United States District Court, E.D. California
ORDER ON PLAINTIFF'S MOTION FOR WRIT OF EXECUTION
AND MOTION FOR SUPPLEMENTAL FEES (DOC. NO. 129)
Sharron LeFay, Jeff Wall and Scott Wall's
(“Plaintiffs”) motion seeks a writ of execution
of judgment pursuant to the Court's award of
attorneys' fees against Defendants William LeFay, Fresno
Police Officer Eric Panbaker, Fresno Police Sergeant Len
Gleim, Fresno Police Detective John Gomez, Darryll Van
Deursen, and City of Fresno
(“Defendants”).Additionally, Plaintiffs seek
attorneys' fees for the time spent preparing this motion,
as well as attorneys' fees for their opposition to City
Defendants' appeal of the Court's award.
March 13, 2017, Plaintiffs filed a motion for writ of
execution in order to obtain the $11, 515 in attorneys'
fees owed by Defendants. Doc. No. 129. Plaintiffs also made a
motion for supplemental fees in the amount of $4, 000:
Plaintiffs' counsel spent 8 hours opposing City
Defendants' appeal to the Ninth Circuit, and 2 hours
preparing the writ of execution. Id.
April 3, 2017, City Defendants filed an opposition to
Plaintiffs' motion for writ of execution and motion for
supplemental fees (“Motion”). Doc. No. 130.
Prior to Plaintiffs filing their Motion, City Defendants had
communicated to Plaintiffs that the City was working with
co-defense counsel to obtain Defendant LeFay's share of
the fees. Doc. No. 130-1. City Defendants also communicated
to Plaintiffs that the amount that Defendants owed Plaintiffs
could be off-set by the amount Plaintiffs owed the City of
Fresno (“City”). Id. Plaintiffs'
counsel rejected the proposal of an off-set arrangement.
Id. At the time Plaintiffs filed their Motion, the
City had already requested a check be made out to
Plaintiffs' counsel. Id. On March 31, 2017,
Defendants paid Plaintiffs' counsel the $11, 515 owed in
attorneys' fees in full. Id. As part of their
opposition, City Defendants seek $738 in attorneys' fees
for opposing this Motion. Id.
Plaintiffs' Motion for Writ of Execution
motion for writ of execution seeks payment for the $11, 515
in attorneys' fees owed by Defendants. “A money
judgment is enforced by a writ of execution, unless the court
directs otherwise. The procedure on execution--and in
proceedings supplementary to and in aid of judgment or
execution--must accord with the procedure of the state where
the court is located, but a federal statute governs to the
extent it applies.” Fed.R.Civ.P. 69.
Defendants have submitted a declaration to this Court from
its counsel that Defendants paid Plaintiffs' counsel the
attorneys' fees at issue in full as of March 31, 2017.
Doc. No. 130-1. Despite the opportunity to reply, Plaintiffs
have chosen not to do so. Therefore, given the lack of any
contradictory evidence, the Court will accept City
Defendants' sworn representation that Plaintiffs'
counsel has now been paid in full, and will deny the motion
for writ of execution as moot.
Plaintiffs' Motion for Attorneys' Fees
request attorneys' fees for: (1) the 8 hours spent
opposing City Defendants' appeal of this Court's
award to Plaintiffs of attorneys' fees; and (2) the 2
hours spent preparing Plaintiffs' Motion. The Court will
address each request separately.
Fees for Plaintiffs' opposition to City
Defendants' appeal to the Ninth Circuit
argue that a prevailing party is entitled to seek fees for
appellate work if he or she obtains a favorable result,
citing Corder v. Brown, 25 F.3d 833, 837 (9th Cir.
case, the Court sanctioned Defendants under Rule 37(c)(1) for
failure to comply with Rule 26 and ordered Defendants to pay
Plaintiffs' attorneys' fees as a sanction. However,
the Court granted summary judgment for Defendants on
Plaintiffs' Section 1983 case. Doc. No. 83. Plaintiffs
appealed this Court's summary judgment order and City
Defendants cross-appealed the sanctions under Rule 37(c)(1).
The Ninth Circuit affirmed the Court's order granting
summary judgment for Defendants and also affirmed the award
of attorneys' fees to Plaintiffs. Plaintiffs assert that
they are entitled to a new award of attorneys' fees from
this Court for the time spent successfully opposing City
Defendants' appeal of the attorneys' fees award to
the Ninth Circuit.
without deciding that Plaintiffs are a “prevailing
party” on appeal as to the award of attorneys' fees
against Defendants, the Court cannot award Plaintiffs their
attorneys' fees for their appellate work before the Ninth
Circuit since: (1) Plaintiffs should have made ...