Opinion
H027685
12-4-2007
MICHAEL SCHMIDLIN, Plaintiff and Appellant, v. THE CITY OF PALO ALTO et al., Defendants and Appellants.
NOT TO BE PUBLISHED
This appeal is a companion to Schimidlin v. The City of Palo Alto et al. (Dec. 4, 2007, H026841) ___ Cal.App.4th ___ in which we [have] affirmed a judgment for plaintiff Michael Schmidlin against several police officers of the City of Palo Alto for tortious conduct toward plaintiff in connection with his detention and arrest on March 29, 1997. In this appeal we review the courts award of attorney fees to plaintiff. We find that the court committed reversible error by failing to comply with the "lodestar" method of fee calculation mandated for cases of this kind. Accordingly, we will reverse the fee award.
BACKGROUND
Plaintiff sought costs and attorney fees under 42 United States Code, section 1988 (§ 1988) and Civil Code section 52.1. He requested a total of $589,261.54, consisting of the following elements: (1) $368,074.00 in fees incurred in this matter; (2) $ 24,047.88 in costs incurred in this matter; (3) $189,888.00 in fees incurred in defending against the criminal charges arising from the underlying events; and (4) $7,251.66 in costs incurred in that matter. The court awarded a total of $93,300.70, consisting of $55,000.00 in fees plus $12,589.04 in costs for this case, and $20,000.00 in fees plus $5,711.66 in costs for the criminal case. Both parties have appealed.
The courts initial award was $20,000.00 in criminal defense fees, $5,440.16 in criminal defense costs, $55,000.00 in current fees, and $11,896.33 in current costs. In response to a motion by plaintiff, the court allowed an additional $ 271.50 in criminal defense costs and $692.71 in current costs, yielding the totals stated in the text.
I. Defendants Appeal
A. Expenses in Criminal Matter
Defendants contend that the trial court erred in awarding fees and costs incurred by plaintiff in defending against the criminal charges brought against him. The trial court made the award under section 1988, subdivision (b) of which provides in pertinent part, "In any action or proceeding to enforce a provision of [42 United States Code] section[] . . . 1983 [(§ 1983)]. . . , the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys fee as part of the costs . . . ." In awarding criminal defense costs, the court relied on Beltran Rosas v. County of San Bernardino (C.D. Cal. 2003) 260 F.Supp.2d 990 (Rosas ), which awarded such expenses under more general authority to the effect that expenses incurred in other legal proceedings may be recovered under section 1988 provided the proceedings are sufficiently related to advancement of the claims successfully asserted in the action where the award is made. (Id. at pp. 993-994, citing Webb v. Dryer County Bd. of Educ. (1985) 471 U.S. 234, 243 [fees incurred in ancillary administrative proceeding might be recoverable if "both useful and of a type ordinarily necessary to advance the civil rights litigation to the state it reached before settlement"]; N. C. Dept. of Transp. v. Crest St. Council (1986) 479 U.S. 6, 14 [fees must relate to proceedings that are "part of or followed by a lawsuit"]; Bartholomew v. Watson (9th Cir. 1981) 665 F.2d 910, 914 [allowing costs incurred in prosecuting state action made necessary by state defendants invocation of federal abstention doctrine]; G & G Fire Sprinklers, Inc. v. Bradshaw (9th Cir.1998) 156 F.3d 893, revd. on other grounds in Bradshaw v. G & G Sprinklers, Inc. (1999) 526 U.S. 1061; see Lampher v. Zagel (7th Cir. 1985) 755 F.2d 99, 103-104 [applying Bartholomew to costs incurred to defend state declaratory relief action initiated by defendant after federal suit filed]; Stathos v. Bowden (1st Cir. 1984) 728 F.2d 15, 22 [sustaining award for costs incurred in preemptive declaratory relief action which plaintiffs were "forced to defend . . . lest they lose their § 1983 claim in the federal courts through collateral estoppel"].)
The Rosas court found no Ninth Circuit decision specifically authorizing an award of criminal defense fees in a 1983 action, but noted that such an award had been upheld in Castellano v. Fragozo (5th Cir. 2002) 311 F.3d 689. Defendants imply that this decision was deprived of all precedential force when it was vacated on other grounds after rehearing en banc. (Castellano v. Fragozo (5th Cir. 2003) 352 F.3d 939.) No argument is offered in support of this supposition, which we reject. Courts routinely cite decisions that have been overruled on a ground unrelated to the point for which they are cited. Such decisions retain persuasive force with respect to the points not reached by the overruling tribunal. We see no reason to suppose that a different rule applies to federal circuit court decisions vacated en banc.
Defendants seek to distinguish this case from Rosas on the ground that the claims in Rosas included one for malicious prosecution, as to which favorable termination of the criminal case was an element the 1983 plaintiff had to prove. Defendants attribute to the court the rationale that the malicious prosecution claim "required proof that the underlying criminal proceedings terminated." In fact, however, the decision turns on the necessity of securing a dismissal of the criminal charges to avoid exposing the plaintiffs 1983 claims to the bar of Heck v. Humphrey (1994) 512 U.S. 477, as interpreted in such cases as Harvey v. Waldron (9th Cir.2000) 210 F.3d 1008. (Rosas, supra, 260 F.Supp.2d at p. 994.) Defendants make no attempt in this or the related appeal to establish that plaintiffs excessive force claims were immune to such a bar. (See Schimidlin v. The City of Palo Alto et al., supra, ___ Cal.App.4th ___ [pp. 15-16].) Their attempt to distinguish Rosas on this basis fails.
Defendants argue that the holding in Rosas is unsound because it circumvents other Ninth Circuit authority restricting the recovery in 1983 actions of damages for harm suffered after the filing of a criminal complaint. These cases rest on the rationale that the prosecutors independent decision to file charges breaks the chain of causation between police misconduct and harm subsequently suffered by the section 1983 plaintiff. (See Smiddy v. Varney (9th Cir. 1981) 665 F.2d 261, 267 ["the filing of charges under certain circumstances does break the chain of causation between an arrest and prosecution"]; Sloman v. Tadlock (9th Cir. 1994) 21 F.3d 1462, 1474-1475 [recovery of costs incurred in defense of criminal case not supported where it did not appear that decision to prosecute was caused by officers tortious conduct]; Borunda v. Richmond (9th Cir. 1988) 885 F.2d 1384, 1390 (Borunda) [award of criminal defense expenses as damages sustained because evidence supported finding that officers "procured the filing of the criminal complaint by making misrepresentations to the prosecuting attorney"].)
The rationale of these cases depends on common law conceptions of tort causation. The distinction was recognized in Burunda, where the court rejected an argument that cases denying an award under section 1988 precluded the recovery of defense costs as damages. (Burunda, supra, 885 F.2d at p. 1389, citing Perkins v. Cross (8th Cir. 1984) 728 F.2d 1099 (per curiam) & Greer v. Holt (6th Cir. 1983) 718 F.2d 206 (Greer).) Defendants cite that case for its dictum that those cases appeared to correctly apply the language of section 1988. We find the case more pertinent for its refusal to equate recoverable items of damages with items recoverable as part of a statutory cost and fee award. We join the Burunda court in rejecting the attempt to blur these quite distinct inquiries.
We find less persuasive the courts dictum that section 1988 on its face precludes an award of defense costs under that statute. (Borunda, supra, 885 F.2d at p. 1389.) Of the two cases cited, only Greer, supra, 718 F.2d 206, clearly supports the suggested rule. There the court refused to allow the attorneys for a section 1983 plaintiff to recover for expenses incurred in successfully defending him against related criminal charges. The client had refused a plea bargain in the criminal case because the attorneys "reasoned that a guilty plea would preclude a judgment in federal court for damages under [section] 1983." (Greer, supra, 718 F.2d at p. 207.) In now seeking their defense costs, they asserted that success in the criminal case had been "a necessary predicate to the civil action." (Ibid.)
The other case cited in Borunda, supra, 885 F.2d at page 1389, can be reconciled, at least in broad principle, with Rosas and the cases there cited. In Perkins v. Cross, supra, 728 F.2d 1099, the court remanded a fee award for reconsideration in light of an intervening Supreme Court decision, Hensley v. Eckerhart (1983) 461 U.S. 424. Without extended discussion or citation to other potentially relevant authority, the court directed that on remand, "no fees should be awarded for any time the lawyer spent defending the appellants in the original municipal court [criminal] proceeding, except to the extent, if any, that research or investigation done in connection with that proceeding proved directly relevant to the successful prosecution of the later civil rights claims." (Perkins v. Cross, supra, 728 F.2d at p. 1100.) Thus the court recognized that defense activities in the criminal case might be recovered in the section 1983 case if they contributed to the plaintiffs success in that case. The court apparently did not consider how this principle might apply where successful defense of the criminal action is itself a necessary step in, or prerequisite to, success in the civil case.
The court did not contest the necessity of a successful result in the criminal case as a predicate for any recovery in the 1983 action, but ruled that recovery of the cost of obtaining that result was by barred by "the statutory language of [section] 1988." (Greer, supra, 718 F.2d at p. 207, fn. omitted.) Apparently it read the phrase " `[i]n any action or proceeding to enforce a provision of [section] . . . 1983 " to limit the phrase "`reasonable attorneys fee. " (Id. at p. 208) This reading does not withstand examination. The first-quoted phrase does not purport to define or condition the second; it describes the procedural setting in which the award is made. To treat it as defining the nature of the award is hardly consistent with the plain meaning rule, or any other principle of statutory construction, or indeed with basic semantics. Nothing in the "statutory language" compels the courts holding, or dictates a result either way. That is why more circumspect decisions, such as those we cite in the first paragraph of this section, have consulted the purpose of the statute in order to determine what constitutes a "reasonable fee." The Greer decision goes against the tide of those cases on a semantical ground that appears unsound on its face. At least one federal court has declined to follow it. (Phelps v. Hamilton (D. Kan. 1994) 845 F.Supp. 1465, 1473, revd. on other grounds sub nom. 76 F.3d 393 (table) [nonpub. opn. at 1996 WL 50464, as of Nov. 9, 2006].) We shall do likewise.
B. Partial Success & Unreasonable Billings
Defendants assert that the court abused its discretion by "failure to reduce the litigation cost award to reflect partial success and unreasonableness of attorney billings . . . ." They concede that the court made substantial reductions in the fee award on these grounds, and reduced the cost award for other reasons, but they complain that the court "did not reduce the litigation cost award for these factors at all." We need not reach the question whether such a reduction might have been appropriate because defendants would state no basis for reversal even if that premise were assumed.
Defendants offer the somewhat contorted observation that the courts failure to reduce the award on this ground was "legal error as an abuse of discretion, which is subject to de novo review on appeal." The case cited for this proposition actually states that while a fee award is reviewed for abuse of discretion, "`[a]ny elements of legal analysis which figure in the district courts decision are . . . subject to de novo review. " (Morales v. City of San Rafael (1996) 96 F.3d 359, 362, quoting Corder v. Brown (9th Cir.1994) 25 F.3d 833, 836.) This reflects the familiar principle that pure questions of law are generally reviewed without any of the deference typically accorded trial court rulings on factual or discretionary issues.
Defendants have failed to identify any pure question of law on which the trial court erred. They cite Noble v. Herrington (D.D.C. 1989) 732 F.Supp. 114, where a federal trial court reduced a cost award by an amount proportional to the reduction it made in the fee award based on partial success. The fact that one trial court made a certain order in its discretion is hardly authority for reversing another trial court for making a different order. The essential function of discretionary standards of decision is to insulate some rulings from appellate intervention when reasonable minds could differ as to their correctness.
Defendants offer no authority for the proposition that a cost award must undergo some reduction on account of a plaintiffs partial success. Nor is that proposition persuasive on its face. If a trial court finds that all of the plaintiffs costs were necessarily incurred to secure judgment on his successful claims, we can think of no reason to categorically require a reduction in the award merely because he failed on other claims. A defendant might provide grounds for such a reduction by, for instance, showing that portions of the costs were attributable solely to the failed claims. Defendants make no attempt at any such showing. Accordingly they have established no abuse of discretion.
C. Other Issues
Plaintiff responds to certain other points urged by defendants, which might be understood to state additional grounds for vacating portions of the cost award. As we read defendants briefs, these points are offered solely in the context of what disposition would be appropriate if this court reversed the main judgment in part. Since we have affirmed the judgment, we do not reach those points, and need not address plaintiffs responses to them.
II. Plaintiffs Appeal
Plaintiff contends that the trial court erred in various respects. We reach only one of these claims, i.e., that the court erred when it failed to use the "lodestar" approach to calculate a reasonable attorney fee.
The court wrote a lengthy opinion resting its award on the following premises: (1) Plaintiff had a meritorious claim, as found by the jury, for "the relatively modest, non-malicious, use of excessive force in the making of an otherwise lawful arrest . . . ." (2) Plaintiffs other claims represented an attempt to "turn this matter into something much more far-reaching than an individual case of excessive force in the making of an otherwise unlawful arrest." (3) "[T]he bulk of the time and expense" claimed by plaintiff "went into trying to establish these numerous extreme, yet unfounded, claims." (4) The issues at trial were relatively straightforward, and apart from expert testimony on force techniques, "primarily revolved around witness credibility . . . ." (5) An award of $55,000 for fees incurred through posttrial proceedings was reasonable in view of "the nature and complexity of [the] issues, the importance of the right vindicated, . . . the risks involved in the pursuit of a police misconduct claim, . . . [and] the degree of counsels experience . . . ."
The court did not determine the actual number of hours reasonably spent in the matter or the rate reasonably to be allowed for those services. This was error. In the absence of some clear ground for an exception, fees in section 1983 cases should be determined under the "lodestar" method, which requires the court to (1) determine the number of hours reasonably expended in obtaining the result, (2) determine a reasonable hourly fee, (3) multiply the first figure by the second figure, and (4) adjust the result to reflect other pertinent factors. (Morales v. City of San Rafael (9th Cir. 1996) 96 F.3d 359, 363-364.) This is generally the required method of determining fees for section 1983 and similar claims in federal courts. (Morales, supra, 96 F.3d at p. 363 [describing lodestar approach as the "customary method of determining fees" and the one that "the district court should have used"]; id. at p. 364 ["the procedure the district court was required to follow"]; see id. at p. 362, citing Farrar v. Hobby (1992) 506 U.S. 103, 116-118 [referring to general "requirement that a lodestar first be calculated"].)
Defendants cite no conflicting federal authority, and we have found none. Nor is there any reason to believe that a different rule obtains for section 1983 cases in state court. (See Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 1307 [discretionary factors bearing on a fee award are "subsumed" in 1983 actions under "the analysis known as the lodestar method of determining fees"].) Indeed, where statutory fee awards are concerned, California courts are at least as insistent on this approach as their federal counterparts. This court itself has held that where an entitlement to fees is granted by statute, the lodestar method must be applied unless the statute "provide[s] for another method of calculation." (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 449.) The Supreme Court cited that decision with approval in Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134, along with other Court of Appeal decisions and its own endorsements of the lodestar approach in statutory fee awards: "[I]n Press v. Lucky Stores Inc. (1983) 34 Cal.3d 311, 322 . . . , we underscored the importance of the `proper determination and use of the lodestar figure in calculating awards of statutory attorney fees. We acknowledged the discretion of the trial court in setting attorney fees, but emphasized that because the determination of the lodestar figures is so fundamental to arriving at an objectively reasonable amount, `the exercise of that discretion must be based on the lodestar adjustment method. (Ibid.) We also reiterated that the lodestar figure may be increased by application of a fee enhancement, or reduced as appropriate, after the trial court has considered other factors concerning the lawsuit, including the contingent nature of the fee award. (Ibid.) [¶] Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294-1295 . . . , reaffirmed the use of the lodestar adjustment method . . . . We again explained that the lodestar figure may be increased or decreased depending on a variety of factors, including the contingent nature of the fee award. (Ibid.) [¶] More recently, in PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 . . . , we instructed: `[T]he fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . . The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors the trial courts analysis to an objective determination of the value of the attorneys services, ensuring that the amount awarded is not arbitrary. [¶] The lodestar adjustment method . . . has also been widely applied by the Courts of Appeal under a broad range of statutes authorizing attorney fees. [Citations.]" (Id. at pp. 1134-1135; see Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 445 [fee determination under anti-discrimination statute "must be based upon a proper utilization of the lodestar method"]; Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 647 [to same effect]; Maria P. v. Riles, supra, 43 Cal.3d at p. 1295, quoting Press v. Lucky Stores Inc., supra, 34 Cal.3d at p. 324 ["The `lodestar adjustment method of calculating attorney fees . . . is designed expressly for the purposes of maintaining objectivity "].)
We conclude that in the absence of some exception—not appearing here—the trial court was obliged to employ the lodestar method of fee calculation. This required it to determine the number of hours reasonably expended in the litigation and the hourly fee reasonably to be applied to them. After that the court could make adjustments to reflect factors it considered pertinent. Each of these determinations would then be exposed to review for abuse of discretion, errors of law, or (conceivably) lack of substantial evidence. What the court could not do, consistent with the federal and state authority we have cited, was simply adopt a bottom-line figure it considered reasonable.
The lodestar approach contrasts sharply with the method apparently adopted by the court, which appeared to rely heavily on the flat fee the court believed an attorney would be expected to negotiate in advance to handle a case of the type at hand. This at any rate was the basis for the courts assessment of the fees reasonably incurred in defending the criminal matter. The court opined that area attorneys would likely take a misdemeanor case such as that pursued against plaintiff for $15,000. Its award was based on that figure plus $5,000 for services rendered after the initial jury verdict in that case. However, an attorneys posited up-front estimate of a reasonable fee to defend a given charge is no substitute for the question properly before the court, which begins with how many hours were reasonably spent, and at what rate, in securing a successful result. Among the factors bearing on that question is the impossibility of plea bargaining in a case such as this one, and the possibility that authorities may pursue it with exceptional vigor precisely because of the potential effect on anticipated civil claims. Here the defendant (now plaintiff) could not compromise if he was to keep his civil claims—some of which were vindicated by the verdict here—alive. It may well be that a hypothetical criminal attorney would accept a case like plaintiffs for $ 15,000. It may also be that he would come to rue the day he did so, particularly given that the case could not be plea-bargained without jeopardizing plaintiffs civil claims. The object of section 1988 is to afford adequate compensation to achieve the salutary public purposes of section 1983 and related statutes. An award that leaves the plaintiff and his attorney ruing their filing of suit is unlikely to satisfy those objectives.
The court drew support for its determination of criminal defense expenses from the reported estimate of likely cost by a local criminal defense firm which, the court observed, "quoted a figure substantially less than plaintiffs `discounted request. " The court was apparently alluding to plaintiffs averment that a firm told him, "[I]f I was unwilling to plead guilty to any charge, it would cost me more than $100,000 in attorneys fees to defend myself—possibly significantly more." This evidence may indeed support a figure below the $ 189,888.00 plaintiff requested, though as plaintiff notes, it describes a floor, not a ceiling. Even as a ceiling, it would hardly support an award 80 percent below the estimate, which is what the court allowed.
The courts failure to use the lodestar method was either an error of law or a failure to exercise its discretion in the manner provided by law. (See Ketchum, supra, 24 Cal.4th at p. 1134, quoting Press v. Lucky Stores, supra, 34 Cal.3d at p. 322 [fee award lies in trial courts discretion, but "because the determination of the lodestar figures is so fundamental to arriving at an objectively reasonable amount, `the exercise of that discretion must be based on the lodestar adjustment method "].) Nor can we say that the error was harmless. The record might at least provide a beginning point for such a determination if the court had taken the hours and rates claimed by plaintiff and found fault with specific portions of them. But the court explicitly rejected plaintiffs claims even as a "starting point" for its determination. The courts order thus provides no basis to infer the number of hours it found reasonable, the rate applied to them, or the rationale for any particular adjustment. The court described the hours claimed by plaintiff as "patently unreasonable" and observed that the proposed hourly rate "seem[ed] unduly optimistic," but neither of these judgments gives any hint of the actual figures employed by the court or an objective basis for them.
Where the record is inadequate to establish the method utilized by the trial court, uncertainties will be resolved against the complaining party. Thus in Maria P. v. Riles, supra, 43 Cal.3d at page 1295, the absence of a full record of the fee proceedings made it "impossible . . . to determine whether the trial court based its award on the lodestar adjustment method." This deficiency was fatal to the defendants claim that, in effect, the trial court had not sufficiently reduced the amount of fees requested by the plaintiff. Here the trial courts lengthy order affirmatively demonstrates that it did not employ the lodestar method in determining the amount to be awarded.
MIHARA, J., Dissenting.
Because I dissent from the majority opinion upholding the underlying judgment for damages, I must also dissent from the majority opinion in this appeal from the associated attorneys fees and costs order. Schmidlins federal excessive force cause of action was barred by the statute of limitations. Since it was the predicate for the attorneys fees and costs order, the fees and costs order must be reversed. Schmidlin was not entitled to recover his attorneys fees at all, and his only recoverable costs were those that are ordinarily recoverable by the prevailing party in a civil action under state law. (Code Civ. Proc., § 1032.) I would direct the trial court to vacate its fees and costs order and to enter a new order awarding Schmidlin his recoverable costs under Code of Civil Procedure section 1032.
We will therefore reverse the fee award with instructions. Because plaintiff is the prevailing party on both this and the related appeal, we expect that he will submit a new fee application upon remand. We would also expect that in the course of doing so, he will address any remediable deficiencies he believes the trial court found in his original application. Given that expectation, it appears unlikely that the court or parties would be likely to benefit from our discussion of plaintiffs remaining arguments, many of which depend upon surmises made necessary by the courts failure to follow the lodestar method. We emphasize, however, that on remand, plaintiffs entitlement to fees will be set at large for de novo consideration by the trial court.
DISPOSITION
The order on attorney fees and costs is reversed with directions to reconsider plaintiffs application, together with any additional claim he may make based upon his status as prevailing party on this and the related appeal. In doing so the court is to comply with the lodestar method of fee calculation as set forth in this decision, cases cited herein, and such other pertinent authority as may come to the courts attention. Plaintiff shall recover his costs on appeal.
I Concur:
McADAMS, J.