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

Filing 227

ORDER granting plantiff's 215 Motion for Supplemental Attorney Fees in the amount of $20,748.75, signed by Senior Judge William B. Shubb on 8/20/14. The 8/25/2014 hearing date is vacated. (Kastilahn, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
----oo0oo----

11
12
13

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

14
15
16
17
18
19
20
21

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

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,
Defendants.

22
23

----oo0oo----

24
25

Plaintiffs Jason Eugene Deocampo, Jesus Grant, and

26

Jaquezs Berry brought this action against defendants Jason Potts,

27

Jeremy Patzer, and Eric Jensen arising out of alleged police

28

misconduct.

In 2013, a jury found that Potts and Jensen had used
1

1

excessive force in the course of arresting Deocampo and awarded

2

Deocampo $50,000 in damages.

3

plaintiffs $314,497.73 in attorney’s fees pursuant to 42 U.S.C. §

4

1988.

5

award of attorney’s fees for: (1) time spent by plaintiff’s

6

counsel, Pamela Y. Price, on litigating the original fees motion;

7

(2) time spent by plaintiff’s counsel addressing a motion for

8

relief from judgment filed by defendants.

9

(Docket No. 204.)

The court subsequently awarded

Plaintiffs now move for a supplemental

As the court explained in its previous Order granting

10

attorney’s fees, plaintiffs are entitled to attorney’s fees

11

because they were the prevailing parties in an action under 42

12

U.S.C. § 1988(b).

13

were entitled to fees, did not appeal the court’s Order awarding

14

fees to plaintiffs, and do not dispute that plaintiffs are

15

entitled to a supplemental award of fees.

16

the size of the supplemental fee award requested by plaintiffs.

17

Defendants did not dispute that plaintiffs

Rather, they dispute

Courts typically determine the amount of a fee award

18

under § 1988 in two stages.

First, courts apply the “‘lodestar’

19

method to determine what constitutes a reasonable attorney’s

20

fee.”

21

2013) (citations omitted).

22

figure, district courts may adjust that figure pursuant to a

23

variety of factors.”

24

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

25

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

26

which courts may rely in adjusting the lodestar figure).

27

Ninth Circuit has emphasized that a district court need not

28

consider every factor; rather, it must apply the Kerr factors

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

Id. at 1209 (citation and internal

2

The

1

only to the extent that those factors “bear on the reasonableness

2

of a fee award.”

3

(9th Cir. 1996).

4

I.

Morales v. City of San Rafael, 96 F.3d 359, 361

Fees for Rule 60(b) Motion

5

After the court awarded plaintiffs attorney’s fees,

6

defendants sought relief from final judgment pursuant to Federal

7

Rule of Civil Procedure 60(b) on the basis that the judgment and

8

attorney’s fee award were liabilities of the City of Vallejo that

9

were discharged in bankruptcy.

The court denied the motion on

10

May 21, 2014.

11

$10,422.75 in attorney’s fees for time spent opposing the motion.

12

A.

13

Plaintiffs now seek to recover a total of

Reasonable Number of Hours
Under the lodestar method, “a district court must start

14

by determining how many hours were reasonably expended on the

15

litigation,” Moreno v. City of Sacramento, 534 F.3d 1106, 1111

16

(9th Cir. 2008), and “should exclude hours ‘that are excessive,

17

redundant, or otherwise unnecessary,’” McCown v. City of Fontana,

18

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

19

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

20

by the Ninth Circuit’s admonition that, as a general rule, “the

21

court should defer to the winning lawyer’s professional judgment

22

as to how much time he was required to spend on the case.”

23

Moreno, 534 F.3d at 1112.

24

That standard is qualified

Plaintiffs’ counsel John Burris indicates that his firm

25

staffed four attorneys on this matter and that those attorneys

26

spent a total of 43.15 hours opposing defendants’ Rule 60(b)

27

motion.

28

because there was no need to staff four attorneys on the case or

Defendants argue that this time should be reduced

3

1

to require multiple attorneys to do the same work, such as

2

reviewing pleadings, conducting legal research, or drafting an

3

opposition to defendants’ Rule 60(b) motion.

4

district courts have recognized, staffing multiple attorneys on a

5

single task may improve a party’s chance of success in litigation

6

and does not always constitute unnecessary duplication of effort.

7

See, e.g., PSM Holding Corp. v. Nat’l Farm Fin. Corp., 743 F.

8

Supp. 2d 1136, 1157 (C.D. Cal. 2010) (“[D]ivision of

9

responsibility may make it necessary for more than one attorney

But as numerous

10

to attend activities such as depositions and hearings.

11

attorneys may be essential for planning strategy, eliciting

12

testimony or evaluating facts or law.” (citation and internal

13

quotation marks omitted)); United States v. City & County of San

14

Francisco, 748 F. Supp. 1416, 1421 (N.D. Cal. 1990) (noting that

15

“the presence of several attorneys at strategy sessions for

16

complex civil rights class actions may be crucial to the case”).

17

Having independently reviewed plaintiffs’ billing entries, the

18

court cannot identify a single one that is sufficiently excessive

19

to justify second-guessing plaintiffs’ “professional judgment”

20

about how to allocate attorney time.

21

Multiple

Moreno, 534 F.3d at 1112.

Defendants then argue that the court should reduce the

22

hours billed by plaintiffs’ attorneys because many of those hours

23

were improperly block billed.

24

method by which each lawyer and legal assistant enters the total

25

. . . time spent working on a case, rather than itemizing the

26

time expended on specific tasks.”

27

480 F.3d 942, 945 n.2 (9th Cir. 2007) (citation and internal

28

quotation marks omitted).

“Block billing is the time-keeping

Welch v. Metro. Life Ins. Co.,

Although a court may reduce hours that
4

1

are block-billed, see id. at 948, it may also choose not to

2

reduce hours that are purportedly block billed if the

3

corresponding time entries “are detailed enough for the [c]ourt

4

to assess the reasonableness of the hours billed.”

5

Nat’l Passenger R.R. Corp., 718 F. Supp. 2d 1093, 1103 (N.D. Cal.

6

2010).

Campbell v.

7

While the court’s prior Order granting attorney’s fees

8

identified numerous instances of block billing, the supplemental

9

billing statements submitted by plaintiffs are largely free of

10

block-billed entries.

11

billing entry contains multiple items, those items appear to be

12

related parts of a single task.

13

time entries consists of two hours for “review[ing] and

14

consider[ing]” plaintiffs’ opposition and a telephone conference

15

with Curry regarding that opposition.

16

Likewise, Curry billed five hours for “review[ing] and

17

revis[ing]” plaintiff’s opposition, as well as “creat[ing]

18

tables” and “review[ing] and confirm[ing] citations.”

19

On the few occasions where a single

For instance, one of Burris’s

(Docket No. 217-2.)

(Id.)

This is not the sort of “block billing” that permits

20

attorneys to artificially pad their billed hours.

21

Bowlin, Civ. No. 2:08-102 WBS JFM, 2010 WL 1689225, at *1 (E.D.

22

Cal. Apr. 26, 2010), aff’d, 495 Fed. App’x 780 (9th Cir. 2012)

23

(noting that block billing is problematic because it “hides

24

accountability and may increase time by 10% to 30% by lumping

25

together tasks” (citation and internal quotation marks omitted)).

26

The court will therefore apply no reduction to hours that

27

defendants characterize as block-billed.

28

See Yeager v.

In sum, the court finds that attorney DeWitt Lacy
5

1

reasonably billed 11.55 hours, attorney Ayana Curry reasonably

2

billed 22.1 hours, attorney Benjamin Nisenbaum reasonably billed

3

5.05 hours, and Burris reasonably billed 3.6 hours.

4

B.

Reasonable Hourly Rate

5

“In addition to computing a reasonable number of hours,

6

the district court must determine a reasonable hourly rate to use

7

for attorneys and paralegals in computing the lodestar amount.”

8

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

9

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

A reasonable

10

charged by the prevailing party.”

11

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

12

Supreme Court has consistently held that reasonable fees ‘are to

13

be calculated according to the prevailing market rates in the

14

relevant community.’”

15

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

16

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

17

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

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

The court previously determined, and the parties agree,

18

that Burris is entitled to a reasonable hourly rate of $400 and

19

that Lacy is entitled to a reasonable hourly rate of $175.

20

and Nisenbaum were admitted to the California bar in 2001 and

21

2002, respectively, and have practiced consistently since then.

22

Courts in this district have found that an hourly rate between

23

$250 and $280 is reasonable for attorneys with ten or more years

24

of experience in civil rights cases.

25

Fairfield, Civ. No. 2:10-508 DAD, 2014 WL 1286001, at *6-7 (E.D.

26

Cal. Mar. 31, 2014) (finding that an hourly rate of $260 was

27

appropriate for an attorney with twelve years of experience);

28

Jones v. County of Sacramento, Civ. No. 2:09-1025 DAD, 2011 WL
6

Curry

See, e.g., Hall v. City of

1

3584332, at *9-10 (E.D. Cal. Aug. 12, 2011) (finding that an

2

hourly rate of $250 was appropriate for an attorney with ten

3

years of civil litigation experience); Cal. Pro-Life Council,

4

Inc. v. Randolph, Civ. No. 2:00-1698 FCD GGH, 2008 WL 4453627, at

5

*4 (E.D. Cal. Sep. 30, 2008) (noting that prevailing rates in

6

Sacramento for partners with over ten years of experience range

7

between $260 and $280).

8

While the prevailing hourly rate for attorneys with ten

9

or more years of experience is between $250 and $280, the court

10

previously awarded attorney Gayla Libet, an attorney with almost

11

three decades of experience, an hourly rate of $280 in this case;

12

it would be excessive to award Curry and Nisenbaum, who have

13

practiced for two decades less than Libet, the same hourly rate.

14

Accordingly, the court determines that both Curry and Nisenbaum

15

are entitled to a reasonable hourly rate of $250.

16

C.

17

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

18

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

19

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

20

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

21

the Ninth Circuit has emphasized that the district court must

22

consider “whether it is necessary to adjust the presumptively

23

reasonable lodestar figure on the basis of the Kerr factors that

24

are not already subsumed in the initial lodestar calculation.”

25

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

26

include:

27
28

However,

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)
7

1
2
3
4
5
6

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.

7

Kerr, 526 F.2d at 670.

8

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

9

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

10

2005) (citing Sapper v. Lenco Blade, Inc., 704 F.2d 1069, 1073

11

(9th Cir. 1983)).

12

“The court should consider the factors
Eiden v.

Here, the Rule 60(b) motion filed by defendants sought

13

relief from the judgment and the attorney’s fee award, which

14

collectively amount to over $364,000, on the basis that they were

15

liabilities of the City of Vallejo and were thereby discharged in

16

its Chapter 9 bankruptcy.

17

viability of the entire judgment, but raised critical issues at

18

the intersection of bankruptcy and civil rights law that demanded

19

the expertise of experienced civil rights attorneys.

20

do not offer any reasons why the Kerr factors militate in favor

21

of reducing a supplemental attorney’s fee award.

22

the court need not apply any adjustment to the lodestar.

23

That motion not only threatened the

Defendants

Accordingly,

In sum, the court finds that Burris reasonably billed

24

3.6 hours at an hourly rate of $400, that Curry reasonably billed

25

22.1 hours at an hourly rate of $250, that Nisenbaum reasonably

26

billed 5.05 hours at an hourly rate of $250, and that Lacy

27

reasonably billed 11.55 hours at an hourly rate of $175.

28

results in an attorney’s fee award of $10,248.75, computed as
8

This

1

follows:

2

Burris:

3.6

x

$400

=

$1,440.00

3

Curry:

22.1

x

$250

=

$5,525.00

4

Nisenbaum:

5.05

x

$250 =

$1,262.50

5

Lacy:

11.55 x

$175 =

$2,021.25

6
7
8
9

$10,248.75
II.

Supplemental Fees on Fees
In its previous Order granting attorney’s fees, the

court stated that plaintiff’s attorney Pamela Y. Price was

10

entitled to recover “fees on fees” for her work litigating the

11

attorney’s fees disputes in this case, including for work

12

performed after she had submitted her initial billing statements

13

but before the court could determine plaintiffs’ entitlement to

14

attorney’s fees.

15

entitled to a reasonable hourly rate of $400 for these services

16

in light of her experience and credentials.

17

Price to submit a supplemental declaration outlining the number

18

of hours she spent on the fees motion after December 5, 2013.

19

The court also determined that Price was

The court directed

Price has submitted a consolidated billing statement

20

reflecting time spent on three basic items: (1) additional

21

services involved in litigating the original fees motion; (2)

22

time spent preparing the supplemental declaration ordered by the

23

court; and (3) time spent on the present motion for supplemental

24

attorney’s fees.

25

billed for these items is excessive, the court has reviewed her

26

billing statement and finds that none of the entries she has

27

recorded are excessive or reflect improper billing judgment.

28

While defendants contend that the fees Price

Accordingly, the court finds that Price is entitled to
9

1

$10,700 in supplemental attorney’s fees, reflecting 26.75 hours

2

of work at a reasonable hourly rate of $400.

3

supplemental fee award of $10,248.75 for time spent litigating

4

the Rule 60(b) motion, this results in a total attorney’s fee

5

award of $20,748.75.

6

Combined with the

IT IS THEREFORE ORDERED that plaintiffs’ motion for

7

supplemental attorney’s fees be, and the same hereby is, GRANTED

8

in the amount of $20,748.75.

9

vacated.

10

Dated:

The August 25, 2014 hearing date is

August 20, 2014

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10