Lillian CORDER, Roberta Lombardo, Plaintiffs-Appellees, v. Brad GATES, Sheriff, Defendant, and Roy Brown, et al., Defendants-Appellants. Lillian CORDER; Roberta Lombardo, Plaintiffs-Appellants, v. Brad GATES, Sheriff; Roy Brown, et al., Defendants-Appellees.
Nos. 88-5555, 88-5588
United States Court of Appeals, Ninth Circuit
Argued and Submitted March 4, 1991. Decided Oct. 16, 1991.
947 F.2d 374
However, we hold that the warrant is not facially overbroad. Even if we consider the warrant to be so, the good faith exception applies. This case can be distinguished from Crozier. In that case, the warrant did not particularize any property to be seized. In this case, the warrant was particular as to what records and evidence the agents were to search for and the time periods in which the relevant record could be found. This is much more specific than the warrant in Crozier. Thus, the good faith exception applies and the receipt in question was admissible.
Therefore, the search warrant is valid, and we affirm the district court‘s ruling.
III. Conclusion
We AFFIRM the district court‘s holding on all issues before us.
Timothy T. Coates, Los Angeles, California, for defendants-appellants-appellees.
Stephen Yagman, Yagman & Yagman, Venice, California, for plaintiffs-appellees-appellants.
CYNTHIA HOLCOMB HALL, Circuit Judge:
Defendant Roy Brown appeals the district court‘s award of attorney‘s fees under the Civil Rights Attorney‘s Fees Awards Act of 1976,
I
Lillian Corder and Roberta Lombardo brought suit on the basis of the civil rights statute,
Plaintiffs named as defendants the following individuals and entities: Orange County Sheriff Brad Gates, twenty-five Orange County deputy sheriffs, Los Angeles County Sheriff Sherman Block, twenty-five Los Angeles deputy sheriffs, Bell/Cudahy police chief Frank Fording, ten Bell/Cudahy police officers, the County of Los Angeles, the County of Orange, the City of Bell, and the City of Cudahy. Roy Brown, the highest ranking Los Angeles County Sheriff‘s officer present during the operation, authorized the entry of plaintiffs’ home.
On September 30, 1985, defendants made a $45,000 settlement offer, which plaintiffs rejected.1 This offer included the $39,000 worth of plaintiffs’ attorney‘s fees that had then accrued, leaving the plaintiffs with $6,000.
After trial, the jury, by special verdict, awarded damages in favor of Lillian Corder as follows: $1.00 in compensatory damages and $5,000 in punitive damages against Bell/Cudahy Police Sergeant Stanton Loder; $1.00 in compensatory damages and $10,000 in punitive damages against Orange County Sheriff‘s officer Keith Brown; and $1.00 in compensatory damages and $1000 in punitive damages against appellant, Commander Roy Brown of the Los Angeles County Sheriff‘s Department. The jury awarded damages in favor of Roberta Lombardo as follows: $1.00 in com
Plaintiffs cross-appeal arguing that the district court erred when it adjusted the fee award downward to reflect limited success. Defendant Roy Brown appeals. Brown makes three arguments: First, Brown argues that the attorney‘s fees awarded by the district court must be reduced further to account for plaintiffs’ limited success; second, Brown argues that the district court must apportion liability for attorney‘s fees among defendants in accord with their relative culpability, claiming that each defendant‘s relative culpability is reflected in the proportion of the overall jury verdict that is directed against him; third, Brown argues that the district court must decrease his liability for attorney‘s fees to account for fees already paid by other defendants through settlement.2
II
District court awards of attorney‘s fees under
III
Blanchard highlights the principles that govern appellate review of district court fee awards. The Blanchard Court addressed the question whether a fee agreement between a plaintiff and her lawyer acted as a cap on the amount of attorney‘s fees that a district court could find “reasonable.” The Court held that the discretion of the district courts to award “reasonable” fees is not circumscribed by fee agreements, though the district courts have liberty to consider such agreements when determining a “reasonable” fee. 489 U.S. at 94. Defendant argued that failing to “cap” fees would result in a “windfall” to plaintiff‘s attorneys. The Court responded:
[T]he very nature of recovery under
§ 1988 is designed to prevent any such “windfall.” Fee awards are to be reasonable, reasonable as to billing rates and reasonable as to the number of hours spent in advancing the successful claims. Accordingly, fee awards, properly calculated, by definition will represent the reasonable worth of the services rendered in vindication of a plaintiff‘s civil rights claim. It is central to the awarding of attorney‘s fees under§ 1988 thatthe district court judge, in his or her good judgment, make the assessment of what is a reasonable fee under the circumstances of the case.
Blanchard evidences three principles. First, discretionary judgments of the district courts, which watch civil rights cases unfold before them, must be respected. Second, the discretion of the district courts must not be unduly limited by mechanistic rules. Third, fee awards must ensure that civil rights lawyers receive reasonable compensation for their services.3 This third principle limits the district court‘s discretion, for this third principle underlies the requirement that the district courts carefully calculate hours and rates and fully articulate their reasoning. See Hensley, 461 U.S. at 437.
A
We first consider whether the method used by the district court to calculate attorney‘s fees was both incorrect and harmful, so that its fee award must be invalidated. The district court first determined the reasonable rate of compensation, and the reasonable number of hours worked, then multiplied hours by rate to arrive at the presumptively reasonable fee that is known as the “lodestar” figure. Hensley, 461 U.S. at 433-37. The district court then adjusted this “lodestar” figure to account for the plaintiffs’ limited success.
We have held that the procedure followed by the district court in calculating fees is disfavored. Cunningham v. County of Los Angeles, 879 F.2d 481, 487-88 (9th Cir.1988), cert. denied, 493 U.S. 1035 (1990); Cabrales, 864 F.2d at 1464. Since consideration of limited success is presumably “subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate,” district courts should not ordinarily make a separate adjustment for limited success. Cabrales, 864 F.2d at 1464 (quoting Hensley, 461 U.S. at 434 n. 9).
However, the fact that the district court followed a disfavored procedure for calculating fees does not necessarily nullify the district court‘s fee award. In Cabrales the district court followed the same procedure for calculating fees as was followed in the instant case, yet we affirmed the fee award because the record showed that “the district court made only one reduction for lack of success.” Cabrales, 864 F.2d at 1465. We said:
Mathematically, it is inconsequential whether the lodestar figure itself is adjusted for lack of success or whether the reasonable hours component of the lodestar is adjusted for lack of success. What matters is that the district court did not “count” for lack of success twice. We therefore hold that the district court‘s reduction of the lodestar, if warranted, constitutes a “harmless error.”
In the instant case, as in Cabrales, the district court partitioned its “lodestar” analysis from consideration of plaintiffs’ degree of success, and accounted for plaintiffs limited success only once. Thus, any error was harmless.
B
We turn to the substance of the district court‘s fee award. Since the parties accept the district court‘s calculation of the “lodestar” amount, the question is whether the district court abused its discretion when it reduced the lodestar figure by 20% to account for plaintiffs’ limited success.4
It is clear that a 20% reduction for limited success is in some cases sustainable. In
We upheld the district court‘s 25% reduction for limited success. 864 F.2d at 1466. We said:
In cases in which a plaintiff‘s success is limited, we have instructed the district court to apply a two-part analysis: First, the court asks whether the claims upon which the plaintiff failed to prevail were related to the plaintiff‘s successful claims.... If the unsuccessful and successful claims are related, then ... the court evaluates the “significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended.” If the plaintiff obtained “excellent results,” full compensation may be appropriate, but if only “partial or limited success” was obtained, full compensation may be excessive.
Id. at 1465 (citations omitted). See also Hensley, 461 U.S. at 435-36.5
In the instant case, all of the claims arose from a “common core of facts,” the search of plaintiffs’ house. Further, all of the claims are “based on related legal theories,” the Fourth Amendment. However, since the plaintiffs succeeded against only a few defendants, a reduction for limited success was permissible. Cabrales, 864 F.2d at 1466. “The purpose of a fee award is to encourage litigation and voluntary compliance with civil rights laws.” Woods v. Graphic Communications, Inc., 925 F.2d 1195, 1207 (9th Cir.1991) (citations omitted). In cases such as the present one, where a plaintiff brings an action against a large number of defendants, but manages to prevail only with regard to a few, per
On the other hand, our cases also make clear that the district court could have awarded plaintiffs the full lodestar amount. In Rivera v. City of Riverside, 763 F.2d 1580 (9th Cir.1985), aff‘d on other grounds, 477 U.S. 561 (1986), plaintiffs sued thirty-two defendants, including thirty individual police officers. Plaintiffs prevailed against only six officers, winning a verdict totaling $33,350. 477 U.S. at 564. In Rivera, as in Cabrales, all of the plaintiffs’ claims stemmed from a single incident and involved a common core of facts. Nevertheless, we held that the district court did not abuse its discretion when it declined to reduce the attorney‘s fee award for limited success, despite the plaintiffs’ failure to prevail against the majority of the original defendants. Thus, Cabrales and Rivera together indicate that district courts have considerable discretion in determining attorney‘s fees, a rule that is in conformity with the teachings of Blanchard and Hensley.8
Despite the discretion evidenced by Cabrales and Rivera, we have held that the district courts must clearly articulate sound reasons in support of their fee awards. Cunningham, 879 F.2d at 483-84. For although the district courts must be given much discretion to shape awards of attorney‘s fees, these awards must be subject to appellate review, and they must be reversed if based on clearly erroneous considerations. See Hensley, 461 U.S. at 437; Cunningham, 879 F.2d at 483-84.
In the instant case the district court‘s 20% reduction of the “lodestar” amount was based on clearly erroneous reasoning and cannot stand. The district court first reasoned that
IV
We next consider whether the district court abused its discretion when it declined to allocate the attorney‘s fee award among the individual defendants.10 Brown argues that the district court must apportion liability for attorney‘s fees among defendants in accord with their relative culpability, claiming that each defendant‘s relative culpability is reflected in the proportion of the overall jury verdict that is directed against him.
Three recent Ninth Circuit cases have dealt with the issue of apportionment.11 In Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1125-26 (9th Cir.1981), plaintiffs sued both state and federal defendants to enjoin construction of a freeway built by the state but funded by the federal government. Plaintiffs prevailed on one of their twelve claims. Thus, attorney‘s fees were available to plaintiffs under
We again considered apportionment of attorney‘s fee liability among defendants in Sable Communications of California v. Pacific Telephone & Telegraph Co., 890 F.2d 184, 194 (9th Cir.1989). Sable, a attorney‘s fees. First, the court held that the district court properly declined to assess attorney‘s fees against certain defendants who had not been held liable to plaintiff. Liability on plaintiff‘s claim was held to be a prerequisite to liability for attorney‘s fees. The rule is the same in this circuit. Jensen v. City of San Jose, 806 F.2d 899 (9th Cir.1986) (en banc). But this rule offers Brown no solace, since he has been held liable. The Dean court also held that officers whose liability is based on distinct incidents should have attorney‘s fees assessed against them on an individual basis. Again, this holding offers Brown little solace. For the Dean court based its view that fees should be apportioned on the fact that the incidents from which the defendants’ liabilities arose were separate and discreet. 621 F.2d at 1338-39. In contrast, in the instant case all of the defendants’ liabilities arose from a single incident. Further, the actions of the defendants in the instant case were not independent. Rather, defendants actions were centrally controlled and were part of a common course of conduct.
Our most recent decision is Woods v. Graphic Communications, Inc., 925 F.2d 1195, 1206 (9th Cir.1991). Woods brought a
All three of our apportionment cases have focused on the time expended by the plaintiff in pursuing each defendant when deciding whether apportionment was proper. Woods, 925 F.2d at 1207; Sable, 890 F.2d at 194; Adams, 657 F.2d at 1125-26. Accord Koster v. Perales, 903 F.2d 131, 138-40 (2d Cir.1990) (holding apportionment not mandated because, inter alia, the state failed to show that less overall time was expended against it than was expended against its codefendants); Little Rock School Dist. v. Pulaski County Special School Dist., 787 F.2d 372, 374 (8th Cir.1986) (in a case involving intervenors, the circuit court apportions fees based on time expended), cert. denied, 476 U.S. 1186 (1986); Knights of Ku Klux Klan v. East Baton Rouge Parish School Board, 735 F.2d 895, 901 (5th Cir.1984) (upholding the district court‘s allocation of 90% of attorney‘s fees to the federal government, since the federal government played the major role in the dispute underlying the lawsuit).
The focus on time expended in Adams, Sable, and Woods is consistent with the “lodestar” calculation, which forms the basis for the overall attorney‘s fee award, and which focuses on the time reasonably expended by plaintiffs. Hensley, 461 U.S. at 433-34. Indeed, the consistency of Adams, Sable, and Woods with the “lodestar” is an important virtue. It would make little sense to determine the overall liability of all defendants based on one consideration, then determine the individual liability of defendants based on an entirely different consideration. Thus, since the total amount of attorney‘s fee liability faced by any group of defendants is based on the
Brown argues, purportedly on the basis of Adams and Sable, that the district court must apportion attorney‘s fees in accord with each defendant‘s relative liability under the jury‘s verdict. As we have just seen, Adams and Sable provide little support for this argument. Moreover, Brown has simply misapprehended the purpose of attorney‘s fees under
Applying the rule of Adams, Sable, and Woods to the instant case, we see that a single incident led to the liability of all of the defendants, and that Brown was integrally involved in this incident. Indeed, Brown authorized the entry of plaintiffs’ home that gave rise to their lawsuit. Thus, the bare circumstances of the instant case do not support an inference that the plaintiffs expended less time pursuing Brown than they expended pursuing his codefendants. Cf. William C. Haas v. City & County of San Francisco, 605 F.2d 1105, 1117 (9th Cir.1979) (no abuse of discretion for district court to allocate attorney‘s fees based on percentage of time each defendant was involved in the breach of contract that formed the basis for the suit). Moreover, Brown has offered no evidence that plaintiffs expended less time pursuing him than they expended pursuing his codefendants. In these circumstances, the district court did not abuse its discretion when it declined to apportion liability for attorney‘s fees among defendants.
V
Finally, Brown argues that the district court abused its discretion when it failed to offset the attorney‘s fee award to account for fees that have been paid through settlement. We face a record that is entirely devoid of information about these alleged post-trial settlements; we have little information about either the number of settlements that have taken place, or the amount of these settlements. An appellate court may properly decline to reach issues not addressed by the court below in order to obtain both a fully developed record and the benefit of the district court‘s treatment of the issue. See Golden Nugget, Inc. v. American Stock Exchange, Inc., 828 F.2d 586 (9th Cir.1987). Since we are poorly positioned to resolve the offset issue, we do not now reach it. On remand, the district court should inquire into the matter.
AFFIRMED in part, REVERSED in part, and REMANDED.
PREGERSON, Circuit Judge, concurring in part and dissenting in part:
I agree that the district court abused its discretion when it reduced the plaintiffs’ award of attorney‘s fees. I do not agree, however, that it is ever permissible to re
The district court said that it reduced the attorney‘s fee award by 20% to adjust for the plaintiffs’ “limited success.” The plaintiffs argue that the district court abused its discretion by reducing the award. Defendant Brown appeals, arguing that the plaintiffs’ purportedly limited success merited an even greater reduction in the fee award. I do not believe that the plaintiffs’ success was limited. Therefore, I would clearly reject defendant Brown‘s appeal with regard to the issue of limited success. In addition, I would not, as the majority does in part III.B. of the opinion, invite the district court to exercise its discretion a second time. The parties agree that the district court properly calculated the lodestar figure, which is a presumptively reasonable amount for an award of attorney‘s fees. The plaintiffs are entitled to the lodestar amount.
In Hensley v. Eckerhart, 461 U.S. 424 (1983), the Supreme Court explained that district courts may sometimes reduce the lodestar amount when the plaintiffs, though prevailing parties, achieve only limited success in the litigation. When the unsuccessful claims are distinct in all respects from the successful claims, Hensley held that the time spent on the unsuccessful claims should not be compensated. 461 U.S. at 440. This is not such a case, as the claims here arise out of a single incident and a common core of facts. In such a case, Hensley made it clear that “[w]here a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney‘s fee reduced simply because the district court did not adopt each contention raised.” Id. The Supreme court in Hensley did not authorize a reduction simply because some proportion of the defendants are not found liable. When considering whether plaintiffs’ limited success merits an adjustment of the lodestar figure, district courts “should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” 461 U.S. at 435. Because the emphasis is on the reasonableness of the number of hours spent on the litigation, a reduction is not warranted unless the attorneys expended time that was not reasonably necessary to achieve success on the claims that were successful.
In this case, plaintiff sued forty-one defendants, prevailed against three, and won verdicts totaling $24,006. In Rivera v. City of Riverside, 763 F.2d 1580 (9th Cir. 1985), aff‘d, 477 U.S. 561 (1986), we upheld a fee award in very similar circumstances. In Rivera, which may be our earliest case applying Hensley, plaintiffs sued thirty-two defendants, including thirty individual officers. They prevailed against only six and won a verdict totaling $33,350. 477 U.S. at 564. We explained that the plaintiffs “succeeded on the most significant issue of the litigation-they proved that their civil rights had been violated by law enforcement officers.” 763 F.2d at 1582. Similarly, in the case at bar, the significant issue was identical, and the plaintiffs successfully prevailed. In both cases, all the claims stemmed from a single incident and shared a common core of facts. Nothing in Rivera suggests that the plaintiffs’ failure to prevail against twenty-five individual officers automatically justified a conclusion that plaintiffs’ success was limited or that the lodestar figure should be reduced. On the contrary, we recognized that Hensley simply required the district court to inquire whether the hours expended were reasonable in light of the success obtained. In Rivera we upheld the district court‘s finding that it was reasonable for the attorneys to expend the time they did for the result they obtained.
Appellant Brown argues that plaintiffs’ failure to prevail against most of the defendants requires the conclusion that plaintiffs’ success was limited. This argument is foreclosed by our decision in Rivera, and neither the district court nor the majority opinion accept it. Nevertheless, the majori
The majority relies on our decision in Cabrales v. County of Los Angeles, 864 F.2d 1454 (9th Cir.1988). To the extent that Cabrales is in conflict with our earlier decision in Rivera, we must regard Rivera as controlling. The majority believes that Cabrales does not conflict with Rivera, arguing that together the cases stand for the proposition that a district court enjoys wide discretion in determining whether plaintiff‘s success was limited. Although I agree that district courts should have much discretion in evaluating plaintiff‘s success, I do not believe that they can evaluate plaintiff‘s success by simply comparing the number of defendants found liable to the number originally named in the lawsuit. To the extent that Cabrales stands for such a proposition, I believe that it violates the principles of the Supreme Court‘s decision in Hensley.
In Cabrales, the plaintiff sought to recover from the County, the Sheriff, and a host of deputies for the wrongful death of her son, who committed suicide in the county jail. The County was found liable for $150,000. I do not see how it can be said that the failure to prevail against most of the defendants demonstrates that plaintiff‘s success was limited. The plaintiff prevailed against the County for the full extent of the loss.1 Even if every deputy had been found individually liable, plaintiff‘s recovery would have been the same. What does it matter that the jury let the individual deputies off the hook? The plaintiff‘s rights have been vindicated and the plaintiff will be paid in damages.
Under the facts of Cabrales, the only conceivably valid approach for reducing the award based on “limited success” would be to reason that a portion of the attorney‘s hours were not reasonably expended on the ultimate result of holding the county liable. Yet no such reasoning can be found in the Cabrales case.
I believe the better approach is reflected in the Seventh Circuit‘s decision in Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983). That case was one of the earliest to apply the Hensley Court‘s discussion of limited success to a case in which the plaintiff prevailed against only some of the defendants. Because I believe the Seventh Circuit‘s discussion is particularly apt, I quote from it at length:
[T]he award of attorney‘s fees for time expended in remedying illegal conduct should not turn on whether only some or all of the defendants named in connection with the conduct are ultimately held liable. Hensley clearly permits attorney‘s fees to be awarded for time spent relating to matters not “distinctly different” from those on which the plaintiff ultimately succeeds. When defendants are not named frivolously in connection with the same illegal conduct, it follows that the matters involving the different defendants will always be “related.”
Although the Supreme Court in Hensley did not specifically address situations in which a plaintiff brings a claim against several defendants but obtains relief from only some of them, we have already observed that the Court‘s discussion of awards of attorney‘s fees is structured in terms of compensable “claims for relief.” This language suggests that all time spent in pursuit of relief for the same illegal conduct should be considered in awarding attorney‘s fees once the relief sought is obtained, regardless whether the plaintiff has succeeded in obtaining the relief from only some and not all of the defendants named in connection with that conduct. Once the relief sought is obtained, the plaintiff will have succeeded. It would therefore be illogical to define compensable “claims for relief” in terms of defendants, because once the plaintiff‘s claim succeeds against one de
fendant, the plaintiff will have achieved full relief for the illegal course of conduct notwithstanding the plaintiff‘s failure to obtain relief from each and every defendant. A recovery against more than one of the defendants will not enhance the amount of the damage award. We hold that when, as here, a plaintiff raises a claim for relief that relates to several defendants, not all of whom are held liable, the total time expended on the claim for relief should be counted in awarding the plaintiff attorney‘s fees so long as the defendants from whom plaintiff did not obtain relief were not named frivolously. In these circumstances, the total time expended on the claim can thus be said to have been “in pursuit of the ultimate result achieved” of obtaining relief on the claim, 103 S.Ct. at 1940, and it matters not that the plaintiff was unsuccessful as to some of the defendants. The plaintiff will have obtained all the relief sought in connection with the illegal conduct.
723 F.2d at 1280-81 (citation omitted). Accord Cobb v. Miller, 818 F.2d 1227, 1232-34 (5th Cir.1987). Because there is no suggestion that any of the defendants were named frivolously, the time spent litigating the successful claims should be compensated. The fact that plaintiff did not prevail against all defendants is not sufficient to support a conclusion that plaintiff‘s success was limited.
Our decision in Rivera is consistent with the well-reasoned approach of the Seventh Circuit‘s decision in Mary Beth G. I believe our decision in Rivera is dispositive. As in Rivera, the plaintiffs here were successful in the most important claim: their civil rights were violated. All the claims in this case were related. The defendants who escaped liability were present and were witnesses. Their depositions and testimony were required whether they were individually liable or not. The ultimate size of the monetary award is not grounds for reducing the fee award, unless the attorneys expended hours that were not reasonably necessary to achieving the success they achieved. Here, the district court apparently misunderstood the terms of the
Notes
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer with costs then accrued. An offer not accepted shall be deemed withdrawn.... If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.