Beltran Rosas v. County of San Bernardino

• Decision Date: 05 May 2003
• Docket Number: No. EDCV 99-141 RT.,EDCV 99-141 RT.
• Citation: 260 F.Supp.2d 990
• Parties: Epifanio BELTRAN ROSAS, et al., Plaintiffs, v. COUNTY OF SAN BERNARDINO, et al., Defendants.
• Court: U.S. District Court — Central District of California

260 F.Supp.2d 990

Epifanio BELTRAN ROSAS, et al., Plaintiffs, v. COUNTY OF SAN BERNARDINO, et al., Defendants.

No. EDCV 99-141 RT.

United States District Court, C.D. California, Eastern Division.

May 5, 2003.

E. Thomas Barham, Shirley A. Ostrow, Law Offices of Barham and Ostrow, Los Alamitos, CA, for Plaintiffs.

Arthur K. Cunningham, Lewis Brisbois Bisgaard & Smith LLP, San Bernardino, CA, for Defendants.

ORDER GRANTING PLAINTIFFS EPFANIO BELTRAN ROSAS'S AND ALMITA C. ROSAS'S MOTION FOR AWARD OF ATTORNEY'S FEES

TIMLIN, District Judge.

The Court, Judge Robert J. Timlin, has read and considered plaintiffs Almita C. Rosas ("Almita") and Epifanio Beltran Rosas ("Epifanio") (collectively "Plaintiffs")' motion for an award of attorney's fees pursuant to 42 U.S.C. § 1988 ("Section 1988"); defendants County of San Bernardino, Michael Blay, Dan Braun, Tom Watson, Deputy Elder, and Detective Walsh ("Defendants")' opposition; Plaintiffs' reply; Defendants' surreply; and Plaintiffs' reply to Defendants' surreply. Based on such consideration, the Court concludes as follows:

I.

BACKGROUND

On April 21, 1999, Plaintiffs, represented by attorneys E. Thomas Barham ("Barham") and Shirley A. Ostrow ("Ostrow") (sometimes collectively "attorneys"), filed a complaint claiming the Defendants deprived them of certain constitutional rights in violation of 42 U.S.C. § 1983 ("Section 1983"). A felony complaint against Epifanio was filed in the Superior Court of the State of California for the County of San Bernardino on May 28, 1999 ("criminal action").

On September 13, 1999 plaintiffs Lisa Cruz Galindo, Debbie Galindo and Alfred Lopez Galindo ("Galindos") accepted Defendants' offer to settle under Federal Rule of Civil Procedure 68 ("Rule 68"). On November 3, 1999, a judgment was entered in the amount of $2,500 for each of them against the Defendants. This court awarded the Galindos attorney's fees under Section 1988 in the amount of $15,582 on February 18, 2000 ("February 18 award").

Plaintiffs Almita and Epifanio did not accept the Rule 68 offer. Barham represented Epifanio in the pending criminal action and a state court judge dismissed that action based on insufficient evidence on October 15, 2001. Almita and Epifanio filed a first amended complaint ("FAC") in this action on March 22, 2002. On July 29, 2002, Almita and Epifanio accepted Defendants' settlement offer of $30,000. Plaintiffs now move for an award of attorney's fees pursuant to Section 1988.

II.

ANALYSIS

Under Section 1988, the court may award a reasonable attorney's fee to the prevailing party in a Section 1983 action. See 42 U.S.C. § 1988 (2003). The district court has broad discretion in determining the appropriate attorney's fee award under Section 1988. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983); San Francisco NAACP v. San Francisco Unified Sch. Dist, 284 F.3d 1163, 1169 (9th Cir.2002). A reasonable attorney's fee is determined by calculating the "lodestar" figure: the number of hours reasonably expended multiplied by a reasonable hourly rate. McGrath v. County of Nevada, 67 F.3d 248, 252 (9th Cir.1995). In calculating a reasonable attorney's fee, the court must take into account the factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), which it finds are relevant. McGrath, 67 F.3d at 252.

Defendants concede that Plaintiffs are prevailing parties within the meaning of Section 1988 and entitled to an award of attorney's fees. Defendants contend, however, that Plaintiffs' attorney's fee award request should be reduced because 1) Plaintiffs cannot be compensated for the time Barham spent defending Epifanio in the criminal action, 2) Plaintiffs achieved limited success in this action, 3) Plaintiffs are not entitled to 2/5 of the attorney's fees for attorneys' representation of Plaintiffs and Galindos collectively, and 4) certain portions of the time the attorneys claim they spent on this civil rights action and on the motion for an award of attorney's fees are unreasonable.

A. Entitlement to an Award of Attorney's Fees for Services Performed by Barham in Representing Epifanio in the Criminal Action.

Section 1988 permits an award of attorney's fees in an action or proceeding to enforce Section 1983. See 42 U.S.C. § 1988(b). In Webb v. Bd. of Educ, All U.S. 234, 105 S.Ct. 1923, 85 L.Ed.2d 233 (1985), the Supreme Court held that Section 1988 did not permit compensation for attorney's fees incurred representing the plaintiff at an ancillary optional administrative hearing that occurred years before plaintiff commenced a civil rights action. Id. at 244; 105 S.Ct. at 1929. The Court did, however, suggest that a court could award attorney's fees for services rendered in ancillary proceedings that are "both useful and of a type ordinarily necessary to advance the civil rights litigation to the state it reached before settlement." Id. at 243; 105 S.Ct. at 1928. In North Carolina Dep't of Transp. v. Crest St. Cmty. Council, Inc., 479 U.S. 6, 107 S.Ct. 336, 93 L.Ed.2d 188 (1986), the Court stated that a court cannot award attorney's fees under Section 1988 unless those fees relate to attorney services in proceedings that are "part of or followed by a lawsuit." Id. at 14; 107 S.Ct. at 341. The Court appears to have reinforced the concept that a court may award fees for attorney services in ancillary proceedings by reciting the aforesaid quotation from Webb. Id. at 15; 107 S.Ct. at 341 (quoting Webb, 471 U.S. at 243; 105 S.Ct. at 1928).¹

Based on Webb, the Ninth Circuit has held that attorney services in prior court proceedings that are a necessary prerequisite to resolve a federal civil rights action can be awarded under Section 1988. For instance, in Bartholomew v. Watson, 665 F.2d 910 (9th Cir.1982), the court upheld the district court's award of attorney's fees under Section 1988 to a prevailing plaintiff for attorney services performed in state court proceedings. The court reasoned that since the state court proceedings were initiated after proceedings in the district court were stayed pursuant to abstention under Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), the state court proceedings were an essential step in the presentation of the plaintiffs' Section 1983 claim. Bartholomew, 665 F.2d at 914.

In G & G Fire Sprinklers, Inc. v. Bradshaw, 156 F.3d 893 (9th Cir.1998), rev'd on other grounds by 526 U.S. 1061, 119 S.Ct. 1450, 143 L.Ed.2d 538 (1999), the plaintiff in a prior suit had entered into a settlement agreement with the state that allowed the plaintiff to refile suit if the state took further action against it. Id. at 906. After the state breached the settlement agreement and the plaintiff prevailed in a second lawsuit against the state, the court in the second suit held that attorney's fees were properly awarded to plaintiff for attorney services in the prior lawsuit because they were both "directly related to the present action" and "necessary to achieve the relief finally granted." Id. at 908; cf. Rock Creek Ltd. P'ship v. State Water Res. Control Bd., 972 F.2d 274, 279 (9th Cir.1992) (stating that plaintiff could not recover attorney's fee under Section 1988 because the prior administrative proceeding was "not a condition precedent to its entry to federal court").

The Ninth Circuit has not directly addressed the issue whether Section 1988 allows an award of attorney's fees for services in defending a state criminal proceeding, which defense was necessary for success on a Section 1983 claim.² The Fifth Circuit however, has squarely addressed this issue in Castellano v. Fragozo, 311 F.3d 689 (5th Cir.2002), reh'g en banc granted, 321 F.3d 1203 (5th Cir.2003), where it affirmed a district court's Section 1988 attorney's fees award for services a plaintiffs attorney performed in defending the plaintiff in a prior state criminal action. Id. at 711. The court held that because the plaintiff needed to prevail in the underlying criminal action in order to prevail on his 1983 action for malicious prosecution in violation of the Fourth Amendment, the time spent defending the criminal action was a "necessary prerequisite" to enforcing the provisions of Section 1983 and could be compensated under Section 1988. Id. The court opined that the plaintiffs expenditure for attorney services "to defend himself in his criminal trial was, unquestionably", a foreseeable result of defendants' actions, and therefore the district court could exercise its discretion under Section 1988 to compensate the plaintiff for the attorney's fee expense incurred in the criminal trial. Id. (emphasis in original).

Similarly, Plaintiffs³ here seek attorney's fees for work expended by Barham in achieving dismissal of the criminal action against Epifanio before Plaintiffs and Defendants settled their Section 1983 action alleging deprivation of their Fourth Amendment rights based on illegal search and seizure and malicious prosecution.

The Ninth Circuit in Harvey v. Waldron, 210 F.3d 1008 (9th Cir.2000), joined other circuits in holding that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), applies to pending criminal charges such that if a successful Section 1983 claim would necessarily imply the invalidity of a conviction in a pending criminal prosecution, that claim is barred so long as the claimant may potentially be convicted in the pending criminal prosecution. Harvey, 210 F.3d at 1014. The court further held that in the case of a Section 1983 claim for illegal search and seizure in violation of the Fourth Amendment, such Section 1983 claim "alleging illegal search and seizure of evidence upon which criminal charges are based does not accrue until the criminal charges have been dismissed or the conviction has been overturned." Id. at 1015.

Hence, based on Harvey, Plaintiffs' Section 1983 action asserting claims for illegal search and seizure and malicious...