Key Decisions

August 2013 – Attorney’s Fees And Costs Were Recoverable

(filed under: Key Decisions | August 16, 2013)

Attorney’s Fees And Costs Were Recoverable

Bender v. County of Los Angeles
(Cal. Ct. of App., 2d Dist.), filed July 9, 2013, published July 9, 2013

Noel Bender sued the County of Los Angeles and several sheriff’s deputies, including Deputy Scott Sorrow, for injuries he sustained as the result of a beating administered by Sorrow after an unlawful arrest.

Bender prevailed at trial and was awarded compensatory damages and punitive damages against Sorrow. He was also awarded substantial costs and attorney’s fees.

The Court of Appeal affirmed.

The court found that evidence of other instances in which Sorrow had allegedly used excessive force was relevant to impeach Sorrow’s assertion that the force he used was not excessive because Bender had resisted being detained. California Evidence Code Section 1101 makes evidence of specific instances of a person’s conduct inadmissible when offered to prove his or her conduct on a specified occasion. But, such evidence is admissible when relevant to prove a fact (such as intent, or absence of mistake or accident) “other than his or her disposition to commit such an act.”

The court found that the trial court had not abused its discretion in awarding Bender attorney’s fees. As to the time spent, the trial court was entitled to give credence to the billing records Bender submitted in support of his fee claim. “[V]erified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” Absent such indications, the trial court did not abuse its discretion. Nor did it abuse its discretion in using a multiplier of 1.2 to increase the fees. “It is well-established the lodestar may be adjusted based on factors including those the trial court used here: the contingent nature of the award, the legal skill displayed in presenting the issues, and the extent the litigation precluded other employment.”

As to recoverable costs for expert witnesses, the court held that a statutory offer to compromise made pursuant to Code of Civil Procedure Section 998 was not premature even though it was made shortly after Bender filed suit. It reasoned that Bender’s acquittal in the criminal trial preceded the statutory offer by three days; the three deputies and Bender testified in the criminal trial; and defense counsel was aware that the jury found contrary to the deputies’ testimony.

Further, the sheriff’s department had internally investigated the incident and its findings were available to defense counsel.

The court held that the trial court had not abused its discretion in permitting Bender to recover costs for “trial presentations” in the forms of a “Trial Video Computer, PowerPoint Presentation and Videotaped Deposition Synchronizing” and the cost of a trial technician for nine days of trial. It rejected the defendants’ reliance on the case of Science Applications Internat. Corp. v. Superior Court, 39 Cal.App.4th 1095 (1995). It reasoned:

Almost 20 years have passed since Science Applications was decided, during which time the use of technology in the courtroom has become commonplace (including a technician to monitor the equipment and quickly resolve any glitches), and technology costs have dramatically declined. In a witness credibility case such as this, it would be inconceivable for plaintiff’s counsel to forego the use of technology to display the videotapes of plaintiff’s interviews after his beating, in the patrol car and at the sheriff’s station, and key parts of other witnesses’ depositions. The court in Science Applications was “troubled by review of a case in which a party incurred over $2 million in expenses to engage in high-tech litigation resulting in recovery of only $1 million in damages.” This is not such a case.