Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC386266, Richard L. Fruin, Jr., Judge.
Hurrell Cantrall, Thomas C. Hurrell, Melinda Cantrall and Jamie L. Webb-Akasaka for Defendants and Appellants.
Schonbrun, DeSimone, Seplow, Harris, Hoffman & Harrison, Paul Hoffman, Adrienne J. Quarry; Law Offices of John Raphling and John Raphling for Plaintiff and Respondent.
ACLU Foundation of Southern California, Peter J. Eliasberg; National Police Accountability Project and R. Samuel Paz as Amici Curiae on behalf of Plaintiff and Respondent.
JOHNSON, J.
Defendants David Hernandez and the County of Los Angeles appeal from an order awarding attorney fees to plaintiff’s counsel under title 42 United States Code section 1988. We reject appellants’ argument that the trial court awarded excessive hourly rates inconsistent with prevailing market rates for similarly skilled attorneys litigating comparable cases. We also reject the assertion that the court abused its discretion by inappropriately double counting certain factors in setting its award, relying on an improper blanket policy that all successful excessive force cases benefit the public or failing to take plaintiff’s modest recovery into account in determining the award.
FACTUAL AND PROCEDURAL BACKGROUND
After celebrating his birthday at a bar on Universal City Walk (City Walk) on March 2, 2006, respondent Glen Jochimsen was detained by two Los Angeles County deputy sheriffs, one of whom was Hernandez. The deputies placed Jochimsen in a holding cell at City Walk. Jochimsen was never charged with any criminal offense.
Jochimsen was kept in a holding cell for several hours before the deputies began processing his release. While Jochimsen was alone awaiting release, Hernandez entered his cell and, without justification, “forearmed [him] in the throat, backing him over the bench and against the wall, and punched him in his side.” Hernandez halted his assault when the other deputy returned with Jochimsen’s personal effects. Security guards then escorted Jochimsen off City Walk property and left him there. Jochimsen had performed handyman work for a federal circuit court judge. After his release Jochimsen contacted that judge and told him “the shit had been beat out of him by a deputy... in a holding cell.” The judge contacted a retired senior sheriff and an investigation was conducted, albeit one which was cursory and undocumented. As a result of Hernandez’s assault, Jochimsen alleged he suffered “immediate and excruciating pain;... severe contusions to his back spine and kidney areas;... re-injury of an old spinal fracture;... medical expenses;... and severe emotional distress, humiliation, and degradation.”
Purportedly unable to find counsel willing to represent him, Jochimsen originally filed this action pro. per. against five defendants based on five claims for relief. In July 2008, after securing representation by his current counsel, Jochimsen filed the operative first amended complaint dismissing all defendants other than Hernandez and the County of Los Angeles, and all claims apart from a cause of action for excessive force pursuant to title 42 United States Code section 1983 (section 1983), and a cause of action against the County of Los Angeles pursuant to Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 [98 S.Ct. 2018, 56 L.Ed.2d 611] (Monell). The two claims were bifurcated for trial.
After a five-day trial in September 2009, a jury returned a verdict in favor of Jochimsen on his section 1983 claim against Hernandez. Judgment was entered in October 2009 awarding Jochimsen $35,000 in compensatory damages for pain and emotional distress; no punitive damages were awarded.
After trial of the section 1983 claim, Jochimsen agreed to forgo his Monell claim in exchange for Hernandez’s agreement not to appeal the verdict against him.
In December 2009 Jochimsen’s counsel filed a motion seeking $385,595.74 in attorney fees as “prevailing party” pursuant to title 42 United States Code section 1988 (section 1988). The motion was supported by declarations and substantiating documentation from Jochimsen’s attorneys. Jochimsen also submitted a declaration from Los Angeles civil rights attorney Carol Sobel in order to establish that the hourly rates charged by his attorneys were consistent with the prevailing market rate in the relevant community.
Hernandez and the County (hereafter, collectively, the County) strenuously opposed the motion. The County challenged most of the billing entries for Jochimsen’s counsel on multiple grounds including, that the entries: (1) were too vague to support the claimed fees, (2) were improper and consisted of internal communications among Jochimsen’s attorneys; (3) were duplicative, reflecting the time of too many attorneys devoted to the same tasks; (4) related to administrative tasks; (5) were excessive and unnecessary; and (6) bore no relation to Jochimsen’s modest success at trial. The County lodged voluminous objections to the supporting documentation submitted by Jochimsen’s counsel, and the Sobel declaration. And, relying on the opinion of Rickey Ivie, a partner in the Los Angeles civil law firm Ivie & McNeill, the County asserted that the hourly rates charged by Jochimsen’s counsel were excessive and that any award the court made should not exceed $80,490.
Jochimsen responded with a reply brief, objections to the Ivie declaration, a defense of the Sobel declaration and a flurry of supplemental declarations from his attorneys and Sobel.
The County filed another round of evidentiary objections to each of the attorney declarations Jochimsen submitted in support of his fee motion, an objection to Jochimsen’s reply brief and a defense of the Ivie declaration.
During oral argument on the motion on January 28, 2010 the trial shared with the parties its concerns about Jochimsen’s fee request. The court noted that the requested rates—“of $750 an hour [for Hoffman], and other rates”—were above standard market rates for business or corporate litigation. However, it also noted that the rates for excessive force cases, were typically higher because they often incorporated a contingency fee factor or multiplier. The court acknowledged Jochimsen’s argument that “there is a different marketplace for this type of action, than there is for every other type of litigation... and that’s why attorneys who undertake this type of litigation command a higher market rate, ” and observed that it “[didn’t] think that [the] individual rate is inappropriate, ” and “although that may be the market rate, it’s an unusual rate and maybe justified in this case.” Nevertheless, the court was concerned that Jochimsen’s counsel had charged such high rates for some tasks that “should be covered in the overhead of the office, ” and may have devoted more time or attorney resources to the action than was actually warranted. The court suggested that Jochimsen’s counsel “think about [the court’s] concerns and maybe submit some further paperwork, ” to “suggest[] a fee award, which is somewhat reduced.” Both parties submitted supplemental briefs. To alleviate the court’s concerns and to address the County’s objections, Jochimsen proposed that its overall fee award be reduced by 20 percent. The court took the matter under submission.
The court issued its ruling in February 2010. It reduced Jochimsen’s requested lodestar amount (by then $406,821.25) by the 20 percent proposed by Jochimsen, plus an additional 3.5 percent, for a total award of $311,218.26. The County appeals that award.
DISCUSSION
The County asserts the trial court made numerous errors in connection with its award to Jochimsen’s counsel of over $310,000 in attorney fees. Specifically, the County contends reversal is required because (1) the award reflects exorbitant hourly rates for attorney fees which are not consistent with prevailing rates in the community for similarly situated attorneys litigating comparable cases; (2) the trial court’s failed to articulate the prevailing market rate for comparable cases; (3) the court abused its discretion by double-counting certain factors in making its award; (4) the court abused its discretion in basing its fee award on an improper blanket policy; and (5) the court abused its discretion by failing to take Jochimsen’s modest success into consideration. None of these contentions has merit.
In this case the County does not dispute that Jochimsen is entitled to reasonable attorney fees, and does not dispute the number of hours charged. Rather, the principal issue is whether the trial court abused its considerable discretion in determining what attorney fees award was reasonable here.
1. Fee awards under section 1988
The Civil Rights Attorney’s Fees Awards Act of 1976 (section 1988) authorizes trial courts to award reasonable attorney fees to a prevailing party in a civil rights action. (Hensley v. Eckerhart (1983) 461 U.S. 424, 429 [103 S.Ct. 1933, 76 L.Ed.2d 40] (Hensley).) “The purpose of [section] 1988 is to ensure ‘effective access to the judicial process’ for persons with civil rights grievances. [Citation.] Accordingly, a prevailing plaintiff ‘should ordinarily recover an attorney’s fees unless special circumstances would render such an award unjust.’” (Ibid.) The prospect of recovery of substantial attorney fees under section 1988 enables victims of civil rights violations to obtain “competent counsel in vindicating their rights, ” in order to ensure “effective prosecution of meritorious claims.” (Kay v. Ehrler (1991) 499 U.S. 432, 436, 437 [111 S.Ct. 1435, 113 L.Ed.2d 486].)
Section 1988 applies in section 1983 actions prosecuted in state court. (Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 243, fn. 9 [California courts “have routinely applied the attorney fees provisions of section 1988 in cases resulting in the enforcement of... section 1983”].) California courts adhere to federal standards to determine a proper fee award under section 1988 for civil rights actions brought under section 1983 in state court. (Board of Administration v. Wilson (1997) 57 Cal.App.4th 967, 974.) Once the trial court determines the prevailing plaintiff is entitled to recover fees under section 1988, the court must decide what award is “‘reasonable.’” (Hensley, supra, 461 U.S. at p. 433.) The lodestar calculation, or the number of hours reasonably expended multiplied by a reasonable hourly rate, is the starting point for the court’s determination of a reasonable fee. (Ibid.) There is a strong presumption that the lodestar represents a reasonable fee. (Perdue v. Kenny A. (2010) ___ U.S. ___, ___, [130 S.Ct. 1662, 1669, 176 L.Ed.2d 494, 501–502]; Hensley, at p. 433.) The trial court may also determine whether an adjustment to the presumptively reasonable lodestar is necessary based on the facts of a particular case. (Sorenson v. Mink (9th Cir. 2001) 239 F.3d 1140, 1149, fn. 4; Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 1307.) The district court has a great deal of discretion in determining the reasonableness of the fee and, as a general rule, we defer to its determination. (Hensley, at p. 437.)
Despite this general deference, “[i]t remains important... for the district court to provide a concise but clear explanation of its reasons for the fee award.” (Hensley, supra, 461 U.S. at p. 437). The court’s ruling need not adhere to any particular form so long as the order provides a sufficient basis for appellate review. The trial court need not provide an “elaborately reasoned, calculated, or worded order; a brief explanation of how the court arrived at its figures will do.” (Cunningham v. County of Los Angeles (9th Cir. 1988) 879 F.2d 481, 484.) Hensley’s requirement that the district court “provide a concise but clear explanation of its reasons for the fee award” merely obliges the court “to give at least some indication of how it arrived at the amount of compensable hours for which fees were awarded to allow for meaningful appellate review.” (Gates v. Deukmejian (9th Cir. 1992) 987 F.2d 1392, 1398, italics omitted; Schwarz v. Secretary of Health & Human (9th Cir. 1995) 73 F.3d 895, 906 (Schwarz) [The court need not “‘set forth an hour-by-hour analysis of the fee request’”].)
We review an attorney fee award under section 1988 for abuse of discretion. (Hensley, supra, 461 U.S. at p. 437; Robbins v. Regents of University of California (2005) 127 Cal.App.4th 653, 665; Schwarz, supra, 73 F.3d at p. 900.)
2. The court’s determination of a reasonable hourly rate
The County insists the trial court’s fee award was an abuse of discretion because Jochimsen’s counsel failed to demonstrate their requested rates were the prevailing market rates in the community charged by attorneys of similar skill, experience and reputation for services performed on comparably complex cases. In the County’s view, “comparable cases” are those which involve “a single claim of excessive force by one plaintiff against one defendant.”
The County also insists the fee award must be vacated because the court failed specifically to articulate that the hourly fee awarded to Jochimsen’s counsel was based on the prevailing rate in the community for lawyers with an equivalent level of skill performing similar services. (Camacho v. Bridgeport Financial, Inc. (9th Cir. 2008) 523 F.3d 973, 978–979 (Camacho).) This assertion finds no support in Camacho or elsewhere. Moreover, notwithstanding its stated concern that the rates of $750 and $500 per hour for Hoffman and Raphling, respectively, were at the “high” end, the court’s order clearly adopts those rates as acceptable given the skill and efficiency of Jochimsen’s trial counsel. At the hearing on the fee application the trial court recognized the “marketplace” of attorneys prosecuting excessive force cases is unique. As such, although the hourly rates requested by Jochimsen’s counsel were high, the court noted it “[didn’t] think that individual rate is inappropriate... and may be justified in this case.” We take no issue with that determination. “The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ [Citations.]” (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)
Our research reveals no authority supporting the County’s assertion that the trial court must assess the reasonableness of rates only by reviewing factually similar excessive force cases involving a single plaintiff suing a single defendant on a single claim. Rather, the Supreme Court has explained that, in determining an award of attorney fees, the prevailing party is required only to show that “the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” (Blum v. Stensen (1984) 465 U.S. 886, 896, fn. 11 [104 S.Ct. 1541, 79 L.Ed.2d 891] (Blum); Camacho, supra, 523 F.3d at p. 979.) No case, including those upon which the County relies, requires that the hourly rate comparison also be based on litigation involving nearly similar claims or factual circumstances. (See Perdue, supra, 130 S.Ct. at p. 1673 [complexity of case is represented in reasonable number of hours billed, not hourly rate]; Jordan v. Multnomah County (9th Cir. 1987) 815 F.2d 1258, 1262 [under Blum, requested rates must be in line with prevailing community rates for similar services by lawyers of reasonably comparable skill and reputation]; Chalmers v. City of Los Angeles (9th Cir. 1986) 796 F.2d 1205, 1210 [under Blum, a reasonable hourly rate is determined by “the experience, skill, and reputation of the attorney requesting fees”].)
The relative complexity or simplicity of a case typically is not a factor in establishing a reasonable hourly rate. Rather, that factor is used to evaluate the reasonableness of the number of billable hours claimed by counsel. (Blum, supra, 45 U.S. at p. 898 [“The novelty and complexity of the issues [is]... fully reflected in the number of billable hours recorded by counsel and thus do not warrant an... adjustment in a fee based on the number of billable hours times reasonable hourly rates”]; see also Perdue, supra, 130 S.Ct. at p. 1673 [rejecting use of novelty or complexity of a case as grounds for enhancement because those factors are “‘presumably... fully reflected in the number of billable hours recorded by counsel’”].) The trial court acknowledged this principle at the hearing when it observed that the relative simplicity or complexity of the action might not “make[] any difference in the hourly rate, but it probably should suggest that the time required to try the case is more lineate.”
In any event, if and to the extent the challenges and complexity or simplicity of a particular case may factor into the determination of a reasonable hourly rate, that determination is best left to the sound judgment of the trial judge who presided over the action and is in the best position to gauge the degree of difficulty posed by the litigation. For example, the County presents this action as a straightforward excessive force case by Jochimsen against a lone deputy. The trial judge viewed the case differently. It observed that the action involved a hard fought five-day jury trial with skilled attorneys on both sides which “presented many issues that were contested.” Those issues included difficult pretrial matters including Pitchess hearings regarding deputies involved, and a number of privilege and evidentiary disputes. In addition, the court explained that proving Jochimsen’s case-in-chief “presented difficulties” because there were no eyewitnesses to his assault, no supporting medical records and inadequate documentation of the cursory investigation into the complaint of excessive force, all of which lent inferential—but difficult to prove—support to Jochimsen’s contention that the County’s investigation was a sham and it had something to hide. We are aware of no authority that provides that a section 1983 case of excessive force against one deputy is, by definition, “less complex” or challenging than other civil rights actions. Congress recognized the inherent complexity and challenges involved in all civil rights litigation in setting the standards for fee awards under section 1988. (See City of Riverside v. Rivera (1986) 477 U.S. 561, 575 (Rivera) [noting, with reference to the legislative history of section 1988, that Congress intended in civil rights cases for “‘the amount of fees awarded under [§ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases.’”
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
3. Jochimsen’s counsel presented sufficient evidence to establish that their requested rates were consistent with prevailing market rates
“‘[T]he fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation.’ [Citations.]” (Schwarz, supra, 73 F.3d at p. 908.) The rate to be used under section 1988 is the prevailing market rate in the relevant community, or the forum within which the trial court sits. (Blum, supra, 465 U.S. at p. 895; Camacho, supra, 523 F.3d at p. 979.)
Rates from other fora may be used if local counsel is unavailable, either because they are unwilling or unable to take on plaintiff’s representation due to a lack of experience, expertise or skills necessary to handle the case competently. (Camacho, supra, 523 F.3d at p. 979.) There is no contention here that any exception to the general rule applies.
To establish the appropriate rate for lodestar purposes, the plaintiff submits affidavits of his or her own counsel and other attorneys to demonstrate requested rates are in line with prevailing fees in the local community for similarly skilled attorneys. (United Steel Workers v. Phelps Dodge Corp. (9th Cir. 1990) 896 F.2d 403, 407; Schwarz, supra, 73 F.3d at p. 908.) Rate determinations in other cases, particularly those setting rates for prior awards to plaintiff’s attorneys, is useful evidence bearing on selection of the prevailing market rate. (United Steel Workers of America, supra, 896 F.2d at p. 407; Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1005.)
The County’s reliance on Barjon v. Dalton (9th Cir. 1997) 132 F.3d 496, is misplaced. There, the attorney submitted evidence only of her own prior fee award to show her requested rate was consistent with the prevailing community rates. The court held that, “‘[w]hile an attorney’s prior fee award may bear on the selection of a reasonable fee in a later case... simply offering the prior award is not enough.’” (Id. at p. 502.) Here, Jochimsen’s counsel offered evidence of awards its own counsel had received as well as evidence of rates recovered by similarly skilled counsel in the relevant community.
Here, the evidence produced by Jochimsen supported hourly rates of $750 (Hoffman), $500 (Raphling) and between $370 and $325 (associates Kim, Hamburg, Quarry and Carroll). That evidence included declarations from Hoffman (attesting to his lengthy experience and significant expertise in national and local civil rights litigation, and his recovery of that rate in prior civil rights litigation), Raphling (a veteran criminal defense attorney with many years of trial experience and particular aptitude in matters related to police procedures), and each associate who worked on Jochimsen’s affirmative case (attesting to his or her own level of experience, skill and reputation).
Associates Hamburg, Kim and Quarry worked on this matter largely in serial fashion, each taking over as another associate left the firm, and their hours were reduced to eliminate duplicative tasks. Carroll apparently worked on one discrete research project in connection with the litigation.
In addition, the Sobel declaration established a satisfactory foundation for her expert opinion regarding the reasonableness of rates sought by Jochimsen’s counsel. Sobel has significant expertise and decades of experience as a practitioner in the field of civil rights litigation in Los Angeles and extensive knowledge of hourly rates in the local community of civil rights practitioners. During her tenure at the ACLU, Sobel was responsible for researching the field and collecting information to establish market rates for the agency’s litigators in order to substantiate the ACLU’s efforts to collect fees in local civil rights litigation. Sobel’s declaration reflects that, on an annual basis since 1997 she has surveyed firms to obtain relevant comparisons of billing rates. Her surveys include larger law firms and smaller boutique civil rights law firms. Sobel has found that there is little, if any, difference in the fees sought and awarded to smaller or solo civil rights firms and larger business firms.
Sobel has remained actively engaged in that endeavor in connection with her own practice and that of the civil rights attorneys with whom she sometimes cocounsels, including Hoffman whom she has known and worked with for over 30 years, and Kim. The methods employed by Sobel have been favorably cited by several courts addressing prevailing market rates in the relevant Los Angeles legal market. (See Nadarajah v. Holder (9th Cir. 2009) 569 F.3d 906, 916–917; Orantes-Hernandez v. Holder (C.D.Cal. 2010) 713 F.Supp.2d 929, 963–964; Torrance Unified Sch. Dist. v. Magee (C.D.Cal. 2008, Nov. 10, 2008, CV 07-2164 CAS (RZx)) [2008 U.S.Dist. Lexis 95074, 21]; Atkins v. Miller (C.D.Cal 2007 CV-01-01574DDP) [2007 U.S. Dist. Lexis].) The most common method of demonstrating the reasonableness of a requested rate is to submit the declaration from a local attorney showing the requested rates are consistent with the declarant’s rates or that the declarant has specific knowledge of community rates. (Pearl, California Attorney Fee Awards (3d ed. Cal. CEB 2011) § 9.121, p. 542; Prison Legal News v. Schwarzenegger (9th Cir. 2010) 608 F.3d 446, 455.) The statements in Sobel’s declaration and the numerous fee awards attached thereto on which she relied to form her opinion laid an adequate foundation to satisfy this requirement.
The County took issue with this evidence, and offered the Ivie declaration in rebuttal. The trial court clearly considered both experts’ views, and discounted Ivie’s opinion. That decision was not unwarranted. In stark contrast to Sobel, Ivie’s declaration does not reflect that he has expertise litigating civil rights cases, let alone seeking or recovering attorney fees awards in such actions. Ivie’s declaration does not establish knowledge of the prevailing market rate for lawyers practicing in the field of civil rights law in Los Angeles. Ivie takes issue with Sobel’s opinion because the cases upon which Sobel based her expert opinion regarding the relevant community rates did not involve the same number of parties or claims as the instant litigation. As discussed above, however, no such direct numerical or factual comparison is necessary. Moreover, although Ivie's declaration regarding prevailing rates purports to be “based on comparable cases, ” the only case excerpt attached to his declaration fails to indicate either the nature or complexity of the case at issue, the number of parties involved or the hourly rates for the attorneys. In short, Ivie's declaration fails to provide any information that would provide the trial court with a basis for adopting the markedly lower rates proposed in his declaration over those proposed by Jochimsen.
There is no merit to the County’s contention that the trial court did not rely on Sobel’s declaration as a basis for its ruling or that it failed to consider Ivie’s declaration. When the County’s attorney raised the issue of its objections at the hearing, the court made it abundantly clear that it did not consider any declaration incompetent and it intended to “listen to everyone’s opinion.”
The County also cites various cases in which plaintiffs’ counsel were awarded rates different from those awarded here. But there is no indication that Ivie relied on those cases to form his conclusions regarding the prevailing market rate. In addition, the cases lack details about the various attorneys’ experience, skill and reputation to enable the court to make an appropriate comparison between rates awarded in those cases and here, and some of the cases are aged and/or arise in other venues and thus do not bear on current prevailing market rates in Los Angeles.
In addition, hourly rates under section 1988 must be for lawyers in the relevant community, which in this case is Los Angeles. (See, e.g., Jordan, supra, 815 F.2d 1258, 1262 [“[P]revailing market rate in community is indicative of reasonable hourly attorney rate”].) Ivie’s declaration relies upon a survey of hourly rates for other communities, including rural and smaller communities where the hourly rates are legally irrelevant to the determination of a reasonable hourly fee here.
We also agree with Jochimsen that the trial court properly rejected Ivie’s declaration based on its unsupported premise that the rates for “small” firms should be lower than the rates charged by “big firms.” The proper comparison is for plaintiff to show the fees requested align with those prevailing in the community for similar services by attorneys with reasonably comparable skills, experience and reputations. There is no additional requirement that counsel also practice in a comparably sized law firm.
We do not consider the County’s argument—newly asserted on appeal—that the trial court was required to consider the economic downturn in its determination of the prevailing market rate. “‘“[I]ssues raised for the first time on appeal... are waived....”’” (Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131.)
The court found Jochimsen’s attorneys performed at a level of expertise commensurate with their respective requested rates. On this record, therefore, Jochimsen’s attorneys’ requested fees were established as being in line with prevailing community rates.
4. The total award does not reflect an abuse of the trial court’s discretion
The County contends the trial court also abused its discretion in making the overall fee award by (1) engaging in double counting of factors to determine the lodestar and to adjust the overall award; (2) making an award that was disproportionate to Jochimsen’s modest success; and (3) basing its award on an improper blanket policy.
a. Double counting
The special skill, reputation and experience of plaintiff’s counsel, the quality of that representation, and whether the fee agreement is fixed or contingent are three of several factors traditionally used in determining a fee award. (Kerr v. Screen Extras Guild, Inc. (9th Cir. 1975) 526 F.2d 67, 70 (Kerr).) Under the lodestar approach, these factors are largely subsumed as a matter of law, although the court may use those factors not included in the lodestar calculation to adjust the presumptively reasonable lodestar fee. (Morales v. City of San Rafael (9th Cir. 1996) 96 F.3d 359, 364, fn. 8; Cunningham, supra, 879 F.2d at p. 484.) But courts may not make multiple adjustments using the same lodestar factor. (Cabrales v. County of Los Angeles (9th Cir. 1988) 864 F.2d 1454, 1465, vacated on other grounds, 490 U.S. 1087, decision adhered to on remand, 886 F.2d 235 [“[w]hat matters is that the district court did not ‘count’ [the relevant factor] twice”].)
Other factors are the: (1) time and labor required; (2) novelty and difficulty of the questions involved; (3) preclusion of other employment by the attorney due to the acceptance of the case; (4) customary fee; (5) time limitations imposed by the client or the circumstances; (6) amount involved and results obtained; (7) “‘undesirability’” of the case; (8) nature and length of the professional relationship with the client; and (9) awards in similar cases. (Kerr, supra, 526 F.2d at p. 70.)
Here, the County argues the trial court inappropriately considered the contingent nature of Jochimsen’s fee contract in determining his counsel’s hourly rate and in ruling on the reasonableness of the overall award. Specifically, the County notes the court referred to the fact that the case was prosecuted under a contingency contract when considering hourly rates for Jochimsen’s trial attorneys, and in reducing the requested fee award by 23.5 percent “because the case was prosecuted skillfully, against a vigorous and effective defense and on a contingency basis.” The County also asserts the trial court inappropriately considered the expertise of Jochimsen’s counsel in adjusting the award when factors such as skill, reputation and experience were already reflected in counsels’ hourly rates. “[T]he quality of an attorney’s performance generally should not be used to adjust the lodestar ‘[b]ecause considerations concerning the quality of a prevailing party’s counsel’s representation normally are reflected in the reasonable hourly rate.’ [Citation.]” (Perdue, supra, 130 S.Ct. at p. 1673.)
We do not read the record the same way the County does. At the outset of its ruling regarding the fee award, the court noted there are three primary issues for it to consider. They are “whether the fees reflect market rates, whether the hours have been honestly accounted for and whether counsel has been efficient in the use of his/her time charged to the matter.” The court first discussed the seemingly excessive hours devoted to this case by Jochimsen’s counsel in conjunction with their high hourly rates. It found both the hours and the rates justified due to the skill employed in prosecuting the action (matched by “the equally determined and skilled defense presented by the County”), and the complexity of the matters at issue.
The ruling reflects the court was troubled most by the “staggering cost incurred by [Jochimsen’s] attorneys in presenting and defending the motion for reasonable legal fees (in excess of $60,000).” It found fault with both sides. While the County drove the expense up with its “aggressive attack” on Jochimsen’s fee request, some of those challenges were justified and Jochimsen’s counsel could have avoided them by preparing “more descriptive time entries in the first place.” In addition, the court observed that the parties should have tried to “talk[] out” the areas in dispute instead of “expensively brief[ing them] through motion papers.” As a result, the court found that an additional 3.5 percent overall reduction was appropriate, in addition to the 20 percent reduction already proposed by Jochimsen’s counsel to account for “the unnecessary time that was incurred in prosecuting the action through its conclusion.” In sum, the court found a 23.5 percent reduction (from the original request for $406,821.25), and a final attorneys’ fees award of $311,218.26, was “reasonable because the case was prosecuted skillfully, against a vigorous and effective defense and on a contingency basis.”
Contrary to the County’s assertion, the order does not reflect the trial court specifically factored the skill and reputation of Jochimsen’s counsel into its decision to reduce the overall award by 23.5 percent, or that this reduction was made because of the contingent nature of Jochimsen’s fee arrangement. The court did not rely on duplicative factors to justify the hourly rates or to determine the overall reasonableness of the award. No multiplier was requested or awarded here. Accordingly, the cases upon which the County relies, which involved situations in which the same factors here used to justify the lodestar and a multiplier are inapplicable. (See Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 822; Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 18.)
The remaining cases cited by the County stand only for the unremarkable proposition that a trial court may not use the same factors to justify multiple adjustments. (See Cabrales, supra, 864 F.2d at p. 1465; Morales, supra, 96 F.3d at p. 364, fn. 8; Cunningham, supra, 879 F.2d at p. 487.)
b. Limited success
The County argues the fee award was excessive because Jochimsen “only received 10% of the damages he was seeking and... the fees must be substantially reduced based on limited success.” This assertion is both factually and legally incorrect.
Factually the assertion is wrong for two reasons. First, the County is unable to point us to any evidence that Jochimsen “sought” a specific recovery. His complaint does not specify an amount of damages, nor is there any evidence Jochimsen requested a specific award at trial. Rather, according to counsel, Jochimsen said “he would be happy with whatever amount of damages the jury awarded because the importance of this case was not about money; it was about accountability.” Second, as noted by Jochimsen’s counsel and the court, Jochimsen’s pretrial settlement offer of $350,000 did not relate solely to damages but also included a claim for costs and attorney fees.
We also disagree with the County’s legal assertion that Jochimsen achieved “limited success.” First, to the extent the County argues Jochimsen’s attorney fees must be proportional to the amount of damages he was awarded, that argument was long ago rejected in Rivera. There the Supreme Court held that such a rule of proportionality was “totally inconsistent with Congress’ purpose in enacting [section] 1988. Congress recognized that private-sector fee arrangements were inadequate to ensure sufficiently vigorous enforcement of civil rights” (Rivera, supra, 477 U.S. 561 at p. 578), because “damages awards do not reflect fully the public benefit advanced by civil rights litigation” (id at p. 575), and “individuals with meritorious civil rights claims but relatively small potential damages” typically “cannot afford to purchase legal services at the rates set by the private market.” (Id. at pp. 576, 578.) For these reasons, “Congress did not intend for fees in civil rights cases... to depend on obtaining substantial monetary relief.” (Id. at p. 575.)
The rule against proportionality is particularly acute in civil rights cases because damage awards are often small while the time commitment required by counsel may be great, as was the case here. The mere availability of attorney fees would not be a sufficient incentive to attract competent counsel if proportionality were the guiding principle, particularly where counsel must devote considerable time to the matter to respond to vigorous litigation tactics employed by the defense. (See Kassim v. City of Schenectady (2d. Cir. 2005) 415 F.3d 246, 252 [often an attorney must “react to forces beyond the attorney’s control, particularly the conduct of opposing counsel and the court” and, in such cases, the time “required to litigate even a simple matter can expand enormously”].) This concern was borne out here. In making its award, the trial court expressly noted that the “seemingly excessive hours” spent by Jochimsen’s counsel prosecuting this action were, in part, necessitated by the “vigorous, ” “determined and skilled defense presented by the County.”
The County argues that, even if a strict rule of proportionality between damages recovered and fees awarded is improper, the trial court must still account for Jochimsen’s limited success in determining reasonable attorney fees. In McCown v. City of Fontana (9th Cir. 2009) 565 F.3d 1097, on which the County relies, the plaintiff made a $251,000 settlement demand early in the case, [of which $75,000 was in damages]. He ultimately settled prior to trial for $20,000 on the only one of nine claims that survived summary judgment. The trial court found the plaintiff’s “victory clearly fell far short of his goal, ’ and adjusted the attorney fees award downward. (Id. at pp. 1104–1105.) Similarly, in Romberg v. Nichols (9th Cir. 1995) 48 F.3d 453 455, plaintiffs sued for $2 million, but later requested only $1 in damages. The court found the plaintiffs had not been successful, recovered only nominal damages due to their failure to prove an essential element of their claim and, as a result were entitled to no fee award at all. (Id. at p. 455.) Here, in contrast, following a lengthy jury trial, Jochimsen prevailed completely on his sole claim against Hernandez for violation of section 1983. Nothing in the law of section 1988 mandates “that attorney fees bear a percentage relationship to the ultimate recovery of damages in a civil rights case.” (Harman v. City and County of San Francisco (2007)158 Cal.App.4th 407, 419.) The trial court determined no further reduction in attorney fees beyond the 20 percent suggested by Jochimsen’s counsel (and an additional 3.5 percent for unnecessary time spent on the fee motion). That decision was not an abuse of discretion.
c. Blanket policy
The County’s final challenge to the fee award lies in its claim that the court abused its discretion by basing the award on a blanket policy that any excessive force case in which a plaintiff succeeds confers an important public benefit.
The County’s contention is predicated on the faulty premise, discussed above, that Jochimsen achieved only limited success. If a prevailing plaintiff obtains only “limited success on his pleaded claims, ” the court may consider the “public benefit” from the litigation in determining the amount of fees to award. (McCown, supra, 565 F.3d at p. 1103 [“attorneys’ fees awarded under [section] 1988 must be adjusted downward where the plaintiff has obtained limited success on his pleaded claims, and the result does not confer a meaningful public benefit”].) But, as discussed above, this rule does not apply here because Jochimsen achieved complete victory.
The County’s reliance on Choate v. County of Orange (2000) 86 Cal.App.4th 312 is misplaced. The court in Choate considered the public benefit argument because it found the plaintiff’s recovery was de minimus and unimportant in light of the fact that he initially sued multiple defendants on multiple claims, and the “exceedingly modest verdict created no new rule of liability, broke no ground, and sent no message.” (Id. at pp. 325–326.) Here, in contrast, Jochimsen achieved complete success on his sole claim and the court did not find his recovery insignificant. We agree with Jochimsen that the trial court was best positioned to determine the degree of success achieved in this case.
Moreover, the court did not abuse its discretion to find this case performed an important public service. Hernandez engaged in an act of unjustified police brutality and then he and the County denied the occurrence. The jury’s verdict sent a message to the County that it should have investigated this case properly and taken disciplinary action against its errant employee. Whether the County chooses to ignore this message is not the issue. (See Morales, supra, 96 F.3d at pp. 364–365 [even a small monetary verdict serves a public purpose by deterring officers from engaging in similar acts and protecting others from suffering similar fates]; Guy v. City of San Diego (9th Cir. 2010) 608 F.3d 582, 589–590 [even a nominal damages award of $1 in an excessive force case serves an important public purpose and police departments should take a closer look at their practices].) The law does not require that a successful civil rights plaintiff prove that his or her case actually has deterrent effect on an officer or his employer in order to obtain a fee award. The civil rights laws assume such compliance, and a lone plaintiff in an individual action lacks the ability to discover how the public agency actually responds to this verdict. To require that Jochimsen prove actual deterrence would require that the County allow Jochimsen to conduct postjudgment discovery or open up a new litigation; neither is required.
In any event, that trial court’s comments regarding a public benefit were aimed directly at the facts in this case, and do not reflect the existence or implementation of a blanket policy. The court appropriately rejected the County’s assertion that the attorney fees had to be proportional to the jury’s damages award. (Rivera, supra, 477 U.S. at p. 575.) In doing so, the court observed that the benefits gained from successful civil rights cases such as this one result not solely or even primarily from the amount of damages awarded, but from the fact that “[e]very excessive force case in which a plaintiff prevails encourages better supervision within our police agencies and thus reinforces the constitutional protections to which citizens are entitled.”
DISPOSITION
The judgment is affirmed. Jochimsen is awarded costs on appeal.
We concur: MALLANO, P. J., ROTHSCHILD, J.