Alison Terry v. City of San Diego ( 2014 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                              JUL 25 2014
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ALISON N. TERRY,                                 No. 12-56779
    Plaintiff - Appellant,             D.C. No. 3:06-cv-01459-MMA-
    KSC
    v.
    CITY OF SAN DIEGO,                               MEMORANDUM*
    Defendant - Appellee.
    Appeal from the United States District Court
    for the Southern District of California
    Michael M. Anello, District Judge, Presiding
    Argued and Submitted April 10, 2014
    Pasadena, California
    Before: TASHIMA, N.R. SMITH, and MURGUIA, Circuit Judges.
    Alison Terry appeals the partial grant of her motion for attorneys’ fees,
    which she brought as the prevailing party under 42 U.S.C. § 2000e-5(k) and
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    California Government Code section 12965.1 Reviewing for abuse of discretion,
    Dannenberg v. Valadez, 
    338 F.3d 1070
    , 1073 (9th Cir. 2003), we affirm in part and
    vacate and remand in part.
    Guardian of the purse strings. The district court did not abuse its discretion
    by improperly assuming a role not supported by law. When read in context, the
    district court’s statement that it served as “guardian of the purse strings” is merely
    another way of stating the district court’s role—determining a reasonable fee when
    there has not been an agreed-upon amount. See Moreno v. City of Sacramento, 
    534 F.3d 1106
    , 1111 (9th Cir. 2008) (“[F]ee awards are not negotiated at arm’s length,
    so there is a risk of overcompensation. A district court thus awards only the fee that
    it deems reasonable.”); Horsford v. Bd. of Trs. of Cal. State Univ., 
    33 Cal. Rptr. 3d 644
    , 670-72 (Ct. App. 2005) (discussing process of setting a reasonable fee); 42
    U.S.C. § 2000e-5(k); Cal. Gov’t Code § 12965(b).
    Reducing requested hours. In calculating the lodestar amount, the district
    court did not reduce requested hours for unreasonableness in a manner prescribed
    1
    Although California courts often look for guidance to federal decisions
    construing 42 U.S.C. § 2000e-5(k) to interpret California Government Code
    section 12965(b), federal decisions do not control section 12965(b)’s
    interpretation. Flannery v. Cal. Highway Patrol, 
    71 Cal. Rptr. 2d 632
    , 639 (Ct.
    App. 1998). Thus, we review the district court’s order under the precedent
    interpreting each statute.
    2
    by law. The district court should have (1) “conduct[ed] an hour-by-hour analysis of
    the fee request, and exclud[ed] those hours for which it would be unreasonable to
    compensate”; or (2) made “across-the-board percentage cuts either in the number
    of hours claimed or in the final lodestar figure.”2 Gonzalez v. City of Maywood,
    
    729 F.3d 1196
    , 1203 (9th Cir. 2013) (internal quotation marks omitted); Graciano
    v. Robinson Ford Sales, Inc., 
    50 Cal. Rptr. 3d 273
    , 288 (Ct. App. 2006) (allowing
    elimination of hours or reduction of award). When the district court chooses the
    latter option, it must explain “its reasons for choosing [the] given percentage
    reduction,” Gates v. Deukmejian, 
    987 F.2d 1392
    , 1400 (9th Cir. 1993), unless the
    total cut is “no greater than 10 percent,” 
    Moreno, 534 F.3d at 1112
    ; see also
    
    Gonzalez, 729 F.3d at 1204
    , 1205 n.5 (requiring explanations for a five percent cut
    when the cumulative percentage of cuts exceeded ten percent). The explanation
    requirement applies when a federal court reviews an award of attorneys’ fees under
    California Government Code section 12965(b). See Muniz v. United Parcel Serv.,
    Inc., 
    738 F.3d 214
    , 226-27 (9th Cir. 2013). Here, the district court did not properly
    follow either method: Under the first method, the district court did not identify
    2
    The second option only applies to “massive fee application[s].” 
    Gonzalez, 729 F.3d at 1203
    . We consider Terry’s fee application “massive,” and the parties
    do not argue otherwise.
    3
    which hours were being eliminated. Under the second method, it did not explain its
    reasoning for the particular number of hours reduced, which exceeded ten percent.
    Most of Terry’s specific arguments regarding categories of claimed hours
    the district court eliminated fail. The district court did not abuse its discretion
    under Horsford by reducing claimed hours from counsel’s verified time records,
    because the district court did not “disregard[] the time records completely.” 33 Cal.
    Rptr. 3d at 673.
    The district court also did not abuse its discretion in subtracting some of
    Terry’s hours claimed for motion practice as unnecessary or excessive. See
    
    Gonzalez, 729 F.3d at 1203
    ; 
    Horsford, 33 Cal. Rptr. 3d at 673
    . Terry’s contention
    that the district court erred by deducting hours spent on successful motions is
    unavailing, because the district court did not find the motions unnecessary or
    excessive. Rather, the district court deemed the filing of written briefs unnecessary.
    Contrary to Terry’s argument, the law does not require the district court to
    compensate for all the time her counsel spent conferring among themselves. She
    cites no controlling authority demonstrating such activity is always compensable as
    a matter of law. Thus, the district court had discretion to reduce hours so spent,
    which it deemed unnecessary or excessive. 
    Gonzalez, 729 F.3d at 1203
    ; 
    Horsford, 33 Cal. Rptr. 3d at 673
    .
    4
    The district court did not clearly err, see Richard S. v. Dep’t of Dev. Servs. of
    Cal., 
    317 F.3d 1080
    , 1086 (9th Cir. 2003), in finding Terry sought to recover fees
    for time spent “gossiping.” Terry sought compensation for conversing about the
    fact the district judge once worked for the defendant City of San Diego (“the
    City”). However, the district court did clearly err by finding Richard Benes billed
    14.3 hours on “case administration” when the billing record only reflects 0.9 hours.
    Terry contends the district court erred under the federal statute by
    disallowing compensation for time spent reading a news article and communicating
    with the media. The district court did not abuse its discretion by denying
    compensation for such activity after trial, because compensable public relations
    work must be “directly and intimately related to the successful representation of a
    client.” Davis v. City of S.F., 
    976 F.2d 1536
    , 1545 (9th Cir. 1992), vacated in part
    on other grounds, 
    984 F.2d 345
    (9th Cir. 1993).
    The district court correctly held that attorney hours devoted to clerical work
    should be deducted. See 
    id. at 1543;
    Collins v. City of L.A., 
    139 Cal. Rptr. 3d 880
    ,
    895 (Ct. App. 2012). Terry misapplies Moreno when she claims the district court
    impermissibly criticized “how Terry’s counsel staffed the case” when it deducted
    for clerical work. Moreno refers to criticism of attorney staffing decisions,
    5
    specifically whether the prevailing party should have “used a less skilled attorney,
    rather than the lead counsel, to perform document 
    review.” 534 F.3d at 1114
    .
    Terry concedes the law recognizes that co-counsel editing each other’s briefs
    can constitute unreasonably duplicative time. Additionally, the district court need
    not allow compensation for all time a lawyer spends preparing for and attending
    district court hearings, when the lawyer does not participate at such hearings. Thus,
    deducting such duplicative time was squarely within the district court’s discretion.
    
    Id. at 1112;
    Horsford, 33 Cal. Rptr. 3d at 672
    .
    The district court correctly held that Terry’s successful and unsuccessful
    claims were related. See Odima v. Westin Tucson Hotel, 
    53 F.3d 1484
    , 1499 (9th
    Cir. 1995). Accordingly, it was error to deduct hours for unsuccessful claims,
    effectively impermissibly “divid[ing] the request for attorney’s fees on a claim-by-
    claim basis.” McCown v. City of Fontana, 
    565 F.3d 1097
    , 1103 (9th Cir. 2009).
    This constitutes error under the state statute as well. See Wysinger v. Auto. Club of
    S. Cal., 
    69 Cal. Rptr. 3d 1
    , 15 (Ct. App. 2007). The district court should have
    considered limited success of the overall litigation when determining whether to
    adjust the lodestar downward. 
    Odima, 53 F.3d at 1499
    .
    Under the state statute, the district court did not abuse its discretion by not
    awarding fees on fees. Hours spent on an unreasonably inflated fee request are not
    6
    reasonable and therefore may be deducted. Meister v. Regents of Univ. of Cal., 
    78 Cal. Rptr. 2d 913
    , 925 (Ct. App. 1998). However, under the federal statute, the
    district court was required to award some fees on fees, although it retained
    discretion to reduce the hours or total award for unreasonableness. See Anderson v.
    Dir., Office of Workers Comp. Programs, 
    91 F.3d 1322
    , 1325 (9th Cir. 1996).
    Determining reasonable hourly rate. The district court rejected Terry’s
    evidence of reasonable hourly rate, although the City did not produce any evidence
    on this factor. Thus, under the federal statute, the district court impermissibly
    relied solely on its own knowledge and experience to determine a reasonable
    hourly rate. See 
    Gonzalez, 729 F.3d at 1206
    . Under the state statute, the district
    court also abused its discretion, because unrebutted evidence submitted to establish
    the requested rate is the prevailing rate in the community for attorneys with
    comparable skills and expertise compels the district court to find the requested rate
    reasonable. See 
    Graciano, 50 Cal. Rptr. 3d at 287
    .
    On remand, the district court may, in its discretion, accept new evidence to
    determine a reasonable rate. See Welch v. Metro. Life Ins. Co., 
    480 F.3d 942
    , 947-
    48 (9th Cir. 2007) (holding district court on remand could reduce requested rates
    based on “evidence that undermines the reasonableness of the rate requested”
    7
    although the party opposing the request for fees had not previously introduced any
    evidence undermining requested rates).
    Multipliers. Under the federal statute, the district court properly denied
    Terry’s request for a 2.0 multiplier. The Supreme Court has specifically forbidden
    adjusting upward an award for contingent risk, City of Burlington v. Dague, 
    505 U.S. 557
    , 565 (1992); Mangold v. Cal. Pub. Utils. Comm’n, 
    67 F.3d 1470
    , 1478
    (9th Cir. 1995), and no “exceptional circumstances” justify such an enhancement
    in this case, see Chalmers v. City of L.A., 
    796 F.2d 1205
    , 1212 (9th Cir. 1986).
    Under the state statute, the district court had discretion whether to decline to
    apply a positive multiplier. Graham v. DaimlerChrysler Corp., 
    101 P.3d 140
    , 157
    (Cal. 2005); Nichols v. City of Taft, 
    66 Cal. Rptr. 3d 680
    , 687 (Ct. App. 2007); see
    also Chaudhry v. City of L.A., 
    751 F.3d 1096
    , 1112 (9th Cir. 2014) (noting that
    “California law allows for a multiplier of the lodestar to compensate for the risk of
    contingent representation”). The district court did not consider the multiplier
    question under state law, including the possibility of an upward adjustment for
    contingency risk. A court abuses its discretion when it fails “to consider the
    relevant factors for awarding an enhancement multiplier.” 
    Nichols, 66 Cal. Rptr. 3d at 686
    (requiring that a trial court’s “discretion be exercised based on an actual
    evaluation of the relevant criteria”). On remand, the district court should consider
    8
    whether a multiplier under state law is warranted. See 
    Gonzalez, 729 F.3d at 1210
    -
    11.3
    Under the federal statute, we conclude that the district court abused its
    discretion in applying a negative 0.8 multiplier for limited success. Terry obtained
    a $100,001 damages award. Her request for injunctive relief was denied, not on
    the merits, but because it was moot. In any event, the damages award
    alone—$100,000+— is significantly higher than awards in other civil rights cases
    in which we have found that the plaintiff had achieved a significant public benefit.
    See, e.g., Morales v. City of San Rafael, 
    96 F.3d 359
    , 364-65 (9th Cir.1996)
    (stating that a section 1983 plaintiff achieved a “significant” public benefit by
    virtue of the jury’s holding “the city and officer responsible for his unlawful
    arrest,” and by virtue of a $17,500 damages award, concluding that it “established
    a deterrent to the city, its law enforcement officials and others”).4 On remand, after
    explicit consideration of the applicable factors, the district court should explain the
    3
    Terry is wrong that the district court failed to compensate her for delay in
    payment. The district court applied the current attorney rate rather than historic
    rates to hours billed in earlier years.
    4
    We note that the only case the district court cited in support of its finding
    that Terry achieved only “limited success,” Velez v. Wynne, was reversed on appeal
    because the district court “failed to properly apply the process required to
    determine attorneys’ fees.” Velez v. Wynne, 220 F. App’x 512, 513 (9th Cir. 2002).
    9
    reasons for its decision to apply a particular (negative or positive) multiplier. See
    
    Gates, 987 F.2d at 1400
    .
    The district court abused its discretion by reducing the lodestar without an
    adequate explanation of its reasons for choosing the particular negative lodestar.
    See 
    id. On remand,
    after fully considering the applicable factors, the district court
    should explain its reasons for applying any adjustment to the lodestar.
    Double-counting. It appears the district court both reduced hours and applied
    the 0.8 multiplier for limited success, and the district court erred in so doing. Both
    statutes prohibit such double-counting. See 
    Moreno, 534 F.3d at 1115
    ; 
    Flannery, 71 Cal. Rptr. 2d at 644
    .
    Request to remand to different judge. We do not remand to a different
    district judge, because Terry’s arguments and evidence do not reveal “unusual
    circumstances necessitat[ing] reassignment both for the judge’s sake and for the
    appearance of justice.” Sederquist v. City of Tiburon, 
    765 F.2d 756
    , 763 (9th Cir.
    1985) (internal quotation marks omitted).
    AFFIRMED in part, VACATED and REMANDED in part.
    The parties shall bear their own costs.
    10