Petition for Writ of Certiorari — Roberts v. Brea Hospital Neuropsychiatric Center

io us. ate

Vv & 3. 8 12 t a Suprema Court, U.S, ]

{ FILER

No. NOV 15 1989

ANIOL, JR.

IN THE CLERK

Supreme Court of the United States

OcTOBER TERM, 1989

DAWN ROBERTS,

Petitioner,

vs.

BREA HOSPITAL

NEUROPSYCHIATRIC CENTER,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL

FOURTH APPELLATE DISTRICT, DIVISION THREE

PETITION FOR WRIT OF CERTIORARI

FRED L. WRIGHT

Counsel of Record

LAW OFFICES OF FRED L. WRIGHT

1515 Crenshaw Boulevard

Torrance, California 90501

(213) 533-5965

Attorneys for Petitioner

DAWN ROBERTS

Lawyers Brief Service / Legal Printers / (213) 383-4457 / (714) 720-1510

«hs

QUESTION PRESENTED

The issue in this case is whether state courts, in deter-

mining a reasonable attorney fee under 42 U.S.C. §1988,

can refuse to make the objective lodestar calculation,

and instead rely completely on the subjective factors set

forth in Johnson v. Georgia Highway Express, Inc. (Sth

Cir. 1974) 488 F.2d 714.

LIST OF PARTIES

The parties to the proceeding below are the Petitioner,

Dawn Roberts, and the Respondent, Brea Hospital

Neuropsychiatric Center.

a fis

TABLE OF CONTENTS

Page

QUESTION PRESENTED .............0.ee000. i

LIST OF PARTIBS ........ccccccccccceccccce i

LIST OF APPENDICES............cccuuueces iii

TABLE OF AUTHORITIES...........ccceeeee iv

OPINIONS BELOW ...........cccccccccuuuceee 1

JURISDICTION, ....... cia deccemwateteewcek 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED. ..........ccccccece. 2

STATEMENT OF THE CASE ............-- ee. 2

REASON FOR GRANTING THE WRIT......... 6

A STATE COURT MUST APPLY THE

LODESTAR CALCULATION IN DETER-

MINING REASONABLE ATTORNEY’S

FEES UNDER 42 U.S.C. §1988 AND

THE CONTRARY CONCLUSION OF

THE CALIFORNIA COURTS IS IN CON-

FLICT WITH ESTABLISHED AUTHO-

RITY. . o.oo cccs sds ee 6

CONCLUSION ......ccca cen 12

- iii -

LIST OF APPENDICES

APPENDIX 1

ORDER DENYING REVIEW, SUPREME

COURT OF THE STATE OF CALIFOR-

NIA, FILED AUGUST 17, 1989

APPENDIX 2

OPINION, COURT OF APPEAL, STATE

OF CALIFORNIA, FOURTH APPEL-

LATE DISTRICT, DIVISION THREE,

FILED MAY 31, 1989

APPENDIX 3

DECISION, SUPERIOR COURT OF

ORANGE COUNTY, ENTERED MAY 27,

1987

-iv-

TABLE OF AUTHORITIES

Page

Cases

Blanchard v. Bergeron (1989)

ik eo banc ceesesseens 7, 10

Blum v. Stenson (1984)

fo 8 Sree 7, 10

Chalmers v. City of Los Angeles

(9th Cir. 1986) 796 F.2d 1205,

amended 808 F.2d 1373, on remand

Na hace cece Pew ens cecccecs 10

City of Riverside v. Rivera (1986)

oo * Se here eee 7,10

Ewap, Inc. v. City of Ontario (1986)

177 Cal.App.3d 1108, 223 Cal.Rptr. 422........ 6

Hamilton v. Daly

te SB | a ge b> errr 6

Hensley v. Eckerhart (1983)

461 U.S. 424, 76 L.Ed. 240,

PPE Seach we ec bbdacenceadec’ 7, 8, 10

Johnson v. Georgia Highway Express, Inc.

(Sth Cir. 1974) 448 F.20 714... ww cece 8,9

Maine v. Thibotout (1980)

ee ite es ee ee we eee 6

Page

Pennsylvania v. Delaware Valley

Citizens Counsel for Clean Air (1986)

478 U.S. _, 92 L.Ed.2d 439,

a 6 dnc 555 26s euncesvaaunls 8

Serrano v. Unruh (1982)

EE 8S hs dds ore 64 66d oda n kee nan 8

Sokolow v. County of Mateo (1989)

261 Cal.Rptr.520, © Cal.App.3d_.......... 10

Webb v. County Board of Education (1985)

_ Ga ss Oe nda hh caw ks ae eeuee 8

State Statutes

California Welfare and Institutions Code

a ere er f 2

Federal Statutes

Ses ED 6 oc dc sakwausseeaeo eee 2

Ge is SUN 6 aA dk 6 oko kuch aa ee cee 6

ee Sees Se + aa 0 <0 504046840 RO 2, 4-6, 10, 11

a ame ai a i i, i re ie eee ead ve

ae

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1989

DAWN ROBERTS,

Petitioner,

vs.

BREA HOSPITAL

NEUROPSYCHIATRIC CENTER,

Respondent.

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion denying review is printed in Appendix 1.

The opinion of the Court of Appeal of the State of

California, Fourth Appellate District, Division Three, is

printed in Appendix 2. The decision of the Orange

County Superior Court is printed in Appendix 3.

JURISDICTION

The opinion of the Court of Appeal was filed May 31,

1989.

oH

Review in the California Supreme Court was denied

on August 17, 1989.

The jurisdiction of this Court is invoked under

Section 1257(a) of Title 28 of the United States Code.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves how a reasonable attorney's fee

under 42 U.S.C. §1988 is to be calculated in a state

court.

STATEMENT OF THE CASE

This Petition for Certiorari arises from an action

concerning the propriety of the involuntary commitment

of petitioner, Dawn Roberts, to Brea Hospital Neuro-

psychiatric Center located in Brea, California.’

In 1983, Ms. Roberts was arrested by Officer Randall

Toburen of the Huntington Beach Police Department

during a dispute between them, and was taken to Brea

Hospital for psychiatric evaluation and treatment

pursuant to California Welfare and Institutions Code

Sections 5150, et seg. These Sections are commonly

known as the Lantherman-Petris-Short Act, and allow

the involuntary psychiatric hospitalization and treatment

of certain individuals in California.

1 The facts set forth in this Petition are supported by the record

submitted to the California Court of Appeal in Dawn Roberts v. Brea

Hospital, Appeal No. 600512.

tin

Brea Hospital accepted Ms. Roberts for evaluation

and confined her at that institution. A day later, Dr.

Seawright Anderson certified Ms. Roberts as a candidate

for an additional 14-day period of confinement and

psychiatric treatment. He did so without an evaluation

by a second physician, as required by the Act. Instead,

he ordered a nurse to certify Ms. Roberts for further

confinement. This action resulted in the involuntary

confinement of Ms. Roberts at Brea Hospital for an

additional four days, until she secured her release by

way of Writ of Habeus Corpus issued July 19, 1983.

Suit was filed against Officer Toburen, his employer,

the Huntington Beach Police Department, contending the

arrest violated Ms. Roberts’ civil rights. Claims were

also made against Dr. Anderson, Dr. Record and respon-

dent Brea Hospital, contending they failed to follow the

requirements of the Lantherman-Petris-Short Act when

confining Ms. Roberts, resulting in unlawful confine-

ment and treatment, in violation of her civil rights.

Dr. Anderson was dismissed from the case by way of

summary judgment, and appeal was taken, the judgment

reversed, and a settlement reached.

Brea Hospital Neuropsychiatric Center, however,

maintained throughout the underlying litigation that its

actions were proper in every respect and refused to offer

any monies in settlement. Discovery and pre-trial mat-

ters proceeded for four years, and the case went to trial

against Brea Hospital, Randall Toburen and the City of

Huntington Beach.

The trial lasted three weeks. By way of a special

verdict, the jury found that Brea Hospital violated the

Act by failing to have two physicians evaluate Ms.

Roberts, and certify probable cause. It concluded this

was a common practice at Brea Hospital, an institution

which accepts many involuntary patients. Compensatory

yp

and punitive damages in the sum of $10,000 and $1,000,

respectively, were awarded Ms. Roberts. The jury also

decided that Officer Toburen had probable cause to

detain Ms. Roberts, awarded judgment in his favor, and

consequently that of the City of Huntington Beach.

Pursuant to the authority of 42 U.S.C. Section 1988,

Ms. Roberts then moved the trial court for an award of

attorney’s fees against Brea Hospital in the sum of

$55,613.25. The request was based on 335.75 hours of

attorney time at $135.00 per hour, and 205.75 hours of

law clerk time at $50.00 per hour. The moving papers

set forth in detail the services performed, the hours

expended, and the basis for the hourly rate of which

compensation was sought. The request included time

spent during the course of three years on discovery,

including five days spent by Brea’s counsel deposing

Ms. Roberts; time spent in depositions of other per-

cipient and expert witnesses; time spent in court at re-

quired conferences; time spent in appellate work with

respect to claims against Brea; time spent for the

voluminous correspondence amongst and between coun-

sel, and time spent in a three-week jury trial. Counsel

for Ms. Roberts excluded time spent prosecuting claims

against Dr. Anderson and Dr. Record, and for time spent

making unsuccessful motions.

Ms. Roberts additionally requested that the award be

augmented by a factor of 1.5, given the difficulty of the

case, the contingent nature of her recovery and the finan-

cial risk counsel undertook in representing her.

Finally, a request for expert fees in the total sum of

$5,125.00 was made.

The trial court agreed that Ms. Roberts was the pre-

vailing party and entitled to an award of attorney’s fees.

It refused, however, to calculate a lodestar figure in

determining the appropriate amount. It also failed to

_

=

rule on the issues of augmentation and expert fees.

Instead, it awarded a total fee of $5,000 on a series of

subjective findings, among them, that there existed a

contingency fee contract between Ms. Roberts and her

attorney, providing for a “customary” 33-1/3% or 40%

fee; that Ms. Roberts prevailed in a “marginal” issue;

and that the relief awarded ($11,000) was “marginal”

against Ms. Roberts’ request to the jury.

Ms. Roberts appealed this award to the Court of

Appeal of the State of California, Fourth Appellate Dis-

trict, Division Three. In a split decision filed May 31,

1989, and over the strong dissent of Justice Wallin, the

Court of Appeal upheld the trial court’s decision. It

ruled that a California Superior Court is not required to

calculate a lodestar figure in determining a reasonable

fee under 42 U.S.C. Section 1988. The court further

held that Brea’s policy of allowing only a single doctor

to certify individuals for 14-day involuntary commit-

ments (though in direct violation of the requirements of

the Act) was a mere technical violation of the law. The

court, therefore, concluded that given the small monetary

recovery, and the “technicality” of the violation, $5,000

was adequate recompense for three years’ work, includ-

ing the three-week trial.

Review was sought by the California Supreme Court,

who on August 17, 1989, declined to review the matter.

A

REASON FOR GRANTING THE WRIT

A STATE COURT MUST APPLY THE

LODESTAR CALCULATION IN DETER-

MINING REASONABLE ATTORNEY’S

FEES UNDER 42 U.S.C. §1988 AND THE

CONTRARY CONCLUSION OF THE

CALIFORNIA COURTS IS IN CONFLICT

WITH ESTABLISHED AUTHORITY.

The Civil Rights Attorney Fee Award Act of 1976

was enacted to encourage private litigants to serve the

public interest by bringing suit to vindicate civil rights.

It allows in an action brought to enforce the provisions

of 42 U.S.C. Section 1983, the court to award the pre-

vailing party, a reasonable attorney fee. 42 U.S.C.

§1988. Such fees are recoverable whether the action is

brought in federal or state court. Maine v. Thibotout

(1980) 448 U.S. 1.°

Because a civil rights litigant is deemed to act as a

“private attorney general” in protecting and preserving

constitutional rights, it has also been recognized that

plaintiffs should recover attorney’s fees as a matter of

course when they prevail, whereas victorious defendants

should recover fees only when the suit was frivolous,

unreasonable, or without foundation. Hamilton v. Daly

(9th Cir. 1985) 777 F.2d 1202.

Thus, where plaintiff. prevails on a Section 1983

claim, attorney’s fees are mandatory, unless special

circumstances would render the award unjust. Ewap,

Inc. v. City of Ontario (1986) 177 Cal.App.3d 1108, 223

Cal.Rptr. 422.

In determining the fee to which a prevailing party is

entitled, this Court has announced certain guidelines and

determined that a lodestar calculation, i.e., the number of

| -7-

hours reasonable expended, multiplied by a reasonable

hourly rate, must be made. Blanchard v. Bergeron

: (1989) U.S. __, 109 S.Ct. 939; City of Riverside v.

| Rivera (1986) 477 U.S. _, 91 L.Ed.2d 466 at 476;

Hensley v. Eckerhart (1983) 461 U.S. 424, 76 L.Ed. 240,

103 S.Ct. 1933.

As first stated in Hensley:

“This calculation provides an objec-

tive basis on which to make an initial

estimate and evaluation of services.”

461 U.S. at 424.

The lodestar figure is presumed to be the reasonabie

fee to which counsel is entitled. Blum v. Stenson (1984)

465 U.S. 886.

In their fee request, counsel for Ms. Roberts set forth

the reasonable hourly rate of attorneys and clerks then

prevailing in the community for similar work performed

by them in representing Ms. Roberts. The requested

figures were established by reference to other reported

cases where the rates awarded were discussed and by

declaration of attorneys as to then prevailing standards

in the community. Brea Hospital did not object to the

rate requested, or otherwise present evidence contradict-

ing the reasonableness of the hourly rate.

Similarly, counsel for Ms. Roberts presented a de-

tailed breakdown of the number of hours he and mem-

bers of his firm expended in litigating the matter. The

time for which the fee was requested was broken down

by dates, hours expended and services performed. Com-

pensation was requested for time spent in research, law

and motion, appellate work, extensive discovery, includ-

ing interrogatories, requests for admissions, depositions;

trial preparation, trial, preparation of the fee request, all

of which is compensable time under the Attorney Fee

— -

=

Act statute. Webb v. County Board of Education (1985)

__ U.S. __, 105 S.Ct. 1923, 1929-30; Serrano v. Unruh

(1982) 32 Cal.3d 621.

The trial court, however, concluded that Ms. Roberts

was only entitled to the sum of $5,000 as attorney’s fees.

But in so doing, the court did not find that the hourly

rate requested by Ms. Roberts was unreasonable. The

court did not strike from the fee request any hours or

services determined to be not reasonably well-spent in

prosecuting the litigation. Instead, the court derived a

figure of $5,000 from a series of findings totally un-

related to the lodestar calculation.

Despite this Court’s mandate of a lodestar calculation,

the California Court of Appeal upheld the refusal of the

trial court to calculate a lodestar figure. The court con-

cluded that under this Court’s decision in Hensley v.

Eckerhart (1983) 461 U.S. 424, it was appropriate for a

state court to ignore the objective lodestar calculation

and rely on the subjective factors set forth in Johnson v.

Georgia Highway Express, Inc. (Sth Cir. 1974) 448 F.2d

714, :

However, this court has repeatedly limited reliance on

the Johnson factors, concluding that they are subsumed

within the lodestar calculation. In Pennsylvania v.

Delaware Valley Citizens Counsel for Clean Air (1986)

478 U.S. _, 92 L.Ed.2d 439, 106 S.Ct. 3088, you stated:

“We further refined our views in Blum

v. Stenson 465 U.S. 886, 79 L.Ed.2d

891, 104 S.Ct. 1541 (1984). Blum

restated that the proper first step in

determining a reasonable attorney’s

fee is to multiply the ‘number of hours

times a reasonable hourly rate.’ /d. at

888, 79 L.Ed.2d 891, 104 S.Ct. 1541.

We emphasized, however, that the

7 ae es ee

-9-

figure resulting from this calculation

is more than a mere ‘rough guess’ or

initial approximation of the final

award to be made. Instead, we found

that ‘when ... the applicant for a fee

has carried his burden of showing that

the claimed rate and number of hours

are reasonable, the resulting product is

presumed to be the reasonable fee to

which counsel is entitled. . . .’

Blum also limited the factors which a

district court may consider in deter-

mining whether to make adjustments

to the lodestar amount. Expanding on

our earlier finding in Hensley that

many of the Johnson factors are

‘subsumed within the initial calcula-

tion’ of the lodestar, we specifically

held in Blum that the ‘novelty’ and

complexity of the issues, ‘the special

skill and experience of counsel’, the

‘quality of representation’, and the

‘results obtained’ from the litigation

are presumably fully reflected in the

lodestar amount... .” 92 L.Ed. at 456.

The foregoing passage teaches that not only is the

lodestar calculation required, once the fee applicant

meets his burden of showing that the rate and number of

hours spent on the claim are reasonable, the number

obtained is presumed to be the fee to which counsel is

entitled. It further teaches that the bulk of the Johnson

factors are included within the lodestar calculation,

among them: the results obtained, the novelty and

complexity of the issues, the special skill and experience

- 10- -

of counsel, and the quality of representation, all factors

upon which the state court improperly relied in this case.

A view that subjective factors can be considered in

lieu of lodestar was also recently expressed by another

California Appeals Court in Sokolow v. County of Mateo

(1989) 261 Cal.Rptr. 520, | Cal.App.3d __. There, in

remanding a case for determination of a reasonable fee

under §1988, the court made no mention of the lodestar

calculation, but instead relied extensively on Hensley,

supra, for the proposition that the decision is one for the

trial court to equitably make; a decision which will not

be disturbed if the court provides a “concise but clear

explanation of its reasons for the fee award, making

clear that it has considered the relationship between the

amount of the fee awarded and the results obtained.” /d.

at 530.

It is submitted that this court in deciding Hensley,

never intended that decision to become justification for a

subjective approach to determining attorney’s fees with-

out regard to the objective approach enunciated therein.

The latter decisions of this Court in Blum, City of

Riverside and Blanchard, supra, all teach that the objec-

tive lodestar calculation is not only required, but

presumed to be the reasonable fee. Nonetheless,

California State Courts are refusing to make a lodestar

calculation in favor of subjectivity.

Not only has this created a split between state and

federal courts in California (See, e.g., Chalmers v. City

of Los Angeles (9th Cir. 1986) 796 F.2d 1205, amended

808 F.2d 1373, on remand 676 F.Supp. 1515) it has

created a roadblock to pursuing such claims in California

State Courts.

As this Court has repeatedly recognized, and so elo-

quently stated in the dissent to the Court of Appeals’

ruling herein:

es

“The continued existence of civil

rights litigation as a protector of indi-

vidual rights and liberties depends

upon the willingness of court and

judges to award reasonable attorney’s

fees to successful litigants, bearing in

mind that attorneys for unsuccessful

litigants bear all of the costs of their

defeat. Without adequate fee awards

even rights now protected by legisla-

tion such as those embodied in the

Lanterman-Petris-Short Act, will be

meaningless because their denial will

not result in effective sanctions. We

should not pay lip-service to the law

while imposing financial starvation on

those who seek to enforce it. . .”

The Congress of this great Nation has seen fit to

allow civil rights actions be brought in state court as

well as federal court. California courts are forcing civil

rights cases into already overburdened federal courts by

refusing to objectively calculate attorney’s fees under 42

U.S.C. §1988. By so acting, the courts are thwarting the

will of Congress and further narrowing remedies of

individuals whose civil rights are violated. It is respect-

fully requested that this Court stop this practice by hold-

ing that fee determinations under 42 U.S.C. $1988, made

in state or federal courts, be determined under the same

objective standards.

-12.-

CONCLUSION

Accordingly, it is requested that this Court issue a

writ and decide the matter in the first instance. Alterna-

tively, it is requested that a writ issue ordering the

California Courts to recalculate the attorney’s fee herein,

first determining a lodestar.

Respectfully submitted,

LAW OFFICES OF FRED L. WRIGHT

BY: FRED L. WRIGHT

Attorneys for Petitioner

DAWN ROBERTS

APPENDIX 1

ORDER DENYING REVIEW

AFTER JUDGMETN BY THE COURT OF APPEAL

Fourth Appellate District, Division

Three, No. G005512, SO 11058

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

SUPREME COURT

FILED

AUG 17, 1989

Robert Wandruff

Clerk

Deputy

DAWN ROBERTS, Appellant

Vv.

BREA HOSPITAL NEUROPSYCHIATRIC CENTER,

Respondent.

Appellant's petitionf or review

DENIED.

Kaufman, J., is of the opinion the

petition should be granted.

1

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APPENDIX 2

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pale on PEGE WAGs IL le PS ee

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA, FOURTH APPELLATE DISTRICT,

DIVISION THREE

ete., et al., MAY 31, 1989

Respondent

DAWN ROBERTS, ) 6005512

) (Case # 42-30-88)

Appellant, ) OPINION

)

vs. ) COURT OF APPEAL

) 4th DIST.

BREA HOSPITAL, ) FILED

)

)

)

)

Appeal from a judgment of the

Superior Court of Orange County,

Robert A. Knox, Judge. Affirmed.

Fred L. Wright for Plaintiff and

Appellant.

Harrington, Foxx, Dubrow &

Canter, Dale B. Goldfarb, Edward R.

Leonard, and Michele Carmeli, for

Defendant and Respondent.

2 &

Plaintiff Dawn Roberts obtained a

modest recovery against but one of a

number of defendants; nevertheless,

she challenges the sufficiency of a

$5,000 attorneys fees award. We

affirm.

I.

Roberts was taken into custody by

a unt ineton Beach police officer on

July 14, 1983, and transported to Brea

Hospital Neuropsychiatric Center for

observation. (Welf. & Inst. Code,

§5150+)1/ after the 72-hour period,

17~Section 5150 provides for prompt

evaluation and treatment of persons

with serious mental disorders. Where

probable cause exists, peace officers

may detain any person who, "as a

result of mental disorder, is a danger

to others, or to himself or herself,

or gravely disabled" and place that

person in a county-designated facility

for an initial 72-hour period for

treatment and evaluation. (Cont'd, pg.

3)

N)

Brea personnel certified her as a

candidate for a 14-day commitment; but

the order was not signed by two

physicians, as required by Welfare and

Institutions Code section 5251.

Instead, Roberts claimed the one

psychiatrist who did evaluate her

ordered a nurse who had not

participated in the examination to

Sign the statutory notice of

certification.

Roberts remained in Brea for

three days under the statutorily

invalid commitment before counsel

secured her release via a writ of

habeas corpus.

(Cont'd from pg. 3) Welf. & Inst.

Code, §5150.) Extended periods

of confinement may follow. (Welf. &

Inst. Code, §§5250 [14 days], 5300 [up

to 90 days].)

She sued the City of Huntington Beach,

the arresting officer, Brea, and two

staff physicians, claiming, among

other things, damages for violation of

her federal civil rights and statutory

attorneys fees (42 U.S.C. §§1983,

1988).

The physicians prevailed on

pretrial motions for summary judgment

and judgment on the pleadings. Ina

jury trial against the remaining

defendants, Roberts was awarded

$10,000 in compensatory damages and

$1,000 in punitive damages against the

hospital only. The jury returned

defense verdicts in favor of the city

and the police officers, finding

probable cause for the detention. The

jury also determined the hospital had

probable cause to admit her initially.

Roberts' counsel filed a motion

4

for attorneys fees under 42 United

States Code Section 1988, requesting a

"lodestar" sum of $55,613.25. 2/ He

also sought to increase that figure by

a factor of 1.5 based on the

difficulty of the case and the

financial risk in representing the

client on a contingent fee basis. The

motion included a request for $5,125

in expert witness fees.

2/ The lodestar figure is calculated

by "'([multiplying] the number of hours

reasonably expended on the litigation

{] by a reasonable hourly rate.'"

(City of Riverside v. Rivera (1986)

477 u.S. 561, 568.) The request by

Roberts' counsel was based on 335.75

attorney hours at $135 per hour and

205.75 hours of law clerk time at $50

per hour. In Rivera the Supreme Court

implicitly approved payment for law

clerk time under section 1988 (id., at

p.565).) According to the attorney's

declaration, "most of the time spent

litigating [] claims [against the

prevailing defendants, i.e., city, the

police officer, and the two physicians

was] eliminated from consideration."

5

The trial court determined

Roberts prevailed on a "marginally

significant issue" and awarded only

$5,000 in attorneys fees. The court

declined to augment the award by any

multiplier or to reimburse Roberts for

expert witness fees.

II.

The United States Supreme Court

has determined that a fee award in a

civil rights action based on the

lodestar formula is “presumed to be

the reasonable fee contemplated by [42

United States Code section] 1988."

(City of Riverside v. Rivera, supra,

477 U.S. at p.568; see also Blum v.

Stenson (1984) 465 U.S. 886, 897.)

Consequently, argues Roberts, the

court's failure to apply this formula

in this case must be viewed as an

abuse of discretion mandating

6

reversal. That contention has already

been rejected by the United States

Supreme Court, however: "Where the

plaintiff has failed to prevail ona

Claim that is distinct in all respects

from his successful claims, the hours

spent on the unsuccessful claim should

be excluded in considering the amount

of a reasonable fee. .. . [And] where

the plaintiff achieved only limited

success, the . . . court should award

only that amount of fees that is

reasonable in relation to the results

obtained." (Hensley v. Eckerhart

(1983) 461 U.S. 424, 440, emphasis

added.) To this end, the Supreme

Court has endorsed a 12-factor test

for determining a reasonable fee in

any particular case. 3/

3/ Congress has approved the factors

analysis, too. (Cont'd, pg. 8)

5

1

The criteria were first set forth in

Johnson v. Georgia Highway Express,

Inc. (5th Cir. 1974) 488 F.2d 714,

717-719 and include the following:

"(1) (T]he time and labor required;

(2) the novelty and difficulty of the

questions; (3) the skill requisite to

perform the legal service properly;

(4) the preclusion of employment by

the attorney due to acceptance of the

case; (5) the customary fee; (6)

whether the fee is fixed or

contingent; (7) time limitations

imposed by the client or the

circumstances; (8) the amount involved

and the results obtained; (9) the

3/ Cont'd. No. 94-1011, Sess., p.6

(1976) and H.R. Rep. No.94-1558, __

Sess., p. 8 (1976).)

experience, reputation, and ability of

the attorneys; (10) the

‘undesirability' of the case; (11) the

nature and length of the professional

relationship with the client; and (12)

awards in similar cases." (City of

Riverside v. Rivera, supra, 477 U.S.

at p.567, fn.3.) Considering these

factors, the $5,000 award in this case

was Clearly reasonable.

The verdict in plaintiff's favor

against the hospital was no surprise,

as the trial court recognized:

Plaintiff only needed to establish by

a preponderance of the evidence that

the hospital failed to satisfy the

Statutory requirements for a 14-day

extended commitment, and proof of that

omission was certainly not difficult

to come by. By contrast, proof of the

liability of the other defendants

9

persistently eluded plaintiff.

Consequently, the degree of success

achieved by Roberts was hardly

significant. Nevertheless, the court

still awarded her attorneys fees which

amounted to almost one-half the jury's

verdict. Applying the rule that

“(flee awards are to be reasonable,

reasonable as billing rates and

reasonable as to the number of hours

spent in advancing the successful

claims" (Blanchard v. Bergeron (1989)

-- U.S. --, -- [109 S.Ct. 939, 946),

emphasis added), we find no error.

Moreover, the jury's monetary

award -- not challenged here by

Roberts -- appears to be within the

_range of reasonable damages for a

technically improper hospital

commitment of three days' duration.

Thus, this case stands in contrast to

10

those where only a token sum was

awarded to redress a widespread

violation of civil rights or to

establish a principle of broad impact.

(See, e.g., City of Riverside v.

Rivera, supra, 477 U.S. at p.576

(warrantless entry by police with use

of unnecessary force when no probable

cause to believe crime was being

committed]; Blum v. Stenson, supra,

465 U.S. 886 [ineligibility for

Supplemental Security Income program

does not automatically terminate

Medicaid benefits].) In this case, a

law designed to safeguard the rights

of mentally disturbed individuals is

already on the books; the only real

issue vis-a-vis Brea was whether it

violated the law and, consequently,

Roberts’ rights. Roberts and her

attorney were after money, not

11

principle; and they appear to have

seriously overvalued her case, since

only one of the defendants was found

liable and the recovery did not even

approach the jurisdictional limit of

the municipal court. Viewed in

perspective, this case was not a

victory for the plaintiff, far from

it. Under these circumstances, we

cannot find the award so unreasonable

as to constitute an abuse of

discretion.

We have studied the United States

Supreme Court's latest examination of

attorneys fees issues in civil rights

cases, Texas State Teachers v. Garland

Indep. School D. (1989) -- U.S. --

[109 S.Ct., 1486), and find it

supports our position. In that case

the court did hold the plaintiff need

not prevail on the so-called "central

12 -

donee ana on alll

issue" in order to be entitled to a

lodestar recovery; but it also

concluded, "The touchstone of the

prevailing party inquiry must be the

material alteration of the legal

relationship of the parties ina

manner which Congress sought to

promote the fee statute. Where such a

change has occurred, the degree of

plaintiff's overall success goes to

the reasonableness of the award under

Hensley, not to the availability of a

fee award vel non." (Id. at p.1493.)

As discussed above, the trial court's

determination was perfectly consistent

with the formula approved in Hensley;

the amount awarded was reasonably

proportionate to plaintiff's limited

success.

Iii.

Roberts next argues the court

13

erred in denying reimbursement for

expert witness fees as out-of-pocket

expenses incurred during trial. (See,

e.g., Laffey v. Northwest Airlines,

Inc. (D.C. Cir. 1984) 746 F.2d 4, 30.)

The Civil Rights Attorney's Fee Awards

Act of 1976 (42 U.S.C. §1988) contains

no specific provision for recovery of

expert witness fees; but whether they

can be recovered in section 1983

actions appears to be an open question

nonetheless. (See Crawford Fitting

Co. v. J.T. Gibbons, Inc. (1987) --

U.S. --, [107 S.Ct. 2494, 2500, £n.1]

(dis.opn. of Marshall, J.).)

Generally, in the absence of a

statute litigants bear these costs,

although courts sitting in equity may

order one party to pay expert witness

fees in certain narrowly defined

instances, e.g., to preserve a common

oo oneaseittatene 14

MD Oe om

fund or to punish a vexatious or

oppressive litigant or where there has

been wilful disobedience of a court

order. (International Woodworkers v.

Champion Intern. (5th Cir. 1986) 790

F.2d 1174, 1176-1177, affd. sub. nom.

Crawford Fitting Co. v. J.T. Gibbons,

Inc., supra, -- U.S. -- [107 S.Ct.

2494].) In all other cases, "absent

explicit statutory or contractual

authorization", courts cannot allow

expert witness fees as costs which

exceed the amounts specified in 28

United States Code section 1821.

(Crawford Fitting Co. v. J.T. Gibbons,

Inc., supra, at p.--- [at p.2499].)

Roberts makes no claim that any of the

recognized equitable exceptions apply;

and, while we have not been provided a

reporter's transcript of the trial,

our examination of the record strongly

15

indicates the expert testimony she

| offered had little, if anything, to do

| with the basis of her recovery. The

trial court properly rejected her

Claim for expert fees.

IV.

Finally, Roberts requests

attorney fees for prosecution of this

appeal. (See Ewap, Inc. v. City of

Ontario (1986) 177 Cal.App.3d 1108,

1118.) Since she has not prevailed,

however, an award of fees would not be

appropriate. :

Judgment affirmed. Respondent

is entitled to costs.

Crosby, Acting P.J.

16

I concur:

Sonenshine, J.

Wallin, J.

I dissent. The majority unfairly

trivializes the successful result

obtained in the trial, and approves an

attorney's fees "award" which is an

insult to counsel. This cavalier

treatment of a claim for attorney's

fees kills, through financial

starvation, the exercise of important

rights under federal law and ignores

recent controlling United States

Supreme Court decisions.

The Legislature enacted the

Lanterman-Petris-Short Act (Welf. &

Inst. Code, §5000 et seq.) "[t]Jo end

the inappropriate, indefinite, and

17

involuntary commitment of mentally

disordered persons ... ." (Welf. &

Inst. Code, §500l(a).) As the

majority notes, the act permits

certification of a person taken into

custody for a 14-day commitment

provided the order has been signed by

two examining physicians. Apparently

Brea Hospital routinely ordered 14-day

commitments based on the evaluation of

one psychiatrist who would then order

a nurse to sign as the second

evaluator. As a result, Roberts was

illegally committed. Presumably many

others less able to assert, or less

aggressive in asserting, their

statutory rights have suffered the

same fate. Roberts' legal victory

should end this practice and protect

the liberty of all citizens

potentially subjected to it. I do not

18

agree that her loss of liberty was

trivial and insignificant merely

because she was able to secure release

after three days. 5

The record discloses Brea

Hospital aggressively defended

Roberts' civil rights action. Her

victory was achieved only after

extensive pretrial proceedings and a

three-week jury trial. Nevertheless,

the majority suggests that an award of

only $5,000 for attorney's fees was

not an abuse of discretion. "The

award bears no rational relationship

to the actual fees incurred, and while

there is nothing in the record to

implicate the use of passion or

prejudice, [I] suspect something was

amiss. The only explanation [I] can

divine for the meager award is the

trial judge's unrealistic view of what

19

FO er OSL rg mes ee pe eres

constitutes a reasonable value for

legal services. An award of

attorney's fees and costs must be

measured by the economics of the

times. Currently, lawyers' minimum

hourly rates far exceed their

predecessors'. In days past the sum

of ($5,000) may have been sufficient

to [prosecute] a lawsuit of this

nature; today it is not." (Hadley v.

Krepel (1985) 167 Cal.App.3d 677,

686-687.)

For more than a generation major

advances in civil rights have been

achieved through litigation in the

State and federal courts. Beginning

with Brown v. Board of Education of

Topeka (1954) 347 U.S. 483 major

Strides toward equal rights for racial

minorities, women and the handicapped,

have been taken through victories won

20

in the courts of this nation. Civil

rights plaintiffs are frequently

unpopular individuals or members of

unpopular groups. They have been

deprived of rights which are

significant but not easily measured in

monetary terms. The continued

existence of civil rights litigation

as a protector of individual rights

and liberties depends upon the

willingness of courts and judges to

award reasonable attorney's fees to

successful litigants, bearing in mind

that attorneys for unsuccessful

litigants bear all of the costs of

their defeat. Without adequate fee

awards even rights now protected by

legislation, such as those embodied in

the Lanterman--Petris-Short Act, will

be meaningless because their denial

will not result in effective

21

sanctions. We should not pay lip

service to the law while imposing

financial starvation on those who seek

to enforce it.

The United States Supreme Court

has recognized that attorney's fees in

Civil rights cases frequently

substantially exceed the actual dollar

amount of any award. For example, in

Riverside v. Rivera (1986) 477 U.S.

561, the court affirmed a fee of

$245,456.25 even though damages of

only $33,350 were recovered. The

Supreme Court expressly rejected the

argument that in cases where monetary

damages are recovered, the fees should

be proportionate to the recovery.

"The amount of damages a plaintiff

recovers is certainly relevant to the

amount of attorney's fees to be

awarded under [42 U.S.C.] §1988.

22

[Citation.] It is, however, only one

of many factors that a court should

consider in calculating an award of

attorney's fees. We reject the

proposition that fee awards under 1988

should necessarily be proportionate to

the amount of damages a civil rights

plaintiff actually recovers." (Id.,

at p.574.) The court went on to

state, "[A] civil rights plaintiff

seeks to vindicate important civil and

constitutional rights that cannot be

valued solely in monetary terms ...

[A] successful civil rights plaintiff

often secures important social

benefits that are not reflected in

nominal or relatively small damages

awards." (Ibid.)

"Because damages awards do not

reflect fully the public benefit

advanced by civil rights litigation,

23

Congress did not intend for fees in

civil rights cases, unlike most

private law cases, to depend on

obtaining substantial monetary

relief." (Id. at p. 575.) In

enacting an attorney's fees provision

for civil rights actions 942 U.S.C.

§1988), Congress determined "that the

private market for legal services

failed to provide many victims of

Civil rights violations with effective

access to the judicial process.

(Citation.]" (Id., at p. 576.)

Part of my disagreement with the

majority, and the trial court, stems

from the apparent acceptance that the

fees awarded to Roberts' attorneys

should be substantially related to the

monetary damages awarded. Congress

has expressly rejected any concept

that fees should somehow be

24

proportioned according to the

recovery. As the Supreme Court noted,

"A rule of proportionality would make

it difficult, if not impossible, for

individuals with meritorious civil

rights claims but relatively small

potential damages to obtain redress

from the courts. This is totally

inconsistent with Congress' purpose in

enacting §1988. Congress recognized

that private-sector fee arrangements

were inadequate to ensure sufficiently

vigorous enforcement of civil rights.

In order to ensure that lawyers would

be willing to represent persons with

legitimate civil rights grievances,

Congress determined that it would be

necessary to compensate lawyers for

all time reasonably expended on a

case." (Id., at p. 578.)

No attorney would be willing to

25

undertake representation of

individuals whose liberty has been

denied for short periods of time, such

as the three days in Roberts' case, if

the fee was dependent upon the amount

of money awarded.

Despite this apparently clear

statement in Riverside, the Supreme

Court waS again recently confronted

with a lower court decision which

erroneously assumed attorney's fees

should somehow be related to the

contingent fee contract between the

plaintiff and counsel. Some language

in Johnson v. Georgia Highway Express,

Inc. (5th Cir., 1974) 488 F.2d 714

also suggested that a fee award should

not exceed the amount that plaintiff

is contractually obligated to pay

counsel. The court held an award of

fees greater than the contingency

26

agreement is not a "windfall" to

counsel, explaining, "Fee awards are

to be reasonable, reasonable as to

billing rates and reasonable as to the

number of hours spent in advancing the

successful claims. Accordingly, fee

awards, properly calculated, by

definition will represent the

reasonable worth of the services

rendered in vindication of a

plaintiff's civil rights claim.

-{] The contingent fee model, premised

on the award to an attorney of an

amount representing a percentage of

the damages, is thus inappropriate for

the determination of fees under

§1988." (Blanchard v. Bergeron (1989)

-- U.S. --, --, [109 S.Ct. 939, 946].)

No one could seriously contend

that any litigated civil rights claim

pursued through a jury trial could be

27

completed with a reasonable fee

expenditure of not more than $5,000.

The award made by the trial court, and

approved by the majority, amounts to a

punishment -- and even an insult -- to

counsel for having the temerity and

courage to undertake a civil rights

- case on behalf of an allegedly

mentally disordered individual. I

would remand this case to the trial

court for a new hearing to determine,

in accordance with controlling Supreme

Court decisions, the reasonable value

of the pretrial and post-trial

attorney's fees and costs, including

those pertaining to this appeal. (See

28

Hadley v. Krepel, supra, 167 Cal.App.3d

/

at p. 687.)?

Wallin, J.

1/ I do agree with the majority's

resolution of the claim for expert

witnesses' fees. The record does not

establish that these fees related to

the successful claims advanced in the

trial court. As the majority notes,

the Supreme Court has apparently left

for future determination the question

of whether expert witness fees are

recoverable when a prevailing party

seeks "a reasonable attorney's fee as

part of the costs" in a civil rights

action. (42 U.S.C. §1988.) While I

believe the Supreme Court will

ultimately conclude those fees should

be recovered by a successful

plaintiff, it is unnecessary for us to

decide the question here.

29

APPENDIX 3

4

:

-

.

IN THE SUPERIOR COURT OF THE STATE OF

CALIFORNIA IN AND FOR THE COUNTY OF

Dept. 4

Court convened at M__ May 27 1987,

present Hon. Robert A. Knox, Judge:

, Deputy Clerk; Deputy

Sheriff; Reporter; and the

following proceedings were had:

42-30-88 ROBERTS VS. BREA HOSPITAL

NEUROPSYCHIATRIC CENTER, ET AL.

Huntington Beach in the amount of

Summary: Total amount stricken in the

amount of $1,579.78 subtracted from

$5,725.78 leaves $4,146.00, the amount

allowed.

Plaintiff's Motion for Award of

Attorney's Fees against defendant

Brea Hospital Neuropsychiatric Center

1

is allowed in the amount_of $5,000.00.

Relative to the basis for the

award of the Court makes the following

findings:

1. That the plaintiff was the

prevailing party in a marginally

Significant issue given the totality

of the issues and the major thrust of

plaintiff's case.

2. That the Court declines to

divide hours worked between the

winning claim and the balance of the

case because of the interrelation of

the issues and the difficulty of

ascertaining what efforts and hours

were devoted to the winning claim.

3. That the questions involved

were not significantly novel or

difficult.

4. That although plaintiff's

counsel represented plaintiff with the

2

competency requisite for the nature of

the case the matter was not requiring

unusual or specialized skills.

5. That no evidence was

presented on the question of whether

plaintiff's counsel was precluded from

other employment by acceptance of this

case.

6. That there was a contingent

fee contract providing for the

customary 33-1/3% or 40% recovery.

7. That there was no evidence as

to the nature and length of the

professional relationship of plaintiff

and her counsel.

8. That the relief obtained was

limited and marginally significant in

comparison with the scope of the

litigation as a whole in that

plaintiff's award for compensatory

damages was $10,000 plus $1,000

=

~)

punitive against her request of

approximately $700,000.

Clerk to mail a copy of this minute

order to each counsel.

ENTERED: 5-27-87

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

Dawn Roberts,

Petitioner,

vs.

Brea Hospital Neuropsychiatric Center,

Respondent.

—

STATE OF CALIFORNIA

~~

2

COUNTY OF LOS ANGELES

Donald A. Johnson, being first duly sworn, deposes and says: I am a citizen of the

United States and a resident of or employed in the county aforesaid. | am over the

age of 18 years and not a party to the said action. My business address is 3550

Wilshire Boulevard, Suite 916, Los Angeles, California 90010. On this date, |

served the within PETITION FOR WRIT OF CERTIORARI on the interested

parties in said action by placing three true copies thereof with first-class postage

fully prepaid, in the United States post office mailbox at Los Angeles, California,

in sealed envelopes addressed as follows:

DALE GOLDFARB, ESQ.

HARRINGTON, FOX, DUBROW & CANTER

30th Floor

611 West 6th Street

Los Angeles, CA 90017

That affiant makes this service, for FRED L. WRIGHT, Counsel of Record, LAW

OFFICES OF FRED L. WRIGHT, Attorneys for Petitioner herein, and that to the

best of my knowledge all the persons required to be served in said action have

been served.

‘

\

OT ie ae

A bithia lh thee Ry —

Donald A. Johnson

/

On November 15, 1989, before me, the undersigned, a Notary Public in and for

said County and State, personally appeared Donald A. Johnson, known to me (or

proved to me on the basis of satisfactory evidence) to be the person whose name is

subscribed to the within instrument, and acknowledged to me that he executed the

1 Mihoa Will,

Notary Public in and for

LCS ANGELES COUNTY ; said county and state

My comm. expires NOV 30, 1990 :

~~, ~~ awa wo wows

Lawyers Brief Service / Legal Printers / (213) 383-4457 / (714) 720-1510

Witness my hand and official seal.

OFFICIAL SEAL

Theodore Matsuo Wilden

=