case that resulted in a finding of menow liability for forced for sleeping in the two thousand seven times versus order by the district court which is a significant non monetary victory which the court district court didn't not recognize and it's a ward of attorneys fees and with respect to it's a word of attorneys in general the district court disregarded marina versus city of sacramento that if it is going to that argument let me tell you why i think the judge was pretty specific about why he reduced your request he may have been wrong i'm your mom i want to hear your arguments about why he was wrong but what more explanation should he have given he said you were only successful example that well mr yank runs were when he was an attorney is only worth only a hundred hours that should be considered but there's no basis for saying that it's just strictly it's  very arbitrary to take five things like twelve hundred hours and just say well i'm just going to give you one hundred hours for that that's not specificity it's not saying what's wrong with or why he because of the various things that the defendant said fog and discovery all kinds of things why what was there not adequate discovery none of this is gone into it's just he had and i think he said six and the courts at six hundred hours total for class related materials which is wrong but for mr yang women's hours which were about twelve hundred hours before because he was awarded the lower lowest end of the scale and obviously his skills were at the highest so you certainly get it seems to be a simply making a kind of functional capacity argument that well although disbarred he was because of his experience and skills he was really still performing as a lawyer going to run into a little problem of circularity there he is no longer a lawyer is not supposed to be practicing law as a lawyer yet because he does have the skills of a lawyer you want him to become a citizen a lawyer it seems to be very difficult argument to sustain that that is the essence of your argument i think she's not a lawyer but he had all the skills of a lawyer and should be compensated yes i think that's not an issue that i prefer to address at this point i think the mass you know in question then that there is a curious quality to the class certification issue in the sense you you were successful at one point in this case in getting the certification that you saw and then because of subsequent changes in the law that that ruling was put at risk and you ultimately lost it but i assume that and this is really one i'm asking you how how much time did you put into defending the ruling that you had already won it seems to me i guess you would agree with this too to simply say that you were ultimately unsuccessful and therefore should suffer a large reduction in the attorney's fees overlooks the fact that you were first successful and obviously you want to defend what certified in two thousand and five and then decertify and two thousand but you you did yes i understand that but you also did you succeeded in getting a class certified did you know that if we did how many hours i'm having some difficulty look figuring this out you requested about six hundred hours for to be compensated for that six hundred hours of work on the classification issue that comes out of your that is the order how many of those hours were to get the class certified and how many of them were later on to deal with the walmart issue i actually had broken that in the brief so i don't have it right at hand but it was much more than  again once again i don't believe that the class certification encompassed that many hours i don't think so either and that's yeah that was i think you were successful in getting the quest and you should have been compensated for that because the law the law changed there after and that's not your fault but i don't think that many hours were expended in getting the question five there was no as i said i believe it can be found in hundred hours for the class related discovery but didn't you also compensate you for your for filing now motions to tear no he didn't i don't believe that he did i thought those were just goes where once he may have confiscated adequately for that as i was not compensated for the trial preparation of the individual places a year you have a situation where i put in five hundred hours and i put the man on the  that issue of trial preparation i mean the i think given some references to it this morning that the the the liability having been established that there wasn't anything all that complicated about the damages claims and so the there seems to be a disproportion between the simplicity of those claims and the huge amount of hours that went into into trial preparation what what wrong with that analysis which it does well there were there were numerous nourish numerous proceedings before the district court there were conferences there were all the things that you have to do in order to prepare for gibson died just about a week before that changed everything and some additional work had to be done with respect to that and it was not as simple it may look simple it didn't last a long time but the fact of the matter is when you prepare for any trial at the district court level there are all kinds of things that have to be done and  think it should go back to the district court for him to actually for the street court to reconsider his ruling so what would it if you were to the extent he's made rulings there in front of us now the words you think you may not have explained it correctly but at least as to some of the rule he's explained in pretty carefully i thought you what should we do with those rules she we say no you're wrong one hundred hours is too few it should have been  higher what are we supposed to do i understand your argument that he didn't explain sufficiently we can always tell what district judge we don't have enough explanation here take it back and explain again but i'm not a substan what would you have us do here well i said i think seems to me that has should be remanded to district court with instructions to reconsider his rulings because they are apparently not they don't follow the law they don't follow or a no they don't give i think adequately adequately specific information as to why he arrived at the numbers that he arrived th question potentially even a million people get the numbers change in your briefs of one point you say seven million later you say a million but we have all the people in fact that are eligible to be in the class that passed through the jail during this time  as to how long they spent in the inmate reception center which has so cells which has a number of people all of them pass through the inmate reception center and a great many of them spent a lot of time in the inmate reception center know versus kind of answers a lot of that in the sense that it's that you don't have to have that you don't have to have  it's easy that you can establish liability and some sort of class wide basis and identify the individuals who are liable i'm not sure that's that's the judge already said it's unconstitutional maybe you can even figure out which people actually wide ruling a binding ruling on liability i'm willing to try individual cases if the people show up and tell me that they slept on the ground where they slept on the ground but i can't figure out a way to give a class wide monetary violation of self apart from any pain and suffering that an individual experience apart from any indignities of experience of the just the constitutional violation of self has a certain monetary value that a jury should be able to determine i think that it's not that it's the fact that it people that pain and is an abuse of discretion for the judge to say no i'd rather proceed claim by claim i've established liability i've done i don't what i can do on a class y basis and now the individual show up and make their claims that's against justin because in case people make affidavit saying i slept on the floor it can be checked against their records whether or not they're totally incorrect because the records will show whether they were in jail when they said they were that's not such a big deal now i'm asking a slightly different question i apologize for not being precise i'm not sure the judge would have abused his discretion in certifying keeping the class together my question is why did he abused his discretion and saying well maybe i could do that but the better way to do this is when individuals bring claims we will deal with them maybe by summary judgment may be the extent that the state disputes them by trial well obviously that would be because people who are actually going to respond with affidavit are not going to be that large so i i don't think i think that was an abuse of discretion just the sort of fact there weren't any nothing was really any different from when he originally certified the case so appellee i think the i'm going to begin with the decertification issue simply because i think that is one of the larger issues that before the court today i also have a few comments to make with respect to the attorneys fees issue as well but since we ended with the deserve occasion it seems to me to make sense to continue with that that that discussion the surest sign that the decertification order was not an abuse of the lower court discretion was the trial itself with respect to the two named pointis even though you had the determination already made that fool that sleeping on the floor is a constitutional violation it still took three days to adjudicate liability and then to ad there's simply no manageable way in the civil rights context for a civil rights violation that you could a jew to cait both the liability function of the liability phase of the trial as well as the the damages portion of the trial in any way shape or form it just simply can't be done a liability portion was already the jews run no respectfully it wasn't your honor the finding was made that sleeping on the floor was unconstitutional but that wasn't a finding as to whether or not the two named plaintiffs actually slept on the floor the way they claimed so there was a look a the court did have to make a finding those are the jury did have to make a finding that these two individuals left for the way they could because there despite the representations that have been made there aren't records during the class period for the thomas as your honor put it thomas number one that's how we refer to it as well you're on during the thomas number one period of time the class period there are no records that identify the center they're not supposed to put it that way there are circumstances and there were orders issued in the thomas case at one point in time the district judge entered an order that actually reduced the capacity of certain cells the other case that's related to all of these as the rather detention center the answer question no not everybody who's in the reception center slumped on the floor as perceptions are simply because you could show up on a tuesday and it might take three or four hours to get through the inmate reception center and then make your way to a permanent housing location conversely if you show up after a long holiday weekend and it's crowded it could take you longer to get to so i mean so was there any way of identifying those folks who spent more than one night there are records that identified the essentially the locations that inmat particular time those records are problematic for a variety of reasons and this is this came up during the trial it's not a hard and fast you can't simply look at the records and definitively say this individual was at this particular location for the exact amount of time that the records may indicate with frankly the scanning system that exists in the inmate reception center just isn't that accurate so did you at trial did you have any way of challenge i gather the plaintiffs commune in  come up with an estimate of about how much time those individuals how many how long it took them to work their way through the inmate reception center and then on top of that how long they actually slept on the floor the best we could tell from the records so yes there were some records that i had that did assist us in that regard the other problem we have with respect to the inmate was i got to them there was a representation made that there are no bunks in the facility that's only partially true there is a section of the facility where if an inmate comes through and needs some kind of further medical care they can be referred to another area where there are actually bucks so this plays into you simply can't assume that just because somebody was in the inmate reception center and that they were there for more than twenty four hours that that equates to an automatic determination that they slept on the floor that's just not accurate why didn't a judge you've done something like we see this all the time in and i must admit it's a question actually settlements but we see it all the time the judge says look anybody who slept on the floor with their constitutional rights were deprived make a claim make if you believe you're in this class and then i don't determine that a constitutional  starters that was never that was never pitched and lowered so it's impossible for us to say sitting here today hello how did this record of what have approach that concept but with that being said you have a sheer number of people here where you have even my i mean by point of councils representations you have a million potential people who might fall within the class even if you proposed that concept we'll see how many claims we get what's assume you even have ten thousand claims let's assume you even have a few more than that even if it's based on for the period of time that records were kept for people who slept on the floor there were i believe twenty five thousand instances of floor sleeping that recorded in those records account so i thought they i thought they did propose something like judge which was describing they in that the colloquy with the judge about the trial plan i thought they proposed that there be a kind of notice provided through media publications about the liability determination of asking people i would see the notice to come forward to describe their experience and i gather their claim that they that they did experience sleeping on the floor at the facility what i was going what i'm going to get to your art is that what is that gets you is that you bend up and you end up in the circumstance where you have twenty five thousand people who now you have to find a way to adjudicate the damages and  law and liability so even if you have the circumstance where you overlook the difficulty of figuring out how many people you're going to have to make a claim which i i would relate to and ability to identify class members and notify them even if you overcome that hurdle you still end up with the problem of you have no violent way elease is more concrete now you're not we're not talking about these astronomical numbers a million or something like that you now you know know how many people you're talking about and then then perhaps you can begin to make more informed judgments about how you're going to test their claim that they slept on the floor how are you going to assess the damages well and respectfully though that the same time your honor even if that's true it still doesn't address the other problems so even though if even if the district court had done that it just doesn't get you very far and i think the district or rather not probably referring to it inability to actually determine liability or figure out whether or not somebody actually slept on the distinction the judge prigs and that would certainly go into a damages damages calculation you know at that one person who slept on the floor in a dirty you know i i would hope that my clients wouldn't have had dirty and you know vermin infested cells but it's also a big jail system that person would certainly have experienced a different level of pain and suffering then why would a person who slept on a mattress on the floor in a you know a freshly painted clean clean you know what by himself as compared to somebody who may have been not in that circumstance that's certainly relevant and the law is very very clear that absent a showing of actual harm you simply can't award actual damages it's just that there's no and there was some discussion by plaintiff's counsel about how a the court could simply award a quote unquote perdiem award there's no such thing if the court is going to and also this actually speaks to your honor's question about there being a the ability to award damages simply based on the value of a constitutional right the law is very very clear that you can't award damages we're thinking nominal damage very extensively at the deserved vacation hearing and the district court judge was made substantial efforts and actually if you look at the certification transcript which is in the record at volume two exhibits of pages fourth or forty one  plaintiff counsel at that point in time first said they weren't seeking damages for pain and suffering but then later changed their mind and said no we are seeking damages for pain and suffering and they were never able i their it why all oral argument or in their supplemental briefs that were filed after the decertification hearing they were never able to put forward any viable means by which damages could be calculated that wouldn't have required individual eyes proof as to each specific class to point out that those were submitted as part of the briefings that took place with respect to who was going to represent the class a following place of mystery i guess disbarment they were not submitted as part of  decertification papers does that matter does your honor see i saw it i'm not sure it makes any difference in terms of the ultimate outcome and it's not the judge's statement that no trial plan had been file is at least misleading had had that been the case but they certainly made a lot of reference to it if you have the way for our plan that you believe was the end all be all and solve all of the problems i can't imagine why you wouldn't have submitted that as part of your opposition well first of the mo when you're asked directly during a decertification hearing whether it's very clear that the court has concerns with respect to the manageability and the superiority aspects of class certification there ought to be a very clear and articulate how you're going to address those concerns that didn't happen on top of that you know we've had some discussion regarding the place of counsel brought up the percent your case and then other cases that address the issue of you know damages calculations are not necessarily i don't know so i prevent classification all of those cases particularly the ones that address damages calculations they arise in the in the context of most of them involve low cost consumer products where you're talking about something like for example in the bersani ok so i think it's western oil so it's a few dollars you know something along those lines i am not aware of any class action case where you're addressing the issue of awarding substantial damages to a class in the civil rights contexts where the court is making some kind of blanket determination that that constitutional right or that civil rights violation is worth x it just i'm not aware of what we've looked and that i think is actually plays right into the why wal mart says you can't use statistical sample sampling anecdotal evidence in order to make those types of finding a good sideway with respect to the fees there was your honor brought up compensation with respect to the classification issue the court made it very clear that even though plaintiffs were not successful and i'm going to skip over the lack of specificity with the order of with the order because from my read the order actually is fairly specific the order says that plaintiffs actually are being compensated for claims that they weren't even successful so there is a recognition that with respect to for example class certification yes it's true the watch anges and that because of that intervening change in the law that the classification ended up being the certified but the court still seems like it seems like not the kind of award that would encourage nine hundred eighty three supposed to do counsel to undertake these difficult cases i have difficulty parsing new word in finding any error in what the judge did on an individual basis but it is a problem with an award of this size for ten years who it turns out to be a pretty significant effort you say you stopped engaging in the conduct  part because these folks were successful in their in their claims i well i would put that i mean at my mind i mean i think people may be doing better than i am but three hundred fifty thousand dollars to me is still a lot of my saab's artist i think it's almost four hundred thousand dollars with the interest that was accrued on that just on the on the attorney's fees i'm out front of that being almost half a million dollars for enough so whenever you let's use that number you still have ten years of litigation in which you guys opposed it pretty fiercely along the way and these folks were successful so why why is that is sufficient for well with all due respect i think to a certain degree with all due respect to plaintiff counsel i think certain to a certain degree the award is a problem of their own making and what i mean by that is when you walk into a district court judge and you say you want to be paid for every second of everything every now and i take a look you don't have to i take your point in their application has multiple problems and did the judge was perfectly correct in saying your application is not particularly helpful because you've asked for two recompense for everything at the same rate and there's some stuff that's not really well documented in you and you're asking for money for a disbarred lawyer i understand all those problems and you say i'm just asking what in the aggregate is this a fair award i think it is what you did i don't think you can overlook all those issues you have to look at what the district court was looking at and when you have someone come in and make that type of claim when you want to be compensated for eight sanctions motions that were denied which by the way in my opinion would baseless but when you ask for that i mean every judge is looking at the person that's standing in front of them and they're automatically making a credibility determination and when you're making a credibility determination particularly in the context of awarding attorneys fees i have to imagine and i'm i'm not a judge but i have to imagine that that figures into your calculus and when somebody walks in and refuses to admit that they shouldn't be paid for every second that they spent on a case i think it's tough for a judge to look at that circumstance and say no i'm not going to give you a substantial haircut and that's i think what happened here and then when you submit records that are and i my recollection is that the records and i'd have to go and double check but i think points of counsel were billing their time in quarters and that's inconsistent with the standard in the industry the industry's tense i mean i couldn't submit a bill for fifteen minutes for looking at a minute or i couldn't do that so when you have you take all those things together and you and you and you compare it to just the lack of specificity that was in the records that was in front of the judge if anything i think by the amount of award that they very with that characterization but i think you have to i don't think you can dismiss what was in front of the judge and i think the standard that governs the read this court's review of that decision is whether or not what the judge did on its face looks like it makes at least some degree of science or whether or not you look at it and say he was completely illogical and implausible and i don't think we have that based on this record i see my time is up thank you very much and thank you very much and of course thanks counsel for your presentation and we will stand adjourned until tomorrow