Unpublished Disposition, 883 F.2d 1024 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1024 (9th Cir. 1989)

John S. HERRINGTON, David S. Herrington, and Quail HillRanch, a partnership, Plaintiffs-Appelleesv.COUNTY OF SONOMA, Defendant-Appellant

No. 87-1860.

United States Court of Appeals, Ninth Circuit.

Submitted July 26, 1989.* Decided Aug. 22, 1989.

Before CHOY, SNEED and TANG, Circuit Judges.


MEMORANDUM** 

The County of Sonoma (the "County") appeals from the district court's order of March 9, 1987, awarding John and David Herrington (the "Herringtons") $363,832.70 in attorney's fees and $42,629.12 in costs pursuant to 42 U.S.C. § 1988.

DISCUSSION

The County challenges the district court's fee award on several grounds. The County argues that the Herringtons, as wealthy landowners with ample economic incentive to pursue their 42 U.S.C. § 1983 action, are not authorized to receive a fee award under 42 U.S.C. § 1988. In addition, the County argues that a fee award is inappropriate at this point in the litigation because a new trial on damages is still pending before the district court. We resolved these issues in an order awarding fees and costs to the Herringtons for work done on appeal, concluding that a fee award is authorized for the Herringtons under Sec. 1988 and that it would be inappropriate to delay consideration of the requests for attorney's fees to date pending resolution of the damages issue. Herrington v. County of Sonoma, Nos. 86-2620, 86-2728 (9th Cir. August 22, 1989).

The County also contends that even if fees are authorized under Sec. 1988 and consideration of the fee award is deemed appropriate at this time, the district court's award of fees should be reduced to take into account the Herringtons' abandonment of their taking claim, the failure to prevail on the damages issue, and the district court's enhancement of the fee award in light of the fact that the Herringtons secured such a high damages award. Keeping in mind that the district court's determination of a reasonable attorney's fee is reviewed under an abuse of discretion standard, Cunningham v. City of Los Angeles, No. 87-6596, slip op. at 6482 (9th Cir. June 20, 1989), we address each of these claims for reduction in turn.

The County contends that the district court should have adjusted the amount of fees awarded to account for the Herringtons' abandonment of their taking claim at the close of evidence. The district court determined that no reduction should be made for abandonment of the taking claim because the claim arose out of the same set of facts as the fourteenth amendment claims and the three claims all involved essentially the same evidence and the same witnesses. We disagree.

It is true that there is substantial crossover in legal argument and production of evidence between the taking claim and the fourteenth amendment claims. Yet, a portion of the argument and proof relevant to the taking claim is wholly irrelevant to establishing the fourteenth amendment violations. Thus, an adjustment of attorney's fees for work done on the taking claim is warranted as a result of the abandonment of the claim. The County argues that we should reduce the fees by 50 percent to compensate for the abandonment. A 50 percent reduction does not adequately take into account the extent of the crossover between the taking and fourteenth amendment claims, nor does it take into account time spent on procedural issues unrelated to the ultimate issue of liability. In our view, a more representative figure for time attributable solely to the taking issue is 33 1/3 percent and we will adjust the district court's fee award by that percentage.

II. Failure to Prevail on Damages Issue and Enhancement of Fee Award

The district court determined that the hourly rate for one of the Herringtons' attorneys, set at $250 per hour, was excessive and should have been set at $200 per hour. For the reasons set forth in our order awarding appellate fees, we agree that $200 per hour constitutes a reasonable fee. The district court, however, did not adjust the total fee award to compensate for the changed hourly rate because the court determined that the Herringtons' extraordinary success in obtaining such a large damages award justified enhancing the fee award. We vacated the damages award on appeal from the district court's final judgment. Thus, the district court's enhancement of the fee award no longer is warranted.

In addition, the district court's fee award must be adjusted to compensate for the lack of success on the damages issue. The damages issue arises from the same core of facts as the liability issues and some of the work performed in connection with the damages issue may have contributed to the result achieved on the liability issues. In addition, the Herringtons still obtained significant relief through the district court's issuance of an injunction and the overall determination of liability. Thus, the Herringtons are entitled to an award of fees for all hours reasonably spent on the liability issues without reduction to account for the lack of success on the damages issue.

With respect to the hours spent on the damages issue itself, however, we conclude that these hours should be eliminated from the fee award at this point in the litigation. Such an adjustment is necessary to prevent a duplication fee award for work performed on the damages issue. Eliminating the hours at this point will enable the district court to evaluate a fee request for the work done on the damages issue during the trial and new trial proceedings after the conclusion of the new trial proceedings. At that time, the district court will be able to determine what portions of the work done at trial were necessary in aid of the work performed during the new trial proceedings.

The County asserts that $71,250.00 of the $363,832.70 fee award comprises work done on the damages issue. The billing records support this figure and the Herringtons do not offer contrary evidence. This figure constitutes 19.58 percent of the total award and we will reduce the district court's fee award by that percentage.

In light of the foregoing discussion, we adjust the district court's award of fees in the following manner. To account for the excessive rate charged, we reduce the total fee award by $25,385.00. We arrived at this figure by multiplying the number of hours billed at an excessive rate of $250.00 per hour by the difference between the excessive rate and a reasonable billing rate of $200.00 per hour.

Next, we must adjust the fees to eliminate the hours claimed for time spent on the damages issue. We reduce the adjusted total figure of $338,447.70 by 19.58 percent, arriving at an adjusted amount of $272,179.65 for the work done on the liability issues.

Finally, we adjust this amount to eliminate the hours claimed for time spent on the taking issue. We reduce the adjusted total figure of $272,179.65 by 33 1/3 percent, arriving at a final adjusted attorney's fee award in the amount of $181,453.11 for the work done on the liability issues other than the taking claim.

CONCLUSION

We hold that the district court's fee award must be adjusted to account for the reduction in one hourly rate from $250 per hour to $200 per hour and to eliminate the hours spent on the damages issue and a portion of the hours spent on the taking issue. Therefore, we modify the district court's order awarding attorney's fees to award a total sum of $181,453.11 for the work performed at trial. The amount awarded for costs and expenses remains unchanged. In all other respects, the district court's order is

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3