Rothery et al v Blanas et al, No. 2:2008cv02064 - Document 63 (E.D. Cal. 2009)
Court Description: ORDER DENYING 46 Motion for Attorney Fees signed by Judge John A. Mendez on 11/19/2009. (Matson, R)
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 15 16 17 18 19 20 21 22 23 ORDER DENYING DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND FOR SANCTIONS Plaintiffs, 13 14 Case No. 2:08-cv-02064-JAM-KJM JAMES ROTHERY, Esq.; ANDREA HOFFMAN, v. Former Sheriff LOU BLANAS; SHERIFF JOHN MCGINNISS; Detective TIM SHEEHAN; SACRAMENTO COUNTY SHERIFF’S DEPARTMENT, an independent branch of government of the COUNTY OF SACRAMENTO; COUNTY OF SACRAMENTO; STATE OF CALIFORNIA ATTORNEY GENERAL JERRY BROWN; DOES 1 through 25, unknown coconspirators; ATTORNEY GENERAL MICHAEL B. MUKASEY Defendants. ______________________________/ 24 25 26 This matter is before the Court on Defendants former 27 Sheriff Lou Blanas, Sheriff John McGinness, Detective Tim 28 Sheehan and County of Sacramento’s (collectively “County 1 1 2 Defendants”) motion for attorneys’ fees pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1927. (Doc. # 46.) Plaintiffs James 3 Rothery and Andrea Hoffman (collectively “Plaintiffs”) oppose 4 5 6 the motion. (Doc. # 52.) For the reasons set forth below 1 , County Defendants’ motion is DENIED. 7 I. 8 FACTUAL AND PROCEDURAL BACKGROUND This case was brought by Plaintiffs based upon the 9 purported improper denial of their Carry Concealed Weapon 10 11 (“CCW”) permit applications. Plaintiffs alleged they were 12 denied CCW permits by the Sacramento County Sheriff’s Department 13 because they had not contributed to the Sheriff’s election 14 campaign, and that if they had contributed to the campaign, they 15 would have been granted CCW permits. Defs’ Mot. at 1. 16 17 Plaintiffs also claimed that County Defendants were involved in 18 RICO activities which affected their rights. Id. The complaint 19 was dismissed against Sacramento County Defendants by motion 20 pursuant to FRCP 12(b)(6) by Court order on July 27, 2009. 21 (Doc. # 44.) Defendants, State of California and Attorney 22 General Edmund G. Brown were dismissed by motion pursuant to 23 24 FRCP 12(b)(6) by Court order on July 29, 2009. (Doc. # 45.) 25 26 27 1 28 Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 78-230(h). 2 1 2 The instant matter before the Court is County Defendants’ motion for attorneys’ fees and for sanctions. (Doc. # 46.) 3 II. LEGAL STANDARD 4 5 6 7 8 9 10 11 A. 42 U.S.C. § 1988 Section 1988(b) states in relevant part: In any action or proceeding to enforce a provision of . . . [42 U.S.C. § 1983] . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . 42 U.S.C. § 1988(b). Under § 1988 jurisprudence, a prevailing defendant is treated differently from a prevailing plaintiff and 12 fees are not awarded routinely or simply because defendant 13 14 succeeds. See Patton v. County of Kings, 857 F.2d 1379, 1381 15 (9th Cir. 1988). To be awarded fees, a prevailing defendant 16 must demonstrate “plaintiff's action was frivolous, unreasonable 17 or without foundation, even though not brought in subjective bad 18 faith.” Christiansburg Garment Co. v. Equal Empl. Opp. Comm'n, 19 434 U.S. 412, 421, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978). This 20 21 standard is “stringent,” Hughes v. Rowe, 449 U.S. 5, 14, 101 S. 22 Ct. 173, 66 L. Ed. 2d 163 (1980), and the Ninth Circuit 23 repeatedly has recognized that attorneys’ fees in civil rights 24 cases “should only be awarded to a defendant in exceptional 25 circumstances.’” Saman v. Robbins, 173 F.3d 1150, 1157 (9th 26 27 Cir. 1999) (quoting Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 28 1990)). 3 1 2 In assessing whether to award attorneys’ fees, the Ninth Circuit instructs courts to “consider the financial resources of 3 the plaintiff in awarding fees to a prevailing defendant” 4 5 because “the award should not subject the plaintiff to financial 6 ruin.” 7 621 (9th Cir. 1987); see also Patton v. County of Kings, 857 8 Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, F.2d 1379 (9th Cir. 1988) (applying the Miller standard to a 9 case in which plaintiff was represented by counsel). 10 11 12 13 14 B. 28 U.S.C. § 1927 Section 1927 allows the court to award fees against “any attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously.” This section is not specific to 15 any statute, but applies to any civil suit in federal court. 16 17 Hyde v. Midland Credit Mgmt., Inc., 567 F.3d 1137, 1141 (9th 18 Cir. 2009). Further, the statute “explicitly provides for 19 remedies against offending attorneys.” 20 Land Leasing, Inc., 799 F.2d 507, 510 (9th Cir. 1986) (noting Id.; F.T.C. v. Alaska 21 that § 1927 does not authorize recovery from a party, but “only 22 from an attorney or otherwise admitted representative of a 23 24 party”) (emphasis in original) (internal quotations and 25 citations omitted). 26 Attorneys’ fees under § 1927 are appropriate if an 27 attorney's conduct is in bad faith; recklessness satisfies this 28 standard. B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1107 (9th 4 1 2 Cir. 2002); Barber v. Miller, 146 F.3d 707, 711 (9th Cir. 1998) (“An award of sanctions under 28 U.S.C. § 1927 or the district 3 court's inherent authority requires a finding of recklessness or 4 5 bad faith.”). The Ninth Circuit has also required a finding of 6 subjective bad faith, “which is present when an attorney 7 knowingly or recklessly raises a frivolous argument, or argues a 8 meritorious claim for the purpose of harassing an opponent.” 9 Id. (emphasis in original) (quoting In re Keegan Mgmt. Co., Sec. 10 11 Lit., 78 F.3d 431, 436 (9th Cir. 1996)). Moreover, the Ninth 12 Circuit has cautioned that “[s]anctions should be reserved for 13 the ‘rare and exceptional case where the action is clearly 14 frivolous, legally unreasonable or without legal foundation, or 15 brought for an improper purpose.’” Primus Auto. Fin. Servs., 16 17 Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997) (quoting 18 Operating Eng'rs Pension Trust v. A-C Co., 859 F.2d 1336, 1344 19 (9th Cir. 1988)). 20 III. COUNTY DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES 21 County Defendants argue Plaintiffs’ claims against them 22 were unreasonable, meritless, frivolous, or vexatious, and 23 24 brought in bad faith, entitling County Defendants to attorneys’ 25 fees. 26 Plaintiffs’ counsel knew or should have known that Plaintiffs’ § Defs’ Mot. at 4. County Defendants assert that 27 1983 claims lacked any merit based upon the decision in Mehl v. 28 Blanas, 2008 U.S. Dist. LEXIS 8394 (E.D. Cal. Feb. 5, 2008). 5 In 1 2 light of the “stringent” standard in awarding attorneys’ fees to prevailing defendants in § 1983 cases and the Ninth Circuit’s 3 jurisprudence that attorneys’ fees in civil rights cases “should 4 5 only be awarded to a defendant in exceptional circumstances,’” 6 Saman v. Robbins, 173 F.3d 1150, 1157 (9th Cir. 1999) (quoting 7 Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990)), this Court 8 finds that County Defendants have not met their burden of 9 demonstrating that they are entitled to attorneys’ fees. 10 11 Here, Plaintiffs and their attorneys did not act in an 12 unreasonable, frivolous, meritless or vexatious manner. 13 Mehl case was dismissed for a lack of standing. 14 The In Mehl, the Court did not find that the underlying claim regarding the 15 issuance of CCWs lacked merit, but rather dismissed the case for 16 17 lack of standing based on factors that were personal to the See Mehl, p. 10. 18 individual plaintiffs in the that case. 19 the present case, unlike Mehl, both Plaintiffs submitted 20 completed applications. In Additionally, unlike Mehl, neither 21 Plaintiff has any issues pertaining to their mental fitness or 22 procedures for applying which may affect their eligibility for a 23 24 CCW permit. As such, County Defendants’ assertion that based on 25 the dismissal of the Mehl case that Plaintiffs and their 26 attorneys should have recognized the objectively baseless nature 27 of the claims, is without merit. 28 6 1 2 Following the Mehl case, Plaintiffs and their attorneys acted reasonably in filing another case challenging County 3 Defendants alleged practice of denying CCW permits to applicants 4 5 who do not contribute to the Sheriff’s election campaign. 6 Plaintiffs followed Judge Morrison England’s orders in Mehl and 7 took steps to ensure that the standing issues which came forth 8 in that case would not be applicable to the Plaintiffs in this 9 action. 10 11 Accordingly, this Court finds that County Defendants are 12 not entitled to attorneys’ fees pursuant to 42 U.S.C. § 1988 or 13 28 U.S.C. § 1927. 14 Given the lack of standing in Mehl, the Court declined to address the additional substantive grounds 15 identified in the complaint. Thus, Plaintiffs and their 16 17 attorneys were unlikely to know that their claims lacked merit. 18 The burden of prevailing defendants in civil rights cases to 19 collect attorneys’ fees is high. 20 not shown that Plaintiffs or their attorneys acted in an Here, County Defendants have 21 unreasonable, frivolous, meritless or vexatious manner. Nor 22 have County Defendants shown that Plaintiffs’ attorneys 23 24 multiplied the proceedings in this case unreasonably and 25 vexatiously. 26 fees and sanctions is DENIED. As such, County Defendants’ motion for attorneys’ 27 28 7 1 2 3 IV. ORDER 4 5 6 For the reasons stated above, County Defendants’ motion for attorneys’ fees and sanctions is DENIED. 7 8 IT IS SO ORDERED. 9 Dated: November 19, 2009 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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