Cotton v. City of Eureka

889 F.Supp.2d 1154

Siehna M. COTTON, a minor, by Megan McClure, her guardian ad litem; and Martin Cotton, Sr., an individual, Plaintiffs,

v.CITY OF EUREKA, CALIFORNIA, a political subdivision of the State of California, County of Humboldt, California, a political subdivision of the State of California, et al., Defendants.

Case No. C 08–04386 SBA.

United States District Court,

N.D. California,

Oakland Division.

Aug. 24, 2012.

Brian Edward Claypool, The Claypool Law Firm, Pasadena, CA, Dale Kristopher Galipo, Attorney at Law, Woodland Hills, CA, Vicki Ingrid Sarmiento, Law Offices of Vicki I. Sarmiento, Alhambra, CA, for Plaintiffs.

Nancy K. Delaney, Nicholas Robert Kloeppel, Mitchell Brisso Delaney & Vrieze, William Robert Bragg, Zwerdling, Bragg & Mainzer, LLP, Paul Michael Hagen, Eureka, CA, for Defendants.

ORDER OVERRULING PLAINTIFFS' OBJECTIONS TO MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION RE PLAINTIFFS' MOTION FOR ATTORNEYS' FEES

SAUNDRA BROWN ARMSTRONG, District Judge.

The parties are presently before the Court on Plaintiffs' Objections to MagistrateJudge Laurel Beeler's Report and Recommendation Re: Plaintiffs' Motion for Attorney Fees (“R & R”), filed July 5, 2012. Dkt. 319. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby OVERRULES Plaintiffs' objections and ADOPTS the R & R. The Court, in its discretion, finds this matter suitable for resolution without oral argument. SeeFed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7–1(b).

I. BACKGROUND

Plaintiffs Siehna Cotton and Martin Cotton, Sr., filed the instant survival and wrongful death action pursuant to 42 U.S.C. § 1983 following the death of their father and son, Martin Cotton II (“Decedent”), respectively. The Decedent died while in custody on August 7, 2007 after being severely beaten by City of Eureka Police Officers Justin Winkle, Adam Laird, and Gary Whitmer. The action was tried to a jury, which, on September 23, 2011, returned a verdict for Plaintiffs in the amount of $4.575 million. Dkt. 245, 246. At trial and for most of the action Plaintiffs were represented by the Law Offices of Dale Galipo and the Law Offices of Vicki Sarmiento.¹

On October 7, 2011, Plaintiffs filed a Motion for Approval of Attorneys' Fees, in which they seek a fee award of $957,187.50, pursuant to 42 U.S.C. § 1988. Dkt. 251. The Court subsequently referred the motion to a magistrate judge for the preparation of a report and recommendation. Dkt. 251, 289. The motion was referred to Magistrate Judge Laurel Beeler (“the Magistrate”) who, on July 5, 2012, issued her R & R in which she recommended granting the motion and awarding fees in the reduced amount of $727,904.00. R & R at 1179, Dkt. 319. The majority of the proposed fee reduction is attributable to the Magistrate's recommendation to reduce the hourly billing rate for Plaintiffs' counsel, as follows: Dale Galipo—from $700 per hour to $525 per hour; Vicki Sarmiento—from $575 per hour to $475 per hour; Melanie Partow—from $375 per hour to $300 per hour; and John Fattahi—from $375 per hour to $280 per hour. Id. at 25.

On July 19, 2012, Plaintiffs timely filed objections to the R & R. Dkt. 320. Specifically, Plaintiffs take issue with the Magistrate's recommendation to reduce the hourly rates of Mr. Galipo, Ms. Sarmiento and Mr. Fattahi. Defendants have filed an opposition to Plaintiffs' objection, Dkt. 321, though Plaintiffs did not file a reply. Briefing on the objections is closed and the matter is ripe for adjudication.

II. LEGAL STANDARD

A motion for attorneys' fees may be referred to a magistrate judge for findings and recommendations in accordance with 28 U.S.C. § 636(b)(1)(B). See Estate of Conners by Meredith v. O'Connor, 6 F.3d 656, 659 (9th Cir.1993). Once findings and recommendations are served, the parties have fourteen days to file specific written objections thereto. 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b)(2). The district court must make a de novo determination of those portions of the magistrate judge's report to which a party has interposed an objection. Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir.2009) (citing 28 U.S.C. § 636(b)(1)(C)). “The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

III. DISCUSSIONA. Attorneys' Fees

Under 42 U.S.C. § 1988, a court has the discretion to award reasonable attorneys' fees to a prevailing party in a suit brought under 42 U.S.C. § 1983. Braunstein v. Arizona Dept. of Transp., 683 F.3d 1177, 1187 (9th Cir.2012). The proper method for determining a reasonable fee award is the lodestar method of calculation, which multiplies the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate. In re Bluetooth Headset Products Liab. Litig., 654 F.3d 935, 941–42 (9th Cir.2011) (internal citations omitted). “In determining a reasonable hourly rate, the district court should be guided by the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation.” Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir.2011) (internal quotations and citation omitted) (per curiam). The “relevant legal community” in the lodestar calculation is generally the forum in which the district court sits. Mendenhall v. NTSB, 213 F.3d 464, 471 (9th Cir.2000). “[T]he burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); accord Van Skike v. Director, Office of Workers' Compensation Programs, 557 F.3d 1041, 1046 (9th Cir.2009).

B. Specific Objections

1. Dale Galipo

Plaintiffs request that the Court approve an hourly rate of $700 for Mr. Galipo. In contrast, Defendants argue that the Court should follow the Central District's decision in Ingram v. City of San Bernardino, No. EDCV 05–925–VAP (SGLx), 2007 WL 5030225, at *7–8 (C.D Cal., Aug. 27, 2007), which found that $500 per hour was a reasonable rate for Mr. Galipo in a § 1983 excessive force action. To resolve the parties' dispute, the Magistrate began first by examining the evidence adduced by Plaintiffs to determine whether a $700 per hour rate for Mr. Galipo was in accord with the prevailing rate in this District for attorneys of comparable skill, experience, and reputation. After concluding that Plaintiffs' evidence was deficient, the Magistrate examined a variety of cases which she found “probative of the market rates in the San Francisco Bay Area,” as well as other fee awards involving Mr. Galipo. R & R at 1171–72. Based on said review, the Magistrate ultimately recommended that the Court calculate Plaintiffs' fee award based on a rate of $525 per hour for Mr. Galipo. Id. at 1173–74.

In their objections, Plaintiffs contend that “Mr. Galipo should not be relegated to the $500 hourly rates awarded to him back in 2006 and 2007,” and argue that they submitted sufficient evidence to support a $700 per hour rate. Pls.' Objections at 2, Dkt. 320. These contentions lack merit. The Magistrate did not limit her review to cases from 2006 and 2007; in fact, she considered cases involving Mr. Galipo up to 2011. R & R at 1173. As to their ancillary contention, Plaintiffs ignore the Magistrate's detailed discussion regarding the infirmities in the declarations and other evidence which they submitted. R & R 1166–70. In particular, she found that three of Plaintiffs' declarations pertained to rates charged in Southern California, not the San Francisco Bay Area, and that the fourth declaration lacked foundation. Id. As to the Westlaw CourtExpress Market Survey proffered by Plaintiffs, the Magistrate found it to be of little probative value because it was unclear whether the firms cited therein practiced in federal, as opposed to state court; the rates were based on rates for transactional attorneys as wells as for litigators; the report did not delineate the rates for attorneys practicing in Northern California; and it was unclear from the report whether the fees were actually charged and collected by the listed counsel. Id. at 1169–70.

Notably, Plaintiffs do not object to or otherwise challenge the Magistrate's decision to discount their declarations and evidence. Instead, Plaintiffs now direct the Court's attention to Campbell v. National Passenger R.R. Corp., 718 F.Supp.2d 1093 (N.D.Cal.2010), where Judge Wilken ruled that $700 per hour was a reasonable rate for plaintiff's lead attorney, Pamela Price, in an employment discrimination case. According to Plaintiffs, Campbell supports the notion that $700 per hour is appropriate for an experienced civil rights attorney practicing in this District, particularly in light of the results achieved in this case. The Court agrees that Mr. Galipo's work in this case was exemplary and that he and his co-counsel achieved an outstanding result for their clients.² In Campbell, however, plaintiffs submitted declarations from three attorneys who “practiced law in the Northern District of California for many years” and who were familiar with the rates charged by attorneys in the San Francisco Bay Area as well as the nature and quality of Ms. Price's legal skills. 718 F.Supp.2d at 1099–1100. In contrast, no comparable evidence has been submitted by Plaintiffs in this action.

In view of the infirmities in Plaintiffs' evidentiary support for their fee motion, the Magistrate acted reasonably in surveying fee awards in comparable cases to ascertain the rate prevailing in this District for similar work performed by attorneys of comparable skill, experience, and reputation. See Ingram, 647 F.3d at 928 (“judges are justified in...