Gunther v. Jack in the Box
Filed 8/30/06 Gunther v. Jack in the Box CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| DAVID GUNTHER, Plaintiff and Appellant, v. JACK IN THE BOX, INC., et al., Defendants and Respondents. | G036469 (Super. Ct. No. 04CC07445) O P I N I O N |
Appeal from a postjudgment order of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed.
Law Offices of Morse Mehrban and Morse Mehrban for Plaintiff and Appellant.
Law Offices of Phillip K. Fife, Phillip K. Fife and Ryan M. Craig for Defendants and Respondents.
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Introduction
Plaintiff David Gunther prevailed on one of his two claims for violation of the Unruh Civil Rights Act (Civ. Code, § 51), and the trial court awarded him statutory damages (id., § 52, subd. (a)). Gunther then moved for recovery of attorney fees under Civil Code section 52, subdivision (a). The trial court awarded Gunther attorney fees, but at a far lower amount than he requested. Gunther appealed.
Although the trial court erred by failing to award attorney fees based on the lodestar method, that error was caused by Gunther's failure to provide the court with the information needed to perform the lodestar calculation. Additionally, the trial court would have been acting within its discretion to reduce the lodestar calculation based on numerous factors. Therefore, we affirm.
Statement of Facts
In July 2004, Gunther (who cannot walk and is therefore dependent on a wheelchair for mobility) sued the owners and operators of a Jack in the Box on West Ball Road in Anaheim, alleging two violations of the Unruh Civil Rights Act (Civ. Code, § 51).[1] In brief, he claimed the toilet seat cover dispenser in the men's restroom was placed too high on the wall for use by patrons in wheelchairs, and the failure to insulate the pipes under the sink in the men's restroom prevented him from washing his hands. Following a bench trial, the court found in favor of Gunther on the first cause of action (toilet seat cover dispenser), and in favor of defendants on the second cause of action (pipes under the sink). The court found Gunther suffered no actual damages, but that it was required to award him a minimum of $4,000 in statutory damages (Civ. Code, § 52, subd. (a)). The court also found Gunther had failed to contact defendants before filing suit to seek a voluntary remedy of the conditions he contended had denied him free and equal access to defendants' restroom. Judgment was entered September 20, 2005.
Gunther filed a motion on October 21, 2005, seeking a total of $29,070.80 in attorney fees and costs. The trial court granted the motion, but awarded Gunther only $2,000 in attorney fees and $393.78 in costs. Gunther appeals from the attorney fees award; he does not challenge the costs award.
Discussion
A prevailing plaintiff in an action under Civil Code section 51 is entitled to recover attorney fees. (Civ. Code, § 52, subd. (a); Engel v. Worthington (1997) 60 Cal.App.4th 628, 632.) The amount of the fees to be awarded, however, is a matter within the trial court's discretion. (Engel v. Worthington, supra, at p. 632.)
Gunther argues the trial court erred by failing to calculate his attorney fees using the lodestar method. (Serrano v. Priest (1977) 20 Cal.3d 25.) We have found no published case applying the lodestar method to the calculation of attorney fees under Civil Code section 52, subdivision (a). (Defendants, for their part, fail to even address the application of the lodestar method in their appellate brief.) However, the general rule is that when a statute authorizes an award of attorney fees, without specifying any restrictions on how those fees are to be calculated, the lodestar method applies. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134-1136.) Civil Code section 52, subdivision (a) refers to attorney fees without providing any further indication how the Legislature intended the fees should be calculated. Therefore, we conclude the lodestar method applies to awards of attorney fees for violations of the Unruh Civil Rights Act.
The initial lodestar figure is based on a â€
