JAY REYNOLDS, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Appellant.

B185202

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE

2007 Cal. App. Unpub. LEXIS 2433


March 27, 2007, Filed

OPINION


INTRODUCTION

Plaintiff Jay Reynolds appeals from the trial court's order denying his application for attorney fees incurred in a prior appeal in this court. We conclude that the disposition in that case did not preclude the trial court from [*2] ruling on plaintiff's application for attorney fees incurred in the prior appeal, and reverse the order denying that attorney fee application and remand for determination of plaintiff's application.

Defendant County of Los Angeles (County) appeals from the order awarding attorney fees to Reynolds for representation by counsel in the prior trial court proceeding. We reject defendant's argument that the trial court erroneously failed to consider the extent of plaintiff's success in making that award, we find no abuse of discretion, and we affirm the award for attorney fees incurred in the prior trial court proceeding.

FACTUAL AND PROCEDURAL HISTORY

When a police officer stopped plaintiff Reynolds for a traffic violation, the officer discovered a valid State of South Dakota warrant for Reynolds's failure to pay child support. Reynolds was arrested and taken to the Los Angeles County Jail, where he remained as his sister-in-law settled his case with South Dakota authorities by paying Reynolds's outstanding child support, arrears, and interest. On March 17, 1999, at approximately 11:30 a.m., the trial court ordered Reynolds released because his case was dismissed. Reynolds, however, [*3] was not allowed to leave the courtroom and instead was returned to the Los Angeles County Jail, arriving at 6:35 p.m. Reynolds's papers were not logged in to the Inmate Reception Center until 8:43 p.m. The jail did not generate a release pass for Reynolds until 7:41 a.m. the next morning, March 18, 1999. During the night of March 17 and morning of March 18, 1999, a sheriff's deputy returned Reynolds to his cell, where he had been housed with six cellmates during his seven previous nights in county jail. During the night other prisoners attacked and raped Reynolds. At 6:00 a.m. on March 18, 1999, Reynolds obtained the help of a prison officer, who removed him from his cell. After he told that officer what happened inside his cell, he was taken to the jail infirmary, and later was handcuffed and transported to the Women's Children's Center, where he was examined by a doctor. He was released to his brother and sister-in-law at approximately 10:00 p.m. on March 18, 1999.

Reynolds sued the County of Los Angeles under 42 United States Code section 1983 (section 1983) for violation of his civil rights under the Fourth, Fifth, and Fourteenth Amendments to the United [*4] States Constitution, alleging that the Los Angeles County Sheriff illegally detained Reynolds in custody after the court ordered him released. The trial court granted summary adjudication for the County in a cause of action for detention of Reynolds in violation of the Eighth Amendment (cruel and unusual punishment). Only the section 1983 cause of action went to the jury.

By special verdict the jury found that:

1. Reynolds was overdetained in violation of his constitutional rights;

2. A Los Angeles County Sheriff's Department policy, custom or practice caused Reynolds to be overdetained in violation of federal rights under federal law;

3. Reynolds was overdetained when cellmates physically and sexually assaulted him; and

4. Overdetention proximately caused the physical and sexual assault against Reynolds.

The jury awarded $25,000 in damages for being overdetained, and $1 million in damages for being physically and sexually assaulted while overdetained. Judgment was entered on December 12, 2001.

The County appealed from the judgment. Reynolds appealed from the September 17, 2001, order granting defendant's motion for summary adjudication as to Reynolds's cause of action for violation [*5] of the Eighth Amendment of the United States Constitution.

On March 8, 2002, Reynolds's attorney, Dennis M. Elber, filed a motion for attorney fees of $279,025 under 42 United States. Code section 1988 (section 1988). On November 8, 2002, the trial court filed an amended judgment awarding Reynolds $227,550 in attorney fees and $11,821.22 in costs. The County appealed from this amended judgment.

This court filed its opinion November 10, 2004 (Reynolds v. County of Los Angeles (B157249; B163468) [nonpub. opn.]). In the appeal by the County from the judgment, the $25,000 damages award was affirmed under Reynolds's theory of overdetention in violation of the Fourth Amendment. However, because the criminal attacks by Reynolds's cellmates were an intervening superseding cause which cut off the liability of the County, the $1 million damages award was reversed.

In Reynolds's appeal from the grant of summary adjudication on his Eighth Amendment cause of action alleging that the Los Angeles County Sheriff classified Reynolds as "high risk" and placed him in a maximum security cell, this court concluded that Reynolds provided no evidence that this classification [*6] system was not reasonably related to the legitimate government objective of managing the jail to maintain security, and did not provide evidence that the classification policy reflected "deliberate indifference" to a substantial risk of serious harm. Therefore the grant of summary adjudication was affirmed.

In the appeal by the County from the amended judgment awarding attorney fees to Reynolds, this court found that reversal of the $1 million damages award required remand to the trial court for a redetermination of attorney fees. Remittitur issued on March 2, 2005.

The trial court ordered the parties to file briefs on the redetermination of attorney fees by May 13, 2005. Reynolds's attorney, Mr. Elber, filed a declaration, stating that Elber worked for 50 hours on sexual assault issues, and given the reversal of the award of $1 million in damages for being physically and sexually assaulted while overdetained, the $227,550 award should be reduced by 50 hours, at an hourly rate of $450, to $205,050 for attorney fees for proceedings in the trial court.

Elber's declaration then addressed attorney fees in the appeal. It stated that Elber worked 590 hours successfully defending the portion [*7] of the judgment which was upheld. At the trial court's figure of $450 per hour, Elber claimed $265,500 in attorney fees for work performed successfully defending the portion of the judgment upheld in the appeal. Combined with the request for $205,050 in attorney fees for proceedings in the trial court, Elber requested $470,550 in total attorney fees.

The County's brief concerning attorney fees on remand argued that the critical factor in determining a reasonable attorney fee was the degree of success obtained, and argued that it would be unreasonable for someone to pay attorneys $227,550 to win $25,000. The County argued that the overdetention issue was relatively simple, in that evidence obtained through discovery and introduced at trial was minimal compared to hours spent in discovery and trial regarding the County's classification system and the physical and sexual attack. The County argued that the trial court should deduct fees for work on unsuccessful claims. Calculating the trial court's previous attorney fee award of $227,550 as 22 percent of the jury's $1,025,000 damages award, the County argued that given the reduction of that award on appeal to $25,000, the trial court [*8] should reduce the attorney fee award to $5,500.

The County also argued that if plaintiff's attorney sought an award of attorney fees for work performed on appeal, the trial court should summarily deny that request because the County succeeded in overturning the $1 million jury award, and plaintiff was unsuccessful on his own appeal.

On June 8, 2005, the trial court ruled on plaintiff's attorney fee applications. First, in redetermining attorney fees incurred at trial, the trial court rejected the County's arguments that attorney fees should be proportioned to the success of the claim and that $227,500 attorney fees to recover $25,000 was unreasonable. The trial court found that overdetention and assault were equally litigated throughout trial preparation, discovery, and during the trial, and that these claims, although separate, were fully intertwined, in that but for the overdetention the rape/assault would not have occurred. The trial court found that plaintiff succeeded in one contention, notwithstanding that the jury awarded substantially greater damages for the second contention, the rape/assault. The trial court allocated 50 percent of attorney fees to the overdetention judgment. [*9] Having previously ordered attorney fees of $227,500, the trial court awarded half of those fees, $113,750. The trial court also awarded costs of $11,821.22.

Second, the trial court addressed plaintiff's request for attorney fees on appeal. The trial court found that the Court of Appeal opinion ordered the parties to bear their own costs on appeal, and found that because in this type of case attorney fees are costs, each party would be responsible for their own attorney fees on appeal.

Reynolds and the County each filed timely notices of appeal from the June 8, 2005, order.

ISSUE

Plaintiff Reynolds claims that the trial court erroneously failed to grant his application for attorney fees incurred in his prior appeal.

The County claims that in redetermining attorney fees, the trial court abused its discretion by erroneously failing to consider the extent of plaintiff's success, which requires remand for redetermination of the attorney fee award.

DISCUSSION

1. The Trial Court Should Rule on Reynolds's Application for Attorney

Fees Incurred in His Prior Appeal

Reynolds claims that the trial court erroneously failed to grant his application for attorney fees [*10] incurred in his prior appeal. We agree that the trial court should make a determination regarding Reynolds's application for attorney fees incurred in his prior appeal. We reverse the order denying that application.

Section 1988(b) states that in any action to enforce a provision of section 1983, "the court in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs[.]"

Section 1988 applies in state courts. (Filipino Accountants' Assn. v. State Bd. of Accountancy (1984) 155 Cal. App. 3d 1023, 1031, 204 Cal. Rptr. 913.) The section 1988 fee provision is part of the remedy provided by section 1983. California courts "have routinely applied the attorney fees provision of section 1988 in cases resulting in the enforcement of federal constitutional rights or 42 United States Code section 1983." (Sokolow v. County of San Mateo (1989) 213 Cal. App. 3d 231, 243, fn. 9, 261 Cal. Rptr. 520.) If a statute entitles a plaintiff to an award of attorney fees in trial court proceedings, it likewise entitles a prevailing plaintiff to attorney fees incurred in prosecuting [*11] an appeal. (EWAP, Inc. v. City of Ontario (1986) 177 Cal. App. 3d 1108, 1118-1119, 223 Cal. Rptr. 422; Serrano v. Unruh (1982) 32 Cal.3d 621, 637-638, 186 Cal. Rptr. 754.)

There was some indication that the trial court construed the disposition in the opinion in the first appeal-which ordered the parties to bear their own costs on appeal-to preclude Reynolds's application for attorney fees incurred in that appeal. California Rules of Court, rule 8.276(c)(1) defines costs that a party may recover on appeal. Rule 8.276 (c)(2) states: "Unless the court orders otherwise, an award of costs neither includes attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702." Therefore this court's cost award in the disposition of the previous appeal did not preclude Reynolds from applying for attorney fees incurred in that appeal.

The County has not responded to Reynolds's assertion of his substantive right to an award of attorney fees on appeal. Instead the County argues that the trial court correctly denied plaintiff's application for attorney fees incurred in the appeal because plaintiff did not follow the [*12] procedure in former California Rules of Court, rules 870.2(c)(1) and 27 (current rules 3.1702(c)(1) and 8.276.) Former rule 870.2 applied to claims for statutory attorney fees. (Id., subd. (a).) Former rule 870.2(c)(1) required a notice of motion to claim attorney fees on appeal under a statute to be served and filed within 40 days after notice of issuance of remittitur. We construe the March 21, 2005, order setting a hearing to redetermine Reynolds's attorney fee award for April 21, 2005, and the April 21, 2005, order requiring the parties' counsel to file briefs by May 13, 2005, to be an extension of time for filing a motion for attorney fees pursuant to former California Rules of Court, rule 870.2(d) (current rule 3.1702(d)). We therefore do not find Reynolds's motion was untimely.

Nor do we find that the County was deprived of an opportunity to respond. Its brief addressed Reynolds's possible request for attorney fees incurred in the appeal, and argued that the trial court should summarily deny such request. If defendant believed further opposition was necessary, it should have moved to continue the hearing to allow filing of that opposition. Although noting the lack of a [*13] new motion regarding attorney fees on appeal, counsel for the County did not request a continuance. In any case since we now remand the matter for determination of Reynolds's request for attorney fees for the prior appeal, the County will have a full opportunity to file opposition to that request.

We conclude that the attorney fee award must be reversed and remanded for a determination of plaintiff's application for attorney fees incurred in the first appeal.

2. There Was No Abuse of Discretion in the Award of Attorney Fees

Incurred in the First Trial Court Proceeding

The County claims that in redetermining attorney fees, the trial court abused its discretion by erroneously failing to consider the extent of plaintiff's success, which requires remand for redetermination of the attorney fee award. a. Determination of an Attorney Fee Award Under Section 1988

The purpose of section 1988 is to ensure that persons with civil rights grievances have effective access to the judicial process. Therefore a prevailing plaintiff should ordinarily recover an attorney fee unless special circumstances render such an award unjust. The fee amount must be determined on the facts of each [*14] case. (Hensley v. Eckerhart (1983) 461 U.S. 424, 429, 76 L. Ed. 2d 40 (Hensley).) One such factor "indicates that the level of a plaintiff's success is relevant to the amount of fees to be awarded." (Id. at p. 430.) Hensley adopts the following standard for the threshold determination of when a plaintiff becomes "a prevailing party" to recover an attorney's fee under section 1988: " '[P]laintiffs may be considered "prevailing parties" for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.' " (Id. at p. 433.) When a plaintiff satisfies this threshold determination, the trial court must then determine what fee is "reasonable." (Ibid.)

To determine a reasonable attorney fee, the trial court arrives at an initial estimate of the value of an attorney's services by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. The trial court may reduce the initial fee calculation if the documentation of hours is inadequate, or where the fee application includes hours not "reasonably expended. [*15] " Other considerations may also require adjusting the fee up or down, "including the important factor of the 'results obtained.' This factor is particularly crucial where a plaintiff is deemed 'prevailing' even though he succeeded on only some of his claims for relief. In this situation two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?" (Hensley, supra, 461 U.S. at p. 434, fn. omitted.)

Regarding the first question, where plaintiff's suit brings different claims for relief based on different facts and legal theories and counsel's work on one claim is unrelated to work on another claim, no attorney fee may be awarded for services on the unsuccessful claim. (Hensley, supra, 461 U.S. at p. 435.) Where a plaintiff's claims for relief involve a common core of facts or are based on related legal theories and plaintiff's counsel devotes time to the litigation as a whole, it can be difficult to divide hours expended to each claim. [*16] "Such a lawsuit cannot be viewed as a series of discrete claims. Instead the [trial] court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." (Ibid.)

Regarding the second question, "[w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. [Citation.] Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters." (Hensley, supra, 461 U.S. at p. 435.) "If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. [*17] . . . [T]he most critical factor is the degree of success obtained." (Id. at p. 436.)

Hensley emphasized that the trial court "has discretion in determining the amount of a fee award," because of its "superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters." (Hensley, supra, 461 U.S. at pp. 437.) "When an adjustment is requested on the basis of either the exception or limited nature of the relief obtained by the plaintiff, the [trial] court should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained." (Ibid.)

This court reviews an attorney fee award under section 1988 for abuse of discretion. (Robbins v. Regents ofUniversity of California (2005) 127 Cal.App.4th 653, 665.) b. The Trial Court's Attorney Fee Award Was Not an

Abuse of Discretion

The trial court explained the reasons for its fee award in its June 8, 2005, order. The order stated that in the prior appeal, this court reversed the $1 million judgment, affirmed the $25,000 judgment, and remanded the matter for [*18] redetermination of the attorney fee award. The order stated: "Pursuant to Hensley vs. Eckerhart (1983) 461 U.S. 424, 76 L. Ed. 2d 40[,] where the plaintiff has only limited success the trial court should award only that amount of fees that is reasonable in relation to the results obtained."

The trial court responded to the County's argument that $227,500 in attorney fees to win $25,000 was unreasonable and that plaintiff had only minimal success, which required attorney fees of $5,500, but no more than $15,000. "This court finds that the issues of overdetention and assault were equally litigated throughout trial preparation, discovery and during the trial. Each constituted a separate claim but were fully intertwined in that but for the overdetention the rape/assault would not have occurred. Plaintiff was successful in one prong of his two prong contentions[,] notwithstanding that the jury awarded substantially greater damages for the rape/assault. Overdetention was a significant part of the trial. It would be difficult and the time necessary to go over every hour or portion of an hour billed to segregate between the two theories may take as long as the trial itself. [*19] [P] The court [feels] comfortable in allocating 50% of the attorney fees to the overdetention judgment in reviewing the court's extensive notes taken during trial and a review of the discovery and the court file. [P] This court initially ordered fees in the amount of $227,500.00[;] one half of this would be $113,750.00." The trial court awarded attorney fees of $113,750.

The County argues that by simply cutting the award in half, the trial court failed to take into account the extent of plaintiff's success compared to the litigation as a whole, as required by Hensley. Hensley focused on the factor of " 'results obtained,' " a factor that is "particularly crucial where a plaintiff is deemed 'prevailing' even though he succeeded on only some of his claims for relief." (Hensley, supra, 461 U.S. at p. 434.) Reynolds prevailed on his Fourth Amendment overdetention claim, but not on his assault and rape claim. In this situation, two questions were relevant. "First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded?" (Ibid.) The trial court answered this question negatively, because the overdetention claim [*20] and the rape/assault claim "were fully intertwined in that but for the overdetention the rape/assault would not have occurred." "Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?" (Hensley, supra, at p. 434.) The trial court answered this question positively, stating: "Plaintiff was successful in one prong of his two prong contentions[,] notwithstanding that the jury awarded substantially greater damages for the rape/assault. Overdetention was a significant part of the trial. . . . [P] The court feels comfortable in allocating 50% of the attorney fees to the overdetention judgment in reviewing the court's extensive notes taken during [the] trial and a review of the discovery and the court file." Thus the trial court reduced the fee award because the relief was limited in comparison to the scope of the litigation as a whole. (Hensley, supra, at p. 440.)

The question then becomes whether the attorney fees awarded were reasonable in light of the $25,000 judgment in the overdetention claim. (Hensley, supra, 461 U.S. at p. 434.) The County seeks [*21] to apply a mathematical formula, calculating that because Reynolds's reversed $1 million damage award was 97 percent of the judgment, it was error for the trial court to reduce the attorney fee award by only half. As we have seen, however, the trial court determined that overdetention was a significant part of the trial, discovery, and litigation of the case, and found that 50 percent of attorney fees corresponded to the amount of time plaintiff's attorney spent on the overdetention claim. The United States Supreme Court has affirmed an attorney fee award that was considerably higher than the monetary value of the judgment. In Riverside v. Rivera (1986) 477 U.S. 561, 91 L. Ed. 2d 466, the United States Supreme Court rejected the proposition that an attorney fee award under section 1988 that exceeded the amount of damages recovered was per se unreasonable. It likewise rejected an argument that attorney fee awards under section 1988 should necessarily be proportionate to the amount of damages a civil rights plaintiff actually recovers. (Id. at pp. 573-574, 581.) Riverside cited congressional recognition that "reasonable attorney's fees under § 1988 [*22] are not conditioned upon and need not be proportionate to an award of money damages." (Id. at p. 576.) Riverside affirmed a $245,456.25 attorney fee award under section 1988 where plaintiff had recovered $33,350 in compensatory and punitive damages.

We are satisfied that the trial court accurately and judiciously applied the criteria in Hensley in making this award. We find no abuse of discretion, and affirm the trial court's award for attorney fees incurred by plaintiff in the trial court.

3. Reynolds Can Make Application for Attorney Fees Incurred in This Appeal

The trial court has discretion, upon proper application by plaintiff Reynolds, to grant an award of attorney fees incurred in this appellate proceeding. (Fewquay v. Page (11th Cir. 1990) 907 F.2d 1046; Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927, 275 Cal. Rptr. 187.)

DISPOSITION

The award to plaintiff Reynolds of attorney fees incurred in the trial proceeding is affirmed. The denial of Reynolds's application for attorney fees incurred in the prior appeal proceeding is reversed and remanded for determination of that attorney fee application. [*23] Costs on appeal are awarded to plaintiff Reynolds.

KITCHING, J.

We concur:

CROSKEY, Acting P.J.

ALDRICH, J.