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This matter was determined to be suitable for decision without *

oral argument. L.R. 78-230(h).

Defendants filed a Notice of Errata on July 17, 2006, in which 1

they explained these are the only two Defendant movants, indicating that

Plaintiff dismissed the other individual Defendants in response to their

requests for dismissal. (See Notice of Errata Regarding Defs.’ Mot. For

Sanctions, July 17, 2006, at 2.)

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DOUGLAS ENGRAHM, )

) 02:04-cv-1290-GEB-GGH

Plaintiff, )

)

v. ) ORDER*

)

COUNTY OF COLUSA, COUNTY OF COLUSA )

DEPARTMENT OF PUBLIC WORKS, and )

JOHN S. WRYSINSKI, individually )

and in his capacity as Director )

of County of Colusa Dept. of )

Public Works, )

)

Defendants. )

)

Defendants County of Colusa, County of Colusa Department of

Public Works (jointly referred to as “the County”), and John S.

Wrysinski (“Wrysinski”) (collectively “Defendants”) move for attorney 1

fees and costs under 42 U.S.C. § 1988 (“section 1988") and for

sanctions against Plaintiff and/or his counsel (collectively

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Plaintiff’s opposition is titled “Plaintiff’s Opposition to 2

Defendants’ Motion for Attorney Fees and Sanctions[,]” but includes no

argument or discussion regarding Defendants’ motion for sanctions.

Therefore, Plaintiff has not opposed the sanctions motion. 

2

“Plaintiff”) under Federal Rule of Civil Procedure 11. Plaintiff

filed an opposition which addressed the motion for attorney fees and

costs, but did not address the motion for sanctions.2

DISCUSSION

Plaintiff filed his Complaint on July 7, 2004. The

Complaint alleged two claims against Defendants for violation of

Plaintiff’s First Amendment rights under 42 U.S.C. § 1983 (“section

1983"), and pendent state law claims including libel, slander, and

intentional infliction of emotional distress. (Compl. ¶¶ 41-51.) 

Defendants filed a motion for summary judgment on

November 18, 2005. On December 5, 2005, Plaintiff filed an opposition

to the motion in which he argued it should be denied because

Defendants violated Local Rule 56-260(a) by “not fil[ing] with the

court nor . . . serv[ing] Plaintiff’s counsel with a Separate

Statement of Undisputed Facts.” (Pl.’s Opp’n Defs.’ Mot. Summary J.,

Dec. 5, 2005, at 3-4.) Plaintiff also stated:

Assuming arguendo that Defendants’ motion for summary

judgment will be considered on the merits, . . . Plaintiff

admits that he would have a difficult time proving certain

allegations within this lawsuit at trial and accordingly

will not contest or oppose the following arguments made by

Defendants within their Motion for Summary Judgment.

. . .

b. Plaintiff does not oppose Defendants’

assertion that defamation and libel claims cannot

be sustained as to any Defendant.

c. Plaintiff does not oppose Defendants’

assertion that intentional infliction of emotion

[sic] distress claims cannot be sustained as to

any Defendant.

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d. Plaintiff does not oppose Defendants’

assertion that . . . Wrysinski . . . [is] entitled

to qualified immunity. 

e. Plaintiff does not oppose Defendants’ assertion that

Wrysinski is entitled to discretionary immunity under

Government Code Section 820.2.

(Id. at 6-7.) An Order filed December 15, 2005, denied Defendants’

motion for failure to comply with Local Rule 56-260(a). (See Order,

Dec. 15, 2005, (“December 15 Order”) at 3.) 

Defense counsel, recognizing that Plaintiff had made

concessions in his opposition about not being able to sustain certain

claims, contacted Plaintiff’s counsel about dismissing those claims.

Defense counsel states in her declaration that she spoke with

Plaintiff’s counsel regarding the concessions and “Plaintiff’s counsel

[stated] that, although his state law claims and claims against

[Wrysinski] would likely be dismissed, Plaintiff was not prepared to

make those dismissals at that time.” (Ferrannini Decl., July 17,

2006, ¶ 6.) Subsequently, Defendants appealed the December 15 Order

“on the basis of qualified immunity . . . [and] state discretionary

immunity” and filed a motion in the district court to stay the action

while the appeal was being decided. (Notice of Appeal, Jan. 13, 2006,

at 1-2; Mot. to Stay, Jan. 30, 2006, at 1-2.) Defense counsel again

“spoke with Plaintiff’s counsel by telephone, requesting that he

dismiss [Wrysinski] and state law claims. Plaintiff’s counsel

responded that he was not prepared to dismiss these claims because

their inclusion enhanced the possibility of settlement.” (Ferrannini

Decl. ¶ 7.) Instead, Plaintiff filed a statement of non-opposition to

Defendants’ motion to stay, stating “[i]f . . . Defendants were to

prevail and have the Ninth Circuit rule in their favor, it would

streamline the trial to a great extent . . . .” (Statement of NonCase 2:04-cv-01290-GEB-GGH Document 168 Filed 10/24/06 Page 3 of 9
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Opp’n, Feb. 10, 2006, at 2.) Defendants’ motion to stay was denied. 

(See Order, Feb. 23, 2006.) However, after consideration of the

parties’ Joint Pretrial Statement (“JPS”) filed February 15, 2006, the

district judge sua sponte modified the Status (Pretrial Scheduling)

Order because the factual basis for Plaintiff’s claims in the JPS were

unclear. Therefore, the Status (Pretrial Scheduling) Order was

modified and law and motion was reopened. (See Order Amending Status

(Pretrial Scheduling) Order, Feb. 24, 2006, at 1.) 

Defendants filed a second motion for summary judgment on

March 24, 2006. This motion was granted on June 16, 2006, as to both

section 1983 claims, and Plaintiff’s state law claims were dismissed

under 28 U.S.C. § 1367(c).

I. Section 1988 Attorney Fees and Costs

A prevailing defendant in a civil rights action may recover

attorney fees and costs under section 1988 by demonstrating

“plaintiff’s action was frivolous, unreasonable or without foundation,

even though not brought in subjective bad faith.” Christiansburg

Garment Co. v. Equal Empl. Opp. Comm’n, 434 U.S. 412, 421 (1978). 

This standard is “stringent,” Hughes v. Rowe, 449 U.S. 5, 14 (1980),

and the Ninth Circuit has recognized that attorney fees in civil

rights cases “‘should only be awarded to a defendant in exceptional

circumstances.’” Saman v. Robbins, 173 F.3d 1150, 1157 (9th Cir.

1999) (quoting Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990)). 

Such exceptional circumstances have been found when a “reasonable

inquiry” would have revealed that a plaintiff’s claims either

“invok[e] causes of action that do not provide liability against the

defendants, . . . seek[] money damages from immune defendants, [or]

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[have] ‘no evidence’ supporting them.” Quantz v. Edwards, 2006 WL

1277093, *8 (W.D. Wash. May 5, 2006) (internal citations omitted).

Defendants argue entitlement to attorney fees and costs

under section 1988 because “a cursory review of the law that applies

to this case would have revealed that Plaintiff, at the inception of

this action and continuing thereafter, could not establish a prima

facie case against Defendants.” (Defs.’ Mot. for Attorneys’ Fees

at 10.) Defendants also argue “Plaintiff actually knew his claims

lacked merit as early as September 2005, when he deposed [several

individual Defendants], and [Plaintiff] acknowledged this fact as

early as December 2005, when he filed his opposition to Defendants’

motion for summary judgment.” (Id.) Plaintiff’s opposition did not

oppose Wrysinski’s asserted immunity from the section 1983 claims. 

(Pl.’s Opp’n Defs.’ Mot. Summary J. at 6-7.) 

Plaintiff’s section 1983 claims were premised on his

argument that he was subjected to retaliatory termination as a result

of three prior lawsuits filed against Defendants. Plaintiff’s prior

lawsuits alleged he suffered adverse employment actions because of his

complaints about the County’s safety and environmental violations. It

was determined on summary judgment in the case sub judice that “‘[t]he

[County’s compliance with safety and environmental standards] was

within the community’s concerns, so [Plaintiff’s] speech criticizing

[the County’s noncompliance] constituted protected speech. Because

the speech at the heart of [Plaintiff’s] prior lawsuit[s] was

protected, [these] lawsuit[s] qualified as litigation regarding a

matter of public concern.’” (Amended Order, June 16, 2006, at 4-5

(quoting Lytle v. Wondrash, 182 F.3d 1083, 1088 (9th Cir. 1999).) 

However, when this speech was evaluated for the purpose of determining

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whether Plaintiff’s interest in this speech was outweighed by the

County’s interest in preventing workplace disruption, the speech was

found to be false and hence did not outweigh the County’s interest. 

Specifically, preclusive effect was given to the County’s Board of

Supervisor’s findings “that Plaintiff knew the allegations in his

complaints were false and that the lawsuits were brought to avoid

undesirable assignments and as protection from discipline . . . .” 

(Id. at 9.) In light of these findings, Plaintiff’s federal claims

against the County and Wrysinski were unreasonable and without

foundation.

Defendants’ attorney fee motion seeks fees for Plaintiff’s

section 1983 claims only. (See Defs.’ Mot. for Att’y Fees at 7-11.) 

However, the summary of time and fees attached to Defendants’ motion

does not distinguish defense counsel’s time spent on the section 1983

claims from time spent on Plaintiff’s state law claims. (See Franklin

Decl. Ex. F, July 17, 2006.) “It is the obligation of the party who

seeks fees to document ‘the appropriate hours expended and hourly

rates,’ and he ‘should maintain billing time records in a manner that

will enable a reviewing court to identify distinct claims.’” Norris

v. Sysco Corp., 191 F.3d 1043, 1052 (9th Cir. 1999) (quoting Hensley

v. Eckerhart, 461 U.S. 424, 437 (1983)). Since Defendants’ billing

time records do not identify the time spent defending Plaintiff’s

federal claims, Defendants’ motion for attorney fees is denied.

II. Rule 11 Sanctions

“[S]anctions shall be assessed [under Rule 11(b)(2)] if the

paper filed in district court and signed by an attorney . . . is

frivolous, legally unreasonable, or without factual foundation, even

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The “safe harbor” provision of Rule 11 requires the moving 1

party to give the non-moving party twenty-one days to withdraw or

correct the paper at issue. See Fed. R. Civ. P. 11(c)(1)(A).

Defendants complied with the safe harbor provision here by placing

Plaintiff’s counsel on notice on March 21, 2006, that they intended to

seek Rule 11 sanctions. (Harrington Decl. Ex. A ¶ 2, July 17, 2006.)

7

though the paper was not filed in subjective bad faith.” Zaldivar v. 1

City of Los Angeles, 780 F.2d 823, 830-31 (9th Cir. 1986), abrogated

on other grounds by Cooter & Gell v. Hartmarx Corp., 496 U.S. 384

(1990). “The word ‘frivolous’ . . . is a shorthand . . . used to

denote a filing that is both baseless and made without a reasonable

and competent inquiry.” Townsend v. Holman Consulting Corp., 929 F.2d

1358, 1362 (9th Cir. 1990). Rule 11 sanctions may be imposed against

a party who continues to litigate a claim he knows to be baseless,

even though that claim was proper when originally filed. Byrnes v.

Lockheed-Martin, Inc., 2005 WL 3555701, *9 (N.D. Cal. Dec. 28, 2005).

Since Plaintiff’s two federal claims against the County and

Wrysinski were unreasonable and without foundation, the issue remains

whether Defendants also prevail on their sanctions motion based on

their arguments that Plaintiff’s state law claims were frivolous.

Defendants’ argument that all of Plaintiff’s state law

claims were frivolous is premised on Plaintiff’s opposition to their

motion for summary judgment, in which Plaintiff made concessions

regarding only three of his eight state law claims. Defendants have

shown that Plaintiff maintained these three admittedly meritless state

law claims after filing his opposition to Defendants’ motion for

summary judgment. Defense counsel spoke with Plaintiff’s counsel on

two separate occasions after Plaintiff filed his opposition, and

during both conversations Plaintiff’s counsel refused to file

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voluntary dismissals of the claims Plaintiff conceded lacked merit. 

(Ferrannini Decl. ¶¶ 6, 7.) Further, Plaintiff showed his intention

to maintain his intentional infliction of emotional distress, libel

and defamation claims against Defendants by including them in the

parties’ JPS as issues to be tried. (See JPS, Feb. 15, 2006, at 21,

27.) Yet in Plaintiff’s opposition to Defendants’ second motion for

summary judgment, Plaintiff stated “[he] does not oppose Defendants’

assertion that defamation and libel. . . [and] intentional infliction

of emotion [sic] distress claims cannot be sustained as to any

Defendant.” (Pl.’s Opp’n Defs.’ Mot. Summary J., April 10, 2006,

at 4). These statements are tantamount to concessions that Plaintiff

maintained these claims against Defendants for over three months even

though he knew they were frivolous. This conduct is sanctionable

under Rule 11. See Byrnes, 2005 WL 3555701 at *9.

Since it was unreasonable for Plaintiff to bring his section

1983 claims against Defendants and to maintain his defamation, libel

and intentional infliction of emotional distress claims after

acknowledging these claims lacked merit, it is appropriate to impose

sanctions. See Fed. R. Civ. P. 11(c) (“If . . . the court determines

that subdivision (b) has been violated, the court may . . . impose an

appropriate sanction . . . .”). 

III. Proper Amount of Sanctions Under Rule 11

Sanctions imposed under Rule 11 shall be limited to what is

sufficient to deter “repetition of such conduct or comparable conduct

by others similarly situated[,]” and may include an award for

“reasonable attorneys’ fees and other expenses incurred as a direct

result of the violation.” Fed. R. Civ. P. 11(c)(2). 

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Defendants request Plaintiff be sanctioned “reasonable

attorneys’ fees and costs [totaling $286,174.63] . . . for

[Defendants’] work in defending the present matter . . . .” (Defs.’

Mot. for Sanctions at 13; Harrington Decl. ¶ 4.) The Court, however,

is not required to award compensatory sanctions under Rule 11, and

does not conclude they are appropriate in this case. The nature of

this case, including Plaintiff’s unreasonable federal claims and

concessions which were made near the end of the litigation, indicates

a sanction in the amount of $2,000 is sufficient to deter repetition

of this type of conduct.

 Accordingly, Brett Lawrence McKague and/or McKague & Tong,

LLP, and/or Geoffrey Owen Evers and/or the Law Office of Geoffrey O.

Evers shall pay defense counsel sanctions in the amount of $2,000. 

See Fed. R. Civ. P. 11 (c)(2)(A) (“Monetary sanctions may not be

awarded against a represented party for a violation of subdivision

(b)(2).”). The sanction shall be paid within sixty (60) days from the

date this Order is filed. 

IT IS SO ORDERED.

Dated: October 23, 2006

 

GARLAND E. BURRELL, JR.

United States District Judge

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