FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER BRAVO, SR.; HOPE BRAVO; Nos. 14-55557
E. B., a minor by her Guardian ad 14-55687
Litem Sara Gonzales,
Plaintiffs-Appellees/ D.C. No.
Cross-Appellants, 2:06-cv-06851-
FMO-SH
v.
CITY OF SANTA MARIA; LOUIS OPINION
TANORE, Santa Maria Police
Detective; LARRY RALSTON, Santa
Maria Police Lieutenant,
Defendants-Appellants/
Cross-Appellees.
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Argued and Submitted
October 28, 2015—Pasadena, California
Filed January 12, 2016
Before: Stephen Reinhardt, Michael Daly Hawkins, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Hawkins
Concurrence by Judge Reinhardt
2 BRAVO V. CITY OF SANTA MARIA
SUMMARY*
Civil Rights
The panel affirmed the district court’s attorneys’ fee
award under 42 U.S.C. § 1988 in favor of plaintiffs and
reversed the costs award against defendant, the City of Santa
Maria, and remanded for a new costs determination.
This appeal arises from a jury verdict that defendants, the
City of Santa Maria and individual police officers, violated
plaintiffs’ constitutional rights when they failed to disclose
certain information in a warrant to search plaintiffs’ home.
Prior to trial, plaintiffs settled with the City of Santa Barbara,
whose officers actually carried out the entry of plaintiffs’
home. The case went to trial against the Santa Maria
defendants and resulted in a jury award of approximately
$5,000 in damages.
The panel held that in considering an award of attorneys’
fees under § 1988, it is appropriate to take into consideration
a plaintiff’s success in obtaining a settlement against another
party arising out of the same facts. The panel held that under
the facts and circumstances of this case, it was appropriate to
take the Santa Barbara settlement into consideration when
considering the attorneys’ fee award against the Santa Maria
defendants. Affirming the attorneys’ fee award of
$1,023,610.41, the panel held that the district court’s finding
that plaintiffs had achieved an excellent result was supported
by the public benefit generated by the litigation as well as the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BRAVO V. CITY OF SANTA MARIA 3
$150,000 in damages the plaintiffs obtained in the Santa
Barbara settlement.
The panel reversed the district court’s refusal to offset the
award of costs assessed against the Santa Maria defendants
by the costs already reimbursed by the City of Santa Barbara
as part of the settlement. The panel remanded for
consideration of what amount of the costs award, if any,
should be offset by the costs already paid by the City of Santa
Barbara defendants.
Judge Reinhardt concurred in the majority opinion, but
wrote separately to explain why he would uphold the
attorneys’ fee award in this case irrespective of whether or
not the settlement with the Santa Barbara defendants was
taken into consideration. Judge Reinhardt would uphold the
fee award even if the only monetary benefit to plaintiffs was
the $5,000 verdict.
COUNSEL
Jeffrey E. Raskin (argued) and Timothy T. Coates, Greines,
Martin, Stein & Richland LLP, Los Angeles, California;
David M. Cumberland, Joshua M. George, and Jordan
Cunningham, Adamski Moroski Madden Cumberland &
Green LLP, San Luis Obispo, California, for Defendants-
Appellants/Cross-Appellees.
Donald W. Cook (argued) and Robert Mann, Los Angeles,
California, for Plaintiffs-Appellees/Cross-Appellants.
4 BRAVO V. CITY OF SANTA MARIA
OPINION
HAWKINS, Circuit Judge:
This appeal arises from a jury verdict that Defendants the
City of Santa Maria (“City”) and Louis Tanore, Larry
Ralston, and Danny Macagni of the Santa Maria Police
Department (“SMPD”) violated the constitutional rights of
Plaintiffs Javier Bravo, Sr., his wife Hope, and their
granddaughter E.B. (collectively, “the Bravos”). Specifically,
the jury found that SMPD officers failed to disclose in
seeking a warrant to search the Bravos’ home that Javier
Bravo, Jr.—suspected of hiding weapons that may have been
used in a gang-related shooting incident—was not living and
had not been living in the home for some seven months prior
to the shooting because he was incarcerated in state prison on
unrelated charges. The resulting pre-dawn, SWAT-style
search of the Bravos’ residence did not yield any weapons,
but succeeded in rousing the Bravos from their beds and
frightening them. Prior to trial, the Bravos settled with the
City of Santa Barbara, whose officers actually carried out the
entry of the Bravo home, for $360,000. The case went to trial
against the remaining defendants and resulted in a jury award
of $5,000 in compensatory damages to Javier Sr. and nominal
damages to Hope and E.B. In this opinion,1 we address an
issue of first impression: whether in considering an award of
attorney fees under 42 U.S.C. § 1988, it is appropriate to take
into consideration a plaintiff’s success in obtaining a
settlement against another party arising out of the same facts.
For the reasons set forth below, we conclude that, under the
facts and circumstances of this case, it was appropriate to take
1
In a separate Memorandum filed contemporaneously, we address other
issues presented in this appeal.
BRAVO V. CITY OF SANTA MARIA 5
the Santa Barbara settlement into consideration and,
accordingly, we affirm the district court’s fee award. On the
same theory, we vacate the cost award against the Santa
Maria defendants and remand for the district court to take
into account the costs recovered in the Santa Barbara
settlement and offset those costs against the costs to be
awarded against the Santa Maria defendants.
BACKGROUND
I. Facts
A. Shooting Incident and Investigation
While investigating an April 2006 gang-related shooting,
SMPD detectives Louis Tanore and Eligio Lara learned that
Javier Bravo, Jr. and about a dozen others might have been
involved in the shooting or might possess evidence of the
crime (in particular, the weapons used).
Tanore directed Lara to gather information on eight of
these individuals, including checking into their criminal
histories and custody status. According to Lara’s testimony,
he called the Santa Barbara county jail to determine the
custody status of the eight targets. Lara learned from these
calls that one of the eight—James Franklin—had been
transferred from county custody to state prison. He disclosed
this finding to Tanore, and Franklin was removed from the
list of targets. According to a county jail official’s trial
testimony, Lara asked whether Javier Jr. was in county
custody (he was not), but he did not ask follow-up questions
about whether, like Franklin, Javier Jr. had been transferred
from county to state custody. Lara never learned this.
6 BRAVO V. CITY OF SANTA MARIA
B. Custody Check Procedure
To determine a target’s custody status, SMPD officers’
practice was to call the Santa Barbara county jail. County jail
officials can determine whether a target is in county custody,
as well as whether he has been released or transferred to state
custody. Determining whether a target is in county custody
and determining whether he has been transferred to state
custody requires two different computer searches.
Lara and Larry Ralston, the lead supervisor of the
investigation, testified that if an SMPD officer learned that a
target had been transferred to state custody, he or she would
then follow up with state authorities. Tanore testified that
SMPD practice was to call the Santa Barbara county
substation regardless of whether a person was potentially in
county or state custody; he did not mention any follow-up
procedure.
C. Warrant Affidavit
Based in part on information gathered by Lara, Tanore
prepared an affidavit in support of nighttime warrants to
search the homes of Javier Jr. and six other suspected gang
members. The affidavit included criminal history
information on each target, including Javier Jr., which Tanore
obtained by reviewing rap sheets provided by Lara. The
affidavit stated that Javier Jr. had been arrested or charged
numerous times in the past and included possession of known
stolen property as one of the crimes for which he had been
arrested or charged. However, the affidavit did not include
the dates of the offenses. Nor did it disclose that Javier Jr.
had been sentenced to two years in state prison in September
2005—about seven months prior to the shooting
BRAVO V. CITY OF SANTA MARIA 7
incident—for the stolen property offense, or that he might
still be incarcerated.
D. Search
The magistrate judge approved a warrant for a nighttime
search. Because SMPD lacked the resources to conduct
seven simultaneous home searches, its officers invited the
Santa Barbara Sheriff’s Office (a county agency) and Santa
Barbara Police Department (a city agency) to conduct some
of the searches. Tanore informed the partner agencies of the
risks and dangers of the search. Though neither Tanore nor
anyone else from SMPD prescribed the partner agencies’
tactics, Tanore stated that he was not surprised that they
elected to use a SWAT team.
At 5:26 a.m. on April 26, 2006, a Santa Barbara Police
Department SWAT team knocked on the front door of the
Bravos’ residence, announced their presence, and three
seconds later shot off the locks and broke down the door.
Simultaneously, the team deployed two “flashbang” grenades
outside of the back door.
Javier Sr., Hope, and E.B. (eight years old at the time)
were awakened by these loud noises and frightened to see
armed individuals in their home. Javier Sr. initially believed
that robbers were invading the house or that his son had
escaped from jail and been shot at his doorstep, causing him
to experience heart-attack-like symptoms. All three plaintiffs
testified that they were not touched during the search. Hope
and E.B. were told to lie on the floor in the bathroom, where
they had gone to hide upon hearing the loud noises. After
securing the residence, the City of Santa Barbara officers
turned the scene over to SMPD to search the house.
8 BRAVO V. CITY OF SANTA MARIA
At some point during the search, Hope informed the
officers that Javier Jr. was in prison and showed them a letter
she had recently received from him. As Tanore was off-site,
an officer at the scene called to inform him that Javier Jr. was
in custody, at which time Tanore instructed the officer to
continue with a “cursory” search of the residence. SMPD
seized a number of items from the home, but found no
weapons.
II. Procedural History
A. Complaint, Pretrial Motions, and Prior Appeal
In October 2006, the Bravos brought suit against Tanore,
his supervisor Ralston, SMPD Chief of Police Danny
Macagni, and the City of Santa Maria, as well as the counties
of San Luis Obispo and Santa Barbara, their sheriff’s offices
and county sheriffs, and the cities of San Luis Obispo and
Santa Barbara and their police chiefs. The Bravos alleged
violations of the Fourth and Fourteenth Amendments (due
process and equal protection) and various state laws, and
requested unspecified amounts of general, special, and
punitive damages, a $25,000 civil penalty, and recovery of
related costs.
Plaintiffs stipulated to dismiss their claims against the
County of San Luis Obispo and City of San Luis Obispo
defendants early in the case. They settled with the City of
Santa Barbara defendants for $360,000 after the City of Santa
Barbara defendants appealed the district court’s denial of
qualified immunity. The settlement amount consisted of
$50,000 in damages for each plaintiff, $169,856.34 in
attorney fees, and $16,208.95 in costs.
BRAVO V. CITY OF SANTA MARIA 9
The district court then granted summary judgment for the
County of Santa Barbara and the Santa Maria defendants.
The Bravos appealed. In that appeal, we affirmed the grant
of summary judgment for the County of Santa Barbara
defendants, but reversed the grant of summary judgment in
favor of the Santa Maria defendants. Bravo v. City of Santa
Maria, 665 F.3d 1076, 1091 (9th Cir. 2011). We rejected the
district court’s finding that the omission of Javier Jr.’s
custody status was immaterial, concluding that if “Javier Jr.’s
two-year sentence imposed over six months prior to the
incident occasioning the search warrant” and his incarceration
at the time of the shooting were included, the affidavit “could
not establish probable cause for the search and especially
does not meet the heightened standard of justification
required for nighttime SWAT service.” Id. at 1084. Javier
Jr.’s custody status “meant not only that he would not be
present in the Bravo residence at the time of the search, but
that he could not have been involved in the shooting or in
concealing the evidence.” Id.
We also rejected the conclusion that Tanore was
“negligent at most” in omitting Javier Jr.’s custody status,
concluding that the Bravos “presented sufficient evidence
establishing a genuine issue as to whether [Tanore’s]
omission of [Javier Jr.’s sentence and custody information
from the affidavit] was intentional or reckless, as opposed to
merely negligent . . . .” Id. at 1080.
B. Jury Verdict and Post-Trial Judgment
On remand, after five days of hearing evidence and
four days of deliberation, the jury returned a special verdict
finding all Santa Maria defendants liable. The jury awarded
$5,000 in compensatory damages to Javier Sr. and $0 to Hope
10 BRAVO V. CITY OF SANTA MARIA
and E.B. It did not award punitive damages. The district
court entered judgment, awarding $5,000 to Javier Sr. and $1
each to Hope and E.B.
After judgment was entered, Defendants renewed their
motion for judgment as a matter of law, attacking the findings
of liability against Tanore, Ralston, Macagni, and the City.
Defendants also moved to amend the judgment, contending
that damages, attorney fees, and costs should be offset by the
Bravos’ $360,000 settlement with the City of Santa Barbara.
The Bravos moved for a new trial on damages, and requested
an award of attorney fees and costs.
The district court granted the Defendants’ motion for
judgment as a matter of law as to Police Chief Macagni’s
individual liability, but denied the motion as to Tanore,
Ralston, and the City. Regarding Defendants’ motion to
amend the judgment, the court concluded that any award of
attorney fees should be offset by the attorney fees portion of
the City of Santa Barbara’s settlement ($169,856.34) but that
any award of costs should not be offset by the costs already
paid in the City of Santa Barbara settlement ($16,208.95).
Finally, the court denied the Bravos’ motion for a new trial on
damages, but named the Bravos the prevailing parties and
awarded $1,023,610.41 in attorney fees and $13,376.85 in
costs. The court then entered an amended judgment, which
the parties timely cross-appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. Attorney
fee and costs awards are reviewed for abuse of discretion.
Disc Golf Ass'n, Inc. v. Champion Discs, Inc., 158 F.3d 1002,
BRAVO V. CITY OF SANTA MARIA 11
1010 (9th Cir. 1998); Corder v. Brown, 25 F.3d 833, 836 (9th
Cir. 1994).
ANALYSIS
In a contemporaneously filed Memorandum, we affirm
the district court’s decisions to grant judgment as a matter of
law to Defendant Macagni, to deny judgment as a matter of
law to Defendants Tanore, Ralston, and the City, and to deny
Plaintiffs’ motion for a new trial on damages. We address in
this opinion only the district court’s decisions as to attorney
fees and costs.
I. Attorney Fees
In a 42 U.S.C. § 1983 suit, “the court, in its discretion,
may allow the prevailing party . . . a reasonable attorney’s fee
as part of the costs.” 42 U.S.C. § 1988(b). To determine the
amount of a reasonable fee, district courts typically proceed
in two steps: first, courts generally apply the lodestar method
to determine what constitutes a reasonable attorney fee; and
second, the district court may then adjust the lodestar upward
or downward based on a variety of factors, including the
degree of success obtained by the plaintiffs. Gonzalez v. City
of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). The
Supreme Court teaches that the degree of success obtained is
“‘the most critical factor’ in determining the reasonableness
of a fee award.” Farrar v. Hobby, 506 U.S. 103, 114 (1992)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)). “It
is an abuse of discretion for the district court to award
attorneys’ fees without considering the relationship between
the ‘extent of success’ and the amount of the fee award.”
McGinnis v. Ky. Fried Chicken, 51 F.3d 805, 810 (9th Cir.
1994) (quoting Farrar, 506 U.S. at 116).
12 BRAVO V. CITY OF SANTA MARIA
Here, it is undisputed that the Bravos are prevailing
parties,2 and Defendants do not contest the district court’s
lodestar calculation. The sole issue before us is whether the
district court erred in its analysis of the degree of Plaintiffs’
success. Defendants contend that the district court
dramatically overvalued the degree of success. Since the
Bravos won only $5,002 at trial, the question is whether this
litigation generated some other benefit that would justify the
district court’s finding that the Bravos achieved an excellent
result and the consequent award of $1.023 million in attorney
fees.
We identify two such benefits in the record. First, the
district court properly noted that this litigation benefitted the
public by identifying a serious flaw in SMPD’s method of
checking individuals’ custody status before seeking warrants.
In addition, this litigation led to our earlier Bravo decision, in
which we held that greater justification is needed for a
nighttime forced entry by a SWAT unit than for an ordinary
search. 665 F.3d at 1085-86. This provides guidance to law
enforcement officers and to magistrate judges considering the
issuance of such warrants. See Gonzalez, 729 F.3d at 1210
(attorney fee award higher than the amount of damages won
by plaintiff may be reasonable if the civil rights case “‘also
confer[red] benefits on others throughout society’ by, for
example, ending institutional civil rights abuses or clarifying
standards of constitutional conduct” (quoting McGinnis,
51 F.3d at 810)).
2
A plaintiff who receives nominal damages is a prevailing party for
§ 1988(b) purposes. Benton v. Or. Student Assistance Comm’n, 421 F.3d
901, 904 (9th Cir. 2005) (citing Farrar, 506 U.S. at 112).
BRAVO V. CITY OF SANTA MARIA 13
Second, the district court properly considered the Bravos’
$360,000 settlement with the City of Santa Barbara
defendants, with $50,000 in damages for each plaintiff, as
part of their success. Although we have previously held that,
in certain situations, a non-settling defendant may be entitled
to an offset of attorney fees paid by a settling defendant,
Corder, 25 F.3d at 840, we have yet to articulate a rule
regarding whether a district court may consider a co-
defendant’s settlement payment in evaluating the
reasonableness of an attorney fee award. We hold now that
the district court may, within the exercise of its discretion,
consider the damages portion of a settlement payment by
other defendants in evaluating a 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. Factors to consider include whether the
plaintiff’s claims against both sets of defendants “involve a
common core of facts” or are “based on related legal
theories,” cf. Hensley, 461 U.S. at 435; if the claims are in
fact divisible, whether that was apparent from the outset or
whether the divisible nature became clear as the litigation
developed and discovery progressed; and whether the claims
against the settling defendants were, in the district court’s
considered judgment, meritorious, or whether they were
settled for nuisance value.3
3
This determination is not unlike the determination whether defendants
are jointly and severally liable for the plaintiff’s injury. Cf. Hazle,
727 F.3d at 995; see also The Atlas, 93 U.S. (3 Otto) 302, 306 (1876)
(“The common law creates a joint and several liability . . . because by a
single and forcible act, which would not have happened except by the
concurring negligence of the two parties, an injury has been done to an
innocent party.”).
14 BRAVO V. CITY OF SANTA MARIA
Turning to the facts of this case, the district court
appropriately found that the Bravos’ claims against the Santa
Maria and the City of Santa Barbara defendants are factually
and legally intertwined. Plaintiffs’ theory of liability was that
the Santa Maria defendants caused Santa Barbara to use a
SWAT team to force entry into the Bravos’ home. Given that
the district court decided as a matter of law that the no-knock
entry violated the Fourth Amendment, it is clear that the
claims against the City of Santa Barbara defendants were
meritorious and not settled merely for nuisance value.
Accordingly, we affirm the attorney fee award.
II. Offsets of Costs
Defendants contend that the district court abused its
discretion when it refused to offset its award of $13,376.85 in
costs, by the $16,208.95 in costs paid by the City of Santa
Barbara defendants. In refusing to offset costs, the district
court held that costs are not akin to attorney fees, for which
offsets are required, but rather “are more analogous to
damages . . . , and therefore require defendants to pay at least
their proportional share.”
Whether an award of costs must be offset by costs paid by
a settling co-defendant also appears to be an issue of first
impression in this circuit. There is little case law directly on
point.4 Therefore, we reason from principle and analogy and
4
See Gutierrez v. Vantia Properties, LLC, No. 1:13-CV-00642-LJO,
2014 WL 2106570, at *11 (E.D. Cal. May 20, 2014) (recommending that
damages, attorney fees, and costs be offset by the amount paid by settling
co-defendant); In re Vitamin C Antitrust Litig., 2013 WL 6858853, at *6
(E.D.N.Y. Dec. 30, 2013) (denying plaintiffs’ request for costs already
BRAVO V. CITY OF SANTA MARIA 15
hold that the Santa Maria defendants are entitled to an offset
of costs to the extent that the litigation expenses have already
been reimbursed.
Contrary to the district court’s holding, costs are not
analogous to damages. They are not compensation for loss
and, unlike the determination of damages, which is usually
left for the jury, the calculation of costs is almost exclusively
a function for a judge, see 10 Wright & Miller, Federal
Practice and Procedure § 2665 (3d ed. 1998). Costs are more
analogous to attorney fees. Like attorney fees, costs are a
reimbursement for “litigation-related expenses that a
prevailing party is entitled to be awarded.” Taxation of Costs,
Black’s Law Dictionary (10th ed. 2014); cf. Fed. R. Civ. P.
54(d) (referring to “costs – other than attorney’s fees”);
10 Wright & Miller, Federal Practice and Procedure § 2675
(3d ed. 1998) (treating attorney fees as component of costs).
We held in Corder that a district court abuses its
discretion when it refuses to offset an award of attorney fees
by a settling defendant’s payment of those same fees. We
reasoned that 42 U.S.C. § 1988 allows “reasonable” fees and
that a second payment for the same billable time is an
unreasonable double recovery. 25 F.3d at 840. As
Defendants contend, attorney fees are a component of costs
under 42 U.S.C. § 1988. Marek v. Chesny, 473 U.S. 1, 9
(1985); Fulps v. City of Springfield, 715 F.2d 1088, 1092–93
(6th Cir. 1983). Thus, double recovery of costs other than
attorney fees is just as impermissible as double recovery of
attorney fees.
paid by settling co-defendants, absent evidence from plaintiffs that the
requested costs were different expenses).
16 BRAVO V. CITY OF SANTA MARIA
The district court’s reasoning that the deterrent principle
at the heart of § 1983 allows double recovery of costs is
unpersuasive. While the statute is designed to deter civil
rights violations and encourage access to the courts to redress
often economically unviable injuries to fundamental rights,
see generally City of Riverside v. Rivera, 477 U.S. 561,
574–77 (1986), that basic principle does not require double
reimbursement of identical litigation expenses. The statute
does not specifically address this scenario, but it is difficult
to imagine Congress intended for litigation expenses to be
paid multiple times. Nor would eliminating duplicative
payments for litigation expenses significantly influence
counsel’s decision to prosecute civil rights suits. Costs are
nearly always a smaller prize than fees (which also cannot be
double-counted), and “almost always amount to less than the
successful litigant’s total expenses in connection with a
lawsuit.” 10 Wright & Miller, Federal Practice and
Procedure § 2666. The decision to pursue a claim does not
likely hinge on the prospect of recovering out-of-pocket
expenses multiple times for the same litigation activities.
The principle of not allowing double recovery of costs
under § 1988 is also supported by analogous California law.
Under California law, when a pretrial settlement with one
defendant covers the very same costs a plaintiff is trying to
recover from the non-settling defendant, the plaintiff cannot
recover the same costs twice. See Regan Roofing Co. v.
Superior Court, 27 Cal. Rptr. 2d 62, 76 (Ct. App. 1994). A
California statute similarly provides that costs must be
reasonable. Cal. Civ. Proc. Code § 1033.5(c)(2), (3); see also
7 Witkin, California Procedure § 118 at 657 (5th ed. 2008).
BRAVO V. CITY OF SANTA MARIA 17
Thus, whether this question is analyzed pursuant to
federal common law or California law,5 the district court
erred by applying the incorrect legal standard. Accordingly,
we remand for the district court to determine what amount of
costs should be offset.
CONCLUSION
We affirm the attorney fees award because the district
court’s finding that the Bravos achieved an excellent result is
supported by the public benefit generated by the litigation as
well as the $150,000 in damages the Bravos obtained in the
Santa Barbara settlement. We reverse the district court’s
refusal to offset costs and remand for consideration of what
amount of the costs award, if any, should be offset by the
costs already paid by the City of Santa Barbara defendants.
AFFIRMED in part, REVERSED in part, and
REMANDED for determination of costs. Each party shall
bear its own costs on appeal.
5
See Corder, 25 F.3d at 839-40 (noting courts’ disagreement over
whether the offset of attorney fees under § 1988 is determined by federal
common law or state law, and ultimately holding as a matter of law that
an offset is required under § 1988); C.B. v. City of Sonora, 769 F.3d 1005,
1031 & n.25 (9th Cir. 2014) (noting that it is unclear whether federal or
state law should apply, but addressing offset of damages in a § 1983 suit
under state law).
18 BRAVO V. CITY OF SANTA MARIA
REINHARDT, Circuit Judge, concurring:
I fully concur in the majority opinion. I write separately,
however, to explain why I would uphold the award in this
case whether or not we considered the $360,000 settlement
with the Santa Barbara defendants. In short, I would uphold
the fee award even if the only monetary benefit to plaintiffs
was the $5,000 verdict. I would do so for two reasons:
(1) although the verdict was low in comparison to the fees
sought by the attorneys, this litigation achieved significant
non-monetary benefits for society, and (2) the entire context
of the case, including the fact that plaintiffs had to overcome
a robust defense, shows that the amount of time expended
was necessary to vindicate the plaintiffs’ rights, even if the
only benefit that had accrued had been the $5,000 in damages
awarded by the jury. Plaintiffs’ counsel should be fully
compensated for this effort. The defendants, relying in part
on Farrar v. Hobby, suggest that we should ignore all other
considerations, and that the fee award should be reduced
solely based on a comparison between the verdict and the fee
award. That position, however, is unsupported by Farrar,
our case law, and the motivating principles of 42 U.S.C.
§ 1988. Accordingly, I agree with the majority that the
district court did not abuse its discretion by awarding $1.2
million in attorney’s fees—a 10% reduction from the cost of
the time and work counsel expended on this case.
As an initial matter, there is a strong presumption that the
lodestar—the amount of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate—is a
reasonable fee to be awarded under 42 U.S.C. § 1988.
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010);
Pennsylvania v. Delaware Valley Citizens’ Counsel for Clean
Air, 478 U.S. 546, 564–65 (1986); Blum v. Stenson, 465 U.S.
BRAVO V. CITY OF SANTA MARIA 19
886, 897 (1984). This presumption is based on the premise
that a fee under § 1988 must be “sufficient to induce a
capable attorney to undertake the representation” in order to
advance the private enforcement of federal civil rights laws.
Perdue, 559 U.S. at 552; see also S. REP. NO. 94-1011, at 6
(1976), as reprinted in 1976 U.S.C.C.A.N. 5908, 5913. Once
the lodestar is calculated, the district court can look to “other
considerations” to determine whether this presumptively
reasonable fee should be adjusted either upward or
downward. Delaware Valley, 478 U.S. at 565.
In Farrar v. Hobby, a particularly unsympathetic case, the
Supreme Court created a limited exception to the normal
calculation of fees. 506 U.S. 103 (1992). In that case, the
State of Texas temporarily closed down a school for
delinquent, disabled, and disturbed teens after a student of the
center died. The owner of the center, Joseph Farrar, was
indicted for murder because of his failure to administer
proper medical treatment. Id. at 105–06. Farrar subsequently
sued the Lieutenant Governor of Texas, William Hobby, as
well as several other state employees who had participated in
the events leading to the closing of the school. Id. at 105. He
sought $17 million in damages, alleging that he had been
deprived of liberty and property without due process by
means of malicious prosecution. Id. The jury determined
that Farrar had been deprived of a civil right, but it awarded
zero damages. Despite the wholly technical nature of Farrar’s
victory, and the fact that his law suit achieved no significant
public purpose, his counsel sought $280,000 in fees. The
Supreme Court forcefully denied this fee award, and held that
when a plaintiff, like Farrar, achieves only technical or de
minimis success, a district court “may lawfully award low
fees or no fees” without calculating the lodestar or
considering the other factors, id. at 114–15 (emphasis added),
20 BRAVO V. CITY OF SANTA MARIA
because the degree of the plaintiff’s overall success is the
“‘most critical factor’ in determining the reasonableness of a
fee award.” 506 U.S. at 114.
In casting the critical fifth vote in Farrar, Justice
O’Connor explained in her separate opinion that not every
nominal damage award is a purely technical or de minimis
victory and that, when considering the degree of overall
success, a court should consider more than the monetary
amount awarded by a jury. See id. at 120–21. In particular,
she wrote, courts should consider whether the plaintiff
vindicated important rights or prevailed on significant legal
issues “even though no actual damages are proved.” Id. at
121. Since Farrar had done neither of these things, Justice
O’Connor agreed that his victory was solely a technical one,
and that in his case a denial of attorney’s fees was more than
appropriate. It is important, however, that Justice O’Connor
did not suggest that where actual damages are recovered that
are not de minimis it is necessary for the plaintiff to establish
in addition that he secured some overall societal benefit as
well.
Our court has interpreted Farrar as having two central
holdings. First, a district court may award little or no fees to
a plaintiff who has achieved solely a de minimis victory, but
that it should not do so if the plaintiff’s lawsuit achieved
significant non-monetary results for himself or other
members of society. See McCown v. City of Fontana,
550 F.3d 918 (9th Cir. 2008) as amended 565 F.3d 1097,
1105; Morales v. City of San Rafael, 96 F.3d 359, 362–63
(9th Cir. 1996). Second, a district court abuses its discretion
when it fails to consider the degree of success achieved by the
plaintiff when determining a reasonable fee award. See
Morales, 96 F.3d at 362. Nothing in these cases suggests that
BRAVO V. CITY OF SANTA MARIA 21
the extent of victory is measured solely by the amount of the
award. Indeed, a small award may represent a complete
victory.1
I fully agree with the majority that unlike Farrar, this is
not a case in which the district court could have awarded low
or no fees without calculating the lodestar or considering the
other factors. Wholly aside from the monetary
considerations, this litigation resulted in significant public
benefits. Our first opinion in this case clarified what probable
cause is necessary to justify a warrant for a nighttime SWAT
raid, a constitutional question of first impression in this
Circuit. Furthermore, the litigation resulted in a verdict
against the City of Santa Maria, exposing an unconstitutional
practice by that City’s police department. See Wilcox v. City
of Reno, 42 F.3d 550, 556 (9th Cir. 1994) (“Exposing an
unconstitutional policy [by the police department] does a
great deal more than finding a plaintiff’s rights have been
infringed upon in some unspecified way. The police
department itself, and the community at large benefit from a
finding of this sort.”) (affirmatively quoting the district
1
Occasionally, this court has questioned the validity of awarding
attorneys’ fees substantially in excess of the amount recovered, but the
prevailing view appears to be that which is explicated in the text infra. In
McGinnis v. Kentucky Fried Chicken of California, for example, the panel
applied federal law to a request for fees under a Washington state statute.
51 F.3d 805, 810 (9th Cir. 1994). There, due to a change in controlling
law, the plaintiff’s damages dropped from $234,000 to $34,000, but the
district court declined to consider this change when determining an
appropriate fee award. Id. In the circumstances of that case, the court
determined, a reduction in fees should have been considered. Id. As we
recently explained, however, a decision to lower attorney’s fees from the
lodestar should be based “in light of the context of the case” as a whole,
not based “solely on the number of dollars” that the plaintiffs recovered.
Gonzalez v. City of Maywood, 729 F.3d 1196, 1210 (9th Cir. 2013).
22 BRAVO V. CITY OF SANTA MARIA
court’s holding). Together, these achievements offer clear
and important guidance to magistrate judges, to the City, and
to other municipalities, which should reduce the likelihood
that innocent individuals will be unnecessarily subjected to
intrusive searches of their homes.
Since the Farrar exception does not apply, we must
presume that the lodestar is reasonable unless other
considerations suggest otherwise. See, e.g., Perdue, 559 U.S.
at 552. Here, the other considerations do not. The context of
this case strongly suggests that the amount awarded by the
district judge was a reasonable one, regardless of the disparity
in the amount of attorneys fees required to obtain a
comparatively small damage award. In particular, it is
important that this case required an inordinate amount of time
and labor in order to overcome an especially robust defense.
Accordingly, a high award of attorneys’ fees is reasonable.
Here, the plaintiffs spent 2321.32 hours pursuing claims
against the Santa Maria defendants between 2006 and 2013,
and there is no reason to believe that their counsel billed more
than that which was necessary to win. First, all of the
plaintiffs’ attorneys spent less than an average of 70 hours per
year on this matter. This number seems appropriate—if not
low—given the complicated nature of this suit, the important
interests at stake, and that it is a “highly atypical civil rights
case where the plaintiff’s lawyer engages in churning,”
Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir.
2008). Indeed, at least until the prior appeal, the defense
counsel spent more hours on this case than plaintiffs’ counsel,
which suggests that defense counsel believed this case was
sufficiently complex and important to justify large amounts
of attorney time. See Burgess v. Premier Corp., 727 F.2d
826, 840 (9th Cir. 1984); see also Robinson v. City of
BRAVO V. CITY OF SANTA MARIA 23
Edmond, 160 F.3d 1275, 1284 (10th Cir. 1998) (“[T]he effort
expended by the defendants suggests at least that they viewed
the case as sufficiently complex and serious[.]”); Pressley v.
Haeger, 977 F.2d 295 (7th Cir. 1992) (“Three lawyers toiled
a total of 1272 hours on Pressley’s behalf. If this seems
excessive in light of the stakes . . . it was not excessive in
relation to the need to overcome a defense that Haeger and
the Village waged with 2041 hours of lawyers’ time.”).2
Further, plaintiffs, who bore the burden of proof, had to
expend hours to overcome the opposition by the defense,
which had persuaded the district court to improperly grant
summary judgment, necessitating a prior appeal. See
Burgess, 727 F.2d at 840; Robinson, 160 F.3d at 1275
(“[O]ne of the factors useful in evaluating the reasonableness
of the number of attorney hours in a fee request is ‘the
responses necessitated by the maneuvering of the other
side.”). In short, plaintiffs’ attorneys were able to achieve not
only the great public benefits that they did, but the amount of
damages to which the plaintiffs were entitled, only because of
the consistent hours that they put in to overcoming the City’s
strong opposition. See Moreno, 534 F.3d at 1112 (“By and
large, the court should defer to the winning lawyer’s
professional judgment as to how much time he was required
to spend on the case; after all, he won, and might not have,
had he been more of a slacker.”). Plaintiffs’ attorneys should
be fully compensated for this necessary effort.
The defendants ignore these considerations, and instead
suggest that the fee award must be reduced because it is
disproportionately large compared to the jury’s verdict. We
2
The record indicates that defendants spent more hours than plaintiffs
on this case prior to the first appeal, but there is no information in the
record about how many hours defendants spent on it after the first appeal.
24 BRAVO V. CITY OF SANTA MARIA
have previously rejected similar arguments, and held that a
reasonable fee must be determined “in light of the context of
th[e] case,” “not based on [the court’s] own notion of the
correct ratio between the amount of attorney’s fees and the
amount the litigants recovered.” Gonzalez v. City of
Maywood, 729 F.3d 1196, 1209 (9th Cir. 2013) (emphasis
added).3 To hold otherwise would unreasonably extend
Farrar well beyond its core holding, and in doing so, destroy
the motivating principles of § 1988.
The fundamental purpose of § 1988 is to ensure that
victims of civil rights violations are able to obtain competent
legal counsel who will make it possible for them to enforce
their rights, including the compensation to which they are
entitled on account of the violation of those rights. As the
cost of litigation increases, it becomes more difficult for civil
rights victims to afford competent counsel. Contingency
agreements provide some redress, but not in cases in which
the injury that the plaintiff suffered is comparatively small—
even serious violations of civil rights do not necessarily
involve serious physical injuries, and it may well be that the
violation of a civil right justifies compensation in only a
moderate amount. In such instances, finding a competent
3
Although Farrar holds that the degree of success is the most important
consideration, it does not hold that district courts must or even should
ignore other considerations when determining a reasonable fee. Indeed,
Farrar repeatedly used permissive language to convey this point. See
Farrar, 506 U.S. at 114 (“If ‘a plaintiff has achieve only partial or limited
success, the [lodestar] may be an excessive amount.’”) (emphasis added);
Id. at 115 (“[T]he court may lawfully award low fees or no fees without
reciting the 12 factors bearing on reasonableness[.]”) (emphasis added);
Id. (“When a plaintiff recovers only nominal damages because of his
failure to prove an essential element of his claim for monetary relief, the
only reasonable fee is usually no fee at all.”) (emphasis added).
BRAVO V. CITY OF SANTA MARIA 25
lawyer to effectively handle victims’ claims would be close
to impossible without the incentives provided by § 1988.
Similarly, if we were to adopt a rule that limited
attorney’s fees in civil rights cases to an amount that is
commensurate with the damages received, it would cripple
the ability of victims suffering low or moderate economic
damages to find competent counsel to pursue claims
involving the violation of their rights. First, jury verdicts
regarding damages resulting from violations of civil rights are
not easily predictable. They may well depend on the
predilections of the average jury in the geographic location of
the occurrence or even on the happenstance of the
composition of a particular jury. Such verdicts, though
perfectly appropriate under the law, surely do not reflect the
amount of time and effort that must necessarily be spent to
win a civil rights case. Second, the astronomical costs of
litigation can easily exceed moderate economic damages by
a substantial multiplier. This is especially true in civil rights
cases, in which municipalities often have significant non-
monetary reasons to staunchly defend against such actions
using the services of municipally-paid, salaried lawyers.
Here, for example, the actual cost of plaintiffs’ counsels’ time
was, without doubt, well over a million dollars. Perhaps the
jury could have returned a verdict of $10,000 instead of
$5,000; or perhaps $25,000, or even $100,000. Compared to
the cost of litigation, any of these amounts would be
insubstantial. If the measure of awardable fees was limited
by the damages received or anything like them, the lawyers
would not be compensated for time necessarily spent on the
26 BRAVO V. CITY OF SANTA MARIA
case, and most attorneys would be reluctant to undertake the
representation.4
Thus, the defendants’ proposal, which places an undue
emphasis on the proportionality between the monetary verdict
and the fee award unreasonably ignores the central question
of § 1988: how much in fees is reasonably necessary to
permit individuals whose civil rights have been violated to
obtain attorneys who will diligently and competently work to
preserve their rights, even if the monetary award may be
moderate? The defendants’ position would prevent plaintiffs’
counsel from being compensated for any hours reasonably
expended in recovering damages in amounts that fairly
measure the plaintiff’s economic injury, would require that
attorneys be compensated well under the market rate for
similar legal services, and would, in effect, compel many
victims of civil rights violations to forgo their rights to
redress entirely.
4
Because only one plaintiff in this case received an award of actual
damages while two recovered only nominal damages, it is possible that,
in other circumstances, the fee award might be reduced to some extent to
account for hours spent pursuing the two comparatively unsuccessful
plaintiffs. See Hensley v. Eckerhart, 461 U.S. 424, 440 (1983). Such a
reduction would be inappropriate in this case for several reasons, however.
First, the defendant has not suggested that a reduction should be made on
this basis and thus waived the issue. Second, since the plaintiffs’ claims
have identical factual and legal bases, it is unlikely that any significant
amount of time spent pursuing the claims of the nominal damages
plaintiffs was not also necessary to advance the more successful plaintiff’s
claim. Third, plaintiffs who receive nominal damages are still prevailing
parties entitled to fees under the statute unless their victory was merely
technical or de minimis, see Farrar, 506 U.S. at 113–14, and as explained
earlier, the important public benefits achieved in this case preclude the
plaintiffs’ victory from being considered merely technical or de minimis.
BRAVO V. CITY OF SANTA MARIA 27
As the Supreme Court has repeatedly stated, there is a
strong presumption that the lodestar—the amount of hours
reasonably expended on a case multiplied by a reasonable
hourly rate—is a reasonable fee sufficient to attract
competent attorneys. See, e.g., Perdue, 559 U.S. at 552;
Delaware Valley, 478 U.S. at 564–65; Stenson, 465 U.S. at
897. Defendants’ proposed rule entirely ignores this lodestar
based on a misguided sense of “proportionality.” If we were
to adopt this untenable position, only attorneys who are either
totally selfless or remarkably privileged would be able to
expend the necessary, unpaid effort to advance these
important rights, including attorneys whose employment at
large corporate law firms allows them to dedicate a portion of
their working hours to these causes pro bono. We are
grateful for their contributions, but that is not the system
envisioned by § 1988. The rule urged by defendants would
eviscerate that statute. For this reason, I concur.