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reducing the amount of hours expended on preparing a fee motion; reasoning that " request for attorney's fees should not result in a second major litigation."
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CIV. NO. 2:14-585 WBS EFB
12-21-2015
HARRISON ORR, individually, Plaintiff, v. CALIFORNIA HIGHWAY PATROL, a public entity; STATE OF CALIFORNIA, a public entity; CALIFORNIA HIGHWAY PATROL OFFICERS BRAME, PLUMB, and DOES 1-10 individually, Defendants.
MEMORANDUM AND ORDER RE: ATTORNEY'S FEES AND COSTS
Plaintiff Harrison Orr brought this civil rights action against defendants California Highway Patrol ("CHP"), Officer Jay Brame, and Officer Terrence Plumb, arising out of plaintiff's arrest on August 3, 2013. Plaintiff alleged the officers unlawfully arrested him and used excessive force against him in violation of state and federal law. After a 10-day trial, the jury found for plaintiff only on certain claims against Plumb and awarded plaintiff $125,000. Plaintiff now seeks attorney's fees and expenses under 42 U.S.C. § 1988 and California Civil Code § 52.1(h).
I. Factual Background
As shown by the evidence at trial, Brame pulled plaintiff over on the morning of August 3, 2013 because he suspected him of driving under the influence of drugs or alcohol. At the time, plaintiff was a 76-year-old man with slurred speech and difficulties balancing as a result of a brain stem stroke he suffered in 2006. Plaintiff's disabilities caused him to fail several sobriety tests. As a further measure, Plumb arrived at the scene with a breathalyzer testing device. Plaintiff blew a 0.0, indicating he had not been drinking. Plaintiff testified that he repeatedly told the officers he had suffered from a stroke that affected his balance, while the officers insisted at trial that plaintiff used the word "neurological condition." The officers believed plaintiff was under the influence of drugs and arrested him.
Although plaintiff was initially cooperative, he refused to be handcuffed. In an attempt to handcuff plaintiff, the officers grabbed him from either side, Plumb punched plaintiff in his stomach, and the officers took plaintiff to the ground. Brame then transported plaintiff to the CHP office, where it was determined he was not under the influence of drugs. Plaintiff was then booked for resisting arrest in violation of California Penal Code section 148 and remained in custody at the county jail until approximate 1:00 a.m.
The jury did not find Brame or the CHP liable on any of plaintiff's claims. It returned a verdict against Plumb on the following claims: (1) unlawful arrest for the offense of resisting arrest in violation of 42 U.S.C. § 1983 and California state law; (2) use of excessive force in violation of 42 U.S.C. § 1983 and California state law; and (3) interference with civil rights in violation of the Tom Bane Civil Rights Act, Cal. Civ. Code § 52.1. The jury awarded plaintiff $125,000 in compensatory damages, but found that Plumb's conduct did not merit an award of punitive damages.
II. Attorney's Fees
Section 1988 permits the court, in its discretion, to award reasonable attorney's fees to a prevailing party in an action under 42 U.S.C. § 1983. See 42 U.S.C. § 1988(b). A "prevailing party" is one who succeeds on any significant issue in the litigation, resulting in a "material alteration of the legal relationship of the parties." Tex. State Teacher's Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989). The Bane Act also provides for an award of reasonable attorney's fees to a prevailing plaintiff. See Cal. Civ. Code § 52.1(h). While Plumb does not dispute that plaintiff is the prevailing party or that he is entitled to attorney's fees under § 1988 and subsection 52.1(h), he disputes the size of the fee award plaintiff requests.
Courts typically determine the amount of a fee award under § 1988 in two stages. First, courts apply the "'lodestar' method to determine what constitutes a reasonable attorney's fee." Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013) (citations omitted). The Ninth Circuit "'presum[es]' that the district court accounts for the following factors in the lodestar computation: '(1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation, (4) the results obtained, and (5) the contingent nature of the fee agreement.'" Id. at 1209 n.11 (quoting Morales v. City of San Rafael, 96 F.3d 359, 363 & n.9 (9th Cir. 1996)).
"After making that computation, the district court then assesses whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of the Kerr factors that are not already subsumed in the initial lodestar calculation." Morales, 96 F.3d at 363-64. The Ninth Circuit has emphasized that a district court's application of the Kerr factors should reflect the extent to which those factors "bear on the reasonableness of a fee award." Id. at 361. "[I]f the district court has 'taken [any of the Kerr factors] into account in either the reasonable hours component or the reasonable rate component of the lodestar calculation,' then it should not again reduce the lodestar" based on those factors. Gonzalez, 729 F.3d at 1209 n.11 (quoting Morales, 96 F.3d at 363 & n.9).
Those factors include:
(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the "undesirability" of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.
In determining the size of an appropriate fee award, the Supreme Court has emphasized that courts need not "achieve auditing perfection" or "become green-eyeshade accountants." Fox v. Vice, 563 U.S. 826, ---, 131 S.Ct. 2205, 2217 (2011). Rather, because the "essential goal of shifting fees . . . is to do rough justice," the court may "use estimates" or "take into account [its] overall sense of a suit" to determine a reasonable attorney's fee. Id.
A. Lodestar Calculation
1. Reasonable Hourly Rate
"In addition to computing a reasonable number of hours, the district court must determine a reasonable hourly rate to use for attorneys and paralegals in computing the lodestar amount." Gonzalez, 729 F.3d at 1205 (citation omitted). A reasonable hourly rate is not defined "by reference to the rates actually charged by the prevailing party." Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). Rather, reasonable fees must be calculated based on the prevailing market rates charged by "attorneys in the relevant community engaged in 'equally complex Federal litigation.'" Prison Legal News v. Schwarzenegger, 608 F.3d 446, 455 (9th Cir. 2010) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)); see also Van Skike v. Dir., Off. of Workers' Comp. Programs, 557 F.3d 1041, 1046 (9th Cir. 2009) ("The Supreme Court has consistently held that reasonable fees 'are to be calculated according to the prevailing market rates in the relevant community.'" (quoting Blum, 465 U.S. at 895)).
"Generally, when determining a reasonable hourly rate, the relevant community is the forum in which the district court sits." Prison Legal News, 608 F.3d at 454 (internal quotation marks omitted). It is appropriate to rely on rates outside the local forum only where "local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to handle properly the case." Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992)). Although plaintiff's counsel practice primarily in the San Francisco Bay Area, they concede they are entitled only to local, Sacramento rates.
Plaintiff's counsel seek hourly rates of $550 for Haddad and Sherwin, $360 for Guertin, and $300 for Altomare and Helm for attorney work and $150 for work done by paralegals or by attorneys at a paralegal rate. Plumb contends that reasonable hourly rates in Sacramento would be $400 for Haddad and Sherwin, $175 for Guertin, $150 for Helm and Altomare for attorney work, and $75 for work done by paralegals or at a paralegal rate.
Haddad has over 23 years of experience as a civil rights lawyer and has tried more than 20 cases, including 12 police misconduct cases. (Haddad Decl. ¶¶ 3-16 (Docket No. 181).) Sherwin has 19 years of experience as a civil rights lawyer and has tried 14 cases. (Sherwin Decl. ¶¶ 23-48 (Docket No. 184).) Both are highly regarded civil rights attorneys. (See Merin Decl. ¶¶ 12-13 (Docket No. 186); Katz Decl. ¶ 19 (Docket No. 185); Burton Decl. ¶¶ 12-13 (Docket No. 188); Burris Decl. ¶ 14 (Docket No. 181-6).)
This court found in 2014 that $400 per hour was the prevailing market rate for attorney John Burris, who at the time had "nearly thirty-five years of legal experience and [] a record of high-profile representations in civil rights matters." Deocampo v. Potts, No. Civ. 2:06-1283 WBS, 2014 WL 788429, at *9 (E.D. Cal. Feb. 25, 2014). The year before that, judges in this district similarly found that $400 was the market rate for lawyers with similar expertise and experience. See, e.g., Lehr v. City of Sacramento, No. Civ. 2:07-01565 MCE GGH, 2013 WL 1326546, at *7 (E.D. Cal. Apr. 2, 2013) (awarding $400 per hour to Mark Merin, a "highly qualified civil rights attorney with over 40 years of relevant litigation experience"); Knox v. Chiang, No. Civ. 2:05-02198 MCE CKD, 2013 WL 2434606, at *7 (E.D. Cal. June 5, 2013) (finding that "the prevailing hourly rate for experienced civil rights attorneys practicing in the Sacramento area does not exceed $400," but awarding $450 per hour in light of the complexity of the case and counsel's success in arguing the case before the Supreme Court).
In 2009, Judge Mendez found that a blended rate of $375 was the appropriate market rate for Haddad and Sherwin. Beecham v. City of W. Sacramento, No. Civ. S:07-1115 JAM EFB, 2009 WL 3824793, at *4 (E.D. Cal. Nov. 16, 2009); cf. Jones v. County of Sacramento, Civ. No. 2:09-1025 DAD, 2011 WL 3584332, at *8 (E.D. Cal. Aug. 12, 2011) (finding that an hourly rate of $350 for a civil rights attorney with thirty-five years of litigation experience was "in line with those prevailing in the Sacramento market").
Starting with the rate of $375 per hour from Beecham, plaintiff's counsel inflate the rate by 7% per year to arrive at their requested rates. Although counsel presented evidence that the mean rate of fees in Sacramento increased by 16% between 2010 and 2012, (Pearl Decl. ¶ 12, Ex. F (Docket No. 183)), there is no evidence of such an increase in the succeeding years. Plumb has also put forth evidence showing that a civil rights attorney with comparable skill had not increased her $300 hourly rate from 2005 to 2011. (Compare Pass Decl. Ex. B-2 ¶ 9, with Moreno v. City of Sacramento, 534 F.3d 1106, 1110 (9th Cir. 2008)). Nor can a general rate of increase for all Sacramento attorneys be assumed to apply to every practice area. The court is more persuaded by the rates currently charged and awarded.
Plaintiff's counsel also rely on the "2013 Ty Metrix," which surveyed 35 partners and 43 associates in Sacramento to determine a market rate. This metrix, which does not appear to evaluate the experience, expertise, and practice areas of each lawyer is not helpful in determining the prevailing market rate in the community for this case. Moreover, while the copy plaintiff provided to the court is incomplete, it appears it may be similar or the same as the "CEB and Datacert | TyMetrix," which this court has previously rejected in another civil rights case because it "is specifically designed for lawyers who work for 'corporate clients.'" Johnson v. Wayside Prop., Inc., No. Civ. 2:13-1610 WBS AC, 2014 WL 6634324, at *7 (E.D. Cal. Nov. 21, 2014).
Mark Merin, a Sacramento civil rights attorney with 45 years of experience, indicates that plaintiff's counsel's requested rates are "well within the range of rates charged by and awarded to similarly experienced and qualified attorneys in the Sacramento area litigating hard-fought jury trials in federal court." (Merin Decl. ¶¶ 5, 21.) Merin's declaration does not, however, indicate that the rates charged in the cases he is comparing to this one are of similar complexity. Although § 1983 cases can raise complex issues, this case raised fairly straightforward excessive force and unlawful arrest claims. The court would have found it more helpful if Merin had indicated the rate he would have requested in t"his case. In 2013, Merin requested an hourly rate of $550 in an arguably more complex civil rights case challenging the city's "anti-camping" ordinance, but the court found that $400 was the prevailing market rate. Lehr, 2013 WL 1326546, at *1, *5, *7.
Stewart Katz, a Sacramento civil rights attorney with 37 years of experience also submitted a declaration in favor of plaintiff's motion. (Katz Decl. ¶ 2.) Based on Katz's civil rights experience and the court's observations of him during a recent trial, the courts finds that he is of comparable skill and expertise as Haddad and Sherwin. Katz did not, however, indicate what rate he would have requested for this case or that he believes Haddad and Sherwin's requested rates are consistent with the prevailing market rates for similar cases tried in this court. In 2011, Katz requested and received an hourly rate of $350 in a similarly complex excessive force case. See Jones v. City of Sacramento, Civ. No. S-09-1025 DAD, 2011 WL 3584332, at *6 (E.D. Cal. Aug. 12, 2011).
The court is therefore not persuaded that the prevailing hourly rate of $400 for attorneys with comparable skill and experience litigating a case of this complexity in Sacramento has changed from what it was in 2014. See Deocampo, 2014 WL 788429, at *9. That rate applied to the attorney in Deocampo, who had 35 years of experience and thus more experience than Haddad and Sherwin, who have 23 and 19 years of experience, respectively. Nor is this an exceptional case meriting a higher fee as in Knox, which "presented novel and complex issues" that plaintiff's counsel successfully litigated in the Supreme Court. See 2013 WL 2434606, at *3, *8. Accordingly, the court finds that a reasonable hourly rate for Haddad and Sherwin is $400.
Guertin is a sixth-year associate; Altomare is a third- year associate; and Helm is a second-year associate. (Sherwin Decl. ¶¶ 6-8.) The market rate for associates with comparable experience ranges "between $150 and $175 per hour." Joe Hand Promotions, Inc. v. Albright, No. Civ. 2:11-2260 WBS CMK, 2013 WL 4094403, at *3 (E.D. Cal. Aug. 13, 2013) (citations omitted); see also, e.g., Deocampo, 2014 WL 788429, at *9 (finding that the reasonable hourly rate for an associate with 7 years of experience, including 3 years of experience in civil rights litigation, was $175); Broad. Music Inc. v. Antigua Cantina & Grill, LLC, Civ. No. 2:12-1196 KJM DAD, 2013 WL 2244641, at *1 (E.D. Cal. May 21, 2013) (awarding an hourly rate of $175 for an associate with 6 years of experience in a "routine copyright infringement case"). The court therefore finds that reasonable hourly rates are $175 for Guertin and $150 for Altomare and Helm.
Finally, courts in this district have generally found that $75 is an appropriate hourly rate for paralegals. See, e.g., Albright, 2013 WL 4094403, at *3 (awarding an hourly rate of $75 for paralegals); Friedman v. Cal. State Emps. Ass'n, No. Civ. 2:00-101 WBS DAD, 2010 WL 2880148, at *4 (E.D. Cal. July 21, 2010) (noting that "the paralegal rate favored in this district is $75 per hour" (citations omitted)). The court will therefore apply an hourly rate of $75 for the time expended by plaintiff's paralegals or attorney time billed at a paralegal rate.
2. Hours Reasonably Expended
Under the lodestar method, "a district court must start by determining how many hours were reasonably expended on the litigation, and then multiply those hours by the prevailing local rate for an attorney of the skill required to perform the litigation." Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). In determining an appropriate fee award, "the district court should exclude hours 'that are excessive, redundant, or otherwise unnecessary.'" McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
That standard is qualified by the Ninth Circuit's admonition that, as a general rule, "the court should defer to the winning lawyer's professional judgment as to how much time he was required to spend on the case." Moreno, 534 F.3d at 1112; see also E-Pass Techs., Inc. v. 3Com Corp., Civ. No. 00-2255 DLJ, 2007 WL 4170514, at *6 (N.D. Cal. Nov. 14, 2007) ("[T]he court will not second-guess reasonable attorney conduct of a litigation strategy for the case."). This principle particularly applies to plaintiffs' attorneys in civil rights cases because, as here, such attorneys often work on a contingency basis and thus have little incentive to expend unnecessary hours. See, e.g., Moreno, 534 F.3d at 1112 ("It would be the highly unusual civil rights case where [a] plaintiff's lawyer engages in churning."); Blackwell v. Foley, 724 F. Supp. 2d 1068, 1080 (N.D. Cal. 2010) ("[I]f anything, an attorney working on contingency is less likely to expend unnecessary hours because the payoff is too uncertain.").
Here, plaintiff's counsel submitted billing statements reflecting a total of 1,539 hours, which is broken down to 493 hours by Haddad, 301.7 hours by Sherwin, 284.5 hours by Guertin, 326.6 hours by Helm, 7.2 hours by Altomare, and 126 hours by paralegals. Plumb objects that the total hours requested is unreasonable and the court will address each of his arguments in turn.
a. Objections to Discrete Tasks
1. Plaintiff's Motion for Summary Judgment
Plaintiff filed a lengthy motion for summary judgment, (Docket Nos. 50-54), which the court denied in its entirety after finding numerous disputed issues of material fact, (Docket No. 79). The court generally agrees with Plumb that plaintiff's counsel could not have anticipated a strong probability of success on that motion because of the numerous factual disputes and reasonableness standard governing most of plaintiff's claims. An experienced attorney could likely predict that plaintiff's claims were not the types of claims a court can usually resolve as a matter of law at summary judgment. In Katz's declaration that plaintiff submitted, Katz similarly noted that he "might not have brought the plaintiff's motion for summary adjudication." (Katz Decl. ¶ 14.) Katz recognized, however, that the motion "may have contributed to the overall result whether or not in isolation [it] was a motion on which plaintiff was likely to prevail." (Id.) Sherwin also explains that much of the work to prepare plaintiff's motion for summary judgment would have been necessary to oppose defendants' motion for summary judgment and also "substituted for" trial preparation work. (Supp. Sherwin Decl. ¶ 7 (Docket No. 200).)
Plaintiff's counsel also explains that the summary judgment motions "gave all parties insight into what issues the Court deemed important at trial and what evidence it expected the parties to produce on those issues." (Pl.'s Reply at 11:27-12:2 (Docket No. 189).) Suffice to say, it is not sufficient reason to file a motion that lacks merit simply to gain insight from the court.
The court's denial of plaintiff's summary judgment motion, in itself, does not preclude plaintiff from recovering those fees if plaintiff was reasonable in filing the motion. Although the court questions whether the decision to seek summary judgment was reasonable in light of the facts and claims in this case, it generally agrees with counsel that much of the work would have been done to oppose defendants' motion for summary judgment and prepare for trial. Of the 69.6 hours expended on plaintiff's motion for summary judgment, Helm billed 40.2 hours. In light of these considerations, the court will deduct 20 hours from Helm's billings to account for work done exclusively to advance the summary judgment motion.
The inquiry here is only whether it was reasonable for plaintiff to expend time in pursuit of summary judgment. The court will address a reduction to the lodestar based on plaintiff's limited success in the litigation after considering all of Plumb's objections to the hours expended on discrete tasks. See Morales, 96 F.3d at 363-64 & n.9. Moreover, a denial of summary judgment merely means the case has to go to the jury and is thus not the same type of "limited success" as a final judgment in favor of a defendant.
2. Mock Jury Trial
Plaintiff's counsel expended a total of 31.9 hours for the time of four attorneys and 8.8 hours of paralegal time to present the case to a mock jury. The Ninth Circuit has held that "hours spent on a moot court trial run, and on consultations regarding a jury project related to the case," may be "included in a fee award as long as the number of hours spent was reasonable." United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). While the mock jury valued plaintiff's case significantly higher than the actual jury did, the court does not find that the time counsel expended to perform a mock trial was unreasonable and therefore will not deduct any of that time.
3. Dr. Chan
Plumb next objects to the 8.8 hours of attorney time expended in attempt to secure plaintiff's treating physician's testimony at trial. Sherwin has adequately explained why the time expended was reasonable, (see Supp. Sherwin Decl. ¶ 9), and the court will not reduce any of those hours.
4. Post-Verdict Jury Consultant and Settlement Strategizing
Plumb also objects to the 1.8 hours of attorney time spent after trial to develop a settlement strategy. Although defendants may have remained unwilling to settle the case, plaintiff's counsel were entirely reasonable in expending this limited amount of time to assess their settlement position, which could have avoided the expenditure of this court's resources to decide this very motion and the resources of the appellate court on the pending appeal. The court will not reduce this time.
5. Associates' Presence at Hearings
Plumb next objects to the .9 hours Guertin billed and 4.9 hours Helm billed in connection with the pretrial conference and the 15.9 hours Guertin billed to attend trial because those associates did not appear or participate. Sherwin explains that they have "already redacted extensive time from each associate's time records for the pretrial conference and trial, " and she adequately accounts for this billed time by the associates based on the work they prepared in anticipation of the pretrial conference and trial. (See Supp. Sherwin Decl. ¶¶ 13, 16.)
Moreover, defendants staffed this case with multiple attorneys and courts have recognized that staffing multiple attorneys on a single task may improve a party's chance of success in litigation. See, e.g., PSM Holding Corp. v. Nat'l Farm Fin. Corp., 743 F. Supp. 2d 1136, 1157 (C.D. Cal. 2010) ("[D]ivision of responsibility may make it necessary for more than one attorney to attend activities such as depositions and hearings. Multiple attorneys may be essential for planning strategy, eliciting testimony or evaluating facts or law." (citation omitted)); cf. United States v. City & County of San Francisco, 748 F. Supp. 1416, 1421 (N.D. Cal. 1990) (noting that "the presence of several attorneys at strategy sessions for complex civil rights class actions may be crucial to the case"). The court therefore will not deduct this time.
6. Documents Not Filed with the Court
Plumb next objects to the time expended to prepare a stipulated protective order (0.8 hours), a jury questionnaire (3.5 hours), and a cost bill (4.8 hours) because these documents were never filed with the court. Sherwin has explained the reasonableness of the limited time expended to prepare a form protective order, which the parties ultimately did not use. (See Supp. Sherwin Decl. ¶ 17.) She has also represented that all of the time expended to prepare the cost bill was used in the present motion for expenses. (See id. ¶ 18.) The court will therefore not deduct this time.
The court will deduct the 3.5 hours Guertin spent to prepare a jury questionnaire because it was unreasonable to expend this time before inquiring whether the court would even consider submitting a questionnaire to the jury and counsel has not indicated that the questionnaire was useful during jury selection for any other reason.
7. Attendance at Depositions
Lastly, Plumb requests that the court reduce the hours billed by various attorneys by 75% for the time they expended attending depositions without conducting or defending the deposition and the depositions associates participated in when their participation was not "critical."
Although the Ninth Circuit has instructed courts to "examine with skepticism claims that several lawyers were needed to perform a task," it has also emphasized that staffing multiple lawyers on a single task is not by itself evidence of excessive billing. Democratic Party of Wash. State v. Reed, 388 F.3d 1281, 1286 (9th Cir. 2004); see also Moreno, 534 F.3d at 1113 (emphasizing that "[f]indings of duplicative work should not just become a shortcut for reducing a fee award without identifying just why the requested fee was excessive").
"[D]ivision of responsibility may make it necessary for more than one attorney to attend activities such as depositions and hearings. Multiple attorneys may be essential for planning strategy, eliciting testimony or evaluating facts or law." PSM Holding Corp., 743 F. Supp. 2d at 1157. Absent any specific evidence that staffing multiple attorneys on particular tasks was excessive, the court will not reduce the billed hours on that basis alone. See Moreno, 534 F.3d at 1114 (noting that the "district court may not set the fee based on speculation as to how other firms would have staffed the case"). Moreover, Sherwin has described in detail the associate time that was redacted and explained that a significant amount of time Helm expended was billed at a paralegal rate. (See Supp. Sherwin Decl. ¶¶ 13-15.) The court therefore will not reduce this time.
b. Limited Success
The Supreme Court and Ninth Circuit have emphasized that "the extent of a plaintiff's success is a crucial factor for determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988." Hensley, 461 U.S. at 440; see also McCown, 565 F.3d at 1103 (holding that attorney's fees "must be adjusted downward where the plaintiff has obtained limited success on his pleaded claims, and the result does not confer a meaningful public benefit").
Plumb argues that the lodestar award should be reduced by 50% to account for plaintiff's limited success at trial. Plaintiff, on the other hand, argues that a 1.3 multiplier enhancement is merited based on plaintiff's "excellent" results and the risk counsel undertook in taking this case on a contingency.
Plaintiff pursued numerous claims in this case: (1) § 1983 excessive force claims against Brame and Plumb; (2) § 1983 unreasonable seizure claim against Brame and Plumb challenging the arrests for driving under the influence of drugs and resisting arrest; (3) Bane Act claim for interference with plaintiff's enjoyment of his rights against Brame and Plumb; (4) interference with plaintiff's right to be free from violence or intimidation, Cal. Civ. Code § 51.7, against Brame and Plumb; (5) battery by a police officer against Brame and Plumb; (6) negligence against Brame and Plumb; (7) Elder Abuse, Cal Welfare & Insts. Code § 15610.07, against Brame and Plumb; (8) false arrest against Brame and Plumb challenging the arrests for driving under the influence of drugs and resisting arrest; (9) violation of the American with Disabilities Act ("ADA") against the CHP; and (10) violation of the Rehabilitation Act against the CHP. After the parties filed cross-motions for summary judgment, the court entered judgment in favor of defendants on plaintiff's section 51.7 and elder abuse claims and found that genuine disputes of material fact necessitated a trial on the remaining claims. Cf. McCown, 565 F.3d at 1103 (holding that "the fact that eight of [plaintiff's] nine claims were dismissed at summary judgment 'figures into the calculation' of attorney's fees").
Plaintiff abandoned his negligence claim before trial.
At trial, plaintiff prevailed only against Plumb on his § 1983 claims for excessive force and false arrest for resisting arrest, Bane Act claim, battery claim, and state law false arrest claim for resisting arrest. Brame and the CHP prevailed on all claims against them. In determining the reasonable fee, a reduction to account for plaintiff's lack of success against two of the three defendants and lack of success on plaintiff's § 1983 false arrest claim based on the arrest for driving under the influence of drugs is appropriate. See Webb v. Sloan, 330 F.3d 1158, 1169-70 (9th Cir. 2003) ("Plaintiff initially sued several defendants, but prevailed against only one: Carson City. A discretionary reduction to reflect that kind of limited success is appropriate.").
The Supreme Court has identified "two questions [that] must be addressed" when determining a reasonable fee in light of a plaintiff's limited success. Hensley, 461 F.3d at 434. First, the court must determine whether "the plaintiff fail[ed] to prevail on claims that were unrelated to the claims on which he succeeded[.]" Id. "[C]laims are unrelated if the successful and unsuccessful claims are distinctly different both legally and factually; claims are related, however, if they involve a common core of facts or are based on related legal theories." Dang v. Cross, 422 F.3d 800, 813 (9th Cir. 2005) (citations omitted) (alteration in original). If the successful claims did not arise out of the "same 'course of conduct,' . . . the hours expended on the unsuccessful claims should not be included in the fee award." Id. (citation omitted).
In McCown, officers allegedly used excessive force during the course of an arrest and the plaintiff brought § 1983 claims against the officers challenging their use of force and the arrest, as well as a Monell claim against the city. 565 F.3d at 1101. The Ninth Circuit affirmed the district court's finding that the claims were all related because even though the claims were based on "different legal theories against different defendants," the claims all "arose from a common core of facts, namely, [the plaintiff's] arrest." Id. at 1103; see also Webb, 330 F.3d at 1169 (affirming the district court's finding that claims pursuing "numerous legal theories against several defendants" were related because "all his claims arose out of a common core of facts and a common course of conduct: Plaintiff's arrest, detention, and prosecution").
Similar to McCown, all of plaintiff's claims arose out of a single incident in which Brame and Plumb used force in the process of arresting plaintiff. Plaintiff's unsuccessful Rehabilitation Act and ADA claims against the CHP were based on that same incident. Because plaintiff's claims arose out of a "common core of facts," Dang, 422 F.3d at 813, the court may "not attempt to divide the request for attorney's fees on a claim-by-claim basis." McCown, 565 F.3d at 1103. "Instead, the court must proceed to the second part of the analysis and focus on the significance of the overall relief obtained by [plaintiff] in relation to the hours reasonably expended on the litigation." Id. (citation omitted).
When successful and unsuccessful claims are related, "attorney's fees awarded under 42 U.S.C. § 1988 must be adjusted downward where the plaintiff has obtained limited success on his pleaded claims, and the result does not confer a meaningful public benefit." McCown, 565 F.3d at 1103. In assessing the reasonableness of the overall fee in light of a plaintiff's limited success, the court "is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought." Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Riverside v. Rivera, 477 U.S. 561, 585 (1986) (Powell, J., concurring)). "Although the Supreme Court has disavowed a test of strict proportionality, it also suggested that a comparison of damages awarded to damages sought is required." McCown, 565 F.3d at 1104; see also Hensley, 461 U.S. at 435 n.11 (rejecting "a mathematical approach comparing the total number of issues in the case with those actually prevailed upon").
During closing arguments in this case, plaintiff's counsel presented a thorough and forceful argument as to the damages they believed the jury should award plaintiff. Counsel began by addressing punitive damages and emphasized the purpose of punitive damages and why they believed the jury should award punitive damages against both officers. After explaining why the conduct at issue necessitated an award of punitive damages, counsel recommended that the jury award "$250,000 in punitive damages against each officer." (Tr. Vol. 8 at 1471:1-2 (Docket No. 175).)
Counsel then returned to compensatory damages and reviewed the evidence in great detail as to the injuries plaintiff suffered and how the incident severely affected his life and caused him to endure "the most severe pain he has ever had in his life." (Id. at 1481:17-18; see generally id. at 1471:6-1485:11.) Counsel then recommended that the jury award plaintiff $750,000 in compensatory damages against Brame and Plumb based on plaintiff's federal and state false arrest and excessive force claims. (See id. at 1484:11-17.) Counsel further recommended that the jury award $500,000 against the CHP based on plaintiff's Rehabilitation Act and ADA claims. (Id. at 1485:10-11.)
The transcript does not reflect the amount of compensatory damages counsel suggested the jury award against the individual officers because counsel wrote it on a sample verdict form and said, "here is what we recommend as being respectful for the loss that Harry has suffered." (Id. at 1484:15-16.) Because the court does not independently recall what counsel wrote on the sample verdict form, the court relied on Plumb's representation that plaintiff asked for a total of $1.75 million in compensatory and punitive damages to arrive at the requested amount of $750,000.00. Plaintiff did not dispute this amount in his Reply brief.
At the close of their argument, counsel had asked the jury to award plaintiff a total of $1.75 million against three defendants. There can be little debate that the jury rejected this request. In the end, the jury awarded only $125,000 in compensatory damages against one defendant on certain claims. This award is only slightly more than 7% of the damages plaintiff sought. The jury also entirely rejected plaintiff's claim that the officers lacked probable cause to arrest him for driving under the influence of drugs, which was a significant theory of his case.
Courts in this district have imposed reductions generally ranging from 35% to 75% when a plaintiff has recovered significantly less in damages than originally sought and did not recover any punitive damages. See, e.g., Jones v. McGill, Civ. No. 1:08-396 LJO DLB, 2009 WL 1862457, at *4-5 (E.D. Cal. June 29, 2009) (reducing attorney's fees in excessive force case over 75% when the plaintiff sought $15.2 million in damages against eight defendants but recovered only $9,900 against one defendant); Beecham, 2009 WL 3824793, at *5 (reducing fee award by 50% when plaintiffs obtained only $33,400 in damages out of the $1.8 million they sought).
In Deocampo, this court reduced the fee award by only 25%. 2014 WL 788429, at *1. In that case, however, the plaintiff requested only $300,000 in compensatory damages and the jury awarded $50,000 and found that two of the officers' conduct was malicious, oppressive, or in reckless disregard of plaintiff's rights. Id. at *11. Similarly, in Jones v. County of Sacramento, the court reduced the fee award by only 25% when the jury awarded $31,000 of the almost $1.5 million requested, but found that the officers' conduct was malicious, oppressive or in reckless disregard of plaintiff's rights and "the amount of damages awarded to plaintiff . . . may well have had more to do with the jury finding plaintiff to be an unsympathetic figure who was significantly emotionally damaged prior to th[e] incident." 2011 WL 3584332, at *19.
Because the jury did not find that Plumb's conduct was malicious, oppressive, or in reckless disregard of plaintiff's rights, this case is distinguishable from the 25% reduction in Deocampo and Jones. In contrasting the $1.75 million in compensatory and punitive damages plaintiff sought against three defendants and the $125,000 in only compensatory damages the jury awarded against one defendant, the court finds that a significant reduction in fees is necessary to account for plaintiff's limited success.
At the same time, "in determining a reasonable fee award [], the district court should consider not only the monetary results but also the significant nonmonetary results [the plaintiff] achieved for himself and other members of society." McCown, 565 F.3d at 1105 (quoting Morales, 96 F.3d at 365). The court must assess "whether, and to what extent, [the plaintiff's] suit benefitted the public," including "whether the plaintiff has affected a change in policy or a deterrent to widespread civil rights violations." Id. 1105. "The public benefit of a suit must have enough of an impact to justify a fully compensatory fee award despite limited success on damages claims." Id.
For example, in Wilcox v. City of Reno, the Ninth Circuit emphasized that the significant public benefit from the plaintiff's case merited an award of fees even though the plaintiff recovered only nominal damages. 42 F.3d 550, 556 (9th Cir. 1994). In that case, the "jury determined a city policy to be unconstitutional, and further determined that the policy caused injury to [plaintiff]." Id. The Ninth Circuit described these results as "admirable" and found that the "litigation likely precipitated both the disciplining of [the defendant officer] and the change in [the city's] policy." Id. The court concluded that the "judgment . . . will benefit the City and its residents by preventing the police department from reverting to its old policy or a similar policy some time in the future." Id. at 556-57.
Here, on the other hand, plaintiff did not pursue a Monell claim or prevail on his Rehabilitation Act and ADA claims against the CHP and thereby did not achieve any change in CHP policy. Although counsel credits plaintiff's case as having exposed the CHP's alleged "ticket quota," plaintiff's case never challenged or sought to remedy any alleged quota. Plaintiff's limited verdict does not require the CHP to alter its conduct in any way.
The jury also awarded plaintiff only compensatory damages, which the court instructed are limited to "the amount of money that will reasonably and fairly compensate the plaintiff for any injury you find was caused by one or both individual defendants." (Jury Instruction No. 15.) The jury was instructed and counsel emphatically argued that the purpose of punitive damages was to deter future violations. Counsel explained that one reason "we're allowed to bring civil rights cases like this" is to "punish people who violate our most cherished fundamental constitutional rights, and to make an example of those people, which deters other officers from engaging in similar misconduct in the future." (Tr. Vol. 8 at 1467:18-25.) In finding that neither officer's conduct was malicious, oppressive, or in reckless disregard of plaintiff's rights, the jury rejected plaintiff's request for punitive damages and counsel's argument that such an award was necessary to deter future violations. Absent an award of punitive damages, the jury did not award any amount of damages to deter future constitutional violations.
While a limited award of compensatory damages against one officer cannot legally be said to deter future violations, one would think that any award of compensatory damages against an individual officer would deter future violations because officers and their departments would want to avoid similar financial losses in the future. The Supreme Court and Ninth Circuit have in fact recognized the deterrent value of successful § 1983 litigation. See, e.g., City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 727 (1999) (Scalia, J., concurring) ("Section 1983 . . . [l]ike other tort causes of action, [] is designed to provide compensation for injuries arising from the violation of legal duties, and thereby, of course, to deter future violations." (internal citation omitted)); Mendez v. City of San Bernardino, 540 F.3d 1109, 1128 (9th Cir. 2008), overruled by other grounds by, Arizona v. ASARCO LLC, 773 F.3d 1050 (9th Cir. 2014) ("Successful suits act as a deterrent to law enforcement and 'serve[ ] the public purpose of helping to protect [the plaintiff] and persons like him from being subjected to similar unlawful treatment in the future.'").
Empirical studies, however, are calling into question whether successful § 1983 actions are actually deterring future constitutional violations. For example, Professor Joanna Schwartz recently examined 44 of the "largest law enforcement agencies across the country" and 37 "small and mid-sized agencies" and found that "police officers are virtually always indemnified," with the government agencies paying "approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement," including awards of punitive damages and "even when indemnification was prohibited by law or policy." Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 885 (2014). Professor Schwartz concluded that while indemnification furthers § 1983's goal of compensating injured plaintiffs, it frustrates § 1983's goal of deterring future violations because indemnification limits the impact of compensatory and punitive damages awards on individual officers" and the "available evidence suggests that the threat of being sued does not significantly influence officer behavior." Id. at 953. Professor Schwartz further found that "governments do not appear to be collecting enough information about lawsuits to make educated decisions about whether or how to reduce the police activities that prompt these suits." Id. at 956.
These findings suggest that a court should not simply assume that any award of compensatory damages against only an individual officer will deter any future violations. The court must evaluate the circumstances of each particular case to assess whether it seems possible that the verdict will truly deter future violations. Here, given the lack of change to any CHP policy, the jury's rejection of punitive damages, the CHP's and Brame's complete success, all defendants' success on the false arrest claim based on driving under the influence, and the relatively small compensatory award against one officer, the court is not persuaded that the verdict in this case will meaningfully deter future violations by other officers. While vindicating one individual's constitutional rights is incredibly important and this case pursued significant legal rights, the court does not find that plaintiff's limited success in this case provides a tangible benefit to the public that renders the full fee counsel seeks--or any enhancement to that fee--reasonable.
c. Risk of Contingency
"Unlike federal law, California law allows for a multiplier of the lodestar to compensate for the risk of contingent representation." Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1112 (9th Cir. 2014). The Ninth Circuit has "held that when a plaintiff succeeds on both federal and state claims that support a fee award, the state-law multiplier is available." Id. Under California law, a contingency enhancement "is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees." Ketchum v. Moses, 24 Cal. 4th 1122, 1138 (2001). "[T]he trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case." Id.
Plaintiff's counsel took this case on contingency and therefore bore a risk of not receiving payment and incurring significant costs if defendants prevailed. As Katz explained, given plaintiff's age and medical conditions, counsel also faced a risk that plaintiff might die before final judgment. (Katz Decl. ¶ 16.)
It is doubtful, however, that the risk counsel perceived from taking this case was as great as they now suggest. In an interview about their practice in June 2014, Sherwin told the reporter, "We screen probably a few hundred cases before we take a case. Because we don't get paid unless we win and we pay all the litigation costs, we have to be very, very selective." (Haddad Decl. Ex. A (Docket No. 181-1).) An attorney with a fee-paying client may elect to take an extremely risky case knowing that he will still be paid. Here, however, counsel's screening of cases and the overall facts of this case do not suggest that they perceived a great risk in taking this case that merits a significant multiplier to account for the contingency.
3. Conclusion
Overall, the court finds that a significant reduction is merited based on plaintiff's limited success and the lack of a tangible public benefit from the verdict. The court will off-set this reduction only slightly to account for an enhancement under California law for the contingent nature of this case. Accordingly, the court will reduce the lodestar amount by 45%, which is calculated as follows:
| Haddad: | 493 x $400 = $ 197,200 |
| Sherwin: | 301.7 x $280 = $ 120,680 |
| Guertin: | 281 x $175 = $ 49,175 |
| Helm: | 306.6 x $150 = $ 45,990 |
| Altomare | 7.2 x $150 = $ 1,080 |
| Paralegals | 126 x $ 75 = $ 9,450 |
| TOTAL | $ 423,575 |
| Less 45% Reduction | $-190,608.80 |
|---|---|
| LODESTAR CALCULATION: | = $ 232,966.30 |
B. Adjustment to the Lodestar
Once the court has computed the lodestar, there is a "'strong presumption' that the lodestar is the reasonable fee." Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting City of Burlington v. Dague, 505 U.S. 557, 562 (1992)). The Ninth Circuit has emphasized, however, that the district court must consider "whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of the Kerr factors that are not already subsumed in the initial lodestar calculation." Morales, 96 F.3d at 363-64 (citations omitted). "The court should consider the factors established by Kerr, but need not discuss each factor." Eiden v. Thrifty Payless Inc., 407 F. Supp. 2d 1165, 1168 n.4 (E.D. Cal. 2005) (Shubb, J.) (citing Sapper v. Lenco Blade, Inc., 704 F.2d 1069, 1073 (9th Cir. 1983)).
Plaintiff's counsel seek an enhancement based on "the extent to which the nature of the litigation precluded other employment by the attorneys." Serrano v. Priest, 20 Cal. 3d 25, 49 (1977); see also Kerr, 526 F.2d at 670 (identifying "the preclusion of other employment by the attorney due to acceptance of the case"). Counsel specifically represent that this case required their law firm to "turn[] away at least 2 potential clients over the past year who were prepared to retain [their] firm on an hourly basis at market rates to be negotiated." (Haddad Decl. ¶ 41.) While this factor may weigh slightly in counsel's favor, the court finds that compensating them a reasonable fee for their work adequately accounts for any other loss of income and thus the inability to take other clients does not merit a multiplier.
Nor does the court find that the "undesirability" of this case merits an enhancement. While plaintiff's counsel may be correct in arguing that police misconduct cases generally are "difficult to win," one of the central difficulties often arises from the fact that the plaintiff's own criminal conduct led to the challenged encounter with the police. Here, plaintiff was a disabled veteran who had not engaged in any criminal activity at the time of the stop. The minor driving infractions leading to the stop weighed strongly in plaintiff's favor when assessing the objective reasonableness of Plumb's use of force and likely made plaintiff more sympathetic in the eyes of the jury. Cf. Wilcox, 42 F.3d at 557 (highlighting plaintiff's "overall success" in light of the fact that plaintiff's counsel "persevered despite the fact that their client was unsympathetic: The video of the incident-- a central piece of evidence at trial--showed Wilcox drunk, verbally abusive, and uncooperative" and "the jury was informed that Wilcox, just prior to his arrest, had broken a glass or a beer bottle on a woman's face, and had also been convicted of several felonies and was incarcerated at the time of the trial").
Accordingly, the court finds that the lodestar calculation is reasonable and none of the remaining Kerr factors merit a reduction or enhancement of the lodestar.
C. Fees on Fees
In addition to fees awarded for success in the litigation, a prevailing party under § 1988 is also entitled to recover fees for work performed in preparing the motion for attorney's fees itself. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008) ("In statutory fee cases, federal courts, including our own, have uniformly held that time spent in establishing the entitlement to and amount of the fee is compensable." (citing In re Nucorp Energy, Inc., 764 F.2d 655, 659-60 (9th Cir. 1985)). "Attorney's fees requests for work litigating attorney's fees are treated the same as for work done on the merits of a case." Winterstein v. Stryker Corp. Grp. Life Ins. Plan, 262 Fed. App'x 841, 843 (9th Cir. 2008) (citing Thompson v. Gomez, 45 F.3d 1365, 1367-68 (9th Cir. 1995)); see also Camacho, 523 F.3d at 982-83 (emphasizing that district courts must apply the lodestar approach when awarding fees on fees).
Here, plaintiff seeks $84,865 in attorneys' fees for work done to prepare his motion for attorney's fees and reply in support of it. Most of these fees account for the 74.8 hours attorney Richard Pearl spent on the fee motion at a rate of $700 per hour. Haddad indicates he spent 28 hours on the fee motion and Sherwin indicates she spent 31.1 hours on the fee motion.
Pearl is an outside counsel retained to work exclusively on the fee motion and Plumb objects to his retention and recovery of any fees. Pearl has 46 years of experience and has previously prepared over 140 fee applicants for attorneys, including working with Haddad and Sherwin on previous fee motions. (Pearl Decl. ¶ 5.a.) Plaintiff's counsel also explain that they have less experience with the legal issues governing fee motions and were committed to other cases when the work on the fee motion needed to be completed.
Plumb has not cited any authority precluding an attorney from retaining separate counsel to work on the fee motion. A fee motion, however, is less complex and novel than most civil rights cases and there is no reason that plaintiff's counsel would have been unable to handle the issues raised in the motion without the assistance of an attorney who specializes in fee motions. Nor does it appear that Pearl's involvement in the fee motion increased the amount of fees plaintiff's counsel recovered. In fact, when compared to the original award counsel requested, their success in this motion, like the trial, was substantially limited. Nonetheless, because Haddad and Sherwin could have performed all the work necessary to seek their fees, the counsel they retained so that they could work on other matters should not receive a greater fee than Haddad and Sherwin would have received if they performed the work themselves. The court therefore finds that Pearl is entitled to reimbursement for his work on the fee motion at a rate of $400 per hour.
In addition to the 74.8 hours Pearl claims he worked on this motion, Haddad expended 28 hours and Sherwin expended 31.1 hours preparing the fee motion. This totals 133.9 hours on the fee motion alone. When Haddad and Sherwin have submitted numerous fee declarations, including some with declarations very similar to the ones submitted in this case, 133.9 hours is beyond excessive. Moreover, while the Ninth Circuit has recognized that civil rights attorneys working on a contingency have little motive to expend unnecessary hours, Blackwell, 724 F. Supp. 2d at 1080, their payday is essentially guaranteed by the time the fee motion comes around. The court cannot help but question whether the fact that Plumb was now required to foot the bill might have encouraged counsel to spend more time than necessary on the fee motion. The Supreme Court has also recognized that "[a] request for attorney's fees should not result in a second major litigation." Hensley, 461 U.S. at 437.
The court will therefore deduct 50 hours from Pearl's time, 4 hours from Haddad's time, and 4 hours from Sherwin's time. This provides a total of 75.9 hours of attorney time on the fee motion, which the court believes is more than adequate to provide counsel with a reasonable fee for work on this motion. The fee award for plaintiff's fee motion therefore totals $30,360.
III. Expenses
"Under § 1988, the prevailing party may recover as part of the award of attorney's fees those out-of-pocket expenses that would normally be charged to a fee paying client." Dang, 422 F.3d at 814 (citations omitted). "Such out-of-pocket expenses are recoverable when reasonable." Id. Here, plaintiff seeks costs in the amount of $40,928.51.
Most of Plumb's objections to plaintiff's requested expenses rely on the statutory limitations of costs taxed under 28 U.S.C. § 1920. Reasonable expenses under § 1988, however, "are greater than taxable costs" and thus plaintiff is not limited to costs recoverable under § 1920. Harris v. Marhoefer, 24 F.3d 16, 20 (9th Cir. 1994); see, e.g., Kalitta Air L.L.C. v. Cent. Tx. Airborne Sys. Inc., 741 F.3d 955, 958-59 (9th Cir. 2013) (discussing the limitations of taxable costs under § 1920).
Federal Rule of Civil Procedure 54(d)(1) and Local Rule 292(f) govern the taxation of costs to losing parties, subject to limits set under 28 U.S.C. § 1920. See 28 U.S.C. § 1920 (enumerating taxable costs). Plaintiff is seeking expenses under § 1988, not the more limited costs under § 1920. See Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 580 (9th Cir. 2010) ("We rejected the defendant's argument that costs should be limited to those available under § 1920, explaining that the defendant 'fails to see that . . . travel expenses were not granted as costs under section 1920, but rather as out-of-pocket expenses, compensable under section 1988.'" (quoting Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir. 1991))).
That plaintiff did not file a Bill of Costs does not preclude plaintiff from seeking expenses under § 1988. See Harris v. Marhoefer, 24 F.3d 16, 19-20 (9th Cir. 1994) (rejecting a similar argument).
Plumb also objects to various expenses that courts have routinely granted under § 1988. See Harris, 24 F.3d at 19-20 (affirming an award of expenses under § 1998 that included expenses for "service of summons and complaint, service of trial subpoenas, fee for defense expert at deposition, postage, investigator, copying costs, hotel bills, meals, messenger service and employment record reproduction"); Int'l Woodworkers of Am., AFL-CIO, Local 3-98 v. Donovan, 792 F.2d 762, 767 (9th Cir. 1985) ("[C]osts for telephone calls, postage, air courier and attorney travel . . . are ordinarily billed to a client [and] are routine under all other fee statutes."); POM Wonderful LLC v. Ocean Spray Cranberries, Inc., No. Civ. 09-565 DDP RZx, 2012 WL 4936470, at *1 (C.D. Cal. Oct. 17, 2012) (allowing prevailing defendant to recover costs incurred for trial presentation expenses); Miller v. Schmitz, No. Civ. 1:12-00137 LJO SAB, 2014 WL 642729, at *5 (E.D. Cal. Feb. 18, 2014) (awarding costs for court costs, service fees, deposition transcript expenses, copy expenses, [] witness fees, . . . costs for an investigator, [and] hotel expenses incurred in connection with a deposition"); Mitchell Eng'g v. City & County of San Francisco, No. Civ. 08-04022 SI, 2011 WL 1431511, at *8 (N.D. Cal. Apr. 14, 2011) (awarding transcript costs); cf. United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990) ("We see no reason why [] hours [expended on a moot court trial run] cannot be included in a fee award as long as the number of hours spent was reasonable.").
There are several expenses, however, that the court finds unreasonable. First, because counsel's office is located in Oakland, plaintiff included hotel expenses during trial. While it seems to be generally accepted to charge a client to stay overnight in Sacramento during trial even when the attorney's office is in the Bay Area, it is not reasonable to also charge the client for the attorney to stay in Sacramento over the weekend. The court will therefore deduct $869.04 from plaintiff's expenses. The court also finds that the expense of $225.54 for a meal with plaintiff's expert over the weekend is not reasonable. The court will also exclude $161.50 for office supplies, such as post-it notes, sharpie pens, and a video cord adaptor. (Docket No. 184-9 at 20; Docket No. 184-11 at 25-27); cf. Missouri v. Jenkins by Agyei, 491 U.S. 274, 287 (1989) ("The safeguard against the billing at a profit of secretarial services and paper clips is the discipline of the market."). Lastly, the court will not include the requested expense of $1,437 for trial transcripts as plaintiff incurred that expense in connection with the pending appeal and it is yet to be determined which party will prevail on appeal.
From the numerous bills plaintiff submitted, it is difficult to confirm that plaintiff billed for the weekends and, if so, the exact amount. Because Plumb objected to this expense and plaintiff did not respond to or dispute Plumb's representation, the court deducted $107 per night for the rooms, $12.84 per night for taxes, and $25.00 per day for parking.
Similar to attorney's fees, "the district court may reduce costs to reflect limited success on the merits, but that it is not required to do so if such costs are sufficiently related to the plaintiffs' successful [] claim." Cummings v. Connell, 316 F.3d 886, 899 (9th Cir. 2003). Although all of plaintiff's claims arose from a single incident, the trial definitely would not have lasted as long as it did if plaintiff had not pursued his unsuccessful claims against Brame and the CHP or challenged the arrest for driving under the influence. In light of this limited success, the court finds that a 25% reduction to plaintiff's expenses is appropriate. Accordingly, the court will permit plaintiff to recover $28,676.57 in expenses.
Although it is not clear from the Ninth Circuit's decision, the district court in Cummings had awarded costs under § 1988. See Cummings, 177 F. Supp. 2d at 1089. The Ninth Circuit's indication on remand that "the district court may reduce costs to reflect limited success on the merits" thus applied to expenses awarded under § 1988. --------
In sum, the court will award $292,002.87 in attorney's fees and expenses, calculated as follows:
| Lodestar: | $ 232,966.30 |
| Fees on Fees | $ 30,360.00 |
| Expenses: | $ 28,676.57 |
|---|---|
| TOTAL AWARD: | $ 292,002.87 |
IT IS THEREFORE ORDERED that plaintiff's motion for attorney's fees and costs be, and the same hereby is, GRANTED in the amount of $292,002.87. Dated: December 21, 2015
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE
Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975).