Filed 12/19/19

                           CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

 DELBERT A. BEAMES,
                                                                 F075855
         Plaintiff and Appellant,
                                                       (Super. Ct. No. VCU-267649)
                 v.
                                                               OPINION
 CITY OF VISALIA,

         Defendant and Respondent.



        APPEAL from a judgment of the Superior Court of Tulare County. David C.
Mathias, Judge.
        McCormick, Kabot, Jenner & Lew, Nancy A. Jenner, for Plaintiff and Appellant.
        Herr Pedersen & Berglund, Leonard C. Herr, Ron Statler, for Defendant and
Respondent.
                                        -ooOoo-
         Plaintiff Delbert Beames obtained writ relief after a City of Visalia hearing officer
ruled against him in a zoning dispute concerning a commercial property. His motion for
attorney’s fees under the Civil Rights Act of 1976 (42 U.S.C. § 1988 (section 1988)) was
denied.
         Beames argues that the denial of the fee motion was an abuse of discretion. We
agree.
         Beames’s writ petition sought relief on the basis of procedural violations of the
city’s municipal code committed by the hearing officer at the hearing. But the petition
also made a claim under the Civil Rights Act of 1871 (42 U.S.C. § 1983 (section 1983)),
founded on the contention that the hearing officer’s errors denied Beames due process of
law under the 14th Amendment. Section 1988 authorizes an award of attorney’s fees to a
plaintiff prevailing in a proceeding to enforce section 1983.
         The record is somewhat ambiguous about whether the trial court’s decision to
grant relief rested in any part on the section 1983 due process claim. Even if it did not,
however, that claim was (a) not insubstantial; and (b) based on the same nucleus of
operative facts as the municipal code violation claim.
         Beames also requested an attorney’s fee award under Code of Civil Procedure
section 1021.5. This is California’s “private attorney general” fee statute, which
authorizes a fee award where the action “resulted in the enforcement of an important right
affecting the public interest” and conferred a significant benefit on the public; the need
for and burden of private enforcement make the award appropriate; and it would not be in
the interest of justice for fees to be paid out of a damages recovery. Under the relevant
case law these factors mean Beames should have received a fee award under section
1988.




                                               2
       Beames expressly abandons this claim on appeal, and we do not rule on it. As a
result, we have no remark to make on whether the specific requirements of Code of Civil
Procedure section 1021.5 are established by the record.
       Long before the City of Visalia (city) began enforcement actions against Beames,
it had begun the process of developing and enacting a comprehensive overhaul of its
zoning ordinance. The possibility of including provisions in the overhaul to resolve the
dispute with Beames, and at the same time solve a more general zoning problem affecting
other businesses in the neighborhood, had been discussed among city staff before the
hearing, and Beames himself had discussed it with city staff. It was because city staff did
not disclose this link with the zoning overhaul to the hearing officer at the administrative
hearing, and Beames’s own references to it were disregarded or not understood—
combined with the hearing officer’s fundamental misunderstanding of his role—that the
hearing officer believed erroneously that he had no choice but to uphold the city’s order
directing Beames to remove his tenant’s business from his property forthwith, and
impose the maximum penalty of $500 per day until this should be done. The hearing
officer never heard of the possibility that Beames’s use of the property could soon be
legalized by the city’s own action; and in any case, he was ignorant of his discretion to
consider that or other information as a basis for continuing the hearing, modifying or
vacating the enforcement order, or reducing or omitting the penalties. He thought that if
the violation was undisputed, he was required to uphold the order to shut down the
business immediately and impose the maximum daily penalty as requested by the city.
       These errors on the part of the city and its hearing officer forced Beames to file his
writ petition, and led to the city compounding the negative effects of this unnecessary
litigation.
       After the hearing officer ruled against Beames, but before Beames filed his writ
petition, the city’s planning staff had placed before the planning commission a



                                             3
recommendation to consider including in the zoning overhaul a provision affecting
Beames’s property favorably to him and neighboring businesses similarly situated. After
Beames filed his writ petition, but before the hearing on the merits, city staff had placed
approval of the overhaul on the city counsel’s agenda, including a provision that would
convert the use on Beames’s property into a conforming use. Beames filed a motion to
stay the daily penalties that had by then reached $45,000. The legislative process moved
along, but outside counsel for the city opposed this motion, insisting that the business
must be removed from the property immediately or the penalties must continue
accumulating. By the time of the merits hearing in the superior court, the city’s counsel
acknowledged that final approval of the zoning overhaul, including the provision that
would legalize Beames’s land use, was imminent, Beames would no longer be in
violation, and the business would not have to be evicted. Further, the city’s counsel
admitted in open court that the daily penalties that had been requested by the city,
approved by the hearing officer, and defended in litigation, had never been warranted,
and promised that the city would waive them all. But in spite of all this, the city never
proposed any kind of compromise, pause or stay of the litigation to minimize costs in the
case even after its disclosures and admissions at the merits hearing virtually ended its
case.
        We reverse and remand for a determination of a reasonable fee.
                        FACTS AND PROCEDURAL HISTORY
Background Facts
        In 2016, the city was in the midst of a lengthy process of revising its zoning and
subdivision ordinances. According to a memorandum to the city’s planning commission
authored by its principal planner, Paul Bernal, the city adopted a new general plan in
October 2014. The city needed to update the zoning and subdivision ordinances
comprehensively to conform to the new general plan. In 2015, the city selected a



                                              4
consulting firm, Quad Knopf, to lead the updating process. The consultant, planning
commission, and planning staff held a “Kick-Off” meeting on October 12, 2015, and six
work session meetings were held from February 8, 2016, to July 25, 2016. Draft
ordinances and maps were prepared and public outreach was conducted.
       Beames purchased the property at 920 North Ben Maddox Way in Visalia in 2010.
The property had a metal building on it that was about 50 years old. It had been used by
a towing service from 2003 to 2005. From the time Beames bought the property until
2016, it was leased to a neighboring auto body and paint shop, which used it as a place to
which it could tow cars. In January 2016, Beames leased the property to West Coast
Towing.
       Beames’s use of the property was similar or related to other uses on the same
block. These included a full service auto repair shop, an auto body and paint shop, and a
business that performed sandblasting and powder coating services (i.e., stripping metal
and refinishing it with powder coat, a type of baked-on finish).
       The zone in which Beames’s property was located was Shopping Office
Commercial (C-SO in the city’s system of coding). It is undisputed that a towing service
is not a conforming use in this zone and that the property was in violation of the zoning
ordinance. The other businesses just described also were not allowed in the zone; no
enforcement action was taken against these, however. Beames believed the action taken
against him probably originated with a complaint from a competing towing service.
Administrative Proceedings Against Beames
       The city received a complaint or complaints about the zoning issue from someone
on February 8, 2016. Jesse Villegas, a code enforcement officer, inspected the property,
determined there was a violation, and mailed a notice of violation to Beames on February
10, 2016, ordering him to remove the towing business within 30 days.




                                             5
       On February 29, 2016, Beames went to the public counter at the city’s planning
division office and asked to speak to the planner in charge of the comprehensive zoning
update. Bernal, the principal planner, came out and spoke with him at the counter.
Beames wanted to know if the update might change the zoning on his property and solve
his problem. Bernal said he could not predict whether any of the changes made would
affect Beames’s property in that way or at all, and encouraged Beames to attend future
work session meetings. He also told Beames about a process called site plan review,
which Beames could use before applying for a zoning change on his own. Through this
process, planning staff could provide guidance and tell Beames whether the planning
division would support an application for a zoning change. Bernal also told Beames
about the next step, actually applying for a change in the zoning, called the zone text
amendment process. Beames told Bernal he would apply for site plan review. Beames
asked whether a pause in the enforcement process would be possible for six months while
he attempted to organize support for a zoning change among the other property owners in
the vicinity, a change of zone for a single parcel not being a lawful option. Bernal did not
say such an arrangement was possible. Beames never made any application for a site
review or a zoning change.
       On June 8, 2016, Villegas returned to the property and ascertained that the
nonconforming use was still present. The city issued an administrative enforcement
order to Beames the next day. It stated that the use of the property violated the zoning
ordinance and Beames was required to remove that use. It further stated that he then
owed $2,929.23, consisting of $2,800 in administrative penalty fees and $129.23 for staff
time. The order was to become final unless Beames requested an administrative appeal
hearing within 10 days, after which the city would abate the violation and charge Beames
the cost, impose additional penalties, or both.




                                              6
       Beames requested an appeal hearing. The hearing was set for July 27, 2016, and
then rescheduled at his request for August 24, 2016.
       In July 2016, Beames had another meeting at the planning division, this time with
Bernal and his supervisor, Josh McDonnell. McDonnell told Beames his only options
were to remove the nonconforming use or to apply for a site plan review and then for a
zoning change. Beames said he could not get the neighboring owners together before the
scheduled August hearing. As Beames recalled, McDonnell suggested that Beames seek
to have the hearing delayed. McDonnell did not recall making such a suggestion, and
Bernal did not remember the question of a delay in enforcement being discussed at all at
this meeting.
       The hearing officer at the administrative appeal hearing on August 24, 2016, was
Kevin Tromborg. Also in attendance were Beames and four city employees: Villegas,
Bernal, McDonnell, and Neighborhood Preservation Manager Tracy Robertshaw.
Beames was not represented by counsel. A form filled out by or on behalf of the hearing
officer indicated that an assistant city attorney was present, but the transcript does not
show that he spoke.
       Villegas recited the facts that he had inspected the property, issued a notice of
violation, reinspected it, found the nonconforming use was still present, and issued the
administrative enforcement order. Robertshaw asserted that if the enforcement order
were upheld, new fines would begin to accrue at $500 per day beginning the day after the
hearing. Bernal and McDonnell described the meetings they had with Beames the
previous February and July, agreeing that they had never said or suggested Beames could
have extra time to comply. Bernal mentioned that Beames had asked whether the
comprehensive zoning update would affect his property, but “the [city council] did not




                                              7
authorize the redesignation of his property along the Ben Maddox corridor.”1 In response
to a question from Tromborg, McDonnell stated that the only options for Beames were to
remove the nonconforming use, obtain a change of zone for the area, or obtain a change
in the definition of the existing zone to allow the use.
       Beames said he wanted to delay the hearing for six months. He said he had
spoken with Quad Knopf, the consulting firm the city had used for the comprehensive
zoning update, and wanted the extra time “so they can come up with a plan.” McDonnell
averred that if Beames had applied for a rezoning as an individual, “that would certainly
constitute grounds for [him] potentially continuing this hearing because there would be a
discretionary and legislative action that is under consideration by the city,” but no
application had been received from him.
       Despite the several references made to the zoning overhaul, the consulting firm
working on it, and the prior discussions about whether it could help, no one actually
explained the nature of the overhaul to the hearing officer. No one described its possible
bearing on the future status of Beames’s property, or the city’s intentions regarding the
future of the neighborhood; and the hearing officer did not ask. Instead, as just
mentioned, Bernal simply said in connection with the overhaul that the city council “did
not authorize the redesignation” of property in the Ben Maddox corridor—a remark that
was literally true but misleading, since the planning division—including Bernal
himself—was still working on the update at the time of the hearing and it would not be
finally presented to the city council for approval for several more months.


1       The administrative record includes a letter written by Bernal describing his
meeting with Beames in February 2016. The letter describes Beames’s inquiry about
whether the comprehensive zoning update might cure his zoning problem and Bernal’s
answer that he could not “predict” whether that would happen. Bernal referred to the
letter in his testimony at the hearing, pointing out that it was part of the record before the
hearing officer.


                                              8
       Tromborg told Beames the matter was “pretty straightforward.” Rejecting any
kind of delay, Tromborg elicited McDonnell’s assent to the proposition that, other than
Beames applying for and obtaining a rezoning on his own, there was not “any other
option here, as far as moving forward for him to try to keep his [tenant’s] business.”
“Those are the two options,” McDonnell asserted. “I did not offer a six-month stay,” he
continued, implying that absent such an offer by him, no lawful course of action was
possible but the two just mentioned. Once again, he did not mention the idea that the
comprehensive update was still under consideration or that it could potentially regularize
the whole collection of nonconforming automotive land uses in the neighborhood and
render Beames’s individual case moot.
       The hearing officer and McDonnell thus agreed that, no rezoning having been
obtained by the property owner, nothing could be done to prevent a random one among
many similar and complementary businesses, chosen by an unknown complainant, from
being snuffed out forthwith, and onerous daily penalties heaped on its landlord, because
of zoning that would have eliminated multiple businesses in the neighborhood if enforced
uniformly.2
       Tromborg went on to explain his view that his “job here as a hearing officer” was
limited to “mak[ing] sure that the City of Visalia has followed all of their processes and


2      Conceivably, Beames’s property differed from the surrounding properties in some
relevant way. For instance, it could be that the other nonconforming uses in the area
were allowed because they existed continuously from before a prior zoning change that
caused them to be nonconforming until the present, while Beames’s property was
devoted to the nonconforming use only after the prior zoning change; or it was
nonconforming before but there was a gap afterward during which it was not
nonconforming. But there is no indication in the record that any such factors were
involved. The code enforcement officer’s report did not indicate that any investigation of
the history of the property’s uses or zoning was involved. The officer simply went and
looked at the property, saw what it was being used for in the present, and concluded that
the use was inconsistent with the present zoning.


                                             9
procedures and all their rules and regulations.” He found that “they have followed all of
their rules and regulations,” suggesting that from this conclusion, a ruling affirming the
city’s code enforcement order followed inevitably. He stated, further, that “as hearing
officer, I don’t have the authority to—to remove the fees or the fines. The only thing I
can do is justify them.” He then found, “As far as I can tell today, their fees and their
fines and the administrative costs are justified.”
       As it happens, the hearing officer’s conception of his function was far removed
from the role set out for him in the city’s municipal code, which called for him to
examine the matter from several sides and exercise judgment.
       First, there was nothing to prevent him from considering whether a continuance
might prove fruitful, and acting in accordance with his considered judgment on that point.
Section 1.13.090(D)(3) of the Visalia Municipal Code expressly allows this: “The
hearing officer may, upon request of the responsible party against whom a penalty is to
be imposed, or upon request of the city, grant continuances from time to time for good
cause shown, or upon his/her own motion.” The municipal code also confers broad
discretion on the hearing officer in his or her determination of whether and to what extent
to uphold an administrative enforcement order. Visalia Municipal Code section
1.13.100(A) reads as follows:
       “Factors in Hearing Officer’s Decision. The hearing officer may affirm the
       administrative enforcement order imposed by the city, reduce the penalty,
       amend the abatement order, or find that the imposition of the penalty or
       abatement order is not warranted or is not in the interest of justice and
       vacate the order. In making his/her decision regarding the administrative
       enforcement order, the hearing officer shall consider evidence presented by
       all witnesses, the seriousness of the violation, the responsible party’s efforts
       to correct the violation, the injury or damage, if any, suffered by any
       member of the public, any instances in which the responsible party has
       been in violation of the same or similar code provisions in the previous
       three years, and the amount of city staff time which was expended
       investigating and addressing the violation.”




                                              10
       Was there good cause for a continuance? In light of the long-standing use and its
similarity to other uses in the immediate vicinity, would it have been in the interest of
justice to reduce or eliminate the penalty, amend the abatement order, or vacate the
administrative enforcement order in its entirety? Was it a serious violation to continue
using the property as an automotive-related business after doing so unimpeded for years
in an area full of automotive-related businesses? Were Beames’s efforts to adjust his
dispute with the planning department in person worthy of some consideration, although
ineffectual? There is no evidence that any member of the public suffered injury or
damage, that Beames was a recidivist violator, or that the $129.23 charge for staff time
represented a major effort. The hearing officer’s remarks indicate he was unaware that
he had any responsibility for considering any of these matters or any authority to act on
the basis of them.
       The hearing officer ruled in favor of the city, upholding the enforcement order and
approving the imposition of penalties of $2,8003 plus $500 a day, commencing the next
day and continuing until the improper use was removed. He stated that Beames could
stop the accrual of fees by submitting an application for “a zone text change or a general
plan update or whatever the City’s policy is” the next day. “My ruling is in favor of the
City in this [instance] and I find … the fees issued by Code Enforcement to be justified,”
he concluded. “Case is closed.”
       The decision was memorialized on a city form that had no space for findings of
fact, even though Visalia Municipal Code section 1.13.100(B) required the hearing
officer to set forth “the findings of fact supporting the determination” in writing. Instead,
under the heading “Hearing Officer’s Findings,” printed on the form, the hearing officer
checked a box labeled, “Guilty of violations,” and wrote in citations of the sections of the

3      A bill sent to Beames on August 15, 2016, showed that the staff costs of $129.23,
plus the appeal fee of $100, had already been paid.


                                             11
zoning ordinance Beames was determined to have violated.4 The order was dated August
24, 2016.
Beames’s Participation in Public Hearing and City Staff Response
       The planning commission held an initial public hearing about the comprehensive
zoning update on October 10, 2016. Beames and three other owners of property on Ben
Maddox Way between Houston Avenue and Center Street spoke at the meeting. They
proposed that the area be rezoned. The new zone could be Service Commercial (C-S),
which would allow those owners’ uses without a conditional use permit. Alternatively, it
could be Mixed Use Commercial (C-MU), and the list of uses allowable with a
conditional use permit in that zone could be amended to include the owners’ uses. Mixed
Use Commercial (without the amendment of the list of conditional uses) was already the
new zone the planning staff had been recommending for the neighborhood.

4      The form is singularly unsuited to its purpose. It gives the hearing officer the
choice of finding the property owner “guilty” or “not guilty.” It refers to the property
owner in several places as “violator,” even on the line where the property owner is asked
to place his or her signature. And under the heading “Hearing Officer’s Findings,” there
are only the “guilty” and “not guilty” boxes, and spaces into which to write the code
sections the owner was accused of violating. The form thus prejudges the individual
exercising his or her right to contest governmental action by labeling him or her a
“violator” in advance; it then tars the “violator” by describing him or her as “guilty” or
not, even though the matter may involve only an alleged civil wrong, not a crime; and, by
providing no room for findings of fact in the section labeled “Findings,” it encourages the
hearing officer to disregard the code’s requirement that he or she make findings in
writing stating the facts on the basis of which he or she exercised his or her discretion.
        The first two of these peculiarities could conceivably bias the hearing officer—
who need have no legal training—by applying denunciatory terms to the property owner
at the outset. The third makes it easy to find the property owner is “guilty” and a
“violator”—easier than the municipal code intends—by freeing the hearing officer of the
necessity of writing anything to support the result, which in turn frees him or her from the
necessity of studying the factors the code says are relevant. We do not mean to suggest
these deficiencies by themselves could justify relief from a hearing officer’s order, but
there is no reason why the city should court future problems by continuing to use this
form.


                                            12
       Staff analyses and recommendations concerning public input such as this were
prepared by Bernal and presented at a planning commission meeting on November 14,
2016. In these written remarks, Bernal explained that the existing zone for Ben Maddox
Way, Shopping/Office Commercial, had been in place for more than 20 years, but would
not be used at all in the comprehensively updated zoning ordinance. Like the Mixed Use
Commercial zone, the Shopping/Office Commercial zone did not allow “tow yards,
powder coating services, or other similar heavy commercial uses.” Consequently, “not
allowing them now would be a continuance of existing policy.”
       Further, according to Bernal, the Mixed Use Commercial zone would be
compatible with a general plan goal that “envisions the Ben Maddox Way corridor as a
‘revitalization’ area ‘with offices, commercial uses, multi-family residential, and mixed
use developments.’” But altering the definition of the Mixed Use Commercial zone to
allow uses like Beames’s with a conditional use permit would have the undesirable effect
of making those uses allowable with a conditional use permit everywhere that zone is in
place. Rezoning the area as Service Commercial was a poor alternative, as it would
exclude “uses such as general retail uses, grocery stores, pharmacies, and specialty food
stores, and would require that offices over 2,000 square feet obtain a conditional use
permit.” That would be incompatible with the general plan.
       Bernal’s remarks included mention of the fact that the existing towing business on
Beames’s property “was opened in violation of existing zoning” and the city was then
endeavoring to enforce existing zoning there. But he did not point out that this use was
typical in the area despite the zoning, or that the rezoning originally recommended as part
of the comprehensive update could leave other similar businesses exposed to extinction.
Ordinarily, established businesses that would no longer be allowed under a new zone are
“grandfathered” by the normal rule that continuing nonconforming uses are lawful after a




                                            13
zoning change. (See Visalia Mun. Code, § 17.40.0605; Hansen Brothers Enterprises,
Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 551-552.) But the towing business
on Beames’s property evidently was not regarded as a continuing nonconforming use
from the prior rezoning 20 or more years ago, and the nearby businesses might not have
been so regarded either. Bernal’s analysis, and especially his remark about continuing
existing policy, thus did not take account of the atypical way in which the
neighborhood’s reliance interests would be left unprotected after the proposed rezoning.
His readers were left to infer that Beames and his neighbors were not responsible
businesspeople attempting to preserve an industry that had been doing business in the
neighborhood for years, but scofflaws looking for a loophole.
       Bernal did, however, attribute weight to one argument made by Beames and his
neighbors. “They pointed out that there are several existing older buildings along the
corridor and if the zoning provided the certainty that these heavy commercial uses would
be allowed, then there would be a greater likelihood that investments would be made to
upgrade these aging sites.” He “acknowledged” this point and agreed that amending the
list of conditional uses in the Mixed Use Commercial zone to cover these types of
businesses could “help increase the number of possible uses that these buildings could be
used for.” His ultimate conclusion was: “If the [planning commission] desires to
increase the number of possible uses for older buildings on the Ben Maddox Way
corridor, then Staff would recommend that ‘Auto Repairs, Major’ be added to the list of
uses allowed with a conditional use permit (CUP) in the C-MU zone. This would
preserve a possible viable use for the older metal buildings and the CUP could require
site upgrades where they are needed.”



5       The Visalia Municipal Code is published online at
https://www.amlegal.com/codes/client/visalia_ca/ [as of December 16, 2019].


                                            14
Merits Litigation and City Legislative Action
       According to a declaration submitted by Beames and his attorney with his fee
motion, Beames was not represented by counsel until after the administrative appeal
hearing. He consulted with several local attorneys, none of whom wanted to take the
case. Finally, a few days after the November 14, 2016 planning commission meeting
discussed above, he was put in touch with his current counsel, who filed his writ petition
in the superior court on November 22, 2016.
       The petition alleged that the city’s actions violated the municipal code, and also
violated section 1983 by denying Beames due process of law. The facts alleged in
support of these claims were:
       ▪      The city chose arbitrarily to take enforcement action against Beames but
              none of the similarly situated property owners in the immediate vicinity.

       ▪      The code enforcement officials, the planning division, and the hearing
              officer proceeded against Beames in spite of his requests for delays and
              continuances, never taking account of the likelihood that the planning
              commission and the city council would soon legalize Beames’s use of the
              property.

       ▪      The hearing officer denied Beames’s request for a continuance when there
              was no reasonable basis for denying it, and without stating any reasons for
              denying it.

       ▪      The hearing officer made no findings of fact.

       ▪      The hearing officer ruled against Beames without considering any of the
              factors specified in the municipal code.

       ▪      No substantial evidence was presented that would have supported the ruling
              even if the hearing officer had considered the relevant factors and made
              findings of fact.

       ▪      The hearing officer also was biased because, being an employee of the City
              of Corcoran, he volunteered as a hearing officer for Visalia while Visalia in
              return provided a hearing officer for Corcoran, and had an incentive to rule
              for the city to encourage it to continue appointing him. (Cf. Haas v. County
              of San Bernardino (2002) 27 Cal.4th 1017, 1024-1025 [due process



                                            15
              violation where city’s arrangement of appointing and paying hearing
              officers on case-by-case basis, with reappointment depending solely on
              city’s goodwill, created risk of bias favoring city].)

       ▪      The hearing officer was biased in favor of the city because he worked as a
              code enforcement officer in Corcoran.

       Beames soon followed up on the writ petition, filing on December 2, 2016, a
motion to stay the operation of the hearing officer’s order. The motion sought a stay
pursuant to Code of Civil Procedure section 1094.5, subdivision (g), so that Beames
would not be forced to choose between evicting his tenant and accumulating additional
penalties at the rate of $500 per day while the litigation was pending. It contended that
there was good cause for a stay because it would “ensure that [Beames] is afforded due
process without incurring unnecessary penalties by simply seeking redress in” court.
       The city’s responses to the petition and motion to stay penalties were entrusted to
its outside litigation counsel. In light of the circumstances we have described, it can
fairly be asked whether, in thus passing the matter on, the city considered whether the
litigation should be delayed or settled, in light of the city’s impending need to make a
decision on how to treat the neighborhood in the comprehensive zoning update, and in
light of the recommendation planning staff had just made on that point at the November
14, 2016 planning commission meeting. And did counsel pause to consider how a delay
or settlement might serve his client’s interests? Did he believe those interests would be
served by pursuing litigation sure to be costly to the city and its resident, even though the
litigation might soon be rendered moot by the city’s own pending legislative action?
Under those circumstances, would it be in the city’s interest to try to enforce penalties
that could have reached $100,000 or more by the time the litigation had run its course—
even though the city might be on the verge of resolving in Beames’s favor the ultimate
issue of whether his use of his property could continue? The record naturally does not




                                             16
answer these questions; but what is clear is that the choice was made to contest the matter
vigorously.
       The city filed opposition to the motion for a stay on December 9, 2016. It claimed
that a granting of the stay would be tantamount to abandoning the whole enterprise of
land use regulation as a legitimate governmental activity. Further, the city claimed it
would not be in the public interest within the meaning of Code of Civil Procedure section
1094.5, subdivision (g), because Beames had “knowingly violated the zoning laws for a
long time,” and wanted “permission to ignore the law, with absolutely no showing to
justify” it. Disregarding the facts that it had long tolerated a collection of complementary
auto-related businesses in the neighborhood despite the contrary zoning, had initiated
enforcement action against only one owner only because unidentified persons had
complained, and was at that moment considering regularizing the presence of all the
businesses, the city attributed the existence of the nonconforming towing business on
Beames’s property to his “flagrant disregard for the public’s interest in the regulation of
land use.” By seeking a stay that would stop the accumulation of penalties beyond
$45,000 and delay the eviction of the business while the litigation was pending, Beames
“ask[ed] this Court to remove him from the City’s authority to govern and administer its
laws.” Beames’s request for this temporary relief “undermine[d] the very notion that
states can validly exercise their zoning authority through local governmental entities.”
“Why,” the city rhetorically asked, “would any landowner bother paying attention to
zoning rules if a violator can buy several months of consequence-free violations by
renaming himself a ‘petitioner’?” What Beames was really asking the court to do was
“arbitrarily cap the cost of violation down so he can continue the violation without those
pesky, increasing costs of his intentional, daily recidivism.” If relief were granted, the
floodgates would open and all future violators would be able to “buy themselves some
time on the cheap” by moving for “a stay of enforcement on no showing.” The motion



                                             17
was “little more than a request that [the court] countenance ongoing and knowing
violations of the law.”
       The court granted the stay on December 15, 2016. It observed that Beames had
not yet proffered any evidence that would substantiate the claims in his writ petition, but
determined that the public interest was not exposed to any of the dangers the city’s
opposition had described so colorfully. And the fact that the city was content to leave the
nonconforming use alone for years pointed to a lack of urgency with which the potential
hardship on the property owner was incommensurate:
               “Under the circumstances presented, the court cannot find granting a
       stay in this matter would disturb the public interest. It appear[s] that [the
       city] has delayed some six years before investigating the use of the subject
       property and initiating its enforcement proceedings. Further delay for the
       month(s) needed to litigate this petition would not appear to adversely
       impact the public confidence in [the city’s] zoning ordinance. The amount
       of the daily fine could result in significant financial hardship to [Beames]
       while he pursues his allowable … remedies.”
       Beames filed a motion for issuance of the writ on January 13, 2017. In a
declaration supporting the motion, Beames made the point that the city’s zoning update
was underway. He declared that the process had begun in early 2016; that he had
appeared before the planning commission with neighboring owners to support changing
the area’s zone to Service Commercial; and that the matter would next be considered at a
public meeting on January 17, 2017. Beames stated that he had never applied for a
rezoning as an individual because of this ongoing process.
       The record contains the agenda for the city council meeting held on January 17,
2017. It included a public hearing on the introduction of Ordinance No. 2017-01, which
was the comprehensive zoning update. As counsel for the city acknowledged at the
merits hearing later, this proposed legislation, being offered up by the planning
commission for enactment by the city council, included a provision that would, by itself,
make Beames’s use of his property lawful. (This, presumably, was because the final text



                                            18
of the legislation rezoned Beames’s area as Service Commercial, as he and his neighbors
had requested, as it would authorize their uses without a conditional use permit.)
       Nevertheless, the city carried on with the litigation by filing on January 20, 2017,
its opposition to Beames’s motion for issuance of the writ. The city’s brief was premised
mainly on the propositions that it was undisputed that the use to which Beames’s property
was being put violated the zoning ordinance, and that all the considerations raised by
Beames were “minutiae” in light of this. The brief contained no acknowledgement of the
fact that the city was even then in the final stages of the long process of drafting and
approving legislation that, when passed, would allow Beames to continue the current use
of his property.
       At the next city council meeting, on February 6, 2017, the proposed zoning update
ordinance received its first reading, still containing the provision to save the businesses
on Ben Maddox Way. After the second reading, at the following city council meeting
one month later, the ordinance would be adopted absent unforeseen circumstances.
       At the hearing on the merits of Beames’s request for writ relief, on February 9,
2017, counsel for the city conceded for the first time that legislation allowing Beames’s
property use was pending and would soon become law. Further, according to counsel,
city staff realized long ago, while investigating the complaint against Beames, that the
whole neighborhood around Beames’s property had the same issue; at some point they
began developing a solution to be included in the zoning overhaul ordinance. Yet the
enforcement action against Beames continued up to and including the city’s defense
against Beames’s writ petition being heard at that moment; and this was because Beames
had never submitted an application for a zoning change as an individual.
       In response, the court asked whether there was any difference between unlawful
spot zoning and the spot enforcement that—by counsel’s own account of events (i.e., the




                                             19
city knew of neighboring improper uses but did nothing)—apparently had occurred in
this case. Counsel answered: “I don’t know.”
       Forced to confront these adverse realities, the city finally tempered its approach to
this litigation. Counsel now claimed that the city had really never “levied or set a fine of
$45,000,” and had no intention of ever trying to collect, now that Beames’s property use
was going to be legalized. Beyond this, he conceded that the $500 per day penalty—
which the city requested and obtained at the administrative hearing, defended zealously
in response to Beames’s motion for a stay, did not waive in its brief opposing Beames’s
motion to issue the writ, and never until that moment suggested it did not want—was
unwarranted and should never have been pursued in the first place. “[I]t’s appropriate to
say those [daily penalties] are not supported by the record.” “And I’ll just represent to
the Court that we stipulate that no 500-dollar a day penalty after the hearing should have
[been], could have [been], or was actually imposed.” “The only amount that has been put
on the books, so to speak, against Mr. Beames to date is [$]2,800,” counsel averred.
       So the city’s expectations at the time of the merits hearing were that Beames
would not have to evict his tenant because the property use was about to become
consistent with the zoning, and that no daily penalties could properly be upheld.
       Yet it did not stand down. The court asked counsel for the city whether his
concessions meant “much of this case” was moot. Counsel said “[n]o,” but did not
elaborate. The only part of the hearing officer’s order that remained after these
concessions, however, was the $2,800 in fines that had been imposed by code
enforcement staff previously. Still the city never conceded that any part of the hearing
officer’s order should be overturned. It certainly never said it was now just fighting for
$2,800.




                                             20
       The court took the matter under submission and urged the parties to try to reach a
settlement before he issued a ruling. No settlement was reached, for $2,800 or otherwise,
and the court issued a written ruling in favor of Beames on March 21, 2017.
       The ruling rested on two points. First, the court concluded that the hearing officer
had failed to understand and exercise the discretion the municipal code conferred on him
as reviewer of the city’s enforcement order. This amounted to an abuse of discretion in
the form of a failure to exercise discretion or the application of an incorrect legal
standard. (Code Civ. Proc., § 1094.5, subd. (b) [administrative tribunal abuses its
discretion where it has not proceeded in the manner required by law].)
       The hearing officer indicated he believed that since the violation was undisputed,
his mandatory duty was to affirm the city’s enforcement order in its entirety and impose
the full amount of penalties the city requested, and that no findings other than the finding
of a violation needed to be made. As we have said, this was far from correct, for the
municipal code expressly granted him broad discretion to affirm, modify, or vacate the
order, and reduce or eliminate the penalties, based on a set of factual determinations
involving certain enumerated factors in particular, and the interests of justice in general,
to be set forth by him in writing. The court stressed the hearing officer’s failure to
exercise his discretion specifically over modification or elimination of the penalties, but it
could just as well have pointed to his failure to exercise his discretion in the matter of
vacating the order or modifying it in other ways as well.
       Second, the court concluded that the city could not properly take the benefit of a
decision that might have been rendered, at least in part, because of its apparent failure to
disclose crucial information. City personnel at the administrative hearing were
personally involved in the comprehensive zoning update, had met personally with
Beames and become fully informed about his situation, and had fielded his questions
about whether the update could be used as a vehicle to regularize his property use and



                                              21
that of his neighbors, all before the administrative hearing. According to remarks by
counsel for the city at the merits hearing, city staff had become acquainted with the
neighborhood’s problem with nonconforming uses, and with the possibility of solving
that problem as part of the comprehensive zoning update, all the way back at the time of
the city’s investigation of Beames’s violation. The court wrote that it was not clear
when, exactly, the city put into motion the solution that was on the brink of being adopted
at the time of the merits hearing, but it found that the city “was at least contemplating a
self-initiated zoning change for the subject property at the time of” the administrative
hearing. But none of city’s witnesses mentioned any of this at the administrative hearing,
except to assert that when they spoke with Beames, they never agreed to any delay in
enforcement. Instead, Bernal misleadingly implied that the city had already decided
against any zoning change favorable to Beames, saying the city council “did not
authorize the redesignation of his property along the Ben Maddox corridor.” It was not
possible for the hearing officer properly to exercise the discretion conferred on him by
the municipal code as long as this information remained undisclosed to him by the city. 6
       The court summarized its conclusions and framed its order as follows:
              “Under the circumstances presented the court finds [Beames’s] due
       process rights were not adequately protected in this proceeding. The
       hearing officer did not recognize the extent of his authority to modify
       assessed penalties, there was no statement of findings in the hearing
       officer’s ruling from which this court could conclude the hearing officer
       considered factors applicable to the amount of the penalty assessment, and
       it appears [the city’s] witnesses did not provide the hearing officer with

6      This conclusion was not altogether consistent with the court’s additional
conclusion that the hearing officer correctly denied Beames’s request for a continuance.
Beames made it clear at the administrative hearing that he wanted a continuance so he
could work with the city’s consultants on the comprehensive zoning update in order to get
his neighborhood rezoned as part of the update. If the city was at fault for failing to
provide information on that topic, shouldn’t the administrative hearing have been
postponed based on Beames’s request to develop the issue further on his own, as he
requested?


                                             22
       additional relevant information regarding options available for curing
       [Beames’s] zoning violation which may have impacted the hearing officer’s
       decision as to the amount of penalties to be assessed in the interest of
       justice. For these reasons the court grants the Petition and orders a writ to
       issue directing [the city] to vacate the ruling of the administrative hearing
       officer dated August 24, 2016[,] and directing [the city] to hold a new
       administrative hearing in the event such is warranted in light of current
       circumstances.”
       In light of the remarks by counsel for the city conceding the impropriety of the
daily penalties and acknowledging the impending legalization of Beames’s property use,
why did the court not go further and order any further proceedings before the hearing
officer to be limited to the question of reimposing the fine of $2,800? Presumably, it did
not do this because counsel for the city hedged when asked whether there was anything
significant left for it to pursue, and because the city had not actually passed the updated
zoning ordinance as of the time of the merits hearing. The reference to “current
circumstances” at the end of the court’s order was its way of taking account of those
considerations.
       In any event, there is no indication that another administrative hearing was ever
held. It appears to be now undisputed that there is nothing left for the city to pursue and
that its enforcement action has been abandoned. It also appears to be undisputed that the
$45,000 penalty award was not in the interests of justice, that the city has no policy
interest in removing the existing use from Beames’s property, and, since it has been
legalized, no power to remove it. Indeed there are no longer any grounds for disputing
that the city never had any rational interest in removing the use or penalizing its non-
removal while it was considering and then enacting zoning changes that legalized it. The
period of that consideration and enactment encompasses the entirety of the time the city
was defending in court its order to pay the penalty award and remove the use.
       The city’s actions contesting Beames’s writ petition were of little legal value and
generated unecessary expense. After November 14, 2016, the date Bernal formally



                                             23
submitted to the planning commission his suggestion that it could adopt means of
legalizing the automotive uses on Ben Maddox Way if it wished to maximize the
economic potential of the older buildings there, there was literally nothing the city could
rationally have wanted from litigating the case that it could not have had for free by
agreeing to stay it while the legislative process played out (a process that apparently
ended up taking only about four more months).7 November 14, 2016, was a week before
Beames filed his writ petition in the superior court.
       The writ of mandate and the judgment were filed on March 30, 2017.
Fee Litigation
       Beames filed his motion for attorney’s fees on April 28, 2017. It made two
arguments. First, fees were awardable under Code of Civil Procedure section 1021.5.
This statute authorizes an award of attorney’s fees based on a “‘private attorney general’”
theory, i.e., the theory that the availability of an award of fees to a prevailing plaintiff is
desirable to incentivize private enforcement of the law in the public interest by shifting
the cost of that enforcement to the violator. (Woodland Hills Residents Assn., Inc. v. City
Council (1979) 23 Cal.3d 917, 929-931; La Mirada Avenue Neighborhood Assn. of
Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1155-1156.) The statute
authorizes the trial court to award attorney’s fees to a “successful party” in “any action
which has resulted in the enforcement of an important right affecting the public interest”
(Code Civ. Proc., § 1021.5) when all of the following are true:

7      There is one place in the record—the city’s brief in the trial court opposing
Beames’s fee motion—where the city took the position that the original administrative
order issued on June 9, 2016, was still in effect and therefore Beames would still owe the
$2,800 unless there was a new hearing before the hearing officer and he vacated that
order. This would be because, unlike the $500 daily penalty, the $2,800 penalty was in
the original order, which remained in existence after the trial court vacated the hearing
officer’s order. But the prospect of recovering the $2,800 cannot have supported a
rational desire to fund the litigation. The city obviously paid its attorney far more than
$2,800.


                                               24
       “(a) a significant benefit, whether pecuniary or nonpecuniary, has been
       conferred on the general public or a large class of persons”;

       “(b) the necessity and financial burden of private enforcement, or of
       enforcement by one public entity against another public entity, are such as
       to make the award appropriate”; and

       “(c) such fees should not in the interest of justice be paid out of the
       recovery, if any.” (Code Civ. Proc., § 1021.5.)
       Beames contended that his success on the writ petition enforced the important
public right to code enforcement hearings that afford due process. A significant benefit
will be conferred on the general public if the city responds to its defeat by mending its
ways. The remaining elements of Code of Civil Procedure section 1021.5 were satisfied
because–as Beames claimed in his motion for award of attorney’s fees–the city “dragged
[him] through a relentless pursuit of penalties that were improper, improbable and which
the City had to know were both legally and morally wrong.”
       Second, the motion made a claim for attorney’s fees under section 1988. Section
1988 provides that a trial court has discretion to award a reasonable attorney’s fees to a
prevailing party in an action to enforce section 1983, among other statutes. (42 U.S.C.
§ 1988(b).) Section 1983 creates a civil cause of action against any person who, under
color of state law, deprives any person of rights secured by the federal Constitution or a
federal statute. (42 U.S.C. § 1983.) Beames argued that he established, and the trial
court found, a 14th Amendment due process violation. This, in turn, was the predicate of
a section 1983 violation, so Beames was a prevailing party to whom fees should be
awarded under section 1988.
       The city’s opposition to the fee motion began by pointing out that the
comprehensive zoning update process began before the litigation in this case, that it was
discussed in public meetings, and that Beames attended some of the meetings and spoke
at one in an attempt to include his and his neighborhood’s issue in that process. There
were no secrets.


                                              25
       It was unclear what point the city intended to be making with these observations.
As discussed above, the facts that city planning staff engaged with Beames on the matter
of regularizing his and his neighbors’ property, and submitted to the planning
commission a possible means of doing this through the comprehensive zoning update—
and did these things before the writ petition was filed—is an indication that the city’s
right hand had declined to take notice of what its left hand was doing when it actively
tried to enforce the cease-and-desist order and secure a judgment upholding the daily
penalties. If something secret had been going on, and there were no lines of
communication between those running the zoning update and those pursuing enforcement
against Beames, the litigation misdirected at him might have been more understandable.
Yet the city was oddly at pains here to emphasize that everything was done in the open
and it litigated against Beames although it knew the process leading ultimately to the
legalization of his property use had begun long before and was proceeding apace.
       The opposition next contended that a fee award would be inappropriate under
Code of Civil Procedure section 1021.5 because the interests vindicated by Beames’s writ
proceeding were not important, substantial, or public. In the city’s view, the case
involved trivial mistakes by the hearing officer affecting one parcel and owner only, and
only $2,800 was at stake. Despite the hearing officer’s order to pay $500 per day and the
city’s previous contention that a stay should be denied so the penalties could continue
accumulating beyond $45,000 in order to protect the rule of law from avaricious
landlords, the city now argued that there was “no evidence that [Beames] actually
incurred” any daily penalties at all. This was proved, the city maintained, by the fact that
it sent Beames a bill not referring to daily penalties on August 2, 2016—before the
hearing officer ordered the daily penalties at the city’s behest on August 24, 2016—and
then sent him another copy of the same bill on September 13, 2016. This somehow put
Beames “on notice that the fines were not aggregating,” despite the city’s later litigation



                                             26
positions that they must continue aggregating and that the hearing officer’s order
awarding them to the city must be upheld in its entirety. The city’s argument did not
address the question of whether Beames’s interest in not having to evict his tenant and
stop using the property as he had been using it—which the hearing officer’s order
demanded and the city never backed away from until the merits hearing at the end of the
litigation, when the rezoning game was all but over—was a substantial interest. It also
did not explain why, if only $2,800 was at stake, it never offered to settle for $2,800 and
leave Beames’s property use alone.
       Finally, the opposition argued that a fee award under section 1988 would be
inappropriate. It averred that, despite the appearance of the words “due process” in the
trial court’s ruling, that ruling was really based only on the hearing officer’s failure to
follow the procedural requirements of the municipal code. There was no constitutional
due process violation on which a finding of a section 1983 violation could have been
based. And even if the hearing officer or the city’s witnesses at the administrative
hearing had committed a due process violation, the city would not have been liable for it.
The city believed it could be liable for such a violation only if it was committed pursuant
to an official policy of committing such violations within the meaning of the United
States Supreme Court’s holding in Monell v. New York City Dept. of Social Services
(1978) 436 U.S. 658 (Monell).
       The court heard oral argument on the fee motion on June 1, 2017, and issued a
written ruling denying the motion on June 5, 2017. The gist of the ruling was that the
matter was too private and personal in character for a Code of Civil Procedure section
1021.5 award; and it was not important enough to implicate the federal Constitution even
though there was a due process problem, so a section 1988 fee award was not appropriate
either. Regarding the latter point, the court referred to (but did not cite) other California
cases it had consulted in which state appellate courts had upheld section 1988 awards. It



                                              27
stated: “The constitutional claims in the cases reviewed by the court involve basic
constitutional issues at a level not [comparable to the level of the issue] considered here
(whether an administrative hearing officer properly assessed fines and penalties on a
zoning violation).”
       Relying on Monell, the court also stated: “[A] local government may not be sued
under Section 1983 for an injury inflicted solely by its employees or agents. Instead, it is
when execution of a government’s policy or custom … inflicts the injury that the
government as an entity is responsible under section 1983.” (Monell is the authority
under which, in section 1983 suits against local governments, courts deny relief to
victims of police beatings where the beatings are determined to have contravened police
department policy, for instance.) The city had suitable procedural rules in place and the
hearing officer failed to follow them, so there would be no municipal liability under
section 1983. Under this interpretation of Monell, a local government would never be
liable under section 1983, for damages, reversal by writ relief, or anything else, when its
administrative tribunal unconstitutionally deprived a party of liberty or property without
due process of law if, at the same time, the tribunal broke local procedural rules. The
tribunal’s error under local law would insulate the government from liability for the
constitutional violation by proving that the tribunal was not executing a local policy.
       Finally, the court cited Farrar v. Hobby (1992) 506 U.S. 103 (Farrar). It
reasoned that under that case, even though Beames was a prevailing party, he should not
recover attorney’s fees because his “success on constitutional civil rights claims was
limited.” Although he obtained an order vacating the hearing officer’s order, a new
hearing before the hearing officer could still take place, after which Beames might have
no relief at all. The court did not mention the city’s concession at the merits hearing that
the hearing officer’s award of $45,000 in daily penalties was entirely unsupported, or the
fact that it made this concession only when the litigation was complete. It also did not



                                             28
mention the fact that, but for Beames’s decision to initiate the litigation, the daily
penalties would have continued accumulating and he could have been compelled to evict
his tenant before the city finally changed the zoning.
       Beames filed a notice of appeal on June 19, 2017.
                                       DISCUSSION
       The only question on appeal is whether denial of the fee award was improper
under section 1988. We conclude it was.
       Consistent with the language of section 1988(b) (“the court, in its discretion, may
allow the prevailing party”), the parties agree that the abuse of discretion standard applies
to our review of the ruling. A trial court can abuse its discretion by making and relying
on a factual finding not supported by substantial evidence in the record, or by making an
error of law, among other ways. (Conservatorship of Scharles (1991) 233 Cal.App.3d
1334, 1340.) As will be seen, this appeal turns on such questions as whether Beames
prevailed on a federal claim under section 1983 or, alternatively, pleaded a substantial
section 1983 claim but prevailed on a state law claim based on the same facts; whether
municipal liability under section 1983 could arise from the hearing officer’s actions; and
whether Beames’s success in the litigation was too limited to support a section 1988 fee
award. There does not seem to be any significant dispute between the parties about the
facts relevant to these questions, so it is with errors of law that we will be concerned.
Prevailing Party
       To obtain a fee award under section 1988, Beames had to be a “prevailing party”
in an “action or proceeding to enforce a provision of” section 1983. (42 U.S.C.
§ 1988(b).) The parties essentially agree that Beames prevailed in the litigation. The
city, however, contends that it would be error to award fees under section 1988 because
what Beames prevailed on was not his section 1983 claim, but a state law claim that the
hearing officer failed to abide by the municipal code.



                                              29
        In its order granting the writ petition, the trial court wrote that the city failed
sufficiently to protect Beames’s due process rights at the administrative hearing. But it
did not explicitly state that there was a due process violation under the federal
constitution. It wrote that the hearing officer’s remarks showed he had a mistaken belief
that he had to uphold the enforcement order in its entirety and impose daily penalties in
the full authorized amount if a code violation was shown; but in reality the municipal
code called upon him to exercise discretion, in light of certain factors and the interests of
justice, when deciding whether to affirm or vacate the enforcement order in whole or in
part and whether to order all, some, or none of the penalties sought by the city.
        The court also wrote that the city violated Beames’s rights when its employees
failed to disclose to the hearing officer the process then ongoing of updating the zoning
ordinance and its possible effect on Beames’s property and the city’s claim against him.
This shortcoming had nothing in particular to do with the municipal code and seemed
simply unfair.
        How these issues might have fared in a procedural due process analysis under the
14th Amendment was not explored.
        We will assume for the sake of argument that what was proved, in the trial court’s
view, was not the section 1983 claim Beames pleaded based on a procedural due process
violation under the 14th Amendment, but a state law claim based on the municipal code.
The question then is whether a sufficient section 1983 case was pleaded and whether the
state law claim was strongly enough related to it to support a fee award under section
1988.
        The relevant principles are set forth and applied in Filipino Accountants
Association v. State Bd. of Accountancy (1984) 155 Cal.App.3d 1023 (Filipino
Accountants). Business and Professions Code section 5087 authorized the Board of
Accountancy to waive the certified public accountant (CPA) exam for accountants



                                                30
certified in foreign countries with certification standards at least as high as those applied
in California. The board had a long-standing practice of granting these waivers to
applicants licensed in British Commonwealth countries. The plaintiff association sued
the board, alleging that it had a decades-old practice of not granting waivers to
accountants licensed in the Philippines, even though the licensing authority in the
Philippines applied higher certification standards than the British Commonwealth
authorities. The plaintiff maintained that this practice discriminated against its members
based on their race and national origin, and constituted a violation of 42 United States
Code section 1981 (section 1981)8, as well as of the due process and equal protection
clauses of the 14th Amendment. It also asserted that the board’s discriminatory practice
violated the California Constitution, Civil Code sections 51 and 52, Labor Code section
1412, and Business and Professions Code section 16721. (Filipino Accountants, supra,
155 Cal.App.3d at pp. 1026-1028.)
       After a bench trial on the merits, the trial court issued a notice of its intended
decision, in which it found that the board denied waivers to Philippines-certified
applicants unlawfully from 1957 to 1977, and ordered it to reevaluate all such
applications from that period under the same standards it had applied to Commonwealth
applicants. The court framed the violation as an abuse of the board’s discretion under
Business and Professions Code section 5087 and did not mention racial or national-origin



8       Section 1981 provides in part: “All persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws
and proceedings for the security of persons and property as is enjoyed by white citizens,
and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.” Section 1988 authorizes an award of attorney’s fees to a
plaintiff prevailing in an action to enforce section 1981, just as with section 1983. (42
U.S.C. § 1988(b).) No reason appears why the legal analysis for a section 1988 award in
a section 1981 case would differ from that in a section 1983 case.


                                              31
discrimination, section 1981, or any provisions of the federal Constitution. (Filipino
Accountants, supra, 155 Cal.App.3d at p. 1028.)
       After the court issued this notice, the parties entered into a stipulated judgment
directing the board to reevaluate the affected applications as indicated in the court’s
discussion. The judgment reserved the issue of attorney’s fees for later proceedings.
(Filipino Accountants, supra, 155 Cal.App.3d at p. 1028.)
       The plaintiff moved for attorney’s fees under both section 1988 and Code of Civil
Procedure section 1021.5. The trial court granted the motion on both bases, stating:
“‘California Code of Civil Procedure section 1021.5 and Title 42 United States Code
section 1988 provide authority for an award of attorneys’ fees to petitioners. [¶] This
action has resulted in the enforcement of important rights affecting the public interest.
These rights include the rights of Filipino CPAs to equal protection of the laws under
United States and California Constitutions; the right of such individuals to practice their
profession; the right of such individuals to be free from arbitrary and capricious treatment
by the Board of Accountancy; and the right of minority communities and the public
generally to be served by a wide range of professionals without regard to national origin.”
(Filipino Accountants, supra, 155 Cal.App.3d at p. 1029, italics omitted.)
       On appeal, the board challenged the fee award under section 1988 only. Despite
the existence of the unchallenged alternative ground, the Court of Appeal entertained the
section 1988 issue because there was at the time an unresolved legal issue about caps on
Code of Civil Procedure section 1021.5 awards. (Filipino Accountants, supra, 155
Cal.App.3d at pp. 1029-1030.)
       Citing extensive United States Supreme Court authority, the Court of Appeal
distilled the following propositions:

       ▪      A plaintiff who succeeds on any significant issue and achieves some of the
              benefit sought in bringing suit is a prevailing party for attorney’s fee
              purposes. (Filipino Accountants, supra, 155 Cal.App.3d at p. 1031.)


                                             32
       ▪      A plaintiff’s success need not take the form of a judgment on the section
              1981 claim, or proof of any of the elements of that claim. Instead, “even
              where a civil rights act claim [i.e., a claim under section 1981, 1983, or any
              of the other statutes listed in section 1988] is litigated through judgment, a
              plaintiff need not prevail on that claim in order to be eligible for an award
              of fees under section 1988, provided that plaintiff’s complaint has pleaded
              a ‘substantial’ civil rights act claim and plaintiff prevails on a non civil
              rights act claim that is factually related to the pleaded civil rights act
              claim.” (Filipino Accountants, supra, 155 Cal.App.3d at p. 1032
              [underlining and second and third italics added].)

       ▪      The bar of substantiality for the section 1981 claim that must be pleaded is
              low. The claim is substantial unless it is “‘essentially fictitious,’” “‘wholly
              insubstantial,’” “‘obviously frivolous,’” or “obviously without merit.” It is
              insubstantial only if prior decisions of the United States Supreme Court
              inescapably render it frivolous and show it to be so clearly unsound that
              they foreclose the subject. (Filipino Accountants, supra, 155 Cal.App.3d at
              p. 1034.)

       ▪      The other claim on which the plaintiff need have prevailed has an adequate
              factual connection with the pleaded section 1981 claim if both arose out of
              a common nucleus of operative fact. (Filipino Accountants, supra, 155
              Cal.App.3d at p. 1033.)
       Applying these points, the Court of Appeal held that the Filipino Accountants
Association prevailed because it obtained the primary relief it sought: reevaluation of its
members’ applications for licensure under standards that would prevent the
discrimination complained of. (Filipino Accountants, supra, 155 Cal.App.3d at p. 1031.)
The constitutional claims pleaded under section 1981 could not be deemed insubstantial,
and, in fact, “a respectable body of law supported” those claims. (Filipino Accountants,
supra, at p. 1035.) All the claims were based on one set of facts—the discriminatory
rejection of the Filipino applicants’ waiver requests—so the state law claim on which the
plaintiff prevailed necessarily had a nucleus of operative fact in common with the section
1981 claims. (Filipino Accountants, supra, at p. 1035.)
       These principles apply in a straightforward way to Beames’s case. First, he
succeeded on a significant issue. The trial court agreed that he had a right to have the



                                             33
hearing officer do all the following: exercise his discretion to affirm all, part, or none of
the enforcement order and direct payment of all, part, or none of the daily penalties; make
this determination in light of the interests of justice, the other factors listed in the
municipal code, and the relevant facts, including those known to the city but not
mentioned by it at the administrative hearing; and state his factual findings in writing.
None of this happened, so the court found Beames was entitled to vacatur of the hearing
officer’s order and a new hearing conducted under the proper standards. Because of this
outcome and other objectives achieved along the way, the litigation achieved essentially
all of the benefit Beames sought. His stay motion caused the daily penalties to stop at
$45,000, over the city’s opposition. Then the order to pay $45,000 was reversed, over the
city’s opposition. At the merits hearing at the very end of the litigation, the city at last
conceded that it had never had a reason to pursue those penalties in the first place, so
there was no longer any likelihood of their being reinstated at a new administrative
hearing. The litigation also allowed the status quo on Beames’s property to be
maintained while the city moved toward changing the zoning, so that Beames was never
forced to evict his tenant, as he likely would have been had he allowed the penalties to
continue accumulating instead of bringing the writ proceeding. By bringing and
prosecuting the litigation, Beames caused everything to be taken off the table except the
$2,800 fine imposed by the code enforcement department. And—once again, because of
the litigation—it would be most surprising if the city were to attempt to collect that
amount: The litigation revealed that the city’s enforcement action was a waste of time,
money, and aggravation from beginning to end, which would have been avoided if the
city had applied its knowledge of the potential connection between the comprehensive
zoning update process and the situation faced by Beames and his neighbors, and
voluntarily delayed enforcement, as he urged it to do repeatedly.




                                               34
       Next, Beames’s section 1983 claim was substantial. It was premised on a
procedural due process claim based on the 14th Amendment’s due process clause, and
directed at the deficiencies of the administrative hearing. It alleged that the hearing was
not fair because the hearing officer did not make findings of fact, consider whether his
order was in the interests of justice, or consider other relevant factors, even though these
things were or should have been routine for him, and was unaware of the discretion
vested in him to craft a suitable order.
       The threshold inquiry for a 14th Amendment procedural due process claim is
whether the governmental action complained of deprived the claimant of an interest in
liberty or property within the meaning of the due process clause. (Mathews v. Eldridge
(1976) 424 U.S. 319, 332 (Mathews).) The hearing officer’s order, if upheld, would have
deprived Beames of $45,000 and forced him to evict his tenant and limit the use of his
property. It is difficult to argue an interest in property was not at stake.
       After the threshold, the next question would be whether the procedural benefits
Beames did not receive (findings of fact, consideration of the interests of justice and
other factors, exercise by the hearing officer of his discretion, disclosure of relevant facts
in possession of city personnel) were “due.” This is determined by a balancing test that
takes account of the benefit to the claimant and the burden on the government of adding
procedures. (Mathews, supra, 424 U.S. at pp. 339-349.)
       The question of what process is due was not explored in the trial court, but it need
not have been explored for us to determine that the section 1983 claim was substantial.
In Filipino Accountants, establishment of the equal protection claim would have required
proof of intentional discrimination, for example. The plaintiff did not establish even a
prima facie case of that element, but this did not mean the claim was insubstantial.
(Filipino Accountants, supra, 155 Cal.App.3d at pp. 1031-1032.) It is the same here.
Beames does not have to show he proved or could have proved a procedural due process



                                              35
violation under the balancing test of Mathews. It is enough to say that no clearly
established law would dictate a result adverse to him.
        Finally, there is no difficulty regarding the factual relationship. Beames’s state
law claims and his claims under section 1983 were alternative theories, based on the
same set of facts, for obtaining relief from the hearing officer’s order.
        For the above reasons, Beames pleaded a substantial section 1983 claim and
prevailed on a state law claim based on the same facts as the section 1983 claim. There
was no other sense in which he had to be a prevailing plaintiff for purposes of section
1988.
        “The purpose of [section] 1988 is to ensure ‘effective access to the judicial
        process’ for persons with civil rights grievances. [Citation.] Accordingly,
        a prevailing plaintiff ‘“‘should ordinarily recover an attorney’s fee unless
        special circumstances would render such an award unjust.’”’” (Hensley v.
        Eckerhart (1983) 461 U.S. 424, 430.)
        There were no special circumstances that would render a fee award unjust and no
reason why what “ordinarily” happens should not happen here. In fact, as illustrated in
the discussion below of the public interest in or public good done by the successful
litigation, the circumstances support the justice of a fee award strongly in this case.
Beames established a right to recover attorney’s fees under section 1988 and the trial
court abused its discretion in denying his fee motion.
Public Purpose, Interest, or Good
        The city’s treatment of Beames was not in the public’s interest or welfare. It
expended public resources first to sanction a citizen by means of a poorly managed and
unlawful administrative hearing, and then continued the exercise by forcing him to
litigate against the results of the hearing long after the city should have known that this
served no legitimate purpose.
        The tendency of litigation to promote the public interest or provide a public good
by discouraging unlawful behavior is a factor that can help support an award of attorney’s


                                              36
fees. This proposition, which we will discuss further momentarily, survives the holding
in Farrar, in which the United States Supreme Court held that although a nominal or
technical remedy suffices to make a plaintiff a prevailing party, it usually will not suffice
to support a section 1988 fee award, because it represents such an extremely limited
degree of success. The plaintiff in Farrar sued state officials under section 1983 on a
due process theory on account of the manner in which they closed down his private
school after he was indicted for murdering a student by willfully denying medical
treatment. He proved a due process violation and thus prevailed, but it was determined
that he was uninjured by the violation and he received nothing but nominal damages of
one dollar. (Farrar, supra, 506 U.S. at pp. 105-106.) The case “accomplished little
beyond giving [the administrators of the estate of the plaintiff, who had died] ‘the moral
satisfaction of knowing that a federal court concluded that [their] rights had been
violated’ in some unspecified way.” (Id. at p. 114.)
       It might be thought, at least where no substantial remedy is awarded, that this
holding means a prevailing party cannot be awarded fees based only on the fact that the
result could serve to benefit the public by deterring future violations. But the holding of
Farrar does not actually imply this. The Supreme Court made the point that fees should
not be awarded unless the litigation achieved the plaintiff’s goal of obtaining
compensation (or, presumably, in a non-damages case, some other materially corrective
remedy) for injury. (Farrar, supra, 506 U.S. at p .114.) But Farrar was not injured (his
school would have been closed regardless) and neither the one dollar nor the bare
favorable ruling of an “unspecified” violation compensated his estate, even though the
nominal award did “vindicate his ‘absolute’ right to procedural due process through
enforcement of a judgment against the defendant.” (Id. at p. 115.) The line between
concrete “compensation” for an injury and abstract “vindication” of a right may be thin,
but we think it is tolerably clear that concrete compensation can come in the form of the



                                             37
promotion of the public welfare. Some plaintiffs who can prove a violation, but not an
injury remediable by a personal award to themselves, may have as their primary litigation
goals the creation of a deterrent to future bad governmental conduct and the precedential
provision of an avenue of relief for others who are concretely injured by the same type of
violation. And litigation sometimes achieves those goals. They were not the goals of
Farrar, who wanted $17 million but got just one dollar and a judgment of “some
unspecified” due process violation. (Id. at p. 114.) But it would take a stingy view of
human motivations to say a benefit to the public never compensates an individual for a
harm.
        In a concurring opinion in Farrar, Justice O’Connor pointed out that the majority
opinion did not exclude the possibility of a fee award based on the public importance of
the litigation’s outcome even when the remedy awarded to the plaintiff is nominal or
technical. “Nominal relief does not necessarily a nominal victory make,” she wrote.
(Farrar, supra, 506 U.S. at p. 121 (Conc. Opn. of O’Connor, J.).) Consequently, “the
courts also must look to other factors” (ibid.) than the substantiality of the remedy
conferred on the plaintiff by the judgment. “One is the significance of the legal issue on
which the plaintiff claims to have prevailed.” (Ibid.) Even Farrar might have been
deemed to have had material success if his victory had “also accomplished some public
goal.” (Id. at pp. 121-122.) Section 1988 was not enacted to create employment
opportunities for lawyers, but it does function as “a tool that ensures the vindication of
important rights, even when large sums of money are not at stake, by making attorney’s
fees available under a private attorney general theory.” (Farrar, supra, at p. 122.) The
difficulty for Farrar was simply that even with a judgment in his favor, no discernible
public goal was accomplished and no significant legal issue was resolved or elucidated,
so there was nothing to place in the scales to weigh in favor of a fee award except that
one dollar in damages. (Id. at pp. 121-122.)



                                             38
       Brandau v. State of Kansas (10th Cir. 1999) 168 F.3d 1179 (Brandau) is an
example of Justice O’Connor’s point in action. The fee provision at issue was not section
1988 but was instead 42 United States Code section 2000e-5(k), a portion of the Title VII
of the Civil Rights Act of 1964; the applicable principles are the same. Brandau obtained
a judgment against her state government employer on a hostile environment sexual
harassment claim. The jury rejected her claim for 21 months’ back pay plus $50,000 in
compensatory non-economic damages. It awarded her only nominal damages of one
dollar, but the district court granted her motion for attorney’s fees. (Brandau, supra, at
pp. 1180-1181.)
       The Court of Appeal affirmed the fee award, holding that it was consistent with
Farrar. Unlike Farrar, Brandau did not make an extravagant damages claim, so her
nominal award did not represent an equally dramatic failure to recover what she sought.
Further, the claim on which she succeeded, sexual harassment, was her primary claim;
the claims for retaliation and constructive discharge on which she did not succeed were
secondary. Most importantly for our purposes here, the judgment in her favor served the
public interest. It was shown that her state government employer had little capacity for
the proper handling and investigation of sexual harassment claims. The judgment placed
the employer and the state on notice regarding their responsibility for educating and
training their employees and supervisors about sexual harassment, and the need for them
to reform their policies on the subject; and it served as a warning to take steps to reduce
their exposure to liability lest compensatory damages be proved in the next case. Unlike
in Farrar, the judgment told the defendants just what the violation was. It was not a
victory from which the plaintiff derived nothing of consequence but the status of winner.
Instead, the vindication of rights under Title VII and the benefit to all the other
employees of the state employer—and indeed to the state employer itself—were “in the
interests of the public and are exactly what Congress intended to encourage” via fee



                                              39
provisions in the Civil Rights Act of 1964. (Brandau, supra, 168 F.3d at p. 1183.) We
do not think the intent of section 1988 is any different in this regard.
       In our case, there is no difficulty about the substantiality of the material relief
obtained through the litigation. Beames did receive very material benefits from the
litigation, as we have indicated and will elaborate further below in rejecting the city’s
argument that his success was limited. He got virtually all he sought. So the question for
us is not whether the publicly beneficial result of the litigation is sufficient to fill in for a
paucity in the concrete recovery obtained. Instead, it is whether the public benefits add
significant heft to the claim for attorney’s fees (although in our view the case is already
strong enough under the Filipino Accountants analysis above, given the concrete
recovery) and provide additional justification for reversing the trial court’s denial. We
conclude they do. Even if Farrar did mean (as it does not) that nominal or technical
relief plus a publicly beneficial holding always amounts to no case for attorney’s fees,
still nothing in the Supreme Court’s opinion would suggest that the public good or public
interest will not strengthen a case for fees that is supported by the magnitude of the
recovery as well.
       We now turn to the question of exactly what public benefits this litigation has
achieved. As we have already indicated, the city’s own counsel ultimately informed the
court that the city began making the connections between Beames’s property, the Ben
Maddox Way situation more generally, and the comprehensive zoning update at the time
it investigated the complaint about Beames’s property, back at the beginning of the whole
process. The city proceeded to order Beames to terminate the business on his property
anyway. His unaided attempts to gain time to work at inducing the city to solve the Ben
Maddox Way problem via the comprehensive zoning update—the approach the city had
already been considering and that it used in the end—were rebuffed by the very personnel
who were most intimately associated with the update. At the administrative appeal



                                               40
hearing, the city committed the violations that later became the heart of the litigation: It
failed to disclose to the hearing officer the information about those connections between
the property and the update, and what it had started to consider doing about them; and the
hearing officer demonstrated that he would not have understood his obligation to consider
that information, or any other relevant evidence besides the code violation itself, even if it
had been presented to him. Nor was he aware of the factors in light of which he was
required to consider evidence, or of the range of possible rulings open to him after he
considered it. And Beames’s reiterated request for time to link the Ben Maddox Way
problem to the update was again dismissed out of hand at the administrative hearing in
the presence of the same city personnel. The unfairness of the proceeding may or may
not have been unconstitutional, but its unlawfulness was established by the trial court’s
ruling after the merits hearing, is clear, and is not now in dispute.
       By the time Beames filed his writ petition months later, city planning staff had
already put a proposal before the planning commission that would have led to the
legalization of Beames’s tenant’s business and to a solution to the Ben Maddox Way
problem in general. At that time the city had no articulable reason for pursuing
enforcement, and could not gain anything by continuing its enforcement efforts through
counsel that it could not gain at no cost by delaying. Yet counsel took the most
adversarial course available, opposing Beames’s motion to stay the accumulation of
penalties at $500 per day, while at the same time trying to claim the moral high ground
and imputing base motives to Beames.
       Meanwhile, the comprehensive rezoning ordinance process continued, with never
a word about it from the city’s counsel to Beames or the court. When the merits hearing
finally rolled around, the process was so close to a consummation in Beames’s favor that
the city was cornered and had to concede there never was any justification for the daily
penalties it had insisted on at every stage. It also had to concede that the underlying



                                              41
substantive issue—the use of the property—was almost certain to drop out of the case in
a month. Still the city refused to give even a millimeter. It did not offer to stipulate to
any limitations on the ruling it was seeking, not even with respect to the $45,000 in
penalties it had just admitted were unsupported. The court observed that there was little
left to the case. It suggested settlement. The city never budged.
       There was no reason for any of this. At every opportunity to ameliorate the
situation, the city seemingly chose to make matters worse. And after the administrative
hearing—when the city’s conduct forced Beames to go to court—the city only got more
aggressive.
        Government should not be allowed to intentionally inflict a situation such as this
on one of its citizens. Hopefully our opinion in this case will lead to lawful
administrative hearings presided over by hearing officers cognizant of their duty and
attended by knowledgeable city personnel prepared to fully explain the situation in its
entirety.
Municipal Liability
       This section and the next two are provided in rebuttal to the counterarguments
advanced by the city.
       The trial court and the city have asserted, in effect, that Beames did not plead a
substantial section 1983 case because section 1983 liability is rendered impossible here
by Monell, supra, 436 U.S. 658. This, they assert, is because the hearing officer on
whose conduct Beames’s case is primarily based was simply making mistakes at the
administrative hearing, not executing city policy. In fact, he was violating city policy by
failing to follow the rules for administrative hearings delineated in the municipal code.
They say Monell permits the actions of a municipal employee or agent to form a basis of
section 1983 liability for the municipality itself only when the employee or agent is




                                              42
carrying out some kind of policy, practice, or pattern of behavior that can properly be
attributed to the city, instead of just acting unlawfully on his or her own.
       As we will explain, this reasoning does not apply to the situation before us. In his
challenged actions, the hearing officer was the official maker of the city’s final decision
in the matter, subject to reversal only in court. The United States Supreme Court has held
that an official act of such a person can be a predicate of a government entity’s section
1983 liability even if it is anomalous, irregular, inconsistent with other official
pronouncements and only happens one time. (Pembaur v. City of Cincinnati (1986) 475
U.S. 469, 471 (Pembaur).)
       Section 1983 creates a civil cause of action for deprivation of constitutional rights
by a defendant acting under color of state authority. When the defendant is a
government, and the deprivation takes the form of a final decision of a government
official authorized to make the decision, it would be absurd to say the government has not
committed a constitutional violation under color of its own authority.
       In Monell, a class of female employees of the New York City Department of
Social Services and New York City Board of Education (an independent school district)
sued the city and the board under section 1983, alleging that they had policies compelling
pregnant employees to take unpaid leaves of absence before their pregnancies made such
leaves medically necessary. The question before the United States Supreme Court was
whether and under what circumstances a local government is a “person” subject to suit
under section 1983 (“[e]very person who, under color of any statute.”). (Monell, supra,
436 U.S. at pp. 660-663.)
       Justice Brennan wrote for the court that the intent of Congress in enacting section
1983 as part of the Civil Rights Act of 1871 was that local governments can be sued
directly under the statute where “the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation or decision officially



                                              43
adopted and promulgated by that body’s officers,” or is done pursuant to a settled
governmental custom never officially promulgated. (Monell, supra, 436 U.S. at p. 690.)
But where an agent or employee of the government who violated a plaintiff’s rights did
not do so in accordance with a settled governmental custom or an official policy, the
government would not be liable under section 1983. The agency relationship alone could
not create vicarious liability. (Monell, supra, at p. 692.) Applying this rule, the Supreme
Court reversed the Court of Appeals’ holding that the government entity defendants were
wholly immune from suit under section 1983. (Monell, supra, at pp. 663, 701.)
        The way the court framed the matter in Monell could easily enough be thought to
mean there is no municipal liability unless a rule is first made and then the government’s
agent engages in action following the rule. But in Pembaur, the Supreme Court granted
certiorari to decide “whether, and in what circumstances, a decision by municipal
policymakers on a single occasion may satisfy” Monell. (Pembaur, supra, 475 U.S. at p.
471.)
        Pembaur was a doctor suspected of fraudulently receiving public benefits
payments for services not actually provided to patients. The Hamilton County prosecutor
initiated an investigation, leading to the impaneling of a grand jury and the issuance of an
indictment. During the investigation, the grand jury issued subpoenas for two of
Pembaur’s employees. They failed to appear, and the county prosecutor obtained arrest
warrants.
        Deputy sheriffs appeared in Pembaur’s waiting room with the warrants, but he
closed and locked the door to the inner office and refused to let them in. The deputies
decided to wait for the police department to assist. Police officers arrived and tried to
persuade Pembaur to cooperate. When he did not, they called in a superior police officer,
who had no better luck. The deputy sheriffs called their supervisor, who told them to call
the assistant prosecutor running the grand jury and follow his instructions. He in turn



                                             44
called the county prosecutor, who gave the order to go in by force. The deputies chopped
the door down with an axe, conducted a search, and detained two people who, however,
turned out not to be the subpoenaed witnesses. (Pembaur, supra, 475 U.S. at pp. 471-
473.)
        Pembaur sued the city and county and a variety of officials and police officers
under section 1983, arguing that a police search of a home or business without a search
warrant or applicable exception violated the Fourth Amendment even if the officers had a
valid arrest warrant for a third party. That proposition was upheld by the Supreme Court
in another case while Pembaur’s case was pending, and by the time Pembaur’s case was
set to be decided in the Supreme Court, the only question was whether the county would
escape liability because neither the sheriff’s department nor the county prosecutor or his
office were following any relevant preexisting policy, and the search was instead the
result of an official’s single, discrete decision on the occasion in question. (Pembaur,
supra, 475 U.S. at pp. 473-477.)
        Justice Brennan, again writing for the court, explained that the central point of
Monell was that municipal liability under section 1983 could be based only on acts that
were truly acts of the municipality, not acts fictitiously attributed to it via a doctrine of
vicarious liability like respondeat superior: “that is, acts which the municipality has
officially sanctioned or ordered.” (Pembaur, supra, 475 U.S. at pp. 479-480.)
        The court continued:
                “With this understanding, it is plain that municipal liability may be
        imposed for a single decision by municipal policymakers under appropriate
        circumstances. No one has ever doubted, for instance, that a municipality
        may be liable under [section] 1983 for a single decision by its properly
        constituted legislative body—whether or not that body had taken similar
        action in the past or intended to do so in the future—because even a single
        decision by such a body unquestionably constitutes an act of official
        government policy. [Citations.] But the power to establish policy is no
        more the exclusive province of the legislature at the local level than at the
        state or national level. Monell’s language makes clear that it expressly


                                               45
       envisioned other officials ‘whose acts or edicts may fairly be said to
       represent official policy,’ [citation] and whose decisions therefore may give
       rise to municipal liability under [section] 1983.
               “Indeed, any other conclusion would be inconsistent with the
       principles underlying [section] 1983. To be sure, ‘official policy’ often
       refers to formal rules or understandings—often but not always committed
       to writing—that are intended to, and do, establish fixed plans of action to
       be followed under similar circumstances consistently and over time. That
       was the case in Monell itself, which involved a written rule requiring
       pregnant employees to take unpaid leaves of absence before such leaves
       were medically necessary. However … a government frequently chooses a
       course of action tailored to a particular situation and not intended to control
       decisions in later situations. If the decision to adopt that particular course
       of action is properly made by that government’s authorized decisionmakers,
       it surely represents an act of official government ‘policy’ as that term is
       commonly understood. More importantly, where action is directed by those
       who establish governmental policy, the municipality is equally responsible
       whether that action is to be taken only once or to be taken repeatedly. To
       deny compensation to the victim would therefore be contrary to the
       fundamental purpose of [section] 1983.” (Pembaur, supra, 475 U.S. at pp.
       480-481.)
       The court was at pains to explain that it did not mean every discretionary decision
made by a municipal employee, even a policymaking employee, could be a foundation of
municipal liability under section 1983. Instead, the decision must be made by an official
who “possesses final authority to establish municipal policy with respect to the action
ordered.” (Pembaur, supra, 475 U.S. at pp. 481-482.) But what is policy if, as the court
stated, it need not consist of plans or rules intended to control future actions or decisions?
It is “a deliberate choice to follow a course of action … made from among various
alternatives.” (Id. at p. 483.) So if an official deliberately chooses a course of action
from among alternatives and is vested with final authority to make that choice, then the
choice the official makes can be a basis of municipal liability under section 1983.
       The court concluded that, under this standard, section 1983 liability was not barred
by Monell. The sheriff’s department told the deputies to follow the instructions of the
prosecutor’s office, and the county prosecutor made the decision to order them to enter



                                             46
the doctor’s office forcibly and search it. This decision was not pursuant to any rule or
plan that had been followed in the past and was not meant to establish any rule to guide
action in the future. But it was the final decision, chosen from possible alternatives by an
official with authority to make it. So the county was exposed to liability. (Pembaur,
supra, 475 U.S. at pp. 484-485.)
       Beames’s case is straightforwardly analogous. Tromborg, the hearing officer, was
vested with the authority to make the city’s final decision on whether to uphold, modify,
or vacate the code enforcement order, whether to impose penalties, and how much the
penalties would be. He was the end of the road so far as city policy was concerned:
After his decision the next step was litigation.9 His decision was chosen from among
alternatives, and such a decision made by such a city official was city “policy” under
Pembaur. Monell thus is consistent with section 1983 liability in this case, and
consequently does not show Beames failed to plead a “substantial” section 1983 case.
Limited Success
       The trial court also relied on Farrar in denying the fee motion, and the city cites
that case now.10 If anything, however, Farrar supports an award of attorney’s fees in
this case.


9      The 30-day notice sent by the code enforcement officer to Beames on February 10,
2016, explained that he was entitled to an administrative appeal before a hearing officer,
and that absent success on appeal or upon the expiration of time to appeal, the
enforcement order would become final. “There are no appeals to City Council,” the
notice stated, and Beames’s recourse would be to seek review in the superior court. After
the administrative hearing, Beames was given a notice stating that the enforcement order
was now final and Beames had a right to seek review in court, but the city had the right to
perform abatement at Beames’s expense immediately.
10      The city’s only attempt to utilize Farrar in its appellate brief is a quotation that is
presented awkwardly, out of context, and fails to support the city’s point. The brief
states: “[W]hen a trial court finds a violation of procedural due process, that finding
‘obligates a court to award nominal damages when a plaintiff establishes a violation of
his right to procedural due process but cannot prove actual injury.’ (Farrar[, supra,] 506


                                              47
       Farrar merely stands for the proposition that, in a damages action under section
1983, a plaintiff who recovers any damages, even nominal damages of one dollar, is a
prevailing plaintiff under section 1988, but a plaintiff receiving only a nominal damages
recovery or some other merely technical remedy standing alone, being essentially
uninjured, will often be entitled to no attorney’s fees at all under section 1988. And in
general, the degree of a plaintiff’s success in obtaining the relief sought is the most



U.S. [at p. 112], citing to Carey v. Piphus (1978) 435 U.S. 247, 266.)” The trial court
here did not expressly find a violation of procedural due process and did not award any
form of damages. The city invites the reader to infer that the absence of a damages
remedy in this case proves there was no procedural due process violation; consequently
there was no section 1983 violation and no basis for an award of section 1988 attorney’s
fees.
        In reality, the Supreme Court in Farrar stated: “Thus, Carey obligates a court to
award nominal damages when a plaintiff establishes the violation of his right to
procedural due process but cannot prove actual injury.” (Farrar, supra, 506 U.S. at p.
112.) Carey simply held that in a damages action brought under section 1983 and
premised on a procedural due process violation, where the plaintiff proves a violation but
no damages, the correct outcome is a judgment for the plaintiff declaring the defendant’s
liability but awarding only nominal damages not to exceed one dollar. (Carey, supra,
435 U.S. at pp. 248, 266-267.) In other words, such a plaintiff should not be awarded
unproved compensatory damages but also should not be denied a judgment in his or her
favor.
        It is obvious that neither Farrar nor Carey held that there is no such thing as a
procedural due process violation, or a section 1983 violation, where the remedy is
something other than damages. In fact, section 1983 expressly authorizes “an action at
law, suit in equity, or other proper proceeding for redress.” “Action at law” is a
traditional name for a lawsuit praying for money damages. A “suit in equity” in modern
terms means one in which an equitable remedy, such as an injunction, is sought. The
mandamus proceeding here is “[an]other proper proceeding for redress” in the form of a
writ of mandate directing the administrative tribunal to vacate its order.
        In any event, as we have said, there need not be a judgment that federal law has
been violated to support an award of attorney’s fees under section 1983. Instead, the
plaintiff must have prevailed on a significant issue and pleaded a substantial section 1983
claim based on a nucleus of operative facts common to it and the issue on which the
plaintiff prevailed.


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critical factor in determining the amount of attorney’s fees a prevailing plaintiff should be
awarded under section 1988. (Farrar, supra, 506 U.S. at pp. 111-116.)
          The trial court suggested Farrar undermined the fee motion because Beames
could end up getting no relief after a new hearing before the hearing officer. But this
overlooks the facts discussed above: Beames’s successful motion for a stay on
accumulation of penalties removed the danger that he would be compelled to protect his
finances and keep a lien from being placed on the property by evicting his tenant before
the city got finished legalizing the use. And at the merits hearing, the city conceded that
Beames’s use would soon be legalized and the daily penalties were improper in their
entirety, thus severely constraining the scope of any favorable ruling the city might obtain
at a new administrative hearing.
          In other words, the trial court was mistaken about the practical consequences of its
own rulings. There was no realistic possibility of a new administrative ruling resulting in
no relief for Beames. Instead, because he litigated, Beames was substantially relieved of
the burdens the city had placed on him, and there was no prospect of any significant part
of them being reimposed. Leaving aside the $2,800 fine, Beames obtained all he sought.
He defeated the city’s bid to force him to evict his tenant or pay $500 for each day after
the administrative hearing. If Farrar means significant material relief is usually a
prerequisite of a section 1988 fee award, then this case passes Farrar’s test with flying
colors.
          It could have been (but was not) argued on the city’s behalf that if Beames had
confined himself to speaking at city council and planning commission meetings instead
of filing his writ petition, the final outcome would have been the same: His property use
would still have been legalized by the city council and the city would still ultimately have
reached the conclusion that the daily penalties were unjustified under the circumstances.




                                               49
So in the end, the litigation brought him out in the same position where he would have
been without it.
       But this would overlook the risk Beames faced. He was under threat of losing his
tenant plus $500 a day until the tenant was gone. Had he decided to comply with the
administrative order instead of suing, the rational course would have been to comply
promptly to minimize the daily penalties. But then he would have lost his tenant, which
no doubt would have been costly to him. So not suing would have led Beames to a worse
position than the position he arrived at by suing, even if the land use had still been
legalized and the penalties lifted in the end.
       There is no sound “limited success” rationale for denying Beames’s fee motion.
Assorted Arguments
       The city’s final arguments are made in a short section of its brief titled “Enforcing
the Law Is Not Made Unconstitutional Just Because Changes to It Are Being
Considered.” (Unnecessary capitalization omitted.) Several arguments are made in this
section:

       “[T]here was never a claim in the court below that [Beames’s] use of the
       subject property was lawful from the time he was cited through judgment.”

       There is “no authority to support the proposition that a law becomes
       unenforceable when changes to it are merely being considered.”

       “[T]he trial court never said the result had to be different just because the
       rezone effort was underway or about to get underway.”

       “City’s position about [Beames’s] land use was not disputed in the court
       below or here: [Beames] was operating his towing business outside the
       local zoning law, and failed to take steps necessary to cure that problem.”

       The theme of this section of the city’s brief seems to be that attorney’s fees should
not be awarded because the city did nothing wrong, and the city did nothing wrong
because the property was in violation. But what the city did wrong, of course, was fail to



                                                 50
conduct the administrative hearing properly in the ways the trial court discussed,
necessitating Beames’s self-defensive legal action and leading the city to inflict the
additional unnecessary harms we have discussed.
       What then is the significance of the undisputed zoning violation in this case? It
means that under completely different circumstances the city would have done nothing
wrong. If the city had never begun to form any plan to change the zoning and eliminate
the problem, or had disclosed such a prospect to the hearing officer; if the hearing officer
had followed the rules, learned of and considered the facts, and understood and exercised
his discretion; if the city had not managed its side of the litigation as though the
circumstances were completely different from what it knew them to be, then—assuming
the claim of intentionally discriminatory enforcement would have turned out to be
unsupported—Beames would have been without recourse on the merits or the fees issue.
But this is not what happened. The undisputed zoning violation did not excuse this
conduct, and does not defeat the fee motion.
       The city also objects here to Beames’s characterization in his brief of the city’s
behavior in the matter as “bad faith.” Bad faith as a legal concept is not relevant to any
part of the analysis in this case, so we need not address it. What is relevant is a point we
have been making throughout this opinion: By the time the litigation commenced, the
city knew the status of Beames’s property and neighboring properties was before it as a
legislative matter that would be resolved soon, very possibly in a manner that would
remove any reason for proceeding against Beames. In the city’s own view, as it
eventually acknowledged, this meant the daily fines were not justified at any stage. Daily
fines serve to deter the continuation of a prohibited use; but the city had no interest in
deterring that which it was preparing to allow. It was always possible that it would end
up deciding not to allow it, and that possibility could have justified a decision to seek to
stay the litigation instead of settling it on terms favorable to Beames or stipulating to



                                              51
judgment in his favor. But proceeding against him in court full steam ahead was not an
appropriate use of municipal authority.
       And that is where the public interest/deterrence part of the support for an award of
attorney’s fees in this case comes in. The subject matter of the litigation—the hearing
officer’s defective ruling—came to be because the city did not apprise its own hearing
officer of some of the most salient facts, and its hearing officer acted without an adequate
understanding of his own authority, or of what factors his decision should be based on.
By the time the litigation began, the city was in possession of enough of the full picture to
understand that this was not going to be a simple code enforcement matter in which proof
of the violation meant the property owner’s cause was lost—and that rapidly developing
events could mean the city’s reasons for going after the property owner could soon
disappear entirely. The city did not even pause to see whether the matter could be
resolved. Instead it opposed his motion to stay the accumulation of penalties.
       The city’s appellate brief says: “City was sued in administrative mandamus and
defended the action. [Beames] would have this Court call that bad faith; most lawyers
call it mounting a defense.” Under these circumstances, we would call it something a bit
more complicated. It was needless litigiousness in defense of an unlawful administrative
order the city finally conceded was indefensible even as it continued to defend it with no
prospect of meaningful gain in sight.
       In this litigation, the city failed to provide its citizen with a lawful administrative
hearing, and when the citizen sought redress, the city proceeded to victimize him for
nothing, running up litigation costs on both sides. This falls within the class of
governmental abuses a section 1988 attorney’s fee award can serve to deter.
Post-judgment Demurrer
       Along with its appellate briefs, the city filed a motion for judgment on the
pleadings, which it also calls a demurrer, asserting that Beames failed to plead a cause of



                                              52
action under section 1983 and for that reason could not recover attorney’s fees under
section 1988. A motion for judgment on the pleadings can be filed at any time (even if a
demurrer cannot). (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255,
259-260.)
       The city argues that Beames did not plead a cause of action under section 1983
because he did not plead facts that would show the hearing officer committed his errors
in accordance with a municipal policy or custom as these terms are defined in Monell.
We have already explained that the issue of municipal policy is controlled in this case by
Pembaur. Under Pembaur, there was no need to plead a preexisting policy or custom
because the hearing officer’s decisions themselves sufficed to support municipal liability.
       “‘[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a
cause of action under any possible legal theory.’” (Genesis Environmental Services v.
San Joaquin Valley Unified Air Pollution Control Dist. (2003) 113 Cal.App.4th 597,
603.) Demurrers and motions for judgment on the pleadings are functionally equivalent.
(Dudley, supra, 90 Cal.App.4th at pp. 259-260.)
       The city has not shown that Beames failed to state a cause of action under any
possible legal theory. If the city filed a demurrer, it is overruled; if a motion for
judgment on the pleadings, it is denied. The associated request for judicial notice, which
pertains only to material already in the record or briefs, is denied as moot. We have
considered these materials and judicial notice of them is unnecessary.
Conclusion
       The enforcement machinery in this case was put in motion by a complaint and
never slowed despite the knowledge of the involved personnel that a legislative solution
could be coming, and then was coming, based on the city’s decision that it did not want
to eliminate the affected land use after all. The administrative hearing process failed to
reveal and deploy this knowledge to rational ends because, operating in contravention of



                                              53
municipal law, it was nothing more than a rubber stamp. It acted as if its role were not to
resolve disputes but to close cases, not to find facts but to check boxes. Compounding
matters, city personnel did not disclose the relevant facts to it anyway. The litigation
phase, forced on Beames by the unlawful administrative hearing, was conducted coldly
on the city’s side, to the disadvantage of all. All the involved personnel behaved at each
stage as though there were simply no decisions to be made and no judgment to be
exercised by them.
       A fee award would have been called for under section 1988 even if the course of
events had not been such an object lesson. The section 1983 claim would still have been
“substantial” and that claim and the state law claim based on the municipal code would
still have had a common nucleus of operative facts.
                                      DISPOSITION
       The order denying the motion for attorney’s fees is reversed. The matter is
remanded to the trial court, which is directed to determine a reasonable fee and grant the
motion.
                                                                 _____________________
                                                                              SMITH, J.
WE CONCUR:


 _____________________
POOCHIGIAN, Acting P.J.


_____________________
MEEHAN, J.




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