Opinion
Alan S. Gutman, Attorneys Present for Plaintiffs.
Douglas S. Fee, Attorneys Present for Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR ATTORNEY'S FEES
DALE S. FISCHER, District Judge.
I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND
Having prevailed on their Motion For Summary Judgment filed October 23, 2003, Defendants now seek their attorney's fees incurred during the litigation, and in connection with the instant motion. Defendants' Motion For Attorney's Fees Pursuant to 42 U.S.C. § 1988 was filed March 26, 2004. The Opposition of Plaintiff Jeffrey M. Galen to Defendants' Motion for Attorney's Fees Pursuant to 42 U.S.C. § 1988 ("Opp."), Plaintiff Jeffrey M. Galen's Evidentiary Objections Filed in Support of His Opposition, and the Declaration of Alan S. Gutman in Support of Plaintiff Jeffrey M. Galen's Opposition to Defendants' Motion for Attorney's Fees Pursuant to 42 U.S.C. § 1988 were filed April 12, 2004. Defendants' Reply to Plaintiff's Opposition to Motion for Attorney's Fees Pursuant to 42 U.S.C. § 1988, Defendants' Response to Evidentiary Objections Re: Motion For Attorney's Fees, and Declaration of Debra Houston in Support of Defendants' Reply to Plaintiff's Opposition to Motion For Attorney's Fees Pursuant to 42 U.S.C. § 1988 were filed April 19, 2004. Defendants' Notice of Lodging and Declaration of Michael J. Bloch were filed April 23, 2004. The Court heard oral argument on April 26, 2004.
The Court adopts the "Procedural History and Factual Background" portions of its Order Granting Defendants' Motion For Summary Judgment filed January 9, 2004 ("Order").
II. LEGAL STANDARD
In any action or proceeding to enforce a provision of [42 U.S.C. § 1983] the court, in its discretion, may allow the prevailing party... a reasonable attorney's fee as part of the costs...." 42 U.S.C. § 1988(b). In Hughes v. Rowe , 449 U.S. 5, 14 (1980), the Supreme Court adopted for claims under this section the standard it had established in Christiansburg Garment Co. v. EEOC , 434 U.S. 412 (1978). A defendant may not recover fees unless "the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Id . Unlike a prevailing plaintiff, a prevailing defendant "should be awarded fees not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.'" Mayer v. Wedgewood Neighborhood Coalition , 707 F.2d 1020, 1021 (9th Cir. 1983) (citations omitted). This test applies not only to the time the suit is filed, but throughout the litigation. Christiansburg , 434 U.S. at 422 (fees may be assessed when plaintiff continued to litigate after the claim clearly became "frivolous unreasonable or groundless").
An action may be considered unfounded where plaintiff failed to pursue discovery essential to establishing his allegations. See Pierzynowski v. City of Detroit , 947 F.Supp. 1147, 1149 (E.D. Mich. 1996).
That a court has previously denied a motion to dismiss - or even a motion for summary judgment - does not suggest that a prevailing defendant is not entitled to attorney's fees. Maag v. Wessler , 944 F.2d 654, 657-58 (9th Cir. 1991).
Fees incurred in connection with the fee motion itself are recoverable. Margolis v. Ryan , 140 F.3d 850, 854 (9th Cir. 1998). Only reasonable fees are permitted and the court must "independently review plaintiff's fee request even absent defense objection." Gates v. Deukmejian , 987 F.2d 1392, 1401 (9th Cir. 1984).
A court can abuse its discretion by denying fees where an award is appropriate, as well as by granting them where it is not. Saman v. Robbins , 173 F.3d 1150, 1157-58 (9th Cir. 1999). The amount to be awarded is based on the "lodestar determination" in which the Court calculates the number of hours reasonably spent by each attorney and multiplies their time by a reasonable hourly rate. Jordan v. Multnomah County , 815 F.2d 1258, 1262 (9th Cir. 1987).
Finally, a court "should consider the financial resources of the plaintiff in awarding fees to a prevailing defendant." Miller v. Los Angeles County Board of Education , 827 F.2d 617, 621 (9th Cir. 1987).
III. ANALYSIS
A. Eighth Amendment Claim
Because Defendants prevailed as to their motion to dismiss Galen's Fourteenth Amendment claim, he proceeded only on the theory that his Eighth Amendment rights had been violated. Galen argues in opposition to Defendants' motion for fees that his claim was not frivolous, etc. because there are no controlling authorities on the issue of what constitutes "excessive" bail. Obviously the Court agrees that what constitutes "excessive" bail is unclear. See Order at 9-12. Galen also argues his "constitutional right to be free from excessive bail" is "clearly established." Again, even Defendants do not argue that Galen had no such a right. But Galen's argument that he "was advancing issues of first impression in this district, " Opp. at 10, misses the point. Indeed, it establishes Defendants' position that the individual defendants had to be entitled to qualified immunity (unless, as discussed below, they had deliberately lied to increase Galen's bail to an excessive bail).
Galen's argument that if he cannot raise this issue of first impression "then no criminal defendant could ever bring an excessive bail claim under the Eighth Amendment in this district, and the Eighth Amendment would be rendered meaningless, " Opp. at 10, is mistaken. Nothing precludes a criminal defendant from making a novel excessive bail claim, and asking a reviewing court to reverse a judicial officer's finding. The doctrine of qualified immunity, however, does preclude an officer's liability where no reasonable officer could have determined that the bail was excessive (issues of causation aside).
While the law concerning "excessive" bail is admittedly sparse or non-existent, the law concerning qualified immunity is not.
Qualified immunity is an entitlement not to go to trial, not merely a defense against liability. Saucier v. Katz , 533 U.S. 194, 200 (2001). It should be decided early in the proceedings. Id . It is abundantly clear that analysis of the qualified immunity defense is a two step process. The initial inquiry is whether, on the facts alleged, a constitutional right has been violated. If no such right has been violated, plaintiff cannot prevail. 533 U.S. at 200 , 201. If a violation of a constitutional right does or may exist, the Court must consider whether that right was "clearly established." "Clearly established" means the "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." 533 U.S. at 201, citing Anderson v. Creighton , 483 U.S. 635, 640 (1987). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id . (emphasis added). In other words, "the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established." Wilson v. Layne , 526 U.S. 603, 615 (1999). Although law enforcement officers must be aware of constitutional developments, they are not expected to do so to the same extent as law professors, for example. A "reasonable person" standard applies. Ward v. San Diego County , 791 F.2d 1329, 1332 (9th Cir. 1986), cert. denied, 483 U.S. 1020 (1987).
Thus even if Galen's claim that the bail was excessive - and that his Eighth Amendment rights had therefore been violated - had succeeded, Galen would still have to prove that in this context a reasonable officer would have known he was violating that right. Galen's "first impression" argument defeats his own claim on this issue. There was admittedly no Supreme Court, Ninth Circuit, California, or other law from which Heinrich and Barrier could have gleaned that the requested bail amount was excessive. Had they (or Galen) attempted to find such law, they would have found federal constitutional law permitting detention, and state law emphasizing the prime consideration of public safety, especially in the context of crimes of domestic violence. As Galen focused repeatedly and exclusively on the absence of flight risk, one can only conclude that he failed to investigate the law, or deliberately failed to address what he knew would be a losing argument in that regard. Had Galen made a reasonable inquiry into the law of qualified immunity, he would have discovered Defendants' entitlement not to go to trial on these facts. He had to have known the officers would be entitled to qualified immunity unless they had deliberately caused his bail to be excessive by providing false information.
Galen should have discovered early on that Sergeant Barrier had no part in providing any allegedly false information.
In opposing the motion for summary judgment, Galen contended he was a recognized expert in the civil rights field.
Galen contends there was false information in his file. Galen is correct. Even though the parameters of excessive bail were not clearly established, Galen's pursuit of the litigation would not have been so frivolous, etc. as to merit an award of fees if this false statement had actually caused the significant increase in bail. Therefore, the Court concludes that initiating the action was not completely frivolous. Galen was required, however, to pursue this issue in discovery rather than proceeding to a trial without evidence, or perhaps hoping for a settlement.
Galen greatly exaggerated the extent of the false information. Only the statement that the victim required medical treatment was false.
Though the Court cannot determine with precision when Galen should have concluded his case had no merit, it was certainly before Defendants filed their motion for summary judgment. At that point, after conferring with counsel as required by Local Rule 7-3, Galen should have dismissed his suit.
B. The Monell Claim
The County of Los Angeles unquestionably had no liability in the absence of a policy, custom or practice that was the "moving force of the constitutional violation." Monell v. Department of Social Services , 436 U.S. 658, 694 (1978). In other words, there had to be both a policy or custom and a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation." See City of Canton v. Harris , 489 U.S. 378, 385 (1989).
[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the "moving force" behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. [Emphasis in original.]
Board of County Commissioners of Bryan County v. Brown , 520 U.S. 397, 404 (1997).
But Galen had no evidence of a policy, custom or practice that had either the purpose of encouraging Los Angeles Superior Court judicial officers to set excessive bail or the effect of causing that result.
Galen contended without support that the County had a policy, custom, or practice of violating Penal Code section 1270.1, which provides:
Before any person who is arrested for [a violation of Penal Code section 273.5] may be released on bail in an amount that is either more or less than the amount contained in the schedule of bail for the offense..., a hearing shall be held in open court before a magistrate or judge.
Clearly the opposite was true. The County's policy (as set forth in the Manual obtained by Galen) implemented the requirements of Penal Code section 810 that arrestees be advised of their right to request a release on their own recognizance or on a reduced bail. Galen provided no evidence of a violation of state law by the County - much less a policy, custom or practice to do so.
Even if the County violated state law - and had a policy that encouraged that practice - violation of state law alone does not support a section 1983 claim. The County's policy, as evidenced by the Manual, was to provide arrestees with information concerning their right to seek a bail reduction from a commissioner. Galen never presented any evidence to the contrary.
Unquestionably, Galen's bail was increased without a hearing in open court. Galen argues that "[w]ithout the commissioner's written findings of fact supporting the enhancement, Galen could not establish by direct evidence the facts relied on by the commissioner in making his determination. Even had Galen been able to determine which facts were conveyed by defendants to the senior aide, or in turn by the senior aide to the commissioner, that would constitute only circumstantial evidence, not dirct evidence, of what the commissioner relied upon in increasing bail." Opp. at 11-12.
Galen contends he cannot be "penalized" for being unable to establish fact what facts the commissioner relied on. First, awarding fees to a prevailing defendant is not a "penalty." It is compensation for the cost of defending a frivolous and meritless lawsuit. More importantly, Galen certainly knew that he had the burden of proving his claims. Once he knew he would be unable to meet that burden, he was required to dismiss the suit. See Christiansburg , 434 U.S. at 422. Finally, as defendants point out, Galen made no effort to ascertain what information was provided. As he and his counsel obviously understood what was needed to prevail, it was incumbent on him to seek and obtain evidence, if it existed, or cease his pursuit of the County.
Giving Galen the benefit of the doubt, the Court concludes that, knowing that his bail had been increased without a hearing in open court, Galen might have believed that some policy of the County was responsible. However, on learning of the contents of the Manual, and the procedure for obtaining bail increases, Galen should have dismissed his suit. Again the Court cannot tell precisely at what point Galen should have reached this realization, but it was certainly when discovery had been completed and Defendants advised they would bring their summary judgment motion.
C. Detective Holland
Galen made no pretense of having a claim that Detective Holland was responsible for his allegedly excessive bail. Though he did not actively pursue his suit as to her, he did not dismiss her either - even after questioning from the Court as to her status. Defendants have failed to show, however, what specific fees they incurred in defending Detective Holland. Therefore, the Court declines to award fees relating to Galen's suit against Holland.
D. Amount of Fee Award
Though it is highly likely that at least some of the discovery expense was unnecessarily incurred as a result of Galen continuing to pursue the litigation after he must have known it was frivolous, the Court cannot easily discern what amount that might be. The Court declines to award fees for a partially unsuccessful motion to dismiss, for opposing Plaintiff's successful motion to amend, for discovery and for "general administration."
Because bad faith is not required for an award of attorney's fees, the Court does not address that issue. Suffice it to say there was evidence in the record from which the Court likely could have made such a finding.
The Court does not suggest the request for these fees was improper. Rather, under the standards set forth in the case law, it determines they should not be awarded.
The Court concludes that fees incurred in connection with the motion for summary judgment, and for this motion, should be awarded to Defendants. The Court concludes the sums charged for the legal services rendered in connection with the motions are reasonable. The Court takes judicial notice that fees generally charged by lawyers of equivalent experience and skill (based on the Court's observation of the papers and oral argument) are significantly higher. The Court also concludes that the number of hours spent is reasonable. The Court disagrees with Galen that there is anything unusual, inappropriate or excessive in the number of different persons assigned to work on this matter. Therefore, the total award to Defendants for the motion for summary judgment is $16, 470. Defendants are awarded $6930 for the instant motion. Galen does not contend that even the full amount sought by Defendants would cause him any hardship; the Court finds, based on the information submitted in connection with the motion for summary judgment, that Galen is well able to pay these fees.
In addition to this amount, Defendants are entitled to their "traditional" costs for prevailing in the action as noted in the Order.
IV. CONCLUSION
For the reasons stated above, Defendants' Motion For Attorney's Fees Pursuant to 42 U.S.C. § 1988 is granted. In addition to the costs previously allowed pursuant to the Order, Galen is to pay to Defendants $23, 400 in attorney's fees.