Civil Rights: $9,649 Fee Award Affirmed Where Plaintiffs’ Civil Rights Claims Found To Be Frivolous, Unreasonable Or Without Foundation

1^st District, Division 4 Sustains Award in Entirety.

     Under 42 U.S.C. § 1988(b), a trial court can award reasonable attorney’s fees to a prevailing defendant if the court finds the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in bad faith. (County of Butte v. Bach, 172 Cal.App.3d 848, 869 (1985).) That section was at issue in an attorney’s fees award of $9,649 against plaintiffs under review in Patel v. Jakela, Inc., Case No. A121611 (1^st Dist., Div. 4 Dec. 31, 2009) (unpublished).

     Plaintiffs had agreed to a motel demolition order with the City of Santa Rosa in a lawsuit, but failed to comply with the demolition terms. City obtained an order to show cause regarding contempt, with the trial court ruling that the demolition was to be accomplished, either by plaintiffs or the City. City hired a demolition contractor, which in turn hired an asbestos abatement subcontractor, both of which completed the demolition. City proceeded with litigation against the plaintiffs, who then filed a civil rights cross-complaint against the City, numerous City officials/employees, and the asbestos abatement subcontractor. Subcontractor won a successful motion to strike the cross-complaint because no leave was obtained from court (as well as raising that civil rights claims could not be raised against a private entity simply hired by a public entity to do some work). Later, subcontractor filed a motion for fees under section 1988(b), which was granted in the sum of $9,649.

DEMOLITION LAS VEGAS STYLE

   

      Plaintiffs appealed, but lost.

     The trial court properly did consider whether the cross-complaint had foundation—showing it was filed without leave and against private defendants not subject to civil rights exposure. Not much more to explore as why the fee award was justified under section 1988(b). Plaintiffs argued that they were entitled to a CCP § 128.7 safe harbor “warning shot,” but this contention was dismissed in light of the fact that 42 U.S.C. § 1988(b) allows for a fee recovery not tethered to sanctions procedural requirements. Finally, the fees were not excessive ($9,469, you bet), and subcontractor was also entitled to fees on appeal to be determined by the trial court on remand.