FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LYNN J. HUBBARD; BARBARA J. 

HUBBARD,

Plaintiffs-Appellants,

v. No. 06-56870

SOBRECK, LLC, dba: JOHNNY D.C. No.

CARINOS, CV-04-01129-

Defendant-Appellee,  WQH/LSP

DOES I THROUGH X INCLUSIVE, ORDER AND

Defendant-Appellee, AMENDED

and OPINION

EASTLAKE VILLAGE MARKETPLACE

LLC,

Defendant. 

Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Argued and Submitted

May 12, 2008—Pasadena, California

Filed June 27, 2008

Amended January 12, 2009

Before: Mary M. Schroeder, Barry G. Silverman, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Schroeder

379
COUNSEL

Scottlynn J. Hubbard, Chico, California, for plaintiffsappellants Lynn J. Hubbard, et al. 

Donald Merkin, San Diego, California, for defendantappellee, SoBreck, LLC, et al. 

ORDER

The Opinion filed June 27, 2008, is hereby amended. With

the filing of the Amended Opinion, the panel has voted to

deny the petition for panel rehearing. No further petitions for

rehearing may be filed.

OPINION

SCHROEDER, Circuit Judge: 

Plaintiffs-appellants Lynn and Barbara Hubbard filed parallel claims for violations of both the Americans with Disabilities Act (“ADA”) and the California Disabled Persons Act

(“CDPA”). Their complaint alleged barriers that deprived

them of full and equal access to the restaurant operated by

defendants-appellees SoBreck, LLC, dba Johnny Carino’s.

We consider whether the district court properly awarded attorHUBBARD v. SOBRECK, LLC 381
ney’s fees to defendants under the California Act, in circumstances where fees were not authorized under the federal

ADA. We hold that the award of fees under state law was preempted by federal law. 

I. Background

Plaintiffs’ complaint originally alleged thirty-eight violations of federal and California statutes, many of which were

settled in a settlement agreement prior to trial, and others

which were abandoned before trial. The district court considered the remaining charges during a two-day bench trial. It

found that plaintiffs failed to present sufficient evidence to

establish they were denied full and equal enjoyment of the

restaurant’s services and facilities. The court entered a judgment in defendants’ favor on all of plaintiffs’ remaining

claims. Defendants subsequently moved for attorney’s fees

and costs pursuant to the ADA and Section 55 of the CDPA.

The district court found that plaintiffs’ claims were not

frivolous and that fees were not warranted under the ADA,

which authorizes fees only on frivolous claims. Section 55 of

the CDPA, however, authorizes fees to the “prevailing party.”

The district court awarded fees to the defendants under this

section. 

The principal issue on appeal is whether the award of fees

to a prevailing defendant under the CDPA is inconsistent

with, and therefore preempted by, the ADA. The issue of preemption was not raised below, so the district court did not

have an opportunity to rule on it. It is an issue of law, however, which may be considered for the first time on appeal.

See Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985).

Because our district courts have been called upon, from time

to time, to consider whether fees may be awarded to a prevailing defendant under Section 55 when fees are precluded by

the ADA, we consider the issue. 

382 HUBBARD v. SOBRECK, LLC
II. Analysis

We begin by observing that for federal law to preempt state

law, it is not necessary that a federal statute expressly state

that it preempts state law. Federal law preempts state law if

the state law “actually conflicts” with federal law. Cal. Fed.

Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 280-81 (1987)

(“Cal. Fed. Sav.”). In this case, federal law, the ADA, makes

an award of attorney’s fees to the prevailing party discretionary. It provides that “[T]he court or agency, in its discretion,

may allow the prevailing party . . . a reasonable attorney’s fee

. . . .” 42 U.S.C. § 12205 (emphasis added). Courts have interpreted this to mean that only plaintiffs who bring frivolous

claims are to be saddled with paying attorney’s fees to the

defendant. See Summers v. Teichert & Son, Inc., 127 F.3d

1150, 1154 (9th Cir. 1997). We use the term “frivolous” in

this opinion as a shorthand term for the full statutory phrase.

Under the California statute, however, as interpreted

recently by the California Court of Appeal, Molski v. Arciero

Wine Group, 164 Cal. App. 4th 786 (2008), an award to a prevailing defendant does not turn on whether the plaintiff’s

claim was frivolous. Fees are not discretionary; they are mandatory. Section 55 provides, “The prevailing party in the

action shall be entitled to recover reasonable attorney’s fees.”

Cal. Civ. Code § 55 (emphasis added). Given this language,

we have no basis for doubting that the California Supreme

Court will agree with Molski as to the meaning of Section 55.

See Klingebeil v. Lockheed Aircraft Corp., 494 F.2d 345, 346

n.2 (9th Cir. 1974) (“Decisions of the California Courts of

Appeal are to be followed by a federal court where the

Supreme Court of California has not spoken on the question,

in the absence of convincing evidence that the highest court

of the state would decide differently.”) (internal quotation

marks and citations omitted). 

[1] A violation of the federal ADA constitutes a violation

of the CDPA. See, e.g., Cal. Civ. Code §§ 54(c), 54.1(d),

HUBBARD v. SOBRECK, LLC 383
54.2(b). Therefore, to the extent that California’s Section 55

mandates the imposition of fees on a losing plaintiff who

brought both a nonfrivolous ADA action and a parallel action

under Section 55, an award of attorney’s fees under Section

55 would be inconsistent with the ADA, which would bar

imposition of fees on the plaintiff. In such a case, the proof

required to show a violation of the CDPA and of the ADA is

identical. In that circumstance, it is impossible to distinguish

the fees necessary to defend against the CDPA claim from

those expended in defense against the ADA claim, so that a

grant of fees on the California cause of action is necessarily

a grant of fees as to the ADA claim. As federal law does not

allow the grant of fees to defendants for non-frivolous ADA

actions, we must conclude that preemption principles preclude

the imposition of fees on a plaintiff for bringing nonfrivolous

claims under state law that parallel claims also filed pursuant

to the federal law. See Cal. Fed. Sav., 479 U.S. at 280-81. 

In defense of the fee award in this case, defendants rely on

two federal district court cases that awarded attorney’s fees to

prevailing defendants under the CDPA, even though the

claims were not frivolous under the ADA. See Jones v. Wild

Oats Markets, Inc., 467 F. Supp. 2d 1004 (S.D. Cal. 2006);

Goodell v. Ralphs Grocery Co., 207 F. Supp. 2d 1124 (E.D.

Cal. 2002). Neither of these cases, however, considered the

issue of preemption. 

In Goodell, the district court expressly decided not to award

attorney’s fees under the ADA because the plaintiff’s claims

were not frivolous. 207 F. Supp. 2d at 1125-26. It imposed

fees under Section 55, holding that the imposition of fees on

the prevailing party was not discretionary under the state statute. Id. at 1126, 1128, 1129. The opinion, however, looked

only to the language of the statutes and did not consider the

issue of preemption, which was apparently not raised. 

In Jones, the district court awarded fees under the CDPA

on all five of the claims on which the defendant prevailed. It

384 HUBBARD v. SOBRECK, LLC
awarded fees under the ADA for only the two of those claims

that the district court found “lacked an arguable basis in fact

or law and were frivolous.” 467 F. Supp. 2d at 1017. The

court in Jones relied on Goodell, and likewise did not consider the issue of preemption. 

The district court’s decision in a third case, Edwards v.

Princess Cruise Lines, Ltd., 471 F. Supp. 2d 1032 (N.D. Cal.

2007), is consistent with the result we reach here, although it

did not discuss preemption. In Edwards, the district court did

not award fees under the ADA because it ruled the plaintiff’s

claims were not frivolous. Id. at 1033. The district court also

declined to award fees under Section 55, even though it had

granted defendant’s motion for summary judgment. As the

district court noted, Section 55 itself does not define “prevailing party.” Id. The defendant urged the definition of “prevailing party” as found in California Code of Civil Procedure

§ 1032(a)(4), and which was relied upon in Goodell and

Jones. That statute defines the term “prevailing party” for purposes of awarding costs: “As used in this section, unless the

context clearly requires otherwise: ‘Prevailing party’ includes

. . . a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief,

and a defendant as against those plaintiffs who do not recover

any relief against that defendant.” Id. at 1033 & n.1 (quoting

Cal. Civ. Proc. Code § 1032(a)(4)). 

The Edwards court rejected this definition, holding that a

prevailing party entitled to costs under § 1032 is not necessarily entitled to fees under Section 55. Id. at 1033-34. The court

in Edwards held that California courts have some discretion

under Section 55 to determine “whether there was a prevailing party on a practical level.” Id. at 1034. The court also distinguished Goodell on the ground that Goodell was a decision

on the merits, whereas the plaintiff in Edwards was timebarred, so the defendant in Edwards did not prevail for purposes of awarding fees. Id. at 1034 & n.3. The district court

in Edwards provided additional reasons for its decision, id. at

HUBBARD v. SOBRECK, LLC 385
1034-35, but it did not expressly consider the issue of preemption. 

In challenging this fee award, plaintiffs cite to the unpublished district court decision in Wilson v. Norbreck LLC, No.

CIV S-04-690DFLJFM, 2007 WL 1063050 (E.D. Cal. Apr. 9,

2007) (unpublished disposition), and it is also consistent with

the result we reach regarding preemption. The district court

there held that awarding fees to a prevailing defendant under

the CDPA, when the defendant would not be entitled to attorney’s fees under the ADA, would violate public policy. Id. at

*3. The Wilson court also questioned the availability of fees

to a prevailing defendant under state law, noting that in Gunther v. Lin, 50 Cal. Rptr. 3d 317, 332 n.18 (Ct. App. 2006),

the California Court of Appeal “left open the issue of whether

a prevailing defendant could recover attorney’s fees under

§ 55.” 2007 WL 1063050 at *2. The district court in Wilson

did not rule on this issue, but held that “when a plaintiff

brings parallel CDPA and ADA claims, the ADA fees provision controls as a matter of state law” because “[u]nder California law, prevailing defendants cannot receive attorney’s

fees for defending claims that inextricably overlap with other

claims when a fee award is inappropriate for the defense of

the latter.” Id. at *3. The district court cited to Carver v.

Chevron U.S.A., Inc., 14 Cal. Rptr. 3d 467, 503-04 (Ct. App.

2004), which held it would violate public policy to award fees

to a defendant for defending common-law claims that overlapped its defense of state antitrust claims, for which fees

were available only to plaintiffs and not to defendants. 

[2] The federal district courts are thus in disagreement over

the proper interpretation of Section 55. For purposes of our

decision, it is clear that California has interpreted Section 55

to permit recovery of attorney’s fees even where the plaintiff’s claim is not deemed to be frivolous. Molski, 164 Cal.

App. 4th at 791. We hold that to the extent that Section 55

does authorize the award of fees to a prevailing defendant on

nonfrivolous CDPA state claims that parallel nonfrivolous

386 HUBBARD v. SOBRECK, LLC
ADA claims, there is a conflict and the ADA preempts Section 55 of the CDPA. 

[3] The order awarding attorney’s fees is REVERSED and

the matter REMANDED with instructions to vacate the fee

award. 

HUBBARD v. SOBRECK, LLC 387