Minichino v. First California Realty et al

Filing 65

ORDER by Judge Edward M. Chen Granting 60 Motion for Fees and Costs. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 12/14/2012)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

MARIE MINICHINO,

9

Plaintiff,

10

ORDER GRANTING DEFENDANTS’
MOTION FOR FEES AND COSTS

v.

11
For the Northern District of California

United States District Court

No. C-11-5185 EMC

FIRST CALIFORNIA REALTY, et al.,

12

Defendant.
___________________________________/

(Docket No. 60)

13
14
15

I.

16

INTRODUCTION

Plaintiff Marie Minichino, a pro se litigant, filed suit against First California Realty, Inc.,

17

Sherrie Faber, and Dan Faber (collectively “Defendants”) on October 24, 2011, asserting

18

unspecified claims arising out of Defendants’ alleged breach of a contract to sell Plaintiff’s property

19

located in Marin, California. See Compl. (Docket No. 1). Plaintiff’s complaint asks for $2 million

20

in damages based on, inter alia, Defendants’ alleged mismanagement of the property during listing

21

(e.g., failing to lock the property after showings and trimming the trees too much, causing a loss of

22

privacy), and harm resulting from a lawsuit Defendants filed against Plaintiff in state court that

23

allegedly caused Plaintiff to lose her home and its contents. Id. Defendants filed a Motion to

24

Dismiss and Motion to Strike the Complaint (“Mot. Strike”) (Docket No. 33), which this Court

25

granted by an order dated September 24, 2012 (Docket No. 58).

26

///

27

///

28

///

1

Defendants’ Motion to Strike was brought pursuant to California Code of Civil Procedure §

2

425.16, California’s “Anti-SLAPP”1 provision, which allows a prevailing defendant to recover

3

attorney’s fees and costs. See id. § 425.16 (c)(1). Now pending before the Court is Defendants’

4

Motion for Attorney Fees and Costs (“Fee Mot.”) (Docket No. 60), in which Defendants ask for a

5

fee award of $12,813.00. Having considered the parties briefs’ and accompanying submissions, the

6

Court finds this matter suitable for disposition without oral argument pursuant to Civil Local Rule

7

7–1(b). For the reasons set forth below, the Court GRANTS Defendants’ motion and awards

8

$12,813.00 in fees and costs.

9

FACTUAL & PROCEDURAL BACKGROUND

Plaintiff alleges that she hired Defendants to sell real property located at 174 San Carlos

11
For the Northern District of California

United States District Court

10

II.

Avenue in Sausalito, California. Compl. at 3. After entering into an exclusive Residential Listing

12

Agreement, each party alleges that the other failed to fulfill its respective duties under the contract.

13

See Compl.; see also Defendants’ State Court Complaint (“Marin Compl.”) (Docket No. 33, Ex. 1).

14

Defendants thereafter filed a breach of contract action in Marin Superior Court seeking $65,576.50

15

in damages. Marin Compl. at 2. After filing a cross-complaint in the Marin action and three

16

successive bankruptcy petitions in California and Hawaii,2 Plaintiff filed the instant action.

17

In her complaint, Plaintiff alleges that the Defendants failed to adequately perform their

18

obligations under the parties’ 2008 Residential Listing Agreement, in which Ms. Minichino granted

19

Defendants the exclusive right to sell Plaintiff’s Marin property for $1.45 million. See Compl. at 3;

20

see also Residential Listing Agreement (appended to Defendants’ State Court Complaint as Ex. A).

21

Plaintiff also alleges that she lost her home and its contents “as [a] result of constant harassment and

22

costs of [Defendants’ state court] lawsuit.” Compl. at 3 (original in all caps). In her demand for

23

relief, Plaintiff states that she “is asking the Court to award 2 million USD, for the replacement of

24
25
1

26

SLAPP is an acronym for Strategic Lawsuit Against Public Participation.

2

27
28

See In Re Marie E. Minichino, Bankruptcy Petition 10-12533, U.S. Bankruptcy Court for
the Northern District of California; In Re Marie E. Minichino, Bankruptcy Petition 10-13020, U.S.
Bankruptcy Court for the Northern District of California; In Re Marie E. Minichino, Bankruptcy
Petition 11-01628, U.S. Bankruptcy Court for the District of Hawaii.

2

1

my home and its contents as the cost of the case made me lose my home due to its expenses.”

2

Compl. at 4 (original in all caps).

3

Defendants filed a Motion to Dismiss and Motion to Strike the Complaint, arguing that

4

Plaintiff’s complaint violated California’s Anti-SLAPP statute, and that it ought to be dismissed

5

pursuant to Fed. R. Civ. P 12(b)(6) for failing to state a claim upon which relief can be granted. See

6

Mot. Strike. This Court granted both motions,3 denied Plaintiff leave to amend her complaint

7

because she failed to produce any “evidence or argument suggesting that amendment would change

8

the outcome,”4 see Order Granting Defendants’ Motion to Dismiss (“Order”) (Docket No. 58) at 8

9

(quoting Graham-Sult v. Clainos, C 10-04877 CW, 2011 WL 2531201, at *9 (N.D. Cal. June 24,
2011)), and entered judgment in favor of the Defendants, see Judgment (Docket No. 59). In granting

11
For the Northern District of California

United States District Court

10

Defendants’ Motion to Strike, the Court observed that “as Plaintiff herself admits in the complaint

12

and in opposition, at bottom, her complaint stems from the alleged harm caused by Defendant’s

13

lawsuit filed against Plaintiff in state court,” an act which is “protected by the Anti-SLAPP statute.”

14

Order at 4 (citing Navellier v. Sletten, 29 Cal. 4th 82, 90 (2002)). The Court further noted that “[a]

15

prevailing defendant under § 425.16 [the Anti-SLAPP statute] is entitled to recoup its costs of suit.”

16

Order at 4. Defendants now seek a fee award of $12,813.00 to recover their costs under that

17

provision. See Fee Mot. Plaintiff did not file an opposition to Defendants’ motion.

18

III.

19

A.

DISCUSSION

Legal Standard

20

State law normally determines a party’s entitlement to an award of attorney fees and costs.

21

See Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 260 (1975) (“[I]n an ordinary

22
23

3

24

her allegations wholly fail to state a claim as against any Defendant.
Plaintiff fails to allege even the most basic elements of a plausible
claim, such as identifying any cause(s) of action and describing each
separate Defendant’s conduct that purportedly caused her harm.

25
26
27

The Court dismissed Plaintiff’s complaint under Rule 12(b)(6), in part, because:

Order Granting Defendants’ Motion to Dismiss (Docket No. 58) at 4.
4

28

Plaintiff filed a Motion for Leave to file an Amended Complaint while the parties were in
the midst of briefing Defendants’ Motion to Strike. See Docket No. 57.

3

1

diversity case where the state law does not run counter to a valid federal statute or rule of court, and

2

usually it will not, state law denying the right to attorney’s fees or giving a right thereto, which

3

reflects a substantial policy of the state, should be followed.”) (citations omitted). Federal courts

4

look to state law standards in weighing the merits of a motion for fees and costs under California’s

5

Anti-SLAPP statute. See Metabolife Int’l, Inc. v. Wornick, 213 F. Supp. 2d 1220 (S.D. Cal. 2002)

6

(granting award of fees and costs under § 425.16). See also U.S. ex rel. Newsham v. Lockheed

7

Missiles & Space Co., Inc., 190 F.3d 963, 972-73 (9th Cir. 1999) (finding no “direct collision”

8

between California’s Anti-SLAPP statute and the Federal Rules such as would prevent its

9

application in federal court).
“[A] prevailing defendant on a special motion to strike” brought under California’s Anti-

11
For the Northern District of California

United States District Court

10

SLAPP statute “shall be entitled to recover his or her attorney’s fees and costs.” Cal. Civ. Proc.

12

Code § 425.16 (c). See also Ketchum v. Moses, 24 Cal. 4th 1122, 1131 (2001) (“[A]ny SLAPP

13

defendant who brings a successful motion to strike is entitled to mandatory attorney fees.”). The

14

award of attorney fees to the party bringing a successful special motion to strike under § 425.16 is

15

“mandatory.” Ketchum v. Moses, 24 Cal.4th at 1131. “The dual purpose of this mandatory attorney

16

fee award is to discourage meritless lawsuits and to provide financial relief to the victim of a SLAPP

17

lawsuit ‘by imposing the litigation costs on the party seeking to chill the valid exercise of the

18

constitutional rights of freedom of speech and petition for the redress of grievances.’” City of Los

19

Angeles v. Animal Def. League, 135 Cal. App. 4th 606, 628 (2006) (quoting Ketchum v. Moses, at

20

1131).

21

An award of attorney fees and costs must be reasonable. Robertson v. Rodriguez, 36 Cal.

22

App. 4th 347, 362 (1995) (“We readily conclude section 425.16 similarly authorizes an award of

23

reasonable attorney fees to the prevailing party.”) (emphasis in original). A court has broad

24

discretion in determining the reasonable amount of attorney fees and costs to award. See Dove

25

Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal. App. 4th 777, 785 (1996). However, a court

26

must have “substantial evidence” before it to support the amount of fees awarded. See Macias v.

27

Hartwell, 55 Cal. App. 4th 669, 676 (1997). “The experienced trial judge is the best judge of the

28

value of professional services rendered in his court, and while his judgment is of course subject to

4

1

review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.”

2

Ketchum v. Moses, 24 Cal.4th at 1132 (citations and quotation marks omitted).

3

B.

4

Reasonableness of Requested Fee Award
Defendants unquestionably prevailed on their special motion to strike, see Order, and are

5

therefore entitled to a reasonable award of fees and costs pursuant to § 425.16 (c). Fee awards under

6

California’s Anti-SLAPP statute are calculated using the “lodestar” approach. Ketchum v. Moses,

7

24 Cal. 4th at 1136 (“we are persuaded that the lodestar adjustment approach should be applied to

8

fee awards under Code of Civil Procedure section 425.16”). To calculate the lodestar, “a district

9

court begins it[s] calculation of fees by multiplying the number of hours reasonably spent on the
litigation by a reasonable hourly rate.” McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir.

11
For the Northern District of California

United States District Court

10

2009) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). “The resulting number is frequently

12

called the ‘lodestar’ amount.” Id. (citing City of Riverside v. Rivera, 477 U.S. 561, 568 (1986)).

13

“The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in

14

order to fix the fee at the fair market value for the legal services provided.” PLCM Group v.

15

Drexler, 22 Cal. 4th 1084, 1095 (2000) (citing Serrano v. Priest, 20 Cal. 3d 25, 49 (1977)). Such

16

factors include “the nature of the litigation, its difficulty, the amount involved, the skill required in

17

its handling, the skill employed, the attention given, the success or failure, and other circumstances

18

in the case.” Id. at 1096 (quoting Melnyk v. Robledo, 64 Cal. App. 3d 618, 623-624 (1976)).

19

1.

20

For the purposes of calculating the ‘lodestar’ figure, the Court has discretion in determining

Number of Hours Expended

21

the number of hours reasonably expended. See Chalmers v. City of Los Angeles, 796 F.2d 1221; see

22

also Hensley v. Eckerhart, 461 U.S. at 437 (stating that a district court has discretion in determining

23

the amount of a fee award which is “appropriate in view of the district court’s superior

24

understanding of the litigation and the desirability of avoiding frequent appellate review of what

25

essentially are factual matters”). The fee applicant bears the burden of “documenting the

26

appropriate hours expended” in the litigation and therefore must “submit evidence supporting the

27

hours worked.” Hensley, 461 U.S. at 433, 437. Reasonably expended time is generally time that

28

“could reasonably have been billed to a private client.” Moreno v. City of Sacramento, 534 F.3d

5

1

1106, 1111 (9th Cir. 2008). To this end, the applicant must exercise “sound billing judgment”

2

regarding the number of hours worked, and a court should exclude from a fee applicant’s initial fee

3

calculation hours that were not “reasonably expended,” such as those incurred from overstaffing, or

4

“hours that are excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 433.

5

Unlike other fee shifting provisions, California’s Anti-SLAPP statute allows a movant to

6

recover “only those fees and costs incurred in connection with the motion to strike, not the entire

7

action.” Paul for Council v. Hanyecz, 85 Cal. App. 4th 1356, 1362 Fn. 4 (2001). See also Lafayette

8

Morehouse, Inc. v. Chronicle Publ’g Co., 39 Cal. App. 4th 1379, 1383 (1995) (“the Legislature

9

intended that a prevailing defendant on a motion to strike be allowed to recover attorney fees and
costs only on the motion to strike, not the entire suit”). However, where a defendant files “motions

11
For the Northern District of California

United States District Court

10

to strike and to dismiss” that are “based entirely on a common factual scenario . . . [a]ll expenses

12

incurred on common issues of fact and law qualify for an award of attorneys’ fees under the

13

anti-SLAPP statute and those fees need not be apportioned.” Kearney v. Foley & Lardner, 553 F.

14

Supp. 2d 1178, 1184 (S.D. Cal. 2008) (noting further that “mere common issues of fact are

15

insufficient to award all fees when legal theories do not overlap or are not inextricably intertwined”).

16

See also Metabolife Int’l, Inc. v. Wornick, 213 F. Supp. 2d 1220, 1223 (S.D. Cal. 2002) (holding that

17

where an “entire lawsuit is subject to the anti-SLAPP motion because all causes of action . . . relate

18

to free speech and all of the activity by [movant’s] attorneys occurred in the context of, and were

19

inextricably intertwined with, the anti-SLAPP motion,” then “[a]ll of [movant’s] attorney fees and

20

expenses were incurred ‘in connection with’ the anti-SLAPP motion.”).

21

In this matter, the Court finds that Defendants’ motion to dismiss, brought simultaneously

22

with the motion to strike, was “inextricably intertwined” with Defendant’s Anti-SLAPP motion.

23

The Court’s pervious order granting both motions observed how both the motion to strike and the

24

motion to dismiss rested on a common factual scenario – that Plaintiff was allegedly harmed by

25

Defendants’ prosecution of their breach of contract action in Marin Superior Court. See Order at 4

26

(“beyond the fact of the underlying suit itself, Plaintiff offers no facts as to how Defendants’ conduct

27

in that suit caused her harm”). The Court’s analysis of each of Defendants’ motions centered on

28

whether Plaintiff’s complaint stated a valid cause of action. See Order at 4 (granting Defendants’

6

1

motion to strike under the Anti-SLAPP statute because “Plaintiff cannot demonstrate a probability of

2

prevailing on the merits because her allegations wholly fail to state a claim as against any

3

Defendant”); Order at 7 (finding “dismissal is warranted under Rule 12(b)(6)” because, “[a]s stated

4

above with respect to the motion to strike, Plaintiff has failed to state a claim upon which relief can

5

be granted.”). Since the two motions were “inextricably intertwined,” focusing on Plaintiff’s charge

6

that the state court action caused her some form of compensable harm, Defendants are entitled to

7

recover the fees and costs incurred in bringing both motions. Further, Defendants are entitled to

8

recover the fees and costs incurred in bringing the instant fee motion. See Ketchum, 24 Cal. 4th at

9

1141 (“an award of fees may include not only the fees incurred with respect to the underlying claim,
but also the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure

11
For the Northern District of California

United States District Court

10

section 425.16”).

12

Defendants have submitted billing records for Nicholas A. Subias and Michael Betz,

13

indicating that they spent a total of 27.4 hours on the motions to strike, dismiss, and the instant fee

14

motion. See Declaration of Nicholas A Subias (Docket No. 61), Ex. A (providing 27.2 hours of time

15

entries for Mr. Subias, and 0.2 hours for Mr. Betz). Given the disorganized nature of Plaintiff’s

16

complaint and her ill-defined claims, as well as the fact that litigating this case required counsel for

17

Defendants to review not only the related state court action but also Plaintiff’s three bankruptcy

18

actions, the number of hours proposed by Defendants for inclusion in the lodestar figure appears

19

reasonable. Defendants’ detailed time records clearly show that the hours sought for inclusion in the

20

lodestar pertain only to the three Anti-SLAPP related motions. While Plaintiff initiated this suit in

21

October 2011, each of Defendants’ time entries is dated June 27, 2012, or later (six days before the

22

motions to dismiss and strike were filed). Considering the relatively limited duration of this case

23

and the detailed nature of the billing records submitted by counsel, the Court finds that all 27.4 hours

24

claimed by Defendants were both reasonably and necessarily incurred in bringing the Anti-SLAPP

25

motion.

26

2.

27

In assessing a reasonable hourly rate for the lodestar figure, courts consider the prevailing

28

Hourly Fee Claimed

market rate in the community for similar services by lawyers of “reasonably comparable skill,

7

1

experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895-96, and Fn. 11 (1984). The

2

relevant community for purposes of determining the prevailing market rate is generally the “forum

3

in which the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir.

4

2008). “Affidavits of the [movant]s’ attorney and other attorneys regarding prevailing fees in the

5

community, and rate determinations in other cases, particularly those setting a rate for the

6

[movant]s’ attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers of

7

America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). “The defendant may introduce

8

rebuttal evidence in support of a lower hourly rate.” Sorenson v. Mink, 239 F.3d 1140, 1145 (9th

9

Cir. 2001). The burden is on the fee applicant to produce satisfactory evidence “that the requested
rates are in line with those prevailing in the community for similar services by lawyers of reasonably

11
For the Northern District of California

United States District Court

10

comparable skill, experience, and reputation.” Blum, 465 U.S. at 895 Fn. 11.

12

Here, Defendants propose hourly rates of $450 for Mr. Subias for work billed prior to July 1,

13

2012, the date his firm (Allen Matkins) introduced rate increases, and $480 for work billed after that

14

date. Subias Decl. ¶ 8a. Mr. Subias is senior counsel at his firm and claims “extensive experience in

15

litigating cases involving real estate contracts.” Id. Defendants propose an hourly rate of $555 for

16

Mr. Betz, who is a partner at his firm and claims “substantial experience in litigating cases involving

17

the sale of real property.” Id. ¶ 8b. The Subias declaration does not indicate how long each

18

individual has been practicing law, nor does it cite to any published cases awarding attorney fees at

19

the rates sought by these two attorneys. However, publically available California State Bar records

20

indicate Mr. Betz has been practicing law for approximately fourteen years, and Mr. Subias has been

21

practicing for almost nine years. The Subias declaration indicates that Defendants’ counsel has

22

“conducted a survey of market rates of similarly situated firms,” and that based on the results of that

23

survey, the hourly rates sought by these two attorneys “are at market rate” for the San Francisco

24

area. Id. ¶ 9. The declaration further states that “the rates charged to Defendant[s] for legal services

25

in this matter are the same rates that Allen Matkins regularly charges and collects from its other

26

clients.” Id.

27
28

Defendants have not provided results of their survey or any other market data showing “that
the requested rates are in line with those prevailing in the community for similar services by lawyers

8

1

of reasonably comparable skill, experience, and reputation.” Blum, 465 U.S. at 895 Fn. 11. They

2

cite Moore v. James H. Matthews & Co., for the proposition that counsels’ customary billing rate is

3

the “best evidence of the prevailing market rate.” Motion for Fees and Costs at 6. In relevant part,

4

Moore held:

5

[a]n alternative approach to calculating fee awards, termed “lodestar”
analysis, involves the calculation of a “lodestar” figure based on
multiplying the number of hours expended by counsel times the
prevailing billing rate for comparable legal services in the community.
Unless counsel is working outside his or her normal area of practice,
the billing-rate multiplier is, for practical reasons, usually counsel’s
normal billing rate. Billing rates usually reflect, in at least a general
way, counsel’s reputation and status (i.e., as partner, associate, or law
clerk).

6
7
8
9

Moore v. James H. Matthews & Co., 682 F.2d 830, 840 (9th Cir. 1982) (emphasis added). To say

11
For the Northern District of California

United States District Court

10

that an attorney’s normal billing rate usually is, for practical reasons, equivalent to “the prevailing

12

billing rate for comparable legal services in the community” does not necessarily establish that an

13

attorney’s customary billing rate is the “best evidence of the prevailing market rate.”

14

Defendants also cite MBNA Am. Bank, N.A. v. Gorman, 147 Cal. App. 4th Supp. 1, 13 (Cal.

15

App. Dep’t. Super. Ct. 2006), a non-binding case from the superior court appellate division,5 for the

16

proposition that a “moving party may satisfy its burden [to prove the appropriate market rate]

17

through its own affidavits, without additional evidence.” Gorman, in turn, cites to Davis v. City of

18

San Diego, 106 Cal. App. 4th 893 (2003), in which a California Court of Appeal rejected a

19

defendant’s assertion that a trial court “should have required [plaintiff] to present evidence beyond

20

its counsel’s declaration sufficient to show its ‘requested rates’ were ‘in line with those prevailing in

21

the community for similar services by lawyers of reasonably comparable skill, experience and

22

reputation,’” because Blum, the case cited to for that proposition, “involved judicial interpretations

23

of federal statutory law” not at issue in that matter. Davis v. City of San Diego, 106 Cal. App. 4th at

24

903 (citing Blum v. Stenson, 465 U.S. at 895-96 and Fn. 11). However, even in Davis, the Court of

25

Appeal described how plaintiff had “submitted evidence that its counsel had ample experience in

26
27
28

5

See Smith v. Novato Unified Sch. Dist., A122105, 2009 WL 1486727 at * 8 (Cal. Ct. App.
May 28, 2009) (Not Officially Published) (“[R]eliance on Gorman is puzzling for several reasons.
First, cases from the superior court appellate division are not binding authority.”).

9

1

[the relevant field of law]; [plaintiff’s] counsel was one of a few California attorneys with practices

2

concentrated in that field of law; and counsel’s $225 hourly rate had been determined to be

3

reasonable in other matters,” in finding that the trial court’s decision to award fees at that rate was

4

reasonable. Davis v. City of San Diego, 106 Cal. App. 4th at 904 (emphasis added). Defendants in

5

this matter have not submitted similar evidence substantiating the reasonableness of their claimed

6

hourly rates. Traced to their points of origin, Defendants’ cited authorities do not support the

7

proposition that an attorney’s customary billing rates are the “best evidence of the prevailing market

8

rate.” Mot. for Fees and Costs at 6.

normal billing rate,” Mandel v. Lackner, 92 Cal. App. 3d 747, 761 (Cal. Ct. App. 1979) disapproved

11
For the Northern District of California

While it may be true that “[t]he value of an attorney’s time generally is reflected in his

10

United States District Court

9

of by Serrano v. Unruh, 32 Cal. 3d 621 (1982), it remains the movant’s burden to establish that such

12

a normal billing rate is reasonable. See Blum v. Stenson, 465 U.S. at 897 (the applicant for a fee

13

award carries the burden of showing that the claimed rate is reasonable). See also Ketchum v.

14

Moses, 24 Cal. 4th 1122, 1139 (2001) (“the reasonable hourly rate used to calculate the lodestar is

15

the product of a multiplicity of factors ... the level of skill necessary, time limitations, the amount to

16

be obtained in the litigation, the attorney’s reputation, and the undesirability of the case,” not simply

17

counsel’s customary billing rate) (quoting Margolin v. Regional Planning Com. 134 Cal. App. 3d

18

999, 1004 (1982)) (internal quotation marks omitted). Without more information about prevailing

19

hourly rates of pay for attorneys in this market, Defendants’ declaration alone does not provide this

20

Court with the requisite “substantial evidence” necessary to support a fee award. See Macias v.

21

Hartwell, 55 Cal. App. 4th 669, 676 (1997). See also Ryan v. Editions Ltd. W., Inc., C 06-04812

22

PSG, 2011 WL 3207041 (N.D. Cal. July 27, 2011) (“The party seeking fees bears the burden of

23

establishing a right to them. The moving party must present ‘substantial evidence’ to meet the

24

burden.”) (citing Macias v. Hartwell, 55 Cal. App. 4th at 676).

25

However, this Court can rely on its experience to conclude that the hourly rates requested

26

here are in line with fee awards made in other recent cases in the San Francisco area, and thus reflect

27

prevailing market rates. See Ketchum v. Moses, 24 Cal. 4th at 1132 (“The experienced trial judge is

28

the best judge of the value of professional services rendered in his court”). Considering Mr. Betz’s

10

requested rate of $555 per hour falls within the range of other recent fee awards in this district. See

3

e.g. Armstrong v. Brown, 805 F. Supp. 2d 918 (N.D. Cal. 2011) (awarding $560 per hour in attorney

4

fees to a partner with fourteen years of experience); Stonebrae, L.P. v. Toll Bros., Inc., C-08-0221-

5

EMC, 2011 WL 1334444 (N.D. Cal. Apr. 7, 2011) (awarding $520 per hour in attorney fees to a

6

partner with thirteen years of experience). Similarly, in light of Mr. Subias’s nine years of

7

experience and status as senior counsel at his firm, the Court concludes that his requested rate of

8

$450-480 per hour falls within the range of recent fee awards for attorneys of similar stature and

9

experience. See e.g. Californians for Disability Rights v. California Dept. of Transp., C 06-05125

10

SBA MEJ, 2010 WL 8746910 (N.D. Cal. Dec. 13, 2010) report and recommendation adopted sub

11
For the Northern District of California

fourteen years of practice and status as a partner in his firm, the Court finds that Mr. Betz’s

2

United States District Court

1

nom. Californians for Disability Rights, Inc. v. California Dept. of Transp., C 06-5125 SBA, 2011

12

WL 8180376 (N.D. Cal. Feb. 2, 2011) (awarding $560 per hour in attorney fees to an attorney with

13

nine years of experience); Armstrong v. Brown, 805 F. Supp. 2d 918 (N.D. Cal. 2011) (awarding

14

$415 per hour in attorney fees to an attorney with nine years of experience).

15

C.

16

Lodestar Figure
Having concluded that Defendants’ proposed hourly rates of pay accurately reflect market

17

rates that other similarly skilled attorneys would receive in this region, the hours claimed by

18

Defendants for these three motions result in an initial lodestar figure of $12,813.00. Defendants’

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///

11

1

time records and the declaration supporting their motion for fees and costs can be summarized as

2

follows:

3

Charges Billed prior to July 1, 2012

4

Attorney/Staff Member

Hours Worked

Hourly Rate

Total

5

Nicholas Subias

11.8

$450

$5,310.00

Subtotal

6
7
8
9

11.8

$5,310.00

Charges Billed after July 1, 2012
Michael Betz

0.2

$555.00

$111.00

Nicholas Subias

15.4

$480.00

$7,392.00

Subtotal

15.6

$7,503.00

Total

27.4

$12,813.00

11
For the Northern District of California

United States District Court

10

12

Under California law, “the lodestar is the basic fee for comparable legal services in the community.”

13

Ketchum v. Moses, 24 Cal. 4th at 1132. A court may adjust the lodestar “based on factors including

14

. . . (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting

15

them, (3) the extent to which the nature of the litigation precluded other employment by the

16

attorneys, [and] (4) the contingent nature of the fee award.” Id. (citing Serrano v. Priest, 20 Cal. 3d

17

25, 49 (1977)). Defendants’ motion for fees and costs does not indicate that any adjustment to the

18

lodestar is warranted so as to “fix [the] fee at the fair market value for [this] particular action.”

19

Ketchum, 24 Cal. 4th at 1132. Nor has the Court’s review of this case revealed any factor

20

suggesting that an adjustment to the lodestar would be appropriate in this matter. Although the

21

Defendants’ motion is styled as one for both “fees and costs,” Defendants have not requested an

22

award for costs.

23

IV.

CONCLUSION

24

For the reasons stated above, this Court finds that Defendants have demonstrated their

25

entitlement to receive a fee award under Cal. Code Civ. Pro. § 425.16. The record shows that

26

Defendants prevailed on their special motion to strike, and are therefore entitled to a mandatory

27

award of reasonable fees and costs. Defendants have submitted records adequately documenting the

28

number of hours spent litigating their Anti-SLAPP motion. Relying on the Court’s experience in

12

1

adjudicating fee awards, the Court finds that Defendants’ proposed hourly rates are consistent with

2

market rates that attorneys of similar skill, experience, and reputation would command in the San

3

Francisco Bay area. Therefore Defendants’ motion for fees and costs is GRANTED, and the Court

4

awards Defendants the sum of $12,813.00.

5

This Order disposes of Docket No. 60.

6
7

IT IS SO ORDERED.

8
9

Dated: December 14, 2012
_________________________
EDWARD M. CHEN
United States District Judge

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

13