Unpublished Disposition, 865 F.2d 1271 (9th Cir. 1989)

MEMORANDUM^*

The appellant appeals from the district court's decision that he was not entitled to treble damages and attorney's fees under California law after prevailing in his action for breach of the common law duty of carriage by a common carrier.

The plaintiff's action arose out of defendant's refusal to seat him on a flight. Eastern's refusal was based on his handicap, and he claimed unlawful discrimination on the basis of both state and federal law. The district court held that there was no federal or state statutory remedy available, but awarded $15,000 on a common law theory. The airline did not cross-appeal.

On appeal, Dykens first claims entitlement to treble damages and attorney's fees pursuant to Cal.Civ.Code Sec. 54.3 (West 1982). The district court correctly found this statute to be preempted, relying upon our decision in Hingson v. Pacific Southwest Airlines, 743 F.2d 1408 (9th Cir. 1984). In Hingson we stated that:

[Federal] preemption [by the Federal Aviation Act, 49 U.S.C. § 1305(a) ] is not limited to those state laws or regulations that conflict with federal law. It preempts state laws and regulations "relating to rates, routes, or services." Regulation of air carrier seating policies for handicapped passengers involves the regulation of services within the meaning of [the Federal Aviation Act].

Hingson, 743 F.2d at 1415 (original emphasis) (citations omitted). Just as the passenger's claim for unlawful discrimination on the basis of a handicap was held preempted in Hingson, so must this similar claim be held preempted here. This case is unlike Air Transport Ass'n v. Public Utilities Commission, 833 F.2d 200, 207 (9th Cir. 1987), where we stated that the Federal Aviation Act did not preempt California utility regulations that prohibited the surreptitious monitoring of employees' telephone conversations. In Air Transport we noted that there was nothing in the history of the Airline Deregulation Act to indicate a congressional intent to preempt state regulation of utilities insofar as such regulation affected airlines. Id. Unlike Air Transport, the case at bar is indistinguishable from Hingson, and the claim for treble damages and attorney's fees is preempted by the Federal Aviation Act. 49 U.S.C. app. Sec. 1305(a) (1) (1982).

We then turn to plaintiff's claim of entitlement to attorney's fees on the basis of Cal.Civ.Proc.Code Sec. 1021.5 (West 1980). The airline argues that in view of the preemption of state law in this field, the district court's award of relief must have been based upon federal as opposed to state common law. The district court's reasoning is not entirely clear on this point. Even assuming appellant is correct that the ruling was based upon state common law, and disregarding for the moment the preemption problems inherent in such a ruling, we must nevertheless conclude the denial of fees under section 1021.5 was not an abuse of discretion. The incident here was an isolated failure by a single employee to follow Eastern's policies. No pattern or practice of discrimination appears. Although the vindication of existing rights may be a basis for an award of fees under section 1021.5, see Press v. Lucky Stores, Inc., 34 Cal. 3d 311, 318, 193 Cal. Rptr. 900, 904 (1983), we perceive no abuse of discretion in the determination that this is not an appropriate case for the award of fees.

Finally, Eastern seeks attorney's fees and costs, alleging this appeal is frivolous. Fed. R. App. P. 38. While appellant's claims are ultimately unpersuasive, we do not believe them frivolous.

AFFIRMED.