Gomez v. Braby

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

7 ANDRES GOMEZ, Case No. 22-cv-00036-PJH 8 Plaintiff,

9 v. ORDER DENYING DEFENDANT’S MOTION FOR ATTORNEYS’ FEES 10 ELIZABETH ANN BRABY, Re: Dkt. No. 37 11 Defendant. 12

13 14 Before the court is defendant’s motion for attorneys’ fees. The matter is fully 15 briefed and suitable for decision without oral argument. Accordingly, the hearing set for 16 November 3, 2022, is VACATED. Having read the parties’ papers and carefully 17 considered their arguments and the relevant legal authority, and good cause appearing, 18 the court hereby rules as follows. 19 BACKGROUND 20 Plaintiff Andres Gomez is legally blind and uses “screen reader software” (“SRS”) 21 to read internet content on computers and mobile devices. FAC ¶¶ 10-11. Plaintiff 22 alleges that he was a prospective customer of defendant’s real estate services. FAC 23 ¶ 15. He alleges that he tried to access defendant’s website in March 2021 and July 24 2021 with the intent to get information about houses for sale in Northern California. FAC 25 ¶ 16. Plaintiff further alleges that he encountered numerous accessibility design flaws on 26 defendant’s website that prevented him from navigating the website with his SRS. FAC 27 ¶¶ 16-17. Plaintiff contends that he was denied full and equal access to defendant’s 1 Plaintiff filed the original complaint in this case on January 5, 2022. Dkt. 1. 2 Plaintiff subsequently gave notice that the parties had reached a settlement (Dkt. 19), 3 and the court conditionally dismissed the case based on the notice (Dkt. 20). The court 4 then reopened the case upon plaintiff’s timely request when the settlement failed to be 5 finalized. Dkt. 22. 6 Plaintiff filed the first amended complaint (“FAC”) on June 21, 2022. Dkt. 23. 7 Following retention of new counsel, defendant filed a motion to dismiss pursuant to Rule 8 12(b)(1) of the Federal Rules of Civil Procedure. Dkt. 27-1. The court granted the motion 9 to dismiss for lack of jurisdiction on August 23, 2022. Dkt. 36. Defendant now seeks an 10 award of attorneys’ fees on the basis that she prevailed on the motion to dismiss. 11 DISCUSSION 12 A. Legal Standard 13 “[I]n order to encourage private enforcement of the law[,] Congress has legislated 14 that in certain cases prevailing parties may recover their attorneys’ fees from the 15 opposing side.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). 16 Under the ADA, the court may award a “prevailing party” “a reasonable attorney’s fee, 17 including litigation expenses, and costs.” 42 U.S.C. § 12205. This provision does not 18 distinguish between plaintiffs and defendants, but the “policy considerations which 19 support the award of fees to a prevailing plaintiff are not present in the case of a 20 prevailing defendant.” Kohler v. Bed Bath & Beyond of Cal., LLC, 780 F.3d 1260, 1266 21 (9th Cir. 2015) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418-19 22 (1978)). Accordingly, fees may be awarded to a prevailing defendant only when “the 23 plaintiff’s action was frivolous, unreasonable, or without foundation.” Kohler, 780 F.3d at 24 1266 (quoting Summers v. A. Teichert & Son, 127 F.3d 1150, 1154 (9th Cir. 1997) 25 (internal quotation marks omitted)). “Generally, a case may be deemed frivolous only 26 when the result is obvious or the arguments of error are wholly without merit.” 27 Hernandez v. Caliber Bodyworks LLC, No. 21-CV-05836-EMC, 2022 WL 2132914, at *3 1 prevailing defendant is to deter the bringing of lawsuits without foundation.” Id., at *3. 2 The Ninth Circuit has “repeatedly cautioned that district courts should not engage in post 3 hoc reasoning, awarding fees simply because a plaintiff did not ultimately prevail.” 4 Kohler, 780 F.3d 1260, 1266 (internal quotation marks and citations omitted). 5 B. Analysis 6 1. Whether Defendant Complied with Local Rules 7 As a threshold matter, plaintiff argues that defendant’s motion for attorneys’ fees 8 should be denied because defendant failed to comply with Civil Local Rule 54-5(a), which 9 requires counsel to meet and confer for the purposes of resolving all disputed issues 10 before filing a motion for attorneys’ fees. There was no meet and confer prior to this 11 motion. Further, Local Rule 54-5(b)(1) requires the party seeking attorneys’ fees to file a 12 declaration with a “statement with respect to the motion or a statement that no 13 conference was held, with certification that the applying attorney made a good faith effort 14 to arrange such a conference, setting forth the reasons the conference was not held.” 15 Defendant does not submit such a declaration. 16 Defendant makes no effort to acknowledge this deficiency. Instead, the reply brief 17 implies that counsel’s prior correspondence with plaintiff’s counsel, warning of sanctions, 18 satisfied the meet-and-confer requirement. See, e.g., Dkt. 41-3, Dkt. 41-7. Defense 19 counsel did not even attempt to suggest that such meet-and-confer effort would have 20 been futile. Rather, any acknowledgement of the Civil Local Rules is wholly lacking. The 21 court therefore DENIES the motion based on this procedural defect. 22 Defendant argues at various points in her briefing that Rule 11 sanctions should 23 be imposed where plaintiff’s counsel was aware of the falsity of plaintiff’s status as a 24 potential real estate customer at the time of filing the amended pleading. Defendant did 25 not file a separate motion for sanctions as is required by Civil Local rule 7-8(a). To the 26 extent defendant’s motion for attorneys’ fees is premised on an award of attorney fees as 27 Rule 11 sanctions, it does not comply with the Civil Local Rules. The court therefore also 1 2. Whether Fee-Shifting is Appropriate 2 As noted above, in civil rights cases like this one, it is appropriate to shift an award 3 of attorneys’ fees to the “prevailing party.” 42 U.S.C. § 12205. There is no dispute that 4 Braby is the prevailing party. The court accordingly considers whether “the plaintiff’s 5 action was frivolous, unreasonable, or without foundation” to support an award of 6 attorneys’ fees for the defendant. Kohler, 780 F.3d at 1266 (citation omitted). 7 A claim is frivolous “when the result is obvious or the . . . arguments of error are 8 wholly without merit.” C.W. v. Capistrano Unified Sch. Dist., 784 F.3d 1237, 1245 (9th 9 Circ. 2015) (citation omitted). In other words, attorney fees for defendants should only be 10 granted when the complaint was brought “without foundation.” Christiansburg Garment 11 Co., 434 U.S. at 420 (1978). A claim that was dismissed for lack of standing—as here— 12 is considered frivolous when the plaintiff “had no reasonable foundation on which to bring 13 the suit” or the plaintiff “knew or should have known that the Court would not have 14 jurisdiction” after further factual development. Strojnik v. Portola Hotel, LLC, No. 19-CV- 15 07579-VKD, 2021 WL 4172921, at *2 (N.D. Cal. Sept. 14, 2021). 16 Defendant argues that plaintiff lacked a reasonable foundation to bring this lawsuit 17 on three bases. First, plaintiff did not plead any cognizable injury under the ADA where 18 he failed to allege a nexus between defendant’s alleged failure to provide a readable 19 website using SRS, and his ability to access a physical location, or take advantage of 20 defendant’s services. Second, plaintiff was at no point a “prospective customer” given his 21 Florida residency and his $900 monthly SSDI benefits, rendering his potential purchase 22 of Northern California real estate implausible. Third, plaintiff admitted in a separate case 23 that he was not a prospective customer, that he was instead a “window shopper” and a 24 “dreamer.” See Dkt. 37-3 at 3 (Decl. of Gomez filed in Gomez v. Gates Estates, Inc., 25 3:21-cv-07147-WHA, Dkt. 34-1 (N.D. Cal., Feb. 14, 2022)). 26 Plaintiff counters that frivolousness is not established here; rather, this case was 27 brought to expand ADA law, to chart new territory regarding equal access to websites. 1 one in part because the nexus test relied on by the court has not been universally 2 accepted. Erasmus v. Charles W. Perry, M.D., Inc., No. 221CV00915WBSKJN, 2021 WL 3 4429462, at *5 (E.D. Cal. Sept. 27, 2021) (“However, in [Robles v. Domino’s Pizza, LLC, 4 913 F.3d 898, 905 (9th Cir. 2019)] the Ninth Circuit specifically declined to hold that such 5 a [nexus] requirement exists.”). And DOJ guidance suggests that a broader interpretation 6 of the necessary connection between inaccessible elements on a website and access to 7 a physical space is appropriate. Guidance on Web Accessibility and the ADA, 8 ada.gov/resources/web-guidance/ (Published March 18, 2022). Plaintiff advances that he 9 was entitled to test this novel civil rights issue without exposure to fee-shifting. Contrary 10 to defendant’s contention that plaintiff’s theories have been refuted by the Ninth Circuit, 11 plaintiff highlights that there is no binding authority rejecting the type of accessibility 12 challenge rejected here. Plaintiff avers he was entitled to his day in court without risk of 13 fee-shifting. 14 Here, plaintiff has the winning argument. Plaintiff’s theory was not doomed to 15 failure at the time it was initially filed. Plaintiff filed several of these website cases 16 simultaneously at the beginning of this year, but at the time this case was filed, not one of 17 them had yet been dismissed. Further, as plaintiff notes, civil rights law is only expanded 18 through test cases such as those in this series, presenting the novel theory of an ADA 19 violation for failure to provide a readable website using SRS to access defendant’s 20 services. Plaintiff’s theory stretched the bounds of an ADA accessibility case, but it was 21 not wholly “without foundation.” Christiansburg Garment Co., 434 U.S. at 420 (1978). 22 The court disagrees with plaintiff’s approach, but the novel theory presented in this case 23 was not so devoid of merit as to reach the level of frivolous. This is not one of the cases 24 in which fees must be shifted against plaintiff. The court therefore also DENIES 25 defendant’s motion on the merits. 26 Before closing, the court pauses to note its concern with the general sloppiness 27 that pervades the ADA litigation involving these firms. The Center for Disability Access 1 General Order 56 and filing sloppily constructed, cut-and-paste briefs, often captioned 2 with the wrong plaintiff’s name and confusing facts from one case to the next. See, e.g., 3 Johnson v. Fremi Corporation, 4:21-cv-08143-PJH, Dkt. 9 (N.D. Cal., Dec. 3, 2021) 4 (listing Brian Whitaker in the caption instead of plaintiff Scott Johnson). Defendant’s 5 counsel must be careful that he does not earn the same reputation for unprofessionalism 6 by ignoring local rules and submitting such skimpy and insufficiently authenticated billing 7 records as those proffered here. See Dkt. 37-4. 8 CONCLUSION 9 For the foregoing reasons, defendant’s motion for attorneys’ fees is DENIED. 10 IT IS SO ORDERED. 11 Dated: October 31, 2022 12 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 13 United States District Judge

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