United States District Court, N.D. California
ORDER RE BRENTWOOD UNION SCHOOL DISTRICT
DEFENDANTS' MOTION FOR ATTORNEY'S FEES
PHYLLIS J. HAMILTON United States District Judge
February 24, 2017, the court issued an order (Doc. 282)
granting the motion of defendants Brentwood Union School
District, Lauri James, Brian Jones, Jean Anthony, Margo
Olson, Margaret Kruse, and Merrill Grant (“Brentwood
defendants”) for defense costs including attorney's
fees pursuant to California Code of Civil Procedure §
1038. In their motion, originally filed on July 13, 2016
(Doc. 239), defendants requested $578, 854.20 in fees and
costs. In the February 24, 2017 order, the court deferred
ruling on the amount of the award pending further briefing.
the California Tort Claims Act (“CTCA”), Cal.
Gov't Code § 810, et seq., a person who wishes to
sue a public entity “for money or damages” based
on a state-law cause of action relating to personal injuries
must first present a claim to the entity within six months of
the date the cause of action accrues. See Cal.
Gov't Code §§ 911.2, 945.4. Compliance with the
CTCA filing requirements is mandatory. Cal. Gov't Code
§ 945.4. Failure to present a claim within this six
month period is a bar to future tort suits. See San Jose
v. Superior Court, 12 Cal.3d 447, 455 (1974);
Renteria v. Juvenile Justice, 135 Cal.App.4th 903,
some of the plaintiffs filed no CTCA claims at all; others
filed CTCA claims, but the claims were denied by the
Brentwood Union School District as untimely, and none of
those plaintiffs sought leave to file a late claim or
attempted to appeal the denial. California Code of Civil
Procedure § 1038 “provides public entities with a
protective remedy for defending against unmeritorious
litigation.” Knight v. City of Capitola, 4
Cal.App.4th 918, 931 (1992) (citation and quotation omitted).
Section 1038 permits a public entity to recover defense
costs, including attorney's fees, from a plaintiff who
files a civil action under the CTCA without “reasonable
cause” or a “good faith belief that there was a
justifiable controversy under the facts and law which
warranted the filing of the complaint[.]” Cal. Civ. P.
Code § 1038.
the basis for defendants' motion for fees and costs was
that plaintiffs had asserted state-law claims against them in
the present action but had failed to submit timely claims
under the CTCA before filing suit. The request for fees and
costs under § 1038 was based solely on work performed by
defendants' counsel in defending against the state law
made various arguments in opposition to defendants'
motion. The only argument that the court found to be
potentially meritorious was plaintiffs' contention that
even if the Brentwood defendants were entitled to fees and
costs, the award should be reduced because of plaintiffs'
limited financial resources and their inability to pay the
claimed amount. Plaintiffs attached declarations from the
parents of the minor plaintiffs, but the court found that
those declarations did not include sufficient information.
court found that the Brentwood defendants were entitled to
fees and costs under § 1038. The court deferred ruling
on the amount of the award, and requested that the parties
provide any available California authority on the subject of
whether the court should take plaintiffs' financial
condition into account in determining the amount of an award
of fees and costs under § 1038, and also requested that
plaintiffs provide additional declarations supporting their
claim that they lack sufficient financial resources to pay
the fees and costs owed to the Brentwood defendants. The
court specified that the declarations should be similar to
the affidavits required in this district of plaintiffs
seeking to proceed with a lawsuit in forma pauperis, with
supporting documentation showing their income and financial
March 17, 2017, plaintiffs filed a supplemental brief.
Plaintiffs concede that they have uncovered no California
authority authorizing the court to consider a plaintiff's
financial resources when deciding whether to award fees and
costs under § 1038, but argue that the court should
apply "strong public policies" under Federal Rule
of Civil Procedure 54 to prevent the imposition of
potentially financially ruinous fee awards. Plaintiffs
acknowledge that in an action involving state law claims, a
federal court applies the law of the forum state to determine
entitlement to attorney's fees, but assert that this is
true only if the state law does not conflict with a valid
federal statute or procedural rule.
contend that they have shown in their declarations that
paying the fees requested by defendants would ruin them
financially, and assert that imposition of such a sum ($115,
770.84 per family) would conflict with "clearly
expressed policy" of federal courts in applying Rule
54(d)(1). The contend that under Rule 54(d)(1), the court has
discretion to decline to award fees and costs to a prevailing
party, which they urge the court to do in this case.
also argue that because district courts in federal civil
rights cases are required to consider the financial resources
of the plaintiffs in awarding fees to prevailing defendants
under 42 U.S.C. § 1988 (applicable to claims under 42
U.S.C. § 1983, Title VI of the Civil Rights Act of 1964,
and § 504 of the Rehabilitation Act) and 42 U.S.C.
§ 2000e-5 (applicable to claims under Title VII of the
Civil Rights Act of 1964), the court here should do the same.
have submitted declarations from Danielle Gullo (parent and
guardian ad litem of B.G.), Lawrence Gullo (parent of B.G.),
Michael Garedakis (parent and guardian ad litem of M.G.),
Yolanda Jackson (guardian ad litem of A.G.), Ahmad Razaqi
(parent of E.R.), Dania Razaqi (parent and guardian ad litem
of E.R.), and Viviana Rose (parent and guardian ad litem of
B.R.). In their declarations, plaintiffs all assert that they
do not have the financial resources to pay defendants'
fees and costs.
Brentwood defendants argue that the court should reject
plaintiffs' proposal that the court consider their
financial resources based on federal case law interpreting
the attorney's fees provisions contained in § 1988
and Title VII. In particular, defendants note, those federal
statutes expressly grant the trial court the discretionary
authority to award fees ("in its discretion, the court
may allow"), whereas § 1038 is not discretionary,
as it provides that an award of defense costs including
attorney's fees is mandatory after entry of summary
judgment and upon a finding that a claim against a public
entity is frivolous or brought in bad faith ("the court
shall render judgment in favor of that party in the amount of
all reasonable and necessary defense costs"). Thus,
defendants argue, federal courts' interpretations of
§ 1988 - including the provision that a plaintiff's
financial condition should be taken into consideration as
part of the court's discretionary authority to award fees
- simply do not apply in this context.
defendants assert, plaintiffs have failed to provide the
financial information requested by the court, as they have
not submitted declarations similar to the affidavits required
in this district of plaintiffs seeking to proceed in forma
pauperis. For example, defendants note, plaintiffs have not
provided information regarding whether they own a home, and
if so, the value of that home, and have not specified the
present value of their bank accounts or other financial
accounts or property.
court already determined that the Brentwood defendants are
entitled to recover fees and costs under Code of Civil
Procedure § 1038, because plaintiffs pursued the
state-law claims without reasonable cause. Reasonable cause
exists “if the claim is legally sufficient and can be
substantiated by competent evidence.” Antounian v.
Louis Vuitton Malletier, 189 Cal.App.4th 438, 449
(2010). Reasonable cause to file the state-law claims in the
present action did not exist ...