants sued under both the ADA and the CDPA, but the Ninth cites a major flaw in both of them: “Neither of these cases, however, considered the issue of preemption.”  The Ninth finds a third district court decision consistent with its own, but even that decision failed to address preemption.

I suppose it’s easy to say that at least one of the lawyers or judges in these three cases should have seen and dealt with the preemption issue.  But in the the throes of litigation, the parties and the court sometimes miss an issue that later seems obvious in hindsight.  That can be dangerous, as the appellate court won’t always be able or inclined to address the missed issue.