Plaintiff’s Appeal of the 80% Cut Denied Earlier; Defendant’s Appeal for a Further- Still Reduction Rejected.
Above: Haircut. Japanese army. c1905. Library of Congress.
Henderson v. Carter, Case No. B243220 (2d Dist., Div. 5 Sept. 11, 2013) (unpublished) is a follow-up to a prior unsuccessful appeal by a winning civil rights plaintiff who appealed a severe “haircut” in requested attorney’s fees. (See our prior post on August 22, 2013.)
The second appeal, however, was brought by the defendant.
What happened is that plaintiff won $17,940.80 in damages and sought to recoup $2,380,331.55 in requested fees (inclusive of a 1.5 multiplier). The trial court slashed the requested fees by 80% from the $549,885 lodestar he found reasonable, for a fee award of $109,977.
Defendant sought a further reduction in the second appeal, a proposition not accepted by the appellate court.
The defense relied mainly on Choate v. County of Orange, 86 Cal.App.4th 312, 324 (2000), where no fees were awarded to an excessive force civil rights plaintiff where only $5,719 was awarded in compensatory/punitive damages. The Second District panel found that the trial judge in Henderson did exercise discretion in line with reasoning expressed in Choate. However, in interesting dicta, the Henderson court indicated that it did not need to the address “the issue of the correctness of Choate” in light of Lefemine v. Wideman, 133 S.Ct. 9, 11-12 (2012), a United States Supreme Court decision suggesting that civil rights winners should be awarded fees absent the presence of special circumstances. Query whether the Second District believes Lefemine somehow undermines Choate’s result or rationale.
Then, the defense cited language from Perdue v. Kenny A., 559 U.S. 542, 130 S.Ct. 1662, 1676-1677 (2010)–a multiplier case at the federal level–indicating that civil rights fees to plaintiffs are often borne by taxpayers given that local government losers have limited budgets, making a rhetorical pitch for a further reduction. It did not work. Citing Hutto v. Finney, 437 U.S. 678, 693-694 (1978) [states not immune from paying civil rights fees] and EWAP, Inc. v. City of Ontario, 177 Cal.App.3d 1108, 1118 (1986) [fees awardable from limited taxpayer funds is not a special circumstance precluding an award], the appellate court rejected finding Perdue dispositive under the circumstances.