Fees Not Blocked by Spurning of Better Pre-Trial Offer

Monday, October 27, 2025

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Ninth Circuit:

Fees Not Blocked by Spurning of Better Pre-Trial Offer

Opinion Says Federal Rule Precluding Recovery of ‘Costs’ if Plaintiff Rejects Proposal Does Not Bar Award in Action Under Tom Bane Civil Rights Act Where Statute Does Not Define Term as Including Payments to Attorneys

By a MetNews Staff Writer

A plaintiff, who was awarded $70,000 in damages against the City of La Verne following a jury trial relating to an allegedly unprovoked police dog attack, is not barred from recovering $343,135 in attorney fees by virtue of his earlier rejection of a pre-trial offer to resolve the claims for $150,000 where the cause of action on which he prevailed on was rooted in California’s Tom Bane Civil Rights Act, the Ninth U.S. Circuit Court of Appeals held Friday.

That act prohibits interferrence with constitutional rights by force or threat of violence.

At issue is whether a District Court judge erred in awarding the plaintiff the fees based on Federal Rule of Civil Procedure 68—the federal analogue of California’s Code of Civil Procedure §998—which governs pre-trial offers and provides:

“If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.”

Friday’s memorandum decision, signed by Circuit Judges Kim Wardlaw and Lucy H. Koh as well as Senior District Court Judge Edward M. Chen of the Northern District of California, sitting by designation, noted case law establishing that courts are to look to how the statute underlying the plaintiff’s claim defines “costs” and declared that the award was proper because the Bane Act allows for the recovery of fees but is silent as to what qualifies as “costs.”

Police Dog Attack

The question arose in litigation over an attack that occurred at approximately 7 a.m. on December 14, 2021 inside the plaintiff’s La Verne apartment complex. The plaintiff, Justin Smith, alleged that he had just arrived home after dropping his daughter off at school when he was charged by a police dog named Dino.

According to Smith, he suffered disfigurement and loss of function in his left arm, in addition to pain, suffering, and other harms, from the incident. On Jan. 27, 2023, Smith filed a complaint against the City of La Verne, its police department, and Officer Addiel Julian, who purportedly released Dino into the complex after responding to a call about a stolen vehicle.

Smith asserted, among other causes of action, a Fourth Amendment excessive force claim under 42 U.S.C. §1983 as well as a violation of the Bane Act, codified at California Civil Code §52.1. That section provides

“Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with,…may institute and prosecute in their own name and on their own behalf a civil action for damages….”

After the plaintiff rejected the city’s attempt to settle the matter for $150,000, a jury found for Smith in May 2024 on his Bane Act claim and for alleged battery. The panel awarded him $70,000 in damages.

In June, Smith moved for $841,842.50 in attorney fees. On Sept. 4, 2024, District Court Judge Kenly Kiya Kato of the Central District of California granted the request, in part, reducing the award by nearly $400,000.

Entitled to Recover

She found that the plaintiff was entitled to recover for the work performed by his attorneys, Denisse O. Gastélum of Long Beach-based Gastélum Law APC and Christian Contreras of the Law Offices of Christian Contreras, located in Downtown Los Angeles, but that the lawyers’ stated hourly rates of $1,000 and $825, respectively, exceeded the reasonable rates for federal civil rights practitioners. Kato said:

“The term ‘costs’ in Rule 68 ‘refer[s] to all costs properly awardable under the relevant substantive statute[.]’…Thus, if the underlying statute defines ‘costs’ to include attorneys’ fees, ‘such fees are subject to the cost-shifting provision of Rule 68.’…By contrast, if the underlying statute does not define ‘costs’ to include attorneys’ fees, ‘they are not within the scope of Rule 68.’ ”

Noting that the Bane Act provides only that “the court may award the petitioner or plaintiff reasonable attorney’s fees” and is silent on costs, she ruled that “Rule 68 does not categorically bar Plaintiff’s recovery of attorneys’ fees after Plaintiff received Defendants’ Rule 68 Offer of Judgment.”

After reducing the recoverable hourly rates to $850 and $650, and eliminating some billed time as excessive, she ordered the defendant to pay Smith’s fees.

Ninth Circuit’s View

Wardlaw, Koh, and Chen wrote:

“The district court did not err in determining that, under the Bane Act, attorney’s fees are not considered ‘costs’ under Rule 68. ‘[T]he term…[i]s intended to refer to all costs properly awardable under the relevant substantive statute or other authority.’…The relevant substantive statute, the Bane Act, provides that ‘the court may award the . . . plaintiff reasonable attorney’s fees,’ but does not mention costs at all….”

Noting that U.S. courts exercising supplemental jurisdiction over a state court claim are to apply state substantive law and federal procedural rules, they opined:

“[I]n federal court, the term ‘costs’ does not ordinarily include attorney’s fees….Because neither the relevant substantive statute nor federal procedural rules define attorney’s fees as ‘costs’, the district court properly held that attorney’s fees under the Bane Act are not considered ‘costs’ within the meaning of Rule 68.”

Rejecting the defendants’ assertion that the award was improper because California Code of Civil Procedure §§1032 and 1033.5 define costs to include attorney fees authorized by statute, they opined:

“California Code of Civil Procedure §§1032 and 1033.5 do not change this analysis because those statutes are state procedural rules. Sections 1032 and 1033.5 do not provide any entitlement to attorney’s fees or any other substantive right but instead detail the procedural mechanisms for awarding costs in state court proceedings.”

They responded to Smith’s assertion that Kato erred in denying his post-verdict request for treble damages under the Bane Act, saying:

“Because Smith has not cross-appealed, we ordinarily would not ‘alter a judgment to benefit’ him….But even if we decline to apply the cross-appeal rule and reach the merits, the district court correctly interpreted the Bane Act….Smith did not request a jury instruction as to treble damages, and the district court correctly held that the statute indicates treble damages may be awarded by the factfinder, whether that be the jury or the ‘court…’ in a bench trial….Smith has not identified any authority suggesting a court can award post-verdict treble damages on a Bane Act claim after a jury has already awarded damages on the same claim.”

The case is Smith v. City of La Verne, 24-5805.