FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EVANGELINA MENDEZ; ANGEL 

MENDEZ,

Plaintiffs,

and

ARTURO JORGE GONZALEZ,

Appellant, No. 05-56118

v.  D.C. No.

CV-04-07131-GPS COUNTY OF SAN BERNARDINO; SAN

BERNARDINO COUNTY SHERIFF’S

DEPARTMENT; CITY OF HESPERIA;

JAMES MARTINEZ; ROD MEDLEY;

MARION BROWNE; CESAR REYES,

Defendants-Appellees. 

EVANGELINA MENDEZ; ANGEL 

MENDEZ,

Plaintiffs-Appellants,

and

JOSE MENDEZ; TIFFANY AUTREY,

Plaintiffs, No. 06-56424

v.  D.C. No.

COUNTY OF SAN BERNARDINO; SAN CV-04-07131-GPS

BERNARDINO COUNTY SHERIFF’S

DEPARTMENT; CITY OF HESPERIA;

JAMES MARTINEZ; ROD MEDLEY;

MARION BROWNE; CESAR REYES;

STEVEN LAWYER,

Defendants-Appellees. 

11787
EVANGELINA MENDEZ; ANGEL 

MENDEZ,

Plaintiffs-Appellants,

and

ARTURO JORGE GONZALEZ, No. 07-56029

Appellant, D.C. No.

v.  CV-04-07131-GPS

COUNTY OF SAN BERNARDINO; SAN OPINION

BERNARDINO COUNTY SHERIFF’S

DEPARTMENT; CITY OF HESPERIA;

JAMES MARTINEZ; ROD MEDLEY;

MARION BROWNE; CESAR REYES,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

George P. Schiavelli, District Judge, Presiding

Argued and Submitted

June 11, 2008—Pasadena, California

Filed August 27, 2008

Before: Stephen S. Trott, Michael D. Hawkins and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

11788 MENDEZ v. COUNTY OF SAN BERNARDINO
COUNSEL

Shirley M. Hufstedler (argued), Morrison & Foerster, LLP,

Los Angeles, California; Arturo J. Gonzales, Tony West

(argued), and Geoffrey Graber, Morrison & Foerster, LLP,

San Francisco, California, for the plaintiffs-appellants. 

Eugene P. Ramirez, Manning & Marder, Kass, Ellrod, &

Ramirez, LLP, Los Angeles, California; Patrick L. Hurley

(argued), Manning & Marder, Kass, Ellrod, & Ramirez, LLP,

San Francisco, California, for the defendants-appellees. 

Brad Seligman, The Impact Fund, Berkeley, California; Robert Rubin, Lawyers’ Committee for Civil Rights of the San

Francisco Bay Area, San Francisco, California, for the amici

curiae The Impact Fund and the Lawyers’ Committee for

Civil Rights of the San Francisco Bay Area. 

11792 MENDEZ v. COUNTY OF SAN BERNARDINO
OPINION

FISHER, Circuit Judge: 

Plaintiff-Appellant Evangelina Mendez (“Mendez”) and

members of her family brought this suit against the County of

San Bernardino, the City of Hesperia, the San Bernardino

Sheriff’s Department and various individual defendants (collectively, “the County”) under 42 U.S.C. § 1983 and state

law, alleging violations of their civil rights. This case arose

from the aftermath of an officer-involved shooting that

resulted in the death of Mendez’s deaf-mute son, Ignacio, in

July 2002. Although the legality of the shooting itself was not

challenged, Mendez and another of her sons, Angel, alleged

that the County falsely arrested them after the shooting, illegally searched the Mendez home and was negligent in the

supervision and training of its officers. Some of Mendez’s

claims were resolved on summary judgment and others were

voluntarily dismissed before trial; the remainder were tried

before a jury, which found in Mendez’s favor on the false

arrest and illegal search claims and awarded her nominal and

punitive damages. In this consolidated appeal, Mendez challenges the district court’s decisions limiting the jury’s consideration of her emotional damages, remitting her punitive

damages award and granting summary judgment to the

County on her state law negligent training claim. She also

appeals the court’s rulings denying her all attorney’s fees and

costs and sanctioning her attorney. She requests reassignment

of the case to a different judge on remand. We affirm in part,

reverse in part and remand without reassignment. 

BACKGROUND

Mendez’s son Ignacio was shot and killed by a police officer on the evening of July 2, 2002, during an armed standoff

with police on the driveway of the Mendez’s neighbor’s

home. Neither Mendez nor Angel was considered a suspect in

any crime, but both were witnesses to the event. Shortly after

MENDEZ v. COUNTY OF SAN BERNARDINO 11793
the shooting, Mendez was placed in the back of a police car

on the scene. The officer who first placed her in the car testified that he “opened the door and asked her to have a seat.”

After about 10 minutes, Mendez began to hit the windows,

asking to be released. An officer then transferred Mendez to

a different police car parked nearby. She again beat on the

windows in an attempt to ask for air; an officer eventually

cracked open a window for her. After about two hours,

Mendez and Angel were driven to the police station in separate cars for questioning. Mendez was not asked whether she

consented to being brought to the station and the officer who

brought her there never told her that she was free to leave. 

At the station, Mendez was placed in a room with a closed

door and questioned by two police officers, one of whom was

Deputy Cesar Reyes. Reyes translated in Spanish for Mendez,

who does not speak or read English and has minimal education. Reyes admitted that he did not tell Mendez that she was

free to leave the station. When Mendez told Reyes that she

wanted to see Ignacio, whom she did not yet know had been

shot fatally, Reyes told her that she could not see him. While

Mendez was being questioned, she was told to sign a form

written in English, giving the police consent to search her

home. Reyes did not translate the consent form for her,

including a statement that would have informed her that her

consent was voluntary and that she had a right to refuse.

When Mendez questioned whether searching her home was

necessary, Reyes put the paper in front of her and told her,

“This is a paper you need to sign.” Mendez then signed the

form. Relying on Mendez’s signed consent, police officers

conducted a search of the Mendez residence without a warrant. 

Mendez and Angel were released from the police station at

around five or six in the morning on July 3. When Mendez

returned home, she was at first blocked from entering because

police were still investigating the shooting scene. When she

was allowed to reenter later that morning, she saw that the

11794 MENDEZ v. COUNTY OF SAN BERNARDINO
house had been searched and noted that “the closets were all

out of order, and there were clothes thrown around and papers

thrown around.” Mendez’s husband testified that Mendez was

“crying uncontrollably” when she returned home and was

having difficulty speaking. One of the officers who questioned Mendez admitted that she was upset during some

points of the interview and that at times it was difficult for her

to speak, although he attributed her anguish to her son’s

shooting. Mendez later explained to the jury that she felt

“[l]ike a prisoner” while at the police station, because she did

not know what had happened to Ignacio and was afraid for

Angel’s life. 

Mendez and four family members brought this suit against

the County of San Bernardino, the City of Hesperia, the San

Bernardino Sheriff’s Department and five individual defendants, including Deputy Reyes, the two police officers who

drove Angel and Mendez to the police station, the supervisor

in charge of the shooting scene and an officer who responded

to an incident at the Mendez home on October 5, three months

after the shooting. The plaintiffs later voluntarily dismissed

their claims as to the October 5 incident, which removed this

latter defendant and three Mendez family members — all but

Mendez and Angel — from the case. The remaining claims

alleged false arrest of Mendez and Angel under state law and

the Fourth Amendment, illegal search under the Fourth

Amendment, negligent failure to train the police officers

under state law, and alleged that the County was liable for the

constitutional violations under Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978), for failing to adequately train its officers. Prior to trial, the district court granted summary judgment to the County on the state law negligence claim and the

Monell claim. The remaining claims proceeded to trial, where

the jury found against Reyes for Mendez’s false arrest under

state and federal law and against Reyes for the illegal search

of her home under federal law. The jury awarded Mendez $1

in nominal damages on each of these claims, plus $250,000

in punitive damages against Reyes, based on its finding that

MENDEZ v. COUNTY OF SAN BERNARDINO 11795
he acted recklessly in depriving her of her constitutional

rights. The jury found for the County as to Angel’s claims. 

JURISDICTION

This case was brought under 42 U.S.C. § 1983; the district

court had jurisdiction under 28 U.S.C. § 1331. The district

court entered final judgment in June 2007, and Mendez timely

appealed. The court denied Mendez’s request for attorney’s

fees and costs under 42 U.S.C. § 1988(b) in a separate order,

and Mendez timely appealed that order. The court also sanctioned Mendez’s attorney in a separate order and Mendez and

her attorney timely appealed the sanctions order. These three

appeals have been consolidated for our review and we have

jurisdiction over them under 28 U.S.C. § 1291. We shall consider Mendez’s arguments concerning the trial itself first, followed by her arguments as to the court’s denial of attorney’s

fees and entry of sanctions against her attorney. 

DISCUSSION

I. Jury Instruction on Mendez’s Emotional Damages

Mendez first contends that the district court erred when it

issued a sua sponte instruction to the jury limiting its consideration of her emotional damages. The jury initially received

an instruction that Mendez’s damages should be “the amount

of money which would reasonably and fairly compensate the

plaintiff for any injury you find was caused by the defendant.”

The district court later recalled the jury in the midst of deliberations and — over Mendez’s objections — instructed it

“that the evidence does not support an award of damages for

any period after July 3, 2002,” the day Mendez was released

from the police station. It is well established that “[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

review a district court’s formulation of jury instructions for

11796 MENDEZ v. COUNTY OF SAN BERNARDINO
abuse of discretion. Id. Mendez contends that the district court

abused its discretion by limiting the jury’s consideration of

her damages to only the two days of events at issue, contrary

to Mendez’s theory of her case. We disagree and affirm the

district court. 

A.

Mendez presented fairly minimal evidence of any actual

damages she suffered as a result of her illegal arrest and the

illegal search of her home. During trial, she testified that she

felt “[l]ike a prisoner” while she was at the police station, and

that she “was desperate” and was afraid they might kill her

son, Angel. She also recounted beating on the windows of the

police car she was placed in after the shooting. A detective

who interviewed Mendez on the night of July 2 agreed that

she was upset during some points of the interview and that at

times it was difficult for her to talk, although he believed that

her anguish was related to Ignacio’s shooting. Mendez’s husband similarly testified that his wife was “crying uncontrollably” and unable to speak when she returned home from the

police station. As to the ill effects of the illegal search,

Mendez testified only that she noted upon her return that “the

closets were all out of order, and there were clothes thrown

around and papers thrown around.” 

Although this evidence arguably showed that Mendez had

suffered emotionally during the false arrest and illegal search,

she did not present any expert witnesses, medical evidence or

even testify herself that she had suffered any ongoing ill

effects from the illegal arrest and search. The only evidence

she presented of any possible ongoing emotional damages at

all occurred during the following exchange at trial: 

Counsel: Are you taking medication for depression

now? 

Mendez: Yes. 

MENDEZ v. COUNTY OF SAN BERNARDINO 11797
Counsel: And when was that prescribed? 

Mendez: After they killed my son.

Counsel did not, however, ask Mendez any follow-up questions to link her depression specifically to her emotional distress from the illegal arrest and search as opposed to any

distress she felt from Ignacio’s death. The only other evidence

that Mendez now suggests could support a jury’s finding of

ongoing emotional damages was that she cried on the witness

stand while recounting some of the events. 

The district court first expressed concerns about the scope

of the emotional damages instruction before closing arguments, when the County requested an instruction that neither

Mendez nor Angel had suffered any damages other than nominal damages. The court was not persuaded that plaintiffs had

failed to show any emotional damages from the events, but

did flag its concern as to whether they had put forward any

evidence of ongoing emotional damages. The court did not

immediately rule on the issue, however, and counsel proceeded to make their closing arguments the next day. During

a break between the defendant’s closing argument and the

plaintiff’s rebuttal, the court raised the issue again, stating that

it was aware of Mendez’s testimony about depression, “but I

would like to see the testimony indicating — pointing to specifically, the detention and the search as being the cause of

that depression.” Mendez’s counsel willingly agreed to defer

argument on the issue until after he had delivered his rebuttal;

the district court then ordered both sides to prepare a record

of transcript excerpts supporting ongoing emotional damages.

The case was then submitted to the jury. After reviewing the

parties’ submissions, the court ruled the next morning that

“limitation is appropriate, especially in light of the lack of

specific evidence as to damages and their time frames.” The

court recalled the jury and issued a new instruction limiting

its consideration of damages to the two days Mendez was in

11798 MENDEZ v. COUNTY OF SAN BERNARDINO
custody. The jury ultimately returned an award of nominal

damages for the false arrest and illegal search claims. 

B.

Mendez raises two principal arguments against the district

court’s revised jury instruction. First, she contends that the

court abused its discretion because there was a sufficient

“foundation in the evidence” for the jury to have found that

she incurred ongoing emotional damages, beyond the damages she suffered during the false arrest and illegal search

itself. Jones, 297 F.3d at 934. We disagree. As Mendez essentially admits, the only evidence that she suffered any ongoing

emotional distress was her testimony that she had been on

anti-depressants since the day of the shooting. She never testified, however, that this depression was related to the illegal

search and arrest, as opposed to any depression she may have

felt at the traumatic death of her son, an event for which the

County was not liable. She was never asked, nor did she testify, that she suffered any ongoing distress, ill feelings or

delayed trauma as a result of the illegal arrest or search, nor

did she put forth any medical evidence about the cause of her

depression. 

[1] Although we agree that emotional damages may be

based on “humiliation and emotional distress established by

testimony or inferred from the circumstances, whether or not

plaintiffs submit evidence of economic loss or mental or

physical symptoms,” see Johnson v. Hale, 13 F.3d 1351, 1352

(9th Cir. 1994), this does not mean that emotional damages

can be inferred entirely from circumstances, without any supporting testimony from witnesses. To the contrary, in Johnson

the plaintiffs provided “detailed and substantial testimony” to

support their emotional damages claim. See id. at 1353. In

that case we were merely clarifying that they did not also

need to present evidence of actual mental or physical symptoms. See id. Mendez also points to Murphy v. City of Long

Beach, 914 F.2d 183, 186-87 (9th Cir. 1990), where we held

MENDEZ v. COUNTY OF SAN BERNARDINO 11799
that a trial court did not abuse its discretion in ordering a new

trial, when the trial court had concluded that it was erroneous

to instruct a jury that a plaintiff’s emotional distress was necessarily attributable to one of two possibly traumatizing

events, only one of which was illegally caused by defendants.

Murphy offers no support to Mendez, however, because in

that case we did not consider what evidence the plaintiffs

presented — or would need to present — to establish that they

suffered ongoing emotional distress from the defendants’ act.

We agree that it is possible that Mendez suffered ongoing

damages from both the illegal search and arrest as well as the

death of her son. The district court did not abuse its discretion, however, because she presented no evidence to support

that possibility. 

[2] Second, Mendez argues that the timing of the jury

instruction — coming after closing arguments, in the midst of

jury deliberations — denied her due process. She relies on

United States v. Eisen, 974 F.2d 246, 256 (2d Cir. 1992),

which held that Federal Rule of Criminal Procedure 30

requires a trial court to rule on jury instructions prior to summation, “to afford the parties an opportunity to frame their

closing remarks in light of the court’s subsequent legal

instructions.” Even assuming the dubious proposition that this

rule of federal criminal procedure is also a principle of constitutional due process applicable to civil trials, Mendez can neither show that she was “substantially misled in formulating

[her] arguments” nor otherwise prejudiced. Cf. id. Mendez

was on notice that the court had concerns about the scope of

her damages instruction, but she agreed to defer the court’s

ruling on the matter until after her counsel had given his

rebuttal argument. Further, her closing argument for damages

was couched in very broad terms, telling the jury that there is

no “magical formula” to assess damages and that they should

just “be reasonable” and “fair to Mrs. Mendez.” Her counsel’s

reference to the ongoing depression during closing arguments

was brief and cannot show that she was “substantially misled”

in formulating her arguments. Id. We affirm. 

11800 MENDEZ v. COUNTY OF SAN BERNARDINO
II. Reduction of the Punitive Damages Award

[3] The jury awarded Mendez $1 each in nominal damages

for her false arrest and illegal search claims and $250,000 in

punitive damages against Reyes, whom it found to have acted

in reckless disregard of her constitutional rights. After trial,

the County moved to remit the award, arguing that it was

excessive in violation of the Due Process Clause under BMW

of North America, Inc. v. Gore, 517 U.S. 559 (1996), and

State Farm Mutual Automobile Insurance Co. v. Campbell,

538 U.S. 408 (2003). The district court agreed and reduced

the punitive damages award to $5,000, finding the punitive

damages award excessive “in light of the nominal compensatory damages awarded.” We evaluate the constitutionality of

a punitive damages award by following the guideposts provided by the Supreme Court, assessing: “(1) the degree of reprehensibility, (2) the disparity between the harm suffered and

the punitive damages award, and (3) the difference between

this remedy and the civil penalties authorized or imposed in

comparable cases.” Bains LLC v. ARCO Prods. Co., 405 F.3d

764, 775 (9th Cir. 2005) (citing Gore, 517 U.S. at 574-75).

We review the district court’s application of the Gore guideposts to a jury’s punitive damages award de novo, but defer

to the district court’s findings of fact unless they are clearly

erroneous. Planned Parenthood of the Columbia/Willamette,

Inc. v. Am. Coalition of Life Activists, 422 F.3d 949, 953-54

(9th Cir. 2005). Mendez argues that the jury’s award was not

unconstitutionally excessive and so should be reinstated. We

disagree and affirm the district court. 

State Farm enumerates the factors we should consider

when evaluating the reprehensibility of the defendant’s conduct under the first guidepost. We look to whether 

the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference

to or a reckless disregard of the health or safety of

others; the target of the conduct had financial vulnerMENDEZ v. COUNTY OF SAN BERNARDINO 11801
ability; the conduct involved repeated actions or was

an isolated incident; and the harm was the result of

intentional malice, trickery, or deceit, or mere accident. 

State Farm, 538 U.S. at 419. Reprehensibility falls along a

scale, with “acts and threats of violence at the top, followed

by acts taken in reckless disregard for others’ health and

safety, affirmative acts of trickery and deceit, and finally, acts

of omission and mere negligence.” Swinton v. Potomac Corp.,

270 F.3d 794, 818 (9th Cir. 2001) (internal quotation marks

omitted). “Although determining the degree of reprehensibility ultimately involves a legal conclusion, we must accept the

underlying facts as found by the jury and the district court,”

because district courts have a “somewhat superior vantage” in

assessing the defendant’s conduct. Leatherman Tool Group,

Inc. v. Cooper Indus., Inc., 285 F.3d 1146, 1150 (9th Cir.

2002) (internal quotation marks omitted). 

Applying the Supreme Court’s guidance in State Farm, the

district court found that Reyes’ conduct in failing to translate

the consent-to-search form and illegally detaining Mendez at

the police station was not so reprehensible as to justify the

jury’s award of punitive damages. The court noted, among

other things, that although the jury found that Reyes acted

with reckless disregard for Mendez’s rights, there was no evidence that he acted with malice. Accordingly, on the range of

reprehensible conduct identified by the Supreme Court, the

district court found that “Reyes’ conduct was closer to mere

accident than it was to malice.” The court also found, and

Mendez now concedes, that there is no evidence that Reyes

had acted in the same manner on any other occasion, thus

making this the kind of “isolated incident” the Court found

less reprehensible than repeated conduct. State Farm, 538

U.S. at 419. Reyes’ conduct lastly did not pose any risk to

Mendez’s bodily health or safety. Although the injury here

was physical and emotional rather than economic, the district

court noted that the jury’s award of nominal damages ulti11802 MENDEZ v. COUNTY OF SAN BERNARDINO
mately indicated that “the harm caused by Reyes’ conduct

was minimal.” 

[4] Although Mendez concedes that not all the reprehensibility factors point in her favor, she argues that Reyes’ conduct was nonetheless reprehensible because of its recklessness

and because Mendez, while not financially vulnerable, was

particularly vulnerable to the kind of constitutional deprivation she suffered here. We agree with other courts that abuses

of police power not involving actual violence are still reprehensible, insofar as they involve an illegal exercise of authority “backed by the weight and force of state power.” Lee v.

Edwards, 101 F.3d 805, 810 (2d Cir. 1996). We certainly do

not approve of Reyes’ having deliberately and illegally withheld relevant information from Mendez and pressuring her to

sign the consent-to-search form, knowing that she was reluctant to agree and was not fully aware of her rights. Nonetheless, the district court’s findings of fact as to the

reprehensibility of Reyes’ conduct were not clearly erroneous.

The degree of reprehensibility therefore weighs against the

jury’s substantial punitive damages award here. 

[5] Under the second Gore guidepost, we look to the ratio

between the punitive damages and the actual harm inflicted

on the plaintiff. 517 U.S. at 580. In this case, because Mendez

was awarded only nominal damages, the award of $250,000

in punitive damages — which represents a ratio of 125,000 to

one — is obviously considerably in excess of the single-digit

ratios the Court has deemed “more likely to comport with due

process” than higher ratios. See State Farm, 538 U.S. at 425.

The Court, however, has carved out an exception relevant to

this case, which is that “ratios greater than those we have previously upheld may comport with due process where a particularly egregious act has resulted in only a small amount of

economic damages.” Id. (internal quotation marks omitted).

Constitutional torts such as Mendez’s are far more likely to

present such scenarios. Ratios in excess of single digits in

§ 1983 suits therefore will not generally violate due process

MENDEZ v. COUNTY OF SAN BERNARDINO 11803
when the victim suffers no compensable injury. If we were to

hold otherwise, then “any appreciable exemplary award

would produce a ratio that would appear excessive by this

measure.” Lee, 101 F.3d at 811. This would conflict with the

Court’s clear guidance that punitive damages should remain

available under § 1983 even in the absence of a compensable

injury, and that in such situations “punitive damages may be

the only significant remedy available.” Smith v. Wade, 461

U.S. 30, 55 n.21 (1983) (internal quotation marks omitted). 

[6] The district court did not rule otherwise, however, and

awarded Mendez $5,000 in punitive damages — a ratio of

2,500 to one, which is also significantly in excess of single

digits. The district court firmly rejected the County’s suggestion that the only punitive damages award that would comport

with due process would be an $18 award, noting that such a

small award would not be “sufficient to deter other law

enforcement officers from engaging in similar conduct in the

future.” Although we agree that the second Gore guidepost

may have reduced relevance in § 1983 suits involving only

nominal damages, we do not agree with Mendez’s contrary

suggestion that this factor has no relevance. In this case, the

jury awarded a staggering $250,000 in punitive damages,

even though the jury found that Mendez suffered no compensable injury from Reyes’ actions. While the second Gore

guidepost may not be dispositive of the excessiveness of the

award in this case, the great disparity between the actual and

punitive damages does not cut in Mendez’s favor. 

Under the final Gore guidepost, we compare the punitive

damages award in this case to any civil or criminal penalties

authorized or imposed in comparable cases. 517 U.S. at 583-

84; see also State Farm, 538 U.S. at 428. Other circuits have

placed greater emphasis on this factor when a civil penalty

was readily available as a yardstick of reasonableness and

actual damages in the case were nominal or small. In cases

involving illegal discrimination under the Fair Housing Act,

for example, courts of appeals have upheld punitive damage

11804 MENDEZ v. COUNTY OF SAN BERNARDINO
awards of approximately $50,000 despite small actual damage

awards, in part because this amount roughly equaled the civil

penalty available for these violations. See, e.g., Lincoln v.

Case, 340 F.3d 283, 294 (5th Cir. 2003); United States v. Big

D Enters., 184 F.3d 924, 933 (8th Cir. 1999). Mendez, however, identifies no civil penalty available under law for violations of constitutional rights, nor has she identified any

comparable cases in which a civil penalty of $250,000 was

imposed for the kind of conduct Reyes engaged in here.

Accordingly, this factor provides no guidance in assessing the

constitutionality of the award. 

[7] Considering all of the Gore guideposts, we conclude

that the jury’s award was unconstitutionally excessive in violation of due process and therefore properly remitted by the

district court. Because the punitive damages award was excessive under the Due Process Clause, we need not decide

whether it was also excessive as a matter of federal common

law. See Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2626-

27 (2008). Constitutional torts are governed by the federal

common law, subject to the authority of Congress to legislate

otherwise. See Smith, 461 U.S. at 34 (holding that damage

remedies in § 1983 suits are determined by looking “first to

the common law of torts (both modern and as of 1871)”). In

Exxon Shipping, the Court held that the federal common law

of maritime torts should contain “more rigorous standards

than the constitutional limit” on punitive damage awards, and

concluded that “a 1:1 ratio, which is above the median award,

is a fair upper limit.” Id. at 2629, 2633. Any attempt to fashion a federal common law rule of reasonableness for punitive

damage awards for constitutional torts, however, would have

to make “such modification or adaptation [to the common

law] as might be necessary to carry out the purpose and policy” of § 1983. Smith, 461 U.S. at 34. We decline to make any

such rules here, when we agree that the award was excessive

as a matter of due process. We therefore affirm the district

court’s remittur. 

MENDEZ v. COUNTY OF SAN BERNARDINO 11805
III. Summary Judgment on the State Law Negligent

Training Claim

[8] Mendez contends that the district court erred in granting

summary judgment to the County on her state law negligence

claim for failing to train police officers on how to legitimately

obtain the consent of individuals brought to the police station.

Under California law, a public entity generally is immune

from suit for injuries arising from acts or omissions of the

entity or its employees. See Cal. Gov’t Code § 815(a). California law creates an exception, however, in cases where the

public entity is “under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular

kind of injury,” and the public entity is liable for causing that

kind of injury while failing to exercise reasonable diligence in

discharging its duty. See Cal. Gov’t Code § 815.6. The district

court granted summary judgment to the County, concluding

that the plaintiffs had “present[ed] virtually no evidence

regarding the County’s training of its deputies.” We review

the district court’s grant of summary judgment de novo. Davis

v. City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007). We

affirm. 

The County first argues that it is immune from suit under

California Government Code § 815(a), because no statute

creates a mandatory duty of care as to the training of its

employees. As the County admits, however, it makes this

argument for this first time on appeal, after having conceded

before the district court that it was under a duty to train its

employees adequately, and arguing instead that it satisfied

that duty. We decline to address the County’s new theory of

defense because it was not presented to the district court. See

Wagner v. Prof’l Eng’rs in Cal. Gov’t, 354 F.3d 1036, 1044

n.4 (9th Cir. 2004) (“Generally, before an argument will be

considered on appeal, the argument must be raised sufficiently for the trial court to rule on it.”) (internal quotation

marks omitted); see also In re Bliemeister, 296 F.3d 858, 861

11806 MENDEZ v. COUNTY OF SAN BERNARDINO
(9th Cir. 2002) (“Sovereign immunity . . . . may be forfeited

where the state fails to assert it.”). 

[9] Although we reject the County’s immunity defense, we

nonetheless affirm the district court because we agree that

Mendez did not create a triable issue of fact as to whether the

County failed to satisfy its statutory duty of care. Mendez

argues that the guidelines and regulations that create the

County’s duty to train its employees are California’s Peace

Officer Standards and Training (“POST”) regulations, which

are promulgated under California Penal Code § 13510. These

rules establish “minimum standards for training of city police

officers” and other peace officers in California. See Cal. Penal

Code § 13510(a). Mendez presented no evidence, however,

that the County negligently failed to comply with the POST

regulations on training. Instead, she focused on showing that

the County did not train its employees on how to obtain “implied consent” from a witness and offered the testimony of an

expert witness from the Detroit Police Department, who

asserted that an adequate training program should include

training on obtaining implied consent. None of this evidence

established that the POST regulations or any other statute

create a duty to train employees on implied consent or that the

County negligently failed to fulfill that duty. We affirm.

IV. Mendez’s Request for Attorney’s Fees and Costs

After the jury’s verdict in her favor, Mendez moved for

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

1988(b) authorizes the district court to award the prevailing

party “a reasonable attorney’s fee” in any suit to enforce the

provisions of 42 U.S.C. § 1983. As the Supreme Court has

noted, “[t]he purpose of § 1988 is to ensure ‘effective access

to the judicial process’ for persons with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting H.R. Rep. No. 94-1558, p. 1 (1976)). Therefore, “a

prevailing plaintiff should ordinarily recover an attorney’s fee

unless special circumstances would render such an award

MENDEZ v. COUNTY OF SAN BERNARDINO 11807
unjust.” Id. (internal quotation marks omitted). Although a

district court’s award of attorney’s fees is generally reviewed

for abuse of discretion, “we only arrive at discretionary

review if we are satisfied that the correct legal standard was

applied and that none of the district court’s findings of fact

were clearly erroneous.” Thomas v. City of Tacoma, 410 F.3d

644, 647 (9th Cir. 2005). The district court acknowledged that

Mendez was a prevailing plaintiff and therefore was ordinarily entitled to a reasonable attorney’s fee, but nonetheless

denied her request for costs and fees in its entirety, finding

that her request was “so excessive that [it] warrant[s] a denial

of fees altogether.” Mendez argues that the district court erred

by denying her all costs and fees. We agree, and so we reverse

and remand for a determination of reasonable costs and fees.

A.

Following the jury’s verdict, Mendez moved the district

court for an award of fees in the amount of $727,558, attaching supporting affidavits and other documentation to her

motion. Mendez was represented by attorneys from the law

firm Morrison & Foerster, LLP. An affidavit from her lead

counsel explained that counsel had spent 2,570 hours preparing for and trying her case, excluding hours that were spent

pursuing her unsuccessful Monell claim against the County

and the claims Mendez voluntarily dismissed. Mendez

requested that the two partners who worked on her case be

compensated at between $450 and $550 per hour, which was

the typical rate at which they billed their clients at that time.

Mendez asked that the two associates who primarily worked

on the case be compensated at rates between $250 and $300

per hour, which was somewhat below their usual market rate.

Mendez’s counsel stated that the final fee request was calculated after voluntarily discounting the partners’ hours by 10

percent and the associates’ and paralegals’ hours by 20 percent, “in order to address any concerns that the Court or the

defendants may have that on any given day or task, any person may have devoted too much time to any particular proj11808 MENDEZ v. COUNTY OF SAN BERNARDINO
ect, or to alleviate any concerns that the rates sought are too

high.” Lastly, Mendez stated that she had incurred more than

$80,000 in costs, but was requesting only $70,000, again in an

attempt to avoid disputes over the propriety of particular

costs. 

The County did not contest Mendez’s entitlement to attorney’s fees and costs under § 1988, but did object to certain

hours it deemed excessive and certain costs it found objectionable. In calculating an appropriate fee award for Mendez,

the County proposed that 1,999 hours of work were reasonably expended on the case. After reducing the partners’ and

associates’ billing rates to $300 and $150 per hour respectively — which the County considered more reasonable rates

for civil rights work — the County suggested that $390,225

in fees were reasonably incurred. The County asked the court

to reduce this figure by 75 percent, however, based on what

it argued was the limited degree of success the plaintiffs had

achieved, resulting in a final proposed fee award of $97,556.

The County similarly proposed an across-the-board reduction

of Mendez’s costs by 75 percent, suggesting that the court

award no more than $18,009. In reply, Mendez agreed to further reduce certain hours and costs to accommodate the County’s specific objections and agreed to a slight reduction in the

partners’ billing rates, but refused to accept any percentage

reduction to the overall costs or fees based on the alleged poor

degree of success. Mendez’s final request, after adding in

additional hours spent working on the case since the motion

for attorney’s fees was filed, was for $727,307 in fees and

$65,000 in costs. 

Despite Mendez’s success on the merits and the County’s

acknowledgment that she was entitled to recover what it considered reasonable attorney’s fees and costs, the district court

denied her request for fees and costs entirely. During a hearing on the motion for attorney’s fees, the district court called

Mendez’s request “the most excessive fee request I have ever

seen” and told the parties that it believed there was case law

MENDEZ v. COUNTY OF SAN BERNARDINO 11809
that would support “simply denying the request.” The court

noted that it did not think Mendez’s case was particularly

complicated, because it involved no novel issues of constitutional law and the events in question occurred over a relatively short time span. The court also observed that the suit

had not achieved any significant success, because the jury

awarded Mendez only nominal and punitive damages on two

of her claims. The court requested supplemental briefing from

the parties to address the possible applicability of Scham v.

District Courts Trying Criminal Cases, 148 F.3d 554 (5th Cir.

1998), abrogated on other grounds by Bailey v. Mississippi,

407 F.3d 684 (5th Cir. 2005), and Brown v. Stackler, 612 F.2d

1057 (7th Cir. 1980), two cases where courts of appeals held

that a court may deny a request for attorney’s fees if it was

so excessive as to “shock the conscience.” After reviewing the

parties’ supplemental briefing, the district court entered a

minute order denying costs and fees, finding that “the amount

requested satisf[ies] the ‘shocks the conscience’ test.” The

district court later entered a final written order denying costs

and fees, again emphasizing the overall excessiveness of

Mendez’s request. This appeal followed.

B.

[10] The County does not dispute that Mendez was a prevailing plaintiff and, as such, would ordinarily be entitled to

a reasonable attorney’s fee. The jury found in Mendez’s favor

on three claims against five parties: her two constitutional

claims of unreasonable search and false arrest against Reyes,

and her state law claim of false arrest against Reyes, the

County of San Bernardino, the San Bernardino Sheriff’s

Department and the City of Hesperia. Even a plaintiff who

wins only nominal damages is considered a prevailing plaintiff under § 1988; Mendez won both nominal and punitive

damages. See Farrar v. Hobby, 506 U.S. 103, 112 (1992).

Although she did not prevail against all defendants or on all

of her claims, it is well established that “fail[ure] to recover

on all theories of liability is not a bar to recovery of attorney’s

11810 MENDEZ v. COUNTY OF SAN BERNARDINO
fees.” Thomas, 410 F.3d at 649. A plaintiff is entitled to

recover attorney’s fees even for claims on which she did not

prevail, if they “involve a common core of facts or are based

on related legal theories.” Id. (internal quotation marks omitted). Nonetheless, the district court dispensed with “the practice courts are generally required to follow when calculating

attorney’s fees in civil rights cases — i.e., computing a lodestar figure and then, if necessary, making adjustments to that

figure based upon reasonableness factors,” instead denying all

costs and fees as excessive. Morales v. City of San Rafael, 96

F.3d 359, 362 (9th Cir. 1997). 

[11] Congress’ intent in enacting § 1988 was to attract

competent counsel to prosecute civil rights cases, where “victims ordinarily cannot afford to purchase legal services at the

rates set by the private market.” City of Riverside v. Rivera,

477 U.S. 561, 576 (1986) (plurality opinion). Therefore, “a

court’s discretion to deny fees under § 1988 is very narrow

and . . . fee awards should be the rule rather than the exception.” Herrington v. County of Sonoma, 883 F.2d 739, 743

(9th Cir. 1989) (internal quotation marks omitted). The

Supreme Court and we have thus denied a prevailing plaintiff

an attorney’s fee in only certain limited situations, none of

which is applicable here. In Farrar, the Court held that a

plaintiff who seeks a large damages award but wins only

nominal damages, thus failing to prove an essential element

of the relief sought, may reasonably be awarded no fees. 506

U.S. at 115. We have explained, however, that such a denial

is appropriate only where “the plaintiff’s success is purely

technical or de minimis.” Morales, 96 F.3d at 363 (internal

quotation marks omitted). When, as here, the plaintiff wins

punitive damages, the “award of punitive damages alone is

sufficient to take it out of the nominal category.” Thomas, 410

F.3d at 648. The County does not contend that Mendez’s victory falls within the de minimis exception recognized in Farrar. 

[12] A court may also deny an attorney’s fee to the prevailing plaintiff under § 1988 when “special circumstances exist

MENDEZ v. COUNTY OF SAN BERNARDINO 11811
sufficient to render an award unjust.” Thomas, 410 F.3d at

648. We evaluate whether special circumstances exist by asking whether “(1) allowing attorney’s fees would further the

purposes of § 1988 and (2) whether the balance of equities

favors or disfavors the denial of fees.” Id. (internal quotation

marks omitted). We have stressed that this exception applies

only in unusual cases, however, such as when there is “both

a strong likelihood of success on the merits and a strong likelihood of a substantial judgment at the outset of the litigation,” such that the purpose behind § 1988 — ensuring that

“litigants with similar claims would not be dissuaded from

bringing suit by the lack of availability of a fee award” — is

not implicated. Herrington, 883 F.2d at 745. We have firmly

rejected the district court’s authority to refuse a reasonable fee

under the “special circumstances” exception simply because

it believes it “would result in a windfall” to a plaintiff.

Thomas, 410 F.3d at 648. “Granting a windfall to plaintiffs

was a concern echoed by Congress in enacting § 1988, but

Congress balanced that concern against the need to attract

competent counsel to prosecute civil rights cases.” Id. 

[13] The district court did not identify any “special circumstances” present here, and we see none. Mendez’s suit

involved precisely the kind of high-risk, low-reward constitutional claims that motivated Congress to enact § 1988. Even

the district court remarked that it was unlikely that “anyone

was beating down the doors to take on Ms. Mendez’s case.”

The district court itself did not purport to rely on the “special

circumstances” exception, but instead denied Mendez’s

request for costs and fees solely on a legal standard that originates from outside this circuit: that a request for fees under

§ 1988 may be denied if it is “outrageously excessive” or “inflated to an intolerable degree,” see Brown, 612 F.2d at 1059,

or “so excessive it ‘shock[s] the conscience of the court,’ ”

see Scham, 148 F.3d at 557 (quoting Fair Housing Council v.

Landow, 999 F.2d 92, 96 (4th Cir. 1993)) (alterations in

Scham). As the district court acknowledged, this circuit has

never held that a court has the discretion to deny an attorney’s

11812 MENDEZ v. COUNTY OF SAN BERNARDINO
fee to a prevailing plaintiff under § 1988 solely because the

court finds the fee request to be so excessive as to shock its

conscience. 

We need not decide whether it would ever be appropriate

for a court entirely to deny fees and costs under § 1988 purely

on the excessiveness of the request, however, because those

circumstances are not present here. Those courts of appeals

that have upheld a denial of fees under the “shocks the conscience” test have done so only where the fee request

appeared to have been made in bad faith, such as billing outrageous numbers of hours on simple matters, or where the

plaintiff made no effort to eliminate hours spent on unsuccessful, unrelated claims. In the first category are cases such

as Brown, where the Seventh Circuit denied all fees to an

attorney who submitted a request for 800 hours of billable

time, even though his work consisted of filing a six-page

complaint and then simply awaiting the outcome of pending

litigation in the Supreme Court that “almost automatically . . .

disposed of” the case. 612 F.2d at 1059. Similarly, in Scham,

the Fifth Circuit upheld a total denial of fees where an attorney billed 936 hours for a case where “discovery was limited,

and there were no meetings of the parties or attorneys, no settlement negotiations, no mediation, no court appearances, and

no trial.” 148 F.3d at 558. The counsel in Scham was also a

solo practitioner with one year of experience, who nonetheless requested $750 per hour for his time. Id. Therefore, in

both of these cases, it was altogether improbable that any

attorney could have reasonably expended such hours in good

faith on matters so simple. 

Falling into the second category are cases such as Fair

Housing Council, 999 F.2d 92, where the Fourth Circuit

upheld a denial of fees to a prevailing plaintiff who made no

effort to eliminate large numbers of hours spent on unsuccessful, unrelated claims. In that case, plaintiffs brought separate

claims for housing discrimination and breach of contract, succeeding only on their breach of contract claim. See 999 F.2d

MENDEZ v. COUNTY OF SAN BERNARDINO 11813
at 95. Although the housing discrimination and contract

claims were not related — and the discrimination claim was

by far the more complex of the two to litigate — the plaintiffs

nonetheless submitted a request for $537,113 in fees for the

entire litigation, with billing entries that “failed to allocate the

fees attributable to each claim.” Id. The First Circuit similarly

upheld the denial of fees in Lewis v. Kendrick, 944 F.2d 949,

957-58 (1st Cir. 1991), where plaintiffs achieved only minor

success and yet “made no reduction for claims” that had “no

relation” to the victorious claim. The Lewis case also appears

to have fallen into (and thus anticipated) the Farrar exception

to granting a fee award, because the First Circuit concluded

that plaintiffs’ $1,000 compensatory award for prevailing on

a single claim — after having requested $300,000 in compensatory and punitive damages on multiple claims — constituted

only a “de minimis” victory. Id. at 955. As explained above,

Mendez’s case does not come within the Farrar exception. 

[14] Although the district court characterized Mendez’s fee

request as “unreasonable,” “excessive,” “egregious,” “staggering” and “indefensible,” there is no evidence that her fee

request was either made in bad faith or contained excessive

hours spent on unrelated claims. The County’s own proposed

lodestar calculation included almost the same number of billable hours as Mendez’s request, an acknowledgment that this

case involved considerable discovery and proceeded to a full

trial.1 The County suggested that Mendez’s attorneys should

be compensated at a significantly lower rate — approximately

half of what Mendez requested — but the County did not

deny that Mendez’s attorneys typically charge their clients

such amounts. Instead, the County simply argued that her

1Mendez’s initial request reflected 2,570 hours of attorney time, which

after the 10 and 20 percent write-downs for partners and associates respectively, amounted to approximately 2,144 hours. The County, in response,

suggested 1,999 hours were reasonably incurred. In reply, Mendez agreed

to write off an additional 17.5 hours, thus bringing the two sides’ calculation of hours within a margin of approximately six percent. 

11814 MENDEZ v. COUNTY OF SAN BERNARDINO
attorneys should be compensated in line with civil rights

attorneys and not their own usual hourly rate. Cf. Camacho v.

Bridgeport Fin., Inc., 523 F.3d 973, 980-81 (9th Cir. 2008)

(explaining that appropriate hourly rate is “the prevailing

hourly rate in the [court’s district] for work that is similar to

that performed in [the] case, by attorneys with the skill, experience and reputation comparable” to the party’s attorneys).

Finally, Mendez’s attorneys represented that they had eliminated hours spent on Mendez’s unsuccessful, unrelated

claims. Although the County identified a few hours that it

believed were nonetheless related to these claims, there is

nothing to suggest that Mendez failed to make a good-faith

effort to eliminate unrelated hours. In her reply, Mendez also

agreed to write off additional time and costs so as to reduce

or eliminate any remaining disputes over the number of hours.

Thus we see nothing in this request for fees and costs that

would “shock the conscience” of the court, such as was present in cases like Scham, Brown, Lewis and Landow. 

The other reasons the district court offered in support of its

decision likewise cannot justify denying fees entirely. The

court emphasized first that the fee request was “staggering in

light of the issues prevailed upon at trial and the actual

amount of damages recovered by Plaintiff.” We give due

weight to the court’s first-hand assessment of the case and its

dynamics, both legal and factual. Nonetheless, we have cautioned that the significance of civil rights suits should not be

evaluated solely on the amount of damages obtained, because

successful suits act as a deterrent to law enforcement and

“serve[ ] the public purpose of helping to protect [the plaintiff] and persons like him from being subjected to similar

unlawful treatment in the future.” Morales, 96 F.3d at 364-65.

Even in a case where the “[p]laintiff succeeded on only one

of his many claims against Defendants,” we held that the district court must nonetheless calculate a reasonable fee.

Thomas, 410 F.3d at 649-50. The district court certainly has

discretion to reduce an award to a plaintiff who achieved only

partial or limited success. But “[t]o deny an award of attorMENDEZ v. COUNTY OF SAN BERNARDINO 11815
ney’s fees notwithstanding Plaintiff’s clear victory on one of

his claims for relief is an abuse of discretion: a reasonable fee

. . . is not no fee at all.” Id. at 649. 

The district court also suggested that the denial of fees

could be justified because of certain excessive hour and cost

entries and because Mendez’s counsel “block-billed” their

time, “thereby frustrating the Court’s efforts to determine

whether the fees were, in fact, reasonable.”

2

 Again, such billing practices are legitimate grounds for reducing or eliminating certain claimed hours, but not for denying all fees. See,

e.g., Welch v. Met. Life Ins. Co., 480 F.3d 942, 948 (9th Cir.

2007) (courts have discretion to reduce block-billed hours);

Herrington, 883 F.2d at 747 (courts have discretion to eliminate hours attributable to “duplication of effort”). Even duplicative work, however, is not a justification for cutting a fee,

unless “the lawyer does unnecessarily duplicative work.”

Moreno v. City of Sacramento, No. 06-15021, ___ F.3d ___,

2008 WL 2875300 at *3 (9th Cir. July 28, 2008). As noted

above, Mendez and the County essentially agreed on the number of hours reasonably expended on the case. Nonetheless,

the district court often emphasized the excessiveness of

Mendez’s fees and costs as initially recorded in the firm’s

billing records — which showed approximately $1.2 million

in fees and $85,000 in costs — even though Mendez never

actually requested these amounts but instead voluntarily

reduced both fees and costs, ostensibly to account for inefficient work or disputable cost entries.3

 The district court thus

2

“Block billing is the time-keeping method by which each lawyer and

legal assistant enters the total daily time spent working on a case, rather

than itemizing the time expended on specific tasks.” Welch v. Met. Life

Ins. Co., 480 F.3d 942, 945 n.2 (9th Cir. 2007) (internal quotation marks

omitted). 

3The district court questioned certain cost entries it deemed inappropriate, such as $5 spent on aspirin, $66.58 in “overtime meals” during trial,

$419.72 for “meals, lodging, games, and telephone for Angel Mendez,”

$1,857.30 in travel costs for one of Mendez’s attorneys and $71.88 for

11816 MENDEZ v. COUNTY OF SAN BERNARDINO
appears to have penalized Mendez for alleged inefficiency,

notwithstanding her attempt to write down hours and costs to

account for those very inefficiencies. As for the block-billed

time entries, it was fully appropriate for the court to reduce

those claimed hours. See Welch, 480 F.3d at 948 (affirming

court’s discounting of block-billed hours because they may

overstate the hours incurred and make it “more difficult to

determine how much time was spent on particular activities”).

As we have clarified since the district court was confronted

with the fee request here, however, the use of block billing

does not justify an across-the-board reduction or rejection of

all hours. See id. 

[15] On remand, the district court should determine a reasonable attorney’s fee for Mendez utilizing the customary

lodestar method. See, e.g., Morales, 96 F.3d at 363. The

“lodestar” is the presumptively reasonable rate, which is

reached by multiplying the number of hours reasonably

expended by the prevailing party with a reasonable hourly

rate, then making any adjustments as necessary to account for

factors not already subsumed within the initial lodestar calculation. See id.; see also Kerr v. Screen Extras Guild, Inc., 526

F.2d 67, 70 (9th Cir. 1975) (explaining 12 factors that bear on

the reasonableness of the fee). In so doing, the court may

make the adjustments it finds are warranted based on the

office supplies. Even if all of these cost entries were inappropriate, in total

they accounted for less than the amount that Mendez had already voluntarily agreed to forgo, even before receiving the County’s objections. We

agree that Mendez should have cleansed her own records of inappropriate

entries, such as the “red-flag” aspirin charge, rather than merely taking an

amount off the top, and the district court might have reasonably reduced

her award accordingly. Nonetheless, Mendez’s perhaps clumsy effort to

account for inappropriate costs or inefficient hours suggests she was trying

to act in good faith. See Moreno, 2008 WL 2875300 at *2-3 (noting that

counsel’s own effort to “cut her fees by 9 percent” should inform district

court’s determination of whether the hours spent or fee requested were

excessive). 

MENDEZ v. COUNTY OF SAN BERNARDINO 11817
record before it. For example, the court must consider what

constitutes a reasonable hourly rate for work performed in the

relevant community by attorneys of similar skill, experience

and reputation. See Camacho, 523 F.3d at 980-81; see also

Herrington, 883 F.2d at 746 (noting that “[a] reasonable

hourly rate should reflect the cost of competent counsel in the

field”). The court may also reduce an award for attorney’s

fees for unnecessarily duplicative work, if the court provides

“a clear explanation that we can review” as to why these

hours were truly unnecessary. See Moreno, 2008 WL

2875300 at *3. At the same time, the district court is “not only

free but obligated to consider ‘the results obtained’ by

[Mendez], or the ‘extent of [her] success.’ ” Morales, 96 F.3d

at 364 (quoting Hensley, 461 U.S. at 436, 440). We therefore

vacate the district court’s order denying Mendez all fees and

costs and remand for a determination of a reasonable award,

consistent with the principles we have explained. 

V. Sanctioning Mendez’s Counsel for Failure to Appear

After trial, the district court imposed a $500 sanction personally on one of Mendez’s attorneys, Arturo J. Gonzales,

Esq., for failure to appear at an order to show cause hearing.

The local rules for the Central District of California expressly

reserve the district court’s “inherent power to maintain control

over the proceedings conducted before said judge,” and state

that “[m]isconduct of any attorney in the presence of a court

or in any manner in respect to any matter pending in a court

may be dealt with directly by the judge in charge of the matter.” C.D. Cal. L.R. 83-3.1.12. Although the district court did

not specify the authority for its order, “we can deduce the

source of its power for purposes of our review,” and in this

case it is clear that the court sanctioned Gonzales in an exercise of its inherent power to “protect[ ] the due and orderly

administration of justice and maintain[ ] the authority and dignity of the court.” Primus Auto. Fin. Servs., Inc. v. Batarse,

115 F.3d 644, 648 (9th Cir. 1997) (internal quotation marks

omitted) (alterations in original). We review the district

11818 MENDEZ v. COUNTY OF SAN BERNARDINO
court’s entry of sanctions for abuse of discretion. See id. With

respect, we must conclude that the district court abused its

discretion by imposing the sanction without making an

express finding of bad faith, and by sanctioning Gonzales for

failing to appear at a hearing when he did not have notice that

his personal appearance was required. We therefore reverse

and vacate the sanction order. 

A.

The genesis of the sanctions came during trial, when the

district court admonished Gonzales for seeming to repeat a

question during his examination of a hostile witness, after the

court had ruled the question argumentative.4 Once the jury

was dismissed, the court said it was inclined to cite Gonzales

for contempt for having disobeyed its ruling sustaining the

objection. The court asked Gonzales to respond in papers by

the following Monday, but told him that “[a]t this point

there’s an [order to show cause] re sanctions for contempt set

for the end of trial.” In his declaration, Gonzales explained

that he is a partner at Morrison & Foerster and chair of his

firm’s Trial Practice Group, with 20 years of litigation experience before federal and state courts. He explained that when

4The relevant exchange occurred during Gonzales’ examination of

Reyes: 

Gonzales: And how long would it take for you to read these

few lines in Spanish?

Reyes: Not long at all.

Gonzales: Then why didn’t you do it?

Reyes: I didn’t.

Gonzales: I know you didn’t. Why not?

[Defense counsel]: Argumentative, your honor.

Court: Counsel, it’s argumentative.

Gonzales: Why didn’t you do it? Why didn’t you read these

three lines in Spanish?

MENDEZ v. COUNTY OF SAN BERNARDINO 11819
a trial objection is sustained, it is his practice to make a

“quick and good faith judgment call” on how to rephrase the

question so as to elicit the desired information in a way that

is not objectionable. In this case, he believed he had done so

by removing the argumentative aspect from the objectionable

question, and noted that defense counsel did not object to the

reformulated question. 

The court did not respond to Gonzales’ declaration, but

approximately two weeks later, when setting a date for argument on various post-trial motions, advised counsel that the

hearing would include argument on “OSC’s” as well.5 On the

date of that hearing, Tony West, Gonzales’s co-counsel and

partner from Morrison & Foerster, appeared but Gonzales did

not. In response to the court’s question about Gonzales’

absence, West said Gonzales was available by telephone if the

court had any questions that were not adequately addressed by

his declaration, but that Gonzales had “a longstanding commitment that he could not easily get out of,” teaching a legal

practice course. West averred that Gonzales “has every confidence in my ability to represent him,” to which the district

court replied, “technically, the contempt is against him; therefore, I’m not sure you represent him.” The district court did

not resolve the contempt citation at this hearing, but two days

later issued a second order to show cause, this time regarding

Gonzales’ failure to appear at the hearing. 

Gonzales submitted a further declaration in response to the

second order to show cause and also personally appeared at

a hearing held three weeks later. The court expressed its view

that a contempt citation “is addressed not to the party, but to

5Before trial, the district court had also entered an order to show cause

against both parties for having failed to participate in a settlement conference with the magistrate judge prior to a court-ordered deadline. Gonzales

was not directly involved in this incident, and the court ultimately found

that the parties had complied with the spirit of its order by holding settlement talks before a third-party mediator. 

11820 MENDEZ v. COUNTY OF SAN BERNARDINO
the counsel personally,” and that therefore “Mr. West could

not purport to represent you personally.” The court suggested

that even Gonzales’ own declarations were not properly filed

with the court because he had not entered his own appearance

in pro per. Gonzales told the court that he was “surprised to

learn, if it indeed is the case, that when a court makes a

request, such as the court did, that a lawyer has to actually

either obtain counsel or make a formal appearance in pro per.

Just never knew that, to be candid with you.” Gonzales

explained that he did not appear at the previous hearing

because he thought his declaration would satisfy the court and

that it would be best for West to represent him. At the end of

the hearing, the court decided not to cite Gonzales for contempt based on his repetition of the question during trial

examination. The court did, however, impose a $500 sanction

personally on Gonzales for failure to appear at the order to

show cause hearing, stating that the court found it “difficult

to understand how you could not believe that on a contempt

you would be required to be here.” Gonzales paid the sanctions directly to the court and brought this appeal.

B.

The district court’s authority to impose sanctions under its

inherent powers is broad, but not limitless. “Before awarding

sanctions under its inherent powers . . . the court must make

an explicit finding that counsel’s conduct ‘constituted or was

tantamount to bad faith.’ ” Primus, 115 F.3d at 648 (quoting

Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980)).

A finding of bad faith may be appropriate when, among other

things, a party engages in behavior that has the effect of “delaying or disrupting the litigation or hampering enforcement

of a court order.” Id. at 649 (internal quotation marks omitted). We have emphasized, however, that “[t]he bad faith

requirement sets a high threshold.” Id. Even in a case where

the district court described a litigant’s arguments as “totally

frivolous,” “outrageous” and “inexcusable” and called his

behavior “appall[ing],” we nonetheless refused to equate this

MENDEZ v. COUNTY OF SAN BERNARDINO 11821
characterization of conduct as synonymous with a finding of

bad faith. See id. Here the district court said only that it found

it “difficult to understand” that Gonzales would not have

known his personal appearance was required. This does not

suffice as a finding of bad faith, nor is this a case where “bad

faith is so patent that we will infer the necessary finding.” Id.

We are also troubled by the district court’s failure to give

Gonzales notice that his personal appearance was required at

the first order to show cause hearing. A district court may not

sanction an attorney under its inherent powers if there is nothing in the local rules or norms of professional conduct “which

would have placed [the attorney] on reasonable notice” that

his conduct was not in conformance with the court’s requirements. See In re Richardson, 793 F.2d 37, 40 (1st Cir. 1986).

Although the district court suggested that the contempt proceeding was an entirely separate action such that Gonzales

should have known to enter a formal appearance of counsel

on his behalf, courts frequently impose sanctions against clients as well as attorneys for their counsel’s misbehavior

before the court. See, e.g., Lasar v. Ford Motor Co., 399 F.3d

1101, 1107 (9th Cir. 2005) (explaining that the district court

imposed monetary sanctions against both client and attorney

for counsel’s bad faith actions). Earlier in the litigation, the

court had in fact issued to both sides an order to show cause

for sanctions for a possible violation of a court order regarding a settlement conference. See n.5 supra. That OSC did not

purport to run against any of the attorneys personally,

although individual attorneys might have been to blame for

any error. 

Accordingly, Gonzales could reasonably have believed —

before being informed otherwise by the court — that the order

to show cause was not necessarily a separate action against

him personally, such as to require him to obtain his own

counsel and to appear himself. With this understanding, it

would not have been unreasonable for him to believe he could

rely on another member of his trial team who was appearing

11822 MENDEZ v. COUNTY OF SAN BERNARDINO
to argue the other post-trial motions in Mendez’s case. To the

extent the district court was focused on punishing Gonzales

for his trial misbehavior, it was incumbent on the court to give

him fair notice of that personal exposure and obligation to

appear in person. See generally F.J. Hanshaw Enters., Inc. v.

Emerald River Dev., Inc., 244 F.3d 1128, 1137-39 (9th Cir.

2001) (discussing levels of due process required in contempt

and sanctions proceedings). Although we agree that Gonzales

should have, as a matter of good practice and courtesy, either

attended the hearing or informed the court of his unavailability, we cannot find that the court’s orders unambiguously

communicated to Gonzales that his presence was necessary

and his co-counsel could not represent him. Absent such

notice, Gonzales could not have acted intentionally and in bad

faith to circumvent the court by failing to appear at the first

OSC hearing.

[16] We recognize that district courts enjoy “broad power”

to award sanctions against attorney misconduct and that it is

important for courts to have sufficient tools to control the

behavior of litigants in their courtrooms. See Primus, 115

F.3d at 649. Nonetheless, the Supreme Court has cautioned

that “[b]ecause inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion.” Roadway Express, 447 U.S. at 764. “Sanctions not

only may have a severe effect on the individual attorney sanctioned,” potentially damaging the attorney’s career, reputation

and livelihood, but they “also may deter future parties from

pursuing colorable claims.” Primus, 115 F.3d at 650. Because

the district court did not make a bad faith finding before

imposing sanctions, and the record does not support such a

finding, we must reverse and vacate the sanction order. 

VI. Request for Reassignment on Remand

[17] Lastly, Mendez asks that we reassign this case to a different judge on remand, a remedy she concedes is warranted

only under “unusual circumstances.” United States v. Sears,

MENDEZ v. COUNTY OF SAN BERNARDINO 11823
Roebuck, & Co., Inc., 785 F.2d 777, 780 (9th Cir. 1986) (per

curiam). We have authority to reassign as an exercise of our

inherent authority and authority under statute, and may reassign even in the absence of any “actual bias on the part of the

judge” who first heard the case. See id. at 779-80. The factors

we consider in reassigning a case are

(1) whether the original judge would reasonably be

expected upon remand to have substantial difficulty

in putting out of his or her mind previously[ ]

expressed views or findings determined to be erroneous based on evidence that must be rejected, (2)

whether reassignment is advisable to preserve the

appearance of justice, and (3) whether reassignment

would entail waste and duplication out of proportion

to any gain in preserving the appearance of fairness.

Id. at 779 (internal quotation marks omitted). None of these

factors justifies reassignment here. As is indicated by these

three consolidated cases, Mendez disagreed with a number of

the district court’s rulings, but this is hardly uncommon over

the course of lengthy litigation and trial. Because there are no

unusual circumstances warranting reassignment, we see no

reason to remand to a different judge. 

CONCLUSION

Mendez’s appeal from final judgment, case number 07-

56029, is AFFIRMED. Mendez’s appeal from the order

denying her attorney’s fees and costs, case number 06-56424,

is REVERSED AND REMANDED. Mendez’s appeal from

the order of sanctions against her attorney, case number 05-

56118, is REVERSED AND VACATED. Each party shall

bear its own costs on appeal. 

11824 MENDEZ v. COUNTY OF SAN BERNARDINO