FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAVIER BRAVO, SR.; HOPE BRAVO;

E. B., a minor by her Guardian ad

Litem Sara Gonzales,

Plaintiffs-Appellees/

Cross-Appellants,

v.

CITY OF SANTA MARIA; LOUIS

TANORE, Santa Maria Police

Detective; LARRY RALSTON, Santa

Maria Police Lieutenant,

Defendants-Appellants/

Cross-Appellees.

Nos. 14-55557

14-55687

D.C. No.

2:06-cv-06851-

FMO-SH

OPINION

Appeal from the United States District Court

for the Central District of California

Fernando M. Olguin, District Judge, Presiding

Argued and Submitted

October 28, 2015—Pasadena, California

Filed January 12, 2016

Before: Stephen Reinhardt, Michael Daly Hawkins, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Hawkins

Concurrence by Judge Reinhardt
2 BRAVO V. CITY OF SANTA MARIA

SUMMARY*

Civil Rights

The panel affirmed the district court’s attorneys’ fee

award under 42 U.S.C. § 1988 in favor of plaintiffs and

reversed the costs award against defendant, the City of Santa

Maria, and remanded for a new costs determination.

This appeal arises from a jury verdict that defendants, the

City of Santa Maria and individual police officers, violated

plaintiffs’ constitutional rights when they failed to disclose

certain information in a warrant to search plaintiffs’ home. 

Prior to trial, plaintiffs settled with the City of Santa Barbara,

whose officers actually carried out the entry of plaintiffs’

home. The case went to trial against the Santa Maria

defendants and resulted in a jury award of approximately

$5,000 in damages.

The panel held that in considering an award of attorneys’

fees under § 1988, it is appropriate to take into consideration

a plaintiff’s success in obtaining a settlement against another

party arising out of the same facts. The panel held that under

the facts and circumstances of this case, it was appropriate to

take the Santa Barbara settlement into consideration when

considering the attorneys’ fee award against the Santa Maria

defendants. Affirming the attorneys’ fee award of

$1,023,610.41, the panel held that the district court’s finding

that plaintiffs had achieved an excellent result was supported

by the public benefit generated by the litigation as well as the

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
BRAVO V. CITY OF SANTA MARIA 3

$150,000 in damages the plaintiffs obtained in the Santa

Barbara settlement.

The panel reversed the district court’s refusal to offset the

award of costs assessed against the Santa Maria defendants

by the costs already reimbursed by the City of Santa Barbara

as part of the settlement. The panel remanded for

consideration of what amount of the costs award, if any,

should be offset by the costs already paid by the City of Santa

Barbara defendants.

Judge Reinhardt concurred in the majority opinion, but

wrote separately to explain why he would uphold the

attorneys’ fee award in this case irrespective of whether or

not the settlement with the Santa Barbara defendants was

taken into consideration. Judge Reinhardt would uphold the

fee award even if the only monetary benefit to plaintiffs was

the $5,000 verdict.

COUNSEL

Jeffrey E. Raskin (argued) and Timothy T. Coates, Greines,

Martin, Stein & Richland LLP, Los Angeles, California;

David M. Cumberland, Joshua M. George, and Jordan

Cunningham, Adamski Moroski Madden Cumberland &

Green LLP, San Luis Obispo, California, for DefendantsAppellants/Cross-Appellees.

Donald W. Cook (argued) and Robert Mann, Los Angeles,

California, for Plaintiffs-Appellees/Cross-Appellants.
4 BRAVO V. CITY OF SANTA MARIA

OPINION

HAWKINS, Circuit Judge:

This appeal arises from a jury verdict that Defendants the

City of Santa Maria (“City”) and Louis Tanore, Larry

Ralston, and Danny Macagni of the Santa Maria Police

Department (“SMPD”) violated the constitutional rights of

Plaintiffs Javier Bravo, Sr., his wife Hope, and their

granddaughter E.B. (collectively, “the Bravos”). Specifically,

the jury found that SMPD officers failed to disclose in

seeking a warrant to search the Bravos’ home that Javier

Bravo, Jr.—suspected of hiding weapons that may have been

used in a gang-related shooting incident—was not living and

had not been living in the home for some seven months prior

to the shooting because he was incarcerated in state prison on

unrelated charges. The resulting pre-dawn, SWAT-style

search of the Bravos’ residence did not yield any weapons,

but succeeded in rousing the Bravos from their beds and

frightening them. Prior to trial, the Bravos settled with the

City of Santa Barbara, whose officers actually carried out the

entry of the Bravo home, for $360,000. The case went to trial

against the remaining defendants and resulted in a jury award

of $5,000 in compensatorydamages to Javier Sr. and nominal

damages to Hope and E.B. In this opinion,1 we address an

issue of first impression: whether in considering an award of

attorney fees under 42 U.S.C. § 1988, it is appropriate to take

into consideration a plaintiff’s success in obtaining a

settlement against another party arising out of the same facts. 

For the reasons set forth below, we conclude that, under the

facts and circumstances of this case, it was appropriate to take

1

In a separate Memorandum filed contemporaneously, we address other

issues presented in this appeal.
BRAVO V. CITY OF SANTA MARIA 5

the Santa Barbara settlement into consideration and,

accordingly, we affirm the district court’s fee award. On the

same theory, we vacate the cost award against the Santa

Maria defendants and remand for the district court to take

into account the costs recovered in the Santa Barbara

settlement and offset those costs against the costs to be

awarded against the Santa Maria defendants.

BACKGROUND

I. Facts 

A. Shooting Incident and Investigation

While investigating an April 2006 gang-related shooting,

SMPD detectives Louis Tanore and Eligio Lara learned that

Javier Bravo, Jr. and about a dozen others might have been

involved in the shooting or might possess evidence of the

crime (in particular, the weapons used).

Tanore directed Lara to gather information on eight of

these individuals, including checking into their criminal

histories and custody status. According to Lara’s testimony,

he called the Santa Barbara county jail to determine the

custody status of the eight targets. Lara learned from these

calls that one of the eight—James Franklin—had been

transferred from county custody to state prison. He disclosed

this finding to Tanore, and Franklin was removed from the

list of targets. According to a county jail official’s trial

testimony, Lara asked whether Javier Jr. was in county

custody (he was not), but he did not ask follow-up questions

about whether, like Franklin, Javier Jr. had been transferred

from county to state custody. Lara never learned this.
6 BRAVO V. CITY OF SANTA MARIA

B. Custody Check Procedure

To determine a target’s custody status, SMPD officers’

practice was to call the Santa Barbara county jail. County jail

officials can determine whether a target is in county custody,

as well as whether he has been released or transferred to state

custody. Determining whether a target is in county custody

and determining whether he has been transferred to state

custody requires two different computer searches.

Lara and Larry Ralston, the lead supervisor of the

investigation, testified that if an SMPD officer learned that a

target had been transferred to state custody, he or she would

then follow up with state authorities. Tanore testified that

SMPD practice was to call the Santa Barbara county

substation regardless of whether a person was potentially in

county or state custody; he did not mention any follow-up

procedure.

C. Warrant Affidavit

Based in part on information gathered by Lara, Tanore

prepared an affidavit in support of nighttime warrants to

search the homes of Javier Jr. and six other suspected gang

members. The affidavit included criminal history

information on each target, including Javier Jr., which Tanore

obtained by reviewing rap sheets provided by Lara. The

affidavit stated that Javier Jr. had been arrested or charged

numerous times in the past and included possession of known

stolen property as one of the crimes for which he had been

arrested or charged. However, the affidavit did not include

the dates of the offenses. Nor did it disclose that Javier Jr.

had been sentenced to two years in state prison in September

2005—about seven months prior to the shooting
BRAVO V. CITY OF SANTA MARIA 7

incident—for the stolen property offense, or that he might

still be incarcerated.

D. Search

The magistrate judge approved a warrant for a nighttime

search. Because SMPD lacked the resources to conduct

seven simultaneous home searches, its officers invited the

Santa Barbara Sheriff’s Office (a county agency) and Santa

Barbara Police Department (a city agency) to conduct some

of the searches. Tanore informed the partner agencies of the

risks and dangers of the search. Though neither Tanore nor

anyone else from SMPD prescribed the partner agencies’

tactics, Tanore stated that he was not surprised that they

elected to use a SWAT team.

At 5:26 a.m. on April 26, 2006, a Santa Barbara Police

Department SWAT team knocked on the front door of the

Bravos’ residence, announced their presence, and three

seconds later shot off the locks and broke down the door. 

Simultaneously, the team deployed two “flashbang” grenades

outside of the back door.

Javier Sr., Hope, and E.B. (eight years old at the time)

were awakened by these loud noises and frightened to see

armed individuals in their home. Javier Sr. initially believed

that robbers were invading the house or that his son had

escaped from jail and been shot at his doorstep, causing him

to experience heart-attack-like symptoms. 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 gone to hide upon hearing the loud noises. After

securing the residence, the City of Santa Barbara officers

turned the scene over to SMPD to search the house.
8 BRAVO V. CITY OF SANTA MARIA

At some point during the search, Hope informed the

officers that Javier Jr. 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 Javier Jr. was

in custody, at which time Tanore instructed the officer to

continue with a “cursory” search of the residence. SMPD

seized a number of items from the home, but found no

weapons.

II. Procedural History

A. Complaint, Pretrial Motions, and Prior Appeal

In October 2006, the Bravos brought suit against Tanore,

his supervisor Ralston, SMPD Chief of Police Danny

Macagni, and the City of Santa Maria, as well as the counties

of San Luis Obispo and Santa Barbara, their sheriff’s offices

and county sheriffs, and the cities of San Luis Obispo and

Santa Barbara and their police chiefs. The Bravos alleged 

violations of the Fourth and Fourteenth Amendments (due

process and equal protection) and various state laws, and

requested unspecified amounts of general, special, and

punitive damages, a $25,000 civil penalty, and recovery of

related costs.

Plaintiffs stipulated to dismiss their claims against the

County of San Luis Obispo and City of San Luis Obispo

defendants early in the case. They settled with the City of

Santa Barbara defendants for $360,000 after the City of Santa

Barbara defendants appealed the district court’s denial of

qualified immunity. The settlement amount consisted of

$50,000 in damages for each plaintiff, $169,856.34 in

attorney fees, and $16,208.95 in costs.
BRAVO V. CITY OF SANTA MARIA 9

The district court then granted summary judgment for the

County of Santa Barbara and the Santa Maria defendants. 

The Bravos appealed. In that appeal, we affirmed the grant

of summary judgment for the County of Santa Barbara

defendants, but reversed the grant of summary judgment in

favor of the Santa Maria defendants. Bravo v. City of Santa

Maria, 665 F.3d 1076, 1091 (9th Cir. 2011). We rejected the

district court’s finding that the omission of Javier Jr.’s

custody status was immaterial, concluding that if “Javier Jr.’s

two-year sentence imposed over six months prior to the

incident occasioning the search warrant” and his incarceration

at the time of the shooting were included, the affidavit “could

not establish probable cause for the search and especially

does not meet the heightened standard of justification

required for nighttime SWAT service.” Id. at 1084. Javier

Jr.’s custody status “meant not only that he would not be

present in the Bravo residence at the time of the search, but

that he could not have been involved in the shooting or in

concealing the evidence.” Id.

We also rejected the conclusion that Tanore was

“negligent at most” in omitting Javier Jr.’s custody status,

concluding that the Bravos “presented sufficient evidence

establishing a genuine issue as to whether [Tanore’s]

omission of [Javier Jr.’s sentence and custody information

from the affidavit] was intentional or reckless, as opposed to

merely negligent . . . .” Id. at 1080.

B. Jury Verdict and Post-Trial Judgment

On remand, after five days of hearing evidence and

four days of deliberation, the jury returned a special verdict

finding all Santa Maria defendants liable. The jury awarded

$5,000 in compensatory damages to Javier Sr. and $0 to Hope
10 BRAVO V. CITY OF SANTA MARIA

and E.B. It did not award punitive damages. The district

court entered judgment, awarding $5,000 to Javier Sr. and $1

each to Hope and E.B.

After judgment was entered, Defendants renewed their

motion for judgment as a matter of law, attacking the findings

of liability against Tanore, Ralston, Macagni, and the City. 

Defendants also moved to amend the judgment, contending

that damages, attorney fees, and costs should be offset by the

Bravos’ $360,000 settlement with the City of Santa Barbara. 

The Bravos moved for a new trial on damages, and requested

an award of attorney fees and costs.

The district court granted the Defendants’ motion for

judgment as a matter of law as to Police Chief Macagni’s

individual liability, but denied the motion as to Tanore,

Ralston, and the City. Regarding Defendants’ motion to

amend the judgment, the court concluded that any award of

attorney fees should be offset by the attorney fees portion of

the City of Santa Barbara’s settlement ($169,856.34) but that

any award of costs should not be offset by the costs already

paid in the City of Santa Barbara settlement ($16,208.95). 

Finally, the court denied the Bravos’ motion for a new trial on

damages, but named the Bravos the prevailing parties and

awarded $1,023,610.41 in attorney fees and $13,376.85 in

costs. The court then entered an amended judgment, which

the parties timely cross-appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. Attorney

fee and costs awards are reviewed for abuse of discretion. 

Disc Golf Ass'n, Inc. v. Champion Discs, Inc., 158 F.3d 1002,
BRAVO V. CITY OF SANTA MARIA 11

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

Cir. 1994).

ANALYSIS

In a contemporaneously filed Memorandum, we affirm

the district court’s decisions to grant judgment as a matter of

law to Defendant Macagni, to deny judgment as a matter of

law to Defendants Tanore, Ralston, and the City, and to deny

Plaintiffs’ motion for a new trial on damages. We address in

this opinion only the district court’s decisions as to attorney

fees and costs.

I. Attorney Fees

In a 42 U.S.C. § 1983 suit, “the court, in its discretion,

may allow the prevailing party . . . a reasonable attorney’s fee

as part of the costs.” 42 U.S.C. § 1988(b). To determine the

amount of a reasonable fee, district courts typically proceed

in two steps: first, courts generally apply the lodestar method

to determine what constitutes a reasonable attorney fee; and

second, the district court may then adjust the lodestar upward

or downward based on a variety of factors, including the

degree 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 degree of success obtained is

“‘the most critical factor’ in determining the reasonableness

of a fee award.” Farrar v. Hobby, 506 U.S. 103, 114 (1992)

(quoting Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)). “It

is an abuse of discretion for the district court to award

attorneys’ fees without considering the relationship between

the ‘extent of success’ and the amount of the fee award.” 

McGinnis v. Ky. Fried Chicken, 51 F.3d 805, 810 (9th Cir.

1994) (quoting Farrar, 506 U.S. at 116).
12 BRAVO V. CITY OF SANTA MARIA

Here, it is undisputed that the Bravos are prevailing

parties,2and Defendants do not contest the district court’s

lodestar calculation. The sole issue before us is whether the

district court erred in its analysis of the degree of Plaintiffs’

success. Defendants contend that the district court

dramatically overvalued the degree of success. Since the

Bravos won only $5,002 at trial, the question is whether this

litigation generated some other benefit that would justify the

district court’s finding that the Bravos achieved an excellent

result and the consequent award of $1.023 million in attorney

fees.

We identify two such benefits in the record. First, the

district court properly noted that this litigation benefitted the

public by identifying a serious flaw in SMPD’s method of

checking individuals’ custody status before seeking warrants. 

In addition, this litigation led to our earlier Bravo decision, in

which we held that greater justification is needed for a

nighttime forced entry by a SWAT unit than for an ordinary

search. 665 F.3d at 1085-86. This provides guidance to law

enforcement officers and to magistrate judges considering the

issuance of such warrants. See Gonzalez, 729 F.3d at 1210

(attorney fee award higher than the amount of damages won

by plaintiff may be reasonable if the civil rights case “‘also

confer[red] benefits on others throughout society’ by, for

example, ending institutional civil rights abuses or clarifying

standards of constitutional conduct” (quoting McGinnis,

51 F.3d at 810)).

2 A plaintiff who receives nominal damages is a prevailing party for

§ 1988(b) purposes. Benton v. Or. Student Assistance Comm’n, 421 F.3d

901, 904 (9th Cir. 2005) (citing Farrar, 506 U.S. at 112).
BRAVO V. CITY OF SANTA MARIA 13

Second, the district court properly considered the Bravos’

$360,000 settlement with the City of Santa Barbara

defendants, with $50,000 in damages for each plaintiff, as

part of their success. Although we have previously held that,

in certain situations, a non-settling defendant may be entitled

to an offset of attorney fees paid by a settling defendant,

Corder, 25 F.3d at 840, we have yet to articulate a rule

regarding whether a district court may consider a codefendant’s settlement payment in evaluating the

reasonableness of an attorney fee award. We hold now that

the district court may, within the exercise of its discretion,

consider the damages portion of a settlement payment by

other defendants in evaluating a plaintiff’s degree of success. 

However, it should do so only if and to the extent that

plaintiff’s counsel’s time spent on settling defendants cannot

be fairly separated from the time spent on non-settling

defendants. Factors to consider include whether the

plaintiff’s claims against both sets of defendants “involve a

common core of facts” or are “based on related legal

theories,” cf. Hensley, 461 U.S. at 435; if the claims are in

fact divisible, whether that was apparent from the outset or

whether the divisible nature became clear as the litigation

developed and discovery progressed; and whether the claims

against the settling defendants were, in the district court’s

considered judgment, meritorious, or whether they were

settled for nuisance value.3

3 This determination is not unlike the determination whether defendants

are jointly and severally liable for the plaintiff’s injury. Cf. Hazle,

727 F.3d at 995; see also The Atlas, 93 U.S. (3 Otto) 302, 306 (1876)

(“The common law creates a joint and several liability . . . because by a

single and forcible act, which would not have happened except by the

concurring negligence of the two parties, an injury has been done to an

innocent party.”).
14 BRAVO V. CITY OF SANTA MARIA

Turning to the facts of this case, the district court

appropriately found that the Bravos’ claims against the Santa

Maria and the City of Santa Barbara defendants are factually

and legally intertwined. Plaintiffs’ theory of liability was that

the Santa Maria defendants caused Santa Barbara to use a

SWAT team to force entry into the Bravos’ home. Given that

the district court decided as a matter of law that the no-knock

entry violated the Fourth Amendment, it is clear that the

claims against the City of Santa Barbara defendants were

meritorious and not settled merely for nuisance value.

Accordingly, we affirm the attorney fee award.

II. Offsets of Costs

Defendants contend that the district court abused its

discretion when it refused to offset its award of $13,376.85 in

costs, by the $16,208.95 in costs paid by the City of Santa

Barbara defendants. In refusing to offset costs, the district

court held that costs are not akin to attorney fees, for which

offsets are required, but rather “are more analogous to

damages . . . , and therefore require defendants to pay at least

their proportional share.”

Whether an award of costs must be offset by costs paid by

a settling co-defendant also appears to be an issue of first

impression in this circuit. There is little case law directly on

point.4 Therefore, we reason from principle and analogy and

4

See Gutierrez v. Vantia Properties, LLC, No. 1:13-CV-00642-LJO,

2014 WL 2106570, at *11 (E.D. Cal. May 20, 2014) (recommending that

damages, attorney fees, and costs be offset by the amount paid by settling

co-defendant); In re Vitamin C Antitrust Litig., 2013 WL 6858853, at *6

(E.D.N.Y. Dec. 30, 2013) (denying plaintiffs’ request for costs already
BRAVO V. CITY OF SANTA MARIA 15

hold that the Santa Maria defendants are entitled to an offset

of costs to the extent that the litigation expenses have already

been reimbursed.

Contrary to the district court’s holding, costs are not

analogous to damages. They are not compensation for loss

and, unlike the determination of damages, which is usually

left for the jury, the calculation of costs is almost exclusively

a function for a judge, see 10 Wright & Miller, Federal

Practice and Procedure § 2665 (3d ed. 1998). Costs are more

analogous to attorney fees. Like attorney fees, costs are a

reimbursement for “litigation-related expenses that a

prevailing party is entitled to be awarded.” Taxation of Costs,

Black’s Law Dictionary (10th ed. 2014); cf. Fed. R. Civ. P.

54(d) (referring to “costs – other than attorney’s fees”);

10 Wright & Miller, Federal Practice and Procedure § 2675

(3d ed. 1998) (treating attorney fees as component of costs).

We held in Corder that a district court abuses its

discretion when it refuses to offset an award of attorney fees

by a settling defendant’s payment of those same fees. We

reasoned that 42 U.S.C. § 1988 allows “reasonable” fees and

that a second payment for the same billable time is an

unreasonable double recovery. 25 F.3d at 840. As

Defendants contend, attorney fees are a component of costs

under 42 U.S.C. § 1988. Marek v. Chesny, 473 U.S. 1, 9

(1985); Fulps v. City of Springfield, 715 F.2d 1088, 1092–93

(6th Cir. 1983). Thus, double recovery of costs other than

attorney fees is just as impermissible as double recovery of

attorney fees.

paid by settling co-defendants, absent evidence from plaintiffs that the

requested costs were different expenses).
16 BRAVO V. CITY OF SANTA MARIA

The district court’s reasoning that the deterrent principle

at the heart of § 1983 allows double recovery of costs is

unpersuasive. While the statute is designed to deter civil

rights violations and encourage access to the courts to redress

often economically unviable injuries to fundamental rights,

see generally City of Riverside v. Rivera, 477 U.S. 561,

574–77 (1986), that basic principle does not require double

reimbursement of identical litigation expenses. The statute

does not specifically address this scenario, but it is difficult

to imagine Congress intended for litigation expenses to be

paid multiple times. Nor would eliminating duplicative

payments for litigation expenses significantly influence

counsel’s decision to prosecute civil rights suits. Costs are

nearly always a smaller prize than fees (which also cannot be

double-counted), and “almost always amount to less than the

successful litigant’s total expenses in connection with a

lawsuit.” 10 Wright & Miller, Federal Practice and

Procedure § 2666. The decision to pursue a claim does not

likely hinge on the prospect of recovering out-of-pocket

expenses multiple times for the same litigation activities.

The principle of not allowing double recovery of costs

under § 1988 is also supported by analogous California law. 

Under California law, when a pretrial settlement with one

defendant covers the very same costs a plaintiff is trying to

recover from the non-settling defendant, the plaintiff cannot

recover the same costs twice. See Regan Roofing Co. v.

Superior Court, 27 Cal. Rptr. 2d 62, 76 (Ct. App. 1994). A

California statute similarly provides that costs must be

reasonable. Cal. Civ. Proc. Code § 1033.5(c)(2), (3); see also

7 Witkin, California Procedure § 118 at 657 (5th ed. 2008).
BRAVO V. CITY OF SANTA MARIA 17

Thus, whether this question is analyzed pursuant to

federal common law or California law,5the district court

erred by applying the incorrect legal standard. Accordingly,

we remand for the district court to determine what amount of

costs should be offset.

CONCLUSION

We affirm the attorney fees award because the district

court’s finding that the Bravos achieved an excellent result is

supported by the public benefit generated by the litigation as

well as the $150,000 in damages the Bravos obtained in the

Santa Barbara settlement. We reverse the district court’s

refusal to offset costs and remand for consideration of what

amount of the costs award, if any, should be offset by the

costs already paid by the City of Santa Barbara defendants.

AFFIRMED in part, REVERSED in part, and

REMANDED for determination of costs. Each party shall

bear its own costs on appeal.

5

See Corder, 25 F.3d at 839-40 (noting courts’ disagreement over

whether the offset of attorney fees under § 1988 is determined by federal

common law or state law, and ultimately holding as a matter of law that

an offset is required under § 1988); C.B. v. City of Sonora, 769 F.3d 1005,

1031 & n.25 (9th Cir. 2014) (noting that it is unclear whether federal or

state law should apply, but addressing offset of damages in a § 1983 suit

under state law).
18 BRAVO V. CITY OF SANTA MARIA

REINHARDT, Circuit Judge, concurring:

I fully concur in the majority opinion. I write separately,

however, to explain why I would uphold the award in this

case whether or not we considered the $360,000 settlement

with the Santa Barbara defendants. In short, I would uphold

the fee award even if the only monetary benefit to plaintiffs

was the $5,000 verdict. I would do so for two reasons: 

(1) although the verdict was low in comparison to the fees

sought by the attorneys, this litigation achieved significant

non-monetary benefits for society, and (2) the entire context

of the case, including the fact that plaintiffs had to overcome

a robust defense, shows that the amount of time expended

was necessary to vindicate the plaintiffs’ rights, even if the

only benefit that had accrued had been the $5,000 in damages

awarded by the jury. Plaintiffs’ counsel should be fully

compensated for this effort. The defendants, relying in part

on Farrar v. Hobby, suggest that we should ignore all other

considerations, and that the fee award should be reduced

solely based on a comparison between the verdict and the fee

award. That position, however, is unsupported by Farrar,

our case law, and the motivating principles of 42 U.S.C.

§ 1988. Accordingly, I agree with the majority that the

district court did not abuse its discretion by awarding $1.2

million in attorney’s fees—a 10% reduction from the cost of

the time and work counsel expended on this case.

As an initial matter, there is a strong presumption that the

lodestar—the amount of hours reasonably expended on the

litigation multiplied by a reasonable hourly rate—is a

reasonable fee to be awarded under 42 U.S.C. § 1988. 

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010);

Pennsylvania v. Delaware Valley Citizens’ Counsel for Clean

Air, 478 U.S. 546, 564–65 (1986); Blum v. Stenson, 465 U.S.
BRAVO V. CITY OF SANTA MARIA 19

886, 897 (1984). This presumption is based on the premise

that a fee under § 1988 must be “sufficient to induce a

capable attorney to undertake the representation” in order to

advance the private enforcement of federal civil rights laws. 

Perdue, 559 U.S. at 552; see also S. REP. NO. 94-1011, at 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 whether this presumptively

reasonable fee should be adjusted either upward or

downward. Delaware Valley, 478 U.S. at 565.

In Farrar v. Hobby, a particularly unsympathetic case, the

Supreme Court created a limited exception to the normal

calculation of fees. 506 U.S. 103 (1992). In that case, the

State of Texas temporarily closed down a school for

delinquent, disabled, and disturbed teens after a student of the

center died. The owner of the center, Joseph Farrar, was

indicted for murder because of his failure to administer

proper medical treatment. Id. at 105–06. Farrar subsequently

sued the Lieutenant Governor of Texas, William Hobby, as

well as several other state employees who had participated in

the events leading to the closing of the school. Id. at 105. He

sought $17 million in damages, alleging that he had been

deprived of liberty and property without due process by

means of malicious prosecution. Id. The jury determined

that Farrar had been deprived of a civil right, but it awarded

zero damages. Despite the wholly technical nature of Farrar’s

victory, and the fact that his law suit achieved no significant

public purpose, his counsel sought $280,000 in fees. The

Supreme Court forcefully denied this fee award, and held that

when a plaintiff, like Farrar, achieves only technical or de

minimis success, a district court “may lawfully award low

fees or no fees” without calculating the lodestar or

considering the other factors, id. at 114–15 (emphasis added),
20 BRAVO V. CITY OF SANTA MARIA

because the degree of the plaintiff’s overall success is the

“‘most critical factor’ in determining the reasonableness of a

fee award.” 506 U.S. at 114. 

In casting the critical fifth vote in Farrar, Justice

O’Connor explained in her separate opinion that not every

nominal damage award is a purely technical or de minimis

victory and that, when considering the degree of overall

success, a court should consider more than the monetary

amount awarded by a jury. See id. at 120–21. In particular,

she wrote, courts should consider whether the plaintiff

vindicated important rights or prevailed on significant legal

issues “even though no actual damages are proved.” Id. at

121. Since Farrar had done neither of these things, Justice

O’Connor agreed that his victory was solely a technical one,

and that in his case a denial of attorney’s fees was more than

appropriate. It is important, however, that Justice O’Connor

did not suggest that where actual damages are recovered that

are not de minimis it is necessary for the plaintiff to establish

in addition that he secured some overall societal benefit as

well.

Our court has interpreted Farrar as having two central

holdings. First, a district court may award little or no fees to

a plaintiff who has achieved solely a de minimis victory, but

that it should not do so if the plaintiff’s lawsuit achieved

significant non-monetary results for himself or other

members of society. See McCown v. City of Fontana,

550 F.3d 918 (9th Cir. 2008) as amended 565 F.3d 1097,

1105; Morales v. City of San Rafael, 96 F.3d 359, 362–63

(9th Cir. 1996). Second, a district court abuses its discretion

when it fails to consider the degree of success achieved by the

plaintiff when determining a reasonable fee award. See

Morales, 96 F.3d at 362. Nothing in these cases suggests that
BRAVO V. CITY OF SANTA MARIA 21

the extent of victory is measured solely by the amount of the

award. Indeed, a small award may represent a complete

victory.

1

I fully agree with the majority that unlike Farrar, this is

not a case in which the district court could have awarded low

or no fees without calculating the lodestar or considering the

other factors. Wholly aside from the monetary

considerations, this litigation resulted in significant public

benefits. Our first opinion in this case clarified what probable

cause is necessary to justify a warrant for a nighttime SWAT

raid, a constitutional question of first impression in this

Circuit. Furthermore, the litigation resulted in a verdict

against the City of Santa Maria, exposing an unconstitutional

practice by that City’s police department. See Wilcox v. City

of Reno, 42 F.3d 550, 556 (9th Cir. 1994) (“Exposing an

unconstitutional policy [by the police department] does a

great deal more than finding a plaintiff’s rights have been

infringed upon in some unspecified way. The police

department itself, and the community at large benefit from a

finding of this sort.”) (affirmatively quoting the district

1 Occasionally, this court has questioned the validity of awarding

attorneys’ fees substantially in excess of the amount recovered, but the

prevailing view appears to be that which is explicated in the text infra. In

McGinnis v. Kentucky Fried Chicken of California, for example, the panel

applied federal law to a request for fees under a Washington state statute. 

51 F.3d 805, 810 (9th Cir. 1994). There, due to a change in controlling

law, the plaintiff’s damages dropped from $234,000 to $34,000, but the

district court declined to consider this change when determining an

appropriate fee award. Id. In the circumstances of that case, the court

determined, a reduction in fees should have been considered. Id. As we

recently explained, however, a decision to lower attorney’s fees from the

lodestar should be based “in light of the context of the case” as a whole,

not based “solely on the number of dollars” that the plaintiffs recovered. 

Gonzalez v. City of Maywood, 729 F.3d 1196, 1210 (9th Cir. 2013).
22 BRAVO V. CITY OF SANTA MARIA

court’s holding). Together, these achievements offer clear

and important guidance to magistrate judges, to the City, and

to other municipalities, which should reduce the likelihood

that innocent individuals will be unnecessarily subjected to

intrusive searches of their homes.

Since the Farrar exception does not apply, we must

presume that the lodestar is reasonable unless other

considerations suggest otherwise. See, e.g., Perdue, 559 U.S.

at 552. Here, the other considerations do not. The context of

this case strongly suggests that the amount awarded by the

district judge was a reasonable one, regardless of the disparity

in the amount of attorneys fees required to obtain a

comparatively small damage award. In particular, it is

important that this case required an inordinate amount of time

and labor in order to overcome an especially robust defense. 

Accordingly, a high award of attorneys’ fees is reasonable.

Here, the plaintiffs spent 2321.32 hours pursuing claims

against 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. First, all of the

plaintiffs’ attorneys spent less than an average of 70 hours per

year on this matter. This number seems appropriate—if not

low—given the complicated nature of this suit, the important

interests at stake, and that it is a “highly atypical civil rights

case where the plaintiff’s lawyer engages in churning,”

Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir.

2008). Indeed, at least until the prior appeal, the defense

counsel spent more hours on this case than plaintiffs’ counsel,

which suggests that defense counsel believed this case was

sufficiently complex and important to justify large amounts

of attorney time. See Burgess v. Premier Corp., 727 F.2d

826, 840 (9th Cir. 1984); see also Robinson v. City of
BRAVO V. CITY OF SANTA MARIA 23

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

expended by the defendants suggests at least that they viewed

the case as sufficiently complex and serious[.]”); Pressley v.

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

a total of 1272 hours on Pressley’s behalf. If this seems

excessive in light of the stakes . . . it was not excessive in

relation to the need to overcome a defense that Haeger and

the Village waged with 2041 hours of lawyers’ time.”).2

Further, plaintiffs, who bore the burden of proof, had to

expend hours to overcome the opposition by the defense,

which had persuaded the district court to improperly grant

summary judgment, necessitating a prior appeal. See

Burgess, 727 F.2d at 840; Robinson, 160 F.3d at 1275

(“[O]ne of the factors useful in evaluating the reasonableness

of the number of attorney hours in a fee request is ‘the

responses necessitated by the maneuvering of the other

side.”). In short, plaintiffs’ attorneys were able to achieve not

only the great public benefits that they did, but the amount of

damages to which the plaintiffs were entitled, only because of

the consistent hours that they put in to overcoming the City’s

strong opposition. See Moreno, 534 F.3d at 1112 (“By and

large, the court should defer to the winning lawyer’s

professional judgment as to how much time he was required

to spend on the case; after all, he won, and might not have,

had he been more of a slacker.”). Plaintiffs’ attorneys should

be fully compensated for this necessary effort.

The defendants ignore these considerations, and instead

suggest that the fee award must be reduced because it is

disproportionately large compared to the jury’s verdict. We

 

2 The record indicates that defendants spent more hours than plaintiffs

on this case prior to the first appeal, but there is no information in the

record about how many hours defendants spent on it after the first appeal.
24 BRAVO V. CITY OF SANTA MARIA

have previously rejected similar arguments, and held that a

reasonable fee must be determined “in light of the context of

th[e] case,” “not based on [the court’s] own notion of the

correct ratio between the amount of attorney’s fees and the

amount the litigants recovered.” Gonzalez v. City of

Maywood, 729 F.3d 1196, 1209 (9th Cir. 2013) (emphasis

added).3 To hold otherwise would unreasonably extend

Farrar well beyond its core holding, and in doing so, destroy

the motivating principles of § 1988.

The fundamental purpose of § 1988 is to ensure that

victims of civil rights violations are able to obtain competent

legal counsel who will make it possible for them to enforce

their rights, including the compensation to which they are

entitled on account of the violation of those rights. As the

cost of litigation increases, it becomes more difficult for civil

rights victims to afford competent counsel. Contingency

agreements provide some redress, but not in cases in which

the injury that the plaintiff suffered is comparatively small—

even serious violations of civil rights do not necessarily

involve serious physical injuries, and it may well be that the

violation of a civil right justifies compensation in only a

moderate amount. In such instances, finding a competent

3 Although Farrar holds that the degree ofsuccess is the most important

consideration, it does not hold that district courts must or even should

ignore other considerations when determining a reasonable fee. Indeed,

Farrar repeatedly used permissive language to convey this point. See

Farrar, 506 U.S. at 114 (“If ‘a plaintiff has achieve only partial or limited

success, the [lodestar] may be an excessive amount.’”) (emphasis added);

Id. at 115 (“[T]he court may lawfully award low fees or no fees without

reciting the 12 factors bearing on reasonableness[.]”) (emphasis added);

Id. (“When a plaintiff recovers only nominal damages because of his

failure to prove an essential element of his claim for monetary relief, the

only reasonable fee is usually no fee at all.”) (emphasis added).
BRAVO V. CITY OF SANTA MARIA 25

lawyer to effectively handle victims’ claims would be close

to impossible without the incentives provided by § 1988.

Similarly, if we were to adopt a rule that limited

attorney’s fees in civil rights cases to an amount that is

commensurate with the damages received, it would cripple

the ability of victims suffering low or moderate economic

damages to find competent counsel to pursue claims

involving the violation of their rights. First, jury verdicts

regarding damages resulting from violations of civil rights are

not easily predictable. They may well depend on the

predilections of the average jury in the geographic location of

the occurrence or even on the happenstance of the

composition of a particular jury. Such verdicts, though

perfectly appropriate under the law, surely do not reflect the

amount of time and effort that must necessarily be spent to

win a civil rights case. Second, the astronomical costs of

litigation can easily exceed moderate economic damages by

a substantial multiplier. This is especially true in civil rights

cases, in which municipalities often have significant nonmonetary reasons to staunchly defend against such actions

using the services of municipally-paid, salaried lawyers. 

Here, for example, the actual cost of plaintiffs’ counsels’ time

was, without doubt, well over a million dollars. Perhaps the

jury could have returned a verdict of $10,000 instead of

$5,000; or perhaps $25,000, or even $100,000. Compared to

the cost of litigation, any of these amounts would be

insubstantial. If the measure of awardable fees was limited

by the damages received or anything like them, the lawyers

would not be compensated for time necessarily spent on the
26 BRAVO V. CITY OF SANTA MARIA

case, and most attorneys would be reluctant to undertake the

representation.4

Thus, the defendants’ proposal, which places an undue

emphasis on the proportionalitybetween the monetaryverdict

and the fee award unreasonably ignores the central question

of § 1988: how much in fees is reasonably necessary to

permit individuals whose civil rights have been violated to

obtain attorneys who will diligently and competently work to

preserve their rights, even if the monetary award may be

moderate? The defendants’ position would prevent plaintiffs’

counsel from being compensated for any hours reasonably

expended in recovering damages in amounts that fairly

measure the plaintiff’s economic injury, would require that

attorneys be compensated well under the market rate for

similar legal services, and would, in effect, compel many

victims of civil rights violations to forgo their rights to

redress entirely.

4 Because only one plaintiff in this case received an award of actual

damages while two recovered only nominal damages, it is possible that,

in other circumstances, the fee award might be reduced to some extent to

account for hours spent pursuing the two comparatively unsuccessful

plaintiffs. See Hensley v. Eckerhart, 461 U.S. 424, 440 (1983). Such a

reductionwould be inappropriate in this case for several reasons, however. 

First, the defendant has not suggested that a reduction should be made on

this basis and thus waived the issue. Second, since the plaintiffs’ claims

have identical factual and legal bases, it is unlikely that any significant

amount of time spent pursuing the claims of the nominal damages

plaintiffs was not also necessary to advance the more successful plaintiff’s

claim. Third, plaintiffs who receive nominal damages are still prevailing

parties entitled to fees under the statute unless their victory was merely

technical or de minimis, see Farrar, 506 U.S. at 113–14, and as explained

earlier, the important public benefits achieved in this case preclude the

plaintiffs’ victory from being considered merely technical or de minimis.
BRAVO V. CITY OF SANTA MARIA 27

As the Supreme Court has repeatedly stated, there is a

strong presumption that the lodestar—the amount of hours

reasonably expended on a case multiplied by a reasonable

hourly rate—is a reasonable fee sufficient to attract

competent attorneys. See, e.g., Perdue, 559 U.S. at 552;

Delaware Valley, 478 U.S. at 564–65; Stenson, 465 U.S. at

897. Defendants’ proposed rule entirely ignores this lodestar

based on a misguided sense of “proportionality.” If we were

to adopt this untenable position, only attorneys who are either

totally selfless or remarkably privileged would be able to

expend the necessary, unpaid effort to advance these

important rights, including attorneys whose employment at

large corporate law firms allows them to dedicate a portion of

their working hours to these causes pro bono. We are

grateful for their contributions, but that is not the system

envisioned by § 1988. The rule urged by defendants would

eviscerate that statute. For this reason, I concur.