On January 14, 2010, the California Supreme Court issued its opinion in Chavez v. City of LA.  While this was a Fair Employment and Housing Act case (FEHA), it could help to deter over-reaching by plaintiffs in California disabled access litigation.  The Supreme Court unanimously held that under Code of Civil Procedure 1033, the court may deny attorney fees to an otherwise prevailing plaintiff in a civil rights case if the amount of damages recovered  is less than the jurisdictional threshold (i.e. $25,000 for Unlimited Civil).  Attorney fees and costs are excluded for this calculation (Steele v. Jensen, cited in Chavez).  In other words, Unruh and Disabled Persons Act cases typically should be filed in Limited Civil.  While some have argued that access cases are properly filed in Unlimited Civil because of the injunctive relief claims, the following would suggest otherwise:

1) Civil Code 52.2 give lower jurisdictional classifications jurisdiction of cases under Civ. Code 52 and 54.3, each of which expressly provide for injunctive relief;

2) Such an argument is similar to the plaintiff’s rejected argument in Chavez that the nature of FEHA cases was not suitable for Limited Civil courts; and

3) Under Steele v. Jensen, cited in Chavez, it is the recovery obtained, not the recovery pled, that determines the proper jurisdictional classification.  Thus, if all code deviations are corrected prior to judgment, the injunctive relief claim will be moot, and cannot be a basis for filing in Unlimited Civil.  This is especially true where, as in most access cases, there was  no pre-litigation notice given.  Moreover, a catalyst theory attorney fee award will be unavailable because under the Cal. Supreme opinion in Graham v. Daimler-Chrysler, pre-litigation notice must be given to qualify for catalyst fees.