United States District Court, E.D. California
law mandates an attorney fee and cost award to the prevailing
defendants on a special motion to strike. Cal. Civ. Proc.
Code § 425.16(c). The court previously granted the
special motion to strike filed by cross-defendants Connie
Bowlin, the Estate of Ed Bowlin, Aviation Autographs, and
Bowlin & Associates, Inc. (collectively
“Bowlins”). Order, ECF No. 338 (granting ECF No.
283). The Bowlins now seek an award totaling $49, 892.33.
See Mot., ECF No. 340; Reply, ECF No. 358.
party responsible for paying any awarded fees, Victoria
Yeager, opposes, arguing the Bowlins are entitled to no more
than $1, 506.50. Opp'n, ECF No. 354. As explained below,
the court AWARDS the Bowlins $20, 053.43 in fees and costs.
orders in this case detail relevant background information.
See ECF Nos. 263, 306, 338-39, 357. The court
therefore dispenses with a background section here, and
relies on the information in the prior orders.
noted, the Bowlins succeeded on their special
anti-SLAPP motion to strike and are thus statutorily
entitled to a cost and fee award. Cal. Civ. Proc. Code §
425.16(c) (providing “a prevailing defendant on a
special motion to strike shall be entitled to recover his or
her attorney's fees and costs.”). It is the
court's job to calculate a “reasonable” sum.
Robertson v. Rodriguez, 36 Cal.App.4th 347, 362
(1995). California law governs the inquiry. See
Metabolife Int'l, Inc. v. Wornick, 213 F.Supp.2d
1220, 1221-22 (S.D. Cal. 2002); Lee-Tzu Lin v. Dignity
Health-Methodist Hosp. of Sacramento, No. CIV. S-14-0666
KJM, 2014 WL 5698448, at *1 (E.D. Cal. Nov. 4, 2014).
California courts calculate a reasonable statutory fee award
in an anti-SLAPP case using the familiar lodestar figure,
which multiplies the number of hours counsel
“reasonably expended” litigating the motion by
counsel's “reasonable hourly rate.” PLCM
Group v. Drexler, 22 Cal.4th 1084, 1095 (2000). The
lodestar figure is presumptively reasonable, Cunningham
v. Cty. of Los Angeles, 879 F.2d 481, 488 (9th Cir.
1988), but may be adjusted based on “such factors as
the nature of the litigation, the complexity of the issues,
the experience and expertise of counsel and the amount of
time involved.” Wilkerson v. Sullivan, 99
Cal.App.4th 443, 448 (2002) (citations omitted).
the Bowlins submit bills showing they incurred $49, 892.33 in
legal fees and costs litigating both the anti-SLAPP motion
and the instant motion for fees. Mot. at 13 (initial sum of
$47, 204.33); Reply at 5, 11 (adding $2, 688.00 incurred in
drafting the reply). As noted, Mrs. Yeager contends the Bowlins
are entitled to no more than $1, 506.50. Opp'n at 11. The
court's independent analysis demonstrates an award
between these two sums is justified.
Reasonable Number of Hours
first step in the lodestar analysis is determining how many
hours counsel reasonably expended drafting the motions at
issue. As the prevailing party, the Bowlins have the
“burden of submitting billing records to establish that
the number of hours [they have] requested [is]
reasonable.” See Gonzalez v. City of Maywood,
729 F.3d 1196, 1202 (9th Cir. 2013) (citation omitted).
Bowlins submit billing records for two attorneys, Mr. Todd
Noonan and Ms. Jaqueline Loyd, and one paralegal, Mr. Thomas
McManus. Mot. at 8-9; Noonan Decl., ECF No. 341, ¶¶
12-13. The Bowlins request fees for 92.3 hours total: 64.3
hours of Mr. Noonan's time; 17.7 hours of Ms. Loyd's
time; and 10.3 hours of Mr. McManus's time. Noonan Decl.
¶ 13; Reply at 11.
the billing records are the “starting point” for
the “hours reasonably expended” component of the
lodestar calculation, the court is not bound by this number
or this evidence. Christian Research Inst. v. Alnor,
165 Cal.App.4th 1315, 1324 (2008) (citation and quotation
marks omitted); see Prison Legal News v.
Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010) (The
court “‘has a great deal of
discretion'” in determining reasonableness of the
hours claimed) (quoting Gates v. Deukmejian, 987
F.2d 1392, 1398 (9th Cir. 1992)); cf. Ketchum v.
Moses, 24 Cal.4th 1122, 1138 (2001) (“To the
extent a trial court is concerned that a particular award is
excessive, it has broad discretion to adjust the fee downward
or deny an unreasonable fee altogether.”). The court
may, for instance, “reduce the hours if it concludes
the attorneys performed work unrelated to the motion at
issue, or work that was unnecessary, excessive or duplicative
in light of the issues presented.” 569 E. Cty.
Boulevard LLC v. Backcountry Against the Dump, Inc., 6
Cal.App. 5th 426, 440 (2016) (citation omitted).
the court elects to reduce the claimed hours. The Bowlins
were litigating three motions simultaneously. See
ECF Nos. 283, 284, 288 (motion to dismiss, anti-SLAPP motion,
and motion to declare Victoria Yeager a vexatious litigant,
all filed on Oct. 3, 2017). As detailed below, several of the
Bowlins' billing entries conflate counsel's work on
the motions such that the court cannot with precision
ascertain what percentage of the billing entries are
“inextricably intertwined” with the anti-SLAPP
motion. The lack of precision alone can support a reduction
in a requested award. See Backcountry Against the
Dump, 6 Cal.App. 5th at 440 (“[The court] may
reduce the hours if it concludes the attorneys performed work
unrelated to the anti-SLAPP motion” or “work that
was unnecessary or duplicative or excessive in light of the
issues fairly presented.”) (citations omitted), as
modified on denial of reh'g (Dec. 29, 2016); cf.
Fitbit, Inc. v. Laguna 2, LLC, No. 17-CV-00079-EMC, 2018
WL 306724, at *8-9 (N.D. Cal. Jan. 5, 2018) (noting same
concern where work on anti-SLAPP motion overlapped with
motion to dismiss), reconsideration denied, 2018 WL
620121 (N.D. Cal. Jan. 30, 2018); Uriarte v. Bostic,
No. 15CV1606-MMA (PCL), 2017 WL 3387612, at *3 (S.D. Cal.
Aug. 7, 2017) (noting where parties litigate several related
motions, the risk of inefficient or duplicative efforts is
heightened as is the need for thorough fee documentation).
the following billing entries do not clearly identify
compensable work dedicated to the anti-SLAPP motion alone:
Mr. Noonan reportedly spent 3.5 hours reviewing “prior
docket entries and Yeager filings”; outlining and
refining “potential defenses, including potential SLAPP
and vexatious litigant motions”; and outlining a
“letter to V. Yeager re same.” Ex. D, ECF No.
341-4 at 2. Mr. Noonan also reportedly spent 3.4 hours
revising a “demand letter to V. Yeager”;
corresponding with “V. Yeager . . . C. Bowlin . . . and
M. Serlin”; analyzing “AT&T docket
and procedural defenses”; outlining “responsive
motions”; drafting a “stipulation to extend time
to respond”; and holding a “telephone conference
with M. Serlin” and another “with V. Yeager re
requested dismissal of action.” Ex. G, ECF No. 341-7 at
2. Ms. Loyd reportedly spent 5.6 hours meeting with Mr.