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

Filing 228

AMENDED MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 8/25/14. Plaintiff's motion for supplemental attorney's fees is granted in the amount of $21,868.75. (Manzer, C)

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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
AMENDED 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.

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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.

In 2013, a jury found that Potts and Jensen had used
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excessive force in the course of arresting Deocampo and awarded

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Deocampo $50,000 in damages.

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

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1988.

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

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

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

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relief from judgment filed by defendants.

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(Docket No. 204.)

The court subsequently awarded

Plaintiffs now move for a supplemental

As the court explained in its previous Order granting

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

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because they were the prevailing parties in an action under 42

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U.S.C. § 1988(b).

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

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fees to plaintiffs, and do not dispute that plaintiffs are

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entitled to a supplemental award of fees.

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the size of the supplemental fee award requested by plaintiffs.

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Defendants did not dispute that plaintiffs

Rather, they dispute

Courts typically determine the amount of a fee award

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under § 1988 in two stages.

First, courts apply the “‘lodestar’

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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 need not

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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

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The

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

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of a fee award.”

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(9th Cir. 1996).

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I.

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

Fees for Rule 60(b) Motion

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After the court awarded plaintiffs attorney’s fees,

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defendants sought relief from final judgment pursuant to Federal

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

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

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were discharged in bankruptcy.

The court denied the motion on

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May 21, 2014.

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a total of $10,422.75 in attorney’s fees for time spent opposing

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the motion.

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A.

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(Docket No. 211.)

Plaintiffs now seek to recover

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

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by determining how many hours were reasonably expended on the

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

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

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

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

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court should defer to the winning lawyer’s professional judgment

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

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Moreno, 534 F.3d at 1112.

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That standard is qualified

Plaintiffs’ counsel John Burris indicates that his firm

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staffed four attorneys on this matter and that those attorneys

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

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motion.

Defendants argue that this time should be reduced
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because there was no need to staff four attorneys on the case or

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

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reviewing pleadings, conducting legal research, or drafting an

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opposition to defendants’ Rule 60(b) motion.

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district courts have recognized, staffing multiple attorneys on a

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

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and does not always constitute unnecessary duplication of effort.

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

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

But as numerous

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responsibility may make it necessary for more than one attorney

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to attend activities such as depositions and hearings.

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attorneys may be essential for planning strategy, eliciting

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

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

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

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“the presence of several attorneys at strategy sessions for

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

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Having independently reviewed plaintiffs’ billing entries, the

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court cannot identify a single one that is sufficiently excessive

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to justify second-guessing plaintiffs’ “professional judgment”

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about how to allocate attorney time.

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Multiple

Moreno, 534 F.3d at 1112.

Defendants then argue that the court should reduce the

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hours billed by plaintiffs’ attorneys because many of those hours

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were improperly block billed.

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method by which each lawyer and legal assistant enters the total

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

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time expended on specific tasks.”

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

“Block billing is the time-keeping

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Welch v. Metro. Life Ins. Co.,

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quotation marks omitted).

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

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reduce hours that are purportedly block billed if the

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

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to assess the reasonableness of the hours billed.”

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

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2010).

Although a court may reduce hours that

Campbell v.

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

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identified numerous instances of block billing, the supplemental

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billing statements submitted by plaintiffs are largely free of

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block-billed entries.

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billing entry contains multiple items, those items appear to be

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related parts of a single task.

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

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

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with Curry regarding that opposition.

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

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

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

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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

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attorneys to artificially pad their billed hours.

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

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

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(noting that block billing is problematic because it “hides

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

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

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The court will therefore apply no reduction to hours that

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defendants characterize as block-billed.
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See Yeager v.

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In sum, the court finds that attorney DeWitt Lacy

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reasonably billed 11.55 hours, attorney Ayana Curry reasonably

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billed 22.1 hours, attorney Benjamin Nisenbaum reasonably billed

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5.05 hours, and Burris reasonably billed 3.6 hours.

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B.

Reasonable Hourly Rate

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“In addition to computing a reasonable number of hours,

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the district court must determine a reasonable hourly rate to use

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for attorneys and paralegals in computing the lodestar amount.”

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

A reasonable

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

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charged by the prevailing party.”

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

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Supreme Court has consistently held that reasonable fees ‘are to

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be calculated according to the prevailing market rates in the

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relevant community.’”

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

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

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

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

The court previously determined, and the parties agree,

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

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

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and Nisenbaum were admitted to the California bar in 2001 and

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2002, respectively, and have practiced consistently since then.

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Courts in this district have found that an hourly rate between

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

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of experience in civil rights cases.

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

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

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appropriate for an attorney with twelve years of experience);
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Curry

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

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

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

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

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

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

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

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Sacramento for partners with over ten years of experience range

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between $260 and $280).

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While the prevailing hourly rate for attorneys with ten

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

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previously awarded attorney Gayla Libet, an attorney with almost

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

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

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

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Accordingly, the court determines that both Curry and Nisenbaum

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are entitled to a reasonable hourly rate of $250.

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C.

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

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

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

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

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the Ninth Circuit has emphasized that the district court must

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consider “whether it is necessary to adjust the presumptively

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reasonable lodestar figure on the basis of the Kerr factors that

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are not already subsumed in the initial lodestar calculation.”

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

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include:

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However,

Those factors

(1) the time and labor required, (2) the novelty and
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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.

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Kerr, 526 F.2d at 670.

“The court should consider the factors

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

Eiden v.

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

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

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(9th Cir. 1983)).

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

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

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

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liabilities of the City of Vallejo and were thereby discharged in

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its Chapter 9 bankruptcy.

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viability of the entire judgment, but raised critical issues at

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the intersection of bankruptcy and civil rights law that demanded

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the expertise of experienced civil rights attorneys.

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

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of reducing a supplemental attorney’s fee award.

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the court need not apply any adjustment to the lodestar.

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That motion not only threatened the

Defendants

Accordingly,

In sum, the court finds that Burris reasonably billed

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

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

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

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

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

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follows:

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Burris:

3.6

x

$400

=

$1,440.00

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Curry:

22.1

x

$250

=

$5,525.00

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Nisenbaum:

5.05

x

$250 =

$1,262.50

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Lacy:

11.55 x

$175 =

$2,021.25

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$10,248.75
II.

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

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court stated that plaintiffs’ attorney Pamela Y. Price was

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

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

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performed after she had submitted her initial billing statements

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but before the court could determine plaintiffs’ entitlement to

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attorney’s fees.

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

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in light of her experience and credentials.

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Price to submit a supplemental declaration outlining the number

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

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The court also determined that Price was

The court directed

Price has submitted a consolidated billing statement

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

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

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time spent preparing the supplemental declaration ordered by the

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

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attorney’s fees.

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

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billing statement and finds that none of the entries she has

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recorded are excessive or reflect improper billing judgment.

While defendants contend that the fees Price

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Accordingly, the court finds that Price is entitled to

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$11,620.00 in supplemental attorney’s fees, reflecting 29.05

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hours of work at a reasonable hourly rate of $400.

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

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litigating the Rule 60(b) motion, this results in a total

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attorney’s fee award of $21,868.75.

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Combined with

IT IS THEREFORE ORDERED that plaintiffs’ motion for

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

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in the amount of $21,868.75.

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Dated:

August 25, 2014

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