Bullock v. City & County of San Francisco

“The ordinance defines ‘residential unit’ as a hotel guest room occupied by a permanent resident as of September 23, 1979; a ‘permanent resident’ for purposes of the ordinance is a person who occupied a hotel guest room for at least 32 consecutive days on that date. A ‘residential hotel’ is any building containing a ‘residential unit’ as of September 23, 1979. (§ 41.4.)

“Exemptions and exceptions are provided in the ordinance. It does not apply to residential hotels which had commenced substantial capital improvements or rehabilitation work prior to the effective date of the ordinance for the purpose of converting the hotel to another use; it also specifically permits a residential hotel to rent any vacant residential unit to tourists during the designated tourist season, May 1 to September 30. (§41.16.)

“According to the terms of the ordinance, hotel owners and operators are required to submit to the . . . Bureau . . . information on the number of units falling within the residential classification. Then, the number of units the owner is required to maintain for residential use is certified. (§ 41.6.)” (Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892 , 898-899 [ 223 Cal.Rptr. 379 ], [original italics, fn. omitted].)

In October of 1981 plaintiff filed a claim for exemption from the 1981 Ordinance on the ground that the hotel’s conversion had been partially completed. A hearing officer issued a decision denying plaintiff’s claim in February of 1983. The Bureau adopted this decision. Plaintiff thereupon filed a petition seeking a writ of administrative mandamus. In November of 1983 plaintiff amended his pleading to allege causes of action for (1) declaratory relief to the effect that the 1981 Ordinance on its face and as applied was “invalid . . . under the Federal and State Constitution^] and Federal, State and local laws” in 21 particulars, and injunctive relief restraining the City from enforcing the 1981 Ordinance, (2) a taxpayer’s action seeking to enjoin the City from expending money to enforce the 1981 Ordinance, (3) damages pursuant to Code of Civil Procedure section 1095, and (4) attorneys’ fees pursuant to Code of Civil Procedure section 1021.5.

The following month, pursuant to a stipulation by the parties, the court ordered that the preliminary injunction would “remain valid and in full force and effect until entry of a final binding judgment in this action.” Also in May of 1984 the Bureau issued plaintiff a “Certificate of Use” which “authorize[d] the operation of 42 residential rooms [and] 20 tourist rooms” at the hotel.

In May of 1985 leave to intervene was granted the Abigail Hotel Tenants Association and the North of Market Planning Coalition.

In September of 1985 the board of supervisors enacted an ordinance which changed the zoning classification of plaintiff’s hotel and specified its inclusion within the North of Market Residential Special Use District.

In January of 1986 plaintiff filed a supplemental complaint and second amended petition which included a number of common law causes of action in addition to the entirety of his first amended petition and complaint. Nor was this all; the most notable new feature was plaintiff’s addition of causes of action based upon 42 United States Code sections 1983, 1985, and 1986.

The following month Division One of this court determined that the first version of 1981 Ordinance (No. 15-81) was “illegal” because its enactment was not preceded by an environmental impact report as required by the California Environmental Quality Act. (Terminal Plaza Corp. v. City and County of San Francisco, supra, 177 Cal.App.3d 892 at pp. 902-905.) The court noted that “[t]he defect was cured, however, by reenactment of the ordinance following an environment evaluation and issuance of a negative declaration.” (Id. at p. 905, fn. 7.)

The City moved to strike certain portions of plaintiff’s latest pleading (e.g., the administrative mandamus petition already decided by Judge Poliak, and various portions relative to damages), and demurred to the rest.

“I intend to go out of the business of residential rentals entirely and in complete good faith, in reliance on my rights under state law to do so once I have made the requisite filings noted above, and I have operated the Abigail Hotel as I have in reliance on my legal and equitable right to cease renting any residential rooms and thereafter to operate entirely as a transient hotel

The trial court denied the City’s request for a temporary restraining order, but directed plaintiff to show cause why a preliminary injunction should not issue.

Plaintiff opposed the proposed injunction with a wealth of materials supporting two lines of argument. Plaintiff’s first objection was based on the relative hardship of granting or denying an injunction. He produced evidence showing that he had refinanced the hotel five times, the most recent being for $1.6 million. Approximately $350,000 had been spent in litigation with the City. None of the $1,077,000 he had expended on his “capital improvement/rehabilitation work” had been recovered. At present the hotel had only four residential tenants, paying $236.92, $240, $110.04, and $11.1.96 per month. Based upon these statistics, plaintiff stated that a preliminary injunction “will put the Hotel out of business, and lead to foreclosure and Federal Bankruptcy proceedings, because the debt service on the hotel is about $190,000 per year . . . and operation requires another $500,000 . . ., and operation as a residential hotel . . . will generate at most $312,480 a year. Even reducing expenses drastically could not make the hotel a profitable enterprise as residential. . . housing. I will be deprived of any reasonable investment backed [sic ] use of my property.” Plaintiff further declared that if the injunction issued “the Hotel and the restaurant in it will have to close, putting 33 people out of work, destroying two businesses, and distressing forty or more present and future Abigail Hotel guests who will be denied, or be put out of, hotel accommodations for which they have contracted and in many instances, presently occupy.” Plaintiff thus submitted that the City’s request should be denied because “[a] preliminary injunction is supposed to preserve, not destroy, the status quo.”

The second aspect of plaintiff’s presentation attacked the legal basis for the City’s request for the injunction. Plaintiff reiterated that his invocation

Hoping to short-circuit plaintiff’s arguments, the City and interveners present an elaborate contention founded on the theory that Judge Poliak’s denial of plaintiff’s administrative mandamus claim supported Judge Dear-man’s subsequent conclusion that the denial was res judicata as to the causes of action plaintiff had outstanding at the time the opposing motions for judgment on the pleadings were submitted. The heart of this argument is that Judge Poliak’s ruling qualifies as a final judgment because plaintiff could have appealed from it, but failed to do so.

Before Judge Poliak ruled on it, plaintiff’s mandamus claim had been joined in plaintiff’s first amended complaint with causes of action for declaratory and injunctive relief. That joinder was clearly permissible. (See Highland Development Co. v. City of Los Angeles (1985) 170 Cal.App.3d 169 , 179 [ 215 Cal.Rptr. 881 ].) It is true that denials of administrative mandamus claims have been treated as appealable final judgments within the meaning of Code of Civil Procedure section 1064, notwithstanding the fact that additional claims have not yet been resolved by the trial court. (See id. at pp. 178-179; Elmore v. Imperial Irrigation Dist. (1984) 159 Cal.App.3d 185 , 190-192 [ 205 Cal.Rptr. 433 ]; California Teachers Assn. v. Board of Education (1980) 109 Cal.App.3d 738 , 750-752 [ 167 Cal.Rptr. 429 ].) Plaintiff chose not to appeal from Judge Poliak’s “Order Denying Petition And Statement Of Decision,” which all parties treat as intended to be the final determination on the merits of plaintiff’s mandamus claim. Judge Poliak’s ruling thus qualifies as a final judgment, and one that is res judicata. (See Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control (1961) 55 Cal.2d 728 , 733 [ 13 Cal.Rptr. 104 , 361 P.2d 712 ]; Wolford v. Thomas (1987) 190 Cal.App.3d 347 , 357 [ 235 Cal.Rptr. 422 ]; Rest.2d Judgments, § 13, com. e.)

That judgment is, moreover, broader than may appear at first glance. In his cause of action for declaratory and injunctive relief in his first amended petition and complaint (the most current pleading at the time of Judge Poliak’s ruling) plaintiff alleged as follows: “An actual controversy has arisen and now exists between Petitioner Peter J. Bullock and the respondents in that Petitioner claims that the San Francisco Residential Hotel Unit Conversion and Demolition Ordinance and Moritorium [sz'c] are invalid and do not and cannot apply to Petitioner and that Petitioner may lawfully operate his hotel business as a tourist or transient Hotel and may engage in such endeavor without first obtaining a transient hotel license, or alternatively cannot be denied such license under the subject ordinance.

Section 1983 provides in pertinent part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...”

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” (West v. Atkins (1988) 487 U.S. 42 , 48 [ 101 L.Ed.2d 40 , 48-49, 108 S.Ct. 2250 , 2255].) Municipalities are within the scope of section 1983. (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 , 690 [ 56 L.Ed.2d 611 , 635, 98 S.Ct. 2018 ].) Violations of state law, unless they also trench upon federal rights, are not. (See Williams v. Treen (5th Cir. 1982) 671 F.2d 892 , 900.)

“California state courts should apply federal law to determine whether a complaint pleads a cause of action under section 1983 sufficient to survive a general demurrer.” (Greene v. Zank (1984) 158 Cal.App.3d 497 , 503 [ 204 Cal.Rptr. 770 ]; accord Bach v. County of Butte (1983) 147 Cal.App.3d 554 , 563 [ 195 Cal.Rptr. 268 ].) According to federal law, “we are required to construe complaints under [section 1983] liberally.” (Morrison v. Jones (9th Cir. 1979) 607 F.2d 1269 , 1275.) “To uphold a dismissal [for failure to state a claim for relief, the federal counterpart of our general demurrer], it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved.” (King v. Atiyeh (9th Cir. 1987) 814 F.2d 565 , 567.) In line with California practice, federal law requires that the factual allegations of the complaint be accepted as true. (Hall v. City of Santa Barbara (9th Cir. 1986) 797 F.2d 1493 , 1496, fn. 9.) Unlike California, federal courts reviewing a dismissed section 1983 claim look to the entire record assembled in the trial court. (See Manning v. Lockhart (8th Cir. 1980) 623 F.2d 536 , 538; Hurney v. Carver (1st Cir. 1979) 602 F.2d 993 , 996.)

The cause of action that plaintiff attempted to plead appears in his first amended complaint and his amended supplemental complaint. The matters for which he seeks damages pursuant to section 1983 may be grouped into two classifications.

“[A] ‘fair trial in a fair tribunal is a basic requirement of due process.’ [Citation.] This applies to administrative agencies which adjudicate as well as to courts. [Citation.] Not only is a biased decisionmaker constitutionally unacceptable but ‘our system of law has always endeavored to prevent even the probability of unfairness.’ ” (Withrow v. Larkin (1975) 421 U.S. 35 , 46-47 [ 43 L.Ed.2d 712 , 723, 95 S.Ct. 1456 ].) The Ninth Circuit has described “the assurance of a central fairness” at administrative hearings as “[t]he key component of due process.” (Vanelli v. Reynolds School Dist. No. 7 (9th Cir. 1982) 667 F.2d 773 , 779.) “[A] deprivation of procedural due process is an independent constitutional tort, actionable under § 1983 with or without proof of actual injury.” (Burt v. Abel (4th Cir. 1978) 585 F.2d 613 , 616.)

With respect to the administrative agency responsible for the Conversion Ordinance plaintiff alleged as follows: “As its custom and policy . . . [the agency] established and employed a biased and unqualified corps of arbitrators (called Hearing Officers) some of whom were tenants’ rights activists and dominant among whom were a group of [agency] staff ideologically committed to tenants’ interests at the expense of landlords who appeared before the [agency]”; that the agency staff “made and implemented against landlords ... a policy that in adjudications between tenants and landlords, the tenants should win, and . . . which policy included imposition, without notice, of retroactive monetary sanctions upon landlords who sought to exercise their rights under the said Ordinances”; and that as a consequence of the agency having “established and continued inadequate procedures and facilities for its hearings and appeals” the agency “denied appellate rights to landlords (who lost 90% of the adjudications and 75% of the appeals) . . . by establishing and continuing a policy of making inadequate, erroneous and incomplete records of adjudicatory proceedings by electronic means

In many respects plaintiff’s complaint is long on conclusionary allegations but woefully short of the requisite factual allegations. Other materials produced before the trial court are, however, more than adequate to remedy the deficiencies of the actual complaint. (See Manning v. Lockhart, supra, 623 F.2d 536 at p. 538; Hurney v. Carver, supra, 602 F.2d 993 at p. 996.) Accordingly, we conclude that it was error to sustain the City’s general demurrer without granting leave to amend.

Plaintiff has two objections to Judge Dearman’s rulings on the opposing motions for judgment on the pleadings made by interveners and himself. Plaintiff argues in effect that the correct rulings were made on the wrong motions—interveners’ motion should have been denied and his motion should have been granted.

The first part of plaintiff’s contention must be rejected for the reasons stated in part I, ante; as matters stood at the time he had to rule on interveners’ motion, Judge Dearman was correct in granting it. For the reasons stated in part III, plaintiff’s claim for damages pursuant to 42 United States Code section 1983 must be counted among those causes of action which were still outstanding at the time the motions for judgment on the pleadings were made. Because a motion for judgment on the pleadings is the functional equivalent of a general demurrer (see Nunn v. State of California (1984) 35 Cal.3d 616 , 620-621 [ 200 Cal.Rptr. 440 , 677 P.2d 846 ]), because plaintiff’s section 1983 cause of action has been held sufficient to withstand the general demurrer interposed by the City, and because that cause of action was never addressed as part of interveners’ motion, the judgment based upon the granting of that motion must be reversed in part.

The same reasoning requires that the second part of plaintiff’s contention must be rejected. It is fundamentally unfair to fault a trial court for a reason it never had an opportunity to consider. In light of the fact that the City’s demurrer to plaintiff’s cause of action based on section 1983 had been

V

The attack pressed by plaintiff on the attorneys’ fee award made by Judge Dearman pursuant to Code of Civil Procedure section 1021.5 need not detain us long. That statute provides in pertinent part: “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (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 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. . . .” It is a fair reading of the statutory language regarding “a successful party” and “any action which has resulted” that an award of attorneys’ fees pursuant to this statute is premature if the action is still unresolved. Our reversal of the judgment puts much of plaintiff’s action at large again. Because the judgment must be reversed, so must the award order.

The Appeal From the Injunction

Ordinarily, a party challenging the grant of a preliminary injunction must demonstrate that the trial court abused its discretion in evaluating the interrelated factors of (1) “the likelihood that the plaintiff will prevail on the merits at trial,” and (2) “the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63 , 69-70 [ 196 Cal.Rptr. 715 , 672 P.2d 121 ]; accord King v. Meese (1987) 43 Cal.3d 1217 , 1226 [ 240 Cal.Rptr. 829 , 743 P.2d 889 ]; Cohen v. Board of Supervisors (1985) 40 Cal.3d 277 , 286 [ 219 Cal.Rptr. 467 , 707 P.2d 840 ].) In the case at hand, however, plaintiff, claiming that his entitlement under the Ellis Act to withdraw from the residential rental market is absolute and dispositive of all issues, invokes the principle that “when the matter is solely a question of a violation of law the standard of review is not abuse of discretion but whether statutory or constitutional law was correctly interpreted and applied by the trial court.” (California Assn. of Dispensing Opticians v. Pearle Vision Center, Inc. (1983) 143 Cal.App.3d 419 , 426 [ 191 Cal.Rptr. 762 ].)

The Ellis Act is consistent in how it characterizes the relationship between the owner and the occupant of “residential real property.” Without exception, that relationship is described as resting upon a “for rent or lease” basis. (See Gov. Code, §§ 7060, subd. (a), 7060.1, subds. (a), (c)(1), 7060.2, subds. (a), (b), (c), 7060.4, subd. (a), 7060.7, subd. (4).) The point is reiterated by repeated mention of the occupant as a “tenant or lessee.” (See Gov. Code, §§ 7060.2, subds. (a), (b), 7060.4, subds. (a), (b), 7060.6; see also § 7060.7, subd. (2) [“tenants”].) There is also varying terminology such as “residential rental units” (Gov. Code, §§ 7060, subd. (b)(1), 7060.4, subd. (a)) and “accommodations . . . offered ... for residential purposes” (Gov. Code, § 7060.2, subd. (a)) which at the very least demonstrates an emphasis on habitations not of a temporary nature. More specifically, the whole tenor of the Ellis Act demonstrates that the Legislature did not intend its handiwork to encompass owners of hotels offering accommodations to lodgers. This can be seen most clearly by example.

Let us assume that some vacationers from Des Moines are prevented by a hotel owner from occupying hotel rooms for the full period they thought had been reserved by their travel agent. The Ellis Act empowers local government to provide that if accommodations are withdrawn from a market, and “[i]f the accommodations are offered again for rent or lease for residential purposes within one year of the date the accommodations were withdrawn from rent or lease,” the owner can be required to “first offer the

The Ellis Act includes multiple mention of, and allowance made for, municipal rent control. (See Gov. Code, §§ 7060.2, 7060.4, 7060.7, subd. (4).) It also integrates its provisions with those governing unlawful detainer proceedings. (Gov. Code, § 7060.6.) It is unlikely that rent control would apply to the hotel room occupied by our tourists from Des Moines. It is highly improbable that such persons would so overstay their welcome as to require their innkeeper to resort to an unlawful detainer ouster. On the other hand, the presence of occupants whose stay has been sufficiently prolonged to qualify them as residents makes the references to rent control perfectly comprehensible. Unlike lodgers, such persons would have cause to be thankful for the provision granting them the right in unlawful detainer proceedings to “assert by way of defense that the owner has not complied with the applicable provisions” of the Ellis Act. (Ibid.)

There is also proof that the special nature of residential hotels was recognized by the Legislature. It declared that nothing in the Ellis Act “[diminishes or enhances any power which currently exists or which may hereafter exist in any public entity to mitigate any adverse impact on persons displaced by reason of the withdrawal from rent or lease of any accommodation in any residential hotel, as defined by Section 50519 of the Health and Safety Code . . . .” (Gov. Code, § 7060.1, subd. (c)(1).) At the time the Ellis Act was enacted the definition of “residential hotel” it incorporated meant “any building containing six or more guestrooms intended or designed to be used, or which are used, rented, or hired out, to be occupied, or which are occupied, for sleeping purposes by guests, which is also the primary residence of such guests, but does not mean any hotel which is primarily used by transient guests who do not occupy such hotel as their primary residence(Former Health & Saf. Code, § 50519, subd. (b)(1),

The only precedents discussing the preemptive effect of the Ellis Act involved provisions of a rent control ordinance enacted by the City of Santa Monica. That ordinance forbade landlords renting units subject to rent control from receiving a permit to remove the units from the rental market unless the landlord could not make a fair return on the units, or unless the landlord promised to develop new units subject to rent control, with a certain percentage priced so as to be affordable by persons of low income. Separate courts in City of Santa Monica v. Yarmark, supra, 203 Cal.App.3d 153 , and Javidzad v. City of Santa Monica (1988) 204 Cal.App.3d 524 [ 251 Cal.Rptr. 350 ], held that these provisions were preempted by the Ellis Act. The court in Yarmark held that one of the primary objectives of the Ellis Act “is to prevent public entities from acting in a manner inconsistent with the Act such as to prevent landlords from withdrawing units ... so they may go out of business.” (City of Santa Monica v. Yarmark, supra, at p. 166.) The court in Javidzad was particularly emphatic in rejecting Santa Monica’s claim that a demolition permit could be denied until the landlord had secured a removal permit conditioned on compliance with the statutory terms mentioned above. The ordinance was held to be preempted “because it impermissibly conditions the landlord’s right to go out of business on compliance with requirements not found in the [Ellis] Act. [fl] . . . Denying a . . . removal permit to a landlord who has gone out of the rental housing business imposes a prohibitive price on the exercise of the right under the Act.” (Javidzad v. City of Santa Monica, supra, 204 Cal.App.3d at pp. 530-531.)

There is no principled basis on which to distinguish section 41.10 from these holdings. Plaintiff has, in no uncertain terms and in accordance with the procedures established by the City, advised the City of his intent to depart the business of renting residential hotel units. (See fns. 5, 12, and

We conclude that section 41.10 is preempted by the Ellis Act and is therefore invalid to the extent it is applied to prevent plaintiff from going out of the residential hotel business. (See Javidzad v. City of Santa Monica, supra, 204 Cal.App.3d 524 at pp. 529-531; City of Santa Monica v. Yarmark, supra, 203 Cal.App.3d 153 at pp. 161-171.) Accordingly, plaintiff’s alleged noncompliance with section 41.10 could not serve as the basis for the preliminary injunction.

(C)

We have thus far seen that the Ellis Act is applicable to plaintiff’s situation and that section 41.10 of the Conversion Ordinance cannot be used to impede plaintiff’s departure from the residential hotel business. Because the trial court accepted the City’s erroneous arguments concerning the interaction between section 41.10 and the Ellis Act, there occurred an error of law that compels reversal. (See Hunter v. City of Whittier, supra, 209 Cal.App.3d 588 at pp. 595-596; California Assn. of Dispensing Opticians v. Pearle Vision Center, Inc., supra, 143 Cal.App.3d 419 at p. 426.)

Nor can the injunction be upheld according to the traditional “interim harm” and “likelihood of prevailing on the merits” factors. (See fn. 12 and accompanying text, ante.) The first of these factors clearly favors plaintiff. When he initially opposed the grant of the preliminary injunction, and later when he sought to have it modified, plaintiff presented uncontradicted evidence that the injunction would and was destroying his business and driving him into insolvency. These dire prophecies were not idle bleatings: during the pendency of these appeals plaintiff filed for bankruptcy, and foreclosure proceedings were commenced against his hotel. These consequences qualify as irreparable injuries to plaintiff. (See Greenfield v. Bd. of City Plan. Commrs. (1935) 6 Cal.App.2d 515 , 519 [ 45 P.2d 219 ].) In addition, plaintiff made an unchallenged showing that the injunction would cause unemployment for the staff of the hotel and its restaurant, and would

With the equities so lopsidedly and unequivocally favoring plaintiff, the only possible conclusion is that the trial court abused its discretion in granting the injunction and then by refusing to modify or dissolve it. (See Continental Baking Co. v. Katz (1968) 68 Cal.2d 512 , 527 [ 67 Cal.Rptr. 761 , 439 P.2d 889 ]; Sullivan v. Fox (1987) 189 Cal.App.3d 673 , 683-684 [ 235 Cal.Rptr. 5 ].)

(D)

The City sought injunctive relief by its complaint and its application upon two grounds. The first involved plaintiff’s alleged noncompliance with the Conversion Ordinance. As we have seen, this argument is trumped by plaintiff’s invocation of the Ellis Act. The second ground was based upon the supposed violation of particular zoning ordinances that would occur if plaintiff converted his hotel to tourist use. These zoning ordinances do not figure in the terms of the injunction, and the parties agree that they were not a basis for the injunction. The following is for the guidance of the trial court and the parties should the City base a renewed application for an injunction on the purported zoning violation.

The ordinances in question concern the North of Market Residential Special Use District. We have previously held that plaintiff has pleaded a cause of action for violation of his constitutional rights with respect to the inclusion of his hotel within that district. (See pt. Ill, ante.) Whether plaintiff is able to substantiate his allegations is an issue which must await future developments. In the meantime, however, the ordinances remain clothed with the presumed constitutionality afforded to all legislative enactments. (See County of Sonoma v. State Energy Resources Conservation etc. Com. (1985) 40 Cal.3d 361 , 368 [ 220 Cal.Rptr. 114 , 708 P.2d 693 ].) Nothing in this opinion should be construed otherwise.

Nor should anything in this opinion be construed to mean that the Ellis Act has in effect immunized plaintiff from otherwise valid provisions of the Conversion Ordinance and the ordinance establishing the North of Market Residential Special Use District. By enacting those two ordinances the City

The City is therefore not precluded from seeking to have enjoined a violation of those ordinances claimed to be impending, so long as this claim is not used as a pretext for halting plaintiff’s departure from the residential hotel business. On the other hand, should the City make such an application, plaintiff will be entitled to direct the trial court’s attention to his pending attack on the possible infirmity of the ordinances as applied to him. It will then be the trial court’s responsibility to make an assessment of the parties’ respective prospects of prevailing, just as it would as if such an application was being presented in the first instance.

Our dispositions are as follows: In No. A043073, with respect to plaintiff’s cause of action based upon 42 United States Code section 1983, the judgment is reversed and the cause is remanded to the trial court with directions to vacate its order of September 9, 1987, sustaining the general demurrer without leave to amend, and to make a new order in conformity with part III of this opinion. In all other respects the judgment is affirmed. The order awarding interveners attorneys’ fees pursuant to Code of Civil Procedure section 1021.5 is reversed. Plaintiff shall recover his costs of appeal.

In Nos. A044386 and A046047, the order granting the preliminary injunction, and the order denying plaintiff’s motion to modify the injunction, are reversed. Plaintiff shall recover his costs of appeal.

Channell, J., and Perley, J., concurred.

The petition of respondent City and County of San Francisco for review by the Supreme Court was denied September 20, 1990.