Filed 9/11/13 Henderson v. Carter CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


BILL HENDERSON,                                                      B243220

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC23154)
         v.

DEXTER CARTER,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Rex
Heeseman, Judge. Affirmed.
         Akudinobi & Ikonte, Emmanuel C. Akudinobi and Chijioke O. Ikonte, for
Plaintiff and Appellant.
         Coleman & Associates, Lawyers, John M. Coleman and Eric R. Schaefer, for
Defendant and Respondent.
                                     I. INTRODUCTION


       Defendant, Dexter Carter, appeals from an amended judgment on a special verdict
awarding attorney fees to plaintiff, Bill Henderson. The award of attorney fees followed
a favorable plaintiff’s verdict in a case litigated pursuant to title 42 United States Code
section 1983 (“section 1983”).1 Plaintiff was awarded attorney fees of $109,977.
Plaintiff eventually sought $549,885 in attorney fees. Defendant contends the trial court
abused its discretion by not further reducing or denying plaintiff’s award of attorney fees.
We affirm the amended judgment.


                               II. FACTUAL BACKGROUND


       We provided a detailed factual background of this case in a prior opinion.
(Henderson v. Carter (Aug. 20, 2013, B241994) [nonpub. opn.].) We need not repeat it
here. Plaintiff previously appealed the trial court’s aforementioned reduction of his
attorney fees request. We found the trial court did not abuse its discretion.
       On April 27, 2011, plaintiff prevailed in a jury retrial against defendant and was
awarded $17,940.80. On August 25, 2011, plaintiff moved for an award of reasonable
attorney fees pursuant to section 1988. Plaintiff’s attorney billed at a rate of $250 to
$450 per hour over the course of the litigation. This amounted to $1,586,887.70 for
5,054.8 hours. Plaintiff initially requested a multiplier of 1.5 for a total amount of
$2,380,331.55.
       Following a hearing before the trial court, plaintiff’s attorneys submitted a
supplemental brief. Plaintiff’s attorneys reduced their hours to 1,832.95 at a flat billing
rate of $300 per hour. Plaintiff requested attorney fees in the amount of $549,885.
       On February 28, 2012, the trial court issued an order granting plaintiff’s attorney
fees motion in part. The trial court noted plaintiff’s initial request of $2,380,331.55 was

       1
           Future statutory references are to title 42 of the United States Code.

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an unfathomable fee award. The trial court accepted the figure of $549,885 as
reasonable. However, the trial court further reduced plaintiff’s attorney fees award by 80
percent, from $549,885 to $109,977. In reaching this figure, the trial court considered the
critical factor of plaintiff’s limited success. On May 1, 2012, the trial court issued the
amended judgment reflecting attorney fees and costs. On August 9, 2012, defendant
appealed.


                                      III. DISCUSSION


       Section 1988(b) provides that in an action to enforce a provision of designated
civil rights statutes, including section 1983, “[T]he 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).) The United States Supreme Court has held, “The purpose of § 1988 is to
‘ensure effective access to the judicial process’ for persons with civil rights grievances.
[Citation.]” (Hensley v. Eckerhart (1983) 461 U.S. 424, 429 (“Hensley”); Harman v.
City and County of San Francisco (2006) 136 Cal.App.4th 1279, 1307.) Section 1988
attorney fees may be awarded in section 1983 cases litigated in state courts. (Maine v.
Thiboutot (1980) 448 U.S. 1, 10-11; Sinclair & Valentine Co. v. County of Los Angeles
(1988) 201 Cal.App.3d 1021, 1024, fn. 2.) We review the trial court’s award of attorney
fees under section 1988 for an abuse of discretion. (Chavez v. City of Los Angeles (2010)
47 Cal.4th 970, 989 (“Chavez”); Robbins v. Regents of Univ. of Cal. (2005) 127
Cal.App.4th 653, 665.) A trial court abuses its discretion if its fee award is based on an
inaccurate view of the law or a clearly erroneous finding of fact. (Benton v. Or. Student
Assistance Com. (9th Cir. 2005) 421 F.3d 901, 904; Wilcox v. City of Reno (9th Cir.
1994) 42 F.3d 550, 553.)
       Defendant argues the trial court abused its discretion by not further reducing or
denying plaintiff’s attorney fees award. Defendant’s arguments are meritless.
Defendant argues plaintiff’s recovery was de minimus and a Pyrrhic victory. Defendant
relies on Choate v. County of Orange (2000) 86 Cal.App.4th 312, 324 (“Choate”). In

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Choate, the plaintiffs prevailed in a civil rights claim for excessive force under section
1983 against several sheriff deputies. (Id. at p. 320.) The plaintiffs were awarded
$5,719 in compensatory and punitive damages. (Ibid.) The trial court awarded no
attorney fees to the plaintiffs. (Id. at pp. 320-321.) The appellate court affirmed the
decision to deny the plaintiffs’ attorney fees. (Id. at p. 318.) The appellate court found
under United States Supreme Court precedent that recovering nominal damages merited
no attorney fees. (Choate, supra, 86 Cal.App.4th at p. 324 quoting Farrar v. Hobby
(1992) 506 U.S. 103, 115 [“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.”].) Considering the plaintiffs’ limited success, the
appellate court concluded the trial court did not abuse its discretion by awarding no
attorney fees. (Choate, supra, 86 Cal.App.4th at p. 325.) We need not address the issue
of the correctness of Choate in light of Lefemine v. Wideman (2012) 568 U.S. ___, ___
[133 S.Ct. 9, 11-12].
       Defendant’s argument is unpersuasive. Here, the trial court correctly exercised its
discretion and awarded fees. As noted in Choate: “[T]he determination whether a
victory is de minimus is generally left to the sound equitable discretion of the trial court
in the first instance ‘so as to avoid a second major litigation strictly over attorneys’ fees.’
[Citation.]” (Choate, supra, 86 Cal.App.4th at p. 326; see Hensley, supra, 461 U.S. at p.
437 [“We reemphasize that the district court has discretion in determining the amount of
a fee award. This is appropriate in view of the district court’s superior understanding of
the litigation and the desirability of avoiding frequent appellate review of what essentially
are factual matters.”].) Here, the trial court had discretion to award attorney fees.
       When a party submits an unreasonably inflated fee request, the trial court has
discretion to reduce the fee award. (Chavez, supra, 47 Cal.4th at p. 990; Serrano v.
Unruh (1982) 32 Cal.3d 621, 635.) The record supports the trial court’s decision.
Plaintiff prevailed in this action against defendant and was awarded $17,940.80. The trial
court opted to reduce the lodestar which was within its discretion.



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       Defendant contends he and Los Angeles County will be punished by awarding
plaintiff attorney fees. Defendant cites to Perdue v. Kenny A. (2010) 559 U.S. 542 ___,
[130 S.Ct. 1662, 1676-1677] (“Perdue”). In Perdue, the United States Supreme Court
reversed the lower court which permitted an enhancement of an attorneys fees award
without providing a reasonably specific explanation. (Ibid.) The high court noted: “In
many cases, attorney’s fees awarded under § 1988 are not paid by the individuals
responsible for the constitutional or statutory violations on which the judgment is based.
Instead, the fees are paid in effect by state and local taxpayers, and because state and
local governments have limited budgets, money that is used to pay attorney’s fees is
money that cannot be used for programs that provide vital public services.” (Ibid.)
       Defendant’s argument is unavailing. In Hensley, the United States Supreme Court
found: “The purpose of section 1988 is to ensure ‘effective access to the judicial process’
for persons with civil rights grievances. [Citation.]” (Hensley, supra, 461 U.S. at p. 429;
see Hutto v. Finney (1978) 437 U.S. 678, 693-694 [finding states are not immune from
paying attorney fees under section 1988]; EWAP, Inc. v. City of Ontario (1986) 177
Cal.App.3d 1108, 1118 [holding the fact attorney fees may be awarded from limited
taxpayer funds is not a special circumstance precluding an award].) No abuse of
discretion occurred.




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                                  IV. DISPOSITION


      The amended judgment is affirmed. Plaintiff, Bill Henderson, is awarded his costs
and attorney fees on appeal from defendant, Dexter Carter. Any attorney fee request may
be pursued pursuant to California Rules of Court, rules 3.1702(c) and 8.278(c).
                           NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                           TURNER, P. J.




We concur:




      MOSK, J.




      KRIEGLER, J.




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