Commentary by San Diego Personal Injury Attorney Sam Spital:
“One of the headlines in the Los Angeles Daily Journal online edition on December 18, 2012 reported the California Supreme Court ruled in a unanimous Decision that the Plaintiff, who was on a wheel chair and sued under the American with Disabilities Act as well as related state laws claiming he could not gain access due to a 4 inch step at the entrance of a grocery store, was liable for $118,000 in attorney fees of the Defendant owner when he lost the case.
The Decision of the California Supreme Court is in conflict with Federal law and the most recent interpretation by the U.S. Circuit Court of Appeals that only requires a Plaintiff to pay the attorney fees of the Defendant if the case is deemed frivolous.
The general rule in the United States is the losing side does not have to pay the attorney fees of the winning party. There are many exceptions in California and other states, including when a contract or statute specifies the losing side is obligated to pay the attorney fees of the prevailing party. It is also noteworthy that many judges use their discretion by applying equitable remedies to decide these cases and on the basis of justice and fairness may or may not make such an award. In England and other countries, the losing side on the other hand is often compelled to pay the attorney fees of the opponent.
Proponents of disability lawsuits claim the Supreme Court ruling is far too harsh and punishes individuals for filing these cases if they lose. However, the cases can and are often brought in Federal Court because of the different law. The opposing argument is that lawyers who represent Plaintiffs in these cases accept them on a contingency fee basis (the client pays nothing unless he prevails and collects) and the lawyer knows or has reason to know the Defendant in such a lawsuit will have to bear a huge burden to defend such cases and, therefore, must consider the costs vs. benefits, namely whether the case has substantial merit and not gamble on the outcome at the expense of the defendant.”