1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANDRES GOMEZ, Case No. 3:21-cv-09006-WHO

8 Plaintiff, ORDER ON MOTION FOR 9 v. ATTORNEY'S FEES

10 TRINITAS CELLARS, LLC, Re: Dkt. No. 39 Defendant. 11

12 13 In this disability access case, I granted summary judgment to defendant Trinitas Cellars, 14 LLC (“Trinitas”) that the website of its winery did not violate the Americans with Disabilities Act 15 (“ADA”). Trinitas now moves for plaintiff Andres Gomez to bear its attorney’s fees. Oral 16 argument is unnecessary and the hearing is vacated. See Civ. L.R. 7-2(b). The motion is denied: 17 this suit does not fall within the narrow band of cases for which a prevailing civil-rights defendant 18 is entitled to fees. 19 BACKGROUND 20 Gomez is visually impaired and filed this suit against Trinitas alleging that its winery 21 website violated the ADA and California’s Unruh Civil Rights Act. See generally Order on 22 Motion for Summary Judgment (“MSJ Order”) [Dkt. No. 37]. In March 2022, I granted Trinitas’s 23 motion to dismiss the claims, finding that the complaint “fail[ed] to adequately plead how the 24 specific barriers deprived Gomez of full and fair enjoyment or denied him equal access to the 25 winery,” as required under the law. See Order Granting Motion to Dismiss (“MTD Order”) [Dkt. 26 No. 21] 5. As I explained, his pleading about the barriers was essentially conclusory. Id. 5–6. 27 After Gomez amended his complaint, Trinitas again moved to dismiss. “Because Trinitas 1 considering converting the motion to dismiss into a motion for summary judgment and gave the 2 parties an opportunity to file supplemental briefs.” MSJ Order (citing Dkt. No. 30). I granted 3 summary judgment to Trinitas, finding that the purported ADA barriers that Gomez pointed to 4 were either factually nonexistent or did not amount to a barrier under the law. See id. 5–9. 5 LEGAL STANDARD 6 “In the United States, parties are ordinarily required to bear their own attorney’s fees—the 7 prevailing party is not entitled to collect from the loser.” Buckhannon Bd. & Care Home, Inc. v. 8 W. Virginia Dep’t of Health & Hum. Res.,

(2001). Under the federal civil 9 rights laws, however, “the court or agency, in its discretion, may allow the prevailing party, other 10 than the United States, a reasonable attorney’s fee, including litigation expenses, and costs.” 42

. When the defendant prevails, “fees should be granted . . . only upon a finding 12 that the plaintiff’s action was frivolous, unreasonable, or without foundation.” Kohler v. Bed Bath 13 & Beyond of California, LLC,

(9th Cir. 2015) (internal quotation marks and 14 citation omitted). The Ninth Circuit has “repeatedly cautioned that district courts should not 15 engage in post hoc reasoning, awarding fees simply because a plaintiff did not ultimately prevail.” 16

(internal quotation marks and citations omitted). An action is “considered frivolous in this 17 Circuit when the result is obvious or the [plaintiff’s] arguments . . . are wholly without merit.” 18 Vernon v. City of Los Angeles,

(9th Cir. 1994). 19 DISCUSSION 20 Trinitas moves for an award of $30,327 in attorney’s fees and $2,300 in expert witness 21 fees. See generally Motion for Attorney’s Fees (“Mot.”) [Dkt. No. 39]. This Order assumes 22 familiarity with the details of the MTD Order and MSJ Order. For the reasons that follow, 23 Trinitas’s motion is denied. 24 This case does not fall within the narrow and extraordinary category of cases that are 25 entirely frivolous, vexatious, unreasonable, or unfounded. See Kohler,

. To be 26 sure, Gomez ultimately lost and the issues that made it to summary judgment were, on his side, 27 weak. But that alone is insufficient to award fees. See

While each of Gomez’s asserted 1 MSJ Order 5–9. None of them were squarely or inarguably foreclosed by precedent. Nor were 2 any of the factual allegations so baseless as to warrant fees. 3 To resist this, Trinitas first argues that precedent squarely foreclosed Gomez’s claims. See 4 Mot. 7–8. Conspicuously, it does not cite any Ninth Circuit authority that squarely addresses the 5 issues in this suit—nor could it, as this is a relatively undeveloped corner of ADA law. See

6 The closest it gets are cases in this district dismissing other claims by Gomez about websites. See 7

2 (citing Gomez v. Corro, No. 21-cv-07085-SI,

, at *6-7 (N.D. 8 Cal. Apr. 26, 2022); Gomez v. Wunderlich, No. 22-cv-00355-TSH,

105179, at *8-9 (N.D. Cal. June 13, 2022)). Those cases, though, are non-binding; while a pattern 10 of district court rulings could, in the right circumstances, lead to a finding of frivolity or 11 vexatiousness, this handful does not. Additionally, Trinitas cites them for the principle that 12 “seeking information about a business from its website does not state a claim under the ADA.”

13 But that is not the ground on which I granted summary judgment; I did so for much narrower 14 reasons. See MSJ Order 5–9. In fact, as I have previously explained, Trinitas has the principle 15 wrong: “To the extent that Trinitas’s argument is that “[a]llegations that barriers prevented a 16 plaintiff from gaining information (as opposed to impeding the enjoyment of, or access to, a 17 physical location) are not actionable,” I reject it as overbroad.” MTD Order 5 (quoting Trinitas’s 18 motion to dismiss). 19 Next, Trinitas labels the complaint “factually frivolous.” Mot. 8–9. Although this is closer 20 to the mark than its caselaw-based argument, I ultimately conclude that the factual assertions were 21 not frivolous. To make its argument, Trinitas relies first on my finding that “Gomez’s 22 allegations [about the readability of script elements] are factually incorrect: all of these are 23 readable by [screen reader software].” MSJ Order 8. Based on this, Trinitas accuses Gomez of 24 making “false” accusations. Mot. 8. And it argues that Gomez’s reliance on the lack of contrast 25 between text and background was “bizarre” and “provably false.”

. On the first issue, my 26 finding of factual inaccuracy was not a finding that Gomez was being misleading or purposefully 27 false; instead, it appears that the relevant scripting elements may have once not been readable but 1 did not address it. /d. But it at least raises a serious enough doubt about accusations of falsehood 2 || to foreclose a finding of frivolity. On the second issue, Gomez’s argument about low contrast was 3 || not frivolous, I just disagreed with him about whether it was legally actionable. See

. 4 || Neither party cited any other case addressing the precise issue. 5 Even among the universe of suits by Gomez’s counsel (with which courts have frequently 6 perceived serious issues), this case was a weak one. It was based, even in its best light, on 7 arguable technical accessibility violations that did not amount to true barriers. From here on out, 8 Gomez and his counsel are on notice of this. But that said, the grounds on which Trinitas 9 || prevailed do not show that Gomez’s suit meets the high bar for awarding fees. And Trinitas 10 || cannot secure fees based on alternative theories that did not factor into the decision. 11 CONCLUSION 12 The motion for attorney’s fees is DENIED. 13 IT IS SO ORDERED. 14 |] Dated: August 22, 2022 . 16 5 W Hiam H. Orrick nited States District Judge 18 19 20 21 22 23 24 25 26 27 28