Unpublished Disposition, 898 F.2d 156 (9th Cir. 1990)

MEMORANDUM^* 

Petaluma Valley Hospital appeals from an award of attorney's fees.

In 1985, the district court found that Petaluma Valley Hospital unlawfully discriminated against Margurite Taylor on the basis of race. After a separate trial on damages, the district court issued a final award of $50,485.19, plus prejudgment interest of $15,384.28. Taylor was also awarded injunctive relief. This court affirmed the damage award on appeal. Taylor's counsel then applied for attorneys' fees under 42 USC Sec. 2000e-5(k). After hearing a series of the hospital's motions, the district court awarded counsel $336,980.00 in fees. The judge arrived at this total after enhancing the lodestar by a multiplier of 2.0. This appeal followed. We affirm.

STANDARD OF REVIEW

Awards of attorney's fees are reviewed for an abuse of discretion. Lange v. Penn Mut. Life Ins. Co., 843 F.2d 1175, 1184 (9th Cir. 1988). "However, any elements of legal analysis and statutory interpretation which figure in the district court's decision are reviewable de novo. " Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir. 1985).

DISCUSSION

The hospital argues that the district court used an incorrect calculation of the attorneys' hours in computing the fee award. The basis of their argument is two-fold. Taken together, the hospital maintains that the award must be vacated because the applicants failed to establish the reasonableness of the total hours claimed. We disagree.

The hospital first contends that the fee applicants failed to produce proper documentation of the hours dedicated to Taylor's case.

The Supreme Court has held that " [t]he district court ... should exclude from ... initial fee calculation hours that were not 'reasonably expended.' " Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Here, the district court judge rejected the fee applicants' initial request because it was insufficiently documented. Recognizing the standard set by the Supreme Court, the judge told the applicants:

I want detailed time sheets. I want the ... matter on which the time was spent calculated in tenths of an hour. I want the regular hourly charge by the lawyer who is making up the time sheet, as well as a proper description of the subject matter.

The applicants then informed the judge that they did not use detailed time sheets on contingent fee cases. Rather, they kept a "word processing running list of the things [they] did on the case." Upon being told that the list submitted was too summary, the fee applicants informed the judge that they would "talk about the cases [they] read and what sections of the briefs [they] wrote, and give it to [the judge], chapter and verse." The attorneys then submitted a revised fee application.

A review of the record demonstrates that the district judge did not "uncritically accept" counsels' representations. Jordan v. Multnomah County, 815 F.2d 1258, 1263 n. 8 (9th Cir. 1987). Not only did the district judge reject the first application as being too summary, but the record reveals that the judge carefully reviewed the revised submission before entering his order. We conclude that the district court did not abuse its discretion when it accepted the fee applicant's revised documentation.

The hospital next contends that the documentation produced by the fee applicants contained duplicative and unsubstantiated hours. Specifically, the hospital argues that the two attorneys repeatedly claimed identical hours for identical work.

The hospital presented the district judge with a detailed chart comparing the time entries of both plaintiffs' attorneys. After reviewing the information presented, the district judge reduced the fee application by 18.7 hours. In refusing to reduce the fee application by more hours, the district judge stated:

The defendants were arguing that co-counsel in a case cannot consult each other and review each other's written work before it's sent out. And that's not sensible in my view.

The record indicates that the district court carefully reviewed the evidence of duplicative hours presented by the hospital. The district court did not abuse its discretion in refusing to eliminate more of the work hours claimed by the attorneys.

The hospital next contends that the district court incorrectly set the attorneys hourly rate at $175. First, the hospital argues that the district court's failure to consider the fee applicant's own billing practices constitutes reversible error. Second, the hospital argues that the district court improperly relied on affidavits from civil litigators in the Bay Area to set the fee rate.

The hospital's first contention is without merit. The district court was not required to consider the applicant's own fee rates. The district court must consider the experience, skill, and reputation of the attorney requesting fees. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), amended on other grounds, 808 F.2d 1373 (9th Cir. 1987). However, " [d]etermination of a reasonable hourly rate is not made by reference to rates actually charged the prevailing party." Id. Here, the district court applied the proper standard and evaluated the skill of the attorneys. In the first fee hearing, the judge stated "there isn't any doubt in the world that plaintiffs' counsel did a very good job...."

The hospital's second contention is also without merit. In setting the hourly rate, the judge was "guided by 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. The judge explicitly referred to the affidavits of two civil litigators practicing in the Bay Area. The hospital contends that these attorneys are not similar to the fee applicants because they specialize only in civil litigation, not employment discrimination litigation. However, the practice of these attorneys, though not identical, was sufficiently similar to afford a reasonable comparison.¹ 

The hospital next contends that the district court incorrectly refused to reduce the lodestar by the hours worked by the attorneys after the date of the hospital's Rule 68 offer.²  See Marek v. Chesny, 473 U.S. 1 (1985). We review de novo a court's decision applying Rule 68. Simon v. Intercontinental Trans., 882 F.2d 1435, 1439 (9th Cir. 1989).

We need go no further in rejecting this contention than to note that at oral argument the hospital's counsel admitted that Taylor's judgment exceeded the hospital's Rule 68 offer.

The hospital's final contentions involve the district court's application of a 2.0 multiplier to the lodestar fee. The hospital first contends that the district court incorrectly held that our decision in Fadhl v. City and County of San Francisco, 859 F.2d 649 (9th Cir. 1988), required the court to conclude that a multiplier was required in all Title VII contingency cases. This contention is without merit.

The record reveals that the district judge had a thorough understanding of Fadhl. The judge did state that Fadhl "makes it mandatory that the court double the amount. Add that multiplier of 2. No if's, and's, or but's about it." However, the hospital takes this quote out of context. It is abundantly clear from the rest of the record that the district judge was referring to Fadhl's application to the present case, not to all Title VII cases. No reasonable interpretation of Fadhl would permit a finding that the case requires an across-the-board enhancement in all Title VII cases, and there is no doubt the district judge correctly interpreted the case.

The hospital next contends that the fee applicants' failed to satisfy the two-part test set out by the Supreme Court to justify a fee enhancement. We recently described the circumstances in which a fee may be enhanced after the Supreme Court's decision in Pennsylvania v. Delaware Valley Citizens' Council for Clear Air (Delaware Valley II), 483 U.S. 711 (1987):

First, the fee applicant must establish that "without an adjustment for risk the prevailing party 'would have faced substantial difficulties in finding counsel in the local or other relevant market.' " Second, any enhancement for contingency must reflect "the difference in market treatment of contingent fee cases as a class rather than ... the 'riskiness' of any particular case."

Fadhl, 859 F.2d at 650 (citation omitted; emphasis in original).

The hospital claims that the fee applicants failed to satisfy the first prong of Delaware Valley II. Specifically, the hospital claims that because the fee applicants were the first attorneys contacted by Taylor, the applicants have failed to prove that Taylor had any difficulty in finding counsel.³ 

First, it is not at all clear that Delaware Valley II requires a specific finding that the plaintiff actually had difficulty finding counsel, as opposed to a more general finding that the plaintiff "would have faced substantial difficulty in finding counsel...." Delaware Valley II, 483 U.S. at 733 (emphasis added). See, e.g., Hasbrouck v. Texaco, 879 F.2d 632 (9th Cir.) (upholding an enhancement without reference to a specific finding that the prevailing party had difficulty obtaining counsel), cert. granted, 109 S. Ct. 3154 (1989).

Yet, this distinction is immaterial here. We believe the district court made the specific findings urged by the hospital when it referred to the fee applicant's evidence that Taylor went to the Marin County Attorney Referral Service and was told that none of the over 100-member lawyers, except the fee applicants, would accept her case.

The hospital's final contention is that the fee applicants failed to produce relevant market evidence to satisfy the second prong of the Delaware Valley II test. Specifically, the hospital claims that the attorneys failed to produce evidence from Marin County attorneys with the same level of skill and competence as themselves.

The hospital's focus is misplaced. The second prong of the Delaware Valley II test is focused on the type of case tried by the fee applicants, not the fee applicants themselves. Here, the district court based its award on the fee applicants' evidence that "Title VII cases are unappealing to the private bar and they're economically unattractive in San Francisco." This is precisely the type of evidence presented by the applicants and accepted by this court in Fadhl, 859 F.2d at 650-51.

Geography is the only other argument for finding that the applicants' evidence was insufficient to satisfy the second prong of Delaware Valley II. The discrimination here occurred in Petaluma and the fee applicants practiced in San Rafael. Both of these cities are in Marin County. The hospital argues for reversal because it contends that the relevant market is Marin County, not the San Francisco Bay Area. The district judge reasonably concluded that the San Francisco Bay Area is a metropolitan area that includes this part of Marin County for purposes of the availability of legal services.

The district court's fee award is AFFIRMED.