Plaintiff’s Due Process Claims Were Not Frivolous—Timing Was Everything!
Plaintiff, in Nemer v. City of Mill Valley, Case No. A159224 (1st Dist., Div. 2 Oct. 28, 2020) (unpublished), was hit with a $107,721 adverse attorney’s fees award under 42 U.S.C. § 1988 based on the lower court’s perception that his due process claims were frivolous based on a summary judgment grant in City’s favor. That result went away as a matter of law on appeal. Plaintiff did get past a demurrer, and his real claim was for post-design review approvals which led the appellate court in a prior decision to determine that City did not determine its right to judgment as a matter of law. Based on these circumstances, the fee award was reversed.