John Young v. Aron Wolfe et al
ORDER by Judge Ronald S.W. Lew: granting 409 MOTION for Attorney Fees. The Court GRANTS Plaintiffs Motion, but reduces the hourly rates and total hours reasonably expended. SEE ORDER FOR FURTHER DETAILS. (jre)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
11 JOHN YOUNG,
14 ARON WOLFE and ROBERTO
CV 07-03190 RSWL-AJWx
ORDER Re: PLAINTIFF’S
MOTION FOR ATTORNEY’S
This Action arises from Plaintiff John Young’s
20 (“Plaintiff”) claims of excessive force and malicious
21 prosecution against Defendants Aron Wolfe (“Defendant
22 Wolfe”) and Roberto Ochoa (“Defendant Ochoa”)
23 (collectively, “Defendants”).
On March 24, 2017, a
24 jury found in favor of Plaintiff against Defendant
25 Wolfe on Plaintiff’s excessive force claim and awarded
26 Plaintiff $350,000 in damages.
ECF No. 381.
27 before the Court is Plaintiff’s Motion for Attorney’s
28 Fees (“Motion”).
Pl.’s Mot. for Att’y’s Fees (“Mot.”),
1 ECF No. 409.
The Court, having reviewed all papers and
2 arguments submitted pertaining to this Motion, NOW
3 FINDS AND RULES AS FOLLOWS: the Court GRANTS
4 Plaintiff’s Motion, but reduces the hourly rates and
5 total hours reasonably expended.
On June 27, 2017, this Court issued a ruling on
9 Defendant Wolfe’s Motion for Qualified Immunity and to
10 Alter or Amend the Judgment, or in the Alternative, a
11 Motion for a New Trial.
Order, ECF No. 420.
12 went into the factual background of the case in its
13 Order, and the parties may refer to that Order for a
14 factual synopsis of the case.
This Action began in 2007.
Id. at 2:2-21.
After two jury trials
17 in 2009 and 2013 with verdicts that were overturned and
18 several motions for summary judgment, a jury trial
19 commenced on March 21, 2017 on Plaintiff’s malicious
20 prosecution and excessive force claims against
Minutes of Jury Trial, ECF No. 377.
22 the close of Plaintiff’s case-in-chief, Defendants made
23 a motion pursuant to Federal Rules of Civil Procedure
24 (“FRCP” or “Rule”) 50(a) for judgment as a matter of
25 law as to Plaintiff’s malicious prosecution claim,
26 which this Court granted.
27 No. 380.
Minutes of Jury Trial, ECF
On March 24, 2017, the jury rendered a
28 verdict in favor of Plaintiff against Defendant Wolfe
1 as to Plaintiff’s excessive force claim and against
2 Plaintiff and for Defendant Ochoa as to Plaintiff’s
3 excessive force claim.
Minutes of Jury Trial, ECF No.
The jury awarded Plaintiff $350,000 in damages.
5 ECF No. 387.
On March 24, 2017, Defendants brought a
6 FRCP 50(a) motion for judgment as a matter of law as to
7 Plaintiff’s claim for punitive damages, which this
8 Court granted.
Minutes of Jury Trial, ECF No. 381.
9 June 27, 2017, this Court denied Defendant Wolfe’s
10 Motion for Qualified Immunity as Judgment as a Matter
11 of Law, or in the Alternative, a Motion for a New
ECF No. 420.
On May 15, 2017, Plaintiff
13 brought the instant Motion for Attorney’s Fees.
14 No. 409.
Defendants filed their Opposition to this
15 Motion on May 30, 2017, and Plaintiff’s Reply followed
16 on June 7, 2017.
ECF Nos. 412, 416.
42 U.S.C. § 1988 states that the court, in its
20 discretion, may allow the prevailing party to recover
21 reasonable attorney’s fees as part of the costs in any
22 action or proceeding to enforce a § 1983 provision.
23 U.S.C. § 1988(b).
Reasonable attorney’s fees under § 1988 can be
25 determined by calculating the “lodestar,” by
26 multiplying the number of hours reasonably spent by a
27 reasonable hourly rate.
28 424, 434 (1983).
Hensley v. Eckerhart, 461 U.S.
The fee applicant bears the burden of
1 documenting the appropriate hours and must submit
2 evidence in support of the hours worked.
3 Gomez, 60 F.3d 525, 534 (9th Cir. 1995)(internal
4 citation omitted).
There is a presumption that the
5 lodestar calculation represents a reasonable fee.
6 Morales v. City of San Rafael, 96 F.3d 359, 363 (9th
7 Cir. 1996).
Reasonable attorney’s fees under § 1988
8 are to be calculated according to the prevailing market
9 rates in the relevant community, and such rates should
10 be in line with similar services by lawyers of
11 reasonably comparable skill, experience, and
Blum v. Stenson, 465 U.S. 886, 896 n.11
In cases where a plaintiff is only partially
15 successful, district courts apply a two-part analysis.
16 Hensley, 461 U.S. at 434-35; Thorne v. City of El
17 Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986).
18 the court asks whether the unsuccessful claims were
19 related to the plaintiff’s successful claims.
20 802 F.2d at 1141.
The test for relatedness is not
21 precise, but related claims will involve “a common core
22 of facts” or will be based on related legal theories,
23 while unrelated claims will be “distinctly different.”
24 Id. (internal citation omitted).
Some courts look to
25 whether the claims seek relief for essentially the same
26 course of conduct.
If the successful and
27 unsuccessful claims are unrelated, a plaintiff may not
28 be compensated for time expended on unsuccessful
However, if the successful and
2 unsuccessful claims are related, courts must then
3 evaluate the significance of the overall relief
4 obtained by the plaintiff in relation to the hours
5 reasonably expended on the litigation.
6 fee award may be appropriate if the relief, however
7 significant, is limited in comparison to the scope of
8 the litigation as a whole.
Hensley, 461 U.S. at 440.
Decisions like Hensley have emphasized that “the
10 district court has discretion in determining the amount
11 of a fee award.”
Id. at 437.
This is appropriate
12 because of the district court’s superior understanding
13 of the litigation.
Defendants’ Objections to Carol Sobel’s
Defendants object to several paragraphs of attorney
18 Carol Sobel’s Declaration (“Sobel Declaration”), which
19 was provided by Plaintiff in support of his requested
20 hourly rate.
Defendants object to paragraphs 11, 12,
21 13, 27, 31, 33, 34, 35, 36, 37, 38, 39, 40, and 41.
22 See generally Defs.’ Obj. to Sobel Decl., ECF No. 41223 16.
Defendants object on largely redundant grounds:
24 relevance and improper expert opinion, and one
25 objection on the basis of lack of personal knowledge.
While many of Defendants’ objections are
28 boilerplate and “devoid of any specific argument or
1 analysis as to why any particular exhibit or assertion
2 in a declaration should be excluded,”
United States v.
3 HVI Cat Canyon, Inc., 213 F. Supp. 3d 1249, 1257 (C.D.
4 Cal. 2016), the Court OVERRULES as MOOT all of
5 Defendants’ objections as to paragraphs 11, 12, 13, 27,
6 31, 33, 34, 35, 36, 37, 38, 39, 40, and 41 of the Sobel
7 Declaration because the Court does not rely on any of
8 the specific portions of the Sobel Declaration to which
9 Defendants object.
Plaintiff is Entitled to Attorney’s Fees at
Reduced Hourly Rates and Reduced Hours Expended
First, the Court must determine the lodestar
13 figure, which is the reasonable hourly rate multiplied
14 by the reasonable hours expended.
Chaudhry v. City of
15 Los Angeles, 751 F.3d 1096, 1110 (9th Cir. 2014).
16 Then, the Court must determine if for any reason the
17 lodestar figure should be adjusted.
Kerr v. Screen
18 Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975),
19 abrogated on other grounds by City of Burlington v.
20 Dague, 505 U.S. 557 (1992).
In Kerr, the Ninth Circuit
21 found the following factors important in determining
22 whether attorney’s fees are reasonable: (1) the time
23 and labor required, (2) the novelty and difficulty of
24 the questions involved, (3) the skill requisite to
25 perform the legal service properly, (4) the preclusion
26 of other employment by the attorney due to acceptance
27 of the case, (5) the customary fee, (6) whether the fee
28 is fixed or contingent, (7) time limitations imposed by
1 the client or the circumstances, (8) the amount
2 involved and the results obtained, (9) the experience,
3 reputation, and ability of the attorneys, (10) the
4 “undesirability” of the case, (11) the nature and
5 length of the professional relationship with the
6 client, and (12) awards in similar cases.
Reasonable Hourly Rates
“Fee applicants have the burden of producing
9 evidence that their requested fees are ‘in line with
10 those prevailing in the community for similar services
11 by lawyers of reasonably comparable skill, experience,
12 and reputation.’”
Chaudhry, 751 F.3d at 1110 (quoting
13 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980
14 (9th Cir. 2008)).
The relevant community is the forum
15 in which the district court sits.
16 court has discretion in determining which fees are
Lead counsel, Jeff Dominic Price (“Mr. Price”)
19 requests an hourly rate of $775.
20 argues that his rate is within the range of market
21 rates routinely awarded to civil rights counsel of
22 comparable skill, experience, and reputation within
23 this District and provides the Court with the Sobel
24 Declaration to support his position.
Id. at 9:14-17.
25 Defendants argue that Plaintiff’s reliance on the Sobel
26 Declaration is misguided because the cases she cites to
27 in support of her opinion are factually and legally
Defendants request an hourly rate of
1 $250 for Mr. Price.
Defs.’ Opp’n to Pl.’s Mot. for
2 Att’y’s Fees (“Opp’n”) 6:6-16, 9:9-12.
In Cervantes v. Cnty of Los Angeles, No. 12-09889
4 DDP (MRWx), 2016 WL 756456, at *3-4 (C.D. Cal. Feb. 24,
5 2016), the court found that $700 was an appropriate
6 hourly rate for lead counsel in a § 1983 excessive
7 force case.
The plaintiff alleged constitutional
8 violations related to plaintiff’s initial detention by
9 police as well as a claim of malicious prosecution.
10 However, lead counsel in Cervantes was admitted to the
11 California bar in 1978, a full ten years before Mr.
12 Price was admitted to the Oregon bar in 1988 (Mr. Price
13 was admitted to the California bar in 1993).
14 Jeff Price (“Price Decl.”), ¶¶ 1-2, ECF No. 409-2.
15 Additionally, the court there found plaintiff’s counsel
16 satisfied his burden of establishing his rate was in
17 line with the rates charged by other attorneys with
18 comparable skill, experience, and reputation; this is
19 something that is lacking in the present case.
20 Cervantes, 2016 WL 756456, at *3.
The Sobel Declaration attached several opinions of
22 various cases and attorney’s fees awards, none of which
23 are compelling to this Court’s analysis.
Exhibit 2 to
24 the Sobel Declaration is a Los Angeles Superior Court
25 case where the court awarded plaintiff’s counsel an
26 hourly rate of $790.
Decl. of Carol Sobel (“Sobel
27 Decl.”), Ex. 2, ECF No. 409-7.
However, the opinion
28 said nothing about how it came to that rate, the
1 attorney’s years of experience, area of expertise, and
2 any other factors the court used in determining the
3 reasonable rate.
Exhibit 3 to the Sobel Declaration is
4 an approval of a wage and hour class-action settlement
5 by the Los Angeles Superior Court where the parties
6 agreed to a range of rates for attorneys from $3507 $795.
This was not a civil rights action and the court
8 there did not go into its reasoning for the rates that
9 it found were appropriate.
Sobel Decl., Ex. 3, ECF No.
While in her declaration Sobel goes into the
11 number of years some of the attorneys she compares to
12 Mr. Price have been licensed to practice, there is no
13 way for this Court to determine what factors were used
14 by the various courts in determining their reasonable
Sobel Decl. 13:26-14:21.
Additionally, it is
16 not clear if the parties in the class-action settlement
17 agreed to that amount or if the court made its own
Exhibit 4 to the Sobel Declaration is
19 similarly not a civil rights action.
Sobel Decl., Ex.
20 4, ECF No. 409-9.
Exhibit 5 to the Sobel Declaration is an order
22 awarding attorney’s fees in this District where the
23 court found that $375, $550, and $750 per hour were
24 appropriate rates for three attorneys after they
25 provided the court with declarations detailing their
26 skills and experience as civil rights attorneys and
27 past fee awards they received.
28 No. 409-10.
Sobel Decl., Ex. 5, ECF
Here, Plaintiff did not provide any fee
1 awards for any of the three attorneys seeking their
Exhibit 6 is nothing more than a declaration
3 Sobel provided in a different district court case;
4 however there is no order regarding the actual
5 attorney’s fees award.
Sobel Decl., Ex. 6, ECF No.
Exhibit 7 of the Sobel Declaration is a Ninth
7 Circuit opinion regarding attorney’s fees; however the
8 case was a class-action federal antitrust case.
9 Decl., Ex. 7, ECF No. 409-12.
Exhibit 8 is an order
10 from this District granting rates of $300, $325, and
11 $725 per hour to three attorneys.
However, this case
12 was not a civil rights trial, but a Federal Torts Claim
13 Act trial.
Sobel Decl., Ex. 8, ECF No. 409-13.
14 of the exhibits attached to Sobel’s Declaration support
15 the rate Mr. Price, Mr. Corey Carter (“Mr. Carter”),
16 and Ms. Mary McCaffrey (“Ms. McCaffrey”) seek.
17 they show that attorneys have been awarded rates
18 similar to those sought in the instant case, the cases
19 are not factually similar or even in the same area of
20 law for this Court to conclude they support the rates
21 Plaintiff seeks.
Moreover, Sobel’s Declaration seems
22 to add commentary to these orders based on her
23 knowledge of the attorneys involved to justify the
24 rates that were awarded; however the orders themselves
25 do not provide the same support.
The Court is also in receipt of and has reviewed
27 Defendants’ expert, Mr. Gerald Knapton’s Declaration on
28 his opinions regarding reasonable hourly rates for Mr.
1 Price, Mr. Carter, and Ms. McCaffrey.
See Decl. of
2 Gerald Knapton (“Knapton Decl.”), ECF No. 412-13.
3 While Mr. Knapton’s opinions are well-taken, the Court
4 finds that $250 per hour for Mr. Price is too low an
5 hourly rate given his skill, his experience, and other
6 fee awards that have been given in this District in
7 civil rights cases.
In the instant case, the Real
8 Report 2016 does not accurately reflect what an
9 attorney with Mr. Price’s experience should be paid.
10 Therefore, the Court declines to rely on Mr. Knapton’s
Given the lack of reliable evidence Plaintiff has
13 provided to support a reasonable hourly rate, the Court
14 finds that $525 is a reasonable hourly rate for Mr.
Considering Mr. Price’s experience and
16 expertise, and the fact that Plaintiff’s suggested rate
17 of $775 is not supported, $525 is more than reasonable
18 as an hourly rate.
Additionally, Mr. Price provided
19 not one fee award from any of his prior cases to
20 justify such a high hourly rate request.
21 Court is aware of the number of years of Mr. Price’s
22 legal experience, the Court is unaware of how many
23 civil rights cases he has taken to trial, his successes
24 and attorney’s fees awards in those cases, and other
25 factors that would assist the Court in determining an
26 appropriate hourly rate.
It is difficult for the Court
27 to reconcile Plaintiff’s request with the lack of
28 evidence that has been provided.
In Ingram v. City of
1 San Bernardino, No. EDCV 05-925-VAP (SGLx), 2007 WL
2 5030225, at *7 (C.D. Cal. Aug. 27, 2007), the court
3 found that $500 was a reasonable hourly rate in an
4 excessive force case where the jury awarded the
5 plaintiff over $800,000.
Plaintiff’s counsel in that
6 case was admitted to practice in California in 1988.
7 Here, Mr. Price was admitted to practice in Oregon in
8 1988 and in California in 1993.
While Ingram was
9 decided in 2007, $525 per hour adequately accounts for
10 any change in rates over the years.
Additionally, in Contreras v. City of Los Angeles,
12 No. 2:11-cv-1480-SVW-SH, 2013 WL 1296763, at *1-3 (C.D.
13 Cal. Mar. 28, 2013), Judge Wilson awarded plaintiff’s
14 counsel a rate of $675 in an excessive force case where
15 a jury awarded the plaintiff $4.5 million dollars for
16 the present value of future costs of medical care and
17 $1.225 million dollars for past and future physical
Judge Wilson noted that plaintiff’s counsel ran
19 a relatively small firm and in a prior trial in the
20 Northern District, he was awarded $525 per hour.
21 Here again, the Court does not have any evidence of Mr.
22 Price’s prior awards because none were provided.
23 Moreover, the jury award in this case was much lower
24 than the two cases above and Mr. Price is a solo
Additionally, there is no indication
26 that Mr. Price was unable to take on other cases during
27 the pendency of this litigation as is evident in
28 Plaintiff’s Ex Parte Application to this Court to
1 extend the time to file the instant Motion.
2 Application, Mr. Price indicated he needed an extension
3 because he was preparing for another trial in this
See Pl.’s Ex Parte App., ECF No. 405.
5 on other awards in similar cases in this District, $525
6 is a reasonable hourly rate.
Associate attorney, Mr. Carter requests a rate of
8 $495 per hour.
The court in Cervantes
9 awarded an associate attorney $400 per hour because it
10 determined that the attorney there practiced primarily
11 criminal defense and did not have experience in civil
12 rights cases.
Cervantes, 2016 WL 756456 at *3.
13 Mr. Carter has been licensed to practice law for six
14 years and from his resume it appears Mr. Carter has not
15 practiced in the area of civil rights at all but has
16 practiced in bankruptcy, contracts, and insurance law.
17 Decl. of Corey Carter (“Carter Decl.”), Ex. D, ECF No.
Given that Mr. Carter has only 6 years of
19 experience and no experience with civil rights cases,
20 $325 is an appropriate hourly rate in this case.
Associate attorney Ms. McCaffrey requests a rate of
22 $295 per hour.
In Cervantes, the court
23 awarded a rate of $275 per hour to an attorney with two
24 years of experience who was participating in his first
25 federal trial.
Cervantes, 2016 WL 756456 at *3.
26 McCaffrey has only six months of experience, having
27 graduated from law school and passed the bar in 2016.
28 The Court was also given scant evidence on her
1 experience, presumably because Ms. McCaffrey does not
2 have much legal experience given her recent admission
3 to the California bar.
Given all of these factors,
4 $175 is an appropriate hourly rate for her role in this
Reasonable Hours Expended
Mr. Price requests compensation for a total of
8 843.8 hours, Mr. Carter requests compensation for a
9 total of 52.9 hours, and Ms. McCaffrey requests
10 compensation for a total of 206.4 hours.
11 Plaintiff argues he has provided detailed billing
12 records and is entitled to compensation for all time
13 reasonably expended on this litigation.
Id. at 11:3-
Defendants argue the number of hours Plaintiff
15 claims is not reasonable because there are hours that
16 were not reasonably expended in pursuit of the result
17 achieved including undated entries, block-billed
18 entries, insufficiently documented entries, hours for
19 Plaintiff’s criminal proceedings, and hours for
20 unrelated and unsuccessful claims.
21 Plaintiff argues there is no block-billing,
22 reconstruction of billing entries is appropriate and
23 permitted when necessary as is in the instant case, and
24 Plaintiff’s success in the case achieved a substantial
25 good for the public interest.
Pl.’s Reply to Mot. for
26 Att’y’s Fees (“Reply”) 8:7-10:10.
Entries Without a Date
Defendants argue that Plaintiff has 59.8 hours that
1 are undated and insufficiently documented, and they
2 request a 30% reduction in these hours because it is
3 difficult to determine their reasonableness.
A district court has “wide latitude in determining
6 the number of hours that were reasonably expended by
7 the prevailing lawyers.”
Sorenson v. Mink, 239 F.3d
8 1140, 1147 (9th Cir. 2001).
The fee applicant “bears
9 the burden of documenting the appropriate hours
10 expended in litigation and must submit evidence in
11 support of hours worked.”
Gates v. Deukmejian, 987
12 F.2d 1392, 1398 (9th Cir. 1992).
Therefore, “where the
13 documentation of hours is inadequate, the district
14 court may reduce accordingly.”
Sorenson, 239 F.3d at
15 1147 (internal quotation marks and citation omitted).
16 Further, when faced with a massive fee application, a
17 district court “has authority to make across-the-board
18 percentage cuts either in the number of hours claimed
19 or in the final lodestar figure,” and a court “is not
20 required to set forth an hour-by-hour analysis of the
21 fee request.”
Gates, 987 F.2d at 1400; Sorenson, 239
22 F.3d at 1146.
However, the court must give a “concise
23 but clear” explanation for doing so.
Gates, 987 F.2d
24 at 1399.
In this case, there are a significant number of
26 entries that do not include a date, and further, most
27 entries provided are exceptionally vague.
28 Decl., Ex. B, ECF No. 409-4.
Given the vast nature of
1 this litigation, initially beginning ten years ago in
2 2007 with twelve claims against sixteen defendants, and
3 given the need to award fees based only upon related
4 claims, the documentation provided is insufficient.
5 The billing entries are not “sufficient[ly] detail[ed]
6 that a neutral judge can make a fair evaluation of the
7 time expended.”
Hensley, 461 U.S. at 441 (Burger, J.,
Undated entries such as “TC client” (4
9 hours and 11 minutes), “Trial” (10 hours), and “Prepare
10 for trial” (4 hours) along with at least forty other
11 undated entries offer no assistance to the Court in
12 determining when the work was done, for what trial or
13 dispositive motion, and as to which Defendant.
14 problem is only exacerbated by the fact that the
15 entries are listed in no chronological order, with some
16 entries dated skipping about from year to year.
17 result, it is nearly impossible to match the hours
18 recorded by Mr. Price with what happened during the
19 entirety of this litigation.
The Court, after
20 thoroughly having reviewed each of Mr. Price’s undated
21 entries, was able to account for at least 57 hours that
22 were undated.1
The Court finds it appropriate to reduce
23 the undated hours by a minimum of 30%.
A 30% reduction
24 is appropriate and will account for possible incorrect
25 and inflated entries along with possible duplicative
Therefore, 17.1 hours will be reduced.
57 hours and 45 minutes was the actual total amount of
Defendants argue for a 30% reduction of the 330.3
3 hours Defendants claim are improperly block-billed
4 because it does not allow for a determination of
5 whether the fees are reasonable and block-billed hours
6 tend to inflate overall legal fees.
7 Plaintiff argues there are no block-billed hours
8 because the entries make clear what tasks were
9 completed and do not make it difficult to determine if
10 the hours were reasonable.
Block-billing is the “time-keeping method by which
12 each lawyer . . . enters the total daily time spent
13 working on a case, rather than itemizing the time
14 expended on specific tasks.”
Welch v. Metro. Life Ins.
15 Co., 480 F.3d 942, 945 n.2 (9th Cir. 2007)(internal
16 quotation marks and citation omitted).
17 reduce block-billed hours because block-billing “makes
18 it more difficult to determine how much time was spent
19 on particular activities.”
Id. at 948.
20 generally impose a 5% to 20% reduction for hours block21 billed.
Pierce v. Cnty of Orange, 905 F. Supp. 2d
22 1017, 1031 (C.D. Cal. 2012); see Welch, 480 F.3d at 948
23 (finding a 20% reduction was appropriate for block24 billed hours); Robinson v. Plourde, 717 F. Supp. 2d
25 1092, 1100 (D. Haw. 2010)(reducing block-billed hours
26 by 15%).
Even where entries are sufficiently detailed
27 to give courts an accurate sense of the task performed,
28 block-billing runs the risk that the time spent was
1 inflated, even if only slightly, and does not allow a
2 court to precisely determine whether the time devoted
3 to each individual task was reasonable.
Pierce, 905 F.
4 Supp. 2d at 1031-32.
In this case, Mr. Price has a two-fold problem with
6 some of his billing entries: (1) they are large block7 billed time periods and (2) they insufficiently
8 describe the tasks performed.
Mr. Price has block-
9 billed at least 330 hours, not including trial days
10 where at some entries Mr. Price billed 14, 18, and 19
11 hours for one trial day or entries where he billed over
12 8 hours to “Prep for trial” with no further description
13 of the tasks he performed.
Price Decl., Ex. B, ECF No.
While this Court need not go into the
15 specifics, it is troubling that Mr. Price billed 19
16 hours for “Trial and trial prep,” when this could have
17 easily been split into more than one entry.
Additionally, this Court presided over the three
19 trials that have taken place and the Court can
20 definitively say that no trial day exceeded 8-9 hours
21 (including 1-1 ½ hours for lunch breaks), yet Mr. Price
22 has numerous entries for trial days exceeding 10-11
23 hours for the day, which leads to the conclusion that
24 Mr. Price has included time spent on other tasks.
25 However, there is no way for the Court to determine
26 what those tasks were and how much time was spent on
Moreover, although Mr. Price titles each entry
28 with a task, such tasks are not detailed enough to give
1 the Court an accurate sense of the work performed.
2 example, Mr. Price has three entries where he billed
3 over ten hours each labeled “Prepare opening brief” and
4 on the following day he billed over eights hours to
5 “Finalize opening brief.”
Such entries, along with
6 numerous others, certainly do not allow the Court to
7 evaluate whether the time spent was inflated, and
8 accordingly, there runs the risk that such time was
These entries block out time frames as large
10 as 19 hours while offering little information as to the
11 work actually being done.
For this reason, the Court
12 finds it appropriate to reduce Mr. Price’s block-billed
13 hours by 20%.
Therefore, 66 hours will be reduced.
As to Ms. McCaffrey’s billing, there is a concern
15 as to block-billing and insufficiently described
16 billing entries as well.
Ms. McCaffrey included
17 entries billing 5.46 hours for “Martinez testimony,”
18 6.32 hours for “Ochoa charts,” and 8.07 and 9.44 hours
19 for “MIL development.”
The Court was able to locate at
20 least 40 hours that were not only block-billed but also
21 were insufficiently described.
The Court is unable to
22 determine what, if any, of these are inflated or are
23 hours billed for several tasks that were not clearly
The Court finds a 20% reduction of Ms.
25 McCaffrey’s block-billed hours appropriate.
26 8 hours will be reduced.
iii. Reconstructed Hours
Defendants also request a 30% reduction of the
1 149.9 hours they argue were “reconstructed” hours,
2 which are an “unreviewable guess” of the actual time
3 Mr. Price spent on a matter.
4 Plaintiff counters by arguing that reconstructed hours
5 are permitted when necessary and he has submitted a
6 declaration evidencing good faith efforts for the hours
7 that were reconstructed.
While a court may not outright deny a motion for
9 attorney’s fees because an attorney has failed to
10 maintain adequate records or because the application is
11 not based on “contemporaneous records,” courts may
12 reduce fees to a reasonable amount.
Fischer v. SJB-
13 P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000).
14 Plaintiff is correct that hours may not be reduced
15 completely because they are reconstructed, courts
16 strongly prefer contemporaneous time keeping.
17 “a court may rely on reconstructed time records so long
18 as the court concludes that the records are accurate
19 and the time billed does not appear to be inflated.”
20 Defenbaugh v. JBC & Associates, Inc., No. C-03-0651
21 JCS, 2004 WL 1874978, at *12 (N.D. Cal. Aug. 10,
22 2004)(citing United States v. $12,248 U.S. Currency,
23 957 F.2d 1513, 1521 (9th Cir. 1992)).
Here, the Court has great concerns over the
25 reconstructed hours Plaintiff has submitted, 148 hours
26 and 18 minutes.
Of particular concern are at least ten
27 entries that were reconstructed where Mr. Price billed
28 more than 10 hours each.
This included one on July 23,
1 2011 labeled “Prepare opening brief” (10 hours and 40
2 minutes), a second on July 24, 2011 labeled “Prepare
3 opening brief” (10 hours and 40 minutes), and a third
4 on July 25, 2011 labeled “Prepare opening brief” (13
5 hours and 40 minutes).
Mr. Price does this similar
6 billing pattern with several other entries raising a
7 concern of possible inflation.
The Court finds it
8 appropriate to reduce the reconstructed hours by 25% to
9 account for possible inflation.
Therefore, 37 hours
10 will be reduced.
Unrelated and Unsuccessful Claims
Defendants request not only a reduction of 16.2
13 hours from Mr. Price’s total hours for unrelated and
14 unsuccessful claims, they also request an overall 50%
15 reduction in the total lodestar figure because of what
16 they argue is Plaintiff’s limited success as a whole
17 given the entirety of the litigation.
18 Plaintiff was only successful on his excessive force
19 claim against one Defendant and also pursued numerous
20 unmeritorious claims against individuals who should not
21 have been part of the litigation.
22 18:4-6, 18:21-23.
Id. at 16:19-20,
Plaintiff argues that he achieved an
23 excellent result, mot. 12:8-10, and the result achieved
24 a substantial good for the public interest.
Additionally, Plaintiff argues there are no
26 unrelated claims for which he did not prevail because
27 all of Plaintiff’s claims arise from the incident of
28 excessive force against him.
Mot. 13:7-10, 14:12-13.
Where a plaintiff brings multiple claims and is
2 only partially successful, district courts must apply a
3 two-part analysis to determine which claims are
Thorne, 802 F.2d at 1141.
5 court asks whether the unsuccessful claims were related
6 to the plaintiff’s successful claims.
7 claims will involve a same common core of facts or be
8 based on related legal theories.
9 successful and unsuccessful claims are unrelated, the
10 fee may not include time expended on the unsuccessful
Id. (citing Hensley, 461 U.S. at 434-35).
12 However, if the unsuccessful and successful claims are
13 related, the court must then evaluate the significance
14 of the overall relief obtained by the plaintiff in
15 relation to the hours reasonably expended on the
Id. (citing Hensley, 461 U.S. at 435).
17 the relief is limited in comparison to the scope of the
18 litigation as a whole, a reduced fee may be
Hensley, 461 U.S. at 435.
In this case, Plaintiff’s malicious prosecution
21 claims are unrelated to the excessive force claim on
22 which Plaintiff prevailed.
These claims turned on the
23 notion that Defendants had some role in the decision to
24 file criminal charges against Plaintiff following the
This involves a completely separate set of
26 facts from the details of the physical confrontation at
27 issue in the excessive force claim.
To prevail on his
28 malicious prosecution claim, Plaintiff needed to prove
1 that Defendants caused Plaintiff to be prosecuted
2 without probable cause and that Plaintiff was damaged
3 as a result.
4 No. 92.
Pl.’s Memo. Cont. Fact & Law 3:18-21, ECF
Plaintiff’s key facts for this claim were that
5 Defendants falsified police reports accounting for the
6 incident to shield themselves from criminal and civil
7 liability, Defendant Christina Martinez (“Martinez”)
8 falsely stated that she was injured during the attack
9 in order to initiate criminal charges, and Defendants
10 testified falsely in court.
Id. at 5:1-14.
11 facts are distinct from those relevant to the excessive
12 force claim that include how many times Defendant Wolfe
13 hit Plaintiff, whether Plaintiff was injured in the
14 showers, and whether Plaintiff was wandering the module
Further, Plaintiff relied on a distinct
16 legal theory of conspiracy to advance the malicious
17 prosecution claim, separate from the excessive force
Plaintiff was unsuccessful in his malicious
20 prosecution claim and it is unrelated to the judgment
21 Plaintiff received on his excessive force claim against
22 Defendant Wolfe.
Evidence concerning whether
23 Defendants caused Plaintiff to be criminally charged
24 was not material and relevant to evidence of whether
25 Defendants used excessive force against Plaintiff.
26 Thorne, 802 F.2d 1131, 1141 (9th Cir. 1986).
Even if the Court were to assume that the claims
28 are related, Plaintiff still fails to satisfy the
1 second prong of the analysis.
2 relief obtained is not significant in comparison to the
3 scope of the litigation as a whole, and therefore a
4 reduced fee is appropriate.
5 Thorne, 802 F.3d at 1141.
Hensley, 461 U.S. at 431;
6 Complaint alleged twelve claims against sixteen
Plaintiff was successful on one claim
8 against one Defendant.
The fact that a party is
9 successful on one out of several claims is a factor
10 that should be considered when determining reasonable
11 attorney’s fees.
McCown v. City of Fontana, 565 F.3d
12 1097, 1103 (9th Cir. 2009).
Similarly, Plaintiff’s supervisory and Monell
14 claims are unrelated to the excessive force claim.
15 These claims hinged on Plaintiff proving that the Los
16 Angeles County Sheriff’s Department had a pattern and
17 practice of deliberate indifference to the
18 constitutional rights of Plaintiff and that this policy
19 caused damage to Plaintiff.
20 Law 3:21-25.
Pl.’s Memo. Cont. Fact &
Plaintiff’s key facts for this claim were
21 that the Los Angeles County Sheriff’s Department had a
22 pattern and practice of permitting the beating of
23 inmates, of writing false police reports to cover
24 beatings, of submitting false reports to the District
25 Attorney to initiate the filing of false and malicious
26 charges against inmates, and of permitting deputies to
27 testify falsely.
Id. at 5:1-14.
These facts and
28 theories are also distinct from those advanced for the
1 excessive force claim that focused on the specific
2 events of the day of the incident and Defendant Wolfe’s
3 use of force against Plaintiff.
4 spent on the supervisory and Monell claims are
5 unrelated, and the time spent advancing them need not
6 be compensated.
Claims of excessive force against Defendants Wolfe,
8 Ochoa, Martinez, and Michael Smith (“Smith”) are
9 related because they turn on the same facts regarding
10 the physical confrontation and the same legal theories
11 on excessive force.
However, because the relief
12 obtained by Plaintiff was extremely limited, despite
13 Plaintiff’s argument that it was substantial, and
14 because Plaintiff prevailed on only a single claim
15 against a single defendant, the Court is justified in
16 reducing the fee award.
This is especially the case
17 because prior to the jury trial, Plaintiff voluntarily
18 made the decision to dismiss Defendants Martinez and
19 Smith from the case.
The Ninth Circuit in McCown held that attorney’s
21 fees awards under § 1988 “must be adjusted downward
22 where the plaintiff has obtained limited success on his
23 pleaded claims, and the result does not confer a
24 meaningful public benefit.”
25 Hensley’s ruling that “[a] reduced fee award is
26 appropriate if the relief, however significant, is
27 limited in comparison to the scope of the litigation as
28 a whole.”
Id.; (quoting Hensley, 461 U.S. at 440).
Plaintiff argues that he obtained an excellent
2 result that conferred a public benefit because “[c]ivil
3 rights awards by their nature contribute significantly
4 to the deterrence of civil rights violations in the
Mot. 9:15-20 (internal citation omitted).
6 However, Plaintiff is incorrect that an award of any
7 amount is an automatic finding of an excellent result.
8 While civil rights awards may confer a public benefit,
9 this is strongly dependent on the facts of the case and
10 the harm alleged.
The Ninth Circuit has held that a
11 public benefit must have enough of an impact to the
12 public to justify awarding full attorney’s fees despite
13 the limited success of a plaintiff.
14 at 1105.
McCown, 565 F.3d
Courts “should consider whether the plaintiff
15 has affected a change in policy or a deterrent to
16 widespread civil rights violations.”
In the present case, it is difficult for Plaintiff
18 to successfully argue that his award “has affected a
19 change in policy or a deterrent to widespread civil
20 rights violations” when Plaintiff was only successful
21 on one out of twelve claims against one out of sixteen
22 Defendants at a third re-trial.
23 Court must look to the reasonableness of the attorney’s
24 fees award in light of some of the Kerr factors.
25 F.2d at 70.
Plaintiff has failed to establish that
26 this case had such novel and/or difficult questions
27 that it requires such a substantial attorney’s fees
28 award in light of the jury award.
While this case has
1 been litigated from 2007 with various appeals to the
2 Ninth Circuit, there is nothing in the record to
3 indicate that this case took over Mr. Price’s practice
4 such that he spent more time on it than other cases to
5 the point he was unable to take on other matters.
6 Other than the appeals, this was a straightforward case
7 where the trials included repeated witness testimony
8 and the presentation of the same legal theories.
9 Plaintiff has failed to show the Court that this case,
10 while prolonged for several years, raised difficult
11 legal theories warranting such a high award given the
12 jury’s damages award.
Given the experience,
13 reputation, and ability of Mr. Price along with the
14 results obtained, an overall reduction in the lodestar
15 figure is appropriate.
The Court cannot separate the
16 billing entries to determine which entries were for
17 Plaintiff’s one successful claim against Defendant
Accordingly, the lodestar figure is reduced 45%
19 to account for Plaintiff’s limited success in
20 prevailing on one claim against one Defendant.
Defendants request that the 33.2 hours Mr. Price
23 expended in defending Plaintiff in the criminal action
24 be reduced from the overall fee award because: (1) the
25 charges stemmed from allegations of battery on several
26 officers, not just Defendant Wolfe, (2) Plaintiff was
27 acquitted of the charges, (3) Plaintiff was
28 unsuccessful in his malicious prosecution claim against
1 all Defendants, and (4) the criminal proceedings took
2 place years before the instant litigation and were
3 therefore not necessary and were not time expended in
4 pursuit of the ultimate results achieved.
Plaintiff argues he is entitled to compensation
6 for the criminal proceedings because the criminal
7 proceedings were a necessary prerequisite to resolve
8 the civil rights claims.
The Ninth Circuit has held that “attorney services
10 in prior court proceedings that are a necessary
11 prerequisite to resolve a federal civil rights action
12 can be awarded under § 1988.”
Beltran Rosas v. Cnty of
13 San Bernadino, 260 F. Supp. 2d 990, 994 (C.D. Cal.
However, the Ninth Circuit has not directly
15 addressed the issue of whether § 1988 allows for an
16 award of attorney’s fees for services defending state
17 criminal proceedings.
Case law supports that it
18 is not necessary to compensate attorneys for time spent
19 on criminal proceedings under § 1988.
20 Kirby, No. 3:07-cv-00222-RAM, 2010 WL 4923486, at *7
21 (D. Nev. Nov. 29, 2010)(“attorney’s fees incurred in
22 connection with [the] [p]laintiff’s underlying criminal
23 matter are not allowed [to be compensated under §
24 1988]”); Fletcher v. O’Donnell, 729 F. Supp. 422, 430
25 (E.D. Penn. 1990)(“[s]ince [the] [p]laintiff’s criminal
26 defense was not an action within the scope of § 1988,
27 [the court] find[s] that the hours devoted to it are
28 not compensable as such”); Greer v. Holt, 718 F.2d 206,
1 208 (6th Cir. 1983)(holding that the term “proceeding”
2 within the § 1988 statute itself cannot be construed
3 broadly enough to encompass criminal proceedings, and
4 therefore attorney’s fees could not be awarded for
5 criminal defense work).
Because the Ninth Circuit has not yet formally
7 addressed the issue of awarding attorney’s fees for
8 prior criminal proceedings, the decision to do so
9 remains within the discretion of the district court.
10 Here, the facts of the case weigh against granting such
11 attorney’s fees.
The criminal proceedings in the
12 instant case began and concluded years before the civil
13 action was filed (the felony complaint was filed in
14 2004 and this Action was filed in 2007), and so there
15 is no indication that Mr. Price’s representation of
16 Plaintiff in the criminal proceedings was in an effort
17 to advance Plaintiff’s civil rights claims.
18 the criminal charges for assault against a peace
19 officer were brought with respect to a number of
20 officers besides Defendant Wolfe, and Plaintiff was
21 ultimately unsuccessful in his malicious prosecution
As a result, even if Plaintiff had been found
23 guilty of battery against a number of the other
24 officers, that conviction would have no bearing on his
25 civil case regarding Defendant Wolfe because Defendants
26 Martinez and Smith were dismissed prior to the start of
27 the third trial and Plaintiff was not successful on his
28 malicious prosecution claims against any Defendants.
Plaintiff asserts that such an award is proper
2 under Beltran.
The court in Beltran allowed for the
3 award of attorney’s fees for a prior criminal
260 F. Supp. 2d at 995.
5 is not dispositive in this case and there are
6 distinguishable facts from the instant case.
7 initial matter, Beltran is not binding precedent on
8 this Court, and the case did not set forth a rule or
9 precedent mandating for the recovery of attorney’s fees
10 in prior criminal proceedings in a § 1983 case.
11 Additionally, the Ninth Circuit in Borunda v. Richmond,
12 885 F.2d 1384 (9th Cir. 1988) simply allowed the
13 evidence of the cost of the criminal proceedings to be
14 admitted at trial so the jury could decide whether to
15 factor such costs into compensatory damages; it did not
16 award costs of criminal proceedings as attorney’s fees
17 pursuant to 42 U.S.C. § 1988.
Beltran, 260 F. Supp. 2d
18 at 994-95.
Moreover, the timing in Beltran is quite different
20 than in this case.
In Beltran, the plaintiff first
21 filed a civil rights claim and a felony complaint was
22 subsequently filed.
Id. at 992.
As discussed above,
23 the felony complaint here was filed three years before
24 Plaintiff filed his Complaint in this Court.
25 criminal proceedings were “ancillary” to the civil case
26 and Mr. Price’s representation of Plaintiff during the
27 criminal proceedings were not “useful [nor] of a type
28 ordinarily necessary to advance the civil rights
Id. at 993 (internal quotation marks and
2 citation omitted).
Plaintiff’s expenditure for
3 attorney services in the criminal proceedings was not
4 “unquestionably, a foreseeable result of [Defendants’]
5 actions,” and therefore the Court exercises its
6 discretion to not compensate Mr. Price for his
7 representation of Plaintiff in the criminal
Id. at 994.
While Plaintiff’s arguments might offer support for
10 granting an award for hours spent defending the
11 criminal proceedings, Plaintiff’s arguments in no way
12 require this Court to do so here.
Because the criminal
13 proceedings were not necessary for Plaintiff’s ultimate
14 victory since two Defendants were dismissed prior to
15 trial, and Plaintiff was not successful in his
16 malicious prosecution claims against the remaining two
17 Defendants, the Court therefore reduces the 32 hours
18 spent on the criminal proceedings from Mr. Price’s
19 total hours.
For the reasons set forth above, the Court GRANTS
22 Plaintiff’s Motion, but reduces the hourly rates and
23 hours reasonably expended.
Mr. Price’s reasonable
24 hourly rate of $525 multiplied by 691.7 hours
25 reasonably expended yields a total attorney’s fees of
Mr. Carter’s reasonable hourly rate of
27 $325 multiplied by 52.9 hours reasonably expended
28 yields a total attorney’s fees of $17,192.50.
1 McCaffrey’s reasonable hourly rate of $175 multiplied
2 by 198.4 hours reasonably expended yields a total
3 attorney’s fees of $34,720, bringing the total amount
4 of attorney’s fees to $415,055.
When this lodestar
5 figure is reduced to account for Plaintiff’s limited
6 success by 45%, the total attorney’s fees Plaintiff
7 shall be awarded is $228,280.25.
8 IT IS SO ORDERED.
s/ RONALD S.W. LEW
HONORABLE RONALD S.W. LEW
Senior U.S. District Judge
9 DATED: July 26, 2017
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