Opinion
NO. CV 00-13001 GAF (RZx)
May 27, 2003
ORDER RE: PLAINTIFF'S MOTION FOR ATTORNEY FEES
I. BACKGROUND
Dang sued Defendant Cross and other members of the Compton Police Department in a simple, straightforward civil rights case alleging that Cross and other Defendants had violated his civil rights in a number of ways, including through the application of excessive force when arresting him for allegedly operating an illegal pawn shop. In the end, the Court concluded that only the force claim was viable, and only against Defendant Gilbert Cross. The events that made up the entirety of the case, including those claims that the Court adjudicated in favor of Defendants on a motion for summary judgment, took place within a 24 hour period. Events on which the trial focused occurred in a matter of minutes. The trial took two days, and Dang obtained a modest award of $18,000; the jury rejected his request for punitive damages.
Plaintiff is now back in Court asking for almost a quarter of a million dollars in attorney fees, plus an additional $2,030 in costs. While plaintiffs counsel is an able lawyer with extensive experience in civil rights litigation, the fee requested is far beyond what the Court concludes is just and reasonable under the circumstances. Given the relative simplicity of the genuine issues in the case, the brief period it took to try the case, and the modest award, the Court GRANTS the motion, but only on the basis of a significantly reduced fee award.
II. DISCUSSION
A. STANDARD FOR MOTION TO COLLECT ATTORNEY FEES PURSUANT TO § 1988
In a federal civil rights action, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. Successful litigants are entitled to reasonable attorney fees "to ensure `effective access to the judicial process' for persons with civil rights grievances." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting H.R. Rep. No. 94-1558, p. 1 (1976)). Therefore, a prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." S. Rep., No. 94-1011, p. 4 (1976), U.S. Code Cong. Admin. News 1976, p. 5912 (quoting Newman v. Piggie Park Enter., 390 U.S. 400, 402 (1968)). As Dang was the prevailing party in this case, his counsel is entitled to a reasonable fee.
Section 1988 does not offer an explanation or formula for determining a reasonable fee, but several Circuits have developed their own tests. InJohnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), the Fifth Circuit developed a twelve factor test for determining reasonable attorney fees which includes: (1) the time and labor required; (2) the difficulty and novelty of the issues; (3) the skill required; (4) preclusion of other employment by the attorney; (5) the customary fee; (6) whether the fee is contingent or fixed; (7) time restraints imposed by the client or the circumstances; (8) the amount involved and the results achieved;(9) experience, ability, and reputation of the attorneys; (10) the undesirability" of the case; (11) nature and length of the professional relationship between the attorney and client; and (12) awards in similar cases. Kerr v. Screen Extras Guild Inc., 526 F.2d 67, 70 (9th Cir. 1975) (citing Johnson, 488 F.2d at 717-19. The Third Circuit created an alternative test using a lodestar. Lind Bros. Builders Inc. v. Am. Radiator Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973). The lodestar method allows the court to estimate reasonable attorney fees by multiplying a reasonable hourly rate by the reasonable number of hours spent by counsel.
In Hensley the Supreme Court articulated a hybrid test that adopts both the lodestar calculation and the Johnson factors. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986). First, the court must calculate the lodestar amount by multiplying a reasonable hourly rate by the number of hours reasonably expended. The variables used in the calculation (reasonable fees and reasonable hours) can be adjusted by relevant Johnson factors. The Ninth Circuit determined that some of the Johnson factors require application pre-calculation, others may be applied to the lodestar figure once it has been determined. See Morales v. City of San Rafael, 96 F.3d 359, 363-64 (9th Cir. 1996) (determining that lodestar calculation may be adjusted upward or downward only on the basis of Johnson factors not already subsumed in lodestar determination); Blum v. Stenson, 465 U.S. 886, 898-900 (1984) (holding that "novelty and complexity issues," "the special skill and experience of counsel," the quality of the representation," and the "results obtained" from litigation should be reflected in the lodestar and do not serve as independent bases for adjusting an award).
The Court must therefore commence its analysis by addressing the reasonableness of the hours expended and the fee charged for those hours.
B. REASONABLE FEES — THE LODESTAR ANALYSIS 1. Reasonable Hours
"The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. This lodestar equation provides the court with a basis for an initial estimate of reasonable fees. Id. However, a district court has the discretion to depart from this calculation if any billed hours appear excessive, unnecessary, or redundant. Id. at 434; Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980). Two factors which may counsel a court to reduce the number deemed reasonable are: (1) overstaffing and the wide range of skill and experience among lawyers, and (2) the complexity and novelty of the issues raised. Cunningham v. County of Los Angeles, 879 F.2d 481, 485 (9th Cir. 1989).
In this action, Plaintiff's counsel seeks an award of attorney fees based on 446 hours charged to this case, which appears to the Court to be an unusually large amount of time spent on a case that was not very complex, particularly in view of counsel's background and experience. Plaintiffs counsel is an expert in the field of civil rights law and has represented a large number of Defendants in police brutality cases. The Court knows, based on its own dealings with counsel, that he is intimately familiar with the cases and principles that govern litigation in this area, and therefore would have little or no trouble immediately grasping the issues presented in this simple case. Such expertise should manifest itself in efficiency as the expert need not "reinvent the wheel" in every case within his area of special competence. Accordingly, the Court approaches its analysis of the hours charged with counsel's background in mind.
From a review of the billing records the Court notes that daily charges are "block billed," that is, the hourly total for the day is followed by a list of various tasks with no breakdown by task. This is a practice that was, and may in some cases still be, practiced by large law firms to the dismay of their clients because it has a tendency to mask inefficiency. In that regard, the Court observes numerous (at least 37) entries for "rev file" which the Court construes as "file review," and others (at least 66 entries) recorded as "mem-f," which the Court interprets to mean "memorandum to the file." There appears to be an excessive amount of such activity, especially for a lawyer with the experience and background of Plaintiff's counsel. While files must be reviewed, and work on the file memorialized, the Court concludes that these entries have inflated the total number of hours reasonably spent on this case. In assessing the number of such entries, and comparing them to the other entries in the records, the Court estimates that the total number of hours is excessive by a factor of 15%.
The Court also notes that a measurable portion of the case activity was directed to matters pertaining to Defendants who were ultimately eliminated from the case through law and motion practice. The Supreme Court in Hensley paid particular attention to whether the plaintiff successfully prevailed on all of his claims for relief. Hensley, 461 U.S. at 440 ("We hold that the extent of a plaintiffs success is a crucial factor in determining the proper amount of an award of attorney fees under 42 U.S.C. § 1988."). Where a plaintiff prevails on only a portion of his claims, he is not necessarily entitled to recover attorney fees for the failed claims. "That the plaintiff is a `prevailing party' therefore may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved." Id. at 436. The question to be addressed by the trial court is whether the unsuccessful claims played an important role in the plaintiffs partial success. See id. at 440; Cabrales v. County of Los Angeles, 935 F.2d 1050, 1052 (9th Cir. 1991).
Having reviewed its prior orders regarding the dismissed claims against Defendant Cross, and the claims against other dismissed Defendants that were adjudicated in their favor, the Court concludes that the inclusion of at least some of the Defendants and some of the claims was questionable at best. For reasons explained by the Court in ruling on motions addressing the false arrest, illegal entry and illegal search and seizure claims, the officers, through the conduct of an undercover officer, plainly had probable cause to believe that an offense had been committed and that Dang had committed the offense. The inclusion of these marginal claims and the other, later dismissed, Defendants served to increase the amount of unproductive time devoted to this case. Given the complete lack of success of these other claims and Defendants, Dang cannot be viewed as the prevailing party on those aspects of the case, which militates against an award of fees incurred in connection with them. While it is very difficult to determine with precision how many of the hours incurred over the first two and half years of this litigation were directed to the unsuccessful portion of the case, the Court, approaching the matter conservatively, estimates that it would be reasonable to reduce the compensable hours by an additional 10%.
Whether the activities of the police officers represented a wise use of public resources and officer time and attention is quite another matter. The amount of effort devoted to the investigation and arrest of Mr. Dang was far out of proportion to his suspected criminal conduct, but that is beside the point in this federal civil rights case.
Accordingly, in determining the hours to be compensated under the lodestar formula, the Court reduces the 446 hours claimed by 25%, or 134 hours. Thus, the Court will determine the fee in this case on the basis of 335 hours, which the Court still considers quite high for a case tried in two days.
2. Reasonable Rate
Counsel claims an hourly rate of $550. Whether he should be paid at that rate is a matter to be determined by the Court. See Vanke v. Block, CV 98-4111, 2002 WL 1836305, *7 (C.D. Cal. Aug. 8, 2002) (reducing counsel's hourly rate from $550 to $400 based on court's experience in fee requests and the lack of evidence to demonstrate reasonableness of proposed higher fee). Several of the Johnson factors discussed above provide assistance in determining a reasonable hourly rate.
many of the hours were billed years earlier and would normally be subject to lower rates, it is appropriate to apply current rates in reaching an award of attorney fees. Missouri v. Jenkins, 491 U.S. 274 (1989).
a. Novelty/Difficulty of Issues
As discussed above, the issues presented in this case are neither novel nor difficult, especially for an attorney with the considerable experience and background of Plaintiff's counsel in civil rights cases.
b. Preclusion of other work
No information provided by Dang addresses this issue, but in light of the large number of cases that counsel has pending before this Court alone, not to mention his frequent appearance in the courthouse, it does not appear that this matter precluded him from assuming the representation of plaintiffs in other civil rights cases. Thus, the Court sees no "opportunity cost" factor to be applied to the rate charged in this case.
c. Comparable Attorney Fees
The billing rate used by a district court in its lodestar calculations should be influenced by the hourly fees charged by comparable attorneys prevailing in matters of similar complexity. Vanke, 2002 WL 1836305 at *7 (citing Davis v. City of San Francisco, 976 F.2d 1536, 1542 (9th Cir. 1992)). In his motion, Plaintiff includes declarations from Carol Watson, Maxwell Blecher, and Brian O'Neill, three experienced attorneys in the Los Angeles area. Cross includes, in his opposition, another declaration from Carol Watson and a declaration from Timothy Coates, both of which are from other cases.
(1) Carol Watson — In her declaration attached to Plaintiff's motion, Ms. Watson discusses her experience and familiarity with the civil rights litigation community, having practiced civil rights law since 1979. (Mot., Watson Decl. ¶ 3). Ms. Watson states that she has known plaintiffs counsel for 20 years, and that she considers his work to be of "the highest caliber." (id. ¶¶ 4, 5). She also notes that "highly skilled trial lawyers with 25-30 years of experience bill at the rate of $500 to $600 per hour" and that she believes $550 to be a reasonable hourly rate for Yagman. (Id. ¶¶ 7, 8). However, attached to the Opposition is a Declaration made by Ms. Watson in a recent case. In that Declaration she notes that she recently raised her hourly rate to $400 per hour "to reflect the increased cost of doing business and to bring my hourly rate more in line with other attorneys of similar skill and experience." (Opp. Exh. A, Attach. 2).
(2) Maxwell Blecher — Mr. Blecher states in his declaration that he is a specialist in complex federal anti-trust litigation. (Mot. Blecher Decl. ¶ 11). He further notes that attorneys in his field, with approximately 30 years of experience, often bill between $500 and $700 per hour. (Id. ¶ 2). Mr. Blecher's fee is $600 per hour. (Id. ¶ 3).
(3) Brian O'Neill — Mr. O'Neill is a partner in a small Los Angeles firm specializing in federal litigation. (Mot. O'Neill Decl. ¶ 3). It is his belief that billing rates for attorneys with 30 years of experience who handle substantial litigation range from $400 to $550, and may be as high as $600. (Id. ¶ 14). His fee is $500 per hour. (Id. ¶ 5).
(4) Timothy Coates — Cross included in his Opposition the declaration of Mr. Coates used in a recent case before Judge Rea. In his Declaration, Mr. Coates states that he has been in practice for 18 years and has devoted 60% of his practice to civil rights cases. (Opp. Exh. A, Attach. 2 ¶ 13). He asserts that [d]espite the occasional $450 per hour case, even $375 per hour would be considered at the very, top end of the general competitive market for litigation services by a highly experienced attorney." (Id. ¶ 9).
(5) Court's Assessment — The Court does not find Plaintiff's declarations particularly persuasive. Mr. Blecher is a specialist in antitrust litigation, not civil rights litigation, and those fields are radically different. While civil rights law has its intricacies, it does not require the mastery of complex business and economic theory required of antitrust practitioners. Mr. O'Neill likewise practices in a field other than the civil rights field. His testimony, based on his knowledge of "rates charged by attorneys handling significant litigation in federal courts in Los Angeles," is not sufficiently specific to the civil rights field to be helpful. Ms. Watson, a bona fide expert in the field of civil rights law with comparable experience (and whose capabilities are well known to this Court), charges a lower hourly rate than requested by Plaintiff's counsel, and has submitted declarations in other recent cases opining that $400 per hour is the reasonable rate in this field. Mr. Coates' declaration provides another view that an hourly rate of $550 is excessive, with a more detailed analysis of the local legal market. Finally, the Court notes that it has assessed many motions for attorney fees, and in no case has any counsel ever requested an hourly rate as high as that requested here. Indeed, in a recent, complex intellectual property dispute, the Court was presented with evidence that the going rate in New York — where rates are higher than Los Angeles — for high-priced intellectual property attorneys ranged from $385 to $440 an hour. Rolex Watch U.S.A., Inc. v. Zeotec Diamonds. Inc., CV-02-1089 GAF (VBKx) (May 2, 2003 Civil Minute Order at 3). For all of these reasons, the Court considers the requested hourly rate to be excessive.
d. Awards in other Cases
Plaintiffs counsel has included a number of orders from cases in which he received attorney fees. Corder v. Gates, 688 F. Supp. 1418 (C.D. Cal. 1988); Cornwell v. City of Riverside, CV 86-3107 FFF (C.D. Cal. June 27, 1988) (order awarding "attorney fees); Trevino v. City of Los Angeles, CV 92-1981 JSL (C.D. Cal. June 25, 1990) ("Trevino I") (same); Larez v. City of Los Angeles, Nos. 89-55541, 89-55801 (9th Cir. Nov. 25, 1991) (same);Raugh v. Jenkins, CV 88-3408 MRP (C.D. Cal. July 29, 1992) (same); Gomez v. Gates, 804 F. Supp. 69 (C.D. Cal. 1992); Temme v. Campbell, CV 86-5905 RMT (C.D. Cal. Oct. 11, 1993) (order awarding attorney fees); Weston v. Gates, CV 91-1314 ABC (C.D. Cal. Feb. 21, 1995) (same) ("Weston I")Weston v. City of Los Angeles, 1996 WL 601474, *3 (9th Cir. Oct. 18, 1996) (unpublished op.) ("Weston II"); Escobar v. Scutella, CV 89-323 CBM (C.D. Cal. April 4, 1997) (order granting attorney fees); Saman v. Robbins, CV 93-448 RAP (C.D. Cal. Oct. 3, 1997) (same); Trevino v. City of Los Angeles, 145 F.3d 1341 (9th Cir. 1998) (unpublished op.) ("Trevino II"); Vanke, 2002 WL 1836305, at *9 (order granting attorney fees). The following table identifies the case, the amount of his request and the award. Case Requested Amount Amount Awarded
Corder $200 for 1984-85 $180 for 1984-85 $225 for 1986-87 $200 for 1986-87 Cornwell $225 $225 Trevino I $450 $250 Larez $350 $350 Raugh $350 $350 Gomez $350 $175 Temme $250 for 1986 $250 for 1986 $275 for 1987-88 $275 for 1987-88 $300 for 1989-90 $300 for 1989-90 $325 for 1991-92 $325 for 1991-92 $350 for 1993 $350 for 1993 Weston I $400 $400 Weston II $400 $400 Escobar $350 $350 Saman $450 $350 Trevino II $450 $450 Vanke $550 $400 As demonstrated above, counsel's requested attorney fee was often reduced. Moreover, a review of those cases further indicates that, on some occasions where the court did not reduce the hourly fee, either the total hours or the lodestar figure was reduced.e. Experience/Reputation
The Court has already addressed this factor above. Plaintiffs counsel is well known in the community and is regarded has having extensive knowledge and experience in the field of federal civil rights law.
f. Market Rates
Reasonable fees "are to be calculated according to the prevailing market rates in the relevant community. . . ." Guam Soc'y of Obstetricians Gynocologists v. Ada, 100 F.3d 691, 696 (9th Cir. 1997). Plaintiff includes near the end of his motion an article from the Los Angeles Times, dated September 18, 1989, that discusses the "recent" increase in both attorney fees and salaries. (Mot., tab. D). Given the age of the article, and the lack of any meaningful foundation for the information contained therein, the Court considers it to be of little value.
g. Conclusion
Taking all of the relevant factors into account, the Court concludes that a reasonable billing rate for the present case is $375 per hour.
III. CONCLUSION
Based on the foregoing, the Court concludes that Plaintiff's counsel is entitled to a fee computed on the basis of 335 hours multiplied by a rate of $375. Thus, the total fee award in this case is $125,625. The Court declines to make an award of costs, which should be addressed in the first instance by the clerk, and, if disputes remain, in a bill to retax costs presented to this Court.
IT IS SO ORDERED.