Barbara Hubbard v. Flava Enterprises , 630 F. App'x 681 ( 2015 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 12 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA HUBBARD, No. 13-56571
Plaintiff - Appellant, D.C. No. 3:09-cv-01581-JLS-
WVG
v.
PLAZA BONITA, LP, MEMORANDUM*
Defendant,
and
FLAVA ENTERPRISES, INC., DBA
House of Flava and HOT TOPIC, INC.,
DBA Torrid #5056,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted November 5, 2015**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: SCHROEDER and FRIEDLAND, Circuit Judges and CHHABRIA,***
District Judge.
The Appellant, Lynn Hubbard III, represented his mother in a lawsuit
against a shopping mall and its tenants, alleging they denied her equal access to
their facilities in violation of the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. §§12101 et seq. Hubbard's mother died during the litigation,
but after her death he sent at least one of the defendants a settlement agreement
purportedly signed by her, without informing the defendant that she had died. The
district court sanctioned Hubbard for this conduct, and he appeals. We review for
abuse of discretion, and must affirm the district court's ruling unless it was based
on legal error or clearly erroneous findings of fact. Haeger v. Goodyear Tire &
Rubber Co., 793 F.3d 1122, 1131 (9th Cir. 2015); Lahiri v. Universal Music &
Video Distrib. Corp., 606 F.3d 1216, 1218 (9th Cir. 2010). We affirm.
The district court sanctioned Hubbard under 28 U.S.C. § 1927 and pursuant
to its inherent powers. Under § 1927, a district court may sanction an attorney who
“multiplies the proceedings in any case unreasonably and vexatiously,” if the
attorney's conduct was reckless or in bad faith. Lahiri, 606 F.3d at 1219. Before
imposing sanctions pursuant to its inherent powers, the district court must find
“bad faith or conduct tantamount to bad faith.” B.K.B. v. Maui Police Dep’t, 276
***
The Honorable Vince G. Chhabria, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
2
F.3d 1091, 1108 (9th Cir. 2002) (quoting Fink v. Gomez, 239 F.3d 989, 994 (9th
Cir. 2001)).
On this record, the district court's finding that Hubbard acted recklessly and
in bad faith was not clearly erroneous. Any rational attorney representing a
plaintiff in an ADA access case would know that if his client died, the defendants
would want to know about it, especially before signing a settlement agreement that
promised prospective relief. And by sending the defendant an agreement after his
mother's death that purported to contain her signature when it was not in fact her
signature, Hubbard created the impression that she was still alive. Hubbard
provides no coherent innocent explanation for this conduct, and the most logical
conclusion to be drawn is that he intended to deceive the defendant. Such conduct
rises to the level of recklessness and bad faith. Accordingly, the district court did
not clearly err in making that finding, and did not abuse its discretion in
sanctioning Hubbard.
Hubbard also contends the amount of the sanction was an abuse of
discretion. The district court required Hubbard to pay the defendant $49,056.05 in
attorneys' fees. This reflected the fees incurred by the defendant in the wake of its
discovery of the problem with the settlement agreement. For example, the
defendant incurred fees investigating the authenticity of the signature, researching
the legal impact of the plaintiff's death on the lawsuit, participating in a settlement
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conference with the magistrate judge after learning about the deception, and
moving for sanctions. The defendant's counsel sought fees for work that was
arguably tangential to the conduct for which Hubbard was sanctioned, and the
district court conscientiously refused to include that work. Overall, the amount of
the fee award was reasonable, and was the product of a discerning review by the
district court. See, e.g., Haeger, 793 F.3d at 1138; Lahiri, 606 F.3d at 1222–23.1
Finally, Hubbard contends he did not receive adequate notice that he could
be sanctioned for his misleading conduct. Before sanctioning an attorney, a district
court must provide notice of the “particular alleged misconduct” that could warrant
sanctions. Price v. Lehtinen (In re Lehtinen), 564 F.3d 1052, 1060 (9th Cir. 2009)
(quoting Miller v. Cardinale (In re Deville), 361 F.3d 539, 548 (9th Cir. 2004)).
Hubbard received such notice. The order to show cause issued by the magistrate
judge asked “why sanctions should not be imposed on [Hubbard] for allegedly
placing Plaintiff's signature on settlement documents prior to and after her death.”
The order also asked why Hubbard should not be sanctioned for pursuing a
settlement agreement that would give prospective relief to the plaintiff
notwithstanding her death, and for “failing to timely disclose to the Court
Plaintiff's death.” This adequately encompasses the conduct for which the district
1
The appellee argues that the district court erred in refusing to include
certain billings in the fee award, but the appellee neither preserved this issue below
nor cross-appealed on it, so it is waived. See Simpson v. Lear Astronics Corp., 77
F.3d 1170, 1174 (9th Cir. 1996).
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court ultimately sanctioned Hubbard.
Hubbard's motion to strike the answering brief and supplemental excerpts of
record is denied as moot because we do not rely upon the materials to which
Hubbard objects. Hubbard's request for judicial notice is denied for the same
reason. Finally, Hubbard’s motion for monetary sanctions is denied. See
Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1128 (9th Cir. 2009) (“The
consequences of [counsel]’s violation are too minimal to justify monetary
sanctions.”).
The district court’s judgment is AFFIRMED.
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