FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVANGELINA MENDEZ; ANGEL
MENDEZ,
Plaintiffs,
and
ARTURO JORGE GONZALEZ,
Appellant, No. 05-56118
v. D.C. No.
CV-04-07131-GPS
COUNTY OF SAN BERNARDINO; SAN
BERNARDINO COUNTY SHERIFF’S
DEPARTMENT; CITY OF HESPERIA;
JAMES MARTINEZ; ROD MEDLEY;
MARION BROWNE; CESAR REYES,
Defendants-Appellees.
EVANGELINA MENDEZ; ANGEL
MENDEZ,
Plaintiffs-Appellants,
and
JOSE MENDEZ; TIFFANY AUTREY,
Plaintiffs, No. 06-56424
v. D.C. No.
COUNTY OF SAN BERNARDINO; SAN CV-04-07131-GPS
BERNARDINO COUNTY SHERIFF’S
DEPARTMENT; CITY OF HESPERIA;
JAMES MARTINEZ; ROD MEDLEY;
MARION BROWNE; CESAR REYES;
STEVEN LAWYER,
Defendants-Appellees.
11787
11788 MENDEZ v. COUNTY OF SAN BERNARDINO
EVANGELINA MENDEZ; ANGEL
MENDEZ,
Plaintiffs-Appellants,
and
ARTURO JORGE GONZALEZ, No. 07-56029
Appellant,
v. D.C. No.
CV-04-07131-GPS
COUNTY OF SAN BERNARDINO; SAN OPINION
BERNARDINO COUNTY SHERIFF’S
DEPARTMENT; CITY OF HESPERIA;
JAMES MARTINEZ; ROD MEDLEY;
MARION BROWNE; CESAR REYES,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding
Argued and Submitted
June 11, 2008—Pasadena, California
Filed August 27, 2008
Before: Stephen S. Trott, Michael D. Hawkins and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
11792 MENDEZ v. COUNTY OF SAN BERNARDINO
COUNSEL
Shirley M. Hufstedler (argued), Morrison & Foerster, LLP,
Los Angeles, California; Arturo J. Gonzales, Tony West
(argued), and Geoffrey Graber, Morrison & Foerster, LLP,
San Francisco, California, for the plaintiffs-appellants.
Eugene P. Ramirez, Manning & Marder, Kass, Ellrod, &
Ramirez, LLP, Los Angeles, California; Patrick L. Hurley
(argued), Manning & Marder, Kass, Ellrod, & Ramirez, LLP,
San Francisco, California, for the defendants-appellees.
Brad Seligman, The Impact Fund, Berkeley, California; Rob-
ert Rubin, Lawyers’ Committee for Civil Rights of the San
Francisco Bay Area, San Francisco, California, for the amici
curiae The Impact Fund and the Lawyers’ Committee for
Civil Rights of the San Francisco Bay Area.
MENDEZ v. COUNTY OF SAN BERNARDINO 11793
OPINION
FISHER, Circuit Judge:
Plaintiff-Appellant Evangelina Mendez (“Mendez”) and
members of her family brought this suit against the County of
San Bernardino, the City of Hesperia, the San Bernardino
Sheriff’s Department and various individual defendants (col-
lectively, “the County”) under 42 U.S.C. § 1983 and state
law, alleging violations of their civil rights. This case arose
from the aftermath of an officer-involved shooting that
resulted in the death of Mendez’s deaf-mute son, Ignacio, in
July 2002. Although the legality of the shooting itself was not
challenged, Mendez and another of her sons, Angel, alleged
that the County falsely arrested them after the shooting, ille-
gally searched the Mendez home and was negligent in the
supervision and training of its officers. Some of Mendez’s
claims were resolved on summary judgment and others were
voluntarily dismissed before trial; the remainder were tried
before a jury, which found in Mendez’s favor on the false
arrest and illegal search claims and awarded her nominal and
punitive damages. In this consolidated appeal, Mendez chal-
lenges the district court’s decisions limiting the jury’s consid-
eration of her emotional damages, remitting her punitive
damages award and granting summary judgment to the
County on her state law negligent training claim. She also
appeals the court’s rulings denying her all attorney’s fees and
costs and sanctioning her attorney. She requests reassignment
of the case to a different judge on remand. We affirm in part,
reverse in part and remand without reassignment.
BACKGROUND
Mendez’s son Ignacio was shot and killed by a police offi-
cer on the evening of July 2, 2002, during an armed standoff
with police on the driveway of the Mendez’s neighbor’s
home. Neither Mendez nor Angel was considered a suspect in
any crime, but both were witnesses to the event. Shortly after
11794 MENDEZ v. COUNTY OF SAN BERNARDINO
the shooting, Mendez was placed in the back of a police car
on the scene. The officer who first placed her in the car testi-
fied that he “opened the door and asked her to have a seat.”
After about 10 minutes, Mendez began to hit the windows,
asking to be released. An officer then transferred Mendez to
a different police car parked nearby. She again beat on the
windows in an attempt to ask for air; an officer eventually
cracked open a window for her. After about two hours,
Mendez and Angel were driven to the police station in sepa-
rate cars for questioning. Mendez was not asked whether she
consented to being brought to the station and the officer who
brought her there never told her that she was free to leave.
At the station, Mendez was placed in a room with a closed
door and questioned by two police officers, one of whom was
Deputy Cesar Reyes. Reyes translated in Spanish for Mendez,
who does not speak or read English and has minimal educa-
tion. Reyes admitted that he did not tell Mendez that she was
free to leave the station. When Mendez told Reyes that she
wanted to see Ignacio, whom she did not yet know had been
shot fatally, Reyes told her that she could not see him. While
Mendez was being questioned, she was told to sign a form
written in English, giving the police consent to search her
home. Reyes did not translate the consent form for her,
including a statement that would have informed her that her
consent was voluntary and that she had a right to refuse.
When Mendez questioned whether searching her home was
necessary, Reyes put the paper in front of her and told her,
“This is a paper you need to sign.” Mendez then signed the
form. Relying on Mendez’s signed consent, police officers
conducted a search of the Mendez residence without a war-
rant.
Mendez and Angel were released from the police station at
around five or six in the morning on July 3. When Mendez
returned home, she was at first blocked from entering because
police were still investigating the shooting scene. When she
was allowed to reenter later that morning, she saw that the
MENDEZ v. COUNTY OF SAN BERNARDINO 11795
house had been searched and noted that “the closets were all
out of order, and there were clothes thrown around and papers
thrown around.” Mendez’s husband testified that Mendez was
“crying uncontrollably” when she returned home and was
having difficulty speaking. One of the officers who ques-
tioned Mendez admitted that she was upset during some
points of the interview and that at times it was difficult for her
to speak, although he attributed her anguish to her son’s
shooting. Mendez later explained to the jury that she felt
“[l]ike a prisoner” while at the police station, because she did
not know what had happened to Ignacio and was afraid for
Angel’s life.
Mendez and four family members brought this suit against
the County of San Bernardino, the City of Hesperia, the San
Bernardino Sheriff’s Department and five individual defen-
dants, including Deputy Reyes, the two police officers who
drove Angel and Mendez to the police station, the supervisor
in charge of the shooting scene and an officer who responded
to an incident at the Mendez home on October 5, three months
after the shooting. The plaintiffs later voluntarily dismissed
their claims as to the October 5 incident, which removed this
latter defendant and three Mendez family members — all but
Mendez and Angel — from the case. The remaining claims
alleged false arrest of Mendez and Angel under state law and
the Fourth Amendment, illegal search under the Fourth
Amendment, negligent failure to train the police officers
under state law, and alleged that the County was liable for the
constitutional violations under Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978), for failing to adequately train its offi-
cers. Prior to trial, the district court granted summary judg-
ment to the County on the state law negligence claim and the
Monell claim. The remaining claims proceeded to trial, where
the jury found against Reyes for Mendez’s false arrest under
state and federal law and against Reyes for the illegal search
of her home under federal law. The jury awarded Mendez $1
in nominal damages on each of these claims, plus $250,000
in punitive damages against Reyes, based on its finding that
11796 MENDEZ v. COUNTY OF SAN BERNARDINO
he acted recklessly in depriving her of her constitutional
rights. The jury found for the County as to Angel’s claims.
JURISDICTION
This case was brought under 42 U.S.C. § 1983; the district
court had jurisdiction under 28 U.S.C. § 1331. The district
court entered final judgment in June 2007, and Mendez timely
appealed. The court denied Mendez’s request for attorney’s
fees and costs under 42 U.S.C. § 1988(b) in a separate order,
and Mendez timely appealed that order. The court also sanc-
tioned Mendez’s attorney in a separate order and Mendez and
her attorney timely appealed the sanctions order. These three
appeals have been consolidated for our review and we have
jurisdiction over them under 28 U.S.C. § 1291. We shall con-
sider Mendez’s arguments concerning the trial itself first, fol-
lowed by her arguments as to the court’s denial of attorney’s
fees and entry of sanctions against her attorney.
DISCUSSION
I. Jury Instruction on Mendez’s Emotional Damages
Mendez first contends that the district court erred when it
issued a sua sponte instruction to the jury limiting its consid-
eration of her emotional damages. The jury initially received
an instruction that Mendez’s damages should be “the amount
of money which would reasonably and fairly compensate the
plaintiff for any injury you find was caused by the defendant.”
The district court later recalled the jury in the midst of delib-
erations and — over Mendez’s objections — instructed it
“that the evidence does not support an award of damages for
any period after July 3, 2002,” the day Mendez was released
from the police station. It is well established that “[a] party is
entitled to an instruction about his or her theory of the case
if it is supported by law and has foundation in the evidence.”
Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). We
review a district court’s formulation of jury instructions for
MENDEZ v. COUNTY OF SAN BERNARDINO 11797
abuse of discretion. Id. Mendez contends that the district court
abused its discretion by limiting the jury’s consideration of
her damages to only the two days of events at issue, contrary
to Mendez’s theory of her case. We disagree and affirm the
district court.
A.
Mendez presented fairly minimal evidence of any actual
damages she suffered as a result of her illegal arrest and the
illegal search of her home. During trial, she testified that she
felt “[l]ike a prisoner” while she was at the police station, and
that she “was desperate” and was afraid they might kill her
son, Angel. She also recounted beating on the windows of the
police car she was placed in after the shooting. A detective
who interviewed Mendez on the night of July 2 agreed that
she was upset during some points of the interview and that at
times it was difficult for her to talk, although he believed that
her anguish was related to Ignacio’s shooting. Mendez’s hus-
band similarly testified that his wife was “crying uncontrolla-
bly” and unable to speak when she returned home from the
police station. As to the ill effects of the illegal search,
Mendez testified only that she noted upon her return that “the
closets were all out of order, and there were clothes thrown
around and papers thrown around.”
Although this evidence arguably showed that Mendez had
suffered emotionally during the false arrest and illegal search,
she did not present any expert witnesses, medical evidence or
even testify herself that she had suffered any ongoing ill
effects from the illegal arrest and search. The only evidence
she presented of any possible ongoing emotional damages at
all occurred during the following exchange at trial:
Counsel: Are you taking medication for depression
now?
Mendez: Yes.
11798 MENDEZ v. COUNTY OF SAN BERNARDINO
Counsel: And when was that prescribed?
Mendez: After they killed my son.
Counsel did not, however, ask Mendez any follow-up ques-
tions to link her depression specifically to her emotional dis-
tress from the illegal arrest and search as opposed to any
distress she felt from Ignacio’s death. The only other evidence
that Mendez now suggests could support a jury’s finding of
ongoing emotional damages was that she cried on the witness
stand while recounting some of the events.
The district court first expressed concerns about the scope
of the emotional damages instruction before closing argu-
ments, when the County requested an instruction that neither
Mendez nor Angel had suffered any damages other than nom-
inal damages. The court was not persuaded that plaintiffs had
failed to show any emotional damages from the events, but
did flag its concern as to whether they had put forward any
evidence of ongoing emotional damages. The court did not
immediately rule on the issue, however, and counsel pro-
ceeded to make their closing arguments the next day. During
a break between the defendant’s closing argument and the
plaintiff’s rebuttal, the court raised the issue again, stating that
it was aware of Mendez’s testimony about depression, “but I
would like to see the testimony indicating — pointing to spe-
cifically, the detention and the search as being the cause of
that depression.” Mendez’s counsel willingly agreed to defer
argument on the issue until after he had delivered his rebuttal;
the district court then ordered both sides to prepare a record
of transcript excerpts supporting ongoing emotional damages.
The case was then submitted to the jury. After reviewing the
parties’ submissions, the court ruled the next morning that
“limitation is appropriate, especially in light of the lack of
specific evidence as to damages and their time frames.” The
court recalled the jury and issued a new instruction limiting
its consideration of damages to the two days Mendez was in
MENDEZ v. COUNTY OF SAN BERNARDINO 11799
custody. The jury ultimately returned an award of nominal
damages for the false arrest and illegal search claims.
B.
Mendez raises two principal arguments against the district
court’s revised jury instruction. First, she contends that the
court abused its discretion because there was a sufficient
“foundation in the evidence” for the jury to have found that
she incurred ongoing emotional damages, beyond the dam-
ages she suffered during the false arrest and illegal search
itself. Jones, 297 F.3d at 934. We disagree. As Mendez essen-
tially admits, the only evidence that she suffered any ongoing
emotional distress was her testimony that she had been on
anti-depressants since the day of the shooting. She never testi-
fied, however, that this depression was related to the illegal
search and arrest, as opposed to any depression she may have
felt at the traumatic death of her son, an event for which the
County was not liable. She was never asked, nor did she tes-
tify, that she suffered any ongoing distress, ill feelings or
delayed trauma as a result of the illegal arrest or search, nor
did she put forth any medical evidence about the cause of her
depression.
[1] Although we agree that emotional damages may be
based on “humiliation and emotional distress established by
testimony or inferred from the circumstances, whether or not
plaintiffs submit evidence of economic loss or mental or
physical symptoms,” see Johnson v. Hale, 13 F.3d 1351, 1352
(9th Cir. 1994), this does not mean that emotional damages
can be inferred entirely from circumstances, without any sup-
porting testimony from witnesses. To the contrary, in Johnson
the plaintiffs provided “detailed and substantial testimony” to
support their emotional damages claim. See id. at 1353. In
that case we were merely clarifying that they did not also
need to present evidence of actual mental or physical symp-
toms. See id. Mendez also points to Murphy v. City of Long
Beach, 914 F.2d 183, 186-87 (9th Cir. 1990), where we held
11800 MENDEZ v. COUNTY OF SAN BERNARDINO
that a trial court did not abuse its discretion in ordering a new
trial, when the trial court had concluded that it was erroneous
to instruct a jury that a plaintiff’s emotional distress was nec-
essarily attributable to one of two possibly traumatizing
events, only one of which was illegally caused by defendants.
Murphy offers no support to Mendez, however, because in
that case we did not consider what evidence the plaintiffs
presented — or would need to present — to establish that they
suffered ongoing emotional distress from the defendants’ act.
We agree that it is possible that Mendez suffered ongoing
damages from both the illegal search and arrest as well as the
death of her son. The district court did not abuse its discre-
tion, however, because she presented no evidence to support
that possibility.
[2] Second, Mendez argues that the timing of the jury
instruction — coming after closing arguments, in the midst of
jury deliberations — denied her due process. She relies on
United States v. Eisen, 974 F.2d 246, 256 (2d Cir. 1992),
which held that Federal Rule of Criminal Procedure 30
requires a trial court to rule on jury instructions prior to sum-
mation, “to afford the parties an opportunity to frame their
closing remarks in light of the court’s subsequent legal
instructions.” Even assuming the dubious proposition that this
rule of federal criminal procedure is also a principle of consti-
tutional due process applicable to civil trials, Mendez can nei-
ther show that she was “substantially misled in formulating
[her] arguments” nor otherwise prejudiced. Cf. id. Mendez
was on notice that the court had concerns about the scope of
her damages instruction, but she agreed to defer the court’s
ruling on the matter until after her counsel had given his
rebuttal argument. Further, her closing argument for damages
was couched in very broad terms, telling the jury that there is
no “magical formula” to assess damages and that they should
just “be reasonable” and “fair to Mrs. Mendez.” Her counsel’s
reference to the ongoing depression during closing arguments
was brief and cannot show that she was “substantially misled”
in formulating her arguments. Id. We affirm.
MENDEZ v. COUNTY OF SAN BERNARDINO 11801
II. Reduction of the Punitive Damages Award
[3] The jury awarded Mendez $1 each in nominal damages
for her false arrest and illegal search claims and $250,000 in
punitive damages against Reyes, whom it found to have acted
in reckless disregard of her constitutional rights. After trial,
the County moved to remit the award, arguing that it was
excessive in violation of the Due Process Clause under BMW
of North America, Inc. v. Gore, 517 U.S. 559 (1996), and
State Farm Mutual Automobile Insurance Co. v. Campbell,
538 U.S. 408 (2003). The district court agreed and reduced
the punitive damages award to $5,000, finding the punitive
damages award excessive “in light of the nominal compensa-
tory damages awarded.” We evaluate the constitutionality of
a punitive damages award by following the guideposts pro-
vided by the Supreme Court, assessing: “(1) the degree of rep-
rehensibility, (2) the disparity between the harm suffered and
the punitive damages award, and (3) the difference between
this remedy and the civil penalties authorized or imposed in
comparable cases.” Bains LLC v. ARCO Prods. Co., 405 F.3d
764, 775 (9th Cir. 2005) (citing Gore, 517 U.S. at 574-75).
We review the district court’s application of the Gore guide-
posts to a jury’s punitive damages award de novo, but defer
to the district court’s findings of fact unless they are clearly
erroneous. Planned Parenthood of the Columbia/Willamette,
Inc. v. Am. Coalition of Life Activists, 422 F.3d 949, 953-54
(9th Cir. 2005). Mendez argues that the jury’s award was not
unconstitutionally excessive and so should be reinstated. We
disagree and affirm the district court.
State Farm enumerates the factors we should consider
when evaluating the reprehensibility of the defendant’s con-
duct under the first guidepost. We look to whether
the harm caused was physical as opposed to eco-
nomic; the tortious conduct evinced an indifference
to or a reckless disregard of the health or safety of
others; the target of the conduct had financial vulner-
11802 MENDEZ v. COUNTY OF SAN BERNARDINO
ability; the conduct involved repeated actions or was
an isolated incident; and the harm was the result of
intentional malice, trickery, or deceit, or mere acci-
dent.
State Farm, 538 U.S. at 419. Reprehensibility falls along a
scale, with “acts and threats of violence at the top, followed
by acts taken in reckless disregard for others’ health and
safety, affirmative acts of trickery and deceit, and finally, acts
of omission and mere negligence.” Swinton v. Potomac Corp.,
270 F.3d 794, 818 (9th Cir. 2001) (internal quotation marks
omitted). “Although determining the degree of reprehensibil-
ity ultimately involves a legal conclusion, we must accept the
underlying facts as found by the jury and the district court,”
because district courts have a “somewhat superior vantage” in
assessing the defendant’s conduct. Leatherman Tool Group,
Inc. v. Cooper Indus., Inc., 285 F.3d 1146, 1150 (9th Cir.
2002) (internal quotation marks omitted).
Applying the Supreme Court’s guidance in State Farm, the
district court found that Reyes’ conduct in failing to translate
the consent-to-search form and illegally detaining Mendez at
the police station was not so reprehensible as to justify the
jury’s award of punitive damages. The court noted, among
other things, that although the jury found that Reyes acted
with reckless disregard for Mendez’s rights, there was no evi-
dence that he acted with malice. Accordingly, on the range of
reprehensible conduct identified by the Supreme Court, the
district court found that “Reyes’ conduct was closer to mere
accident than it was to malice.” The court also found, and
Mendez now concedes, that there is no evidence that Reyes
had acted in the same manner on any other occasion, thus
making this the kind of “isolated incident” the Court found
less reprehensible than repeated conduct. State Farm, 538
U.S. at 419. Reyes’ conduct lastly did not pose any risk to
Mendez’s bodily health or safety. Although the injury here
was physical and emotional rather than economic, the district
court noted that the jury’s award of nominal damages ulti-
MENDEZ v. COUNTY OF SAN BERNARDINO 11803
mately indicated that “the harm caused by Reyes’ conduct
was minimal.”
[4] Although Mendez concedes that not all the reprehensi-
bility factors point in her favor, she argues that Reyes’ con-
duct was nonetheless reprehensible because of its recklessness
and because Mendez, while not financially vulnerable, was
particularly vulnerable to the kind of constitutional depriva-
tion she suffered here. We agree with other courts that abuses
of police power not involving actual violence are still repre-
hensible, insofar as they involve an illegal exercise of author-
ity “backed by the weight and force of state power.” Lee v.
Edwards, 101 F.3d 805, 810 (2d Cir. 1996). We certainly do
not approve of Reyes’ having deliberately and illegally with-
held relevant information from Mendez and pressuring her to
sign the consent-to-search form, knowing that she was reluc-
tant to agree and was not fully aware of her rights. Nonethe-
less, the district court’s findings of fact as to the
reprehensibility of Reyes’ conduct were not clearly erroneous.
The degree of reprehensibility therefore weighs against the
jury’s substantial punitive damages award here.
[5] Under the second Gore guidepost, we look to the ratio
between the punitive damages and the actual harm inflicted
on the plaintiff. 517 U.S. at 580. In this case, because Mendez
was awarded only nominal damages, the award of $250,000
in punitive damages — which represents a ratio of 125,000 to
one — is obviously considerably in excess of the single-digit
ratios the Court has deemed “more likely to comport with due
process” than higher ratios. See State Farm, 538 U.S. at 425.
The Court, however, has carved out an exception relevant to
this case, which is that “ratios greater than those we have pre-
viously upheld may comport with due process where a partic-
ularly egregious act has resulted in only a small amount of
economic damages.” Id. (internal quotation marks omitted).
Constitutional torts such as Mendez’s are far more likely to
present such scenarios. Ratios in excess of single digits in
§ 1983 suits therefore will not generally violate due process
11804 MENDEZ v. COUNTY OF SAN BERNARDINO
when the victim suffers no compensable injury. If we were to
hold otherwise, then “any appreciable exemplary award
would produce a ratio that would appear excessive by this
measure.” Lee, 101 F.3d at 811. This would conflict with the
Court’s clear guidance that punitive damages should remain
available under § 1983 even in the absence of a compensable
injury, and that in such situations “punitive damages may be
the only significant remedy available.” Smith v. Wade, 461
U.S. 30, 55 n.21 (1983) (internal quotation marks omitted).
[6] The district court did not rule otherwise, however, and
awarded Mendez $5,000 in punitive damages — a ratio of
2,500 to one, which is also significantly in excess of single
digits. The district court firmly rejected the County’s sugges-
tion that the only punitive damages award that would comport
with due process would be an $18 award, noting that such a
small award would not be “sufficient to deter other law
enforcement officers from engaging in similar conduct in the
future.” Although we agree that the second Gore guidepost
may have reduced relevance in § 1983 suits involving only
nominal damages, we do not agree with Mendez’s contrary
suggestion that this factor has no relevance. In this case, the
jury awarded a staggering $250,000 in punitive damages,
even though the jury found that Mendez suffered no compen-
sable injury from Reyes’ actions. While the second Gore
guidepost may not be dispositive of the excessiveness of the
award in this case, the great disparity between the actual and
punitive damages does not cut in Mendez’s favor.
Under the final Gore guidepost, we compare the punitive
damages award in this case to any civil or criminal penalties
authorized or imposed in comparable cases. 517 U.S. at 583-
84; see also State Farm, 538 U.S. at 428. Other circuits have
placed greater emphasis on this factor when a civil penalty
was readily available as a yardstick of reasonableness and
actual damages in the case were nominal or small. In cases
involving illegal discrimination under the Fair Housing Act,
for example, courts of appeals have upheld punitive damage
MENDEZ v. COUNTY OF SAN BERNARDINO 11805
awards of approximately $50,000 despite small actual damage
awards, in part because this amount roughly equaled the civil
penalty available for these violations. See, e.g., Lincoln v.
Case, 340 F.3d 283, 294 (5th Cir. 2003); United States v. Big
D Enters., 184 F.3d 924, 933 (8th Cir. 1999). Mendez, how-
ever, identifies no civil penalty available under law for viola-
tions of constitutional rights, nor has she identified any
comparable cases in which a civil penalty of $250,000 was
imposed for the kind of conduct Reyes engaged in here.
Accordingly, this factor provides no guidance in assessing the
constitutionality of the award.
[7] Considering all of the Gore guideposts, we conclude
that the jury’s award was unconstitutionally excessive in vio-
lation of due process and therefore properly remitted by the
district court. Because the punitive damages award was exces-
sive under the Due Process Clause, we need not decide
whether it was also excessive as a matter of federal common
law. See Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2626-
27 (2008). Constitutional torts are governed by the federal
common law, subject to the authority of Congress to legislate
otherwise. See Smith, 461 U.S. at 34 (holding that damage
remedies in § 1983 suits are determined by looking “first to
the common law of torts (both modern and as of 1871)”). In
Exxon Shipping, the Court held that the federal common law
of maritime torts should contain “more rigorous standards
than the constitutional limit” on punitive damage awards, and
concluded that “a 1:1 ratio, which is above the median award,
is a fair upper limit.” Id. at 2629, 2633. Any attempt to fash-
ion a federal common law rule of reasonableness for punitive
damage awards for constitutional torts, however, would have
to make “such modification or adaptation [to the common
law] as might be necessary to carry out the purpose and poli-
cy” of § 1983. Smith, 461 U.S. at 34. We decline to make any
such rules here, when we agree that the award was excessive
as a matter of due process. We therefore affirm the district
court’s remittur.
11806 MENDEZ v. COUNTY OF SAN BERNARDINO
III. Summary Judgment on the State Law Negligent
Training Claim
[8] Mendez contends that the district court erred in granting
summary judgment to the County on her state law negligence
claim for failing to train police officers on how to legitimately
obtain the consent of individuals brought to the police station.
Under California law, a public entity generally is immune
from suit for injuries arising from acts or omissions of the
entity or its employees. See Cal. Gov’t Code § 815(a). Cali-
fornia law creates an exception, however, in cases where the
public entity is “under a mandatory duty imposed by an enact-
ment that is designed to protect against the risk of a particular
kind of injury,” and the public entity is liable for causing that
kind of injury while failing to exercise reasonable diligence in
discharging its duty. See Cal. Gov’t Code § 815.6. The district
court granted summary judgment to the County, concluding
that the plaintiffs had “present[ed] virtually no evidence
regarding the County’s training of its deputies.” We review
the district court’s grant of summary judgment de novo. Davis
v. City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007). We
affirm.
The County first argues that it is immune from suit under
California Government Code § 815(a), because no statute
creates a mandatory duty of care as to the training of its
employees. As the County admits, however, it makes this
argument for this first time on appeal, after having conceded
before the district court that it was under a duty to train its
employees adequately, and arguing instead that it satisfied
that duty. We decline to address the County’s new theory of
defense because it was not presented to the district court. See
Wagner v. Prof’l Eng’rs in Cal. Gov’t, 354 F.3d 1036, 1044
n.4 (9th Cir. 2004) (“Generally, before an argument will be
considered on appeal, the argument must be raised suffi-
ciently for the trial court to rule on it.”) (internal quotation
marks omitted); see also In re Bliemeister, 296 F.3d 858, 861
MENDEZ v. COUNTY OF SAN BERNARDINO 11807
(9th Cir. 2002) (“Sovereign immunity . . . . may be forfeited
where the state fails to assert it.”).
[9] Although we reject the County’s immunity defense, we
nonetheless affirm the district court because we agree that
Mendez did not create a triable issue of fact as to whether the
County failed to satisfy its statutory duty of care. Mendez
argues that the guidelines and regulations that create the
County’s duty to train its employees are California’s Peace
Officer Standards and Training (“POST”) regulations, which
are promulgated under California Penal Code § 13510. These
rules establish “minimum standards for training of city police
officers” and other peace officers in California. See Cal. Penal
Code § 13510(a). Mendez presented no evidence, however,
that the County negligently failed to comply with the POST
regulations on training. Instead, she focused on showing that
the County did not train its employees on how to obtain “im-
plied consent” from a witness and offered the testimony of an
expert witness from the Detroit Police Department, who
asserted that an adequate training program should include
training on obtaining implied consent. None of this evidence
established that the POST regulations or any other statute
create a duty to train employees on implied consent or that the
County negligently failed to fulfill that duty. We affirm.
IV. Mendez’s Request for Attorney’s Fees and Costs
After the jury’s verdict in her favor, Mendez moved for
attorney’s fees and costs under 42 U.S.C. § 1988. Section
1988(b) authorizes the district court to award the prevailing
party “a reasonable attorney’s fee” in any suit to enforce the
provisions of 42 U.S.C. § 1983. As the Supreme Court has
noted, “[t]he purpose of § 1988 is to ensure ‘effective access
to the judicial process’ for persons with civil rights griev-
ances.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quot-
ing H.R. Rep. No. 94-1558, p. 1 (1976)). Therefore, “a
prevailing plaintiff should ordinarily recover an attorney’s fee
unless special circumstances would render such an award
11808 MENDEZ v. COUNTY OF SAN BERNARDINO
unjust.” Id. (internal quotation marks omitted). Although a
district court’s award of attorney’s fees is generally reviewed
for abuse of discretion, “we only arrive at discretionary
review if we are satisfied that the correct legal standard was
applied and that none of the district court’s findings of fact
were clearly erroneous.” Thomas v. City of Tacoma, 410 F.3d
644, 647 (9th Cir. 2005). The district court acknowledged that
Mendez was a prevailing plaintiff and therefore was ordinar-
ily entitled to a reasonable attorney’s fee, but nonetheless
denied her request for costs and fees in its entirety, finding
that her request was “so excessive that [it] warrant[s] a denial
of fees altogether.” Mendez argues that the district court erred
by denying her all costs and fees. We agree, and so we reverse
and remand for a determination of reasonable costs and fees.
A.
Following the jury’s verdict, Mendez moved the district
court for an award of fees in the amount of $727,558, attach-
ing supporting affidavits and other documentation to her
motion. Mendez was represented by attorneys from the law
firm Morrison & Foerster, LLP. An affidavit from her lead
counsel explained that counsel had spent 2,570 hours prepar-
ing for and trying her case, excluding hours that were spent
pursuing her unsuccessful Monell claim against the County
and the claims Mendez voluntarily dismissed. Mendez
requested that the two partners who worked on her case be
compensated at between $450 and $550 per hour, which was
the typical rate at which they billed their clients at that time.
Mendez asked that the two associates who primarily worked
on the case be compensated at rates between $250 and $300
per hour, which was somewhat below their usual market rate.
Mendez’s counsel stated that the final fee request was calcu-
lated after voluntarily discounting the partners’ hours by 10
percent and the associates’ and paralegals’ hours by 20 per-
cent, “in order to address any concerns that the Court or the
defendants may have that on any given day or task, any per-
son may have devoted too much time to any particular proj-
MENDEZ v. COUNTY OF SAN BERNARDINO 11809
ect, or to alleviate any concerns that the rates sought are too
high.” Lastly, Mendez stated that she had incurred more than
$80,000 in costs, but was requesting only $70,000, again in an
attempt to avoid disputes over the propriety of particular
costs.
The County did not contest Mendez’s entitlement to attor-
ney’s fees and costs under § 1988, but did object to certain
hours it deemed excessive and certain costs it found objec-
tionable. In calculating an appropriate fee award for Mendez,
the County proposed that 1,999 hours of work were reason-
ably expended on the case. After reducing the partners’ and
associates’ billing rates to $300 and $150 per hour respec-
tively — which the County considered more reasonable rates
for civil rights work — the County suggested that $390,225
in fees were reasonably incurred. The County asked the court
to reduce this figure by 75 percent, however, based on what
it argued was the limited degree of success the plaintiffs had
achieved, resulting in a final proposed fee award of $97,556.
The County similarly proposed an across-the-board reduction
of Mendez’s costs by 75 percent, suggesting that the court
award no more than $18,009. In reply, Mendez agreed to fur-
ther reduce certain hours and costs to accommodate the Coun-
ty’s specific objections and agreed to a slight reduction in the
partners’ billing rates, but refused to accept any percentage
reduction to the overall costs or fees based on the alleged poor
degree of success. Mendez’s final request, after adding in
additional hours spent working on the case since the motion
for attorney’s fees was filed, was for $727,307 in fees and
$65,000 in costs.
Despite Mendez’s success on the merits and the County’s
acknowledgment that she was entitled to recover what it con-
sidered reasonable attorney’s fees and costs, the district court
denied her request for fees and costs entirely. During a hear-
ing on the motion for attorney’s fees, the district court called
Mendez’s request “the most excessive fee request I have ever
seen” and told the parties that it believed there was case law
11810 MENDEZ v. COUNTY OF SAN BERNARDINO
that would support “simply denying the request.” The court
noted that it did not think Mendez’s case was particularly
complicated, because it involved no novel issues of constitu-
tional law and the events in question occurred over a rela-
tively short time span. The court also observed that the suit
had not achieved any significant success, because the jury
awarded Mendez only nominal and punitive damages on two
of her claims. The court requested supplemental briefing from
the parties to address the possible applicability of Scham v.
District Courts Trying Criminal Cases, 148 F.3d 554 (5th Cir.
1998), abrogated on other grounds by Bailey v. Mississippi,
407 F.3d 684 (5th Cir. 2005), and Brown v. Stackler, 612 F.2d
1057 (7th Cir. 1980), two cases where courts of appeals held
that a court may deny a request for attorney’s fees if it was
so excessive as to “shock the conscience.” After reviewing the
parties’ supplemental briefing, the district court entered a
minute order denying costs and fees, finding that “the amount
requested satisf[ies] the ‘shocks the conscience’ test.” The
district court later entered a final written order denying costs
and fees, again emphasizing the overall excessiveness of
Mendez’s request. This appeal followed.
B.
[10] The County does not dispute that Mendez was a pre-
vailing plaintiff and, as such, would ordinarily be entitled to
a reasonable attorney’s fee. The jury found in Mendez’s favor
on three claims against five parties: her two constitutional
claims of unreasonable search and false arrest against Reyes,
and her state law claim of false arrest against Reyes, the
County of San Bernardino, the San Bernardino Sheriff’s
Department and the City of Hesperia. Even a plaintiff who
wins only nominal damages is considered a prevailing plain-
tiff under § 1988; Mendez won both nominal and punitive
damages. See Farrar v. Hobby, 506 U.S. 103, 112 (1992).
Although she did not prevail against all defendants or on all
of her claims, it is well established that “fail[ure] to recover
on all theories of liability is not a bar to recovery of attorney’s
MENDEZ v. COUNTY OF SAN BERNARDINO 11811
fees.” Thomas, 410 F.3d at 649. A plaintiff is entitled to
recover attorney’s fees even for claims on which she did not
prevail, if they “involve a common core of facts or are based
on related legal theories.” Id. (internal quotation marks omit-
ted). Nonetheless, the district court dispensed with “the prac-
tice courts are generally required to follow when calculating
attorney’s fees in civil rights cases — i.e., computing a lode-
star figure and then, if necessary, making adjustments to that
figure based upon reasonableness factors,” instead denying all
costs and fees as excessive. Morales v. City of San Rafael, 96
F.3d 359, 362 (9th Cir. 1997).
[11] Congress’ intent in enacting § 1988 was to attract
competent counsel to prosecute civil rights cases, where “vic-
tims ordinarily cannot afford to purchase legal services at the
rates set by the private market.” City of Riverside v. Rivera,
477 U.S. 561, 576 (1986) (plurality opinion). Therefore, “a
court’s discretion to deny fees under § 1988 is very narrow
and . . . fee awards should be the rule rather than the excep-
tion.” Herrington v. County of Sonoma, 883 F.2d 739, 743
(9th Cir. 1989) (internal quotation marks omitted). The
Supreme Court and we have thus denied a prevailing plaintiff
an attorney’s fee in only certain limited situations, none of
which is applicable here. In Farrar, the Court held that a
plaintiff who seeks a large damages award but wins only
nominal damages, thus failing to prove an essential element
of the relief sought, may reasonably be awarded no fees. 506
U.S. at 115. We have explained, however, that such a denial
is appropriate only where “the plaintiff’s success is purely
technical or de minimis.” Morales, 96 F.3d at 363 (internal
quotation marks omitted). When, as here, the plaintiff wins
punitive damages, the “award of punitive damages alone is
sufficient to take it out of the nominal category.” Thomas, 410
F.3d at 648. The County does not contend that Mendez’s vic-
tory falls within the de minimis exception recognized in Far-
rar.
[12] A court may also deny an attorney’s fee to the prevail-
ing plaintiff under § 1988 when “special circumstances exist
11812 MENDEZ v. COUNTY OF SAN BERNARDINO
sufficient to render an award unjust.” Thomas, 410 F.3d at
648. We evaluate whether special circumstances exist by ask-
ing whether “(1) allowing attorney’s fees would further the
purposes of § 1988 and (2) whether the balance of equities
favors or disfavors the denial of fees.” Id. (internal quotation
marks omitted). We have stressed that this exception applies
only in unusual cases, however, such as when there is “both
a strong likelihood of success on the merits and a strong like-
lihood of a substantial judgment at the outset of the litiga-
tion,” such that the purpose behind § 1988 — ensuring that
“litigants with similar claims would not be dissuaded from
bringing suit by the lack of availability of a fee award” — is
not implicated. Herrington, 883 F.2d at 745. We have firmly
rejected the district court’s authority to refuse a reasonable fee
under the “special circumstances” exception simply because
it believes it “would result in a windfall” to a plaintiff.
Thomas, 410 F.3d at 648. “Granting a windfall to plaintiffs
was a concern echoed by Congress in enacting § 1988, but
Congress balanced that concern against the need to attract
competent counsel to prosecute civil rights cases.” Id.
[13] The district court did not identify any “special circum-
stances” present here, and we see none. Mendez’s suit
involved precisely the kind of high-risk, low-reward constitu-
tional claims that motivated Congress to enact § 1988. Even
the district court remarked that it was unlikely that “anyone
was beating down the doors to take on Ms. Mendez’s case.”
The district court itself did not purport to rely on the “special
circumstances” exception, but instead denied Mendez’s
request for costs and fees solely on a legal standard that origi-
nates from outside this circuit: that a request for fees under
§ 1988 may be denied if it is “outrageously excessive” or “in-
flated to an intolerable degree,” see Brown, 612 F.2d at 1059,
or “so excessive it ‘shock[s] the conscience of the court,’ ”
see Scham, 148 F.3d at 557 (quoting Fair Housing Council v.
Landow, 999 F.2d 92, 96 (4th Cir. 1993)) (alterations in
Scham). As the district court acknowledged, this circuit has
never held that a court has the discretion to deny an attorney’s
MENDEZ v. COUNTY OF SAN BERNARDINO 11813
fee to a prevailing plaintiff under § 1988 solely because the
court finds the fee request to be so excessive as to shock its
conscience.
We need not decide whether it would ever be appropriate
for a court entirely to deny fees and costs under § 1988 purely
on the excessiveness of the request, however, because those
circumstances are not present here. Those courts of appeals
that have upheld a denial of fees under the “shocks the con-
science” test have done so only where the fee request
appeared to have been made in bad faith, such as billing out-
rageous numbers of hours on simple matters, or where the
plaintiff made no effort to eliminate hours spent on unsuc-
cessful, unrelated claims. In the first category are cases such
as Brown, where the Seventh Circuit denied all fees to an
attorney who submitted a request for 800 hours of billable
time, even though his work consisted of filing a six-page
complaint and then simply awaiting the outcome of pending
litigation in the Supreme Court that “almost automatically . . .
disposed of” the case. 612 F.2d at 1059. Similarly, in Scham,
the Fifth Circuit upheld a total denial of fees where an attor-
ney billed 936 hours for a case where “discovery was limited,
and there were no meetings of the parties or attorneys, no set-
tlement negotiations, no mediation, no court appearances, and
no trial.” 148 F.3d at 558. The counsel in Scham was also a
solo practitioner with one year of experience, who nonethe-
less requested $750 per hour for his time. Id. Therefore, in
both of these cases, it was altogether improbable that any
attorney could have reasonably expended such hours in good
faith on matters so simple.
Falling into the second category are cases such as Fair
Housing Council, 999 F.2d 92, where the Fourth Circuit
upheld a denial of fees to a prevailing plaintiff who made no
effort to eliminate large numbers of hours spent on unsuccess-
ful, unrelated claims. In that case, plaintiffs brought separate
claims for housing discrimination and breach of contract, suc-
ceeding only on their breach of contract claim. See 999 F.2d
11814 MENDEZ v. COUNTY OF SAN BERNARDINO
at 95. Although the housing discrimination and contract
claims were not related — and the discrimination claim was
by far the more complex of the two to litigate — the plaintiffs
nonetheless submitted a request for $537,113 in fees for the
entire litigation, with billing entries that “failed to allocate the
fees attributable to each claim.” Id. The First Circuit similarly
upheld the denial of fees in Lewis v. Kendrick, 944 F.2d 949,
957-58 (1st Cir. 1991), where plaintiffs achieved only minor
success and yet “made no reduction for claims” that had “no
relation” to the victorious claim. The Lewis case also appears
to have fallen into (and thus anticipated) the Farrar exception
to granting a fee award, because the First Circuit concluded
that plaintiffs’ $1,000 compensatory award for prevailing on
a single claim — after having requested $300,000 in compen-
satory and punitive damages on multiple claims — constituted
only a “de minimis” victory. Id. at 955. As explained above,
Mendez’s case does not come within the Farrar exception.
[14] Although the district court characterized Mendez’s fee
request as “unreasonable,” “excessive,” “egregious,” “stag-
gering” and “indefensible,” there is no evidence that her fee
request was either made in bad faith or contained excessive
hours spent on unrelated claims. The County’s own proposed
lodestar calculation included almost the same number of billa-
ble hours as Mendez’s request, an acknowledgment that this
case involved considerable discovery and proceeded to a full
trial.1 The County suggested that Mendez’s attorneys should
be compensated at a significantly lower rate — approximately
half of what Mendez requested — but the County did not
deny that Mendez’s attorneys typically charge their clients
such amounts. Instead, the County simply argued that her
1
Mendez’s initial request reflected 2,570 hours of attorney time, which
after the 10 and 20 percent write-downs for partners and associates respec-
tively, amounted to approximately 2,144 hours. The County, in response,
suggested 1,999 hours were reasonably incurred. In reply, Mendez agreed
to write off an additional 17.5 hours, thus bringing the two sides’ calcula-
tion of hours within a margin of approximately six percent.
MENDEZ v. COUNTY OF SAN BERNARDINO 11815
attorneys should be compensated in line with civil rights
attorneys and not their own usual hourly rate. Cf. Camacho v.
Bridgeport Fin., Inc., 523 F.3d 973, 980-81 (9th Cir. 2008)
(explaining that appropriate hourly rate is “the prevailing
hourly rate in the [court’s district] for work that is similar to
that performed in [the] case, by attorneys with the skill, expe-
rience and reputation comparable” to the party’s attorneys).
Finally, Mendez’s attorneys represented that they had elimi-
nated hours spent on Mendez’s unsuccessful, unrelated
claims. Although the County identified a few hours that it
believed were nonetheless related to these claims, there is
nothing to suggest that Mendez failed to make a good-faith
effort to eliminate unrelated hours. In her reply, Mendez also
agreed to write off additional time and costs so as to reduce
or eliminate any remaining disputes over the number of hours.
Thus we see nothing in this request for fees and costs that
would “shock the conscience” of the court, such as was pres-
ent in cases like Scham, Brown, Lewis and Landow.
The other reasons the district court offered in support of its
decision likewise cannot justify denying fees entirely. The
court emphasized first that the fee request was “staggering in
light of the issues prevailed upon at trial and the actual
amount of damages recovered by Plaintiff.” We give due
weight to the court’s first-hand assessment of the case and its
dynamics, both legal and factual. Nonetheless, we have cau-
tioned that the significance of civil rights suits should not be
evaluated solely on the amount of damages obtained, because
successful suits act as a deterrent to law enforcement and
“serve[ ] the public purpose of helping to protect [the plain-
tiff] and persons like him from being subjected to similar
unlawful treatment in the future.” Morales, 96 F.3d at 364-65.
Even in a case where the “[p]laintiff succeeded on only one
of his many claims against Defendants,” we held that the dis-
trict court must nonetheless calculate a reasonable fee.
Thomas, 410 F.3d at 649-50. The district court certainly has
discretion to reduce an award to a plaintiff who achieved only
partial or limited success. But “[t]o deny an award of attor-
11816 MENDEZ v. COUNTY OF SAN BERNARDINO
ney’s fees notwithstanding Plaintiff’s clear victory on one of
his claims for relief is an abuse of discretion: a reasonable fee
. . . is not no fee at all.” Id. at 649.
The district court also suggested that the denial of fees
could be justified because of certain excessive hour and cost
entries and because Mendez’s counsel “block-billed” their
time, “thereby frustrating the Court’s efforts to determine
whether the fees were, in fact, reasonable.”2 Again, such bill-
ing practices are legitimate grounds for reducing or eliminat-
ing certain claimed hours, but not for denying all fees. See,
e.g., Welch v. Met. Life Ins. Co., 480 F.3d 942, 948 (9th Cir.
2007) (courts have discretion to reduce block-billed hours);
Herrington, 883 F.2d at 747 (courts have discretion to elimi-
nate hours attributable to “duplication of effort”). Even dupli-
cative work, however, is not a justification for cutting a fee,
unless “the lawyer does unnecessarily duplicative work.”
Moreno v. City of Sacramento, No. 06-15021, ___ F.3d ___,
2008 WL 2875300 at *3 (9th Cir. July 28, 2008). As noted
above, Mendez and the County essentially agreed on the num-
ber of hours reasonably expended on the case. Nonetheless,
the district court often emphasized the excessiveness of
Mendez’s fees and costs as initially recorded in the firm’s
billing records — which showed approximately $1.2 million
in fees and $85,000 in costs — even though Mendez never
actually requested these amounts but instead voluntarily
reduced both fees and costs, ostensibly to account for ineffi-
cient work or disputable cost entries.3 The district court thus
2
“Block billing is the time-keeping method by which each lawyer and
legal assistant enters the total daily time spent working on a case, rather
than itemizing the time expended on specific tasks.” Welch v. Met. Life
Ins. Co., 480 F.3d 942, 945 n.2 (9th Cir. 2007) (internal quotation marks
omitted).
3
The district court questioned certain cost entries it deemed inappropri-
ate, such as $5 spent on aspirin, $66.58 in “overtime meals” during trial,
$419.72 for “meals, lodging, games, and telephone for Angel Mendez,”
$1,857.30 in travel costs for one of Mendez’s attorneys and $71.88 for
MENDEZ v. COUNTY OF SAN BERNARDINO 11817
appears to have penalized Mendez for alleged inefficiency,
notwithstanding her attempt to write down hours and costs to
account for those very inefficiencies. As for the block-billed
time entries, it was fully appropriate for the court to reduce
those claimed hours. See Welch, 480 F.3d at 948 (affirming
court’s discounting of block-billed hours because they may
overstate the hours incurred and make it “more difficult to
determine how much time was spent on particular activities”).
As we have clarified since the district court was confronted
with the fee request here, however, the use of block billing
does not justify an across-the-board reduction or rejection of
all hours. See id.
[15] On remand, the district court should determine a rea-
sonable attorney’s fee for Mendez utilizing the customary
lodestar method. See, e.g., Morales, 96 F.3d at 363. The
“lodestar” is the presumptively reasonable rate, which is
reached by multiplying the number of hours reasonably
expended by the prevailing party with a reasonable hourly
rate, then making any adjustments as necessary to account for
factors not already subsumed within the initial lodestar calcu-
lation. See id.; see also Kerr v. Screen Extras Guild, Inc., 526
F.2d 67, 70 (9th Cir. 1975) (explaining 12 factors that bear on
the reasonableness of the fee). In so doing, the court may
make the adjustments it finds are warranted based on the
office supplies. Even if all of these cost entries were inappropriate, in total
they accounted for less than the amount that Mendez had already voluntar-
ily agreed to forgo, even before receiving the County’s objections. We
agree that Mendez should have cleansed her own records of inappropriate
entries, such as the “red-flag” aspirin charge, rather than merely taking an
amount off the top, and the district court might have reasonably reduced
her award accordingly. Nonetheless, Mendez’s perhaps clumsy effort to
account for inappropriate costs or inefficient hours suggests she was trying
to act in good faith. See Moreno, 2008 WL 2875300 at *2-3 (noting that
counsel’s own effort to “cut her fees by 9 percent” should inform district
court’s determination of whether the hours spent or fee requested were
excessive).
11818 MENDEZ v. COUNTY OF SAN BERNARDINO
record before it. For example, the court must consider what
constitutes a reasonable hourly rate for work performed in the
relevant community by attorneys of similar skill, experience
and reputation. See Camacho, 523 F.3d at 980-81; see also
Herrington, 883 F.2d at 746 (noting that “[a] reasonable
hourly rate should reflect the cost of competent counsel in the
field”). The court may also reduce an award for attorney’s
fees for unnecessarily duplicative work, if the court provides
“a clear explanation that we can review” as to why these
hours were truly unnecessary. See Moreno, 2008 WL
2875300 at *3. At the same time, the district court is “not only
free but obligated to consider ‘the results obtained’ by
[Mendez], or the ‘extent of [her] success.’ ” Morales, 96 F.3d
at 364 (quoting Hensley, 461 U.S. at 436, 440). We therefore
vacate the district court’s order denying Mendez all fees and
costs and remand for a determination of a reasonable award,
consistent with the principles we have explained.
V. Sanctioning Mendez’s Counsel for Failure to Appear
After trial, the district court imposed a $500 sanction per-
sonally on one of Mendez’s attorneys, Arturo J. Gonzales,
Esq., for failure to appear at an order to show cause hearing.
The local rules for the Central District of California expressly
reserve the district court’s “inherent power to maintain control
over the proceedings conducted before said judge,” and state
that “[m]isconduct of any attorney in the presence of a court
or in any manner in respect to any matter pending in a court
may be dealt with directly by the judge in charge of the mat-
ter.” C.D. Cal. L.R. 83-3.1.12. Although the district court did
not specify the authority for its order, “we can deduce the
source of its power for purposes of our review,” and in this
case it is clear that the court sanctioned Gonzales in an exer-
cise of its inherent power to “protect[ ] the due and orderly
administration of justice and maintain[ ] the authority and dig-
nity of the court.” Primus Auto. Fin. Servs., Inc. v. Batarse,
115 F.3d 644, 648 (9th Cir. 1997) (internal quotation marks
omitted) (alterations in original). We review the district
MENDEZ v. COUNTY OF SAN BERNARDINO 11819
court’s entry of sanctions for abuse of discretion. See id. With
respect, we must conclude that the district court abused its
discretion by imposing the sanction without making an
express finding of bad faith, and by sanctioning Gonzales for
failing to appear at a hearing when he did not have notice that
his personal appearance was required. We therefore reverse
and vacate the sanction order.
A.
The genesis of the sanctions came during trial, when the
district court admonished Gonzales for seeming to repeat a
question during his examination of a hostile witness, after the
court had ruled the question argumentative.4 Once the jury
was dismissed, the court said it was inclined to cite Gonzales
for contempt for having disobeyed its ruling sustaining the
objection. The court asked Gonzales to respond in papers by
the following Monday, but told him that “[a]t this point
there’s an [order to show cause] re sanctions for contempt set
for the end of trial.” In his declaration, Gonzales explained
that he is a partner at Morrison & Foerster and chair of his
firm’s Trial Practice Group, with 20 years of litigation experi-
ence before federal and state courts. He explained that when
4
The relevant exchange occurred during Gonzales’ examination of
Reyes:
Gonzales: And how long would it take for you to read these
few lines in Spanish?
Reyes: Not long at all.
Gonzales: Then why didn’t you do it?
Reyes: I didn’t.
Gonzales: I know you didn’t. Why not?
[Defense counsel]: Argumentative, your honor.
Court: Counsel, it’s argumentative.
Gonzales: Why didn’t you do it? Why didn’t you read these
three lines in Spanish?
11820 MENDEZ v. COUNTY OF SAN BERNARDINO
a trial objection is sustained, it is his practice to make a
“quick and good faith judgment call” on how to rephrase the
question so as to elicit the desired information in a way that
is not objectionable. In this case, he believed he had done so
by removing the argumentative aspect from the objectionable
question, and noted that defense counsel did not object to the
reformulated question.
The court did not respond to Gonzales’ declaration, but
approximately two weeks later, when setting a date for argu-
ment on various post-trial motions, advised counsel that the
hearing would include argument on “OSC’s” as well.5 On the
date of that hearing, Tony West, Gonzales’s co-counsel and
partner from Morrison & Foerster, appeared but Gonzales did
not. In response to the court’s question about Gonzales’
absence, West said Gonzales was available by telephone if the
court had any questions that were not adequately addressed by
his declaration, but that Gonzales had “a longstanding com-
mitment that he could not easily get out of,” teaching a legal
practice course. West averred that Gonzales “has every confi-
dence in my ability to represent him,” to which the district
court replied, “technically, the contempt is against him; there-
fore, I’m not sure you represent him.” The district court did
not resolve the contempt citation at this hearing, but two days
later issued a second order to show cause, this time regarding
Gonzales’ failure to appear at the hearing.
Gonzales submitted a further declaration in response to the
second order to show cause and also personally appeared at
a hearing held three weeks later. The court expressed its view
that a contempt citation “is addressed not to the party, but to
5
Before trial, the district court had also entered an order to show cause
against both parties for having failed to participate in a settlement confer-
ence with the magistrate judge prior to a court-ordered deadline. Gonzales
was not directly involved in this incident, and the court ultimately found
that the parties had complied with the spirit of its order by holding settle-
ment talks before a third-party mediator.
MENDEZ v. COUNTY OF SAN BERNARDINO 11821
the counsel personally,” and that therefore “Mr. West could
not purport to represent you personally.” The court suggested
that even Gonzales’ own declarations were not properly filed
with the court because he had not entered his own appearance
in pro per. Gonzales told the court that he was “surprised to
learn, if it indeed is the case, that when a court makes a
request, such as the court did, that a lawyer has to actually
either obtain counsel or make a formal appearance in pro per.
Just never knew that, to be candid with you.” Gonzales
explained that he did not appear at the previous hearing
because he thought his declaration would satisfy the court and
that it would be best for West to represent him. At the end of
the hearing, the court decided not to cite Gonzales for con-
tempt based on his repetition of the question during trial
examination. The court did, however, impose a $500 sanction
personally on Gonzales for failure to appear at the order to
show cause hearing, stating that the court found it “difficult
to understand how you could not believe that on a contempt
you would be required to be here.” Gonzales paid the sanc-
tions directly to the court and brought this appeal.
B.
The district court’s authority to impose sanctions under its
inherent powers is broad, but not limitless. “Before awarding
sanctions under its inherent powers . . . the court must make
an explicit finding that counsel’s conduct ‘constituted or was
tantamount to bad faith.’ ” Primus, 115 F.3d at 648 (quoting
Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980)).
A finding of bad faith may be appropriate when, among other
things, a party engages in behavior that has the effect of “de-
laying or disrupting the litigation or hampering enforcement
of a court order.” Id. at 649 (internal quotation marks omit-
ted). We have emphasized, however, that “[t]he bad faith
requirement sets a high threshold.” Id. Even in a case where
the district court described a litigant’s arguments as “totally
frivolous,” “outrageous” and “inexcusable” and called his
behavior “appall[ing],” we nonetheless refused to equate this
11822 MENDEZ v. COUNTY OF SAN BERNARDINO
characterization of conduct as synonymous with a finding of
bad faith. See id. Here the district court said only that it found
it “difficult to understand” that Gonzales would not have
known his personal appearance was required. This does not
suffice as a finding of bad faith, nor is this a case where “bad
faith is so patent that we will infer the necessary finding.” Id.
We are also troubled by the district court’s failure to give
Gonzales notice that his personal appearance was required at
the first order to show cause hearing. A district court may not
sanction an attorney under its inherent powers if there is noth-
ing in the local rules or norms of professional conduct “which
would have placed [the attorney] on reasonable notice” that
his conduct was not in conformance with the court’s require-
ments. See In re Richardson, 793 F.2d 37, 40 (1st Cir. 1986).
Although the district court suggested that the contempt pro-
ceeding was an entirely separate action such that Gonzales
should have known to enter a formal appearance of counsel
on his behalf, courts frequently impose sanctions against cli-
ents as well as attorneys for their counsel’s misbehavior
before the court. See, e.g., Lasar v. Ford Motor Co., 399 F.3d
1101, 1107 (9th Cir. 2005) (explaining that the district court
imposed monetary sanctions against both client and attorney
for counsel’s bad faith actions). Earlier in the litigation, the
court had in fact issued to both sides an order to show cause
for sanctions for a possible violation of a court order regard-
ing a settlement conference. See n.5 supra. That OSC did not
purport to run against any of the attorneys personally,
although individual attorneys might have been to blame for
any error.
Accordingly, Gonzales could reasonably have believed —
before being informed otherwise by the court — that the order
to show cause was not necessarily a separate action against
him personally, such as to require him to obtain his own
counsel and to appear himself. With this understanding, it
would not have been unreasonable for him to believe he could
rely on another member of his trial team who was appearing
MENDEZ v. COUNTY OF SAN BERNARDINO 11823
to argue the other post-trial motions in Mendez’s case. To the
extent the district court was focused on punishing Gonzales
for his trial misbehavior, it was incumbent on the court to give
him fair notice of that personal exposure and obligation to
appear in person. See generally F.J. Hanshaw Enters., Inc. v.
Emerald River Dev., Inc., 244 F.3d 1128, 1137-39 (9th Cir.
2001) (discussing levels of due process required in contempt
and sanctions proceedings). Although we agree that Gonzales
should have, as a matter of good practice and courtesy, either
attended the hearing or informed the court of his unavaila-
bility, we cannot find that the court’s orders unambiguously
communicated to Gonzales that his presence was necessary
and his co-counsel could not represent him. Absent such
notice, Gonzales could not have acted intentionally and in bad
faith to circumvent the court by failing to appear at the first
OSC hearing.
[16] We recognize that district courts enjoy “broad power”
to award sanctions against attorney misconduct and that it is
important for courts to have sufficient tools to control the
behavior of litigants in their courtrooms. See Primus, 115
F.3d at 649. Nonetheless, the Supreme Court has cautioned
that “[b]ecause inherent powers are shielded from direct dem-
ocratic controls, they must be exercised with restraint and dis-
cretion.” Roadway Express, 447 U.S. at 764. “Sanctions not
only may have a severe effect on the individual attorney sanc-
tioned,” potentially damaging the attorney’s career, reputation
and livelihood, but they “also may deter future parties from
pursuing colorable claims.” Primus, 115 F.3d at 650. Because
the district court did not make a bad faith finding before
imposing sanctions, and the record does not support such a
finding, we must reverse and vacate the sanction order.
VI. Request for Reassignment on Remand
[17] Lastly, Mendez asks that we reassign this case to a dif-
ferent judge on remand, a remedy she concedes is warranted
only under “unusual circumstances.” United States v. Sears,
11824 MENDEZ v. COUNTY OF SAN BERNARDINO
Roebuck, & Co., Inc., 785 F.2d 777, 780 (9th Cir. 1986) (per
curiam). We have authority to reassign as an exercise of our
inherent authority and authority under statute, and may reas-
sign even in the absence of any “actual bias on the part of the
judge” who first heard the case. See id. at 779-80. The factors
we consider in reassigning a case are
(1) whether the original judge would reasonably be
expected upon remand to have substantial difficulty
in putting out of his or her mind previously[ ]
expressed views or findings determined to be errone-
ous based on evidence that must be rejected, (2)
whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment
would entail waste and duplication out of proportion
to any gain in preserving the appearance of fairness.
Id. at 779 (internal quotation marks omitted). None of these
factors justifies reassignment here. As is indicated by these
three consolidated cases, Mendez disagreed with a number of
the district court’s rulings, but this is hardly uncommon over
the course of lengthy litigation and trial. Because there are no
unusual circumstances warranting reassignment, we see no
reason to remand to a different judge.
CONCLUSION
Mendez’s appeal from final judgment, case number 07-
56029, is AFFIRMED. Mendez’s appeal from the order
denying her attorney’s fees and costs, case number 06-56424,
is REVERSED AND REMANDED. Mendez’s appeal from
the order of sanctions against her attorney, case number 05-
56118, is REVERSED AND VACATED. Each party shall
bear its own costs on appeal.