Ross et al v. Balderas et al
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Stephan M. Vidmar to GRANT IN PART and DENY IN PART 126 Defendant Garcia's Motion for Attorney Fees. Objections to PF&RD due by July 26, 2017. Add 3 d ays to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. Fed. R. Civ. P. 6(d). (am)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANDREW ROSS and SUSAN GERARD,
No. 16-cv-1121 PJK/SMV
HECTOR BALDERAS, JR., ROBERT GARCIA,
SARAH MICHAEL SINGLETON,
FRANCIS J. MATHEW, RAYMOND Z. ORTIZ,
DAVID K. THOMPSON, JENNIFER ATTREP,
T. GLENN ELLINGTON, SYLVIA LAMAR,
DONITA OLYMPIA SENA,
DONNA BEVACQUA-YOUNG, PAT CASADOS,
FRANK SEDILLO, WILLIAM PACHECO,
ANTONIO GUTIERREZ, ANNA MONTOYA,
JUDAH BEN MONTANO, JOHN DOES 1–2,
MICHELLE PORTILLO, STEPHEN T. PACHECO,
JANE GAGNE, JOYCE BUSTOS, LYNN PICKARD,
PAMELA REYNOLDS, ROBIN MARTINEZ,
ROBERT RICHARDS, BRENDA WALL,
AUDREY MONTOYA, ALLSTATE INSURANCE, INC.,
A. ARROYO, and E. MONTIJO,
ANDREW ROSS and SUSAN GERARD,
All the claims and counterclaims have been dismissed. See [Docs. 8, 69, 76, 81, 91, 112, 121, 137, 144, 168, 169,
174, 188, 189]. All that remains are several motions for fees. See [Docs. 87, 126, 155, 158, 175, 177, 218, 219].
Plaintiff/Counter-defendant Gerard has passed away, and substitution of her estate was denied. [Doc. 232] at 2.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Plaintiffs and their attorney have made numerous factual allegations in the course of this
litigation that are simply beyond the pale. They have no evidence to support these fantastical
allegations, and their reasons for making them are non sequiturs. I find that by making these
unsupported allegations, Plaintiffs2 and their attorney, Arash Kashanian, have abused the judicial
process and made a mockery of these proceedings. They should be sanctioned. I recommend
that the Court award Defendant Garcia attorney fees in the total amount of $12,055, pursuant to
43 U.S.C. § 1988, 28 U.S.C. § 1927, and the Court’s inherent authority, plus interest pursuant to
28 U.S.C. § 1961, with half to be paid by Plaintiffs and half by Mr. Kashanian personally.
It is hard to believe, but this all started as a simple dispute between Plaintiffs and their
landlord. An avalanche of litigation ensued: an eviction case3 in Santa Fe County Magistrate
Court and three separate appeals therefrom; three criminal complaints against Plaintiffs for
misdemeanor harassment of the landlord; seven civil lawsuits,4 and this federal action. Plaintiffs
have incurred adverse rulings at virtually every turn.
Gerard complained to the Judicial
Standards Commission about Judge Sena, who ruled against her in the eviction case; the
Hereinafter, when I refer to Plaintiffs’ having made unsupported factual allegations, I include their attorney,
Mr. Kashanian. The fact that I include him bears mentioning here because one of the grounds for attorney fees,
§ 1927, requires findings as to the attorney specifically. My use of “Plaintiffs allege” rather than “Plaintiffs and
their attorney allege” is for convenience and brevity, not to remove Mr. Kashanian from the analysis.
One of Plaintiffs’ urgent grievances (and there are many) is that the case was not actually an eviction case. Rather,
it was stylized as a writ of restitution for non-payment of rent, which culminated in Gerard’s eviction. [Doc. 8]
at 11. Plaintiffs are convinced that it was improper to stylize the case as one for non-payment of rent and further
that so stylizing it was a purposeful end-run around the due process to which Gerard should have been entitled had
the case been properly stylized as one for eviction. Id. Herein, I refer to the case an “eviction case” (rather than a
nonpayment-of-rent-culminating-in-eviction case) purely for convenience.
Two of the suits were filed by the landlord for restraining orders against Plaintiffs, and five were filed by one of or
both Plaintiffs against the landlord; her attorney; Judge Sena, who ruled against them in the eviction case; their
neighbor whom they believe was spying on them; and others.
Commission dismissed the complaint. [Doc. 8] at 20; [Doc. 8-1] at 31. Gerard or her attorney
filed at least four complaints against the landlord’s attorney with the Disciplinary Board; the
Board has taken no action on those complaints. [Doc. 8] at 42. Gerard made a claim against the
landlord’s homeowner’s insurance policy; the claim was denied. Id. at 20, 54. Gerard filed a
tort-claims notice alleging that the criminal charges brought against her and Plaintiff Ross were
wrongful; that claim was denied. Id. at 29; [Doc. 8-1] at 76. Gerard complained to the State
Attorney General about Judge Sena; the Attorney General’s office declined to investigate.
[Doc. 8] at 25; [Doc. 8-1] at 58.
Plaintiffs surmise that there can be but one explanation for this series of adverse
outcomes: There exists “a massive conspiracy . . . [which] involves almost the entirety of the
Santa Fe Judicial District Court [sic], the Santa Fe Magistrate Court, the Santa Fe Sheriff’s
Department, and at the helm of the Criminal Enterprise, the Attorney General for the State of
[Doc. 8] at 2.
They see “[t]his case [a]s parallel to the 1973 Watergate
scandal[.]” Id. at 35. And this criminal conspiracy, they are convinced, is collusion between the
“Lesbian Sisterhood” and “Nuestra Familia.”
Plaintiffs allege that the landlord had wanted to breach Gerard’s lease in order to get
higher rent from someone else. They contend that the landlord had no lawful way out of the
lease, so, with the help of several judges, she had Gerard unlawfully evicted. Plaintiffs allege
that the landlord and the judges are all members of the “Lesbian Sisterhood,” whose purpose is
“to ensure that any lesbians [sic] rights are held above all others.” Id. at 37. They allege that the
Chief Judge of the First Judicial District Court in Santa Fe and her life partner are, respectively,
the “titular head” and “chief advisor” of the “Lesbian Sisterhood,” and that the landlord is the
“Secretary-Treasurer.” Id. at 37. They assert that the Chief Judge and her partner “are in charge
of a massive legal slush fund . . . in the seven figures,” from which the landlord’s attorney has
been paid. Id. at 20, 36.
Plaintiffs assert that once they began to fight the eviction and accuse the judges of
colluding with their landlord and her attorney, another criminal organization got involved:
“Nuestra Familia.” They allege that the State Attorney General, Defendant Balderas, is the
“consigliere” of “Nuestra Familia” or “Cosa Nostra.”
Id. at 37, 44.
They allege that
Defendant Garcia, the Sheriff of Santa Fe County, “acts as the ‘spiritual head’ of the criminal
‘Nuestra Familia’ that operates in Santa Fe.” Id. at 47. They allege that Defendant Pacheco, a
Captain in the Santa Fe County Sheriff’s Office, is Garcia’s “henchman” and his “Jefe de Calle.”
Id. at 25. In fact, they assert that “the entire county of Santa Fe is being run as a crime syndicate
resembling the ‘Cosa Nostra’ as portrayed in the Godfather films, the Goodfellas movie, and . . .
the Sopranos HBO Series.” Id. at 37.
Plaintiffs allege that Balderas wanted to prevent them from exposing the “Lesbian
Sisterhood’s” corruption of the Santa Fe courts. To that end, they allege, Balderas directed
Sheriff Garcia “to use any non-violent means necessary to silence [Plaintiffs.]” Id. at 24.
Plaintiffs allege that Balderas directed Sheriff Garcia, who directed Captain Pacheco, who in turn
directed two Sheriff’s Deputies (Defendants Anna Montoya and Antonio Gutierrez) to initiate
the criminal charges against Plaintiffs. Id. at 24–27. They further allege that Garcia (and
Balderas and the Chief Judge) directed Judge Bevacqua-Young to sign off on two of the criminal
complaints. Id. at 52. They also assert that Gerard’s demand for $100,000 (as compensation for
these allegedly wrongful criminal charges) was denied on Garcia’s order. [Doc. 8-1] at 56, 76.
To sum it up, Plaintiffs allege that Sheriff Garcia is responsible for these criminal charges, which
they believe are unlawful, and for thwarting their attempt to be compensated for having been
criminally charged. They allege not just that he is responsible, but that he took these actions
against them because he is the “spiritual head” of “Nuestra Familia” in Santa Fe. [Doc. 8] at 24–
27, 29, 47, 52.
Plaintiffs filed their lawsuit in this Court on October 10, 2016. [Doc. 1]. They filed an
amended complaint on October 12, 2016. [Doc. 8]. They have sued dozens of the people they
allege are involved in the “Lesbian Sisterhood” and “Cosa Nostra,” including state court judges,
their clerks’ office staff members, law enforcement officers, attorneys from the Judicial
Standards Commission and the Disciplinary Board, the landlord, the landlord’s attorney, the
landlord’s homeowner’s insurance company, Plaintiffs’ former neighbor, and others. Plaintiffs
have asserted RICO claims, violations of their civil rights under 28 U.S.C. § 1983, and they
asked for injunctive relief and a declaratory judgment. [Doc. 8]. They asked this Court to refer
the matter to the United States Attorney for criminal prosecution. They further asked this Court
to intervene in the state court cases, including their criminal prosecutions, to reverse certain
unfavorable rulings. Id. Finally, Plaintiffs demanded $1.776 billion in damages. Id. at 87.
When Defendant Sheriff Garcia (and the other Defendant employees of the Sheriff’s
Office) had not answered the Amended Complaint by November 8, 2016, Plaintiffs moved for
default judgment against them in the amount of $10 million each.
[Doc. 39]. However,
Plaintiffs had not requested entry of default by the Court Clerk as required by Fed. R. Civ.
P. 55(a). The Honorable Paul J. Kelly, Jr., United States Circuit Judge, who is presiding in this
case, denied the motions for default judgment on November 29, 2016. [Doc. 68]. He did so for
several reasons: Plaintiffs had not secured an entry of default; Garcia had answered on
November 15, 2016; Plaintiffs had identified no prejudice in the seven-day delay; and because of
the Court’s preference to decide cases on the merits. Id.
Garcia moved for summary judgment on December 14, 2016. [Doc. 88]. When briefing
was complete, [Docs. 103, 106], Judge Kelly granted the motion on January 13, 2017,
[Doc. 121]. Final judgment was entered on April 18, 2017. [Doc. 190]. Plaintiffs appealed,
[Doc. 197], but the appeal was dismissed for lack of prosecution on June 13, 2017, [Doc. 229].
Garcia moves for sanctions against Plaintiffs and their counsel pursuant to 43 U.S.C.
§ 1988, 28 U.S.C. § 1927, and the Court’s inherent authority. [Doc. 126]. He argues that he
should be awarded his attorney fees because Plaintiffs’ lawsuit “was entirely unfounded—
factually and legally—and was frivolous.” Id. at 1. Garcia argues that Plaintiffs’ counsel,
Mr. Kashanian, unreasonably and vexatiously multiplied the proceedings by continuing to
prosecute the claims when he knew or should have known that that the lawsuit was completely
frivolous. Id. Judge Kelly referred the motion to me for proposed findings and a recommended
disposition. [Doc. 191]. The motion is fully briefed. [Docs. 126, 138, 141, 215]. No hearing is
necessary because the motion can be decided on the briefing. Having considered the relevant
portions of the record, the briefing, and the relevant law, I recommend that the motion be granted
in part and denied in part.
Standard for Awarding Fees under § 1988
“A prevailing defendant may recover an attorney’s fee only where the suit was vexatious,
frivolous, or brought to harass or embarrass the defendant.” Hensley v. Eckerhart, 461 U.S. 424,
429 n.2 (1983). “A complaint is frivolous where it lacks an arguable basis either in law or in
fact.” Blakely v. USAA Cas. Ins. Co., 633 F.3d 944, 949–50 (10th Cir. 2011) (alterations and
internal quotation marks omitted).
Standard for Awarding Fees under § 1927
“Any attorney . . . who so multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally the excess costs, expenses, and
attorneys’ fees reasonably incurred because of such conduct.” § 1927. Fees are appropriate
“where an attorney acts recklessly or with indifference to the law[;] is cavalier or bent on
misleading the court; intentionally acts without a plausible basis; or when the entire course of the
proceedings was unwarranted.” Steinert v. Winn Group, Inc., 440 F.3d 1214, 1221 (10th Cir.
2006) (internal brackets omitted) (quoting Dominion Video Satellite, Inc. v. Echostar Satellite
L.L.C., 430 F.3d 1268, 1278 (10th Cir. 2005)). Sanctions under § 1927 do not require a finding
of bad faith, but an attorney’s subjective good faith cannot save him from sanctions either.
Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987). “Although subjective good faith on
the part of a [pro se party] may in some instances excuse otherwise unreasonable conduct,
[courts] are entitled to demand that an attorney exhibit some judgment.
objectively unreasonable conduct by an attorney would be to state that one who acts with
‘an empty head and a pure heart’ is not responsible for the consequences.” Braley v.
Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (en banc) (emphasis added). “So any conduct
that, ‘viewed objectively, manifests either intentional or reckless disregard of the attorney’s
duties to the court,’ is sanctionable.” Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1202
(10th Cir. 2008) (quoting Braley, 832 F.2d at 1512).
[The Tenth Circuit has] repeatedly expressed [its] concern
with the unnecessary burdens, both on the courts and on those who
petition them for justice, that result from unreasonable,
irresponsible and vexatious conduct of attorneys as well as parties.
The power to assess costs, expenses, and attorney’s fees against an
attorney personally in the appropriate case is an essential tool to
protect both litigants and the ability of the federal courts to decide
cases expeditiously and fairly.
Braley, 832 F.2d at 1512 (internal citation omitted). Section “1927 permits a court to insist that
the attorney bear the costs of his own lack of care.” Braley, 832 F.2d at 1512.
The Court must ensure that § 1927 not be used in a fashion that would “dampen the
legitimate zeal of an attorney in representing his client.” Braley, 832 F.2d at 1512. Therefore,
“the power to assess costs against an attorney under § 1927 . . . is a power which must be strictly
construed and utilized only in instances evidencing a serious and standard disregard for the
orderly process of justice.” Id. (citations and quotations omitted).
Standard for Awarding Fees under the Court’s Inherent Authority
“It has long been understood that certain implied powers must necessarily result to our
Courts of justice from the nature of their institution, powers which cannot be dispensed with in a
Court, because they are necessary to the exercise of all others.” Chambers v. NASCO, Inc., 501
U.S. 32, 43 (1991) (internal quotation marks omitted). “Among these indefeasible powers is a
court’s ‘ability to fashion an appropriate sanction for conduct which abuses the judicial
process.’” Farmer v. Banco Popular of N. Amer., 791 F.3d 1246, 1255 (10th Cir. 2015) (quoting
Chambers, 501 U.S. at 44–45).
“[T]he inherent power of a court can be invoked even if
procedural rules exist which sanction the same conduct.” Id. at 49.
A court has inherent power to impose sanctions in order to “protect the integrity of its
proceedings.” Chambers, 501 U.S. at 58 (Scalia, J., dissenting)). Similarly, a court has inherent
power to impose “a sanction for abuse of the judicial process, or, in other words, for bad faith
conduct in litigation.” Farmer v. Banco Popular of N. Am., 791 F.3d 1246, 1256 (10th Cir.
2015) (internal quotation marks omitted). The Supreme Court has described the “narrowly
defined circumstances [in which] federal courts have inherent power to assess attorney’s fees
against counsel” as involving actions taken “in bad faith, vexatiously, wantonly, or for
oppressive reasons.”5 Chambers, 501 U.S. at 45–46 (internal quotation marks omitted).
The purposes of imposing sanctions include “ensur[ing] that . . . abuses [of the judicial
system are] not repeated[,] vindicat[ing] [the Court] itself[,] and compensat[ing the other side].”
Id. at 56–57.
“Because of their very potency, inherent powers must be exercised with restraint and
discretion.” Id. at 44. Advance notice that the court is considering sanctions and an opportunity
to respond in opposition is, of course, required. Resolution Trust Corp. v. Dabney, 73 F.3d 262,
268 (10th Cir. 1995). Such “opportunity to be heard does not require an oral or evidentiary
hearing on the issue; the opportunity to fully brief the issue is sufficient to satisfy due process
requirements.” Id.; Sun River Energy, Inc. v. Nelson, 800 F.3d 1219, 1230 (10th Cir. 2015).
I find that Defendant Garcia is a prevailing party under § 1988. I further find that this
suit was frivolous and vexatious. The claims against Garcia lack any arguable basis in fact. He
is entitled to an award of attorney fees under § 1988.
Vexatious conduct is conduct “without reasonable or probable cause or excuse[.]” vexatious, Black’s Law
Dictionary (8th ed. 2004). A vexatious suit is “[a] lawsuit instituted maliciously and without good cause.” Id.
Wanton is defined as “[u]nreasonably or maliciously risking harm while being utterly indifferent to the
Furthermore, Mr. Kashanian’s assertion and prosecution of such claims was vexatious
and wanton. Mr. Kashanian’s conduct throughout this litigation has unreasonably multiplied the
proceedings. Mr. Kashanian has failed to exercise a minimally acceptable level of judgment.
His conduct, viewed objectively, manifests a reckless, if not intentional, disregard for his duties
to the Court. Pursuant to § 1927, Mr. Kashanian should be required to “bear the costs of his own
lack of care.” Braley, 832 F.2d at 1512.
Lastly, Plaintiffs’ and Mr. Kashanian’s conduct during this litigation constitutes an abuse
of the judicial process. Therefore, independent of either § 1988 or § 1927, I find that the Court
should award attorney fees to Defendant Garcia against Plaintiffs and Mr. Kashanian, personally,
pursuant to its own inherent authority.
Although Garcia makes compelling arguments about why there was no legal basis for the
Amended Complaint or for Plaintiffs to oppose the motion for summary judgment, I focus my
findings on the preposterous and unsupported “factual” allegations.
Let me be clear. I am not recommending that Plaintiffs and Mr. Kashanian be sanctioned
simply for making controversial or potentially embarrassing allegations, e.g., that Sheriff Garcia
is the “spiritual head” of “Nuestra Familia.” I am recommending that they be sanctioned
because they make such allegations (and many others just as preposterous) without any shred of
Plaintiffs attempt to explain why their allegations were not frivolous because, as they see
it, the allegations were supported. [Doc. 138] at 4–6. They maintain that “the circumstantial
evidence” amounts to sufficient support. Id. at 4. Specifically, they doggedly characterize the
deputies’ calling them on five occasions and ordering them to stop contacting the landlord as
“rampant and brazen extortion.” Id. at 4. They insist that the deputies “had absolutely no basis
to silence Plaintiffs [i.e., to tell Plaintiffs to stop contacting the landlord], and had no reason to
repeatedly make efforts to silence them as if they were on a vendetta.” Id. at 5. Based on the
deputies’ orders and the subsequent criminal charges for harassment of the landlord, they make
the following conclusion:
[W]hat do you call an organization’s behavior that freely extorts
and silences individuals with no legitimate authority to permit such
behavior such as what [the deputies] did to the Plaintiffs? It is in
fact mafia-like behavior. And what do you call the leader of such
an organization who allows for such behavior, despite being made
aware of it multiple times? It is fair to say that this individual
could be called the “spiritual head” of such an organization
behaving in a mafia-like way. And that is exactly what the
Amended Complaint in the instant matter alleges. The Amended
Complaint never stated that Garcia was running an actual criminal
organization; only that his department was acting like a criminal
organization in this particular context.
Id. at 6.
First, Plaintiffs’ statement that they never alleged an actual criminal organization is
spurious. E.g., [Doc. 8] at 25 (“Garcia retaliated by directing William Pacheco, Garcia’s ‘Jefe de
Calle[,’] to silence [Plaintiffs] in furtherance of the Criminal Enterprise.”). Second, and more to
the point here, the problem with these allegations—the sanctionable conduct—is that Plaintiffs
look at these events (i.e., the deputies’ orders to stop contacting the landlord, the criminal
charges for harassment of the landlord, and the rejection of the $100,000 demand) and leap to the
literally incredible conclusion that Garcia is (or is acting like) a mafia boss who ordered their
unlawful criminal charges as part of a vast criminal conspiracy to cover up the allegedly
wrongful nature of their eviction. This logical leap—and others like it6—causes serious concerns
because it moves beyond the bounds of reasonableness or even plausibility. It is paranoid,
bordering on delusional.
These allegations are but a few of many that demonstrate the
objectively unreasonable, vexatious, and wanton nature of facts alleged in the Amended
Complaint and the entire course of Plaintiffs’—and their counsel’s—conduct before this Court.
Since filing the Amended Complaint, Plaintiffs have not backed away from the
allegations that Garcia was a boss of a “mafia-like organization” who orchestrated Plaintiffs’
criminal prosecutions in order to silence them and preserve the allegedly unlawful eviction. E.g.,
[Doc. 103] at 4 (“Defendant Garcia engaged in multiple acts of bribery, extortion and violations
of Plaintiffs’ civil rights in furtherance of and . . . made possible by an unlawful enterprise
comprised of various members of the Santa Fe Court system and the Santa Fe Sheriff[’s]
Department.”). Nor have they backed away from dozens of other unsupported and preposterous
Even in the briefing on this motion for fees, Mr. Kashanian persists in these
allegations. [Doc. 138] at 4–7. I am not moved by his eleventh-hour qualification that “[t]he
Here are several more examples. It is important to appreciate that this is not a complete list. These are merely a
few examples. First, Plaintiffs characterize the Disciplinary Board’s action on a complaint against Plaintiffs’
counsel as a “clear [message] that [the Board] was out for blood as part of an inquisition against Plaintiffs’ counsel.”
[Doc. 102] at 21. Second, when Plaintiffs sued their former neighbor (for allegedly spying on them at the behest of
the landlord), the neighbor’s attorney ended up reporting Plaintiffs’ counsel to the Disciplinary Board. The
complaining attorney was an associate attorney at a Santa Fe law firm. The associate attorney’s complaint was
submitted via email, and he carbon copied one of the partners at the firm. Plaintiffs argue that the partner would not
have had “any interest whatsoever in a bar complaint filed by one of [his] associates. That is, unless [the partner]
was directing the matter to punish Plaintiffs’ counsel for having the audacity to attack the Santa Fe power structure.”
Id. at 17–18. Third, Plaintiffs demand $1.776 billion in damages, with which they see no problem because the
number “was merely symbolic[.]” [Doc. 102] at 13. Fourth, Plaintiffs allege that Balderas offered “protection” to
the “Criminal Enterprise.” [Doc. 8] at 16. Fifth, they allege that Defendant Montano (a Lieutenant with the Santa
Fe Police Department) was Balderas’s “Jefe de Calle.” Id. at 18. Sixth, they allege that Balderas was also
orchestrating the adverse rulings in at least one civil case. Id. at 29–30, 33. Seventh, they allege that Balderas
“connected” the landlord and her attorney with certain Sheriff’s deputies. Id. at 49. Eighth, they allege that
Balderas “protect[s] the corrupt institution” that is the Santa Fe Magistrate Court, which issued the original eviction
order against Plaintiffs. Id. at 44. Ninth, they allege that Balderas “sought and received silence” from the Judicial
Standards Commission in response to Gerard’s complaint about Judge Sena. Id. at 45.
Amended Complaint never stated that Garcia was running an actual criminal organization; only
that his department was acting like a criminal organization[.]”
Id. at 6.
This trivial and
disingenuous distinction misses the boat. Plaintiffs and Mr. Kashanian persist in arguing that
their “massive conspiracy” theory “is what Plaintiffs had [come up with] to explain the
circumstantial evidence that was before them.” Id. at 4. The fact that they continue to argue that
the eviction, the series of adverse court rulings, the criminal prosecutions, and other rejections
constitute “circumstantial evidence” to support the absurd allegations of Garcia’s role in a
“Criminal Enterprise” evidences Mr. Kashanian’s lack of basic discernment.7
Rather than backing away from these allegations, Plaintiffs attempt to further ensnare us
in their thicket of paranoia. Rather than taking responsibility, they blame the Disciplinary Board
for their own failure to offer any factual or evidentiary support for the “Lesbian Sisterhood” or
for Balderas’ being the “consigliere” of “Nuestra Familia.” They believe the Disciplinary Board
has “interfered” in this case by demanding that Mr. Kashanian produce evidence for these
allegations. [Doc. 102] at 21 (as cited in [Doc. 138] at 7). They argue that the demand from the
Further, this argument reflects a fundamental misunderstanding of circumstantial evidence. Under New Mexico
law, circumstantial evidence may be used to prove facts. See Martin v. Unit Rig & Equip. Co., Inc., 715 F.2d 1434,
1439 (10th Cir. 1983) (citing Richards v. Upjohn Co., 1980-NMCA-062, ¶ 9, 95 N.M. 675). But the use of
circumstantial evidence is constrained. Circumstantial evidence must support a conclusion based rationally and
logically on the “fact established by the evidence when viewed in the light of common experience.” Andrus v. Gas
Co., 1990-NMCA-049, ¶ 14, 110 N.M. 593. In other words, the circumstantial evidence must support “a reasonable
inference of the truth of the fact sought to be proved.” UJI 13-308 NMRA. Thus, for example when several
competitors engage in parallel behavior to depress wages, it is a reasonable inference that they are part of an
antitrust conspiracy. See Beltran v. InterExchange, Inc., 176 F. Supp. 3d 1066, 1072 (D. Colo. 2016).
Here, there is no logical or reasonable connection between Plaintiffs’ circumstantial evidence and the facts
they allege. Their logic goes something like this: “We were wrongfully evicted from our home. The eviction case
was decided in the First Judicial District. The Chief Judge of the First Judicial District is openly gay. Therefore, the
reason we lost the eviction case is because the ‘Lesbian Sisterhood’ was out to get us. And the reason we were
unable to obtain any relief thereafter is because ‘Nuestra Familia,’ guided by Balderas, wants to prevent us from
exposing the ‘Lesbian Sisterhood’s’ corruption of the courts.” This is so patently preposterous, it pains me to write
it down. I can only conclude that these allegations were made because of some perverse desire to embarrass the
Defendants, or to coerce them into paying a nuisance-value settlement to avoid further publicity. Either way, to
make such unsupported allegations is reprehensible and sanctionable.
Disciplinary Board “extorted [Mr. Kashanian] off of litigating the case.” Id. at 14; see id. at 22–
23. This is a non sequitur. Had Mr. Kashanian possessed a single shred of evidence to support
his allegations, he no doubt would have presented it to the Board.
I could go on, but the need for sanctions is obvious. I decline to indulge Plaintiffs’ and
Mr. Kashanian’s fantasies any further. In a sincere effort to deter further misuse of the judicial
process by Plaintiffs and Mr. Kashanian, to deter them from making further vexatious, reckless,
and wanton allegations, and to compensate Defendant Garcia for his counsel’s time, I will
recommend that attorney fees be awarded.
Lodestar Amount of Fees
In general, “[t]o determine the reasonableness of a fee request, a court must begin by
calculating the so-called ‘lodestar amount’ of a fee, and a claimant is entitled to the presumption
that this lodestar amount reflects a ‘reasonable’ fee.” Robinson v. City of Edmond, 160 F.3d
1275, 1281 (10th Cir. 1998). The lodestar is “‘the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate,’ which produces a presumptively reasonable fee
that may in rare circumstances be adjusted to account for the presence of special circumstances.”
Anchondo v. Anderson, Crenshaw & Assoc., LLC, 616 F.3d 1098, 1102 (10th Cir. 2010)
(quoting Hensley, 461 U.S. at 433, and Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 543–44
(2010)). “The party requesting attorney fees bears the burden of proving” the two components
used to calculate the fee award: (i) “the amount of hours spent on the case;” and (ii) “the
appropriate hourly rates.” United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219,
1233 (10th Cir. 2000). Once the Court makes these two determinations, the fee “claimant is
entitled to the presumption that this lodestar amount reflects a ‘reasonable’ fee.” Robinson, 160
F.3d at 1281; see Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996). The party entitled to
fees must provide the district court with sufficient information to evaluate prevailing market
rates. See Lippoldt v. Cole, 468 F.3d 1204, 1225 (10th Cir. 2006).
I have reviewed Garcia’s counsel’s affidavits, time records, and errata. [Doc. 126-1];
[Doc. 215] at 5–7. Garcia’s counsel, Mr. Dickman, requests an award of $12,055 for 63.6 hours
of work defending Sheriff Garcia through January 13, 2017, at an hourly rate of $175, plus gross
receipts taxes. [Doc. 126] at 1. He further requests an additional $6,458.49 incurred “in general
defense of the case.” [Doc. 215] at 2–3. These “general defense” fees include work that
benefitted Garcia, just not exclusively, such as his November 16, 2016 telephone conference
with counsel for Defendant Balderas regarding “defense strategy.” [Doc. 126-1] at 7. However,
the “general defense” fees also include work that does not appear to have benefitted Garcia, but
instead was performed in specific defense of another Defendant, such as the December 5, 2016
drafting of Defendant Pacheco’s affidavit.8 Id. at 12. Counsel for Garcia is careful to explain
that he is not seeking duplicate fees. If he has requested fees in Garcia’s motion, he is not
requesting those same fees in the motions brought by the other Sheriff’s Office Defendants.
E.g., [Doc. 201] at 1. Nevertheless, I recommend that these “general defense” fees be denied.
In the context of Defendant Garcia’s motion for fees, which is the motion at bar, Garcia
fails to meet his burden as the movant to prove that the “general defense” fees are warranted.
See United Phosphorus, 205 F.3d at 1233. Garcia shows that the “general defense” fees that
benefitted Garcia are warranted. But Garcia fails to show how the “general defense” fees that
did not benefit Garcia are warranted in the context of Garcia’s motion. Importantly, Garcia does
I find that Defendant Pacheco’s affidavit did not benefit Garcia because it was not attached to Garcia’s motion for
summary judgment. See [Doc. 88].
not parse out which of the “general defense” fees did or did not benefit him, and I cannot
undertake this task for him. Accordingly, I find that Garcia fails to show that the “general
defense” fees were reasonable and necessary for Garcia.
Most of Plaintiffs’ challenges are resolved by my recommendation to deny the “general
defense” fees. See [Doc. 138] at 9–10 (Plaintiffs’ challenges). I find that any remaining
challenge to the number of hours requested is without merit because Plaintiffs fail to specifically
identify the entries to which they object. See id. For example, Plaintiffs do not provide the dates
for the entries to which they object. See id.
Plaintiffs do not object to Garcia’s counsel’s requested $175 hourly rate, and I find such
rate to be reasonable. Lastly, under 28 U.S.C. § 1961, Garcia is entitled to interest on the award.
Transpower Constructors, Div. of Harrison Int’l Corp. v. Grand River Dam Auth., 905 F.2d
1413, 1423–24 (10th Cir. 1990) (applying § 1961 to awards of attorney fees). Interest begins to
accrue on the date that the Court quantifies the amount of fees awarded. Midamerica Fed. Sav.
& Loan Ass’n v. Shearson/Amer. Express, Inc., 962 F.2d 1470, 1476 (10th Cir. 1992).
Plaintiffs’ claims arising from their fantasy that Defendant Garcia is involved in a
“massive conspiracy” or a “Criminal Enterprise” are vexatious, wanton, and constitute an abuse
of the judicial process. Mr. Kashanian’s conduct throughout this litigation has unreasonably
multiplied the proceedings.
He has failed to exercise a minimally acceptable level of
professional judgment, and his conduct, viewed objectively, manifests a reckless, if not
intentional, disregard for his duties to the Court. He and his clients should be sanctioned
IT IS THEREFORE RESPECTFULLY RECOMMENDED that Defendant Garcia’s
Application for Award of Attorney’s Fees [Doc. 126] be GRANTED in part and DENIED in
part, and that Defendant Garcia be awarded attorney fees in total amount of $12,055, pursuant to
43 U.S.C. § 1988, 28 U.S.C. § 1927, and the Court’s inherent authority, plus interest pursuant to
28 U.S.C. § 1961, with half to be paid by Plaintiffs and half by Mr. Kashanian personally.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN FOURTEEN DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file
any written objections with the Clerk of the District Court within the 14-day period if that party
wants to have appellate review of the proposed findings and recommended disposition. See
D.N.M.LR-Civ. 10.1. If no objections are filed, no appellate review will be allowed.
STEPHAN M. VIDMAR
United States Magistrate Judge
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