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Child Evangelism Fellowship of Greater San Diego v. Acle

February 24, 2009

CHILD EVANGELISM FELLOWSHIP OF GREATER SAN DIEGO, PLAINTIFF,
v.
LUIS ACLE IN HIS INDIVIDUAL AND OFFICIAL [DOC. NO. 69] CAPACITY AS PRESIDENT OF THE BOARD OF EDUCATION OF SAN DIEGO CITY SCHOOLS; MITZ LEE, IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS VICE PRESIDENT OF THE BOARD OF EDUCATION OF SAN DIEGO CITY SCHOOLS; JOHN DE BECK, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS MEMBER OF THE BOARD OF EDUCATION OF SAN DIEGO CITY SCHOOLS; SHEILA JACKSON, IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS MEMBER OF THE BOARD OF EDUCATION OF SAN DIEGO CITY SCHOOLS; KATHERINE NAKAMURA, IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS MEMBER OF THE BOARD OF EDUCATION OF SAN DIEGO CITY SCHOOLS, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge

Order Granting in Part Plaintiff's Motion for Attorney's Fees

Plaintiff Child Evangelism Fellowship of Greater San Diego (" CEF") moves the Court for an award of attorney's fees and costs as the prevailing party in this litigation. Defendants have filed an opposition, and Plaintiff has filed a reply.

This motion is appropriate for submission on the papers and without oral argument pursuant to Local Civil Rule 7.1(d)(1), and the Court previously vacated the hearing date. For the reasons set forth herein, Plaintiff's motion is GRANTED IN PART.

Background

Plaintiff initially filed this action on June 3, 2005, alleging that the Defendants engaged in unconstitutional viewpoint discrimination when they required CEF to pay a fee to use school facilities for its after school "Good News Club" meetings. [Doc. No. 1.] Plaintiff alleged the District allowed similarly situated youth organizations engaged in moral and character development, such as Boy Scouts and Girl Scouts, to use the facilities free of charge. Plaintiff sought declaratory and injunctive relief, as well as actual damages, for the alleged constitutional violations. Plaintiff also filed a motion for preliminary injunction. [Doc. No. 4]

Almost immediately after the complaint and motion for preliminary injunction were filed, the Board of Education revised its policy to eliminate free use by all youth groups and other organizations engaged in "pure speech."*fn1 Although Plaintiff argued the revised policy still raised constitutional concerns, the Court on August 24, 2005, denied Plaintiff's motion for preliminary injunction. [Doc. No. 27.] Plaintiff immediately appealed the denial of its motion for preliminary injunction.

During the pendency of the appeal, due to strenuous objection by the Boy Scouts and similar youth organizations who, for the first time, were required to pay a fee to use District facilities under the revised policy, the Board of Education again amended its policy. The second revised policy allowed CEF and all similarly situated youth organizations to use District facilities free of charge.

Thereafter, the parties entered into a Partial Settlement Agreement. The Partial Settlement Agreement was incorporated into a Stipulated Dismissal which the parties filed with the Court on November 16, 2005. [Doc. No. 36.] The Partial Settlement Agreement recited the fact that the Board of Education had amended its policy to provide for free use of facilities by the Boy Scouts, Girl Scouts, and Good News Clubs, and other similar youth groups. [Doc. No. 36, Exhibit A, page 1, ¶ 1.] The Partial Settlement Agreement further provided that Plaintiff would dismiss its requests for injunctive and declaratory relief, as well as its appeal of the Court's order denying its motion for preliminary injunction. [Id., page 2, ¶¶ 3 and 5.] Finally, the Agreement provided that the Court would retain jurisdiction to resolve the issues of damages and attorney's fees, and to enforce the terms of the Agreement. [Id., ¶ 6.]

Plaintiff moved for attorney's fees, arguing it was the prevailing party. [Doc. No. 37.] On January 10, 2006, the Court denied Plaintiff's motion for attorney's fees, finding the Partial Settlement Agreement and Stipulated Dismissal did not materially alter the legal relationship between the parties or create any judicially-enforceable rights. [Doc. No. 52.] Plaintiff appealed. [Doc. No. 54.]

On October 23, 2007, Plaintiff voluntarily dismissed its appeal in order to prosecute the issue of damages before this Court.*fn2 [Doc. No. 60.] On December 1, 2008, the Court granted summary judgment in favor of Plaintiff on its claim for damages in the amount of $864.30 plus interest, and declared Plaintiff to be the prevailing party. [Doc. No. 67.] Plaintiff now moves again for an award of attorney's fees.

Discussion

Pursuant to 42 U.S.C. § 1988, the court "may allow the prevailing party . . . a reasonable attorney's fee as part of the costs . . . ." The Court already determined in its order granting Plaintiff's motion for summary judgment on damages, that Plaintiff is the prevailing party in this action.*fn3 Two questions, therefore, remain at this time: (1) does the nature of Plaintiff's recovery or other "special circumstances" justify a denial of attorney's fees notwithstanding Plaintiff's prevailing party status, and (2) if Plaintiff is entitled to attorney's fees, what amount of fees would be reasonable.

1. Is Plaintiff Entitled to Attorney's Fees?

"Congress' intent in enacting § 1988 was to attract competent counsel to prosecute civil rights cases, where 'victims ordinarily cannot afford to purchase legal services at the rates set by the private market'." Mendez v. County of San Bernardino, 540 F.3d 1109, 1126 (9th Cir. 2008) (quoting City of Riverside v. Rivera, 477 U.S. 561, 576 (1986) (plurality opinion)). As a result, a prevailing party is ordinarily entitled to recover attorney's fees and "'a court's discretion to deny fees under § 1988 is very narrow.'" Mendez, 540 F.3d at 1126 (quoting Herrington v. County of Sonoma, 883 F.2d 739, 743 (9th Cir. 1989)). A court may deny fees to a plaintiff who pursues a large damages award but wins only nominal damages after a purely technical or de minimis victory. Mendez, 540 F.3d at 1126 (citing Farrar v. Hobby, 506 U.S. 103, 115 (1992). The court may also deny a prevailing party its attorney's fees under § 1988 "when 'special circumstances exist sufficient to render an award unjust'." Mendez, 540 F.3d at 1126 (quoting Thomas v. City of Tacoma, 410 F.3d 644, 648 (9th Cir. 2005)). In determining whether special circumstances justify denial of an award of attorney's fees even to a prevailing party, the court should determine "(1) whether allowing attorney fees would further the purposes of § 1988, and (2) whether the balance of the equities favors or disfavors the denial of fees." Thomas, 410 F.3d at 648 (citing Gilbrook v. City of Westminster, 177 F.3d 839, 878 (9th Cir. 1999)).

The Court finds Plaintiff, who is now entitled to prevailing party status by virtue of its summary judgment on actual damages, is entitled to an award of attorney's fees. Defendants argue Plaintiff achieved a de minimis and purely technical victory in this case because it received only $864.30 in damages. However, Plaintiff achieved virtually everything it sought in this case. Plaintiff sought $864.30 in damages, and Plaintiff obtained a judgment for that amount. Plaintiff also sought declaratory and injunctive relief. Although Plaintiff dismissed those claims as part of the Partial Settlement Agreement, the Court's grant of summary judgment in favor of Plaintiff on Plaintiff's claim for damages implicitly declares that the District's application of its prior policy, to deny Plaintiff free use of its facilities, constituted unconstitutional viewpoint discrimination. Defendants did not even argue in its opposition to Plaintiff's summary judgment motion that its pre-litigation application of the fee-for-use policy passed constitutional muster. This implicit finding also acts as a de facto bar to the Board of Education amending the policy again in the future to once again deny Plaintiff use of District facilities on the same basis as other similar youth organizations. Thus, this case is distinguishable from Farrar, and similar cases cited by Defendants, where the plaintiff sought a high amount of damages but recovered very little. Plaintiff's victory in this case was not merely technical or de minimis.

Furthermore, "special circumstances" do not justify a denial of fees in this case. This is exactly the type of "high-risk, low-reward constitutional claim[] that motivated Congress to enact § 1988." Mendez, 540 F.3d at 1126. Few counsel would take a case like this, where the potential damages were only $864.30. Yet it took counsel filing this lawsuit to persuade the Defendants grant Plaintiff access to District facilities on the same fee terms as similarly situated youth organizations. Thus, Plaintiff vindicated an important constitutional claim and is entitled to its attorney's fees.

Defendants argue Plaintiff should be denied fees, or granted only a very low amount of fees, because the District offered, immediately after the case was filed, to resolve all issues. Defendants argue they asked Plaintiff not to expend attorney time litigating this case because it would be resolved shortly. It is noteworthy, however, that Defendants' first reaction to this lawsuit was not to begin applying its then-existing policy in a such a manner as to allow Plaintiff to use the facilities for free as the Boy Scouts, Girls Scouts, Campfire Girls, 4-H, and other similar groups had been doing for years. Instead, Defendants immediately changed its policy to require all youth organizations to start paying a fee to use the facilities. The Court does not imply that Defendants were constitutionally required to allow Plaintiff to use the facilities for free, but merely notes that the Defendants chose to take a course of action antagonistic to Plaintiff's interests, thus contributing to ...


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