Klein v. City of Laguna Beach

• Decision Date: 19 November 2013
• Docket Number: Case No. SACV 08–01369–CJC(MLGx).
• Citation: 983 F.Supp.2d 1162
• Parties: Steve KLEIN, Howard Putnam, and Glen Biondi, Plaintiffs, v. CITY OF LAGUNA BEACH, Defendant.
• Court: U.S. District Court — Central District of California

983 F.Supp.2d 1162

Steve KLEIN, Howard Putnam, and Glen Biondi, Plaintiffs,

v.CITY OF LAGUNA BEACH, Defendant.

Case No. SACV 08–01369–CJC(MLGx).

United States District Court,

C.D. California,

Southern Division.

Nov. 19, 2013.

William G. Gillespie, Bonsall, CA, Michael J. Kumeta, Esq., La Mesa, CA, for plaintiffs.

Philip D. Kohn, Esq., Rutan & Tucker LLP, Costa Mesa, CA, for defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS

CORMAC J. CARNEY, District Judge.

I. INTRODUCTION

Plaintiffs Steve Klein, Howard Putnam, and Glen Biondi (collectively, “Mr. Klein”) brought this action against the City of Laguna Beach (the “City”), bringing an as-applied challenge to the City's former amplified sound ordinance. Mr. Klein recovered $3 in nominal damages. Before the Court is Mr. Klein's motion for attorneys' fees in the amount of $1,994,041.50 and costs in the amount of $646.50 pursuant to the federal Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988(b), and California Civil Procedure Code section 1021.5.¹ Because Mr. Klein's sole relief was $3 in nominal damages on his federal constitutional claims, and because his claims under California law were dismissed, his motion for attorneys' fees and costs is DENIED.

II. BACKGROUND²

The genesis of this case is Mr. Klein's attempt to use a bullhorn on the sidewalks around Laguna Beach High School to communicate a religious and antiabortion message to high school students at the end of classes. ( See Dkt. No. 1 ¶¶ 10–12.) After he was denied a permit to use amplified sound outside the high school, he filed a complaint and an application for a temporary restraining order on December 3, 2008. (See Dkt. Nos. 1, 3.) After the Court denied his application for a temporary restraining order, Mr. Klein filed the operative First Amended Complaint, alleging that the City's sound ordinance, Laguna Beach Mun.Code § 7.25.120, prohibited him from communicating his message in three locations: (1) to students on the sidewalks adjacent to Laguna Beach High School immediately following the final bell of the school day, (2) on the sidewalk outside Laguna Beach City Hall from 4 p.m. to 5 p.m., and (3) on the sidewalks of the commercial district in downtown Laguna Beach. (Dkt. No. 9 [“FAC”] ¶¶ 22–23.)

The City amended its amplified sound ordinance on June 16, 2009, and Mr. Klein moved for a preliminary injunction to restrain the City from enforcing the revised ordinance on August 3, 2009. The Court denied Mr. Klein's motion on August 28, 2009, and Mr. Klein timely appealed. The Ninth Circuit Court of Appeals held that this Court erred by finding that Mr. Klein had not shown a likelihood of success on the merits because the City had presented insufficient evidence to show that its sound amplification ordinance was “narrowly tailored to serve a significant government interest.” Klein v. City of Laguna Beach, 381 Fed.Appx. 723, 725–27 (9th Cir.2010). Because the Ninth Circuit could not ascertain whether Mr. Klein sought to bring a facial or an as-applied challenge to the ordinance, the Ninth Circuit declined to enjoin the City from enforcing the ordinance, “lest the injunction sweep more broadly than necessary,” and remanded the matter to this Court on an open record. Id. at 728.

On October 5, 2010, the City Council again amended Laguna Beach Municipal Code section 7.25.120 so that it no longer prohibited any of the expressive activities that Mr. Klein sought to engage in. Accordingly, Mr. Klein represented to the Court that he no longer sought declaratory or injunctive relief. (Dkt. No. 63–1 [“Pl.'s Mem. P & A. Supp. Mot. Summ. J.”] at 1.) Instead, he moved for summary judgment seeking an award of nominal damages pursuant to 42 U.S.C. § 1983 because, as applied, the former ordinance deprived him of his constitutional rights to free speech under the United States Constitution. Mr. Klein also sought nominal damages for violation of his free-speech rights under the California Constitution. The Court granted Mr. Klein's motion in part and granted the City's cross motion in part, holding that the repealed amplified sound ordinance was permissible as applied to Mr. Klein's proposed amplified speech outside the high school and City Hall, but was unconstitutional as applied to his proposed amplified speech in the downtown business district. (Dkt. No. 99.) The Court dismissed with prejudice Mr. Klein's remaining claims, including his claims for declaratory and injunctive relief under the California and federal Constitutions as moot, because the City had repealed the contested ordinance provisions in 2008 and 2010. (Dkt. No. 99.) ³

On appeal, the Ninth Circuit affirmed in part and reversed in one respect this Court's judgment, finding that this Court erred in granting summary judgment to the City on Mr. Klein's challenge as applied to his proposed amplified speech near city hall. Klein v. City of Laguna Beach, 533 Fed.Appx. 772 (9th Cir.2013). In accordance with the Ninth Circuit's second memorandum decision, this Court entered a revised judgment. ( See Dkt. No. 118.) The Revised Judgment awarded Mr. Klein $3 in nominal damages on his claims under § 1983 that the City's repealed permit scheme violated the First Amendment as applied to his case and that the City's repealed amplified sound ordinance violated the First Amendment as applied to his proposed amplified speech at City Hall and the downtown business district. (Dkt. No. 118.) Judgment was entered in favor of the City, however, on Mr. Klein's claims for (1) declaratory and injunctive relief for violations of the federal Constitution; (2) nominal damages pursuant to § 1983 for Mr. Klein's proposed speech near the high school; (3) nominal damages and declaratory and injunctive relief for violations of Article I Section 2 of the California Constitution; and (4) statutory damages pursuant to the California Bane Act. (Dkt. No. 118.).

III. ANALYSISA. Section 1988

“The general rule in our legal system is that each party must pay its own attorney's fees and expenses....” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010). Nevertheless, in an action brought pursuant to 42 U.S.C. § 1983, “the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988(b). Where, as here, a § 1983 plaintiff receives only nominal damages, such a plaintiff is a “prevailing party” for purposes of § 1988(b). See Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). “That does not, however, mean that [the] plaintiff is necessarily entitled to an award of fees.” Benton v. Or. Student Assistance Comm'n, 421 F.3d 901, 904 (9th Cir.2005).

In addition to determining whether the plaintiff is a “prevailing party,” a court must assess the plaintiff's degree of overall success to determine whether a fee award is “reasonable.” See Farrar, 506 U.S. at 114, 113 S.Ct. 566 (“Although the ‘technical’ nature of a nominal damages award or any other judgment does not affect the prevailing party inquiry, ... ‘the degree of the plaintiff's overall success goes to the reasonableness' of a fee award ....” (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 793, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989))). The Court is guided in its assessment of the reasonableness of a fee by Farrar's teaching “that an award of nominal damages is not enough to justify an award of attorney's fees.” ⁴Benton, 421 F.3d at 905 (quoting Wilcox v. City of Reno, 42 F.3d 550, 555 (9th Cir.1994)). This is because a nominal damages award “highlights the plaintiff's failure to prove actual, compensable injury’ ” and “often ‘accomplishe[s] little beyond giving [them] the moral satisfaction of knowing that a federal court concluded that their rights had been violated in some unspecified way.’ ” Mahach–Watkins v. Depee, 593 F.3d 1054, 1059 (9th Cir.2010) (first alteration in original) (quoting Farrar, 506 U.S. at 114–15, 113 S.Ct. 566). Accordingly, “[i]f a district court chooses to award fees after a judgment for only nominal damages, it must point to some way in which the litigation succeeded, in addition to obtaining a judgment for nominal damage.” Wilcox, 42 F.3d at 555;see Mahach–Watkins, 593 F.3d at 1059.

In determining whether a plaintiff succeeded in some way beyond the judgment for nominal damages, a district court should consider three factors, derived from Justice O'Connor's concurrence in Farrar.Mahach–Watkins, 593 F.3d at 1059;see Farrar, 506 U.S. at 116–22, 113 S.Ct. 566 (O'Connor, J., concurring). The factors a court should consider are (1) the extent of the plaintiff's recovery, (2) the significance of the legal issue on which the plaintiff claims to have prevailed, and (3) whether the success accomplished some public goal. As to the third factor, the Ninth Circuit has observed, by way of example, that “[i]f the lawsuit achieved other tangible results—such as sparking a change in policy or establishing a finding of fact with potential collateral estoppel effects—such results will, in combination with an enforceable judgment for a nominal sum, support an award of fees.” Benton, 421 F.3d at 905 (quoting Wilcox, 42 F.3d at 555) (internal quotation marks omitted).

The Court finds that the third factor—whether the success accomplished some public goal—weighs strongly against an award of attorneys' fees. In considering this factor, the Court finds Benton particularly instructive. In that case, the Ninth Circuit held that the district court erred in awarding any attorneys' fees. Id. at 907–08. The plaintiff in Benton was a professor at Bob Jones University, an unaccredited institution that emphasizes conservative values. Id. at 902. The plaintiff filed suit after the Oregon Office of Degree Authorization decreed that she should be fired from her position at the college because her degree was “illegal” under Oregon law. Id. at...