8.40.080 Private enforcement.
(1) The city attorney or city prosecutor may bring a civil action to enforce this chapter and to obtain the remedies specified below or otherwise in equity or at law.
(2) Any person acting for the interest of himself, herself, or of its members, or of the general public (hereinafter, “private enforcer”) may bring a civil action to enforce this chapter with the remedies specified below, if both of the following requirements are met:
(a) The action is commenced more than 60 days after the private enforcer has given written notice of the alleged violation of this chapter to the city attorney and to the alleged violator; and
(b) No person acting on behalf of the city or the state has commenced or is prosecuting an action regarding the violation(s) which was or were the subject of the notice on the date the private action is filed.
(3) A private enforcer shall provide a copy of his, her, or its action to the city attorney or city prosecutor within seven calendar days of filing it.
(4) Upon settlement or judgment of any action brought pursuant to subsection (7) of this section, the private enforcer shall give the city attorney or city prosecutor a notice of that settlement or judgment and of the final disposition of the case. No private enforcer may settle such an action, unless the city attorney or the court determines the settlement to be reasonable in light of the purposes of this chapter and any settlement in violation of this requirement may be set aside upon motion to a court of competent jurisdiction by the city attorney or city prosecutor.
(5) Upon proof of a violation of this chapter, the court shall award the following:
(a) Damages in the amount of either:
(i) Actual damages according to proof;
(ii) Two hundred fifty dollars for each violation of this chapter (hereinafter, “statutory damages”) where insufficient or no proof of actual damages has been proved. Unless otherwise specified in this chapter, each day of a continuing violation shall constitute a separate violation. Notwithstanding any other provision of this chapter, no private enforcer suing on behalf of the general public shall recover statutory damages based upon a violation of this chapter if a previous claim brought on behalf of the general public for statutory damages and based upon the same violation has been adjudicated, whether or not the private enforcer was a party to that earlier adjudication.
(b) Restitution to the appropriate party or parties of the gains obtained by way of violation of this chapter.
(c) Exemplary damages, where it is proven by clear and convincing evidence that the defendant is guilty of oppression, fraud, malice, or a conscious disregard for the public health and safety.
(d) Attorney’s fees and costs reasonably incurred by a prevailing party. In any action brought on behalf of the city, attorney’s fees are not recoverable by any person as a prevailing party unless the city manager, or a designee thereof, or an attorney for, and on behalf of, the city elects in writing to seek recovery of the city’s attorney’s fees at the initiation of that individual action or proceeding. Failure to make such an election precludes any entitlement to, or award of, attorney’s fees in favor of any person or the city.
(i) Provided that the city has made an election to seek attorney’s fees, an award of attorney’s fees to a person shall not exceed the amount of reasonable attorney’s fees incurred by the city in that action or proceeding.
(6) Upon proof of at least one violation of this chapter, a private enforcer, the city attorney, city prosecutor, or any peace officer or code enforcement official may obtain an injunction against further violations of this chapter or, as to small claims court actions, a judgment payable on condition that a further violation of this chapter occurs within a time specified by the court.
(7) Notwithstanding any legal or equitable bar, a private enforcer may bring an action to enforce this chapter solely on behalf of the general public. When a private enforcer does so, nothing about such an action shall act to preclude or bar the private enforcer from bringing a subsequent action on his, her, or its own behalf based upon the same facts.
(8) Nothing in this chapter shall prohibit a private enforcer from bringing a civil action in small claims court to enforce this chapter, as long as the amount in demand and the relief sought are within the jurisdiction of small claims court. (Ord. 694 § 1, 2018).