Deocampo, et al. v. City of Vallejo, et al.

Filing 204

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 2/24/2014 GRANTING 181 Plaintiffs' Motion for Attorney Fees, in the amount of $314,497.73; Defendants' Motion for costs is DENIED. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JASON EUGENE DEOCAMPO; JESUS
SEBASTIAN GRANT; and JAQUEZS
TYREE BERRY,
Plaintiffs,

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CIV. NO. 2:06-1283 WBS CMK
MEMORANDUM AND ORDER RE:
ATTORNEY’S FEES AND COSTS

v.
JASON POTTS, individually and
in his capacity as a Vallejo
police officer; JEREMY
PATZER, individually and in
his capacity as a Vallejo
police officer; ERIC JENSEN,
individually and in his
capacity as a Vallejo police
officer; and DOES 1 through
25, inclusive,

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Defendants.
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Plaintiffs Jason Eugene Deocampo, Jesus Grant, and

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Jaquezs Berry brought this action against defendants Jason Potts,

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Jeremy Patzer, and Eric Jensen arising out of alleged police

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misconduct.

After a thirteen-day trial, the jury found that
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Potts and Jensen had used excessive force in the course of

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arresting Deocampo and awarded Deocampo $50,000 in damages.

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jury did not award damages to Grant or Berry.

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seek attorney’s fees and expenses under 42 U.S.C. § 1988, and

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defendants seek to recover costs pursuant to Federal Rule of

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Civil Procedure 54(d) and Eastern District Local Rule 292.

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I.

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The

Plaintiffs now

Attorney’s Fees
Section 1988 permits the court, in its discretion, to

award reasonable attorney’s fees to a prevailing party in an

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action under 42 U.S.C. § 1983.

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“prevailing party” is one who succeeds on any significant issue

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in the litigation, resulting in a “material alteration of the

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legal relationship of the parties.”

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v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989).

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defendants do not dispute that Deocampo was a prevailing party or

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that he is entitled to attorney’s fees under § 1988, they dispute

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the size of the fee award plaintiffs request.

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42 U.S.C. § 1988(b).

A

Tex. State Teacher’s Ass’n
While

Courts typically determine the amount of a fee award

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under § 1988 in two stages.

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method to determine what constitutes a reasonable attorney’s

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fee.”

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2013) (citations omitted).

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figure, district courts may adjust that figure pursuant to a

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variety of factors.”

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quotation marks omitted); see also Kerr v. Screen Guild Extras,

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Inc., 526 F.2d 67, 70 (9th Cir. 1975) (enumerating factors on

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which courts may rely in adjusting the lodestar figure).

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Ninth Circuit has emphasized that a district court’s application

First, courts apply the “‘lodestar’

Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir.
Second, “after computing the lodestar

Id. at 1209 (citation and internal

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The

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of the Kerr factors should reflect the extent to which those

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factors “bear on the reasonableness of a fee award.”

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City of San Rafael, 96 F.3d 359, 361 (9th Cir. 1996).

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determining the size of an appropriate fee award, the Supreme

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Court has emphasized that courts need not “achieve auditing

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perfection” or “become green-eyeshade accountants.”

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--- U.S. ---, 131 S.Ct. 2205, 2217 (2011).

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“essential goal of shifting fees . . . is to do rough justice,”

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the court may “use estimates” or “take into account [its] overall

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Morales v.
In

Fox v. Vice,

Rather, because the

sense of a suit” to determine a reasonable attorney’s fee.
A.

Id.

Lodestar Calculation

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1.

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Under the lodestar method, “a district court must start

Hours Reasonably Expended

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by determining how many hours were reasonably expended on the

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litigation, and then multiply those hours by the prevailing local

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rate for an attorney of the skill required to perform the

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litigation.”

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(9th Cir. 2008).

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district court should exclude hours ‘that are excessive,

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redundant, or otherwise unnecessary.’”

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Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quoting Hensley v.

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Eckerhart, 461 U.S. 424, 434 (1983)).

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Moreno v. City of Sacramento, 534 F.3d 1106, 1111
In determining an appropriate fee award, “the

McCown v. City of

That standard is qualified by the Ninth Circuit’s

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admonition that, as a general rule, “the court should defer to

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the winning lawyer’s professional judgment as to how much time he

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was required to spend on the case.”

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see also E-Pass Techs., Inc. v. 3Com Corp., Civ. No. 00-2255 DLJ,

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2007 WL 4170514, at *6 (N.D. Cal. Nov. 14, 2007) (“[T]he court
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Moreno, 534 F.3d at 1112;

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will not second-guess reasonable attorney conduct of a litigation

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strategy for the case.”).

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force to a plaintiff’s attorney in a civil rights case, who--as

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is the case here--typically works on a contingency basis, and

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therefore has little incentive to expend unnecessary hours.

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e.g., Moreno, 534 F.3d at 1112 (“It would be the highly unusual

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civil rights case where [a] plaintiff’s lawyer engages in

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churning.”); Blackwell v. Foley, 724 F. Supp. 2d 1068, 1080 (N.D.

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Cal. 2010) (“[I]f anything, an attorney working on contingency is

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less likely to expend unnecessary hours because the payoff is too

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uncertain.”).

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This principle applies with particular

See,

Plaintiffs have submitted a billing statement

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reflecting 517.95 hours billed by attorney Gayla Libet, 481.85

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hours billed by attorney John Burris, 383.20 hours billed by

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attorney DeWitt Lacy, and 146.50 hours billed by paralegals.

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(Decl. of John Burris (“Burris Decl.”) Ex. B (Docket No. 183-2).)

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Defendants object to a majority of this time as “excessive,

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redundant, or otherwise unnecessary.”1

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(Docket No. 192.)

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entries, these objections reiterate several common contentions,

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and the court will discuss them separately.

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a.

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(Defs.’ Opp’n at 4-10

While defendants object to 234 discrete time

Excessive Billing

Despite defendants’ objections, there is little
evidence that plaintiffs’ counsel spent an excessive number of

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Defendants present these objections in an itemized
statement of objections. (See Defs.’ Itemized Objections to
Pls.’ Billing Statements (“Defs.’ Objections”) (Docket No. 194).)
For ease of reference, the court will refer to billing entries as
they are numbered in this statement.
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hours working on this matter.

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compare the number of hours that their attorneys spent on a task

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to the number of hours that plaintiffs’ attorneys spent on a

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task, these comparisons do not support the conclusion that

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plaintiffs’ counsel billed an excessive number of hours.

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Democratic Party of Wash. State v. Reed, 388 F.3d 1281, 1287-88

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(9th Cir. 2004) (noting that courts should not “compare the total

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hours” spent by each side to determine whether those hours

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suggest “excessiveness or needless duplication”); Ferland v.

While defendants frequently

See

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Conrad Credit Corp., 244 F.3d 1145, 1151 (9th Cir. 2001)

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(“Comparison of the hours spent in particular tasks by the

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attorney seeking fees and by the attorney for the opposing party

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. . . does not necessarily indicate whether the hours expended by

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the party seeking fees were excessive.”).

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Defendants also object to several billing entries on

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the basis that plaintiffs’ counsel inappropriately staffed

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multiple lawyers on tasks that required only one lawyer and that

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these staffing decisions resulted in unnecessary duplication of

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effort.

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“examine with skepticism claims that several lawyers were needed

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to perform a task,” it has also emphasized that staffing multiple

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lawyers on a single task is not alone evidence of excessive

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billing.

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1113 (emphasizing that “[f]indings of duplicative work should not

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just become a shortcut for reducing a fee award without

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identifying just why the requested fee was excessive”).

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Although the Ninth Circuit has instructed courts to

Reed, 388 F.3d at 1286; see also Moreno, 534 F.3d at

Although defendants have “direct[ed] the court to
particular billing entries” they find excessive, they have
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provided no specific reasons why the assignment of multiple

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attorneys to particular tasks was objectionable.

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Behavioral Health, Inc. v. Alameda Cnty. Med. Ctr., 646 F. Supp.

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2d 1206, 1214 (E.D. Cal. 2009) (Shubb, J.).

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recognized that staffing multiple attorneys on a single task may

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improve a party’s chance of success in litigation.

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PSM Holding Corp. v. Nat’l Farm Fin. Corp., 743 F. Supp. 2d 1136,

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1157 (C.D. Cal. 2010) (“[D]ivision of responsibility may make it

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necessary for more than one attorney to attend activities such as

Sunstone

Numerous courts have

See, e.g.,

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depositions and hearings.

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for planning strategy, eliciting testimony or evaluating facts or

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law.” (citation and internal quotation marks omitted)); cf.

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United States v. City & County of San Francisco, 748 F. Supp.

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1416, 1421 (N.D. Cal. 1990) (noting that “the presence of several

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attorneys at strategy sessions for complex civil rights class

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actions may be crucial to the case”).

Multiple attorneys may be essential

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Likewise, although defendants object to several time

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entries spent on office conferences, “[a] conference with only

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one participant is no longer a conference,” and “[t]he upshot of

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accepting [this] view would be to hold that all conferencing by

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[plaintiffs’] attorneys was excessive and duplicative.”

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Legal News v. Schwarznegger, 561 F. Supp. 2d 1095, 1103-04 (N.D.

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Cal. 2008), aff’d, 608 F.3d 446 (9th Cir. 2010) (citations and

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internal quotation marks omitted).

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that plaintiffs’ decision to staff multiple attorneys on

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particular tasks was excessive, the court will not reduce the

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billed hours of plaintiffs’ counsel on this basis.

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534 F.3d at 1114 (noting that the “district court may not set the
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Prison

Absent any specific evidence

See Moreno,

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fee based on speculation as to how other firms would have staffed

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the case”).

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Defendants also object to several billing entries on

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the basis that the attorney had billed for a task that he or she

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had previously billed for.

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that the hours Libet spent reviewing and summarizing the criminal

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trial transcript and defendants’ internal affairs files in 2013

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were excessive because she had billed for similar work in 2007.

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(See generally Defs.’ Objections 103-116; Defs.’ Opp’n at 4.)

In particular, defendants contend

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The Ninth Circuit has recognized that “[w]hen a case goes on for

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many years,” some degree of duplication is justifiable because a

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“lawyer needs to get up to speed with the research previously

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performed.”

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review these files a second time does not reflect any failing on

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her part, but resulted instead from a four-year period in which

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the case was stayed due to the City of Vallejo’s bankruptcy

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proceedings.

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reflect unnecessary duplication of effort, and the court will not

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reduce them.

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Moreno, 534 F.3d at 1112.

(See Docket No. 70.)

Here, Libet’s need to

These hours therefore do not

Although the court finds that a majority of the billing

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entries submitted by plaintiffs’ counsel are not excessive or

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unnecessary, it concludes that one entry submitted by Libet on

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June 6, 2007, is excessive.

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entry reflects that Libet spent sixteen hours drafting,

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reviewing, revising, and faxing a summary of the criminal trial

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transcript, as well as making several phone calls.

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have not explained why Libet spent sixteen hours on these tasks,

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particularly given the additional time she billed for summarizing

(See Defs.’ Objections 39.)

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That

Plaintiffs

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the criminal trial transcript the days immediately before and

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after.

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entry by fifty percent or a total of eight hours.

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(See id. 38, 40.)

b.

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The court will therefore reduce this

Block Billing
“Block billing is the time-keeping method by which each

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lawyer and legal assistant enters the total daily time spent

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working on a case, rather than itemizing the time expended on

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specific tasks.”

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945 n.2 (9th Cir. 2007) (citation and internal quotation marks

Welch v. Metro. Life Ins. Co., 480 F.3d 942,

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omitted).

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how much time was spent on particular activities.”

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see also Bell v. Vista Unified Sch. Dist., 82 Cal. App. 4th 672,

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689 (4th Dist. 2000) (noting that block billing “render[s] it

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virtually impossible to break down hours on a task-by-task

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basis”).

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may increase time by 10% to 30% by lumping together tasks.”

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Yeager v. Bowlin, Civ. No. 2:08-102 WBS JFM, 2010 WL 1689225, at

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*1 (E.D. Cal. Apr. 26, 2010), aff’d, 495 Fed. App’x 780 (9th Cir.

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2012) (citing The State Bar of California Committee on Mandatory

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Fee Arbitration, Arbitration Advisory 03-01 (2003)) (internal

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quotation marks omitted).

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that “the usage of block billing is fundamentally inconsistent

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with the lodestar method.”

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“[B]lock billing makes it more difficult to determine
Id. at 948;

Additionally, “block billing hides accountability and

This court has therefore concluded

Id.

Although the Ninth Circuit has held that district

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courts may not account for block billing by applying an across-

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the-board reduction to the hours claimed in a fee petition,

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courts may apply a percentage reduction to those hours that are

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actually block-billed.

Welch, 480 F.3d at 948; Mendez v. County
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of San Bernadino, 540 F.3d 1109, 1129 (9th Cir. 2008) (noting

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that block billing provides “legitimate grounds for reducing or

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eliminating certain claimed hours”); Nat’l Res. Def. Council v.

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Locke, 771 F. Supp. 2d 1203, 1214 (N.D. Cal. 2011) (noting that

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any reduction in hours “must be tailored to those hours that were

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actually billed in block format”) (internal quotation marks and

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citation omitted).

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to thirty percent of the hours that are block-billed.

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Lahiri v. Universal Music & Video Distrib. Corp., 606 F.3d 1216,

Courts in the Ninth Circuit have reduced up
See, e.g.,

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1222-23 (9th Cir. 2010) (thirty percent); Jones v. Metro. Life

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Ins. Co., 845 F. Supp. 2d 1016, 1031 (N.D. Cal. 2012) (twenty

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percent).

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that are purportedly block billed if those time entries “are

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detailed enough for the [c]ourt to assess the reasonableness of

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the hours billed.”

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F. Supp. 2d 1093, 1103 (N.D. Cal. 2010).

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The court also retains discretion not to reduce hours

Campbell v. Nat’l Passenger R.R. Corp., 718

Burris, Libet, and Lacy all engaged in significant

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amounts of block billing.

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forms.

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time is billed for a single broad task.

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1, 2013, Burris billed 12.1 hours for “Trial Preparation:

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Meetings with Witnesses.”

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22, 2013, Burris billed 10.2 hours for “Trial Preparation:

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Prepare Jury Instructions and Voir Dire.”

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These billing entries do not contain sufficient information to

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permit the court to “assess the reasonableness of the hours

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billed,” and are therefore improper.

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at 1103.

This block billing takes two different

First, there are some time entries in which a block of
For instance, on August

(See Defs.’ Objections 203.)

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On July

(See id. at 167.)

Campbell, 714 F. Supp. 2d

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Second, there are other time entries in which a block

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of time is billed for several discrete tasks.

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June 24, 2007, Libet billed 6.75 hours for seven discrete tasks,

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each of which were separated by semicolons, without describing

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how much time she spent on each task.

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plaintiffs contend that her itemized billing entries do not

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constitute block-billing as that term is defined by Welch and its

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progeny, these entries still constitute improper block billing

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because they do not contain an “itemization of the amount of time

For instance, on

(See id. at 46.)

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spent by the fee applicant on each discrete task.”

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Although

WL 1689225, at *1 (emphasis added).

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Yeager, 2010

Having reviewed plaintiffs’ billing statements, the

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court finds that 197.7 of Burris’s 481.85 hours,2 187.7 of Lacy’s

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383.2 hours,3 and 175.15 of Libet’s 517.95 hours4 were improperly

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That time consists of the following time entries, as
defendants’ itemized statement of objections: 143
146 (10.10); 158 (10.50); 162 (12.30); 167 (10.20); 169
177 (11.00); 179 (12.00); 183 (14.00); 187 (11.80); 193
197 (11.70); 203 (12.10); 207 (12.60); 210 (11.60); 215
and 231 (8.00).
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That time consists of the following time entries, as
noted in defendants’ itemized statement of objections: 159
(10.50); 166 (7.40); 171 (9.70); 175 (6.20); 181 (12.00); 186
(14.00); 191 (11.80); 194 (10.00); 196 (11.70); 200 (3.70); 202
(12.10); 204 (3.20); 208 (12.60); 212 (11.60); 219 (11.80); 223
(10.70); 227 (8.20); 229 (6.00); 230 (6.50); and 232 (8.00).
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That time consists of the following time entries, as
noted in defendants’ itemized statement of objections: 3 (2.00);
4 (2.50); 6 (3.00); 8 (3.00); 9 (3.00); 10 (2.00); 11 (6.00); 12
(3.00); 13 (3.00); 14 (6.00); 15(3.00); 19 (6.50); 20 (8.00); 21
(4.00); 25 (5.00); 26 (3.00); 27 (8.00); 28 (7.00); 29 (8.00); 30
(2.00); 33 (4.00); 34 (3.50); 35 (2.00); 38 (7.50); 40 (4.50); 43
(2.00); 46 (6.75); 47 (9.25); 48 (4.00); 49 (8.00); 72 (2.65); 78
(8.00); 124 (4.00); 128 (10.00); 168 (5.00); and 170 (6.00).
As explained later in this Order, the court reduces
several of Libet’s other time entries because they are entirely
duplicative of one another, or because they consist entirely of
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noted in
(12.00);
(13.40);
(12.60);
(11.80);

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block-billed.

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these hours, resulting in a total reduction of 35.03 hours of

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Libet’s time, 39.54 hours of Burris’s time, and 37.54 hours of

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Lacy’s time.5

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characterize as improper block billing contain sufficient detail

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for the court to assess their reasonableness, and therefore merit

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no reduction.

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The court will apply a twenty percent reduction to

A number of other entries that defendants

See Campbell, 714 F. Supp. 2d at 1103.
c.

Duplicative Time Entries

Defendants also object to several of Libet’s time

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entries on the basis that they are duplicative of one another.

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As explained above, it is not appropriate for the court to reduce

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Libet’s hours on the basis that she duplicated the work of other

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attorneys, or that she performed work in 2013 that she had also

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clerical or secretarial work. Although those entries are also
block-billed, the court declines to apply a twenty percent
reduction to those entries because the reductions it imposes
instead are sufficient to account for the inefficiencies or time
spent on non-billable tasks that block billing obscures. The
Ninth Circuit has explicitly admonished courts that imposing this
sort of double penalty on billed hours is improper. See Moreno,
534 F.3d 1106 (holding that “double counting the reduction in
hourly rate for some tasks . . . is impermissible” (citing
Cunningham v. County of Los Angeles, 879 F.2d 481, 489 (9th Cir.
1988)).
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At oral argument, the court raised the possibility that
it might provide plaintiffs an opportunity to submit a revised
billing statement itemizing the time that plaintiffs’ attorneys
spent on each discrete task. However, based on its review of
plaintiffs’ billing statements, the court lacks confidence that
plaintiffs could identify how much time was spent on discrete
tasks based on records that are several months--if not years-old. Moreover, plaintiffs’ attorneys are experienced civil
rights litigators and should have understood that their billing
statements would be subject to close scrutiny in attorneys’ fees
proceedings. In light of these considerations, the court will
apply a percentage reduction to plaintiffs’ billing statements in
lieu of permitting plaintiffs’ attorneys to submit a revised
statement.
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performed in 2007.

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nonetheless finds that several of Libet’s time entries are

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virtual carbon copies of one another and are thus improperly

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duplicative.

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hours based on “a specific reason for believing that work is

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excessive or duplicative”); cf. Locke, 771 F. Supp. 2d at 1212

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(noting that “fees are not recoverable for . . . time entries

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that appear to have been accidentally duplicated”).

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See Moreno, 534 F.3d at 1112.

The court

See id. at 1113 (noting that courts may reduce

On August 21 and 22, 2007, Libet billed eight hours for

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six discrete tasks.

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billing entries are identical to one another.

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11, 2013 Libet billed 6.2 hours for seven discrete tasks spread

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across two billing entries each day.

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day’s billing entries are identical to one another.

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May 12 and 13, 2013, Libet billed a total of seven hours a day

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for a total of six discrete tasks, which were spread out over two

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identical billing entries on each day.

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The court will count only one of each of these sets of duplicate

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entries, amounting to a total reduction of 27.2 hours in time.

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(See Defs.’ Objections 66-67.)

Those

On May 9, 10, and

(See id. at 103-108.)

Each

Finally, on

(See id. at 109-112.)

On May 14, 15, and 16, 2013, Libet recorded three

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identical billing entries for 3.8 hours each day consisting of

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two or three discrete tasks.

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14, 15, 16, and 17, 2013, Libet recorded four separate identical

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billing entries for 11.00 hours each day consisting of four or

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five discrete tasks.

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is especially skeptical of these entries because they indicate

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that Libet worked for exactly 14.8 hours per day for three

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consecutive days on exactly the same tasks.

(See id. at 115, 116, 120.)

(See id. at 113, 117, 119, 121.)

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On May

The court

See In re Gill, B.R.

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No. 1:12-18909 WRL, 2013 WL 4853307, at *4 (E.D. Cal. Sep. 10,

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2013) (disallowing a lawyer and her paralegal from recovering

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fees when they submitted thirty-four identical billing entries);

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cf. Cotton v. City of Eureka, 889 F. Supp. 2d 1154, 1178 (N.D.

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Cal. 2012) (finding that an attorney’s billing records showing

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that he worked between sixteen and twenty hours on five

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consecutive days, as well as exactly eighteen hours on two days

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the next week, were not credible and reducing his fee award).

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Because these entries are entirely duplicative, the court will

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permit Libet to bill for only one 3.8-hour entry and one eleven-

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hour entry during the period between May 14 and May 17, 2013.

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This amounts to a reduction of 40.6 hours of time.

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On June 30 and July 1, 2, and 3, 2007, Libet recorded

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four identical billing entries of eight hours apiece to review

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and revise a series of discovery requests.

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Objections 49, 50, 52, 54.)

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to one another, it is inappropriate to reduce her bill to only

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one such entry because it is highly unlikely that she only worked

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eight hours on this task out of the thirty-two she billed for it.

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The court will therefore reduce these entries by fifty percent,

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or a total of sixteen hours.

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83.8 hours of time reduced because of duplicative time entries.6

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d.

(See Defs.’

Although these entries are identical

These reductions sum to a total of

Non-Billable Activities

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6

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27
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Defendants also object to a set of six identical time
entries, three by Libet and three by Lacy, on April 26, 29, and
30, 2013 for “Telephone Calls and E-Mails” regarding the date of
the mediation conference. (See Defs.’ Objections 86-90.) The
court determines that these time entries, which amount to one
hour apiece, are reasonable and therefore imposes no reduction on
these hours.
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The Supreme Court has cautioned that “[h]ours that are

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not properly billed to one’s client are also not properly billed

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to one’s adversary.”

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this maxim, defendants object to several billing entries on the

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basis that they reflect activities which lawyers may not bill

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for.

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Hensley, 461 U.S. at 434.

Seizing upon

Defendants object to several of Libet’s billing entries

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on the basis that they reflect non-billable clerical or

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secretarial work.

(See generally Defs.’ Opp’n at 4.)

The Ninth

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Circuit has recognized that work that is “clerical in nature . .

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. should [be] subsumed in firm overhead rather than billed” and

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is therefore not recoverable.

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921 (9th Cir. 2009); see also Missouri v. Jenkins, 491 U.S. 274,

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288 n.10 (1989) (noting that time expended on “purely clerical or

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secretarial tasks” may not be recovered under § 1988).

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particular, time spent on tasks like “calendaring deadlines,

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confirming papers were filed, organizing files, and

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electronically filing documents” is not properly billable.

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Mohsen, 473 B.R. 779, 795 (N.D. Cal. 2012).

20

Libet’s billing entries, it appears that eighteen hours7 that

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Libet billed were comprised of purely clerical or secretarial

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tasks, and the court will reduce her time by eighteen hours.

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Nadarajah v. Holder, 569 F.3d 906,

In

In re

Upon review of

Defendants also object to several of Libet’s time

24

entries related to plaintiffs’ filing of amended exhibit and

25

witness lists.

(See generally Defs.’ Opp’n at 6.)

Defendants

26
27
28

7

That time consists of the following time entries, as
noted in defendants’ itemized statement of objections: 16 (1.00);
60 (5.50); 61 (2.50); 81 (6.00); and 139 (3.00).
14

1

contend that the need to file these amended lists arose only

2

because plaintiffs’ initial filings contained confidential

3

information, and thus the time Libet spent as a consequence of

4

those mistaken filings is not compensable.

5

agrees that Libet may not recover attorney’s fees for time that

6

was “necessitated by [her] own negligence.”

7

B.R. 323, 333 (S.D. Cal. 2012); see also, e.g., Cortes v. Metro.

8

Life Ins. Co., 380 F. Supp. 2d 1125, 1133 (C.D. Cal. 2005)

9

(holding that the plaintiff’s attorney could not bill hours spent

(See id.)

The court

In re Deuel, 482

10

preparing an ex parte application for contempt based on

11

defendant’s failure to pay benefit checks pursuant to a court

12

order when defendant sent those checks upon request).

13

therefore reduces Libet’s time by ten hours, equivalent to the

14

amount of time she billed on these tasks.8

15

e.

16

The court

Paralegal Time

Defendants object to several billing entries for

17

paralegal time on the basis that this time consists of non-

18

billable secretarial or clerical tasks.

19

a general rule, “purely clerical or secretarial tasks should not

20

be billed at a paralegal rate, regardless of who performs them.”

21

Jenkins, 491 U.S. at 288 n.10.

22

limited to: creating indexes for a binder; filing emails,

23

memoranda, and other correspondence; updating the case calendar

24

with new dates; copying, scanning, and faxing documents; and

25

filing or serving documents.

(Defs.’ Opp’n at 9.)

Those tasks include, but are not

Prison Legal News, 561 F. Supp. 2d

26
27
28

8

As

That time consists of the following time entries, as
noted in defendants’ itemized statement of objections: 141
(3.00); 144 (2.00); 149 (1.00); and 151 (4.00).
15

1

at 1102.

2

show that such expenses are not subsumed in the attorney[s’]

3

hourly rate and that billing secretarial expenses separately is

4

the prevailing practice in this forum.”

5

Inc. v. Albright, Civ. No. 2:11-2260 WBS CMK, 2013 WL 4094403, at

6

*3 (E.D. Cal. Aug. 12, 2013) (citing Trs. of Const. Indus. &

7

Laborers Health & Welfare Trust v. Redland Ins. Co., 460 F.3d

8

1253, 1257 (9th Cir. 2006)).

9

In order to recover for this time, “plaintiff[s] must

Joe Hand Promotions,

Having reviewed plaintiffs’ billing statements, the

10

court determines that 9.45 hours are comprised of purely clerical

11

or secretarial tasks.9

12

that billing separately for these tasks is the prevailing

13

practice in this district.

14

Those hours are therefore reduced from the total number of hours

15

billed by plaintiffs for paralegal services.

16

finds that eleven hours10 of paralegal time were improperly block

17

billed and reduces that time by twenty percent, or 2.2 hours.

18

Defendants provide no specific reason that any other paralegal

19

time is “excessive, redundant, or otherwise unnecessary,” McCown,

20

565 F.3d at 1102, and the court will not reduce those hours on

21
22
23
24
25
26
27
28

9

Plaintiffs have not provided any evidence

See Albright, 2013 WL 4094403, at *3.

The court also

That time consists of the following time entries, as
noted in defendants’ itemized statement of objections: 1 (0.30);
2 (0.50); 5 (0.50); 7 (0.30); 17 (0.30); 22 (0.10); 24 (0.10); 31
(0.01); 32 (0.10); 36 (0.25); 37 (0.10); 44 (0.10); 51 (0.25); 62
(0.10); 68 (0.25); 69 (0.25); 70 (0.10); 71 (0.10); 73 (0.25); 74
(0.10); 75 (0.10); 76 (0.25); 77 (0.30); 79 (0.30); 80 (0.30); 82
(0.10); 83 (0.10); 91 (0.25); 92 (0.10); 98 (0.10); 99 (0.20);
101 (0.20); 114 (0.10); 118 (0.10); 122 (0.10); 125 (0.30); 132
(0.25); 134 (0.25); 138 (0.30); 142 (0.10); 180 (0.75); 192
(0.50); 201 (0.20); 218 (0.20); and 234 (0.75).
10
That time consists of the following time entries, as
noted in defendants’ itemized statement of objections: 172
(5.00); 174 (3.00); and 178 (3.00).
16

1

this basis.

2

plaintiffs’ paralegal time by a total of 11.65 hours.

3

Between these adjustments, the court reduces

Having accounted for any time that is “excessive,

4

redundant, or otherwise unnecessary,” id., the court finds that

5

Burris reasonably expended 442.31 hours, Libet reasonably

6

expended 363.84 hours, Lacy reasonably expended 345.66 hours, and

7

the paralegals reasonably expended 134.85 hours.

8

2.

Reasonable Hourly Rate

9

“In addition to computing a reasonable number of hours,

10

the district court must determine a reasonable hourly rate to use

11

for attorneys and paralegals in computing the lodestar amount.”

12

Gonzalez, 729 F.3d at 1205 (citation omitted).

13

hourly rate is not defined “by reference to the rates actually

14

charged by the prevailing party.”

15

Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986).

16

Supreme Court has consistently held that reasonable fees ‘are to

17

be calculated according to the prevailing market rates in the

18

relevant community.’”

19

Programs, 557 F.3d 1041, 1046 (9th Cir. 2009) (quoting Blum v.

20

Stetson, 465 U.S. 886, 895 (1984)).

21

A reasonable

Chalmers v. City of Los
Rather, “[t]he

Van Skike v. Dir., Off. of Workers’ Comp.

“Generally, when determining a reasonable hourly rate,

22

the relevant community is the forum in which the district court

23

sits.”

24

marks omitted).

25

local forum only where “local counsel was unavailable, either

26

because they are unwilling or unable to perform because they lack

27

the degree of experience, expertise, or specialization required

28

to handle properly the case.”

Prison Legal News, 608 F.3d at 454 (internal quotation
It is appropriate to rely on rates outside the

Barjon v. Dalton, 132 F.3d 496,
17

1

500 (9th Cir. 1997) (quoting Gates v. Deukmejian, 987 F.2d 1392,

2

1405 (9th Cir. 1992) (internal quotation marks omitted)).

3

Plaintiffs have provided no evidence demonstrating that

4

local counsel was unavailable or unable to handle a case of this

5

nature.

6

prevailing market rate for a civil rights attorney practicing in

7

the Sacramento area,” even in cases considerably more complex

8

than this one.

9

WL 2434606, at *7 (E.D. Cal. Jun. 5, 2013) (applying Sacramento

Judges in this district have consistently applied “the

Knox v. Chiang, Civ. No. 2:05-2198 MCE CKD, 2013

10

rates in a case regarding union dues for public sector employees

11

which proceeded to the Ninth Circuit and the Supreme Court on

12

appeal); see also, e.g., Lehr v. City of Sacramento, Civ. No.

13

2:07-1565 MCE GGH, 2013 WL 1326546, at *4 (E.D. Cal. Apr. 2,

14

2013) (applying Sacramento rates in a complex class action

15

asserting unconstitutional treatment of homeless individuals in

16

Sacramento).

17

Plaintiffs rely on Valdivia v. Brown, 848 F. Supp. 2d

18

1141, 1143 (E.D. Cal. 2011) (Karlton, J.), in support of the

19

proposition that San Francisco, rather than Sacramento, is the

20

relevant community in this matter.

21

196).)

22

appropriate in a complex class action involving the

23

constitutional rights of parolees because the plaintiffs had

24

“tendered evidence” that “there were no Sacramento firms

25

experienced and capable enough, and willing to undertake the

26

case.”

27

sort or identified any other reasons that San Francisco rates are

28

appropriate, the court will apply Sacramento billing rates in

(Pls.’ Reply at 5 (Docket No.

There, the court found that San Francisco rates were

Id.

Because plaintiff has not provided evidence of this

18

1

this matter.11

2

See Barjon, 132 F.3d at 500.

The hourly rates that plaintiffs request--$800 for

3

Burris, $400 for Libet, $265 for Lacy, and $150 to $180 for

4

paralegals--significantly exceed prevailing market rates in the

5

Sacramento area.

6

legal experience and has a record of high-profile representations

7

in civil rights matters, (see Burris Decl. ¶¶ 1-15), judges in

8

this district have typically awarded rates between $350 and $450

9

to attorneys of comparable skill and experience.

Although Burris has nearly thirty-five years of

See, e.g.,

10

Lehr, 2013 WL 1326546, at *7 (awarding $400 per hour to a “highly

11

qualified civil rights attorney with over 40 years of relevant

12

litigation experience”); Knox, 2013 WL 2434606, at *7 (finding

13

that “the prevailing hourly rate for experienced civil rights

14

attorneys practicing in the Sacramento area does not exceed

15

$400,” and awarding $450 an hour in light of attorney’s

16

experience and their success before the Supreme Court); Jones v.

17

County of Sacramento, Civ. No. 2:09-1025 DAD, 2011 WL 3584332, at

18

*8 (E.D. Cal. Aug. 12, 2011) (finding that an hourly rate of $350

19

for a civil rights attorney with thirty-five years of litigation

20

experience was “in line with those prevailing in the Sacramento

21

market”).

An hourly rate of $400, the rate suggested by

22
23
24
25
26
27
28

11

Plaintiffs also assert that Burris “would no longer be
able to practice in this court” if he is not compensated at his
normal rate of $800 an hour, and that his potential departure
from the Eastern District of California “is a real threat to
justice in this jurisdiction.” (Pls.’ Reply at 5-6.) While the
court is mindful of the need to set fees at a level that will
attract skilled attorneys to take on civil rights cases, there
are many qualified attorneys in this district who do not believe
they are entitled to $800 an hour--twice the prevailing market
rate for attorneys of Burris’s caliber--for their work.
19

1

defendants, is therefore appropriate for Burris.

2

Libet has practiced since 1983, and has practiced

3

primarily in civil rights litigation since 1989.

4

Decl. of Gayla B. Libet Ex. 1 (Docket No. 190-1).)

5

this district have found that a rate between $250 and $280 is

6

appropriate for civil rights attorneys with comparable

7

experience.

8

an attorney admitted in 1975 who assisted experienced civil

9

rights attorneys $260 per hour); Jones, 2011 WL 3584332, at *9-10

(See Amended
Judges in

See, e.g., Lehr, 2013 WL 1326546, at *7-8 (awarding

10

(finding that an hourly rate of $250 was appropriate for an

11

attorney with ten years of civil litigation experience); Cal.

12

Pro-Life Council, Inc. v. Randolph, Civ. No. 2:00-1698 FCD GGH,

13

2008 WL 4453627, at *4 (E.D. Cal. Sep. 30, 2008) (noting that

14

prevailing rates in Sacramento for partners with over ten years

15

of experience range between $260 and $280).

16

experience, the court determines that an hourly rate of $280 is

17

appropriate for Libet.

18

In light of her

Lacy has practiced since 2007, and has practiced

19

primarily in civil rights litigation since 2011.

20

Decl. Ex. 3 (Docket No. 183-3).)

21

with comparable experience ranges “between $150 and $175 per

22

hour.”

23

also, e.g., Yeager, 2010 WL 2303273, at *6 (finding that $150 is

24

a reasonable hourly rate for associates in the Eastern District);

25

Broad. Music Inc. v. Antigua Cantina & Grill, LLC, Civ. No. 2:12-

26

1196 KJM DAD, 2013 WL 224461, at *1 (E.D. Cal. May 21, 2013)

27

(awarding an hourly rate of $175).

28

determines that an hourly rate of $175 is appropriate for Lacy.

(See Burris

The market rate for associates

Albright, 2013 WL 4094403, at *3 (citations omitted); see

20

The court therefore

1

Finally, courts in this district have generally found

2

that $75 is an appropriate hourly rate for paralegals.

3

e.g., Albright, 2013 WL 4094403, at *3 (citations omitted)

4

(awarding an hourly rate of $75 for paralegals); Friedman v. Cal.

5

State Emps. Ass’n, 2:00-101 WBS DAD, 2010 WL 2880148, at *4 (E.D.

6

Cal. July 21, 2010) (noting that “the paralegal rate favored in

7

this district is $75 per hour” (citations and internal quotation

8

marks omitted)).

9

of $75 for the time expended by plaintiffs’ paralegals.

10

See,

The court will therefore apply an hourly rate

In sum, the court finds that Burris reasonably billed

11

442.31 hours at an hourly rate of $400, that Libet reasonably

12

billed 363.84 hours at an hourly rate of $280, that Lacy

13

reasonably billed 345.66 hours at an hourly rate of $175, and

14

that the paralegals reasonably billed 134.85 hours at an hourly

15

rate of $75.

16

calculated as follows:

This results in a lodestar of $349,403.25,

17

Burris:

442.31

x

$400

=

$176,924.00

18

Libet:

363.84

x

$280

=

$101,875.20

19

Lacy:

345.66

x

$175

=

$60,490.50

20

Paralegals:

134.85

x

$75

=

$10,113.75

21
22
23

$349,403.25
B.

Adjustment to the Lodestar
Once the court has computed the lodestar, there is a

24

“‘strong presumption’ that the lodestar is the reasonable fee.”

25

Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting

26

City of Burlington v. Dague, 505 U.S. 557, 562 (1992)).

27

the Ninth Circuit has emphasized that the district court must

28

consider “whether it is necessary to adjust the presumptively
21

However,

1

reasonable lodestar figure on the basis of the Kerr factors that

2

are not already subsumed in the initial lodestar calculation.”

3

Morales, 96 F.3d at 363-64 (citations omitted).

4

include:

5
6
7
8
9
10
11

Those factors

(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.

12

Kerr, 526 F.2d at 670.

13

established by Kerr, but need not discuss each factor.”

14

Thrifty Payless Inc., 407 F. Supp. 2d 1165, 1168 n.4 (E.D. Cal.

15

2005) (Shubb, J.) (citing Sapper v. Lenco Blade, Inc., 704 F.2d

16

1069, 1073 (9th Cir. 1983)).

17

“The court should consider the factors
Eiden v.

Here, defendants argue that the lodestar award should

18

be reduced to account for plaintiffs’ limited success at trial.12

19

Both the Supreme Court and the Ninth Circuit have emphasized that

20

“the extent of a plaintiff’s success is a crucial factor for

21

determining the proper amount of an award of attorney’s fees

22

under 42 U.S.C. § 1988.”

Hensley, 461 U.S. at 440; see also

23
24
25
26
27
28

12

The extent of the plaintiff’s success or the “results
obtained” is frequently subsumed within the calculation of the
lodestar itself. See Cabrales v. County of Los Angeles, 864 F.2d
1454, 1464 (9th Cir. 1988); Morales, 96 F.3d at 364 n.9. Because
the court has not considered the “results obtained” as part of
its initial calculation of the lodestar, the court may adjust the
lodestar separately to account for plaintiffs’ limited success so
long as it “only makes one adjustment per factor.” Id.
22

1

McCown, 565 F.3d at 1103 (holding that attorney’s fees “must be

2

adjusted downward where the plaintiff has obtained limited

3

success on his pleaded claims, and the result does not confer a

4

meaningful public benefit”).

5

The Supreme Court has identified “two questions [that]

6

must be addressed” in conducting this inquiry.

7

at 434.

8

fail[ed] to prevail on claims that were unrelated to the claims

9

on which he succeeded[.]”

Hensley, 461 F.3d

First, the court must determine whether “the plaintiff

Id.

“[C]laims are unrelated if the

10

successful and unsuccessful claims are distinctly different both

11

legally and factually; claims are related, however, if they

12

involve a common core of facts or are based on related legal

13

theories.”

14

(citations and internal quotation marks omitted) (alterations in

15

original).

16

unsuccessful claims, “the hours expended on the unsuccessful

17

claims should not be included in the fee award.”

18

Dang v. Cross, 422 F.3d 800, 813 (9th Cir. 2005)

If the successful claims are unrelated to the

Id.

Here, all of plaintiffs’ claims arise out of a single

19

incident in which Patzer, Jensen, and Potts used force in the

20

process of placing plaintiffs under arrest.

21

claims arise out of a “common core of facts,” Dang, 422 F.3d at

22

813, the court may “not attempt to divide the request for

23

attorney’s fees on a claim-by-claim basis.”

24

1103.

25

analysis and focus on the significance of the overall relief

26

obtained by [plaintiffs] in relation to the hours reasonably

27

expended on the litigation.”

28

quotation marks omitted).

Because plaintiffs’

McCown, 565 F.3d at

“Instead, the court must proceed to the second part of the

Id. (citation and internal

23

1

In conducting the second portion of the Hensley

2

inquiry, the court should “give primary consideration to the

3

amount of damages awarded as compared to the amount sought.”

4

Farrar v. Hobby, 506 U.S. 103, 114 (1992).

5

Court has disavowed a test of strict proportionality.”

6

565 F.3d at 1104 (citing City of Riverside v. Rivera, 477 U.S.

7

561, 576 (1986) (Powell, J., concurring in the judgment)); see

8

also Hensley, 461 U.S. at 435 n. 11 (rejecting “a mathematical

9

approach comparing the total number of issues in the case with

However, “the Supreme
McCown,

10

those actually prevailed upon”).

11

consider the “excellence of the overall result,” including the

12

extent to which a plaintiff’s success “served the public interest

13

by vindicating important constitutional rights” or provided the

14

“public benefit of deterring unconstitutional conduct by law

15

enforcement officials” in determining its fee award.

16

F.3d at 1104-05.

17

Rather, the court must also

McCown, 565

On the one hand, plaintiffs did not obtain the full

18

extent of the relief that they sought.

19

that any defendant was liable under any of plaintiff’s state-law

20

claims.

21

The jury found only that Potts and Jensen used excessive force

22

against Deocampo, and awarded Deocampo only $50,000 in damages--

23

far less than the $300,000 in general damages, in addition to

24

special and punitive damages, sought by plaintiffs in their

25

Complaint.

26

imposed reductions of fifty percent or more in light of similarly

27

partial success.

28

LJO DLB, 2009 WL 1862457, at *5 (E.D. Cal. June 29, 2009)

The jury did not find

The jury also did not find Patzer liable on any claim.

(See Docket No. 1.)

Courts in this district have

See, e.g., Jones v. McGill, Civ. No. 1:08-396

24

1

(reducing attorney’s fees over seventy-five percent when the

2

plaintiff obtained a recovery of only $9,900 against one

3

defendant on his excessive force claims); Beecham, 2009 WL

4

3824793, at *5 (applying a downward adjustment of fifty percent

5

to the Lodestar when plaintiffs obtained only $33,400 in damages

6

out of the $1.8 million they sought).

7

On the other hand, plaintiffs successfully persuaded

8

the jury that two police officers had used excessive force

9

against Deocampo and that their conduct was malicious,

10

oppressive, or in reckless disregard of Deocampo’s rights, which

11

is an impressive accomplishment in its own right.13

12

2011 WL 3584332, at *18 (“Achieving such a verdict is no easy

13

task and obtaining the latter finding by the jury is even more

14

difficult.”).

15

a significant nonmonetary result “because successful suits act as

16

a deterrent to law enforcement and serve the public purpose of

17

helping to protect the plaintiff and persons like him from being

18

subjected to similar unlawful treatment in the future.”

19

v. County of San Bernardino, 540 F.3d 1109, 1128 (9th Cir. 2008)

20

(citation and internal quotation marks omitted); see also McCown,

21

565 F.3d at 1105 (noting that courts may “consider the public

22

benefit of deterring unconstitutional conduct by law enforcement

23

officials in determining the appropriate fee” (citing Morales, 96

24

F.3d at 364)).

25
26
27
28

13

See Jones,

Plaintiffs’ victory, while limited, also achieved

Mendez

Several judges of this district have found that

As the court indicated at oral argument, Deocampo was
at least as interested in being vindicated with a favorable
verdict as he was with a monetary recovery. This would explain,
for instance, why Deocampo declined to settle the case before
trial even when defendants presented him with a reasonable
settlement offer.
25

1

these concerns militate in favor of a small reduction or no

2

reduction in the lodestar.

3

*19 (applying a twenty-five percent reduction); Lehr, 2013 WL

4

1236545, at *15 (applying no reduction to the lodestar).

5

See, e.g., Jones, 2011 WL 3584332, at

Having considered these factors, the court concludes

6

that a twenty-five percent reduction in the lodestar is

7

appropriate.

8

amount by twenty-five percent to $262,052.44.

9

C.

10

Accordingly, the court will reduce the lodestar

Fees on Fees
In addition to fees awarded for success in the

11

litigation, a prevailing party under Section 1988 is also

12

entitled to recover fees for work performed in preparing the

13

motion for attorney’s fees itself.

14

Inc., 523 F.3d 973, 980 (9th Cir. 2008) (“In statutory fee cases,

15

federal courts, including our own, have uniformly held that time

16

spent in establishing the entitlement to and amount of the fee is

17

compensable.” (citing In re Nucorp Energy, Inc., 764 F.2d 655,

18

659-60 (9th Cir. 1985)).

19

litigating attorney’s fees are treated the same as for work done

20

on the merits of a case.”

21

Ins. Plan, 262 Fed. App’x 841, 843 (9th Cir. 2008) (citing

22

Thompson v. Gomez, 45 F.3d 1365, 1367-68 (9th Cir. 1995)); see

23

also Camacho, 523 F.3d at 982-83 (emphasizing that district

24

courts must apply the lodestar approach when awarding fees on

25

fees).

26

Camacho v. Bridgeport Fin.,

“Attorney’s fees requests for work

Winterstein v. Stryker Corp. Grp. Life

Plaintiffs’ attorney Pamela Y. Price has submitted a

27

billing statement showing that she spent 35.75 hours working on

28

this motion for attorneys’ fees.
26

(Docket No. 189-1.)

The court

1

finds that two entries totaling 18.7 hours of time are

2

inappropriately block billed and imposes a twenty percent

3

reduction on those hours, totaling 3.74 hours.14

4

Price’s billing statement to account for any hours that are

5

“excessive, redundant, or otherwise unnecessary,” McCown, 565

6

F.3d at 1102, the court determines that Price reasonably expended

7

32.01 hours working on this motion.

8
9

After adjusting

Defendants argue that Price’s hourly rate should be
reduced from $700 to an hourly rate between $175 and $250 because

10

she performed no substantive work in litigating the case beyond

11

her involvement in the fees motion.

12

Opp’n at 2 (Docket No. 195).)

13

court cannot identify, any authority for the proposition that an

14

attorney is entitled to a lower hourly rate for work performed on

15

a motion for attorney’s fees than for work performed on other

16

tasks in the litigation.

17

awarded fees on fees at the same hourly rate as fees for work on

18

the merits.

19

483 F. Supp. 2d 1023, 1042 (E.D. Cal. 2007) (Wanger, J.);

20

Cummings v. Connell, 177 F. Supp. 2d 1079, 1090 (E.D. Cal. 2001)

21

(Shubb, J.), rev’d in part on other grounds, 316 F.3d 886 (9th

22

Cir. 2003).

23

novel or complex than work on the merits, that distinction is

24

subsumed within the calculation of the lodestar itself.

25

Morales, 96 F.3d at 364 n.9.

26

(See Defs.’ Supplemental

Defendants have not cited, and the

Several judges in this district have

See, e.g., Wal-Mart Stores, Inc. v. City of Turlock,

To the extent that work on the fees motion is less

See

Although it is not appropriate to reduce Price’s hourly

27
14

28

This time includes two billing entries on November 6,
2013, for 6.2 and 12.5 hours. (Docket No. 189-1.)
27

1

rate simply because she worked exclusively on the fees motion, an

2

hourly rate of $700 is excessive.

3

for over three decades and has extensive experience with civil

4

rights actions, including successful appeals before the Ninth

5

Circuit and the Supreme Court, (see Decl. of Pamela Y. Price Ex.

6

A (Docket No. 186-1)), the court determines that an hourly rate

7

of $400, the same rate as Burris, is reasonable.

8

32.01 hours, this amounts to a total of $12804.

9

Because Price has practiced

Multiplied by

Price’s billing statement also shows that she incurred

10

$1716.40 in expenses, of which $1637.50 is for “billing

11

services.”

12

consist of or why they cost $1637.50.

13

reflects the time that Price spent preparing billing statements

14

as part of this attorney’s fees motion, the court will reduce

15

this expense by three-sevenths, the same reduction it applied to

16

her hourly rate, resulting in a total expense of $935.71 for

17

billing services and a total of $1014.61 in expenses.

18

her fees, this results in a total fee award of $13818.61.15

19

D.

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24
25
26
27
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The court is unclear what these “billing services”
Assuming that this expense

Along with

Expenses16
15

This award is based on the fee statement that Price
submitted on December 5, 2013. If Price has incurred additional
hours or expenses litigating this case since that date, she may
re-open the matter and submit a comprehensive statement of the
time and expense she has incurred on this motion. The court will
apply its independent judgment with respect to whether Price is
entitled to additional fees and does not require additional
briefs or other papers from either side on this issue.
16
Plaintiffs have also submitted a Bill of Costs pursuant
to Federal Rule of Civil 54(d) and Local Rule 292. However,
these expenses are properly characterized as a part of an award
of attorney’s fees, rather than as taxable costs. See Chalmers
v. City of Los Angeles, 796 F.2d 1205, 1216 n.7 (9th Cir. 1986
(noting that “out-of-pocket expenses incurred by an attorney
which would normally be charged to a fee paying client are
28

1

“Under § 1988, the prevailing party may recover as part

2

of the award of attorney’s fees those out-of-pocket expenses that

3

would normally be charged to a fee paying client.”

4

F.3d at 814 (citations and internal quotation marks omitted).

5

“Such out-of-pocket expenses are recoverable when reasonable.”

6

Id.

7

Dang, 422

Defendants contend that plaintiff may not recover

8

expenses under Section 1988 for expert witness fees.

9

Opp’n at 18.)

(See Defs.’

Subsection 1988(c) permits a prevailing plaintiff

10

in an action under Section 1981 or 1981(a) to recover expert

11

fees.

12

fees in an action under Section 1983.

13

Casey, 499 U.S. 83, 102 (1991); Ruff v. County of Kings, 700 F.

14

Supp. 2d 1225, 1243 (E.D. Cal. 2010) (Wanger, J.) (noting that

15

“cases are uniform that Section 1988(c) does not apply to a

16

Section 1983 action”).

17

plaintiffs to recover the $6,420 they incurred for expert witness

18

fees.

19

However, a prevailing plaintiff may not recover expert
W. Va. Univ. Hosps. v.

The court will therefore not permit

Defendants also object that plaintiffs cannot recover

20

expenses incurred for the services of Ralph Hernandez, a private

21

investigator, or Joshua Dodds, who provided technical assistance

22
23
24
25
26
27

recoverable as attorney’s fees” (emphasis added)); Dang, 422 F.3d
at 814 (same). Because these expenses comprise a portion of the
attorney’s fee award itself, defendants’ objections based on the
standards applicable to a Bill of Costs under 28 U.S.C. § 1920,
Federal Rule of Civil Procedure 54(d), and Eastern District Local
Rule 292 are misplaced. See id. (holding that expenses incurred
for obtaining an abstract of judgment were recoverable under §
1988 notwithstanding the plaintiff’s failure to include this
expense in his bill of costs).

28
29

1

with document management and video presentation equipment during

2

the trial.

3

types of expenses to be reasonable.

4

Marhoefer, 24 F.3d 16, 19-20 (9th Cir. 1994) (holding that

5

expenses incurred for an investigator were compensable under §

6

1988, even if they might not be taxable as costs under 28 U.S.C.

7

§ 1920 or applicable local rules); POM Wonderful LLC v. Ocean

8

Spray Cranberries, Inc., Civ. No. 09-565 DDP RZx, 2012 WL

9

4936470, at *1 (C.D. Cal. Oct. 17, 2012) (allowing prevailing

(See Defs.’ Opp’n at 18.)

Courts have found both

See, e.g., Harris v.

10

defendant to recover costs incurred for trial presentation

11

expenses).

12

Hernandez and Dodds were unreasonable, and the court will

13

accordingly permit plaintiffs to recover for those expenses.

14

There is nothing to indicate that the fees paid to

Having reviewed the remainder of the billing entries

15

submitted by plaintiffs, the court determines that the expenses

16

listed are reasonable and of the sort that would ordinarily be

17

charged to a fee-paying client.

18

Accordingly, the court will permit plaintiffs to recover

19

$38,626.68 in expenses.17

20
21
22

See Dang, 422 F.3d at 814.

In sum, the court will award $314497.73 in attorney’s
fees, comprised as follows:
Adjusted Lodestar:

$349,403.25 x

0.75

=

$262,052.44

23
24
25
26
27
28

17

This figure consists of the following: $26,449.00 in
out-of-pocket costs, including “photocopies, document, exhibit
and chart reproduction expenses, postage, service of process
fees, investigation expenses, mileage and travel expenses, and
long distance telephone calls”; $5,303.38 for the investigative
services of Ralph Hernandez; $621.12 for court reporter costs;
and $6253.18 for costs of video and document management services
at trial. (See Burris Decl. ¶¶ 42-46.)
30

1

Fees on Fees:

$13818.61

x

1.0

=

$13818.61

2

Expenses:

$38,626.68

x

1.0

=

$38,626.68

3
4

$314497.73
II.

Defendants’ Bill of Costs

5

Both Federal Rule of Civil Procedure 54(d)(1) and Local

6

Rule 292(f) permit a prevailing party to tax costs to the losing

7

side.

8

costs to a prevailing party, but vests in the district court

9

discretion to refuse to award costs.”

Rule 54(d)(1) “creates a presumption in favor of awarding

Ass’n of Mex.-Am.

10

Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000) (en

11

banc).

12

district have held that the court may require a party to bear its

13

own costs “[i]n the event of a mixed judgment.”

14

Connell, 102 F.3d 1494, 1523 (9th Cir. 1995) (9th Cir. 1996); see

15

also, e.g., Tubbs v. Sacramento Cnty. Jail, 258 F.R.D. 657, 659

16

(E.D. Cal. 2009 (Karlton, J.); Endurance Am. Specialty Ins. Co.

17

v. Lance-Kashian & Co., Civ. No. 1:10-1284 LJO DLB, 2011 WL

18

6012213, at *2 (E.D. Cal. Dec. 1, 2011) (“Given the mixed

19

judgment and good faith dispute over difficult issues, an award

20

of costs is unwarranted and each side is to bear its respective

21

costs.”).

22

Both the Ninth Circuit and numerous judges in this

Amarel v.

Here, the jury found that two of the three defendants

23

who went to trial were liable under Section 1983, and found that

24

the third defendant, Jeremy Patzer, had acted violently towards

25

the plaintiffs.

26

technically victorious on every claim but one, that partial

27

success does not mandate an award of costs.

28

F.R.D. at 661 (denying costs to the defendants in a civil rights

(Docket No. 165.)

31

And while defendants were

See Tubbs, 258

1

action when the plaintiff only prevailed on some claims but not

2

others); Cole v. Munoz, Civ. No. 1:09-00476 SAB, 2013 WL 3892955,

3

at *2 (E.D. Cal. July 26, 2013) (declining to award costs when

4

plaintiff prevailed on excessive force claims against two of the

5

three defendants).

6

defendants to bear their own costs in this action.

7

IT IS THEREFORE ORDERED that:

8

(1)

9

Accordingly, the court will require

plaintiffs’ motion for attorney’s fees be, and the

same hereby is, GRANTED in the amount of $314,497.73;

10

(2)

defendants’ motion for costs be, and the same

11

hereby is, DENIED.

12

Dated:

February 24, 2014

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