Elwood v. Drescher , 456 F.3d 943 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARLA ELWOOD; TERRI ELWOOD; 
EDWARD ELWOOD; ANTHONY
DELAPLANE; AMY MEINKE,
Plaintiffs-Appellants,
v. No. 04-55635
ROBERT DRESCHER; ROBERT W.
ZAKON; VALERIE SKEBA; JOHN P.  D.C. No.
CV-02-04656-LGB
FARRELL; HAIG KEHIAYAN; WILLIAM
OPINION
A. MACLAUGHLIN; JUDY
HUTCHINSON, in her individual
capacity; CALIFORNIA
DEPARTMENT OF JUSTICE,
Defendants-Appellees.

Appeal from the United States District Court
of the Central District of California
Lourdes G. Baird, District Judge, Presiding
Argued and Submitted
June 5, 2006—Pasadena, California
Filed July 28, 2006
Before: Sidney R. Thomas and Ronald M. Gould,
Circuit Judges, and William W Schwarzer,*
Senior District Judge.
Opinion by Judge Schwarzer
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
8467
8470 ELWOOD v. DRESCHER
COUNSEL
Patricia J. Barry, Los Angeles, California, for the appellants.
Robert E. Drescher, Newhall, California, for appellee Dres-
cher.
Anita Susan Brenner, Law Offices of Torres & Brenner, Pasa-
dena, California, for appellee Hutchinson.
Bill Lockyer, Attorney General of the State of California, and
Sandra J. Barrientos, Deputy Attorney General, Los Angeles,
California, for appellees Zakon, Farrell, Kehiayan,
MacLaughlin, Skeba and California Department of Justice.
OPINION
SCHWARZER, Senior District Judge:
These appeals arise out of litigation initiated by Darla
Elwood over custody of two of her children. Elwood brought
two § 1983 actions alleging conspiracies by various partici-
pants in state court proceedings to deprive her of custody of
her children. The district court dismissed the actions and this
Court affirmed. Elwood v. Morin, 84 Fed. App’x 964 (9th Cir.
2004); Elwood v. Morin, 87 Fed. App’x 617 (9th Cir. 2004);
Elwood v. Drescher, 90 Fed. App’x 501 (9th Cir. 2004). The
district court then ruled on applications for attorneys’ fees
under 42 U.S.C. § 1988. It found the underlying actions to
have been frivolous and awarded fees to defendants. Elwood
appeals from those awards. In this opinion we address the
ELWOOD v. DRESCHER 8471
question whether the awards in Elwood v. Drescher, Appeal
No. 04-55635, were proper as a matter of law. In a separate
memorandum filed concurrently with this opinion, we address
Elwood’s appeals in Elwood v. Morin, Appeal No. 04-55630,
and in consolidated proceedings to prevent enforcement of the
fee awards, Nos. 05-55724 and 05-55727.
FACTUAL AND PROCEDURAL HISTORY
In Elwood v. Drescher, (Appeal No. 04-55635, D.C. No.
02-04656), Elwood appeals the award of attorneys’ fees to
defendants. This action was brought by Elwood, her son
Anthony, her parents Terri and Edward, and her friend Amy
Meinke (collectively, “Elwood”). The complaint named four-
teen defendants, but only the following sought and were
awarded fees: Robert Drescher, an attorney who represented
Elwood’s ex-husband Morin; Commissioner Robert W.
Zakon of the Los Angeles Superior Court; Referee Valerie
Skeba of the Juvenile Court; Superior Court Judges John P.
Farrell, Haig Kehiayan, and William MacLaughlin; the Cali-
fornia Department of Justice (“California DOJ”); and Judy
Hutchinson, a child support enforcement attorney for Los
Angeles county.1 The complaint alleged a variety of conspir-
acy theories involving the defendants, including that the
“[j]udges and commissioners of Superior Court of Los Ange-
les County have declared war on Darla Elwood and anyone
associated with her.”
The defendants moved to dismiss on several grounds. The
district court dismissed the claims against Drescher for failure
1
Hutchinson was sued in her individual capacity and the claims against
her were dismissed for failure to state a claim. Thus, her dismissal does
not implicate the issues addressed in the case of the other defendants.
Elwood’s contention that her claims against Hutchinson were not frivolous
lacks merit, being largely based on factual assertions which the district
court found were lacking in the complaint. We do not consider her other
contentions since they were raised for the first time on appeal. Accord-
ingly, we affirm the award of fees to Hutchinson.
8472 ELWOOD v. DRESCHER
to allege the deprivation of a constitutional right and any
meeting of the minds between Drescher and the other defen-
dants. It dismissed the claims against the state court commis-
sioner, referee, and judges as barred by either Younger
abstention2 or the Rooker-Feldman doctrine,3 and the claim
against the California DOJ on the basis of the Eleventh
Amendment.
After the dismissal was affirmed, the district court ruled on
defendants’ § 1988 motions for attorneys’ fees. It found that
the claims raised were frivolous, groundless, and generally
without foundation, and awarded the state defendants
$18,300, Drescher, who represented himself, $7875, and
Hutchinson $4033. Elwood filed a timely notice of appeal.
DISCUSSION
The district court’s award of fees is reviewed for abuse of
discretion. See Sea Coast Foods, Inc. v. Lu-Mar Lobster &
Shrimp, Inc., 260 F.3d 1054, 1058 (9th Cir. 2001). If an exer-
cise of discretion is based on an erroneous interpretation of
the law, the ruling should be overturned. In re Arden, 176
F.3d 1226, 1228 (9th Cir. 1999). We consider two issues: (1)
whether Drescher, as a pro se attorney-defendant, is entitled
to a fee award, and (2) whether the state defendants are enti-
tled to a fee award when the claims against them were dis-
missed based on Younger abstention, the Rooker-Feldman
doctrine, or the Eleventh Amendment. While the district court
found Elwood’s claims to be frivolous, normally authorizing
an award of fees to prevailing defendants, see Karam v. City
of Burbank, 352 F.3d 1188, 1195 (9th Cir. 2003), we con-
clude that fees may not be awarded to a pro se attorney-
defendant, or to defendants dismissed on Younger abstention
or Rooker-Feldman grounds. However, based on our prece-
2
Younger v. Harris, 401 U.S. 37 (1971).
3
Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals
v. Feldman, 460 U.S. 462 (1983).
ELWOOD v. DRESCHER 8473
dents, we conclude that the state defendants dismissed on the
basis of the Eleventh Amendment are entitled to recover attor-
neys’ fees. Accordingly, we vacate the fee awards to Drescher
and to the state court commissioner, referee, and judges. We
affirm the award of fees to Hutchinson and the California
DOJ, but remand for a recalculation of the fee award to the
state defendants in conformity with this opinion.
I. ATTORNEYS’ FEES AWARD TO DRESCHER
Elwood argues that Drescher, as a pro se attorney-
defendant, is not entitled to an award of attorneys’ fees under
§ 1988. This issue requires us to determine whether Ellis v.
Cassidy, 625 F.2d 227, 230-31 (9th Cir. 1980), in which we
upheld the award of fees to a pro se attorney-defendant,
remains good law in light of the Supreme Court’s decision in
Kay v. Ehrler, 499 U.S. 432 (1991).
In Kay, a pro se attorney-plaintiff sought attorney’s fees
under § 1988 for the successful prosecution of a civil rights
claim. It was undisputed that “a pro se litigant who is not a
lawyer is not entitled to attorney’s fees,” and the question
therefore was whether an attorney who represents himself
should be treated differently. Id. at 435. The statutory text did
not provide a clear answer, because “[o]n the one hand, peti-
tioner is an ‘attorney’ . . . . On the other hand, the word ‘attor-
ney’ assumes an agency relationship, and it seems likely that
Congress contemplated an attorney-client relationship as the
predicate for an award under § 1988.” Id. at 435-36.
[1] The Court turned to the purpose of the statute, and
found that “the overriding statutory concern” of § 1988 was
to promote “independent counsel for victims of civil rights
violations.” Id. at 437. Independent counsel would help filter
out meritless civil rights claims, but more importantly, the
Court found that the statute was intended to ensure “the effec-
tive prosecution of meritorious claims.” Id. “The statutory
policy of furthering the successful prosecution of meritorious
8474 ELWOOD v. DRESCHER
claims is better served by a rule that creates an incentive to
retain counsel in every such case.” Id. at 438. Accordingly,
the Court held that § 1988 did not authorize the award of fees
to pro se litigants, even if they were attorneys. Id. at 437-38.
Here, the district court distinguished Kay, noting that the
facts in that case dealt with a pro se attorney-plaintiff, while
Drescher was a pro se attorney-defendant, stating:
The [Supreme] Court’s analysis centered around
the policy reasons for providing attorney’s fees to a
prevailing plaintiff — i.e. an interest in obtaining
independent counsel for victims of civil rights viola-
tions. The Court found that “Congress was interested
in ensuring the effective prosecution of meritorious
claims.”
These same policy considerations do not exist
when the pro per attorney litigant is a prevailing
defendant rather than a prevailing plaintiff. Ensuring
that a defendant-attorney obtains counsel does [not]4
help to filter meritless claims nor ensure vigorous
prosecution of meritorious ones. In contrast, award-
ing attorneys fees to prevailing defendants protects
them from burdensome litigation with no legal or
factual basis.
[2] While we recognize that the policy considerations
affecting a pro se attorney-defendant differ from those rele-
vant to a pro se attorney-plaintiff, we find Kay to be control-
ling here for several reasons. First, although the facts of Kay
involved a pro se attorney-plaintiff, the decision sweeps
broadly, appearing to apply to pro se litigants generally. See,
e.g., id. at 435 (“We granted certiorari to resolve . . . whether
4
Based on the overall conclusion of the district court, and the use of the
word “nor” in this sentence, it appears that the district court made a typo-
graphical error and inadvertently omitted “not.”
ELWOOD v. DRESCHER 8475
a pro se litigant who is also a lawyer may be awarded attor-
ney’s fees under § 1988.”); id. at 438 (“A rule that authorizes
awards of counsel fees to pro se litigants—even if limited to
those who are members of the bar . . . .”). Nothing in the Kay
opinion suggests that it was intended to apply only to pro se
attorney-plaintiffs; instead, it appears to deny attorneys’ fees
generally to all pro se litigants, including pro se litigants who
are attorneys.
[3] Second, this broad reading is consistent with the deci-
sions we have found on this issue. While there are no pub-
lished appellate decisions applying Kay to deny § 1988 fees
to a pro se attorney-defendant, two district court opinions
have done so. Copus v. City of Edgerton, 959 F. Supp. 1047,
1052 (W.D. Wis. 1997) (denying attorney’s fees for pro se
attorney-defendant under § 1988), rev’d on other grounds,
151 F.3d 646 (7th Cir. 1998); Prewitt v. Alexander, 173
F.R.D. 438, 440 (N.D. Miss. 1996) (“only those defendants
represented by counsel may recover attorney’s fees under 42
U.S.C. § 1988”), aff’d, 114 F.3d 1183 (5th Cir. 1997) (unpub-
lished). In Prewitt, the court, while acknowledging that the
policy considerations involving a pro se attorney-defendant
are different from those of a pro se attorney-plaintiff, could
find no support for awarding fees under § 1988. Id. at 441 n.3.
The force of the court’s analysis was limited, however, as it
concluded that fees could be awarded on other grounds. Id.
[4] Courts have also viewed Kay as precluding the award
of fees to pro se attorney-defendants under other fee shifting
statutes. See Bond v. Blum, 317 F.3d 385, 398-400 (4th Cir.
2003) (applying Kay to 17 U.S.C. § 505, but ultimately con-
cluding that law firm defendants were not pro se and instead
were represented by in house counsel); DiPaolo v. Moran,
277 F. Supp. 2d 528, 536 (E.D. Pa. 2003) (applying Kay to
Rule 11 and 28 U.S.C. § 1927 to deny attorney’s fees for pro
se attorney-defendant). While none of these decisions
engaged in lengthy analysis of whether pro se attorney-
defendants should be treated differently from pro se attorney-
8476 ELWOOD v. DRESCHER
plaintiffs, all have considered Kay as applying to both. This
helps to confirm our view that Kay imposes a general rule that
pro se litigants, attorneys or not, cannot recover statutory
attorneys’ fees.
[5] Finally, we note that some of the policy considerations
discussed in Kay would be served by encouraging indepen-
dent counsel for defendants. Kay described the disadvantages
present when a lawyer represents himself in litigation.
Ethical considerations may make it inappropriate for
him to appear as a witness. He is deprived of the
judgment of an independent third party in framing
the theory of the case . . . and in making sure that
reason, rather than emotion, dictates the proper tacti-
cal response . . . . The adage that “a lawyer who rep-
resents himself has a fool for a client” is the product
of years of experience by seasoned litigators.
Kay, 499 U.S. at 437-38. We think that resort to independent
counsel for defendants, as well as plaintiffs, serves the statu-
tory policy of ensuring effective prosecution of meritorious
civil rights cases. Effective prosecution could suffer where a
pro se attorney-defendant is too emotionally and personally
involved in contested litigation to respond rationally. Such a
defendant could be incapable of exercising independent judg-
ment and could needlessly engage in dilatory or obstructionist
litigation tactics.
[6] We conclude that the award of attorneys’ fees to Dres-
cher must be vacated.
II. ATTORNEYS’ FEES AWARD TO THE STATE
DEFENDANTS
While not raised by the parties, we must sua sponte con-
sider whether the district court lacked jurisdiction to award
attorneys’ fees to the state defendants. Branson v. Nott, 62
ELWOOD v. DRESCHER 8477
F.3d 287, 293 n.9 (9th Cir. 1995). Where a claim is dismissed
for lack of subject matter jurisdiction, the defendant is not a
prevailing party within the meaning of § 1988, and the district
court accordingly lacks jurisdiction to award attorneys’ fees.
Id. at 292-93; see also Miles v. California, 320 F.3d 986, 988
(9th Cir. 2003) (extending Branson to deny Rule 54(d) costs
when dismissal is based on lack of jurisdiction).
[7] The claims against the state defendants were dismissed
on various grounds.5 The claim against Judge Kehiayan was
dismissed under Rooker-Feldman, which is a jurisdictional
ground for dismissal and precludes the awarding of attorneys’
fees. Branson, 62 F.3d at 292-93. This Court affirmed the dis-
missal of the claims against Judge MacLaughlin on the
ground of judicial immunity and in the alternative on the basis
of Rooker-Feldman. Because Rooker-Feldman provides a
jurisdictional ground for dismissal, and federal courts must
generally address jurisdictional issues first, we treat this
dismissal as one under Rooker-Feldman, and Judge Mac-
Laughlin is therefore not entitled to fees.
[8] The dismissal of claims against Commissioner Zakon
and Judge Farrell was affirmed on the ground of Younger
abstention. This Court has explained that “in cases in which
Younger applies, the federal courts have jurisdiction over the
parties’ claims; Younger abstention concerns whether they
should exercise that jurisdiction.” Meredith v. Oregon, 321
F.3d 807, 816 (9th Cir. 2003). A dismissal based on Younger
abstention signifies that the court declined to exercise juris-
diction; it makes no comment on the merits of the case, and
does not “materially alter[ ] the legal relationship between the
parties.” Farrar v. Hobby, 506 U.S. 103, 111 (1992). There-
fore, neither Commissioner Zakon nor Judge Farrell prevailed
within the meaning of § 1988, and they are not entitled to
attorneys’ fees.
5
We look to our own decision affirming dismissal of these claims to
determine the relevant basis for dismissal here.
8478 ELWOOD v. DRESCHER
In affirming the dismissal of Elwood’s claim against Juve-
nile Court Referee Skeba, we noted that “it is not entirely
clear whether the matter handled by the referee is ongoing or
concluded,” but that the claim was barred by either Younger
or Rooker-Feldman. As discussed above, attorneys’ fees can-
not be awarded based on a dismissal on either of those
grounds.
[9] Finally, the claim against the California DOJ was dis-
missed based on Eleventh Amendment immunity. While the
Eleventh Amendment prevents federal courts from hearing
cases against states, we have stated that “dismissal based on
Eleventh Amendment immunity is not a dismissal for lack of
subject matter jurisdiction,” but instead rests on an affirmative
defense. Miles, 320 F.3d at 988-89. We previously upheld an
award of attorneys’ fees under § 1988 to a defendant who suc-
cessfully raised an Eleventh Amendment immunity defense.
Franceschi v. Schwartz, 57 F.3d 828, 832 (9th Cir. 1995).
Accordingly, the California DOJ is not barred from recovery
of fees by reason of having been dismissed on the basis of the
Eleventh Amendment.
We reject Elwood’s other arguments in support of her con-
tention that the award to the California DOJ was an abuse of
discretion. The district court’s finding of frivolousness was
not an abuse of discretion, given that Elwood continued to
press her claim against the California DOJ even after the court
warned her that it appeared to be frivolous, and failed to
amend her complaint or provide any basis for overcoming the
Eleventh Amendment defense. The fee request submitted by
the attorney for the state defendants (including the California
DOJ) for 152.5 hours was not excessive. The attorney repre-
sented six parties, and spent time reviewing the complaint,
defending against two motions for declaratory judgment, pre-
paring and bringing two motions to dismiss, and making sev-
eral court appearances.
The district court did not err when it allowed the state
defendants to refile their motion for attorneys’ fees after the
ELWOOD v. DRESCHER 8479
initial motion was stricken for failure to comply with Local
Rule 7-3 requiring parties to meet and confer before filing a
motion. Rule 54(d)(2)(B) allows a district court to extend the
time for filing a motion for attorneys’ fees, and the striking of
the initial motion had no preclusive effect on the second
motion. Finally, Elwood offered no evidence in the district
court showing inability to pay the fee awards; her tax returns,
of which she asks this Court to take judicial notice, would
show only her income and not whether she has assets with
which to satisfy the fee awards.
[10] We affirm the award of attorneys’ fees to the Califor-
nia DOJ. However, because the same attorney represented all
of the state defendants, the award must be recalculated to
include only those hours spent on the claim against the Cali-
fornia DOJ.
CONCLUSION
For the foregoing reasons, we VACATE the fee awards to
attorney Drescher and to Commissioner Zakon, Referee
Skeba, Judge Farrell, Judge Kehiayan, and Judge
MacLaughlin. We AFFIRM the fee awards to attorney
Hutchinson and to the California DOJ but REMAND the lat-
ter to the district court for recalculation in conformity with
this opinion.