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Villegas v. Hackett

June 24, 2008


The opinion of the court was delivered by: Hon. Jeffrey T. Miller, United States District Judge


Plaintiff Juan Villegas moves for attorneys' fees and litigation expenses under 42 U.S.C. § 1988. Defendants Eric Hackett and the City of Calexico oppose the motion. For the reasons set forth below, the court GRANTS the motion and awards a reduced amount of fees and expenses.


In this § 1983 action, Plaintiff alleged several state and federal civil rights claims against officer Eric Hackett and the City of Calexico. The claims arose out of the arrest of Villegas at his home in Calexico on December 3, 2002. After a four-day trial on Plaintiff's § 1983 claim for unlawful arrest, the jury returned a verdict of $91,000 against defendant Hackett.

Plaintiff now seeks $280,962 in attorneys' fees for counsel Michael Marrinan, $25,050 in attorneys' fees for prior counsel Keith Rutman, and $10,749 in litigation expenses, for a total award of $316,761. Defendants claim that the court should not award Plaintiff full attorneys' fees and expenses.


A. Legal Standards

The court has discretion to award attorneys' fees and costs to a prevailing civil rights plaintiff.

42 U.S.C. § 1988(b). Such an award may include "out-of-pocket expenses incurred by an attorney which would normally be charged to a fee paying client." Chalmers v. City of Los Angeles, 796 F.2d 1205, 1216 n.7 (9th Cir. 1985), amended, 808 F.2d 1373 (9th Cir. 1987); see also Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir. 1991) (affirming award of travel expenses).

Reasonableness is the benchmark for attorneys' fees under § 1988. See 42 U.S.C. § 1988(b); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Courts follow a two-part "lodestar/multiplier" approach in determining reasonable fees. See id. at 433; Ballen v. Redmond, 466 F.3d 736, 746 (9th Cir. 2006) (citing Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996)). Under this approach, the court first calculates the presumptively-reasonable lodestar figure by multiplying the hours reasonably spent on the litigation by a reasonable hourly rate. Hensley, 461 U.S. at 433 (moving party must submit evidence supporting lodestar amount); Ballen, 466 F.3d at 746. The court should determine the reasonable hourly rate in light of "the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation." Chalmers, 796 F.2d at 1210-11 (citing Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)).

Second, the court may adjust the lodestar figure upward or downward based on those factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976) (the "Kerr factors"), which are not subsumed in the lodestar calculation. See Hensley, 461 U.S. at 434 n.9; Cunningham v. County of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988). The Kerr factors include:

(1) [T]he time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the "undesirability" of the case, (11) the nature and length of the professional relationship with the client, and (12) award in similar cases.

Kerr, 526 F.2d 67, 69-70 (9th Cir. 1975) (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)).*fn1 The Kerr factors offer guidance but are neither exclusive nor exhaustive. Chalmers, 796 F.2d at 1211 ("What remains important is that the district court articulate with sufficient clarity the manner in which it makes its determination of a reasonable hourly rate and the number of hours which should reasonably be compensated."). The Supreme Court has also held that "'the most critical factor' in determining the reasonableness of a fee award 'is the degree of success obtained.'" Farrar v. Hobby, 506 U.S. 114 (1992) (quoting Hensley, 461 U.S. at 436).

B. Fees

1. Lodestar Calculation

Plaintiff argues that the court should use the following figures to calculate the lodestar amount:

AttorneyRateHoursTotal Marrinan$430653.4$280,962 Rutman$375 66.8$25,050$306,012

Marrinan's 653.4 hours include 634.6 for all work through the filing of the motion for fees, and 18.8 for times spent preparing the reply brief.

a. Hourly Rates

In support of the hourly rates requested, Plaintiff submits declarations of Marrinan and Rutman describing their years of legal experience. Marrinan has practiced law for 27 years. Marrinan has extensive experience and success in civil rights litigation and is highly-regarded in the San Diego legal community as an exceptional civil rights trial lawyer who has been honored by bar associations for his work in this area. (See Decl. of M. Marrinan.) Rutman has practiced law for 19 years. Since 1994, 85 percent of Rutman's practice has been devoted to criminal defense and police-misconduct civil rights cases. (Decl. of K. Rutman at 2.) Both attorneys state that civil rights cases are difficult and risky to litigate. Marrinan notes that "few attorneys are willing to undertake police misconduct civil rights cases," especially because such cases "generally must be pursued on a contingent fee basis." (Decl. of M. Marrinan at 4.)

Plaintiff also submits several declarations in support of his claim that $430 for Marrinan and $375 for Rutman are the prevailing rates in San Diego for services of comparably skilled, experienced, and reputable lawyers. (See Decls. of G. Garrison, C. Bird, M. Crowley.) Attorney Greg Garrison states that he received attorneys' fees at a rate of $350 per hour in 2004 in a ยง 1983 case tried in Superior Court, at which time he had practiced law for 11 years. (Decl. of G. Garrison at 2.) Garrison now charges $400 per hour for his services, which include trying civil rights cases. He believes that the prevailing rate for attorneys comparable to Marrinan is at least $450 per hour. (Id.) He also concurs with Marrinan's observations regarding the difficulties involved in representing plaintiffs in civil rights cases. (Id. at 1.) Attorney Charles Bird, a partner at Luce, Forward, Hamilton and Scripps, LLP, who has practiced law in San Diego since 1974, stated in September 2007 that he receives $480 per hour for his work. (Decl. of C. Bird at 2.) Attorney Michael Crowley, who has been "involved" in ...

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