United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

CHERYL COTTERILL,

Plaintiff,

 v.

CITY AND COUNTY OF SAN FRANCISCO,

ET AL., 

Defendants.

 /

No. C 08-02295 JSW

ORDER ADOPTING REPORT

AND RECOMMENDATION RE

ATTORNEYS’ FEES AND COSTS

The Court has reviewed Magistrate Judge James Larson’s Report and Recommendation

(“Report”) regarding the motions for attorneys’ fees and expert costs following judgment filed

by Defendants City and County of San Francisco (“City Defendants”) and the Regents of the

University of California (“Regents Defendants”). The Report also addressed Plaintiff Cheryl

Cotterill’s motion to review and vacate the taxing of costs against her. 

The Court has reviewed the objections and subsequent filings by Plaintiff’s former

counsel, Gregory M. Haynes, as well as the filings from the City and Regents Defendants.

The Court finds the Report correct, well-reasoned and thorough, and adopts it in every

respect. Accordingly, the Court GRANTS Plaintiff’s motion to vacate the taxing of costs

against her. The Court finds that Plaintiff, an indigent individual with limited access to legal

counsel, should not be burdened with the cost of her counsel’s lack of sound judgment. 

Second, the Court DENIES the City and Regents Defendants’ request to award fees and

costs pursuant to 42 U.S.C. § 1988, as the Court agrees that there were material disputed facts 

Case 3:08-cv-02295-JSW Document 291 Filed 05/11/10 Page 1 of 3
United States District Court

For the Northern District of California

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that justified Plaintiff’s continued litigation up to a certain point. After November 5, 2008,

however, it should have been clear to Plaintiff and, most especially to her counsel, that the

claims were unreasonable and frivolous. However, ordering Plaintiff to cover fees and costs

based on her reliance on poor counsel and his misguided strategy would not serve to further the

public interest or deter the pursuit of litigation that is clearly frivolous, unreasonable or

groundless from the start.

Third, the Court adopts the Report and GRANTS the City and Regents Defendants’

motion for attorneys’ fees and costs pursuant to 28 U.S.C. § 1927. Mr. Haynes’ conduct

throughout the length of this litigation was vexatious. Mr. Haynes unreasonably proliferated

proceedings, failed to comply with this Court’s standing orders and rulings, raised petty

disputes thereby needlessly increasing the cost of litigation, and consistently filed rambling,

dilatory and legally deficient submissions. Mr. Haynes was unprofessional in his interactions

with opposing counsel, in his conduct before this Court, and most importantly, in relation to his

representation of his client. The Court finds that, at the latest as of November 5, 2008, once the

depositions of Nurse Alice Asher and Commissioner Julian Saperstein were completed, any

reasonable attorney would have concluded, and informed his client, that the case was no longer

worth pursuing. The Court agrees with the Report and finds that maintaining the suit after

November 5, 2008 was reckless as a matter of law and unreasonably and vexatiously multiplied

the proceedings in violation of 28 U.S.C. § 1927. 

Accordingly, the Court GRANTS the Regents Defendants’ motion for fees incurred

from November 6, 2008 to the present in the amount of $144,560.00 and costs in the amount of

$21,018.37. The Court GRANTS the City Defendants’ motion for fees in the amount of

$173,231.25 and costs in the amount of $23,735.99. The Court is not persuaded by Mr.

Haynes’ summary declaration to the effect that he is “unable to pay for any judgment in this

matter.” (See Declaration of Gregory M. Haynes, docket no. 282, at ¶ 1.) Although the Ninth

Circuit has not addressed the issue directly, the Court finds the reasoning of the Seventh Circuit

persuasive. See Shales v. General Chaffeurs, Sales Drivers and Helpers Local Union No. 330,

557 F.3d 746, 749 (7th Cir. 2009) (“A violation of § 1927 is a form of intentional tort. And

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United States District Court

For the Northern District of California

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 The Court notes that Mr. Haynes has been sanctioned by this District for similar

vexatious litigation tactics. See, e.g., Landry v. City and County of San Francisco, 2010 WL

1461592, *6 (N.D. Cal. April 9, 2010) and Edgerly v. City and County of San Francisco, 599

F.3d 946, 962-63 (9th Cir. 2010). Accordingly, the State Bar of California should address

Mr. Haynes’ consistently poor and sanctionable performance.

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there is no principle in tort law that damages depend on a tortfeasor’s assets. Quite the

contrary. Damages depend on the victim’s loss, not the wrongdoer’s resources. ... If Banks [the

sanctioned attorney] cannot meet all of his financial obligations, he may have them written

down in bankruptcy.” Mr. Haynes shall pay sanctions in the amount of $165,578.37 to counsel

for the City Defendants and sanctions in the amount of $196,967.24 to the Regents Defendants,

both by no later than June 4, 2010. Mr. Haynes shall also serve a copy of this Order on the

Office of the Chief Trial Counsel for The State Bar of California, with proof of such service to

this Court by no later than June 4, 2010.1 It is FURTHER ORDERED that the costs of the

sanctions shall not be passed on to Plaintiff. 

IT IS SO ORDERED.

Dated: May 11, 2010 

JEFFREY S. WHITE

UNITED STATES DISTRICT JUDGE

Case 3:08-cv-02295-JSW Document 291 Filed 05/11/10 Page 3 of 3