Chalmers v. City of Los Angeles

• Citation: 796 F.2d 1205
• Decision Date: 09 December 1985
• Docket Number: Nos. 82-6112,83-6092 and 83-6535,s. 82-6112
• Parties: Julie CHALMERS, Plaintiff-Appellee, v. CITY OF LOS ANGELES, a municipal corporation, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1205

796 F.2d 1205

Julie CHALMERS, Plaintiff-Appellee, v. CITY OF LOS ANGELES, a municipal corporation, Defendant-Appellant.

Nos. 82-6112, 83-6092 and 83-6535.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 9, 1985. ^*

Decided Aug. 15, 1986.

John B. Murdock, Santa Monica, Cal., for defendant-appellant.

Marcia Haber Kamine, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, TANG, and SKOPIL, Circuit Judges.

OPINION

SKOPIL, Circuit Judge:

The City of Los Angeles ("City") appeals from the district court's order awarding attorney's fees to plaintiff at the trial level. We previously affirmed the judgment of the district court on the merits in this matter. Chalmers v. City of Los Angeles, 762 F.2d 753 (9th Cir.1985). Ancillary to our consideration of the appeal of the district court's judgment on the merits, we now consider the City's appeal in these attorney's fees matters. Also before us is the appellee's motion for attorney's fees as a prevailing party on the appeal of the merits in this case.

We vacate the district court's order awarding attorney's fees to the plaintiff and remand for further consideration. Appellee's motion for attorney's fees as prevailing party on the appeal of the merits of this matter is granted in part.

FACTS AND PROCEEDINGS BELOW

On January 10, 1979 Julie Chalmers filed an action pursuant to 42 U.S.C. Sec. 1983 (1982) against the City and County of Los Angeles alleging a deprivation of due process. The parties stipulated to dismissal of several of Chalmers' claims as well as to the dismissal of the County as a defendant. On March 10, 1980 the district court granted the City's motion for summary judgment on all issues except Chalmers' claim that she was deprived of due process because she was prevented from engaging in her business of selling T-shirts by reason of vague and conflicting municipal ordinances. On October 13, 1982, after a five-day trial, a jury awarded Chalmers damages in the amount of $28,223: $15,723 for lost profits and $12,500 for deprivation of due process. The City appealed the judgment which was affirmed by this court on June 4, 1985. Chalmers v. City of Los Angeles, 762 F.2d 753 (9th Cir.1985).

On January 10, 1983 Chalmers moved for an award of attorney's fees pursuant to 42 U.S.C. Sec. 1988 (1982). On July 5, 1983 the district court entered an order awarding Chalmers attorney's fees in the amount of $82,600. The City filed a notice of appeal from that order (No. 83-6092). An amended order was entered by the district court on November 16, 1983. The amount of the attorney's fee award and the discussion of the merits of that award in the amended order remained unchanged from that of the previous order. The City then filed a notice of appeal from the amended order (No. 83-6535). Both appeals by the City concern the same award of fees and have been consolidated for our consideration here.

On June 19, 1985 Chalmers filed a motion with this court seeking an award of attorney's fees as prevailing party in the appeal of the merits of this matter (No. 82-6112). Because the application for fees on appeal raised issues substantially similar to those raised in the City's appeal from the district court's award of attorney's fees at the trial level, we consolidated Chalmers' motion for attorney's fees on appeal with the City's appeals from the district court's order awarding attorney's fees to the plaintiff at the trial level.

DISCUSSION

A. The District Court's Award of Fees.

According to the motion and the affidavits submitted to the district court by plaintiff's counsel in support of his fee request, from March 1978 until January 1983 counsel expended some 416.5 hours in litigating this matter. Chalmers' counsel requested compensation at a variable rate beginning at $95 per hour in 1978 and progressively rising to $175 per hour in 1982. ¹ Multiplying the hours claimed to have been expended by the hourly rate claimed to be reasonable, Chalmers' counsel arrived at a "lodestar" of $58,584.25. Chalmers' counsel also requested a bonus or a multiplier of 2.5, thus increasing the total fee requested to $149,785.00. In support of his fee request, Chalmers' counsel submitted detailed time records, an affidavit setting forth his experience and background, as well as his billing rates and practices. Counsel also submitted copies of prior fee awards in other civil rights cases, and affidavits of other attorneys which set forth their assessment of prevailing rates in the community as well as rates charged by comparably situated attorneys. The district court was also informed of the existence of a contingency fee arrangement between counsel and his client which allowed him to recover forty percent of any judgment rendered in Chalmers' favor.

The City opposed Chalmers' motion for an award of attorney's fees, alleging that (1) Chalmers was not a prevailing party; (2) the amount requested was excessive because either the hours expended or the hourly rate were excessive; and (3) Chalmers was not entitled to a bonus or a multiplier. The City claimed the hourly rate was excessive because it was greater than normally charged by this attorney and plaintiff's affidavits were insufficient to establish a prevailing rate in the community for comparable attorneys. The City failed to submit any counter affidavits nor did it indicate the number of hours it expended on this matter. The City also failed to submit any information indicating the prevailing rate of compensation in the community was an amount other than claimed by Chalmers.

On November 16, 1983 the district court issued an amended order awarding Chalmers fees in the amount of $82,600. The district court considered the twelve factors enunciated by this court in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976), for determining an award of attorney's fees. The district court described the nature of the litigation in this case and concluded that

The legal questions presented were not particularly complicated nor did they result in a vindication of any significant individual rights other than to impress upon the City the necessity that where certain conduct is proscribed by ordinance with criminal sanctions, there is a duty on the part of the City to clearly identify the limits of the conduct involved.

* * *

* * *

The legal work did require persistence through a number of pre and post trial motions and a display of legal competence and skill of a quality equal to or above the average in this community.

The results obtained on behalf of the plaintiff were excellent, and the time involved by plaintiff's counsel may have resulted in the preclusion of certain other employment.

Taking into consideration all of the factors enunciated in Kerr, supra, and the recent directive of the Supreme Court in Hensley [v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ], and applying them to the results obtained in the instant case and making certain adjustments for the time spent that was not required for successful prosecution of the case and also considering awards in similar cases, it is the judgment of the Court that plaintiff's counsel is entitled to attorney's fees in the amount of $82,600.

Although the district court considered the factors enunciated in Kerr, its order failed to reveal the number of hours being compensated; the hourly rate being applied; whether a multiplier was applied to adjust the award; and if so, the amount of such multiplier.

On appeal, the City repeats many of the same arguments raised at the trial level about the propriety of the fee awarded by the district court. The City claims that Chalmers was not a prevailing party; ² that the amount awarded by the district court was excessive; and that the district court abused its discretion in failing to specify how it arrived at the amount of attorney's fees awarded.

1. Standard of Review

The district court's award of fees, as well as the amount of fees awarded, is subject to an abuse of discretion standard of review on appeal. Cinevision Corp. v. City of Burbank, 745 F.2d 560, 581 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2115, 85 L.Ed.2d 480 (1985); Kerr, 526 F.2d at 69. "This standard applies 'not only to the basic fee but also to multipliers.' " Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir.1985) (quoting Harmon v. San Diego County, 736 F.2d 1329, 1331 (9th Cir.1984)).

2. Merits

In an effort to determine whether the district court abused its discretion in this case, and in an attempt to provide district courts with guidance for their future consideration of attorney's fees matters, we begin our analysis with the two recent Supreme Court decisions in this area. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

Title 42 U.S.C. Sec. 1988 authorizes a district court to award reasonable attorney's fees to a prevailing party in a civil rights action. A prevailing party should ordinarily recover attorney's fees "unless special circumstances would render such an award unjust." Hensley, 461 U.S. at 429, 103 S.Ct. at 1937. The initial determination of reasonable attorney's fees is calculated by multiplying the number of hours reasonably expended on litigation by a reasonable hourly rate. Id. at 433, 103 S.Ct. at 1939. In determining reasonable hours, counsel bears the burden of submitting detailed time records justifying the hours claimed to have been expended. Id. Those hours may be reduced by the court where documentation of the hours is inadequate; if the case was overstaffed and hours are duplicated; if the hours expended are deemed excessive or otherwise unnecessary. Id. at 433-34, 103 S.Ct. at 1939-40.

Next, the district court must determine a...