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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1045

## Text

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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

7 ( Pay:
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7 cess

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

=

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0639%3A1. Public record. Not legal advice.