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Corder v. Brown

filed: June 2, 1994.

LILLIAN CORDER; ROBERTA LOMBARDO, PLAINTIFFS-APPELLEES,
v.
ROY BROWN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. D.C. No. CV-85-0452-PAR. Pamela Ann Rymer, District Judge, Presiding.

Before: Procter Hug, Jr., Charles Wiggins, and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Wiggins.

Author: Wiggins

WIGGINS, Circuit Judge:

The district court awarded plaintiffs-appellees $90,333 in attorney's fees after they prevailed in a 42 U.S.C. § 1983 action. Corder v. Gates, 688 F. Supp. 1418 (C.D. Cal. 1988). Both parties appealed. The Ninth Circuit reversed and remanded. Corder v. Gates (Corder I), 947 F.2d 374 (9th Cir. 1991). On remand, the district court awarded plaintiffs-appellees $240,695 in attorney's fees and denied defendant-appellant's request for an offset. Defendant-appellant appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. We remand in part, and reverse and remand in part.

I.

The underlying lawsuit was brought by two elderly women against 41 individual law enforcement officers, two counties and two cities for violating their civil rights, pursuant to 42 U.S.C. § 1983. Specifically, plaintiffs alleged that at 3:00 a.m. on January 18, 1985, defendants improperly entered and searched plaintiffs' residence, detained plaintiffs for five hours, tear gassed the residence and shot out a ceiling. Defendant-appellant Roy Brown, then the commander of the Los Angeles County Sheriff's Department SWAT Team, authorized the entry of plaintiffs' residence. Defendants were searching for an escaped prisoner for whom they held a commitment order. Although it is undisputed that defendants had probable cause to believe that the escaped prisoner was in the residence, defendants did not attempt to obtain a valid search warrant. Instead, defendants entered on the basis of the commitment order. Plaintiffs sought $1,000,000 in compensatory damages and $1,000,000 in punitive damages against each defendant.

On September 30, 1985, defendants offered plaintiffs $45,000 to settle. The settlement offer provided $6,000 in damages and $39,000 for attorney's fees which had accrued at that point. Plaintiff Lombardo accepted the offer, but plaintiff Corder rejected it.*fn1

Several defendants moved for and were granted summary judgment. At trial, plaintiffs achieved limited success against the remaining defendants, prevailing over only three law enforcement officers and recovering only minimal dollar amounts. Specifically, the jury awarded plaintiffs $2 in compensatory damages and $7,500 in punitive damages against one defendant; $2 in compensatory damages and $15,000 in punitive damages against a second defendant; and $2 in compensatory damages and $1,500 in punitive damages against defendant-appellant. Total compensatory and punitive damages amounted to $24,006. The other defendants were found to be shielded from liability by qualified immunity.

Plaintiffs then moved for attorney's fees under 42 U.S.C. § 1988.*fn2 The district court awarded plaintiffs $90,333 in attorney's fees. The district court found that the initial lodestar figure of $112,916 should be reduced by 20% to reflect plaintiffs' limited success in light of plaintiffs' rejection of the $45,000 settlement offer.

Two of the three defendants who were found liable settled with plaintiffs. Defendant-appellant appealed. He argued that the initial lodestar figure should have been reduced by more than 20%, given plaintiffs' very limited success. Defendant-appellant also argued that the district court should have offset the attorney's fee award by the amount already paid by the other two defendants through settlement. Defendant-appellant stressed that otherwise plaintiffs would receive an improper windfall. Plaintiffs cross-appealed. Plaintiffs argued that the initial lodestar figure should not have been reduced at all, regardless of their limited success.

This court reversed the order of the district court. Corder I, 947 F.2d at 374. The court held that it was clearly erroneous for the district court to reduce the initial lodestar figure because plaintiffs had previously rejected the $45,000 settlement offer. Id. at 380-81. But, the court noted that it was not entirely clear that the district court had based the 20% reduction solely on plaintiffs' rejection of the settlement offer. Thus, the court remanded to the district court for clarification. Id. at 381.

This court also found that it was unable to determine whether the district court should have offset the attorney's fee award by the amount already paid by the other two defendants through settlement. The court stated, "We face a record that is entirely devoid of information about these alleged post-trial settlements; we have little information about either the number of settlements that have taken place, or the amount of these settlements." Id. at 383. Thus, the court remanded for further proceedings. Id.

On April 21, 1992, the district court conducted a hearing at which plaintiffs conceded that they had settled with the other two defendants who were found liable. But, plaintiffs noted that they deliberately did not allocate the settlement amounts between damages and attorney's fees because they wanted to avoid an offset by defendant-appellant. Furthermore, plaintiffs argued that they would not disclose the terms of the settlement agreements because the agreements were confidential.

The district court Judge questioned whether she had authority to "pierce through a settlement agreement which was negotiated among the parties." She observed, "When there is a settlement and it is a negotiated settlement for a lump sum figure and there is no allocation, why should the court get into the act? I[ ] just simply have to award attorney fees based upon reasonable attorney fees for the case."

On September 8, 1992, the district court entered a new order, awarding $240,695 in attorney's fees. First, the district court Judge acknowledged that this court had rejected the sole factor upon which she had reduced the initial lodestar figure. But, instead of simply restoring the amount reduced and awarding plaintiffs interest on the judgment, the district court Judge recalculated the entire award using the current hourly rate of plaintiffs' attorney in order to compensate for the delay in payment caused by the appeal. Next, she awarded plaintiffs attorney's fees for services rendered during the previous appeal and subsequent remand. Finally, the district court Judge found that she was not required to reach the offset issue. First, there was no controlling authority mandating an offset. Second, defendant-appellant had not provided her with specific evidence that she could use to calculate the requested ...


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