Jessen et al v. County of Fresno et al

Filing 86

ORDER DENYING DEFENDANT CITY OF CLOVIS' MOTION FOR ATTORNEYS' FEES (Doc. No. 74 ) signed by District Judge Dale A. Drozd on 3/21/2019. (Thorp, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID JESSEN and GRETCHEN
JESSEN,
Plaintiffs,

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v.
COUNTY OF FRESNO and CITY OF
CLOVIS,

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No. 1:17-cv-00524-DAD-EPG

ORDER DENYING DEFENDANT CITY OF
CLOVIS’ MOTION FOR ATTORNEYS’
FEES
(Doc. No. 74)

Defendants.

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This matter came before the court on March 12, 2019 for hearing on a motion for

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attorneys’ fees brought on behalf of defendant City of Clovis. (Doc. No. 74.) Attorney Richard

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Belardinelli appeared on behalf of plaintiffs. Attorney Kevin Allen appeared telephonically on

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behalf of moving defendant City of Clovis (“City”) and attorney Leslie Dillahunty appeared on

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behalf of non-moving defendant County of Fresno. Following oral argument, the motion was

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taken under submission. For the reasons stated below, the City’s motion for attorneys’ fees will

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be denied.

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The factual background of this case has been addressed in prior orders of this court and

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need not be repeated here. (See Doc. No. 64 at 2–4.) On January 7, 2019, the court issued an

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order granting defendants’ motions for summary judgment and directing the Clerk of the Court to

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enter judgment in favor of defendants and close the case. (Doc. No. 64.) On February 4, 2019,
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the City filed the motion for attorneys’ fees now pending before the court. (Doc. No. 74.) The

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City seeks $51,496 in attorneys’ fees against plaintiffs for pursuing a lawsuit that it contends

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“became frivolous after the close of fact discovery or, the very latest, after expert disclosures.”

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(Doc. No. 74 at 1–2.) Plaintiffs filed their opposition on February 19, 2019, and the City filed its

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reply on March 5, 2019. (Doc. Nos. 78, 81.)

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Pursuant to 42 U.S.C. § 1988(b), the court, in its discretion, may award reasonable

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attorneys’ fees to the prevailing party in a case brought under 42 U.S.C. § 1983. Although this

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provision does not distinguish between prevailing plaintiffs and prevailing defendants, courts

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have interpreted the statute as treating the two differently. A prevailing defendant in a § 1983

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action may be awarded attorneys’ fees under § 1988 only when the plaintiff’s action is “frivolous,

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unreasonable, or without foundation.” Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1060

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(9th Cir. 2006) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). In

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determining whether this standard has been met, courts must avoid ‘post hoc reasoning by

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concluding that, because a plaintiff did not ultimately prevail, his action must have been

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unreasonable or without foundation.” Id. “A defendant can recover if the plaintiff violates this

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standard at any point during the litigation, not just at its inception.” Galen v. Cty. of Los Angeles,

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477 F.3d 652, 666 (9th Cir. 2007). “A case may be deemed frivolous only when the ‘result is

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obvious or the . . . arguments of error are wholly without merit.’” Karam v. City of Burbank, 352

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F.3d 1188, 1195 (9th Cir. 2003) (quoting McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir.

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1981)). Accordingly, “[a]ttorneys’ fees in civil rights cases should only be awarded to a

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defendant in exceptional circumstances.” Barry, 902 F.2d at 773 (citation omitted).

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Here, there is no dispute that defendants are the prevailing party in this action. (See Doc.

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No. 78 at 6.) In support of its argument for attorneys’ fees, the City quotes extensively from the

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court’s order granting summary judgment and argues that in the discovery phase of this litigation,

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plaintiffs obtained no evidence to support their legal theories. (See Doc. No. 74 at 11, 15–16.)

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However, to the extent that the City relies on the court’s reasoning in granting defendants’

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motions for summary judgment to argue that plaintiffs’ claims were frivolous, the Supreme Court,

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as noted above, has cautioned district courts to “resist the understandable temptation to engage in
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post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action

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must have been unreasonable or without foundation.” Christiansburg, 434 U.S. at 421–22. An

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inability to present evidence establishing a genuine dispute of material fact to defeat summary

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judgment does not necessarily mean that plaintiffs’ claims were frivolous. See Karam, 352 F.3d

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at 1196 (holding that the fact that evidence to support plaintiff’s theory failed to materialize and

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that summary judgment was granted in favor of the defendants did not render plaintiff’s claims

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groundless, without foundation, or frivolous); see also Espinoza v. City of Tracy, No. 15-cv-751

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WBS KJN, 2018 WL 3474476, at *2 (E.D. Cal. July 19, 2018) (denying defendant’s motion for

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attorneys’ fees despite plaintiff’s failure to present any evidence at summary judgment); Murdock

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v. County of Fresno, No. CV F 09-0547 LJO SMS, 2011 WL 13842, at *4–6 (E.D. Cal. Jan. 4,

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2011) (denying defendant’s attorneys’ fees request where plaintiff lacked evidence to support his

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discrimination and retaliation claims). But see Galen v. County of Los Angeles, 477 F.3d 652,

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667–68 (9th Cir. 2007).

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Moreover, the court is not persuaded by the City’s argument that this action became

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frivolous after the close of fact discovery from May 3, 2018 onward, or at the latest, from the date

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of expert disclosures on June 11, 2018 onward. In this case, the City waited until the September

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18, 2018 deadline for the filing of dispositive motions to file its motion for summary judgment.

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(See Doc. No. 41.) After doing so, the City also served a Rule 68 offer of judgment on plaintiffs,

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including a mutual waiver of attorneys’ fees and costs, which plaintiffs did not accept. (See Doc.

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No. 74 at 11; Doc. No. 74-1 at 295–99.) This procedural history indicates that the City continued

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to litigate this action—certainly after either May 3 or June 11, 2018—as if the claims potentially

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had merit. See Shaw v. County of San Diego, No. 06cv2680-MMA (POR), 2009 WL 10672078,

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at *2 (S.D. Cal. Aug. 27, 2009) (“Defendants certainly had the opportunity at any time during the

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litigation to file a motion for summary judgment, much earlier than the last date prior to the filing

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deadline in March 2009. A review of the case’s procedural history and docket entries

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demonstrates that Defendants litigated this case as if Plaintiff’s claims potentially had merit.”).

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Moreover, the City’s argument that plaintiffs’ claims were obviously meritless at the close of

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discovery is belied by the extensive summary judgment briefing in this case, including its request
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for a two-week extension of time to “adequately and fully reply to Plaintiffs’ opposition papers.”

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(See Doc. 50 at ¶ 8.)

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Finally, there is no indication that plaintiffs brought their claims in bad faith. The City

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disputes any relevance of plaintiffs’ subjective intent, noting that the Ninth Circuit has found that

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a prevailing defendant may be awarded fees where the action, “even though not brought in

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subjective bad faith, is frivolous, unreasonable, or without foundation.” Soffer v. City of Costa

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Mesa, 798 F.2d 361, 364 (9th Cir. 1986) (emphasis added) (citation and quotation marks

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omitted); see also Watson Const. Co. v. City of Gainesville, 256 Fed. App’x 304, 305–06 (11th

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Cir. 2007) (“The standard is objective: an action may be deemed frivolous ‘even though not

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brought in subjective bad faith.’”) (quoting Christiansburg, 434 U.S. at 421). At the same time,

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however, the Supreme Court has noted that “if a plaintiff is found to have brought or continued

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such a claim in bad faith, there will be an even stronger basis for charging him with the attorney’s

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fees incurred by the defense.” Christiansburg, 434 U.S. at 422. Accordingly, although a

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plaintiff’s good faith does not preclude a finding of frivolousness, whether or not the claim was

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brought in bad faith may factor into the court’s determination of the appropriateness of awarding

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attorneys’ fees to a prevailing defendant. At the very least, this case lacks the “even stronger

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basis,” id., for awarding attorneys’ fees to defendant, because there is no evidence, nor even a

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contention by the City, that plaintiffs pursued their Monell claims in bad faith.

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In short, the court concludes that this is not an exceptional case where the award of

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attorneys’ fees to a prevailing defendant are warranted. See Barry v. Fowler, 902 F.2d 770, 773

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(9th Cir. 1990) (“Attorneys’ fees in civil rights cases should only be awarded to a defendant in

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exceptional circumstances.”) (citation omitted). Accordingly, defendant City of Clovis’ motion

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for attorneys’ fees (Doc. No. 74) is denied.

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IT IS SO ORDERED.

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Dated:

March 21, 2019
UNITED STATES DISTRICT JUDGE

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