Guillory v. Hill ( 2019 )

Filed 6/26/19 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
LEROY GUILLORY et al.,
Plaintiffs and Appellants, G054027
v. (Super. Ct. No. 30-2008-00212410)
MICHELE HILL, MODIFICATION ORDER TO
CORRECT CLERICAL ERROR
Defendant and Respondent.
Due to inadvertence and clerical error, the order granting publication filed
on June 25, 2019, is modified to correct the panel as follows:
Respondent Michele Hill; and multiple nonparties, County of Orange,
Association of Southern California Defense Counsel, County of Riverside, League of
California Cities and the California State Association of Counties have requested that our
opinion, filed on May 31, 2019, be certified for publication. It appears that our opinion
meets the standards set forth in California Rules of Court, rule 8.1105(c). The request is
GRANTED.
The opinion is ordered published in the Official Reports.
ARONSON, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
GOETHALS, J.
2
Filed 5/31/19; certified for publication 6/25/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
LEROY GUILLORY et al.,
Plaintiffs and Appellants, G054027
v. (Super. Ct. No. 30-2008-00212410)
MICHELE HILL, OPINION
Defendant and Respondent.
Appeal from a postjudgment order of the Superior Court of Orange County,
Kim Garlin Dunning, Judge. Affirmed.
Quintilone & Associates, Richard E. Quintilone II; Eisenberg Law Firm
and Mark W. Eisenberg for Plaintiffs and Appellants.
Lynberg & Watkins, Norman J. Watkins, S. Frank Harrell, and Pancy Lin
for Defendant and Respondent.
* * *
LeRoy Guillory and 11 other plaintiffs1 appeal from the court’s denial of
their 42 U.S.C. section 1988 (§ 1988) motion for attorney fees as prevailing parties in
their civil rights claim against defendant Orange County Sheriff’s Department
Investigator Michele Hill. Plaintiffs contend the court abused its discretion when it
denied their request for attorney fees.
Section 1988 authorizes “courts to award a reasonable attorney’s fee to
prevailing parties in civil rights litigation.” (Hensley v. Eckerhart (1983) 461 U.S. 424,
429 (Hensley), italics added.) The most important factor in assessing a fee’s
reasonableness is “the degree of success obtained” by the prevailing party. (Id. at
p. 436.) “‘Where recovery of private damages is the purpose of . . . civil rights litigation,
a . . . court, in fixing fees, is obligated to give primary consideration to the amount of
damages awarded as compared to the amount sought.’ [Citation.] Such a comparison
promotes the court’s ‘central’ responsibility to ‘make the assessment of what is a
reasonable fee under the circumstances of the case.’” (Farrar v. Hobby (1992) 506 U.S.
103, 114-115 (Farrar).) Furthermore, a “fee request that appears unreasonably inflated is
a special circumstance permitting the trial court to reduce the award or deny one
altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano), fn. omitted.)
Here, in light of plaintiffs’ minimal success and inflated fee request, the
trial court properly exercised its discretion to deny their section 1988 motion. Plaintiffs
originally sought over $1 million in damages but ultimately obtained an award of less
than $5,400. Plaintiffs then moved for almost $3.8 million in attorney fees in a 392-page
motion containing, in the trial court’s words, “bloated, indiscriminate,” and sometimes
“‘cringeworthy’” billing records. Accordingly, we affirm the court’s postjudgment order.
1
The other plaintiffs are Carl Vini Bergeman, Lorraine Colarossi, Carmine
Colarossi, Jennifer Bell, Altan Aksu, David Ryder, John D’Agostino, Kathleen
D’Agostino, Scott Deere, Sr., Robert Green, and Darren Johnson.
2
I
2
FACTUAL AND PROCEDURAL BACKGROUND
The Incident
In 2007, in the predawn hours following a huge Halloween party,
100 special weapons and tactics (SWAT) officers raided the mansion where the party had
taken place. (Guillory v. Hill (2015) 233 Cal.App.4th 240, 244-245 (Guillory I).) The
SWAT team forcibly detained plaintiffs and restrained their hands behind their backs
with zip ties. (Id. at p. 245.)
About an hour later, Hill and a team of around 40 officers entered the
mansion to conduct a warrant-based search for evidence of illegal gaming. (Guillory I,
supra, 233 Cal.App.4th at pp. 243, 246.) Hill coordinated the search. (Id. at p. 246.) At
various times that day, she interviewed and released each plaintiff separately. (Id. at
p. 247.) Plaintiffs’ detention that day lasted “for as long as 14 hours.” (Id. at p. 256.)
The First Trial and Appeal
Plaintiffs sued Hill and other defendants for allegedly violating plaintiffs’
civil rights under 42 U.S.C. section 1983 (§ 1983). (Guillory I, supra, 233 Cal.App.4th at
p. 243.) Eventually, “several defendants including the various SWAT teams, unnamed
‘Doe’ police officers, and County of Orange defendants dropped out, either by plaintiffs’
failure to name the ‘Doe’ defendants or by settlement or summary adjudication,” leaving
Hill as the sole remaining defendant. (Ibid.)
A six-week trial ensued. (Guillory I, supra, 233 Cal.App.4th at p. 243.) At
the close of evidence, the trial court granted Hill’s motion for a directed verdict (Code
Civ. Proc., § 630) on all of plaintiffs’ claims. (Guillory I, at p. 243.)
2
We take some facts from the trial court’s written order denying plaintiffs’ section
1988 motion.
3
On appeal from the first trial, we reversed the directed verdict solely as to
plaintiffs’ “section 1983 claims based on the prolonged detention of the plaintiffs” after
the search ended. (Guillory I, supra, 233 Cal.App.4th at p. 244.) We affirmed, however,
the directed verdict on plaintiffs’ other constitutional claims, “including the SWAT team
and other officers’ allegedly excessive force in entering and securing the premises” and
“restraining the detainees with excessive force before Hill questioned them.” (Ibid.) We
ordered the parties to bear their own costs on appeal. (Id. at p. 256.)
The Retrial
Upon remand, Guillory I’s remittitur restricted the trial court’s jurisdiction
to retrying “plaintiffs’ claims alleging prolonged detention under section 1983.”
(Guillory I, supra, 233 Cal.App.4th at p. 256; see Hampton v. Superior Court (1952)
38 Cal.2d 652, 655.)
The “retrial was conducted in two phases.” At the phase one bench trial,
the court rejected Hill’s affirmative defense of qualified immunity. During the phase two
jury trial, plaintiffs argued the search ended around 7:30 a.m., while Hill contended it
ended later that day at 2:00 p.m. “With the exception of Mr. Guillory, no plaintiff
presented evidence of any economic damages.”
By special verdict, the jury found the search ended at 2:00 p.m. “Based on
the uncontroverted trial evidence, the jury also unanimously agreed that nine of the 12
plaintiffs were released after 2:00 p.m.,” i.e., after the search ended. The jury awarded
damages to these nine prevailing plaintiffs. “The total jury verdict for the nine plaintiffs
was $5,335[] — the largest individual award was $3,000[]; the three smallest were $200[]
each . . . .” The jury found in Hill’s favor on the three remaining plaintiffs who had left
the home before 2:00 p.m.
4
Plaintiffs’ Motion for Attorney Fees
Plaintiffs moved under section 1988 for about $3.8 million in attorney fees.
The trial court’s tentative ruling denied plaintiffs’ motion based in part on Christian
Research Institute v. Alnor (2008) 165 Cal.App.4th 1315 (Christian Research).
During the first hearing on plaintiffs’ motion, the trial court invited the
parties to submit seven-page briefs on Christian Research. One of plaintiffs’ counsel
offered to “resubmit [his] time,” but the court refused the offer: “On the attorneys fees,
you’re [only] briefing Christian Research.”
At the second hearing on plaintiffs’ motion, the trial court noted plaintiffs
had submitted 232 pages and “it [was] not just briefing.” Consequently, the court struck
the portion of plaintiffs’ supplemental brief that exceeded seven pages. In the unstruck
part of plaintiffs’ supplemental brief, they reduced their request for attorney fees to $2.4
million.
The Court’s Order Denying Plaintiffs’ Motion for Attorney Fees
The trial court denied plaintiffs’ section 1988 motion. In eight full pages of
its written order, the court explained its findings and rationale. We quote at length from
the court’s order:
“The attorney’s fees motion is 392 pages long. The court mentions this
because in all those pages there is not a single declaration or chart that clearly and
concisely sets forth the number of hours billed, the hourly rates, and the total amount
requested for attorney’s fees. It is necessary to comb through the motion and employ a
calculator to glean the following: Total attorney/paralegal fees sought were $3,774,800[]
to $3,791,535[], based on a 7,475[] to 7500 total number of billed hours. The bills are
segregated by the two law firms that represented plaintiffs: Quintilone & Associates and
Eisenberg Law Firm, APC.” “[E]ven though this case originated against multiple
defendants and was litigated through a first jury trial with a directed verdict at the close
5
of all the evidence, one appeal, and a second jury trial that proceeded to verdict, there
was no attempt to separate the bills according to these events. The presented billings
included entries, inter alia, that pertained to dismissed parties, the three unsuccessful
plaintiffs, the excessive force and unreasonable search theories, the voluntarily dismissed
punitive damages claim, witnesses who were never deposed or called to testify at trial(s),
and the unsuccessful additur motion . . . because, as counsel articulated at the first
hearing, all that work led up to a judgment for nine plaintiffs. There was no attempt to
cull attorney’s fees pertaining to the appeal, even though the Court of Appeal ordered the
parties to bear their own costs on appeal.”
“‘Pyrrhic’ aptly describes the result here, where nine of 12 plaintiffs
recovered a mere $5,335[] in damages, yet their counsel seek $2.4 million to $3.7 million
in attorney’s fees.” “[S]tatements of damages before the first trial sought millions of
dollars in damages. The [Code of Civil Procedure section] 998 offers before the first trial
exceeded one million dollars, as did the mandatory settlement conference demand before
the second trial. A jury verdict for each of nine plaintiffs in an amount far below the
ceiling for a small claims case is certainly de minimis, if not nominal.”
“All plaintiffs lost on all theories after a lengthy first trial, but regained one
theory on appeal.” “Plaintiffs’ counsel does not contend, and this court does not find,
that work on the unsuccessful claims was ‘inextricably entwined’ with work on the sole,
partially successful claim. As the first trial court judge and the Court of Appeal noted,
the unsuccessful claims were based on conduct by individuals and agencies other than
defendant Hill. Much of the work on the unsuccessful claims appeared unrelated to work
on the partially successful claim, and plaintiffs’ counsel made no effort to argue
otherwise.”
“Messrs. Eisenberg and Quintilone each submitted declarations in support
of [plaintiffs’] motion, authenticating redacted billing records reflecting work apparently
performed in connection with this lawsuit. Those declarations and counsel’s billing
6
records reveal plaintiffs seek compensation for all, or nearly all, the time attorneys and
paralegals spent on anything connected with any plaintiff, whether or not connected with
this litigation and anything connected to this litigation from the inception of their
involvement. They seek attorney’s fees for work in this matter involving parties other
than defendant Hill and appear to seek fees for some work with no apparent connection to
this litigation. For example, the billing records are permeated with entries reflecting:
“• Work performed in connection with claims of plaintiffs who did not
prevail;
“• Work performed in connection with claims of plaintiffs against
defendants plaintiffs voluntarily dismissed;
“• Work performed in connection with claims and/or theories that were
dismissed;
“• Duplication of effort between counsel (e.g. Plaintiffs’ counsel conferring
and “‘review[ing] communications from’” each other);
“• Work of a clerical nature performed by attorneys and paralegals;
“• Time entries so redacted the court cannot determine what work was
performed or whether the time spent was reasonable; and
“• Pervasive padding, frequently in increments of less than two-tenths of
an hour.
“Indeed, despite Mr. Quintilone’s declaration that he ‘utilized billing
judgment’ in preparing his portion of the request, he nevertheless attached billing records
that suggest no effort was made to cull time not reasonably incurred as to defendant Hill,
much less even edit the cavalier language in the time sheets. At the hearings, court and
counsel discussed [Quintilone’s] entries [that defense] counsel aptly labeled as
‘cringeworthy:’ ‘looked at lunch slideshow since Galvan was ugly’ [citation]); and
‘emails/phone calls[,] trial crap and running back and forth to printer for REQ[’]
[citation]).”
7
“Neither state nor federal law compels Ms. Hill or this court to comb
through voluminous billing records to determine which of the thousands of time entries
reflect time spent on work for which the plaintiffs receiving a jury verdict might be
entitled to recover, i.e.[,] to reduce the fee to what Plaintiffs should have asked for in the
first place. Plaintiffs’ counsel should have performed this task. Instead, they simply
threw in all their bills and expected the trial court to do their work.”
II
DISCUSSION
A. Governing Law
Section 1988 gives a court the discretion to award “a reasonable attorney’s
fee” to a prevailing party. (Italics added.) A party fails to meet the reasonableness
standard if the fee requested is unjust: A “prevailing plaintiff ‘“should ordinarily recover
an attorney’s fee unless special circumstances would render such an award unjust.”’”
3
(Hensley, supra, 461 U.S. at p. 429.)
The requirement that section 1988 fees be reasonable serves two strong,
countervailing policies. First, the statute’s purpose “is to ensure ‘effective access to the
judicial process’ for persons with civil rights grievances” (Hensley, supra, 461 U.S. at
p. 429), even “victims of . . . relatively minor constitutional violations” (Choate, supra,
86 Cal.App.4th at p. 325). Second, balanced against that policy “is an equally strong
3
The exception for “unjust” fee awards “serves as a short-hand way of saying that,
even before calculating a lodestar or wading through all the reasonableness factors, it is
clear that the reasonable fee is no fee at all. After all, where the only reasonable fee is no
fee, an award of fees would be unjust; conversely, where a fee award would be unjust, the
reasonable fee is no fee at all.” (Farrar, supra, 506 U.S. at p. 118 (conc. opn. of
O’Connor, J.).)
In contrast to prevailing plaintiffs, prevailing civil rights defendants “can recover
attorney fees only where the court also finds that the civil rights claim was objectively
‘“frivolous, unreasonable or groundless, or that the plaintiff continued to litigate after it
clearly became so.”’” (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 322
(Choate).)
8
civic value in discouraging civil rights claims from being overlitigated in disproportion to
the dollars and constitutional interests at stake and ‘in the process inflicting heavy costs
on [the government] opponent[s] and wasting the time of the court.’” (Id. at pp. 325-
326.) “[F]ee awards under [section] 1988 were never intended to ‘“produce windfalls to
attorneys.”’” (Farrar, supra, 506 U.S. at p. 115.)
Consequently, a court’s foremost task in considering a section 1988 motion
is to evaluate the reasonableness of the fee requested. The “most critical factor” in that
analysis is the degree of success obtained by the prevailing plaintiff. (Hensley, supra,461 U.S. at p. 436.) Stated another way, the fee must be “‘reasonable in relation to the
results obtained.’” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 988-989
(Chavez) [concerning Code Civ. Proc., § 1032, subd. (a) (judgment could have been
rendered in limited civil case)].) In measuring a plaintiff’s success in obtaining private
damages, the court must consider “‘the amount of damages awarded as compared to the
amount sought.’” (Farrar, supra, 506 U.S. at p. 114.) A plaintiff “who seeks
compensatory damages but receives no more than nominal damages” will sometimes
“receive no attorney’s fees at all.” (Id. at p. 115.) The court also may gauge a plaintiff’s
degree of success by comparing the plaintiff’s successful claims to “the scope of the
litigation as a whole.” (Hensley, at p. 440.) If “a plaintiff has prevailed on some claims
but not others, fees are not awarded for time spent litigating claims unrelated to the
successful claims.” (Chavez, at p. 989.)
In determining a fee’s reasonableness, the court may also consider whether
the motion itself is reasonable, both in terms of (1) the amount of fees requested and (2)
the credibility of the supporting evidence. (Christian Research, supra, 165 Cal.App.4th
at pp. 1318-1319.) The prevailing party must “submit evidence supporting the hours
worked and rates claimed.” (Hensley, supra, 461 U.S. at p. 433.) “Counsel for the
prevailing party should make a good-faith effort to exclude from a fee request hours that
are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice
9
ethically is obligated to exclude such hours from his fee submission.” (Id. at p. 434.)
Counsel “should maintain billing time records in a manner that will enable a reviewing
court to identify distinct claims.” (Id. at p. 437, fn. omitted.) “A fee request that appears
unreasonably inflated is a special circumstance permitting the trial court to reduce the
award or deny one altogether.” (Serrano, supra, 32 Cal.3d at p. 635, fn. Omitted, italics
added [concerning Code Civ. Proc., § 1021.5 (private attorney general)].) “[C]ounsel
may not submit a plethora of noncompensable, vague, block-billed attorney time entries
and expect particularized, individual deletions as the only consequence.” (Christian
Research, supra, at p. 1329.) Rather, counsel must “prune the fee request to comply with
the law” instead of trying “to transfer that responsibility onto the trial court.” (Ibid.)
We review a court’s ruling on a section 1988 motion for abuse of
discretion. (Choate, supra, 86 Cal.App.4th at p. 323-324.) “This is appropriate in view
of the [trial] court’s superior understanding of the litigation and the desirability of
avoiding frequent appellate review of what essentially are factual matters.” (Hensley,
supra, 461 U.S. at p. 437.) The “determination whether a victory is de minimis is
generally left to the sound equitable discretion of the trial court in the first instance ‘so as
to avoid a second major litigation strictly over attorneys’ fees.’” (Choate, at p. 326.)
B. The Court Properly Exercised Its Discretion to Deny Plaintiffs’ Fee Request
The trial court’s order contains detailed findings showing plaintiffs
obtained a de minimis degree of success and submitted an unreasonable section 1988
motion and supporting billing records. Substantial evidence shows plaintiffs sought over
$1 million in damages, were awarded less than $5400, and then requested almost $3.8
million in attorney fees in an almost 400-page motion crammed with obfuscating and
questionable billing records.
10
1. Degree of success
Nevertheless, plaintiffs argue the court “erred (and abused its discretion)”
by denying their fee motion. They observe case law has identified three “relevant indicia
of success — the extent of relief, the significance of the legal issue on which the plaintiff
prevailed, and the public purpose served.” (Farrar, supra, 506 U.S. at pp. 122 (conc.
opn. of O’Connor, J.).) Plaintiffs contend the court (1) made a “‘legal error’” by failing
to address “‘the significance of the legal issue [or] the public purpose the litigation
served,’” or (2) abused its discretion by misapplying the three factors. (Italics added.)
On plaintiffs’ first contention, the trial court did not ignore the litigation’s
public purpose and whether plaintiffs raised significant legal issues. Indeed, the court
concluded plaintiffs’ “‘litigation accomplished little beyond giving petitioners “the moral
satisfaction of knowing that a [jury] concluded [their] rights had been validated,”’” and
disagreed with plaintiffs’ argument “the partially published appellate decision [in
Guillory I] validates the importance of the issues they raised.” In any case, to the extent
the court was silent, we presume it followed the law in the absence of anything to
indicate otherwise. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563.)
On plaintiffs’ second contention, the trial court did not abuse its discretion.
We address each of the three Farrar factors in turn.
On the extent of relief obtained (i.e., the degree of success), plaintiffs assert
they never sought any particular amount of damages because they specified no dollar
figure in their complaint or to the jury. They conclude, “[s]ince Plaintiffs’ Complaint
sought no specific amount of damages and Plaintiffs made no specific damages demand
to the jury, there was no amount ‘sought’ which could be compare[d] to the jury award.”
In their reply brief, plaintiffs claim their “compensatory damages expectations were
always humble and reasonable, were never inflated and should not in fairness and good
11
conscience be judicially penalized as somehow ‘overreaching.’” They assert their
“damages started off inherently noneconomic and modest.”
We reject plaintiffs’ assertion they never sought “any specific amount” of
damages. This technical argument puts form over substance, and suggests a party may
affect a court’s assessment of the “degree of success” factor by omitting from the
complaint and closing argument any request for a specific dollar amount of damages.
But omitting a request for a specific damage amount does not insulate a party from a
finding that he or she had only limited success, especially since the “most critical factor
[in determining a fee’s reasonableness] is the degree of success obtained.” (Hensley,
supra, 461 U.S. at p. 436.)
As the trial court noted in its order, “this case was only about money
damages; plaintiffs sought general and punitive damages — and attorney’s fees.”
Plaintiffs’ “statements of damages before the first trial sought millions of dollars in
damages. [Their Code of Civil Procedure section] 998 offers before the first trial
exceeded one million dollars, as did the mandatory settlement conference demand before
the second trial.” The large dollar amounts plaintiffs specified in their statements of
damages and settlement offers prevented an early resolution of this case. (See McCown
v. City of Fontana (9th Cir. 2009) 565 F.3d 1097, 1103-1105 [plaintiff obtained limited
success with damage award far smaller than settlement request]; Martinez v. Brownco
Construction Co. (2013) 56 Cal.4th 1014, 1025 [Legislature sought to encourage
settlement through Code Civ. Proc., § 998].) Statements of damages and settlement
offers, although possibly inflated for negotiating purposes, nonetheless give the opposing
party some idea of whether there is room for purposeful settlement discussions. The
dollar figures stated in those communications have concrete consequences and can
represent what a party seeks. As defense counsel explained at the first hearing on
plaintiffs’ motion: “It doesn’t matter . . . [that plaintiffs’ counsel is] here saying that all
he has left is a small claims case [and he’s] not asking for money. . . . The damage has
12
already been done . . . . If they had come in at the outset and said, we want $3,000, we
would have been done a long time ago. . . . But that’s not what they did. As the court
can see, right at the outset, they asked for millions of dollars.” In sum, the trial court
properly considered the amounts sought by plaintiffs at the outset and throughout this
litigation, rather than simply their diminished expectations after a series of losses left
them with a solitary defendant and a single sliver of their original case.
Turning to the second and third Farrar factors, plaintiffs contend they
served a public purpose by litigating a significant legal issue on the legality of a
postsearch detention. They offer the following proof: (1) Hill contended the law on this
issue was not clearly established; (2) this court, before issuing Guillory I, twice requested
additional briefing on the legality of a postsearch detention; and (3) this court partially
published Guillory I. Plaintiffs conclude their case clarified the law governing postsearch
detention and thereby deterred law enforcement from violating detainees’ civil rights in
the future.
Clarification of this legal issue was unnecessary because the prohibition
against prolonged detention was established in this jurisdiction at the time of the 2007
search. (Guillory I, supra, 233 Cal.App.4th at p. 251.) This court’s requests for further
briefing and its partial publication of Guillory I do not prove otherwise; courts publish
opinions and request briefing for a variety of reasons. More importantly, if the law on
postsearch detention had been murky at the time of the underlying incident, Hill’s
qualified immunity defense would have defeated all plaintiffs’ claims against her
(Saucier v. Katz (2001) 533 U.S. 194, 201, overruled on another point in Pearson v.
Callahan (2009) 555 U.S. 223, 232, 236), leaving plaintiffs with a complete loss in this
case. As the trial court’s order observed: “There was no evidence Hill was disciplined
for her conduct or that it (or the Court of Appeal decision) was the catalyst for, or
resulted in, a change in [Orange County Sheriff’s Department] policy.” In sum,
13
plaintiffs’ “exceedingly modest verdict created no new rule of liability, broke no ground,
and sent no message.” (Choate, supra, 86 Cal.App.4th at p. 326.)
2. Reasonableness of Motion
The trial court’s denial of plaintiffs’ motion is equally justified by their
inflated fee request. As we stated in Christian Research, “[s]ubstantial evidence supports
the trial court’s conclusion counsel leavened the fee request with” overinclusive,
unculled, redundant, redacted, and padded billing entries, thereby “destroying the
credibility of the submission and . . . justifying a severe reduction.” (Christian Research,
supra, 165 Cal.App.4th at pp. 1318-1319.)
4
Plaintiffs distinguish Christian Research as an anti-SLAPP case, and argue
the anti-SLAPP fee-shifting statute (Code Civ. Proc., § 425.16) does not serve the same
vital purposes as section 1988, which provides an incentive for counsel to vindicate
constitutional rights. But fee shifting in an anti-SLAPP case is statutorily mandated
(Code Civ. Proc., § 425.16, subd. (c)(1)), revealing a strong public interest in deterring
SLAPP actions. (Code Civ. Proc., § 425.16, subd. (a) [public policy of encouraging
“continued participation in matters of public significance”]; Ketchum v. Moses, supra,
24 Cal.4th at p. 1131 [“fee-shifting provision . . . encourages private representation in
SLAPP cases”].) Thus, the anti-SLAPP statute and section 1988 both encourage lawyers
to take cases deemed to benefit society.
Furthermore, Christian Research is not the only decision supporting a
court’s denial or reduction of attorney fees when the fee request is unreasonably inflated.
Indeed, Christian Research, supra, 165 Cal.App.4th at p. 1322, relies on Serrano, supra,
32 Cal.3d at p. 635, which concerns Code of Civil Procedure section 1021.5, the private
attorney general statute. A “private attorney general theory” also underlies section 1988
4
SLAPP stands for strategic lawsuits against public participation. (Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1127.)
14
(Farrar, supra, 506 U.S. at p. 122 (conc. opn. of O’Connor, J.)), revealing shared
statutory purposes. In Serrano, our Supreme Court warned that parties who lodge
unreasonably inflated fee requests may be subjected to “‘a severer reaction’” than a mere
“‘reduction of their fee to what they should have asked in the first place.’” (Serrano, at
p. 635.)
Finally, plaintiffs argue the court abused its discretion by refusing to
consider their reduced fee request submitted in their supplemental briefing. They
contend their supplemental brief addressed each of the trial court’s concerns, such as their
billing for legal work on dismissed claims and nonprevailing plaintiffs. But plaintiffs had
a duty to submit a reasonable request on the first try. Furthermore, the court invited
supplemental briefing only on Christian Research, and specifically not on plaintiffs’
revised fee requests. Indeed, defense counsel argued plaintiffs’ supplemental brief on
reduced fees amounted to an untimely new motion for attorney fees.
Nor did the supplemental brief’s reduction of plaintiffs’ fee request to $2.4
million solve the problems of overreaching and of transferring plaintiffs’ counsel’s job to
the trial court. Even at the second hearing on the motion, after the supplemental briefs
had been submitted, the court asked Eisenberg, “[D]espite the tremendous amount in
attorneys’ fees that you’re asking, it’s plaintiffs’ position that the court needs to go
through these hundreds of pages and come up with a lodestar[?]” Eisenberg replied,
“Yes, with a caveat,” and then suggested the court calculate a lodestar for his billings
(exempting him from the “severer penalty”), while striking those of his cocounsel
Quintilone.
The court’s order found fault with both Eisenberg’s and Quintilone’s billing
records. “We may not reweigh [that] implicit credibility determination . . . .” (Christian
Research, supra, 165 Cal.App.4th at p. 1319.)
15
III
DISPOSITION
The trial court’s postjudgment order denying plaintiffs’ section 1988
motion is affirmed. Hill is entitled to costs on appeal.
ARONSON, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
GOETHALS, J.
16
Filed 6/25/19 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
LEROY GUILLORY et al.,
Plaintiffs and Appellants, G054027
v. (Super. Ct. No. 30-2008-00212410)
MICHELE HILL, ORDER
Defendant and Respondent.
Respondent Michele Hill; and multiple nonparties, County of Orange, Association
of Southern California Defense Counsel, County of Riverside, League of California Cities and
the California State Association of Counties have requested that our opinion, filed on May 31,
2019, be certified for publication. It appears that our opinion meets the standards set forth in
California Rules of Court, rule 8.1105(c). The request is GRANTED.
The opinion is ordered published in the Official Reports.
ARONSON, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
THOMPSON, J.
2