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Court of Appeal, Second District, Division 7, California.

Jose Ronillo Abogado LUCERO, Jimmie Johnson, Walnut Properties, Inc., a California Corporation, Petitioners and Respondents, v. MUNICIPAL COURT OF the LONG BEACH JUDICIAL DISTRICT, County of Los Angeles, State of California, Defendants. PEOPLE of the State of California, Real Party in Interest and Appellant.

No. B050440.

Decided: May 07, 1993

John A. Vander Lans, Long Beach City Prosecutor, Robert R. Recknagel, Asst. City Prosecutor, and Gerry L. Ensley, Deputy City Prosecutor, for real party in interest and appellant. Fleishman, Fisher & Moest, Stanley Fleishman and David Grosz, Los Angeles, for petitioners and respondents. Ira Reiner and Gil Garcetti, Dist. Attys. of Los Angeles County, Harry B. Sondheim, Head Deputy Dist. Atty., and Diana L. Summerhayes, Deputy Dist. Atty., for amicus curiae Appellate Committee of California Dist. Attys. Ass'n.

The City of Long Beach appeals from an order of the superior court awarding respondents attorney fees and costs as prevailing parties in an action to restrain a criminal prosecution brought by the City in violation of their constitutional rights.   We affirm.


Respondents, Jose Ronillo Abogado Lucero, Jimmie Johnson and Walnut Properties, Inc. (respondents), owned, operated or worked at the Lakewood Theater in the City of Long Beach.   Some of the films shown at the theater were X-rated adult movies.   In 1977 the City of Long Beach (City) adopted a “non-cluster” or “anti-skid row” ordinance prohibiting any adult entertainment business within 500 feet of residential areas or 1,000 feet of public schools or churches.  (Long Beach Mun.Code, ch. 21.51.)

In December 1977, and shortly after the Lakewood Theater opened, the City instituted proceedings culminating in the revocation of Walnut Properties, Inc.'s (Walnut) operating license.   Walnut sued the City to challenge the constitutionality of the ordinance.  (Walnut Properties v. City Council of Long Beach (1980) 100 Cal.App.3d 1018, 1024, 161 Cal.Rptr. 411.)   The Court of Appeal upheld the constitutionality of the ordinance and affirmed Walnut's misdemeanor convictions for operating an adult entertainment business in violation of the Long Beach ordinance.

Walnut thereafter reduced the number of adult movies shown at the theater to something at or under 50 percent.   Based on a then recent Court of Appeal decision interpreting the constitutionality of zoning restrictions on adult entertainment, a theater could not be regulated as adult entertainment unless a “preponderance” of the films exhibited were of the adult variety.   (Pringle v. City of Covina (1981) 115 Cal.App.3d 151, 171 Cal.Rptr. 251.)   “Preponderant use” of an adult theater was thereafter defined as “over 50 percent.”  (Strand Property Corp. v. Municipal Court (1983) 148 Cal.App.3d 882, 889, 200 Cal.Rptr. 47.)

Nevertheless, the City attempted to prosecute Walnut and others for probation violations based on a single showing of an adult film.   Walnut filed suit for declaratory and injunctive relief against the city council and the city prosecutor alleging the prosecution violated their first amendment rights under 42 United States Code section 1983 and Pringle.   Walnut successfully sought an injunction to restrain the criminal proceedings as well as attorney fees under 42 United States Code section 1988.   On appeal, the City contended Pringle was wrongly decided and that a single showing of an adult film should be sufficient under the first amendment to violate its ordinance.   The Court of Appeal agreed it was constitutionally permissible to regulate a theater showing a single adult film and reversed the judgment and award of fees.  (Walnut Properties, Inc. v. Ussery (1986) 178 Cal.App.3d 186, 223 Cal.Rptr. 511 [opinion ordered not published in the Official Reports by order of the Supreme Court dated June 24, 1986 (B005781) ].)

In September 1987, the Long Beach City Prosecutor charged respondents with 12 counts each of violating the City ordinance.   Each count of the complaint was predicated upon a single showing of an adult movie on a specific date.   Although aware the decision in Ussery was deprived of precedential value due to the decision's depublication, and that the “predominant use” of the Lakewood theater was not the exhibition of adult films and therefore did not violate the ordinance as interpreted under Pringle, the City filed the complaints to directly challenge Pringle's “predominate use” standard.

Respondents demurred to the complaints contending they could not be prosecuted based on an unconstitutional interpretation of the Long Beach Zoning Ordinance, i.e., based on a single showing of an adult film.   The Municipal Court of Long Beach overruled the demurrers and set the case for trial.

Respondents sought a writ of prohibition or mandate to compel the municipal court to sustain the demurrers and dismiss the complaints.   Respondents stated the petition was brought pursuant to 42 United States Code section 1983, because the present prosecution, brought under color of state law, would deprive them of their rights under the First and Fourteenth Amendments as guaranteed by the Constitution of the United States.

The superior court granted a peremptory writ of mandate commanding the municipal court to grant the demurrers with 30 days leave for the real party in interest to file amended complaints.   In its order the court explained that “the proceedings against petitioners under the allegations of the complaints filed in the respondent court subject the petitioners to a deprivation of rights secured by the first and fourteenth amendments to the United States Constitution,․”

The City's prosecutors refused to amend the complaints and instead petitioned the Court of Appeal for a writ of mandate to compel the superior court to vacate its judgment.

The Court of Appeal denied the writ and rejected the City's contention a single showing of an adult film was constitutionally sufficient to make a theater an adult motion picture theater within the meaning of the City's zoning ordinance.   The court denied the City's petition for writ of mandate because the complaints did not and could not allege, as required by the decision in Pringle, that the preponderance of films exhibited were distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specific anatomical areas as those terms are defined in the Long Beach Municipal Code.   The Supreme Court granted the City's petition for review of the constitutionality of the City's “single use” standard.

The Supreme Court found the “single use” standard violated the first amendment.   The court also found, however, the Pringle “predominate use” standard was unnecessarily high and was not constitutionally compelled.   The court rejected both the “single use” and Pringle standards for defining the conditions under which a theater may be permissibly regulated as an adult theater and adopted instead a “regular and substantial course of conduct” standard.  (People v. Superior Court (Lucero) (1989) 49 Cal.3d 14, 27, 259 Cal.Rptr. 740, 774 P.2d 769.)   The court concluded that “The People, having alleged multiple violations of Chapter 21.51, section 21.51.030 of the Long Beach Municipal Code, each based on the unconstitutional ‘single use’ standard, are not entitled to proceed with the action as pleaded.   Accordingly, the judgment of the Court of Appeal [denying the City's petition for writ of mandate to reinstate the complaint] is affirmed.”  (49 Cal.3d at p. 28, 259 Cal.Rptr. 740, 774 P.2d 769.)

Thereafter respondents filed a motion for an award of attorney fees pursuant to the Civil Rights Attorney's Fees Awards Act of 1976.  (42 U.S.C., § 1988.)   After extensive briefing and argument from the parties, the superior court awarded respondents $35,000 in fees and $1,773 in costs to be paid by real party in interest, the City of Long Beach.   The City appeals from the order, asserting the award is inappropriate as a matter of law in numerous respects.



 The City contends respondents are not entitled to attorney's fees because they received only a technical victory concerning the pleadings and did not receive any relief on the merits.   The City argues because respondents could not be prosecuted under the Pringle “predominate use” theory, and could not be prosecuted on a “single use” theory, there has been no legal change between the parties to qualify respondents as the prevailing parties.

The leading case defining who can be deemed a “prevailing party” in a civil rights action, and therefore who is entitled to an award of fees under section 1988, is Texas State Teachers Assn. v. Garland Independent School Dist. (1989) 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866.1  In that case the Court was asked to determine whether the teachers association could be deemed to be the prevailing party in the action although some of its claims were dismissed.   The Court examined its decisions defining “prevailing parties” in varying contexts and determined “[i]f the plaintiff has succeeded on any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit the plaintiff has crossed the threshold to a fee award of some kind․   As we noted there, [r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail.   Thus, at a minimum, to be considered a prevailing party within the meaning of § 1988 the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant․   The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.   Where such a change has occurred, the degree of the plaintiff's overall success goes to the reasonableness of the award under Hensley [v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ] not to the availability of a fee award vel non.”  (489 U.S. at pp. 791–793, 109 S.Ct. at pp. 1492–1494, internal citations and quotation marks omitted.)

In this case the writ proceeding brought by respondents changed the legal relationship between the parties.   Respondents sought a writ of prohibition or mandate to prevent any prosecution based on the unconstitutional charges.   At the termination of all the writ proceedings, our Supreme Court issued its decision restraining the criminal prosecution.   Thus, where once respondents were defendants threatened with a prosecution for alleged violations of a Long Beach Municipal Ordinance, at the end they were freed from having to defend against the unconstitutional charges.

Furthermore, respondents received some relief on the merits of their claim.   Their petition for writ of prohibition or mandate alleged the criminal prosecutions would violate their rights under the First and Fourteenth Amendments of the United States Constitution.   The superior court, Court of Appeal and Supreme Court agreed and the prosecution was restrained.2

It is true the City also received some benefit from the litigation in that the more stringent Pringle standard has now been replaced by a more lenient “regular and substantial course of conduct” standard for determining when an adult theater may be constitutionally regulated.   However, that incidental, alleged benefit for prosecutors generally is irrelevant to the inquiry whether respondents, as the parties that pursued the writ proceedings pursuant to section 1983, were successful in restraining a prosecution based on the City's unconstitutional standard of “single use.”

We conclude the trial court did not err in determining respondents were the prevailing parties in the writ proceedings.


Relying on the decision in Imbler v. Pachtman (1976) 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128, the Long Beach City Prosecutor contends the award of fees was improper because prosecutors enjoy absolute immunity for actions taken in the official exercise of their discretion.   The City contends if the prosecutor's office is immune from section 1983 liability there can be no fee shifting under section 1988.

This argument is inapplicable to the case at bar.  Imbler provides absolute immunity to state prosecutors from personal liability in damages for malicious prosecution.   However, the underlying action in this case was not one for damages nor for malicious prosecution.   Nor was the underlying action brought against the Long Beach City Prosecutors individually.

 Moreover, the doctrine of prosecutorial immunity is inapplicable in actions for prospective relief where the liability of the municipality for violations of civil rights is at issue and not that of the official personally (Owen v. City of Independence (1980) 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673) and where the fee award is to be paid by the governmental entity (Hutto v. Finney (1978) 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522).  (See also Kentucky v. Graham (1985) 473 U.S. 159, 167, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 [in suit against municipal officers personally, city cannot be held liable on respondeat superior theory although that defense unavailable where officials sued in official capacity] ).

 In Supreme Court of Virginia v. Consumers Union of the United States, Inc. (1980) 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641, the Court held the Virginia court could be held liable for an award of fees under section 1988 in their role as the enforcement agents of the state bar rules.   In so holding the Court noted “[p]rosecutors enjoy absolute immunity from damages liability, but they are natural targets for § 1983 injunctive suits since they are the state officers who are threatening to enforce and who are enforcing the law.”  (Id. at pp. 736–737, 100 S.Ct. at p. 1977, internal citation omitted.)   After reviewing the cases holding the Eleventh Amendment did not bar an award of attorney fees against a state officer in his or her official capacity in a suit for injunctive relief in federal court (Hutto v. Finney, supra, 437 U.S. 678, 693–700, 98 S.Ct. 2565, 2574–2579), the court stated:  “Accordingly, enforcement authorities against whom § 1983 judgments have been entered would ordinarily be charged with attorney's fees.”  (446 U.S. at p. 738, 100 S.Ct. at p. 1977.) 3

Contrary to the arguments of the City, the fee award against the City was proper because the writ proceeding in the present case was not an action for damages but was instead tantamount to a suit for declaratory or injunctive relief.   As noted by one commentator:  “Where the statute or ordinance is unconstitutional, there is no legally punishable offense, and the court has no jurisdiction to try the defendant.   In such a case, a higher court will grant the equivalent of an injunction, namely a writ of prohibition to prevent the lower court from trying the defendant.”  (4 Witkin & Epstein Cal.Criminal Law (2d ed. 1989) Jurisdiction and Venue, § 1831, p. 2168, emphasis in original;  see also, Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 171 P.2d 8 [writ of prohibition proper vehicle to restrain prosecution based on unconstitutional statute];  Patterson v. Municipal Court (1965) 232 Cal.App.2d 289, 42 Cal.Rptr. 769 [prohibition to compel trial court to properly instruct on and give issue to the jury].)

Because the writ proceeding in the present case sought to restrain the unconstitutional criminal prosecutions, the proceeding was sufficiently akin to a suit for declaratory or injunctive relief to warrant an award of fees against the City for the unconstitutional actions of its enforcement officials.4


 The City next contends the fee award against it was improper because only the People of the State of California were named as the real party in interest in the writ proceedings.5

However, it is sufficient if the course of the proceedings reveal the real party in interest for purposes of identifying the individual or entity against whom a fee award may be made.   As the Court stated in Brandon v. Holt (1985) 469 U.S. 464, 471–472, 105 S.Ct. 873, 877–878, 83 L.Ed.2d 878:  “In at least three recent cases arising under § 1983, we have plainly implied that a judgment against a public servant ‘in his official capacity’ imposes liability on the entity that he represents provided, of course, the public entity received notice and an opportunity to respond.   We now make that point explicit.”   Thus, in Brandon v. Holt the Court held the city was responsible for paying the attorney fees awarded to the prevailing plaintiffs in a section 1983 action against the city's director of police sued in his official capacity.  (Id. at p. 471, 105 S.Ct. at p. 877.)

In Hutto v. Finney, supra, 437 U.S. 678, 98 S.Ct. 2565, the Court rejected the state attorney general's argument the state could not be responsible for attorney fees under section 1988 based on an action for injunctive relief where prison officials were the named defendants.  “[T]he Attorney General argues that, even if attorney's fees may be awarded against a State, they should not be awarded in this case, because neither the State nor the Department is expressly named as a defendant.   Although the Eleventh Amendment prevented respondents from suing the State by name, their injunctive suit against prison officials was, for all practical purposes, brought against the State.   The actions of the Attorney General himself show that.   His office has defended this action since it began.  [Citation.]   The State apparently paid earlier fee awards;  and it was the State's lawyers who decided to bring this appeal, thereby risking another award.

“Like the Attorney General, Congress recognized that suits brought against individual officers for injunctive relief are for all practical purposes suits against the State itself.   The legislative history makes it clear that in such suits attorney's fee awards should generally be obtained ‘either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party ).’   S.Rep. No. 94–1011, p. (1976).”  (Hutto v. Finney, supra, 437 U.S. at pp. 699–700, 98 S.Ct. at p. 2578, italics added.)

Thus, whether or not the City was named as a real party in interest in this action is not determinative in ascertaining which person or entity should be responsible for the fees in this case.   What is determinative is whether the course of proceedings reveal the real party in interest and whether that party had adequate notice of the suit and an opportunity to defend.

All the criteria for imposing the fee award against the City of Long Beach are met in this case.   The entire controversy concerned the enforcement of Long Beach's zoning ordinance.   The “single use” standard was the city prosecutor's interpretation of the City ordinance.   The city prosecutor pursued the action in his official capacity as an enforcement officer of the City's ordinances.   The city prosecutor's office has defended the ordinance and represented the City's interests in all proceedings at every level.   The city prosecutor in fact brought this appeal to challenge the award of fees imposed against the City.

From this record it is clear the City had adequate notice of the proceedings and has had its interests represented throughout.   The trial court found, and we agree, the City of Long Beach was the real party in interest in these proceedings to defend its ordinance.   Under these circumstances, we find no violation of due process in requiring the City as the real party in interest in this action to pay the award of attorney fees and costs.


 Amicus curiae suggests an award of attorney fees is improper when awarded in a proceeding which is part of a criminal prosecution.   The argument, apparently, is that criminal defendants should not be allowed to bootstrap a civil proceeding which carries with it a potential for an award of fees into a criminal prosecution.   Amicus curiae does not cite any relevant authority for this proposition.   Nor do we see anything inherently improper in this process.

Apparently amicus curiae would prefer a criminal defendant to pursue his or her remedies in the criminal action and then later or simultaneously file a separate civil action under section 1983 for the civil rights violations inflicted in the criminal proceeding.   We fail to see how a multiplicity of suits to accomplish the same objective can possibly benefit either defendants, the justice system or further the congressional purpose of providing an effective statutory vehicle to vindicate civil rights secured by the Constitution.  (See, e.g., Lezama v. Justice Court (1987) 190 Cal.App.3d 15, 24, 235 Cal.Rptr. 238 [to be entitled to fees under section 1988, criminal defendants should pursue available remedies in the original proceeding].)

We agree an award of fees under section 1988 may not be proper for the fees and costs incurred in defending a criminal prosecution.  (Perkins v. Cross (8th Cir.1984) 728 F.2d 1099;  Greer v. Holt (6th Cir.1983) 718 F.2d 206.)   However, the fees in this case were neither incurred nor awarded for that purpose.   In this case there was no actual prosecution to try the alleged charges.   Consequently, there were no fees or costs incurred in defending against the improper charges.   The purpose of these proceedings was not to secure or defend against a conviction but rather to restrain an unconstitutional prosecution before it could begin.

 In any event, the language of section 1988 does not limit an award of fees to separately filed civil actions only.   As the Supreme Court noted in Hutto v. Finney, supra, 437 U.S. at p. 694, 98 S.Ct. at p. 2575:  “The Act itself could not be broader.   It applies to ‘any’ action brought to enforce certain civil rights laws.”   The legislative history of The Civil Rights Attorney's Fees Awards Act of 1976 supports a broad interpretation as well.   The Senate Report on the Act states:  “It is intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act.   A party seeking to enforce the rights protected by the statues covered by S. 2278, if successful, ‘should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.’  Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968).”  (S.Rep. No. 94–1011, p. 4 (1976), U.S.Code Cong. & Admin.News. (1976) pp. 5908, 5912.) 6

In these writ proceedings, respondents sought to enforce their rights not to have to defend against unconstitutional charges.   It would appear the broad language of section 1988 should encompass proceedings prompted by an impending criminal prosecution as well as actions for declaratory or injunctive relief brought for the same purpose.  (Compare Wilson v. Stocker (10th Cir.1987) 819 F.2d 943 [arrestee properly awarded attorney's fees against district attorney and attorney general in action for declaratory and injunctive relief to restrain threatened criminal prosecution].)

 Instructive on this point is the decision by our Supreme Court in In re Head (1986) 42 Cal.3d 223, 228 Cal.Rptr. 184, 721 P.2d 65.   The issue in that case was whether prison inmates were properly awarded attorney's fees for a successful challenge to prison conditions brought in habeas corpus proceedings.   The attorney fee provision in that case was Code of Civil Procedure section 1021.5, the private attorney general provision, which only provides for an award of attorney's fees if several stringent requirements are met.   Although not controlling authority in an action involving an award of fees under the expansive federal civil rights statute, the principles that decision announce guide us to a proper resolution of this issue.

In In re Head, supra, 42 Cal.3d 223, 228 Cal.Rptr. 184, 721 P.2d 65, the Department of Corrections challenged the award contending fees were only appropriate in civil proceedings.   The Supreme Court disagreed.   In rejecting the parties' attempt to characterize the proceedings as either criminal or civil the court concluded:  “We shall conclude that the nature of the relief sought, not the label or procedural device by which the action is brought, is determinative of the right to seek fees under section 1021.5.   The petitions here presented issues related to the conditions of confinement in a state prison and involved the rights of prison inmates generally.   Vindication of these rights is not analogous to a defense against a criminal prosecution.   Rather, as respondent concedes, the petitioners' claim is of such a nature that it might have been presented in a purely civil proceeding—by petition for writ of mandate or action for declaratory relief—in which case no question would be raised as to the propriety of the award.   That petitioners elected to utilize the more expeditious, simplified and less expensive procedure of habeas corpus to vindicate their rights, should not affect the availability of a fee award.”  (In re Head, supra, 42 Cal.3d at p. 226, 228 Cal.Rptr. 184, 721 P.2d 65.)

The court noted attorney's fees are often awarded in mandate proceedings brought by criminal defendants.  (See, e.g., Olney v. Municipal Court (1982) 133 Cal.App.3d 455, 184 Cal.Rptr. 78 [to prevent sentencing of misdemeanor defendants in absentia];  Daniels v. McKinney (1983) 146 Cal.App.3d 42, 193 Cal.Rptr. 842 [to vindicate right of prison inmates to exercise].)  In conclusion, the court stated:  “How the party achieves the goal of enforcing the right is not determinative of the right to an award of attorney fees under section 1021.5.   The impact of the litigation is.”  (In re Head, supra, 42 Cal.3d at pp. 228–229, 228 Cal.Rptr. 184, 721 P.2d 65.)

In this case respondents could have brought a separate civil action for declaratory or injunctive relief.   They instead took the less expensive, more expeditious route of availing themselves of remedies within the original proceeding.   Whether this writ proceeding may be characterized as civil or criminal is not significant.   Instead it should be recognized for what it is:  an original, extraordinary proceeding brought to assert their constitutionally guaranteed civil rights.

In sum, we believe permitting an award of fees for the vindication of constitutional rights in writ proceedings arising from an attempted criminal prosecution is consistent with Congress' intent to authorize such awards to a prevailing party in “any proceeding” which successfully enforces those rights.


The award of attorney fees and costs is affirmed.   Respondents to recover their costs of appeal.


1.   42 United States Code section 1983, the relevant civil rights statute, provides in pertinent part:“Every person who, under color of any statute, ordinance, regulation, custom or usage, of any state ․ subjects, or causes to be subjected, any citizen of the United States ․ to the deprivation of any rights, privileges or immunities secured by the Constitution ․ shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress․”42 United States Code section 1988, the Civil Rights Attorney's Fees Awards Act, provides in pertinent part:“In any action or proceeding to enforce a provision of § [ ] (1983), the Court, in its discretion, may allow the prevailing party ․ a reasonable attorney's fee․”All further statutory references are to Title 42 of the United States Code unless otherwise indicated.

2.   Based on the Supreme Court's conclusion, we reject the City's contention no court found respondents' constitutional rights had been violated.Also, based on the plain and unambiguous language used in the petition, we reject the City's contention it had inadequate notice the writ was sought pursuant to section 1983 and that it could, therefore, be liable for fees under section 1988.  (See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit (1993) 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 [there is no heightened pleading standard in civil rights actions].)

3.   The City suggests other bases for immunity from an award of attorney's fees.   These contentions, however, have no merit.   The Eleventh Amendment provides no immunity for an action brought in state court, especially where the liability of a municipality, and not a state, is at issue.   Secondly, as the City concedes, state common law and statutory immunities do not pertain to a civil rights action brought under federal law.  (See, e.g., Gov.Code, § 821.6;  Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 246 Cal.Rptr. 609.)

4.   Because the present proceedings requested only prospective relief from the unconstitutional prosecution, we reject the City's argument respondents are not entitled to fees because they did not plead and prove damages and did not request findings of fact or conclusions of law regarding the City's history, custom and policy regarding its decision to construe its ordinance to be violated upon a single exhibition of an adult motion picture.   In these proceedings, where the relief sought was to restrain the illegal criminal prosecution pursuant to section 1983, it was only necessary to demonstrate the City's prosecutor, under color of state authority, consciously decided to prosecute respondents based on a single showing of an adult movie and that the City's standard was constitutionally impermissible.  (Gomez v. Toledo (1980) 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572.)Any argument respondents failed to prove these elements, or that the City had not adopted as its policy the “single use” standard, would be disingenuous at best.   As Justice Kennard noted in her concurring and dissenting opinion in People v. Superior Court (Lucero), supra, 49 Cal.3d at p. 35, 259 Cal.Rptr. 740, 774 P.2d 769, “During oral argument in this case, counsel for the city was asked several times whether, in the event the court disagreed with his ‘single use’ contention, he was urging the court to interpret the ordinance as embodying some form of intermediate standard between a ‘single use’ standard and Pringle's ‘preponderance’ standard.   Counsel responded he was going ‘for broke’, and he did in fact argue only for a ‘single use’ standard.”

5.   When the city prosecutor's office prosecutes misdemeanors committed within its jurisdictional territory, by statute it must do so in the name of the People of the State of California.  (Gov.Code, §§ 36900, subd. (a), 41803.5.)

6.   The City does not specifically allege special circumstances render the award of fees unjust.   However, the City inferentially suggests an award would be unjust because its actions were in good faith and brought about a change in the law.   Neither circumstance qualifies as a “special circumstance” prohibiting an award of fees.These same arguments were presented and rejected in Wilson v. Stocker (10th Cir.1987) 819 F.2d 943.  “We there pointed out that ‘[f]ee awards against enforcement officials are run-of-the-mill occurrences, even though, on occasion, had a state legislature acted or reacted in a different or more timely manner, there would have been no need for a lawsuit or for an injunction.’  [Citations.]   Here, ․ the alleged special circumstances amount to no more than assertions that the Attorney General has acted in good faith, a ground overwhelmingly rejected by the courts.  [Citations.]   Allowing the circumstances offered by the Attorney General here to justify denial of attorney's fees would conflict with controlling case law and defeat the purpose of section 1988, which is not designed to penalize defendants but to encourage injured individuals to seek relief.  [Citation.]  ․“The District Attorney's assertion that fees are unjust because her participation in the litigation helped develop the law and the facts is also unpersuasive.   A party to litigation almost always aids in such development.   Accepting this assertion as a special circumstance would render a fee award unjust in virtually every case, a result undeniably contrary to the congressional intent that fee awards be ‘an integral part of the remedies necessary’ to obtain compliance with the civil rights laws.   See S.Rep. No. 1011, 1976 U.S.Code Cong. & Admin.News at 5913.”  (Wilson v. Stocker, supra, 819 F.2d at pp. 951–952.)

JOHNSON, Associate Justice.

LILLIE, P.J., and FRED WOODS, J., concur.

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Docket No: No. B050440.

Decided: May 07, 1993

Court: Court of Appeal, Second District, Division 7, California.

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