AT&T Mobility, LLC v. Yeager, et al.

Filing 376

ORDER signed by District Judge Kimberly J. Mueller on 3/30/2018 GRANTING #340 Motion for Attorney Fees but ADJUSTS the lodestar figure to find reasonable an attorney fee award of $18,765.00, plus $1,151.08 in related legal expenses, and $137.35 in costs. The total sum awarded is therefore $20,053.43 with payment due to the Bowlins by May 4, 2018. (York, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AT&T MOBILITY LLC,

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No. 2:13-cv-00007 KJM DB

Plaintiff,
v.

ORDER

GENERAL CHARLES E.
“CHUCK”YEAGER (RET.); ED
BOWLIN; CONNIE BOWLIN;
AVIATION AUTOGRAPHS; BOWLIN &
ASSOCIATES, INC.; LAW OFFICES OF
JOANNA R. MENDOZA, P.C.; DE LA
PENA & HOLIDAY, LLP; LESSER LAW
GROUP,
Defendants.

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California law mandates an attorney fee and cost award to the prevailing

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defendants on a special motion to strike. Cal. Civ. Proc. Code § 425.16(c). The court previously

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granted the special motion to strike filed by cross-defendants Connie Bowlin, the Estate of Ed

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Bowlin, Aviation Autographs, and Bowlin & Associates, Inc. (collectively “Bowlins”). Order,

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ECF No. 338 (granting ECF No. 283). The Bowlins now seek an award totaling $49,892.33. See

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Mot., ECF No. 340; Reply, ECF No. 358.

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The party responsible for paying any awarded fees, Victoria Yeager, opposes,

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arguing the Bowlins are entitled to no more than $1,506.50. Opp’n, ECF No. 354. As explained

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below, the court AWARDS the Bowlins $20,053.43 in fees and costs.

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I.

BACKGROUND

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Multiple orders in this case detail relevant background information. See ECF

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Nos. 263, 306, 338-39, 357. The court therefore dispenses with a background section here, and

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relies on the information in the prior orders.

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II.

LEGAL STANDARD
As noted, the Bowlins succeeded on their special anti-SLAPP1 motion to strike

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and are thus statutorily entitled to a cost and fee award. Cal. Civ. Proc. Code § 425.16(c)

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(providing “a prevailing defendant on a special motion to strike shall be entitled to recover his or

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her attorney’s fees and costs.”). It is the court’s job to calculate a “reasonable” sum. Robertson

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v. Rodriguez, 36 Cal. App. 4th 347, 362 (1995). California law governs the inquiry. See

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Metabolife Int’l, Inc. v. Wornick, 213 F. Supp. 2d 1220, 1221-22 (S.D. Cal. 2002); Lee-Tzu Lin v.

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Dignity Health-Methodist Hosp. of Sacramento, No. CIV. S-14-0666 KJM, 2014 WL 5698448, at

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*1 (E.D. Cal. Nov. 4, 2014). California courts calculate a reasonable statutory fee award in an

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anti-SLAPP case using the familiar lodestar figure, which multiplies the number of hours counsel

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“reasonably expended” litigating the motion by counsel’s “reasonable hourly rate.” PLCM Group

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v. Drexler, 22 Cal.4th 1084, 1095 (2000). The lodestar figure is presumptively reasonable,

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Cunningham v. Cty. of Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988), but may be adjusted based

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on “such factors as the nature of the litigation, the complexity of the issues, the experience and

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expertise of counsel and the amount of time involved.” Wilkerson v. Sullivan, 99 Cal. App. 4th

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443, 448 (2002) (citations omitted).

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Here, 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
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SLAPP is shorthand for a strategic lawsuit against public participation—a lawsuit
designed to chill or punish a party’s exercise of constitutional rights to free speech and to petition
the government for redress of grievances. See Cal. Civ. Proc. Code § 425.16.
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sum of $47,204.33); Reply at 5, 11 (adding $2,688.00 incurred in drafting the reply). 2 As noted,

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Mrs. Yeager contends the Bowlins are entitled to no more than $1,506.50. Opp’n at 11. The

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court’s independent analysis demonstrates an award between these two sums is justified.

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III.

LODESTAR CALCULATION

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A. Reasonable Number of Hours

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The first step in the lodestar analysis is determining how many hours counsel

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reasonably expended drafting the motions at issue. As the prevailing party, the Bowlins have the

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“burden of submitting billing records to establish that the number of hours [they have] requested

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[is] reasonable.” See Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013) (citation

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omitted).

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The Bowlins submit billing records for two attorneys, Mr. Todd Noonan and Ms.

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Jaqueline Loyd, and one paralegal, Mr. Thomas McManus. Mot. at 8-9; Noonan Decl., ECF No.

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341, ¶¶ 12-13. The Bowlins request fees for 92.3 hours total: 64.3 hours of Mr. Noonan’s time;

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17.7 hours of Ms. Loyd’s time; and 10.3 hours of Mr. McManus’s time. Noonan Decl. ¶ 13;

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Reply at 11.

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Although the billing records are the “starting point” for the “hours reasonably

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expended” component of the lodestar calculation, the court is not bound by this number or this

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evidence. Christian Research Inst. v. Alnor, 165 Cal. App. 4th 1315, 1324 (2008) (citation and

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quotation marks omitted); see Prison Legal News v. Schwarzenegger, 608 F.3d 446, 453 (9th Cir.

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2010) (The court “‘has a great deal of discretion’” in determining reasonableness of the hours

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claimed) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992)); cf. Ketchum v.

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Moses, 24 Cal. 4th 1122, 1138 (2001) (“To the extent a trial court is concerned that a particular

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award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable

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fee altogether.”). The court may, for instance, “reduce the hours if it concludes the attorneys

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performed work unrelated to the motion at issue, or work that was unnecessary, excessive or

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As explained below, the Bowlins attach no declaration or billing invoice to support the
additional hours purportedly incurred in drafting the reply. See Reply at 11.
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duplicative in light of the issues presented.” 569 E. Cty. Boulevard LLC v. Backcountry Against

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the Dump, Inc., 6 Cal. App. 5th 426, 440 (2016) (citation omitted).

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Here, the court elects to reduce the claimed hours. The Bowlins were litigating

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three motions simultaneously. See ECF Nos. 283, 284, 288 (motion to dismiss, anti-SLAPP

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motion, and motion to declare Victoria Yeager a vexatious litigant, all filed on Oct. 3, 2017). As

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detailed below, several of the Bowlins’ billing entries conflate counsel’s work on the motions

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such that the court cannot with precision ascertain what percentage of the billing entries are

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“inextricably intertwined” with the anti-SLAPP motion. The lack of precision alone can support

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a reduction in a requested award. See Backcountry Against the Dump, 6 Cal. App. 5th at 440

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(“[The court] may reduce the hours if it concludes the attorneys performed work unrelated to the

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anti-SLAPP motion” or “work that was unnecessary or duplicative or excessive in light of the

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issues fairly presented.”) (citations omitted), as modified on denial of reh’g (Dec. 29, 2016); cf.

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Fitbit, Inc. v. Laguna 2, LLC, No. 17-CV-00079-EMC, 2018 WL 306724, at *8-9 (N.D. Cal. Jan.

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5, 2018) (noting same concern where work on anti-SLAPP motion overlapped with motion to

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dismiss), reconsideration denied, 2018 WL 620121 (N.D. Cal. Jan. 30, 2018); Uriarte v. Bostic,

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No. 15CV1606-MMA (PCL), 2017 WL 3387612, at *3 (S.D. Cal. Aug. 7, 2017) (noting where

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parties litigate several related motions, the risk of inefficient or duplicative efforts is heightened

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as is the need for thorough fee documentation).

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Specifically, the following billing entries do not clearly identify compensable work

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dedicated to the anti-SLAPP motion alone: Mr. Noonan reportedly spent 3.5 hours reviewing

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“prior docket entries and Yeager filings”; outlining and refining “potential defenses, including

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potential SLAPP and vexatious litigant motions”; and outlining a “letter to V. Yeager re same.”

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Ex. D, ECF No. 341-4 at 2. Mr. Noonan also reportedly spent 3.4 hours revising a “demand letter

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to V. Yeager”; corresponding with “V. Yeager . . . C. Bowlin . . . and M. Serlin3”; analyzing

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“AT&T docket and procedural defenses”; outlining “responsive motions”; drafting a “stipulation

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to extend time to respond”; and holding a “telephone conference with M. Serlin” and another

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Connie Bowlin hired attorney Mark Serlin in a previous collection action against the
Yeagers. Noonan Decl. ¶ 18.
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“with V. Yeager re requested dismissal of action.” Ex. G, ECF No. 341-7 at 2. Ms. Loyd

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reportedly spent 5.6 hours meeting with Mr. Noonan “re: upcoming motions, including SLAPP

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motion and Rule 12(b) motion”; reading “relevant background pleadings”; and revising the

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“motion to dismiss and related sections of SLAPP motion.” Ex. E, ECF No. 341-5 at 2.

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Because these billing entries are too vague to attribute to preparation of the anti-

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SLAPP motion, separate from the other simultaneously prepared motions, the court deducts these

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hours from the lodestar calculation. See Lee-Tzu, 2014 WL 5698448, at *5 (deciding the same);

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Braden v. BH Fin. Servs., Inc., C 13–02287 CRB, 2014 WL 892897, at *5 (N.D. Cal. Mar.4,

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2014) (same); see also Bell v. Vista Unified Sch. Dist., 82 Cal. App. 4th 672, 689 (2000) (if

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billing entries are vague, the trial may “simply cast them aside.”); accord Chalmers v. City of Los

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Angeles, 796 F.2d 1205, 1210, amended on denial of reh’g, 808 F.2d 1373 (9th Cir. 1986)

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(“Those hours may be reduced by the court where documentation of the hours is inadequate”).

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Additionally, because the Bowlins attach no billing invoice or declaration

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pertaining to the additional four hours of Mr. Noonan’s time and one hour of Mr. McManus’s

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time claimed in drafting the reply brief, see Reply at 11, the court further subtracts these five

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hours from the requested total. See also Noonan Decl. ¶ 12 (listing hours spent on anti-SLAPP

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briefing and initial attorney fee motion, but not the attorney fee reply brief, which was not yet

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drafted).

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These deductions reduce Mr. Noonan’s hours from 64.3 to 53.4, Ms. Loyd’s hours

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from 17.7 to 12.1, and Mr. McManus’s hours from 10.3 to 9.3. The total hours expended on the

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anti-SLAPP motion and instant attorney fee motion, including paralegal time, is thus reduced

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from 92.3 to 74.8. This total, while on the high end, is reasonable in the context of this heavily

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litigated case. See Lee-Tzu, 2014 WL 5698448, at *4-7 (awarding legal fees for 71.66 hours

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incurred anti-SLAPP motion and noting such awards vary across cases from 40 hours to 75

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hours); see also Maughan v. Google Tech., Inc., 143 Cal. App. 4th 1242 (2006) (finding “a

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reasonable time” spent on anti-SLAPP motion and fees motion is “approximately 50 hours or one

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attorney work week”).

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/////
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B. Reasonable Hourly Rate
Having determined counsel’s reasonably expended hours, the court assesses the

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reasonable hourly rate. The Bowlins again have the burden to show their requested hourly rates

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are “in line with those prevailing in the community for similar services by lawyers of reasonably

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comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).

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The “relevant community” for the purposes of the lodestar calculation is “the forum in which the

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district court sits.” Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013) (citation

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and quotation marks omitted).

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Here, the relevant forum is Sacramento. The Bowlins seek an hourly rate of $600

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for Mr. Noonan, $369 for Ms. Loyd, and $288 for Mr. McManus. See Noonan Decl. ¶ 16. At all

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relevant times, Mr. Noonan was a partner with approximately 23 years of complex civil litigation

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experience; Ms. Loyd was an associate who graduated from law school in 2015; Mr. McManus

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was a paralegal with over three decades of experience. Noonan Decl. ¶¶ 19-21. As explained

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below, each requested rate is unreasonably high.

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1. Mr. Noonan: Experienced Partner

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The requested hourly rate of $600 for Mr. Noonan is unreasonably high for this

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forum. To support this rate, the Bowlins cite almost exclusively class-action suits involving

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complexities exceeding this case. See Mot. at 9-10. Even in complex class-action lawsuits, local

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courts consider $600 a high hourly rate. See, e.g., Ontiveros v. Zamora, 303 F.R.D. 356, 374

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(E.D. Cal. 2014) (listing cases and noting in complex class action, the requested rates of $495 to

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$650 “are high for even the most experienced attorneys in the Eastern District”). Case law

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determining reasonable hourly rates in anti-SLAPP cases within the court’s Sacramento division

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is sparse, but the court may nonetheless assign a fee based on its own knowledge and familiarity

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with the legal market, factoring in the attorney’s experience and skill; the difficulty or complexity

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of the litigation to which that skill was applied; and the rates determined reasonable in other

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cases. Heritage Pacific Financial, LLC v. Monroy, 215 Cal. App. 4th 972, 1009 (2013) (citations

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omitted); accord Moreno v. City of Sacramento, 534 F.3d 1106, 1114-15 (9th Cir. 2008).

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Here, the court finds $300 is the appropriate hourly rate for Mr. Noonan. See

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O’Campo v. Ghoman, No. 2:08-CV-1624-KJM-DB(PS), 2017 WL 3225574, at *7 (E.D. Cal. July

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31, 2017) (awarding $300 rate for lead attorney with 35-years’ experience in ADA case; noting

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“the overwhelming, if not unanimous, weight of authority . . . is that the current prevailing market

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hourly rate in this community for similar work performed by attorneys of comparable skill,

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experience, and reputation . . . is $250-$300 per hour”), report and recommendation adopted,

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2017 WL 6502778 (E.D. Cal. Sept. 28, 2017); see Johnson v. Patel, No. 2:15-cv-2298-MCE-

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EFB, 2017 WL 999462, at *3 (E.D. Cal. Mar. 15, 2017) (finding “the prevailing Sacramento rate”

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to be $250-$300; noting the court has “no reason to believe” the rate had “measurably increased”

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over last two years); McCarty v. Humphrey, No. 2:13-CV-00431-KJM-AC, 2016 WL 4899194, at

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*5 (E.D. Cal. Sept. 15, 2016) (determining $300 hourly rate is reasonable for attorney with

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extensive experience who founded the law firm); Johnson v. San, No. 15-162, 2015 WL 7188245,

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at *5 (E.D. Cal. Nov. 16, 2015) (same), report and recommendation adopted, 2016 WL 659791

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(Feb. 18, 2016); Lee-Tzi Lin, 2014 WL 5698448, *3-4 (awarding $350 hourly rate in anti-SLAPP

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case); Crowe v. Gogineni, 2:11–CV–3438-JAM-DAD, 2014 WL 130488, at *4 (E.D. Cal. Jan.

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13, 2014) (same; noting lead partner frequently filed anti-SLAPP motions to strike), report and

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recommendation adopted, 2014 WL 1513277 (E.D. Cal. April 16, 2014); cf. Backcountry Against

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the Dump, 6 Cal. App. 5th at 437 (affirming $275 hourly rate for “seasoned attorneys” in anti-

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SLAPP case in San Diego, a more expensive market than Sacramento).

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Here, the anti-SLAPP motion was not particularly complex. See ECF No. 283 (25

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pages but analysis largely mirroring related dismissal motion, ECF No. 284). The motion was

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based on a Cross-Complaint filed by pro se litigant Victoria Yeager, which the court deemed to

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be a frivolous filing. See Order, ECF No. 338, at 12 (dismissing cross-claims as frivolous). Mr.

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Noonan effectively concedes an associate could have done the work on this motion, but given his

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familiarity and history with this case he elected to be the primary attorney “despite his seniority.”

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Noonan Decl. ¶¶ 3-4. Thus, while acknowledging Mr. Noonan has 23 years of experience, this

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particular motion does not showcase the skill and expertise sufficient to depart from the

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prevailing rates for legal work of similar complexity. See Johnson v. Guedoir, No. 2:14-CV7

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00930-TLN-AC, 2017 WL 3172994, at *5 (E.D. Cal. July 26, 2017) (deciding similarly). This

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matter warrants an hourly rate of no more than $300.

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2. Ms. Loyd: Junior Associate

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The requested hourly rate of $398 for Ms. Loyd is also high. Ms. Loyd is a junior

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associate who graduated from law school in the last three years. Noonan Decl. ¶ 20. The

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Bowlins include no information as to the date Ms. Loyd became a licensed attorney. The court

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judicially notices the State Bar of California website, which shows Ms. Loyd was admitted to

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practice on November 25, 2015, see http://members.calbar.ca.gov/fal/Member/Detail/305126 (last

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accessed Mar. 30, 2018), and therefore had been an associate for under a year when she billed the

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hours claimed here. See Exs. E & F, ECF No. 341 (invoicing Loyd’s hours from September and

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October 2016); see also TBK Bank, SSB v. Singh, No. 1:17-CV-00868-LJO-BAM, 2018 WL

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1064357, at *8 (E.D. Cal. Feb. 23, 2018) (judicially noticing attorney’s admittance date from

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state bar website).

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In the Sacramento division, the average rate for junior associates is between $150

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and $175. See, e.g., Johnson v. Saleh, No. 2:16-CV-00617-JAM-KJN, 2018 WL 1157494, at *3

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(E.D. Cal. Mar. 5, 2018) (awarding $150 hourly rate for junior associate in Sacramento); Johnson

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v. Borbeau, No. 2:14-CV-1730 JAM-EFB, 2017 WL 6379605, at *2 (E.D. Cal. Dec. 11, 2017)

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(same); Ontiveros, 303 F.R.D. at 374 (“a reasonable rate for associates working in this

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community is typically between $150 and $175 per hour”); Johnson v. Wayside Prop., Inc., No.

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2:13-cv-1610-WBS-AC, 2014 WL 6634324, at *8 (E.D. Cal. Nov. 21, 2014) (awarding $150

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hourly rate for associate with under two years’ experience; finding $150 to $175 is the generally

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accepted local rate). Ms. Loyd’s reasonable hourly rate is $150.

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3. Mr. McManus: Experienced Paralegal

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The requested hourly rate of $288 for Mr. McManus is likewise too high. The

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court instead applies the reasonable hourly rate for paralegals in this division, which is $100. See

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Rashid v. Dep’t of Homeland Sec., No. 2:14-CV-2109-JAM-KJN, 2017 WL 4959430, at *6 (E.D.

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Cal. Nov. 1, 2017) (awarding $100 hourly rate for paralegals); Lara v. Berryhill, No. 2:16-CV-

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0034 DB, 2017 WL 4679989, at *3 (E.D. Cal. Oct. 18, 2017) (listing cases, and holding “the
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prevailing market rate for work performed by paralegals in this district is $100 per hour.”);

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McCarty v. Humphrey, No. 2:13-cv-0431 KJM AC, 2016 WL 4899194, at *5 (E.D. Cal. Sept. 15,

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2016) (awarding paralegal rates of $85 and $100 per hour).

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C. Lodestar Conclusion

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The reasonable hourly rates of $300 for Mr. Noonan, $150 for Ms. Loyd and $100

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for Mr. McManus multiplied by the reasonable hours determined above yields a lodestar

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calculation as follows: $16,020.00 for Mr. Noonan (53.4 hours x $300 rate); $1,815.00 for Ms.

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Loyd (12.1 hours x $150 rate); and $930.00 for McManus (9.3 hours x $100 rate), for a combined

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lodestar sum of $18,765.00.

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If warranted, the court may further adjust this lodestar. See Ketchum, 24 Cal.4th at

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1132, 1138. The court finds no further adjustment warranted here. The lodestar adequately

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compensates the Bowlins’ counsel for the skill, experience, and performance required to defend

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the Bowlins here. See Elem Indian Colony of Pomo Indians of the Sulphur Bank Rancheria v.

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Ceiba Legal, LLP, 230 F. Supp. 3d 1146, 1154-55 (N.D. Cal. 2017) (deciding similarly).

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IV.

FEES AND COSTS

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California’s anti-SLAPP statute mandates a cost award in addition to legal fees.

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Cal. Civ. Proc. Code § 425.16(c) (mandating award for “attorney’s fees and costs”). Here, the

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Bowlins request $1,151.08 in related legal expenses and $137.355 in costs, and attach an invoice

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supporting each listed expense. See Mot. at 12-13; Noonan Decl. ¶ 34 & Exs. E & F (invoicing

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$101.15 for ordering transcript of proceeding before magistrate judge; $36.20 Pacer charge for

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downloading docket filings; $1,151,08 in Westlaw charges for research on October 1, 2016,

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related to anti-SLAPP motion). Here, Mr. Noonan allocates the research fees between those

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incurred for the anti-SLAPP motion and the other two simultaneously litigated motions. Noonan

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Decl. ¶ 34 (“Bowlin seeks recovery of $1,151.08 in Westlaw expenses . . . out of the total of

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$2,723.38 in legal research expenses” as that is the portion “directly allocable to research used in

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The Bowlins have referenced this figure as $137.35 (Mot. at 2), $137.45 (Reply at 11)
and $137.50 (Mot. at 13). The court uses $137.35, which is the figure that matches the associated
invoice ($101.15 + $36.20).
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connection with the SLAPP Motion.”); see also Trustees of Const. Ind. & Laborers v. Redland

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Ins. Co., 460 F.3d 1253, 1258-59 (9th Cir. 2006) (noting the “growing circuit consensus” that

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“reasonable charges for computerized research may be recovered as attorney’s fees”). The court

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accepts these claims as well-supported and reasonable.

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V.

CONCLUSION
The court GRANTS the Bowlins’ motion for attorneys’ fees, but ADJUSTS the

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lodestar figure to find reasonable an attorney fee award of $18,765.00, plus $1,151.08 in related

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legal expenses, and $137.35 in costs. The total sum awarded is therefore $20,053.43 with

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payment due to the Bowlins by May 4, 2018.

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IT IS SO ORDERED.

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This resolves ECF No. 340.

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DATED: March 30, 2018.

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UNITED STATES DISTRICT JUDGE

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