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Michael Mitchell SBN Attorney at Law Ventura

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									 1   Michael R. Mitchell                                                       Filed 9-24-2003
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     SBN 48348                                                     United States District Court
     Attorney-at-Law                                              Central District of California
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     20300 Ventura Boulevard, No. 317
     Woodland Hills, CA 91364
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     Phone (818) 887-7100
     FAX (818) 887-0010
 5   Attorney for Plaintiff
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                              UNITED STATES DISTRICT COURT
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                          FOR THE CENTRAL DISTRICT OF CALIFORNIA
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   MICHAEL COLLINS, on his own behalf                 ||   Case No. LACV 03-6651 RGK
15 and on behalf of all others similarly              ||                  FMOx
   situated,                                          ||
16                                                    ||    DECLARATION OF HOWARD R.
             Plaintiff,                               ||   PRICE IN SUPPORT OF MOTION
17                                                    ||   FOR PRELIMINARY INJUNCTION
             v.                                       ||
18                                                    ||   DATE: Oct. 27, 2003
   CITY OF LOS ANGELES, and                           ||   TIME: 9:00 am
19 ROCKARD J. DELGADILLO,                             ||   PLACE: Ctroom Hon. R. Gary
   individually and in his official capacity,         ||   Klausner, 840 Roybal Bldg., 225 E.
20                                                    ||   Temple St., Los Angeles
                                                      ||
21        Defendants.
     __________________________________
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23           I, the undersigned, if called as a witness, would testify competently to the

24   following facts upon my personal knowledge.

25           My name is Howard R. Price. I am an attorney admitted to practice law in the

26   State of California since 1968. I received my law degree from UCLA Law School in

27   1967.

28           I commenced practicing civil rights law representing victims of police

     DECLARATION OF HOWARD R. PRICE               1
1    misconduct in 1988. A copy of my resume is attached, marked Exhibit A, and
2    incorporated herein by reference.
3                                 FIRST CAUSE OF ACTION
4          Over the past 15 years, all of my civil rights clients (estimated to be 15 in
5    number) have bargained away to the City (in exchange for settlement of their merits
6    claims) the right to apply for statutory attorney fee awards. All but one of my other
7    civil rights clients (estimated to be 20 in number) have made similar fee-waiver
8    settlements with other government entities.
9          By virtue of these bargains, in the aggregate and in the long run, I no longer
10   expect to receive statutory attorney's fees upon settlement of civil rights cases.
11         As a result, I am extremely reluctant to represent plaintiffs in civil rights cases
12   who have only modest damage or only equitable claims. So long as the City has the
13   power to enter into "lump sum, including all attorney's fees" settlements, I will be
14   very hesitant to represent such plaintiffs against the City.
15         Based upon my experience, I believe the pool of competent civil rights lawyers
16   normally willing to represent victims of civil rights abuse in the Los Angeles area
17   numbers about 35.
18         Over the past 15 years, I estimate that I have been approached by over 100
19   victims of civil rights abuse who I have declined to represent because of the City's
20   power to enter into "lump sum, including all attorney's fees" settlements.
21                               THIRD CAUSE OF ACTION
22         Commencing in or about 1986, the Los Angeles City Attorney's office created
23   and implemented an official or unofficial custom, policy, and practice of settling
24   civil rights cases, before, during, or after trial, on a "lump sum, including all
25   attorney's fees" basis. I know this to be the City Attorney's policy because of my
26   experience and discussions with many colleagues.
27         The policy interferes with and is contrary to 42 U.S.C. Section 1988(b) ("Fees
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     DECLARATION OF HOWARD R. PRICE              2
 1   Act") in that it prevents the free exercise of the district court's discretion, if required,1
 2   to determine whether attorney's fees will be awarded. By its policy, the City usurps
 3   the power of the district court to determine whether attorney's fees will be awarded,
 4   in direct contravention to the Fees Act's statutory scheme. Therefore, in my opinion,
 5   the settlement policy violates Article VI, clause 2 of the Constitution because it
 6   interferes with and is contrary to the Fees Act.
 7                              FOURTH CAUSE OF ACTION
 8         The Fees Act was enacted to (a) "attract competent counsel to represent
 9   citizens deprived of their civil rights," 2 and (b) “to encourage compliance with and
10   enforcement of the civil rights laws.” 3
11         Defendants' settlement policy makes it extremely difficult to attract competent
12   counsel, such as myself, to represent individuals deprived of their civil rights. In
13   fact, the settlement policy stands as an obstacle to me, preventing me from
14   representing such individuals, particularly on claims of modest economic damage or
15   only equitable relief.
16          Defendants' settlement policy greatly discourages me from filing private
17   actions seeking to encourage compliance with and to enforce the civil rights laws. In
18   fact, the settlement policy stands as an obstacle to me, preventing me from filing
19   private actions, with modest damage or only equitable claims, to encourage
20   compliance with and to enforce civil rights laws.
21          In my opinion, defendants' policy of offering or accepting only “lump sum
22   including all attorney’s fees” upon settlement violates Article VI of the Constitution
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24         1
            Nothing in the Fees Act prevents defendants and civil rights lawyers from
     negotiating and settling fee claims after final settlement of the merits case.
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          Bernhardt v. County of Los Angeles, 279 F.3d 862, 870 (9th Cir., 2002)
           2

26 quoting Evans v. Jeff D., 475 U.S. 717, 731 (1986) (internal quotes omitted)

27         3
             Bernhardt v. County of Los Angeles, ___ F.3d ___, 2003 WLth21789011 (9th
     Cir., Aug. 5, 2003) quoting Dennis v. Chang, 611 F.2d 1302, 1306 (9 Cir., 1980)
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     DECLARATION OF HOWARD R. PRICE                3
1    by interfering with the purposes of Congress in enacting 42 U.S.C. Section 1988, to
2    wit, attracting competent counsel to represent individuals deprived of their civil
3    rights and encouraging compliance with and enforcement of the civil rights law.
4                                  FIFTH CAUSE OF ACTION
5           By enacting the Fees Act, Congress created for victims of civil rights abuse,
6    such as Michael Collins, the implied federal right to contract with an attorney to
7    obtain representation in exchange for transfer to the attorney of an enforceable right
8    to apply for statutory attorney's fees in the event that plaintiff prevailed by settlement
9    or otherwise.
10          Based upon my experience and conversations with colleagues, I know that
11   most of the civil rights lawsuits against the City and its employees or officers are
12   resolved, prior to trial, during trial, or after trial, by settlement.
13          If I represent a civil rights plaintiff who desires to accept or enter into a "lump
14   sum, including all attorney's fees" settlement with defendants, I cannot legally or
15   ethically delay, much less prevent, such a settlement, even if I have obtained, as
16   consideration for representing the plaintiff, the right to apply for statutory attorney's
17   fees. Such a settlement renders my right unenforceable.
18          Absent an enforceable right to apply for statutory attorney's fees upon
19   settlement, I am very often unable to represent victims of civil rights abuse, such as
20   Michael Collins, with modest economic or only equitable claims.
21          In my opinion, defendants' settlement policy deprives plaintiff, under color of
22   law, of the implied federal right to contract with an attorney to obtain representation
23   in exchange for transfer to the attorney of an enforceable right to apply for and,
24   hopefully to obtain statutory attorney’s fees in the event that plaintiff prevails by
25   settlement or otherwise, all in violation of 42 U.S.C. Section 1983.
26                                         CONCLUSION
27          If the relief sought in plaintiff's complaint were granted, I would be more
28   willing and able to represent victims of civil rights abuse with modest damage or

     DECLARATION OF HOWARD R. PRICE                 4
1    only equitable claims.
2           I would be willing to represent individuals, such as Michael Collins, if they
3    would enter into a contract transferring to me all of their rights to apply for (or
4    waive) statutory attorney’s fees and if the court orders that the defendant City, its
5    officers, agents, servants, employees, and attorneys, and any attorneys who contract
6    with the City of Los Angeles to perform legal services, and persons in active concert
7    or participation with them, are enjoined and prohibited from offering, accepting, or
8    entering into any agreement settling civil rights cases that inhibits, interferes with, or
9    prohibits lawyers from applying for attorney’s fees under 42 U.S.C. Section 1988 (or
10   any similar statute), including but not limited to “lump sum including all attorney’s
11   fees” settlements.
12         I declare under penalty of perjury under the laws of the United States that the
13   foregoing is true and correct and that this declaration is executed at Beverly Hills,
14   California on September 3, 2003.
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                                                     HOWARD R. PRICE
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     DECLARATION OF HOWARD R. PRICE              5
1                    HOWARD R. PRICE
2                      Curriculum Vitae
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4    1964           Graduated from UCLA with a Bachelor of Arts
                    Degree in History
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     1967           Graduated from UCLA School of Law with a Juris
6                   Doctorate degree
7    1968-1973      Member of the Los Angeles County Public Defender’s
                    Office. During this time represented thousands of
8                   defendants charged with criminal offenses. Became a
                    Deputy Public Defender Grade IV after only two years
9                   in the office and thereafter represented only
                    defendants charged with felonies. During this time,
10                  handled approximately 75 jury trials, most of which
                    involved allegations of serious criminal offenses. As
11                  a Deputy Public Defender, tried numerous murder
                    cases and one special circumstances homicide, which
12                  resulted in a hung jury and an eventual dismissal of all
                    charges against the defendant. As a Deputy Public
13                  Defender, lectured to members of the office at weekly
                    seminars and prepared outlines of various areas of the
14   1974-Present   law for use by the office.
15                  Private practice in partnership with Jeffrey Brodey, a
                    colleague from the Public Defender's office. During
16                  this time, the constant has been representation of
                    defendants charged with criminal offenses. During
17                  this period, handled at least 80 jury trials and
                    numerous court trials, most of which involved serious
18                  felonies. For example, represented the defendants in
                    People v. Raynard Cummings and People v. Daniel
19                  Jenkins, both of which were capital cases involving
                    the murder of Los Angeles police officers. However,
20                  many clients have also included police officers, one of
                    whom was the defendant in People v. Keith Moser, a
21                  Los Angeles Police Department officer, who was
                    audiotaped and videotaped soliciting and picking up
22                  $50,000 to commit a murder, and yet was acquitted by
                    the jury of these charges. Recent litigation has
23                  involved Three-Strike cases.
24                  In the last 13 years, the practice has extended to civil
                    litigation involving complex and difficult cases. In
25                  1991, in Wesson v. Bloom, handled medical
                    malpractice case in which the jury awarded the client
26                  almost $1.5 million.
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1    1974-Present   Other civil cases include numerous civil rights cases
     Continued      involving police misconduct, both in the state and
2                   federal courts. In 1988, was plaintiff's co-counsel in
                    Ramirez v. County of Los Angeles, et al., in which the
3                   jury rendered a verdict in favor of the plaintiff for
                    $150,000 in general damages and $300,000 in punitive
4                   damages. In 1991, handled Trink v. Mitchell, which
                    settled for $500,000, and involved the unlawful arrest
5                   and excessive force perpetrated by a Los Angeles
                    Airport Police Officer. In 1993, represented plaintiffs
6                   in Chuman v. Wright, which resulted in a jury verdict
                    of $245,000 plus attorney's fees of $132,000. In 1995,
7                   represented plaintiff in Wall v. Cater, which resulted
                    in a plaintiff's verdict, ultimately leading to a $650,000
8                   settlement with Los Angeles County. Also in 1995,
                    was lead attorney in Ortiz v. Dempsey, and obtained
9                   the first verdict of liability ever against City of
                    Torrance police officers for misconduct, leading to a
10                  final settlement of $379,100. Thereafter in Ortiz v.
                    Dempsey II, a settlement in the amount of $150,000
11                  was obtained when Dempsey verbally retaliated
                    against Ortiz because of the first lawsuit. In 1997, I
12                  was the lead attorney in Price v. Kramer, a verdict of
                    $245,000 was followed by total fee orders of over
13                  $200,000. 1999, obtained a $950,000 settlement in
                    Williams v. Jacoubian, an L.A.P.D. shooting. In 2001,
14                  in Joseph v. Colquette a settlements of $115,000 was
                    achieved. In 2002, Settlements in the amount of
15                  $325,000 were received in Cooper v. Ruiz and
                    $275,000 in Gipson v. Aragon. Numerous other civil
16                  rights cases have resulted in favorable verdicts or
                    settlement.
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                    While in private practice, lectured to various bar
18                  groups and seminars, chaired the Criminal Law
                    Section of the Beverly Hills Bar Association, and
19                  participated in various radio and television discussions
                    of legal topics including extensive commentary for
20                  Court TV on the O.J. Simpson trial. Sustaining
                    member of California Attorneys for Criminal Justice.
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                    During private practice, numerous individuals have
22                  been employed who have later gone on to become
                    prosecutors and public defenders, including Marcia
23                  Clark.
24                  Between 1974 and 1978, presided pro tem as a Los
                    Angeles Superior court judge in juvenile court
25                  delinquency adjudications.
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                            Page 7 of 8
1                            CERTIFICATE OF
     SERVICE
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     I am a citizen of the United States; I am over the age
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     of 18 years and not a party to the above-entitled
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     action; my office address is 20300 Ventura
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     Boulevard, No. 317, Woodland Hills, CA 91364.
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     On September 24, 2003, I served the foregoing
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     document on the interested parties in said action by
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     personal delivery to the office of Rockard J.
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     Delgadillo, Los Angeles City Attorney, 800 City
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     Hall East, 200 North Main Street, Los Angeles, CA
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     90012.
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     I declare under penalty of perjury and the laws of the
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     United States that the foregoing is true and correct
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     and that this Certificate of Service was executed on
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     September 24, 2003 at Los Angeles, California.
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           _________________________________
18              MICHAEL R. MITCHELL
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