Order Transferring Enterprise District Case

    IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989 

RUFUS. E. CUNNINGHAM, Petitioner,

vs.

COUNTY OF LOS ANGELES, et al., Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

NINTH CIRCUIT

Robert Mann, Counsel of Record 
Attorney at Law 
1416 Second Street 
Santa Monica, CA 90401 
(213) 395-1294

Richard Eiden 
Attorney at Law 
550 Vista Way, Suite 407 
Vista, CA 92083 
(619) 940-1919

Attorneys for Petitioner



1A

QUESTIONS PRESENTED

1. May attorney fees be denied a prevailing civil 
rights plaintiff under the Civil Rights Attorney’s Fees 
Award Act of 1976 (amending 42 U.S.C. § 1988) because 
a court concludes, with t any further elaboration, that the 
"balance of equities" disfavors such award?

2. Does the rule of Hensley v. Eckerhart, 461 U.S. 
424 (1983), requiring district courts to provide "a concise 
but clear explanation of its reasons for the fee award," 
apply to decisions of courts of appeals completely denying 
fees to successful civil rights plaintiffs?

3. Is the failure to prevail against all defendants in 
an action seeking only money damages a "special 
circumstance" justifying the denial of fees incurred 
prosecuting successful claims?

V-



A 111

TABLE OF CONTENTS
Page

QUESTIONS PR ESEN TED ................................................ i

LIST OF PA R TIE S.............................................................. ii

TABLE OF AU TH O RITIES..........................................v-vi

OPINIONS B E LO W .......................................................... 1-2

JURISD ICTION.....................................................................2

STATUTE IN V O LV ED ................................................... 2-3

STATEMENT OF THE CASE ..................................... 3-6

REASONS FOR GRANTING THE W R IT .................... 7

L The Ninth Circuit’s "balance of equities" doctrine for 
denying fees to prevailing civil rights plaintiffs (a) conflicts 
with the rule that a prevailing plaintiff "should ordinarily 
recover an attorney’s fee unless special circumstances 
would render such an award unjust" and (b) is so vague as 
to be meaningless, promote uncertainty, and work injustice. 
.............................................................................................7-10

II. There Exists A Conflict Within The Ninth Circuit 
Regarding What Constitutes "Special Circumstances" Which 
This Court Should Resolve.
................................................................................................10



* V

TABLE OF AUTHORITIES

Cases:

Bonnes v. Long,

Page

651 F.2d 214 (4th Cir. 1981) 
Borunda v. Richmond,

F.2d (9th Cir. 1989),

9

89 Daily Journal D.A.R. 11494
Bradley v. Sch. Bd. o f City of Richmond,

10

416 U.S. 696 (1974) 
City o f Riverside v. Rivera,

7

A ll  U.S. 561 (1986) 13, 14
El Club Del Barrio v. United Community Corporation,

735 F.2d 98 (3d Cir. 1984) 
Ellwest Stereo Theater, Inc. v. Jackson,

8

653 F.2d 954 (5th Cir. 1981) 
Grendel’s Den, Inc. v. Larkin,

8

749 F.2d 945 (1st Cir. 1984) 
Hall v. Hall,

11

738 F.2d 718 (6th Cir. 1984) 
Hensley v. Eckerhart,

8

461 U.S. 424 (1983) 
Hutto v. Finney,

7, 10, 11, 12

U.S. 678, 693 (1978) 
Lenard v. Argento,

7

699 F.2d 874 (7th Cir. 1983) 
Mammano v. Pittston Company,

8

192 F.2d 1242 (4th Cir. 1986) 
McCann v. Coughlin,

11

698 F.2d 112 (2d Cir. 1983) 
Monell v. Department o f Social Services,

8

436 U.S. 658 (1978)
New York Gaslight Club, Inc. v. Carey,

13

447 U.S. 54 (1980) 7, 9



1

IN THE SUPREME COURT OF THE UNITED STATES

O ctober Term 1989

RUFUS E. CUNNINGHAM, Petitioner, 

v.

COUNTY OF LOS ANGELES, et al., Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

NINTH CIRCUIT

The petitioner Rufus E. Cunningham respectfully 
prays that a writ of certiorari issue to review the judgment 
and second amended opinion of the United States Court 
of Appeals for the Ninth Circuit, entered in the above- 
entitled proceeding on June 20, 1989.

OPINIONS BELOW

The order of the United States District Court for 
the Central District of California is not reported. It is 
reprinted in the appendix hereto, A-l through A-17, infra.

The Court of Appeals’ original opinion is reported 
at 859 F.2d 705 (1988). It is reprinted in the appendix 
hereto, A-18 through A-34, infra. On March 3, 1989, the 
Court of Appeals amended the opinion. The March 3,



3

action or proceeding, by or on behalf of the United States 
of America, to enforce, or charging a violation of, a 
provision of the United States Internal Revenue Code, or 
title VI of the Civil Rights Act of 1964, the court, in its 
discretion, may allow the prevailing party, other than the 
United States, a reasonable attorney’s fee as part of C . 
costs.

STATEMENT OF THE CASE

Petitioner is a peace officer employed by the 
California Department of Insurance. In September, 1985, 
he instituted this damage action pursuant to 42 U.S.C. 
§1983. The complaint alleged that on September 24, 1984, 
defendant Los Angeles County Deputy Sheriffs arrested 
petitioner and searched his car in violation of his rights 
under the Fourth Amendment. He further alleged that he 
was a black man and that the Los Angeles County Sheriffs 
Department has a custom, policy and practice of racial 
discrimination against Blacks.

The seven defendants were the deputies who 
actually arrested petitioner, the sergeant present at the 
scene who approved petitioner’s arrest and transportation, 
the sergeant at the station who approved petitioner’s 
booking, the Sheriff of Los Angeles County, and the 
County itself.

The Sheriffs and County’s unopposed motion for 
summary judgment was granted. Before trial, the District 
Court dismissed the complaint against the sergeant who 
approved the booking and one deputy who, although 
present at the scene of the arrest and the author of the 
arrest report, did not directly participate in petitioner’s 
arrest.



5

against the defendants who eventually settled.4 The 
District Court fixed the lodestar figure at 3/7th of $28,000, 
$12,000. Then the district court cut the lodestar by $4,500, 
leaving a fee of $7,500. Then the district court imposed 
Rule 11 sanctions of $5,000, later reduced to $4,719, 
leaving a total to p +itioner of about $2,500.

The Ninth Circuit Court of Appeals held that the 
imposition of sanction was improper, and that the cut of 
the fee from the "lodestar" amount of $12,000 to $7,500 
was improper. However, it upheld the cut from the 
requested amount, $28,000, to $12,000. The court stated: 
"But far from an arbitrary slashing of the lodestar amount 
by the percentage of defendants dismissed, the court 
analyzed the importance of each defendant to 
Cunningham’s overall case."5 (Appendix, A-25.)

The Ninth Circuit, while recognizing that "1988 fees 
are ordinarily available to compensate attorneys for 
successful litigation of their fee applications, including work 
on appeal," denied petitioner both fees and costs on 
appeal. (Appendix, A-39.)

Initially, this denial was without any explanation 
whatsoever. (Court of Appeal Opinion, Appendix A-34; 
see also 859 F.2d at 714.) After Petitioner’s first petition

4 Excerpt of Record pages 192-195.

5 A s can be seen from the District Court Order, this claim is 
inaccurate. There is nothing in the District Court Order suggesting that 
it thought that the dismissed defendants were important to petitioner’s 
case. The fees were reduced by 4/7ths. The District Court justified the 
reduction by saying, "As there were seven defendants named in the 
complaint and only three remaining at trial, it is clear that a substantial 
amount of effort was directed to defendants against whom no recovery 
was obtained." Appendix, A-10.



7

REASONS FOR GRANTING THE WRIT

I.

The Ninth Circuit’s "balance of equities" 
doctrine for denying fees to prevailing civil 
rights plaintiffs (a) conflicts with the rule 
that a prevailing plaintiff "should ordinarily 
recover an attorney’s fee unless special 
circumstances would render such an award 
unjust" and (b) is so vague as to be 
meaningless, promote uncertainty, and work 
injustice.

Prevailing civil rights plaintiffs "should ordinarily 
recover an attorney’s fee unless special circumstances 
would render such an award unjust." Newman v. Piggie 
Park Enterprises, Inc., 390 U.S. 400, 402 (1968); see also 
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); Northcross 
v. Board o f Education o f Memphis, 412 U.S. 427, 428 
(1973).

Virtually all alleged "special circumstances" asserted 
before this Court have been rejected. For example, fee 
awards to counsel for prevailing plaintiffs are proper even 
though: plaintiffs are state-funded entities, Washington v. 
Seattle Sch. Dist. No. 1, 458 U.S. 457, 487 n.31 (1982); 
plaintiffs were represented for free by a public interest 
organization, New York Gaslight Club, Inc. v. Carey, 447 
U.S. 54, 70-71 n.9 (1980); defendants acted in good faith, 
Hutto v. Finney, 437 U.S. 678, 693 (1978); Newman v. 
Piggie Park Enterprises, Inc., 390 U.S. 400, 401-02 (1968); 
the applicable fee shifting statute became effective after 
most of the litigation had occurred, Hutto v. Finney, 437 
U.S. 678, 694 n.23 (1978); Bradley v. Sch. Bd. o f City of



9

damages);7 Sanchez v. Schwartz, 688 F.2d 503 (7th Cir. 
1982) (plaintiffs bright prospects of recovering substantial 
damages); Bonnes v. Long, 651 F.2d 214 (4th Cir. 1981) 
(allegedly provocative statements by plaintiffs and their 
counsel), cert, denied, 455 U.S. 961 (1982). Nor does the 
fact that the case may have been "close" on the question 
of the sufficiency of the evidence justify a denial of fees. 
As one court noted in this connection, only "close" cases 
generally go to trial; the others usually settle. Robinson v. 
Moreland, 655 F.2d 887 (8th Cir. 1981).8

The "balance of equities" doctrine espoused by the 
Ninth Circuit is a wide open door through which any claim 
of "special circumstances" could pass with ease. Yet, this 
Court has repeatedly held that the discretion to deny fees 
is exceedingly "narrow." New York Gaslight Club, Inc. v. 
Carey, supra, at 68 (1980); Newman v. Piggie Park 
Enterprises, supra, at 402-03 (1968); Washington v. Seattle 
Sch. Dist., supra, at 487 n.31. The "balance of equities" 
standard is not "narrow" at all. It has virtually no 
meaning. Between whom or what is the balance? What 
did it mean in this case? How are trial courts to interpret 
its meaning? What guidance does it provide future 
litigants?

7 • • •According to the District Court, the damages petitioner suffered 
as a result of the violation were "not a lot." (Additional Excerpt of 
Record, page 230, line 22.)

o

It bears noting that the District Court opined, before trial, that 
petitioner’s probability of success was "awful." (Excerpt of Record, page 
031, line 13.) After trial, the District Court believed that petitioner’s 
"constitutional rights were infringed." (Additional Excerpt of Record, 
page 230, line 5.) Also, the District Court said, "It’s alarming how many 
legal constitutional concerns that incident raises." (Additional Excerpt 
of Record, page 234, line 25 et seq.)



11

This mandate has been uniformly applied by lower 
courts: "Conclusory statements" concerning reasonableness 
are insufficient, Grendel’s Den, Inc. v. Larkin, 749 F.2d 945 
(1st Cir. 1984); the court must "articulate its reasons," 
Mammano v. Pittston C om paq . 792 F.2d 1242, 1246 (4th 
Cir. 1986); the court must state the "basis" for its 
"conclusion," Southerland, v. International Longshoremens’ 
Local 8, 845 F.2d 796, 801 (9th Cir. 1987); fees may not 
be denied to a successful civil right plaintiff "without 
specifically stated grounds for denial," Unemployed Workers 
Organizing Committee v. Batterton, A ll F. Supp. 509 (D. 
Maryland 1979).

Clearly, the conclusory statement that the "balance 
of equities" disfavors the award of attorney fees would not 
pass muster under Hensley v. Eckerhart. Neither this 
Court, nor any other court, nor any litigant could possibly 
fathom what the factual basis for this conclusory allegation 
is.

There are compelling reasons to require courts of 
appeal as well as district courts to provide clear, factual 
explanations for the denial of fees to successful civil rights 
plaintiffs. Fairness to litigants, consistency of decision and 
effectiveness of review all require it. The Ninth Circuit’s 
"balance of equities" approach informs neither the present 
nor any future litigants when fees will be awarded and 
when not. Without some factual explanation, it is 
impossible to know whether the Ninth Circuit’s view of 
the "balance of equities"9 is even remotely similar to that

o
In Unemployed Workers Organizing Committee v. Batterson, A ll 

F. Supp. 509, 513, the District Court observed that "the Act does not 
approve an equitable theory for awarding attorneys fees; rather it 
provides a statutory basis for their award, largely as an incentive to



13

"important" to a plaintiffs case, is a subversion of the 
intent of Congress, as recognized by this Court.

In a damage action, a particular defendant might be 
important if that defendant is the only one with sufficient 
assets to pay an award. That is hardly the problem here. 
In California, pursuant to California Government Code 
§815.2, the employing public entity, in this case the County 
of Los Angeles, must indemnify its employees for liability 
based on compensatory damages. The County of Los 
Angeles, although its summary judgment motion was 
granted, funded the settlement here. Even if California 
Government Code § 815.2 did not exist, it is highly 
unlikely that the three defendants against whom petitioner 
prevailed would not be able to satisfy his judgment. 
Certainly, there is no evidence in this record that they 
could not. Under these circumstances, to speak of 
particular defendants as being "important to plaintiffs 
overall case" is plainly without justification.

This issue is important because it arises in 
numerous civil rights cases. It is essential that a civil 
rights plaintiff name the correct police officer as a 
defendant. Liability is not automatically imputed to the 
public entity. Monell v. Department o f Social Services, 436 
U.S. 658 (1978). Frequently, a trial is required to 
determine which of many potential defendants is 
responsible. For example, In City o f Riverside v. Rivera, A ll 
U.S. 561 (1986), the trial court dismissed plaintiffs’ claims 
against twenty-seven of thirty-two defendants. Yet this 
Court quoted with approval the statement of the district 
court, "’it would, in my opinion, have been wrong for you 
not to join all those officers since you yourself did not 
know precisely who were the officers that were 
responsible.’" Id. at 570-71.



A-l

UNITED STATES DISTRICT COURT 

CENTRAL DISTRICT OF CALIFORNIA

RUFUS E. CUNNINGHAM,

Plaintiff,

vs.

COUNTY OF LOS ANGELES,
SHERMAN BLOCK, Sheriff of 
Los Angeles County, ROBERT 
BIRDSALL, RICHARD PAYNE,)
SGT. BRUSBY, SGT E.R. )
PRICE, and RICHARD PAPP, )

)
Defendants. )

____________________________________)

FACTUAL AND PROCEDURAL BACKGROUND

The defendants, deputy sheriffs Payne, Papp, and 
Birdsall, asserted that when they arrested Rufus 
Cunningham on September 24, 1984, they had probable 
cause. They claim that they had responded to a radio call 
that a fight was occurring at Santa Fe Springs Park and that 
some of the fight participants had guns. When they arrived 
at the park, the defendants say that some people leaving the 
park told them that two black men had guns. A second 
group of people allegedly told them that they had seen one 
of the black men put a gun in his car under the front seat.

)
)
)
)
) ORDER
)
)
)
)

FILED
OCT-21987

CLERK. U S DISTRICT COURT 
CENTRAL DISTRICT OF CALIFORNIA 

BY DEPUTY



r A-3

- five L.A. County deputy sheriffs, Sherman Block (Sheriff 
of L.A. County), and L.A. County - with unconstitutional 
search and seizure and arrest without probable cause. The 
parties settled on $5,000.00, the agreement explicitly 
allowing plaintiffs counsel to seek fees and costs pursuant 
to 42 L'.S.C. 1988 as the prevailing party. Plaintiff now 
seeks his attorney’s fees: $26,120.00 for work on the merits, 
and $3,037.50 for work on attorney’s fees motions and a 
motion regarding why sanctions should not be imposed on 
him.

In the court’s view, the evidence at trial reflected a 
reasonable judgment call on the part of the officers 
especially in light of the information they received upon 
entering the park. While they might have more thoroughly 
checked out Cunningham’s story in the park before 
questioning him briefly at the Sheriffs station, the pressure 
of the unruly crowd influenced their decision. In any event, 
even examining the evidence in the light most favorable to 
the plaintiff, the case was marginal, even against the settling 
defendants.

DISCUSSION

INTRODUCTION: The Kerr Guidelines

District courts are authorized by 42 U.S.C. § 1988 to 
award a reasonable attorney’s fee to prevailing parties in 
civil rights litigation.1 As asserted in Maher v. Gagne. 448

1 A party victorious on a Civil Rights statutes is entitled to recover 
an attorney’s fee "unless special circumstances would render an award 
unjust." Christiansburg Garment Co. v. Equal Employment Opportunity 
Commission. 434 U.S. 412, 417 (1978). However, the Supreme Court’s 
explicit approval of the test comprised of the twelve Johnson/Kerr factors 
leaves "special circumstances" a very broad term. As stated in Henslev v.



A-5

to be rigid in its application of the guidelines.2 *

According to Kerr, an award of attorney’s fees should 
be computed according to the following guidelines: (1) the 
time and labor involved; (2) the novelty and difficulty of 
the questions involved,’ (3) the skill requisite to perform 
the legal service properly; (4) the preclusion of other 
employment by the attorney due to acceptance of the case;
(5) the customary fee; (6) whether the fee is fixed or 
contingent;4 (7) time limitations imposed by the client or 
the circumstances; (8) the amount involved and the results 
obtained; (9) the 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; (12) awards in similar cases. Kerr. 526 F.2d at 70.

2 In Martinez v. Idaho First National Bank. 755 F.2d 1376 (9th Cir. 
1985), the court ruled that a district court that specifically mentions only 
three of the Kerr factors in its decision has not abused its discretion. 
Toombs v. Leone. 777 F.2d 465, 472 (9th Cir. 1985), further found, ”[t]hat 
the court did not proceed ritualistically through Kerr twelve factors is not 
fatal to its imposition of a sanction of attorney’s fees." See Rothfarb v. 
Hambrecht. 641 F.Supp. 71, 73 (N.D.Cal. 1986); Moore v. Jas. H. 
Matthews & Co.. 682 F.2d 830, 838 (9th Cir. 1982).

See- also Copeland v. Marshall. 641 F.2d 880, 890 (D.C. Cir. 
1980)(en banc)(factors redundant and imprecise and thus not rigidly 
applied).

•y

Novelty does not seem to be an active "consideration" in the Ninth 
Circuit. The U.S. Supreme Court decision in Blum v. Stenson. 465 U.S. 
886, 898 (1984) concluded that the novelty and complexity of a lawsuit 
may not be used to enhance a fee, and the Ninth Circuit ruling in 
Teitelbaum v. Sorenson. 648 F.2d 1248 (9th Cir. 1981) found, for policy 
reasons, that novelty cannot be used to reduce an attorney’s fee award.

4 In this regard, Eiden admitted that he was advanced $4,000 in fees 
and costs by his client. Under their arrangement, it appears that counsel 
will not have to return that fee (See Plaintiffs Proposed Findings of Fact, 
par. 127).



A-7

relevant community." Blum v. Stetson. 465 U.S. at 895. As 
set forth in Keith v. Volpe. 501 F. Supp. 403, 413-14 (C.D. 
Cal. 1980), attorney’s fees may also include work done by 
law clerks - if, of course, the expenses are reasonable and 
the rates charged to the clerks are commensurate with their 
legal skills.

In order to determine if the time expended on a case 
was reasonable, a court must dissect the claims and the 
methods by which they were pursued. To accomplish that, 
the court must look at the plaintiffs degree of success.6 If 
a plaintiff has achieved only partial or limited success, the 
product of hours reasonably expended on the litigation as a 
whole times a reasonable hourly rate may be an excessive 
amount. This will be true even where the plaintiffs claims 
were interrelated, non-frivolous, and raised in good faith. 
Hensley v. Eckerhart. 461 U.S. at 436. According to 
Hensley, the lower courts must consider "the relationship 
between the amount of the fee awarded and the results 
obtained," and reduce the fee request if "the relief, however 
significant, is limited in comparison to the scope of the 
litigation as a whole."7

This is not to say that a plaintiff has to win on all 
claims and against all defendants to collect an attorney’s

See Blum. 465 U.S. 886; Hensley, 461 U.S. 424. The Henslev Court 
asserted that the fee petitioner’s degree of success was, aside from time 
and rate, "the most critical factor" in determining the amount of a fee. 
461 U.S. at 436.

n
Id. at 439, 440. Some courts have extrapolated from the Henslev 

language that the relief obtained must justify the expenditure of the time 
claimed. In Toombs v. Leone. 777 F.2d at 472, for example, the Ninth 
Circuit upheld the district court finding that the plaintiff was entitled to 
forty percent of his costs because only ”40% of the time would necessarily 
have to be repeated in preparation again for the trial." See, e.g.. Tusa v. 
Omaha Auto Auction Inc.. 712 F.2d 1248 (8th Cir. 1983).



A-9

the defendants’ summary judgment motion. At the 
commencement of the trial, Eiden dismissed Officers Brushy 
and Payne (See Findings of Fact, paragraphs 4 and 5).

The instant motion for attorney’s fees bears some 
resemblance to th'* fact pattern in Greater Los Angeles 
Council on Deafness v. Community Television of Southern 
California. 813 F.2d 217 (9th Cir. 1987). The formula in 
that case was reached by "comparing the significance of the 
overall relief obtained to all the claims and remedies 
pursued in the litigation." Greater Los Angeles Council on 
Deafness. 813 F.2d at 222. The court in Greater Los 
Angeles Council on Deafness reached the proportion of 
attorney’s fees it thought the plaintiff deserved as follows:

[Plaintiff] filed suit against several government 
defendants, as well as private defendants.
The private defendants were dismissed after 
the trial. Plaintiffs ultimately succeeded only 
on part of their claim against the Department 
of Education...We hold that plaintiffs’ limited 
success entitles them to 40% of the total 
lodestar amount...

Plaintiffs claims against Los Angeles County and 
Sherman Block were dismissed without opposition, and 
accordingly, must be categorized as unsuccessful. Eiden’s 
aforesaid concessions and dismissal regarding defendants 
Brusby and Payne could likewise render those claims 
unsuccessful. Plaintiffs documentation regarding the 
breakdown of time spent on the case does not distinguish 
between the work efforts done against the respective 
defendants. As there were seven defendants named in the 
complaint and only three remaining at trial, it is clear that 
a substantial amount of effort was directed to defendants



A -ll

The Supreme Court asserted in Hensley v. Eckerhart. 
"[Wjhere the documentation is inadequate, the district court 
may reduce the award accordingly. Hensley v. Eckerhart. 
461 U.S. at 433. Chalmers v. City of Los Angeles, a Ninth 
Circuit decision, added: "[I]n determining reasonable hours, 
counsel bears the burden of submitting detailed time records 
justifying the hours claimed to have been expended...Those 
hours may be reduced by the court where documentation of 
the hours is inadequate..." Chalmers v. City of Los Angeles. 
796 F.2d 1205, 1210 (9th Cir. 1986). This court is unable to 
derive from the absence of documentation of the clerks’ 
work a number or factor by which the final sum should be 
reduced, but will take into consideration when determining 
a final attorney’s fee award plaintiffs negligence in this 
regard.

Several other Kerr factors are worthy of discussing. 
Our observations of Eiden’s performance, both pre-trial and 
at trial reveal a mediocre effort at best. Neither his 
pleadings, or trial performance exhibited the skill and 
preparation one would expect from someone with his 
experience.

One other consideration that merits more careful 
scrutiny and application is the Kerr factor dealing with "the 
amount involved and results obtained." Importantly, 
application of this factor should not be confused with the 
earlier determination of reasonable rate times reasonable 
time expended. Simply stated, the analysis used to 
determine the lodestar figure centers on the question of 
whether the time was reasonably spent, arriving at a figure 
by examining in part the claims asserted and whether they



A-13

on Deafness. 813 F.2d at 222, considered in its 
determination of attorney’s fees that "[t]he remedy achieved 
was...considerably less than the open captioning that 
plaintiffs sought." That fact, in tandem with plaintiffs’ 
limited success on their claims, determined that the plaintiffs 
in that case were entitled to a mere forty percent of the 
total lodestar. This court similarly sees fit to consider, in 
reaching its award of attorney’s fees, the wide discrepancy 
between the sum prayed for originally and that obtained in 
settlement.

As a result of our consideration of the factors 
considered above and the fact that in the court’s view there 
was a substantial doubt as to whether the settling defendants 
intended to deny the plaintiff of his civil rights (in our view 
the evidence more clearly displayed a case of genuine 
misunderstanding), Eiden is hereby awarded a fee of 
$7,500.00.

Sanctions

As stated in Rule 11, the signature of an attorney 
constitutes a declaration that "to the best of his knowledge, 
information, and belief formed after reasonable inquiry [the 
pleading] is well grounded in fact and is warranted by 
existing law..." Fed. R. Civ. P. 11. If the court finds there 
is a violation of the rule, the court is free to impose 
appropriate sanctions. Id. The court need not find 
subjective bad faith on the part of the attorney to impose 
sanctions. Rather, the standard is one of "reasonableness 
under the circumstances." Zaldivar v. City of Los Angeles. 
780 F.2d 823, 829 (9th Cir. 1986).

disproportionately large that it could hardly be described as ’reasonable.’" 
Id. at 7.



A-15

be to condone claims against a city where no part of the 
discovery investigation involved the policy standard required 
by Monell v. Department of Social Services of the City of 
New York. 436 U.S. 658 (1978). That Eiden neglected to 
make a good faith effort to conduct an investigation of the 
city’s pc1' ~y (re, the Monell standard) once discovery had 
begun is indeed reason enough to sanction him. Thp 
existing standard with regard to Rule 11 is "well-grounded 
fact."

Further, counsel’s concessions in response to the 
court’s inquiry shortly before the start of the trial and during 
the trial itself revealed that the naming of officers Brusby 
and Payne was without factual foundation (see Paragraphs 
4 and 5 of the Findings of Fact). In Unioil. Inc, v. E. F. 
Hutton & Co.. Inc.. 809 F.2d 548, 557 (9th Cir. 1986), the 
Court said that "an attorney violates rule 11 whenever he 
signs a pleading, motion or other paper without having 
conducted a reasonable inquiry into whether his paper is 
frivolous, legally unreasonable, or without factual 
foundation." It is this Court’s firm view, that counsel’s 
conduct is fully deserving of the sanction imposed.

In determining the appropriate sanction to levy, a 
district court has broad leeway, and such decision will not 
be overturned absent a showing of abuse of discretion. 
Huettig & Schromm. Inc, v. Landscape Contractors Council 
of Northern California. 790 F.2d 1421, 1427 (9th Cir. 1986). 
The Ninth Circuit has further added that the amount of the 
sanction be reasonable and be "quantifiable with some 
precision and properly itemized in terms of the perceived 
misconduct and the sanctioning authority." Matter of 
Yagman. 796 F.2d at 1165. By itemizing or at least noting 
the basis for the sanctioning, a district court can put the 
offending party on notice as to his misconduct.



A-17

as stated in Mr. Brazile’s declaration, should also be granted 
as part of this sanction.

In addition to considering Mr. Brazile’s declaration 
as it related to fees and costs, this court, in modifying the 
lodes... figure, also considered the Kerr factors as generally 
defined above. In conclusion, this court sanctions Mr. Eiden 
in the amount of $4,719.00.

IT IS SO ORDERED.

DATED: September 30, 1987

STEPHEN V. WILSON 
UNITED STATES DISTRICT JUDGE



OPINION

A-19
1 2 7 7 6  C u n n in g h a m  v . C o u n t y  o f  L o s  A n g e l e s

FARRIS, Circuit Judge:

Rufus Cunningham, a peace officer for the California 
Department of Insurance, brought an action on a claim of 
false r"-est and wrongful search against employees of the Los 
Angeles County Sheriffs Department and the County. He 
prevailed in his action, although not on all grounds asserted 
in the complaint or against all defendants. He appeals: 1) the 
amount of the award for attorney’s fees under 42 U.S.C.
§ 1988; 2) the imposition of Fed. R. Civ. P. 11 sanctions 
against his counsel; and 3) the failure to award him his costs 
as prevailing party.

FACTUAL AND PROCEDURAL OVERVIEW

Cunningham filed suit against the County of Los Angeles; 
Sheriff Sherman Block; Sheriff Deputies Robert Birdsall, 
Richard Papp, and Richard Payne; and Sergeants David 
Brusby and Edgar Price. He alleged that his arrest by the Sher­
iffs Department was unsupported by probable cause and 
resulted in a “deprivation of liberty, invasion of his privacy, 
and violation of his civil rights.” He also contended that the 
Sheriffs Department has a “custom, policy and practice of 
racial discrimination against Blacks.” He claimed compensa­
tory damages of $20,000 and punitive damages of $500,000. '

On April 22, 1987, Los Angeles County and Sheriff Block 
moved for summary judgment on the theory that no policy or 
custom attributable to the County was the legal cause of Cun­
ningham’s constitutional deprivation. Cunningham did not 
oppose the motion, which was granted. On May 26, 1987 just 
before trial, the court also dismissed all counts against Ser­
geant Brusby and Deputy Sheriff Payne.

The trial began on May 26, 1987. Prior to closing argu­
ments or jury instructions, the case settled for $5,000.



Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717- 
19 (5th Cir. 1974). See also Kerr v. Screen Extras Guild, Inc., 
526 F.2d 67, 69-70 (9th Cir. 1975), cert, denied, 425 U.S. 951 
(1976). The Supreme Court has interpreted this endorsement 
of a flexible standard by adopting a two-part test to channel 
the district court’s exercise of discretion. Under this “hybrid 
approach” to the calculation of a reasonable attorney’s fee for 
the prevailing party, courts must first calculate a lodestar 
amount by multiplying the number of hours reasonably 
expended on the litigation by a reasonable hourly rate. 
Hensley, 461 U.S.-at 433. Next, the court may increase or 
reduce the presumptively reasonable lodestar fee, see Que- 
sada v. Thomason, Slip. Op. No. 87-5919, at 7457 (9th Cir. 6/ 
23/88) (citing City of Riverside v. Rivera, 477 U.S. 561 
(1986)), with reference to the Johnson!Kerr factors that have 
not been subsumed in the lodestar calculation, see Wood v. 
Sunn, Slip Op. No. 87-2056, at 9136-37 (9th Cir. 7/27/88) 
(identifying several factors that have been subsumed); Clark 
v. City o f Los Angeles, 803 F.2d 987, 990 & n.3 (9th Cir. 
1986).

A. The Lodestar Figure

[3] The only dispute on appeal with respect to the lodestar 
calculation concerns the number of hours reasonably 
expended on the case. The district court, after considering 
Cunningham’s requests of $26,120 for work on the merits 
and $3,037.50 for work on motions relating to attorney’s fees 
and sanctions, fixed the lodestar figure at $12,000. This 
amount was based on the hourly rate of $135 claimed for 
Cunningham’s attorney, Richard Eiden, and the hourly rates 
claimed for Eiden’s clerks. The court accepted both of these 
rates as reasonable. In determining the number of hours to be 
figured into the lodestar, however, the court reduced the fig­
ure claimed by Cunningham because it deemed this number 
of hours excessive. We review this decision for abuse of dis­
cretion.

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A-23

doubts that the time claimed by Eiden was actually spent.1 
Instead, it analyzed the claims brought against the various 
defendants and concluded, based in part on the fact that only 
three of the seven defendants named in the complaint 
remained at trial, that Cunningham’s level of success was not 
high. The order then reduced the number of hours to reflect 
the lack of success. In addition, the court stated that the 
twenty-two hours that Eiden devoted to the Rule 11 sanctions 
threatened against him by the court do “not reflect a civil 
rights claim successfully pursued,” and should therefore be 
deemed unreasonable for lodestar calculation purposes. On 
the basis of these two reductions, the court set the lodestar fig­
ure, which encompasses “work on the merits and on the post­
settlement motions,” at $12,000.

Courts need not attempt to portray the discretionary analy­
ses that leads to their numerical conclusions as elaborate 
mathematical equations, but they must provide sufficient 
insight into their exercises of discretion to enable us to dis­
charge our reviewing function. As in Quesada, the order 
before us is hardly a model of clarity, and we would have pre­
ferred a more straightforward calculation of the number of 
hours reasonably spent. Nonetheless, the court’s citations and 
numerical conclusions are helpful, and the explanation of its 
reasoning gives us a good indication of how the court’s discre­
tionary authority was exercised in this case. We conclude that 
the attorney’s fee order satisfies the “concise but clear” expla­
nation requirement of Hensley and its progeny.

1 2 7 8 0  C u n n in g h a m  v . C o u n t y  o f  L o s  A n g eles

‘The court does assert, in its discussion of the Johnson/Kerr factors 
under the second step o f the “hybrid” analysis, that Cunningham failed 
adequately to document the work of three law clerks. The court nowhere 
states, however, what portion o f the 290 hours claimed for the clerks’ work 
was documented. The court merely uses its assertion of inadequate docu­
mentation to support a further reduction of the fee award below the lode­
star. Because this analysis was insufficiently explained, we decline to 
transpose it to the lodestar analysis. And because the Supreme Court has 
held that this factor may only be considered as part of the lodestar calcula­
tion, it was improper for the court to rely on this rationale to adjust the 
lodestar. See discussion, infra.



A-25

circumstances of litigation are infinitely variable”); id. at 595 
(Rehnquist, J., dissenting) (“I agree with the plurality that the 
importation of the contingent-fee model to govern fee awards 
under § 1988 is not warranted by the terms and legislative his­
tory of the statute”). We agree that a unifactor approach tying 
the number of hours accepted as reasonable solely to the pro­
portion of defendants ultimately prevailed against would be 
inconsistent with the statutory mandate that district courts 
exercise discretion by considering all factors relevant to rea­
sonableness.

[6] But insofar as Cunningham argues that this is what the 
district court did in the case at bar, we do not agree. We recog­
nize that the court considered, among several factors, Cun­
ningham’s failure to produce evidence to back up his 
allegations against four of the seven defendants named in the 
complaint. But far from an arbitrary slashing of the lodestar 
amount by the percentage of defendants dismissed, the court 
analyzed the importance of each defendant to Cunningham’s 
overall case. The court considered not just the number of 
defendants, but also the claims brought against each one. 
Each factor was analyzed not for some talismanic significance 
of its own, but for its ability to shed light on “ ‘the significance 
of the overall relief obtained’ to all the claims and remedies 
pursued in the litigation.” Greater Los Angeles Council on 
Deafness v. Community Television o f Southern California, 
813 F.2d 217, 222 (9th Cir. 1987)(citing Hensley, 461 U.S. at 
435).

[7] This analysis was wholly proper. As we have recognized 
in the past, the “results obtained” are probative on the issue 
of the “reasonableness” of a fee award. See Kerr, 526 F.2d at 
69-70 (eighth factor listed). This factor is among those that 
“are now subsumed within the initial calculation of the lode­
star amount,” Wood v. Sunn, Slip. Op. at 9136 (citing Blum 
v. Stetson, 465 U.S. at 886, 898-900) (1984)), and may thus be 
considered in determining whether the hours spent on the

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C u n n in g h a m  v . C o u n t y  o f  L os  A n g eles

tion which figure in the district court’s decisions are reviewed 
de novo." Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir. 1985).

[8] Under the lodestar approach, many of the Kerr factors 
have been held subsumed in the lodestar determination as a 
matter of law. Blum, 465 U.S. at 898-900. These factors may 
not act as independent bases for adjustments of the lodestar. 
Miller v. Los Angeles County Bd. ofEduc., 827 F.2d 617, 620 
n.4 (9th Cir. 1987); Jordan, 815 F.2d at 1262 n.6. Those Kerr 
factors that are not subsumed may support adjustments in 
rare cases, provided the district court states which factors it 
is relying on and explains its reasoning. See Pennsylvania v. 
Delaware Valley Citizens’ Council, 106 S. Ct. 3088, 3098
(1986) , rev’d after rehearing on other grounds, 107 S. Ct. 3078
(1987) (upward adjustment based on unsubsumed Kerr 
factors is permissible in “certain ‘rare’ and ‘exceptional’ 
cases,” provided the adjustment is “supported by both ‘spe­
cific evidence’ on the record and detailed findings by the 
lower courts”); Quesada, Slip Op. at 7458 (recalling, in a case 
involving a downward reduction, that “[t]he Supreme Court 
has repeatedly emphasized that the lodestar fee should be pre­
sumed reasonable unless some exceptional circumstance jus­
tified deviation”). While we will give courts latitude to 
balance and weigh permissible factors, any reliance on factors 
that have been held to be subsumed in the lodestar determi­
nation will be considered an abuse of the trial court’s discre­
tion.

[9] In this case, the district court gave four justifications for 
the downward adjustment of the lodestar amount: (1) insuffi­
cient documentation of dates and activities with regard to the 
work done by the law clerks; (2) a “mediocre” performance by 
Eiden; (3) the relatively low settlement figure of $5,000, as 
compared with Cunningham’s request in his complaint for 
compensatory and punitive damages totaling $520,000; and 
(4) the court’s view that “there was a substantial doubt as to 
whether the settling defendants intended to deny the plaintiff 
of [sic] his civil rights.”



A-29

“the ‘results obtained’ generally will be ’ subsumed within 
other factors used to calculate a reasonable fee,” and that this 
factor “normally should not provide an independent basis for 
increasing the fee award,” Blum, 465 U.S. at 900. See also 
Delaware Valley Citizens’ Council, 106 S. Ct. at 3098 (reading 
Blum as modifying the Hensley analysis by expanding upon 
Hensley's findings “that many of the Johnson[/Kerr] factors 
‘are subsumed within the initial calculation of the 
lodestar’ ”). We, too, have acknowledged that the “results 
obtained” is among the factors that are ordinarily subsumed 
in the lodestar. See, e.g., Jordan, 815 F.2d at 1262 n.6.

[10] Thus, in ordinary cases, a plaintiff’s “degree of success” 
or the “results obtained” should be adequately accounted for 
in the lodestar. Only in rare or exceptional cases will an attor­
ney’s reasonable expenditure of time on a case not be com­
mensurate with the fees to which he is entitled. Adjustments 
to the lodestar based on “results obtained” must be supported 
by evidence in the record demonstrating why such a devia­
tion from the lodestar is appropriate. See Blum, 465 U.S. at 
900. In the case at bar, neither the record before us nor the 
district court’s order shows why the downward adjustment 
“was necessary to provide fair and reasonable 
compensation.” Id. at 901. This deviation from the lodestar, 
therefore, cannot stand.

[11] What the district court did was assess Cunningham 
and his counsel a double penalty for the modest success of the 
lawsuit. There is no justification in the case law for bifurcat­
ing the “results obtained” test in this fashion. To the contrary, 
Blum held that the district court had abused its discretion by 
adjusting the lodestar upward for “quality of representation” 
in the absence of “specific evidence to show that the quality 
of service rendered was superior to that one reasonably 
should expect in light of the hourly rates charged and that the 
success was ‘exceptional.’ ” 465 U.S. at 899 (citing Hensley, 
461 U.S. at 435). Because the “quality of representation,” like 
the results obtained, “generally is reflected in the reasonably

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12788
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C u n n in g h a m  v . C o u n t y  o f  L os  A n g eles

ulate any connection between the settlement figure and the 
fee award that was not accounted for in the lodestar.2

Our decision in Greater Los Angeles Council on Deafness, 
upon which the court relied, is not to the contrary. In that 
case, we held that the district court abused its discretion by 
failing to consider the “results obtained” and “degree of 
success” under either the lodestar or the Kerr!Johnson steps 
of its analysis. See 813 F.2d at 222. This holding did no more 
than confirm the Supreme Court’s statement in Hensley that 
“courts must ‘consider the relationship between the extent of 
[a plaintiffs] success and the amount of the fee award.’ ” 461 
U.S. at 438, quoted in Greater Los Angeles Council on Deaf­
ness, 813 F.2d at 222.

By contrast, the instant case does not raise the question of 
whether a court may totally disregard the “results obtained,” 
but rather, whether it may count this factor twice. We hold 
that in ordinary cases, such double counting is impermissible. 
In exceptional cases, such deviations may be proper, but the 
court must explain why the results of the lawsuit are not ade­
quately factored into the lodestar. Because the district court 
did not do so, it abused its discretion.

The fourth factor cited by the court in support of the reduc­
tion from $12,000 to $7,500 — its doubt that defendants 
intended to violate plaintiff’s civil rights — was also an 
improper ground on which to base a Kerr reduction. We have 
held as a threshold matter “that a plaintiff cannot be a pre-

2The court did refer in its lodestar analysis to the “substantial amount of 
effort [that] was directed to defendants against whom no recovery was 
obtained.” Even assuming that this statement would have supported a 
downward adjustment of the lodestar had it been made under the second 
step of the “hybrid” analysis, it cannot justify the reduction here from 
$12,000 to $7,500 because it was used to justify the setting of the lodestar 
at $ 12,000. Such an interpolation would necessarily entail both mathemati­
cal imprecision and an impermissible double penalty for plaintiff’s modest 
level of success.



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C u n n in g h a m  v . C o u n t y  o f  L o s  A n g eles

for imposing liability against the County of Los 
Angeles.

The court also stated “that the naming of officers Brusby and 
Payne was without factual foundation.”

We review de novq the district court’s conclusion that the 
facts constitute a violation of Rule 11. Zaldivar v. City o f Los 
Angeles, 780 F.2d 823, 828 (9th Cir. 1986). “Rule 11 sanc­
tions shall be assessed if the paper filed in the district court 
and signed by an attorney . . .  is frivolous, legally unreason­
able, or without factual foundation, even though the paper 
was not filed in subjective bad faith.” Id. at 831. “Rule 11 
applies only to the initial signing of a ‘pleading, motion, or 
other paper’. Limiting the application of rule 11 to testing the 
attorney’s conduct at the time a paper is signed is virtually 
mandated by the plain language of the rule.” Oliveri v. 
Thompson, 803 F.2d 1265, 1274 (2d Cir. 1986), cert, denied, 
107 S. Ct. 1373 (1987). Any sanctions for actions later in a 
proceeding must be based on 28 U.S.C. § 1927, which 
requires a finding that “counsel has acted ‘recklessly or in bad 
faith.’ ” In Re Akros Installations, Inc., 834 F.2d 1526, 1532 
(9th Cir. 1987) (quoting United States v. Associated Convales­
cent Enterprises, 766 F.2d 1342, 1346 (9th Cir. 1985); see 
Roadway Express v. Piper, 447 U.S. 752, 757 (1980); 
Zaldivar, 780 F.2d at 829-32; Kamen v. American Telephone 
& Telegraph Co., 791 F.2d 1006, 1010 (2d Cir. 1986). “For a 
sanction to be validly imposed, the conduct in question must 
be sanctionable under the authority relied on.” McCabe v. 
Arave, 827 F.2d 634, 639 (9th Cir. 1987) (citing United States 
v. Stoneberger, 805 F.2d 1391, 1392 (9th Cir. 1986)).

[13] The district court misconstrued Rule 11 by imposing 
sanctions for the conduct of the litigation after the signing of 
the pleadings. Plaintiff’s claims were not frivolous at the time 
they were filed. The fact that some of the claims were later 
found lacking in evidentiary foundation is irrelevant to the 
Rule 11 inquiry. Without a finding of recklessness or bad



A-35

FOR PUBLICATION

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

Rufus E. Cunningham,
Plaintiff,

v.
County of Los Angeles, et al.,

Defendant-Appellee,
and

R ichard Eiden,
Real-party-in-interest-

Appellant.

No. 87-6596 
D.C. No.

CV-85-5795-SVW
ORDER AND 
AMENDED 
OPINION

Appeal from the United States District Court 
for the Central District of California 

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted 
August 1, 1988—Pasadena, California

Filed October 11, 1988 
Amended March 3, 1989

Before: J. Clifford Wallace, Jerome Farris and 
Charles Wiggins, Circuit Judges.

Opinion by Judge Farris

ORDER

The opinion filed October 1 1, 1988 is amended as follows. 
On page 12791 of the slip opinion, delete the second full para-



A-37

648 F.2d at 1249-50 (novelty of action is not a spe­
cial circumstance). The “prevailing party” require­
ments serves to screen unfounded actions. Awarding 
Cunningham fees in this case would encourage civil 
rights suits.

Cunningham does not fare as well when we con­
sider the balance of equities. Cunningham’s attorney 
tested the boundaries of unethical conduct. 
Although we have reversed the imposition of Rule 
11 sanctions, we noted that Cunningham’s attorney 
made no effort to prove his case against the dis­
missed defendants. We further noted that section 
1927 sanctions might have been appropriate had the 
trial court made a formal finding of bad faith. It 
would be unjust to allow an attorney to profit so 
much from work made necessary largely by his own 
questionable conduct. If Cunningham had never 
brought suit against those defendants who were later 
dismissed, there would have been no occasion to 
reduce the lodestar in the first place. We therefore 
hold that based on the balance of equities, special 
circumstances exist. Cunningham’s request for 
attorneys’ fees on appeal is denied.

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A-39

ORDER

The opinion filed October 1 1, 1988 and amended March 3, 
1989, is further amended as follows.

On page 1682 of the slip opinion, before the paragraph 
beginning “Cunningham requests an award of attorneys’ fees 
. . insert “IV. FEES ON APPEAL.”

On page 1683 of the slip opinion, first full paragraph, delete 
language beginning with the sentence “The purpose of the Act 
is to create an incentive for injured parties to seek judicial 
review, . . . ” to the end of the opinion. Substitute:

The balance of the equities in this case strongly dis­
favor the award of attorneys’ fees on appeal. Cun­
ningham’s request for fees on appeal is denied.

REVERSED IN PART and AFFIRMED IN 
PART.

With the above amendment, the panel has voted to deny 
the petition for rehearing and reject the suggestion for rehear­
ing en banc.

The full court has been advised of the amendment to the 
opinion and of the suggestion for rehearing en banc, and no 
judge of the court has requested a vote on it. Fed. R. App. P. 
35(b).

The opinion is amended as set forth in this order, the peti­
tion for rehearing is denied and the suggestion for rehearing 
en banc is rejected.