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

Filing 88

ORDER signed by Judge John A. Mendez on 3/26/13 ORDERING that the CHPD Defendants' MOTION for Attorneys' Fees 79 is DENIED. (Mena-Sanchez, L)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

GARR OOLEY, et al.,
Plaintiffs,

12
v.

13
14

No. 2:12-cv-00095-JAM-CKD
ORDER DENYING DEFENDANTS’ MOTION
FOR ATTORNEYS’ FEES

CITRUS HEIGHTS POLICE
DEPARTMENT, et al.,

15
Defendants.

16
17

This matter is before the Court on Defendants Citrus Heights

18
19

Police Department (“CHPD”), Brian Barron, Janet Schaefer, D.

20

Christensen, Christine Ford, and Chris Boyd’s (collectively the

21

“CHPD Defendants”) Motion for Attorneys’ Fees (Doc. # 79) from

22

Plaintiff Garr Ooley (“Plaintiff”).1

23

motion (Doc. # 80) and the CHPD defendants replied (Doc. # 83).

Plaintiff opposes the

24
25
26
27
28

1

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 March 6, 2013.
1

1
2

I.

BACKGROUND

This case arises from Plaintiff’s allegations that the CHPD

3

Defendants, acting in concert with a group of Plaintiff’s

4

neighbors (the “Neighbor Defendants”), conspired to violate his

5

civil rights.

6

12, 2012 (Doc. # 2).

7

dismiss the claims brought by co-Plaintiff Janis Starkey

8

(“Starkey”) (Doc. # 37), and they answered with respect to

9

Plaintiff (Doc. # 41).

Plaintiff’s first complaint was filed on January
The CHPD Defendants successfully moved to

The CHPD Defendants were awarded

10

attorneys’ fees stemming from Starkey’s claims (Doc. # 56).

11

Neighbor Defendants successfully moved to dismiss all of the

12

claims against them (Doc. # 38).

13

join that motion and subsequent filed a separate motion to

14

dismiss.

15

to amend with respect to Defendant Nicolas Maurer (Doc. # 55).

16

Plaintiff then filed his First Amended Complaint (“FAC”) (Doc. #

17

59) on September 27, 2012.

18

The

Two Neighbor Defendants did not

That motion was successful, but the Court granted leave

The FAC contained claims by Plaintiff against Defendant

19

Maurer and the CHPD Defendants.

The claims against Defendant

20

Maurer were amended in order to comply with the Court’s prior

21

order, but the claims against the CHPD Defendants in the FAC were

22

basically identical to those in Plaintiff’s original complaint,

23

as those claims had never been subject to dismissal.

24

briefing was completed and orders issued on the three motions to

25

dismiss, the CHPD Defendants successfully moved in a fourth

26

motion to entirely dismiss the claims against them in the FAC

27

(Doc. # 76).

28

is the only remaining Defendant.

After

Defendant Maurer, who answered the FAC (Doc. # 61),

2

1

For purposes of the present motion for attorneys’ fees, the

2

CHPD Defendants argue that they are entitled to fees because

3

Plaintiff’s claims against them were frivolous.

4

claims based on 42 U.S.C. § 1983 against the CHPD Defendants on

5

the following theories:

6

1.

The FAC alleged

The right to procedural due process arising from the

7

Fifth and Fourteenth Amendments to the U.S. Constitution, i.e.,

8

wrongful arrest, malicious prosecution, inverse condemnation, and

9

uncompensated taking of property;

10

2.

The right to substantive due process arising from

11

the Fifth and Fourteenth Amendments to the U.S. Constitution,

12

i.e., defamation and quiet enjoyment of property;

13

3.

14

seizures

15

Constitution,

16

The prohibition against unreasonable searches and

property;

17

arising

4.

from

i.e.,

the

Fourth

wrongful

arrest

Amendment
and

to

the

seizing

U.S.

personal

The rights to freedom of religion and to petition

18

the government guaranteed by the First Amendment to the U.S.

19

Constitution; and

20
21

5.

The right to equal protection arising from the

Fourteenth Amendment to the U.S. Constitution.

22

In support of his claims, Plaintiff alleged that the CHPD

23

Defendants made false statements that he was a sexual offender

24

and pedophile during neighborhood meetings.

25

were allegedly made in retaliation for Plaintiff’s part in

26

complaining to Defendant Nicholas Maurer about activities

27

occurring in Defendant Maurer’s residence that Plaintiff and

28

other neighbors found offensive.

The false statements

It was Plaintiff’s theory that
3

1

Defendant Maurer somehow convinced the CHPD Defendants to take

2

retaliatory action.

3

then induced the Neighbor Defendants to conduct a campaign of

4

harassment against him.

5

Plaintiff alleged that the false statements

The remainder of the FAC primarily alleged that Plaintiff

6

was harassed by the CHPD and Neighbor Defendants in a series of

7

minor incidents in which the neighbors allegedly entered property

8

owned by Starkey and harassed Plaintiff.

9

ultimately arrested by CHPD for assault, battery, and vandalism

Plaintiff was

10

after an incident in his driveway.

11

assault and battery in state court but convicted of vandalism.

12

While Plaintiff was in CHPD custody after his arrest, he alleged

13

that Defendant Officer Barron made two statements to him:

14

1) I only answer to two things: the Seventh Day

15

Plaintiff was acquitted of

Adventist Church and my two daughters.

16

2) I am glad to be part of the group that took part in

17

your arrest to remove people like you from this

18

community.

19

FAC ¶ 89.

20
21
22
23

II.

OPINION

A. Legal Standard
“[A] district court may in its discretion award attorney's

24

fees to a prevailing defendant [pursuant to 42 U.S.C. § 1988]

25

upon a finding that the plaintiff’s action was frivolous,

26

unreasonable, or without foundation, even though not brought in

27

subjective bad faith.”

28

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

Christiansburg Garment Co. v. Equal

4

“[T]he

1

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

2

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

3

defendant under § 1988.

4

Superintendent of Sch., 805 F.2d 844, 847 (9th Cir. 1986).

5

applying these criteria, it is important that a district court

6

resist the understandable temptation to engage in post hoc

7

reasoning by concluding that, because a plaintiff did not

8

ultimately prevail, his action must have been unreasonable or

9

without foundation.”

10
11

See Mitchell v. Office of L.A. Cnty.
“In

Christianburg Garment Co., 434 U.S. at 421-

22.
Upon determining that § 1988 fees are warranted, a court

12

must engage in a multi-stage analysis to determine the award

13

amount.

14

starting point is the number of hours worked on the litigation

15

multiplied by the attorneys’ reasonable hourly rate.

16

a party seeking fees prevails on only some of its claims, a court

17

must determine whether the “results obtained” justify a full

18

award which involves two inquiries.

19

plaintiff fail to prevail on claims that were unrelated to the

20

claims on which he succeeded?

21

a level of success that makes the hours reasonably expended a

22

satisfactory basis for making a fee award?”

23

defendant seeking fees has the burden to “establish that fees are

24

attributable solely to the frivolous claims,” which “is from a

25

practical standpoint extremely difficult to carry.”

26

v. Ariz. Dep't of Transp., 683 F.3d 1177, 1189 (9th Cir. 2012)

27

(quoting Harris v. Maricopa Cnty. Superior Court, 631 F.3d 963,

28

972 (9th Cir. 2011)).

Hensley v. Eckerhart, 461 U.S. 424, 433–34 (1983).

Id.

Id.

The

Where

“First, did the

Second, did the plaintiff achieve

5

Id.

Finally, a

Braunstein

1

B. Discussion

2

As a preliminary matter, the Court notes that it previously

3

awarded fees to the CHPD Defendants from Plaintiff Janis Starkey

4

(Doc. # 56).

5

allegations related to Janis Starkey and those related to

6

Plaintiff even though they based their claims on similar legal

7

theories.

8

Plaintiff’s claims.

9

defamation and a campaign of harassment, Starkey alleged that she

There are substantial differences between the

Starkey’s claims were more or less derivative of
While Plaintiff was the alleged target of

10

was generally just a witness to those events.

11

fees against Starkey therefore has no bearing on the present

12

motion.

13

The prior award of

The CHPD Defendants argue that they are entitled to fees

14

from Plaintiff because all of Plaintiff’s claims were frivolous.

15

Their motion focuses on the claims stemming from Plaintiff’s

16

arrest, which the Court determined were barred because Plaintiff

17

was subsequently convicted of a crime in criminal proceedings.

18

The CHPD Defendants’ motion does not directly address the

19

frivolity of Plaintiff’s claims unrelated to his arrest.

20

Plaintiff responds to the motion by rehashing many of the

21

arguments raised in opposition to the prior motion to dismiss.

22

Plaintiff also argues that his defamation claim was not

23

frivolous.

24

pursuant to 42 U.S.C. § 1983 must meet the “stigma-plus test,”

25

and argues that there was an arguable legal basis for his

26

position that the stigma plus test was met.

Plaintiff points out that defamation claims brought

27

The procedural history of this case is such that the current

28

fees motion tends to invite impermissible post hoc reasoning with
6

1

the benefit of 20/20 hindsight.

2

Plaintiff’s claims were dismissed with prejudice, the CHPD

3

Defendants only achieved that result after two complaints, three

4

other motions to dismiss, and two motions for attorneys’ fees

5

were filed and decided.

6

first complaint contained allegations almost identical to those

7

in his FAC, the CHPD Defendants answered the original complaint

8

(Doc. # 41) and did not move to dismiss Plaintiff’s claims as

9

they did with Starkey’s claims.

While it is true that

Additionally, even though Plaintiff’s

It is inconsistent for the CHPD

10

Defendants to first answer Plaintiff’s allegations and then later

11

argue that they were facially frivolous all along.

12

Plaintiff’s claims were so obviously frivolous, then the CHPD

13

Defendants would have logically moved for their dismissal along

14

with Starkey’s.

15

If

There is also merit to Plaintiff’s argument regarding the

16

frivolity of the defamation claim with respect to the stigma-plus

17

test.

18

process clause of the Fourteenth Amendment unless the

19

reputational injury is accompanied by a cognizable injury to a

20

property or liberty interest.

21

1532 (9th Cir. 1991) (citing Paul v. Davis, 424 U.S. 693, 703

22

(1976)).

23

with some other injury is known as the “stigma-plus” test.

24

In this case, the Court held that the activities of private

25

individuals cannot constitute the “plus” component of the test.

26

January 3, 2013 Order (Doc. # 76), at 12.

27
28

An injury to reputation is not protected by the due

Cooper v. Dupnik, 924 F.2d 1520,

The requirement that a reputational injury be coupled
Id.

The Court’s holding was based on the application of several
complicated legal doctrines to a complicated multi-defendant
7

1

case.

2

from Plaintiff’s arrest was barred by the Heck v. Humphrey

3

doctrine in order to determine that the arrest was not a “plus”

4

component.

5

quiet enjoyment is not a cognizable substantive due process claim

6

and did therefore not meet the “plus” requirement.

7

the Court had to consider Plaintiff’s contention that the

8

Neighbor Defendants’ actions, allegedly fomented by the CHPD

9

Defendants, did not satisfy the “plus” component of the test.

First, the Court had to determine that any claim arising

Id.

Next, the Court had to determine that loss of

Id.

Finally,

10

The Court’s holding with respect to this last issue was based on

11

a “state action” requirement in the “stigma-plus” test, but

12

neither side cited controlling authority on this point.

13

the Court’s holding on this claim was based on several complex

14

civil rights doctrines, and the CHPD Defendants did not produce

15

dispositive authority, this unsuccessful claim was only

16

frivolous, if at all, with the benefit of hindsight.

Because

17

Based on the complexity of the issues presented in

18

Plaintiff’s FAC, the fact that the CHPD Defendants answered

19

identical allegations in the original complaint, and a lack of

20

direct dispositive authority provided by the CHPD Defendants

21

supporting the frivolity of Plaintiff’s non-arrest based claims,

22

the Court finds that Plaintiff’s claims are only frivolous in

23

hindsight, but they were not apparently frivolous when they were

24

filed.

25

entitled to fees.

Based on this finding, the CHPD Defendants are not

26

The CHPD Defendants also rely on Fox v. Vice, 131 S. Ct.

27

2205 (2011), to argue that they are entitled to all of their fees

28

if even one of Plaintiff’s claims was frivolous because they were
8

1

required to address the entire FAC in their motion.

2

for the proposition that a prevailing defendant may only recover

3

fees that would not have been incurred but for a frivolous claim.

4

Id. at 2215.

5

Fox decision explains that a motion or other step taken to

6

address a frivolous claim can only justify a fee award where that

7

action would not have been taken but for the frivolous claim.

8

Id.

9

to the entirety of the FAC and its factual allegations through a

10

12(b)(6) motion, even if some of the less viable legal theories

11

were not pursued by Plaintiff.

12

that they are not entitled to fees unless they can show what fees

13

were incurred only because of the frivolous causes of action.

14

Id.

15

Fox stands

The Fox case cuts against the CHPD Defendants.

The

In this case, the CHPD Defendants would have had to respond

Accordingly, Fox makes it clear

The CHPD Defendants make no effort to separate their fees in

16

such a manner, and it is unlikely that they could do so.

This

17

case arises out of a specific series of factual allegations, and

18

while the FAC contains multiple legal theories, the theories are

19

all based on the same alleged wrongs.

20

requires analysis of the same underlying factual allegations as

21

any other claim.

22

F.3d 1177, 1189 (9th Cir. 2012) (holding that separating

23

frivolous from non-frivolous claims based on the same set of

24

facts is extremely difficult).

25

to attorneys’ fees.

To oppose one claim

See Braunstein v. Ariz. Dep’t of Transp., 683

They are therefore not entitled

26
27
28
9

1

III. ORDER

2

The CHPD Defendants’ Motion for Attorneys’ Fees is DENIED.

3

IT IS SO ORDERED.

4
5

Dated: March 26, 2013

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10