Muniz v. United Parcel Service, Inc.

federally information. But that is not recognized reflects this Tohono O’odham the case-here. Nation of Arizona. government hold that

Because 'we PAEZ; Opinion by Judge Dissent insufficient evidence under the introduced Judge WATFORD. test, prong of the Bruce we need not first consider whether Tribal Enrollment alone was sufficient carry

Certificate government’s burden as to the second issue, to that

prong. express As no

opinion. reasons, Zepeda’s

For the above convic- § 2 through

tions under in counts indictment, are REVERSED. MUNIZ, Kim Plaintiff-Appellee, Zepeda’s conspiracy conviction for in viola- § tion of 371 is 18 U.S.C. unaffected disposition.13 Begay, F.3d at SERVICE, INC., UNITED PARCEL (“Section 371 is a federal criminal stat- Defendant-Appellant. applicability,

ute of nationwide and there- No. 11-17282. equally applies everyone every- fore States, where within the ‘United including United States Court of Appeals, country.”). Indians Indian Ninth Circuit. part REVERSED and REMANDED resentencing. Submitted June 2013.* Dec. 5, 2013. Filed WATFORD, Judge, dissenting: Circuit I with much agree majority’s of the

analysis, particularly its conclusion that

whether a tribe has been recognized by government question federal is a

law. But I disagree majority’s with the

ultimate determination that govern- present

ment failed to sufficient evidence jury

from which a rational could infer that

Zepeda has a blood connection to a feder-

ally recognized tribe. Under Jackson v.

Virginia, 443 U.S. 99 S.Ct. (1979),

61 L.Ed.2d 560 a rational certainly

could infer that the reference

Zepeda’s tribal enrollment certificate to Tohono O’Odham” is a reference to

“1/4 * Zepeda raises numerous panel unanimously additional issues finds this case suitable appeal conspiracy that are relevant to his argument. for decision without oral Fed. R.App. conviction. We addressed those issues in a 34(a)(2). P. separate disposition memorandum previously January filed on 2013. See United States Zepeda, Cir.2013). Fed.Appx.

(“FEHA”), Government Code § 12900. Muniz made no federal claim. to federal court UPS removed the case on diversity citizenship. the basis of case was tried to which returned finding verdict in Muniz’s favor on the against had discriminated basis $27,280 in of her and awarded her Muniz, damages. prevailing plaintiff as a Huibonhoa, Hastings Paul Katherine C. FEHA, sought under an award Francisco, CA, LLP, filed the briefs San 12965(b). § fees. Cal. Gov’t Code defendant-appellant. her on With $1,945,726.50in ex- requested fees. After Hess, Paul Ryan the briefs was C. Has- argument, tensive the district court award- Francisco, LLP, CA. tings San $697,971.80. ed Muniz yon Loewenfeldt, Wag- Kerr & Michael appeals. appeal sole issue Francisco, CA, LLP, staffe San filed the whether the district court abused its is. him plaintiff-appellee. brief for the With $697,971.80 awarding discretion in Muniz Zaheer, Daniel A. on the brief were Kerr $27,280. only where the awarded her LLP, Francisco, CA, San and Wagstaffe & Jaffe, Firm, Stephen R. Jaffe Law JURISDICTION Francisco, San CA. subject The district court had matter

jurisdiction gender over Muniz’s discrimi- upon diversity nation claims based of citi- zenship. § 28 U.S.C. 1332. This jurisdiction has the final judgment over § under 28 U.S.C. DIARMUID F.

Before: SMITH, O’SCANNLAIN and MILAN D. OF STANDARDS REVIEW JR., Judges, and K. Circuit JAMES in We review the district court’s SINGLETON, Judge.** Senior District terpretation diversity of state law in a case Ranch, de novo. Inc. v. Md. Stanford SINGLETON; by Judge Opinion Co., (9th Cir.1996). 89 F.3d Cas. Partial and Partial Concurrence Dissent n case, governs If state substantive law SMITH, Judge MILAN D. JR. attorney then an award of fees is also governed by state law. Champion Pro OPINION duce, Co., Ruby Inc. v. Robinson 342 F.3d

SINGLETON, Judge: Senior District (9th Cir.2003). 1016, 1024 California state Kim employer Muniz sued her United law determines the standards and factors (“UPS”) Service, Inc., determining Parcel in California be considered for Superior employment-re- diversity State Court fees in this action. lated in violation of Annuity discrimination Califor- See Winterrowd v. Am. Gen. Ins. Co., Cir.2009). Employment Housing nia’s Fair and Act 556 F.3d We Alaska, Singleton, sitting by designation. **The Honorable James K. Senior Judge United District States District of AND under PRIOR PROCEEDINGS attorney fees awarded state review FACTUAL BACKGROUND1 Orange discretion. 389 law for abuse of Arnold, 179 F.3d St. Partners v. complaint, In her Muniz identified a sin- (9th Cir.1999). of the California Decisions gle adverse action—her employment two- dicta, Court, including Supreme reasoned Manager level demotion from Division binding as to California law. are on us Supervisor alleged alternative “dis- —and Co., Aceves v. Ins. 68 F.3d Allstate criminatory motives” for UPS’s action in (9th Cir.1995). Decisions the six retaliation, separate gender claims dis- persuasive are but appellate courts crimination age discrimination. not bind other or us. In re wrongful do each contended-that the discrimination part negligence traceable in Student-Athlete Name & Likeness Licens was UPS’s hiring training .employees. ing Litig., its 724 F.3d Cir. 2013). We nevertheless follow a should appears only It that Muniz identified published intermediate state decision adversary management one in' UPS —Ron n unless regarding law California are Meyer whom she traced all of her —to Supreme convinced that only problems. Meyer specifi- is the one Watts, reject In re Court would it. cally accused by Muniz of retaliation and (9th Cir.2002); and, Owen gender age discrimination. She does States, Gill, ex rel. Owen v. United .Mary not contend that the District (9th Cir.1983). 1461, 1464-65 her, Manager who demoted or UPS’s other

managers any were biased or had evidentiary rulings “We against review to retaliate her. She main- reason discretion, though of we tains that Gill and the other managers abuse review de . Meyer taking into by were influenced all interpretation

novo the of district court’s of. the actions which this case is the Federal of Evidence.” Rules United brought. (9th Urena, 903, States v. 659 F.3d 908

Cir.2011), denied, U.S. -, 132 cert. — appears the provided, From record (2012). 1608, 182 214 S.Ct. L.Ed.2d essentially- argued that UPS that Muniz has example- of what elsewhere may any sup We affirm on basis Principle” called been the “Peter she —that level, by record, or ported the whether not relied promoted to of incom- had been her v. upon by the Ray- court. Hall N. Am. district petence. See J. Peter '& Laurence. Lines, Inc., 683, Principle: Why Van 686 Hull, Peter mond The Cir.2007). Things Always Wrong decision Accordingly, (William the of the 7 Mor- Go ed.1969). may affirmed “even if the be theory, row In line with wrong grounds on the Meyer relied that' apparently argued UPS wrong Cigna Prop. or Muniz’s reasoning.” simply recognize & Cas. to fail- first a Corp., ings, Ins. Co. Polaris Pictures 159 and his efforts were reasonable Cir.1998). 412, persuade management to attempt senior 418 Dist., Virgenes transcript Water 94 Cal. 1. did a v. Las Mun. not include the trial 440, 143, (Cal. Rptr.2d Cal.App.4th excerpts in its This failure 79 of record. makes a (same). Ct.App.2000) prepared regarding attorney We have our fees diffi determination Riles, 1281, upon- parties' See based cult. Maria P. v. Cal.3d facts statement 1295-96, 872, not believe Cal.Rptr. submission^ do to be P.2d 932 1987) (Cal. City (failure disputed. Angeles, Los appellant challenging Chavez transcript 47 Cal.4th fee awards to include trial (2010) affirmance); approach). summary (suggesting this Vo in record warrants with of causation position regarding her to consistent inference ad demote jury disagreed employment The and in 2008. Mun- limitations. verse actions her damages.. negligent not chal- iz’s claim for and supervision UPS does awarded training summary judgment on survived but jury appeal. verdict lenge at: trial. concedes abandoned 30, 2009, a com- March Muniz filed On negligent supervision claim was Department of plaint with the California gender interrelated with the discrimination (“DFEH”) Housing Employment and Fair claim. based on that she was demoted alleging engaging in age and retaliation for gender, The case went to trial on claims of activity: only adverse ac- protected gender/sex-based employment discrimina state court tion Muniz mentioned her Serv., tion. See Muniz v. Parcel United her and in administrative com- complaint Inc., 4:09-cv-019887-CW, No. 2011 WL two-step Her plaint was demotion. .the (N.D.Cal. 2011). at *1 Aug. the Manager about complaint, Performance The district claims described (“MPIP”) Plan and the stock Improvement and the result as tried follows: later. came Muniz filed the instant bonus trial jury A was held Plaintiffs on April action gender FEHA claim. discrimination discrimination, age claims for claim alleged Muniz’s This rested on ad- three (1) punitive damages retaliation were re actions: of a verse denial stock (2) bonus; against through summary judg MPIP; her her placement solved on the (3) summary After UPS her ment. moved demotion from man- division prior judgment argument, supervisor. but to oral ager found that her age deny Muniz abandoned discrimination decision to UPS’s Plaintiff stock longer argued and no her claim retali was not gender. bonus motivated her pled. claim fell under FEHA as ation It concluded that UPS’s decision to sought complaint MPIP, to amend place although her her on an motivat- allege properly retaliation under state la ed and a fac- substantial law, but the district held that causing harm, bor she tor in her was made for and, event, long any too in had waited she discriminatory both and nondiscrimina- not reports could show of Fair tory reasons and that would UPS have Act in Labor Standards violations the made same decision for non-dis- enough However, in to permit criminatory were close time jury reason.2 the tried, ognized the this 2. At time case was the a mixed-motive to FEHA. defense Ninth held, had in Circuit reliance on 1991 amend Early year Supreme the California Court VII, plaintiff proved that a ments Title who essentially determined that California law but discrimination lost a mixed-motive case City as the same federal law. Harris jury employér because believed the would Monica, 203, Santa 56 Cal.4th 152 Cal. have made the same adverse decision in the (2013). Rptr.3d 294 P.3d discriminatory may of a absence motive nev appear not It does should Hams affect attorney ertheless recover reasonable fees. the outcome here. While UPS terms the Palace, Inc., See Costa Desert 299 F.3d suggests mixed-motive result a win and for it (9th Cir.2002), aff'd, 539 U.S. any that Muniz should not recover fees for (2003); S.Ct. 156 L.Ed.2d 84 Norris v. it, spent apparently time on Corp., Sysco Cir. 1999). treated all of the jury discrimination claims apparently The in this case apparently conformity spent as related and included time instructed in law. with federal At claims, lodestar; supports time on them in the of the trial of Müniz's Harris in- Supreme cluding any considering, spent challenging Court was time decided, attorney but had not rec- whether California MPIP decision in the award of fees section Government Code gender motivated California Plaintiffs found that (cid:127) her, 12965(b).4 a substantial UPS demote UPS causing her harm factor and. post-trial a number of mo- brought non- her for a have demoted would not which were decided the trial tions award-, discriminatory reason. decision, In that the district court court. $27,280.00, was the ed Plaintiff request both parties’ also addressed $9,990 earnings, for her lost sum The court found Muniz to attorney fees. and $7,300 expenses medical past for her party rejected UPS’s prevailing be a $9,990 non-economic loss.3 for her past fees.. The court sum- motion Muniz, '3740808, at *2. UPS 2011 WL request marized Muniz’s fee the follow- Muniz, par- claiming prevailing to be each FEHA, ing table: ties, attorney fees under sought Hourly

Attorney Billed Total Fees Rate Hours 1,610.8 $1,047,020.00 Stephen $650.00 Jaffe 138,320.00 395.2 $ Daniel Zaheer $350.00 8,149.00 28.1 Kathryn $ Landman $290.00 103,662.00 531.6 $ Jaffe $195.00 Susan $1,297,151.00 Subtotal $1,945,726.50 x Proposed Multiplier 1.5Lodestar Subtotal per hour. The district court left Mr. Muniz’s re- The district court considered $130 quoted Zaheer’s determining fees in the lodestar. quested intact.. court’s review Based district objected Initially vigorously to the record, parties, the submissions of the claimed the Jaffes. The district hours in the same awarded other cases fees It found largely agreed with ÜPS. district, and the district court’s observation inadequate and keeping record Mr. Jaffe’s pro- during trial and earlier of Mr. Jaffe it. improve him three times to sent back district court reduced his

ceedings, the had ultimately found that Jaffe The court hourly per fee from hour to requested $650 or sufficiently proved his hours Ms. not court reduced per hour. reduced each $445 hours and therefore Jaffe’s from to requested multiplied Landman’s fee court then by percent. $290 Ms. adjusted adjusted hourly by rate to the and Ms. Jaffe’s rate from $195 $230 differs from federal law re alleged California law on this record all of the and employment claims garding discrimination adverse the calculation of reasonable fees sufficiently permit award language are related full of the upon differences in the based attorney fees. statutes, governing we will be sensitive to Chavez, 104 Cal. those differences. trial, jury asked the the close of At upward ”An or Rptr.3d 224 P.3d at 50. damages totaling during argument to award fig adjustment from the lodéstar downward $700,000. over far more common under Califor ure will be arising under 4. We consider federal cases Id., will law.” nia law than under federal § to the extent Title and 42 U.S.C. VII (citation n. 6 Cal.Rptr.3d 224 P.3d at 51 persuasive. California would consider them omitted). see, however, respects As we shall in some ($2 at a lodestar request hours and arrived award of million fees requested court; $696,162.78 awarded),5 $773,514.20. resulting The district reduced versus $696,162.78. percent adjusted a further 10 this amount fee award (having reflect Muniz’s limited success re district court summarized Muniz’s award $27,280) disproportionate covered fees and costs as follows:

Attorney Hourly Rate Hours Total Billed Fees $573,444.80 Stephen Jaffe :_$445.00_1,288.64 $138,320.00 Daniel Zaheer 395.2 $350.00 Kathryn 6,463.00 Landman 28.1 $230.00 $ 55,286.40 Jaffe Susan 425.28 $130.00 $ $773,514.20 Subtotal x $696,162.78 Subtotal Lodestar Reduction of 0.1 1,809.02

Non-statutory costs $ $697,971.80 Total award lar argues instance. UPS DISCUSSION that the award of fees to Susan paralegal Jaffe was based courts,, In general, California like upon hearsay. inadmissible UPS directs their counterparts, federal utilize the lode primary its argument to the treat- court’s “touchstone”) (or approach star to deter ment of limited Muniz’s success and its proper mine a fee award to a prevailing inflated fee request, which Chavez, plaintiff UPS contends rights a civil law suit. required a substantially greater P.3d at 51. downward Each attorney’s hourly adjustment. reasonable rate is deter mined, and then that rate multiplied is reasonably spent hours in achieving WAS THE FEE AWARD TO PARALE- Id. The result

plaintiffs victory. is the GAL SUSAN JAFFE BASED UPON lodestar, which be may adjusted up or INADMISSIBLE HEARSAY? down to appropriate determine an in the individual case. Id. in support the absence Declarations at special circumstances which would torney make .fee awards should be based adjusted unjust, lodestar amount personal knowledge. As Mardirossian & should be a prevailing awarded to socs., plain Ersoff, Inc. v. Cal.App.4th Id., tiffs attorneys. 104 Cal.Rptr.3d (2007). 62 Cal.Rptr.3d Ms. 224 P.3d at 45. Jaffe did not swearing file declaration spent hours she on this case. Mr. narrowly has appeal. focused its (his third) Jaffe filed It a declaration does not challenge verdict. It alleged concedes he upon that the was based personal district court’s lodestar his calculation, noted, knowledge after the reductions and in which he he stated that within its except discretion in one particu- had watched Ms. Jaffe her reconstruct $696,162.78 request initial (approximately approximately $2 is 26 times million) approximately 73 times the dam- damage award. age ($27,280). The reduced fee award used, proper analogizes hours. information he Mardirossian using hours the same showed spreadsheet for an and that-the attached the foundation fee award injured her hours. party California to the rule that an injured i.e., must show that he was dam- — that this statement and objected evidence, aged by persuasive but is not spreadsheet were inad — accompanying required certainty to show with that Mr. hearsay. argued Muniz missible damage. amount of his at Ms. Jaffe’s declaration verified Jaffe’s (precise spent calculations of hours upon personal knowledge. his hours based upon not required; per- estimates based evidentiary hearing held. The No knowledge approxi- sonal which are a.fair interpreted Mr. Jaffe’s decla suffice). Here, -personal had mation will there is no stating ration as that he tasks, hours and knowledge question Ms. Jaffe’s the Jaffes some hours invested her hours case, he watched her reconstruct that the district court knew attached to his spreadsheet and the he they Mr. performed. what tasks Jaffe.eer- hours, and that he declaration showed tainly if assigned knew he work Ms. personal knowledge from could state if completed Jaffe and she it. Neverthe- an put approxi she down were the hours less, requires evidentiary Mardirossian an un actually expended mation of those she aspect basis for each of an award. Id. tasks. supervision der his on the identified complete explana- the absence of a more Foods, Strong v. Valdez Fine regarding para- tion from the district court (9th Cir.2013) 1042, 1045-47 (rejecting sim hours, legal conclude allow- cannot hearsay objection finding ilar that the ing hearsay justification as the for an sole “lay opin an expression declaration was award to Ms. Jaffe was harmless. ion”). argu Here the would declaration n ably expert opinion by Mr. Jaffe. be DID THE DISTRICT COURT ABUSE is controlled Our decision this'issue ITS DISCRETION IN FAILING TO by the Federal Rules of Evidence. Hear- THE A REDUCE FEE AWARD TO by does say is a statement someone who EXTENT DUE TO LIM- GREATER of- testify hearing not at a and which is INFLATED ITED SUCCESS AND the truth of the matter prove fered to FEES? FED! asserted in the statement. R. - 801(c). Here the matter asserted EVID. reported No decision of the expended in the statement is the hours Supreme Court has held that a Ms. in this case and contained Jaffe trial court abused its discretion award spreadsheet. We are satisfied that FEHA ing prevailing plaintiff in a case Mr. only interpretation reasonable the lodestar. The cases upon fees based provid- Jaffe’s declaration is that Ms. Jaffe Chavez, relies, all like which UPS ed this information to him. It was there- the trial upholding involve decisions court’s hearsay and the district court’s con- fore adjusting calcula discretion in lodestar contrary clearly clusion to the mistaken. determining 104 Cal. tion and fees. See 710, 224 at 54-55. These Rptr.3d argues spreadsheet that if is to UPS provide support cases little be hearsay, any error was harmless because prece are not cause trial court decisions the trial court had sufficient information to upholding An appellate dential. decision reasonably by the spent éstimate hours of trial court discretion Jaffes, particular exercise adjusted and her hours reflects the appellate that regarding court’s conclusion does -not mean 224 upheld also a substantially not have trial court

would did not abuse its discretion evaluating attorney different decision. fees awarded in civil

rights fee-shifting case for limited success Eckerhart). I. success Hensley Limited under argues UPS the district that, Hensley cautions before adequately court did not account for Mun- may hours be specifically deducted for un in this iz’s limited success case. Under claims, successful the claims must be suit law, both California and federal a fee able for entirely separate lawsuits. 461 adjusted must be reflect limited 434-35, 1933; U.S. at 103 S.Ct. Schwarz v. Eckerhart, Hensley v. success. 461 U.S. Servs., Sec’y Health & Human 73 F.3d of 424, 1933, 440, 103 S.Ct. 76 L.Ed.2d 40 895, Cir.1995). 901 They must be Chavez, (1983); 710, Cal.Rptr.3d 104 224 distinct both fact Hensley, and law. 461 P.3d at California 434-35, 53-54. considers this 1933; Harman, at U.S. 103 S.Ct. Chavez, aspect persuasive. (in law federal 69 Cal.Rptr.3d at 760 evaluating a claim 710, Cal.Rptr.3d 104 224 at 53-54. for limited success Hensley, under “the The limited success determination has two inquire court [must] whether the different first, components: the court must deduct claims for ... relief are based on different spent so, from the lodestar hours exclusively legal facts and If they qualify theories. claims.”) (citations claims; on unrelated unsuccessful as and sec unrelated and inter ond, omitted). quotation the court must evaluate nal remaining marks To deduct time, if they hours to determine were the court must reasonably find that the time necessary deducted to achieve the result did not aid in proving obtained. the suc Schwarz, cessful Hensley, 1933; at claims. 461 U.S. 73 F.3d at 903- S.Ct. Hotel, (discussing Herrington Cnty. Odima v. Tucson Westin 53 F.3d So noma, Cir.1995). Cir.1989)). 1484, 1499-1500(9th points

UPS to Muniz’s claims for retalia (a) tion age discrimination, The district court did not abuse its it claims are failing

discretion in “unrelated.” to deduct The district more agreed, reasoning that age time the. claims discrimina for unsuccessful tion and retaliation claims involved differ law requires a trial legal ent theories than discrim adjust court to a lodestar award to account claim, ination and that Muniz had not spent exclusively time on an unsuccess shown they were related factually. Chavez, ful claim. 104 Cal.Rptr.3d (cid:127) The district court therefore deducted 224 P.3d at It appears 53-54. that Cali percent further 10 from the total lodestar fornia law follows federal law in evaluating award on this argues account. UPS such claims. See Envtl. Prot. Ctr. v. Info. this was not a sufficient deduction. Prot., Cal. Dep’t Forestry & Fire Cal.App.4th 368- attempt UPS does not to estimate (2010) (applying analy limited success the actual number of hours the Jaffes sis set in Hensley forth v. Eckerhart and reasonably could spent have on the claims remanding for reevaluation of discrimination, award of at age retaliation, negli torney fees under private California’s gent at punitive hire and damages. ap torney general statute); fee-shifting Har parently assumes that it and the Jaffes man v. City Cnty. Francisco, & San spent equal amount of time on each Cal.App.4th 750, claim, 69 Cal.Rptr.3d whether successful or unsuccessful. (2007) that, remand, (holding points to no evidence supporting this Harman, 1933; argued that the district 461 U.S. at S.Ct. assumption. UPS spent Cal.Rptr.3d Initially Muniz as 69 at 761. we must court should assume that developing age time its discrimina- the level of Muniz’s success. Her much evaluate summary insignificant. at not ini tion claim which abandoned success was her spent alleged as it on its discrim- she that had judgment complaint, tial after prevailed by which it adverse employment ination claim made one decision n day jury a trial. The district court two levels man demoting seven her from division contention, un- rejected ager this and this properly supervisor. to She attributed law, and that to prohibit der both federal California adverse decision discrimination a defense jury by age sustained mixed-motive ed FEHA. She offered discrimina attorney tion, of re preclude gender-based' does not discrimination and fees for that claim. taliation as alternate motives for jury FEHA violation. The found that the Gates, criticized In Corder v. this Court by gen was two-step demotion motivated adjustments to the lodestar percentage prohibited by der bias FEHA. Muniz success, concluding limited amount for $25,000” “in damages asked for excess be in the success should addressed limited complaint. in her awarded by deducting specific calculation lodestar $27,280. or equitable sought No relief was (9th Cir.1991). hours. obtained. open per- is much to California law more adjustments up centage the lodestar argues the district court Chavez, 104 Cal.Rptr.3d down. by failing its discretion to discuss abused event, n. 6. In any at 51 Corder relationship damages that the awarded a deduction harmless error un- finds such damages to had to the- Muniz Muniz counts, less the district double how- sought. opinion, The district court’s here. 947 at 378. was not done ever, that it aware of makes clear was well relationship. The court ex- district convinced, however, are not We “was pressly relied on fact that Muniz clearly wrong failing past minimal awarded a amount for her them, particularly to further deduct nothing received for future eco- losses and appear party it does not that either where nomic and noneconomic losses.” This spent exclusively hours segregate could of discretion. not an abuse the unsuccessful claims. The district court clearly declining was not mistaken in abuse its II. The district court did not greater a unsuccessful amount for deduct declining to reduce discretion claims. request because the further fee request initial (b) implicit conclu- The district court’s inflated fee sion that the hours claimed Mun- sought attorney'fees reasonably iz deductions were after $1,297,151.00, multiplier 1.5 enhanced a obtain a incurred order $1,945,726.50. court denied $27,280 verdict determination ultimately awarded multiplier and gender-biased employment deci- $696,162.78, approximately percent or not clearly sion was mistaken law requested.- of the amount trial reduce or clearly lim allows the court to component The second of the if that the .the fees it is satisfied inquiry deny whether ited success asks necessary unreasonably is inflated. Cha reasonably request were hours allowed vez, at 54- Hensley, 224 P.3d to achieve the result reached. 226 $17,500 in long It been the law California cluded that a award of has

55. or unreasonably request an inflated fee neither nominal minimal. Here that $17,500. recovered more than authorizing a circumstance special is substantially deny court to reduce or trial that presenting To the extent unrea- Unruh, v. 32 altogether. Serrano fees sonably request inflated for a presents fees 635, 754, 621, Cal.Rptr. 186 652 Cal.3d success, separate from issue limited is (Cal.1982). Like all special 985 cir P.2d request of determined as the time the cumstances, is permitted a reduction but Here, fees is court made.- the district required. not The district court has broad unreasonably found that Muniz made an to determine whether an inflat discretion request. to inflated fee Its decision deduct and, if request fee warrants reduction ed percent 10 lodestar was based so, case, In to what extent. the dis part finding. on this The district court that the request trict court concluded fee it had under that discretion Cha- believed recognized was inflated and that it had vez to deduct further or eliminate fees, deny but discretion all concluded entirely, fees but concluded a lesser sanc- a fees or limiting total denial of appropriate. Beaty tion was BET to a nominal amount would be too Inc., 607, Holdings, 613-14 Instead, severe a sanction. .the district Cir.2000) (remanding to ensure that dis- request inflated court considered the fee trict understood that it had discre- by 10 reducing percent. the lodestar tion to fees based upon reduce results obtained). UPS has not shown that this Chavez, argues 104 Cal. decision abuse was an of discretion. 41, requires deep 224 a Rptr.3d P.3d distinguishable. conclusion, er cut. Chavez is Like UPS has not demonstrat- Muniz, a proceed Chavez declined to as ed that initial request fee in this case but, civil in state limited action un was made in bad faith and was so inflated Muniz, $25,000, like recovered less than that a percent negative multiplier 10 applicable which under an not adequate California stat account both for limited permitted ute a possible reduction in awardable success and inflation Id., request. fees. 104 at 224 P.3d Here, 45. Muniz recovered than more It is not clear that the dissent $25,000and was not vulnerable to the stat disputes anything we have said so far. permitting ute reduction in fees. This argues The dissent that the appropriate case would not have been a work,” failed to “show which we under action, limited civil and the trial court ex stand to mean the district court did fees, grant ercised its discretion to while not disclose the basis for her decision to Chavez the court exercised its discretion only percent deduct from the lodestar Id., deny Cal.Rpt fees. r.3d per calculation rather than some other at centage, e.g., percent, percent or 90 -. UPS’s on Farrar Hobby, reliance 506 percent, based its conclusion that U.S. 113 S.Ct. 121 L.Ed.2d 494 limited request success and an inflated fee (1992), is also inapposite. permits Farrar warranted deduction from the lodestar. require but does not a reduction in fees A trial parties court owes the and a re only where or nominal minimal damages viewing court a reasoned resolution of the 114-15, are awarded. Id. at 113 S.Ct. 566. factual legal disputes presented by City In Morales v. Rafael, San case. Typically finding this involves facts Cir.1996), legal conclusions, this Court con- and providing may awarding in an simply fees amount as in a written decision be included very higher, than any higher, not even much dispute does done here. UPS awarded, litiga- where successful findings damage of fact. UPS court’s trial im- conduct which FEHA was en- the was tion causes argue that lodestar does not ar- to be and correct- presents legal exposed- It acted to deter properly calculated. omitted). ed.”) (internal quotation marks upon what we have chiefly based guments reading of an untenable concluded to that has failed demonstrate the light argu- of the Chavez and Farrar. award, except to the extent it ad- fee record, it and the by ments made fees, clearly paralegal mistak- dressed the district court’s decision provided, en. to enable us to resolve adequate more than judgment of the district court this appeal. part in is AFFIRMED and Vacated in press appeal did not on Notably, UPS part, this case is REMANDED to the favored the dissent. approach the 1) to an award of reconsider that we consider assuming Even should work on paralegal fees to Susan Jaffe for matter, sufficiently the the district court determine, in behalf of Muniz to the reasoning permit meaning to explained its instance, hearsay excep any whether first Padgett See v. Lo appellate ful review. Mr. applies to Jaffe’s declaration re tion Cir.2013). (9th 1205, 1208 venthal, 706 F.3d in garding paralegal fees for work this provided district opinion, In its the 2) case and to determine an award to explain calculation of helpful table to its Muniz for reasonable fees and adjust its and the effect of lodestar in defending appeal.6 incurred costs ment that calculation. The -district on SMITH,, Judge, concurring Circuit in M. expressly discussed factors rele court also dissenting part apd part: adjustment and made vant the lodestar majority with the that the dis- agree I that Muniz had ob why clear it believed granting trict court abused its discretion.in only tained limited success and submitted hearsay solely fees based evi- paralegal request. an inflated respectfully I dissent from re- dence. opinion. the majority CONCLUSION mainder of attorney fee recognized Although it had we review awards discretion, long have “[w]e fur- abuse of to reduce Muniz’s fee award discretion their district courts must show gave ther The district court held that than did. calculating awards].” explanation [such its reason- work when clear and concise Loventhal, F.3d 1205, every Padgett asks v. 706 1208 ing addressing issue that UPS (9th Cir.2013); City Fonta is a dis- appeal. us to consider on There McCown Cir.2009) (“A 1097, na, F.3d 1102 parity damages recovered and 565 between its discretion in court acts within awarded. We are not convinced district fees reason awarding fees when the amount is requires law the trial court California its fully explains 222 the court rea disparity. Beaty, able and reduce award.”). (“[A] This making re soning trial court does not at 612-13 good makes sense. “Without quirement law discretion under abuse its Cal.Rptr. plaintiff allows a to recover Cal.3d at California law 932; Ketchum, 17 P.3d respect to the only not the fees incurred with her fees on any 747-48. Muniz should recover underlying claim but also fees incurred at P., right appeal. enforcing Maria fees. (1983). explanation the district adequate S.Ct. 76 L.Ed.2d 40 court,” are conduct a explanation, unable to mean Without such an we cannot awarded, ingful meaningfully of the fees and we assess the review reasonableness of way knowing whether the dis the fee award. have no Padgett, trict abused its discretion. -court circumstances, Under these I believe we (citing Ass’n 706 F.3d at must remand the district court to com- California, Mexican-Am. Educators plete degree majority its work. To the Cir.2000) (en banc)). As otherwise, holds it departs from and adds recently explained, we mandate that “[t]he our jurisprudence confusion to well-settled show their work district courts is all the governing the review of fee awards. where, here, important more cases as respectfully I dissent. many overlapping [ ] there are claims and Padgett, mixed 706 F.3d at result[s].”

1209. employ,

Fee awards that across-the- percentage subject

board reductions “are scrutiny....” v. heightened Gates

Deukmejian, 987 F.2d Cir. 1992). applies the court Where across- America, UNITED STATES of percentage the-board reduction in lieu of Plaintiff-Appellee, line-by-line analysis, in a engaging “[a] neglects cursory explain statement” that why particular a reduction is “the correct STERLING, Ronn Darnell Cornell Des- ... reduction does not allow for us mean Brumfield, mond a.k.a. Carnell D. assess the ingfully to determination.” Brumfield, Id. Defendants-Appellants. absent “a Accordingly, concise but clear No. 12-12255. explanation of [the court’s] reasons for reduction,’-’ choosing given percentage Appeals, United States Court of have no choice but to conclude that Eleventh Circuit. arbitrary. chosen reduction was Id. at Nov. (internal quotation 1400-01 marks omit ted); also v. City see Gonzalez May wood, Cir.

2013).

Here, applied the district court a ten-

percent across-the-board lodestar reduc- doing,

tion. merely so the court ex-

plained reduction necessary

account -for “Plaintiffs limited success.” explain

The court did not how it arrived-at reduction,

a ten-percent nor how the

$697,971.80 approved award it after

applying this reduction could have been in light $27,280.00

reasonable the mere

that plaintiff damages. recovered in Eckerhart,

Hensley 461 U.S. 436-

Case Details

Case Name: Muniz v. United Parcel Service, Inc.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 5, 2013

Citation: 738 F.3d 214

Docket Number: 11-17282

Court Abbreviation: 9th Cir.