ORDER RE: ATTORNEY'S FEES AND EXPENSES

WILLIAM B. SHUBB, District Judge.

This excessive force case is on remand from the Ninth Circuit for recalculation of attorney's fees. After a 10-day trial, a jury found for plaintiff only on certain claims against defendant Plumb and awarded plaintiff $125,000. The court then awarded plaintiff $292,002.87 in attorney's fees and expenses. (Docket No. 203.) On appeal, plaintiff challenged certain rulings of this court, including various aspects of the court's award of attorney's fees.1

The Ninth Circuit largely affirmed the court's rulings. (Docket Nos. 220, 221.) However, the Ninth Circuit held that this court erred by reducing the attorney's fee award based in part on its determination that the verdict would not meaningfully deter future violations by other officers. The Ninth Circuit explained that such finding was contrary to cases finding that fee awards would in fact have a deterrent effect, and that this court erred in relying on a law review article discussing empirical evidence finding there was little deterrent effect. The Ninth Circuit's memorandum disposition concluded as follows: "We therefore vacate the award and remand for recalculation of fees. On remand, the district court should reconsider or otherwise justify its lodestar reduction in light of this memorandum disposition."

On remand, plaintiff essentially argues that the court should reconsider its fee award in its entirety. However, such argument ignores the fact that the Ninth Circuit remanded for the limited purpose of reconsidering or justifying this court's lodestar reduction. The Ninth Circuit found no fault with the majority of this court's attorney's fee award, including its initial lodestar calculation, which resulted in a lodestar amount of $423,575. Nor does this court, on remand, find any fault with its prior lodestar calculation, notwithstanding plaintiff's voluminous briefing before and after the appeal suggesting that a different lodestar amount is appropriate.2

Pursuant to the Court of Appeals' mandate, however, the court will revisit its decision to reduce the lodestar amount by 45%. (See Docket No. 203 at 17-29.) The court now clarifies that the overwhelming majority of this reduction was based on plaintiff's limited success and not upon the court's finding that there was no meaningful deterrent effect to a fee award.

The court will not repeat its prior analysis regarding plaintiff's limited success and incorporates its discussion from its December 22, 2015 order.3 (See Docket No. 203 at 17-23.) As the court has observed, counsel plaintiff asked the jury to award a total of $1.75 million against three defendants but the jury awarded only $125,000 in compensatory damages against one defendant on certain claims, which is only slightly more than 7% of the damages sought by plaintiff. That said, it is not so much the disparity between what counsel asked the jury to award and what the jury actually awarded that accounted for counsel's limited success. Rather, it is the fact that counsel was unsuccessful in recovering damages for plaintiff on his most important claims.

Plaintiff prevailed only on his claims against Officer Plumb. It was obvious from the verdict that the finding of liability against Plumb was based on his punching plaintiff in the stomach. As should be clear from the Ninth Circuit's description of the incident in its Memorandum Disposition, it took little skill or effort to persuade a jury to find against Plumb on that claim.4 His punching a 76-year-old disabled man who could barely stand without a cane, who posed no immediate threat, and who had agreed to accompany the officers to the station, was clearly an abuse of authority and nothing else. (See Docket No. 220 at 2-4.) The damages awarded against Plumb were obviously based no more or no less on the pain and suffering resulting of the blow to the stomach.

What counsel failed to recover, however, were the damages resulting from the conduct of Officer Brame. It was the claims against Brame which constituted the heart of plaintiff's case. It was Brame who made the decision to pull plaintiff over in the first place. It was Brame who made the decision to place plaintiff under arrest after failing the field sobriety tests on the scene. It was Brame who took plaintiff from the scene to the CHP office. And it was Brame who made the decision to place plaintiff in the County Jail overnight. Had counsel succeeded on those claims, or any of them, plaintiff's damages might well have approached the sum he was asking the jury to award.

The court entertains no doubt that plaintiff's attorneys are highly qualified and experienced in this field and that they worked hard on this case. They were nevertheless unsuccessful in recovering on the predominating claims upon which they might have prevailed.

First, Brame based the initial stop on his claim that plaintiff's car appeared to be weaving and going too slow. However, the video did not show all that clearly that plaintiff's vehicle was weaving, and 55 mph was not necessarily too slow under the circumstances. The stop occurred on a stretch known as the Marconi curve, which is generally thought to be dangerous because vehicles do not move slow enough. Moreover, it was brought out, almost in passing, that Brame's decision to stop and cite plaintiff may have been motivated by his understanding that he was expected to meet a quota of citations in that area. Had counsel been more emphatic in cross examination and argument on those points, and convinced the jury that there were insufficient grounds for the stop in the first place, plaintiff may have been able to recover damages for everything that happened thereafter.

Second, Brame seemed to think that taking plaintiff to the CHP office for further testing was a part of the initial detention. In fact, under the court's instructions it was more than a detention; it was an arrest, for which probable cause was required. In the court's opinion, that fact was never clearly articulated to the jury, either in cross examination of Brame, in the testimony of other witnesses, or in argument. Had that been made clear to the jury, Brame would have had a hard time articulating probable cause for an arrest since plaintiff tested negative for alcohol and both his driving and his failure to pass the field sobriety test could be explained by his disability.

Third, the reason plaintiff was held in the County Jail until 1:00 a.m. was never explained. Had that been explored further, and had some inference been raised that Brame played a role in that decision, plaintiff might have recovered damages for his humiliating and frightening experience of being held for hours in a tank with drug dealers and other criminals while everyone but him seemed to be being processed out earlier.

So it was that the principal defendant, against whom plaintiff's attorneys expended the bulk of their time and efforts both before and during trial, escaped liability altogether, and plaintiff recovered nothing on the claims which could have yielded the bulk of the damages plaintiff sought. While plaintiff was a prevailing party under the law, no one with any familiarity with the case could have considered the outcome a major victory for plaintiff.5

It was primarily for those reasons discussed above that the court concluded that plaintiff's attorneys had limited success on their claims. The court had in its original order reduced the fee award by 45% due to that limited success. In order to give effect to the Court of Appeals' decision, and to eliminate any consideration of the argument that the verdict would not meaningfully deter future violations by other officers, upon reconsideration, the court will now reduce the lodestar by only 40%. After reducing the lodestar figure of $423,575 by 40%, plaintiff is entitled to $254,145 in attorney's fees.

This court's prior order granting attorney's fees awarded $30,360 to plaintiff for "fees on fees," e.g., the attorney's fees incurred drafting the original request for attorney's fees, and $28,676.57 for expenses.6 (Docket No. 203 at 31-37.) The Ninth Circuit found no error with these amounts, and this court incorporates by reference its prior discussion granting these fees and expenses. Plaintiff is therefore entitled to $30,360 for fees on fees and $28,676.57 for expenses.

Plaintiff also requests $55,555 in fees for 99.75 hours of his counsel's work after the Ninth Circuit's remand. However, given the limited remand by the Ninth Circuit, there is no reason why plaintiff's counsel should have spent almost 100 hours working on this case after the remand. Indeed, it appears that the vast majority of this time was spent seeking to relitigate the entire fee award, rather than addressing the court's reduction of the lodestar amount based in part on the court's determination that a fee award would not meaningfully deter future violations by other officers.7

The court declines to award fees for time spent by plaintiff's counsel addressing issues other than the deterrent effect of a fee award. Plaintiff's briefing does not specify what time was spent addressing the deterrent of effect of a fee award, and therefore the court cannot determine what fees were incurred addressing the deterrent effect. However, the court estimates that plaintiff's lead counsel (either Pearl, Haddad, or Sherwin) should have spent no more than 10 hours on this case after remand, given the limited scope of the remand. Taking the $400 hourly rate previously determined by the court for plaintiff's lead counsel plus a $30 enhancement for the increase in plaintiff's lead counsel's rates since 2015, the court will award an additional $4,300 for fees on fees on remand.8

In sum, the court will award $317,481.57 in attorney's fees and expenses, calculated as follows:

IT IS SO ORDERED.