SAMUEL P. KING, Senior District Judge:
Kirk Kilgour and the California Association of the Physically Handicapped, Chapter
This lawsuit arose from renovations to the press box at Pasadena's Rose Bowl. In 1990, the City began planning renovations to the press box and its luxury suites. A controversy arose between the California Attorney General and the City regarding whether the planned renovations complied with state and federal disability access laws. Throughout the summer of 1992, the Attorney General and the City disagreed. The Attorney General maintained that the planned renovations were "obvious and fundamental" violations of Title 24 of the California Administrative Code, and threatened a temporary restraining order halting construction. In contrast, the City maintained that all Title 24 requirements were met. The respective positions were buttressed by conflicting opinions from the California Office of the State Architect. Although the Attorney General did not file suit, settlement discussions were ongoing. In early-September of 1992, the City contacted the Attorney General's special counsel in an effort to settle the dispute. The special counsel represented that a settlement proposal would be forthcoming.
On September 15, 1992, Kilgour filed the instant lawsuit. Kirk Kilgour is a former Olympic athlete who is now a quadriplegic. He is an independent sports announcer and a member of the UCLA Chancellor's Commission on Disabilities. Kilgour sought to enjoin use of the press box until the facility was brought into compliance with federal and state guidelines.
On September 18, 1992, the City and the Attorney General discussed settlement. Four days later, the City then met with Kilgour. The City and the Attorney General again discussed settlement on September 25, 1992. The City indicated to the Attorney General that it wanted to settle with the Attorney General on the same terms as with Kilgour. The City and Kilgour reached a tentative settlement agreement by the end of September. On October 2, 1992, the City and the Attorney General then orally agreed to settle their dispute on the same terms as in the City/Kilgour lawsuit. The City and the Attorney General executed a settlement agreement on October 29, 1992. A stipulated judgment between the City and Kilgour was executed and filed on November 5, 1992.
The stipulated judgment required the City to make many additional modifications to the press box by December 31, 1992. It provided for dismissal of the lawsuit without prejudice, and gave Kilgour the ability to enforce its terms by reopening the lawsuit if the City did not complete renovations. The judgment also allowed parties to seek attorneys' fees within 30 days. Subsequently both parties moved for fees.
After an evidentiary hearing, the trial court issued the order now on appeal. The court found that Kilgour was not a prevailing party because Kilgour was not a significant catalyst in achieving the renovations. The court found that "the matter would have been settled in as timely a fashion without [Kilgour's] lawsuit having ever been filed." Alternatively, the court held that "special circumstances" justified awarding no fees.
1. Prevailing Party.
The primary issue is whether the trial court erred in determining that Kilgour was
In Farrar v. Hobby, ___ U.S. ___, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), the Supreme Court held that obtaining an enforceable judgment of one dollar satisfies the prevailing party requirement (although obtaining only nominal damages bears heavily on a determination of the amount of attorneys' fees awarded). ___ U.S. at ___, 113 S.Ct. at 574. Much is made of the following language from Farrar:
___ U.S. ___, 113 S.Ct. at 573 (citations omitted).
This circuit has not specifically addressed whether the quoted language from Farrar precludes a catalyst theory. Although the Fourth Circuit has held that a catalyst theory is no longer available to establish a plaintiff's status as prevailing party,
In this case, the trial court noted this specific language from Farrar and found "it is clear that the injunctive relief obtained by [Kilgour] in the stipulated judgment entered into by [Kilgour] and the City accomplished what [Kilgour] sought to achieve, in significant fashion." However, the court then proceeded to apply a catalyst test:
Order of February 11, 1993, Excerpts of Record at 157. The court determined that "[a]s plaintiffs have not met their burden of showing that they were a `significant catalyst,' plaintiffs are not the prevailing party in this action." Id. at 160.
Kilgour obtained an enforceable stipulated judgment requiring the City to make substantial modifications to the Rose Bowl press box. Importantly, under the stipulation, Kilgour (not the California Attorney General) may enforce the terms. Kilgour retained the right to reopen the lawsuit if the City did not perform. Contrast this right with the separate agreement between the City and the Attorney General, in which the Attorney General covenants not to sue. Under Farrar, a "material alteration of the legal relationship between the parties" occurs when "the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant." ___ U.S. at ___, 113 S.Ct. at 574. Thus, Kilgour plainly meets Farrar and, accordingly, is a prevailing party. The trial court erred because it should have never reached the catalyst test in making the prevailing party determination.
The City argues that Kilgour was not the prevailing party under Farrar because the stipulated judgment was not "on the merits," pointing out that it never admitted liability. The City, however, incorrectly interprets "on the merits" to mean an adjudication of liability. Farrar makes no distinction between full adjudication of liability and achievement of an enforceable consent judgment. See Farrar, ___ U.S. at ___, 113 S.Ct. at 274 ("material alteration of the legal relationship between the parties" occurs when "the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant."). The City admits that it stipulated to an entry of judgment "for the sole purpose of providing [Kilgour] with a means of enforcing the settlement agreement."
2. Special Circumstances.
The trial court also determined that even if Kilgour was a prevailing party, special circumstances justified an award of no fees. See Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) ("a prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust") (citation and internal quotation marks omitted). The court based its determination primarily on its finding that "the matter would have been settled in as timely a fashion without [Kilgour's] lawsuit having ever been filed."
Kilgour obtained a stipulated judgment and, under Farrar, was therefore a prevailing party. Special circumstances do not exist justifying an award of no fees. This matter is REVERSED and REMANDED for a determination of a reasonable fee.
Edmund F. Sotelo likewise declares that he was "personally involved in managing and supervising the Rose Bowl Press Box Renovation Project." He states: "having reached agreement with the Attorney General's office well before the instant lawsuit, it is my opinion that this lawsuit did not contribute in any way to the City's design modifications to the project." The declaration is also made "under the penalty of perjury" under the laws of the United States.
These statements are inaccurate in two major respects. The City had not agreed to settlement with the Attorney General when the lawsuit was filed. The lawsuit did have an impact on the decision to make modifications. In addition to being inaccurate in those substantial ways, the declarations were highly material to the question before the district court of whether the plaintiff was entitled to counsel fees.