Romberg v. Nichols, s. 90-56125

• Decision Date: 07 July 1992
• Docket Number: Nos. 90-56125,91-55012,s. 90-56125
• Citation: 970 F.2d 512
• Parties: Michael ROMBERG; Debra Romberg, Plaintiffs-Appellees-Cross-Appellants, v. Robert NICHOLS; Dennis Lazzari; Hugh Lloyd; Johnny Jurtado; Thomas Laing; Diane Hannon; R.D. Campbell, Defendants-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 512

970 F.2d 512

Michael ROMBERG; Debra Romberg, Plaintiffs-Appellees-Cross-Appellants, v. Robert NICHOLS; Dennis Lazzari; Hugh Lloyd; Johnny Jurtado; Thomas Laing; Diane Hannon; R.D Campbell, Defendants-Appellants-Cross-Appellees.

Nos. 90-56125, 91-55012.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 14, 1991.

Decided Jan. 13, 1992.

As Amended on Denial of Rehearing and

Rehearing En Banc July 7, 1992.

Stephen Yagman, Yagman and Yagman, Venice, Cal., for plaintiffs-appellees-cross-appellants.

Keith A. Fink, Cotkin, Collins & Franscell, Los Angeles, Cal., for defendants-appellants-cross-appellees.

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

Before: WALLACE, Chief Judge, THOMPSON and O'SCANNLAIN, Circuit Judges.

PER CURIAM:

A jury awarded the Rombergs nominal damages of one dollar each in their civil rights action against six Los Angeles police officers. The question before us now is whether that victory is too insignificant to deem the Rombergs a "prevailing party" for purposes of recovering attorney fees under 42 U.S.C. § 1988, in light of the Supreme Court's intervening decision in Texas State Teachers Association v. Garland Independent School District, 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). ¹ We conclude that it is not. We therefore affirm the district court's judgment to award fees. We also affirm the district court's determination of the amount of fees to be awarded for services through the date of the fee order. We remand, however, for calculation of fees due for subsequent proceedings.

I

A

On a May evening in 1982, two Los Angeles police officers responded to a call indicating a domestic disturbance at the Rombergs' address. ² When the officers arrived at the address, they found approximately ten people gathered in front of the building and pointing toward the Rombergs' apartment. They also heard loud voices and pounding noises, and they entered the building to investigate. As they ascended the stairway leading to the Rombergs' apartment, the officers heard a woman crying, a loud male voice, and once again, "some type of pounding." They also sensed an odor in the stairwell and hallway that resembled ether, a substance that they understood is often associated with narcotics.

After reaching the Rombergs' apartment, the two officers observed through a screen door a young woman seated on the floor with a man standing alongside her. The man, later identified as Michael Romberg, was allegedly yelling and shaking his fist at the woman. The woman, later identified as Debra Romberg, was only partially clad and was beating an object on the floor. The pair's behavior, coupled with the scent of ether, allegedly suggested to the officers that the Rombergs might be under the influence of drugs, specifically phencyclidene (or "PCP").

Out of concern for the woman's safety as well as for their own, the officers retreated and requested back-up units before proceeding further. Three units soon arrived, and before the first officers could fully explain what was happening, a loud crash and scream emanated from the Rombergs' apartment. Allegedly fearing that the woman had been seriously injured, the officers ran back up the stairs. When they could not see the woman, they decided to enter the apartment.

Mr. Romberg immediately resisted, telling the officers that they had no right to enter his home and poking one of the officers in the chest as the officer advanced in search of the woman. Two officers thereupon arrested and handcuffed Mr. Romberg for interfering with their search and for disturbing the peace. A male and female officer then located Mrs. Romberg in her bed, clothed her, and brought her out into the living room. At this point, another police officer observed on a coffee table what he identified as narcotics paraphernalia: a cocaine pipe, a small amber vial, and a beaker. After determining that Mrs. Romberg was not harmed, the officers then undertook to search the Rombergs' apartment for any further evidence of drugs. As it turned out, the Rombergs' apartment had not been the source of the suspicious odor.

B

On December 23, 1983, the Rombergs filed suit, alleging that the police had violated their constitutional rights by not obtaining a search warrant before entering their home. They also alleged excessive force, conspiracy, malicious prosecution, and false arrest claims. The Rombergs named seven police officers and the County of Los Angeles as defendants and prayed for $2 million in general and punitive damages, plus costs and fees. The district court dismissed the County, one police officer, and most of the Rombergs' claims before trial, but it declined to dismiss the Fourth Amendment claim against the remaining defendants. In fact, the court denied consecutive motions to that effect at the pleading stage, the summary judgment stage, and the directed verdict stage.

After a four-day trial, the jury returned a verdict for the Rombergs with a nominal award of one dollar each. The amount of the award apparently followed the invitation of the Rombergs' attorney, who in his summation "[had] not ask[ed] for money other than a perfunctory request for punitive damages." Romberg v. Nichols, No. 83-8448 at 1 (C.D.Cal. Jan. 20, 1989). Indeed, the Rombergs' attorney specifically informed the jury that, in his view, his clients were only entitled to damages " 'in some sum like one dollar.' " Id. at 2 (quoting trial transcript).

The district court then denied the defendants' alternative motions for j.n.o.v. and new trial and granted the Rombergs' motion for attorney fees. Romberg v. Nichols, No. 83-8448 (C.D.Cal. Nov. 30, 1987). The court, however, lowered the amount of the fee award from $45,000, the amount which the Rombergs had requested, to only $5,000. To account for this reduction, the court explained:

The court has some reason to question whether all the time claimed by counsel was warranted, but careful analysis of that is unnecessary. Suffice it to say: (i) the result achieved was fairly modest in tangible terms, (ii) it did not require exceptional legal talent to do it--(no reflection on counsel's well-documented expertise), [and] (iii) the award is just and reasonable in light of the claims put forth and the brevity of the trial.

Id. at 1.

The plaintiffs appealed, contending that this reduced fee award was insufficient, and a panel of this court, finding that it was "unable to review the order" as written, vacated and remanded with instructions for the district court to issue a more detailed order. Romberg v. Nichols, No. 87-6724 at 1 (9th Cir. Aug. 16, 1988) [855 F.2d 862 (table) ]. The court of appeals explained that effective review was not possible because the district court had not (a) set a lodestar figure and (b) specified the reasons for its reduction pursuant to an analysis of the twelve factors identified in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976).

On remand, the district court issued a four-page order awarding the Rombergs attorney fees in the amount of $29,137.50. ³ Romberg v. Nichols, No. 83-8448 (C.D.Cal. Jan. 20, 1989). The court initially set a lodestar figure of $48,562.50, which represented all the hours claimed by the Rombergs' attorney (277.5) compensated at the rate of $175 per hour. The court then discounted this figure by forty percent pursuant to its evaluation of the Kerr factors.

Once again the defendants appealed, contending that in light of the Supreme Court's intervening decision in Texas State Teachers, the Rombergs are not entitled to any fees at all. The Rombergs, meanwhile, cross-appealed, insisting that the district court's fee award was still unjustifiably low. On May 25, 1990, this court again vacated the district court's order and remanded for a specific determination of whether Texas State Teachers does in fact indicate that the Rombergs are not entitled to recover any fees. Romberg v. Nichols, Nos. 89-55202 & 89-55218 (9th Cir. May 25, 1990) [904 F.2d 41 (table) ]. In so doing, we did not reach the issues raised in the Rombergs' cross-appeal, but we indicated that any future appeals would be handled on an expedited basis. See id. at 2.

On remand, the district court summarily rejected any suggestion that the Rombergs are not a prevailing party within the meaning of section 1988 and Texas State Teachers. Romberg v. Nichols, No. 83-8448 (C.D.Cal. Aug. 17, 1990). The defendants thereupon filed a timely notice of appeal (No. 91-55012) on September 11, 1990, and the Rombergs filed a timely cross-appeal (No. 90-56125) two weeks later on September 25. ⁴ Pursuant to the court's invitation in its order of May 25, the Rombergs also moved this court to expedite both appeals.

Deferring action on that motion, we ordered the parties on November 5, 1990 to submit simultaneous briefs in an effort to determine several issues including (a) whether the district court had intended its order of August 17, 1990 to reinstate its previous fee award of January 20, 1989, (b) whether any appeal or cross-appeal would be timely or appropriate at this juncture, and (c) what issues, if any, would now be ripe for review. Romberg v. Nichols, No. 90-56125 (9th Cir. Nov. 5, 1990). In their respective responses, the parties agreed that the district court's most recent order had reinstated its earlier fee award and that as such, it was a final order for which appellate review would now be appropriate. We accepted those contentions; effectively granted the motion to expedite; and ordered simultaneous briefing to address the underlying issues raised in the appeal and cross-appeal. Romberg v. Nichols, Nos. 90-56125 & 91-55012 (9th Cir. Dec. 27, 1990). After granting the Rombergs a brief continuance, we entertained oral argument and submitted the case for decision on May 14, 1991. Romberg v. Nichols, Nos....