Unreasonable Post-Litigation Failure to Settle and Absence of Court-Ordered Change Negated Fee Entitlement Bases.
After petitioner lost an administrative hearing on the issue in Wineberg v. City & County of San Francisco, Case Nos. A134143/A134941 (Feb. 11, 2013) (unpublished), he commenced a lawsuit contesting a San Francisco ordinance assessing penalties for false burglar/fire alarms and obtained voluntary compliance–the City corrected many of the identified deficiencies, voluntarily dismissed the penalties, and refunded petitioner’s money with interest. However, the litigation continued, and City won summary judgment against petitioner mainly on mootness grounds. Then, the trial court denied petitioner’s application for fee recovery under the private attorney general statute (Code Civ. Proc., § 1021.5) based on a “catalyst” theory and under the federal civil rights statute (42 U.S.C. § 1988).
Petitioner appealed, but lost both the merits and fee denial challenges.
The 1021.5 denial was supported because petitioner unreasonably refused to make a bona fide effort to settle the case without litigation. Even though his exhaustion of administrative remedies could be construed as a pre-litigation demand, his post-litigation conduct and failure to resolve the controversy when City responded with legitimate settlement options were damning, with the appellate court agreeing with the lower court assessment of the impact of this activity. (Denial was justified under Vasquez v. State of California, 45 Cal.4th 243, 256-257 (2008) [our Leading Case #10].)
With respect to the denial of civil rights fees, the problem was that City voluntarily complied such that it did not do so under any court-mandated changes, with the absence of “judicial relief” being fatal to recompense under section 1988. (Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept. of Health & Home Resources, 532 U.S. 598, 604) (2001).)