Civil Rights/Pleading: Owners Winning Illegal “Spot Zoning” Was Entitled To Award Of Fees Under 42 U.S.C. § 1988

 

It Was Irrelevant Winner Did Not Plead or Cite Civil Rights Statutes as Fee Entitlement Basis.

     Here is an interesting one for land use practitioners out there.

     In Ocean Avenue Associates, LLC v. City of Indio, Case No. E052522 (4th Dist., Div. 2 Mar. 19, 2012) (unpublished), property owners invalidated city ordinances based on illegal “spot zoning” challenges. However, during the course of the litigation, owners never cited any civil rights statutes in support of their theories, except -- and it is an important except, when it filed a motion for attorney’s fees under the pro-plaintiff civil rights statute (42 U.S.C. § 1988). Owners sought to recoup $196,359.58 in fees. The trial court denied the motion, citing unfair surprise and prejudice to the City of Indio.

     Lo and behold --

Reversed on appeal.

     The appellate court found it was irrelevant that owners had not cited the civil rights statutes during the course of the litigation, finding Green v. Obledo, 161 Cal.App.3d 678, 682 (1984) persuasive in determining that attorney’s fees are an entitlement if the pleadings tender a civil rights claim (whether the civil rights statutes are cited or not).

     City argued that owners still lost because they could not cite to any case where plaintiff was awarded section 1988 fees for unpled section 1983 claims. Technically true, said the appellate panel, but it located a lot of civil cases holding that a plaintiff’s failure to expressly cite section 1983 is not fatal to a section 1988 fee award. (E.g., Rural Water Dist. No. 1 v. City of Wilson, Kan., 243 F.3d 1263, 1273 (10th Cir. 2001) as well as six other federal and state court cases.) [BLOG WARNING--As an appellate advocate, be careful to argue, as respondent City did, that there are no cases to support a proposition--the appellate court research staff and justices may find them, as they did here.]

     City, though, was not willing to cede altogether yet. It relied on Board of Administration v. Wilson, 57 Cal.App.4th 967, 972, 974-975 (1997), where an appellate court found the failure to invoke section 1983 was prejudicial to the defense and would not allow adverse consequences to flow under the civil rights statutes. The appellate panel in Ocean Avenue Associates found Wilson distinguishable, because there were unadjudicated standing issues of import--something not involved in either Green or the facts before it. Also, the City failed to present evidence to support an estoppel theory, which means Green was indeed persuasive in nature.