Lam v. City of Los Banos

Filing 217

ORDER signed by District Judge Morrison C. England, Jr. on 5/13/2019 GRANTING IN PART plaintiff's 204 Motion for Attorney Fees. Plaintiff is entitled to $375,534.30 in attorneys' fees. Defendant's 213 Motion to Correct Record on Appeal is also GRANTED. In addition, the Clerk of the Court is directed to tax costs in the amount of $29,836.00 as set forth in Plaintiff's 177 Bill of Costs. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TAN LAM,

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No. 2:15-cv-00531-MCE-KJN
Plaintiff,

v.

MEMORANDUM AND ORDER

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CITY OF LOS BANOS, et al.,

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Defendants.

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Through this action Plaintiff Tan Lam (“Plaintiff”), as a successor-in-interest,

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sought redress from the City of Los Banos and Officer Jairo Acosta (hereafter “Officer

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Acosta” or “Defendant”) for the shooting death of his son, Sonny Lam (“Decedent”). This

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Court granted in part and denied in part Defendants’ Motion for Summary Judgment and

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the case proceeded to trial on Plaintiff’s remaining claims against Defendant. At the

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close of evidence, Defendant moved for judgment as a matter of law pursuant to Federal

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Rule of Civil Procedure 50(a), which Motion the Court denied. The jury thereafter

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returned a verdict in Plaintiff’s favor and awarded him $2.75 million. Defendant then

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renewed his Motion for Judgment as a Matter of Law (“JMOL”) Pursuant to Rule 50(b)

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or, Alternatively, Motion for a New Trial, which was also denied. ECF Nos. 185, 197.

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Presently before the Court are Plaintiff’s Motion for Attorney Fees (ECF No. 204) and

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Defendant’s Motion to Correct Record on Appeal (ECF No. 213).1 For the reasons set

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forth below, Plaintiff’s Motion is GRANTED in part, and Defendant’s Motion is

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GRANTED.2

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ANALYSIS3

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A.

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By way of Plaintiff’s instant Motion, he seeks to recover pursuant to 42 U.S.C.

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Plaintiff’s Motion for Fees and Costs

§ 1988 $667,799 in fees, subject to a multiplier of 1.3. As the prevailing party, Plaintiff is
entitled to recover his reasonable fees. See 42 U.S.C. § 1988(b).
“A reasonable fee is that which is ‘sufficient to induce a capable attorney to

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undertake the representation of a meritorious civil rights case.’” K.M. ex rel. Bright v.

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Tustin Unified Sch. Dist., 78 F. Supp. 3d 1289, 1297 (C.D. Cal. 2015) (quoting Perdue v.

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Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010)). The court calculates the amount of

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attorney’s fees by calculating a “lodestar” and “multiplying the number of hours

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reasonably spent on the litigation by a reasonable hourly rate.” McCown v. City of

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Fontana Fire Dep't, 565 F.3d 1097, 1102 (9th Cir. 2009). The appropriate number of

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hours includes all time “reasonably expended in pursuit of the ultimate result achieved in

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the same manner that an attorney traditionally is compensated by a fee-paying client for

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all time reasonably expended on a matter.” Hensley v. Eckerhart, 461 U.S. 424, 461

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(1983). However, in calculating the lodestar, “the district court should exclude hours

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‘that are excessive, redundant, or otherwise unnecessary.’” McCown, 565 F.3d at 1102

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Also pending before the Court is Plaintiff’s Bill of Costs by which Plaintiff seeks to recover
$29,836 in expenditure. Defendant has not filed an opposition to that Bill, and the Clerk of the Court will
be directed to tax the costs in full.
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Because oral argument would not be of material assistance, the Court ordered this matter
submitted on the briefs. E.D. Cal. Local Rule 230(g).
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Given this Court’s disproportionately high case load, and in the interest of conserving judicial
resources and expediting a decision in this case, the Court will not recount details with which the parties
are intimately familiar. To be clear, the Court has considered all evidence and arguments in the record,
but it limits its written decision to only that which is necessary to resolve the parties’ instant arguments.

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(quoting Hensley, 461 U.S. at 434). Although district judges “need not, and indeed

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should not, become green-eyeshade accountants,” Fox v. Vice, 563 U.S. 826, 838

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(2011), the court should provide some indication of how it arrived at its conclusions, see

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Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008) (“When the district

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court makes its award, it must explain how it came up with the amount.”).

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As a general rule, in determining the lodestar figure, “the court should defer to the

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winning lawyer's professional judgment as to how much time he was required to spend

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on the case.” Moreno, 534 F.3d at 1112. However, the party seeking an award of

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attorney's fees bears the burden of producing documentary evidence demonstrating “the

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number of hours spent, and how it determined the hourly rate(s) requested.” McCown,

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565 F.3d at 1102. Then the burden shifts to the opposing party to submit evidence

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“challenging the accuracy and reasonableness of the hours charged or the facts

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asserted by the prevailing party in its submitted affidavits.” Ruff v. County of Kings,

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700 F. Supp. 2d 1225, 1228 (E.D. Cal. 2010).

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Because the lodestar figure is presumptively reasonable, “a multiplier may be

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used to adjust the lodestar amount upward or downward only in rare and exceptional

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cases, supported by both specific evidence on the record and detailed findings by the

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lower courts that the lodestar amount is unreasonably low or unreasonably high.” Van

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Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (citations

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omitted).

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Defendant opposes Plaintiff’s Motion on grounds that:

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(1) the fee applicants did not meet their burden of producing
evidence that their requested fees as-calculated are in line with
the market rate for similar services by lawyers of comparable
skill; (2) the applicants improperly use out-of-forum rates;
(3) applicants’ alternatively ask for forum rates unsupported by
any evidence; (4) the lodestar is based on excessive,
duplicative, unrelated, and administrative tasks.

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Def.’s Opp., ECF No. 208, at 1.4 The Court agrees that utilizing forum rates is
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To the extent Defendant challenges Plaintiff’s Motion for seeking an unsupported $1.7 million in
fees, that argument is satisfactorily addressed by Plaintiff having filed a corrected motion indicating the
total fees sought pre-multiplier is $667,799.

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appropriate, but it declines to reduce the billable hours claimed because Plaintiff has

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adequately explained the reasonableness of the time expended. Finally, the Court

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concludes that a 1.3 multiplier is appropriate.

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“Generally, when determining a reasonable hourly rate, the relevant community is

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the forum in which the district court sits.” Prison Legal News v. Schwarzenegger,

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608 F.3d 446, 454 (9th Cir. 2010) (internal quotation marks omitted). The Court relies on

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rates from outside the local forum only if “local counsel was unavailable, either because

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they are unwilling or unable to perform because they lack the degree of experience,

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expertise, or specialization required to handle properly the case.” Barjon v. Dalton,

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132 F.3d 496, 500 (9th Cir.1997) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1405

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(9th Cir.1992) (internal quotation marks omitted)). While Plaintiff provides evidence that

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he was unable to find counsel willing to take this case in Los Banos or the surrounding

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area, it does not appear from the record that he attempted to secure representation in

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Sacramento, where there are a number of counsel equipped to handle a case of this

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nature. Accordingly, the Court finds the application of Sacramento rates is appropriate.

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See Deocampo v. Potts, No. 2:06-cv-01283-WBS-CMK, 2014 WL 788429, *8 (E.D. Cal.

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Feb. 25, 2014).

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The parties of course next dispute what rates are reasonable in this district given

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Plaintiff’s counsels’ respective experience. Defendant asks the Court to follow

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Deocampo and award fees at a rate of $400 per hour for John L. Burris, a sole proprietor

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employing the rest of Plaintiff’s attorneys, $280 per hour for an attorney with more than

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ten years of experience,5 and $175 per hour for attorneys with 3-7 years of experience.

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Id. at *10.

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Plaintiff objects given that Deocampo is now five years old and market rates have

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presumably risen since it was issued. The Deocampo court revisited the issue in 2017,

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addressing a subsequent fee request and affirmed the appropriateness of a $400 per

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The Court’s reading of Deocampo is that an attorney with approximately three decades of
experience was awarded $280 per hour, while attorneys with closer to ten years of experience were
permitted to recover at a rate of $250 per hour. Id.

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hour rate for Mr. Burris, and a $175 per hour rate for more junior attorneys, but increased

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the rate for attorneys with more than ten years of experience, given that it was the same

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attorneys who had previously appeared before it and they had several more years of

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experience, to $275 per hour. Deocampo v. Potts, 2017 WL 363142, *4-5 (E.D. Cal.).

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Although, as Plaintiff points out, attorneys have been awarded higher fees in some other

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cases, the Court concludes that the foregoing rates, which were awarded to the same

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firm that litigated this case, fall within the ranges described in those cases and remain

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reasonable. See Z.F. by and through M.A.F. J.F. v. Ripon School District, No. 2:10-cv-

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00523-TLN-CKD, 2017 WL 1064679 *3 (E.D. Cal. Mar. 21, 2017) (collecting cases).

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That said, because Defendant concedes $280 per hour is appropriate for Adante Pointer

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and Ayana Curry, the Court will utilize that rate for their work.

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As for the reasonable hours expended, the Court finds all of Plaintiff’s counsels’

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work to be reasonable. Although this case presents as a straight-forward excessive

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force action, the parties were required to litigate unique and novel issues with regard to

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Defendant’s fitness for duty, and Plaintiff’s counsel faced an uphill battle given the

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evidence that the Decedent had stabbed Defendant during the incident leading to his

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death. The Court finds nothing unusual with regard to the billing entries or the use of

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multiple attorneys to, for example, prepare for and take depositions. Accordingly, the

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Court will calculate the lodestar as follows:

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Attorney

Hours

Rate

Total

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$400

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John L. Burris

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Adante D. Pointer

526.4

$280

$147,392.00

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Ayana Curry

105.5

$280

$29,540.00

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Melissa Nold

639.666

$175

$111,940.50

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1271.56

$288,872.50

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This reflects a three-hour reduction for hours Plaintiff concedes on Reply were inadvertently
included due to a typo.

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The Court also concludes, however, this this case presents a rare instance where

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a multiplier is appropriate. In making this finding, the Court has considered the following

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factors to the extent they were not included in the above lodestar calculation:

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the novelty and difficulty of the issues involved in a case, the
skill required to litigate those issues, the preclusion of other
employment, the customary fee, relevant time constraints, the
amount at stake and the results obtained, the experience,
reputation, and ability of the attorneys, the nature and length
of their professional relationship with the client, the
“undesirability” of a case, and awards in similar suits

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Davis v. City and County of San Francisco, 976 F.2d 1536, 1546 (9th Cir. 1992). Not

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only did Plaintiff have to litigate the novel issues discussed above with regard to

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Defendant’s mental health, but counsel demonstrated remarkable skill in obtaining the

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excellent results they did for their client. As Plaintiff points out, it appeared to the Court

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that defense counsel was confident a victory was inevitable for his client. Indeed, the

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Court too was skeptical that Plaintiff could overcome the evidence that Decedent had

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aggressively stabbed and continued to pursue Defendant prior to his death. These

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facts, along with the fact that Defendant was the only percipient witness to Decedent’s

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shooting, made taking this case incredibly “undesirable.” Against those odds, however,

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Plaintiff’s counsel succeeded in convincing a unanimous jury that in causing Decedent’s

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death Defendant used excessive force via conduct that was malicious, oppressive, or in

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reckless disregard of Decedent’s rights. Given these extraordinary results, the Court will

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apply a 1.3 multiplier. As such, Plaintiff’s counsel is hereby awarded $375,534.30 in

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attorneys’ fees.

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B.

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Defendant seeks to supplement the record on appeal by adding several

Defendant’s Motion to Correct the Record on Appeal

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transcripts containing testimony that were read to the jury in lieu of live testimony. The

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excerpts read in to the record of the deposition testimony of Mary Jimenez, Joseph

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Shuman, PhD, and Christopher Borchardt were not transcribed by the court reporter,

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filed with the Court, or provided to the jurors during deliberations. Given that the

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excerpts were before the jury for consideration, however, Plaintiff’s only opposition is
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that the transcript provided for the Borchardt testimony is inaccurate. Given Plaintiff’s

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position, he supplied his own version of the Borchardt transcript that Defendant

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concedes on reply is accurate. Accordingly, since it is undisputed that the forgoing

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transcripts read to the jury should be included for appellate consideration, Defendant’s

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Motion is GRANTED, and the transcripts at ECF No. 213-1, Ex. A-B, p. 1-78, and ECF

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No. 213-2, shall be made part of the record on appeal.

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CONCLUSION

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Plaintiff’s Motion for Attorney’s Fees (ECF No. 204) is GRANTED in part, with the

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Court finding that Plaintiff is entitled to $375,534.30 in attorneys’ fees as set forth above.

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Defendant’s Motion to Correct Record on Appeal (ECF No. 213) is also GRANTED. In

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addition, the Clerk of the Court is directed to tax costs in the amount of $29,836.00 as

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set forth in Plaintiff’s Bill of Costs (ECF No. 177).

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IT IS SO ORDERED.
Dated: May 13, 2019

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