Attorneys representing the plaintiff in a § 1983 case which started with eight defendants and ended with a $1 compensatory and $250,000 punitive (reduced to $5,000) award against one defendant with abandoned claims against others filed what the court described as an “unconscionable” fee request that was denied, after some soul searching, in its entirety. Mendez v. County of San Bernardino, 2007 U.S. Dist. LEXIS 75495 (C.D. Cal. May 21, 2007):
Thus, what began with five plaintiffs alleging over eighteen claims against eight defendants ended with one plaintiff prevailing against one defendant on two claims with an award of only nominal damages.
Notwithstanding the relative lack of complexity of the litigation and the less than stellar result, Plaintiff, on May 10, 2005, filed a motion for attorneys’ fees and costs as the prevailing party. In the motion, Plaintiff’s counsel indicated they had run up a staggering total of $1,213,542.75 in fees and costs in a relatively uncomplicated case. The Plaintiff reduced that amount to the claimed amount of about $790,000, after reducing the fees relating to litigating the unsuccessful Monell claims and a further reduction to make the fees more reasonable.
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First, the fee request is staggering in light of the issues prevailed upon at trial and the actual amount of damages recovered by Plaintiff. The Court granted the defense motion for summary judgment as to both the Monell claims and the negligent training claims. Plaintiffs then voluntarily dismissed all excessive force claims, the illegal entry claims, and the claims against Deputy Lawyer. Thus, this case, which began with five plaintiffs asserting over eighteen claims, was whittled down to two plaintiffs, stating claims for false arrest and illegal search.
The trial of this case was not lengthy or extensive[;] measured in a few days, not weeks or months. It did not invoke complex issues of law or, indeed, of fact. In short, counsel took a routine case, involving claims of false arrest and illegal search, and billed over 2,500 hours.
This case was not complex, nor did it present any novel constitutional issues. The incident which formed the basis for the claims that went to trial happened over several hours during the night of one day and the early morning of the next. The legal claims were straight-forward and were made even less complicated by the fact that, as will be discussed, plaintiffs’ counsel had litigated at least two prior cases with almost identical facts.
Indeed, here the facts were largely undisputed. Moreover, the shooting and events leading up to it were not even at issue. Thus, the only relevant facts were those occurring after the shooting when Plaintiff was detained briefly in the police unit and questioned at the station. There was similarly no dispute about the actual search of Plaintiff’s residence. Plaintiff was not present during the search, and the only result was the disturbance of clothing in the closets. No evidence was found or seized. As to the propriety of the search, Deputy Reyes admitted he failed to give the admonition that Plaintiff could decline to consent.
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Further, as mentioned above, this case was made even simpler to prepare and try due to the fact that Plaintiffs’ counsel had litigated at least two prior cases involving almost identical circumstances. See e.g. Sepulveda v. Hawn, 2002 U.S. Dist. LEXIS 11373 (E.D. Cal. 2002); Gallardo v. Reinnecius, 1998 U.S. Dist. LEXIS 18495 (E.D. Cal. 1998). In fact, a substantial portion of Plaintiff’s motion for partial summary judgment in this case appears to have been cut and pasted directly from a motion in the Sepulveda case. Defendants’ Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Cost, 11: 18-28; compare Defs’ Exh. E. at pp. 4-5 and 7 with Defs’ Exh. F. at pp. 10,11 and 13. Nevertheless, counsel billed a total of 92.25 hours to prepare a summary judgment motion which was essentially a reproduction of the Sepulveda motion with cosmetic modifications.
However, this is not the only billing request that illustrates the outrageousness of the instant petition. To the contrary, the motion is replete with excessive billing entries, often involving multiple attorneys, and relating to matters that were not overly complicated. For instance, from August 7, 2003, to August 11, 2003, counsel billed 19.75 hours to “Review motion to dismiss and prepare opposition.” While this entry does not appear excessive at first glance, the Court also discovered that an associate had billed 22.5 hours for the same task. In total, counsel billed 42.25 hours to prepare a response to an uncomplicated motion to dismiss that addressed only two issues. Counsel subsequently billed another 19 hours to prepare for the hearing on this motion to dismiss. In contrast, Defendants’ counsel spent a mere minutes in preparation for the hearing. Counsel also includes time billed on claims either abandoned prior to trial or dismissed by the Court. For example, from June 9, 2004, to July 26, 2004, Geoffrey Graber, an associate, billed a total of 57 hours for the “Preparation of Joint Stipulation regarding plaintiffs’ motion to compel information regarding prior discipline against deputies.” The time spent on this task was clearly excessive. More important, the motion to compel was aimed at seeking information to support the Monell claim. As that claim was disposed of on summary judgment, counsel should not have billed for any of that time.
Moreover, in light of the sheer number of hours billed, the Court was presented with the daunting task of sifting through these thousands of hours to assess the propriety of the fees sought. However, a large number of the entries were improperly “block-billed,” thereby frustrating the Court’s efforts to determine whether the fees were, in fact, reasonable. Indeed, counsel’s pervasive use of block-billing made it virtually impossible to determine whether the fees related to claims dismissed by the Court or abandoned by Plaintiffs. Of course, the “fee applicant bears the burden of establishing entitlement to an award…and should maintain time records in a manner that will enable a reviewing court to identify distinct claims.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). . . .
Plaintiff claims $1,857.30 for “Travel expenses for attorney West, including car rental, meals, lodging, laundry, DSL, copies,” and $71.88 for “Office Supplies from Office Depot.” This amount, which is unrecoverable in any event, was apparently incurred by Mr. West in a mere three day stay in a Fresno hotel. The summary of costs, together with the attorney’s fee request, clearly demonstrate the unreasonableness of the counsels’ billing practices.
The Court, having been presented with an outrageous and excessive request, finds it appropriate to deny the motion for fees and costs in its entirety. Congress, when it enacted the Civil Rights Attorneys’ Fees Act, certainly did not intend the section as a vehicle for the recovery of such excessive attorneys’ fees and costs from the public treasury. The section 10 clearly contemplates only the award of reasonable fees to the prevailing party. 42 U.S.C. § 1988 (emphasis added).
Plaintiff cannot compel this Court to merely cut the offensive request to a reasonable amount. First, this is impossible in light of the improper billing records submitted as discussed, supra. More important, courts have acknowledged that Congress did not intend to condone the practice of submitting outrageously inflated fee requests in the hope that the district court would then pare down the award to reach a reasonable amount. Brown, 612 F.2d at 1059; see also Scham, 148 F.3d at 559. The Seventh Circuit’s reasoning is persuasive on this point:
If, as appellant argues, the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked for in the first place. To discourage such greed a severer reaction is needful[.]
Brown, 612 F.2d at 1059.
Rather, Congress intended to allow the reasonable recovery of attorney’s fees in order to encourage the representation of individuals in civil rights cases, who otherwise might be unable to afford counsel. Fair Housing Council, 999 F.2d at 97. Thus, the section was enacted to enable those injured by police misconduct to pursue appropriate relief. This Court recognizes the laudable and important goat of section 1988 and will not allow it to be perverted by outrageous and totally unsupportable fee requests such as that at issue here. Accordingly, the Court finds that under the circumstances of this case, a more severe reaction than mere reduction of the fee is warranted.
As indicated, this Court acknowledges the importance of pro bono representation and, in general, commends Plaintiffs’ firm for its demonstrated commitment to providing free legal service. However, pro bono work is defined as the involvement in “uncompensated legal services especially for the public good” Black’s Law Dictionary 1220-21 (7th ed. 1999) (emphasis added). Generally speaking, attorneys taking on pro bono cases do so with little or no expectation of reimbursement. While section 1988 permits the recovery of attorney’s fees for a plaintiff who prevails in a civil rights action, this Court does not view the section as contemplating the use of pro bono civil rights cases as a mechanism for generating fees, attorney hours, or as a firm “profit center,” and this Court views that as a fair characterization of what was done in this case. As detailed above, the firm took a relatively simply case involving a claimed false arrest and illegal search and billed over 2,500 hours. Counsel then submitted an incredibly excessive petition for fees and costs seeking nearly $800,000, which, to make matters worse, it expects to be paid by the taxpayers of this state. Moreover, the actual fees and costs purportedly exceeded $1.2 million.
Prior opinion: Mendez v. County of San Bernardino, 2005 U.S. Dist. LEXIS 45700 (C.D. Cal. April 4, 2005).
Comment: When I charged less per hour, I used to evaluate fee requests for losing defendants in § 1983 and prepare an affidavit of what was reasonable under the circumstances. In the ones given me, I would always find padding: e.g., (1) “10 hours, research on state action” where it was a city law enforcement officer as the defendant, where state action is a given; (2) “42 hours preparing response to X’s brief” where the resulting product was 6 pages long, citing five cases. With everything online now, a lawyer cannot take the same brief and reproduce it in another case and bill for it just like the first time. It is unethical, immoral, and unconscionable. Which is why hourly rates promote unethical billing practices.
