Opposition Brief — Riverside v. Rivera

Supreme Court, U.S,

C FILED

XY

x SEP 25 1988

No. 85-224 .

JOSEPH F. SPANIOL, JR.

oo nea

In The ‘

Supreme Court of the United States

October Term, 1985

fy.

Vv

CITY OF RIVERSIDE, et al.,

Petitioners,

Vs.

SANTOS RIVERA, et al.

sy

Vv

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

fy.

aa

BRIEF IN OPPOSITION

——S Oe

—S

Gerap P. Lorez*

Stanford Law School

Crown Quadrangle

Stanford, CA 94305

(415) 497-2796

Patrick O. Patrerson, JR.

UCLA School of Law

405 Hilgard Avenue

Los Angeles, CA 90024

(213) 825-8249

Attorneys for Respondents

*Counsel of Record

——

| aes

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the Court of Appeals correctly affirmed a

District Court’s award of attorney’s fees as reasonable

under 42 U.S.C. § 1988 where the record contained sub-

stantial evidence that the District Court had reconsidered

and redetermined the award in light of the standards es-

tablished in Hensley v. Eckerhart.

li

PARTIES INVOLVED

The following parties have an interest in the outcome

of this case:

SANTOS RIVERA, JENNIE RIVERA, DONALD

RIVERA, JEROME RIVERA, LEE ROY RIVERA,

MARK LARABEF, ENRIQUE FLORES, MANUEL

FLORES, JR., Plaintiffs and Respondents;

ROY B. CAZARES, GERALD P. LOPEZ, Attorneys

at Law;

CITY OF RIVERSIDE, LINFORD L. RICHARD-

SON, MICHAEL S. WATTS, DAN PETERS, GERALD

MILLER, ROBERT PLAIT, Defendants and Petitioners.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED Tene ees oe i

PARTIES INVOLVED meet

ST iv

oe LS cc 1

ARGUMENT .

Reasons for Denying the Writ

I. Both The District Court And The Court Of Ap-

peals Correctly Applied Hensley On Remand... 7

II. The Conflict Between Circuits Asserted By Pe-

titioners Does Not Exist —000.

Ill. The Ninth Cireuit Correctly Considered Mone-

tary Damages As A Factor In The Determination

Of The Relationship Between Hours Reason-

ably Expended And The Total Success Achieved 15

A. The Ninth Circuit’s Rejection Of Mechanical

Proportionality Is Consistent With Hensley

And The Decisions Of Other Cireuits 00. 15

B. The Ninth Circuit’s Rejection Of Mechanical

Proportionality Is Consistent With The In-

tent Of Congress 21

CONCLUSION a Tis AT 23

APPENDIX A

EXCERPTS FROM REPORTER’S TRAN-

SCRIPT OF PROCEEDINGS, MONDAY, JAN-

UARY 19, 1981 A-l

APPENDIX B

REPORTER’S TRANSCRIPT OF PROCEED-

INGS, WEDNESDAY, JUNE 6, 1984 B-1

iv

TABLE OF AUTHORITIES

CasEs Page(s)

DiFilippo v. Morizio, 759 F.2d 231 (2d Cir. 1985) —.18, 20

Grendel’s Den, Ine. v. Larkin, 749 F.2d 945 (1st

Cir. 1984) 12, 13

Hensley v. Eckerhart, 461 U.S. 424 (1983) passim

Johnson v. Georgia Highway Express, Inc., 488

ee Pe ee i I eteteetesteteeceitinntieecsigreniniamcnces 5, 22

Kerr v. Screen Extras Guild, Ine., 526 F.2d 67

(9th Cir. 1975) . §

Lynch v. City of Milwaukee, 747 F.2d 423 (7th

Cir. 1984) 17, 18, 20

Perez v. University of Puerto Rico, 600 F.2d 1

(1st Cir. 1979) 18

Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) 000. ~=-19

Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983) 12, 13, 18, 20

Rivera v. City of Riverside, — F.2d — (9th Cir. 1985) ..6, 13

Rivera v. Citv of Riverside, 679 F.2d 795 (9th Cir.

1982) 4

White v. City of Richmond, 713 F.2d 458 (9th Cir. 1983) 12

Wojtkowski v. Cade, 725 F.2d 127 (1st Cir. 1984) 0. =12

STATUTES

Bg RE 0 RIE en ed a be 2

42 U.S.C. § 1983 ny

42 U.S.C. § 1985 2

42 US.C. § 1986 2

42 U.S.C. § 1988 3, 4, 10, 11, 15, 19, 20, 21, 22

v

TABLE OF AUTHORITIES—Continued

Page(s)

MISCELLANEOUS

S. Rep. No. 1011, 94th Cong. 2d Sess. 1 (1976) 11, 22

H.R. Rep. No. 1558, 94th Cong. 2d Sess. 1 (1976) .11, 21, 22

No. 85-224

In The

Supreme Court of the United States

October Term, 1985

— '

Vv

CITY OF RIVERSIDE, et al.,

Petitioners,

vs.

SANTOS RIVERA, et al.

fy.

Vv

-

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

ty.

oe. |

BRIEF IN OPPOSITION

a

STATEMENT OF THE CASE

The respondents are all Chicanus who live in or near

the City of Riverside, California. In August 1975 they

were all in attendance at a party given at the home of San-

tos, Jennie and (their son) Donald Rivera for their nephew

Lee Roy Rivera. As the District Court found, “a large

number of unidentified police officers of the City of Riv-

erside without a warrant, but with tear gas and unnecessary

physical foree, broke up the party and arrested many of

the people in attendance, including four of the [respond-

to

ents],” though “[t]he party was not creating a disturbance

in the community at the time of the break-in.” (Petition

Appendix 2 (hereinafter Pet. App.) at 2-3.) Criminal

prosecutions were tenaciously pursued, but the “charges

were discissed for lack of probable cause.” (Pet. App. 2

at 2-3.) Testimony introduced by respondents at trial,

which led to judgments for constitutional deprivations

against both the City of Riverside and individual police

officers, included evidence of seriously misstated facts in

police reports that served as the basis for the alleged prob-

able cause for the break-in, the arrests and the criminal

prosecutions.

At the beginning of the case, the details of the break-

in, arrests and subsequent activity of the police officers and

other city officials were sketchy, confused, and almost ex-

clusively within the knowledge of the petitioners and the

other officials of the City of Riverside. Which of the tens

of police officers involved did exactly what (both at the

Rivera home and later) with whom and to whom was un-

known and unlearnable. Under these circumstances, re-

spondents sued thirty-two defendants, including the City

of Riverside and individual police officers, alleging civil

rights and pendent state tort violations.’ The District

' Petitioners incorrectly assert that respondents brought 22

claims against each and every defendant. (See, e.g., Pet. at 8.)

The original complaint states seven causes of action, encom-

passing claims alleged on the bases of 42 U.S.C. §§ 1981, 1983,

1985 and 1986 and for false imprisonment, malicious prosecu-

tion and negligence. Only the § 1983 and state pendent claims

ultimately were tried to the jury. While what is labeled in the

complaint as “Seven Causes of Action” :night well be inter-

preted to be something more than seven claims, petitioners’

(Continued on following page)

3

Court concluded that the factual uncertainties and com-

plexities made it “reasonable for plaintiffs initially to name

thirty one individual] defendants [thirty police officers and

the chief of police] as well as the City of Riverside as de-

fendants in this action.” (Pet. App. 2 at 2-4.) Even

through the trial itseif, testimony of petitioners and other

police officers was often in conflict as to the respective

roles of individual police officers involved in the coustitu-

tional deprivations. (Pet. App. 2 at 2-4.)

After four years of discovery and two settlement con-

ferences’, a nine day trial ensued on the § 1983 and state

pendent claims. The jury, following seven days of delib-

eration, found in favor of all eight respondents and against

the City of Riverside and five individual officers on § 1983,

negligence, false arrest and false imprisonment claims.

The jury awarded total damages of $33,350.°

(Continued from previous page)

rand total of 22 seems disingenuous and calculated to mis-

ead. Petitioners do not reveal how they arrive at their final

figure, but if one examines pages 6 and 7 of the petition, it ap-

pears that petitioners simply added together what they them-

selves have lifted from the original complaint and now describe

as “claims.” Included on petitioners’ list of “claims” are ref-

erences to a statutory choice of law and attorney’s fees pro-

vision (42 U.S.C. § 1988), specific items of compensatory and

punitive damages (bodily injury, property damages), and gen-

eral prayers for relief.

2 The District Court ordered and personally presided over both

conferences. After being urged by the District Court to recon-

sider the substantial risk of liability at trial, petitioners’ coun-

sel made a final offer of $10,000 on behalf of his clients—that

is, a final offer of $10,000 in satisfaction of all respondents’

— alle fees and costs. (Pet. App. 2 at 2-4; 15 at 15-6

and 15-7.

3 The petitioners declare that “no restraining order issued as

a result of this litigation.” (Pet. at 9.) Conspicuously absent

(Continued on following page)

insect ineenntcaaaltatiaii ines atelier

+

On December 1, 1980, respondents moved for reason-

able attorney’s fees and costs pursuant to 42 U.S.C. § 1988.

Petitioners filed extensive written opposition, and oral

argument was heard on January 19, 1981. Nearly three

months later the District Court, “having heard and con-

sidered oral argument and having examined and considered

the memoranda, affidavits and exhibits filed by the par-

ties,” awarded respondents $245,456.25 in attorney’s fees

($2,112.50 of which was for law clerk fees) on the basis of

written Findings of Fact and Conclusions of Law entered

on April 7, 1981. (See Pet. App. 6 at 6-1—6-2.) In so doing,

the District Court refused to apply the multiplier requested

by respondents. Moreover, it reduced respondents’ orig-

inal request by those costs the District Court found to be be-

yond the intended scope of § 1988.

The Ninth Circuit affirmed the District Court’s award

us reasonable under § 1988. Rivera v. City of Riverside,

679 F.2d 795 (9th Cir. 1982). (See Pet. App. 1) The

Ninth Cireuit reviewed the record in detail and concluded

that the District Court “considered, applied and discussed

(Continued on following page)

from the petition is any report of why and under what circum-

stances injunctive relief did not issue. At one of seveiui hearings

on respondents’ motion for attorney’s fees and in tne face of

petitioners’ efforts to reduce the fees because injunctive relief

had not been granted, respondents’ counsel advised the Dis-

trict Court that injunctive relief had not been sought at the close

of trial because requesting that petitioners be enjoined to “obey

the law’ seemed too broad. The District Court nonetheless ob-

served, sua sponte, that “if you [respondents] had asked for it

against some of the officers | think | would have granted it.”

(See Brief in Opposition Appendix A (hereinafter Opp. App.)

at A-2.) The Distri¢t Court’s receptiveness to a request for equi-

table relief is understandable in light of its written findings re-

garding the nature and severity of the constitutional depriva-

tions proven at trial. (See, e.g., Pet. App. 2 at 2-5, and 2-8.)

the Kerr factors necessary to support the award.” 679

F.2d at 797 (referring to Kerr v. Screen Extras Gu/d, Inc.,

526 F.2d 67 (9th Cir. 1975), which adopted these guidelines

from Johnson v. Georgia Highway Express, Inc., 488 F.2d

714, 717-19 (5th Cir. 1974)). Rejecting petitioners’ argu-

ment that all twelve factors adopted by the Ninth Circuit

in Kerr must be mechanically invoked and discussed, the

Ninth Cireuit repeated that the District Court must and

did consider those factors ‘‘called into question by the case

at hand and necessary to support the reasonableness of the

fee award.” 679 F.2d at 797.

Petitioners sought a Writ of Certiorari on January

13, 1982 and respondents filed a Brief in Opposition. On

May 16, 1983 this Court decided Hensley v. Eckerhart, 461

U.S. 424 (1983). On May 31, 1983 this Court granted pe-

titioners’ writ, and vacated and remanded the case for

reconsideration in light of Hensley. The Court took the

saine action on every case on its docket related to the is-

sues decided in Hensley. See, 461 U.S. 951-952 (1983)

Respondents’ request for reasonable attorney’s fees

and costs was reconsidered by the District Court. ‘l'wo

hearings were held by the District Court. In preparation

for the first hearing of October 24, 1983 (Pet. App. 2 at 2-1),

the District Court reviewed and reconsidered all memor-

anda submitted with respect to the question of attorney’s

fees, including all memoranda submitted after the order

vacating the first award and mandating reconsideration in

light of Hensley. At this first post-remand hearing, pe-

titioners again brought to the District Court’s attention

the same arguments they had raised earlier before the Dis-

trict Court and before the Ninth Circuit on appeal — the

same factually specific arguments they now raise in the

present petition. The District Court listened to these

6

arguments, declared its intention carefully to review the

record, to request additional information if necessary and,

pursuant to Hensley’s mandate, to provide a more explicit

explanation of whether the attorney’s fee award was justi-

fied as reasonable. (Pet. App. 15.)

After this first hearing, the District Court spent a

full six and one half months reviewing the record. (See

Appendix B.) A second hearing was held on June 6, 1984

where arguments were again iterated in light of Hensley’s

standards and the thoroughly reviewed record. On July

26, 1984 the District Court issued comprehensive Findings

of Fact and Conclusions of Law, awarding respondents at-

torney’s fees in the amount of $243,343.75 plus $2,112.50

for fees expended for law clerks, exclusive of interest. (let.

App. 2.) The District Court refused to apply the multi-

plier requested by the respondents, and further reduced

the requested award by those costs the District Court found

to be not contemplated by the statute.

The Ninth Cireuit, finding the case suitable for deci-

sion without oral argument, affirmed the District Court’s

award. (Pet. App. 1 at 1-2.) After reviewing the Dis-

trict Court’s award in light of the record, the Ninth Cireuit

rejected the same arguments petitioners now raise in the

instant Petition. The Ninth Cireuit concluded that the Dis-

trict Court carefully examined the record and correctly

applied the Hensley criteria in arriving at the award and

. justifying the award as reasonable. (Pet. App. 1.) On

August 5, 1985, the Ninth Cireuit denied petitioners’ mo-

tion to stay the mandate. On August 15, 1985, Justice

Rehnquist temporarily stayed the mandate of the Ninth

Circuit, and on August 28, 1985, Justice Rehnquist issued

an in chambers opinion staying the mandate pending dis-

position of the petition for certiorari.

ARGUMENT

Reasons for Denying the Writ

I. Both The District Court And The Court Of Ap-

peals Correctly Applied Hensley On Remand.

On May 16, 1983 this Court granted petitioners’ Writ

for Certiorari and remanded the present case “for further

consideration in light of Hensley.” After remand, the

District Court held two additional hearings on the appli-

eation of Hensley — on October 24, 1983 and on June 5,

1984. Before each hearing, the District Court reviewed all

new memoranda filed by both petitioners and respondents,

and the record that pre-existed the remand order. Indeed

the District Court took a full six and one-half months be-

tween the first and second hearing to review the entire

record and to reconsider the attorney’s fee award in light

of the Hensley standards. (Opp. App. B) On July 26,

almost two months after the second post-remand hearing,

the District Court issued comprehensive Findings of Fact

and Conclusions of Law, specifically applying the Hensley

criteria and explaining the reasons for the award clearly

and precisely as required by this Court. Hensley v. Ecker-

hart, 461 U.S. 425, 437 (1983).

Finding that all claims by respondents were based on

a common core of facts and involved related legal theories,

the District Court concluded that respondents “achieved a

level of success . .. that makes the total number of hours

expended by counsel a proper basis for making the fee

award.” (Pet. App. 2 at 2-10.) The District Court also

found that the “central and most important issue in this

case was whether there was police misconduct committed

by and condoned by defendants. Plaintiffs established this

8

misconduct to the satisfaction of the jury and the Court.”

(Pet. App. 2 at 2-6.)

In response to petitioners’ contention that the amount

of monetary damages alone necessarily detracts from the

significance of the overall relief obtained, the District

Court made a series of interrelated findings. First, the

District Court explained the size of the award:

In the opinion of the Court, the size of the jury award

resulted from (a) the general reluctance of jurors to

make large awards against police officers, and (b) the

dignified restraint which the plaintiffs exercised in

describing their injuries to the jury. For example, al-

though some of the actions of the police would clearly

have been insulting and humiliating to even the most

insensitive person and were, in the opinion of the

Court, intentionally so, plaintiffs did not attempt to

play up this aspect of the case.

(See Pet. App. 2 at 2-5—2-6.)

The District Court then made additional related find-

ings on the nature and the degree of overall success and

the relationship of this suecess to the reasonable hours

expended :

Counsel for plaintiffs achieved excellent results for

their clients, and their accomplishment in this case was

outstanding . . . Defendants had engaged in lawless,

unconstitutional conduct, and the litigation of plain-

tiffs’ case was necessary to remedy defendants’ mis-

conduct. Indeed, the Court was shocked at sone of

the acts of the police officers in this case and was con-

vineed from the testimony that these acts were moti-

vated by a general hostility to the Chicano community

in the area where the incident occurred. The amount

of time expended by plaintiffs’ counsel was clearly

reasonable and necessary to serve the public interest

as well as the interests of plaintiffs in the vindication

of their constitutional rights.

(See Pet. App. 2 at 2-7—2-9.)

9

These written Findings of Fact and Conclusions of

Law are consistent with the District Court’s statements

made at the second post-remand hearing — a hearing held

after months studying the complete record. For example,

the District Court observed:

And I think having looked at the whole file and hav-

ing looked at that case on five or six occasions that

now we will have to have some findings and I want to

tell you how I feel about this.

I feel that the award of fees that I gave was en-

tirely appropriate and I went through again and look-

ed at ali of the verdicts and I have considered in depth

what kind of work went into the case and I am even

inclined to think that there should have been a multi-

plier. I didn’t give a multiplier because I took into

consideration the fact that not all of the people who

were sued were the subject of a jury verdict. The fact

that the verdicts were not extremely large is due to the

restrained nature in which that case was tried and I

have said that before and I repeat it now, the result

in my opinion was excellent. You can hardly say that

they were not successful when they had 37 jury ver-

dicts and in each one of those jury verdict groups the

City of Riverside was found responsible, was held

liable and there were five police officers in the group

against whom the verdicts were rendered and I am just

absolutely convinced that the total accomplishment of

this case was quite extraordinary.

I have tried several civil rights violation cases in

which police officers have figured and in the main they

[police officers] prevailed because juries do not bring

in verdicts against police officers very readily nor

against cities. The size of the verdicts against the in-

dividuals is not at all surprising because juries are

very reluctant to bring in large verdicts against police

officers who don’t have resources to answer those ver-

dicts. The relief here I think was absolutely complete.

I think every one of the claims that were made were

related and if you look at the common core of facts

that we had here that you had total success.

(See Opp. App. B at B-4 & B-5.)

10

Later at that same hearing, the District Court returned

to these same interrelated factors:

I think that here the time was well spent . . . The in-

stitutional behavior involved here in my opinion had

to be stopped and in my opinion nothing short of hav-

ing a lawsuit like this would have stopped it. It re-

flected a total lack of professionalism on the part of

the police there and the improper motivation which

appeared as a result of all this seemed to me to have

pervaded a very broad segment of police officers in

the department.

(See Opp. App. B at B-7.)

The Court of Appeals, in turn, reviewed whether or

not the District Court had followed Hensley by focusing on

the significance of the overall relief obtained in relation to

the hours reasonably expended on the litigation. (See Pet.

App. 1 at 1-7.) The Court of Appeals concluded that “this

relationship is precisely what the district court focused

on,” and that the District Court “found a reasonable re-

lationship between the extent of that suecess and the

amount of the award.” (See Pet. App. 1 at 1-7.) Because

the District Court “clearly and precisely explained the

grounds for its decision” (Hensley, 461 U.S. 424, 437

(1983)), the Court of Appeals concluded that the award

of fees was well within the District Court’s discretion.

(See Pet. App. 1 at 1-10.)

In response to petitioners’ argument that the fee

award and the monetary damages must be strictly pro-

portional, the Court of Appeals concluded that the legisla-

tive history of § 1988 offered no support for this position.

Citing the Senate Report that accompanied the Senate bill

which became The Civil Rights Attorney’s Fees Awards

Act of 1976, the Court of Appeals observed that an award

11

of attorney’s fees under § 1988 should “not be reduced be-

cause the rights involved may be non-pecuniary in nature.”

(See Pet. App. 1 at 1-8.)* Rather, § 1988’s purpose is to en-

sure “effective access to the judicial process.” (See Pet.

App. 1 at 1-8.) Thus, while the size of the damage award

is relevant to the determination of the signficance of the

overall relief, the fee award itself need not bear a a strict

or mechanical proportionality to the monetary damages

recovered.

In Hensley, this Court insisted that a “request for at-

torney’s fees should not result in a second major litigation.”

461 U.S. 437 (1983) The complaint in this case was filed

in 1976 about an event that occurred in August 1975. The

jury rendered verdicts for respondents and against peti-

tioners in 1980. Reasonable attorney’s fees were first

awarded by the District Court in April 1981. ‘Twice the

Court of Appeals has reviewed the District Court’s work

and twice found it responsible and within the District

Court’s discretion.

Both the fee-awarding and the fee-reviewing courts

have done precisely what this Court ordered on remand.

In such a case, it seems precisely contrary to this Court’s

decision in Hensley to permit a transparently meritless

petition for Writ of Certiorari to delay further respond-

ents’ legitimate claim to reasonable attorney’s fees. Writs

of Certiorari were not designed to be deployed to that end.

4 The passage from the Senate Report of which this statement

is a part follows: “It is intended that the amount of fees award-

ed under [§ 1988] be erned by the same standards which

prevail in other types of equally complex Federal litigation, such

as antitrust cases [,] and not be reduced because the rights in-

volved may be nonpecuniary in nature. S.Rep. No. 1011, 94th

Cong. 2d Sess. 6 (1976); Accord H. R. Rep. No. 1558, 94th Cong.,

2d Sess. 8 (1976).

12

II. The Conflict Between Circuits Asserted By Pe-

titioners Does Not Exist.

The conflict asserted by petitioners does not exist.

Indeed, it is difficult to discern precisely what conflict

petitioners are attempting to describe. Petitioners cite

only three cases from other circuits in the body of their

argument — two First Cireuit cases (Grendel’s Den, Inc.,

v. Larkin, 749 F.2d 945 (1st Cir. 1984) and Wojtkowski v.

Cade, 725 F.2d 127 (1st Cir. 1984)) and one Eleventh Cir-

cuit ease (Ramos v. Lamm, 713 F.2d 546 (11th Cir. 1983) ).°

Presumably these cases represent “conflicting” views on

the application of Hensley, though petitioners fail to identi-

fy explicitly the conflict in question. Yet a review of these

three cases emphatically contradicts any claim, implicit or

explicit, that conflict exists between either the First or the

Eleventh Cireuit and the Ninth Cirecuit’s application of

Hensley in the present case.

All three Cireuits view their respective opinions as

entirely consistent with a straightforward application of

5 Petitioners also cite a fourth case, the Ninth Circuit's deci-

sion in White v. City of Richmond, 713 F.2d 458 (9th Cir. 1983).

Petitioners do not cite this recent Ninth Circuit case because it

conflicts with either the First Circuit’s or the Eleventh Circuit's

decision; indeed, petitioners think White agrees with these two

other circuits in requiring a District Court to scrutinize time

records before awarding reasonable fees. (Pet. 49-51.) In the

instant case, the Ninth Circuit required the District Court to

scrutinize the record in a manner consistent with White and the

mandate of both the First and Eleventh Circuits. Moreover, the

Ninth Circuit responded specifically to petitioners’ claims that

respondents were being compensated for hours unreasonably

expended on the litigation: the Ninth Circuit expressly con-

cluded that the District Court’s findings regarding what hours

were reasonably expended were themselves supported by the

record. (Pet. App. 1 at 1-6, 1-7.) It is also noteworthy that both

the Ninth Circuit and the District Court rely on White in ex-

plaining and justifying their decisions. (See Pet. App. 1 at 1-12,

n.3; 2 at 2-12 and 2-13.)

13

Hensley. (For example, compare Grendel’s Den, 749 F.. 2d

at 950, and Ramos, 713 F.2d at 551-52 with Pet. App. 1 at

1-3 and 1-4.) All these cases stress the care with which a

District Court must examine the record in evaluating the

hours reasonably expended in light of Hensley’s standards.

(For example, compare Grendel’s Den, 749 F.2d at 950-51

and Ramos, 713 F.2d 553-555 with Pet. App. 1 at 1-5; 1-6;

1-9; at 1-12, n.3.) All three underscore that a District

Court must explain specifically the reasons supporting its

award — most importantly addressing the explanations

that Hensley outlines as most critical. (For example, com-

pare Grendel’s Den, 749 F.2d at 950 and Ramos, 713 F.2d

at 552 with Pet. App. 1 at 1-5, 1-6, 1-7.) In establishing

these uniform guidelines, all three Circuits retain for them-

selves the authority to review awards for abuses of dis-

cretion while at the same time accepting Hensley’s pro-

nouncement that district courts are uniquely suited to make

fee award determinations “in view of the district court’s

superior understanding of the litigation and the desirabil-

ity of avoiding frequent appellate review of what esential-

ly are factual matters.” Hensley v. Eckerhart, 461 U.S.

424, 437 (1983).°

6 Petitioners repeatedly insist that respondent’s counsel did

not exercise “billing judgment’ as required by Hensley, and,

for example, submitted hours that were not contemporaneous-

ly recorded, were duplicative and were excessive in light of the

task. (See e.g., Pet. at 25, 39-42.) These fact-specific arguments

were made twice before both the District Court and the Ninth

Circuit, were refuted by respondents in every instance and ul-

timately twice rejected by the Courts as lacking merit in light

of the record and Hensley’s standards. To the extent that the

First or Eleventh Circuit reached different conclusions about

analogous assertions in the cases cited by petitioners, the con-

clusions reflect the difference between the records before those

Circuits and the record twice before the Ninth Circuit. The dis-

tinction in outcomes regarding similar assertions made in mark-

edly different contexts does not reveal a conflict between Cir-

suits in the application of Hensley.

14

Perhaps as an unintended admission of the obvious

absence of conflict between Circuits in the apvlication of

Hensley, petitioners attempt to contrive conflict by mis-

characterizing what happened before the Ninth Circuit.

For instance, petitioners assert that the Ninth Circuit

“made no mention whatsoever of the most critical issues

raised by petitioners .. .” (Pet. at 27.), which “is not to

say that the Ninth Circuit specifically rejected these con-

tentions. They simply did not deal with any of them.”

(Pet. at 27.) Yet a reading of the Ninth Circuit’s opinion

reveals that it carefully considered each of petitioners’

arguments and, in light of the entire record, found them

lacking merit. (See e.g., Pet. App. 1 at 1-6, 1-7, 1-8, 1-9.)

Petitioners also repeatedly claim that the Ninth Cir-

cuit ignored their contention that the District Court’s work

demonstrated that the District Court “{had] no intention

of being bound by the decisions of the Supreme Court”

(Pet. at 30), and the District Court had no “intention of

even looking at the record” (Pet. at 61.) In this asser-

tion, petitioners doubly mischaracterize the record. The

Ninth Cireuit specifically grounded its decision on the Dis-

trict Court’s careful adherence to Hensley and the factors

relevant in explaining how the award is reasonably related

to the outcome of the proceedings. (See e.g., Pet. App. 1 at

1-5 and n 2 at 1-12.) Furthermore, the Ninth Circuit ex-

pressly rejected as “meritless” petitioners’ contention that

the District Court never reviewed the record. (Pet. App.

1 at 1-9.)’

7 At the first hearing after this Court’s remand, the District

Court specifically noted that it had reviewed all papers sub-

mitted. (See Pet. App. 15 at 15-2.) At the second post-remand

(Continued on following page)

15

Petitioners’ position can only amount to an insistence

that the Ninth Cireuit’s unfavorable response to their as-

sertion of a series of specific factual arguments constitutes

an application of Hensley in conflict with the unspecified

decisions of other circuits. This position is untenable as

a basis for seeking a Writ of Certiorari, and its lack of

merit likely weighed in the Ninth Circuit’s decision to deny

petitioners’ motion to stay issuance of the mandate. The

Ninth Cireuit responsibly reviewed the careful work of a

District Court which applied Hensley consonant with the

approaches of all other circuits in awarding attorney’s

fees under $1988. This Court should not grant the pe-

tition in this case on the basis of an asserted conflict that

does not exist.

III. The Ninth Circuit Correctly Considered Mone-

tary Damages As A Factor In The Determina-

tion Of The Relationship Between The Hours

Reasonably Expended On The Litigation And The

Total Success Achieved.

A. The Ninth Circuit’s Rejection of Mechanical

Proportionality Is Consistent with Hensley

and the Decisions of Other Circuits.

Petitioners’ failure to articulate and document conflict

between Circuits should itself be reason to deny the peti-

tion in this case. But the very generality of petitioners’

framing of the Question Presented permits one to find

(Continued from previous page)

hearing, six and one-half months later, the District Court di-

rectly alluded to its (1) having ordered the entire record from

permanent storage, and (2) having reviewed the “whole file’

and “having looked at the case on five or six occasions.” (See

Opp. App. B at 2, B-4.) The transcript of this second hearing was

neither included in petitioners’ appendix nor referred to in its

petition.

16

that nearly any related issue is “raised” by the petition be-

fore this Court. Thus a substantive inadequacy in seeking

a Writ of Certiorari unfortunately may be transformed in-

to a convenient reason to graft onto this case issues not

raised in the petition itself.

Among the many issues one might press as encom-

passed by petitioners’ vague articulation of the Question

Presented is whether an award of attorney’s fees under

§ 1988 must bear a particular proportional relationship to

the amount of monetary damages recovered. While peti-

tioners do not raise this question and do not cite cases de-

fining a conflict on this issue, respondents will address this

question in the event it is urged sua sponte as an alterna-

tive basis for the granting of the Writ.

Petitioners did argue, before the District Court and

the Court of Appeals, that the fee award must be strictly

proportional to the damage award. On remand, both

Courts specifically addressed this argument precisely in

the manner outlined by Hensley. In those cases where —

as both lower courts found in the present case — all claims

are based on a common core of facts and involve related

legal theories, Hensley directs the fee-awarding and fee-

reviewing courts’ attention to the relationship between the

hours reasonably expended and the significance of the

overall relief obtained. Hensley, 461 U.S. 424, 435-436.

In accordance with this directive, both the District Court

and the Court of Appeals considered the size of the damage

award as a relevant factor in determining the significance

of the overall relief obtained, and both Courts concluded

that an award of fees for all hours reasonably expended by

respondents’ counsel was justified. See Argument I, supra.

In rejecting a mechanical test under which a 4 1988

fee award must be strictly proportional to the amount of

a

— ~—————

- —— @

17

monetary damages, the courts below simply followed the

guidelines established by this Court in Hensley. There the

Court expressly rejected any mathematical proportionality

test — either between issues raised and issues prevailed

upon, or between relief sought and relief obtained.* “Such

a ratio,” this Court observed, “provides little aid in de-

terming what is a reasonable fee in light of all the relevant

factors.” Hensley, 461 U.S. at 436, n.11. Thus, “a plain-

tiff who failed to recover damages but obtained injunctive

relief, or vice versa, may recover a fee award based on all

hours reasonably expended if the relief cbtained justisied

that expenditure of attorney time.” Id. Just as it rejected

a mechanical proportionality test, this Court also rejected

that there is “precise rule or formula for making these

determinations.” Jd at 436. In awarding fees, a district

court “necessarily has discretion in making this equitable

judgment.” Jd at 437.

In following Hensley’s rejection of a mechanical pro-

portionality test, and in applying Hensley’s multi-factor

reasonable relationship test to evaluate the work expended

in light of the overall results obtained, the Ninth Circuit’s

decision in the present case is consistent with the decisions

of other circuits which have addressed this question. The

Seventh Circuit, for example, in a case in which the district

court granted $1.00 in nominal damages along with an in-

junction and a declaratory judgment, held that the nominal

nature of damages is a factor to be considered in determin-

ing the amount of a fee award, but it agreed with the First

Cireuit that a nominal damage award does not itself re-

quire an equally nominal attorney’s fee award. See Lynch

8 Or, as this Court also described its holding, it is not ““neces-

sarily significant that a prevailing plaintiff did not receive all

the relef requested.” Hensley, 461 U.S. at 436, n.11.

18

v. City of Milwaukee, 747 ¥'.2d 423, 428-429 (7th Cir. 1984) ;

Perez v. University of Puerto Rico, 600 F.2d 1, 2 (1st Cir.

1979).

The Second Circuit, following Lynch, has also re-

jected a mechanical proportionality test and has held that

‘*{a]warding attorney’s fees in a manner tying that award

to the amount of damages would subvert the statute’s goal

of opening the court to all who have meritorious civil

rights claims.’’ DiFilippo v. Morizio, 759 F.2d 231 (2d

Cir. 1985), quoting Lynch v. City of Milwaukee, 747 F.2d

at 429. The Second Circuit in DiFilippo, like the Seventh

Circuit in Lynch, refused to adopt a mechanical standard

that would either increase or reduce fees simply because

a monetary damage ‘‘award viewed in some absolute terms

is high or low.’’ 759 F.2d at 235. The Second Circuit

instead focused its attention, in accordance with Hensley,

on the relationship between the fee award and the overall

results obtained in the ease. In part. because the record

revealed that the particular damage award before it was

consistent with other awards in fair housing cases, the

Second Cireuit concluded that the plaintiffs ‘‘won an un-

ambiguous victory . . . and their attorneys should recover

a fully compensatory fee,’’ id.—a determination perfectly

consistent both with Hensley and with the Ninth Circuit’s

decision in the present case. (See Hensley, 461 U.S. at 435;

Pet. App. 1 at 1-6 and 1-7).

Similarly, in Ramos v. Lamm, 713 F.2d 546 (10th Cir.

1983) the Tenth Circuit rejected a mechanical proportion-

ality approach as contradictory to Hensley’s more context-

ualized foeus on the relationship between work expended

and overall results achieved. In Ramos, a case challeng-

ing the constitutionality of prison conditions, the plaintiff

19

class obtained declaratory and injunctive relief; it did not

seek monetary damages. See Ramos v. Lamm, 639 F.2d

599, 562 (10th Cir. 1980). In light of the total success

achieved, plaintiffs’ attorneys were awarded $709,933.50

in attorney’s fees and $32,782.43 in expenses allowable as

costs under $1988.

Defendants challenged the fee award as an abuse of

discretion. Addressing the question of propertionality,

the Tenth Circuit observed:

Some courts have reduced fees when the thrust

of the suit was for monetary recovery and the recov-

ery was small compared to the fees counsel would have

received if compensated at a normal rate for hours

reasonably expended. We reject this practice. The

amount of the monetary recovery is not as significant

as the policy being vindicated. Section 1988 was de-

signed to encourage private enforcement of the civil

rights laws. Parties acting as private attorneys gen-

eral should be reasonably compensated for their vin-

dication of the » ublic policy even if they themselves

do not receive a large financial benefit. If the court

has the impression that a plaintiff spent an excessive

amount of lawyer time and simply overwhelmed the

defendant in a case in which the litigation onslaught

was unnecessary, the court should consider this factor

in determining what amount of time was reasonably

expended in the litigation. It should not be expressed

as a requirement that the fee have a particular rela-

9 The original pro se complaint filed in November 1977 by

Fidel Ramos did seek compensatory and punitive damages.

The amended complaint filed by the National Prison Project

and the A.C.L.U. Foundation of Coloraao on behalf of Ramos

and the plaintiff class in February 1978 sought only declara-

tory and injunctive relief and dropped the claim for compen-

satory and punitive damages. Ramos v. Lamm, 639 F.2d 559,

562 (10th Cir. 1980).

20

tionship to the amount of the monetary recovery.

713 F.2d 557.'°

Thus, the Tenth Cireuit in Ramos—like the Seventh

Circuit in Lynch, the Second Cireuit in DiFilippo and the

Ninth Cireuit in the present case—has recognized that,

while the amount of monetary damages is a factor to be

considered in determining the reasonableness of a fee

award under $1988, this single factor should not be trans-

formed into a requirement of strict proportionality be-

tween damages and fees. Such a mechanical requirement

would be contrary to Hensley, in which this Court express-

ly instructed the lower courts not to apply a ‘‘mathematical

approach,’’ but rather to consider all relevant factors in

evaluating the relationship between the hours expended

and the overall results achieved. Both the District Court

and the Court of Appeals followed these instructions in

the present case.

10 Out of context, the first two sentences of this passage per-

haps could be interpreted to reject the relevance of monetary

damages to the determination of total success achieved in the

Hensley formulation. The third sentence in the passage helps

to correct any potential misinterpretation, describing the size

of the monetary award as “‘not as significant as the policy being

vindicated.” Had the Tenth Circuit meant to foreclose consid-

eration of the size of damage awards, this third sentence far

more likely would have declared that the size of such awards

was “irrelevant to’’ or “impermissible to consider in” the de-

termination of the total success achieved. Even if one considers

the language of the first two sentences ill-chosen, however, the

entire passage inescapably reveals that the Tenth Circuit, like

Hensley and like the Ninth Circuit, was not prohibiting consid-

eration of the size of monetary awards as a factor in the Hensley

formulation. The Tenth Circuit was rejecting the practice of

tying fee awards to damage awards rather than to the overall

results as required by Hensley. What matters to the Tenth Cir-

cuit is the relationship between total success achieved and rea-

sonable hours expended, not some mechanical approach to or

strict proportionality between the size of damage awards and

the size of fee awards.

21

In sum, the Ninth Circuit’s rejection of a mechanical

proportionality requirement does not conflict either with

Hensley or with the decisions of other Circuits, and is not

a basis upon which the Writ should be granted.

B. The Ninth Circuit’s Rejection of Mechanical

Proportionality is Consistent With the Intent

of Congress.

In uniformly rejecting the proposition that a $1988

fee award must be proportional to the amount of damages,

the decisions of the Ninth Circuit and other circuits are in

full accord with the intent of Congress. As this Court

recognized in Hensley, the legislative history demonstrates

that the purpose of §1988 was to insure ‘‘effective access

to the judicial process”’ in civil rights cases. 461 U.S. at

429, quoting H. R. Rep No. 1558, 94th Cong., 2d Sess. 1

(1976).

Congress was well aware that such access had not

been available to persons like the respondents in the pres-

ent case. In our society, those whose civil and constitu-

tional rights are the most likely to be violated are those

who typically are least able to pay the large attorney’s

fees and expenses that are routinely billed to more afflu-

ent citizens and businesses who wish to enforce their eco-

nomic rights through the judicial process; ‘‘[b]ecause a

vast majority of the victims of civil rights violations can-

not afford legal counsel, they are unable to present their

cases to the courts.’’ H. R. Rep. No. 1558 at 1. Moreover,

Congress found that, in cases against governmental bodies

and public officials such as the petitioners here, a variety

of factors ‘‘preclude or severely limit the damage rem-

edy.’’ Id. at 8.

22

The legal system compounds these problems by trans-

lating important civil and constitutional rights into rela-

tively small monetary amounts, thereby depriving prospec-

tive civil rights plaintiffs of the alternative route of access

to the courts that conventional contingent fee arrangements

generally provide to prospective personal injury plaintiffs.

As Congress recognized, prior to the enactment of §1988

‘‘private lawyers were refusing to take certain types of

civil rights cases because the civil rights bar, already

short of resources, could not afford to do so.’’ Jd. at 2.

Congress enacted §1988 for the express purpose of cor-

recting the systemic problem that had made it economically

infeasible for private lawyers to accept and litigate such

eases. Jd.

Thus, although Congress acknowledged that one fac-

tor among many to be considered in determining a reason-

able fee under $1988 is ‘‘the amount received in damages,

if any,’’ H. R. Rep. No. 1558 at 8."' Congress ‘‘intended

that the amount of fees ... be governed by the same

standards which prevail in other types of equally complex

federal litigation, such as antitrust cases [,] and not be

reduced because the rigths involved may be nonpecuniary

in nature.’’ S. Rep. No. 1011, 94th Cong. 2d Sess. 6 (1976).

The Ninth Circuit and other circuits have effectuated this

11 As the House Report stated: “The courts have enumerated

a number of factors in determining the reasonableness of awards

under similarly worded attorney's fee provisions. In Johnson

v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974),

for example, the court listed twelve factors to be considered,

including the time and labor required, the novelty and difficulty

of the questions involved, the skill needed to present the case,

the customary fee for similar work and the amount received

in damages, if any... .” H.R. Rep. No. 1558 at 7.

23

intent by refusing to apply mechanical proportionality re-

quirements that would once again put the judicial process

beyond the economic reach of those who most need its

protection.

ry

Vv

CONCLUSION

For the foregoing reasons, the petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

Geratp P. Lorez*

Stanford Law School

Crown Quadrangle

Stanford, CA 94305

(415) 497-2796

Patrick O. Parrerson, JR.

UCLA School of Law

405 Hilgard Avenue

Los Angeles, CA 90024

(213) 825-8249

Attorneys for Respondents

*Counsel of Record

as

eed ns) =

a=.

APPENDIX A

A-1

EXCERPTS FROM REPORTER’S TRANSCRIPT

OF PROCEEDINGS MONDAY,

JANUARY 19, 1981:

THE COURT: * ° *

The question of injunctive relief actually was some-

thing | wasn’t going to address before the Court and I can

tell you quite simply why not. While it was clearly not a

question brought to the jury, since the jury has nothing

to do with granting equitable relief.

THE COURT: Nothing, no.

MR. LOPEZ: — we thought hard and long about pre-

cisely what entitlements we had for any of our plaintiffs

with respect to some kind of future equitable relief.

But the bottom line of what we would ask for is vir-

tually always denied by a court because a court properly,

I think, says that for the future we will assume that all

police officers will abide by the law, including the Con-

stitution.

So that we brought nothing and have pursued nothing;

indeed because we too agree with the Court that that will

happen.

THE COURT: Now let me just say one thing for the

record, and that is: That the plea was in there for injunc-

tive relief. There wasn’t any reason to pursue it, I sup-

pose. But if you had asked for it against some of those

officers I think I would have granted it.

MR. LOPEZ: I hope I can accept that as a proposi-

tion that says that in the event that anything happens in

the future concerning those officers or our clients in the

A-2

City of Riverside, that this Court will remain available

for any appropriate equitable relief.

THE COURT: I would agree with you that there is

a problem about telling the officers that they have to obey

the law. But if you want to know what the Court thought

about some of the behavior, it was—it would have war-

ranted an injunction. There cannot be a piece of evidence

more appalling than the piece of evidence about the officer

singing from the helicopter. There can’t be any behavior

more reprehensible than that, in my opinion.

Now I will not comment on some of the rest of it be-

cause part.of the rest of the behavior at the time that this

occurred was due to the fact that they didn’t know what

they were doing and they had nobody to tell them what

they should do. There was no direction and they just

simply lost their heads, totally. That is my opinion from

the evidence.

I will not go on to castigate the officers, but in my

opinion this was really a very sad day for that police

department.

APPENDIX B

B-1

(p. 1) UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HONORABLE MARIANA R. PFAELZER,

JUDGE PRESIDING

No. CV 76-1803-MRP

SANTOS RIVERA,

Plaintiff,

vs.

CITY OF RIVERSIDE,

Defendant.

REPORTER’S TRANSCRIPT OF PROCEEDINGS

Los Angeles, California

Wednesday, June 6, 1984

BETH E. CULBERTSON, CSR

Court Reporter Pro Tempcre

United States Courthouse

312 North Spring Street

Los Angeles, California 90012

(p. 2) APPEARANCES:

For the Plaintiff:

PATRICK O. PATTERSON, JR.

Acting Professor of Law

UCLA School of Law

405 Hilgard Avenue

Los Angeles, California 90024

For the Defendant:

JONATHAN KOTLER

Kotler & Kotler

15910 Ventura Boulevard, Suite 1010

Encino, California 91436

Also Present:

Judge Roy B. Cazares

B-2

(p. 3) INDEX

Proceedings Page

Status conference var 4

(p. 4) LOS ANGELES, CALIFORNIA;

WEDNESDAY, JUNE 6, 1984;

3:45 P.M.

THE CLERK: Civil 76-1803, Santos Rivera versus

City of Riverside. Counsel, please state your names for

the record.

MR. PATTERSON: Patrick Patterson for the plain-

tiffs, your Honor, and also here is Judge Roy Cazares to

answer any questions.

THE COURT: How are you, Judge?

MR. CAZARES: Very well, thank you. Very nice to

see you, your Honor.

MR. PATTERSON: And Gerald Lopez, your Honor,

is a visiting professor at Harvard Law School. He is un-

able to be here.

THE COURT: That is all right.

MR. KOTLER: Jonathan Kotler for the City of

Riverside.

THE COURT: Now I ordered the file from where

it was and I went through the whole file. As you know

the question here that I had was to see how that case ap-

B-3

plied and this is a classic case of satellite litigation which

we are really finding very difficult because I took this

case from another judge, as you know, and in order to

come to the conclusion | have come to, I had to look back

through the file.

Now it is contended here that the fact that you got

summary judgment granted should entitle you to legal

(p. 5) fees and then nothing because you see yourself, Mr.

Kotler, as representing the prevailing parties; don’t you?

MR. KOTLER: Your Honor, that issue as I under-

stood it was disposed of three years ago. We are not

making any claim in the case.

THE COURT: I know that.

MR. KOTLER: We are not claiming that we are pre-

vailing parties with respect to litigation.

THE COURT: What I am saying is that your claim,

in part, is that they did not have success in this litigation

which would warrant the grant of that kind of attorney’s

fees; is that right?

MR. KOTLER: Yes, your Honor.

THE COURT: Well, don’t look so mystified. That

is your position?

MR. KOTLER: I was listening to the Court, your

Honor.

THE COURT: Well then, you state your position.

MR. KOTLER: I agree with the Court’s statement.

I was just listening to what the Court was saying.

THE COURT: I am saying to you that the reason

that you come to that conclusion in part is that a long time

B-4

ago a lot of defendants were let out and in this case the

defendants who remained in did not have substantial ver-

dicts against them; is that right?

6%

(p. 6) MR. KOTLER: I think what we are claiming,

your Honor, is that to the extent that time was put in on

those defendants who were eventually let out of the case

either by summary judgment or otherwise, that the plain-

tiffs can’t be seen to be prevailing parties with respect to

those people.

THE COURT: I know. I know. That is just ex-

actly why [ mentioned the motion for summary judgment.

That figures in the decision; doesn’t it?

MR. KOTLER: Yes, your Honor, but there are other

defendants as well that were subsequently dismissed.

THE COURT: I know.

MR. KOTLER: Yes.

THE COURT: And I think having looked at the

whole file and having looked at that case on five or six

occasions that now we will have to have some findings and

I want to tell you how I feel about this.

I feel that the award of fees that I gave was entirely

appropriate and I went through again and looked at all

of the verdicts and I have considered in depth what kind

of work went into the case and I am even inclined to think

that there should have been a multiplier. I didn’t give a

multiplier because I took into consideration the fact that

not all of the people who were sued were the subject of a

jury verdict. The fact that the verdicts were not (p. 7)

extremely large is due to the restrained nature in which

that case was tried and I have said that before and I re-

B-5

peat it now, the result in my opinion was excellent. You

can hardly say that they were not successful when they

had 37 jury verdicts and in each one of those jury verdict

groups the City of Riverside was found responsible, was

held liable and there were five police officers in the group

against whom the verdicts were rendered and I am just

absolutely convinced that the total accomplishment of this

case was quite extraordinary.

I have tried several civil rights violation cases in which

police officers have figured and in the main they prevailed

because juries do not bring in verdicts against police of-

ficers very readily nor against cities. The size of the ver-

dicts against the individuals is not at all surprising be-

cause juries are very reluctant to bring in large verdicts

against police officers who don’t have the resources to

answer those verdicts. The relief here I think was abso-

lutely complete. I think every one of the claims that were

made were related and if you look at the common core of

facts that we had here that you had total success. That

is the way I see it. There was a problem about who was

responsible for what and that problem was there all the

way through to the time that we concluded the case. Some

of the officers couldn’t agree about who did what and it is

(p. 8) not at all surprising that it would, in my opinion,

have been wrong for you not to join all those officers since

you yourself did not know precisely who were the officers

that were responsible.

Now the fact they were let our later may or may not

have been a correct ruling on the part of Judge Ferguson.

I have great admiration of him. He is an absolutely su-

B-6

perb judge but we all grant summary judgments knowing

that they are often reversed in the appellate court. I

don’t purport I could do so, but having looked at the file,

I am not passing judgment on the people who were let out

of the case. I am just saying that it seems to me there

was total success here.

Now I have touched on the fact that it was never ac-

tually clear what officer did what until we had gotten

through with the whole trial.

I have mentioned to you that I did not think—and I

told you this before—I did not think that the plaintiffs

exaggerated their injuries. They had great dignity I

thought when they testified and on that basis and the basis

that juries I think are reluctant to bankrupt police officers

—and well they ought to be—I think that it is totally un-

derstandable what the size of the verdicts were but there

were 37 of them and let’s not forget that.

(p. 9) If you remember there were seven for Jerome

Rivera and there were four for Santos Rivera, four fo:

Larabee, four for the boy Daniel, Jennie Rivera got four;

Lee-Roy Rivera had three, Enrique Flores had five and

Manuel Flores had six.

I can never be brought to see that as a case in which

you did not totally prevail. You had great success.

I also think it was very difficult to go through the

issues in that case.

It took two of my clerks one whole week to just sort

out the jury instructions which I gave them with notes

and comments that I myself made.

B-7

I know you would have had a very difficult time if

you had been any of those plaintiffs finding somebody to

take the case. I know that. I am well aware of how re-

luctant people are. I am asked to get counsel for cases

all the time. I can’t find counsel for them and I think

that here the time was well spent and I want to pause just

for a minute because I want you to do a set of findings—

proposed findings.

The institutional behavior involved here in my opinion

had to be stopped and in my opinion nothing short of hav-

ing a lawsuit like this would have stopped it. It reflected

a total lack of professionalism on the part of the police

there and the improper motivation which appeared as a

(p. 10) result of all of this seemed to me to have pervaded

a very broad segment of police officers in the department.

I tried on several occasions to settle this case. I was

unable to do so.

I am aware that we had an exchange about the settle-

ment offer before, but I remember bringing the whole

family here. I tried my best to get somebody to listen

about an adequate offer. No adequate offer was ever sug-

gested. You know, I understand one later on occurred but

that was well after you had spent thousands of dollars

on preparation for trial, I am sure.

JUDGE CAZARES: Just on that point, if I may—

THE COURT: Yes.

JUDGE CAZARES: —I was surprised when I read

that because I don’t recall any offer being made prior to

trial in that amount and then I recall leaving the court-

B-8

room after the jury began their deliberations and he made

an offer in the corridor but that was after the trial was

concluded.

THE COURT: Well, let me tell you that my memory

of this meeting with this family—although I must say I

see so many people | sometimes forget—but I will never

forget that occurrence and it seems to me that the

expenditure of funds here became absolutely necessary.

There was not any possible way that you could have

avoided (p. 11) putting in that amount of time and finally

I say to you that I really believe that if you were in an-

other courtroom and you were talking to another judge,

you would be perfectly justified in asking for a multiplier.

I looked at those services. I looked at the file. It seems

to me that we are not just talking about anything except

a successful lawsuit in which the jury very properly bal-

anced the interests of the City of Riverside and the police

department and came out with the size verdicts that it did.

Mr. Kotler, I will never believe that under Hensley

this is not an appropriate award. I tell you that with re-

spect to taking out some of the police officers, I think if

you had a difference of opinion about some of them who

were let out so now I will tell you I am not going to change

my mind. I am going to let the award stand but I do

want to have Mr. Patterson prepare, based on what I have

said today, a set of findings that will finally put an end

to all of this under Hensley.

Now I tell you you can say to yourself, Judge Cazares,

that you did a very good job and you can say that with

respect to Mr. Lopez as well. I do not intend to change

my mind. Now you submit the finding to me and I will

B-9

go over them and if they are in conformity with — I

ordered the orginal file. I am keeping it until I get (p 12)

the findings.

When will you do that?

MR. PATTERSON: Well, your Honor, I would like

to have a copy of the transcript, of the Court’s comments

today.

THE COURT: You won’t be too long doing that?

THE REPORTER: One week.

THE COURT: Now you notice when you get this

transcript I have not come out with something that was

canned. I did not come out here to read from something.

I was, when I went through this, just looking at my notes.

I feel very strongly about this case and I feel very

strongly about all litigation involving police officers. They

have a very hard job to do and I do not want them to be

penalized in any way nor the City of Riverside and that

is why you didn’t get the multiplier, but I certainly think

one was warranted. You had absolutely total success.

Now you take the transcript and you may use that

as a guide but the findings will be in a position so that

the appellate court can look at them and see if I have

adequately analyzed what is going on here.

MR. PATTERSON: Yes, I understand that, your

Honor. I will attempt to do it. I would not need more

than two weeks after getting the transcript.

THE COURT: All right. The transcript will be (p 13)

ready in one week. It will be three weeks then.

B-10

MR. KOTLER: Your Honor, will we have time to

respond to the proposed findings?

THE COURT: No, because I will tell you what I

will do. I will set a hearing date for you to come in and

do it orally. I do not intend to have — you know, that

is probably not fair to you, but you see, I have kept them

from having this so far for months and months and months. |

Now it took me a month to get this out of storage and they

couldn’t find the verdicts. Now we are going to bring an

end to this.

All right. You have as long as you want. You tell

me how much time you want.

MR. KOTLER: Two weeks after I receive the tran-

script.

THE COURT: You set the date by stipulation.

MR. PATTERSON: We can do that, your Honor.

THE COURT: And then you will give me an order

and I will sign that and that will give me some guidance

as to what you want to do. If you want to come in and

discuss it, put that in the order, too, and that will be on

Monday afternoon.

MR. KOTLER: One more matter. As I understand

the Court’s ruling, the Court is going to make an order

awarding the exact same amount of fees that were ordered

previously?

(p 14) THE COURT: Yes.

MR. KOTLER: We have kept our appeal bond on

file. It is still good and in perfect order. If it becomes

necessary to take a further appeal of this matter rather

B-11

than come back into court and post another bond, may I

stipulate that we keep the same bond on file?

THE COURT: Put that in the order, too.

MR. KOTLER: All right.

THE COURT: That is fine.

I want to note something. I think this is terribly un-

fair to keep going up and down through the apellate

court. 1 really think it is very unfair but it is your right

to do it. If I were a city and I had all the money I needed

to finance this to take place I guess | would maybe do that.

I can’t believe that the City of Riverside after what hap-

pened with the facts in this case would not try to get this

worked out, but if what you want is litigation, by golly,

that is what we are going to have.

MR. KOTLER: For the record, your Honor, the

City of Riverside hasn’t paid a penny other than the de-

ductible and that was years ago.

THE COURT: I am very dismayed about this. I

think any fair appellate court that I looked at the facts

of this case would be appalled just as | was appalled and

[ have not had one other case in my courtroom in which

I felt (p 15) that deeply about what took place. This was,

in my opinion, totally wrong behavior for which there is

absolutely no excuse whatsoever. | have never had a set

of facts I felt more deeply about and I did not know at

the time of the settlement conference just how reprehen-

sible the behavior of some of those police officers was

and T am sorry that I had to find out. That’s it.

B-12

MR. PATTERSON: Your Honor, just in response

to the possibility of another appeal, I wanted to advise

the Court that if that does occur we will be coming back

into court for a request for fees.

THE COURT: Do whatever you want to about that.

I just feel this is so terribly unfair, the whole thing. I

think it was, first of all, a bad set of facts, and I think

it is getting worse, so that is my opinion and I have ex-

pressed it.

MR. KOTLER: Thank you.

MR. PATTERSON: Thank you, your Honor.

I certify that the foregoing is a correct transcript from

the record of proceedings in the above-entitled matter.

/s/ Beth E. Culbertson 6-12-84

Official Reporter Date