Steve Klein; Howard Putnam; Glen Biondi v. CITY OF LAGUNA BEACH; DOES, 1 through 10

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE KLEIN; HOWARD PUTNAM;
GLEN BIONDI,
Plaintiffs-Appellants,
v.
CITY OF LAGUNA BEACH; DOES, 1
through 10,
Defendants-Appellees.
No. 16-56309
D.C. No.
8:08-cv-01369-JLS-MLG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted February 6, 2018**
Pasadena, California
Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.
Plaintiffs appeal the district court’s order granting in part and denying in part
their motion for attorneys fees. Specifically, Plaintiffs claim that the district court
FILED
FEB 08 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

erred by reducing their requested hours by 45 percent so that the disparity between
the parties’ hours would match that in Democratic Party of Washington State v.
Reed, 388 F.3d 1281 (9th Cir. 2004).
“[W]hen faced with a massive fee application the district court has the
authority to make across-the-board percentage cuts either in the number of hours
claimed or in the final lodestar figure as a practical means of trimming the fat from
a fee application.” Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992)
(internal quotation marks omitted). However, when the across-the-board cut is
greater than 10 percent, “the district court must explain why it chose to cut the
number of hours or the lodestar by the specific percentage it did.” Gonzalez v. City
of Maywood, 729 F.3d 1196, 1203 (9th Cir. 2013).
The district court cut Plaintiffs’ hours by 45 percent so that the City’s hours
would be 75 percent of Plaintiffs’ adjusted hours—the same ratio that happened to
exist in Reed, a case in which this court granted fees on appeal in the full amount
requested and refused to reduce them so as to achieve a more favorable ratio for
the defendant or for any other reason. 388 F.3d at 1287-88. Here, the district court
erred. Reed in no way established a target ratio for district courts to meet. To the
contrary, “[a]lthough opposing counsel’s billing records may be relevant to
2

-- 2 of 3 --

determining whether the prevailing party spent a reasonable number of hours on
the case, those records are not dispositive.” Gonzalez, 729 F.3d at 1202.
Because the district court’s explanation for the reduction in fees was based
on a misunderstanding of Reed, we vacate and remand the district court’s fee
award. We need not and do not reach any of Plaintiffs’ other contentions on appeal.
Nor do we resolve the City’s arguments based on Plaintiffs’ alleged limited
success, although they appear to have little merit. Because the arguments seek a
modification of the judgment in the City’s favor, they should have been brought on
cross-appeal. Gilliam v. Nevada Power Co., 488 F.3d 1189, 1192 n.3 (9th Cir.
2007).
VACATED and REMANDED.
3

-- 3 of 3 --