Most of the time, lawyers encounter preemption issues in the context of conflicts between federal and state law or between local and state law. But horizontal preemption is also possible. Even different criminal statutes in the same state can trigger preemption issues, as in People v. Murphy, case no. E046742 ( 4th Dist. Dec. 28, 2009): Defendant contends the Legislature enacted misdemeanor statutes, which more specifically defined the felony offense for which she was convicted in count 1, subsequent to the latter’s enactment; thus, she asserts her felony conviction is preempted and must be reversed. Specifically, the defendant contended that her conviction for procuring or offering false information for filing in a pubic office…
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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,…