FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

H. N. DANG,  Nos. 03-55403

Plaintiff-Appellant, 03-56360

v.  D.C. No.

CV-00-13001-GAF GILBERT CROSS,

Defendant-Appellee. OPINION 

Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding

Argued and Submitted

December 8, 2004—Pasadena, California

Filed August 22, 2005

Before: Betty B. Fletcher, John T. Noonan, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

11047
COUNSEL

Stephen Yagman, Kathryn Bloomfield, Marion Yagman,

Joseph Reichman, Yagman & Yagman & Reichman &

Bloomfield, Venice Beach, California, for the plaintiffappellant. 

Wilmont A. Odom, Cal P. Saunders, Office of City Attorney,

Compton, California, for the defendant-appellee. 

OPINION

PAEZ, Circuit Judge: 

In this civil rights action, under 42 U.S.C. § 1983, Plaintiff

H.N. Dang prevailed in a jury trial on his excessive force

claim against Officer Gilbert Cross of the City of Compton

Police Department and was awarded compensatory damages,

but not punitive damages. We consider Dang’s consolidated

appeals. Dang first challenges the district court’s refusal to

instruct the jury that oppressive conduct can serve as a predicate for punitive damages under § 1983. Second, Dang contends that the district court erred in its calculation of

reasonable attorney’s fees and costs under 42 U.S.C. § 1988.

We hold that the district court erred in failing to instruct the

jury that it could award punitive damages if it found that

Cross acted in an oppressive manner and we conclude that

this error was not harmless. Second, we hold that the district

court did not abuse its discretion in determining the reasonable hourly rate it applied in calculating the fee award. We

vacate the fee award and remand, however, for further consideration of the reasonable hours expended in light of the proper

legal standard and for reimbursement of the cost of recording

an abstract of judgment. 

DANG v. CROSS 11051
I.

Plaintiff H.N. Dang was the shop manager of the Compton

Jewelry Exchange, which Compton police officers suspected

of operating an unlicensed pawn shop. On December 17,

1999, Compton police officers executed an undercover investigation of the Jewelry Exchange’s alleged pawn shop activities. An undercover officer, Betty Jones, entered the store to

attempt to pawn a ring. After Dang agreed to take the ring in

exchange for $100, Jones left the store and notified Officer

Gilbert Cross, who was waiting outside the store with two

other officers, that she had successfully pawned the ring. 

Shortly thereafter, three officers, Cross, Sergeant Preston

Harris, and Officer James Lewis, entered the store. When the

officers entered, Dang was in the office, which was separated

from the salesroom where the officers stood by a bulletproof

window and a steel security door. After Dang opened the

security door at the officers’ request, Harris and Cross entered

the office. Lewis remained by the front door. The officers

informed Dang that he was under arrest.1 Without patting

down or searching Dang, the officers handcuffed Dang and

requested that he produce the pawned ring. Dang informed the

officers that the ring was in a safe. Cross then instructed Dang

to open the safe. After the officers removed the handcuffs,

Dang bent down and proceeded to open the safe, which took

several attempts. After opening the safe, Dang reached inside.

As soon as he did so, however, Cross yelled at him to stop

and Harris pulled Dang away from the safe. Dang leaned forward again to reach into the safe and Harris pulled Dang back,

knocking him to the floor.2 As Dang was pushed to the floor,

1When Dang was told he was under arrest, he asked the officers if he

could call his girlfriend. The officers refused. Dang also turned on the

camcorder in order to film the events. Dang testified that Officer Cross

turned the camcorder off and removed it after Dang was handcuffed. 

2Dang testified that he reached into the safe to place the rings that he

was wearing in the safe for safekeeping. Cross and Harris testified that

Harris pulled Dang back because Dang grabbed the allegedly pawned ring

and they feared that he was going to destroy the slip attached to the ring.

11052 DANG v. CROSS
he was holding the allegedly pawned ring, which Cross

attempted to retrieve. 

A struggle ensued between Dang and the three officers, as

Lewis had joined the other two officers in the office at this

point. During the struggle, Cross struck Dang in the groin area

in order to incapacitate him.3 Although Cross testified that he

struck Dang in the groin with his fist, Dang testified that

Cross kicked him in the genitalia. After striking Dang in the

groin area, Cross punched Dang in the face. Dang also testified that the officers stepped on his head and his hand. The

officers finally subdued Dang when Harris put Dang into a

carotid restraint (a chokehold) and handcuffed him again. 

The police officers took Dang to the Compton Police

Department and, while waiting, Dang lost consciousness. The

officers then took Dang to the hospital for medical attention.

Dang later sought private medical care because of the bruises

and pain in his chest, shoulders, neck, arm, hand, mouth, and

groin, and because there was blood in his urine. 

Following the events of December 17, 1999, Dang filed

suit in the Central District of California against several City

of Compton officials and police officers alleging violations of

his Fourth Amendment rights under 42 U.S.C. § 1983. Before

the defendants filed motions for summary judgment, Dang

voluntarily dismissed the claims against all defendants except

Cross and Hourie Taylor, the Chief of Police for the Compton

Police Department. Dang also voluntarily dismissed his conspiracy and Fourteenth Amendment claims against these

remaining defendants. 

Dang alleged that Cross, in his individual capacity, violated

Dang’s Fourth Amendment rights by executing an unlawful

3Cross testified that he struck Dang because Officer Lewis yelled that

Dang was reaching for Lewis’s gun. Dang testified, however, that he never

reached for Lewis’s gun. 

DANG v. CROSS 11053
entry, illegal search and seizure, false arrest, and by using

excessive force. Dang sued Taylor in his individual and official capacities alleging supervisory liability for the constitutional violations and alleging that the violations arose from

the customs, policies, and practices of the Compton Police

Department. Cross and Taylor filed summary judgment

motions on all claims. The district court concluded that disputed material issues of fact regarding the extent of force

Cross used against Dang precluded summary judgment on

Dang’s excessive force claim against Cross. The court, however, granted summary judgment on all other remaining

claims against Cross and Taylor. 

At trial, Dang as well as Cross, Lewis, and Harris testified.

The jury found Cross liable for excessive force and awarded

Dang $18,000 in compensatory damages. Before the punitive

damages phase of the trial, Dang requested a punitive damages jury instruction that included a clause stating that an act

“oppressively done” could be a predicate for an award of

punitive damages. The district court rejected this instruction,

concluding that it was an inaccurate statement of the law, and

instead instructed the jury in accordance with Ninth Circuit

Model Civil Jury Instruction 7.5 (2002). In support of his

claim for punitive damages, the court allowed Dang to present

additional evidence. Dang called Cross as a witness and questioned him about his remorse for the events on December 17,

1999. After argument and deliberations, the jury declined to

award punitive damages and returned a verdict in favor of

Cross. 

At the conclusion of the litigation, Dang filed a motion for

an award of reasonable attorney’s fees under 42 U.S.C.

§ 1988. Dang sought $250,000 in fees and $2,030 in costs.

Cross opposed the motion. The district court awarded

$134,000 in attorney’s fees. The court arrived at this amount

by reducing the hours included in Dang’s requested fee award

by 25 percent and by reducing counsel’s hourly rate from

$550 to $400 per hour. The court also awarded Dang $908.25

11054 DANG v. CROSS
in costs, but denied his request for reimbursement of $18.50

for the cost of obtaining and recording an abstract of judgment. Dang timely appealed the judgment and the order granting attorney’s fees.

II.

“ ‘The standard of review on appeal for an alleged error in

jury instructions depends on the nature of the claimed error.’ ”

Phillips v. United States I.R.S., 73 F.3d 939, 941 (9th Cir.

1996) (quoting Oglesby v. S. Pac. Transp. Co., 6 F.3d 603,

606 (9th Cir. 1993)). “We review a district court’s formulation of jury instructions in a civil case for abuse of discretion.” White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir.

2002). “We review de novo whether the instructions misstated

the law.” Fireman’s Fund Ins. Cos. v. Alaskan Pride P’ship,

106 F.3d 1465, 1469 (9th Cir. 1997). Here, we review de

novo because Dang challenges the court’s instruction as an

incorrect statement of the law and the court rejected Dang’s

proposed instruction as contrary to the law of this circuit. See

Galdamez v. Potter, ___ F.3d ___, 2005 WL 1653618, at *3

(9th Cir. July 15, 2005). 

We have stressed that “[j]ury instructions must fairly and

adequately cover the issues presented, must correctly state the

law, and must not be misleading.” White, 312 F.3d at 1012.

Further, “[a] party is entitled to an instruction about his or her

theory of the case if it is supported by law and has foundation

in the evidence.” Jones v. Williams, 297 F.3d 930, 934 (9th

Cir. 2002). We also have noted that the “[u]se of a model jury

instruction does not preclude a finding of error.” United States

v. Warren, 984 F.2d 325, 328 (9th Cir. 1993). If, however, the

error in the jury instruction is harmless, it does not warrant

reversal. Tritchler v. County of Lake, 358 F.3d 1150, 1154

(9th Cir. 2004). “In evaluating jury instructions, prejudicial

error results when, looking to the instructions as a whole, the

substance of the applicable law was [not] fairly and correctly

covered.” Swinton v. Potomac Corp., 270 F.3d 794, 802 (9th

DANG v. CROSS 11055
Cir. 2001) (alteration in original) (internal quotation marks

and citations omitted). 

The issue here is whether the district court erred in rejecting Dang’s proposed punitive damages jury instruction and in

giving an instruction that did not instruct the jury that it could

award punitive damages on the basis of Cross’s allegedly

oppressive conduct. Dang requested that the court instruct the

jury as follows, in relevant part: 

If the jury should find from a preponderance of the

evidence that a plaintiff is entitled to a verdict for

nominal or compensatory damages; and should further find that an act or omission of a defendant,

which legally caused injury to a plaintiff, was callously or, maliciously, or wantonly, or oppressively

done, then the jury may, add to an award of nominal

or compensatory damages, such amount as the jury

shall find to be proper, as punitive damages. 

An act or a failure to act is ‘maliciously’ done, if

promoted or accompanied by ill will, or spite, or

grudge, either toward the injured person individually, or toward a person in one of [sic] more groups

or categories of which the injured person is a member. An act or a failure to act is ‘wantonly’ done, if

done in reckless or callous disregard or, or [sic]

indifference to, the rights of one or more persons,

including the injured person. 

An act or a failure to act is ‘oppressively’ done, if

done in a way or manner which injures, or damages,

or otherwise violates the rights of another person

with unnecessary harshness or severity, as by misuse

or abuse of authority or power, or by taking advantage of some weakness, or disability, or misfortune

of another person. 

11056 DANG v. CROSS
(emphasis added). Dang’s counsel further specified that he

would not object to an alternative instruction as long as it

included the concept of oppressive conduct as a predicate for

punitive damages because that was the basis for Dang’s punitive damages argument.4

 The district court concluded, however, that the provision that allowed the jury to award punitive

damages for an act “oppressively done” was an inaccurate

statement of the law. Thus, the court rejected the proposed

instruction and instead, relying on Model Instruction 7.5,

instructed the jury as follows, in relevant part: 

The plaintiff has the burden of proving that punitive

damages should be awarded, and the amount, by a

preponderance of the evidence. You may award

punitive damages only if you find that defendant’s

conduct was malicious, or in reckless disregard of

the plaintiff’s rights. Conduct is malicious if it is

accompanied by ill will, or spite, or if it is for the

purpose of injuring another. Conduct is in reckless

disregard of the plaintiff’s rights if, under the circumstances, it reflects complete indifference to the

plaintiff’s safety, rights, or the defendant acts in the

face of a perceived risk that its actions will violate

the plaintiff’s rights under federal law. 

We hold that the district court erred in concluding that

oppressive conduct is not a proper predicate for punitive damages. We further hold that the court’s omission of the oppressive acts provision rendered the jury instruction incomplete.

“[L]ooking to the instructions as a whole, the substance of the

applicable law was [not] fairly and correctly covered.” Swinton, 270 F.3d at 802 (alteration in original) (internal quotation

marks and citations omitted). Because punitive damages may

be awarded for conduct that was oppressive, and because the

record “provided an evidentiary basis for such an instruction,”

4

It is not disputed that Dang properly objected to the court’s punitive

damages instruction pursuant to Fed. R. Civ. P. 51(c). 

DANG v. CROSS 11057
the district court erred “[b]y failing to instruct the jury on [the

oppressive acts] concept.” See Gizoni v. Southwest Marine

Inc., 56 F.3d 1138, 1141 (9th Cir. 1995). 

A.

[1] Section 1983 was “intended to ‘create a species of tort

liability’ in favor of persons deprived of federally secured

rights.” Smith v. Wade, 461 U.S. 30, 34 (1983) (quoting Carey

v. Piphus, 435 U.S. 247, 253 (1978)). Further, the common

law of torts governs the recoverable damages for liability

under § 1983. Id. Accordingly, when the Supreme Court

determined the requisite mental state and conduct for a punitive damages award under § 1983, the Court looked to applicable tort law concepts. See id. at 38. 

[2] In Smith v. Wade, the Court considered whether punitive damages could be awarded only for intentionally malicious conduct or whether the district court properly instructed

the jury that it could award punitive damages “if the conduct

of one or more of the defendants is shown to be a reckless or

callous disregard of, or indifference to, the rights or safety of

others.” Id. at 33. Focusing on the standards for punitive damages at the time of the enactment of § 1983, the Court concluded that federal and state courts agreed that punitive

damage awards “did not require a showing of actual malicious

intent; they permitted punitive awards on variously stated

standards of negligence, recklessness, or other culpable conduct short of actual malicious intent.” Id. at 45. The Court

noted cases applying various formulations of the standards for

punitive damages awards that existed at the time Congress

enacted § 1983, including “malicious or wanton misconduct

or culpable neglect,” Welch v. Durand, 36 Conn. 182, 185

(1869), conduct done “wantonly, or oppressively,” Cowen v.

Winters, 96 F. 929, 935 (6th Cir. 1899) (citations omitted);

Berry v. Fletcher, 3 F.Cas. 286, 288 (C.C.Mo. 1870); Fotheringham v. Adams Exp. Co., 36 F. 252, 253 (E.D. Mo. 1888),

“gross negligence,” Frink & Co. v. Coe, 4 Greene 555, 1854

11058 DANG v. CROSS
WL 228, at *4 (Iowa 1854); Maysville & L.R. Co. v. Herrick,

76 Ky. 122, 127 (1877), “reckless negligence,” Florida Ry. &

Nav. Co. v. Webster, 5 So. 714, 719 (Fla. 1889), and “reckless

disregard of the rights of others,” Jacobus v. Congregation of

Children of Israel, 33 S.E. 853, 855 (Ga. 1899). See Smith,

461 U.S. at 45 n.12. In addition, the Court noted that in modern tort law, courts continue to apply the same standards for

punitive damages awards. Id. at 46. 

[3] Further, the Court concluded that there is “no reason

why a person whose federally guaranteed rights have been

violated should be granted a more restrictive remedy than a

person asserting an ordinary tort cause of action.” Id. at 48-49.5

The Court thus concluded “that a jury may be permitted to

assess punitive damages in an action under § 1983 when the

defendant’s conduct is shown to be motivated by evil motive

or intent, or when it involves reckless or callous indifference

to the federally protected rights of others.” Id. at 56. 

In light of the Supreme Court’s holding in Smith, we have

recognized that “[i]t is well-established that a ‘jury may

award punitive damages under section 1983 either when a

defendant’s conduct was driven by evil motive or intent, or

when it involved a reckless or callous indifference to the constitutional rights of others.’ ” Morgan v. Woessner, 997 F.2d

1244, 1255 (9th Cir. 1993) (quoting Davis v. Mason County,

927 F.2d 1473, 1485 (9th Cir. 1991)). Accordingly, the Ninth

Circuit Model Civil Jury Instruction 7.5, which addresses

punitive damages in federal civil cases, provides: 

If you find for the plaintiff, you may, but are not

required to, award punitive damages. The purposes

of punitive damages are to punish a defendant and to

deter a defendant and others from committing similar acts in the future. 

5The Court also rejected the defendant’s argument that the threshold for

punitive damages must always be higher than the standard for compensatory damages. Smith, 461 U.S. at 53. 

DANG v. CROSS 11059
The plaintiff has the burden of proving that punitive

damages should be awarded, and the amount, by a

preponderance of the evidence. You may award

punitive damages only if you find that defendant’s

conduct was malicious, or in reckless disregard of

the plaintiff’s rights. Conduct is malicious if it is

accompanied by ill will, or spite, or if it is for the

purpose of injuring another. Conduct is in reckless

disregard of the plaintiff’s rights if, under the circumstances, it reflects complete indifference to the

plaintiff’s safety, rights, or the defendant acts in the

face of a perceived risk that its actions will violate

the plaintiff’s rights under federal law. 

Model Civ. Jury Instr. 9th Cir. 7.5 (2004) (emphasis added).

This statement of the law of punitive damages is incomplete, however. The standard for punitive damages under

§ 1983 mirrors the standard for punitive damages under common law tort cases. See Smith, 461 U.S. at 49. As the cases

cited by the Court in Smith made clear, malicious, wanton, or

oppressive acts or omissions are within the boundaries of traditional tort standards for assessing punitive damages and foster “deterrence and punishment over and above that provided

by compensatory awards.” Id. at 54; see id. at 45 n.12, 46

n.13. Such acts are therefore all proper predicates for punitive

damages under § 1983. 

[4] Although we have not explicitly held that punitive damages may be awarded in federal civil rights cases for oppressive conduct, we have frequently operated under the

assumption that such an instruction is proper. For instance, in

Fountila v. Carter, 571 F.2d 487 (9th Cir. 1978), a discrimination case under the Fair Housing Act, we reviewed an

instruction that provided in part, “If you find for the plaintiff

and find, from a preponderance of the evidence, that the acts

of the defendant were maliciously or wantonly or oppressively

done, then you may award the plaintiffs punitive damages in

11060 DANG v. CROSS
addition to actual damages or in addition to nominal damages

such as you find.” Id. at 492 (emphasis added). We determined that the district court’s failure to inform the jury of the

purpose of punitive damages was prejudicial to the defendant;

however, we did not address whether the inclusion of the

oppressive acts clause was proper or required. Id. at 494. 

Similarly, in Ward v. City of San Jose, 967 F.2d 280 (9th

Cir. 1991), a § 1983 action, we affirmed the district court’s

ruling that the “evidence could not support a finding that the

officers acted ‘maliciously, wantonly, or oppressively,’ ”

without addressing whether this instruction was an appropriate legal standard for punitive damages. Id. at 286. In addition, in Price v. Kramer, 200 F.3d 1237 (9th Cir. 2000), in

which the plaintiff alleged illegal search and seizure and

excessive force under § 1983, we concluded that evidence of

the defendant police officer’s racial bias was relevant, in part,

because it went to “proving the defendant’s conduct was

‘malicious, wanton or oppressive or in reckless disregard of

the plaintiffs’ rights’ which, according to the jury instructions,

was necessary to the receipt of punitive damages.” Id. at

1251. Again we did not directly address the propriety of this

instruction. See also Larez v. City of Los Angeles, 946 F.2d

630, 639 (9th Cir. 1991) (holding that defendants’ challenge

to a punitive damages jury instruction was foreclosed because

the issue was not raised at trial but noting that the instruction

given, which included “maliciously, wantonly, or oppressively,” were within the standard set by Supreme Court in Smith

v. Wade); Gregory v. Thompson, 500 F.2d 59, 65 (9th Cir.

1974) (rejecting the defendant’s challenge to a district court’s

failure to instruct the jury on a good faith defense, while

upholding a jury instruction that allowed the jury to award

punitive damages if it “found [defendant] to have acted ‘maliciously or wantonly or oppressively’ ”).

[5] Thus, we now explicitly hold what was implicit in our

past decisions. As the Seventh Circuit held in McKinley v.

Trattles, 732 F.2d 1320 (7th Cir. 1984), we conclude that a

DANG v. CROSS 11061
jury instruction that allows for imposition of punitive damages for an act that was “oppressively done” and which

caused the plaintiff’s injury is “accurate and complete.” See

id. at 1326. In McKinely, the district court instructed the jury

that it could award punitive damages “[i]f the jury should find

from a preponderance of the evidence in the case that the act

or omission of the defendants which proximately caused

actual injury or damage to the plaintiff was maliciously or

wantonly or oppressively done.” Id. at 1326 n.2. The Seventh

Circuit found that “[t]hese jury instructions . . . comply with

the Supreme Court’s mandate in Smith v. Wade.” Id. at 1326.

We agree. This conclusion is also in line with several of our

other sister circuits. See, e.g., Walker v. Norris, 917 F.2d

1449, 1459 (6th Cir. 1990) (affirming an award of punitive

damages in a § 1983 case, concluding that the “maliciously,

wantonly, or oppressively done” jury instruction was “as strict

as the standard articulated by the Supreme Court in Smith v.

Wade”); Garza v. City of Omaha, 814 F.2d 553, 556 (8th Cir.

1987) (“In a § 1983 action, punitive damages may be awarded

where the defendant exhibits oppression, malice, gross negligence, willful or wanton misconduct, or a reckless disregard

for the civil rights of the plaintiff.”); Stokes v. Delcambre, 710

F.2d 1120, 1126 (5th Cir. 1983) (holding, in a § 1983 action,

that malicious, wanton, or oppressive acts are within the traditional tort punitive damages standards as required by Smith v.

Wade).6 In sum, the district court erred in concluding that

6

In addition to those circuits that have expressly held that such an

instruction is proper, several other circuits have implicitly recognized that

oppressive conduct is a proper predicate for punitive damages. See, e.g.,

Caban-Wheeler v. Elsea, 71 F.3d 837, 842 (11th Cir. 1996) (affirming an

award of punitive damages in a § 1983 action because there was sufficient

evidence that the defendants acted “maliciously, wantonly, or oppressively”); Beardsley v. Webb, 30 F.3d 524, 531 (4th Cir. 1994) (affirming an

award of punitive damages in a § 1983 suit based on evidence that “defendant’s acts were malicious or wanton or oppressive or willful”); Wren v.

Spurlock, 798 F.2d 1313, 1322 (10th Cir. 1986) (affirming an award of

punitive damages in § 1983 case based upon the jury’s finding that defendants’ acts were “maliciously or wantonly, or oppressively done”); Abraham v. Pekarski, 728 F.2d 167, 173 (3d Cir. 1984) (holding that evidence

supported punitive damages in a § 1983 case because the jury could find

that defendants acted with “ill will and oppressively”). 

11062 DANG v. CROSS
oppressive conduct, which was the basis for Dang’s theory of

punitive damages, is an inaccurate statement of the law. 

B.

In light of our conclusion that oppressive conduct is a

proper predicate for punitive damages under § 1983, we must

consider whether the instructions here adequately covered the

concept of oppression. “It is not error to reject a theory-ofthe-case instruction if the other instructions in their entirety

cover the [case] theory,” Brewer v. City of Napa, 210 F.3d

1093, 1097 (9th Cir. 2000) (quoting United States v. Lawrence, 189 F.3d 838, 843 (9th Cir. 1999)). Here, however, we

conclude that the court’s punitive damages instruction did not

cover Dang’s theory that Cross acted oppressively in striking

and subduing Dang. Unlike Brewer, in which the court concluded that “the instructions given ‘fairly and adequately

cover[ed] the issues presented,’ and provided Brewer with

ample room to argue his theory of the case to the jury,” id.,

the instructions here did not adequately cover oppressive conduct. 

As noted, the court’s instruction embodied the text of Ninth

Circuit Model Civil Jury Instruction 7.5 (2002). That instruction provided, “You may award punitive damages only if you

find that defendant’s conduct was malicious, or in reckless

disregard of the plaintiff’s rights.” The instruction further

defined malicious: “Conduct is malicious if it is accompanied

by ill will, or spite, or if it is for the purpose of injuring another.” The instruction also stated, “Conduct is in reckless disregard of the plaintiff’s rights if, under the circumstances, it

reflects complete indifference to the plaintiff’s safety, rights,

or the defendant acts in the face of a perceived risk that its

actions will violate the plaintiff’s rights under federal law.” 

[6] An act or omission is oppressive, however, “if done in

a manner which injures or damages or otherwise violates the

rights of another person with unnecessary harshness or severDANG v. CROSS 11063
ity as by misuse or abuse of authority or power or by taking

advantage of some weakness or disability or the misfortunes

of another person.” Fountila, 571 F.2d at 493; McKinley, 732

F.2d at 1326 n.2.7 We conclude that a defendant’s misuse of

authority or power or exploitation of a plaintiff’s weakness is

qualitatively different than a defendant’s act that is malicious

or in reckless disregard of the plaintiff’s rights. 

[7] Punitive damages serve to punish the defendant for

wrongful conduct and to deter the defendant and others from

repeating that wrong. See Cooper Indus., Inc. v. Leatherman

Tool Group, Inc., 532 U.S. 424, 432 (2001). Awarding punitive damages for oppressive conduct that was the cause of the

plaintiff’s injury deters and punishes the defendant for conduct that is not necessarily encompassed by malicious or reckless conduct. When a jury is instructed that it may award

punitive damages for oppressive acts, the jury must consider

the relative positions of power and authority between the parties and determine whether the defendant misused his power

or authority or abused the plaintiff’s weakness in the course

of the wrongful conduct. This determination is not identical

to the jury’s consideration of a defendant’s malicious acts or

reckless disregard of the plaintiff’s rights. In some situations

the jury may determine that the defendant’s conduct was

malicious or reckless and also oppressive. Nonetheless,

7We agree that this is the proper legal definition of “oppressive.” It is

also consistent with the common definition of oppression or oppressive.

See Webster’s Third New Int’l Dictionary Unabridged 1584 (1993) (defining “oppressive” as “unreasonably burdensome; unjustly severe, rigorous,

or harsh; constituting oppression” and further defining “oppression” as

“unjust or cruel exercise of authority or power esp. by the imposition of

burdens; the unlawful, excessive or corrupt exercise of power other than

by extortion by any public officer so as to harm anyone in his rights, person, or property while purporting to act under color of governmental

authority”); Black’s Law Dictionary 1127 (8th ed. 2004) (defining “oppression” as “1. The act or an instance of unjustly exercising authority or

power. 2. An offense consisting in the abuse of discretionary authority by

a public officer who has an improper motive, as a result of which a person

is injured.”) 

11064 DANG v. CROSS
oppressive conduct is sufficiently distinct to warrant a separate instruction. 

Indeed, several of our sister circuits have considered reckless or wanton conduct,8

 malicious conduct, and oppressive

conduct as separate and distinct bases for an award of punitive

damages under § 1983. See, e.g., Walker, 917 F.2d at 1459;

Garza, 814 F.2d at 556; Stokes, 710 F.2d at 1126; see also

Anderson v. United Fin. Co., 666 F.2d 1274, 1278 (9th Cir.

1982) (holding that punitive damages may be awarded under

the Equal Credit Opportunity Act if “the creditor wantonly,

maliciously or oppressively discriminates against an applicant,” or if “the creditor acts in reckless disregard of the

requirements of the law”). In addition, such a distinction was

drawn in assessing punitive damages at the time of the enactment of § 1983. See, e.g., Day v. Woodworth, 54 U.S. 363,

371 (1851) (holding that exemplary damages depend upon the

degree of “malice, wantonness, oppression, or outrage of the

defendant’s conduct”); Cowen, 96 F. at 935 (“[T]he jury . . .

may award exemplary, punitive, or vindictive damages . . . if

the defendant has acted wantonly, or oppressively, or with

such malice as implies a spirit of mischief or criminal indifference to civil obligations.”); Berry, 3 F.Cas. at 288 (“To

authorize the giving of exemplary or vindictive damages,

either malice, violence, oppression, or wanton recklessness

must mingle in the controversy.”); Fotheringham, 36 F. at 253

(“Punitive damages may be awarded when a wrongful act is

done willfully, in a wanton or oppressive manner, or even

when it is done recklessly.”).9

8Wanton misconduct is an act or omission “in reckless disregard of

another’s rights, coupled with the knowledge that injury will probably

result.” Black’s Law Dictionary 1020 (8th ed. 2004); see also McKinley,

732 F.2d at 1326 (“An act or a failure to act is wantonly done if done in

reckless disregard or callous disregard of or indifference to the rights of

one or more persons including the injured person.”). 

9

See also Philadelphia Traction Co. v. Orbann, 12 A. 816, 821 (Pa.

1888) (holding exemplary damages appropriate if defendant’s conduct was

DANG v. CROSS 11065
[8] Thus, when the plaintiff’s theory for awarding punitive

damages is based upon an alleged act of oppression and there

is a foundation in the evidence for an instruction on this theory, the district court must give such an instruction. See

Jones, 297 F.3d at 934. “[F]ailure to give an instruction on a

party’s theory of the case is reversible error if ‘the theory is

legally sound and evidence in the case makes it applicable.’ ”

Smith v. Sumner, 994 F.2d 1401, 1404 (9th Cir. 1993) (quoting United States v. Scott, 789 F.2d 795, 797 (9th Cir. 1986)).

Here, the evidentiary record provides a foundation for the theory of punitive damages based on oppressive conduct. The

jury reasonably could have concluded that Cross’s use of

force in the course of Dang’s arrest took advantage of Cross’s

authority and power and Dang’s relative weakness. Indeed,

the record reflects that Dang was positioned close to the floor

when the struggle ensued because he was ordered to open the

safe and that he was injured during the course of the struggle

with the three officers. We therefore conclude that there was

a sufficient evidentiary foundation for the oppressive conduct

instruction. Thus, the district court failed in its obligation “to

give jury instructions on all issues arising from the evidence

“willful and wanton, reckless or oppressive”); Jockers v. Borgman, 29

Kan. 109, 1883 WL 714, at *8 (1883) (“[E]xemplary damages . . . are not

to be awarded unless the conduct of a defendant is willful, wanton, reckless, malicious, oppressive, or otherwise deserving of condemnation

beyond the mere actual damage.”); Evans v. St. Louis, 11 Mo.App. 463,

1882 WL 9697, at *7 (Mo. Ct. App. 1882) (“[I]f the[ jury] should find that

the act of the conductor in putting the plaintiff off the train, under the circumstances, was wanton, reckless, or oppressive, they might give exemplary damages.”); Palmer v. Charlotte, 3 S.C. 580, 1872 WL 4908, at *12

(1872) (“[I]f there were no facts in the case to characterize the conduct of

the conductor as malicious, oppressive, or reckless of the rights of the

plaintiff, then the submission of the rule of exemplary damages was erroneous.”); Dorsey v. Manlove, 14 Cal. 553, 556 (1860) (“[W]here the trespass is committed from wanton or malicious motives, or a reckless

disregard of the rights of others, or under circumstances of great hardship

and oppression, the rule of compensation is not adhered to, and the measure and amount of damages are matters for the jury alone.”). 

11066 DANG v. CROSS
and to present the [plaintiff’s] theory of the case.” Glover v.

BIC Corp., 6 F.3d 1318, 1328 (9th Cir. 1993). 

C.

[9] Finally, we must consider whether the error was harmless. “An error in instructing the jury in a civil case requires

reversal unless the error is more probably than not harmless.”

Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir.

1992). “[W]e presume prejudice where civil trial error is concerned and the burden shifts to the [defendant] to demonstrate

‘that it is more probable than not that the jury would have

reached the same verdict’ had it been properly instructed.”

Galdamez, ___ F.3d. at ___, 2005 WL 1653618, at *7 (quoting Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir. 2005)).

Here, Cross simply argues that in light of the court’s punitive

damages instruction, it is more probable than not that the jury

would have reached the same conclusion even if the jury

instruction had included oppressive acts. Because this assertion presumes that oppressive conduct is necessarily encompassed within malicious or reckless conduct, it is insufficient

to rebut the presumption of prejudice. 

[10] On this record, we cannot conclude that it is more

probable than not that the error was harmless. “[N]othing

about this verdict indicates that the result would have been the

same without the error.” See Caballero, 956 F.2d at 207. During the liability and punitive damages phases of trial, the jury

concluded that Cross’s use of force was unreasonable under

the Fourth Amendment but was not malicious or in reckless

disregard of Dang’s rights. These determinations do not allow

us to conclude that the jury also would have concluded that

Cross’s conduct was not oppressive. Cf. Benigni v. City of

Hemet, 879 F.2d 473, 480 (9th Cir. 1988) (holding that the

district court’s failure to instruct the jury on reasonableness

was harmless because the jury’s award of punitive damages

indicated that the jury found the officer’s conduct to be worse

than unreasonable). Further, as discussed, in light of the eviDANG v. CROSS 11067
dence of Cross’s assertion of power and authority and Dang’s

position when he was struck, the jury may well have concluded that Cross acted in an oppressive manner. See Galdamez, ___ F.3d. at ___, 2005 WL 1653618, at *7. Thus, the

error here was not harmless, and we reverse for a new trial on

the issue of punitive damages. 

III. 

Under 42 U.S.C. § 1988, “the court, in its discretion, may

allow the prevailing party [in a § 1983 action], other than the

United States, a reasonable attorney’s fee as part of the costs

. . . .” 42 U.S.C. § 1988; Hensley v. Eckerhart, 461 U.S. 424

(1983). The parties do not dispute that Dang is the prevailing

party.10 Dang contends, however, that the district court abused

its discretion in determining the reasonable attorney’s fee

award and in refusing to reimburse Dang for expenditures

made to obtain and record an abstract of judgment.11

To determine reasonable attorney’s fees under § 1988, “the

district court should first determine the lodestar amount by

calculating ‘the number of hours reasonably expended on the

litigation multiplied by a reasonable hourly rate.’ ” Lytle, 382

F.3d at 988 (quoting Jordan v. Multnomah County, 815 F.2d

1258, 1262 (9th Cir. 1987)).12 The district court may then, in

10Although we remand for a new trial on punitive damages, we deem

it appropriate to address Dang’s challenges to the district court’s rulings

regarding attorney’s fees. Even if Dang does not pursue his request for

punitive damages on remand, Dang is a prevailing party under § 1988.

Dang prevailed at the liability phase of the trial and Cross does not challenge the award of compensatory damages. Ultimately, Dang is entitled to

an award of reasonable attorney’s fees. 

11We review an award of attorney’s fees under 42 U.S.C. § 1988 for

abuse of discretion. Webb v. Sloan, 330 F.3d 1158, 1167 n.6 (9th Cir.

2003), cert. denied, 124 S. Ct. 1042 (2004). “A district court abuses its

discretion if it applies an inaccurate statement of the law, or if it bases its

decision on a clearly erroneous finding of fact.” Lytle v. Carl, 382 F.3d

978, 982 (9th Cir. 2004). 

12The district court may exclude from the lodestar amount those hours

that were not “reasonably expended.” Hensley, 461 U.S. at 433. Here, the

11068 DANG v. CROSS
its discretion, adjust the lodestar amount after considering

other factors that bear on the reasonableness of the fee. Id.;

see also Morales v. City of San Rafael, 96 F.3d 359, 363-64

(9th Cir. 1996) (discussing the Kerr factors that bear on reasonableness that may be used to adjust the lodestar amount).

A.

[11] “[T]he extent of a plaintiff’s success is a crucial factor

in determining the proper amount of an award of attorney’s

fees under 42 U.S.C. § 1988.” Hensley, 461 U.S. at 440. To

determine fees in cases of partial success, such as the action

at issue here, “[a] court must consider (1) whether ‘the plaintiff fail[ed] to prevail on claims that were unrelated to the

claims on which he succeeded,’ and (2) whether ‘the plaintiff

achiev[ed] a level of success that makes the hours reasonably

expended a satisfactory basis for making a fee award.’ ” Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir.

2002) (quoting Hensley, 461 U.S. at 434). 

The first step requires the district court to determine

whether the successful and unsuccessful claims were unrelated. Webb, 330 F.3d at 1168. “[C]laims are unrelated if the

successful and unsuccessful claims are ‘distinctly different’

both legally and factually,” id. at 1169 (quoting Schwarz v.

Sec’y of Health & Human Serv., 73 F.3d 895, 902-03 (9th Cir.

1995)); claims are related, however, if they “involve a common core of facts or are based on related legal theories.” Id.

at 1168. At bottom, “the focus is on whether the unsuccessful

and successful claims arose out of the same ‘course of conduct.’ ” Id. at 1169. If they did not, the hours expended on the

unsuccessful claims should not be included in the fee award.

Webb, 330 F.3d at 1169; Schwarz, 73 F.3d at 901.

district court initially reduced the lodestar by fifteen percent because the

hours appeared “excessive, unnecessary, or redundant” and were inadequately documented. Dang does not challenge this initial reduction in

hours. 

DANG v. CROSS 11069
If, however, “the unsuccessful and successful claims are

related, then the court must apply the second part of the analysis, in which the court evaluates the significance of the overall

relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id. at 902-03 (internal quotation marks and citations omitted). “Where a plaintiff has

obtained excellent results, his attorney should recover a fully

compensatory fee.” Hensley, 461 U.S. at 435. When “a plaintiff has achieved only partial or limited success, [however,]

the product of hours reasonably expended on the litigation as

a whole times a reasonable hourly rate may be an excessive

amount.” Id. at 436. Nonetheless, a plaintiff does not need to

receive all the relief requested in order to show excellent

results warranting the fully compensatory fee. Id. at 435 n.11;

Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001). 

Here, the district court reduced the number of hours by an

additional ten percent because the court found “a measurable

part of the case activity was directed to matters pertaining to

Defendants who were ultimately eliminated from the case

through law and motion practice.” The district court concluded that “the question to be addressed by the trial court is

whether the unsuccessful claims played an important role in

the plaintiff’s partial success.” Pointing to the inclusion of

dismissed defendants and claims that “served to increase the

amount of unproductive time devoted to this case,” the court

reduced the attorney’s fee award by ten percent. 

[12] In making this determination, the district court failed

to consider whether the claims against the dismissed defendants and the unsuccessful claims of false arrest, illegal entry,

and unreasonable search and seizure against Cross were

related to the successful excessive force claim. We therefore

vacate the fee award and remand to the district court for a

determination of whether the unsuccessful claims were related

to Dang’s successful excessive force claim against Cross and

to determine the reasonable hours expended applying the correct standard. 

11070 DANG v. CROSS
B.

[13] Dang also challenges the $400 hourly rate approved by

the court. “ ‘[R]easonable fees’ under § 1988 are to be calculated according to the prevailing market rates in the relevant

community,” Blum v. Stenson, 465 U.S. 886, 895 (1984), taking into consideration “the experience, skill, and reputation of

the attorney.” Schwarz, 73 F.3d at 906 (quoting Chalmers v.

City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986),

amended, 808 F.2d 1373 (9th Cir. 1987)). 

[14] “To inform and assist the court in the exercise of its

discretion, the burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney’s own affidavits

—that the requested rates are in line with those prevailing in

the community for similar services by lawyers of reasonably

comparable skill, experience and reputation.” Blum, 465 U.S.

at 896 n.11. Here, the district court considered the evidence

produced by the parties, including fee rates of other attorneys

in similar practices, awards in comparable cases, counsel’s

experience and reputation level, and the market rates, as well

as two additional Kerr factors: the novelty/difficulty of the

issues and the preclusion of other work. See Morales, 96 F.3d

at 364. In light of the evidentiary record and the factors that

bear on the reasonableness of a fee award, the district court

concluded that $400 per hour, rather than the requested fee of

$550 per hour, was reasonable. This determination was not an

abuse of discretion.13

C.

Dang further challenges the district court’s rejection of his

request for reimbursement of the cost of obtaining an abstract

of judgment for $7.50 and recording the abstract of judgment

with the County Recorder’s Office for $11.00. Dang did not

13Because there is no need to take judicial notice of U.S. inflation rates,

we deny Dang’s request to do so. 

DANG v. CROSS 11071
request the abstract of judgment expenses as part of his Bill

of Costs pursuant to Federal Rule of Civil Procedure 54(b)(1)

and Rule 54-3 of the Rules of Court for the Central District

of California. Rather, after filing the Bill of Costs, Dang

included these expenses as part of his fee request under

§ 1988. 

[15] Under § 1988, the prevailing party “may recover as

part of the award of attorney’s fees those out-of-pocket

expenses that ‘would normally be charged to a fee paying client.’ ” Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994)

(quoting Chalmers, 796 F.2d at 1216 n.7). Such out-of-pocket

expenses are recoverable when reasonable. See id. at 20;

United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d

403, 407 (9th Cir. 1990). Here, Cross does not argue that the

abstract of judgment expense is not one that would normally

be charged to a fee paying client. Nor does he challenge its

reasonableness. Rather, Cross points to the fact that Dang

offers no explanation why this expense was necessary. Nonetheless, recording an abstract of judgment is a reasonable step

in the enforcement of a judgment. Indeed, California law

explicitly sanctions the recording of an abstract of judgment.

See Cal. C.C. P. § 697.310(a); see also Fed. R. Civ. P. 69(a)

(the procedure on execution of a writ to enforce a judgment

for payment of money “shall be in accordance with the practice and procedure of the state in which the district court is

held”). Further, it is an expense that would normally be

charged to a fee paying client. Under these circumstances,

Dang was entitled to recover the cost of obtaining and recording the judgment. 

IV.

We hold that the district court prejudicially erred in refusing to instruct the jury that punitive damages could be

awarded if it found that Cross’s acts that caused Dang’s injuries were oppressively done. We therefore vacate the judg11072 DANG v. CROSS
ment and remand for further proceedings on punitive

damages. 

We also vacate the attorney’s fee award and remand

Dang’s request for fees and costs under § 1988 for further

consideration consistent with this opinion. 

VACATED and REMANDED. 

DANG v. CROSS 11073