Judge denies request for city to pay legal fees

Laguna Beach does not have to pay $1.9 million to attorneys for three men who sought to project anti-abortion messages around the city, a federal court has ruled.

U.S. District Court Judge Cormac Carney denied a motion from Steve Klein, Howard Putnam and Glen Biondi that claimed the city owed them attorney fees, according to a Nov. 19 opinion issued in Santa Ana.

The three men filed a complaint and applied for a temporary restraining order in December 2008 after the city denied their request for a permit to use amplified sound outside of Laguna Beach High School.

Klein wanted to use a bullhorn on sidewalks near the Park Avenue school to communicate religious and anti-abortion messages to students after the final bell, according to Carney's opinion.

After the court denied Klein's application for a temporary restraining order, he filed a complaint alleging the city's sound ordinance prohibited him from communicating his message in three locations at specific times — the sidewalks adjacent to the school and City Hall and the downtown commercial district.

The city amended its amplified-sound ordinance in June 2009 and October 2010, the opinion said. The latter amendment lessened restrictions on certain sounds, provided that they don't cause a disturbance.

The city's current ordinance permits music and human speech.

However, "Sound shall not be emitted near hospitals, churches, schools, courthouses and City Hall in a manner that unreasonably disrupts, obstructs, impairs or interferes with the normal use and operation of such facilities for their intended purposes," according to the ordinance.

Klein then sought nominal damages because the ordinance prior to 2010 deprived him of his right to free speech, the opinion said.

The city's noise ordinance before 2010 banned the use of amplified sound equipment within 100 yards of schools, hospitals, churches, courthouses and City Hall when the facilities are in use, and for 30 minutes before and after use.

The district court granted Klein's motion in part, and the city's cross motion in another part, ruling that the city's repealed ordinance (before 2010) would apply if Klein used amplified speech in front of the high school and City Hall, but not in the downtown business district, according to Carney's opinion.

The court dismissed Klein's remaining claims for relief under the California and federal constitutions as moot because the city had repealed the contested ordinance provisions, the opinion said.

On appeal, the U.S. 9th Circuit Court of Appeals affirmed in part and reversed one aspect of the district court's ruling. A judge said the district court erred in granting summary judgment to the city on Klein's challenge as applied to his proposed amplified speech at City Hall.

Summary judgment takes the place of a trial and occurs when the parties agree to all material facts and only issues of law are disputed, Laguna Beach City Attorney Phil Kohn said.

The district court revised its prior judgment and awarded Klein $3 in nominal damages — $1 each for Klein, Putnam and Biondi — for claims that the city's repealed permit scheme violated the 1st Amendment as applied to his case, and that the city's repealed amplified sound ordinance violated the 1st Amendment as applied to his proposed amplified speech at City Hall and downtown.

Klein, Putnam and Biondi never set foot in Laguna Beach, according to Kohn.

Carney based his opinion on three factors a court should consider, which he culled from comments by retired U.S. Supreme Court justice Sandra Day O'Connor.

The factors include the extent of the plaintiff's recovery, the significance of the legal issue on which the plaintiff claims to have prevailed, and whether the success accomplished some public goal.

"The court finds that the third factor — whether the success accomplished some public goal — weighs strongly against an award of attorneys' fees," Carney wrote. "Mr. Klein has failed to show that his award of nominal damages accomplished the necessary 'something more' beyond 'the moral satisfaction' of knowing that a federal court concluded that [his] rights had been violated.

"Thus, although Mr. Klein's decision to not pursue in court what he cannot prove is laudable, his failure to recover some significant amount of damages or other meaningful relief counsels against an award of fees."

Klein failed to prove actual injury and thus was awarded only nominal damages, Carney's opinion said.

Klein's defense attorney, Mykolas Kumeta, did not return phone calls seeking comment.

Carney's opinion didn't specify where Klein, Putnam or Biondi live.

"It's a tremendous relief to the city not to be faced with [paying the attorney fees]," Kohn said, noting the possibility of an appeal. "I can't say it's all over, but it's certainly a major step in [the city's favor]."

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