Enriquez v. Smith

Opinion

IN THE SUPERIOR COURT OF GUAM

2 SALVADOR ENRIQUEZ, ) 3 ) CIVIL CASE NO. CV1486-ll 4 Plaintiff, ) ) 5 vs. ) DECISION AND ORDER ) 6 ELSIE SMITH, ) 7 ) Defendant. ) 8

10 INTRODUCTION

11 This matter came before the Honorable James L. Canto II pursuant to a Decision and

12 Order issued by this Court on May, 10, 2013. An evidentiary hearing was held on June 24, 2013. Attorney Douglas B. Moylan represented Plaintiff; Attorney Robert L. Keogh appeared l3

14 on behalf of Defendant. Having considered the parties' briefs, oral arguments, and the

15 applicable law, the Court now issues the following Decision and Order.

16 BACKGROUND

17 Defendant Elsie Smith was a patient of Dr. Hugh Sulc, a dentist at Gcntlccurc Dental

18 Clinic in Tamuning. Defendant alleges that Dr. Sule initiated a root canal on her, but in the

19 middle of the procedure, he left her in the hands of a dental auxiliary who continued performing

20 the root canal. After the root canal, Defendant suffered pain and swelling of her face and eye.

21 Defendant eventually lodged a complaint with the Guam Board of Examiners for Dentistry (hereinafter "Dental Board"). During the investigation of her complaint, Defendant was asked 22

23 to view photographs to identify the dental auxiliary who assisted with the root canal. Through

24 these photographs, Defendant identified Plaintiff Salvador Enriquez. As a result, the Dental

25 Board, represented by the Office of the Attorney General (hereinafter "Attorney General"), filed

26 a disciplinary case against Dr. Sule and Plaintiff. On September 1, 2011, Plaintiff filed this civil action to allege that Defendant's 27 complaint to the Dental Board wrongfully identified him as the dental auxiliary who assisted 28

Page 1 of 12 with the root canal . (Complain 2, pt. 1 201 1.) Plaintiff claimed damages for defamation,

2 invasion of privacy and motional distres a result of D fendant 's complaint and subsequent 3 disciplinary proce dings before the D ntaJ B ard. Id. at 3-13.

4 On ept m r 21 2011 D fendant moved to di miss the complaint or alternatively to

- - - ··s obtain ummary judgm nt pu ant t th Gi-tiz n -Partj ip ti n in Government Act (h reinafter

6 ' PGA ). n January 6 2012 the urt granted fendant s motion to dismjs and declined

7 to addre alt mative relief under the P A. On appeal the upreme Court of Guam ruled 8 that

9 In instances wher a trial court is pr sentcd with any motion to dispose of a claim, 10 e en if pled alternatively that raises th immuruty from liability described in the II CPG~ the trial court should first det rmine wheth r the claim actually falls within the scope of the PGA. If the claim d e then the trial court must treat the 12 motion to dispose of the claim as on fi r summary judgment and follow the pr edures required by 7 G A § 17106. 13

14 Enriquez v. mith 2012 Guam 15 20. On this basis th matter was remanded forth trial

IS court to det rmine in the first instance h lher mith's a tions complained of in Enriquez's

16 lawsuit ar entitled to PGA protections and wh ther milh is thus entitled to the substanti

11 relief mandated by the P A. ld. at 21. n Ma 10 2013 the ourt ill rnjs th Plaintiff's claim and held that Defendant was

19 entitled to substantive lief mandated by the PGA. n June 24 2013 th ourt h ld an

20 evid ntiary bearing to d t rmin th amount, if any of D fendant s award of attorn y s fees,

21 costs and an tions. Plaintiff argues fi r th denial of san tions attorn y s fi and co or

22 that they be ubstantiall redu ed cau fi ndant s unclean hands and th 23 rat and caJ ulation of D fi ndant s attorn fi fendant contends that th

2 meth d of calculation f D fi ndant' attorn y fe s ar r onable and anction

r petition f u h c nduct by Plaintiff or th r ituated ar n ary.

2 ts an award of c mpensatory damag pursuant ~ 7 1710 (h .

27 ///

Pa e 2 f 12 DISCUSSION 2 Under Guam law, a motion to dispose of a claim on the grounds of immunity under the 3 CPGA is governed by Title 7 GCA § 17106. Because the awarding of attorney's fees, costs, 4 and sanctions under the CPGA are matters of first impression for the Court, the Court must first 5 examine the statutory language of the CPGA. See Sumitomo Constr. Co., Ltd v. Gov't of Guam, 6 2001 Guam 23 ~ 17 ("It is a cardinal rule of statutory construction that courts must look first to 7 the language of the statute itself. Absent clear legislative intent to the contrary, the plain 8 meaning prevails."). 9 On a plain reading of the CPGA, section 17106 (g)( 1) expressly states that the court 10 shall "award a moving party who is dismissed ... costs of litigation, including reasonable 11 attorney and expert witness fees, incurred in connection with the motion." 7 GCA § 12 171 06(g)(1 ). Section 171 06(g)(2) further states that a court may impose "such additional 13 sanctions upon the responding party, its attorneys or law firms as it determines will be sufficient 14 to deter repetition of such conduct and comparable conduct by others similarly situated." 7 15 GCA § 171 06(g)(2). In addition to attorney's fees and sanctions, section 17106(h) allows a 16 person who has been damaged or injured as a result of a violation of their immunity from 17 liability in furtherance of the Constitutional right to petition under section 17104 to "seek relief 18 in the form of a claim of actual or compensatory damages, as well as punitive damages, 19 attorney's fees and costs, from the person or persons responsible." 7 GCA § 17106(h). 20 As recognized by the Supreme Court of Guam, the state of the law in our jurisdiction 21 relative to the CPGA has not been extensively developed. Enriquez v. Smith, 2012 Guam 15 ~ 22 14. The issues presented before the Court are matters of first impression, and the relevant 23 Guam statute and precedent do not provide a clear answer as to the amount of attorney's fees, 24 costs, and sanctions awarded to a Defendant prevailing on a motion for summary judgment 25 under the CPGA. Taking into account the similarity between Guam's CPGA and California's 26 anti-SLAPP (strategic lawsuit against public participation) statute, as well as the lack of 27 precedential authority in the jurisdiction, the Court is persuaded that the holdings of the

Page 3 of 12 1 California courts with respect to their citizen practice statute provide guidance in this case. See

2 People v. Quenga, 1997 Guam 6 ~ 8. 3 1. Trial Court's Discretion 4 The determination of an award of attorney's fees of a prevailing party on an anti-SLAPP 5 motion lies within the bread·diser~tien ef~ tr:ial court. See Lin v. City of Pleasanton 96 6 Cal.Rptr.3d 730 (Ct.App.2009); Christian Research Institute v. Alnor, 81 Cal.Rptr.3d 866 7 (Ct.App.2008); Russell v. Foglio, 73 Cal.Rptr.3d 87 (Ct.App.2008). 8 Following a successful special motion to strike under the anti-SLAPP (Strategic Lawsuit 9 Against Public Participation) statute, the trial court must award moving parties "reasonable 1o attorney fees ... that adequately compensate them for the expense of responding to a baseless 11 lawsuit." Jackson v. Yarbray, 101 Cal.Rptr.3d 303, 317 (Ct.App.2009). Although the award of 12 attorney fees is mandatory under the anti-SLAPP statute, the amount of the fee is discretionary. 13 Kearney v. Foley and Lardner, 553 F.Supp.2d 1178, 1184 (S.D.Cal.2008). Therefore, the 14 Court has the discretion to award the Defendant attorney's fees and costs as the Court deems

15 reasonable and appropriate. 16 2. Burden of Proof 17 As the moving party, a defendant seeking fees and costs bears "the burden of 18 establishing entitlement to an award and of documenting the appropriate hours expended and 19 hourly rates." Christian Research Institute, 81 Cal.Rptr.3d 866 at 870 (quoting 20 ComputerXpress, Inc. v. Jackson, 113 Cal.Rptr.2d 625, 649 (Ct.App.2001)). A trial court must 21 have "substantial evidence" to support an award of attorney fees under California's anti-SLAPP 22 statute. Kearney v. Foley and Lardner, 553 F.Supp.2d 1178, 1185 (S.D.Cal.2008) (citing 23 Macias v. Hartwell, 64 Cal.Rptr.2d 222, 226 (Ct.App.1997); Church of Scientology of 24 California v. Wallersheim, 49 Cal.Rptr.2d 620, 638-39 (Ct.App.1996)); see also 25 ComputerXpress, 113 Cal.Rptr.2d at 649 ("the court may require defendants to produce records

26 1 27 The Supreme Court of Guam considered the holdings of California and Illinois courts regarding their citizen participation statutes, stating they are similar to Guam's CPGA. See Enriquez, 2012 Guam 15 IJIJ 14-16. 28 California's case law history on this issue is far broader than that of Illinois, which is more nascent and does not extend much beyond Sandholm v. Kuecker, 962 N.E.2d 418 (lll.2012), which is not instructive here.

Page 4 of 12 sufficient to provide a proper basis for determining how much time was spent on particular

2 claims."). 3 In this case, Defendant's attorney produced the retainer agreement and documentation of 4 the time he spent representing defendant Smith, as well as the costs and expenses incurred on 5 this matter. The Court finds the Defendant produced records sufficient to support an award . of

6 attorney's fees. 7 3. Calculation of a Reasonable Award 8 The court is not constrained by the amount sought by the successful moving party, but is 9 obligated to award reasonable attorney fees that adequately compensate the party for the 10 expense of responding to a baseless lawsuit. Jackson v. Yarbray, 101 Cal.Rptr.3d 303, 317 11 (Ct.App.2009). The anti-SLAPP statute "is broadly construed so as to effectuate the legislative 12 purpose of reimbursing the prevailing defendant for expenses incurred in extricating herself 13 from a baseless lawsuit." Wilkerson v. Sullivan, 121 Cal.Rptr.2d 275, 277 Ct.App.2002) 14 (emphasis added). As stated earlier, the trial court must award successful moving parties 15 "reasonable attorney fees ... that adequately compensate them for the expense of responding to 16 a baseless lawsuit." Jackson, 101 Cal.Rptr.3d at 317. (emphasis added). "'Padding' in the form 17 of inefficient or duplicative efforts is not subject to compensation." Premier Medical 18 Management Systems, Inc. v. California Ins. Guarantee Ass 'n, 77 Cal.Rptr.3d 695, 700 19 (Ct.App.2008). 20 In the case at bar, Plaintiff filed his defamation complaint on September 1, 2011. On 21 September 21, 2011 at 4:11 p.m., the last day for an answer or responsive pleading to be filed, 22 Defendant filed her Motion to Dismiss or in the Alternative, Motion for Summary Judgment and 23 Motion for Sanctions and Punitive and Compensatory Damages. At 8:30 a.m. September 22, 24 2011, Plaintiff filed a Notice of Dismissal, attempting to voluntarily his lawsuit pursuant to 25 GRCP Rule 41(a)(l); however, the dismissal was untimely and thus invalid since Defendant had 26 already filed a responsive pleading the previous day. As stated above, the intent of the CPGA is 27 to award attorney's fees incurred for responding to, or extricating oneself from, a baseless 28 lawsuit. The Court finds that litigation to defend against the lawsuit was unnecessary after the

Page 5 of 12 Plaintiff sought to eli miss it. ln fact, Defendant strove to keep Plaintiff's lawsuit alive by filing

2 a formal, written objection to Plaintiffs attempt to dismiss theca e. This beli the pirit of the 3 P A insofar as seeking attorney s fees for acts which are not de igned to fre on elf from the

4 oppressive yoke of a baseless lawsui~ but which instead fight to maintain and e acerbat it. - --·-- -5 either w uld a eli mi aJ · f th mplaint p v nt D fi ndant from king-relief for dam g

6 attorney fi and co ts incurred up until that poin becau 7G A 171 06 h provides that

7 an aggrieved party may file a parate action for just that purpos . Therefore the ourt d ems

8 that the work billed aft r September 21 201 l and before December 11 2012 is not of the sort

9 cont mplated by th PGA as appropriat for r muneratio~ and th ourt will not award

10 attorneys fee or costs for work incurred during that period. However the ourt will address

11 the pertinent portion of Defendant s CPGA motion filed eptember 21 2011 and treat it as a

12 eparate complaint filed pursuant to 7 G A 171 06(h.) to recover compensatory damages

13 punitive damages attorneys fees and costs for Plaintiff's violation of the PGA. Accordingly,

14 the court accepts as relevant all work performed on and after D cemb r J l 2012 as this work

IS was performed purely to advanceD fendaot's CPGA c1aim.

16 The ourt will cal ulate the am unt of attorney fees award under the anti- LAPP statute

17 in accordance with th lodestar' method. Ketchum v. Mo e 104 aJ.Rptr.2d 377 386-87

18 a1.200 1 . od r the m thod a court caJcuJat 'th attorn y fe t u hston or

19 1 destar by multiplying th number of hour rea nably expended by th reasonabl hourly rate 20 communit for similar w rk. abral v. Martin 99 al.Rptr.3d 394 411

21 ( t.App.2009 · e al o hri tian Resear h Institute 81 CaJ.RptT.3d t 70 (when computing 22 an ttom y award t a d n ndant prevailing o a pecial motion t strik under the anti- APP

23 statut a trial court begins wilh a touchstone r I destar figur based on car ful compilation of

24 th tim pent and rea nab I hourly compensation of each attorney inv lved in the pre entation

2 calculati n of th lodestar may b adju t d th c urt ba ed on lhe

26 ft JJowing factors: (1 1h no elty and difficulty f th qu d (2 th kill displayed

27 in pre entin th m ( th extent to ' hi h lh n tur of th liti ati n pr lud d th r

2 employm nt y lh attorn ys, 4) th ntio nt oatur of th £ a' ard . K •tchum I 04

Pa e 6 of 12 Cal.Rptr.2d at 384. See Russell, 73 Cal.Rptr. at 93 (in determining a reasonable award of 2 attorney's fees for the prevailing party, courts have considered the following factors: the nature 3 of the litigation, the complexity of the issues, the experience and expertise of counsel, and the 4 amount of time involved.); Wilkerson v. Sullivan, 121 Cal.Rptr.2d 275, 279 (Ct.App.2002) 5 (courts consider whether the amount requested is based upen unnecessary or duplicative work). 6 The lodestar adjustment approach also "allows a court awarding attorney fees to include 7 a fee enhancement for the purpose, e.g., of compensating the attorney who agreed to undertake 8 such representation at the risk of nonpayment or delayed payment, in an amount approaching 9 the market rate for comparable legal services." Ketchum, 104 Cal.Rptr.2d at 387. The 10 California Supreme Court reasoned as follows: 11 Under our precedents, the unadorned lodestar reflects the general local hourly rate 12 for a fee-bearing case; it does not include any compensation for contingent risk, 13 extraordinary skill, or any other factors a trial court may consider under Serrano III. The adjustment to the lodestar figure, e.g., to provide a fee enhancement 14 reflecting the risk that the attorney will not receive payment if the suit does not succeed, constitutes earned compensation; unlike a windfall, it is neither 15 unexpected nor fortuitous. Rather, it is intended to approximate market-level 16 compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees. 17 Ketchum, 104 Cal.Rptr.2d at 389. 18 In this case, Defendant's attorney, Mr. Keogh, produced documentation of the time he 19 spent representing Defendant and the costs and expenses incurred on this matter. With the 20 foregoing in mind, the Court will consider the attorney's fees and costs in two groups: 1) 21 attorney's fees and costs before May 10, 2013, the date the Plaintiffs complaint was dismissed 22 pursuant to the CPGA by this Court; and 2) attorney's fees and costs after May 10,2013. 23 a. Attorney's Fees and Costs Before May 10,2013 24 After reviewing the declarations herein, the Court finds, for purposes of the application 25 of7 GCA §§ 17101 et. seq. to these facts, that Mr. Keogh's contingent attorney fee rate of $350 26 per hour was a reasonable rate in the community. In this case, declarations were submitted to 27 show that lawyers with Mr. Keogh's experience charge around $250 per hour or more in non- 28 contingency fee cases. Taking into account the fact that this was a contingency fee-based

Page 7 of 12 arrangement on a novel issue in Guam where Mr. Keogh took on the risk of nonpayment if 2 Defendant was unsuccessful at recovering any amount, the $350 per hour rate was reasonable 3 rate until May 10, 2013 when this Court dismissed the Plaintiffs claims and held that 4 Defendant was entitled to substantive relief mandated by the CPGA. Further, the Court does 5 not find that the time amounts set··forth in Mr. Keogh's billings wer.e outside the scopeof7 6 GCA § 17106. Therefore, Plaintiff is entitled to attorney's fee for 47.10 hours at the rate of 7 $350 per hour, which equals $16,485.00 for services plus $716.32 for incurred costs, totaling 8 $17,201.32. This reflects the reasonable work performed and costs incurred up to September 21, 9 2011, and from December 11,2012 to May 10,2013. 10 b. Attorney's Fees and Costs After May 10, 2013 11 Under the California anti-SLAPP statute, "an award of fees may include not only the 12 fees incurred with respect to the underlying claim, but also the fees incurred in enforcing the 13 right to mandatory fees." Ketchum, 104 Cal.Rptr.2d 3 77 at 390. A majority of California courts 14 have held that "absent circumstances rendering the award unjust, fees recoverable ... ordinarily 15 include compensation for all hours reasonably spent, including those necessary to establish and 16 defend the fee claim." Id. at 391 (alteration in original) (citation omitted). 17 In this case, the Court dismissed the Plaintiffs claims and held that Defendant was 18 entitled to substantive relief mandated by the CPGA on May 10, 2013. Once Plaintiff's claims 19 were dismissed under the CPGA, attorney fees were mandatory under the CPGA and an award 20 offees was no longer contingent. See Ketchum, 104 Cal.Rptr.2d 377 at 391 (once the motion to 21 strike under the anti-SLAPP statute was successful, attorney's fees were mandatory under Code 22 of Civil Procedure section 425.16(c) and, accordingly, no longer contingent). For this reason, 23 the contingency fee rate of $350 per hour shall not be used to calculate the fees after May 10, 24 2013. Instead, the $250 per hour rate that Mr. Keogh employs for non-contingency related 25 matters shall be applied. Thus Plaintiff is entitled to attorney's fee for 18.65 hours, the number 26 ofhours of professional services rendered by Mr. Keogh after May 10, 2013, at the rate of$250 27 per hour, which equals $4,662.50 for services plus $228.00 for incurred costs, totaling

28 $4,890.50. This reflects the period after May 10, 2013.

Page 8 of 12 c. Total Award of Attorney's Fees and Costs 2 Adding the attorney's fees and costs for the two periods, the total award of the attorney's 3 fees and costs to Plaintiff is $22,091.82. 4 4. Sanctions 5 Neither the Galifomia anti-SLAPP statute nor the Illinois Citizen Participation Act 6 employs the term "sanctions." See CAL.CIV PRO.CODE 425.16 (West 2011); 735 7 ILL.COMP .STAT.ANN. 110/25 (West 2007). This absence of additional sanctions implies the 8 California and Illinois legislatures intended the award of attorney's fees and costs to be a 9 sufficient punitive and deterrent measure. However, Guam's anti-SLAPP statute differs from 10 those of California and Illinois in this respect. In Guam's CPGA, "the court shall award a II moving party who is dismissed, without regards to any limit under Guam law: ... (2) such I2 additional sanctions upon the responding party, its attorneys or law firms as it determines will 13 be sufficient to deter repetition of such conduct and comparable conduct by others similarly I4 situated." 7 GCA § 17106(g)(2). 15 The facts of this case fall precisely within the ambit of the CPGA. In the instant case I6 Plaintiff, a dental auxiliary, filed a defamation action against Defendant because Defendant I7 made a complaint against him to the Guam Board of Examiners for Dentistry, wherein she IS alleged Plaintiff performed dental malpractice or substandard treatment upon her, causing her I9 pain and injury. In enacting the CPGA, the Legislature declared that it recognized citizens' 20 rights to petition their govemment as an inalienable right; that it sought to secure that right to 2I petition the govemment for redress of grievances; and that it affirmed that claims, opinions and 22 information provided by citizens to their govemments are essential to public health. 7 GCA § 23 171 02(a)( 1) & (2). Such was the case here, where Defendant made a complaint to the Board of 24 Examiners for Dentistry regarding the quality of treatment she received from a dental auxiliary, 25 and where that complaint, its contents and its subject all come under the purview of the Dental 26 Board pursuant to 10 GCA §§ 1241 7 through 124 71 , inclusive. Further, the Legislature found 27 civil lawsuits are filed against citizens based on their valid exercise of their right to seek relief, 28 to influence action and to inform a government body. 7 GCA § 17102(a)(3). This equally

Page 9 of 12 applies to the instant case, where Plaintiff filed a defamation action against Defendant solely 2 based upon her complaint to, and testimony before, the Dental Board. 3 The Legislature acknowledged that "while some citizen communications to government 4 inevitably will be incorrect, unsound, self-interested or not in good faith, it is essential ... [for] s citizens toparti<7ipateft~Uy in thepro<7e5sDfgovernrnent". 7 GCA § 17102(a)(9). Totheseends, 6 the Legislature held the purposes of the CPGA include "the protection and regulation of public 7 health, safety and welfare by protecting public participation in government programs, public 8 policy decisions and other actions". 7 GCA § 17102(b)(3). The Government of Guam has an 9 expressed, legitimate interest in protecting public health and, to that extent, the Government 10 licenses and regulates dentists and dental auxiliaries. Necessary to this process is the protection II of the ability of citizens who receive dental treatment from licensed professionals to inform the 12 Dental Board, as a regulatory body, of allegations that a dental care provider has performed

I3 malpractice or provided substandard care. I4 The Court previously found Defendant's acts to be proper petitioning activity, and I5 Plaintiffs lawsuit filed in retaliation falls squarely under the definition of a SLAPP lawsuit. See 16 7 GCA § 17102(a)(3), (6) & (7). Given the aforementioned legislative intent ofthe CPGA and I7 the facts before the Court, the Court finds it necessary in the context of the present case to I8 sanction Plaintiff to deter repetition of his conduct and comparable conduct by other health I9 professionals. Thus the Court hereby imposes a sanction upon Plaintiff pursuant to 7 GCA § 20 171 06(g)(2) in the amount of Twenty Thousand Dollars ($20,000.00). The Court finds this 2I amount to be appropriate and necessary to prevent probable recidivism and deter others

22 similarly situated. 23 5. Compensatory Damages 24 Under Guam law, a person damaged or injured by reason of a claim filed in violation of 25 their immunity under the CPGA may seek relief in the form of a claim for compensatory 26 damages from the person or persons responsible. 7 GCA §17106(h). Defendant seeks an award 27 of compensatory damages for the damages Defendant has suffered as a result of this lawsuit.

Page 10 of 12 In order to conduct a meaningful review, the parties must articulate their arguments in a 2 way that allows a court to apply the recognized rules of law. Lamb v. Hoffman, 2008 Guam 2 ~ 3 35. "It is not sufficient for a party 'simply to announce a position or assert an error and then 4 leave it up to this Court to discover and rationalize the basis for his claims, or unravel and 5 elaborate for him his arguments, and then search for authority either to sustain or reject his 6 position.'" I d. (citation omitted). 7 In support of her claim for compensatory damages, Defendant states as follows: 8 "Defendant Elsie Smith has been wronged and has suffered as a result of this frivolous lawsuit. 9 This award is committed to the sound discretion of the court." (Defendant's Trial Memorandum, 10 7, 7/112013). However, Defendant fails to articulate the type of damage or the extent of her 11 suffering resulting from the Plaintiffs actions. Furthermore, she fails to show that Plaintiffs' 12 conduct was the proximate cause of the harm that she suffered, whatever it may be. In the 13 absence of such evidence, the Court cannot award compensatory damages.

14 6. Unclean Hands 15 The doctrine of unclean hands is an affirmative defense by the non-prevailing party to 16 prevent a prevailing party from obtaining relief. See Guam Top Builders, Inc. v. Tanota 17 Partners, 2012 Guam 12 ~ 26 (citation omitted). It is invoked when "one seeking relief in

18 equity has violated conscience, good faith or other equitable principles in his prior conduct." !d. 19 (citing Fibreboard Paper Prods. Corp. v. E. Bay Union of Machinists, Local 1304, 39 Cal.Rptr. 20 64, 96 (Ct.App.1964)). Plaintiff claims that Defendant acted with "unclean hands" when she 21 wrongly identified Plaintiff as the person who allegedly injured her and failed to take 22 affirmative action for over a year and a half to clear Plaintiffs good name. (Trial Mem., 2-8, 23 Jun. 24, 2013). However, Defendant testified that she believes that Plaintiff was the one who 24 assisted with the root canal that caused her harm, despite Mr. Julao' s insistence that he was the 25 dental auxiliary that assisted Dr. Sule in Defendant's dental procedure. (Testimony of Elsie 26 Smith, Record Log at 3:59, Jun. 24, 2013). Because the Court received no evidence to indicate 27 Defendant possesses anything other than a genuine belief that Plaintiff was the dental auxiliary 28 that assisted with the dental procedure at issue, the doctrine of unclean hands does not apply.

Page 11 of 12 Ill .2 ///

3 Ill 4

? L 10 6 Based upon the foregoing Defendant is entit1ed to an attorney' s fee and costs award of 1 Twenty-Two Thousand N'mety- ne Dollars and Eighty-Two Cents ($22 09 J.82) pursuant t 7

G A § 171 06 g)( 1). Further th Court impos a sanction up n Plaintiff pursuant to 7 G A § 9 171 06(g)(2) in the amount of Twenty Thousand Dollars ( 20 000.00). Both these amounts 10 totaljng Forty-Two Thousand inety-One Dollars and ighty-Two nts ( 42 1. 2) hall be

11 immediately due and owing to D fendant by the Plaintiff.

14 .•, .......,. ..,D thi 3 /iT' da of October, 2013. IS

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