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Klein v. City of Laguna Beach

United States District Court, C.D. California, Southern Division

November 19, 2013

STEVE KLEIN, HOWARD PUTNAM, and GLEN BIONDI, Plaintiffs,
v.
CITY OF LAGUNA BEACH, Defendant

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.

Before The Honorable CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE.

OPINION

Page 1163

ORDER DENYING PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS

Honorable CORMAC J. CARNEY, UNITED STATES 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. BACKGROUND[2]

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 anti-abortion 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

Page 1164

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. App'x 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. App'x 772, 2013 WL 3752650 (9th Cir. July 18, 2013). In accordance with the Ninth ...


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