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LeFay v. LeFay

United States District Court, E.D. California

April 24, 2017

SHARRON LEFAY; JEFF WALL; SCOTT WALL, Plaintiffs
v.
WILLIAM LEFAY; FRESNO POLICE OFFICER ERIC PANABAKER; FRESNO POLICE OFFICER DARRYLL VAN DUERSEN; FRESNO POLICE SGT. LEN GLEIM; FRESNO POLICE DET. JOHN GOMES; DOES 2-10; CITY OF FRESNO, Defendants

          ORDER ON PLAINTIFF'S MOTION FOR WRIT OF EXECUTION AND MOTION FOR SUPPLEMENTAL FEES (DOC. NO. 129)

         Plaintiffs 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”).[1]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.

         PLAINTIFFS' MOTION

         On 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.

         On April 3, 2017, City Defendants filed an opposition to Plaintiffs' motion for writ of execution and motion for supplemental fees (“Motion”).[2] 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.

         LEGAL DISCUSSION

         1. Plaintiffs' Motion for Writ of Execution

         Plaintiffs' 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.

         City 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.

         2. Plaintiffs' Motion for Attorneys' Fees

         Plaintiffs 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.

         a) Fees for Plaintiffs' opposition to City Defendants' appeal to the Ninth Circuit

         Plaintiffs 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. 1994).[3]

         In this 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.

         Assuming 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 ...


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