City of Riverside v Rivera Brief Reply Brief of Petitioners

    No. 85 224

In The
Supreme Court of the United States

October Term,. 1985

a

CITY OFJRIVERSIDE, LINFORD L. RICHARDSON, 
MICHAEL S. W ATTS, DAN PETERS, GERALD MIL­
LER, and ROBERT PLAIT,

Petitioners,
vs.

SANTOS RIVERA, JENNIE RIVERA, DONALD R I­
VERA, JEROME RIVERA, LEE ROY RIVERA, MARK 
LARABEE, ENRIQUE FLORES, AND MANUEL 
FLORES, JR.,

Respondents.
■— — — --- o— — — — —

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

—— •— -----o----------------

REPLY BRIEF OF PETITIONERS

K otler & K otler 
J on athan  K otler 
15910 Ventura Boulevard 
Suite 1010
Encino, California 91436 
(818) 986-5264
Attorney for Petitioners

C O C K LE  L A W  B R IE F  P R IN T IN G  CO.. (8 00 ) 835-7427 E x t . 333



1

QUESTIONS PRESENTED

1.

Whether “ a reasonable attorney’s fee”  awarded under 
Section 1988 of Title 42 of the United States Code must 
bear some proportionality to the amount of the judgment 
obtained by the party seeking such fees in a case in which 
monetary relief only was pursued and/or obtained.

2.

Whether an award of attorney’s fees under Section 
1988 of Title 42 of the United States Code more than seven 
times the amount of a judgment obtained in a suit for 
monetary relief only constitutes an abuse of discretion by 
the trial court.



IX

QUESTIONS PR E SE N TE D ........................................... i
TABLE OF AUTHORITIES ....................................... iii
ARGUMENT ......................................................................  1

I. Petitioners Do Not Now, And Have Never Urged,
The Adoption Of A Blanket Rule Of “ Mechani­
cal Proportionality”  In Awarding Attorney’s 
Fees Under § 1988. Rather, Petitioners Urge 
That Such Awards Follow The Clear Language 
Of § 1988 Which Provides That Only “ Reason­
able”  Fees Be Awarded Thereunder ...................  1

II. Respondents Are Attempting To Justify The 
Award Of Attorney’s Fees Herein On The Case 
Which They Lost, Recognizing That Such An 
Award In The Case Which They Won Would 
Not Be Reasonable .................................  8

CONCLUSION....................................................................  18

TABLE OF CONTENTS
Pages



Ill

Cases :

Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.
1984) ..................................................................................  17

Bruner v. Dunaway, 684 F.2d 422 (6th Cir. 1982), 
cert, den., 459 U.S. 1171 (1983) ................................... 17

City of Riverside v. Rivera, — U.S. —, 106 S.Ct.
5 (1985) ............................................................................  15

Davis v. County of Los Angeles, 8 E.P.D. ft 9444
(C.D. Cal. 1974) ..............................................................  14

Estate of Davis v. Hasen, 563 F.2d 1220 (8th Cir.
1981) .................................................................................. 17

Hensley v. Echerhart, 461 U.S. 424, 103 S.Ct. 1933
(1983) ............................................................................3,4,14

Herrera v. Valentine, 563 F.2d 1220 (8th Cir. 1981).......  17
Johnson v. Georgia Highway Express, Inc., 488 

F.2.1 714 (5th Cir. 1974) ................................................ 11
Rivera v. City of Riverside, 679 F.2d 795 (9th Cir.

1983) .................................................   10,13
Roman v. City of Richmond, 570 F.Supp. 1544

(X.P. Cal. 1983) ..............................................................  17
Smith v. Heath, 517 F.Supp. 774 (D. Tenn. 1980), 

aff’d 691 F.2d 220 (6th Cir. 1981) ............................... 17
Spears v. Conlish, 440 F.Supp. 490 (N.D. 111.

1977) .................................................................................. 17
Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.

Cal. 1974), a ff’d 550 F.2d 464 (9th Cir. 1977), 
rev ’d on other ground, 436 U.S. 547 (1978) ............... 14

Stokes v. Delcambre, 710 F.2d 1120 (5th Cir. 1983) .... . 17
Sivann v. Charlotte-Mecklenburg Board of Educa­

tion, 66 F.R.D. 483 (W.D.N.C. 1975)

TABLE OF AUTHORITIES
Pages

14



IV

S t a t u t e s :

42 U.S.C. § 1981 ..................................................................  1
42 U.S.C. § 1982 ..................................................................  1
42 U.S.C. § 1983 ..................................................................  1
42 U.S.C. § 1985 ..................................................................  1
42 U.S.C. § 1986 ..................................................................  1
42 U.S.C. § 1988 ...............................1, 2, 3, 4, 5, 6, 7,11,17,18
Fed. R. Civ. P. 5 2 (a ) ..........................................................  13

M iscellaneous :

H.R. Rep. No. 94-1558 (1976) ........................................... 5
S.Rep. No. 94-1011 (1976) ................................................  5
The Living Encyclopedic Dictionary of the Eng­

lish Languige, The English Language Institute 
of America, Chicago (1977) ......................................... 2

Do get’s International Thesaurus, Thomas Y.
Crowell Company, New’ York (1957) ...........................  2

TABLE OF AUTHORITIES— (Continued)
Pages



ARGUMENT

I. Petitioners Do Not Now, And Have Never Urged,
The Adoption Of A Blanket Rule Of “Mechanical 
Proportionality” In Awarding Attorney’s Fees 
Under l§ 1988. Rather, Petitioners Urge That 
Such Awards Follow The Clear Language Of 
§ 1988 Which Provides That Only “ Reasonable”
Fees Be Awarded Thereunder

Much of the Brief of Respondents (R.B.) is spent in 
an attempt to convince this Court that Petitioners urge 
some kind of blanket “ mechanical proportionality”  stand­
ard be adopted in the awarding of attorney’s fees under 
42 U.S.C. § 1988, followed by reasons why such a standard 
is not compelled by §1988 (R.B. 19, 21). Such posturing 
not only is cleverly calculated to focus this Court’s atten­
tion away from the real issues herein, but also pointedly 
ignores the fact that Petitioners have never proposed, 
or even inferred, the adoption of such a mechanistic test 
in all eases. To so argue would be to deny the myriad of 
differences which exist in the types of cases which can 
be, and are brought by civil rights litigants under the 
various civil rights statutes (42 U.S.C. 1981, 1982, 1983, 
1985, and 1986) as well as the equally diverse types of 
relief which may be obtained thereunder.

Rather, what Petitioners have long argued that § 1988 
compels—both in its legislative history, and particularly, 
by its own clear language—is that there must be some 
relationship between any attorney’s fees awarded under 
that statute and the results obtained by any litigation 
brought under the civil rights umbrella. It is this rela­
tionship between the results obtained and the fees award­
ed which is at the heart of this matter, and nothing else.

1



2

That such a relationship was of paramount concern 
to Congress is clear from the wording which that body 
chose in adopting § 1988, providing, in the appropriate 
instances, that a trial court may award a “ reasonable”  
attorney’s fee. Thus, the focus of this case, and, as this 
Court has recognized in its previous decisions, the focus 
of nearly every other case in which the implementation o f  
§ 1988 has been reviewed, almost always turns on the mean­
ing of the word “ reasonable”  when viewed against the 
conduct of a trial court in awarding attorney’s fees.

Obviously, “ reasonable”  is not a legal term of art, 
but, rather, is a word of common and general usage. It 
has no esoteric definitions, no hidden meanings.1 It is a 
word easily understood by the average man, and so too 
should be easily understood by district court judges, al­
though in far too many situations, that, is not always true. 
One thing is clear, however, and that is that the definition 
of “ reasonable”  is precise enough that it cannot be used 
to describe conduct which is irrational, which is not based 
upon the exercise of sound judgment, or which is exces­
sive.

The living Encyclopedic Dictionary of the English Language, 
published by the English Language Institute of America, 
Chicago (1977), defines "reasonable" as follows: "agree­
able to reason or sound judgment, as a reasonable supposi­
tion; rational; having or exercising sound judgment; not 
exceeding the limit prescribed by reason, or not excessive; 
moderate, as charges or prices."
Roget's International Thesaurus, published by Thomas Y. 
Crowell Company, New York, lists the following synonyms 
for "reasonable": "moderate, logical, plausible, credible, 
intelligent, wise, sane, inexpensive, vindicable, and justifi­
able."



3

In other words, a “ reasonable”  attorney’s fee can­
not, by definition, if not by law, be one which, as herein:

(1) exceeds by seven times the amount awarded by 
a jury in a case in which only money damages are award­
ed;

(2) is made without the benefit of detailed, con­
temporaneously-kept time records;

(3) is awarded for all time expended, when success 
is achieved on a small percentage of the claims pursued, 
and against fewer than 20% of the defendants litigated 
against;

(4) achieves no societal benefit, beyond the pecuniary 
award to the individual litigators;

(5) results from an on-the record refusal of a trial 
court to follow the remand instructions of this Court fol­
lowing the reversal of a previous award of attorney’s 
fees (J.A. 225; 230).

Indeed, nothing this Court has done or said to date in 
reviewing cases arising under § 1988 has departed in any 
way from a recognition by it that for an attorney’s fee 
to withstand scrutiny under that statute, it must, by def­
inition, be reasonable.

As an example, in Hensley v. Eckerhart, 461 U.S. 424, 
103 S.Ct. 1933 (1983), this Court noted that merely find­
ing that the extent of relief obtained by a prevailing party 
clearly justifies an award of attorney’s fees under § 1988 
does not end the trial court’s inquiry, since:

A reduced fee award is appropriate if the relief, how­
ever significant, is limited in comparison to the scope
of the litigation as a whole.
Hensley, supra, 461 U.S. at 440,103 S.Ct. at 1943



4

The logic behind such a statement is clear enough— 
any other result would not follow Congress’ dictates that 
only a “ reasonable”  attorney’s fee be awarded under 
§ 1988. As Justice Powell clearly stated:

. . . [wjhere the plaintiff achieved only limited suc­
cess, the district court should award only that amount 
of fees that is reasonable in relation to the results 
obtained.
Hensley, supra, 461 U.S. at 440, 103 S.Ct. at 1943

Although Respondents do not charge that this Court 
was urging the adoption of a standard of “ mechanical pro­
portionality”  by setting forth that for an award of at­
torney’s fees to be reasonable, there must be some “ rela­
tion”  between the sums awarded and the results obtained 
in the underlying litigation, what Justice Powell stated 
in the above quoted passage is exactly the position taken 
by the Petitioners herein. For obvious reasons, Respond­
ents would have this Court believe otherwise.

Likewise, Hensley clearly stands for the proposition 
—also advocated by Petitioners herein—that for a “ rea­
sonable”  attorney’s fee to be awarded, “ there must be 
detailed records of time and services for which the fees 
are sought”  (Hensley, supra, 461 U.S. at 440, 103 S.Ct. 
at 1943)

As Chief Justice Burger stated in his concurring opin- 
i on therein:

. . . [t]he party who seeks payment must keep records 
in sufficient detail that a neutral judge can make a 
fair evaluation of the time expended. . . ”
Hensley, supra, 461 U.S. at 441, 103 S.Ct. at 1943



5

The rationale behind such a statement is clear: to 
award attorney’s fees absent the type of billing records 
which could normally be expected in any attorney-client 
context, given human temptation, not only would not be 
reasonable, but, moreover, could lead to the awarding of 
the very type of windfall fees which Congress claimed was 
not the intent of § 1988. H.R. Rep. No. 94-1558, p. 9 
(1976); S.Rep. No. 94-1011, p. 6 (1976). Indeed, because 
§ 1988 allows easy access to the fee purse, i.e., a party 
bringing a claim thereunder only has to prevail on one 
claim against one defendant in order to be adjudged a 
“ prevailing party,”  implementation of the intent of the 
statute, as well as by its own words, relies on reasonable­
ness in order to meet the twin goals of providing access 
to meritorious claims, while preventing windfalls to those 
with claims lacking significant merit.

And while providing access for meritorious civil rights 
claims is the reason often given for the enactment of 
§ 1988, it does not follow therefrom that it was ever the 
intent of Congress to chill good faith defenses of such 
claims as a result. Clearly, there is nothing in the legis­
lative history herein to indicate that what Congress had 
in mind was the forcing or extorting of settlements for 
fear that losing only one of the many claims filed by a 
civil rights plaintiff might open wide the coffers of this 
nation’s state and local governments for all time spent on 
“ related,”  thought totally unsuccessful claims, especially 
cases involving non-representative claims which culminate 
in awards of monetary damages only. Such a result not 
only would encourage the churning of marginal cases, but 
also, could not result in attorney’s fees which are “ rea­
sonable. ’ ’



6

The inciting of litigation must be distinguished 
from the providing of court access, and yet, the award of 
attorney’s fees in this matter achieves only the former 
at the expense of the latter. It also continues the apparent 
belief among some sectors of the bar that § 1988 has be­
come an end, rather than a means to an end. The lineup 
of amici supporting Respondents’ position well illustrates 
this point, since, with the exception of the NAACP Legal 
Defense and Education Fund (which, itself relies heavily 
on the availability of a pool of volunteer attorneys), all 
of them are representatives of attorneys who themselves 
would benefit the most from the overexpansive interpre­
tation of § 1988 reflected by the trial court’s award of 
fees below.

In sum, it hardly seems that the societal interest of 
having all civil rights actions in our courts is so com­
pelling that it justifies ignoring the real value or merit 
of each case, principally to insure the existence of a cadre 
of attorneys ready to handle all such cases as they arise. 
Rather, it is clear that the value or merit of each case to 
society as a whole must be examined by a district court 
before a “ reasonable”  attorney’s fee may be awarded 
under § 1988, and that this examination must balance the 
amount of legal work done with the results obtained by 
such work before any such attorney’s fee may be awarded. 
In cases which conclude in obvious societal benefits, such 
as those cited throughout the briefs of Respondents and 
their amici (R.B. 35; Brief of Washington Council of 
Lawyers, et al, p. 11), the value of encouraging court 
access through awards of attorney’s fees based on veri­
fiable market rates for all time necessary to achieve such 
results seems a sound one.



7

On the other hand, herein there was no societal bene­
fit achieved other than that which deters future wrongful 
conduct by any potential defendant after any litigation of 
any type ending in a plaintiff’s judgment. True, Respond­
ents vindicated their civil rights, and true, this vindication 
does have value—as set by the jury it was $33,350. Re­
spondents ’ arrogant protestations notwithstanding (R.B. 
33, fn. 59), it simply defies belief that there do not exist 
within the private bar many attorneys who would not leap 
at the opportunity of recovering the equivalent of the 
normal free-market negotiated contingency fee for such 
litigation. This would mean that herein, such counsel 
could have expected to receive court-ordered attorney’s 
fees, payable by the losing side and not out of his or her 
client’s share of the judgment, of from $11,116 to $13,340 
for success of the magnitude of that achieved by Respond­
ents’ counsel herein, based on a percentage (or propor­
tion) of the results obtained of from 33y3 to 40% of the 
total judgment.

Obviously, such a result would not allow civil rights 
attorneys to litigate to their hearts’ content, on theories 
without merit, and against parties without liability, secure 
in the knowledge that they would be fully recompensed 
thereafter, as long as they achieved prevailing party status, 
and that their time was, somehow “ related”  to their so 
doing. But such a fee and such a result would be “ rea­
sonable,”  and would, therefore, comport with the langu­
age of § 1988, as enacted by Congress.



8

II. Respondents Are Attempting To Justify The 
Award Of Attorney’s Fees Herein On The Case 
Which They Lost, Recognizing That Such An 
Award In The Case Which They Won Would 
Not Be Reasonable

The Brief for Respondents is little more than 
an attempt to justify the unjustifiable award of attorney’s 
fees herein by arguing 'that such an award was reasonable, 
based not on what Respondents proved through their liti­
gation and at trial, but, rather, what they wished they 
had proved, had the facts been otherwise. Further, they 
have proceeded on this course without informing this 
Honorable Court of this discrepancy.

As such, the Statement of Facts contained in Respond­
ents ’ Brief largely is not a statement of facts at all. There­
in, Respondents seek to retry this case before 'this Hon­
orable Court by attempting to place into the record at 
this late date that which the jury below considered and 
rejected, and that which was never in 'the record at all. 
Their purported Statement of Facts is nothing more than 
a rewrite of their opening argument at trial, combined 
with what was placed before the jury and largely disbe­
lieved by that same trier of fact. It is based in great part 
on out-of-context snippets from their own depositions 
(which are, in practically every instance, refuted by other 
depositions and testimony which they chose not to men­
tion), documents not contained in the Joint Appendix to 
which they stipulated, and documents previously unmen­
tioned or unreported, either before trial, during trial, after 
trial, or at all (e.g., the Riverside Press story mentioned 
for the first time at R. B. 10, fn. 13). Indeed, a compari­
son between Respondents’ Statement of Facts herein, and



9

the quite dissimilar Statements of Facts/Statements of the 
Case(s) which they have adopted in previous briefs dur­
ing the long life of this litigation, reflects the abject des­
peration faced by attorneys trying to justify the unjustifi­
able—an award of attorney’s fees seven times the amount 
received by their clients in a case in which money dam­
ages only were awarded, and these damages, against fewer 
than 20% of the defendants against whom they chose to 
litigate.

Unfortunately, space does not permit Petitioners to 
point out all the discrepancies between the facts, as re­
flected by the record herein, and those things on which 
the record is silent (or quite different), but which are con­
tained in Respondents’ Statement of Facts nevertheless. 
However, so that this Court may at least get the flavor of 
what is being attempted by Respondents so as to make 
their case seem to be something that it clearly is not, a 
few examples are in order:

(a) Respondents spend nearly four pages on their 
brief (R.B. 10-13) trying to prove that Petitioners were 
engaged in a “ cover-up”  of the events which gave rise 
to the instant lawsuit. Much of their argument which fol­
lows is based upon this purported “ cover-up.”  Indeed, 
this is not the first time Respondents have attempted such 
a scenario, but thus far herein, they have never been suc­
cessful in getting anyone to believe it. Indeed, it was be­
cause of this asserted cover-up that counsel for Respond­
ents justified their refusal to dismiss from this action most 
of the officers against whom they proceeded to trial, in­
cluding the Riverside Chief of Police, Fred Ferguson. 
However, no cover-up was ever proven, and the jury found 
no liability as to any of the police officers sued by Re­



10

spondents on the basis of a cover-up alone, although the 
trial court did award attorney’s fees to Respondents for 
such needless and unmeritorious litigation.

If such a cover-up had taken place, and was proven, 
such would be the very type of conduct which could have 
justified, in some measure at least, a significant award of 
attorney’s fees. Hence, any cover-up by the Riverside 
Police of ’their own misconduct would have been an in­
tegral part of Respondents’ case, and could be expected 
to have been highlighted by Respondents (and by the 
courts which made and subsequently reviewed the award 
of attorney’s fees) wherever possible. And yet, there was 
no mention by the trial court which made the fee award 
herein of any cover-up, either in i'ts initial set of Find­
ings of Fact and Conclusions of Law (J.A. 173-175) or in 
its second set of Findings of Fact and Conclusions of Law 
(J.A. 187-192), both of which were prepared for the trial 
court by Respondent’s attorneys (J.A. 222; 239-240). Nei­
ther is there any mention of a cover-up in the two opin­
ions written by the Ninth Circuit herein (J.A. 176-183, 
Rivera v. City of Riverside, 679 F.2d 795 (9th Cir. 1983); 
J.A. 193-198).

Relying upon (and emphasizing) an unproven cover- 
up at this late date in order to demonstrate some justifica­
tion for the outrageous award of attorney’s fees herein 
speaks eloquently of Respondents’ reluctance to accept the 
facts in this matter as they actually transpired, and as 
are duly reflected by the record below, not to mention the 
verdict of the triers of fact—the jury.

(b) Likewise, the trial court had no evidence before 
it of any kind from any of the Respondents, that any of



11

them had searched at length (or at all) for local counsel 
to represent them before engaging then-San Diego located 
counsel, Messrs. Lopez and Cazares. Still, both the Re­
spondents and one of their amici (Brief of NAAOP Legal 
Defense and Educational Fund, Inc., page 15) so contend, 
apparently in an attempt to convince this Court of how 
unpopular this suit was, and therefore, of how much ad­
versity Respondents and their counsel had to surmount in 
order to win anything at trial.

But the facts are otherwise. First, the case was not 
tried locally, but in Los Angeles, more than sixty miles 
and another county removed from Riverside. There could 
not be, and was not, any local hostility in such a venue. 
Secondly, and even more important, since the undesirabil­
ity of a case is one of the twelve Johnson v. Georgia High­
way Express, Inc. (488 F.2d 714, 719 (5th Cir. 1974)) fac­
tors to be considered by a trial court before awarding at­
torney’s fees under § 1988, and hence, an impoi’tant “ fact”  
if such was the case, one would expect such a “ fact”  to 
have been included by way of affidavit from one or more 
of the Respondents in any fee petition on behalf of any 
of the attorneys so affected. However, a review of the fee 
petition of Respondents herein (J.A. 16-64) discloses that 
there is not one word from any of the Respondents regard­
ing their supposed difficulty in obtaining local counsel to 
represent their “ unpopular”  cause. The absence of this 
undesirability factor was duly noted by Petitioners in op­
posing Respondents’ request for attorney’s fees (J.A. 86- 
88). Thus, i’t was not at all surprising that thereafter, 
appearing in the trial court’s Findings of Fact (J.A. 173; 
189) was the wholly unsupported statement that “ Given



12

the nature of this lawsuit, many attorneys within the com­
munity would have been reluctant to institute this action.’ '

Such a statement could not have been based on any­
thing available to the trial court for its review. Still, as 
noted above, it was not surprising that such a statement 
appeared as a Finding of Fact, since, as also previously 
stated herein, the trial court’s Findings were prepared, at 
its request, by the fee petitioners themselves (J.A. 222, 
239-240). Of course, absent any evidence on the subject, 
this is not something of which a trial judge could be ex­
pected to ’take judicial notice, the events which formed 
the basis of the lawsuit and trial over which the district 
court presided, being separated by many miles and many 
years.

Indeed, much of the Respondents’ Statement of Facts, 
and subsequent Argument, relies heavily on the trial 
court’s comments and predispositions, rather than on the 
jury results. Not only is this bootstrapping at its worst, 
but it clearly points to the discrepancy between what the 
jury determined and what the trial court would have pre­
ferred that the jury had determined. However, the dis­
trict judge was not the trier of fact herein, the jury was. 
And it is clear from what the jury found that the district 
court’s account of the evidence— often aided, with its con­
sent and at its request, by self-serving input from Respond­
ents ’ counsel—is not plausible in light of the record re­
viewed in its entirety.

(c) Even Respondents’ Introduction to its State­
ment of the Case is not spared their revisionist historical 
approach to what has transpired herein.



13

In what can only be described as an attempt to play 
fast and loose with reality, Eespondents state that Peti­
tioners have not challenged as “ clearly erroneous”  the 
trial judge’s Findings of Fact with respect to (1) the pre­
vailing market rate for similar services and (2) its find­
ing that there were no facts which would justify a failure 
to compensate Eespondents’ counsel for the full value of 
the services which they performed herein (E.B. 2-3). Such 
grammatical hocus pocus highlights to what lengths Ee­
spondents apparently feel the need to go in order to re­
write this case into something it is not.

While it is 'true that Petitioners have never used the 
phrase “ clearly erroneous”  in challenging the above find­
ings made by the trial court, nor have they ever specifi­
cally referred to FRCP 52(a) in making such a challenge, 
the record herein could not be more clear that these two 
findings (as well as many others) have been specifically 
challenged by the Petitioners at every stage of the pro­
ceedings herein, trial and appellate (J.A. 76-101; 161-163; 
see also Appellant’s Eeply Brief filed in the Ninth Cir­
cuit in June, 1981, in case number 81-5362, Rivera v. City 
of Riverside, supra, pp. 15-18). To state otherwise, as 
Eespondents have in their Statement of the Case, would 
be to deny the existence of Petitioners’ briefs and peti­
tions filed previously over a period of more than five 
years. While one can understand why Eespondents might 
wish to do so, to represent that such is the true state of 
affairs when clearly it is not, is inexcusable.

Moreover, the facts which underlie this matter, and 
as proven at trial, make 'the resulting award of attorney’s 
fees to Eespondents herein unique in the annals of civil 
rights litigation—at least with respect to the amount of



14

such fees when measured against the societal gains won 
by Respondents as a result of bringing their action. It is 
this reality alone which explains why Respondents have 
attempted throughout their Brief to justify the award of 
attorney’s fees under review by attempting to “ 'tack on”  
the results of their case with the results of other cases in 
which the facts were markedly different, so as to gain 
credibility thereby. However, in every instance where 
this ploy is tried, this factual dissimilarity is apparent. It 
is equally apparent that because this is so, that the award 
of attorney’s fees herein was unreasonable, both under a 
fair reading of Hensley, supra, and under any reading of 
§ 1988.

At times (R.B. 35) Respondents appear to be arguing 
that because the award of damages herein was relatively 
low, that their fee award should be supported by treating 
their case as if it were one in which no monetary relief 
was sought, and which broadly vindicated the rights of 
others. This strategy is a naked attempt to compare 
this case favorably with the many decisions in which it 
has been said that there need not be monetary damages 
to entitle attorneys to awards of significant attorney’s 
fees (Davis v. County of Los Angeles, 8 E.P.D. 1J9444 
(C.D. Cal. 1974); Sivann v. Charlotte-Mecklenburg Board 
of Education, 66 F.R.D. 483 (W.D.N.C. 1975); and Stan­
ford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974), 
a ff ’d 550 F.2d 464 (9th Cir. 1977), rev ’d on other grounds, 
436 U.S. 547 (1978); B.R. 35).

However, the facts of the instant matter are quite dif­
ferent from those cases for which Respondents seek a fav­
orable comparison. Here there was no issuance of declara­
tory or injunctive relief—and it serves Respondents not



15

to reflect that the trial court might have issued injunctive 
relief if only their counsel had asked for it after trial 
(R,B. 17, fn. 21), since, as Respondents’ counsel have ad­
mitted, framing such relief would have been difficult, if 
not impossible (J.A. 219). Rather, at the trial herein non- 
pecuniary rights were never placed in issue by the Re­
spondents, and the jury found all that Respondents asked 
of them by way of relief—monetary damages.

Likewise, it does not follow logically (R.B. 45) that 
because Respondents received a small amount of money 
damages that nonpecuniary results were also achieved by 
them. This case simply was not worth very much in money 
damages, and the jury found no basis for, and the trial 
court awarded, no other relief. The rights of none other 
than the eight Respondents were vindicated as a result of 
this litigation. No class was represented herein, counsels’ 
after-the-fact attempts at such a characterization notwith­
standing (R.B. 38, fn. 65). And as has been pointed out 
earlier in Petitioners’ Brief on the Merits (P.B. 4), and 
as previously recognized herein by Justice Rehnquist {City 
of Riverside v. Rivera, — U.S. —, —, 106 S.Ct. 5, 6 
(1985)), the City of Riverside was not compelled to, and 
did not change any of its practices or policies as a result 
of this suit. In sum, while Respondents benefited to the 
tune of $33,350 (of which $13,300 was attributable to Re­
spondents’ civil rights claims), and while their counsel 
stand to benefit in an amount more than seven times 'that 
sum ($245,456.25) should the award of attorney’s fees be­
low be upheld, society has not and will not benefit one 
whit from what was nothing more than a personal action 
for damages brought on behalf of eight individuals.

The conclusion regarding the lack of societal benefit 
gained in the bringing of this action is also compelled by



16

the basic inconsistency in Respondents ’ attempts to justify 
the district court’s fee award. First, they paint a picture 
of the factual underpinnings of this lawsuit which, if true, 
would make this case just short of the outrage of the cen­
tury (R.B. 5-13). Even if partially true, such a set of 
occurrences would have made this case a sure winner— a 
rich plum for any attorneys lucky enough to be retained to 
handle it-—even given the rate of success of civil rights 
cases filed in the Central District of California (R.B. 27- 
28). It is clear, therefore, that if Respondents’ Statement 
of Facts is accepted as true, that the vindication of their 
civil rights should have resulted in a large award of dam­
ages, assuming that a jury would view the “ facts”  as Re­
spondents did, and be equally outraged as well.

Then, in a markedly different approach (R.B. 43-45). 
Respondents’ counsel take the position that their perform­
ance was so heroic in obtaining even a $33,350 jury award 
for their clients, that they are entitled to attorney’s fees 
seven times that amount as a result. This logic is based 
on a “ new”  set of facts, grounded on the premise that 
since this case was so difficult and so complex it required 
a high degree of litigation excellence to prevail at all.

The fallacy with such “ logic”  is that the instant case 
must fit one, or none, of these two diametrically opposed 
scenarios. It cannot fit both.

If this matter really arose out of such an egregious 
factual context—and constituted such a gross violation of 
the civil rights of the Respondents—it is inconceivable that 
the jury below wouldn’t have awarded a larger sum of 
damages, assuming competent lawyering.



17

On the other hand, if counsels’ professional work was 
so heroic, the only conclusion that can result therefrom is 
that the facts giving rise to this suit weren’t so outrage­
ous after all, and hence, that there really was no societal 
benefit to this litigation, over and above that received by 
the individuals involved.

The only other explanation offered by Respondents 
for the small amount of damages awarded by the jury—an 
explanation concurred in by the district court (J.A. 188- 
189)—was “ the general reluctance of jurors to make large 
awards against police officers”  (R.B. 44), a reluctance ap­
parently not shared by the jurors in Roman v. City of 
Richmond, 570 F.Snpp. 1544 (N.D. Cal. 1983) ($3,000,000); 
Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984) 
($1,590,670); Estate of Davis v. Hazen, 582 F.Supp. 938 
(C.D. 111. 1983) ($575,000) ; Herrera v. Valentine, 563 F.2d 
1220 (8th Cir. 1981) ($300,000); Smith v. Heath, 517 F. 
Supp. 774 (D. Tenn. 1980), aff’d 691 F.2d 220 (6th Cir. 
1981) ($132,000); Spears v. Conlish, 440 F.Supp. 490 (N.D. 
111. 1977) ($100,000 assessed against a single police offi­
cer) ; Bruner v. Dunaway, 684 F.2d 422 (6th Cir. 1982). 
cert. den. 459 IT.S. 1171 (1983) ($100,000); Stokes v. Del- 
cambre, 710 F.2d 1120 (5th Cir. 1983) ($310,000 in puni­
tive damages against a local sheriff and deputy), and in 
numerous other cases as well.

Once again, the facts as represented by reality, on 
the one hand, and the “ facts”  as used both by the district 
court and Respondents to justify the unjustifiable, on the 
other, are wildly different. Fortunately, the truth, as 
measured by the record herein, is not that difficult to 
ascertain.



18

CONCLUSION

For the foregoing reasons, Petitioners urge that the 
language of and legislative intent behind § 1988 compel a 
ruling by this Court that where there are no specific, veri­
fiable societal benefits resulting from an action to enforce 
civil rights, any award of attorney’s fees thereafter must 
be reasonably related to the amount of the pecuniary dam­
ages recovered by a plaintiff, where pecuniary damages 
are the only relief obtained therein. Since the within action 
clearly falls within such a definition, Petitioners pray that 
the judgment awarding attorneys’ fees by the trial court 
below be reversed and the matter remanded for further 
proceedings consistent with such a ruling.

Respectfully submitted,
K otler & K otler 
J onathan  K otler 
15910 Yentura Boulevard 
Suite 1010
Encino, California 91436 
(818) 986-5264
Attorney for Petitioners