Ooley et al v. Citrus Heights Police Dept. et al

Filing 57

ORDER signed by Judge John A. Mendez on 9/10/2012 ORDERING 43 that the Neighbor Defendants are not entitled to an award of attorney's fees pursuant to 42:1988 under either the Sec 1988 standard applied to prevailing defendants or the standard normally applied to prevailing plaintiffs. Their motion is therefore DENIED. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARR OOLEY, et al.,

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1:12-cv-00095-JAM-CKD

Plaintiffs,

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No.

v.
CITRUS HEIGHTS POLICE
DEPARTMENT, et al.,

ORDER DENYING NEIGHBOR
DEFENDANTS’ MOTION FOR
ATTORNEY’S FEES

Defendants.

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This matter is before the Court on Defendants Michelle R.

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Kirwan, Trevor Kirwan, Leland Murray, Jr., Mary Murray, Stephanie

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Murray, Anthony Larish, Dreama Larish, Alan Spinner, and Jonathan

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Hanly’s (collectively the “Neighbor Defendants”) Motion for

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Attorney’s Fees Pursuant to 42 U.S.C. § 1988 (Doc. # 43).1

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Plaintiffs Garr Ooley and Janis Starkey (collectively

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“Plaintiffs”) oppose the motion (Doc. # 47) and the Neighbor

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Defendants replied (Doc. # 52).

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
originally scheduled for August 22, 2012.
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This case arises from allegations brought by Plaintiffs that

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the Neighbor Defendants acted in concert with the Citrus Heights

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Police Department (“CHPD”) to deprive Plaintiffs of their civil

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rights.

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(Doc. # 38), the Court found that Plaintiffs’ civil rights claim

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pursuant to 42 U.S.C. § 1983 was not legally cognizable.

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Court did not reach the merits on Plaintiffs’ related state law

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claims because it declined to exercise jurisdiction over those

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claims, and they were dismissed without prejudice.

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In a prior order filed on May 30, 2012 (the “May Order)

The

In the present motion, the Neighbor Defendants argue that

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they are entitled to an award of fees for all work performed on

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this litigation to the present.

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three arguments in support of their motion.

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citizens not acting under the color of state law, the Neighbor

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Defendants should not have to meet the heightened standard for a

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prevailing defendant seeking fees pursuant to 42 U.S.C. § 1988.

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Second, the action was frivolous so even if the heightened

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standard applies to the Neighbor Defendants, they are still

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entitled to their attorney’s fees.

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requested is reasonable.

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The Neighbor Defendants raise
First, as private

Third, the amount of fees

Plaintiffs oppose the motion on two grounds.

First,

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Plaintiffs rehash the arguments raised in opposition to the

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Neighbor Defendants’ Motion to Dismiss.

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rejected those arguments in its May Order, and they are not a

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proper basis for denying the Neighbor Defendants’ fee motion.

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Second, Plaintiffs argue that the Court never reached the merits

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of the Neighbor Defendants’ state law claims, making an award of

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fees inappropriate at this time.
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The Court already

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Normally, “a district court may in its discretion award

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attorney's fees to a prevailing defendant [pursuant to 42 U.S.C.

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§ 1988] upon a finding that the plaintiff's action was frivolous,

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unreasonable, or without foundation, even though not brought in

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subjective bad faith.”

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Employment Opportunity Comm'n, 434 U.S. 412, 421 (1978).

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bringing of cases with no foundation in law or facts at the

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outset” can give rise to an award of fees to a prevailing

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defendant under § 1988.

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Christiansburg Garment Co. v. Equal
“[T]he

Mitchell v. Office of L.A. Cnty.

Superintendent of Sch., 805 F.2d 844, 847 (9th Cir. 1986).
A defendant seeking fees has the burden to “establish that

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fees are attributable solely to the frivolous claims,” which “is

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from a practical standpoint extremely difficult to carry.”

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Braunstein v. Ariz. Dep't of Transp., 683 F.3d 1177, 1189 (9th

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Cir. 2012) (quoting Harris v. Maricopa Cnty. Superior Court, 631

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F.3d 963, 972 (9th Cir. 2011)).

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For purposes of the present motion, the Neighbor Defendants

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have not met their burden to show that the fees requested arise

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solely from Plaintiffs’ dismissed civil rights claim, and it’s

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probably impossible for them to do so.

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claim was dismissed with prejudice because it was not legally

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cognizable.

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Plaintiffs’ state law tort claims.

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at the Neighbor Defendants’ urging, only because the Court

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declined to exercise supplemental jurisdiction.

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unclear whether or not those claims were meritorious.

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Additionally, the factual bases for Plaintiffs’ faulty civil

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rights claim and the state tort claims are identical.

Plaintiffs’ civil rights

But the May Order did not reach the merits of

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Those claims were dismissed,

Thus, it is

Thus, it

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is imprudent to award the Neighbor Defendants’ attorney’s fees

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when they may still be subject to liability for the exact same

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conduct through other legal theories.

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fee award is not available for frivolous claims intertwined with

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non-frivolous claims).

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the present motion make no distinction between the fees expended

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on dismissal of the civil rights claim against the Neighbor

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Defendants and the dismissal of the state law claims, and an

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award of fees is therefore inappropriate.

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See id. (holding that a

The declarations submitted in support of

The Neighbor Defendants are also not entitled to a fee award

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if the Court accepts their first argument that the frivolity

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standard does not apply to them as private individuals who were

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not acting under color of state law.

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normally applied to plaintiffs, “plaintiffs may be considered

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‘prevailing parties’ for attorney’s fees purposes if they succeed

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on any significant issue in litigation which achieves some of the

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benefit which the parties sought in bringing suit.”

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Tribe v. Oltman, 720 F.2d 1124, 1125 (9th Cir. 1983) (quoting

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Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

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Defendants essentially argue that this more relaxed standard

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should apply to them by analogy because they did not act under

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the color of state law.

Under the § 1988 standard

Lummi Indian

The Neighbor

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In this case, the Neighbor Defendants succeeded in moving to

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dismiss Plaintiffs’ civil rights claim, but they did not move for

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or achieve dismissal of the state law claims on the merits.

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though the civil rights claim was dismissed, the Neighbor

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Defendants are still potentially liable to Plaintiffs under state

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law for the exact same alleged activity that Plaintiffs relied on
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Even

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for their civil rights claim.

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more or less creates a form of tort liability that applies

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exclusively to those acting under color of state law.

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v. City of Independence, Mo., 445 U.S. 622, 635 (1980).

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effect of the dismissal was not that the Neighbor Defendants are

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per se free from liability in tort, it was merely a finding that

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one of the statutory bases for Plaintiffs’ tort claims was not

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legally cognizable.

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their potential tort liability; they have only foreclosed the

This is because 42 U.S.C. § 1983

See Owen
The

The Neighbor Defendants have not reduced

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federal forum in which Plaintiffs wished to proceed.

Plaintiffs

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are free to file the state law claims in state court, making the

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net result of the Neighborhood Defendants motion a mere change of

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venue.

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a significant substantive issue in the litigation such that an

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award of fees is justified.

As a result, the Court cannot find that they succeeded on

Oltman, 720 F.2d at 1125.

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For the foregoing reasons, the Neighbor Defendants are not

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entitled to an award of attorney’s fees pursuant to 42 U.S.C. §

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1988 under either the § 1988 standard applied to prevailing

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defendants or the standard normally applied to prevailing

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plaintiffs.

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Their motion is therefore DENIED.

IT IS SO ORDERED.
Dated: September 10, 2012

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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