Metropolitan News-Enterprise


Monday, July 31, 2006


Page 3


Judges Not Entitled to Attorney’s Fees for Defending Against Frivolous Conspiracy Lawsuit—Court


By a MetNews Staff Writer


State judicial officers named as defendants in a conspiracy suit were not entitled to an award of attorney’s fees upon dismissal of the claims against them, the Ninth U.S. Circuit Court of Appeals ruled.

In a unanimous decision, the panel vacated fee awards issued by U.S. District Judge Lourdes G. Baird to various Los Angeles County bench officers sued by Darla Elwood.

Following litigation she initiated over the custody of her two children, Elwood brought suit against 14 parties involved in the custody litigation alleging they conspired to deprive her of custody.

Los Angeles Superior Court Judges William MacLaughlin, John P. Farrell, and Haig Kehiayan; Los Angeles Superior Court Commissioner Robert W. Zakon; and Juvenile Court Referee Valerie Skeba were among the named defendants. Elwood also sued the California Department of Justice, Los Angeles county child support enforcement attorney Judy Hutchinson, and Robert Drescher, an attorney who represented Elwood’s ex-husband.

Kehiayan and Zakon have since retired.

Among the various conspiracy theories Elwood set forth in her complaint was the claim that “[j]udges and commissioners of Superior Court of Los Angeles County have declared war on Darla Elwood and anyone associated with her.”

Baird granted the defendants’ motions to dismiss Elwood’s claims on various grounds. The judge then granted attorney’s fees motions brought by the DOJ, the five judicial officers, Hutchinson, and pro se defendant Drescher, finding that Elwood’s claims were frivolous, groundless, and generally without foundation.

The appellate panel concluded that Baird erred in awarding fees to the judicial officers.

Writing for the court, Judge William W Schwarzer, sitting by assignment, explained the officers were not entitled to fees because they were not technically prevailing parties. Elwood’s claims against them were dismissed either on jurisdictional or abstention grounds, not on the merits of the case, he said.

But the DOJ, which had asserted Eleventh Amendment immunity to dismiss Elwood’s claim, was entitled to fees, Schwarzer said, because Eleventh Amendment immunity is an affirmative defense rather than a jurisdictional ground for dismissal.

The panel further concluded that the fee award to Drescher was improper under U.S. Supreme Court’s case of Kay v. Ehrler, 499 U.S. 432 (1991).

The judges construed Kay’s holding, which denied fees to a pro se attorney-plaintiff, to apply generally to deny fee awards to all pro se litigants, including pro se attorney-defendants like Drescher.

Elwood’s counsel on appeal was Patricia J. Barry, who practices in downtown Los Angeles. Deputy Attorney General Sandra J. Barrientos represented the state defendants, and Anita Susan Brenner of the Pasadena-based Law Offices of Torres & Brenner, represented Hutchinson.

The case is Elwood v. Drescher, 04-55635.


Copyright 2006, Metropolitan News Company