United States District Court

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C-08-2295 REPORT & RECOMMENDATION Page 1 of 29

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Cheryl Cotterill,

Plaintiff,

v.

City and County of San Francisco, et al.

Defendants.

________________________________/

No. C 08-2295 JSW (JL)

REPORT AND RECOMMENDATION RE

DEFENDANTS’ MOTIONS FOR

ATTORNEYS’ FEES AND EXPERT

COSTS (Dkt #s 226, 230); and

PLAINTIFF’S MOTION TO REVIEW AND

VACATE TAXING OF COSTS (Dkt # 251)

I. Introduction

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

of the University of California (“Regents Defendants”) move for attorneys’ fees and expert

costs following judgment rendered in their favour in this matter. Plaintiff Cheryl Cotterill

moves to review and vacate taxing of costs. Both matters were referred by the district

court (Hon. Jeffrey S. White) pursuant to Civil Local Rule 72-1 (Docket # 255). The Court

heard the matter on January 27, 2010. Attorney of record for Plaintiff was Gregory Haynes,

Law Offices of Gregory M. Haynes, Esq.; Attorney for City Defendants was Scott Wiener,

City Attorney’s Office; Attorney for Regents Defendants was R. Wesley Pratt, Hassard

Bonnington, LLP. Plaintiff made it clear that she did not want Mr. Haynes to represent her

and requested that she be allowed to speak on her own behalf, which the Court granted. 

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The Court carefully considered the moving and opposing pleadings and the

arguments of counsel and Plaintiff, as well as the record in this case, and hereby issues its

Report and Recommendations. The Court recommends that Plaintiff’s motion to re-tax

costs be GRANTED. The Court further recommends that City and Regents Defendants’

motions for attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 be DENIED. Lastly,

City Regents Defendants’ motions for attorneys’ fees and costs, pursuant to 28 U.S.C. §

1927, should be GRANTED and attorneys fees and costs awarded from November 6, 2008

to the present. 

II. Factual Background

Plaintiff Cheryl Cotterill filed suit alleging violations of her civil rights relating to her

detention and treatment in July 2006 at San Francisco General Hospital pursuant to

sections 5150 and 5250 of the California Welfare and Institutions Code. This Court relies

on the factual findings of the district court as set forth in the Court’s Order Granting City

Defendant’s Motion for Summary Judgment (Dkt #220, ¶. 2-6), and recites them only as

necessary to understand the Court’s disposition.

In their moving papers and at the hearing, Defendants directed the Court to consider

the deposition testimony of Alice Asher, on October 8, 2008, and Julian Sapirstein, on

November 5, 2008. The testimony of these two witnesses is significant because it calls into

question the soundness of Plaintiff’s counsel’s judgment in relying solely on Plaintiff’s

testimony concerning the facts of this case, and suggests that Plaintiff’s counsel recklessly

litigated far beyond the merits of Plaintiff’s case. The Court reviewed both of the

depositions, and believes the following testimony is relevant to the disposition of

Defendants’ motions. Accordingly, the Court makes the following findings. 

Ms. Asher is a Clinical Nurse Specialist (CNS) and focuses primarily on community

health, mental health issues, and HIV. (See excerpts of Deposition of Alice Asher, October

8, 2008, Exhibit A to Pratt Declaration, Dkt #276, at 10:16-22; 10:21-11:2). Ms. Asher

specializes in substance use and in mental illness. (Id. at 34:15-17). She works with

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people on a daily basis who experience issues related to the use of methamphetamines. 

(Id. at 34:15 - 35:4). At the hearing, Plaintiff’s counsel argued that Ms. Asher was not a

nurse at all, but failed to support this assertion with any credible evidence. Moreover, Ms.

Asher’s credentials were unchallenged at her deposition. 

On the night of July 30, 2006, Ms. Asher, who lived in the apartment unit directly

above Plaintiff’s apartment, heard a lot of yelling coming from Plaintiff’s apartment. (Id. at

17:9-23). Ms. Asher thought two people were fighting. (Id. 17:16-23). As the yelling got

louder, she heard the sound of glass shattering as a wooden piece of furniture was thrown

out of Plaintiff’s window into an atrium below. (Id. at 12:9-19, 18:6-12, 20:1-16). Ms. Asher

suspected a domestic violence incident and called 911 (Id. at 21:19-25). After making the

call, Ms. Asher went downstairs to find out what was happening. (Id. at 22:14-24). Plaintiff

was standing outside of her apartment and looked “very disoriented.” (Id. at 25:6-7, 25:22). 

Plaintiff’s eyes “didn’t really seem to register what was going on.” (Id. at 26:5-6). Based on

her expertise, Ms. Asher suspected a psychotic break or a methamphetamine-induced

psychosis. (Id. at 31:1-7, 33:10-15). Ms. Asher is specifically trained in assessing whether

a person is under the influence of drugs, including methamphetamine. (Id. at 57:14-17). 

After a brief interaction, Plaintiff went back to her apartment and closed the door. (Id. at

30:16-19). After interacting with Plaintiff, Ms. Asher formed a clear impression that Plaintiff

was a danger to herself. (Id. at 62:4-8). Some time passed, and when the noise and

shouting continued, Ms. Asher called 911 a second time. (Id. at 35:7-9, see also 38:11-

39:24 for a transcript of the 911 call). Although the police had already been out to the

apartment one time before, the dispatcher could hear Plaintiff yelling through the receiver

and indicated she would send the police out a second time. (Id. at 35:11-21).

When the police arrived, Joan Cotterill (Plaintiff’s mother), tried to convince the

police that “there were no problems and that everything was just fine,” and told them they

should just leave. (Id. at 43:15-20, 44:11-22). Ms. Asher felt compelled to intervene and

told the police that she did not think everything was okay. (Id. at 45:3-7). Ms. Asher

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explained her background in psychiatric nursing and described what had been going on

that evening, including her earlier interaction with Plaintiff. (Id. at 45:3-7, 11-14, 19-22). 

During Ms. Asher’s conversation with the police, Plaintiff was present, but looked

completely disoriented and dissociated (Id. at 46:10-13, 47:7-8). After this brief interaction,

Alice returned to her apartment, shut her door, and the building got quiet again. (Id. at

48:5-11). Based on her impressions of Plaintiff on July 30, 2006, Ms. Asher believed that a

5150 detention of Plaintiff was appropriate at the time the police interacted with her. (Id. at

50:17 - 51:7). 

Julian Sapirstein testified on November 5, 2008 concerning Plaintiff’s 5250

certification and ultimate release. Judge Sapirstein has been a mental health hearing

officer for the City and County of San Francisco since 1997. (See excerpts from Deposition

of Julian Sapirstein, November 5, 2008, Exhibit E to Pratt Declaration, Dkt #276, at 8:1-5;

12:10-11). Counsel do not dispute the facts of Judge Sapirstein’s testimony, but differ in

their understanding of its significance. Judge Sapirstein explained the procedure for

certifying a person under section 5250 and, in particular, his role as a mental health hearing

officer. (Id. at 22-26). A mental health hearing officer makes the ultimate determination as

to whether the patient is going to remain committed in the hospital. (Id. at 54:7-11). On

August 1, 2006, Judge Sapirstein was on vacation and another hearing officer filled in for

him at the hospital. (Id. at 26:19-23). Based on his familiarity with Certification Review

Hearing documents (Id. Exhibit 2) and his review of Plaintiff’s documentation, he concluded

that Plaintiff had received a probable cause hearing on August 1, 2006 where she was

represented by Public Defender Robert Bunker. (Id. at 50:23-51:7). The notation on the

documentation indicated that Plaintiff did not attend the hearing. (Id. at 51:12-15). He

explained that there are two circumstances under which a hearing officer conducts

hearings without the patient being present: (1) when the patient agrees to the hold (called a

“submit”); and (2) when the patient, in the public defender’s estimation, is incapable of

participating in the hearing and incapable or unwilling to agree to the hold (called an

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“oppose and submit”). (Id. at 24: 12-25). In an “oppose and submit” situation, the

physician is not present, but rather submits the case to the judge through the paperwork. 

(Id. at 52:23-25). By definition, “oppose and submit” means the patient is not present. (Id.

at 25:6-7). Judge Sapirstein has never issued an “oppose and submit” order without the

patient being represented by an attorney. (Id. at 25:16-19). On the probable cause

hearing schedule (Id., Exhibit 1), Judge Sapirstein explained that the “O&S, mute” notation

next to Plaintiff’s name meant that she was in the “oppose and submit” category and was

not talking. (Id. at 42:23-43:1). 

 Judge Sapirstein explained that a patient has no right to be heard a second time

before a hearing officer. (Id. at 57:6-7). If a patient wants to challenge the certification

determination, she would need to file a petition for writ of habeas corpus and appear before

a Superior Court judge. (Id. at 57:7-10). In Plaintiff’s case, however, Judge Sapirstein

agreed to a second hearing as a personal favor to Robert Bunker, the public defender

assigned to represent her. (Id. at 57:11-25). Mr. Bunker told Judge Sapirstein that Plaintiff

had been mute on August 1, 2006, but had since recovered her ability to speak and wanted

to have another hearing. (Id.). This is not something Judge Sapirstein has granted very

often. (Id. at 58:9-11). Judge Sapirstein explained that at this subsequent hearing he

modified the August 1, 2006 order to reflect that Plaintiff had another probable cause

hearing on August 8, 2006 where she was present and where he found no probable cause

to sustain her involuntary detention. (Id. at 56:5-25). 

III. Procedural Background

Plaintiff Cheryl Cotterill (“Plaintiff”) originally filed this lawsuit in state court on

December 26, 2007, against Defendants the City and County of San Francisco (“City

Defendants”), the Regents of the University of California (“Regents Defendants”), and 

various individually named City and Regents Defendants. City Defendants removed the

action to federal court on May 2, 2008. The court disposed of a number of plaintiff’s claims

through Defendants’ dispositive motions. (See Dkt #s 29, 134, 198.) On October 20,

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2009, finding no evidence to sustain Plaintiff’s burden of proof, the court granted City

Defendants’ motion for summary judgment (Dkt # 220) and issued its judgment dismissing

the case (Dkt #221). 

On November 3, 2009, City Defendants and Regents Defendants filed motions for

attorneys’ fees and expert costs pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1927. (Dkt

#s 226 and 230). On December 1, 2009, costs were taxed against Plaintiff in the amount

of $26,065.17 for Regents Defendants and $31,643.77 for City Defendants (Dkt #s 249,

250). On December 9, 2009, Plaintiff filed a motion to review and vacate taxing of costs in

favor of defendants (Dkt # 251). All three motions were heard on January 27, 2010 at 9:30

a.m. Defendants argue that Plaintiff’s lawsuit was frivolous from its inception, or at least by

November 5, 2008, by which time two key depositions had taken place which should have

made substantially clear to Plaintiff that her claims had no legal and factual legs to stand

on. Furthermore, they argue that Plaintiff’s counsel was aggressive and uncooperative,

resulting in their higher fees and costs. Accordingly, they seek attorneys’ fees, expert

costs, and other expenses pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1927. In her

motion, Plaintiff seeks to re-tax the costs which were taxed against her on December 1,

2009 (Dkt #s 249, 250) and reduce them to nothing. She asserts that taxing costs against

her would devastate her financially and have a chilling effect on future civil rights claims by

other plaintiffs. 

On February 4, 2010, following the January 27, 2010 hearing, Plaintiff filed

Evidentiary Objections (Dkt #273). The Court granted Defendants two weeks to file a

rebuttal to Plaintiff’s objections. (Order, Dkt #274). Defendants filed a supplemental

briefing on February 23, 2010 (Dkt #275).

IV. ANALYSIS

A. Plaintiff’s Motion to Re-Tax 

Fed.R.Civ. P. 54(d)(1) provides that "costs other than attorneys' fees shall be

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allowed as a matter of course to the prevailing party unless the court otherwise directs."

Rule 54(d) creates a presumption in favor of awarding costs to prevailing parties, and it is

incumbent upon the losing party to demonstrate why the costs should not be awarded. See

Stanley v. University of Southern California,178 F.3d 1069, 1079 (9th Cir. 1999).

Plaintiff argues that imposing costs will leave her indigent and will have a chilling

effect on future meritorious civil rights cases. The Ninth Circuit has approved refusing to

award costs to a prevailing party when the losing party has limited financial resources. See

National Org. for Women v. Bank of Cal., 680 F.2d 1291, 1294 (9th Cir.1982); see also

Wrighten v. Metropolitan Hosps., Inc., 726 F.2d 1346, 1358 (9th Cir.1984); Moore v.

Hughes Helicopters, Inc., 708 F.2d 475, 486 (9th Cir.1983). The amounts requested by

Defendants are quite high ($31,643.77 for City Defendants and $29,065.17 for Regents

Defendants). The court is sympathetic to Plaintiff's limited financial resources. Plaintiff has

sufficiently demonstrated that she is incapable of paying Defendants’ costs at present. (See

Exhibit D-I of Plaintiff’s Reply to City Defendants’ Opposition Vacate taxation of Costs, Dkt

# 269).

Plaintiff’s claim that awarding costs will have a chilling effect on future civil rights

claims rests on her opinion of the strength of her case. A district court must consider the

potential chilling effect of cost awards on civil rights claims. Stanley v. University of

Southern California, 178 F.3d 1069, 1079 (9th Cir. 1999), cert. den. at 528 U.S. 1022. This

does not mean, however, that prevailing defendants are precluded from recovering costs in

civil rights actions. Association of Mexican-American Educators v. State of California, 231

F.3d 572, 593 (9th Cir. 2000). Importantly, a weak or frivolous civil rights claim does not

receive the same protection from costs as a viable but ultimately failed civil rights claim. Id. 

Plaintiff made serious allegations concerning her arrest and detention following her

medication overdose. Once evidence surfaced demonstrating these allegations lacked

factual and legal support, her attorney should have advised her accordingly. Instead, he

continued to litigate, putting Plaintiff at risk of incurring financial liability for costs. Awarding

costs to Defendants under these circumstances does not strike the Court as an equitable

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1The record reflects and caselaw confirms that Defendants are prevailing parties in this

matter. City defendants prevailed on the merits of their case in their summary judgment

motion. See Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Res., 532 U.S.

598, 603 (2001). Regents Defendants prevailed on the affirmative defense of Eleventh

Amendment immunity, which constitutes a resolution on the merits because it rests on a

waivable affirmative defense. See Elwood v. Drescher, 456 F.3d 943, 949 (9th Cir. 2006;

Franceschi v. Schwartz, 57 F.3d 828, 832 (9th Cir. 1995). 

C-08-2295 REPORT & RECOMMENDATION Page 8 of 29

solution. Plaintiff should not have to pay for counsel’s lack of sound judgment. The Court

therefore recommends that Plaintiff’s motion to re-tax be GRANTED. 

B. Attorneys’ fees and costs pursuant to 42 U.S.C. § 1988

As the prevailing parties,1

 City Defendants and Regents Defendants request

attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. A court may award attorney’s fees

to a prevailing civil rights defendant if the court finds that the plaintiff’s action was “frivolous,

unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became

so." Hughes v. Rowe, 449 U.S. 5, 15, (1980) (per curiam) (quoting Christiansburg Garment

Co. v. EEOC, 434 U.S. 412, 422 (1978)). “An action becomes frivolous when the result

appears obvious or the arguments are wholly without merit.” Galen v. County of Los

Angeles, 477 F.3d 652, 666 (9th Cir. 2007) (citing Christiansburg, 434 U.S. at 422). A

defendant can recover fees if the plaintiff runs afoul of this standard at any point in the

litigation. See Christianburg, 434 U.S. at 422. A court must “resist the understandable

temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not

ultimately prevail, his action must have been unreasonable or without foundation.”

Christianburg, 434 U.S. at 421-22. The denial of fee awards to defendants following a

grant of a motion to dismiss or summary judgment in favor of defendants is common. See,

e.g., Gibson v. Office of Att’y Gen., State of Cal., 561 F.3d 920, 929 (9th Cir. 2009);

Summers v. Teichart & Son, Inc., 127 F.3d 1150, 1154 (9th Cir. 1997); Parks School of

Business, Inc. v. Symington, 51 F.3d 1480, 1489 (9th Cir. 1995). Importantly, a plaintiff’s

“inability to defeat summary judgment does not mean that [the] claims were groundless at

the outset.” Karam v. City of Burbank, 352 F.3d 1188, 1196 (9th Cir. 2003) (citing Mitchell

v. Office of Los Angeles County, 805 F.2d 844, 847 (9th Cir. 1986)).

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The court has great discretion to determine whether to award fees under § 1988,

and must be ever mindful of Congress’ policy of promoting vigorous prosecution of civil

rights violations under § 1983. Hughes, 449 U.S. at 14-15. While an award of attorney’s

fees for a frivolous lawsuit may be necessary to fulfill the deterrent purposes of 42 U.S.C. §

1988, the award should not subject the plaintiff to financial ruin. Miller v. L.A. County Bd. of

Educ., 827 F.2d 617, 621 (9th Cir. 1987). Although the Court may not deny fees based

solely on this factor, it may consider Plaintiffs’ financial condition as one of several factors

in determining whether to award fees. Miller, 827 F.2d at 621, n. 5; see also, Patton v.

County of Kings, 857 F.2d 1379, 1382 (9th Cir. 1988).

The Court finds, as explained in greater detail below, that until November 5, 2008,

there were material disputed facts that justified Plaintiff’s continuing the litigation. After this

date, however, it should have been sufficiently obvious to Plaintiff by her counsel that her

claims lacked legal or factual basis. At this point, Plaintiff’s claims were unreasonable or

frivolous, satisfying the Christianburg standard. Christianburg, 434 U.S. at 422.

Notwithstanding this conclusion, the Court finds that the fault lies more with Plaintiff’s

counsel than with Plaintiff herself. Granting such extraordinary relief under 42 U.S.C. §

1988 would leave Plaintiff penniless and deter the wrong person. In opposing Defendant's

motions for attorneys' fees, Plaintiff has presented compelling evidence, by way of

declaration and other documentary evidence, establishing her inability to pay any of

Defendants’ attorneys’ fees and costs. (See Plaintiff’s Reply to City Defendants’

Opposition to Vacation Taxation of Costs, Dkt # 269). Moreover, she states that she let her

attorney, Mr. Haynes, determine the strategy of the case because she trusted him and was

busy with law school. (See Plaintiff’s Reply to Regents Defendants’ Opposition to Vacate

Taxation of Costs, Dkt #268). Mr. Haynes never warned her that she could be held liable

for Defendants’ fees and costs; he merely told her at the outset that he thought she had a

good case. (See Plaintiff’s Declaration in Opposition to Defendants’ Motion for Attorneys’

Fees and Costs, Dkt # 256 at ¶ 4). After reading the court’s summary judgment order, and

realizing Mr. Haynes was pursuing his own agenda, she withdrew the appeal he had filed

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notwithstanding her express instructions to the contrary. (Dkt # 256 at ¶ 4). Ordering

Plaintiff to cover fees and costs accumulated primarily as a result of her attorney’s

misguided strategy and poor lawyering would have scant deterrence value. To the

contrary, such harsh measures might even discourage the public from putting their trust in

any member of the legal profession. For these reasons, the Court recommends that

Defendants’ motions for attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 be

DENIED. 

C. Attorneys’ fees and costs pursuant to 28 U.S.C. § 1927 

City Defendants and Regents Defendants also seek attorneys’ fees and costs

pursuant to 28 U.S.C. § 1927. Sanctions pursuant to section 1927 must be supported by a

finding of recklessness or subjective bad faith. B.K.B. v. Maui Police Dep't, 276 F.3d 1091,

1107 (9th Cir. 2002) (applying Fink v. Gomez, 239 F.3d 989 (9th Cir. 2001)). "Bad faith"

actions by counsel are assessed under a subjective standard and includes "a broad range

of willful improper conduct." Fink v. Gomez, 239 F.3d 989, 991-992 (9th Cir. 2001). 

Importantly, § 1927 authorizes the taxing of only excess costs incurred because of an

attorney's unreasonable conduct; it does not authorize imposition of sanctions to reimburse

a party for the ordinary costs of trial. U.S. v. Associated Convalescent Enterprises, Inc.,

766 F.2d 1342, 1347 (9th Cir. 1985). Sanctions may be justified under § 1927, even if the

conduct at issue has some merit. Lone Ranger Television, Inc. v. Program Radio Corp.,

740 F.2d 718 (9th Cir. 1984); McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir. 1981). 

Once counsel is or should be aware of the impropriety of his or her conduct, the costs,

expenses, and attorneys' fees for any subsequent proceedings may be considered to be

excess expenses and counsel may be required to personally pay them under § 1927. See

e.g., Campana v Muir, 615 F.Supp. 871 (M.D. Pa 1985), aff’d 786 F.2d 188 (3rd Cir.

1986)(plaintiff’s counsel required to satisfy all costs and legal fees incurred by the

defendants after counsel had actual notice that an absolute defense to the plaintiff's claims

would be raised). An attorney’s delays and failures to act warrant § 1927 sanctions only if

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they are so egregious as to “multiply” the proceedings. See West Coast Theater Corp. v.

City of Portland, 897 F.2d 1519 (9th Cir. 1990).

The Ninth Circuit has addressed an attorney’s bad faith and reckless behavior and

upheld sanctions on a number of occasions. In United Foods & Commercial Workers

Union, Local 197 v. Alpha Beta Co., 736 F.2d 1371, 1382-83 (9th Cir. 1984), the court held

that evidence of delay tactics and inconsistent positions taken by an employer throughout a

proceeding to compel arbitration was sufficient to support the trial court's exercising its

discretion in awarding attorneys' fees to a union, on grounds of the employer's bad faith. In

B.K.B. v. Maui Police Dep’t 276 F.3d 1091, 1106 (9th Cir. 2002), the district court imposed

sanctions for attorneys’ fees of $5,000 under § 1927 and another $5,000 under the court’s

inherent powers to compensate Plaintiff for the emotional damage caused by defense

counsel’s violation of Rule 412 at trial. The Ninth Circuit concluded that the award of fees

was appropriate because defense counsel’s misconduct vexatiously and unreasonably

multiplied the proceedings by prompting the motion for a mistrial and the subsequent

imposition of sanctions. Id. at 1108. In West Coast Theater Corp., 897 F.2d at 1528 (9th

Cir. 1990) the court affirmed § 1927 sanctions where counsel failed to provide any

evidence of discriminatory intent, failed to answer interrogatories, failed to respond to a

document demand, and failed to drop the case after improperly serving a defendant. The

record clearly indicated that Plaintiff’s counsel recklessly proceeded with the litigation

despite a complete lack of factual support or proper service of his opponent. Id. By

contrast, in Rodriguez v. United States, 542 F.3d 704 (9th Cir. 2008), the Ninth Circuit did

not find bad faith in the government’s assertion of the defense of consent because it was

supported by competent testimony of three officers. Id. at 710. Because evidence in the

record strongly contradicted the defense of privilege, however, the court did not err in

finding bad faith as to the assertion of this defense. Id. at 711-712. 

1. Plaintiff’s counsel’s conduct throughout the litigation was vexatious. 

An attorney's conduct may be unreasonable and vexatious if its sole purpose was to

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2

See, e.g., Limerick v. Greenwald, 749 F.2d 97 (1st Cir. 1984)(sanctions were imposed

against attorney whose course of conduct passed border of advocacy and entered realm of

harassment); Steinle v. Warren, 765 F.2d 95 (7th Cir. 1985)(attorney was mistaken in his belief

that duty to client extended to commencing frivolous action intended to harass); Lone Ranger

Television Inc v Program Radio Corp, 740 F2d 718 (9th Cir. 1984) [court found that defense

counsel intended to harass plaintiff by advancing arguments previously raised]; Vegetable

Kingdom Inc v Katzen, 653 F.Supp 917 (ND NY 1987); Kendrick v Zanides, 609 FSupp 1162

(N.D. Cal 1985) (court imposed § 1927 sanctions, stating that only reasonable conclusion was

that plaintiff and his attorney filed amended complaint to subject defendants to personal

harassment); Wold v. Minerals Engineering Co, 575 F.Supp 166 (D. Colo 1983). 

3

See, e.g., United States v. Potamkin Cadillac Corp, 697 F.2d 491 (2nd Cir.1983) cert.

den. 462 U.S. 1144 (1983); United States v. Blodgett, 709 F.2d 608 (9th Cir. 1983) (filing

appeal solely for purpose of delay constitutes bad faith); In re Interstate Steel Setters Inc, 65

Bankr Rep 312 (Bankr Ct. N.D. Ill 1986)(standard for determining when sanctions are

appropriate under § 1927 is whether attorney's conduct unjustifiably delayed case; unjustified

delay is present when attorney files patently frivolous pleading).

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harass the opposing party or needlessly increase the cost of litigation.2 Sanctions are often

imposed for conduct that is undertaken to delay the conclusion of the proceedings.3 The

record in this case reflects that Plaintiff’s counsel’s litigation tactics proliferated proceedings

by misstating the law and facts that were known to him. Moreover, he continued to litigate

Plaintiff’s claims after November 5, 2008, when it was abundantly clear that Plaintiff’s

claims lacked legal and factual support which, amounts to recklessness. 

 In this matter, the district court did not make an express finding that counsel’s

conduct constituted or was tantamount to bad faith. The court did, however, frequently

admonish Plaintiff’s counsel for failing to comply with standing orders and rulings, and on

many occasions expressed displeasure about having to settle numerous petty discovery

disputes (See Dkt #s 79, 96, and 131). In its most recent order granting City Defendants’

motion for summary judgment, the court expressed exasperation with Plaintiff’s counsel:

[T]he conduct of Plaintiff’s counsel throughout the prosecution of this case

[has] been reprehensible. Mr. Haynes has been sanctioned for discovery

abuses and has been repeatedly late in filing his submissions in this

matter and the opposition to the motion for summary judgment was

inexcusably late and filed only as a result of this court’s issuance of an

order to show cause why the case should not be dismissed for failure to

prosecute. Counsel’s conduct and submissions have been consistently

dilatory, rambling, and legally deficient. 

(Order Granting City Defendants’ Motion for Summary Judgment, Dkt # 220, at 1). Both

City Defendants and Regents Defendants made clear in their papers and in their testimony

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4

 See, e.g., Sam & Mary Housing Corp v. New York State, 632 F. Supp. 1448 (S.D. NY

1986) (in order to maintain action under 42 U.S.C.A. § 1983, it was necessary to establish that

defendant was state actor; plaintiff failed to come forward with any artful arguments that

defendant, merely by litigating in state court, was acting under color of state law). 

5

 See, e.g., Campana v. Muir, 615 FSupp 871 (M.D. Pa 1985), aff’d 786 F2d 188 (3rd

Cir. Pa 1986)(in action against district court judge alleging that statements in judicial opinion

were libelous, court observed that under clear and unequivocal doctrine of judicial immunity,

judges are not liable in civil suits for their judicial acts; because defense of judicial immunity

rendered plaintiff's claim without color, reasonable attorney, when put on notice of defense,

would have advised his client to abandon claim).

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at the hearing that Plaintiff’s counsel’s behaviour was objectionable and at times offensive. 

(See e.g., Declaration of Scott Wiener in Support of City Defendants’ Motion for Attorneys’

Fees and Costs, ¶. 5-8, Dkt #231). Communicating with Plaintiff’s counsel was challenging,

to say the least, and led Regents Defendants to file two Motions for administrative relief,

one requesting relief from having to file joint pleadings with Plaintiff (Dkt #39) and the other

requesting to be relieved of the requirement to meet and confer in person while recorded

(Dkt #74). Plaintiff’s counsel interacted with opposing counsel in an unprofessional

manner, and frequently threatened Rule 11 sanctions against defense counsel without

articulating a specific basis for doing so. (See Exhibits to Declaration of Wesley R. Pratt in

Support of Motion for Administrative Relief, Dkt #40). City Defendants estimated

(conservatively) that they incurred attorneys’ fees in the amount of $21,600 as a result of

Plaintiff’s counsel’s bad-faith conduct during the litigation, and offered this amount as one

of three alternatives for the Court to consider awarding.

2. Plaintiff’s counsel made numerous misstatements of law and fact and

ignored court orders, prolonging the proceedings and wasting opposing counsels’

and the court’s time.

In addition to behaving badly, Plaintiff’s counsel made numerous misstatements of

law and fact which unnecessarily multiplied the proceedings. A claim may lack a legal

basis where a necessary element of the claim cannot be established4

 or where an absolute

defense to the claim is clearly available.5

 A claim may also lack color if it has no factual

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6

E.g., Indianapolis Colts v. Baltimore, 775 F.2d 177 (7th Cir.1985). See, e.g., Blair v.

Shenandoah Women's Center Inc, 757 F2d 1435 (4th Cir. W. Va 1985) (several defendants

were sued without any explanation for basis of claim); Steinberg v. St Regis/Sheraton Hotel, 583 F.Supp 421 (S.D. NY 1984) (action under Age Discrimination in Employment Act; neither

plaintiff was replaced by younger person); Conley v. KFC Corp, 622 F.Supp 767 (W.D. Ky

1985) (claim of retaliation by employer was filed after plaintiff had been promoted several times

during four years following her charge of racial discrimination). 

7

See, e.g., Blair v. Shenandoah Women's Center Inc, 757 F.2d 1435 (4th Cir. W. Va

1985) (no allegations were made to support race discrimination claim); Aller v. New York Board

of Elections, 586 F.Supp 603 (S.D. NY 1984)(complaint was almost entirely conclusory and

completely devoid of factual particularity); Stewart v. Chicago, 622 F.Supp 35 (N.D. Ill 1985)

(plaintiff alleged that policies of defendant proximately caused unlawful police conduct but

pleaded no facts to support charges).

C-08-2295 REPORT & RECOMMENDATION Page 14 of 29

basis.6 A claim may be found to lack a factual basis where the complaint contains only

conclusory allegations.7 Some of the more striking examples of Plaintiff’s counsel’s

misstatements of law and fact are set forth below:

• Plaintiff named Anne Braun, M.D. as a defendant, but improperly served the

complaint on Andrew Braun, M.D., who was not a named defendant. Plaintiff

then threatened to seek a default judgment against Dr. Andrew Braun if he

did not file a responsive pleading. (See Defendants’ Joint Case Management

Conference Statement, Dkt #24, pp. 4, 7).

• On August 28, 2008, Regents Defendants filed an answer to plaintiff’s

complaint in which they admitted that Plaintiff’s certification hearing took place

on August 1, 2006 and was presided over by Judge Pro Tempore Stella

Pantazis. (Dkt #25, pp. 5-6). Regents Defendants further admitted that

Julian Sapirstein modified the August 1, 2006 order at a subsequent hearing

on August 8, 2006 where Plaintiff was released from the 5250 hold. (Id.). 

Despite this, Plaintiff stated in her Motion for Leave to File Third Amended

Complaint that she was unaware that a hearing took place on August 1, 2006

until the deposition of “Julian Spiraint” on October 10, 2008. (Dkt #62, filed

November 19, 2008). Plaintiff further alleged that this information had been

actively concealed from her. (Dkt #62, p. 4). The Court could find no evidence

of such witness having been deposed on this date and assumes that Plaintiff

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meant the November 5, 2008 deposition of Julian Sapirstein. Clearly, Plaintiff

had access to this information on August 28, 2008, long before the deposition

of Mr. Sapirstein. 

• Plaintiff’s counsel continued to litigate claims against Regents Defendants

despite clear Eleventh Amendment Immunity and explicit instructions from the

court not to do so. On August 19, 2008, the court granted Regents

Defendants’ motion to dismiss Plaintiff’s federal law claims based upon an

assertion of Eleventh Amendment immunity (See Order re Deft’s first motion

to dismiss, August 19, 2008, Dkt # 29). Furthermore, by October 3, 2008,

Regents Defendants confirmed they would be asserting Eleventh Amendment

immunity as an affirmative defense to Plaintiff’s state law claims. (Joint Case

Management Statement October 3, 2008, at 8, ¶ 11, Dkt # 47). In its August

19, 2008 Order, the court clearly stated that Eleventh Amendment immunity

barred Plaintiff’s claims for monetary relief against the individual defendants

acting in their official capacity, and gave Plaintiff specific instructions that she

must allege sufficient facts demonstrating that the Regents Physicians acted

in their personal capacities in order to withstand a further motion to dismiss. 

(Dkt #29, ¶. 5-6).

• Following the court’s August 19, 2008 order granting Regents Defendants’

motion to dismiss (Dkt #29), Plaintiff filed a motion for leave to file motion for

reconsideration. The court denied Plaintiff’s motion, noting that, contrary to

Local Rule 7-9(c), Plaintiff sought to re-assert arguments that she had

previously raised in her opposition to the motion. (Order Denying Motion for

Leave to File Motion for Reconsideration, Dkt #42).

• Plaintiff gave opposing counsel the run-around with respect to filing her third

amended complaint, at first working collectively to stipulate to one new claim,

then unilaterally filing a motion for leave to amend, forcing Defendants to

incur additional fees in responding to Plaintiff’s motion. At the October 10,

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2008 Case Management Conference, the Court ordered Plaintiff to circulate a

proposed third amended complaint by October 30, 2008. Plaintiff instead

sent out a letter on October 30, 2008, proposing the addition of a single new

cause of action. When the parties struggled to agree on a stipulation

regarding the language of the third amended complaint, Plaintiff’s counsel

filed a motion for leave to file a third amended complaint on November 19,

2008. (Dkt #68, ¶ 9-14; Dkt # 62). 

• In her proposed Third Amended Complaint, Plaintiff sought to add four new

defendants and four new claims for relief, including claims against the

Regents and the Individual Physicians that previously were dismissed by the

Court. (Order Granting in Part and Denying in Part Plaintiff’s Motion to File

Third Amended complaint, Dkt #89, ¶. 2, 6). The court specifically instructed

Plaintiff not to include the existing Third Claim for relief (Unreasonable

Seizure) in her Third Amended Complaint (Dkt #89, p. 6), which order Plaintiff

failed to observe. (Third Amended Complaint, Dkt #98, p. 14). The Court

also instructed Plaintiff not to include any reference to the Regents or

Individual Physicians in her Fourth, Fifth, Sixth, Ninth, Twelfth, and

Seventeenth Claims for relief (Dkt #89, p. 6), which she also failed to do as to

her Fourth and Ninth claims for relief. In her Fourth claim for relief, Plaintiff

alleged excessive force was used in “administering medication...while being

unlawfully detained at the hospital and treat[ed] without consent,” clearly a

reference to the Regents Defendants. (Dkt #98, p. 15). In Plaintiff’s Ninth

cause of action, Plaintiff did not specifically name Regents Defendants, but

alleged negligence in providing medical care, providing unconsented

medication, and unconsented treatment, again, clearly referencing Regents

Defendants. (Dkt #98, p. 19), contrary to the court’s guidance.

• Plaintiff moved to amend her complaint to add as a defendant Commissioner

Sapirstein, who presided over her second probable cause hearing held on

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8

 An act is considered “judicial” when it is a function normally performed by a judge and

the parties dealt with the judge in his judicial capacity. See Stump, 435 U.S. at 362; see also

Franceschi v. Schwartz, 57 F.3d 828, 830-31 (9th Cir. 1995) (holding that a municipal court

commissioner was immune from suit). Absolute judicial immunity applies even where the

person exercising judicial functions is accused of acting maliciously or corruptly, see Pierson

v. Ray, 386 U.S. 547, 553-54 (1967), and despite the lack of judicial formalities, see Stump v.

Sparkman, 435 U.S. 349, 362 (1978).

C-08-2295 REPORT & RECOMMENDATION Page 17 of 29

August 8, 2006. Commissioner Sapirstein was deposed two weeks before

Plaintiff moved to amend her complaint. Nothing in Commissioner

Sapirstein’s deposition suggested he acted outside the scope of his normal

judicial functions, in which case judicial immunity clearly applied.8

Accordingly, the court denied Plaintiff’s motion to amend to add Mr. Sapirstein

as a defendant, unless she could allege additional facts demonstrating he

performed an act that was non judicial in nature. (Dkt #89, p. 6). 

Notwithstanding the court’s denial, Plaintiff added Commissioner Sapirstein

as a defendant in her Third Amended Complaint, simply referring to his

altering the certification document to reflect his subsequent order as a

“nonjudicial” act, despite the court’s assessment of Commissioner

Sapirstein’s actions, including the alteration, as entirely within the scope of

normal judicial functions. (Third Amended complaint, Dkt #98).

• In her proposed third amended complaint, Plaintiff tried to get around the

Court’s earlier determination that her negligence claims were time-barred by

asserting that she did not discover the facts giving rise to the negligence

claim until September 2008 when she learned that a hearing was held on

August 1, 2006. (Third Amended Complaint, Dkt #98). This defies logic. If

anything, having a hearing on August 1, 2006 would have suggested that the

hospital fully complied with due process by holding a hearing within four days

of the notice of certification. Plaintiff was clearly put on notice of her potential

claims upon her release from the hospital on August 8, 2006.

• Plaintiff’s counsel made a facial challenge to the constitutionality of California

Welfare and Institutions Code Sections 5150 and 5250, which have been long

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ago upheld by the California Supreme Court. In Thorn v. Superior Court, 1

Cal. 3d 666 (1970), the Court held that involuntary treatment of patients

pursuant to Section 5150 and 5250 is valid provided suitable safeguards are

in place to protect the rights of such patients, including the right to counsel

and to seek release on habeas corpus.

• Plaintiff’s counsel continued to assert that Mr. Bunker, the public defender, 

and his investigators never informed Plaintiff of the 5250 hearing on August 1,

2006, yet Plaintiff, at deposition, acknowledged that on the date of the

notification she was so incoherent that she does not even know what

happened for most of that day. (City Defendant’s Motion for Attorney’s Fees,

Dkt #230, at p. 5).

• Plaintiff sought to depose three high-ranking officials, including Mayor Gavin

Newsom (Dkt #65), as to whom the court denied Plaintiff’s motion to compel

because Plaintiff failed to demonstrate that these officials had particular

knowledge that could not be obtained through other means. (Dkt #66). After

the Court quashed Mayor Newsom’s deposition, Plaintiff attempted to

circumvent the court’s denial by moving to compel answers to special

interrogatories to Mayor Newsom (Dkt #128), which motion the court also

denied, noting that, once again, Plaintiff had failed to show that the Mayor had

personal knowledge about the matter or that the information could not be

obtained through other means. (Dkt #131). 

• Plaintiff unreasonably refused to submit to a psychological evaluation, despite

having clearly put her psychological injury at issue, both in her claims for

intentional and negligent infliction of emotional distress and based on the

facts giving rise to the entire action. (See Order re Various Discovery

Disputes, Dkt #96). 

• Plaintiff refused to allow Defendants to take depositions of remote witnesses

by video link despite clear authority for doing do under the Federal Rules of

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9 The "code red" policy goes into effect when San Francisco General Hospital's

psychiatric emergency services is full and cannot accept more patients experiencing

psychiatric emergencies, in which case patients are diverted to medical emergency rooms so

that they have a place to go. (See Dkt. # 231, p. 8)

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Civil Procedure 30(b)(4). The court found that Plaintiff’s creation of this

controversy was “frivolous and a waste of this Court’s limited resources.” 

(Order re Various Discovery Disputes, Dkt #96, at p. 2). 

• Plaintiff’s counsel filed a reply brief to Defendants’ motion for summary

judgment nearly three weeks late (Dkt #205), and only after the court issued

an order to show cause why the case should not be dismissed. (Dkt #203).

• Mr. Haynes repeatedly forced defense counsel to spend significant amounts

of time defending against irrelevant issues, most notably the "code red"

policy9

 and the Mayor's purported policy on mentally ill homeless people,

which issues did not even arguably relate to this case. Despite the complete

lack of evidence that the “code red” policy was in effect, and medical

evidence indicating Plaintiff was experiencing a heart attack, Mr. Haynes

asserted that because Plaintiff was taken from the psychiatric emergency to

the medical emergency room, it must have been because of the code red

policy. Mr. Haynes took the position that this policy was unconstitutional. 

(See Declaration of Scott Wiener in Support of City Defendants’ Motion for

Attorney Fees and Expert Witness, Dkt # 231, at p. 7). 

• Plaintiff’s counsel repeatedly stated that he would dismiss as defendants

Officers Crudo, Hicks, and Davies and Sgt. Loew, but then never agreed to

the filing of stipulations of dismissal. After the Court had dismissed all claims

against Troy Williams with prejudice, Mr. Haynes indicated that he would not

agree to a stipulation dismissing the other officers unless Mr. Williams was

included in the stipulation of dismissal. As a result of this behavior by Mr.

Haynes, Defendants were forced to file motions to get each of the numerous

defendants out of the case. ((See Declaration of Scott Wiener in Support of

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City Defendants’ Motion for Attorney Fees and Expert Witness, Dkt # 231, at

p. 6). 

3. Plaintiff’s counsel continued to litigate long after her claims clearly

lacked viability.

Courts have imposed sanctions under 28 U.S.C.A. § 1927 for failing to dismiss a

claim when the party is unable to obtain sufficient facts to support the claim through

discovery. See, e.g., Walter v. Fiorenzo, 840 F.2d 427 (7th Cir.1988) (claim could not be

supported after four years of discovery). Although an attorney may be entitled to rely on his

or her client for information when the action is commenced, continued reliance on client

information may be unjustified when discovery fails to reveal facts necessary to maintain

the claim. In Deretich v. City of St Francis, 650 F.Supp 645, 648-649 (D. Minn. 1986), for

example, the court held that plaintiff's counsel multiplied the proceedings unreasonably and

vexatiously by pursuing litigation after it had clearly become frivolous. The court stated that

counsel should have been fully alerted to the weakness of the claims when her client was

unable to articulate supportive facts at his deposition. Id. 

November 5, 2008 was a crucial date in the prosecution of this case. By this date,

the depositions of two key people had taken place: Alice Asher on October 8, 2008 and

Commissioner Julian Sapirstein on November 5, 2008. The testimony of these two

witnesses should have made abundantly clear to Plaintiff’s counsel that Plaintiff had no

viable claims. Ms. Asher, a neighbor and psychiatric nurse, called 911 twice and testified in

detail at her deposition about Plaintiff's psychotic behavior, strongly supporting the officers'

decision to detain her under section 5150. Once Ms. Asher testified, any arguable basis for

a claim relating to the original detention evaporated. Julian Sapirstein was the mental

health hearing officer (a Superior Court Commissioner) who ultimately ordered Plaintiff's

release. In his deposition, he testified about the chronology leading up to Plaintiff's release,

including her original hearing, the reasons for her detention, and so forth. He interpreted

the documents relating to the detention and hearing. Once Mr. Sapirstein testified, it was

abundantly clear that Plaintiff had received full due process and that her detention at the

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hospital was valid. A reasonable attorney would have concluded that the case was no

longer worth pursuing and would have seriously considered dismissing the case. 

4. The Parties’ Post-Hearing Submissions

The Court reviewed Plaintiff’s evidentiary objections, filed on February 4, 2010, and 

Regents Defendants’ supplemental briefing, filed on February 23, 2010, which is joined by

the City Defendants. Plaintiff’s evidentiary objections are unsupported by the record and

do little to sway the Court to rule in her (or her prior attorney’s) favor. If anything, her

objections do just the opposite and demonstrate that even without her attorney at the helm,

she continues to re-litigate claims that the court previously determined lacked merit. 

Plaintiff alleges that Defendants misrepresent the record by stating she experienced a heart

attack. (Plaintiff’s Evidentiary Objections, p. 2). This is itself a bold misrepresentation of

the factual record, and completely ignores Plaintiff’s medical records and the testimony of

both Andrew Braun, M.D. and Jessica Fogler, M.D., who treated Plaintiff at the Emergency

Department of San Francisco General Hospital. Both doctors testified that Plaintiff did

indeed suffer a heart attack. (Defendants Supplemental Briefing, Dkt # 275, at ¶. 6-8,).

Moreover, the medical records reflect that Plaintiff had an abnormal EKG and elevated

laboratory troponin levels. (Dkt #275, at p. 8). Dr. Fogler further explained that because of

Plaintiff’s age and lack of pre-existing coronary artery disease, the most likely cause of the

myocardial infarction was amphetamine or methamphetamine use. (Id.). Moreover, two of

Defendant’s medical experts reviewed Plaintiff’s medical records and confirmed the

Emergency Room diagnosis of a heart attack, most likely caused by methamphetamine

toxicity. (Dkt #275, Exhibits G, H, and I). Plaintiff rejects this evidence but fails to present

credible expert testimony or other evidence in support of her theory that she was merely

suffering from an elevated heart rate. Rather, she relies on her own interpretation of her

symptoms and the medical records, assisted by various medical references, including the

World Health Organization’s criteria for diagnosing a heart attack. (Plaintiff’s Evidentiary

Objections, Dkt #273, at p. 3). Plaintiff’s evidentiary objection to Defendants’ claim that she

had a heart attack is wholly unsupported by the record and cannot be sustained.

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Plaintiff also objects to Defendants’ claim that she overdosed on prescription

medication. (Dkt #273, ¶. 4-5). Plaintiff’s objection is little more than a semantic

disagreement. It is undisputed that Plaintiff had been off her medication for some time and

only restarted her prescription methamphetamines two days before being hospitalized on

July 30, 2006. Defendants’ expert Dr. John Mendelson explained that prescription

methamphetamine can be toxic in patients who have not developed a tolerance to its

effects. (Dkt #275, Exhibit I, at p. 3). For this reason, methamphetamine doses are

increased slowly to decrease the risk of drug toxicity and allow patients to build up

tolerance to the effects of the drug. Id. Thus, even though Plaintiff ingested less than the

prescribed amount, it was effectively an overdose because her body had not built up

tolerance to the psychoactive effects of the drug. (Id.). Under these circumstances, use of

the term “overdose” is appropriate. 

The Court finds that the parties’ post-hearing submissions only further confirm the

Court’s conclusion that Plaintiff through her attorney recklessly continued to litigate this

case long after it was abundantly clear that Plaintiff’s claims lacked factual or legal support.

5. Conclusion re § 1927

The purpose of 28 U.S.C.A. § 1927 is to limit abuse of judicial processes and to

discourage dilatory litigation practices. E.g., Roadway Express Inc v. Piper, 447 US 752

(1980). Plaintiff’s counsel engaged in unreasonable litigation that abused the judicial

process. Under these circumstances, maintenance of this suit after November 5, 2008 was

reckless as a matter of law, and unreasonably and vexatiously multiplied the proceedings in

violation of § 1927. As the Ninth Circuit has observed, “an attorney does not simply act as

an advocate for his client; he is also an officer of the court. As such, an attorney has a duty

of good faith and candor in dealing with the judiciary.” United States v. Associated

Convalescent Enterprises, Inc. 766 F.2d 1342, 1346 (9th Cir. 1985). By November 5,

2008, Eleventh Amendment immunity as to Regents Defendants had been clearly

established. Ms. Asher’s testimony on October 8, 2008 and Julian Sapirstein’s testimony

on November 5, 2008 made abundantly clear that Plaintiff’s 5150 detention was

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appropriate and that she received due process at her 5250 certification hearings. Yet,

instead of reconsidering the viability of his client’s claims, Plaintiff’s counsel continued to

rely solely upon Plaintiff’s testimony concerning her detention and 5250 certification. He

recklessly pursued totally groundless claims that no reasonable person would have

considered sufficient to bring to court, knowing full well that Plaintiff could be liable for the

cost of defense. The Court does not go so far as to say this action was frivolous from its

inception. Initially, there were factual disputes that warranted further discovery. After

November 5, 2008, however, the facts and law of this case that were known to Plaintiff’s

counsel did not warrant the public and private costs of a federal civil rights action. 

D. Attorneys’ fees and costs pursuant to the Court’s inherent powers

A court's power over members of its bar, includes taxing opposing counsel’s fees

against a party who has litigated in bad faith or who willfully abuses judicial process. 

Chambers v. NASCO, Inc., 501 U.S. 32 (1991). Conduct that is “tantamount to bad faith” is

sanctionable. Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980). The Ninth Circuit

in Fink recently noted that “[s]anctions are available for a variety of types of willful actions,

including recklessness when combined with an additional factor such as frivolousness,

harassment, or an improper purpose.” 239 F.3d at 994. Reckless misstatements of law

and fact that are interlaced with such an additional factor are sanctionable under the court’s

inherent power. Id. In B.K.B. v. Maui Police Department, 276 F.3d 1091, 1108 (9th Cir.

2002), the Ninth Circuit found that awarding compensatory damages to plaintiff under the

court’s inherent powers was appropriate because defense counsel clearly acted in bad faith

and abused the judicial process by disingenuously circumventing Rule 412, resulting in

actual emotional and reputational harm to plaintiff. 

Plaintiff’s counsel’s actions in this case, discussed supra, certainly suggest bad faith. 

The court sought to resolve this case on the merits, despite being bogged down in a

quagmire of discovery disputes, countless motions for a broad spectrum of relief, rambling

over-length briefs, and unacceptable incivility. The court’s limited judicial resources have

been unnecessarily taxed by this case. The real cost of Plaintiff’s counsel’s misconduct,

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however, is borne by the clients and the legal profession as a whole. Legitimate civil rights

plaintiffs pay part of the price for this intransigence, in the form of judges' and lawyers'

decreasing patience with plaintiffs and their attorneys. As a result, the public itself

understandably loses respect for our entire system of justice. Courts cannot jeopardize

public confidence in the legal profession by condoning such reckless attorney conduct. 

VI. IMPOSITION OF SANCTIONS

A. Due Process Concerns

Before the court imposes sanctions, it must inquire whether doing so comports with

the Due Process Clause of the Fifth Amendment. Boddie v. Connecticut, 401 U.S. 371,

379 (1971). In this context, the Due Process Clause is satisfied where, prior to the

imposition of sanctions, the party affected has had adequate notice of the possibility of

sanctions and an opportunity to respond. Pan-Pacific & Low Ball Cable Television Co. v.

Pacific Union Co., 987 F.2d 594, 597 (9th Cir. 1993); Hudson v. Moore Business Forms,

Inc., 898 F.2d 684, 686 (9th Cir. 1990). The person to be sanctioned must have a chance

to demonstrate that his or her conduct was not taken recklessly or willfully, FTC v. Alaska

Land Leasing, Inc., 799 F.2d 507, 510 (9th Cir. 1986), and to explain why sanctions ought

not be imposed. Smith v. Ricks, 31 F.3d 1478, 1488 (9th Cir. 1994), cert. denied, 514 U.S.

1035 (1995). An opportunity to respond orally is not required; a full opportunity to respond

in writing is sufficient. Hudson, 898 F.2d at 686.

Plaintiff's counsel was put on notice of the risk of sanctions pursuant to 28 U.S.C. §

1927 on November 3, 2009, when Defendants filed their Motions for Attorneys’ Fees (Dkt

#s 226, 230). These motions clearly set forth the fees and costs sought and the supporting

statutory authority. Plaintiff’s counsel had a meaningful opportunity to respond, both in

writing and orally. He filed briefs opposing the motion for fees and sanctions (Dkt #s 259,

261), supported by his own affidavit (Dkt #260). At the January 27, 2010 hearing, the Court

allowed Plaintiff’s counsel ample opportunity to be heard. While Plaintiff’s counsel made a

colorable argument that Plaintiff’s claims initially had some merit, he failed to address the

quality of Plaintiff’s claims after November 5, 2008, and instead sought to litigate Plaintiff’s

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10 The twelve Kerr factors bearing on the reasonableness of a fee award are: (1) the

time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill

requisite to perform the legal service properly, (4) the preclusion of other employment by the

attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or

contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount

involved and the results obtained, (9) the experience, reputation, and ability of the attorneys,

(10) the "undesirability" of the case, (11) the nature and length of the professional relationship

with the client, and (12) awards in similar cases. Kerr v. Screen Extras Guild, Inc., 526 F.2d

67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). 

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claims anew. None of counsel's arguments in his briefs or at the hearing, however, are

sufficient to shield him from sanctions under Section 1927. In sum, counsel had a chance

to prepare a defense and to explain his reckless conduct. The Court is convinced that

Plaintiff’s counsel has had all the process he is due. 

B. Amount and Elements of Sanctions

Under 28 U.S.C. § 1927, if the Court finds that the entire proceedings were affected

by counsel's unreasonable and vexatious conduct, all of the nonoffending party's costs,

expenses, and attorneys' fees may be assessed as § 1927 sanctions. In the absence of

such a finding, the Court may award only those costs, expenses, and attorney's fees

directly attributable to the attorney to be sanctioned. See, e.g., United States v. Associated

Convalescent Enterprises Inc, 766 F2d 1342 (9th Cir. 1985). The Court finds that the entire

proceedings in this case after November 5, 2008 resulted from Plaintiff’s counsel’s

unreasonable and vexatious conduct and awards attorneys’ fees and costs accordingly. 

Calculation of attorney's fees begins with a lodestar figure. The "lodestar" is

calculated by multiplying the number of hours the prevailing party reasonably expended on

the litigation by a reasonable hourly rate. McGrath v. County of Nevada, 67 F.3d 248, 252

(9th Cir.1995). This lodestar figure can then be adjusted pursuant to the Kerr factors,10

although a strong presumption exists that the lode-star represents a reasonable fee. See

generally Jordan v. Multnomah County, 815 F.2d 1258, 1262-63 (9th Cir. 1987). Excess

costs recoverable under 28 U.S.C. § 1927 include only those taxable costs enumerated in

28 U.S.C. § 1920 (costs taxable to a losing party). Roadway Express Inc. v. Piper, 447

U.S. 752 (1980); see also, United States v. Ross, 535 F.2d 346, 350-51 (6th Cir. 1976)

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11The Court considered the Clerk’s Bill of Costs to Regents Defendants (Dkt #249) and

Plaintiff’s objections thereto (Dkt #241), and is satisfied that the amounts are appropriate.

Plaintiff’s assertions are largely unsupported by the record and were sufficiently rebutted by

Regents Defendant’s Reply (Dkt #242). Plaintiff’s indigence need not be considered in

assessing whether to impose costs against Plaintiff’s counsel. 

12This amount was re-calculated by referring to the specific amounts and dates attached

to the Clerk’s taxing of Bill and Costs to Regents Defendants, Dkt # 249, filed December 1,

2009. 

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(expenses of empaneling a jury cannot be taxed as a cost under 28 U.S.C. § 1927 because

not expressly set forth in § 1920 as an excess cost). 

With respect to Regents Defendants, attorneys’ fees and costs may be awarded

from November 6, 2008 to the present pursuant to 28 U.S.C. §1927 for the reasons set

forth above. The Court finds that Regents Defendants’ billing rates for partners ($170),

associates ($160), and paralegals ($80), as set forth in Mr. Pratt’s declaration, are

reasonable (See Dkt # 227). Because Regents Defendants only submitted a calculation of

fees incurred for the entire duration of the litigation, beginning April 16, 2008, they would

need to submit a new calculation of the hours spent on this case from November 6, 2008 to

the present. As noted above, Defendants are not entitled to expert fees under 28 U.S.C. 

§1927, but only those costs enumerated in 28 U.S.C. § 1920 and allowed under local rules. 

The Court accepts the Bill of Costs entered by the Clerk on December 1, 2009 (Dkt #249),11

but has adjusted the amount taxed to reflect an award of only those costs incurred after

November 5, 2008 (that is, beginning on November 6, 2008).12 The original amount taxed

was $26,065.17; the adjusted amount that may be awarded is $21,018.37.

With respect to City Defendants, attorneys’ fees and costs may be awarded from

November 6, 2008 to the present pursuant to 28 U.S.C. §1927 for the reasons set forth

above. The Court finds that City Attorneys’ billing rates for deputy attorneys ($300), and

investigators and paralegals ($75), and hours spent since November 6, 2008, as set forth in

Mr. Wiener’s declaration, (See Dkt # 231) are reasonable. City Defendants calculated

attorneys’ fees incurred after November 6, 2008 in the amount of $173,231.25 and are

entitled to this amount, as well as any fees incurred since that initial calculation to the

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13 The Court notes that City Defendants initally requested all attorneys’ fees incurred in this suit for a total of $220,162.50 plus $34,110.75 in expert fees. The amount of $173,831.25,

was requested in the alternative. 

14 The Court considered the Clerk’s Bill of Costs to City Defendants (Dkt #249) and

Plaintiff’s objections thereto (Dkt #244), and is satisfied that the amounts are appropriate.

Plaintiff objected to City Defendant’s bill for expert costs, which the Clerk rightly did not allow.

Plaintiff also objected to the high subpoena service charges for four witnesses (family and

friends of Plaintiff), arguing that Defense counsel could have simply asked for Plaintiff’s help

in serving these witnesses. Given Plaintiff’s often uncooperative behavior throughout the

litigation, however, it was reasonable for Defendants to rely on a process server to effectuate

process. 

15This amount was re-calculated by referring to the specific amounts and dates listed

in City Defendant’s Bill of Costs (Dkt #225) filed November 3, 2009, and the amounts approved

by the Clerk on December 1, 2009 (Dkt #250). 

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present.13 As noted above, Defendants are not entitled to expert fees under 28 U.S.C. 

§1927, but only those costs enumerated in 28 U.S.C. § 1920. The Court accepts the Bill of

Costs entered by the Clerk on December 1, 2009 (Dkt #250),14 but has adjusted the

amount billed to reflect an award of only those costs incurred after November 5, 2008 (that

is, beginning on November 6, 2008).15 The original amount taxed was $31,643.77; the

adjusted amount that may be awarded is $23,735.99. City Defendants proposed a third

alternative, in the amount of $21,600, in the event the Court rejected either of its first two

requested amounts. This figure is an estimate of the amount of attorney time that was

unnecessarily wasted because of Plaintiff’s counsel’s vexatious conduct throughout the

litigation. The Court is not convinced that this amount would adequately deter the kind of

behavior at issue in this case and therefore does not recommend awarding this lesser

amount.

In determining the amount of sanctions to impose under § 1927, the court may

consider the ability of the attorney to pay the sanction. In Oliveri v. Thompson, 803 F2d

1265 (2nd Cir. 1986), cert den Suffolk County v. Graseck, 480 U.S. 918 (1987), the court

explained that given the underlying purpose of § 1927 sanctions to punish deviations from

proper standards of conduct with a view toward encouraging future compliance and

deterring further violations, it is well within the district court's discretion to temper the

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16See also Rogers v. Kroger Co, 586 F.Supp 597 (S.D. Tex 1984)(in view of relative

financial posture of parties, plaintiff's counsel was solo practitioner, defendant was large

corporation with stable financial base, as well as punitive nature of sanctions under § 1927, court limited amount of sanction to $2500); Taylor v. Belger Cartage Service Inc, 102 FRD 172

(W.D. Mo 1984) (where counsel refused to furnish information concerning his financial

condition, court was unable to determine what adjustment should have been made).

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amount to be imposed against an attorney by considering his or her ability to pay.16

Plaintiff’s counsel was well aware that his conduct in the prosecution of his client's claims

was the subject of Defendants’ motions and that he could be liable for a substantial amount

of attorneys’ fees and costs. In opposing Defendant's motion for attorneys' fees, however,

Plaintiff’s counsel presented no evidence by way of declaration or other documentary

evidence establishing his inability to pay an award of attorney's fees and costs. Moreover,

at the January 27, 2010 hearing, Plaintiff’s counsel presented no evidence concerning his

ability to pay an award of sanctions, despite being given ample opportunity to do so. The

district court may wish to request further information regarding counsel’s ability to pay the

award of fees and costs.

VI. RECOMMENDATION

Because of her lack of resources and apparent ignorance of her attorney’s conduct, 

Plaintiff should not be assessed fees under 42 U.S.C. § 1988 or be required to pay

Defendants’ costs. Accordingly, the Court recommends that City Defendants’ and Regents

Defendants’ motions for attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 be

DENIED and Plaintiff’s motion to re-tax be GRANTED. Plaintiff’s attorney, however, may

be required to personally satisfy the attorneys’ fees and costs reasonably incurred because

of his conduct from November 6, 2008 to the present, pursuant to 28 U.S.C. § 1927. 

Accordingly, the Court recommends that City Defendants’ and Regents Defendants’

motions for attorneys’ fees and costs, pursuant to 28 U.S.C. § 1927, may be GRANTED. 

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Respectfully submitted,

DATED: March 10, 2010

__________________________________

 JAMES LARSON

 U.S. Magistrate Judge

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