The Ninth Circuit Court of Appeals, in an issue of first impression, held the “double recovery of costs other attorney fees is just as impermissible as double recovery of attorney fees.”  The holding came in a case involving a settlement by a co-defendant and a jury verdict against another defendant.

This case involved a SWAT team search at 5:26 a.m. pm on April 26, 2006. The Santa Maria Police Department (SMPD) obtained from a California magistrate a nighttime search warrant in an attempt to locate weapons involved in an April 2006 gang-related shooting.  The warrant request resulted in seven simultaneous residence searches.

The search at issue involved Javier Bravo, Jr.  The SWAT team busted into his families residence after knocking on the front door, awakening and frightening  his father, his father’s wife, and their granddaughter.  Bravo, however, received a two-year prison sentence “six months prior to the incident occasioning the search warrant.”

The complaint alleged officials failed to do a proper custody check that would have, if done thoroughly, revealed Bravo “could not establish probable cause for the search and especially does not meet the heightened standard of justification required for nighttime SWAT service. “ See:  Bravo v. City of Santa Maria, 665 F. 3d 1076, 1084 (9th Cir 2011).  In sum, Bravo “could not have been involved in the shooting or in concealing evidence.”

Because of the number of searches, SMPD invited other jurisdictions to assist.  The Santa Barbara Police Department SWAT team conducted the search at issue.  After defendants from Santa Barbara were denied qualified immunity, The City of Santa Barbara reached a $360,000 settlement consisting of $50,000 for each plaintiff, $169,856.34 in attorney fees, and $16,208.95 in costs.

After a trial, a federal jury found The Santa Maria defendants liable and awarded $5,000 in compensatory damages to Javier Sr. and the court awarded nominal damages to his wife and granddaughter.  The court also awarded $1,023,610.41 in attorney fees and $13,376.85 in costs.

On appeal, The Ninth Circuit agreed with the district court that the plaintiffs “achieved an excellent result,” for two benefits came from the litigation. The litigation “benefited the public by identifying a serious flaw in SMPD’s method of checking individuals’ custody status before seeking warrants.”  Additionally the Bravo ruling “held a greater justification is needed for a nighttime forced entry by a SWAT unit than for an ordinary search.”

The Court held “that a district court may, within the exercise of its discretion, consider the damages portion of a settlement payment by other defendants in evaluating plaintiff’s degree of success.  However, it should do so only if, and to the extent that plaintiff’s counsel’s time spent on settling defendants cannot be fairly separated from the time spent on non-settling defendants.  “Thus, the attorney fee award was affirmed after the court found the facts were “factually and legally intertwined, and the settling defendants were not faced with a nuisance suit.

The above holding applied to the award of costs.  The district court improperly failed to consider the costs awarded with the settlement in deciding costs after the verdict.  The matter was remanded to determine what amount of costs should be offset.  See: Bravo v. City of Santa Maria,_F.3d_(9th Cir.  2016).  Case No 14-55557

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