C.B. v. Sonora School District, et al.

Filing 196

ORDER Re #176 Motion for Attorney Fees, signed by Senior Judge Oliver W. Wanger on 09/30/11. (Coffman, Lisa)

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3
4
5
6

C.B., a minor,

1:09-cv-00285-OWW-SMS
Plaintiff,

7

MEMORANDUM DECISION RE
PLAINTIFF’S MOTION FOR
ATTORNEYS’ FEES AND COSTS

8

v.

9

SONORA SCHOOL DISTRICT; KAREN
SINCLAIR; CITY OF SONORA; CHIEF OF
POLICE MACE MCINTOSH; OFFICER HAL
PROCK; DOES 1-10,

10
11
12

(DOC. 176).

Defendants

13
14
15

I.

INTRODUCTION

Before the court is Plaintiff C.B.’s (“Plaintiff”) Motion

16
17
18

for Attorneys’ Fees and Costs (Mot. Fees, ECF No. 176) and
Supplemental Request for Attorneys’ Fees (Supp. Mot. Fees, ECF

19

No. 192). Defendants City of Sonora, Chief Mace McIntosh and

20

Officer Hal Prock (collectively, “Defendants”) oppose the motion.

21

(Def. Opp’n, ECF No. 191.)

22
23
24
25
26
27
28

II.

FACTUAL BACKGROUND

This civil rights action arises from Officers McIntosh and
Prock’s (together, “Defendant Officers”) September 29, 2008
arrest of Plaintiff, then an eleven year-old student, at Sonora
Elementary School. The case was tried before a jury beginning on
August 23, 2011. On September 1, 2011, the jury returned a
1

1

verdict against Defendants on Plaintiff’s Fourth Amendment claims

2

for unlawful seizure and excessive force and pendant state law

3

claims, and awarded Plaintiff $285,000 in damages against

4

Defendants. (Verdict, ECF No. 174.) Defendants filed a Motion for

5
6
7

Judgment as a Matter of Law (Mot. JMOL, ECF No. 177) and Motion
for New Trial (Mot NT, ECF No. 178), which were denied (Order,

8

ECF No. 194.). Judgment was entered in favor of Plaintiff.

9

(Judgment, ECF No. 195.) Plaintiff now moves for attorney’s fees

10

and costs pursuant to 42 U.S.C. § 1988 for violation of his

11

federal civil rights.

12
13
14
15
16

III. LEGAL STANDARD
Litigants “are required to bear the expenses of their
litigation unless a statute or private agreement provides
otherwise.” Carbonell v. INS, 429 F.3d 894, 897-98 (9th Cir.

17

2005). The Civil Rights Attorney’s Fees Awards Act of 1976

18

permits the award of attorney’s fees in civil rights actions,

19

providing:

20
21
22
23

In any action or proceeding to enforce a provision of
section ... 1983 of this title, ... the court, in its
discretion, may allow the prevailing party ... a reasonable
attorney's fee as part of the costs....”
42 U.S.C. § 1988. “The fee applicant bears the burden of

24

establishing entitlement to an award and documenting the

25

appropriate hours expended and hourly rates.” Hensley v.

26

Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933 (1983).

27
28

A plaintiff must be a “prevailing party” to recover
2

1

attorney’s fees under 42 U.S.C. § 1988. Id. at 432. Once a

2

determination is made that a plaintiff is a “prevailing party”

3

and an award of attorney’s fees is appropriate, the court must

4

determine what fee is “reasonable.”

Id. at 433. This

5
6
7

determination involves a two-step process. First, the court
calculates a “lodestar” by multiplying (i) the number of hours

8

the prevailing party reasonably expended on the litigation by

9

(ii) a reasonable hourly rate. Id. Second, the lodestar may be

10

adjusted upward or downward based on an evaluation of the Kerr v.

11

Screen Extras Guild, Inc., 526 F.2d 67-69-70 (9th Cir. 1975),

12
13
14
15

factors which are relevant and not already subsumed in the
initial lodestar calculation.1 McGrath v. Cnty. of Nevada, 67
F.3d 248, 252 (9th Cir. 1994).
IV.

16

Plaintiff requests an award of attorney's fees and costs

17
18

DISCUSSION

under 42 U.S.C. § 1988.2 Plaintiff seeks a total of $194,025.13

19
20
21

1

The Kerr factors to consider in determining a reasonable attorney’s fees
award are:
(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.

22
23
24
25
26
27

Kerr, 526 F.2d at 70; McGrath, 67 F.3d at 252 n.4.

28

2

Plaintiff may seek attorney’s fees and costs on his pendant state law claims

3

1

in attorneys’ fees based on 544.25 hours of work and an hourly

2

rate of $356.50 per hour (which includes a 1.15 multiplier).

3

Plaintiff also seeks $26,382.85 in litigation expenses.

4
5

A.

Prevailing Party

Defendants contend that Plaintiff’s motion for attorney’s

6
7
8

fees is premature because Plaintiff is not a “prevailing party”
under 42 U.S.C. § 1988 with a final judgment on the merits or an

9

enforceable court order. Defendants assert that their motions for

10

judgment as a matter of law and for new trial are still pending.

11
12
13
14
15
16
17

The term “prevailing party,” as it is used in the attorney’s
fee statute, requires a “material alteration of the legal
relationship of the parties.” Bennett v. Yoshida, 259 F.3d 1097,
1100 (9th Cir. 2001) (quoting Buckannon Bd. & Care Home v. W. Va.

Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001)).
The jury found in Plaintiff’s favor on all the Section 1983

18

claims and pendant state law claims asserted against Defendants

19

and awarded damages totaling $285,000. The jury’s verdict altered

20

the legal relationship of the parties. Defendants’ motions for

21

judgment as a matter of law and for new trial were denied.

22

(Order, ECF No. 194.). Judgment was entered in favor of

23
24

Plaintiff. (Judgment, ECF No. 195.) Plaintiff is a “prevailing

25
26
27
28

asserted against Defendants because the state law claims are based on a common
nucleus of operative facts with Plaintiff’s Fourth Amendment claims asserted
under 42 U.S. § 1983. Carreras v. Anaheim, 768 F.2d 1039, 1050 (9th Cir. 1985)
(“When the plaintiff in a civil rights action prevails on a pendent state claim
based on a common nucleus of operative fact with a substantial federal claim,
fees may be awarded under § 1988.”)

4

1
2
3
4
5
6
7

party” within the meaning of 42 U.S.C. §1988.
B.

Attorney’s Fees
1.

Lodestar
a)

Number of Hours

In submitting a fee request, counsel for the prevailing
party should make a good faith effort to exclude hours that are
“excessive, redundant or otherwise unnecessary from the fee

8
9
10

request, just as he is obligated to exclude such hours from his
fee submission.” Hensley, 461 U.S. at 434. The district court

11

should exclude hours that were not “reasonably expended.” McGrath

12

v. Cnty. of Nev., 67 F.3d 248, 252 (9th Cir. 1995).

13
14
15
16
17
18

Plaintiff requests attorneys’ fees for 544.25 hours.
Plaintiff contends that Defendants vigorously litigated the case
for over two and a half years through: (i) two Motions to
Dismiss; (ii) a Motion for Summary Judgment (with fifty-six
separate and allegedly undisputed facts presented by Defendants

19

for Plaintiff’s response); (iii) eight Motions in Limine; (iv)

20

discovery that included Rule 26 reports and depositions of four

21

expert witnesses and six lay witnesses; and (v) a trial over

22

seven court days that included ten witnesses, time spent in

23

chambers on jury instruction and verdict form conferences, and

24

disputes over jury instructions, verdict forms, and admissibility

25
26
27
28

of exhibits. (Hopkins Decl. ¶ 11, ECF No. 176-1.).
Defendants raise three objections to Plaintiff’s hours.
First, Defendants argue that Plaintiff’s counsel failed to
5

1

adequately document their hours and characterize their bills as

2

devoid of “any detail whatsoever.” (Def. Opp. 6:22, ECF No. 191.)

3

The billing records have been reviewed in detail, and, contrary

4

to Defendants’ assertion, the level of detail is adequate. There

5
6
7

is a delineation of services performed and hours expended for
each service described.

8

Second, Defendants contend that the amount awarded should be

9

reduced for the performance of tasks that Defendants characterize

10

as “duplicative, redundant, unnecessary.” (Def. Opp. 7:4, ECF No.

11

191.) Defendants argue that with the exception of mutual document

12
13
14
15

productions, no written discovery was performed, but Plaintiff
billed 5.3 hours over four days to the preparation, review, and
service of written discovery. Discovery preparation and review

16

are standard and expected part of every litigation. Even if

17

Defendants did not respond to Plaintiff’s written discovery

18

requests, it is reasonable for Plaintiff’s counsel to bill for

19

its preparation. Defendants also contend that Plaintiff’s counsel

20

expended an excessive amount of hours on items that should have

21

reasonably only taken a fraction of time to perform, such as

22
23
24

legal research and drafting motions. After a detailed review of
the billing records, it is concluded that the hours billed were

25

reasonable under the circumstances for legal research what is

26

described and the motions that were drafted and not excessive.

27
28

Third, Defendants contest the number of hours Plaintiff
6

1

expended litigating the case against Defendants between October

2

10, 2008 and November 6, 2009. Plaintiff litigated the case

3

against Defendant School District and Coach Sinclair (together,

4

“School District Defendants”), as well as Defendants, from

5
6
7

October 10, 2008, but successfully mediated and settled his
claims against School District Defendants on November 6, 2009.

8

(Hopkins Decl. ¶ 7, ECF No. 176-1.) Plaintiff reduced the hours

9

expended from October 10, 2008 to November 6, 2009 by 50%, i.e.,

10

126.70 hours reduced to 63.35 hours. After reviewing the billing

11

records from October 10, 2008 to November 6, 2009, the 50%

12
13
14
15
16

reduction is a reasonable apportionment of the hours expended
between School District Defendants’ portion of the case and the
remaining Defendants.
Plaintiff’s request for attorney’s fees based on 544.25

17

hours is GRANTED.

18

b)

19

Hourly Rate

In granting attorney’s fees, the district court “must strike

20

a balance between granting sufficient fees to attract qualified

21

counsel to civil rights cases and avoiding a windfall to

22

counsel.” Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th

23
24
25
26
27
28

Cir. 2008) (citations omitted). “The way to do so is to
compensate counsel at the prevailing rate in the community for
similar work; no more, no less.” Id.
Plaintiff requests attorney’s fees based on a rate of
7

1

$356.50 per hour, which adds 15% to the $310 per hour 2008-2011

2

rate of the Law Offices of John F. Martin, P.C., which is based

3

in Walnut Creek, California. Plaintiff contends that $356.50 is

4

the prevailing market hourly rate for Plaintiff’s attorneys in

5
6
7

Fresno, California. It is not.
Plaintiff was primarily represented by Christine Hopkins,

8

who has been practicing law for five years since 2005. (Hopkins

9

Decl. ¶ 1, ECF No. 176-1.) Plaintiff was also represented by John

10

Martin, who has 39 years of legal experience. (Id.) Based on the

11

court’s experience and knowledge of the prevailing market rate in

12
13
14
15

Fresno, California for a plaintiff’s civil rights attorney with
the time in practice and trial experience of Plaintiff’s primary
counsel (first jury trial) is $300 per hour. This assessment is

16

supported by Plaintiff’s counsel’s declaration and supporting

17

exhibits:

18
19
20
21
22
23
24
25
26
27
28

Rayma Church, Esq. of Emerson, Corey, Sorenson, Church &
Libke [a 1991 law school graduate] stated that she charges
a rate of $300 per hour for Plaintiff’s civil rights cases
in the Fresno area and her Senior Partner charges $350 per
hour. She last did a survey of Plaintiff’s civil rights
attorney billing rates in 2003 and at that time the fees
in the Fresno area ranged from $300 to $400. (Hopkins
Decl. ¶ 12, ECF No. 176-1.)
Dean Gordon sent me copies of declarations filed in
attorney fees motions in 2006 in Fresno courts which
reflected his rates of $250 to $300 per hour in civil
rights litigation (employment) at that time. (Hopkins
Decl. ¶ 12, ECF No. 176-1.)
Mark Coleman, who practices plaintiff’s civil litigation
(including civil rights matters) in the Fresno area, and
who stated that he was familiar with the fee range being
8

1

charged by civil rights plaintiff’s counsel in that local
market . . . informed me that rates ranged between $150.00
per hour to $450.00 per hour, depending upon the skill,
experience, and reputation of the individual attorney.
(Wilson Decl. ¶ 8, June 16, 2009, Ex. E to Hopkins Decl.,
ECF No. 176-3.)

2
3
4
5

Scott Quinlan, who [has been practicing] both plaintiff’s
and defense civil rights litigation in the Fresno area . .
. since 1986 . . . quotes a fee rate of $225.00 per hour.
(Wilson Decl. ¶ 9, June 16, 2009, Ex. E to Hopkins Decl.,
ECF No. 176-3.)

6
7
8

Patience Mildred, who [has been practicing] Plaintiff’s
civil rights litigation in the Fresno area . . . since
1983 . . . quotes a fee rate of $350. (Wilson Decl. ¶ 10,
June 16, 2009, Ex. E to Hopkins Decl., ECF No. 176-3.)

9
10
11
12
13

Plaintiff’s submission of the United States Consumer Law
Attorney Fee Survey is not helpful. That Survey shows the average
legal rates for California as a whole, not the Fresno District of

14
15

the Eastern District of California in particular. Plaintiff’s

16

submission of the Laffey Matrix is similarly not helpful. The

17

Laffey Matrix surveys firms in Washington D.C. Plaintiff does not

18

offer any evidence to justify his estimation that the Laffey

19

Matrix numbers would only be reduced by 2% to reflect the Fresno

20

market.

21
22
23
24
25

Plaintiff’s request for attorney’s fees based on a rate of
$356.50 per hour is DENIED. Plaintiff’s award of attorney’s fees
shall be calculated using a rate of $300 per hour.
2.

Multiplier

26

If Plaintiff’s attorney’s fees request based on a rate of

27

$356.50 per hour is denied, Plaintiff asks that his hourly fee

28

rate be increased by a 1.15 multiplier under the Kerr factors.
9

1

Plaintiff asks the court to take into account: (i) the results

2

obtained as compared to Defendants’ valuation of the case and

3

Rule 68 Offer of Judgment; (ii) the novelty of legal questions

4

involved in this case; and (iii) the skill, time and labor

5
6
7

required to prevail on these novel issues.
The award of attorney’s fees, calculated at $300 per hour

8

for 544.25 hours, is reasonable and does not require an increase.

9

Although Plaintiff obtained a favorable result, the case did not

10

present any novel legal questions. Plaintiff asserted standard

11

Fourth Amendment claims against Defendants for unlawful seizure

12
13
14
15
16
17
18
19

and excessive force and pendant state law claims for battery,
unlawful imprisonment, and intentional infliction of emotional
distress. These claims did not require any particular skill,
time, or labor to prevail.
Plaintiff’s request to enhance the lodestar fee by a
multiplier of 1.15 is DENIED.
C.

Expenses

20
21
22
23
24
25
26
27
28

Plaintiff seeks reimbursement for $26,382.85 in expenses in
addition to the $11,063.08 requested in the Bill of Costs. These
additional costs include: (i) $19,249.64 in expert witness fees
paid to Plaintiff’s expert witnesses above the $40 witness fee
and mileage; (ii) $2,902.50 in fees charged to Plaintiff by
Defendants’ expert witnesses for their time at depositions; and
(iii) $4,230.71 in postage, facsimile, travel, mileage, and
attorney lodging during trial.
10

1
2
3
4
5
6
7
8
9
10
11
12
13

Defendant protests that there is no legal basis to grant
Plaintiff’s request for expenses above the Bill of Costs.
Plaintiff cites a Ninth Circuit case that permit recovery under
42 U.S.C. § 1988 for out of pocket expenses that “would normally
be charged to a fee paying client.” Harris v. Marhoefer, 24 F.3d
16, 19 (9th Cir. 1994). Reasonable attorney’s fees, however, do
not include costs that, like expert fees, have by tradition and
statute been treated as a category of expenses distinct from
attorney’s fees. Trs. Of the Constr. Indus. & Laborers Health &

Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1258 (9th Cir.
2006). Plaintiff may request reimbursement for postage,
facsimile, travel, mileage, and attorney lodging as permitted by
law with the Bill of Costs.

14
15

Plaintiff’s request for $26,382.85 in expenses is not
permissible and is DENIED under 42 U.S.C. § 1988.

16
17
18

V.

CONCLUSION

For the reasons stated:

19

1. Plaintiff’s Motion for Attorney’s Fees GRANTED in part and

20

DENIED in part, as follows:

21
a. Plaintiff is GRANTED attorney’s fees for 544.25 hours

22

at a rate of $300 per hour, for an attorney’s fees

23

award of $163,275.

24

b. Plaintiff’s request for $26,382.85 in expenses is

25
26
27
28

DENIED.
//
11

1

SO ORDERED.

2

DATED: September 30, 2011

3

/s/ Oliver W. Wanger
Oliver W. Wanger
United States District Judge

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

12