Corder v. Gates

• Decision Date: 14 June 1988
• Docket Number: No. CV85-0452-PAR.,CV85-0452-PAR.
• Parties: Lillian CORDER, et al., Plaintiffs, v. Brad GATES, et al., Defendants.
• Court: U.S. District Court — Central District of California

688 F. Supp. 1418

Lillian CORDER, et al., Plaintiffs, v. Brad GATES, et al., Defendants.

No. CV85-0452-PAR.

United States District Court, C.D. California.

June 14, 1988.

Stephen Yagman, Yagman & Yagman, P.C., Los Angeles, Cal., for plaintiffs.

Raymond J. Fuentes, Burke, Williams & Sorensen, Los Angeles, Cal., for defendants City of Bell, Cudahy, et al.

Dennis M. Gonzalez, Deputy County Counsel, Los Angeles, Cal., for defendant Roy Brown.

Timothy J. Stafford, Werve and Stafford, Santa Ana, Cal., for Orange County defendants.

AMENDED MEMORANDUM OF DECISION AND ORDER

RYMER, District Judge.

This round of cross motions arises out of a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiffs Lillian Corder and Roberta Lombardo sought recovery of damages from numerous individual law enforcement officers and from the County of Orange. Trial was to a jury, which on August 18, 1987 returned a verdict awarding plaintiffs $24,006 in compensatory and punitive damages against three of the defendants, Stanton Loder, Keith Brown, and Roy Brown. The jury also returned verdicts in favor of the remaining defendants; of these, it found that several of the officers had violated plaintiffs' civil rights, but that they were entitled to qualified immunity.

On September 30, 1985 the defendants County of Orange, Cities of Bell and Cudahy, and County of Los Angeles timely made a Fed.R.Civ.P. 68 offer, in behalf of the individually named and served defendants to plaintiffs, of $45,000 in settlement of their claims. Plaintiff Roberta Lombardo accepted this offer and plaintiff Lillian Corder rejected it.

Plaintiffs bring the following motions: 1) to enforce the Rule 68 offer accepted by Roberta Lombardo; 2) for attorney's fees pursuant to 42 U.S.C. § 1988; 3) for a new trial and Judgment Notwithstanding the Verdict; 4) for sanctions and attorney's fees pursuant to Local Rule 7.15.4. Defendants bring the following motions: 1) for a new trial and JNOV (all defendants); 2) for attorney's fees pursuant to Rule 68 (County of Los Angeles); 3) to hold a witness in contempt (Roy Brown); and 4) to take the contempt motion off calendar (Roy Brown).

Rule 68 Offer

1. Enforcement of the Rule 68 Offer

Plaintiff Lombardo moves to enforce the Rule 68 judgment that defendants offered on September 30, 1985. Lombardo accepted the offer; Corder rejected it.

Defendants argue that the offer cannot now be enforced. They claim that it was a joint offer and that both plaintiffs had to accept it to render it enforceable. Because of the partial rejection, they contend that their offer was terminated.

Fed.R.Civ.P. 68 offers of judgment are analogous to contract offers in that there must be a "meeting of the minds" to render the offer enforceable. Boorstein v. City of New York, 107 F.R.D. 31 (S.D.N.Y. 1985). The offer was to "the Plaintiffs, LILLIAN CORDEL sic and ROBERTA LOMBARDO, Forty-Five Thousand Dollars ($45,000.00) in full and complete settlement of any and all claims arising from the above-entitled action. This offer to allow judgment includes payment of plaintiffs' costs and attorney's fees." The language on the face of the offer indicates that it was a joint offer addressed to both plaintiffs. There is no evidence to the contrary. Acceptance by one of the plaintiffs, accompanied by the rejection by the other, cannot constitute a valid acceptance of defendants' offer.

2. Effect of the Rule 68 Offer

Defendants also argue that because the rejection of the Rule 68 offer by one of the plaintiffs has the same effect as if it had been rejected by both, any award of costs or attorney's fees to the plaintiff pursuant to 42 U.S.C. § 1988 therefore should only be based on the fees and costs incurred prior to the rejection of the Rule 68 offer. Additionally, the County of Los Angeles requests that it be awarded costs and attorney's fees for the period after the rejection.¹

Defendants' position is not sound. In calculating whether the judgment awarded plaintiffs is less than the Rule 68 offer, the court must also consider the pre-offer costs, including attorney's fees that the plaintiffs deserve pursuant to § 1988, that defendants will pay. Judge Posner in Chesny v. Marek, 720 F.2d 474, 476 (7th Cir.1983) added the pre-offer costs to the amount received in judgment in determining whether the total judgment exceeded the Rule 68 offer. The Supreme Court implicitly supported this practice when it held in Marek that it would be erroneous to consider the post-offer costs in determining the size of the total award. Marek v. Chesny, 473 U.S. 1, 6, 105 S.Ct. 3012, 3015, 87 L.Ed.2d 1, 8 (1985).² Nonetheless, in Marek even this combined total did not equal the Rule 68 offer and the Rule therefore applied. In the instant case, however, defendants' $45,000 offer is not as great as the sum of the $24,006 in damages and $39,500 in pre-offer costs (including attorney's fees) that plaintiffs should receive. The court therefore finds that the Rule 68 offer did not exceed the award obtained by plaintiffs and Rule 68 does not prevent the payment of plaintiffs' costs by the defendants.³

Plaintiff's Attorney's Fees

Under 42 U.S.C. § 1988 prevailing parties may obtain attorney's fees. The amount of the award is within the sound discretion of the district court. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.1975). A hybrid version of the "lodestar" approach is required, Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986), which entails a two step analysis. The first is to multiply the reasonable number of hours expended on the litigation by a reasonable hourly rate; this calculation should approximate the "market rate" for similar legal services. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The second step is to adjust this lodestar figure upward or downward based on the "crucial factor" of the plaintiff's success, Hensley v. Eckerhart, 461 U.S. 424, 438, 103 S.Ct. 1933, 1942, 76 L.Ed.2d 40, 54 (1983); upward adjustments of the lodestar figure above the market rate are difficult to sustain. Pennsylvania, supra, 478 U.S. at 564-69, 106 S.Ct. at 3098-3100, 92 L.Ed.2d at 457-58.

1. The Lodestar Figure

The factors that generally determine the "reasonable" hours and rate used in the first step calculation are identified in the Johnson twelve factor test. Jordan v. Multnomah, 815 F.2d 1258, 1263 n. 11 (9th Cir.1987); Kerr, supra. Plaintiff bears the burden of presenting evidence that establishes the market rate for similar litigation; the mere affidavits of counsel do not meet this burden. Jordan, supra at 1263.

a) Reasonable Hours

Plaintiffs' counsel claims that his firm expended a total of 601.95 hours on the case over a period of two years. This figure is based on a daily log that indicates the type of work and the precise amount of time that counsel spent on the case. The record furnished is similar to that employed by major law firms for their private clients and therefore meets the standard suggested by the Supreme Court. Hensley v. Eckerhart, 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d at 55 (Burger, C.J., concurring); Cf. Elser v. IAM National Pension Fund, 579 F.Supp. 1375, 1378 (C.D. Cal.1984) (approving a fee award based on a declaration showing the nature of the work and the time expended).

The district court must review this record to determine that the time actually spent was reasonably necessary. Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378 (9th Cir.1984). Counsel for the "prevailing party should make a good faith effort to exclude from the fee request hours that are excessive, redundant, or otherwise unnecessary." Hensley, supra, 461 U.S. at 434, 103 S.Ct. at 1939, 76 L.Ed.2d at 40. As a practical matter the court must necessarily rely on the adversary system as the most reliable indicator of when time spent is substantially off base. Defendants list several areas in which they feel that plaintiffs' counsel's billing is excessive. First, in 1985 plaintiffs' counsel spent 90.25 hours summarizing 17.50 hours of deposition testimony. Second, he spent 18 hours working on the case on the last day of trial. Third, the preparation of the fee application took 8.75 hours to draft. Defendant Los Angeles County, et al. Opposition to Fee Award, p. 8. Although defendants view these objections as mere "examples" of plaintiffs' counsel's over-billing, they do not cite other instances that they claim are unreasonable.

Based on the record, it is not possible to determine meaningfully the adequacy of individual entries in isolation from the issue of the propriety of the overall number of hours expended on the case. Different litigators have different styles; that plaintiffs' counsel occasionally opts for all-nighters and summarizes depositions himself should not be held against him if his overall figure is reasonable.⁴ Moreover, it is not surprising to me that plaintiffs' counsel in this case could have spent six hours preparing for closing argument on the last day of trial, which together with the nearly 12 hours of trial, would account for what would otherwise appear to be a high number recorded on a single day.

There is nothing in the record to suggest that the over-all figure is unreasonable. Defendants do not argue that the numerous depositions that were taken were unnecessary; it is also true that there were numerous pre-trial conferences and it is no secret that the court, at least, regarded much of the process as unnecessary. However, requests for sanctions have already been dealt with and the hours expended as a whole appear in line with what turned out to be required. While not extraordinarily complex, the factual and legal issues in the case were also not that simple or routine. Some forty law enforcement officers were involved in the investigation, search and seizure that were the subject of the suit. Finally, counsel for defendant County...