F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J A V I E R B R A V O , S R .; H O P E B R

A V O ; E. B ., a minor by

her Guardian ad L item Sara Gonz ales,

Plaintiffs-Appellees/ Cross-Appellants

,

v

.

C I T Y O F S A

N T A M A R

I A ; L O U I S T A N O R E , Santa Maria Police Detective; L

A R R Y R A L S T O N , Santa Maria Police L ieutenant,

D efendants-Appellants/ Cross-Appellees

. Nos. 14-55557 14-55687

D.C. No. 2:06-cv-06851- F MO-SH

OPI NI ON

A ppeal from the United States District Court for the Central District of California F ernando M. Olg

uin, District J udg e, Presiding

Arg ued and Submitted October 28, 2015—Pasadena, California

F iled J anuary

12, 2016

B efore: Stephen Reinhardt, Michael Daly Hawkins, and

Milan D. Smith, J r., Circuit J udg es.

Opinion by

J udg e Hawkins Concurrence by J udg e ReinhardtB R A V O V

. C I T Y O F S A

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SUMMARY *

Civil Rights

The panel affirme d t h e d istrict court’s attorney s’ f ee award under 42 U.S.C. § 1988 in favor of pla i n t iffs a nd reversed the costs a

ward ag ainst defendant, the City of Santa Maria, and remanded for a new costs determination.

This appeal arises from a jury v erdict that defendants, the City of Santa Maria a

n d indiv i dual police officers, v iolated
p l a i n tiffs’ constitutional rig hts when they failed to disclose certain information in a warrant to search plaintiffs’ h ome. Prior to trial, plaintiffs settled with the City of Santa B arbara, whose off

i cers actually carried out the entry of plaintiffs’ h o m e

. The c ase w ent to trial a g ainst the Santa M a ri a defendants and resulted in a jury award of a p p ro x imately $5,000 in damag es.

The panel held that in considering an award of attorney s’ fees u nder § 1988, it is appropriate to take into consideration

a plaintiff’s success in obtaining a settlement ag ainst another party arising out of the same facts. The panel h eld that under the facts and circumstances of this case, it was appropriate to take the Santa B arbara settlement into consideration w h en considering the attorney s’ fee award ag ainst the Santa Maria defendants. Affir m i n g the attorney s’ fee a ward o f $1,023,610.41, the panel held that the district court’s finding that p laintiffs had achieved an ex cellent result w as supported by the public benefit g enerated by the litig ation as well as the

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.B R A V O V

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$150,000 in damag es the plaintiffs obtain e d i n the Santa B arbara settlement.

The panel reversed the district court’s refusal to offset the award of costs assessed ag ainst the Santa Maria defendants by the costs a lready r eimbursed by the City of Santa B arbara

as p art of the settlement. The panel remanded for consid e r a t i o n of what amount o f the costs award, if any , should be offset by the costs already paid by the City of Santa B arbara defendants.

J u d ge Reinhardt concurred in the majority opinion, b u t

w r ote separately to ex p lain why he would uphold t h e attorney s’ f

e e a w ard in this case irrespective of whether o r not the settlement with the S anta B arbara defendants was taken into consideration. J udg e Reinhardt would uphold the fee award even if the only monetary benefit to plaintiffs was the $5,000 verdict.

COUNSEL

J effrey E. Raskin (arg

ued) and Timothy T. C o a t e s, Greines, Martin, Stein & Richland L L P, L os An ge l e s, California; David M. Cumber l a

nd, J oshua M. Georg e, and J ordan Cunning ham

, Adamski Moroski Madden Cumberland & Green L L P, San L uis Obispo, Califo r n i a , for DefendantsAppellants/Cross-Appellees.

D o n a ld W

. Cook (arg

ued) and Robert Mann, L os Ang eles, California, for Plaintiffs-Appellees/Cross-Appellants.B R A V O V

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OP INION

HAW KI NS, Circuit J udg e:

This appeal arises f

rom a jury v erdict that Defendants the City of Santa Maria (“Ci t y ” ) and L ouis Tanore, L arry Ralston, and Danny Macag ni of the S a n t a M a ria Police Department (“SMPD”) v iolate d t h e constitutional rig h ts o f Plaintiffs J avier B r avo, Sr., h i s w ife Hope, and their
g randdaug hter E.B

. (collectively

, “the B r avos”)

. S p e c i f i c a lly

, th e j u ry found that SMPD officers failed to disclose in seeking a warrant t o s e a r c h the B ravos’ home that J avier B ravo, J r.—suspected o f hiding w eapons that may have been used in a g ang -related shooting incident—was not living a nd had not been living in the home f or some seven months prior
to the shooting because he was incarcerated in state p rison on unrelated charg es. The r esulting p re -dawn, SW AT-sty le search of the B ravos’ residence did not y i eld any weapons, but succeeded in rousing the B ravos from their b eds a nd frig htening them. Prior to trial, the B ravos settled w i t h the City of Santa B arbara, whose officers actually carried o ut the entry of the B ravo home, for $360,000. The case went to trial
ag ainst the remaining defendants and resulted in a jury award of $5,000 in compensatory damag es to J avier Sr. and nominal damag es to H ope and E.B

. I n this opinion, 1 w e address an issue of first impression: whether in considering an award o f attorney fees under 42 U .S.C. § 1988, it is appropriate to take into c onsideration a plaintiff’s success in obtaining a settlement ag ainst another party arising out of the same facts. F or the reasons set forth below, we conclude that, u n d e r t he facts and c ircumstances of this case, it w as appropriate to take

1 In a sep arate Mem o ran d u m f iled co n tem

p o ran eo u sly

, w e ad d ress o th er issu es p resen ted in th is ap p eal.B R A V O V

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the Santa B arbara settlement into consideration and, according ly

, w e affirm the district court’s fee a ward. On the

same theory

, w e vacate the c ost award ag ainst the Santa M a r ia defendants and remand for the d istrict court to t a k e into a ccount the costs recovered i n t he Santa B arbara settlement and offset tho s e c o s t s ag ainst the costs to be awarded ag ainst the Santa Maria defendants.

BACK G ROUND

I. F acts

A. Shooting Incident and Investigation

W h ile investig ating an April 2006 g a ng -related shooting

, SMPD detectives L ouis T anore and El ig io L ara learned that J avier B ravo, J r. and a

bout a d oz e n other s mig ht have been involved in the shooting or mig ht p os s e s s evidence of the crime (in particular, the weapons used).

Tanore d i r e c t ed L a

ra to g ather information on eig h t o f these individuals, including c h ecking int o t h eir criminal histories and custody status. According to L ara’s testimony

, he called the Santa B arbara county jail to determine the custody stat u s o f t he e ig ht targ ets. L ara learned from these calls that o n e o f the eig ht—J ames F ranklin—had been transferred from county custody to state prison. He disclosed this f inding to Tanore, and F ranklin was remove d from the list of targ e ts. According to a c o u nty jail o f f icial’s trial testimony

, L ara asked whether J avier J r. was in county custody ( he was not), but he did not ask follow-up questions about whether, like F ran k l in, J avier J r. h ad b een transferred from county to state custody . L ara never learned this.B R A V O V

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B. Custody Check P rocedure

T o determine a targ e t’s c u stody status, SMPD officers’ practice was to call the Santa B arbara county jail. County jail officials can determine whether a targ et is in county custody

, as well as whether he has been released o r transferred to state custody

. Determini n g w h ether a targ et is in county c ustody and de t ermining whether he h as been transferred to state custody requires two different computer searches.

L ara and L arry Ra l s t o n , the lead supervisor of the investig ation, testified that if an SMPD officer learned that a targ e t had been transferred to state custody

, he or she would then follow up with state au t h o r i t i es. Tanore testified that SMPD practice was to call t h e Santa B arbara county

su b s tation reg ardless of w hether a person was potentially in county o r state c ustody ; he d id not mention any follow-up procedure.

C. Warrant Af

f idavit

B a sed in part o n informatio n gathered by L ara, Tanore prepared an affidavit in support of nig htt i m e warrants to search the homes of J avier J r

. a nd six o ther suspected g ang members. The a ffidavit included criminal history information o n each targ et, including J avier J r., which Tanore obtained by reviewing rap sheets provided b y L ara. The affidavit stated that J avier J r. had been arrested o r charg ed

numerous times in the past a n d included possession of known stolen p r operty as one of th e crimes for which he had been arrested or charg ed. However, the affidavit di d not include the dates of the o ffenses. Nor did it disclose that J avi e r J r. had been sentenced to two y ears in state prison in September 2005—about seven m o n t h s p r i o r t o t he shootingB R A V O V

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incident—for the stolen property offense, or that he mig ht still be incarcerated.

D. Search

The mag istrate judg e approved a warrant for a n ig httime

s e a r ch. B ecause SMPD lacked the resources to conduc t

seven simultaneous home searches, its officers inv i t ed the Santa B arbara Sheriff’s Office (a county ag ency ) a n d S anta B arbara Police Department ( a city ag ency ) to conduct some of the searches. Tanore informed the partner ag encies of the risk s and dang ers of the search. Thoug h neither Tanore nor any on e e l se f

rom SMPD prescribed the partner ag encies’ tactics, Tanore stated that he was not surpr i s e d that they elected to use a SW AT team.

At 5:26 a .m. on April 26, 2006, a S a n t a Barbara Police Department SW AT team k nocked on the front doo r of the B ravos’ r esidence, announced their presence, an d t h r ee seconds later shot off the locks and br o k e d o w n the door. Simultaneously

, the team deploy e d two “flashbang ” g renades outside of the back door.

J a v i e r Sr., Hope, and E .B

. (eig ht y ears old at the tim e )

w e r e a wakened by these loud n oises and frig htened to see armed individuals in their home. J avier Sr. initially believed that ro bbers were invading the house or that his son h ad escaped from jail and been shot at his doorstep, causing him
to ex p erience heart-attack-like sy mptoms. All three plaintiffs testified that they were not touched during the search. Hope and E.B

. were told to lie on the floor in the bathroom, where they had g one to hide upon h ea r i n g the loud noises. After securing the residence, t h e C ity of Santa B arbara officers turned the scene over to SMPD to search the house.B R A V O V

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At some point during the search, Hope informed the officers that J avier J r. was in prison and showed them a letter she had recently received from him. As Tanore was off-site,

an officer at the scene called to inform him that J avier J r

. was in custody

, a t which time Tanore instructed the offic er to

c ontinue with a “cursory ” search of the residence. SMPD seiz ed a number of items from the h o m e , b ut found no weapons.

II. P rocedural History

A. Com plaint, P r etrial Motions, and P rior Appeal

I n October 2006, the B r avos broug ht suit ag ainst Tanore, his supervisor Ralston, SMP D C hief of Police Danny Macag n i, and the City of Santa Maria, as well as the counties of San L u is Obispo and Santa B arbara, their sheriff’s o ffices and county sheriffs, and the cities of S a n L uis Obispo a nd Santa B arbara and their police chiefs. The B ravos alleg ed violations of the F ourth and F o u rteenth Amendme n t s (due
process and equal protection) and variou s state laws, a nd requested unsp e cified amounts of g eneral, special, a nd punitive damag es, a $25,000 civil penalty

, and recovery o f related costs.

Plaintiffs stipulated to dismiss their claims ag ainst the County of San L uis O b i s p o a nd City of San L u is Obispo de fe n d a n t s early in the c ase. They settled with the City o f Santa B arbara defendants for $360,000 after the City of Santa B arbara defendants appealed t he district court’s d enial o f qualified immunity

. The settlement amount cons i s t ed o f $50,000 in d a m a ge s for each plaintiff, $169,856.34 in attorney fees, and $16,208.95 in costs.B R A V O V

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The district court then g ranted summary judg ment for the County of Sa n ta B arbara a n d the Santa Maria d e fendants. The B ravos appealed. I n that ap p eal, we affirmed the g rant of summary judg ment for the Coun t y o f Santa B arbara defendants, but reversed t h e g rant of summary judg ment in favor of the Santa Maria defendants. Bravo v. City o f Santa Maria
, 665 F .3d 1076, 1091 (9th Cir. 2011). W e r ejected the district court’s finding that the omission of J avi e r J r

. ’s custody status was immaterial, concluding that if “J a vier J r.’s two-y ear sentence imposed over six mon t h s p r ior to the incident oc c a s i o n i ng the search warrant” and his incarceration
at the time of the shooting were included, the affidavit “could
not establish probable cause f or the search and especially does n ot mee t the heig htened standard of justification required for nig httime SW AT service.” Id. at 1084. J avier J r.’s custody status “meant not onl y t h a t he would not be present in the B ravo residence at the time of the search, but that he could not have b een involved in the shooting o r in concealing

the evidence.” Id.

W e also rejected the conclusion that Ta n o re was “neg lig e nt at most” in omitting J avier J r.’s custody status, concluding that the B ravos “presen ted sufficient evidence establishing a g enuine issue as to whether [ Ta n o r e ’s] omission of [ J avier J r.’s sentence and custody information from the affidavit] was intentional or reckless, as o pposed to merely neg lig ent . . . .” Id. at 1080.

B. Jury Verdict and P ost-Trial Judgm ent

On remand, a f

t e r five d ay s of hearing e v i d e n c e a n d four day s o f d e liberation, the jury returned a special verdict finding all Santa Maria defendants liable. The jury awarded $5,000 in compensatory damag es to J avier Sr. and $0 to HopeB R A V O V

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a nd E.B

. I t did not award punitive damag es. The distric t court entered judg ment, awarding $5,000 to J avier Sr. and $1 each to Hope and E.B

.

After judg ment w as entered, Defendants renewed their motion for judg ment as a matter of law, attacking the finding s of liability a g ainst Tanore, Ralston, Macag ni, a n d t he City

. Defendants a lso moved to amend the judg men t , co ntending that damag es, attorney fees, and costs should be offset by the B ravos’ $ 360,000 settlement with the City of Santa B arbara. The B ravos moved for a new trial on damag es, and requested an award of attorney fees and costs.

The distr i c t court g ranted the Defendants’ motion for judg ment a s a matter o f law a s to Police Chief Macag ni’s individual liability

, but d e n ied the motion as to Tanore, Ralston, and the City

. Reg ardin g D efendants’ motion to amend the judg ment, the court c onclud e d that any award o f attorney fees should be offset by

the attorney f

ees p ortion of the City of Santa B arbara’s settlement ( $169,856.34) but that
any award of c osts should not be offset by the costs already paid in the City of Santa B arbara se t t l e m e nt ($16,208.95). F inally

, the court denied the B ravos’ motion for a new trial on d a m ag es, but named the B r avos the prevailing p arties a n d

a w arded $1,023,610.41 in attorney fees and $13,376.85 in
costs. The court then entered an amended jud gm e n t , which the parties timely

cross-appealed.

JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction under 28 U.S.C. § 1291. Attorney fee and costs a

wards are r e v i e w e d for abuse of discretion. Disc Golf Ass' n, Inc. v. Champion Discs, Inc.
, 158 F .3d 1002,B R A V O V

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1010 (9th Cir. 1998); Corder v. Brown
, 25 F .3d 833, 836 (9th Cir. 1994).

ANALYSIS

I n a contemporaneously filed Memorandum, w e affirm the district court’s decisions to g rant judg ment a s a matter o f law to Defendant Macag ni, t o d e n y j udg ment as a matter o f law to D efendants Tanore, Ralston, and the City

, and to deny Plaintiffs’ motion f

or a new trial on damag es. W e address in this opinion only the district court ’ s d e c isions as to attorney fees and costs.

I. Attorney F ees

I n a 42 U.S

. C

. § 1983 suit, “the court, in its discretion,
may a llow the prevailing party

. . . a reasonable attorney ’s f ee

as part of the costs.” 42 U.S.C. § 1988(b). To determine the
amount of a reasonable fee, district courts ty pically p r o c eed in two steps: first, courts g enerally apply the lodestar method
to determine w hat constitutes a reaso n a b l e attorney fee; a nd second, the district court may then adjust the lodestar upward

or downward based on a variety of factors, includin g t he deg ree of success obtained by the plaintiffs. Gonzalez v. City of Maywood

, 729 F .3d 1196, 1202 (9th Cir. 2013). The Supreme Court teaches that the deg ree of success obtained is “‘the most critical factor’ in determining the reasonablene s s of a fee award.” Farrar v. Hobby

, 506 U .S. 103, 114 (1992) (quoting Hensley v. Eckerhart

, 461 U.S. 424, 436 (1983)). “I t is an abuse of discretion for the district court t o award attorney s’ f

ees without considering

the relationship b etween the ‘ex tent o f success’ and the amount of the fee a ward.” M c G innis v. Ky. Fried Chicken

, 51 F .3d 805, 810 (9th C i r. 1994) (quoting Farrar , 506 U.S. at 116).B R A V O V

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H er e , it is u ndisputed that the B ravos are prevaili n g parties, 2 and Defendants d o n o t c ontest the district court’s lodestar calculation. The sole issue before us is whether the di s t r i c t c ourt erred in its analy sis o f the deg ree of Plaintiffs’

success. Def

e n d a nts contend that the district court dramatically overvalued t h e deg ree o f success. Since the B ravos won only

$5,002 at trial, the question is whether this litig ation g enerated some o ther benefit that would justify the district court’s finding that the B ravos achieved an ex cellent result and the consequent award of $1.023 million in attorney fees.

W e identify two such b e n e f its in the record. F irst, the district court p roperly noted that this litig ation benefitted the public by identify ing a ser i ous flaw in SMPD’s method o f checking individuals’ custody status b efore seeking warrants. I n addition, this litig ation led to o ur e arlier Bravo decision, in which we held that g reater justifica t i o n is needed for a nig httime forced entry by a SW AT unit t h a n for an ordinary search. 665 F .3d at 1085-86. This provides g uidance to law enforcement officers and to mag istrate judg es considering the issuance o f such warrants. See Gonz a lez

, 729 F .3d at 1210 (attorney fee award hig her than the amount of damag es won by plaintiff may b e r e asonable if the civil rig hts case “‘also confer[ red] benefits on others th roug hout society ’ by

, for

ex a mple, ending institutional civil rig hts abuses or clarify ing standards of c onstitutional c onduct” (quoting McGinnis
, 51 F .3d at 810)).

2 A p lain tif

f w h o receiv es n o m in al dam ag es is a p rev ailin g p a r t y f or § 1 98 8 (b ) p u rp oses. Ben to n v. Or. S tu d en t Assista n ce Co mm’n
, 42 1 F.3 d 9 0 1 , 9 0 4 (9 th

Cir. 2 0 0 5 ) (citin g Fa r

ra r , 5 0 6 U.S. at 1 1 2 ).B R A V O V

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Second, the district court properly considered the B ravos’ $360,000 settlement with the City of Santa B arbara d e f endants, w ith $50,000 in damag es f or each plaintiff, a s part o f their success. Althoug h we have previously held that, in certain situations, a non-settling defendant may be entitled
to an offset of attorn e y f ee s p aid by a settling defendant, Cor d e r , 25 F .3d at 840, w e have y et to a rticulate a rule
reg ardin g w h e ther a district court may consider a cod e f e n d a n t ’ s s e t t l e m e n t p a y m e n t i n e v a l u a t i n g t h e reasonableness of an attorney fee award. W e h ol d now that the distric t court may , within the ex ercise of its discretion, conside r t h e damag es portion o f a settlement pay ment b y other defendants in evaluating a plaintiff’s deg ree of success. However, it shoul d d o so only if and to the ex tent that plaintiff’s counsel’s time spent on settling defendants cannot be fairly separated from th e time spent on non-settling defendants. F actors to consider include whether the plaintiff’s claims ag ainst both sets of defendants “involve a

common core o f facts” or are “based on related leg al theories,” cf. Hensley

, 461 U .S. at 4 35; if the c l a i m s a r e in fact divisible, whether that was appa re n t from the outset o r whether the d ivisible nature beca m e clear as the litig ation developed and discovery prog ressed; and whether the c laims
ag ainst the settlin g defendants were, in the district court’s considered judg ment, meritorious, o r whether they were settled for nuisance value. 3

3 T h is determ in atio n is n o t u n lik e th e d eterm in atio n w h eth er def

en d an ts

are j o in tly an d s ev erally liab le f o r th e p lain tif

f ’ s in j u ry

. Cf

. Ha zle

, 7 2 7 F.3 d a t 9 9 5 ; s e e a lso Th e Atla s , 93 U.S. (3 Otto ) 3 0 2
, 3 0 6 (1 8 7 6) (“ T h e co m

m o n law creates a j o in t an d sev eral liab ility

. . . b ecau se b y a sin g le an d f

o rcib le act, w

h ich w o u ld n ot h av e h ap p en ed ex cep t b y th e

co n cu rrin g n eg lig en ce o f th e tw o p arties, an in j u ry h as b een d o n e to an in n o cen t p arty .”).B R A V O V

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T u rn i n g to the facts of this case, the district cou r t appropriately found that the B ravos’ claims ag ainst the Santa Maria and the City of Santa B a rbara defendants are f

actually and leg ally intertwined. Plaintiffs’ theory of liability was that the Santa Maria defendants caused Santa B arbara to use a SW AT team to force e n try into the B ravos’ home. Given that the district c ourt decided as a matter o f law that the no-knock entry violated the F ourth A m e ndment, it is clear that the claims against the City of Santa B arbara defendants were meritorious and not settled merely for nuisance value.

According ly , we affirm the attorney fee award.

II. Of f sets of Costs

Defendants contend that the d istrict court abused its discretion w hen it refused to offset its award of $13,376.85 in costs, b y the $16,208.95 in costs paid by the C i t y o f Santa Ba r b ara defendants. I n refusing to offset costs, the district
court held that costs are n ot akin to attorney f ees, f o r w h i c h

o ffsets are required, but rather “are more analog ous t o damag es

. . . , and therefore require defendants to pay at least their proportional share.”

W h ether an award of c o sts must be offset by costs paid b y

a settling c o

- d e f

e n d ant also appears to be a n issue of first impression in this c ircuit. There is little case law directly on point. 4 T herefore, we reason from principle a nd analog y a

nd

4 S ee G u tierrez v. Va n tia Pro p erties, LLC
, No

. 1 :1 3

- CV- 0 06 4 2- L J O, 2 0 1 4 W L 2 10 6 5 7 0
, at * 1 1 (E.D. Cal. May 2 0
, 2 01 4 ) (reco m m en d in g th at d am ag es, atto rn ey f

ees, an d co sts b e of

f set by th e am o u n t p aid b y settlin g

co

- d ef en d an t); In re Vita min C An t itru s t Litig

. , 2 0 1 3 W L 6 8 5 8 8 5 3
, at * 6 (E.D.N.Y. Dec. 3 0
, 2 0 13 ) (d en y in g p l ain tiffs’ req u est f or co sts alread yB R A V O V

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hold that the Santa Maria defendants are entitled to a n offset of costs to the e x tent that the litig ation ex penses have already been reimbursed.

Contrary to the district co u r t ’s holding

, costs a re not analog ous to damag es. T h e y a r e n ot c o mpensation for loss and, unlike the d etermination of d amag es, which is u s ually left for the jury

, the calculation of costs is almost ex clusively

a function for a judg e , see 10 W rig ht & Miller, Fe d e r al Practice and Procedure § 2665 (3d ed. 1998). Costs a re more analog ous to attorney fees. L ike attorney fees, costs are a reimbursement for “litig ation-related ex pens e s that a prevailing party is entitled to be awarded.” Taxation of Costs
, B lack’s L aw Dictionary ( 10th ed. 2014); cf. F ed. R. Civ. P

. 54(d) (referring to “ c osts

– other than att o rney ’s fees”); 10 W r ig h t & Miller, F ederal Practic e a n d Procedure § 2675 (3d ed. 1998) (treating

attorney fees as component of costs).

W e held in Corder that a district cou r t a buses its discretion when it refuses to offset an award of attorney fees by a settling defendant’s p ay ment of tho s e s a me fees. W e reasoned that 42 U.S.C. § 1988 allows “reasonable” fees a nd that a second pay

ment f o r the same billable time is an unreasonable double recovery

. 25 F .3d at 840. A s Defendants c ontend, attorney f ees a r e a component of costs under 42 U.S.C. § 1988

. M a r ek v. Chesny

, 473 U .S. 1, 9 (1985); Fulps v

. City of Springfield

, 715 F .2d 1088, 1092–93 (6th Cir. 1983)

. T h us, double recovery of costs other than attorney fees is just as impermissible as double recovery o f attorney fees.

p aid b y settlin g co -d ef

en d an ts, ab sen t ev id en ce f ro m p lain tif

f s th at th e req u ested co sts w ere d if

f eren t ex p en ses).B R A V O V

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The district court’s reasoning that the deterrent principle
at the heart of § 198 3 al l ows double recovery of costs is unpersuasive. W hile the statut e i s d e sig ned to deter civil rig hts violations and encourag e access to the courts to redress often economically u nviab le injuries to fundamental rig hts,

s e e g enerally City of Riverside v. Rivera
, 477 U.S. 561, 574–77 (1986), that basic principle does not r equire double reimbursement of identical litig ation ex pe nses. The statute does not specifically add r e s s this scenario, but it is d ifficult
to imag ine Cong ress intended for litig ation ex pe n s e s to be
pa i d m u ltiple times. Nor would eliminating d uplicative
pay ments for litig ation e x penses sig nificantly influence counsel’s d ecision to prosecute c ivil rig hts suits. Co s ts a re nearly alway s a smaller priz e than fees (which also cannot be double-counted), and “almost alway s a mount to less than the successful litig ant’s total ex pense s in connection with a lawsuit.” 10 W rig ht & Miller, F ederal Practice a nd Procedure § 2666. The decision to pursu e a claim does not likely hing e on the prospect of recovering out-of-pocket

ex p enses multiple times for the same litig ation activities.

The principle of not allowing double recovery of costs under § 1988 is also supported by analog ous California law. Under California law, when a pretrial settlement w ith o ne defendant covers the v e r

y same costs a plaintiff is try ing to

recover from the non-settling d efendant, the plaintiff cannot

recover the same costs twic e

. S e e R egan Roofing Co. v

. Superior Court
, 2 7 C a l. Rptr. 2d 6 2, 76 (Ct. App. 1994). A California st at u t e similarly provides that costs must be reasonable. Cal. Civ. Proc. Code § 1033.5(c)(2), (3); see also 7 W itkin, California Procedure § 118 at 657 (5th ed. 2008).B R A V O V

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Thus, whether this question is analy zed purs uant to federal common law o r California l a w, 5 the district court erred by apply ing the incorrect leg al standard. According ly

, we remand for the district court to determine what amount o f costs should be offset.

CONCLUSION

W e a ffirm the attorney fees awa r d because the district court’s f inding that the B ravos achieved an ex cellent result is supported by the public benefit g enerated by the litig ation a s well as the $150,000 in damag es the B ravos obt a i n ed in the Santa B arbara settlement. W e reverse the dis t r i c t court’s refusal to o ff

s e t costs and remand for consideration of what
amount of the costs award, if any , should b e o f f s e t by the costs already

paid by the City of Santa B arbara defendants.

AF F IRMED in p a r t, REVERSED in part, a nd REMANDED f

or determ ination o f costs. Each party s h a ll bear its ow n costs on appeal.

5 S ee Co rd er , 2 5 F. 3 d a t 8 3 9- 4 0 (n o tin g co u rts’ d isag reem en t ov er

w h eth er th e o f

f set o f atto rn ey f

ees u n d er § 1 9 8 8 is d eterm i n ed by f ed eral

co m m o n law o r s tate law

, an d u ltim ately h o ld in g as a m atter o f law th at

an o f f s et is req u ired u

n d er § 1 98 8 ); C.B. v. City o f S o n o ra , 76 9 F.3 d 1 0 0 5
, 1 0 3 1 & n .2 5 (9 th Cir. 2 0 1 4 ) (n o tin g th at it is u n clear w h eth er f ed eral or state law sh o u ld ap p ly , b u t ad d ressin g o f f set o f d am ag es in a § 1 9 83 su i t

u n d er state law ).B R A V O V

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REI NHARDT, Circuit J udg e, concurring :

I fully c oncur in the majority o p inion. I write separately

, however, to ex plain why I would uphold the award i n this

case whether or not we considered the $360,000 settlement with the Santa B arbara defendants. I n short, I would uphold the fee a ward ev e n i f t he o nly monetary benefit to plaintiffs

was the $5,000 verdict. I would do so for t w o r e a s ons: (1) althoug h the verdict was low in comparison to t h e f ees soug h t by the attorney s, this litig ation achieved sig nif icant non-monetary benefits for society

, and (2) the entire c ontex t of the case, including the fact that plaintiffs had to overcome

a robust defense, sho ws t hat the amount of time e x pended

was necessary to vindicate the plaintiffs’ righ t s , e v en if the only benefit that h a d accrued had been the $5,000 in damag e s awarded by the jury

. Plaintiffs’ co u n sel should be f ully
compens a t e d for this effort. The defendants, rely ing in part

on Farrar v. Hobby

, sug g est that we should ign ore a ll other considerations, and that the fee award s h o u l d be reduced solely based on a comparison between the verdict and the f ee award. That position, however, is unsupported b y Farrar
, our case law, and the motivating principles of 4 2 U .S.C. § 1 988. According ly

, I a g ree with the majority tha t the district court did not a b u s e its discretion by awarding $1.2 million in a ttorney ’s fees—a 10% reduction from the cost o f the time and work counsel ex pended on this case.

As an initial matter, there is a strong presumption that the lodestar—the amount of hours reasonab l y e x pended on the litig ation multi plied by a reasonable hourly rate—is a reasonable fee to be awarded under 42 U

. S

. C. § 1988. Perdue v. Kenny A. ex rel. W inn
, 559 U.S. 542, 552 ( 2 010); Pennsylvania v. Delaware V a lley Citizens’ Counsel

for Clean Air
, 478 U.S. 546, 564–65 (1986); Blum v. Stenson
, 465 U.S.B R A V O V

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8 8 6
, 897 (1984). T his presumption is based on the premis e that a fee u n d e r § 1 988 must be “sufficient to induce a capable attorney to undertake the representation” in order to advance the private e nforcement of federal civil rig hts laws. Perdue

, 5 59 U.S. at 552; s e e a l s o S

. R E P

. N O

. 9 4 -1011, a t 6 (1976), as reprinted in 1976 U.S.C.C.A.N. 5908, 5913. Once the lodestar is calculated, the district court can look to “other considerations” to determine w hether this p resumptively reasonable fee should be adjusted eit h e r upward o r downward. Delaware Valley , 478 U.S. at 565.

I n Farrar v. Hobby

, a particularly unsy mpathetic case, the Supreme Cour t created a limited ex ception to the normal calculation of fees. 506 U. S

. 103 (1992). I n that case, the State o f Tex as tempora r i l y closed down a school for delinquent, disabled, and disturbed teens after a student of the
center died. The owner o f the c ente r , J o s e ph F arrar, was indicted for murder because of his f ai l u r e to administer
proper medical treatment. Id. at 105–06. F arrar subsequently sued the L ieutenant Governor of Tex a s, W il l i a m Hobby

, a s well as several other state employ e es who had p articipated in the e vents leading to the closing o f the school. Id. at 105. He
soug h t $ 17 million in damag e s, alleg ing that he had b e e n deprived of liberty and p roperty without due p rocess b y

means of malicious prosecution. Id. T he ju r y d e termined
t hat F arrar had been deprived of a civil rig ht, but it awarded

z ero d amag e s. Despite the wholly technical nature of F arrar’s victory , and the fact that his law suit achieved no sig nificant public purpose, his counsel soug ht $280,000 in f e e s

. The Supreme Court forcefully d enied this fee award, and held that when a plaintiff, like F a

rrar, achieves only te c h n i c al or de

m inimis success, a district court “ may lawfully a wa r d l o w fees or n o f

e es” without calculating the lodestar o r considering the other factors, id. a t 1 14–15 (emphasis added),B R A V O V

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because the deg re e o f the plaintiff’s overall success is the “‘most critical factor’ in d etermining the reasonableness of a fee award.” 506 U.S. at 114.

I n c asting the critical fifth vote in Farrar
, J u stice O’Connor ex plained in her separate o pinion that not every

nom i n al damag e award is a purely technical or de minimis victor y a n d that, when considering the deg ree of overall
success, a c ourt should consider more than the m o n e tary amount a warded by a jury

. See id. at 1 20–21. I n partic ular, sh e wrote, courts should c onsider whether the p laintiff vindicated important rig h ts or prevailed o n s ig nificant leg al issues “ even thoug h no actual damag es are pro v e d

. ” I d. at 121. Since Fa r r a r had done neither o f these thing s, J u stice O’Connor ag r eed that his v ictory was solely a technical one, and that in h is case a denial of attorney ’ s fees was more than appropriate. I t is important, however, that J ustice O’Connor did not sug g e st that where actual damag es are recovered that

are n ot d e minimis it is necessary f or the plaintiff to establish in addition that h e secured some overall s o c i etal benefit a s well.

Our c ourt has interpreted Farrar as having two c entral holding s. F irst, a district court may award little or no f ees to a plaintiff who has achieved solely a de minimis victory , but that it should not do so if the plaintiff’s lawsuit achieved sig nificant non-mone tary results for himself or other members of society

. See McCown v. Cit y o f Fontana
, 550 F .3d 9 1 8 ( 9 t h Cir. 2 008) a s amended 565 F .3d 1097, 1105; Morales v. C i ty of S an Rafael

, 96 F .3d 3 59, 362–63 (9th Cir. 1996). Second, a district court abuses its discretion when it fails to consider the d e g ree of success achieved b y the pl a i n t i f f when determining a r easonable fee award. See Morales

, 96 F

. 3d at 362. Nothing in these cases sug g ests thatB R A V O V

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the ex tent of v ictory is measured solely by the amount of the award. I ndeed, a small award may re p r esent a complete victory

. 1

I fully ag ree w ith the ma

j o r i t y that u nlike Farrar
, this is
not a case in which the district court could have a warded low

or no f ees without calculating the lodestar or considering the

o t h e r factors. W holly a side f rom the moneta r y considerations, this litig ati o n r e sulted in sig nificant public benefits. Our f

irst opinion in this case clarified what probable

cause is n ecessary to justify a warrant for a nig httime SW AT raid

, a constitutional q

uestion of f

irst impression in this Circuit. F urthermore, the litig ation resulted in a verdict
ag ainst the City of Santa Maria, ex posing an unconstitutional practice b y that City ’s p olice department. See W ilcox v. City of Reno
, 42 F .3d 550, 556 ( 9th Cir. 1 9 94) (“Ex posing an unconstitutional policy [by the police department] d o es a g reat deal more than finding a plaintiff’s ri gh t s have been infring ed upon in some u n specified way

. The police department itself, and the community at larg e benefit from a finding of this sort.”) (affirmative l y q uoting the district

1 Occasio n ally

, th is co u rt h as q u estio n ed t h e v alid ity o f aw ard in g atto rn ey s’ f

ees su b stan tially in ex cess of th e am o u n t reco v ered

, bu t th e p rev ailin g v iew ap p ears to b e th at w h ich is ex p licated in th e tex t in fra

. In McGin n is v. Ken tu cky Fried Ch icken o f Ca lifo r nia
, f o r ex am p le, t h e p an el
ap p lied f ed eral law to a req u est f

o r f ees u n d er a W ash in g to n s tate s tatu te. 5 1 F

. 3 d 8 05
, 8 10 (9 th Cir. 1 9 94 ). T h ere, d u e to a ch an g e in co n tro llin g law

, th e p lain tif

f ’ s dam ag es d ro pp ed f

ro m $ 2 3 4 ,0 0 0 to $ 3 4 ,0 0 0
, b u t th e d istrict co u rt declin e d to co n sid er th is ch an g e w h en d eterm in i n g an ap p ro p r i a t e fe e a w ard

. Id

. In th e circu m s tan ces o f th at case, th e co u rt d eterm in ed

, a red u ctio n

in f ees sh o u l d h av e b een co n sid ered

. Id

. A s w e

recen tly ex p lain ed

, h o w ev er, a d ecisio n to lo w er atto rn ey ’ s f ees f ro m th e lo d estar sh o u l d b e b ased “ in lig h t o f th e co n tex t o f th e case” as a w h o le,

n o t b ased “ so l ely o n th e n u m b er o f d o llars” th at th e p lain tif f s reco v ered

. Go n za lez v. City o

f Ma ywo o d , 7 2 9 F.3 d 1 1 9 6 , 1 2 1 0 (9 th Cir. 2 0 1 3 ).B R A V O V

. C I T Y O F S A

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court’s holding ). Tog ether, these ac h i e vements o f fer clear and important g uidance to mag istrate judg es, to the City

, a nd
to other municipalities, which s h o uld reduce the likelihood th a t i n n ocent individuals will be unnecessarily subjected to intrusive searches of their homes.

Since t h e F

a rrar e x ception does not apply

, we must presume that the lodestar is reasonable unless other considerations sug g est otherwise. See, e.g. , Perdue

, 5 59 U.S.
at 5 5 2. Here, the other considerations do not. The contex t o f this case strong ly sug g ests that the amount awa r d e d b y the district judg e was a reasonable one, reg ardless of the disparity i n the a mount of attorney s fees required to obtai n a comparatively sma l l d amag e award. I n particular, it is important that this case required an inordinate a mount of time and labor in order to overcome an especially robust defense. According ly

, a hig h award of attorney s’ fees is reasonable.

Here, the plaintiffs spent 2 3 21.32 hours pursuing c laims
ag ainst the Santa Maria defendants between 2006 and 2013, and there is no reason to believe that their counsel billed more than that which was necessary to win. F irst, al l of the plaintiffs’ attorney s spent less than an averag e o f 70 hours per y ear on this matter. This number s e ems appropriate—if not low—g iven the complicated nature of this suit, the important i n t erests at stake, and that it is a “hig hly aty pical civil rig hts

case where the plaintiff’s l a w y er eng ag es in churning

, ” Moreno v. City of S

acramento , 534 F .3d 1106, 1112 (9th Cir. 2008). I ndeed, at least until the prior appeal, the defe n se counsel spent more hours on this case than plaintiffs’ counsel, which sug g ests that defense c ounsel believed this case was suf f i c i e ntly complex and important to justify larg e amounts

o f attorney time. See Burgess v. Premier Corp.
, 7 27 F. 2 d 826, 840 (9th Cir. 1984); see also Robinson v

. City ofB R A V O V

. C I T Y O F S A

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Edmond

, 160 F .3d 1275, 1284 (10th Cir. 1998) (“[ T] he effort

ex p ended b y the defendants sug g ests at least that they viewed the case as sufficiently

complex and serious[ .] ”); Pressley v

. Haeger
, 977 F .2d 295 ( 7th Cir. 1992) (“Three lawy ers toiled

a total of 1272 hours on Pressley ’s behalf. I f this s e ems

ex c e ssive in lig ht of the stakes

. . . it was n ot ex cess i v e in

r elation to the need to overcome a d efense that Hae ge r a n d the Villag e wag ed with 2041 hours of lawy ers’ time.”). 2 F urther, plaintiffs, who bor e t h e burden of proof, had to

e x pend hours to overcome the opposition by the d efen s e, which had persuaded the district court to improperly g rant summary judg ment, necessitating a prio r a p p e al. See Burgess
, 727 F .2d a t 8 40; Robinson

, 160 F .3d at 1275 (“[ O] n e of the factors useful in evaluating the reasonableness of the number of attorney h o urs in a fee request is ‘the
responses n ecessitated b y t h e maneuvering of the other side.”). I n short, plaintiffs’ attorney s were able to achieve not only the g reat public benefits that they did, but the amount o f damag es to which the plaintiffs were entitled, only because o f the consistent hours that they put in to overcoming the City ’s strong opposition. See Moreno
, 534 F .3d a t 1 1 1 2 (“B y a nd larg e , the court should defer to the winning lawy er’s professional judg ment as to how much time he was required
to spend on the case; a f

t er all, he won, and mig ht n ot have, had he been more of a slacker.”). Plaintiffs’ attorney s should be fully compensated for this necessary effort.

The defendants ig nore these cons iderations, and instead
sug g est that t h e fee award must be reduced because it is disproportionately larg e compared to the jury ’s verdict. W e

2 T h e reco rd in dicates th at d ef en d an ts sp en t m o re h o u rs th an plain tif f s

o n th is case p rio r to th e f ir st a p p e a l

, b u

t th ere is n o in f

o rm atio n in th e

reco rd ab o u t h o w m an y h o u rs d ef en d an ts sp en t o n it af

ter th e f irst ap p eal.B R A V O V

. C I T Y O F S A

N T A M A R

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have previously rejected similar arg u m ents, and held that a reasonable fee must b e determined “in lig ht of the contex t o f th[ e] case,” “ not based on [the court’s] own notion of the
correct ratio between the am o u nt of attorney ’s fees and the
amount the litig a

n ts recovered.” G o n z alez v. City of Maywood

, 7 2 9 F .3d 1196, 1209 ( 9th Cir. 2013) (emphasis added). 3 To hold otherwise would u nreasonably ex tend Farrar well bey ond its core holding

, and in doing so, destroy the motivating principles of § 1988.

The fundamental purpo s e o f § 1988 is to ensure that victims of c ivil rig hts violations are able to obtain competent l e g al c ounsel who will make it possible for them to e nforce their rig hts, including the compensation to w h ich they a re entitled on account o f t h e v i olation of those rig hts. As the
cost of litig ation increases, it becomes more difficult for civil rig hts v ictims to afford c ompeten t c ounsel. Conting ency ag reements provide some r edress, but not i n c ases in which the injury that the plaintiff suffered is c omparatively small—

even serious violations of civil rig ht s do not necessarily involve serious phy sical injuries, and it may well be that the violation of a civil rig ht justif i e s compensation in o nly a moderate amount. I n such instances, finding a c omp e t e n t

3 A lth o u g h Fa rra r h o ld s th at th e deg ree o f su ccess is th e m o st i m p o rtan t

co n sid eratio n , it d o es n o t h o ld th at district c o u r t s mu st o r ev en s h o uld ig n o re o th er co n sid eratio n s w h en determ i n in g a reaso n ab l e f ee. In d eed

, F a rra r rep eated l y u sed p erm issiv e lan g u ag e to co n v ey th is p o in t. S e e Fa rra r , 5 0 6 U.S. at 1 1 4 (“ If ‘ a p lain tif f h as ach iev e o n ly p artial o r lim ited

su ccess, th e [lo d estar] ma y b e an ex cessiv e am o u n t.’ ”) (em p h asis ad ded ); Id

. at 11 5 (“ [T ] he c o u r t ma y law f u l ly aw ard lo w f

ees o r n o f

ees w ith o u t recitin g th e 1 2 f

acto rs b earin g o n reaso n ab l e n ess[.]”) (em p h asis ad ded ); I d

. ( “W h e n a plain tif

f reco v ers on ly n o m in al d am ag es b ecau s e o f h is f ailu re to p ro v e an

essen tial elem en t

o f h is claim f o r m o n etary

relief , th e

o n ly reaso n ab le f

ee is u su a lly n o f

ee at all.”) (em p h asis ad d ed ).B R A V O V

. C I T Y O F S A

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lawy er to effectively handle victims’ c laims would be close to impossible without the incentives provided by § 1988.

Similarly

, i f we w ere to adopt a rule that limited attorney ’s f

ees in civil rig hts c ases to an amount th at is
commensurate with the d amag es r eceived, it would cripple the ability of victims suffering low o r moderate economic damag es to f

ind compet e n t c o unsel to pursue c laims involving the violation of th e i r r ig h ts. F irst, jury verdicts
reg arding damag es resulting from v iolations of civil rig hts a re not easily predictable. Th e y m a y well depend on the predilections of the averag e jury in the g eog raphic location o f
t h e o c c urrence or even on the happenstance of the composition of a particu l a r jury

. Such verdicts, thoug h perfectly appropriate under the law, surely do not reflect the
amount of time and effort that must necessarily be s p en t to win a civil rig hts case. Second, the astronomic a l c osts o f litig ation can easily ex ceed moderate economic damag es b y

a substantial multiplier. This is especially true in civil rig hts
cases, in which municipalities often h a v e s ig nificant nonmonetary reasons to staunchly d efend ag a i n s t such actions using the services of municipally

- paid, s al a r ied lawy ers. Here, for ex ample, the actual c o st of plaintiffs’ counsels’ time was, without doubt, well over a million dollars. Perhaps the jury could h ave returned a verdict of $10,000 instead o f $5,000; or perhaps $25,000, or even $100,000. Compared to the cost o f litig ati o n , any of these amounts would be in s u b s t a n tial. I f the measure of awardable fees was limited by the damag es received or an y thing like them, the lawy ers would not be compensated for t i m e necessarily spent on theB R A V O V

. C I T Y O F S A

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case, and most attorney s would be reluctant to undertake the representation. 4

Thus, the defendants’ proposal, which places an undue emphasis on the proportionality between the monetary verd ict and the f ee award unreasonably ig nores the central question of § 1988: how much in fees is reaso n a b l y n e cessary to permit individua l s whose civil r ig hts have been violated to obtain a ttorney s w ho will dilig ently a n d competently work to preserve the i r r i gh ts, e ven if the monetary award may be moderate? T he defendants’ position would prevent p l a i n t i ffs’ counsel f r o m being compensated for any hours reasonably

ex p ended in recovering d amag es in amounts that fairly

m e asure the plaintiff’s economic injury

, would require th at attorney s b e c ompensat e d we l l under the market rate for similar leg al services, and w ould, i n effect, compel many victims of c ivil rig hts violations to forg o their rig hts to redress entirely

.

4 B ecau se o n ly o n e p lain tif f in th is case recei v e d a n aw ard of actu al d am ag es w

h ile t w o reco v ered on ly n o m i n al d am ag es, it is p o ssib le t h at, in o th er circu m stan ces, th e f ee aw ard m ig h t b e red u ced to so m e ex t en t to

acco u n t f o r h o u rs sp en t p u rsu i n g th e tw o co m p arativ e l y u n su ccessf

u l
p l a i n t if f s

. See Hen sley v. Eckerh a rt , 4 6 1 U.S. 42 4
, 4 4 0 (1 98 3 ). Su ch a red u ctio n w o u ld b e in ap p ro p riate in th is case f or sev eral reaso n s , h o w ev er. First, th e d ef

en d an t h as n o t su g g ested th at a red u ctio n sh o u ld b e m ad e on th is b asis an d th u s w aiv ed th e issu e. Seco n d, sin ce th e p l ain tif f s’ claim s h av e i d en tical f

actu al an d leg al b ases, it is u n l ik ely th at an y s i gn if ican t

am o u n t o f tim e sp en t p u rsu in g th e cla i m s o f t h e n o m in al d am ag es p lain tif f s w as n o t also n ecessary t o ad v an ce th e m o re su ccessf u l p lain tif f ’ s claim

. T h ird

, p lain tif

f s w h o receiv e n o m in al d am ag es are still prev ailin g p arties en titled to f

ees u n d er t

h e s tatu te u n less th eir v ict o r y w as m erely tech n ical o r d e m in im is, see Fa r ra r , 5 0 6 U .S. at 1 1 3

– 1 4
, an d as ex p lain ed earlier, th e im

p o rtan t p u b lic b en ef

its ach iev ed in th is case p reclu d e th e p lain tif f s’ v icto ry f

ro m b ein g co n sid ered m erely tech n ical o r de m in i m is.B R A V O V

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As the Supreme Court has repe a t e d l y stated, there is a strong presumption that the lodestar—the amo u n t of hours reasonably ex pended o n a case multiplied by a r e a s o n able hourly rate—is a reasonab l e f e e sufficient to attract competent attorney s. Se e , e.g. , Perdue

, 559 U.S. at 552; Delaware Valley

, 478 U.S. a t 564–65; Stenson
, 465 U.S. at 897. D efendants’ proposed r ule entirely ig nores this lodestar based o n a misg uided sense o f “proportionality .” I f w e were to adopt this untenable position, only attorney s who are either totally selfless or remarkably privileg ed would b e a b l e to

ex p end the necessary , unpai d effort to advance these important rig hts, including a tt o r ney s whose employ ment at larg e c orporate law firms allows them to dedicate a portion o f their wor k i n g hours to these c a uses pro b ono

. W e a

re g rateful for their contributions, but that is n o t the sy stem envisioned by § 1988. The r ule urg ed by defendants would eviscerate that statute. F or this reason, I concur.