Felarca et al v. Berkeley Unified School District et al

Filing 125

ORDER RE 99 MOTION FOR ATTORNEY'S FEES. Signed by Judge Vince Chhabria on April 10, 2019. (vclc2S, COURT STAFF) (Filed on 4/10/2019)

Case 3:17-cv-06282-VC Document 125 Filed 04/10/19 Page 1 of 3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

YVETTE FELARCA, et al.,

Case No. 17-cv-06282-VC

Plaintiffs,
ORDER RE MOTION FOR
ATTORNEY’S FEES

v.
BERKELEY UNIFIED SCHOOL
DISTRICT, et al.,

Re: Dkt. No. 99

Defendants.
1. Attorney’s fees should only be awarded against civil rights plaintiffs in exceptional
circumstances. See Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636, 645 (9th Cir.
1999). This is an exceptional circumstance: Judicial Watch is entitled to attorney’s fees because
the plaintiffs’ lawsuit was frivolous, and their litigation conduct was unreasonable. See id.
To start, a significant portion of the documents the plaintiffs initially sued to protect from
disclosure had been publicly disclosed months earlier in another suit brought by Ms. Felarca
against BUSD, where she was represented by the same counsel. See generally Felarca v.
Berkeley Unified School District, No. 3:16-cv-06184-RS. The plaintiffs, therefore, had no
reasonable argument to protect those documents from disclosure. The plaintiffs then dragged
their feet in producing a privilege log identifying the documents they sought to protect from
disclosure and the reasons why non-disclosure was warranted. Consequently, the Court was
forced to order the parties to meet and confer at the courthouse for several days to produce that
log. See Dkt. No. 71. There was no reasonable basis for this dilatory conduct by the plaintiffs.
Moreover, the plaintiffs’ First Amendment claims were premised on the obviously
baseless assumption that the First Amendment condemns the “alt-right” while condoning the

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ideological missions of their own organizations. The plaintiffs also mischaracterized the
documents under review. See, e.g., Motion for Summary Judgment at 4, Dkt. No. 76; Reply at 1,
19, 20, Dkt. No. 82. And they failed to grapple with the role Ms. Felarca played in making
herself a topic of public discourse through her physical conduct at public rallies and her
voluntary appearance on Fox News.
2. Judicial Watch requests $317,850 in attorney’s fees, but there are several reasons why
the award should be lower. Cf. Fox v. Vice, 563 U.S. 826, 838 (2011). First, Judicial Watch did
not properly account for its role as an intervenor. See Grove v. Mead School District No. 354,
753 F.2d 1528, 1535 (9th Cir. 1985); Donnell v. United States, 682 F.2d 240, 247 (D.C. Cir.
1982). Therefore, the request should be reduced to reflect the fact that some of the arguments
made by Judicial Watch were duplicative of those made by BUSD. Second, the request should be
reduced to account for delays in the litigation that were the fault of BUSD rather than the
plaintiffs. The request should also be discounted for the time spent making arguments that
pertained to state claims, which were not decided on the merits. See Dkt. No. 90; Fox, 563 U.S.
at 836. Lastly, Judicial Watch’s request doesn’t account for the plaintiffs’ limited financial
resources. See Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 621 (9th Cir. 1987).
Accordingly, the Court awards Judicial Watch $22,000 in attorney’s fees, to be allocated among
the plaintiffs – who are not joint and severally liable – in the following way: Ms. Felarca will pay
$20,000; Ms. Nixon will pay $1,000; and Mr. Stefl will pay $1,000. This allocation reflects the
Court’s impression of each plaintiff’s relative responsibility for the frivolous and unreasonable
conduct described above.1
3. Judicial Watch also moves for $8,309.59 in litigation costs. The Court finds that some
of the expenses were unreasonably high, like those for airfare and hotel rooms. Therefore, the
Court awards $4,000 in litigation expenses, for which the plaintiffs are jointly and severally
liable.
Had Judicial Watch moved to sanction plaintiffs’ counsel, it likely could have recovered a great
deal more from them.
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IT IS SO ORDERED.
Dated: April 10, 2019
______________________________________
VINCE CHHABRIA
United States District Judge

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