The Court of Appeals has jurisdiction pursuant to 28 U.S.C. Section 1292(a).

    A trial court's ruling on a motion for a preliminary injunction will be reversed only if the district court abused its discretion.  An abuse of discretion exists only if the trial court's decision was based on clearly erroneous findings of fact or an erroneous legal standard.  Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 (9th Cir., 2001).

    When reviewing the grant or denial of a preliminary injunction, the apellate court's "inquiry is narrow".  It does not decide whether the district court reached the correct result but, rather, simply whether the court applied the apropriate legal principles and that its factual findings were not clearly erroneous.  California Council Political Action Comm. v. Scully, 164 F.3d 1189, 1190 (9th Cir., 1999).

    1. Did the district court correctly rely on Evans v. Jeff for the proposition that settlements thaat include attorney's fees are not unconstitutional?

    2. Did the district court correctly find that the evidence submitted by Plaintiff does not demonstrate that she is entitled to prevail on the merits?

    This case arises out of an earlier federal civil rights case filed by Plaintiff on March 15, 1999.  The earlier civil rights case, Bernhardt v. Santa Monica College, et al. CV 99-2598 JSL, alleged, inter alia, that County law enforcement officials used excessive force on her and falsely imprisoned her ("the underlying action").  On October 8, 1999, the disctrict court dismissed the County defendants and other defendants for failure to state a claim.  The district court dismissed the remainder of the underlying action in February, 2000.

    On Octgober 4, 1999, while the underlying action was pending, Plaintiff filed the instant case, alleging that her inability to hire a lawyer to represent her in the underlying case was due to the County's policy of settling civil rights claims for a lump sum including all attorney's fees, in violation of the Fees Act, 28 U.S.C. Section 1988.  The trial court dismissed this case for lack of standing.

    Plaintiff appealed the dismissal of both cases.  In separate orders, the Ninth Circuit affirmed the dismissal of the underlying action, but reversed the dismissal of this case and remanded it for further proceedings.  Specifically, in this case, the Ninth Circuit held that wil Plaintiff may be able to maintain a cause of actio for damages, Plaintiff's claims for prospective relief were moot because the underlying action was no longer pending.  Bernhardt v. County of Los Angeles,, 279 F.3d 862 (9th Cir., 2002)  Notwithstanding this Court's holding, on remand, Plaintiff filed a motion for a preliminary injunction that would prohibit the County from entering into any settlement that "inhibits, interferes with, or prohibits lawyers from applying for attorney's fees un 42 U.S.C. Section 1988 (or any similar statute) including by [sic] not limited to 'lump sum including all attorney's fees settlements."  Plaintiff's Proposed Preliminary Injunction, Excerpt of Record ("ER"), PI, 1:22-26.

    On July 18, 2002, the trial court denied Plaintiff's motion for preliminary injunction.  ER 48.  In its Findings of Fact and Conclusions of Law Re Order Denying Plaintiff's Motion for Preliminary Injunction, the trial court held that Plaintiff failed to show (1) that she will probably prevail on the merits, (2) that she will suffer irreparable injury, (3) that her lawsuit presented a serious question, (4) that the balance of potential harm weighs in her favor, or (5) that the public interest favors granting relief.  ER 63.

    Plaintiff now appeals the trial court's ruling.

    International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819 (9th Cir. 1993) sets forth the standard for issuance of a preliminary injunction:
 

Traditionally, a court may issue a preliminary injunction if it determines: (1) the moving party will suffer irreparable injury if the relief is denied; (2) the moving party will probably prevail on the merits; (3) the balance of potential harm favors the moving party; and, depending on the nature of the case; or (4) the public interest favors granting relief.  This court has also adopted an "alternative standard" under which the moving party may meet its burden by demonstrating either: (1) a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted; or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in its favor.  Id.  The alternative standards "are not separate tests but the outer reaches of a single continuum."  Essentially, the trial court must balance the equities in the exercise of its discretion.  Id. at 822 [Internal citations omitted].
 

    By way of this lawsuit, Plaintiff seeks a ruling that settlements which include attorney's fees are unconstitutional.  The United States Supreme Court has already rejected this argument and held that such settlements are both legal and contemplated by the very same statute under which Plaintiff is bringing this action.

    In Evans v. Jeff D.,  475 U.S. 717, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1985) [sic], the Supreme Court was "unanimous in councluding that the Fees Act [42 U.S.C. Section 1988] should not be interpreted to prohibit all simultaneous negotiations of a defendant's liability on the merits and his liability of [sic] his opponent's attorney's fees." Id. at 739.
 
    The Evans Court examined a settlement agreement in a class action suit in which the defendants offered a settlement that equaled or exceeded what respondents reasonably expected to obtain through trial, but conditioned the settlement on a waiver of attorney's fees.  Id.  Because the suit was a class action, the settlement could not be executed without court approval. Id.  Despite protest from the plaintiff's counsel regarding the attorney's fee waiver, the trial court approved the settlement.  Id.  The Court of Appeal issued an emergency stay that invalided the fee waiver and left standing the remainder of the settlement premised on the "strong federal policy embodied in the Fees Act", which "normally requires an award of fees to prevailing plaintiffs in civil rights action".  Id. at 725.

    In reversing the Court of Appeal, the Supreme Court expressly stated:
 

[W]e believe that a general proscription against negotiated waiver of attorney's fees in exchange for a settlement on the merits would itself impede vindication of civil rights, at least in some cases, by reducing the attractiveness of settlement . . . . [T]he settlement of litigation provides benefits for civil rights plaintiffs as well as defendants and is consistent with the purposes of the Fees Act.  'There is no evidence, however, that Congress, in considering Section 1988, had any thought that civil rights claims were to be on any different footing from other civil claims insofar as settlement is concerned.  Indeed, Congress made clear its concern that civil rights plaintiffs not be penalized for "helping to lessen docket congestion" by settling their cases out of court.' Id. at 732-733.  [Internal citations omitted].
 

    Plaintiff argues that her case constitutes a possible exception created by the Evans Court.  In its decision, the Supreme Court left open the question of a long term effect that

the pool of lawyers willing to represent plaintiffs in [civil rights] cases might shrink, constricting "effective access to the judicial process' for persons with ivil rights grievances which the Fees Act was intended to provide . . . That the 'tyranny of small decisions' may operate in this fashion is not to say that there is any reason or documentation to support such a concern at the present time . . . . We believe however, the likelihood of this circumstance arising is remote.  Evans v. Jeff, supra, 475 U.S. 717 at 742. [Internal citations omitted].
 

    With her motion for a preliminary injunction, Plaintiff did submit two declarations from attorneys who she contends would have represented her but for the County's alleged settlement policy.  The first, Michael Mitchell, is the lawyer representing her at present, and the second is attorney Robert Alan Seeman.  Mr. Seeman's declaration states, "The [County's alleged policy of entering into 'lum sum, including all attorney's fees' settlements] has precluded me from representing many victims of civil rights abuse . . . . If the court were to declare the policy unconstitutional or enjoin its enforcement, I would be able and willing to represent such victims".  ER 39, Declaration of Robert Seeman, p. 2:1-6.  This statement does not indicate that Mr. Seeman did not represent Plaintiff as a result of the County's alleged policy.  Thus, Plaintiff can demonstrate only a single lawyer who, but for the County's policy, would take her case.

    Therefore, Mr. Mitchell is the sole attorney who has declined to represent Plaintiff because of the County's alleged settlement policy. [FN However, since he represents her at present, the Court may question whether Plaintiff will suffer -- or has suffered -- irreparable harm if the trial court'ss ruling is affirmed.]  Plaintiff cannot establish a factual basis for her motion with one -- or even two -- lawyers who were unwilling to accept her case.  As the district court's decision states: "Plaintiff . . . has not shown that the pool of available lawyers willing to take civil rights cases has shrunk in an appreciable manner, that anys such shrinkage is a result of the County's policy, or that [Plaintiff's] inability to obtain counsel in this particular case is a result of the aggregate effect of the County's alleged practice of settling civil rights cases inclusive of attorney's fees, rather than the merits of her cases."  See ER 63, Trial Court's Findings of Fact and Conclusions of Law, p. 10:3-11:2.  Thus, the trial court properly denied Plaintiff's motion.

    Moreover, even if the County's alleged policy of entering into "lump sum including attorney's fees" settlements in civil rights cases was subject to constitutional challenge, it is not properly challenged by Plaintiff.  The purpose of the Fees Act is to encourage meritorious civil rights claims by providing fee shifting to a plaintiff who has proven the validity of her claim by prevailing on the merits.  See Christianburg Garment Co. Equal Employments Opportunity Commission, 434 U.S. 412, 98 S.Ct. 694 (1978)); see also Parks v. Watson, 716 F.2d 646, 664-665 (9th Cir., 1983) ("Congress intended section 1988 to encourage non-frivolous suits by victims of discrimination.")

    Because Plaintiff's underlying case was not meritorious, and, in fact, its dismissal was affirmed by this Court, it is not a claim the Fees Act was designed to encourage.  Therefore, a policy that would cause Plaintiff to be unable to hire a lawyer would not violate Section 1988.

    The Supreme Court has already recognized the probable impact if defendants were prohibited from entering into "lump sum" settlements.  The Evans Court stated:

If defendants are not allowed to make lump-sum offers that would, if accepted represent their total liability, they would understandably be reluctant to make settlement offers.   As the Court of Appeals observed, 'many a defendant would be unwilling to make a binding settlement offer on terms that left it exposed to liability for attorney's fees in whatever amount the court might fix on motion of the plaintiff.'  720 F.2d, at 477. Id., at 6-7

[t]he adverse impact of removing attorney's fees and costs from bargaining might be tolerable if the uncertainty introduced into settlement negotiations were small.  But it is not.  The defendants' potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits . . . . Undoubtedly there are many other civil rights actions in which potential liability for attorney's fees may overshadow the potential cost of relief on the merits and darken prospects for settlement if fees cannot be negotiated.

    In sum, the Supreme Court recognized, in Evans, the strong public policy concerns in favor of "lump sum" settlements, as well as the hardship a defendant would face in the absence of such settlements.  Further, the effect of the injunction sought by Plaintiff would necessarily ripple throughout all of the civil rights litigation in which the County, or an employee or agent of the County, is a defendant.  In light of the public policy considerations, and the tremendous impact such a move would have on the County's ability to handle its litigation, the trial court properly denied Plaintiff's motion.

        Moreover, during Plaintiff's last appeal to the Ninth Circuit, this Court addressed Plaintiff's request for proscriptive relief in this suit and found it moot.  The subject of this lawsuit was Plaintiff's inability to obtain counsel in her first Section 1983 case, Bernhardt v. Santa Monica College, et al, CV 99-2598 JSL (FN  Bernhardt v. Santa Monica College, et al, case no. 99-CV-2598 JSL was dismissed by this Court on October 15, 1999.  Plaintiff appealed that Order, which was affirmed by the Ninth Circuit on April 11, 2002.  Plaintiff petitioned the U.S. Supreme Court for review.  The Supreme Court denied Plaintiff's petition on May 13, 2002. ER 54, Ex. 1.  A copy of the Supreme Court docket is attached to ER 54 as Exhibit 2]  In this Court's earlier decision remanding this case, the Court expressly recognized that the dismissal of the underlying Section 1983 case, which had been affirmed, rendered Plaintiff's suit moot:
 

Where the activities sought to be enjoined already have occurred, and the appellate courts cannot undo what has already been done, the action is moot, and must be dismissed.  Seven Words, 260 F.3d at 1095.  Because the appeal in Bernhardt's underlying action has been dismissed and that case is no longer pending, we conclude that Bernhardt's claims for prospective relief are moot.

    The operative complaint in the instant appeal is the very same one that was remanded by the Ninth Circuit in its February 4, 2002 Order.  Therefore, Plaintiff's motion for preliminary injunctive relief is also moot and must fail.

    For the foregoing reasons, Defendants//Appellees County of Los Angeles and Lloyd W. Pellman respectfully request that this Court affirm the trial court's denial of the motion for preliminary injunction.

DATE:  January 10, 2003                                                LLOYD W. PELLMAN
                                                                                       County Counsel

                                                                                        By Lauren M. Black
                                                                                             Deputy County Counsel