JOHN F. WALTER, District Judge.
On August 10, 2017, the Court ordered appointment of a Special Master to prepare and file a report and recommendation to the Court by September 8, 2017, concerning disputed 42 U.S.C. Sec. 1988 attorneys' fees requested by plaintiff Jesus Escochea (occasionally, "Plaintiff"), as a court-determined prevailing party in his "1983" federal civil rights action. Mr. Escochea was determined by the Court to be the prevailing party,
Relatedly — for purposes of the U.S. Supreme Court's
From the inception of this 42 USC Sec. 1983 action through post-trial, including during the Special Master Conference, Mr. Escochea has alleged a conspiracy between and among the named defendant governmental agencies and individual defendants, who were employees of the defendant governmental entities — the purpose and object of which conspiracy, including Defendant Valdivia's opening and conducting a criminal investigation of Mr. Escochea — was to harass and punish Mr. Escochea, who was known by the Defendants to be a reporter, who had an office (which was Location #6 in the subject search warrant) and, relatedly to chill and discredit Mr. Escochea's journalistic investigation into alleged corruption within the government of the City of Hawthorne.
The Special Master's key summary of the determinations set forth below in this Report is as follows:
Based on the analysis and reasons set forth in this Report, the Special Master has determined that — under
Except for the specific reductions, deductions and exceptions noted below — which, in the aggregate, are not believed material, except as to Plaintiff's claimed economic damages, as discussed below — Paul K. Cohen, Esq. and Paul M. Ferlauto, Esq. should be compensated for nearly all their billed time which the Special Master has determined that they have expended in connection with this matter — at the rates of $600 per hour for Mr. Cohen's in-court time, $500 per hour for Mr. Ferlauto's out-of-court time (primarily in taking depositions of witnesses who testified at trial and preparing pleadings and other pre-trial papers), and $450 per hour for Mr. Ferlauto's time for his service as "second chair" during trial.
Also, for the reasons amplified below, the Special Master recommends to the Court that it (A) include in its attorneys' fee award the recommended time expended by Messrs. Cohen and Ferlato since June 20, 2017, including especially in connection with the Special Master's proceeding and, additionally, (B) reallocate financial responsibility for the Special Master's service, from each side bearing a one-half (½) share, to Defendants' bearing a two-thirds (2/3) share and Plaintiff bearing a one-third (1/3) share.
The Special Master's Report and Recommendation are the on-time results of the undersigned's best efforts, in the circumstances, in light of the following temporal and other material limitations and constraints:
A) The documents and information and pertinent cases presented to the Special Master by both sides, which underlay this Report and Recommendation, were acquired and evaluated in a highly compressed time frame, established under the Court's August 10, 2017 Order — specifically, that all Special Master proceedings had to be completed by September 1, 2017 and that the Special Master's Report and Recommendation had to be in preparation over the Labor Day Holiday and filed by September 8, 2017.
B) The undersigned received informal word of having been selected late in the afternoon of August 23, 2017 and received first copies of the Court's August 10, 2017 Order and the parties' Joint Report, which the Court referenced in that Order (see below), shortly before Noon on August 25, 2017 — preparatory to a "quick-set" introductory teleconference with all counsel, convened by undersigned for 1:30 p.m. on August 25, 2017.
C) The attorneys' fees application papers submitted by both sides appear to have been written in contemplation of review, analysis and decision by Your Honor, as the trial judge of this matter — who, the undersigned believes, presided at trial and was familiar with pleadings claims, issues and contentions in this 1983 action, plus the context of procedural resolution of the dismissal of all claims save one before trial and, additionally, the performance and conduct of counsel throughout the underlying merits litigation — and not by a Special Master "parachuting" into this matter on a tight schedule, special assignment, without any of the foregoing familiarity and other preparation, beforehand.
D) The flaws of both sides in the parties' Joint Report, as noted by the Court, on the basis of which the Court decided to prepare and issue the August 10, 2017 Order.
E) The difficulty of the Special Master's assignment was complicated by Defendants' belated presentation during the afternoon of August 30, 2017 of new cases, which had not theretofore been presented or cited to the Court, the Special Master, or Plaintiff's counsel, in any earlier papers. Based on that belated submission, the Special Master requested a "quick-set" call with counsel to discuss those cases during the morning of September 1, 2017 — which yielded a teleconference with counsel, commencing at 11:00 a.m. — with requested responses by each side to the cases submitted by the other side to be exchanged and received by the Special Master by 4:00 pm. that afternoon, in order to be in compliance with the Court's August 10, 2017 Order.
The bases for the Special Master's Report and Recommendation to the Court include the following documents and other papers which have been generated by the Court or counsel for the parties on and since the August 10, 2017:
A) The Court's Order of August 10, 2017
B) Counsel's Joint Report to the Court re their respective positions on Plaintiff's attorneys' fees request, which led to the issuance of the Court's August 10, 2017 Order.
C) Papers submitted to the Court, prior to the Court's August 10, 2017 Order, in support of and in opposition Plaintiff's motion for attorneys' fees (including moving, opposition and reply papers).
D) Initial and supplemental memoranda re disputed requested attorneys' fees submitted to the Special Master before and after the four-hour Special Master Conference.
E) "Hard copies" of cases provided to the Special Master during and following the Special Master Conference.
F) Copies of documents in a 24-tab, 3-ring notebook submitted by Plaintiff's counsel during the Special Master Conference — including the following:
1. Plaintiff's Supplemental Brief Re Special Master Proceeding to Determine Attorney Fees (Tab 2),
2. The jury's Verdict Form (Tab 15),
3. The Court's July 14, 2017 Order granting Plaintiff's motion for attorneys' fees (Tab 17).
4. The declarations of Southern California attorneys Browne Greene, Esq., Christopher Brizzollara, Esq., Mark Garagos, Esq. Paul D. Murphy, Esq., Alison Polin Saros, Esq. and Robert Ernenwein, Esq., primarily in support of requested attorney's fees rates of Plaintiff's counsel (Tabs 4-9),
5. Supplemental declarations of Plaintiff's counsel Philip K. Cohen, Esq. and Thomas M. Ferlauto, Esq. (Tabs 2-3).
6. 2016 Real Rate Report (Tab 23).
7. Summaries of corrected time chart/billing records of Plaintiff's counsel (Tab 24).
8. Copies of the docket sheet, pleadings, orders, stipulations, trial transcript, etc.
G) The Special Master has had to rely heavily on the written and oral representations of counsel — because the Special Master did not have first-hand knowledge or a hearing transcript and other reliable documentary bases for what occurred prior to and during trial, which led to the jury's verdict resolving Plaintiff's Fourth Amendment claim and the subsequent attorneys' fees application which the Court referred to the Special Master under the August 10, 2017 Order.
The facts and circumstances of
However — as part of their belated August 30, 2017 afternoon submission to the Special Master, alluded to above — Defendants counsel submitted a newly cited Ninth Circuit case,
Thus, even if a specific claim fails,
By belatedly citing
After complaining of the Defendants "moving the goal posts," presenting "moving targets" and suggesting the Defendants had effectively waived the matter or were estopped by possibly tactically lying back and waiting virtually to the last minute, until Plaintiffs' counsel could not effectively respond,
The Special Master has determined that the facts which underlay Plaintiff's First amendment claim and all Plaintiff's other claims (including the
The facts underlying Plaintiff's First Amendment claim — made by plaintiff as an investigative reporter, claiming Defendants' infringement of his "freedom of the press" constitutional rights under the First Amendment — were factually, legally, and as a matter of litigation practicality, inextricably intertwined — so that all actions taken by Mr. Escochea's counsel to take discovery on and prove liability on his First Amendment claim, which was dismissed before trial, were reasonably necessary to prevail on Plaintiff's Fourth Amendment claim. In other words, the success of Mr. Escochea's First and Fourth Amendment claims were interdependent on one another.
The interrelationship between Mr. Escochea's Fourth Amendment claim and his other dismissed claims was persuasively shown by the Special Master's accepted representation of Plaintiff's counsel that the witnesses who were deposed and would have been called as witnesses as part of plaintiff's First Amendment claim, had it gone to trial — i.e., City of Hawthorne Police Capt. Keith Kauffman and City of Hawthorne Human Resources head Robert O'Brien, as well as Defendant Ronald Valdivia — testified as witnesses for the Defendants as part of what the jury determined was Mr. Escochea's proved Fourth Amendment claim against Defendant Valdivia and the County of Los Angeles, notwithstanding the earlier dismissal from the case, per settlement, of Capt. Kauffman and the City of Hawthorne.
The
As in
As stated in the introductory summary of this Report, under
The foregoing "inextricably intertwined" analysis covers much but not all attorney time — especially or solely attorney time spent on Plaintiff's claimed damages — as to which Plaintiff was hardly successful, as evaluated by the ratio between amount of damages claimed and amount of damages awarded.
While Plaintiff's counsel have relied upon
The Special Master has deducted from the Plaintiff's submitted billings 25 hours of Mr. Ferlauto's time, billed during the period January 24, 2017 through February 5, 2017 and on February 20 — and has not credited Ms. Houle with the more than 20 hours for which she billed in connection with preparation of Plaintiff's economic damages case — which the Special Master has determined was attorney time which did not meaningfully contribute to the ultimate success of Mr. Escochea's Fourth Amendment claim. Or, put another way — even assuming that all applicable
Defendants have incorrectly and repeatedly asserted in their opposition papers and in the Joint Statement and after that Ms. Houle "was never counsel of record" in this case. Ms. Houle filed a formal appearance of counsel in this case, dated January 18, 2017, filed February 6, 2017 (Doc. No. 143) — a copy of which was presented during the August 29, 2017 in-person conference — and there is nothing in the record presented to the Special Master that she ceased being a counsel of record. Defendants similarly have not produced a requested excerpt of the hearing transcript of the January 19, 2017 hearing, during which both sides agree that the Court made an order concerning Ms. Houle. On August 30, 2017, Plaintiff's counsel produced to the Special Master Ms. Houle's direct testimony at trial, at the outset of which she testified — without contradiction or impeachment on cross-examination — that she then was "one of the attorneys on the case for the plaintiff" and that she earlier was "outside barred from the courtroom awaiting [her trial] testimony." Ms. Houle's billing records contain an unobjected-to notation that she participated in an "all hands" conference call with other counsel on February 28, 2017. As set forth above, Ms. Houle's entitlement to an award of attorneys' fees is another matter — having been determined by the Special Master to have expended 92 hours of effective attorney time on behalf of Mr. Escochea, prior to and after becoming a member of his trial team in this action, at an appropriate compensable rate of $375 per hour.
During the two-day jury trial of this case, Mr. Cohen was Plaintiff's chief trial counsel, assisted in court by Mr. Ferlauto as "second chair." Mr. Cohen opened, closed, and questioned all witnesses on behalf of Mr. Escochea. On out-of-court strategy, tactics (including review of papers and communications from the other side) and related matters
In evaluating appropriate "staffing up," hourly rates and actions of Plaintiff's trial team, as amplified in footnote 23,
Because Defendants' trial team has consisted of three (3) attorneys,
While District Court cases cited by Defendants have referred to and even relied on the Real Rate Report — which, Defendants contend emphasizes the importance of firm size (i.e., direct relationship between firm size and hourly rate (i.e., here, the smaller the firm, the lower the hourly rate)) — the Special Master has determined that the recently submitted declarations of Christopher Brizzolara, Browne Greene, Mark Garagos and Paul D. Murphy, as well as the supplemental declarations of Messrs. Cohen and Ferlauto provide competent, detailed, substantiated and more apt bases upon which to make a recommendation to the Court as to the reasonableness of the requested rates of Messrs. Cohen and Ferlauto at $600 per hour
The declarations submitted on behalf of Ms. Houle's requested hourly rate of $400 per hour are more thinly supported — though they recognize and respect her 15 years of criminal law experience, much of which was in a special serious crimes unit of the District Attorney's Office, before Ms. Houle opened a private solo practitioner in 2015. The special Master has determined that Ms. Houle should be compensated at the rate of $375 per hour for her important early investigative work, legal research and, based thereon, a recognition of enforceable rights for the violation of Mr. Escochea's civil rights and the correlative benefit, if not need, to put his case into the capable litigation hands of Messrs. Cohen and Ferlauto. After the commencement of this action—based on the Special Master's interpretation of Ms. Houle's billings, including as compared with those of Messrs. Cohen and Ferlauto — Ms. Houle's effective, compensable attorney time became rather limited in scope — primarily as all counsel's main liaison and contact with Mr. Escochea, the full extent of which should not be fully compensable, as amplified below.
Based on the foregoing, the Special Master recommends that Ms. Houle be credited with an aggregate of 92 hours of attorney time effectively expended in this case — primarily during the early pre-complaint stages of this litigation — at the rate of $375 per hour, plus one hour at that rate for defending her status and role as counsel of record during the four-hour-long August 29, 2017 in-person Special Master Conference, plus 5.7 hours for travel (primarily including meetings with Judge Hall) — excluding her other billed travel time — at $188 per hour.
Defendants have asserted that what they see as disproportionality between the aggregate amount of $12,500 awarded and the initially approximately $435,000 — now about $470,00 requested as attorneys' fees to be awarded in having producing that result.
After having determined under
Because the Court is authorized to award post-trial attorneys' fees — sometimes known as "fees on fees" to support and defend challenged requested compensable attorneys' fees — and because the Special Master has determined that Defendants' counsel was primarily responsible for complicating and protracting the Special Master proceeding, as aforesaid, the Special Master will recommend to the Court additional fees for Messrs. Cohen and Ferlauto and Ms. Houle at their recommended full hourly rates for their attorney time expended since June 20, 2017 and the filing of Plaintiff's initial motion for attorneys' fees — which would include Plaintiff's Reply, Joint Statement and Special Master proceedings through September 1, 2017 (including, the in-person and telephonic conferences, preparation of papers, research and submission of cases, etc):
plus travel time, for each of Plaintiff's counsel, at one-half (1/2) of their recommended respective rates for "highest and best" use of their professional services as members of Plaintiff's trial team in this case.
The Special Master will further recommend that the Court reallocate the cost of the Special Master's services from equal responsibility to Defendants being responsible for 2/3 and Plaintiff being responsible for 1/3 of the Special Master's services.
Based on the Special Master's careful review, analysis consideration of the billings prepared and submitted by Paul M. Cohen, Esq. and Thomas F. Ferlato, Esq., which are in Tab 24 of Plaintiff's 3-ring binder submitted in support of Plaintiff's request for attorneys' fees, the Special Master has made the following downward adjustments to the effective hours of attorney time submitted:
A. As to Mr. Cohen, a reduction of 2.0 hours as excessive time, plus 9.0 hours travel time to and from Court for trial and the Special Master's Conference, which will be compensated at $300 per hour (i.e., ½ of Mr. Cohen's $600 hourly rate).
B. As to Mr. Ferlauto, a reduction of 19.3 hours as excessive time (including Mr. Ferlauto's time expended in connection with Plaintiff's economic damages case and Mr. Ferlauto's voluntary reduction in connection with the
C. As to Ms. Houle — in view of Defendants' challenge to the entirety of Ms. Houle's submitted billings, based on a repeatedly asserted incorrect predicate that Ms. Houle has never been counsel of record in this case — the Special Master has recomputed Ms. Houle's compensable hours of service, based on careful review and evaluation of her submitted billings as part of the Tab 24 billings, plus having credited Ms. Houle with one additional hour (plus related travel of 1.8 hours, at one half of her hourly rate of $375 per hour) for her in-person defense during the August 29, 2017 Special Master Conference of her status as counsel of record for Mr. Escochea in connection with his case and Ms. Houle's entitlement to an award of prevailing party attorney's fees, as determined by the Court.
Based on careful consideration of the papers made available to the Special Master, the written and oral representations of counsel, applicable law (including Supreme Court and appellate court case law in
1. Plaintiff should be awarded his reasonable attorneys' fees under 42 U.S.C. Sec. 1988, in the aggregate amount of $350,099, computed as follows:
A. Plaintiff should be awarded $102,960, as and for billed and submitted time reasonably expended by Paul K. Cohen, Esq. in connection with his role as chief trial counsel, for 168.0 hours, at the rate of $600 per hour, plus 7.2 hours travel time in connection with trial and the August 29, 2017 in-person Special Master conference, at the reduced rate of $300 per hour.
B. Plaintiff should be awarded $211,925, as and for billed and submitted time reasonably expended by Thomas M. Ferlauto, Esq. in connection with Mr. Ferlauto's service as "second chair" at trial of this matter and for his role as principal author and drafter of Plaintiff's pre-trial, trial and post-trial papers and as having taken and defended the depositions in this case, for 16.0 hours, at the rate of $450 per hour, as "second chair" during trial, and for 404.5 hours at the rate of $500 per hour for all other compensable time, which was expended for the "highest and best use" of his professional services as part of Plaintiff's trial team, plus 9.0 hours travel time in connection with trial and other court appearance, at the reduced rate of $225 per hour re trial and 1.8 hour in connection with the August 29, 2017 in person conference, at the reduced rate of $250 per hour.
C. Plaintiff should be awarded $35,214, as and for billed time expended and submitted by Lisa V. Houle, Esq., for 92.0 hours of her professional services, at the rate of $375 per hour, principally for Ms. Houle's role as principal investigator and legal researcher of what became the factual and legal underpinnings for Plaintiff's claims in the early phase of this litigation, plus an additional one hour (plus travel time at the reduced rate of $188 per hour) for defending her status and entitlement to fees as counsel for Mr. Escochea, as the prevailing party in this case during the Special Master's Conference held on August 29, 2017.
2. The Court should reallocate responsibility for the cost of the Special Master's proceeding and service, so that Defendants should be responsible for two-thirds (2/3), and Plaintiff should be responsible for one-third (1/3) of said cost.
Having carefully read and considered the Special Master's Report and Recommendation to the Court, submitted in accordance with the Court's Order of August 10, 2017, and good cause appearing, the Court accepts and adopts the Special Master's Report and Recommendation as the determinations and rulings of the Court.
1. Plaintiff's Supplemental Brief RE Special Master Proceeding To Determine Attorney Fees;
2. Supplemental Declaration of Philip Cohen;
3. Supplemental Declaration Of Thomas M. Ferlauto In Support Of Plaintiff's Motion For Fees; and
4. Declaration Of Christopher Brizzolara In Support Of Plaintiff's Motion For Attorney Fees
5. Declaration Of Browne Greene
6. Declaration Of Mark Geragos
7. Declaration of Paul Murphy
8. Declaration Of Alison Polin Saros In Support Of Plaintiff's Motion For Attorney Fees
9. Declaration Of Robert Ernenwein In Support Of Plaintiff's Motion For Attorney Fees
10. Original Complaint
11. First Amended (Operative) Complaint
12. Minute Order RE Pre-Trial Conference
13. Pre-Trial Conference Order
14. Stipulation And Order RE Plaintiff's Claim Based Upon Violation Of The First Amendment
15. Verdict
16. Judgment
17. Order Granting Plaintiff's Motion For Attorneys' Fees
18. Plaintiff's Notice Of Motion And Motion For Attorney Fees; Memorandum Of Points And Authorities And declarations Of Thomas M. Ferlauto, Lisa Houle and Philip Cohen In Support Thereof
19. Defendants County Of Los Angeles And Ronald Valdivia's Opposition To Plaintiff's Motion For Attorney Fees
20. Plaintiff's Reply Brief In Support Of Motion For Attorney Fees
21. Docket in Escochea v. County of Los Angeles 2-16-cv-00271
22. Trial Transcript (condensed)
23. Wolters Kluwer 2016 Real Rate Report
24. CORRECTED — Attorney Time Chart (as of June 20, 2017)
"Did plaintiff Jesus Escochea prove by a preponderance of evidence that defendant Ronald Valdivia violated plaintiff Jesus Escochea's Fourth Amendment rights by intentionally concealing or concealing with reckless disregard for the truth from Judge Hall that he knew Location #6 to be plaintiff Jesus Escochea's offices and that plaintiff Jesus Escochea was a member of the press when defendant Ronald Valdivia sought the search warrant for Location #6?" [Verdict Form, Tab 15].
Because of the Special Master's concern for and emphasis on thoroughness and correctness of review, understanding, analysis and determinations underlying and set forth in this Report and Recommendations to the Court, within the tight time constraints of the Court's August 10, 2017 Order, the Special Master apologizes to the Court for any undue repetition and other editing, formatting, punctuation, typographical, spacing, and other inadvertent and/or apparently incurable errors made by the Special Master in connection with preparation of this document for timely submission to the Court.
For the convenience of the Court, at the invitation of the Court Clerk, this Amended Report has been prepared, incorporating the corrections set forth in Notice of Errata.
Annexed to this Report as Appendix "B" is a "hard copy" of the Special Master's August 28, 2017 email to counsel, detailing the documents and information which should be produced and discussed during the August 29, 2017 in-person "roundtable" conference with counsel, convened by the Special Master during a "quick-set," initial, introductory teleconference with counsel held during the afternoon of August 25, 2017.
The Special Master further notes that — during the August 29, 2017, in-person "roundtable" conference, Defendants' counsel, throughout, showed (A) a disinclination to respond in specifics requested by the Special Master separately as to the relationship, if any, to Plaintiff's successful Fourth Amendment claim of each of Plaintiff's claims which did not go to the jury, as part of the Special Master's
Nevertheless, during the August 29, 2017 "roundtable," the Special Master responded to Defendants' counsel that we would — as we did — take his contentions out of turn, if Defendants' counsel would agree to return from digression to responding to the Special Master's inquiry concerning
The foregoing actions by Defendants' counsel, during and almost to the Court's deadline for the close of the Special Master's proceedings provide not only a basis for the Special Master's
In essence, Plaintiff's counsel persuasively represented that the same facts established both (A) qualification for "common core of facts" and (B) satisfaction of the Ninth Circuit's additional requirement, beyond commonality of "core facts" and/or related legal theories.
The Special Master, respectfully, does not agree with Plaintiffs' counsel that
Mr. Ferlauto's Supplemental Declaration (Tab 3), at Par. 10 thereof, contains an analysis of the 2016 Real Rate report (Tab 23), on the basis of which he asserts that the appropriate date therein for representing a plaintiff in a strongly-governmentally-opposed federal civil rights action are "the rates shown in the Third Quartile [, being] the best measure of the rates to be applied to the reasonable time. The Third Quartile rates are not the highest rates in the dataset, but are the middle point between the Median rates and the highest rates. That would result in rates for both Mr. Cohen and myself (who both have more than 25 years experience) of $875 per hour . . ." [Italics in the original]
What has persuaded the Special Master to determine Ms. Houle's hourly rate to be above Ms. Peterson's are (A) Ms. Houle's 15 years of experience, primarily as a senior prosecutor in a serious crime unit of the Los Angeles District Attorney's Office, before becoming a civil litigation attorney and (B) the baseline of Ms. Peterson's hourly rate of $350 per hour for her primarily supporting role in the same litigation, on behalf of Defendants, as a four-year associate, with two trials thus far her credit.
As also covered later in this Report, the recommendation of the Special Master allows for case-authorized billed travel time,* But at one half (½) of the in-court rates for Messrs. Cohen (@ $300/hr for travel time) and Ferlauto (@225/hr for travel time). [*
