United States v. 2005-08-22 | 03-55403 | DANG VCROSS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 H. N. DANG, Nos. 03-55403
Plaintiff-Appellant, 03-56360
v. D.C. No.  CV-00-13001-GAFGILBERT CROSS,
Defendant-Appellee. OPINION

Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted
December 8, 2004—Pasadena, California
Filed August 22, 2005
Before: Betty B. Fletcher, John T. Noonan, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
11047

-- 1 of 24 --

COUNSEL
Stephen Yagman, Kathryn Bloomfield, Marion Yagman,
Joseph Reichman, Yagman & Yagman & Reichman &
Bloomfield, Venice Beach, California, for the plaintiff-
appellant.
Wilmont A. Odom, Cal P. Saunders, Office of City Attorney,
Compton, California, for the defendant-appellee.
OPINION
PAEZ, Circuit Judge:
In this civil rights action, under 42 U.S.C. § 1983, Plaintiff
H.N. Dang prevailed in a jury trial on his excessive force
claim against Officer Gilbert Cross of the City of Compton
Police Department and was awarded compensatory damages,
but not punitive damages. We consider Dang’s consolidated
appeals. Dang first challenges the district court’s refusal to
instruct the jury that oppressive conduct can serve as a predi-
cate for punitive damages under § 1983. Second, Dang con-
tends that the district court erred in its calculation of
reasonable attorney’s fees and costs under 42 U.S.C. § 1988.
We hold that the district court erred in failing to instruct the
jury that it could award punitive damages if it found that
Cross acted in an oppressive manner and we conclude that
this error was not harmless. Second, we hold that the district
court did not abuse its discretion in determining the reason-
able hourly rate it applied in calculating the fee award. We
vacate the fee award and remand, however, for further consid-
eration of the reasonable hours expended in light of the proper
legal standard and for reimbursement of the cost of recording
an abstract of judgment.
11051 DANG v. CROSS

-- 2 of 24 --

I.
Plaintiff H.N. Dang was the shop manager of the Compton
Jewelry Exchange, which Compton police officers suspected
of operating an unlicensed pawn shop. On December 17,
1999, Compton police officers executed an undercover inves-
tigation of the Jewelry Exchange’s alleged pawn shop activi-
ties. An undercover officer, Betty Jones, entered the store to
attempt to pawn a ring. After Dang agreed to take the ring in
exchange for $100, Jones left the store and notified Officer
Gilbert Cross, who was waiting outside the store with two
other officers, that she had successfully pawned the ring.
Shortly thereafter, three officers, Cross, Sergeant Preston
Harris, and Officer James Lewis, entered the store. When the
officers entered, Dang was in the office, which was separated
from the salesroom where the officers stood by a bulletproof
window and a steel security door. After Dang opened the
security door at the officers’ request, Harris and Cross entered
the office. Lewis remained by the front door. The officers
informed Dang that he was under arrest.1 Without patting
down or searching Dang, the officers handcuffed Dang and
requested that he produce the pawned ring. Dang informed the
officers that the ring was in a safe. Cross then instructed Dang
to open the safe. After the officers removed the handcuffs,
Dang bent down and proceeded to open the safe, which took
several attempts. After opening the safe, Dang reached inside.
As soon as he did so, however, Cross yelled at him to stop
and Harris pulled Dang away from the safe. Dang leaned for-
ward again to reach into the safe and Harris pulled Dang back,
knocking him to the floor.2 As Dang was pushed to the floor,
1When Dang was told he was under arrest, he asked the officers if he
could call his girlfriend. The officers refused. Dang also turned on the
camcorder in order to film the events. Dang testified that Officer Cross
turned the camcorder off and removed it after Dang was handcuffed.
2Dang testified that he reached into the safe to place the rings that he
was wearing in the safe for safekeeping. Cross and Harris testified that
Harris pulled Dang back because Dang grabbed the allegedly pawned ring
and they feared that he was going to destroy the slip attached to the ring.
11052 DANG v. CROSS

-- 3 of 24 --

he was holding the allegedly pawned ring, which Cross
attempted to retrieve.
A struggle ensued between Dang and the three officers, as
Lewis had joined the other two officers in the office at this
point. During the struggle, Cross struck Dang in the groin area
in order to incapacitate him.3 Although Cross testified that he
struck Dang in the groin with his fist, Dang testified that
Cross kicked him in the genitalia. After striking Dang in the
groin area, Cross punched Dang in the face. Dang also testi-
fied that the officers stepped on his head and his hand. The
officers finally subdued Dang when Harris put Dang into a
carotid restraint (a chokehold) and handcuffed him again.
The police officers took Dang to the Compton Police
Department and, while waiting, Dang lost consciousness. The
officers then took Dang to the hospital for medical attention.
Dang later sought private medical care because of the bruises
and pain in his chest, shoulders, neck, arm, hand, mouth, and
groin, and because there was blood in his urine.
Following the events of December 17, 1999, Dang filed
suit in the Central District of California against several City
of Compton officials and police officers alleging violations of
his Fourth Amendment rights under 42 U.S.C. § 1983. Before
the defendants filed motions for summary judgment, Dang
voluntarily dismissed the claims against all defendants except
Cross and Hourie Taylor, the Chief of Police for the Compton
Police Department. Dang also voluntarily dismissed his con-
spiracy and Fourteenth Amendment claims against these
remaining defendants.
Dang alleged that Cross, in his individual capacity, violated
Dang’s Fourth Amendment rights by executing an unlawful
3Cross testified that he struck Dang because Officer Lewis yelled that
Dang was reaching for Lewis’s gun. Dang testified, however, that he never
reached for Lewis’s gun.
11053 DANG v. CROSS

-- 4 of 24 --

entry, illegal search and seizure, false arrest, and by using
excessive force. Dang sued Taylor in his individual and offi-
cial capacities alleging supervisory liability for the constitu-
tional violations and alleging that the violations arose from
the customs, policies, and practices of the Compton Police
Department. Cross and Taylor filed summary judgment
motions on all claims. The district court concluded that dis-
puted material issues of fact regarding the extent of force
Cross used against Dang precluded summary judgment on
Dang’s excessive force claim against Cross. The court, how-
ever, granted summary judgment on all other remaining
claims against Cross and Taylor.
At trial, Dang as well as Cross, Lewis, and Harris testified.
The jury found Cross liable for excessive force and awarded
Dang $18,000 in compensatory damages. Before the punitive
damages phase of the trial, Dang requested a punitive dam-
ages jury instruction that included a clause stating that an act
“oppressively done” could be a predicate for an award of
punitive damages. The district court rejected this instruction,
concluding that it was an inaccurate statement of the law, and
instead instructed the jury in accordance with Ninth Circuit
Model Civil Jury Instruction 7.5 (2002). In support of his
claim for punitive damages, the court allowed Dang to present
additional evidence. Dang called Cross as a witness and ques-
tioned him about his remorse for the events on December 17,
1999. After argument and deliberations, the jury declined to
award punitive damages and returned a verdict in favor of
Cross.
At the conclusion of the litigation, Dang filed a motion for
an award of reasonable attorney’s fees under 42 U.S.C.
§ 1988. Dang sought $250,000 in fees and $2,030 in costs.
Cross opposed the motion. The district court awarded
$134,000 in attorney’s fees. The court arrived at this amount
by reducing the hours included in Dang’s requested fee award
by 25 percent and by reducing counsel’s hourly rate from
$550 to $400 per hour. The court also awarded Dang $908.25
11054 DANG v. CROSS

-- 5 of 24 --

in costs, but denied his request for reimbursement of $18.50
for the cost of obtaining and recording an abstract of judg-
ment. Dang timely appealed the judgment and the order grant-
ing attorney’s fees.
II.
“ ‘The standard of review on appeal for an alleged error in
jury instructions depends on the nature of the claimed error.’ ”
Phillips v. United States I.R.S., 73 F.3d 939, 941 (9th Cir.
1996) (quoting Oglesby v. S. Pac. Transp. Co., 6 F.3d 603,
606 (9th Cir. 1993)). “We review a district court’s formula-
tion of jury instructions in a civil case for abuse of discre-
tion.” White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir.
2002). “We review de novo whether the instructions misstated
the law.” Fireman’s Fund Ins. Cos. v. Alaskan Pride P’ship,
106 F.3d 1465, 1469 (9th Cir. 1997). Here, we review de
novo because Dang challenges the court’s instruction as an
incorrect statement of the law and the court rejected Dang’s
proposed instruction as contrary to the law of this circuit. See
Galdamez v. Potter, ___ F.3d ___, 2005 WL 1653618, at *3
(9th Cir. July 15, 2005).
We have stressed that “[j]ury instructions must fairly and
adequately cover the issues presented, must correctly state the
law, and must not be misleading.” White, 312 F.3d at 1012.
Further, “[a] party is entitled to an instruction about his or her
theory of the case if it is supported by law and has foundation
in the evidence.” Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002). We also have noted that the “[u]se of a model jury
instruction does not preclude a finding of error.” United States
v. Warren, 984 F.2d 325, 328 (9th Cir. 1993). If, however, the
error in the jury instruction is harmless, it does not warrant
reversal. Tritchler v. County of Lake, 358 F.3d 1150, 1154
(9th Cir. 2004). “In evaluating jury instructions, prejudicial
error results when, looking to the instructions as a whole, the
substance of the applicable law was [not] fairly and correctly
covered.” Swinton v. Potomac Corp., 270 F.3d 794, 802 (9th
11055 DANG v. CROSS

-- 6 of 24 --

Cir. 2001) (alteration in original) (internal quotation marks
and citations omitted).
The issue here is whether the district court erred in reject-
ing Dang’s proposed punitive damages jury instruction and in
giving an instruction that did not instruct the jury that it could
award punitive damages on the basis of Cross’s allegedly
oppressive conduct. Dang requested that the court instruct the
jury as follows, in relevant part:
If the jury should find from a preponderance of the
evidence that a plaintiff is entitled to a verdict for
nominal or compensatory damages; and should fur-
ther find that an act or omission of a defendant,
which legally caused injury to a plaintiff, was cal-
lously or, maliciously, or wantonly, or oppressively
done, then the jury may, add to an award of nominal
or compensatory damages, such amount as the jury
shall find to be proper, as punitive damages.
An act or a failure to act is ‘maliciously’ done, if
promoted or accompanied by ill will, or spite, or
grudge, either toward the injured person individu-
ally, or toward a person in one of [sic] more groups
or categories of which the injured person is a mem-
ber. An act or a failure to act is ‘wantonly’ done, if
done in reckless or callous disregard or, or [sic]
indifference to, the rights of one or more persons,
including the injured person.
An act or a failure to act is ‘oppressively’ done, if
done in a way or manner which injures, or damages,
or otherwise violates the rights of another person
with unnecessary harshness or severity, as by misuse
or abuse of authority or power, or by taking advan-
tage of some weakness, or disability, or misfortune
of another person.
11056 DANG v. CROSS

-- 7 of 24 --

(emphasis added). Dang’s counsel further specified that he
would not object to an alternative instruction as long as it
included the concept of oppressive conduct as a predicate for
punitive damages because that was the basis for Dang’s puni-
tive damages argument.4 The district court concluded, how-
ever, that the provision that allowed the jury to award punitive
damages for an act “oppressively done” was an inaccurate
statement of the law. Thus, the court rejected the proposed
instruction and instead, relying on Model Instruction 7.5,
instructed the jury as follows, in relevant part:
The plaintiff has the burden of proving that punitive
damages should be awarded, and the amount, by a
preponderance of the evidence. You may award
punitive damages only if you find that defendant’s
conduct was malicious, or in reckless disregard of
the plaintiff’s rights. Conduct is malicious if it is
accompanied by ill will, or spite, or if it is for the
purpose of injuring another. Conduct is in reckless
disregard of the plaintiff’s rights if, under the cir-
cumstances, it reflects complete indifference to the
plaintiff’s safety, rights, or the defendant acts in the
face of a perceived risk that its actions will violate
the plaintiff’s rights under federal law.
We hold that the district court erred in concluding that
oppressive conduct is not a proper predicate for punitive dam-
ages. We further hold that the court’s omission of the oppres-
sive acts provision rendered the jury instruction incomplete.
“[L]ooking to the instructions as a whole, the substance of the
applicable law was [not] fairly and correctly covered.” Swin-
ton, 270 F.3d at 802 (alteration in original) (internal quotation
marks and citations omitted). Because punitive damages may
be awarded for conduct that was oppressive, and because the
record “provided an evidentiary basis for such an instruction,”
4It is not disputed that Dang properly objected to the court’s punitive
damages instruction pursuant to Fed. R. Civ. P. 51(c).
11057 DANG v. CROSS

-- 8 of 24 --

the district court erred “[b]y failing to instruct the jury on [the
oppressive acts] concept.” See Gizoni v. Southwest Marine
Inc., 56 F.3d 1138, 1141 (9th Cir. 1995).
A.
[1] Section 1983 was “intended to ‘create a species of tort
liability’ in favor of persons deprived of federally secured
rights.” Smith v. Wade, 461 U.S. 30, 34 (1983) (quoting Carey
v. Piphus, 435 U.S. 247, 253 (1978)). Further, the common
law of torts governs the recoverable damages for liability
under § 1983. Id. Accordingly, when the Supreme Court
determined the requisite mental state and conduct for a puni-
tive damages award under § 1983, the Court looked to appli-
cable tort law concepts. See id. at 38.
[2] In Smith v. Wade, the Court considered whether puni-
tive damages could be awarded only for intentionally mali-
cious conduct or whether the district court properly instructed
the jury that it could award punitive damages “if the conduct
of one or more of the defendants is shown to be a reckless or
callous disregard of, or indifference to, the rights or safety of
others.” Id. at 33. Focusing on the standards for punitive dam-
ages at the time of the enactment of § 1983, the Court con-
cluded that federal and state courts agreed that punitive
damage awards “did not require a showing of actual malicious
intent; they permitted punitive awards on variously stated
standards of negligence, recklessness, or other culpable con-
duct short of actual malicious intent.” Id. at 45. The Court
noted cases applying various formulations of the standards for
punitive damages awards that existed at the time Congress
enacted § 1983, including “malicious or wanton misconduct
or culpable neglect,” Welch v. Durand, 36 Conn. 182, 185
(1869), conduct done “wantonly, or oppressively,” Cowen v.
Winters, 96 F. 929, 935 (6th Cir. 1899) (citations omitted);
Berry v. Fletcher, 3 F.Cas. 286, 288 (C.C.Mo. 1870); Fother-
ingham v. Adams Exp. Co., 36 F. 252, 253 (E.D. Mo. 1888),
“gross negligence,” Frink & Co. v. Coe, 4 Greene 555, 1854
11058 DANG v. CROSS

-- 9 of 24 --

WL 228, at *4 (Iowa 1854); Maysville & L.R. Co. v. Herrick,
76 Ky. 122, 127 (1877), “reckless negligence,” Florida Ry. &
Nav. Co. v. Webster, 5 So. 714, 719 (Fla. 1889), and “reckless
disregard of the rights of others,” Jacobus v. Congregation of
Children of Israel, 33 S.E. 853, 855 (Ga. 1899). See Smith,
461 U.S. at 45 n.12. In addition, the Court noted that in mod-
ern tort law, courts continue to apply the same standards for
punitive damages awards. Id. at 46.
[3] Further, the Court concluded that there is “no reason
why a person whose federally guaranteed rights have been
violated should be granted a more restrictive remedy than a
person asserting an ordinary tort cause of action.” Id. at 48-49.5
The Court thus concluded “that a jury may be permitted to
assess punitive damages in an action under § 1983 when the
defendant’s conduct is shown to be motivated by evil motive
or intent, or when it involves reckless or callous indifference
to the federally protected rights of others.” Id. at 56.
In light of the Supreme Court’s holding in Smith, we have
recognized that “[i]t is well-established that a ‘jury may
award punitive damages under section 1983 either when a
defendant’s conduct was driven by evil motive or intent, or
when it involved a reckless or callous indifference to the con-
stitutional rights of others.’ ” Morgan v. Woessner, 997 F.2d
1244, 1255 (9th Cir. 1993) (quoting Davis v. Mason County,
927 F.2d 1473, 1485 (9th Cir. 1991)). Accordingly, the Ninth
Circuit Model Civil Jury Instruction 7.5, which addresses
punitive damages in federal civil cases, provides:
If you find for the plaintiff, you may, but are not
required to, award punitive damages. The purposes
of punitive damages are to punish a defendant and to
deter a defendant and others from committing simi-
lar acts in the future.
5The Court also rejected the defendant’s argument that the threshold for
punitive damages must always be higher than the standard for compensa-
tory damages. Smith, 461 U.S. at 53.
11059 DANG v. CROSS

-- 10 of 24 --

The plaintiff has the burden of proving that punitive
damages should be awarded, and the amount, by a
preponderance of the evidence. You may award
punitive damages only if you find that defendant’s
conduct was malicious, or in reckless disregard of
the plaintiff’s rights. Conduct is malicious if it is
accompanied by ill will, or spite, or if it is for the
purpose of injuring another. Conduct is in reckless
disregard of the plaintiff’s rights if, under the cir-
cumstances, it reflects complete indifference to the
plaintiff’s safety, rights, or the defendant acts in the
face of a perceived risk that its actions will violate
the plaintiff’s rights under federal law.
Model Civ. Jury Instr. 9th Cir. 7.5 (2004) (emphasis added).
This statement of the law of punitive damages is incom-
plete, however. The standard for punitive damages under
§ 1983 mirrors the standard for punitive damages under com-
mon law tort cases. See Smith, 461 U.S. at 49. As the cases
cited by the Court in Smith made clear, malicious, wanton, or
oppressive acts or omissions are within the boundaries of tra-
ditional tort standards for assessing punitive damages and fos-
ter “deterrence and punishment over and above that provided
by compensatory awards.” Id. at 54; see id. at 45 n.12, 46
n.13. Such acts are therefore all proper predicates for punitive
damages under § 1983.
[4] Although we have not explicitly held that punitive dam-
ages may be awarded in federal civil rights cases for oppres-
sive conduct, we have frequently operated under the
assumption that such an instruction is proper. For instance, in
Fountila v. Carter, 571 F.2d 487 (9th Cir. 1978), a discrimi-
nation case under the Fair Housing Act, we reviewed an
instruction that provided in part, “If you find for the plaintiff
and find, from a preponderance of the evidence, that the acts
of the defendant were maliciously or wantonly or oppressively
done, then you may award the plaintiffs punitive damages in
11060 DANG v. CROSS

-- 11 of 24 --

addition to actual damages or in addition to nominal damages
such as you find.” Id. at 492 (emphasis added). We deter-
mined that the district court’s failure to inform the jury of the
purpose of punitive damages was prejudicial to the defendant;
however, we did not address whether the inclusion of the
oppressive acts clause was proper or required. Id. at 494.
Similarly, in Ward v. City of San Jose, 967 F.2d 280 (9th
Cir. 1991), a § 1983 action, we affirmed the district court’s
ruling that the “evidence could not support a finding that the
officers acted ‘maliciously, wantonly, or oppressively,’ ”
without addressing whether this instruction was an appropri-
ate legal standard for punitive damages. Id. at 286. In addi-
tion, in Price v. Kramer, 200 F.3d 1237 (9th Cir. 2000), in
which the plaintiff alleged illegal search and seizure and
excessive force under § 1983, we concluded that evidence of
the defendant police officer’s racial bias was relevant, in part,
because it went to “proving the defendant’s conduct was
‘malicious, wanton or oppressive or in reckless disregard of
the plaintiffs’ rights’ which, according to the jury instructions,
was necessary to the receipt of punitive damages.” Id. at
1251. Again we did not directly address the propriety of this
instruction. See also Larez v. City of Los Angeles, 946 F.2d
630, 639 (9th Cir. 1991) (holding that defendants’ challenge
to a punitive damages jury instruction was foreclosed because
the issue was not raised at trial but noting that the instruction
given, which included “maliciously, wantonly, or oppressive-
ly,” were within the standard set by Supreme Court in Smith
v. Wade); Gregory v. Thompson, 500 F.2d 59, 65 (9th Cir.
1974) (rejecting the defendant’s challenge to a district court’s
failure to instruct the jury on a good faith defense, while
upholding a jury instruction that allowed the jury to award
punitive damages if it “found [defendant] to have acted ‘mali-
ciously or wantonly or oppressively’ ”).
[5] Thus, we now explicitly hold what was implicit in our
past decisions. As the Seventh Circuit held in McKinley v.
Trattles, 732 F.2d 1320 (7th Cir. 1984), we conclude that a
11061 DANG v. CROSS

-- 12 of 24 --

jury instruction that allows for imposition of punitive dam-
ages for an act that was “oppressively done” and which
caused the plaintiff’s injury is “accurate and complete.” See
id. at 1326. In McKinely, the district court instructed the jury
that it could award punitive damages “[i]f the jury should find
from a preponderance of the evidence in the case that the act
or omission of the defendants which proximately caused
actual injury or damage to the plaintiff was maliciously or
wantonly or oppressively done.” Id. at 1326 n.2. The Seventh
Circuit found that “[t]hese jury instructions . . . comply with
the Supreme Court’s mandate in Smith v. Wade.” Id. at 1326.
We agree. This conclusion is also in line with several of our
other sister circuits. See, e.g., Walker v. Norris, 917 F.2d
1449, 1459 (6th Cir. 1990) (affirming an award of punitive
damages in a § 1983 case, concluding that the “maliciously,
wantonly, or oppressively done” jury instruction was “as strict
as the standard articulated by the Supreme Court in Smith v.
Wade”); Garza v. City of Omaha, 814 F.2d 553, 556 (8th Cir.
1987) (“In a § 1983 action, punitive damages may be awarded
where the defendant exhibits oppression, malice, gross negli-
gence, willful or wanton misconduct, or a reckless disregard
for the civil rights of the plaintiff.”); Stokes v. Delcambre, 710
F.2d 1120, 1126 (5th Cir. 1983) (holding, in a § 1983 action,
that malicious, wanton, or oppressive acts are within the tradi-
tional tort punitive damages standards as required by Smith v.
Wade).6 In sum, the district court erred in concluding that
6In addition to those circuits that have expressly held that such an
instruction is proper, several other circuits have implicitly recognized that
oppressive conduct is a proper predicate for punitive damages. See, e.g.,
Caban-Wheeler v. Elsea, 71 F.3d 837, 842 (11th Cir. 1996) (affirming an
award of punitive damages in a § 1983 action because there was sufficient
evidence that the defendants acted “maliciously, wantonly, or oppressive-
ly”); Beardsley v. Webb, 30 F.3d 524, 531 (4th Cir. 1994) (affirming an
award of punitive damages in a § 1983 suit based on evidence that “defen-
dant’s acts were malicious or wanton or oppressive or willful”); Wren v.
Spurlock, 798 F.2d 1313, 1322 (10th Cir. 1986) (affirming an award of
punitive damages in § 1983 case based upon the jury’s finding that defen-
dants’ acts were “maliciously or wantonly, or oppressively done”); Abra-
ham v. Pekarski, 728 F.2d 167, 173 (3d Cir. 1984) (holding that evidence
supported punitive damages in a § 1983 case because the jury could find
that defendants acted with “ill will and oppressively”).
11062 DANG v. CROSS

-- 13 of 24 --

oppressive conduct, which was the basis for Dang’s theory of
punitive damages, is an inaccurate statement of the law.
B.
In light of our conclusion that oppressive conduct is a
proper predicate for punitive damages under § 1983, we must
consider whether the instructions here adequately covered the
concept of oppression. “It is not error to reject a theory-of-
the-case instruction if the other instructions in their entirety
cover the [case] theory,” Brewer v. City of Napa, 210 F.3d
1093, 1097 (9th Cir. 2000) (quoting United States v. Law-
rence, 189 F.3d 838, 843 (9th Cir. 1999)). Here, however, we
conclude that the court’s punitive damages instruction did not
cover Dang’s theory that Cross acted oppressively in striking
and subduing Dang. Unlike Brewer, in which the court con-
cluded that “the instructions given ‘fairly and adequately
cover[ed] the issues presented,’ and provided Brewer with
ample room to argue his theory of the case to the jury,” id.,
the instructions here did not adequately cover oppressive con-
duct.
As noted, the court’s instruction embodied the text of Ninth
Circuit Model Civil Jury Instruction 7.5 (2002). That instruc-
tion provided, “You may award punitive damages only if you
find that defendant’s conduct was malicious, or in reckless
disregard of the plaintiff’s rights.” The instruction further
defined malicious: “Conduct is malicious if it is accompanied
by ill will, or spite, or if it is for the purpose of injuring anoth-
er.” The instruction also stated, “Conduct is in reckless disre-
gard of the plaintiff’s rights if, under the circumstances, it
reflects complete indifference to the plaintiff’s safety, rights,
or the defendant acts in the face of a perceived risk that its
actions will violate the plaintiff’s rights under federal law.”
[6] An act or omission is oppressive, however, “if done in
a manner which injures or damages or otherwise violates the
rights of another person with unnecessary harshness or sever-
11063 DANG v. CROSS

-- 14 of 24 --

ity as by misuse or abuse of authority or power or by taking
advantage of some weakness or disability or the misfortunes
of another person.” Fountila, 571 F.2d at 493; McKinley, 732
F.2d at 1326 n.2.7 We conclude that a defendant’s misuse of
authority or power or exploitation of a plaintiff’s weakness is
qualitatively different than a defendant’s act that is malicious
or in reckless disregard of the plaintiff’s rights.
[7] Punitive damages serve to punish the defendant for
wrongful conduct and to deter the defendant and others from
repeating that wrong. See Cooper Indus., Inc. v. Leatherman
Tool Group, Inc., 532 U.S. 424, 432 (2001). Awarding puni-
tive damages for oppressive conduct that was the cause of the
plaintiff’s injury deters and punishes the defendant for con-
duct that is not necessarily encompassed by malicious or reck-
less conduct. When a jury is instructed that it may award
punitive damages for oppressive acts, the jury must consider
the relative positions of power and authority between the par-
ties and determine whether the defendant misused his power
or authority or abused the plaintiff’s weakness in the course
of the wrongful conduct. This determination is not identical
to the jury’s consideration of a defendant’s malicious acts or
reckless disregard of the plaintiff’s rights. In some situations
the jury may determine that the defendant’s conduct was
malicious or reckless and also oppressive. Nonetheless,
7We agree that this is the proper legal definition of “oppressive.” It is
also consistent with the common definition of oppression or oppressive.
See Webster’s Third New Int’l Dictionary Unabridged 1584 (1993) (defin-
ing “oppressive” as “unreasonably burdensome; unjustly severe, rigorous,
or harsh; constituting oppression” and further defining “oppression” as
“unjust or cruel exercise of authority or power esp. by the imposition of
burdens; the unlawful, excessive or corrupt exercise of power other than
by extortion by any public officer so as to harm anyone in his rights, per-
son, or property while purporting to act under color of governmental
authority”); Black’s Law Dictionary 1127 (8th ed. 2004) (defining “op-
pression” as “1. The act or an instance of unjustly exercising authority or
power. 2. An offense consisting in the abuse of discretionary authority by
a public officer who has an improper motive, as a result of which a person
is injured.”)
11064 DANG v. CROSS

-- 15 of 24 --

oppressive conduct is sufficiently distinct to warrant a sepa-
rate instruction.
Indeed, several of our sister circuits have considered reck-
less or wanton conduct,8 malicious conduct, and oppressive
conduct as separate and distinct bases for an award of punitive
damages under § 1983. See, e.g., Walker, 917 F.2d at 1459;
Garza, 814 F.2d at 556; Stokes, 710 F.2d at 1126; see also
Anderson v. United Fin. Co., 666 F.2d 1274, 1278 (9th Cir.
1982) (holding that punitive damages may be awarded under
the Equal Credit Opportunity Act if “the creditor wantonly,
maliciously or oppressively discriminates against an appli-
cant,” or if “the creditor acts in reckless disregard of the
requirements of the law”). In addition, such a distinction was
drawn in assessing punitive damages at the time of the enact-
ment of § 1983. See, e.g., Day v. Woodworth, 54 U.S. 363,
371 (1851) (holding that exemplary damages depend upon the
degree of “malice, wantonness, oppression, or outrage of the
defendant’s conduct”); Cowen, 96 F. at 935 (“[T]he jury . . .
may award exemplary, punitive, or vindictive damages . . . if
the defendant has acted wantonly, or oppressively, or with
such malice as implies a spirit of mischief or criminal indif-
ference to civil obligations.”); Berry, 3 F.Cas. at 288 (“To
authorize the giving of exemplary or vindictive damages,
either malice, violence, oppression, or wanton recklessness
must mingle in the controversy.”); Fotheringham, 36 F. at 253
(“Punitive damages may be awarded when a wrongful act is
done willfully, in a wanton or oppressive manner, or even
when it is done recklessly.”).9
8Wanton misconduct is an act or omission “in reckless disregard of
another’s rights, coupled with the knowledge that injury will probably
result.” Black’s Law Dictionary 1020 (8th ed. 2004); see also McKinley,
732 F.2d at 1326 (“An act or a failure to act is wantonly done if done in
reckless disregard or callous disregard of or indifference to the rights of
one or more persons including the injured person.”).
9See also Philadelphia Traction Co. v. Orbann, 12 A. 816, 821 (Pa.
1888) (holding exemplary damages appropriate if defendant’s conduct was
11065 DANG v. CROSS

-- 16 of 24 --

[8] Thus, when the plaintiff’s theory for awarding punitive
damages is based upon an alleged act of oppression and there
is a foundation in the evidence for an instruction on this the-
ory, the district court must give such an instruction. See
Jones, 297 F.3d at 934. “[F]ailure to give an instruction on a
party’s theory of the case is reversible error if ‘the theory is
legally sound and evidence in the case makes it applicable.’ ”
Smith v. Sumner, 994 F.2d 1401, 1404 (9th Cir. 1993) (quot-
ing United States v. Scott, 789 F.2d 795, 797 (9th Cir. 1986)).
Here, the evidentiary record provides a foundation for the the-
ory of punitive damages based on oppressive conduct. The
jury reasonably could have concluded that Cross’s use of
force in the course of Dang’s arrest took advantage of Cross’s
authority and power and Dang’s relative weakness. Indeed,
the record reflects that Dang was positioned close to the floor
when the struggle ensued because he was ordered to open the
safe and that he was injured during the course of the struggle
with the three officers. We therefore conclude that there was
a sufficient evidentiary foundation for the oppressive conduct
instruction. Thus, the district court failed in its obligation “to
give jury instructions on all issues arising from the evidence
“willful and wanton, reckless or oppressive”); Jockers v. Borgman, 29
Kan. 109, 1883 WL 714, at *8 (1883) (“[E]xemplary damages . . . are not
to be awarded unless the conduct of a defendant is willful, wanton, reck-
less, malicious, oppressive, or otherwise deserving of condemnation
beyond the mere actual damage.”); Evans v. St. Louis, 11 Mo.App. 463,
1882 WL 9697, at *7 (Mo. Ct. App. 1882) (“[I]f the[ jury] should find that
the act of the conductor in putting the plaintiff off the train, under the cir-
cumstances, was wanton, reckless, or oppressive, they might give exem-
plary damages.”); Palmer v. Charlotte, 3 S.C. 580, 1872 WL 4908, at *12
(1872) (“[I]f there were no facts in the case to characterize the conduct of
the conductor as malicious, oppressive, or reckless of the rights of the
plaintiff, then the submission of the rule of exemplary damages was erro-
neous.”); Dorsey v. Manlove, 14 Cal. 553, 556 (1860) (“[W]here the tres-
pass is committed from wanton or malicious motives, or a reckless
disregard of the rights of others, or under circumstances of great hardship
and oppression, the rule of compensation is not adhered to, and the mea-
sure and amount of damages are matters for the jury alone.”).
11066 DANG v. CROSS

-- 17 of 24 --

and to present the [plaintiff’s] theory of the case.” Glover v.
BIC Corp., 6 F.3d 1318, 1328 (9th Cir. 1993).
C.
[9] Finally, we must consider whether the error was harm-
less. “An error in instructing the jury in a civil case requires
reversal unless the error is more probably than not harmless.”
Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir.
1992). “[W]e presume prejudice where civil trial error is con-
cerned and the burden shifts to the [defendant] to demonstrate
‘that it is more probable than not that the jury would have
reached the same verdict’ had it been properly instructed.”
Galdamez, ___ F.3d. at ___, 2005 WL 1653618, at *7 (quot-
ing Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir. 2005)).
Here, Cross simply argues that in light of the court’s punitive
damages instruction, it is more probable than not that the jury
would have reached the same conclusion even if the jury
instruction had included oppressive acts. Because this asser-
tion presumes that oppressive conduct is necessarily encom-
passed within malicious or reckless conduct, it is insufficient
to rebut the presumption of prejudice.
[10] On this record, we cannot conclude that it is more
probable than not that the error was harmless. “[N]othing
about this verdict indicates that the result would have been the
same without the error.” See Caballero, 956 F.2d at 207. Dur-
ing the liability and punitive damages phases of trial, the jury
concluded that Cross’s use of force was unreasonable under
the Fourth Amendment but was not malicious or in reckless
disregard of Dang’s rights. These determinations do not allow
us to conclude that the jury also would have concluded that
Cross’s conduct was not oppressive. Cf. Benigni v. City of
Hemet, 879 F.2d 473, 480 (9th Cir. 1988) (holding that the
district court’s failure to instruct the jury on reasonableness
was harmless because the jury’s award of punitive damages
indicated that the jury found the officer’s conduct to be worse
than unreasonable). Further, as discussed, in light of the evi-
11067 DANG v. CROSS

-- 18 of 24 --

dence of Cross’s assertion of power and authority and Dang’s
position when he was struck, the jury may well have con-
cluded that Cross acted in an oppressive manner. See Gal-
damez, ___ F.3d. at ___, 2005 WL 1653618, at *7. Thus, the
error here was not harmless, and we reverse for a new trial on
the issue of punitive damages.
III.
Under 42 U.S.C. § 1988, “the court, in its discretion, may
allow the prevailing party [in a § 1983 action], other than the
United States, a reasonable attorney’s fee as part of the costs
. . . .” 42 U.S.C. § 1988; Hensley v. Eckerhart, 461 U.S. 424
(1983). The parties do not dispute that Dang is the prevailing
party.10 Dang contends, however, that the district court abused
its discretion in determining the reasonable attorney’s fee
award and in refusing to reimburse Dang for expenditures
made to obtain and record an abstract of judgment.11
To determine reasonable attorney’s fees under § 1988, “the
district court should first determine the lodestar amount by
calculating ‘the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.’ ” Lytle, 382
F.3d at 988 (quoting Jordan v. Multnomah County, 815 F.2d
1258, 1262 (9th Cir. 1987)).12 The district court may then, in
10Although we remand for a new trial on punitive damages, we deem
it appropriate to address Dang’s challenges to the district court’s rulings
regarding attorney’s fees. Even if Dang does not pursue his request for
punitive damages on remand, Dang is a prevailing party under § 1988.
Dang prevailed at the liability phase of the trial and Cross does not chal-
lenge the award of compensatory damages. Ultimately, Dang is entitled to
an award of reasonable attorney’s fees.
11We review an award of attorney’s fees under 42 U.S.C. § 1988 for
abuse of discretion. Webb v. Sloan, 330 F.3d 1158, 1167 n.6 (9th Cir.
2003), cert. denied, 124 S. Ct. 1042 (2004). “A district court abuses its
discretion if it applies an inaccurate statement of the law, or if it bases its
decision on a clearly erroneous finding of fact.” Lytle v. Carl, 382 F.3d
978, 982 (9th Cir. 2004).
12The district court may exclude from the lodestar amount those hours
that were not “reasonably expended.” Hensley, 461 U.S. at 433. Here, the
11068 DANG v. CROSS

-- 19 of 24 --

its discretion, adjust the lodestar amount after considering
other factors that bear on the reasonableness of the fee. Id.;
see also Morales v. City of San Rafael, 96 F.3d 359, 363-64
(9th Cir. 1996) (discussing the Kerr factors that bear on rea-
sonableness that may be used to adjust the lodestar amount).
A.
[11] “[T]he extent of a plaintiff’s success is a crucial factor
in determining the proper amount of an award of attorney’s
fees under 42 U.S.C. § 1988.” Hensley, 461 U.S. at 440. To
determine fees in cases of partial success, such as the action
at issue here, “[a] court must consider (1) whether ‘the plain-
tiff fail[ed] to prevail on claims that were unrelated to the
claims on which he succeeded,’ and (2) whether ‘the plaintiff
achiev[ed] a level of success that makes the hours reasonably
expended a satisfactory basis for making a fee award.’ ” Wat-
son v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir.
2002) (quoting Hensley, 461 U.S. at 434).
The first step requires the district court to determine
whether the successful and unsuccessful claims were unre-
lated. Webb, 330 F.3d at 1168. “[C]laims are unrelated if the
successful and unsuccessful claims are ‘distinctly different’
both legally and factually,” id. at 1169 (quoting Schwarz v.
Sec’y of Health & Human Serv., 73 F.3d 895, 902-03 (9th Cir.
1995)); claims are related, however, if they “involve a com-
mon core of facts or are based on related legal theories.” Id.
at 1168. At bottom, “the focus is on whether the unsuccessful
and successful claims arose out of the same ‘course of con-
duct.’ ” Id. at 1169. If they did not, the hours expended on the
unsuccessful claims should not be included in the fee award.
Webb, 330 F.3d at 1169; Schwarz, 73 F.3d at 901.
district court initially reduced the lodestar by fifteen percent because the
hours appeared “excessive, unnecessary, or redundant” and were inade-
quately documented. Dang does not challenge this initial reduction in
hours.
11069 DANG v. CROSS

-- 20 of 24 --

If, however, “the unsuccessful and successful claims are
related, then the court must apply the second part of the analy-
sis, in which the court evaluates the significance of the overall
relief obtained by the plaintiff in relation to the hours reason-
ably expended on the litigation.” Id. at 902-03 (internal quota-
tion marks and citations omitted). “Where a plaintiff has
obtained excellent results, his attorney should recover a fully
compensatory fee.” Hensley, 461 U.S. at 435. When “a plain-
tiff has achieved only partial or limited success, [however,]
the product of hours reasonably expended on the litigation as
a whole times a reasonable hourly rate may be an excessive
amount.” Id. at 436. Nonetheless, a plaintiff does not need to
receive all the relief requested in order to show excellent
results warranting the fully compensatory fee. Id. at 435 n.11;
Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001).
Here, the district court reduced the number of hours by an
additional ten percent because the court found “a measurable
part of the case activity was directed to matters pertaining to
Defendants who were ultimately eliminated from the case
through law and motion practice.” The district court con-
cluded that “the question to be addressed by the trial court is
whether the unsuccessful claims played an important role in
the plaintiff’s partial success.” Pointing to the inclusion of
dismissed defendants and claims that “served to increase the
amount of unproductive time devoted to this case,” the court
reduced the attorney’s fee award by ten percent.
[12] In making this determination, the district court failed
to consider whether the claims against the dismissed defen-
dants and the unsuccessful claims of false arrest, illegal entry,
and unreasonable search and seizure against Cross were
related to the successful excessive force claim. We therefore
vacate the fee award and remand to the district court for a
determination of whether the unsuccessful claims were related
to Dang’s successful excessive force claim against Cross and
to determine the reasonable hours expended applying the cor-
rect standard.
11070 DANG v. CROSS

-- 21 of 24 --

B.
[13] Dang also challenges the $400 hourly rate approved by
the court. “ ‘[R]easonable fees’ under § 1988 are to be calcu-
lated according to the prevailing market rates in the relevant
community,” Blum v. Stenson, 465 U.S. 886, 895 (1984), tak-
ing into consideration “the experience, skill, and reputation of
the attorney.” Schwarz, 73 F.3d at 906 (quoting Chalmers v.
City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986),
amended, 808 F.2d 1373 (9th Cir. 1987)).
[14] “To inform and assist the court in the exercise of its
discretion, the burden is on the fee applicant to produce satis-
factory evidence—in addition to the attorney’s own affidavits
—that the requested rates are in line with those prevailing in
the community for similar services by lawyers of reasonably
comparable skill, experience and reputation.” Blum, 465 U.S.
at 896 n.11. Here, the district court considered the evidence
produced by the parties, including fee rates of other attorneys
in similar practices, awards in comparable cases, counsel’s
experience and reputation level, and the market rates, as well
as two additional Kerr factors: the novelty/difficulty of the
issues and the preclusion of other work. See Morales, 96 F.3d
at 364. In light of the evidentiary record and the factors that
bear on the reasonableness of a fee award, the district court
concluded that $400 per hour, rather than the requested fee of
$550 per hour, was reasonable. This determination was not an
abuse of discretion.13
C.
Dang further challenges the district court’s rejection of his
request for reimbursement of the cost of obtaining an abstract
of judgment for $7.50 and recording the abstract of judgment
with the County Recorder’s Office for $11.00. Dang did not
13Because there is no need to take judicial notice of U.S. inflation rates,
we deny Dang’s request to do so.
11071 DANG v. CROSS

-- 22 of 24 --

request the abstract of judgment expenses as part of his Bill
of Costs pursuant to Federal Rule of Civil Procedure 54(b)(1)
and Rule 54-3 of the Rules of Court for the Central District
of California. Rather, after filing the Bill of Costs, Dang
included these expenses as part of his fee request under
§ 1988.
[15] Under § 1988, the prevailing party “may recover as
part of the award of attorney’s fees those out-of-pocket
expenses that ‘would normally be charged to a fee paying cli-
ent.’ ” Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994)
(quoting Chalmers, 796 F.2d at 1216 n.7). Such out-of-pocket
expenses are recoverable when reasonable. See id. at 20;
United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d
403, 407 (9th Cir. 1990). Here, Cross does not argue that the
abstract of judgment expense is not one that would normally
be charged to a fee paying client. Nor does he challenge its
reasonableness. Rather, Cross points to the fact that Dang
offers no explanation why this expense was necessary. None-
theless, recording an abstract of judgment is a reasonable step
in the enforcement of a judgment. Indeed, California law
explicitly sanctions the recording of an abstract of judgment.
See Cal. C.C. P. § 697.310(a); see also Fed. R. Civ. P. 69(a)
(the procedure on execution of a writ to enforce a judgment
for payment of money “shall be in accordance with the prac-
tice and procedure of the state in which the district court is
held”). Further, it is an expense that would normally be
charged to a fee paying client. Under these circumstances,
Dang was entitled to recover the cost of obtaining and record-
ing the judgment.
IV.
We hold that the district court prejudicially erred in refus-
ing to instruct the jury that punitive damages could be
awarded if it found that Cross’s acts that caused Dang’s inju-
ries were oppressively done. We therefore vacate the judg-
11072 DANG v. CROSS

-- 23 of 24 --

ment and remand for further proceedings on punitive
damages.
We also vacate the attorney’s fee award and remand
Dang’s request for fees and costs under § 1988 for further
consideration consistent with this opinion.
VACATED and REMANDED.
11073 DANG v. CROSS

-- 24 of 24 --