S A Thomas v. Leroy Baca et al

Filing 1098

ORDER RE ATTORNEY FEES 1047 by Judge Dean D. Pregerson: Plaintiffs Motion for Attorney Fees is GRANTED, in part. The court awards 100 attorney hours at the current rate, or $75,000, for counsels efforts regarding Plaintiffs related, but ulti mately unsuccessful class action claims. The court finds that Marion Yagman reasonably expended 166.5 hours on this case at a reasonable rate of $750 per hour, and awards $124,875.00. The court finds that Stephen Yagman reasonably expended 100 hours on this case as an attorney and 100 hours as a paralegal. Applying respective rates of $750 per hour and $125 per hour to that work, the court awards $87,500. The court awards $11,400 for Mr. Bostwicks efforts and $ 10,875.00 for Mr. Chemerinskys efforts. As compensation for counsels efforts in bringing about the termination of Defendants impermissible floor sleeping practices, the court awards Plaintiffs a further $75,000, for a total of $384,275. Plaintiffs separate motion for out of pocket costs will be addressed by separate order of this court. (lc). Modified on 12/19/2014. (lc).

1
2

O

3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

S.A. THOMAS,

12

Plaintiff,

13
14
15
16
17

v.
LEROY BACA, MICHAEL
ANTONOVICH, YVONNE BURKE,
DEANE DANA, DON KNABE,
GLORIA MOLINA, ZEV
YAROSLAVSKY,
Defendants.
___________________________

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CV 04-08448 DDP (SHx)
ORDER RE: ATTORNEY’S FEES

[Dkt. No. 1047]

18
19
20

Presently before the court is Plaintiffs’ Motion for

21

Attorneys’ Fees.

22

the court grants fees in the amount of $384,275 and adopts the

23

following order.

24

I.

25

Having considered the submissions of the parties,

Background
Plaintiffs brought suit under 42 U.S.C. 1983 on behalf of a

26

putative class comprised of individuals who, while incarcerated in

27

Los Angeles County jail facilities, were required to sleep on the

28

floor between December 2002 and May 2005.

Plaintiffs sought, and

1

initially obtained, certification of both a damages class and an

2

injunctive relief class.

3

of this case, the parties in a related case, Rutherford v. Block,

4

CV 75-4111 DDP, agreed to modify an existing injunction so as to

5

require that every inmate receive a bunk and bedding.

6

Nov. 18, 2005, Dkt. 237).

7

This case proceeded.

In November 2005, and in part as a result

(See Order,

On September 21, 2007, this court

8

granted Plaintiffs’ Motion for Summary Adjudication, in part,

9

concluding that (1) a custom of forced “floor sleeping” existed in

10

the Los Angeles County Jail system, (2) the practice violates the

11

Eight and Fourteenth Amendments to the Constitution, and (3) the

12

County was deliberately indifferent to the violations.

13

The damages class portion of this case continued to be

14

litigated, involving extensive motion practice regarding the

15

appointment of lead class counsel and numerous settlement

16

proceedings.

17

agreement in September 2010, the case ultimately did not settle.

18

Though the parties reached a tentative settlement

Defendant then moved to decertify the damages class.

This

19

court granted the motion, finding, among other things, that

20

Plaintiffs had failed to develop any trial plan, had not put forth

21

any viable method of ascertaining class membership, and had

22

proposed a new theory of recovery that would require a showing of

23

individualized damages.

24

decertification order to the Ninth Circuit was denied.

25

Plaintiffs appeal of this court’s

Plaintiffs proceeded to trial with their individual claims for

26

damages.

27

jury that, consistent with the court’s earlier summary judgment

28

order, (1) floor sleeping violates the Eighth and Fourteenth

Over Defendant’s objections, the court instructed the

2

1

Amendments, (2) the County had a custom of requiring inmates to

2

sleep on the floor, and (3) County employees acted under the color

3

of law.

4

whether Plaintiffs were required to sleep on the floor and, if so,

5

what damages they suffered as a result.

6

The only issues remaining for the jury, therefore, were

After a three-day trial, the jury found that each Plaintiff

7

had been deprived of a bunk upon which to sleep, and awarded each

8

Plaintiff $10,000 in compensatory damages.

9

approximately $7.09 million in attorneys’ fees, plus out of pocket

10

costs.

11

II.

Plaintiffs now move for

Legal Standard

12

Pursuant to 42 U.S.C. § 1988, a district court may, in its

13

discretion, award a reasonable attorney’s fee to the prevailing

14

party in Section 1983 litigation.

15

§ 1988, “a prevailing plaintiff should ordinarily recover an

16

attorney’s fee unless special circumstances would render such an

17

award unjust.”

18

(internal quotation marks omitted).

19

there is a material alteration of the legal relationship between

20

the parties that modifies the defendant’s behavior in a way that

21

directly benefits the plaintiff.

22

103, 111-12 (1992).

23

42 U.S.C. § 1988(b).

Under

Hensley v. Eckerhart, 461 U.S. 424, 4429 (1983)
A plaintiff “prevails” when

See Farrar v. Hobby, 506 U.S.

The “starting point for determining the amount of a reasonable

24

fee is the number of hours reasonably expended on the litigation

25

multiplied by a reasonable hourly rate.”

26

Courts should exclude hours that were not reasonably expended from

27

the initial fee calculation.

28

presumption that the resulting “lodestar” figure represents a

Id. at 434.

3

Hensley, 461 U.S. at 433.

There is a strong

1

reasonable fee.

2

(9th Cir. 1987).

3

considerations “may lead the district court to adjust the fee

4

upward or downward.”

5

considerations is “the important factor of the ‘results obtained.’”

6

Id.; see also id. at n.9 (suggesting that many factors are often

7

subsumed within the initial calculation of hours reasonably

8

expended at a reasonable hourly rate).

9

Jordan v. Multnomah County, 815 F.2d 1258, 1262
After calculating the lodestar, other

Hensley, 461 U.S. at 433.

Among those other

III. Discussion

10

A.

11

Plaintiffs here seek fees for every minute of attorney time

Compensation for Unsuccessful Claims

12

expended throughout the entire course of this action.

13

protests, however, that Plaintiffs only prevailed only on a narrow

14

subset of individual claims, and should not recover fees related to

15

the larger, more complicated, and ultimately unsuccessful class

16

action issues.

17

Defendant

Attorney’s fees are not necessarily limited to work performed

18

on successful claims.

19

of litigation that was a necessary step to her ultimate victory is

20

entitled to attorney’s fees even for the unsuccessful stage.”

21

Cabrales v. County of Los Angeles, 935 F.2d 1050, 1053 (9th Cir.

22

1991). See also Hensley, 461 U.S. at 435 (“A plaintiff who has won

23

substantial relief should not have attorney's fee reduced simply

24

because the district court did not adopt each contention raised.”).

25

The Hensley Court established a two part analysis for determining

26

attorney’s fees where plaintiff has prevailed on some claims but

27

not others.

28

must decide whether the successful and unsuccessful claims are

“A plaintiff who is unsuccessful at a stage

See Hensley, 461 U.S. at 434-35.

4

First, the court

1

related.

2

claims involve “a common core of facts” or are “based on related

3

legal theories.”

Thorne v. City of El Segundo, 802 F.2d 1131, 1141

4

(9th Cir. 1986).

If the claims are unrelated, hours spent on

5

unsuccessful, unrelated claims should be excluded in considering

6

the amount of a reasonable fee. Hensley, 461 U.S. at 440.

7

Though there is no “precise” test of relatedness, related

Here, Plaintiffs’ individual claims of forced floor sleeping

8

clearly were based on the same core of facts, and premised upon the

9

same legal theories, as those brought on behalf of the class.

The

10

unsuccessful class claims were, therefore, related to the claims

11

upon which Plaintiffs did succeed.

12

66 F.3d 1064, 1069 (9th Cir. 1995) (finding unsuccessful class

13

claims sufficiently related to claims upon which summary judgment

14

was granted in the named plaintiff’s favor).

15

See O’Neal v. City of Seattle,

Having concluded that the successful and unsuccessful claims

16

were related, this court must proceed to the second step of the

17

Hensley analysis and evaluate the “significance of the overall

18

relief obtained by the plaintiff in relation to the hours

19

reasonably expended on the litigation.”

20

“If the plaintiff obtained ‘excellent results,’ full compensation

21

may be appropriate, but if only ‘partial or limited success’ was

22

obtained, full compensation may be excessive.”

23

Thorne, 802 F.2d at 1141 (9th Cir. 1986).1

24

if plaintiff’s claims were “interrelated, nonfrivolous, and raised

25

in good faith,” as “Congress has not authorized an award of fees

Hensley, 461 U.S. at 435.

Such is the case even

26
1

27
28

The term “full compensation” refers not to the amount sought
as attorneys’ fees, but rather to the lodestar product of
reasonable hours at a reasonable rate. See Hensley, 461 U.S. at
436.
5

1

whenever it was reasonable for a plaintiff to bring a lawsuit or

2

whenever [a] conscientious counsel tried the case with devotion and

3

skill.”

4

Hensley, 461 U.S. at 436.

This court, exercising its discretion, cannot conclude that

5

Plaintiffs obtained “excellent” results relative to the number of

6

hours expended on unsuccessful claims.

7

include well over one thousand entries, but do not break those

8

entries down by subject matter.

9

Plaintiffs’ counsel expended well over six hundred hours on class-

10
11

Counsels’ billing records

Nevertheless, it appears that

related matters.2
To some extent, this large number may be the result of

12

excessive billing.

13

for review of this court’s order setting a date for a conference

14

with the court (Declaration of Marion Yagman at 25), 15 minutes for

15

leaving a phone message for opposing counsel (Id. at 30), and four

16

hours for attending a brief scheduling conference. (Id. at 26.)

17

Even putting aside these somewhat minor excesses, however,

18

Plaintiffs’ relatively modest success in their straightforward

19

individual action cannot justify hundreds of hours of attorney work

20

on the related, but unsuccessful class claims.

21
22

Counsel, for example, billed fifteen minutes

To be sure, pursuit of those claims bore some fruit.

Class-

related discovery, for example, supported Plaintiffs’ Monell claims

23
24
25
26
27
28

2

This figure is a conservative estimate. Owing to a lack of
clarity in the records submitted, it is difficult to determine the
subject matter of several line items. By one count, up to 1073
hours, or 46.6% of the 2,288.25 hours sought by Marion Yagman, were
related to class issues. Of the 2,316.05 hours sought by Stephen
Yagman (putting aside distinctions between attorney and paralegal
hours), 25.1% percent, or 581.75 hours, may be related to class
claims. These figures include hours spent on appellate matters
related to class certification.
6

1

on summary judgment.

Even in their individual action, however,

2

Plaintiffs were awarded significantly less in compensatory damages

3

than the amount they argued for.

4

ultimately obtained, the court finds that fees for one hundred

5

hours of attorney effort, at the rates sought (discussed further,

6

below), adequately compensate Plaintiffs’ counsel for their efforts

7

on related, but unsuccessful, class-action issues.

Given the relief Plaintiffs

8

B.

Compensation for Successful Claims

9

Plaintiffs are entitled to reasonable fees related to their

10

successful claims.

11

case was hard fought, and that the docket in this case reflects

12

nearly two thousand entries.

13

participant for his or her zeal, many of these entries concern

14

disputes among Plaintiffs’ own counsel, motions for contempt,

15

requests for sanctions, and other issues that did not bear directly

16

upon Plaintiffs’ claims, and likely could have been resolved with

17

less expenditure of time and effort than was ultimately devoted to

18

them.

19

court focuses primarily on the core proceedings in this case:

20

Plaintiffs’ successful summary judgment motion and the trial

21

itself.

22

As an initial matter, the court notes that this

Though the court does not fault any

In determining the amount of time reasonably expended, the

“[T]he fee applicant bears the burden of establishing

23

entitlement to an award and documenting the appropriate hours

24

expended . . . and should maintain billing time records in a manner

25

that will enable a reviewing court to identify distinct claims.”

26

Hensley, 461 U.S. at 437.

27

provided to the court do not separate out or subtotal billed items

28

by subject area, and in many cases do not identify any subject

As stated above, the billing records

7

1

matter. (E.g., M. Yagman Decl. at 4(“Read letter from Ben

2

Schonbrun.”).

3
4

1.

Marion Yagman

Based on the court’s own review, Marion Yagman billed 66.5

5

hours through 2007 for issues other than contempt and class

6

certification.

7

These items appear reasonable to the court.

Ms. Yagman billed, as best the court can determine, 527.75

8

hours related to trial.

This figure far exceeds that which

9

reasonably could have been billed.

In the end, the case that was

10

tried to the jury was fairly straightforward.

11

directed that the court had already found floor sleeping to be

12

unconstitutional, that a custom or practice of floor sleeping

13

existed, and that County employees perpetuating that custom did so

14

under the color of law.

15

had, in fact, been subjected to forced floor sleeping and show what

16

their damages were.

17

the trial, including jury selection and deliberation, lasted only

18

three days.

19

been expended on trial-related matters.

20
21

2.

The jury was

Plaintiffs only had to prove that they

The evidentiary issues were not complex, and

Accordingly, up to 100 hours could reasonably have

Stephen Yagman

The court has reviewed the billing records of Stephen Yagman,

22

many of which are hand-written and, as discussed above, do not

23

identify the subject matter to which they relate (E.g., “Conf

24

w/MRY” (passim); “Memo to Files” (Declaration of Stephen Yagman, p.

25

18:19).

26

hours through December 16, 2007 on matters related to the

27

preparation and filing of the case, discovery (other than class

The court’s review indicates that Mr. Yagman spent 561.5

28
8

1

discovery), and motion practice, not including class certification,

2

contempt, and sanctions issues.

3

Based on this court’s knowledge of the facts of this case,

4

including the factual circumstances, the legal issues presented,

5

the scope and nature of discovery, and the nature of the briefing

6

submitted, 561.5 hours is an unreasonable amount of time for a team

7

of attorneys, let alone a single attorney, to have spent on these

8

matters.

9

hundred hours, and that the remainder is excessive.

10

The court finds that Mr. Yagman reasonably expended one

Mr. Yagman billed 460.75, in his capacity as a paralegal, for

11

trial and fee-related issues.

12

related to trial.

13

not present any complicated factual or evidentiary issues.

14

billed in excess of 100 are not warranted.

15
16

3.

Of those, 361.5 were directly

As discussed above, the trial was short, and did
Hours

Erwin Chemerinsky

Erwin Chemerinsky, one of this nation’s most respected legal

17

scholars, billed 29 hours related to summary judgment issues.

18

those, however, between 14 and 22 hours involved travel time.

19

Furthermore, it is not entirely clear why Mr. Chemerinsky’s efforts

20

were necessary in light of the more involved participation of two

21

other highly experienced attorneys.

22

award fees for 14.5 hours of Mr. Chemerinsky’s time.

23
24

4.

Of

Accordingly, the court will

Gary Bostwick

Gary Bostwick first worked on this case a few weeks prior to

25

the start of trial.

He seeks $34,200 for 45.6 hours of his

26

services.

27

efforts and excessive.

28

hours.

These items strike the court as duplicative of other
The court therefore awards fees for 15.2

9

1
2

5.

Maxwell Blecher and Victor Sherman

Plaintiffs seek fees for 29.6 hours of Maxwell Blecher’s time

3

and 7.75 hours of Victor Sherman’s time.

Mr. Sherman appears to

4

have played no substantive role in this matter, while Mr. Blecher’s

5

time appears to have been spent entirely on disputes between

6

Plaintiffs’ various counsel.

7

efforts.

The court awards no fees for these

8

C.

Applicable Rates

9

All attorneys in this matter seek a rate of $750 per hour for

10

their work on this case.

11

$750 per hour is in line with the rates charged for similar

12

services by attorneys in this district of comparable skill,

13

experience, and reputation.

14

751 F.3d 1096, 1110-11 (9th Cir. 2014).

15

the application of current rates to work performed as early as

16

2004, this court may apply historical rates in consideration of the

17

delay in payment.

18

(1989);

19

("Delaware II"), 483 U.S. 711, 716 (1987).

20

Plaintiffs have adequately shown that

See Chaudhry v. City of Los Angeles,
Though Defendants oppose

See Missouri v. Jenkins, 491 U.S. 274, 283-84

Penn. v. Delaware Valley Citizens' Council for Clean Air

Notably, however, Stephen Yagman seeks $750 per hour for his

21

time expended both as an attorney and as a paralegal.

While this

22

court finds that rate appropriate to Mr. Yagman’s work as a lawyer,

23

Plaintiffs’ motion cites no authority, nor is the court aware of

24

any, to support the proposition that a paralegal, regardless of the

25

quality of the paralegal work performed, is entitled to the same

26

rate as an attorney.

27

any paralegal in the history of the profession has ever been

28

compensated at $750 per hour, let alone that such is the prevailing

The court is not aware of any evidence that

10

1

rate for paralegal work within the Central District of California.

2

Plaintiffs have not put forth any other applicable rate for

3

paralegal services.

4

prevailing rate is $125 per hour.

5

America, LLC, No. CV 11-7667 PSG, 2014 WL 4090564 at *16 (C.D. Cal.

6

Apr. 29, 2014).

It appears to the court, however, that the
See Aarons v. BMW of North

7

D.

8

In the earlier stages of this case, this court explicitly

Compensation for Efforts to End Floor Sleeping

9

stated that the County’s agreement to end its floor-sleeping

10

practices going forward was, in part, a result of Plaintiffs

11

efforts in this action.

12

that settlement agreements enforced through consent decrees

13

materially alter the legal relationship between the parties, and

14

therefore may support an award of attorney’s fees.

15

Board and Care Home, Inc. v. West Virginia Dep’t of Health and

16

Human Resources, 532 U.S. 598, 604 (2001).

17

held that serving as a “catalyst,” speeding up a party’s compliance

18

with an injunction, is not compensable, the Ninth Circuit has

19

rejected such an approach.

20

(2012).

21

compliance with a pre-existing order, but rather led to a new

22

change in the relationship of the parties, as reflected in the

23

modification to the Rutherford injunction along the lines of the

24

injunctive relief Plaintiffs initially sought in this case.

25

Accordingly, the court awards a further 100 attorney hours at the

26

current rate, or $75,000, for Plaintiffs’ success in preventing

27

further floor sleeping.

28

IV. Conclusion

(Dkt. No. 237).

It is well established

See Buckhannon

Though some courts have

See Balla v. Idaho, 677 F.3d 910, 916

Here, Plaintiffs actions did not merely speed up or ensure

11

1

For the reasons stated above, Plaintiffs’ Motion for Attorney

2

Fees is GRANTED, in part.3

3

the current rate, or $75,000, for counsel’s efforts regarding

4

Plaintiffs related, but ultimately unsuccessful class action

5

claims.

6

166.5 hours on this case at a reasonable rate of $750 per hour, and

7

awards $124,875.00.

8

expended 100 hours on this case as an attorney and 100 hours as a

9

paralegal.

The court awards 100 attorney hours at

The court finds that Marion Yagman reasonably expended

The court finds that Stephen Yagman reasonably

Applying respective rates of $750 per hour and $125 per

10

hour to that work, the court awards $87,500.

11

$11,400 for Mr. Bostwick’s efforts and $10,875.00 for Mr.

12

Chemerinsky’s efforts.

13

bringing about the termination of Defendant’s impermissible floor

14

sleeping practices, the court awards Plaintiffs a further $75,000,

15

for a total of $384,275.4

16

IT IS SO ORDERED.

17

Dated:December 19, 2014

The court awards

As compensation for counsels’ efforts in

DEAN D. PREGERSON
United States District Judge

18
19
20
21
22

3

Plaintiffs’ separate motion for out of pocket costs will be
addressed by separate order of this court.
4

23
24
25
26
27
28

The court declines Plaintiffs’ invitation to apply a
positive multiplier and Defendant’s request to apply a negative
multiplier. Lodestar calculations generally subsume the relevant
factors. See Weeks v. Kellogg Co., No. CV 09-8102 (MMM), 2013 WL
6531177 at *34 n. 157 (C.D. Cal. Nov. 23, 2013); see also Lema v.
Comfort Inn Merced, No. 1:10-cv-01131-SMS, 2014 WL 1577042 at *12
(E.D. Cal. Apr. 17, 2014) (citing City of Burlington v. Dague, 505
U.S. 557, 566 (1992) (“Federal law does not permit enhancement of
fees for contingency risk in actions brought under fee-shifting
statutes . . . .”); cf. Vizcaino v. Microsoft Corp., 290 F.3d 1043,
1051 (9th Cir. 2002) (“The bar against risk multipliers in
statutory fee cases does not apply to common fund cases.”).
12