STEVEN v. RICHARD

Filed 9/13/06

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Story continue from Part III ………

Conclusion on Constitutional Guideposts

After considering the relevant constitutional factors outlined by our high court, we conclude the $3 million award against Officer Barr and the $1 million award against Sergeant Toth exceed constitutional limits. Clearly, defendants' conduct was highly reprehensible. However, it was not sufficiently blameworthy to warrant such high awards. Additionally, the ratio of punitive to compensatory damages raises the potential of duplicative damages and the awards far exceed the treble damages authorized as statutory penalties for civil rights violations.

2. Punitive Damage Award Excessive with Respect to Each Defendant's Ability to Pay

In addition to reviewing the constitutionality of a punitive damages award, an appellate court is obligated to review the award for reasonableness, including whether the award is within the defendant's ability to pay. (Patterson v. Balsamico (2d Cir. 2006) 440 F.3d 104, 121-122 (Patterson); Vasbinder v. Scott (2d Cir. 1992) 976 F.2d 118, 121 (Vasbinder); DiSorbo v. Hoy, supra, 343 F.3d at p. 189, fn. 9; see also Newport v. Fact Concerts, Inc. (1981) 453 U.S. 247, 269-270.) Because the punitive damages award was based solely on a federal civil rights claim, we review the excessiveness claim under federal law applicable to punitive damages awards. (Chavez v. Keat (1995) 34 Cal.App.4th 1406, 1413-1416.)

Under federal law, a punitive damages award is not dependent on proof of a defendant's ability to pay (Kemezy v. Peters (7th Cir. 1996) 79 F.3d 33, 33-34; Woods-Drake v. Lundy (5th Cir. 1982) 667 F.2d 1198, 1203, fn. 9; Chavez v. Keat, supra, 34 Cal.App.4th at pp. 1410-1411), but if evidence is submitted, it is an important consideration as to the reasonableness of the award. (Patterson, supra, 440 F.3d at p. 122; Fall v. Indiana Univ. Bd. of Trustees (N.D. Ind. 1998) 33 F.Supp.2d 729, 747.) A punitive damages "award should not be so high as to result in the financial ruin of the defendant. [Citation.] Nor should it constitute a disproportionately large percentage of a defendant's net worth." (Vasbinder, supra, 976 F.2d at p. 121; see Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1596 [Under California law, punitive damages generally should not exceed 10 percent of the defendant's net worth].) "'"[E]ven outrageous conduct will not support an oppressive or patently excessive award of damages."'" (Patterson, supra, 440 F.3d at p. 122.)

Utilizing these principles, "'[o]ur task is to make certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.'" (Patterson, supra, 440 F.3d at pp. 121-122.) This evaluation requires a delicate balance between the amount necessary to deter and punish unacceptable conduct and an amount that will not result in financial devastation. This balance is particularly important when punitive damages are awarded against an individual with limited means, rather than against a financially successful business.

Based on the unchallenged evidence, Officer Barr's net worth was in the range of $50,000 to $55,000 and his annual salary was $60,000, but the punitive award was $3 million. Sergeant Toth faces a $1 million punitive judgment compared to a net worth of approximately $415,000 and a retirement income of approximately $60,000 per year. These punitive damages awards constitute a disproportionately large percentage of each defendant's wealth and would result in defendants' financial ruin. The award was approximately 60 times Officer Barr's net worth and 50 times his annual pay. The award was approximately 2½ times Sergeant Toth's net worth, and 16 times his annual retirement pay. An award is supposed to "sting" (Bains LLC v. Arco Products Co. (9th Cir. 2005) 405 F.3d 764, 777), but not impoverish a defendant. (Vasbinder, supra, 976 F.2d at p. 121.) The purpose of punitive damages is not served by financially destroying a defendant. (Ibid.)

In apparent recognition of these defendants' limited resources, Grassilli does not suggest that either defendant has the financial ability to pay the punitive damages award. Rather, he argues their financial conditions should not be a factor in our consideration because the trial court erroneously refused to allow Grassilli to introduce evidence showing the state, not the defendants, would pay for the punitive damages award. However, in support of his argument below, Grassilli relied only on Government Code section 825, which authorizes the state to indemnify a public employee for a punitive damages award only under very limited circumstances. (See fn. 10, ante.) Under this code section, a public entity may not pay a punitive damages award unless the Legislature makes a specific finding that "[a]t the time of the act giving rise to the liability, the employee . . . acted . . . in good faith, without actual malice and in the apparent best interests of the public entity." (Gov. Code, § 825, subd. (b)(2).) Because the jury's findings reflect that Sergeant Toth and Officer Barr did not act in good faith, it is unlikely the Legislature could properly authorize a reimbursement for the punitive damages. Moreover, at a posttrial motion concerning defendants' obligation to post bond, Grassilli's counsel took a contrary position to that asserted on appeal and argued Government Code section 825 would not apply.

This case differs materially from Lawson v. Trowbridge (7th Cir. 1998) 153 F.3d 368, relied upon by Grassilli. Lawson holds that indemnification evidence may be admitted on cross-examination to impeach a defendant who suggests to the jury he will be financially ruined by a large punitive damages award. (Id. at 379.) In Lawson, the evidence showed that under the applicable state law (Wisconsin), the public employee defendants would be fully indemnified for punitive damages. (Ibid.) In this case, Grassilli did not identify any evidence to show that defendants would be indemnified by the state. The fact there is a statutory mechanism for a public employee to be indemnified does not make this process relevant, unless there is some reasonable possibility the defendant will be indemnified under that statute.[1]

Our determination that the jury's punitive damages awards are excessive is not intended as a criticism of the jurors' reasoning processes. Justifiably, the jurors wanted to punish and deter the officers' unacceptable conduct, but were given no guidance as to their role in evaluating an appropriate award vis-Ã -vis each defendant's financial condition. Although the court properly permitted each defendant to submit evidence of his financial condition, it refused to instruct the jury as to the relevance of this evidence. This was error, as a party is entitled to have a jury instructed consistent with his or her theory of the case, and the lack of an instruction created ambiguity and improperly invited extreme results. (See Pacific Mutual Life Insurance Co. v. Haslip (1990) 499 U.S. 1, 18 [emphasizing importance of jury instructions to provide adequate guidance to jury in assessing proper amount of punitive damages]; Atencio v. City of Albuquerque (D.N.M. 1996) 911 F.Supp. 1433, 1445-1448.) Without a statement from the court that the evidence was proper for the jury to consider, the jury could have easily misunderstood the relevance and importance of this evidence. And Grassilli's counsel exacerbated the problem when, in rebuttal argument, he wrongly implied that the jury was not entitled to take this evidence into consideration in awarding the punitive damages.[2]

Grassilli's reliance on the Ninth Circuit's model punitive damages instruction is misplaced. (9th Cir. Civ. Jury Instr. 7.5, supra.) This standard instruction (given by the trial court here) does not mention the defendant's financial condition because a plaintiff seeking punitive damages on a federal claim does not have the burden of producing evidence of a defendant's financial condition. Thus, in many cases there will be no financial evidence presented at trial. However, federal law permits a defendant to produce evidence of his or her financial condition to support an argument that the defendant will be financially ruined by a large award. Recognizing this, a comment to the model instruction states that the court should consider giving an instruction pertaining to the relevance of financial condition evidence if this evidence is offered at trial. (9th Cir. Civ. Jury Instr. 7.5 com., supra.) In this case, the court erred in refusing defendants' request that it instruct on the relevance of the evidence.

We also note that the jury appears to have embraced Grassilli's plea that the award be used as a platform not only to punish these individual officers, but also to punish the CHP management for encouraging its officers to be less than honest about the wrongful conduct and attempting to cover up the conduct. We would agree that the evidence in this case supported strong condemnation of this behavior. However, this evidence was not relevant to deciding the appropriate punitive damages award as against these individual officers.

3. Conclusions Regarding Punitive Damage Amount

After carefully considering the relevant factors, including the evidence at trial, the purposes of punitive damages, the constitutional guideposts, defendants' ability to satisfy a judgment, and the jury's plain intentions that a large damage amount is necessary to deter and punish the conduct, we conclude awards of no more than $35,000 as to Officer Barr, and $20,000 as to Sergeant Toth will satisfy the proper purposes of punitive damages. Considering defendants' financial conditions, these are substantial sums of money that will punish, but not financially devastate, the defendants and will also comport with the jury's obvious intentions that these and other officers understand that abuses of authority will not be tolerated.

Our substantial reduction of the award should not be misinterpreted as condoning or trivializing defendants' conduct. Although defendants continue to argue they were doing "nothing more" than enforcing the Vehicle Code, the jury reached a very different conclusion. The jury's liability and damages award reflect its findings that Officer Barr and Sergeant Toth intentionally sought to penalize Grassilli for exercising his constitutional right to complain about Officer Barr's conduct and that this campaign to harass Grassilli and intentionally injure his business constituted an extreme and outrageous abuse of law enforcement authority. These findings were fully supported on the record before us.

Unless a court is reducing an award to the constitutional maximum, a court generally will not reduce an award without offering the plaintiff the option of a new trial on the issue. (See Simon, supra, 35 Cal.4th at pp. 1187-1188; Gober, supra, 137 Cal.App.4th at pp. 213-214; see also Vasbinder, supra, 976 F.2d at p. 122.) Accordingly, we remand the case to permit Grassilli to accept these punitive award amounts or to retry the punitive damages phase.

VI. Jury Misconduct

Defendants contend the court erred in denying their new trial motion on grounds of jury misconduct. The contention is without merit.

A. Background

After one and one-half days of deliberations, the court received a jury note stating: "Juror # 2 has withdrawn and refuses to deliberate

Even with this we have the numbers except for damages

Can we proceed as is." (Underscoring omitted.) With counsels' agreement, the court instructed the jury on its obligation to deliberate "as a whole," and to be tolerant and patient of different viewpoints. The court then asked whether there was any juror "who feels that they can no longer deliberate in this case . . . ." When Juror No. 2 raised his hand, the court and counsel questioned this juror outside the presence of the other jurors.

During the questioning, Juror No. 2 said he disagreed with the other jurors' opinions on fundamental issues, and was "having a problem listening" and had to "plug" his ears because his views were "so far outside everyone else's thinking." He said it was "[p]ainful" to listen to the other jurors and he had "gut-wrenching pain" and could not sleep. After this juror made clear he was seeking to be excused, the court asked counsel whether there was "any opposition to me excusing this juror and seating the alternate?" Grassilli's counsel answered "[n]o, your honor." Defense counsel responded "[n]one." The court then granted Juror No. 2's request to be excused.

The court then brought in the remaining jurors and told the jurors it had replaced Juror No. 2 with an alternate juror. The court admonished the jurors that it must begin deliberations anew and "disregard all past deliberations." In response to a juror's request, the court gave the jury a new verdict form.

After the jury rendered its verdict in favor of Grassilli, defendants moved for a new trial, asserting a jury misconduct claim. In support, defendants submitted the following declaration from Juror No. 2:

"3. At one of our morning breaks during trial, juror [Mr. O.], . . . who eventually was elected jury foreperson, approached me and two other jurors . . . in the courtyard of the courthouse and said 'I'm getting messages from places. My tea bag this morning had a message attached to it.' [The juror] then read aloud the message on the tab which, as I recall, read 'justice will not be done until those not injured by crime feel as indignant as those who are.' I also overheard [Juror O] [tell two or three other jurors] that he was getting messages and had a message to read to them. I then observed him begin to read from the [tea bag] tab.

"4. During another break about three weeks into trial, juror [Mr. E.] approached me and asked 'How far out do they expect you to have to put the mirrors.'

"5. Almost immediately after entering the deliberation room, juror Ms. S.] threw her pocket book on the jurors' table and exclaimed 'I'm absolutely sure Barr did not have a catalytic converter. They are guilty and are going to pay. [Sergeant] Mayfield should be up there with them.'

"6. During deliberations in the first phase of trial, juror [Mr. O.] remarked 'I'm going to write a note to the judge and ask who is responsible to pay the monetary damages?' At that point, other jurors commented that the employer would have to pay the damages.

"7. At another point in the deliberations, after I had expressed my views regarding liability to the other jurors, [Mr. O.] became very angry with me, pointed his arm at me with index finger extended and yelled loudly 'You don't talk like that' and 'You don't call him [plaintiff] lawless.'

"8. A number of jurors commented during our deliberations that there should be more CHP officers and supervisors on trial, specifically mentioning John Mayfield."

In response, Grassilli submitted declarations from several other jurors, denying many of Juror No. 2's assertions. In his declaration, the foreperson (Juror O) acknowledged that he brought his morning tea bag to court one day, but stated the "proverb" on the tab was "completely unrelated to the Grassilli case and did not influence my decision in the case in any fashion." (Italics omitted.) Juror L stated he remembered the foreperson reading a "generic proverb . . . which had something to do with justice," but did not think the statement indicated a preference for the plaintiff or defendant. Additionally, all of the jurors stated that Juror No. 2 would not deliberate and engaged in disruptive conduct, and that after Juror No. 2 was replaced, the jury began the deliberations "all over again in a round table fashion sharing ideas and discussing issues until we came to a verdict." With respect to whether the defendants would be responsible for personally paying the damages, each juror stated that although at one point the jurors discussed who would pay any damages awarded, they all later agreed the issue of who would pay the judgment was irrelevant to their decisions.

After considering the declarations and argument, the court denied defendants' new trial motion.

B. Analysis

In reviewing a trial court's denial of a new trial motion alleging juror misconduct, we accept the court's factual findings if supported by substantial evidence, but independently determine whether any misconduct caused prejudice. (People v. Nesler (1997) 16 Cal.4th 561, 582.) The verdict will be set aside only on a substantial likelihood of juror bias showing the party was denied a fair trial. (Id. at p. 578.) Juror affidavits may be used to impeach a verdict only if they refer to objectively ascertainable statements, conduct, conditions or events. (Evid. Code, § 1150; Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905, 910.) Evidence reflecting a juror's subjective reasoning process is inadmissible. (Ibid.)

Defendants first contend the foreperson (Juror O) committed prejudicial misconduct by bringing in his tea bag and reading the tab to one or two other jurors. We disagree. The tea bag contained a generally applicable principle about justice, and did not reasonably reflect a prejudgment of this particular case. Moreover, even if we were to agree with defendants that the reading of the tea bag tab was improper because it conveyed "information from sources outside the evidence presented in court" (Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678, 682), there is no substantial likelihood that it could have biased the jury. After a five-week trial, a reasonable juror would not be persuaded to decide in a particular manner about a case merely because a Good Earth tea bag contained a philosophical statement about justice.

We also reject defendants' arguments that other jurors prejudged the case. To support this argument defendants rely on Juror No. 2's statement that Juror S stated at the outset of deliberations that she believed defendants were "guilty" and that Officer Barr did not have a catalytic converter on his case. Juror S's statement was not misconduct because her statement was an appropriate part of the deliberative process. Although courts recommend that jurors not state their opinions "too strongly at the beginning of" deliberations, a juror does not commit misconduct by asserting his or her view of the evidence at any time during the deliberations. We likewise reject defendants' reliance on Juror No. 2's assertion that another juror made a statement about the case before deliberations began. This juror denied making this statement, and we presume from the court's denial of the motion that the court found the juror's denial to be credible. We are bound by the court's factual findings. (People v. Nesler, supra, 16 Cal.4th at p. 582.)

Defendants alternatively attempt to establish jury misconduct by asserting that Juror No. 2 was not given the opportunity to participate fully in the deliberations. To show he was denied this right, defendants direct us to Juror No. 2's declaration that the foreperson yelled at him and pointed his finger at him. However, the other jurors denied that this incident occurred. Moreover, Juror No. 2 did not mention this alleged incident to the court when he asked to be excused. Further, after Juror No. 2 admitted that he could no longer deliberate because the process was making him "sick," both plaintiff's and defendants' counsel expressly agreed that the court should excuse him from the jury. On this record, the court had sufficient factual basis to find that Juror No. 2 was not improperly denied the opportunity to participate in the deliberations.

Finally, we reject defendants' argument that the jurors committed misconduct by improperly speculating that defendants' employer would pay the damages award. Defendants rely on Juror No. 2's declaration. However, because Juror No. 2 had been dismissed and was not present during the deliberations leading to the verdict, he has no firsthand knowledge of any statements made during the relevant time. Additionally, even assuming the statements were admissible and relevant, the court had substantial basis to credit the declarations of the numerous other jurors who stated the jurors "agreed" that the "issue of who would pay any judgment" was "irrelevant."

The court properly denied defendants' new trial motion based on the alleged misconduct of the jurors.

VII. Attorney Fees

Defendants contend the court erred in awarding Grassilli $800,000 for attorney fees as the prevailing party.

A. Background

After trial, Grassilli moved for attorney fees of $1,069,008, under section 1988(b) which provides a prevailing party on a federal civil rights claim is presumptively entitled to reasonable attorney fees. (Hensley v. Eckerhart (1983) 461 U.S. 424, 433-434.)

In support Grassilli submitted a 296-page document describing his attorneys' services performed during a five-year period, from the inception of the litigation (March 29, 1999) through the filing of the attorney fee motion (June 1, 2004). The document identified the nature of each task performed, the time spent for the task, who performed the work, and the exact amount of the time billed for the work. The attorney hours and fees totaled: 836 hours for work on the first trial and appeal ($234,727); and 3,000 hours for tasks performed after the appeal ($834,281). The monetary amounts were calculated based on attorney hourly rates of $350 for partners; $250 for associates; and $125 for paralegals. The total attorney fees documented was equivalent to the amount claimed ($1,069,008).

Grassilli also produced his attorneys' declarations to establish the work performed on the case was reasonable and necessary, and the hourly rate was equivalent to the prevailing community rate for similar services. According to these declarations, three attorneys performed most of the work on the case: (1) Gregory Garrison, a partner in his firm who had 11 years of experience including complex criminal and civil matters; (2) Garrison's associate, Amelia McDermott, who was responsible for motions, discovery and trial preparation work; and (3) Michael Strain, an attorney with substantial civil rights experience, who worked primarily on the second trial. Both Garrison and Strain stated that the prevailing hourly wage for attorneys who work on a matter of the complexity of this case is $350 for partners, and Garrison and another partner in his firm said the prevailing hourly wage for associates is $250.

Grassilli also submitted the declaration of Michael Marrinan, an experienced San Diego civil rights attorney, who stated he attended portions of the trial and Grassilli's attorneys performed "exemplary work" on the case. Marrinan stated that "[g]iven [the attorneys'] experience and skill, as well as the result they achieved, it is my opinion that they are at the highest level of trial lawyers in civil rights cases. It is my belief that the usual and customary hourly rate for attorneys in San Diego county who are experienced enough to successfully try a case of the complexity of the Grassilli matter is at least $350.00 per hour." (Italics omitted.)

In opposing the motion, defendants did not dispute Grassilli was entitled to recover reasonable attorney fees, but argued the amount claimed was unreasonable for various reasons, including: (1) the documentation was unsatisfactory; (2) it was unnecessary for both Garrison and Strain to attend the entire second trial; (3) the fact the second trial was so much longer than the first trial demonstrates that it was unreasonably lengthy; (4) the issues were not novel or difficult and instead the matter was merely a "glorified traffic citation" case; and (5) the claimed attorney fee rates were higher than the prevailing rate in the community. In support, they produced only the declaration of their counsel, David Taglienti, a deputy attorney general, who stated: (1) he spent approximately 2,000 hours defending the case; (2) his "hourly fee" ranged from $110 to $140; (3) Garrison "essentially tried the [first] case alone"; (4) discovery was not time consuming or difficult; and (5) the issue at the second trial was a "single claim of retaliation."

After a hearing, the court awarded Grassilli $800,000, which is about 80 percent of his claimed attorney fees. The court explained its ruling as follows: "The Court finds the requested hourly rate of $350.00 for partners and $250.00 for associates involved in this case is comparable to those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. The Court also observes plaintiff's written law and motion work that was part of this case was, in many instances, stellar in its presentation, depth of research and intellectual honesty.

The Court reduces the fees requested by a percentage in this voluminous fee motion for the following reasons: 1. Plaintiff bills $125/hour for paralegal work. That per hour rate is not substantiated nor is it clear how much of that work is more in the nature of clerical or secretarial work; 2. Although, the plaintiff's case reasonably and appropriately benefited from the trial being conducted by two trial attorneys sharing the workload, the presence of both attorneys during the trial at all times and for every witness was not necessary; and 3. Hours spent on some tasks appear excessive."

Defendants challenge the court's determination on appeal.

B. Legal Principles

Reasonable attorney fees under section 1988 are generally determined by the "lodestar" approach: "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." (Hensley v. Eckerhart, supra, 461 U.S. at pp. 433.) A court may then adjust this figure upward or downward based on numerous relevant factors. (See Forbush v. J.C. Penney Co. (5th Cir. 1996) 98 F.3d 817, 821.) A trial court has broad discretion in determining the appropriate amount of fees based on the court's "'superior understanding of the litigation.'" (Fenster v. Tepfer & Spitz, Ltd. (7th Cir. 2002) 301 F.3d 851, 860; see Hensley, supra, 461 U.S. at p. 437.) "'[W]e are not entitled to disturb a [trial] court's exercise of discretion even though we might have exercised that discretion quite differently.'" (Trimper v. City of Norfolk, Va. (4th Cir. 1995) 58 F.3d 68, 74.)

In determining if the hours claimed are reasonable, the trial court should consider: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment due to acceptance of the case; (5) the customary fee; (6) the contingent or fixed nature of the fee; (7) the limitations imposed by the client or the case; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature of the professional relationship with the client; and (12) awards in similar cases. (Trimper v. City of Norfolk, Va., supra, 58 F.3d at p. 73; Kerr v. Screen Extras Guild, Inc. (9th Cir. 1975) 526 F.2d 67, 69-70.)

The appropriate hourly rate is determined according to the prevailing market rates in the community. (Blum v. Stenson (1984) 465 U.S. 886, 896-897.) The party seeking attorney fees bears the burden of proving the reasonableness of his requested fee award. "'The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services . . . .'" (Intel Corp. v. Terabyte International, Inc. (9th Cir. 1993) 6 F.3d 614, 622, quoting Jordan v. Multnomah County (9th Cir. 1987) 815 F.2d 1258, 1263.)

C. Analysis

We conclude the court acted within its discretion in awarding Grassilli 80 percent of his claimed fees.

The 296-page billing record lodged by Grassilli substantiates the reasonableness of the requested attorney fees award. Although defendants are critical of Grassilli for producing such a detailed record, Grassilli should be commended for doing so. In determining the reasonableness of the hours requested, the court had the benefit of reviewing the detailed breakdown to test Grassilli's claims that the amount of hours and the nature of the tasks were necessary and reasonable. The report provided the court with a meaningful basis to derive an accurate sense for the type of work the attorneys claimed to have performed and the necessity for that work. The court presided over the five-week trial, and thus had a substantial basis to evaluate the necessity and reasonableness for these fees.

Defendants argue the amount of time spent was excessive and duplicative. The court agreed that some of the fees incurred for both Garrison and Strain to be present at the second trial were unnecessary, and the court reduced the claimed amount accordingly. Defendants do not refer to any other instances where unnecessary duplication occurred. Defendants instead argue the amount was unreasonable because the case was "simple" and "straightforward." However, the trial court had a reasonable basis to reject this argument. At trial, Grassilli was required to produce evidence of numerous encounters between himself and the defendant law enforcement officers over a five-year period, and prove the officers' subjective motivations. Additionally, Grassilli had the burden to show a substantial link between the officers' conduct and his claimed emotional distress and economic losses to his business. In addition to these difficult proof burdens, the court found defendants' counsel added to the complexity of the lawsuit by acting in an "obstructionist" manner.

Additionally, although the second trial took longer than the first, this difference does not necessarily establish the second trial was unreasonably lengthy. Two of the defendants engaged in additional conduct against Grassilli after the first trial. Moreover, several CHP witnesses came forward after the first trial to provide favorable testimony to Grassilli. Further, the primary difference-the admission of the evidence of the Tibbans truck stops in the second trial--required substantial additional percipient and expert testimony on both liability and damage issues.

We also reject defendants' argument that the trial court erred in finding the attorney hourly rates were reasonable. Grassilli produced sworn declarations, including from an experienced attorney whose practice is devoted primarily to plaintiffs' civil rights litigation, that an ordinary and customary hourly fee charged by private practitioners with similar skill and expertise is $350 for partners and $250 for associates. Defendants did not produce any evidence to oppose these assertions, other than their counsel's declaration that his billing rate is at most $140, which is not necessarily comparable to that of an attorney in private practice. The court had an ample evidentiary basis to credit Grassilli's evidence that the rates charged reflected the prevailing rate in the community for similar work. The court's careful review of the record as to the fees charged is reflected in its reduction of the award for paralegal services because Grassilli did not produce any evidence showing the $125 hourly fee was reasonable.

On our review of the entire record, we are confident the trial court considered all the relevant factors, and its determination that Grassilli was entitled to 80 percent of his claimed fees was a proper exercise of discretion.

VIII. Expert Witness Fees

Defendants contend the court erred in awarding expert witness fees of $25,000 based on defendants' rejection of a $1,000,000 settlement offer (exclusive of fees and costs) under Code of Civil Procedure section 998. Because our reversal of the punitive damage judgment means that Grassilli no longer obtained a judgment in excess of $1,000,000 (exclusive of fees and costs), we reverse the expert witness fee cost award.

DISPOSITION

We affirm the judgment with respect to liability, compensatory damages, and attorney fees. The judgment is reversed on the punitive damages award, with the direction that the superior court is to: (1) enter judgment against Officer Barr in the amount of $35,000, or at Grassilli's option conduct a new trial on the proper amount of punitive damages against Officer Barr; and (2) enter judgment against Sergeant Toth in the amount of $20,000, or at Grassilli's option conduct a new trial on the proper amount of punitive damages against Sergeant Toth. The court is further ordered to strike $25,000 in costs to Grassilli reflecting expert witness fees. Defendants to pay Grassilli's costs on appeal.

CERTIFIED FOR PARTIAL PUBLICATION

HALLER, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts III, IV, VI, VII, and VIII of the Discussion section.

[1] Based on our conclusion that Government Code section 825 is inapplicable here, we need not reach the issue whether the statutory prohibition on admitting evidence of the potential for statutory indemnification applies in a punitive damages claim based solely on a federal cause of action.

[2] This comment appears to have been precipitated by defense counsel's improper claim the officers had already been punished enough because they were personally responsible for paying the compensatory damages.