Zeleny v. Brown

Background

Michael Zeleny challenged permitting processes used by the city of Menlo Park in connection with protests he staged against a venture capital fund. He challenged the city’s Special Event Permit process and film-permitting process, among other claims. After summary judgment proceedings, Zeleny obtained judgment against the city on his facial challenge to the city’s permitting process as unconstitutionally vague. He did not prevail on all claims or against all defendants.

The city moved to dismiss Zeleny’s challenge to the Special Event Permit process for lack of standing. It argued that Zeleny did not need such a permit because the city had told him that his protest did not qualify as a special event. Zeleny argued that his planned protest met the city’s published criteria for requiring a permit and that statements by the city’s Police Chief indicated he could be arrested without a film permit or Special Event Permit.

Zeleny also requested $1,761,162.75 in attorney’s fees. That request included a lodestar of $1,174,108.50—the number of reasonably billed hours multiplied by reasonable hourly rates—and a 50% increase based on the difficulty and unpopularity of the case. The city challenged fees associated with unsuccessful or unrelated claims, unnecessary work, inadequate billing descriptions, and duplicative work.

Standing and dismissal motion

The court treated the city’s filing as a new motion to dismiss rather than as an improper motion for reconsideration. It explained that standing may be raised at any point in the litigation. The court denied Zeleny’s request for sanctions based on the city’s filing.

Standing is the constitutional requirement that a plaintiff show a concrete injury caused by the challenged conduct that a court can remedy. The court held that Zeleny met that requirement. His protest involving a gun arguably fell within the city’s published criteria for a Special Event Permit. The Police Chief had, at least in some statements, treated the permit as one way Zeleny could lawfully conduct the protest and had indicated that proceeding without one could lead to arrest. The court also noted Zeleny’s prior arrest by the city for similar reasons and found a substantial risk of future harm.

The court further held that Zeleny could challenge the permitting process as a prior restraint—a licensing system that may limit speech before it occurs. In that context, standing requirements are relaxed, and a person need not necessarily apply for and be denied a permit. The court concluded that Zeleny had suffered an injury traceable to the city’s conduct and redressable by a favorable ruling. It therefore denied the city’s motion to dismiss.

Attorney’s fees

The city did not dispute that Zeleny was entitled to fees for his successful claims, that no special circumstances justified denying fees, or that his attorneys’ hourly rates were reasonable. The court concluded, however, that Zeleny’s entirely unsuccessful challenge to California’s open-carry ban was unrelated to his successful claims. It also found that some unsuccessful claims were related to the successful claims but that Zeleny’s overall success was limited because he prevailed on only one type of claim against one defendant.

The court used the city’s challenge to 555 hours of work as a ceiling for fees connected to unrelated claims. It struck 50% of the fees challenged as unrelated, reducing the lodestar by $186,470.50 to $987,638. The court also found that some additional reduction for unnecessary work and imperfect recordkeeping would have been appropriate, but it concluded that this reduction was offset by a smaller increase for the difficulty and unpopularity of the case. The court did not apply the requested 50% multiplier.

Disposition

Judge Richard Seeborg denied the city’s motion to dismiss, denied Zeleny’s request for sanctions, and granted Zeleny’s motion for attorney’s fees as modified. The court awarded Zeleny $987,638 in attorney’s fees.