Opinion
H034169
08-31-2011
MICHAEL SCHMIDLIN, Plaintiff and Appellant, v. CITY OF PALO ALTO et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CV 794564)
Plaintiff Michael Schmidlin appeals from an order reducing by over 70 percent his request for attorney fees for successful prosecution of an action under title 42, United States Code, section 1983 (§ 1983). On a previous appeal we reversed a similar order for failure to comply with the "lodestar method" for fee determination required under the cases. On remand the court accepted plaintiff's proposed lodestar figure as a starting point, but applied across-the-board reductions ranging from 60 to 80 percent. Plaintiff seeks a reversal or, in the alternative, an appellate modification, in support of which he invokes our power to make findings on appeal. We agree with plaintiff that the trial court's draconian across-the-board reductions cannot be sustained on the rationales stated by the court. Tempted as we are to put an end to this wasteful litigation by making our own findings, however, we do not find the case appropriate for such an approach and must therefore once again reverse the order awarding fees.
B ACKGROUND
Most of the relevant background of this case is described in Schmidlin v. City of Palo Alto (2008) 157 Cal.App.4th 728 (Schmidlin I), and Schmidlin v. City of Palo Alto (Dec. 4, 2007, H027685) [nonpub. opn.] (Schmidlin II). Suffice it here to say that on March 29, 1997, defendant was forcibly arrested by Palo Alto police officers. He was thereafter charged with a number of misdemeanors. A jury trial produced mixed results, and in December 1999, on the eve of a retrial, the prosecutor dismissed the case.
Defendant brought this action almost a year later, charging officers with liability for detaining and then arresting him without probable cause; using excessive force in the arrest and afterwards; and promulgating false reports. After defendants brought an unsuccessful motion for summary judgment, the matter was tried before a jury, which found in plaintiff's favor on causes of action for battery and using excessive force in violation of his constitutional rights. The jury fixed plaintiff's damages on these counts at $24,000. Other causes of action were resolved favorably to the defendants, either by the jury or the court. Plaintiff moved for attorney fees under title 42, United States Code, section 1988 (§ 1988), and Civil Code section 51.2, in the amount of $557,962. The trial court granted the request for fees, but only in the amount of $75,000.
Defendants appealed, plaintiff cross-appealed, and we affirmed the judgment in its entirety. (Schmidlin I, supra, 157 Cal.App.4th 728.) We also rejected defendants' separate appeal from the fee award. On plaintiff's cross-appeal from that order, however, we reversed it for failure to conform to the "lodestar" methodology mandated by precedent. (Schmidlin II, supra, H027685.) Defendants filed petitions for review in both cases and asked the Supreme Court to order Schmidlin I not published. The Supreme Court denied review and the request for depublication. (Supreme Ct. Mins., Mar. 12, 2008, S159954, denying review and depublication [merits appeal]; Supreme Ct. Mins., Mar. 12, 2008, S159956, review denied [fee appeal].)
On remand the original trial judge was unavailable, so matters proceeded before a different judge. On June 24, 2008, plaintiff filed a new motion asking the court to award fees and costs in the sum of $1,276,106.50. This figure, which already represented voluntary deductions from the total time logged, underwent a series of voluntary downward revisions. Finally, after a hearing on the motion, counsel filed his final request, as follows:
+---------------------------+ ¦Criminal Matter: ¦$171,660¦ +------------------+--------¦ ¦Civil Matter: ¦$432,017¦ +------------------+--------¦ ¦Appellate Matter: ¦$392,713¦ +------------------+--------¦ ¦ ¦996,390 ¦ +---------------------------+
Counsel also requested various costs, including some that had already been allowed. In addition, he asked the trial court to "specify the date on which post-judgment interest will run on the fee award," asserting that it should run from the original judgment for the trial court fees and from the date of the appellate decision for the appellate fees. At the same time, he urged the court to apply "current market rates" for legal services "to previous work as a means of compensation for delay in payment and risk of non-payment."
Defendants assailed the fee claim as grossly unreasonable. Drawing heavily from the trial court's first order awarding fees—which we had reversed—defendants belittled the result obtained by plaintiff in the civil cases as "paltry" and "minimal." They also sought to minimize counsel's efforts in the criminal case, describing his work as "relatively commonplace in nature," and suggesting that he achieved less than a favorable outcome because the jury initially convicted plaintiff on one count and hung on others, and he remained in jeopardy on those charges until the prosecutor "fortuitously" dismissed them. Defendants likewise disparaged plaintiffs efforts on appeal, stating that he "was unsuccessful on every one of the three arguments he himself raised in his own appeal," while demeaning his success on defendants' main appeal, and ignoring his complete success on defendant's appeal, and his own cross-appeal, from the attorney fee order.
In ruling on the fee request the trial court disregarded the figures ultimately submitted by plaintiff, instead using as its starting point the figures contained in the moving papers. Deriving a "lodestone" from those figures, the court applied an across-the-board reduction to each of the three broad categories of activity claimed by counsel: 80 percent for work defending plaintiff in the criminal matter, 80 percent for prosecuting the civil matter in the trial court, and 60 percent for appellate representation in the civil matter. This yielded sums of $62,284.00, $116,180.10, and $178,428.00, for an aggregate award of $356,892.10.
This is somewhat puzzling since the court had granted plaintiff leave to file the declaration containing the amended figures, and had puts its imprimatur on a stipulation allowing defendants an opportunity to address those figures. Defendants did not suggest that the court should or could ignore the amended figures, arguing only that it should discount them as "unreliable," and that the accompanying spreadsheets were "inadmissible, or, at best, entitled to little or no weight."
Plaintiff filed this timely appeal.
I. Attorney Fees
A. Governing Law; Standard of Review
Section 1988, subdivision (b), provides in pertinent part, "In any action or proceeding to enforce a provision of section[] . . . 1983 . . . , 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 . . . ." In Maine v. Thiboutot (1980) 448 U.S. 1, the Supreme Court held that this entitlement to fees furnished "part of the § 1983 remedy whether the action is brought in federal or state court." (Id. at p. 11, fn. omitted.) Because the entitlement arises under federal law, we are obliged in determining its scope to follow the decisions of the United States Supreme Court, and should view the decisions of the lower federal courts as persuasive authority. (See Board of Admin. v. Wilson (1997) 57 Cal.App.4th 967, 974 ["we follow the federal standard for determining section 1988 issues"]; Crawford County v. Masel (2000) 617 N.W.2d 188, 190, fn. 4 ["because the award of attorney's fees in this matter is pursuant to a federal statute, we look to federal caselaw for the standards governing this type of award"]; County Executive of Prince George's County v. Doe (1984) 479 A.2d 352, 358 [300 Md. 445, 456] [since the fee provision is part of the federal remedy, "it follows that the standards under § 1988 for determining when the fee should be awarded are likewise part of the § 1983 remedy"]; Bach v. County of Butte (1983) 147 Cal.App.3d 554, 563 [in absence of Supreme Court authority, lower federal court decisions furnish state courts with "the only available guidance" concerning sufficiency of pleading of 1983 cause of action].)
"Awards of attorney's fees are generally reviewed for an abuse of discretion. [Citation.] However, we only arrive at discretionary review if we are satisfied that the correct legal standard was applied and that none of the district court's findings of fact were clearly erroneous. [Citation.] If the parties contend the district court made a legal error in determining the fee award, then de novo review is required. [Citation.] All factual findings are reviewed for clear error. [Citation.]" (Thomas v. City of Tacoma (9th Cir. 2005) 410 F.3d 644, 647; see Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 1308 (Harman).)
Federal law also requires that, "[t]o facilitate the review of judicial discretion," a court ruling on a fee request under section 1988 must " 'provide a concise but clear explanation of its reasons for the fee award.' " (Harman, supra, 136 Cal.App.4th 4th at p. 1308, quoting Hensley v. Eckerhart (1983) 461 U.S. 424, 437.) This requirement has been followed in California courts on the rationale that "in reviewing a federal remedy, it is reasonable to insist on a record adequate to allow a meaningful review of federal standards governing the remedy." (Harman, supra, at p. 1308.)
B. Lodestar Methodology
The federal cases direct that the amount of fees to be recovered under section 1988 is to be determined by what has been called the "lodestar adjustment" method. (Schwartz & Kirklin, Section 1983 Litigation: Statutory Attorney's Fees (4th ed. 2011), § 1.05, pp. 1-38 et seq. (Statutory Attorney Fees).) Paradigmatically this approach requires the court to (1) determine the number of hours reasonably spent in vindicating the plaintiff's federal rights; (2) determine a reasonable hourly rate, based primarily on the market for comparable legal services; (3) multiply these figures to produce a "lodestar" amount, which is presumed to be the reasonable fee; and (4) if the presumption is overcome, adjust the lodestar upward or downward to account for any additional relevant considerations. (Ibid.)
An alternative model was suggested by Johnson v. Georgia Highway Express, Inc. (5th Cir. 1974) 488 F.2d 714, 717-719, which permitted the trial court to arrive at a reasonable attorney fee simply by considering a number of factors, of which the court listed 12. But while that case is mentioned in the legislative history of section 1988 (see Statutory Attorney Fees, supra, § 1.05, p. 1-37), federal courts found its "unquantified" approach insufficient to the task because, "[a]s observed by one court, '[s]imply to articulate those twelve factors . . . does not itself conjure up a reasonable dollar figure in the mind of a district court judge. A formula is necessary to translate the relevant factors into terms of dollars and cents.' " (Statutory Attorney Fees, supra, § 1.05, p. 1-38, quoting Copeland v. Marshall (D.C.Cir. 1980) 641 F.2d 880, 890 (en banc); citing fn. omitted.)
The Supreme Court ultimately agreed with this view. In Hensley v. Eckerhart (1983) 461 U.S. 424, 433 (Hensley),the court declared, "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. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services." (Id. at p. 433.) After discussing some considerations bearing on the determination of these two variables, however, the court went on to authorize further adjustments to the resulting figure to reflect other considerations: "The product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward . . . ." (Id. at p. 434.) The court mentioned two of these—unsuccessful claims not related to the successful one, and the "level of success" achieved by the plaintiff. (Ibid.) It acknowledged that other factors might be considered, citing Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 714, 717-719, but noted that "many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate." (Hensley, supra, 461 U.S. at p. 434, fn. 9.)
Later cases have emphasized the predominance of the lodestar calculation in setting attorney fees under section 1988 and equivalent statutes. (See City of Burlington v. Dague (1992) 505 U.S. 557, 562 (City of Burlington) [lodestar is, "as its name suggests, . . . the guiding light of our fee-shifting jurisprudence"]; Blanchard v. Bergeron (1989) 489 U.S. 87, 94 (Blanchard)[lodestar is "the centerpiece of attorney's fee awards"].) Indeed the court has declared a " 'strong presumption' that the lodestar represents the 'reasonable' fee . . . ." (City of Burlington, supra, 505 U.S. at p. 562, quoting Pennsylvania v. Delaware Valley Citizens' Council for Clean Air (1986) 478 U.S. 546, 565 (Delaware Valley I); see Pennsylvania v. Delaware Valley Citizens' Council for Clean Air (1987) 483 U.S. 711, 728 (Delaware Valley II) ["payment for the time and effort involved—the lodestar—is presumed to be the reasonable fee authorized by the statute"].) Consistent with this view, the court has rejected most attempts to allow more or less than the properly determined lodestar value. (See Burlington, supra, 505 U.S. 557[rejecting enhancement for risk of loss where case taken on contingent fee]; Delaware Valley II, supra, 483 U.S. 711 [same, plurality opinion]; Perdue v. Kenny A. ex rel. Winn (2010) __ U.S. __ [130 S.Ct. 1662, 176 L.Ed.2d 494] [rejecting enhancement based on what trial court viewed as exceptional performance and result]; Blanchard, supra, 489 U.S. 87 [rejecting limitation to amount payable under contingent fee agreement]; City of Riverside v. Rivera (1986) 477 U.S. 561 [rejecting limitation to amount of damages recovered]; but see Farrar v. Hobby (1992) 506 U.S. 103 [plaintiff recovering $1 nominal damages on $17 million claim was prevailing party, but disallowance of fee request affirmed as award of reasonable sum, i.e., zero].)
Although some of these cases arise under other federal fee-shifting statutes, federal courts treat these statutes as materially similar such that "case law construing what is a 'reasonable' fee applies uniformly to all of them." (City of Burlington, supra, 505 U.S. at p. 562; see Delaware Valley II, supra, 483 U.S. 711, 713, fn. 1, citing Delaware Valley I, supra, 478 U.S. 546 [in applying fee statute under Clean Air Act, "the courts should follow the principles and case law governing the award of such fees under 42 U.S.C. § 1988"].)
C. Criminal Case
As we noted in the previous appeal, a successful defense of the criminal charges against plaintiff was a necessary predicate to his maintenance of a 1983 action. (Schmidlin II, supra, H027685 [pp. 2-6].) The fees reasonably incurred in securing that result were therefore recoverable on his motion under section 1988 in this matter. (Schmidlin II, supra, H027685 [pp. 2-6].) According to his amended summary of hours, plaintiff's counsel recorded a total of 1557.1 hours in the criminal matter. He ultimately deducted 698.8 hours from his claim—about 45 percent of the total—leaving 858.3 hours. At $200 an hour—counsel's requested rate for the criminal work—this yielded a claim of $171,660.
The trial court did not acknowledge this final voluntary deduction. (See fn. 1, ante.) The last adjustment acknowledged by the court was the one in plaintiff's reply papers, where counsel asserted a claim for the criminal case of $174,395.00. At $200 an hour, that sum represents 871.975 hours.
The trial court awarded $62,284.00, which is somewhat more than a third of the requested sum. The court apparently arrived at this figure by multiplying the adjusted total hours recorded by counsel (1557.1), multiplying it by the requested $200 rate, and reducing the resulting "lodestar"—$311,420.00—by 80 percent. The court explained this reduction as follows: "[T]he court agrees with Defendant that the number of hours expended by Mr. Martel in this straightforward criminal defense matter was unreasonable, and Mr. Martel's 20% unexplained deduction to the lodestar is insufficient to account for this, especially since Plaintiff suggests a further reduction of 30%, and Plaintiff's expert, Daniel Barton, suggests a reduction of as much as 33% for unnecessary work. ([Record citation omitted.]) Defendant suggests that 20% of the lodestar (or an 80% reduction) would be a reasonable estimate for the amount of effort required for an attorney with experience in misdemeanor trials to handle the entire criminal case. ([Record citation omitted.]) The court agrees. A significant reduction of the lodestar of $311,420.00 is justified to account for the lack of novelty and difficulty of the questions involved in the criminal defense matter."
The actual number of recorded hours was 1,582.4. The number used by the court—1557.1—reflected counsel's very first voluntary reduction of 25.3 hours.
Daniel Barton, a certified criminal law specialist, declared that having "gone through Mr. Martel's bills carefully line-by-line," he "would reduce the bills by 25% to 33%."
The court thus offered four reasons for the reduction: The case was a "straightforward criminal defense matter"; it lacked "novelty and difficulty"; plaintiff and his experts acknowledged that some reduction was in order; and a fee of one-fifth the lodestar would reflect the effort required of an experienced criminal attorney to "handle the entire criminal case."
It may be true that the case presented no novel issues of fact or law, but we find it difficult to understand the court's characterizations of the case as "straightforward" and lacking in "difficulty." Certainly it is reasonable to suppose that misdemeanor cases as a class will generally justify less defense effort than cases involving more serious charges. The relative unimportance of such a case—the comparatively less serious misconduct involved, and the correspondingly lesser penalties—may be expected to place a limit on the time and resources a prosecutor is willing or able to devote to it. When that is so, a correspondingly reduced defense effort may be required to defeat the charges. Further, the reduced stakes may be expected to lower the fee a typical defendant is willing to pay. A defendant may opt to forego an all-out defense, and avoid a potentially ruinous fee, when the worst outcome he faces is a relatively brief local incarceration.
These intuitive generalities, however, could not be uncritically applied here. Both parties presumably recognized that the criminal prosecution was a precursor—in a sense a preliminary stage—to a civil suit. For the defendant (plaintiff here), victory was an absolute precondition of suit. If he lost he would not only be likely to do jail time, but would forego all chance to vindicate the federal rights he believed—correctly, as the jury ultimately found— defendants had violated. For the prosecution, a victory would nip such a lawsuit in the bud, avoiding expense, inconvenience, and potential embarrassment for the city and its officers. The intuitive generality that such a case is "straightforward," or in defendants' words "commonplace," thus seems wholly misplaced.
No doubt the trial court could properly conclude that plaintiff's counsel spent more time on the criminal case, perhaps considerably more, than a more experienced criminal attorney would have spent. But the question for the trial court was not the amount of time normally invested by experienced criminal defense attorneys in misdemeanor cases of this type. That figure is a product of numerous factors that have no place here, including what a typical misdemeanor defendant can afford to pay, how willing he or she is to accept the risk of conviction, and the priority given the case by the prosecutor's office. The question here was the amount of time reasonably expended in winning under the particular circumstances of this case. This could not be determined by some intuited rule of thumb about misdemeanor cases. It depended on the particular circumstances, most notably the additional stakes on the table for both sides by virtue of relationship between the criminal charges and an inchoate but readily anticipated civil suit.
Criminal specialist Barton opined that counsel's efforts in the criminal matter were "more typical of preparation by a litigator from a large law firm than a typical criminal defense attorney," but added that "the high level of Mr. Martel's work is the reason he prevailed in the criminal case."
Defendants offered no evidence suggesting that the case could have been successfully defended with one-fifth the effort invested by plaintiff's counsel. Indeed the only evidence we can find on the subject, other than plaintiff's evidence attesting to the reasonableness of the adjusted totals he asserted, is the statement in plaintiff's 2003 declaration that the first attorney he consulted told him that "if I was unwilling to plead guilty to any charge, it would cost me more than $100,000 in attorney's fees to defend myself—possibly significantly more." Although this statement was hearsay, we can find no objection to it in the record below. Curiously, it was cited by the trial court itself in the first fee order, which nonetheless allowed only $20,000 for the criminal case. The court then seemed to misunderstand the cited statement, which clearly placed a floor, not a ceiling, on the cost of a successful defense. In the absence of some other showing, it strongly suggests, and in conjunction with the rest of the record goes far to confirm, that the $62,284 award now under scrutiny constitutes an abuse of discretion in the absence of some more cogent and apposite explanation than we find in this record.
D. Civil Trial Work
The trial court likewise cut by about four-fifths the attorney time assertedly spent in the civil suit before, during, and after trial. Counsel ultimately reported a total of 1,862.15 hours in the case, from which he proposed to deduct 596.3, leaving 1265.85. Counsel sought three different billing rates for this time: 880.7 hours of his own time at $400,18.05 hours of another experienced attorney's time at $350, and 367.1 associate hours at $200. Based on this figures plaintiff ultimately sought an award of $432,017.00 for the civil trial work. The trial court allowed $116,180.10—about 27 percent of the requested sum—again representing an 80 percent deduction from what the court described as "the total lodestar for the civil action ($580,900.50)." This "lodestar" was the sum requested in plaintiff's moving papers, after an initial wave of voluntary deductions but before the final reduction to $432,017.
The court explained that "the lodestar [had to] be reduced to account for Plaintiff's limited success in the civil action." The court then reasoned that the three claims on which plaintiff succeeded, arising from the defendant officers' excessive use of force, were unrelated to all but three of the claims on which plaintiff did not prevail, which the court described as "false arrest, false imprisonment, misrepresentation, . . . fail[ure] to prevent deprivation of civil rights, fail[ure] to enforce [city] policies, fail[ure] to discharge its statutory duties . . ., and fail[ure] to supervise the offending officers." The court continued, "[N]ine of the claims asserted in the civil action are unrelated [to] Plaintiff's successful claims. The remaining three claims (assault, conspiracy to violate civil rights, and infliction of emotional distress) were related to and intended to provide a remedy for the same course of conduct as in Plaintiff's successful claims. Because it is onerous and impractical for the court to go through Mr. Martel's billing records item-by-item and segregate the work performed on successful claims and related claims from the work performed on unrelated claims, the court will reduce the total lodestar for the civil action ($580,900.50) by 80%."
The court thus attempted to apply what has been called the "two-step approach" articulated in Hensley, supra, 461 U.S. 424, for "determining the effect of the prevailing party's partial success in the litigation on the calculation of a reasonable fee award under § 1988(b)." (Statutory Attorney's Fees, supra, § 6.02, pp. 6-4, 6-5.) "In the first step of the analysis, the [trial] court identifies unsuccessful claims that are wholly unrelated to the successful claims in the litigation, and then excludes from the fee application all of the claimed hours associated with the unsuccessful claims. At the second step, the court determines whether a further reduction in the fee award should be imposed because the plaintiff's success on the remaining interrelated unsuccessful and successful claims was limited." (Id. at p. 6-5) Here the court concluded, in the first step, that only three of the 12 unsuccessful claims were related to the three successful claims; it therefore excluded the remaining nine claims altogether. In the second step, it apparently concluded that plaintiff's failure to prevail on those three claims likewise justified their complete exclusion from the fee recovery. This left three successful claims as against nine unrelated claims and three related-but-excluded claims, a ratio of three to 12, or one-fifth. The court then implicitly reasoned that a pro rata reduction was justified, resulting in the 80 percent across-the-board cut on which the fee award was based.
This analysis is unsustainable for a number of reasons. First, we cannot accept the premise that nine of the claims were unrelated to the three successful claims for these purposes. "[C]laims . . . are deemed 'related' when any one of three following circumstances exists: [¶] 1. The claims involve a common core of facts; [¶] 2. The claims are 'based on related legal theories'; or [¶] 3. Counsel's time is 'devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.' " (Statutory Attorney's Fees, supra, § 6.02, p. 6-6, quoting Hensley, supra, 461 U.S. 424, 435; see Webb v. Sloan (9th Cir. 2003) 330 F.3d 1158, 1169, italics added quoting Schwarz v. Secretary of Health & Human Services (9th Cir.1995) 73 F.3d 895, 902-903 ["the test for relatedness of claims is not precise," but " 'the focus is to be on whether the unsuccessful and successful claims arose out of the same "course of conduct." ' "].)
Defendants' argument on this point, which the court apparently found persuasive, was conspicuously unsupported by authority of any kind. Defendants offered only the naked assertion that the other claims were "conceptually and factually distinct and severable from the excessive force claim," followed by two appeals to the court's imagination, i.e., "[i]t takes little imagination . . . to envision a case where a suspect was falsely arrested and imprisoned without the use of excessive force," and "cases certainly occur where excessive force is employed but no arrest is made, no conspiracy occurs, no police policies are violated." This is followed by a reiteration of the meaningless irrelevancy that the claims were "severable." It is little wonder that defendants marshaled no authority for this approach, which is wholly at odds with all of the relevant precedent we have examined.
On appeal, defendants make no attempt to defend the proposition that the claims were unrelated, even though the arguments in plaintiff's opening brief include that the court committed "legal error" by concluding that the "false arrest and false reports claims were unrelated to [plaintiff's] excessive force/battery claims."
Here, the false arrest and false imprisonment claims were obviously related to the claim that defendants used excessive force in arresting plaintiff. All of these claims arose directly from a single incident in which plaintiff was detained, arrested, and taken into custody by defendant officers. Though the different theories focused on different aspects of the incident—notably the presence or absence of probable cause, vis à vis the nature of the force applied to plaintiff's person—they unquestionably arose from the same series of events and course of conduct, and shared a "common core of facts." That is all that was required to make them "related" under the first step of the Hensley analysis. (See Webb v. Sloan, supra, 330 F.3d at p. 1168, italics in original, citations omitted ["related claims involve a common core of facts or are based on related legal theories . . . . we have not required commonality of both facts and law before concluding that unsuccessful and successful claims are related"].)
Plaintiff contends persuasively that the false reports claims were also related to the excessive force claims because the former rested on the question whether officers "told the truth on these matters in their police reports." And insofar as the claims against the city—failure to prevent deprivation of civil rights, failure to enforce city policies, failure to discharge the city's statutory duties, and failure to supervise the offending officers— rested on a failure to prevent the other wrongs of which plaintiff claimed, they too would seem to be related. To be sure, they required additional proof concerning the defendant city's acts and omissions, but none of them could have arisen, or could have sustained a judgment, without underlying officer misconduct on that occasion. They thus seem to have involved both a common core of facts and, to the extent they relied on the officers' use of excessive force, related legal theories. (See Webb v. Sloan, supra, 330 F.3d at p. 1169 [claims all "arose out of a common core of facts and a common course of conduct: Plaintiff's arrest, detention, and prosecution."].)
The trial court's mistaken belief that nine of the 15 claims were unrelated to the three successful claims wholly discredits any suggestion that the 80 percent deduction could be justified in significant part under the first step of the Hensley analysis. However the court also invoked the second step in the Hensley analysis, under which—having identified unrelated claims that should be segregated from the successful ones—"the court determines whether a further reduction in the fee award should be imposed because the plaintiff's success on the remaining interrelated unsuccessful and successful claims was limited." (Statutory Attorney's Fees, supra, § 6.02, p. 6-5.) It is in this phase of the analysis that "[t]he bulk of discretion retained by the [trial] court lies." (Thomas v. City of Tacoma, supra, 410 F.3d 644, 649.) However, we cannot conclude that the court's discretion was permissibly exercised here.
The real heart of the trial court's rationale for reducing the award for the civil trial work is that "the lodestar [had to] be reduced to account for Plaintiff's limited success in the civil action." Insofar as the court used "limited success" to refer to the proportion of successful to unsuccessful claims, its reasoning cannot be sustained. But under Hensley, supra, 461 U.S. 424, even when all claims are deemed to be interrelated, the trial court should "focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." (Id. at p. 435.) "If . . . a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith . . . . [T]he most critical factor is the degree of success obtained." (Id. at p. 436.)
The court's most concrete remarks on the subject seemed to concern a plaintiff's success on some claims while failing to succeed on others. The court also spoke of limited relief "in comparison to the scope of the litigation as a whole" (Hensley, supra, 461 U.S. at p. 440) and of the reasonableness of the time spent "in relation to the success achieved" (id. at p. 436). It held that the trial court there had not erred by "refus[ing] to apportion the fee award mechanically on the basis of respondents' success or failure on particular issues." (Id. at p. 438, fn. omitted.) However, the award was reversed on the ground that the court "did not properly consider the relationship between the extent of success and the amount of the fee award. The court's finding that 'the [significant] extent of the relief clearly justifies the award of a reasonable attorney's fee' does not answer the question of what is 'reasonable' in light of that level of success. We emphasize that the inquiry does not end with a finding that the plaintiff obtained significant relief. A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole." (Id. at pp. 438-440, fns. omitted; see id. at p. 440 [court "should award only that amount of fees that is reasonable in relation to the results obtained"].)
The references by the trial court here to plaintiff's "limited success" may reflect a belief that the size of plaintiff's damage award, in and of itself, placed a limit on the fee plaintiff could be allowed to recover. Certainly the judge who presided over the first fee application entertained such a belief, referring repeatedly to the "modest" size of plaintiff's recovery. Defendants have echoed that sentiment with drumbeat regularity. Insofar as the order now under scrutiny rests on a similar conception, however, we do not believe it can be sustained consistently with the principles and policy reflected in the section 1988 and cases applying it.
The court below expressed the view that the first judge's explanation of his order on fees was "quite, quite well thought out," suggesting only that it needed to be "adjusted" to reflect the defendants' "stonewalling."
The court in Hensley was addressing the concept of partial success in the context of "complex civil rights litigation involving numerous challenges to institutional practices or conditions," in which the plaintiff had "succeed[ed] in identifying some unlawful practices or conditions," but failed to establish other challenges to the institution's conduct. (Hensley, supra, 461 U.S. at p. 436, italics added.) Application of that concept in suits like the present one, seeking damages on behalf of an individual for violation of constitutional rights, has proven difficult. The Supreme Court has recognized—as implicitly has Congress—that meritorious actions under section 1983 confer a public benefit by constraining the abuse of state power. (Blanchard, supra, (1989) 489 U.S. 87, 96 ["Congress has elected to encourage meritorious civil rights claims because of the benefits of such litigation for the named plaintiff and for society at large"].) The rights thus protected are "important" but "cannot be valued solely in monetary terms." (Riverside v. Rivera, supra, 477 U.S. 561, 574.) In enacting section 1988, Congress intended to facilitate the vindication of those rights through the mechanism of private litigation when market forces might fail to do so. (See Mendez v. County of San Bernardino (9th Cir. 2008) 540 F.3d 1109, 1126, quoting City of Riverside v. Rivera, supra, 477 U.S. 561, 576 ["Congress' intent in enacting § 1988 was to attract competent counsel to prosecute civil rights cases, where 'victims ordinarily cannot afford to purchase legal services at the rates set by the private market.' "]; Hensley, supra, 461 U.S. at p. 429, quoting H.R.Rep. No. 94-1558, p. 1 (1976) ["The purpose of § 1988 is to ensure 'effective access to the judicial process' for persons with civil rights grievances."].) Congress intended that " '[i]n computing the fee, counsel for prevailing parties should be paid, as is traditional with attorneys compensated by a fee-paying client, "for all time reasonably expended on a matter." ' " (Blanchard, supra, 489 U.S. at p. 91, quoting Sen. Rep. No. 94-1011, p. 6 (1976), reprinted in 1976 U.S.Code Cong. & Admin.News, p. 5913.) Moreover, "Congress 'intended that the amount of fees awarded . . . be governed by the same standards which prevail in other types of equally complex Federal litigation . . . and not be reduced because the rights involved may be non-pecuniary in nature.' S.Rep. No. 94-1011, at 6, U.S.Code Cong. & Admin.News 1976, p. 5913." (Blanchard, supra, 489 U.S. at p. 95.)
Market forces alone will rarely secure adequate legal representation for plaintiffs with claims of the type involved here. The explanation for this begins with the fact that in the absence of a fee-shifting award, an attorney's fee will almost always be paid either directly by the client based on the time devoted to the matter, or as a percentage of the recovery, if any, ultimately obtained. In both cases the effort necessary to obtain a favorable result will tend to be constrained by the anticipated size of the recovery. This is obviously true in the case of a fee to be paid directly out of the judgment. If the anticipated recovery is $100,000, and the attorney's "cut" is 40 percent, the anticipated fee will be $40,000. At $400 an hour—the rate sought and approved here—the judgment will finance 100 hours of work. To the extent that it requires more work, the attorney's effective compensation falls. At some point it falls too low to adequately compensate him. Indeed, at some point it may fall too low to cover his costs. Long before that, presumably, the investment of effort will have passed the point where the attorney would voluntarily undertake it for the compensation to be received. If this calculus can be accurately foreseen at the time of the client interview—and of course it is in the interest of every competent attorney to develop such prognosticative skills—the attorney will decline to take the case.
A similar calculus will tend to limit the effort available to prosecute the case even if the client is willing, and can afford, to pay on an hourly basis. If the attorney accurately predicts the cost of the case, the client will only pursue it if willing to absorb a financial loss. If the attorney inaccurately forecasts the costs, or fails to make a forecast, the client's willingness to pay will tend to weaken as the attorney's fee devours, and then exceeds, any damage award the client may hope to secure. The net result is that most individual damage claims simply will not be pursued, in the absence of a fee-shifting rule or statute, unless the anticipated recovery is reasonably likely to at least defray, if not exceed, the cost of the attorney's efforts in securing it.
At the same time, it is readily apparent that the judgment on many claims like plaintiff's will not be large enough to finance a successful prosecution of the claim. Damages in these cases are generally governed by common-law tort principles. (See Smith v. Wade (1983) 461 U.S. 30, 34.) It is central to those principles that the only proper function of most damage awards is to compensate for physical, emotional, or economic injuries caused by the defendant's conduct. (Id. at p. 52, fn. omitted, italics added ["once liability is found, the jury is required to award compensatory damages in an amount appropriate to compensate the plaintiff for his loss"].) Where the plaintiff is not seriously injured—as plaintiff was not here—a large compensatory award will be unobtainable; any verdict will necessarily be modest in size.
An exception to this generalization can arise where the case supports a substantial award of punitive damages. But punitive damages are themselves constrained by several legal principles. First, "they are never awarded as of right, no matter how egregious the defendant's conduct." (Smith v. Wade, supra, 461 U.S. at p. 52.) Second, due process limits their amount in proportion to the compensatory damages recovered. (See State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 425 ["few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process"].) Third, "a municipality is immune from punitive damages under 42 U.S.C. § 1983." (Newport v. Fact Concerts (1981) 453 U.S. 247, 271.) As a result, punitive damages can only be assessed against individual public servants. This further inhibits such awards, first because the modest financial means of the typical individual defendant will tend to reduce the size of a permissible award. (See Id. at p. 269 [punitive award is available "against the offending official, based on his personal financial resources"].) And the financial and other effects of such a judgment on a real flesh-and-blood person, as distinct from a faceless governmental entity, may inhibit the jury from making a sizable award—or any award. Attempts to collect a punitive award from an individual may also encounter obstacles not seen with public entity judgment debtors.
If the "modest" size of a damage award placed an absolute ceiling on the recoverable attorney fee, two adverse results would follow. First, there would be a class of cases in which the effort necessary to secure a remedy could only be adequately compensated if the plaintiff were willing and able to vindicate his rights at a significant financial loss to himself. Those without the means to incur such a loss would face an insurmountable wall. Second, defendants in such cases would be encouraged to enlarge the class of plaintiffs turned away at counsel's door by litigating all such cases under the red flag of no quarter, making it as expensive as possible for plaintiffs in such cases to prevail.
As noted below, the trial court's remarks suggest a perception by it that defendants had adopted just such a strategy.
Such a regime would disserve the objective of section 1988. "Even a modest award of damages in an excessive force case . . . confers an 'overall benefit to society.' " (See Anderson v. City of New York (S.D.N.Y.2001) 132 F.Supp.2d 239, 242, quoting Milwe v. Cavuoto (2d Cir.1981) 653 F.2d 80, 84 [].) "[T]he level of success achieved by a civil rights plaintiff should be measured by more than the amount of damages awarded." (Morales v. City of San Rafael (9th Cir. 1996) 96 F.3d 359, 364, fn 11.) "[T]he assessment of the 'results obtained' [plaintiff] should not be limited to the damages award that person received but also requires consideration of the nonmonetary benefits the plaintiff personally gains from the lawsuit. Moreover, . . . the benefit received by the client is only 'an important measure of "extent of success," ' and must be considered along with 'the benefits [conferred] on others throughout society by winning a civil rights claim.' " (Id. at p. 365, fn. 12, quoting McGinnis v. Kentucky Fried Chicken of California (9th Cir. 1994) 51 F.3d 805, 810.) In other words, even a modest damage award can confer both public and private benefits not reflected in its size. It may go far to restore the dignity the plaintiff feels was taken away through mistreatment by officers of the state. Publicly it furnishes a deterrent—as does a sizable attorney fee—to further similar infringements of the rights of citizens. (See Morales, supra, 96 F.3d at p. 364.)
To hold that the fees plaintiff could recover were categorically limited by the size of the judgment would be to deny him and his attorney any incentive, and indeed to erect a deterrent, to the successful vindication of the federal rights protected by sections 1983 and 1988. We have found no well-reasoned case, and certainly no Supreme Court case, endorsing such an approach. Indeed the only bright-line rule we have found is that where the sole relief obtained is nominal damages reflecting a merely " 'technical' " victory, the judgment will not ordinarily support an award of any attorney fees. (Farrar v. Hobby, supra, 506 U.S. 103, 114-115.)
Plaintiff's victory here cannot be viewed as technical. Contrary to defendant's assertion below—not repeated on appeal—it vindicated a "significant civil right," namely, the right not to be battered by police officers while undergoing arrest. Few things reflect more directly our system of ordered relations between the individual and the state than the prohibition on the application of lawless physical force to the citizenry by public officers. The jury's verdict affirmed our society's commitment to the proposition that the rule of law resides in the gavel, not the nightstick. There is a name for a state whose agents inflict violence on citizens with impunity. The jury's verdict highlighted the demarcation between our society and a police state. That the jury did not find plaintiff's injuries severe enough to sustain a large award of compensatory damages, or defendants' conduct egregious enough to permit an exemplary award, does not render the vindication insubstantial. The jury found injuries that were worse than trivial, and a violation of federal rights that was more than technical.
We recognize that the fee sought seems disproportionate to the recovery obtained, and we do not doubt—indeed, counsel conceded—that a sizable portion of his time was properly deducted. But another sizable portion was necessitated in whole or part by defendants' own decision to treat the matter as a million-dollar case. Thus they removed it to federal court, necessitating a motion by plaintiff to remand it to state court. Counsel reported spending slightly over 100 hours in successfully resisting this stratagem. Defendants also filed an unsuccessful motion for summary judgment, in preparing a response to which plaintiff's counsel spent, by defendants' calculation, over 200 hours. Defendants were entitled to challenge the number of hours counsel spent on these activities, but they cannot deny that they necessitated substantial efforts by counsel that would have been entirely absent from the fee claim but for defendants' own decision to defend the matter with ultimate vigor. They spurned plaintiff's offer, made a few weeks before trial, to settle the entire case for "$50,000 total—including fees and costs." Finally, they refused to pay the modest sums awarded by the jury, and by the trial court on the first fee motion, mounting instead a full-out appellate challenge—also unsuccessful—all the way to the California Supreme Court.
Plaintiff's counsel pointed out various other practices by defendants' trial counsel that tended to impose additional burdens on their opponent, including the recurring failure to provide functionally useful record citations and the frequent failure to specify pages within decisions cited as legal authority.
At the hearing below, the trial court acknowledged defendants' role in inflating the cost of the litigation, stating that both the criminal and civil trial records showed "absolute stonewalling by both the District Attorney's Office and the City of Palo Alto throughout the proceedings which caused Mr. Martel to incur further attorney's fees." The court went on to tell defendants' counsel, "[Y]ou've gone through and put Mr. Martel and Mr. Schmidlin through quite a difficult process, and clearly in the Court's mind he's entitled to a substantial, a substantial award of attorney's fees." Given these remarks the court's wholesale deduction of 80 percent of counsel's original claim is all the more difficult to comprehend.
We cannot sustain the trial court's allowance of $116,180.10 for civil trial work, reflecting as it does a four-fifths reduction from the lodestar posited by the court, and over 73 percent from the fee claim as ultimately adjusted by counsel.
E. Appellate Work
Many of the foregoing observations concerning the allowances for criminal and civil trial work apply with equal or greater force to the court's award for work on appeals from the judgment and the first fee award. Here plaintiff sought a fee, as ultimately adjusted, of $392,713.00. Using a variant on the claim-counting methodology that it had used for the civil trial work, the court applied a 60 percent reduction to the plaintiff's initial fee claim, yielding an award of $178,428.00. This figure represented a reduction of just under 55 percent from the adjusted claim.
Neither a 60 percent reduction nor a 55 percent reduction is justified by the court's stated reasoning or by anything else we find in this record. The court began by asserting that "Both parties appealed the civil judgment." This is a somewhat misleading characterization since, as the court's organizational heading acknowledged, plaintiff did not initiate either appeal but rather filed cross-appeals after defendants appealed both the judgment and the first fee award. Nor was this order of events the result of a race to the courthouse. Plaintiff's counsel declared without contradiction that in both matters he originally decided, in consultation with his client, "not to appeal." In both cases, he believed his client had meritorious arguments but elected to let the matter end with the jury verdict and the original fee order. The trial court apparently accepted these statements as true, stating its own belief that "it was the City of Palo Alto's decision to go forward with the appeal in this matter. And I think that that makes the attorney's fees award in that area, even though it's been somewhat criticized by the declaration as filed, the request for attorney's fees. I think it would make it easier for the Court to order the attorney's fees in that matter because it appears that the City of Palo Alto was being somewhat obstreperous in their handling of the case. [¶] MR. PINSKY: The appeal, your Honor? [¶] THE COURT: Yes. [¶] In other words, $24,000 judgment, the City of Palo Alto rather than paying it decides to appeal it and Mr. Martel was simply responding to that." (Italics added.)
Despite this early recognition of defendants' primary responsibility for all of the activity on appeal, the court began its explanation for the fee award by simply counting the number of contentions raised by each side in the appeal and cross-appeal from the judgment. It counted four contentions by defendants and three by plaintiff. It then stated that each side had failed to prevail on the contentions it raised. This exclusive emphasis on each side's failure overlooks the fact that plaintiff necessarily succeeded on the contentions raised by defendants, i.e., he successfully defended his judgment. Nor is the court's depiction of the fee appeal complete. The court wrote that "[p]laintiff did prevail on his appeal with regard to the award of fees," but failed to acknowledge that he also prevailed on defendants' appeal from the fee award. It overlooked entirely the supplemental briefing filed in those matters, as well as defendants' unsuccessful petitions for review to the Supreme Court.
Even within its four corners we find the court's reasoning impossible to sustain. Its 60 percent deduction suggests that three-fifths of the appellate effort for which counsel initially sought to recover was unreasonably spent by him. But this ratio cannot be arrived at by any method of contention-counting that we can conceive. The court counted seven contentions in the main appeal. Plaintiff prevailed on four of them. That is a success rate of over 57 percent, not 40 percent. Moreover plaintiff was also successful on (1) defendant's challenge to the fee award, (2) plaintiff's challenge to the fee award, and (3) defendant's two petitions to the Supreme Court. This suggests a field of at least eleven points of contest: seven in the merits appeal, two in the fee appeal, and two in the Supreme Court. Plaintiff prevailed on all but three. Plaintiff's 70 percent success rate on appeal has somehow been diminished to a 40 percent success rate in the trial court's calculus. We detect no rationale on which this reduction can be sustained, and we will not sustain it.
The foregoing discussion should not be understood as marking our approval of the contention-counting methodology employed by the court. However that methodology may have been invited to some extent by counsel's approach in his original moving papers, where he said he had excised entirely from the materials presented to the court "all entries relating to issues on appeal on which Plaintiff did not prevail." Although counsel did not originally account for those hours, he later submitted a report showing this "unbillable" time, i.e., 247.8 hours in lead attorney time plus 31.9 hours in associate time, with an aggregate value at the requested rates of $105,500. The trial court was entitled, at least theoretically, to find counsel's documentation on this point inadequate and to make appropriate adjustments. But again its explanation failed to justify the draconian cuts imposed. II. "Postjudgment Interest"
Defendants made no attempt to supply an alternative calculus for the criminal and civil trial work, but with respect to the appellate work they provided a declaration by appellate specialist Russell J. Hanlon, who questioned both the rate requested by plaintiff's counsel and the number of hours charged by him. Mr. Hanlon opined that a reasonable fee would lie at around $200,000, or about 666 hours at $300 per hour. At the rate of $400 an hour, which the court approved, Hanlon's analysis would suggest a fee of about $266,000. The court may have been entitled to award a fee below the estimate of defendants' own expert, but to withstand the scrutiny mandated by federal authorities such a reduction would require a very cogent justification.
Plaintiff contends he is entitled to "postjudgment interest" on attorney fees and costs going back to the time of the original judgment, such that the trial court erred by failing to include such an item in its order allowing fees. If the question were governed by California law, it would apparently be resolved against plaintiff. Under our law, "[a] judgment bears legal interest from the date of its entry in the trial court even though it is still subject to direct attack." (Stockton Theatres, Inc. v. Palermo (1962) 55 Cal.2d 439, 442.) However, "[a] judgment for costs should be governed by the law applicable to judgments generally. Such awards are, in fact, separate and complete judgments in themselves." (Id. at p. 443.) Attorney fees in the present context are generally deemed an item of costs, and were claimed as such by plaintiff. (See Nimmagadda v. Krishnamurthy (1992) 3 Cal.App.4th 1505, 1508 [citing Stockton Theaters in connection with fee award].) It follows that such a fee award, if governed by California law, earns interest only from the date of the award, not the date of the judgment. Further, if the award is reversed on appeal, as this one was, interest will not accrue until a new order is made establishing a right to fees. (See Theatres, Inc. v. Palermo, supra, 55 Cal.2d at pp. 442-443 ["when a judgment is reversed on appeal the new award subsequently entered by the trial court can bear interest only from the date of entry of such new judgment"].)
Plaintiff cites federal authorities for the proposition that "interest on an attorney's fee award runs from the date that entitlement to fees is secured, rather than from the date that the exact quantity of fees is set." Unfortunately, neither party addresses the question whether federal or state law actually governs the allowance of interest on a fee award. However, even the federal cases cited by plaintiff do not support the conclusion that interest on the fee award was due from the date of the judgment. Plaintiff quotes the statement in Finkelstein v. Bergna (N.D.CA 1992) 804 F.Supp. 1235, 1239, quoting Jenkins by Agyei v. Missouri (8th Cir.1991) 931 F.2d 1273, 1276, that " '[i]nterest on an attorney fee award . . . runs from the date of the judgment establishing the right to the award, not the date of the judgment establishing its quantum.' " In Finkelstein, however, the "judgment establishing the right to an award" was not the underlying judgment on the merits but an "initial judgment" by the district court "finding plaintiff entitled to an unspecified amount of fees," and referring the matter to a magistrate judge to determine the amount. (Finkelstein v. Bergna, supra, 804 F.Supp., supra, at p. 1239.) Likewise in Jenkins by Agyei v. Missouri, supra, 931 F.2d at page 1274, interest ran from a preliminary order finding the plaintiff entitled to fees and awarding an interim sum.
These cases do not support plaintiff's argument that interest on the fee award should run from the date of the judgment. At most they would support an argument that interest should run from the date of the first fee award. However plaintiff has made no attempt to demonstrate that the first award "secured" the right to fees. That premise is cast in doubt, at least, by our general reversal of that order on appeal, which set the fee at large. While it seems extremely unlikely that the reversal could have resulted in a complete denial of fees, we cannot conclusively dismiss that possibility for purposes of determining whether the earlier order secured the right to fees for purposes of the federal rules advanced by plaintiff. For these reasons we do not reach the question whether federal law governs the entitlement to such interest. We will obviate the recurrence of this issue on remand, however, by directing that no interest be awarded on attorney fees for any period preceding entry of a new (third) order on fees.
III. Costs Previously Awarded
Plaintiff notes that in the first fee order the trial court awarded plaintiff $21,727.62 in costs. In the order now under review, he contends, the court "should have restated the original award of costs in it's February 24, 2009 Order, but . . . did not do so." Accordingly, he asks us to "direct the trial court to order the City to immediately pay the original cost award, with interest from the date of the original judgment." This argument fails to charge error, fails to marshal authority in support of the claimed error, and fails to request a form of relief this court (or the trial court) has the apparent power to grant. On that basis we reject it.
DISPOSITION
The order granting fees is reversed with directions to recalculate the fee in accordance with the views expressed in this opinion.
Plaintiff urges this court to "use its authority under California Code of Civil Procedure §§ 43 and 909 to direct a judgment for fees and costs in this matter in accordance with Schmidlin's final request of $1,036,742.20." He has filed a separate motion for a factual determination of specified matters by this court. Alternatively he suggests that we remand with directions to assign the matter to a different trial judge under "very strict instructions and conditions." This latter result will necessarily be effected, however, since neither of the judges who made the previous fee orders in this case is still serving on the superior court. As for instructions, we believe this opinion contains sufficient guidance to ensure an adequate award on remand. Findings on appeal would not appear to promise much if any savings in judicial resources, because plaintiffs may be expected to pursue compensation in the trial court for their efforts on this appeal. For these reasons we deny the motion for findings of fact on appeal.
RUSHING, P.J. WE CONCUR:
PREMO, J.
ELIA, J.