Defendant Did Not Meet Christiansburg Standard for Recovery of Fees.
In the civil rights area, 42 U.S.C. § 1988(b) is by no means an equal fee-shifting provision. It favors winning plaintiffs. Conversely, a winning defendant must prove the plaintiff’s civil rights action was frivolous, unreasonable, or without foundation in order to be entitled to an award of attorney’s fees as the victor. Christiansburg Garment Co. v. EEOC, 434 U.S. 42, 421 (1978).
Losing plaintiffs in the next case, who lost a civil rights suit upon summary judgment in a protracted suit over a non-permitted residential wall resulting in a misdemeanor criminal prosecution, were assessed with $103,893.30 (out of a requested $174,733.30) in fees, payable to the winning municipality.
However, on appeal, the Second District, Division 2—in Greenberg v. City of La Canada Flintridge, Case No. B213717 (2d Dist., Div. 2 Aug. 30, 2010) (unpublished)—reversed the fee award against plaintiffs.
Reasons? The trial court failed to make express factual findings and legal conclusions to satisfy the Christiansburg standard. (See Cohn v. Papke, 655 F.2d 191, 195 n.3 (9th Cir. 1981).) Beyond that, plaintiffs did survive a demurrer such that their action could not be said to lack any basis. (Sussman v. Bank of Israel, 56 F.3d 452, 457 (2d Cir. 1995).)