Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 07CC02151, Peter J. Polos, Judge.
Center for Disability Access and Russell C. Handy for Plaintiff and Appellant.
Grimm & Scholnick and Robert M. Scholnick for Defendants and Respondents.
OPINION
Sills, P. J.
Robert Miller, who uses a wheelchair (he suffers from C 5/6 quadriplegia), sued the owners of a Santa Ana Subway based on non-compliance of the restaurant’s parking lot with ADAAG’s. Specifically, there were only two handicapped spaces in the strip mall where the restaurant was located when, given the 51 to 75 total spaces, there should have been three; the access aisle for the “van accessible” space was six feet in width, not eight as required; and the built-up curb serving that space had a 20 percent slope when the maximum is 8.33 percent. He brought a motion for summary judgment, and was, according to the minute order, “awarded judgment in the amount of $1,000” and an order requiring the Subway to “provide a legally compliant handicap parking and path of travel within 1 year.” The ensuing judgment added costs of $738.50 and substantially tracked the minute order as far as the injunctive relief was concerned.
Americans With Disabilities Act Accessibility Guidelines, commonly referred to as “ADAAG’s,” are promulgated by the Department of Justice.
Here is the exact language of the injunction as set forth in the judgment filed November 24, 2008: “Additionally, the Court ORDERS defendants to provide legally compliant (i.e., compliant with the Americans with Disabilities Act Accessibility Guidelines) handicap parking and paths of travel at the property that was the subject of this lawsuit located at 1221 East 1st Street, Santa Ana, California within one year of this judgment.”
Then Miller filed a motion for attorney fees and costs, including expert witness costs, seeking a little less than $22,000. While the owners agreed to an award of reasonable fees and costs, they argued that the $22,000 figure was unreasonably high. The trial judge, however, did them one better: He denied the fee and cost request in its entirety, reasoning that because the judgment lacks “sufficient specificity to be enforceable, i.e., one that tells Defendants what they have to do to bring the property into compliance,” that he could “only conclude that the sole purpose of this action was to generate fees.” On appeal from the order denying the fees, the defendants still concede that some fees are appropriate, but continue to assert that this fee request was unreasonably high.
The defendants will get their chance to argue the unreasonability of Miller’s fee request after reversal and remand, which is compelled in this case. We know of no principle of ADA or disability jurisprudence -- and certainly none has been cited to us -- that allows a court to deny all fees incurred in an otherwise meritorious disability access suit because the motivation of the plaintiff or plaintiff’s counsel was “solely” to generate fees.
The order denying all fees to plaintiff Miller is reversed, and the matter remanded to the trial court for further proceedings to make a reasonable attorney fee and cost award. Our opinion is without prejudice to the defendants to argue that the $22,000 fee request is unreasonable and should be cut, or to the plaintiff to argue that it is an appropriate amount. It is also without prejudice to the defendants to argue that motivation to obtain attorney fees -- sole or otherwise -- may be a factor in determining an appropriate attorney fee award, and without prejudice to the plaintiff to argue that even a sole motivation to obtain attorney fees is irrelevant in such a determination.
In the interests of justice the trial judge shall have the discretion to consider the costs in this appeal in making that fee and cost award.
WE CONCUR: RYLAARSDAM, J., MOORE, J.