United States District Court, N.D. California
WALTER DIAZ, individually and on behalf of all others similarly situated, Plaintiff,
COLLECTO, INC. DBA EOS CCA, Defendant.
ORDER GRANTING MOTION FOR SANCTIONS
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE.
Walter Diaz moves for sanctions against counsel for Defendant
Collecto, Inc. pursuant to 28 U.S.C. § 1927.
See Mot. (dkt. 38). The Court finds this matter
suitable for resolution without oral argument, pursuant to
Civil Local Rule 7-1(b), GRANTS the motion, and VACATES the
hearing currently set for August 12, 2016.
1927 provides that “[a]ny attorney or other person
admitted to conduct cases in any court of the United States .
. . 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.” 28 U.S.C. § 1927. A party seeking the
imposition of sanctions pursuant to section 1927 has the
burden of demonstrating “bad faith, ” which means
either frivolity combined with recklessness or intentional
harassment. See B.K.B. v. Maui Police Dept., 276
F.3d 1091, 1107 (9th Cir. 2002) (defining bad faith);
Morris v. Wachovia Secs., Inc., 448 F.3d 268, 284
(4th Cir. 2006) (regarding burden). Here, the Court finds
that Defendant’s motion for judgment on the pleadings
was both frivolous and reckless.
reasons stated in Plaintiff’s opposition to the motion
for judgment on the pleadings, see Opp’n to
MJOP (dkt. 29), for the reasons Plaintiff argued (and the
Court adopted) at the hearing on the motion for judgment on
the pleadings, see Tr. of 5/6/2016, and for the
reasons Plaintiff advances in support of the current motion
for sanctions, see Mot; Reply (dkt. 40),
Defendant’s motion for judgment on the pleadings was
both frivolous and filed recklessly. Defendant argued that
California’s Invasion of Privacy Act
(“IPA”) was unconstitutional as applied because
Plaintiff had no reasonable expectation of privacy in his
phone conversations with Defendant, a collecting agency.
See MJOP (dkt. 27). at 2-3. This argument was
absurd, as it defied California case law interpreting the
IPA, see Flanagan v. Flanagan, 27 Cal.4th 766,
776-77 (2002) (explaining that the IPA “protects
against intentional, nonconsensual recording of telephone
conversations regardless of the content of the
conversation”); Kearney v. Salomon Smith Barney,
Inc., 39 Cal.4th 95, 118 n.10 (2006) (recognizing that
consumers have a reasonable expectation that their calls will
be kept private unless they are warned that the call will be
recorded), and because it relied on inapplicable
out-of-circuit law, see MJOP at 3 (discussing
People v. Clark, 379 Ill.Dec. 77, 6 N.E. 3d 154, 162
(Ill. 2014); People v. Melongo, 379 Ill.Dec. 43, 6
N.E. 3d 120 (Ill. 2014), both of which concerned a far
broader eavesdropping statute). Defendant actually argued
that “because the Defendant could lawfully write a
record of Plaintiff’s statements about his debt, the
Plaintiff’s theory that he can recover . . . for an
audio-recording of those statements is
unconstitutional.” Id. at 1; see also
Tr. of 5/6/2016 at 3-4. As the Court pointed out at the
motion hearing, “that would be true . . . for every
communication on the telephone that you have with
anybody.” Tr. of 5/6/2016 at 4.
Court further finds that Plaintiff’s fee request is
reasonable. See Matter of Yagman, 796 F.2d 1165,
1185 (9th Cir. 1986) (fees must be reasonable); Webb v.
Board of Educ., 471 U.S. 234, 242 (1985) (party seeking
fee award has burden of submitting evidence in support of
hours and rates claimed); 28 U.S.C. §
1927. Plaintiff seek $12, 461.20, which
represents one counsel’s fees for reviewing the motion
for judgment on the pleadings, researching and drafting the
opposition brief, reviewing the reply brief, discussing the
case with colleagues, preparing for the hearing, traveling to
and attending the hearing, as well as costs associated with
that counsel’s travel expenses. See Bacon
Decl. (dkt. 38-2) ¶¶ 19-21. Although more than one
counsel worked on the matter, Plaintiff does not seek
reimbursement for additional counsel’s work.
Id. ¶ 21; Mot. at 9. Plaintiff would also be
entitled to fees for the time spent seeking fees in the
current motion, see Edgerly v. City & Cnty. of San
Francisco, No. C 03-2169 WHA, 2005 WL 235710, at *2
(N.D. Cal. Feb. 1, 2005), but does not seek such fees, Mot.
at 9. Counsel details his experience prosecuting consumer
cases, describes other consumer class actions in which he and
his firm are involved, and asserts that courts have
previously awarded him $475 per hour; here he seeks $395 per
hour. See generally Bacon Decl. Importantly,
Defendant does not suggest that either Plaintiff’s
hourly rate or his time spent on the case is excessive.
Considering all of the relevant factors, the Court concludes
that Plaintiff is entitled to the $12, 461.20 spent opposing
the motion for judgment on the pleadings, a motion that
multiplied the proceedings // in this case unreasonably and
vexatiously. See 28 U.S.C. § 1927.
the Motion is GRANTED.
IS SO ORDERED.
 Although due process requires that the
Court provide an attorney subject to discipline with notice
and an opportunity to be heard, “an opportunity to be
heard” does not require an oral or evidentiary hearing.
See Pacific Harbor Capital, Inc. v. Carnival Air Lines,
Inc., 210 F.3d 1112, 1118 (9th Cir. 2000).
 Indeed, the Court already held that
the motion for judgment on the pleadings was frivolous:
“I found your motion to be absolutely frivolous. . . .
the logic makes no sense at all. . . . I find it
inappropriate, it’s wrong as a matter of law, and
certainly I don’t understand it as a matter of
strategy. . . . I do really find that it’s a frivolous
motion, absolutely frivolous. . . And furthermore, I
don’t know how this case will play out, but certainly
if it does involve attorneys’ fees, I find that the
fees spent by plaintiff’s counsel in defense of this,
though I haven’t seen the amounts, would certainly be
appropriate. So I think you are in the process of escalating
a dispute that will lead to monetary costs for your
clients.” See Tr. of 5/6/2016 (dkt. 35) at
 In determining whether fees are
reasonable, courts consider: (1) the time and labor necessary
to perform the task; (2) the novelty and difficulty of the
issues; (3) the skill required to perform the task; (4) the
inability to accept other employment while performing the
task; (5) the customary fee; (6) whether the fee was
contingent or fixed; (7) time limitations; (8) the amount at
stake and the results obtained; (9) the experience and
reputation of the attorneys; (10) the undesirability of the
case; (11) the attorney’s relationship with the client;
and (12) awards in similar cases. Kerr v. Screen Extras
Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), abrogated
in part by Davis ...