Also, Costs Improperly Excluded From Fee Calculus As Permitted Under § 1983.
The Third District in Clapp v. Terry, Case No. C076562 (3d Dist. Nov. 23, 2016) (unpublished) is an important primer on the proper methodology to be used when awarding lodestar fees, fees on fees, and costs in civil right cases to prevailing plaintiffs under 42 U.S.C. § 1983.
There, plaintiff won $12,533.43 compensatory and $500 punitive damages in total against two defendants in an excessive force case, although losing related claims and obtaining no verdict against the County, its sheriff, or a deputy. Plaintiff then made two applications for fees and costs pursuant to 42 U.S.C. § 1983.
On the first one where $440,473 in fees was sought, the trial judge made some lodestar reductions for efficiency and deduction of hours spent against defendants for which no recovery was had, and then made a .4 further reduction for limited success in the case, bringing the fee award down to $167,116.32. The lower court also failed to award some costs which were included in the fee request. Plaintiff appealed those determinations.
The second application, for “fees on fees,” sought $72,506.50 in fees and $2,126.70 in costs. The lower court awarded them all, determining that the limited success consideration only went to the merits and should not be factored into the “fees on fees” calculation. This prompted an appeal by the two losing defendants.
The Third District sorted through the lower court’s methodology, reversing and remanding the various determinations. The main infirmity with the fee award on the first application was the lower court’s utilization of an impermissible “double deduction” by initially reducing for unsuccessful hours and then again doing a further .4 reduction for the same limited success factor. The trial judge also failed to award costs/expenses included in the fee requests, which are compensable as fees under § 1983 (with California’s normal routine costs analysis being irrelevant). The flaw in the “fees on fees” calculation was the lower court’s failure to consider degree of success in awarding the fees sought under the second application. Remanded for a “re-do.”