Padgett et al v. City of Monte Sereno et al

Filing 1119

ORDER granting 1109 motion related to the lien and STRIKING 1058 notice of lien; denying 1113 motion for relief from previous order regarding attorneys' fees and costs; and denying 1114 motion for indicative ruling. The hearing scheduled for 10/29/2015 is VACATED. (ejdlc4S, COURT STAFF) (Filed on 10/26/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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JOSEPH PADGETT, et al.,

Case No. 5:04-cv-03946-EJD

Plaintiffs,
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v.
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BRIAN LOVENTHAL, et al.,

United States District Court
Northern District of California

Defendants.

ORDER GRANTING MOTION AND
STRIKING LIEN; DENYING MOTION
FOR RELIEF FROM AN ORDER;
DENYING MOTION FOR INDICATIVE
RULING
Re: Dkt. Nos. 1109, 1113, 1114

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In September 2004, Plaintiffs Joseph Padgett (“Mr. Padgett”) and Darla Padgett (“Ms.

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Padgett”) (collectively, “Plaintiffs”) commenced this civil rights action against Defendants City of

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Monte Sereno and various city officials (collectively, “Defendants”). In September 2008, before

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the case proceeded to jury trial, Plaintiffs changed counsel and retained the Law Firm of Kallis &

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Associates P.C. and Bustamante & Gagliasso P.C. (collectively, “trial counsel”) to represent them

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at trial. On June 4, 2009, the jury returned a verdict only for Mr. Padgett, and awarded him

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nominal damages of $1.00 and punitive damages of $200,000. During post-trial motions, the

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court remitted the punitive damages award to $10,000. The jury rejected all of Ms. Padgett’s

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claims.

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Since the end of trial in 2009, this case has had a long and perhaps arduous history in

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federal court, moving between the district court and the Ninth Circuit. The most recent dispute

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does not involve Defendants, but rather involves Mr. Padgett, Ms. Padgett, and trial counsel. Trial

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counsel are involved in this case as interested third parties. Presently before the court are three

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Case No.: 5:04-cv-03946-EJD
ORDER GRANTING MOTION AND STRIKING LIEN; DENYING MOTION FOR RELIEF
FROM AN ORDER; AND DENYING MOTION FOR INDICATIVE RULING

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motions filed by Mr. Padgett through which he seeks to amend this court’s previous order

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regarding attorneys’ fees and costs, and seeks to extinguish the lien Ms. Padgett filed against any

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fees awarded to Mr. Padgett, which appears to arise from their recent divorce. See Dkt. Nos.

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1109, 1113, 1114. The court finds these matters suitable for decision without oral argument

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pursuant to Civil Local Rule 7-1(b), and thus VACATES the hearing scheduled for October 29,

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2015. Having carefully considered the parties’ pleadings, Mr. Padgett’s motions seeking to amend

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this court’s previous order is DENIED, and motion related to the lien is GRANTED and notice of

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lien is STRICKEN for the reasons explained below.

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United States District Court
Northern District of California

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I.

RELIEF FROM PREVIOUS ORDER REGARDING ATTORNEYS’ FEES AND
COSTS
In a civil case, a party must file the notice of appeal within 30 days after the entry of

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judgment or order appealed from. Fed. R. App. P. 4(a)(1)(A). When disposing of a motion for

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attorney’s fees under Federal Rule of Civil Procedure 54, a separate document setting out

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judgment is not required. Fed. R. Civ. P. 58(a). Therefore, the district court’s order ruling on the

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issue of attorney’s fees triggers the 30-day period for filing a notice of appeal. S.L. ex rel. Loof v.

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Upland Unified Sch. Dist., 747 F.3d 1155, 1161 (9th Cir. 2014).

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Here, this court filed an Amended Order Denying Defendants’ Motion for Bill of Costs;

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Granting in Part and Denying in Part Plaintiffs’ Motion for Attorneys’ Fees and Costs on March

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31, 2015 (“March 31st Order”). See Dkt. No. 1087. Mr. Padgett filed a notice of appeal on April

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28, 2015. See Dkt. No. 1090. Thus, it appears that Mr. Padgett has initiated a timely appeal of the

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fees and costs order.

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Although Mr. Padgett has appealed from the March 31st Order, he has now filed a motion

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requesting the court invoke its authority under Federal Rule of Civil Procedure 60(b)(6) to modify

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a sentence in the March 31st Order. Dkt. No. 1113 at 1. Rule 60(b) provides:

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On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable
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Case No.: 5:04-cv-03946-EJD
ORDER GRANTING MOTION AND STRIKING LIEN; DENYING MOTION FOR RELIEF
FROM AN ORDER; AND DENYING MOTION FOR INDICATIVE RULING

neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move [*5] for
a new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it prospectively is no
longer equitable; or (6) any other reason that justifies relief.

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Relying on the “any other reason” catchall language in subsection (b)(6), Mr. Padgett seeks

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a change in the order from “Plaintiffs shall receive an attorneys’ fee award . . . and litigation costs”

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to “Plaintiff Joseph Padgett shall receive an attorneys’ fee award . . . and litigation costs.” Id. at 2

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(emphasis added). This request appears to be grounded on a dispute between Mr. Padgett and trial

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counsel—Mr. Padgett believes he should be awarded the attorneys’ fee award, and trial counsel

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believe they should be awarded the attorneys’ fee award.1 Id. at 4.
The Ninth Circuit has recognized, however, that once a party files his notice of appeal of

United States District Court
Northern District of California

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the district court’s judgment, the district court loses jurisdiction over the case and cannot consider

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a subsequently filed motion. See Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2002);

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Katzir’s Floor & Home Design, Inc. v. M-MLS.com, 394 F.3d 1143, 1148 (9th Cir. 2004). “To

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seek Rule 60(b) relief during the pendency of an appeal, the proper procedure is to ask the district

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court whether it wishes to entertain the motion, or to grant it, and then move [the Ninth Circuit], if

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appropriate, for remand of the case.” Williams, 384 F.3d at 586. To the extent Mr. Padgett is

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requesting this court to entertain or grant the instant Rule 60(b)(6) motion on the merits, this court

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declines to do so. He has not demonstrated the type of exceptional circumstances that justify

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resort to relief under that rule. See Fantasyland Video, Inc. v. Cnty. of San Diego, 505 F.3d 996,

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1005 (9th Cir. 2007) (holding that Rule 60(b)(6) “has been used sparingly as an equitable remedy

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to prevent manifest injustice” and “is to be utilized only where extraordinary circumstances

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prevented a party from taking timely action to prevent or correct an erroneous judgment.”).

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Accordingly, Mr. Padgett’s motion for relief from the March 31st Order (Dkt. No. 1113) is

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This court briefly addressed this issue in its Order Denying Motion for Appeal Bond, filed on
July 13, 2015. See Dkt. No. 1108 at 6-7.
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Case No.: 5:04-cv-03946-EJD
ORDER GRANTING MOTION AND STRIKING LIEN; DENYING MOTION FOR RELIEF
FROM AN ORDER; AND DENYING MOTION FOR INDICATIVE RULING

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DENIED.
In a related motion, Mr. Padgett seeks an indicative ruling under Federal Rule of Civil

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Procedure 62.1(a)(3) that it would either grant Mr. Padgett’s Rule 60(b)(6) motion or find that the

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motion raises a substantial issue. Dkt. No. 1114 at 1. Recognizing that this court lacks

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jurisdiction to rule on the motion due to the pendency of an appeal, Mr. Padgett argues that Rule

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62.1(a)(3) provides the appropriate procedure by which the court could obtain jurisdiction to

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modify the March 31st Order and resolve ambiguities in the record. Id. at 4-5. He further argues

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that good cause exists for an order granting relief under Rule 60(b)(6) because it would be an

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efficient and cost effective method of handling a disputed issue, and which threatens to result in

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United States District Court
Northern District of California

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inconsistent judgments. Id. at 5.
Rule 62.1(a) provides:

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Relief Pending Appeal. If a timely motion is made for relief that the
court lacks authority to grant because of an appeal that has been
docketed and is pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals
remands for that purpose or that the motion raises a substantial
issue.

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In opposition to this motion, trial counsel argue that Mr. Padgett’s notice of appeal states that he is

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appealing the March 31st Order, but does not identify the particular issue(s) he is appealing. Dkt.

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No. 1117 at 6. Thus, according to trial counsel, Mr. Padgett could be appealing other issues that

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are independent from whether the attorneys’ fee award should be distributed to him.

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To the extent this motion is not resolved along with its predecessor discussed above, the

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court agrees with trial counsel’s position on this issue. Indeed, there is no guarantee on this record

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that any and all issues currently on appeal will be resolved by providing Mr. Padgett relief under

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Rule 60(b)(6). When the Ninth Circuit last remanded this case, it instructed the district court to

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explain its calculations for attorneys’ fees and costs. See Dkt. No. 1023 at 9. Although the jury

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trial was presided over by a different district court judge, the undersigned judge carefully reviewed

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Case No.: 5:04-cv-03946-EJD
ORDER GRANTING MOTION AND STRIKING LIEN; DENYING MOTION FOR RELIEF
FROM AN ORDER; AND DENYING MOTION FOR INDICATIVE RULING

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the record and provided an explanation for attorneys’ fees and costs. See March 31 Order, Dkt.

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No. 1087. Trial counsel then filed a motion for clarification, which the court denied, and Mr.

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Padgett filed a notice of appeal. See Dkt. Nos. 1088, 1089, 1095. Moreover, the court briefly

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discussed the issue of attorneys’ fees and costs when it denied trial counsel’s motion to compel

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Mr. Padgett to file an appellate bond. See Dkt. No. 1108. Thus, aside from who is entitled to

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attorneys’ fees, there are several other post-remand issues from which Mr. Padgett could be

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appealing, which include the amount of fees and costs that were awarded. Since Mr. Padgett’s

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notice of appeal does not provide guidance on this issue, Mr. Padgett’s stated purpose of

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efficiency and cost effectiveness is undermined.
Accordingly, Mr. Padgett’s motion for indicative ruling (Dkt. No. 1114) is DENIED.

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United States District Court
Northern District of California

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II.

EXTINGUISHING PROPERTY LIEN
Lastly, Mr. Padgett requests an order extinguishing a “property lien” noticed by Ms.

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Padgett.2 Dkt. No. 1109. On February 10, 2014, Ms. Padgett filed a “notice of third party lien,”

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contending that a lien had been created under California Civil Code § 2881, which provides for the

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creation of a lien either by contract of the parties or by operation of law. See Dkt. No. 1058.

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According to the notice, a lien was created on the proceeds of this lawsuit pursuant to California’s

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community property statutes, where Mr. Padgett and Ms. Padgett were married, as well as those

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applied in the State of Washington, where their dissolution is taking place. Id. at 2.
Federal Rule of Civil Procedure 69(a) governs execution proceedings in federal courts, and

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provides that the procedure to execute a judgment “must accord with the procedure of the state

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where the court is located[.]” Fed. R. Civ. P. 69(a); see Paul Revere Ins. Grp. v. United States,

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500 F.3d 957, 960 (9th Cir. 2007). Thus, pursuant to California law, in order to obtain a lien, “the

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judgment creditor shall file a notice of lien and an abstract or certified copy of the judgment

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creditor’s money judgment in the pending action or special proceeding.” Cal. Civ. Proc. Code §

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708.410(b).

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Ms. Padgett is proceeding pro se.

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Case No.: 5:04-cv-03946-EJD
ORDER GRANTING MOTION AND STRIKING LIEN; DENYING MOTION FOR RELIEF
FROM AN ORDER; AND DENYING MOTION FOR INDICATIVE RULING

Mr. Padgett argues that Ms. Padgett’s notice of lien is ineffective because she failed to

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attach evidence of the lien as required by Civil Procedure Code § 708.410(b). See Dkt. No. 1110

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at 2-3. Mr. Padgett is correct. Here, Ms. Padgett filed only a notice of lien and a declaration; she

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did not file an abstract or certified copy of the judgment that entitles her to a lien. See Dkt. No.

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1058. Moreover, while Ms. Padgett appears to have been properly served (see Dkt. No. 1109 at

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3), she did not file a brief opposing this motion. Given the plain defects in the notice and the

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absence of a response to this motion, Mr. Padgett’s request for relief related to the “lien” (Dkt. No.

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1109) is GRANTED. Rather than extinguish anything, the court finds it more appropriate to

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STRIKE the notice of lien.
However, the court clarifies that this order applies only to the notice of lien filed in this

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United States District Court
Northern District of California

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action on February 10, 2014, and should not be construed as a determination of any rights Ms.

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Padgett may have under the property division laws that apply to the Padgetts’ marital dissolution

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proceedings.

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III.

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for relief from the March 31st Order and

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motion for indicative ruling are DENIED. Plaintiff’s motion for an order related to the “lien” is

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GRANTED, and the notice of lien (Dkt. No. 1058) is STRICKEN. The hearing scheduled for

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October 29, 2015, is VACATED.

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IT IS SO ORDERED.
Dated: October 26, 2015
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:04-cv-03946-EJD
ORDER GRANTING MOTION AND STRIKING LIEN; DENYING MOTION FOR RELIEF
FROM AN ORDER; AND DENYING MOTION FOR INDICATIVE RULING