Martin Gonzalez, Sr. v. City of Maywood , 729 F.3d 1196 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN GONZALEZ, SR.; MARTIN No. 11-56594
GONZALEZ, JR.; JOSE GONZALEZ;
MARTHA HERNANDEZ; KRYSTAL D.C. No.
HERNANDEZ; MONIQUE PANIAGUA; 2:07-cv-03469-
JOSE QUINONES; JESSE CASTRO; JOSE ODW-SH
MOLINA; VANESSA GARCIA;
SHANNON BOARD; MANUEL
HERRERA; HUMBERTO HERRERA; OPINION
GERARDINA HERRERA; FREDDIE
BARAJAS; MARVIN TEJEDA; JESUS
JIMENEZ; EDER JIMENEZ; JORDAN
PAYAN; PABLO CAMARILLO,
Plaintiffs-Appellants,
v.
CITY OF MAYWOOD; MAYWOOD-
CUDAHY POLICE DEPARTMENT;
BRUCE LEFLAR; PAUL PINE;
CUNNINGHAM, Officer; FLOREZ,
Officer; WEST, Officer; VISCARRA,
Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
2 GONZALEZ V. CITY OF MAYWOOD
Argued and Submitted
June 4, 2013—Pasadena, California
Filed September 9, 2013
Before: Ronald M. Gould and N. Randy Smith, Circuit
Judges, and Sharon L. Gleason, District Judge.*
Opinion by N.R. Smith
SUMMARY**
Civil Rights/Attorneys’ Fees
The panel vacated the district court’s attorneys’ fee
award, entered pursuant to 42 U.S.C. § 1988, and remanded
for a re-computation of the fee arising from the settlement of
numerous civil rights lawsuits against the City of Maywood,
its police department, and several local government officials.
The panel held that the district court abused its discretion
by: (1) erroneously applying across-the-board cuts to the
lodestar; (2) failing to find a reasonable hourly rate on which
to compute the lodestar; (3) declining to award a state-law
multiplier; and (4) declining to award fees for work
performed on the fee application.
*
The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GONZALEZ V. CITY OF MAYWOOD 3
The panel stated that in determining a reasonable fee
award, the district court failed to apply the following
principles: (1) that a court must compute the fee award using
an hourly rate that is based on the prevailing market rates in
the relevant community; (2) that when a district court reduces
either the number of hours or the lodestar by a certain
percentage greater than 10%, it must provide a clear and
concise explanation for why it chose the specific percentage
to apply; and (3) it is not per se unreasonable for the
prevailing party in a civil rights case to be awarded an
amount of attorneys’ fees that exceeds the amount of money
recovered by his or her client. Although the panel remanded
for a re-determination of the fee award, it denied plaintiffs’
request to re-assign this case to a different district judge.
COUNSEL
Paul L. Hoffman (argued) and Catherine Sweetser,
Schonbrun, DeSimone, Seplow, Harris, Hoffman & Harrison,
LLP, Venice, California; Cynthia Anderson-Barker, Law
Office of Cynthia Anderson-Barker, Los Angeles, California;
Robert Mann and Donald W. Cook, Attorneys at Law, Los
Angeles, California; Ellen Hammill Ellison, Law Office of
Ellen Hammill Ellison, Los Angeles, California; Olu K.
Orange, Orange Law Offices, Los Angeles, California, for
Plaintiffs-Appellants.
Richard A. Semon (argued) and Lee A. Wood, The Aguilera
Law Group, APLC, Costa Mesa, California, for Defendants-
Appellees City of Maywood, et al.
4 GONZALEZ V. CITY OF MAYWOOD
Brian P. Keighron (argued), Wisotsky, Procter & Shyer,
Oxnard, California, for Defendants-Appellees Cunningham
and Muriello.
OPINION
N.R. SMITH, Circuit Judge:
42 U.S.C. § 1988 authorizes district courts to award the
prevailing party in civil rights litigation a “reasonable
attorney’s fee.” Several important principles bear on the
district court’s determination of a reasonable fee amount.
First, the court must compute the fee award using an hourly
rate that is based on the “prevailing market rates in the
relevant community.” Dang v. Cross, 422 F.3d 800, 813 (9th
Cir. 2005). Second, when a district court reduces either the
number of hours or the lodestar by a certain percentage
greater than 10%, it must provide a clear and concise
explanation for why it chose the specific percentage to apply.
See Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir.
1992); Moreno v. City of Sacramento, 534 F.3d 1106, 1112
(9th Cir. 2008). Finally, it is not per se unreasonable for the
prevailing party in a civil rights case to be awarded an
amount of attorney’s fees that exceeds the amount of money
recovered by his or her client. Because the district court did
not apply these principles when determining the amount of
Plaintiffs’ attorney’s fee award, we must vacate and remand.
BACKGROUND
The dispute over attorney’s fees in this appeal arises from
the settlement of numerous civil rights lawsuits against the
City of Maywood, its police department, and several local
GONZALEZ V. CITY OF MAYWOOD 5
government officials (collectively, the “City”). On August
19, 2010, following a successful mediation of eight such
lawsuits, the parties entered into a Stipulation for Settlement
(the “Stipulation”).1 Under the terms of the Stipulation,
Plaintiffs would receive $500,000 total. The Stipulation also
provided that Plaintiffs could apply to the district court for
attorney’s fees. However, the Stipulation limited any fee
award to $1,000,000 for work on the merits, and $25,000 for
work on the fee application.
On November 12, 2010, Plaintiffs filed a fee application
in the district court for the Central District of California.
Plaintiffs’ initial application computed their lodestar amount
as $1,455,339 for work both on the merits and on the fee
application. Because this amount exceeded the amount the
Stipulation authorized, Plaintiffs requested a fee of
$1,025,000. The City filed an opposition to Plaintiffs’ fee
application on December 6, 2010.
The City’s opposition identified a mathematical error in
Plaintiffs’ computation of their lodestar. An inadvertently
placed decimal point in the sub-total for attorney Anderson-
Barker’s fee produced a lodestar amount that was nearly
$500,000 less than it should have been. Plaintiffs filed a
1
The facts of the litigation underlying this appeal are largely irrelevant
to the legal issues we must address. In short, on May 29, 2007, twenty-
two Plaintiffs filed a joint lawsuit against the City, alleging numerous
violations of their civil rights under federal and state law. Plaintiffs based
their claims on nine separate incidents of misconduct involving City police
officers. Subsequently, the district court severed the case into nine
separate cases, grouping Plaintiffs’ claims by each alleged violation. The
nine cases then proceeded separately. One case was dismissed on January
22, 2010, and the remaining eight were resolved by the Stipulation.
6 GONZALEZ V. CITY OF MAYWOOD
supplemental declaration acknowledging this error one day
after the City filed its opposition.
Later, Plaintiffs identified a second error in their initial
lodestar computation. In a declaration filed along with their
reply to the City’s opposition to the motion for attorney’s
fees, Plaintiffs indicated that the arithmetic function in their
word processing software had miscalculated the total number
of hours attorney Ellison had worked on the case. Thus,
although Plaintiffs’ motion for attorney’s fees claimed Ellison
had worked 411.54 hours, correcting the computation error
showed that she had actually worked 636.7 hours.
After correcting the errors in Ellison’s and Anderson-
Barker’s billings, Plaintiffs computed their lodestar to be
$2,059,451.50. Nevertheless, this adjustment did not affect
Plaintiffs’ ultimate contention that they were entitled to
receive $1,025,000 in fees—the maximum amount permitted
by the Stipulation.
On January 24, 2011, the district court held a hearing on
the attorney’s fee award. At the hearing, the district court
indicated that it would not award fees in excess of the
$500,000 that Plaintiffs had recovered:
This is offensive on its face. I have got a
summary here of the various, we will call it
indignities suffered by each of the plaintiffs
and what their settlements have been, and then
I look at the attorney’s fees request and it
literally shocks the conscience.
Let me cut to the chase. If it were flipped,
if what is being divided up among the
GONZALEZ V. CITY OF MAYWOOD 7
plaintiffs is what the attorneys are asking for
in compensation, fine. I would approve that.
And then the attorneys get what you have
given to your clients, that would get approved.
Now, I understand that you have already
convinced each of these plaintiffs to go along
with whatever, and that is fine. They are free
to contract as they wish. They are free to
resolve and compromise their claims on any
terms they want, but to the extent that you
come in here seeking approval of these
attorney’s fees, that is not going to happen.
All right. . . .
I have said what I have got to say on this
issue. And I felt this all along, if the numbers
were flipped, if the injured plaintiffs had
received the lion’s share of this money, fine,
I would have no problem. But I will not
approve this. We are done.
Consistent with this position, the district court partially
granted Plaintiffs’ motion for attorney’s fees in a twenty-five
page order on August 22, 2011, and awarded $473,138.24 in
fees. Plaintiffs timely appealed on September 13, 2011.
STANDARD OF REVIEW
“District court awards of attorney’s fees under section
1988 are reviewed for abuse of discretion.” Corder v. Gates,
947 F.2d 374, 377 (9th Cir. 1991). Accordingly, “[w]e
review the district court’s calculation of the reasonable hours
and the hourly rate for abuse of discretion.” Costa v. Comm’r
8 GONZALEZ V. CITY OF MAYWOOD
of Soc. Security Admin., 690 F.3d 1132, 1135 (9th Cir. 2012)
(internal quotation marks omitted). Under this standard of
review, we “affirm unless the district court applied the wrong
legal standard or its findings were illogical, implausible or
without support in the record.” TrafficSchool.com, Inc. v.
Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011).
DISCUSSION
42 U.S.C. § 1988(b) authorizes district courts to award the
“prevailing party,” in any suit under 42 U.S.C. § 1983, a
“reasonable attorney’s fee.” The City does not dispute that
the Plaintiffs in this case were prevailing parties for purposes
of § 1988. See Carbonell v. INS, 429 F.3d 894, 899 (9th Cir.
2005) (“[W]e have also found that a litigant prevailed when
he entered into a legally enforceable settlement agreement.”).
Plaintiffs contend that the district court erred in
determining the fee award by (1) erroneously applying
across-the-board cuts to the lodestar, (2) failing to find a
reasonable hourly rate on which to compute the lodestar, (3)
declining to award a state-law multiplier, and (4) declining to
award fees for work performed on the fee application. We
agree that the district court erred in these four respects and
therefore vacate the fee award and remand.
To determine the amount of a reasonable fee under
§ 1988, district courts typically proceed in two steps. First,
courts generally “apply . . . the ‘lodestar’ method to
determine what constitutes a reasonable attorney’s fee.”
Costa, 690 F.3d at 1135; Morales v. City of San Rafael,
96 F.3d 359, 363 (9th Cir. 1996); Ballen v. City of Redmond,
466 F.3d 736, 746 (9th Cir. 2006). Second, “[t]he district
court may then adjust [the lodestar] upward or downward
GONZALEZ V. CITY OF MAYWOOD 9
based on a variety of factors.” Moreno, 534 F.3d at 1111.
We address these steps in sequence.
I. Computation of the Lodestar
Under the lodestar method, the district court “multiplies
the number of hours the prevailing party reasonably expended
on the litigation by a reasonable hourly rate.” Ballen,
466 F.3d at 746 (internal quotation marks omitted); Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983). The product of this
computation—the “lodestar figure”—is a “presumptively
reasonable” fee under 42 U.S.C. § 1988. See Ballen,
466 F.3d at 746. We address the district court’s analysis of
the number of hours and hourly rates in turn.
A. Reasonable Number of Hours
A district court, using the lodestar method to determine
the amount of attorney’s fees to award, must determine a
reasonable number of hours for which the prevailing party
should be compensated. See, e.g., Fischer v. SJB-P.D. Inc.,
214 F.3d 1115, 1119 (9th Cir. 2000). Ultimately, a
“reasonable” number of hours equals “[t]he number of hours
. . . [which] could reasonably have been billed to a private
client.” Moreno, 534 F.3d at 1111. The prevailing party has
the burden of submitting billing records to establish that the
number of hours it has requested are reasonable. See In re
Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1305
(9th Cir. 1994). Thus, to determine whether attorneys for the
prevailing party could have reasonably billed the hours they
claim to their private clients, the district court should begin
with the billing records the prevailing party has submitted.
Although opposing counsel’s billing records may be relevant
to determining whether the prevailing party spent a
10 GONZALEZ V. CITY OF MAYWOOD
reasonable number of hours on the case, those records are not
dispositive. See Democratic Party of Wash. v. Reed,
388 F.3d 1281, 1287 (9th Cir. 2004) (noting that opposing
counsel’s billing records are “useful” in determining the
amount of a reasonable fee). Therefore, the district court has
the discretion not to rely on them. See Ferland, 244 F.3d at
1151.
Of course, in some cases, the prevailing party may submit
billing records which include hours that could not reasonably
be billed to a private client and, therefore, are not properly
included in a § 1988 fee award. For example, records may
contain entries for hours that are “excessive, redundant, or
otherwise unnecessary.” McCown v. City of Fontana,
565 F.3d 1097, 1102 (9th Cir. 2008) (internal quotation marks
omitted). Because a reasonable attorney’s fee would not
include compensation for such hours, the district court should
exclude them using one of two methods. First, the court may
conduct an “hour-by-hour analysis of the fee request,” and
exclude those hours for which it would be unreasonable to
compensate the prevailing party. See Gates v. Deukmejian,
987 F.2d 1392, 1399 (9th Cir. 1992). Second, “when faced
with a massive fee application the district court has the
authority to make across-the-board percentage cuts either in
the number of hours claimed or in the final lodestar figure as
a practical means of [excluding non-compensable hours] from
a fee application.” Id. (internal quotation marks omitted).
Due to the associative property of multiplication,2 it makes no
difference in terms of the final amount to be awarded whether
the district court applies the percentage cut to the number of
hours claimed, or to the lodestar figure.
2
The associative property of multiplication can be expressed as (A * B)
* C = A * (B * C).
GONZALEZ V. CITY OF MAYWOOD 11
In this case, Plaintiffs do not dispute that they submitted
a “massive fee application.” See id. After reviewing that
application, the district court determined that Plaintiffs sought
compensation for hours spent on numerous tasks that could
not “reasonably have been billed to a private client.” See
Moreno, 534 F.3d at 1111. However, due to the voluminous
billing records, the district court did not engage in a “hour-
by-hour analysis of the fee request” to eliminate such hours.
See Gates, 987 F.2d at 1399. Instead, the court first
computed a lodestar figure based on all the hours for which
Plaintiffs sought compensation. Then, the district court
applied across-the-board percentage cuts to that lodestar
figure to arrive at its fee award. Gates permits a district court
to follow this general methodology. See id.
However, when a district court decides that a percentage
cut (to either the lodestar or the number of hours) is
warranted, it must “set forth a concise but clear explanation
of its reasons for choosing a given percentage reduction.” Id.
at 1400. (internal quotation marks omitted). We have
recognized one exception to this rule: “[T]he district court
can impose a small reduction, no greater than 10 percent—a
‘haircut’—based on its exercise of discretion and without a
more specific explanation.” Moreno, 534 F.3d at 1112. In all
other cases, however, the district court must explain why it
chose to cut the number of hours or the lodestar by the
specific percentage it did. See, e.g., Schwarz v. Sec’y of
Health and Human Servs.,73 F.3d 895, 899–900, 906 (9th
Cir. 1995) (affirming 75% cut to the number of hours billed
where plaintiff succeeded on only 25% of his claims); Welch
v. Metropolitan Life Ins. Co., 480 F.3d 942, 948 (9th Cir.
2007) (affirming 20% cut to hours where fee applicant block
billed, because court relied on third-party report that block
billing increased number of hours by 10–30%).
12 GONZALEZ V. CITY OF MAYWOOD
Here, the district court failed to give any “explanation of
its reasons for choosing [any of its] given percentage
reduction[s].” See Gates, 987 F.2d at 1400. The district
court cut Plaintiffs’ lodestar by the following six percentages:
(1) a 35% reduction for Plaintiffs’ “inappropriate and
ambiguous billing format,”(2) a 20% reduction for billing
entries for unrelated matters, (3) a 20% reduction for
“[i]mpossible and ridiculous billing entries,” (4) a 5%
reduction for “[i]mproper billing entries,” (5) a 10%
reduction for “[e]ntries for clerical tasks,” and (6) a 5%
reduction for “[e]ntries for travel.”3 Applied cumulatively,
these cuts reduced Plaintiffs’ fee award by 66% from the
lodestar.
Because the district court failed to justify the specific
percentages it chose, it is not at all clear how these
percentages were tailored to “trimming the fat from
[Plaintiffs’] fee application.” See id. at 1399. For example,
we cannot tell from the district court’s written decision why
reducing the lodestar by 35% would compensate for
Plaintiffs’ poorly formatted billing records. The district court
stated that such a reduction was warranted, because “the
billing format makes the entire record virtually
indistinguishable such that the Court cannot reasonably
determine whether ‘excessive, redundant, or otherwise
3
We note that none of these reductions match Kerr factors which are
presumably “subsumed” within the lodestar analysis. See infra note 11.
We further note that, although the district court’s categories seem similar,
it does not appear that the district court engaged in impermissible double
counting. Double-counting occurs when a court reduces a fee award more
than once for the same issue. See Moreno, 534 F.3d at 1115-16. Though
the district court utilized similar-sounding labels for different categories
of billing-record issues, the court adequately distinguished the issues
encompassed by each category.
GONZALEZ V. CITY OF MAYWOOD 13
unnecessary hours’ have been billed.” Even if this may
accurately describe Plaintiffs’ billing records, we can only
conclude (based on the district court’s explanation) that the
district court selected the number thirty-five arbitrarily.4
The district court’s other cuts suffer from the same
problem. The court’s stated reason for choosing to apply an
additional 20% reduction for unrelated billing entries was that
such entries “permeate[d] the billing records” and the
“voluminous nature” of the records precluded the court from
making “line-by-line deductions.” However, the district court
did not indicate that 20% was in any way proportional to the
number of entries that suffered from this defect. Likewise,
the district court failed to adequately explain why it cut
4
The poor quality of billing records does not excuse the district court
from its duty to give a “concise but clear” explanation for the reductions
it might apply. See Gates, 987 F.2d at 1399 (quoting Heiar v. Crawford
Cnty., 746 F.2d 1190, 1204 (7th Cir. 1984)). Nevertheless, the fee
applicant has the “burden of submitting detailed time records justifying the
hours claimed to have been expended.” Wash. Pub. Power, 19 F.3d at
1305. Therefore, if the fee applicant submits billing records that are so
poorly organized that the district court cannot practicably rely on them to
determine a reasonable number of hours, the district court may hold the
applicant to its burden in several ways. First, the district court could
simply cut the number of hours or the lodestar figure by as much as 10%
(without explanation). See Moreno, 534 F.3d at 1112. Second, the district
court could order the fee applicant to re-format and re-submit its billing
records. Wash. Pub. Power, 19 F.3d at 1305. Third, the district court may
itself re-structure the fee applicant’s billing records into a usable format.
See Norris v. Sysco Corp., 191 F.3d 1043, 1052 (9th Cir. 1999). Finally,
in an egregious case, and particularly where the other approaches have
been tried without success, a district court may “throw[] up its hands and
refus[e] to award any fees whatsoever.” See id. Ultimately, the district
court has the discretion to select the method appropriate for any case, and
it must “provide a concise but clear explanation of its reasons for the fee
award.” See Gates, 987 F.2d at 1398.
14 GONZALEZ V. CITY OF MAYWOOD
Plaintiffs’ fees by an additional 20% for “nonsensical” billing
entries. The court concluded that such entries were “not
individual mistakes,” but were “evidence of counsel’s
habitual inaccuracy and inefficiency evidenced throughout
the entire billing record.” However, the basis for the district
court’s selection of the 20% figure itself does not appear in
the record.5
The district court made these cuts to the Plaintiffs’ fee
award in a way that further suggests it selected the specific
percentages arbitrarily. For example, the district court first
cut Plaintiffs’ lodestar by 35% for Plaintiffs’ poorly
formatted billing records. The district court then cut the
amount of fees that remained after making the 35% cut (i.e.,
65% of the lodestar) by an additional 20% for unrelated
billing entries. However, the district court had previously
concluded that such billing entries “permeate[d] the billing
records.” That conclusion—that “unrelated billing entries”
“permeate the billing records”—is irreconcilable with the
district court’s application of a 20% cut to a portion of the fee
award that reflected only 65% of the full lodestar. If a 20%
cut was warranted by a defect that occurred throughout the
whole billing record, then logically that cut should be made
to the full lodestar amount, which the district court had
computed based on all the hours claimed in the billing
records. Thus, the district court’s methodology makes its
5
The district court’s justification for its 5% cut for billing entries related
to meeting with the media and maintaining time records on the ground that
“these entries do not seem to be as numerous as the other categories,” fails
for the same reason. Likewise, the district court provided no justification
for choosing 5% as the proper amount by which Plaintiffs’ remaining fees
should be reduced for “several entries for ‘travel.’” As with the district
court’s other percentages, we can only conclude that the district court
chose these numbers arbitrarily.
GONZALEZ V. CITY OF MAYWOOD 15
decision to cut Plaintiffs’ attorney’s fees appear even more
arbitrary, and falls short of the “concise but clear
explanation” that we require for making across-the-board cuts
to the number of hours or the lodestar.6 See Gates, 987 F.2d
at 1400.
To summarize, on remand, the district court should
compute Plaintiffs’ lodestar based on a reasonable number of
hours. If the district court concludes that making one or more
across-the-board cuts is the most practicable way to arrive at
this figure, then it must provide a clear and concise
explanation to justify the specific percentage cuts it decides
to apply.
B. Reasonable Hourly Rate
In addition to computing a reasonable number of hours,
the district court must determine a reasonable hourly rate to
use for attorneys and paralegals in computing the lodestar
amount. Ballen, 466 F.3d at 746. The “prevailing market
rates in the relevant community” set the reasonable hourly
rate for purposes of computing the lodestar amount. See
Dang v. Cross, 422 F.3d 800, 813 (9th Cir. 2005) (quoting
Blum v. Stenson, 465 U.S. 886, 895 (1984)); see also
Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 2001)
(noting that the district court “must use” the market rate “to
determine a fee under § 1988”). “Generally, when
6
When the district court re-determines the amount of the fee award on
remand, it should also explain why it computed the lodestar figure for
attorney Ellison based on 411.54 billable hours, a figure which Plaintiffs
had corrected to 636.7 hours in a later court filing. Because the district
court gave no reason for rejecting Plaintiffs’ corrected figure, we cannot
conduct “meaningful appellate review” of its decision. See Schwarz, 73
F.3d at 906.
16 GONZALEZ V. CITY OF MAYWOOD
determining a reasonable hourly rate, the relevant community
is the forum in which the district court sits.” Prison Legal
News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010)
(internal quotation marks omitted). Within this geographic
community, the district court should “tak[e] into
consideration the experience, skill, and reputation of the
attorney [or paralegal].” Dang, 422 F.3d at 813 (internal
quotation marks omitted). Importantly, the fee applicant has
the burden of producing “satisfactory evidence” that the rates
he requests meet these standards. Id. at 814.
Here, there is no indication that the district court
computed Plaintiffs’ lodestar figure using the market rate
prevailing in the Central District of California for attorneys
and paralegals of similar “experience, skill, and reputation”
to members of Plaintiffs’ legal team working on similarly
complex matters. This alone requires us to vacate the fee
award and remand. See Camacho v. Brigdgeport Financial,
Inc., 523 F.3d 973, 980–81 (9th Cir. 2008) (“[W]e remand to
the district court with instructions to determine the proper
amount of fees . . . by determining the prevailing hourly rate
in the [forum] for work that is similar to that performed in
this case, by attorneys with the skill, experience and
reputation comparable to that of [Plaintiffs’] attorneys.”).
Nevertheless, we also address the district court’s reasoning in
determining the hourly rates on which it computed the
lodestar.
After analyzing Plaintiffs’ submissions, the district court
concluded that Plaintiffs did not meet their burden of
producing “satisfactory evidence” of the market rates. Id.Thus, the district court purported to “exercise its discretion to
determine reasonable hourly rates based on its experience and
knowledge of prevailing rates in the community.” However,
GONZALEZ V. CITY OF MAYWOOD 17
no Ninth Circuit case law supports the district court’s
apparent position that it could determine the hourly rates for
the members of Plaintiffs’ legal team, without relying on
evidence of prevailing market rates. As discussed below, the
district court’s arbitrary determination of the hourly rates for
Plaintiffs’ attorneys reflects this faulty premise.
1. Attorneys’ Hourly Rates
The district court reduced the hourly rate Plaintiffs
proposed for each of their attorneys by 25%.7 This
determination was arbitrary. It was not calculated to produce
hourly rates that are “in line with those prevailing in the
community for similar services by lawyers of reasonably
comparable skill, experience and reputation.” Blum, 465 U.S.
at 895 n.11. The district court did not make a finding as to
the reasonable hourly rate for each of Plaintiffs’ attorneys,
who varied in these respects. Instead, the district court
appears to have simply split the difference between hourly
rates proposed by both sides for Plaintiffs’ most-experienced
attorney, and then extrapolated that result to all of Plaintiffs’
attorneys, disregarding the varied levels of skill, experience,
and reputation among them. On remand, the district court
must determine reasonable hourly rates based on “the
prevailing market rates in the relevant community.” Dang,
422 F.3d at 813.
7
The court derived this number by, first, averaging hourly rates “at the
high end” of the rates Plaintiffs and Defendants proposed. The court then
determined that Plaintiffs’ proposed high-end hourly rate exceeded that
average by 25%. The district court then reduced the rates Plaintiffs
proposed for all of its lawyers—not just those whose proposed rates fell
“at the high end” of the range—by 25%.
18 GONZALEZ V. CITY OF MAYWOOD
2. Paralegals’ Hourly Rates
The district court also failed to select an hourly rate for
Plaintiffs’ paralegals based on the prevailing market rate in
the relevant community. See Perez v. Cate, 632 F.3d 553,
556–57 (9th Cir. 2011). Plaintiffs proposed hourly rates for
their six paralegals ranging from $235 to $250 per hour, and
Plaintiffs’ fee expert indicated that paralegals at his own law
firm billed from $125 to $235 per hour. Among these
figures, the district court selected, without explanation, $125
as the hourly rate for all paralegals involved in these cases.
Without such an explanation, we can only conclude that the
district court selected this hourly rate arbitrarily.
3. Plaintiffs’ Remaining Challenges
Plaintiffs’ other challenges to the district court’s hourly
rate determination fail. First, the district court did not abuse
its discretion by refusing to use the hourly rate Plaintiffs’
attorneys had billed in two previous cases as evidence of a
reasonable hourly rate. Plaintiffs are correct that the rates
billed by attorneys in those cases are potentially relevant to
the district court’s determination of the prevailing market rate
in this case. See United Steelworkers of Am. v. Phelps Dodge
Corp., 896 F.2d 403, 407 (9th Cir. 1990) (“[R]ate
determinations in other cases, particularly those setting a rate
for the plaintiffs’ attorney, are satisfactory evidence of the
prevailing market rate.” (emphasis added)). Nevertheless, the
district court analyzed both cases and concluded that they
were distinguishable. Significantly, the court determined that
the cases were distinguishable based on factors that “are
taken into account in either the reasonable hours component
or the reasonable rate component of the lodestar calculation.”
See Cabrales v. Cnty. of L.A., 864 F.2d 1454, 1464 (9th Cir.
GONZALEZ V. CITY OF MAYWOOD 19
1988) (internal quotation marks omitted) (noting that
computation of lodestar “[p]resumably” incorporates the
following factors: “(1) the novelty and complexity of the
issues, (2) the special skill and experience of counsel, (3) the
quality of representation, and (4) the results obtained”),
vacated on other grounds by 490 U.S. 1087 (1989). On
appeal, Plaintiffs do not address many of these distinguishing
facts. Thus, they have failed to show that the district court
abused its discretion by rejecting them.
Second, Plaintiffs argue that the district court should not
have considered the rates that attorneys Koerner and Ellison
claimed to be their current hourly rate in connection with
certain motions filed earlier in the case as evidence of the
reasonable hourly rate. In those motions, Koerner and Ellison
claimed, under oath, that they billed at a rate lower than the
rate they declared to be their current hourly rate in the instant
fee application.8 The district court concluded that these
discrepancies undermined the credibility of Plaintiffs’ “stated
hourly rates.” Citing no authority to back their argument,
Plaintiffs contend that the district court improperly
considered these rates, because the earlier motions “did not
involve research or skill,” and were therefore distinct from
8
In June 2009, Koerner filed a motion for sanctions in connection with
a motion to compel in which she sought compensation based on an hourly
rate of $490 per hour. This was $60 per hour less than the rate of $550 per
hour that Koerner requested in the current fee application. In June 2010,
Ellison filed a notice of a motion to show cause, as well as a notice
that—along with the show-cause motion—she would be requesting fees
for time expended in bringing the motion. She filed a declaration in
support of that fee request, which computed her fee based on an hourly
rate of $300 per hour—$250 per hour less than the $550 per hour she
sought in the instant fee application.
20 GONZALEZ V. CITY OF MAYWOOD
the litigation as a whole, which Plaintiffs characterize as
“complex.”
Plaintiffs are correct that the complexity of legal work
affects the determination of the reasonable rate. See Davis v.
City and Cnty. of San Francisco, 976 F.2d 1536, 1545 (9th
Cir. 1992), vacated in part on other grounds on denial of rh’g
by 984 F.2d 345 (9th Cir. 1993). However, Plaintiffs are
incorrect to the extent they argue that the lower rates Koerner
and Ellison claimed previously are irrelevant to this case.
Koerner and Ellison both submitted billing records in this
case that included entries for legal work no more complex
than the legal work for which they sought compensation in
the earlier motions. Accordingly, the record supports the
district court’s conclusion that these earlier declarations in the
same case undermine the credibility of the declarations
Plaintiffs later filed with their fee application.
Third, Plaintiffs challenge the district court’s decision not
to adopt the hourly rates suggested by Plaintiffs’ fee expert,
Barrett S. Litt. Relevant here, Litt’s affidavit contained a two-
column chart, listing law firms in the left column, and a
corresponding hourly rate in the right column. The chart does
not indicate the skill, reputation, or experience of the
attorneys in those firms who billed those rates, or the types of
work for which the firm billed those rates.
The district court rejected Litt’s declaration for three
reasons: (1) it relied on “confidential sources” for information
regarding current hourly rates; (2) the declaration only listed
rates by firm, not by attorney or practice area; and (3) the
declaration cited rates charged by firms larger than the ones
Plaintiffs’ attorneys occupied. The district court soundly
rejected Litt’s affidavit on the first two grounds. A
GONZALEZ V. CITY OF MAYWOOD 21
declaration that relies on confidential sources to establish the
current market rate does not assist the court, because the
reliability of the information cannot be tested. Likewise,
simply listing the names of law firms and the hourly rates
they charge, without more, would not assist the district court
in determining whether attorneys of “comparable skill,
experience and reputation” commanded those rates, Dang,
422 F.3d at 814, or did so while performing similarly
“complex[]” legal work, Davis, 976 F.2d at 1545.
Accordingly, the district court properly rejected this
evidence.9
Fourth, Plaintiffs challenge the district court’s reliance on
(1) “possible areas of overbilling,” and (2) poor results
obtained as grounds for reducing the hourly rate. We reject
this argument. The district court found what Plaintiffs call
“overbilling”10 and “poor results” to be evidence that
Plaintiffs’ counsel provided low-quality representation.
District courts may reduce counsels’ hourly rates based on
such a determination. Van Gerwen v. Guarantee Mut. Life
Co., 214 F.3d 1041, 1046 (9th Cir. 2000) (“Quality of
representation is generally considered at the lodestar stage in
9
We do not reach Plaintiffs’ argument that the district court incorrectly
rejected the Litt affidavit on the ground that Litt cited rates charged by
large national and international firms. Whether the size of the law firm is
a relevant consideration in determining a reasonable hourly rate appears
to be a novel legal question. Because the district court permissibly
rejected Litt’s affidavit on two other grounds, we need not answer it here.
10
The district court did not conclude that Plaintiffs’ counsel had
“overbilled.” It did cite conduct by Plaintiffs’ counsel that abnormally
prolonged some stages of the litigation as among a “litany of ineffective
lawyering.” This litany provided grounds for the district court to conclude
that “Plaintiffs’ counsel failed to demonstrate the quality of representation
that would be expected from attorneys charging such high rates.”
22 GONZALEZ V. CITY OF MAYWOOD
determining what is a reasonable hourly rate.”). The district
court was well within its discretion to conclude that these
factors indicated weak representation by Plaintiffs’ counsel,
which “weigh[ed] in favor” of reducing the requested hourly
rates.
C. Conclusion
Although the lodestar method produces an attorney’s fee
that is presumptively reasonable when correctly applied, see
Ballen, 466 F.3d at 746, the district court’s misapplication of
the method in this case did not produce a reasonable
attorney’s fee. Thus, on remand, the district court should
again compute an attorney’s fee award by applying the
lodestar method, consistent with the principles outlined in this
opinion.
II. Adjustments to the Lodestar
After computing the lodestar figure, district courts may
adjust that figure pursuant to a “variety of factors.”11 See
11
The district court may make such adjustments based on the twelve
“Kerr factors.” See Morales, 96 F.3d at 363. These factors include:
(1) the time and labor required, (2) the novelty and
difficulty of the questions involved, (3) the skill
requisite to perform the legal service properly, (4) the
preclusion of other employment by the attorney due to
acceptance of the case, (5) the customary fee, (6)
whether the fee is fixed or contingent, (7) time
limitations imposed by the client or the circumstances,
(8) the amount involved and the results obtained, (9) the
experience, reputation, and ability of the attorneys, (10)
GONZALEZ V. CITY OF MAYWOOD 23
Moreno, 534 F.3d at 1111. Here, the district court did not
explicitly reduce the lodestar based on any of these factors.
Although the court did make across-the-board cuts to the
lodestar, those cuts were apparently tailored to ensuring that
the fee award included only a reasonable number of
hours—they were not based on the factors we have
recognized. At the same time, the record reflects that the
district court was deeply concerned over the fact that
Plaintiffs’ attorneys requested considerably more in fees than
their clients had recovered. Indeed, the amount Plaintiffs
recover is one of the factors district courts may consider when
making adjustments to the lodestar. See Hensley, 461 U.S. at
434 (“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, including the important factor of the ‘results
obtained.’”). Thus, because the district court’s consideration
of this factor may have influenced its attorney’s fee analysis,
we discuss that factor here.
the “undesirability” of the case, (11) the nature and
length of the professional relationship with the client,
and (12) awards in similar cases.
Id. at n.8. (quoting Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th
Cir. 1975)). However, if the district court has “taken [any of these factors]
into account in either the reasonable hours component or the reasonable
rate component of the lodestar calculation,” then it should not again
reduce the lodestar. See id. at 364 n.9. In fact, we “presum[e]” that the
district court accounts for the following factors in the lodestar
computation: “(1) the novelty and complexity of the issues, (2) the special
skill and experience of counsel, (3) the quality of representation, (4) the
results obtained, and (5) the contingent nature of the fee agreement.” Id.(citations and internal quotation marks omitted).
24 GONZALEZ V. CITY OF MAYWOOD
At its core, the district court’s concern stemmed from the
fact that Plaintiffs’ attorney’s fee request was more than
double the amount that the Plaintiffs themselves had
recovered. Thus, at the hearing on the motion for attorney’s
fees, the district court indicated that it would have approved
Plaintiffs’ fee request if the Plaintiffs had recovered twice as
much as the attorneys requested in fees. The court further
indicated that it would not approve the fee request Plaintiffs
actually submitted, because counsel sought approximately
double the amount their clients had recovered. To the extent
this determination shaped the district court’s analysis of the
attorney’s fee award, it was error.
It is not per se unreasonable for attorneys to receive a fee
award that exceeds the amount recovered by their clients.
This is especially true in civil rights cases, where the dollar
amount lawyers recover for their clients is not the sole
measure of the results the prevailing parties’ attorneys
obtained. Attorneys who “win[] a civil rights claim” not only
benefit their client in terms of the amount of money they
recover, “they also confer benefits on others throughout
society” by, for example, ending institutional civil rights
abuses or clarifying standards of constitutional conduct. See
McGinnis v. Kentucky Fried Chicken of Cal., 51 F.3d 805,
810 (9th Cir. 1994); see also Corder, 947 F.2d at 377(“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 . . . .” (quoting Blanchard v.
Bergeron, 489 U.S. 87, 96 (1989))).
Here, the eight cases against the City at issue in this
appeal appear to be the type of civil rights cases that confer
such non-monetary benefits, possibly justifying a higher fee
award. The filing and prosecution of these lawsuits, all of
GONZALEZ V. CITY OF MAYWOOD 25
which alleged misconduct by City police officers, may have
contributed to the City’s loss of insurance coverage, and
subsequent decision to shut down its beleaguered police
department. See Ruben Vives, Jeff Gottlieb, & Hector
Becerra, Maywood Shuts Down to Stay Alive, L.A. Times,
June 23, 2010, at A1; see also generally Office of the
Attorney General, California Department of Justice, In the
Matter of the Investigation of the City of Maywood Police
Department: Attorney General’s Final Report (2009).
Consequently, it would be wrong to evaluate the extent of the
results Plaintiffs’ counsel obtained based solely on the
number of dollars they recovered for their clients. On
remand, the district court should determine a reasonable fee
amount in light of the context of this case, see Moreno,
534 F.3d at 1111 (“The number of hours to be compensated
is calculated by considering whether, in light of the
circumstances, the time could reasonably have been billed to
a private client.” (emphasis added)), not based on its own
notion of the correct ratio between the amount of attorney’s
fees and the amount the litigants recovered.
III. Fees on Fees
The district court denied Plaintiffs’ request for a fee
award for time spent preparing the fee application. The court
gave only the following reason to support its decision on this
issue: “[G]iven the myriad of problems in Plaintiffs’
presentation of their Motion, the Court declines to award
Plaintiffs’ attorneys’ fees for preparing the Motion itself.” On
remand, the district court must reconsider this determination.
“[I]t’s now well established that time spent in preparing
fee applications under 42 U.S.C. § 1988 is compensable.”
Anderson v. Director, OWCP, 91 F.3d 1322, 1325 (9th Cir.
26 GONZALEZ V. CITY OF MAYWOOD
1996). This is so, even where the district court does not
award the applicant the full amount of fees he requests. See
Harris v. McCarthy, 790 F.2d 753, 758–59 (9th Cir. 1986)
(affirming district court’s award of fees incurred in
connection with fees motion where counsel only received
11.5% of fees requested for merits work). We give no
deference to the district court’s one-sentence explanation
(with no citation to authority) for its decision to award
nothing for that work. See Jordan v. Multnomah Cnty.,
815 F.2d 1258, 1261 (9th Cir. 1987) (“The district court
should clearly and concisely explain the grounds for its
decision.”). On remand, the district court should employ the
lodestar method for determining a reasonable fee for
Plaintiffs’ attorneys’ work on the fee application.
IV. State-Law Multiplier
Plaintiffs challenge the fee award on the ground that the
district court erred when it failed to analyze whether Plaintiffs
should receive a multiplier under California state law. The
district court’s silence on this issue makes “[m]eaningful
appellate review . . . impossible.” See Narouz v. Charter
Communications, LLC, 591 F.3d 1261, 1266 (9th Cir. 2010);
see also Geier v. Sundquist, 372 F.3d 784, 792 (6th Cir. 2004)
(citing Chalmers v. City of L.A., 796 F.2d 1205 (9th Cir.
1986)) (“Absent some indication of how the district court’s
discretion was exercised, we have no way of knowing
whether that discretion was abused.”). Thus, on remand, the
district court should analyze and explain whether Plaintiffs
should receive a state-law multiplier.
GONZALEZ V. CITY OF MAYWOOD 27
CONCLUSION
We vacate the fee award and remand for a re-computation
of the fee, because the district court exceeded the “great deal
of discretion” it possesses when “determining the
reasonableness of the fee.” Gates, 987 F.2d at 1398.
Although we remand for a re-determination of the fee award,
we deny Plaintiffs’ request to re-assign this case to a different
district judge. There is “no reason to believe that the district
judge will not follow both the letter and spirit of [our
opinion]” on remand. D’Lil v. Best Western Encina Lodge &
Suites, 538 F.3d 1031, 1041 (9th Cir. 2008).
VACATED and REMANDED. The parties shall bear
their own costs on appeal. See Fed. R. App. P. 39(a)(4).