Low v. Trump University, LLC et al

Filing 404

ORDER Granting in Part and Denying in Part #331 Plaintiff/Counter Defendant Tarla Makaeff's Request for Fees and Costs. The Court awards Makaeff $790,083.40 in fees; the Court awards Makaeff $8,695.81 in costs; the Court Grants #368 Makaeff's ex parte application to file a limited response. Signed by Judge Gonzalo P. Curiel on 4/9/15. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TARLA MAKAEFF, et al., on Behalf
of Herself and All Others Similarly
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Case No. 10cv0940 GPC (WVG)

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ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFF/COUNTER
DEFENDANT TARLA
MAKAEFF’S REQUEST FOR
FEES AND COSTS

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Plaintiffs,
vs.
TRUMP UNIVERSITY, LLC, (aka
Trump Entrepreneur Initiative) a New
York Limited Liability Company,
DONALD J. TRUMP, and DOES 1
through 50, inclusive,

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[Dkt. No. 331.]

Defendants.

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TRUMP UNIVERSITY, LLC,
Counterclaimant,
vs.
TARLA MAKAEFF, and DOES 1
through 10, inclusive,
Counter Defendant.

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INTRODUCTION
Before the Court is Plaintiff/Counter Defendant Tarla Makaeff’s (“Makaeff”)
Bill of Fees and Costs pursuant to California Code of Civil Procedure § 425.16,
commonly known as California’s Anti-Strategic Lawsuits Against Public Participation
(“anti-SLAPP”) statute.

(Dkt. No. 331.)
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Defendant/Counterclaimant Trump
10cv0940 GPC (WVG)

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University, LLC (“Trump University”) has opposed. (Dkt. No. 335.) Pursuant to this

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Court’s order, the Parties also submitted supplemental briefing. (Dkt. Nos. 358, 364,

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367.) For the reasons set forth below, the Court hereby GRANTS IN PART AND

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DENIES IN PART Makaeff’s request for fees and costs. The Court AWARDS

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Makaeff fees in the amount of $790,083.40, and costs in the amount of $8,695.81.
BACKGROUND

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Beginning in August 2008, Makaeff attended Trump University’s real estate

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programs.

(Dkt. No. 1 ¶ 10.) On April 30, 2010, Makaeff brought a class action

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lawsuit against Trump University accusing it of, among other things, deceptive

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business practices. (Dkt. No. 1.) On May 26, 2010, Trump University filed a

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defamation counterclaim against Makaeff. (Dkt. No. 4.)

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On June 30, 2010, Makaeff filed a special motion to strike Trump University’s

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defamation counterclaim under California’s anti-SLAPP statute, California Code of

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Civil Procedure § 425.16. (Dkt. No. 14.)

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On August 23, 2010, Judge Irma E. Gonzalez denied Makaeff’s anti-SLAPP

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motion. (Dkt. No. 24.) Makaeff’s subsequent motion for reconsideration was denied

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on September 20, 2010. (Dkt. No. 40.)

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On January 3, 2011, Makaeff appealed the denial of her anti-SLAPP motion to

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the Ninth Circuit (Dkt. No. 43), which reversed and remanded on April 17, 2013.1

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Makaeff v. Trump Univ., LLC, 715 F.3d 254, 271 (9th Cir. 2013). In addition, the

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Ninth Circuit granted Makaeff’s unopposed request that the issue of appellate

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attorney’s fees be transferred to the district court. (Dkt. No. 284.) On June 16, 2014,

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this Court granted Makaeff’s anti-SLAPP motion to strike Trump University’s

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defamation counterclaim. (Dkt. No. 328.)

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On July 3, 2014, pursuant to this Court’s direction, Makaeff filed a Bill of Fees

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and Costs to substantiate the amount of reasonable attorney’s fees and costs associated

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190.)

In the interim, the case was transferred to the undersigned judge. (Dkt. No.
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10cv0940 GPC (WVG)

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with bringing the anti-SLAPP motion, related appeal, and supplemental briefing. (Id.

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at 18-19; Dkt. No. 331.)2 Trump University filed an opposition on July 18, 2014. (Dkt.

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No. 335.) On July 22, 2014, Makaeff filed a “Notice of Deficiency and Intended Non-

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Response Absent Court Request.” (Dkt. No. 336.)

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On November 18, 2014, this Court ordered Makaeff to submit “additional

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briefing detailing the amount of time each attorney spent on each task” and further

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“substantiating the costs requested.” (Dkt. No. 358.) Makaeff filed her supplemental

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briefing on December 15, 2014, and Trump University filed its supplemental

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opposition on December 23, 2014.3 (Dkt. Nos. 364, 367.) On January 7, 2015,

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Makaeff filed an ex parte application for leave to file a limited response.4 (Dkt. No.

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368.)
LEGAL STANDARD

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Under California’s anti-SLAPP statute, “a prevailing defendant on a special

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motion to strike shall be entitled to recover his or her attorney’s fees and costs.”

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Cal. Civ. Proc. Code § 425.16(c)(1) (emphasis added); see also Ketchum v. Moses, 17

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P.3d 735, 741 (Cal. 2001) (“[A]ny SLAPP defendant who brings a successful motion

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to strike is entitled to mandatory attorney fees.”).

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To determine a reasonable attorney’s fee award for an anti-SLAPP motion, the

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California Supreme Court has found that “the lodestar adjustment approach should be

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applied.” Ketchum, 17 P.3d at 744. For the lodestar approach, the Court begins by

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“multiplying the number of hours reasonably spent on the litigation by a reasonable

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hourly rate.” McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (citing

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Hensley v. Eckerhart, 461 U.S. 424, 433(1983)).

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Page number citations such as this one are to the page numbers reflected on the
Court’s CM/ECF system and not to page numbers assigned by the parties.
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On December 16, 2014, the Court granted Makaeff’s motion to quash Trump
University’s subpoenas of Plaintiffs’ counsels’ time records, and denied Trump
University’s motion to compel the production of documents. (Dkt. No. 366.)
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The Court GRANTS Makaeff’s unopposed ex parte application.
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10cv0940 GPC (WVG)

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An award of fees and costs in an anti-SLAPP case must be reasonable, and courts

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have broad discretion in determining what is reasonable. See Metabolife Int’l, Inc. v.

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Wornick, 213 F. Supp. 2d 1220,1222 (S.D. Cal. 2002).
DISCUSSION

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In the instant case, Makaeff requests an award of attorney’s fees in the amount

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of $1,333,004.25, based on 2,226.35 hours incurred in the process of strategizing,

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researching and briefing the anti-SLAPP motion, subsequent successful appeal and

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opposing Trump University’s petition for rehearing en banc, discovery, supplemental

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briefing, and the fee brief. (Dkt. No. 331 at 16, 18; Dkt. No. 331 (Jensen Decl.) ¶ 58;

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Dkt. No. 331-2 (Eck Decl.) ¶ 55; Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 2; Dkt. No.

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364-2 (Eck Supp. Decl.) ¶ 2.) Additionally, Makaeff requests costs in the amount of

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$9,209.27. (Dkt. No. 331 at 18; Dkt. No. 331 (Jensen Decl.) ¶ 59; Dkt. No. 331-2 (Eck

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Decl.) ¶ 57; Dkt. No. 364 at 19 n.11; Dkt. No. 364-1 (Jensen Supp. Decl.) ¶¶ 2, 31 n.1;

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Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 33.) Trump University counters that the Court

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should deny Makaeff’s fee request entirely, or substantially reduce the fees to no more

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than $147,675.00, and deny all costs. (Dkt. No. 335 at 27; Dkt. No. 367 at 27.)

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I.

Evidentiary Objections and Motions to Strike

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As a preliminary matter, the Court considers Trump University’s evidentiary

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objections and motions to strike. Trump University objects to the majority of the two

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supplemental declarations of Makaeff’s counsel, Rachel L. Jensen and Amber L. Eck,

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on the ground that they contain inadmissible hearsay. (Dkt. Nos. 367-3, 367-4.)

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Specifically, Trump University contends that the portions of the two supplemental

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declarations regarding the time spent by other attorneys and paralegals – who did not

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submit their own declarations – are inadmissible hearsay because the two declarants

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do not purport to have personally observed the amount of time spent by these other

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individuals.

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Trump University relies on the Ninth Circuit’s recent decision in Muniz v. United

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Parcel Serv., Inc., 738 F.3d 214, 222-23 (9th Cir. 2013), which held that an attorney’s
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10cv0940 GPC (WVG)

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declaration regarding his paralegal’s hours was inadmissible hearsay. In Muniz, the

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declaring attorney averred that he watched the paralegal reconstruct her hours and the

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spreadsheet he attached to his declaration showed her hours. Id. The Ninth Circuit

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held that the attorney’s declaration stating the number of hours worked by the paralegal

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was inadmissible hearsay because it merely repeated the paralegal’s out of court

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statements concerning the hours she had worked. Id. at 223. Therefore, the Ninth

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Circuit vacated in part and remanded to the district court “to determine, in the first

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instance, whether any hearsay exception applies to [the attorney’s] declaration

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regarding fees for paralegal work in this case.” Id. at 227.

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Trump University argues that here, similar to Muniz, the two supplemental

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declarations regarding the time spent and tasks performed by other individuals are

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inadmissible hearsay because they are “undoubtedly based on out of court statements

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or [the declarant’s] own opinion” and are not based on “personal knowledge or

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observation.” (Dkt. No. 367-3 at 3; Dkt. No. 367-4 at 3.) See also Knickerbocker v.

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Corinthian Colls., No. 12-cv-1142-JLR, 2014 WL 3927227, at *3 n.2 (W.D. Wash.

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Aug. 12, 2014) (attorney’s declaration of another attorney’s hours worked was

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inadmissible hearsay based on Muniz); Kranson v. Fed. Express Corp., No. 11-cv-

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5826-YGR, 2013 WL 6503308, at *5 (N.D. Cal. Dec. 11, 2013) (attorney’s declaration

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of paralegal’s hours worked was inadmissible hearsay based on Muniz).

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Makaeff counters that Muniz is distinguishable because the initial and

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supplemental declarations of Makaeff’s counsel, Ms. Jensen and Ms. Eck, regarding

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other individuals are based on their personal knowledge working on the matters,

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overseeing the work of others, and their personal review of their respective law firms’

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business records. (Dkt. No. 368-1 at 5-6.) See Banga v. First USA, NA, 29 F. Supp.

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3d 1270, 1275 n.2 (N.D. Cal. 2014) (“[P]ersonal knowledge can come from the review

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of the contents of business records and an affiant may testify to acts that she did not

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personally observe but which have been described in business records.” (citing Aniel

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v. GMAC Mortg., LLC, No. 12-cv-4201-SBA, 2012 WL 5373388, *6 (N.D. Cal. Oct.
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10cv0940 GPC (WVG)

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30, 2012))). Both Ms. Jensen and Ms. Eck declare that they personally reviewed their

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firm’s time and expense records maintained in the ordinary course of business. (Dkt.

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No. 331-1 (Jensen Decl.) ¶¶ 43, 54-55, 61; Dkt. No. 331-2 (Eck Decl.) ¶ 53; Dkt. No.

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364-1 (Jensen Supp. Decl.) ¶ 4).

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The Court agrees with Makaeff that the portions of the two supplemental

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declarations regarding the time spent by other attorneys and paralegals are not

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inadmissible hearsay because they are based on Ms. Jensen’s and Ms. Eck’s personal

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knowledge, including their overseeing of the work of others and their personal review

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of business records. See Banga, 29 F. Supp. 3d at 1275 n.2; see also Fed. R. Evid.

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803(6) (outlining business records exception to hearsay rule).

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Trump University also argues that the supplemental declarations disregard the

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best evidence rule by describing the contents of writings (i.e., time and expense

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records) not submitted into evidence. (Dkt. No. 367-3 at 3; Dkt. No. 367-4 at 3) See

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Fed. R. Evid. 1002. However, under California law, “an award of attorney fees may

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be based on counsel’s declarations, without production of detailed time records.”

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Raining Data Corp. v. Barrenechea, 97 Cal. Rptr. 3d 196, 205 (Ct. App. 2009).

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Accordingly, the Court DENIES Trump University’s evidentiary objections to

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and motion to strike portions of the supplemental declarations of Ms. Jensen and Ms.

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Eck on the grounds of hearsay and best evidence, as well as lack of foundation, lack

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of personal knowledge, and improper opinion.5

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II.

Reasonable Attorney’s Fees

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To determine a reasonable attorney’s fee award under the lodestar approach, the

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Court first considers whether Makaeff’s counsel’s hourly rates and number of hours

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Trump University also filed evidentiary objections to the original Declarations
of Rachel L. Jensen, Amber L. Eck, Carol A. Sobel, Eric Alan Issacson, and Karl Olson
in support of Makaeff’s Bill of Fees and Costs. (Dkt. Nos. 335-2, 335-3, 335-4, 335-5
27 and 335-6.) Makaeff argues that the objections are “not well-taken.” (Dkt. No. 336 at
n.1.) The Court notes the objections. To the extent that the evidence is proper under
28 the Federal Rules of Evidence, the Court considered the evidence. To the extent the
evidence is not proper, the Court did not consider it.
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expended are both reasonable. The Court then considers Makaeff’s request for an

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upward multiplier.

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A.

Reasonable Hourly Rates

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To determine the reasonable hourly rate, the Court looks to the “rate prevailing

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in the community for similar work performed by attorneys of comparable skill,

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experience, and reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th

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Cir. 2008) (internal quotation marks and citation omitted). In this case, the relevant

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community is the Southern District of California because it is “the forum in which the

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district court sits.” Id. The burden is on the party requesting attorney’s fees to produce

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“satisfactory evidence, in addition to the affidavits of its counsel, that the requested

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rates are in line with those prevailing in the community for similar services of lawyers

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of reasonably comparable skill and reputation.” Jordan v. Multnomah County, 815

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F.2d 1258, 1263 (9th Cir. 1987); see also Blum v. Stenson, 465 U.S. 886, 895 n.11

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(1984).

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[movant’s] attorney and other attorneys regarding prevailing fees in the community,

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

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[movant’s] attorney.” United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d

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403, 407 (9th Cir. 1990).

Evidence that the Court should consider includes “[a]ffidavits of the

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Here, Makaeff’s counsel seek attorney hourly rates ranging from $250 to $440

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for associates, and $600 to $825 for partners. (Dkt. No. 331-1 (Jensen Decl.) ¶ 58; Dkt.

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No. 331-2 (Eck Decl.) ¶ 55.) Makaeff’s counsel argues that its rates are reasonable

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because the two law firms have extensive class action experience, and their hourly rates

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are comparable to those that have been previously approved by this Court and in this

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District in class action settlements. (Dkt. No. 331 at 14-15; Dkt. No. 331-1 (Jensen

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Decl., Ex. 4-7); Dkt. No. 331-2 (Eck Decl., Ex. 3-4.) Makaeff’s counsel also points to

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the National Law Journal’s annual large law firm rate survey, which does not list any

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San Diego law firms for 2013, and lists only one San Diego law firm, Luce Forward

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Hamilton & Scripps LLC (“Luce Forward”), for 2007, who at that time charged
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10cv0940 GPC (WVG)

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associate rates of $220 to $450 per hour, and partner rates of $325 to $725 per hour.

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(Dkt. No. 331 at 14; Dkt. No. 331-1 (Jensen Decl., Ex. 3) at 120.) Makaeff’s counsel

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contends its rates are within this range, given that the survey rates are from seven years

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ago. (Dkt. No. 331 at 14.) Further, Makaeff’s counsel argues that even if their rates

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are above average for the Southern District, it is justified by their credentials, track

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record and the contingent nature of the litigation. (Id. at 14-15.)

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Trump University argues that Makaeff’s counsel’s rates are unreasonable and

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should be reduced to a blended rate of $300 per hour. (Dkt. No. 335 at 18-21.) Trump

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University points to Makaeff’s own submission of a “Real Rate Report Snapshot,”

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which lists for 2012: (1) San Diego average hourly rates of $278.30 for associates, and

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$443.69 for partners; (2) law firms of 101-250 attorneys average hourly rates of

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$277.81 for associates, and $422.35 for partners; (3) San Diego partner average hourly

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rates of $483.88 for fewer than 21 years experience; (4) San Diego associate average

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hourly rates of $318.52 for three to fewer than seven years experience; and (5) San

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Diego litigation average hourly rates of $197.88 for associates, and $279.03 for

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partners. (Dkt. No. 331-4 (Olson Decl., Ex. A) at 27, 29, 33, 37, 62.) Trump

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University also notes that Makaeff’s own expert declares that her counsel’s rates

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“appear to be higher than the average billing rates in San Diego.” (Id. ¶ 14.) In

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addition, Trump University argues that Makaeff’s counsel’s rates should be reduced

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because her counsel admits that they had no experience with anti-SLAPP motions, and

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because they were improperly staffed with too many partners working on a simple

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motion. (Dkt. No. 335 at 19.) Trump University further relies on other cases in this

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District awarding attorney’s fees for anti-SLAPP motions which used lower hourly

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rates. (Id. at 19-20.) See, e.g., Ravet v. Stern, No. 07-cv-31-JLS (CAB), 2010 WL

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3076290, at *5 (S.D. Cal. Aug. 6, 2010) (finding $350 hourly rate reasonable for anti-

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SLAPP motion based on attorney declarations, “the complex and lengthy nature of this

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case, and the Court’s familiarity of the rates charged in the San Diego community”).

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The Court determines that Makaeff has produced satisfactory evidence that the

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hourly rates for its associates and partners are reasonable. The hourly rates are

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consistent with Luce Forward’s 2007 rates in the National Law Journal survey, with

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those previously approved by this Court and in this District in class action settlements,

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and with this Court’s familiarity of the rates charged in the San Diego community.

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Trump University’s reliance on the average rates in the Real Rate Report Snapshot

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survey and other anti-SLAPP motion cases are misplaced given the complex and

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lengthy nature of the anti-SLAPP motion in the instant case. Makaeff has also

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provided the declaration of an attorney with extensive experience with anti-SLAPP

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motions who opines that “the experience, credentials, and effectiveness of Makaeff’s

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counsel in this case justify above-average billing rates.” (Dkt. No. 331-4 (Olson Decl.)

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¶ 14.) As such, the Court finds that the associate and partner rates charged by Makaeff

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are reasonable.

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However, the Court determines that Makaeff has failed to produce satisfactory

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evidence to support its requested rates for staff attorneys and paralegals. Makaeff seeks

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hourly rates of $350 for “staff attorneys” and ranging from $250 to $295 for paralegals.

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(Dkt. No. 331-1 (Jensen Decl.) ¶ 58; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 2.)6 Makaeff

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has not provided sufficient evidence of the prevailing market rates for staff attorneys

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and paralegals in this District. The only supporting evidence the Court located in the

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Makaeff’s filings regarding prevailing rates in this District was that in prior class action

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settlements (which used the common fund approach rather than the lodestar approach),

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Makaeff’s counsel submitted hourly rates of $380 for a “project attorney” and $280 for

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a “paralegal / law clerk” in one action, and $175 for a paralegal in two other actions.

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(Dkt. No. 331-1 (Jensen Decl. Ex. 7) at 211 ¶ 54; Dkt. No. 331-2 (Eck Decl. Ex. 3-4)

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at 46 ¶ 3, 60 ¶ 6.) There is also some evidence regarding national rates for staff

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attorneys and paralegals, but it is Makaeff’s burden to show prevailing rates in this

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The Court notes that Ms. Eck’s initial declaration omitted the $125 in paralegal
fees. (Dkt. No. 331-2 (Eck. Decl.) ¶ 55.)
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District. (Dkt. No. 331-1 (Jensen Decl. Ex. 2) at 98, 100; Dkt. No. 331-4 (Olson Decl.

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Ex. A) at 22.)

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In addition, Makaeff has not provided any evidence as to the background and

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experience of the staff attorneys or paralegals, which might allow the Court to conduct

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an independent review to determine the prevailing rate. For example, in Brighton

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Collectibles, Inc. v. Coldwater Creek Inc., No. 06-cv-1848-H (POR), 2009 WL 160235,

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at * 4 (S.D. Cal. Jan. 20, 2009), the court concluded that $90 to $210 per hour was

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reasonable for paralegal work. However, $90 to $210 per hour is a wide range

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depending on the education, skill and experience of the particular paralegal. Here,

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Makaeff offers no information or documentation justifying the rates for the staff

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attorneys and paralegals, such as a curriculum vitae, resume, or description of the

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individual’s educational background or litigation experience. For instance, for the staff

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attorneys, there is no indication whether they are admitted to practice law in California,

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and if so when. In the absence of any evidence as to the background and experience

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of the staff attorneys and paralegals, the Court is unable to determine the prevailing

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rate.

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Therefore, because Makaeff has failed to carry her burden to demonstrate that

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the staff attorney and paralegal hourly rates are reasonable, the Court DENIES

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Makaeff’s request for staff attorney and paralegal fees. See Zest IP Holdings, LLC v.

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Implant Direct Mfg., LLC, No. 10-cv-541-GPC (WVG), 2014 WL 6851612, at *6 (S.D.

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Cal. Dec. 3, 2014) (denying paralegal fees because insufficient facts were presented as

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to the paralegal hourly rate); Brighton Collectibles, Inc. v. RK Texas Leather Mfg., No.

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10-cv-419-GPC (WVG), 2014 WL 5438532, at *5 (S.D. Cal. Oct. 24, 2014) (same);

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J & J Sports Prods., Inc. v. Ortiz, No. 12-cv-05766-LHK, 2014 WL 1266267, at *3-4

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(N.D. Cal. Mar.24, 2014) (denying attorney’s fees, including for “research attorney,”

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because plaintiff failed to provide evidence of prevailing market rates or attorneys’

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experience).

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In sum, the Court concludes that Makaeff has shown that the hourly rates for

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associates and partners are reasonable, but has not shown that the staff attorney and

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paralegal hourly rates are reasonable. Accordingly, the Court EXCLUDES the staff

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attorney total fees of $121,047.50 and the paralegal total fees of $90,542.50. (Dkt. No.

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331-1 (Jensen Decl.) ¶ 58; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 2.)

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B.

Reasonable Hours Expended

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The party seeking fees bears the “burden of establishing entitlement to an award

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and documenting the appropriate hours expended and hourly rates.” ComputerXpress,

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Inc. v. Jackson, 113 Cal. Rptr. 2d 625, 649 (Ct. App. 2001) (internal quotation marks

10

and citation omitted). Although “it is not necessary to provide detailed billing

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timesheets to support an award of attorney fees under the lodestar method,”

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Concepcion v. Amscan Holdings, Inc., 168 Cal. Rptr. 3d 40, 53 (Ct. App. 2014), the

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“evidence should allow the court to consider whether the case was overstaffed, how

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much time the attorneys spent on particular claims and whether the hours were

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reasonably expended.” Christian Research Inst. v. Alnor, 81 Cal. Rptr. 3d 866, 870

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(Ct. App. 2008). To that end the Court may require a prevailing party to produce

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records sufficient to provide “a proper basis for determining how much time was spent

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on particular claims.” ComputerXpress, Inc., 113 Cal. Rptr. 2d at 649 (internal

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quotation marks and citation omitted). The Court should exclude hours “‘that are

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excessive, redundant, or otherwise unnecessary.’” McCown, 565 F.3d at 1102 (quoting

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Hensley, 461 U.S. at 434).

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The Court previously determined that the declarations submitted by Makaeff

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failed to provide enough information to ascertain if the hours expended on this case

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were reasonable because Makaeff’s attorneys provided only a summary chart showing

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the total amount of hours each individual spent on the anti-SLAPP litigation, and

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provided no showing of the specific tasks and the time spent on each task. (Dkt. No

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331-1 (Jensen Decl.) ¶ 58; Dkt. No. 331-2 (Eck. Decl.). ¶ 55; Dkt. No. 358.) As such,

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the Court ordered Makaeff to submit “additional briefing detailing the amount of time

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each attorney spent on each task.” (Dkt. No. 358 at 6.)

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In response, Makaeff has provided supplemental declarations for Ms. Jensen and

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Ms. Eck which divide the hours spent on the anti-SLAPP litigation into twenty-five

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procedural categories (e.g., initial anti-SLAPP motion before the district court, district

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court reply brief, etc.). (Dkt. No. 364-1 (Jensen Supp. Decl.); Dkt. No. 364-2 (Eck

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Supp. Decl.).) Trump University argues that these supplemental declarations still fail

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to provide sufficient information, and that the hours sought by Makaeff are

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unreasonable, and should be denied or substantially reduced, for three main reasons:

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(1) “lumped” descriptions of tasks; (2) duplicative hours; and (3) improper staffing.

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(Dkt. No. 367.) The Court considers each of Makaeff’s twenty-five procedural

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categories, and Trump University’s arguments, to determine whether the expended

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hours are reasonable.
1.

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Makaeff’s counsel states that the following amount of time was spent on the
initial anti-SLAPP motion by the various attorneys:7
Name

Law

Rachel Jensen
Paula Roach
Amber Eck
Helen Zeldes
Aaron Olsen

Firm
RGRD8
RGRD
ZHE
ZHE
ZHE

18
19
20
21
22
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Initial Anti-SLAPP Motion Before the District Court

Position

Hourly

Hours

Partner
Associate
Partner
Partner
Associate

Rate
$660
$360
$690
$600
$410

Expended
39.75
43.75
30.50
2.50
9.25

Amount
$26,235.00
$15,750.00
$21,045.00
$1,500.00
$5,550.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 5; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 4.)

25
26

Because it has already excluded all staff attorney and paralegal fees, the Court
does not include the 84.25 staff attorney hours and 21.50 paralegal hours. (Dkt. No.
27 364-1 (Jensen Supp. Decl.) ¶ 5.)
28

7

“RGRD” refers to Ms. Jensen’s firm, Robbins Geller Rudman & Dowd LLP.
“ZHE” refers to Ms. Eck’s firm, Zeldes Haeggquist & Eck, LLP.
8

- 12 -

10cv0940 GPC (WVG)

1

Ms. Jensen’s and Ms. Eck’s supplemental declarations provide the following

2

additional descriptions of the tasks performed. Ms. Jensen “spent several hours on the

3

phone with other practitioners and my co-counsel to formulate our strategy,” “met with

4

our team,” and “reviewed the research memoranda, read key cases, . . . made substantial

5

revisions to the motion, including drafting, and then . . . reviewed and revised the

6

supporting draft declarations.” (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 5; see also Dkt.

7

No. 331-1 (Jensen Decl.) ¶ 15.) Ms. Roach “provid[ed] a first draft of the opening

8

motion and the declarations.” (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 5; see also Dkt.

9

No. 331-1 (Jensen Decl.) ¶ 15.) Ms. Eck’s “firm’s” tasks involved “reviewing Trump

10

University’s counterclaim; conducting extensive legal research; conversations and

11

emails with defense counsel . . . requesting (unsuccessfully) that Trump University

12

provide copies of the letters it contended were defamatory; conducting factual research

13

and having numerous conversations with Tarla Makaeff regarding ascertaining the

14

allegedly defamatory documents; and assisting Tarla Makaeff in preparing a detailed

15

declaration.” (Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 4; see also Dkt. No. 331-2 (Eck

16

Decl.) ¶¶ 18-22.)

17

Trump University argues that these hours should be reduced because the

18

descriptions lump together the time spent on multiple tasks, preventing the Court from

19

determining if the hours spent are reasonable. (Dkt. No. 367 at 11.) For example, there

20

is no break down of how many hours Ms. Roach spent on providing a first draft of the

21

motion versus the declarations. (Id.) Trump University also argues that the time is

22

duplicative, with three partners, two associates, and one staff attorney working on the

23

motion. (Id.)

24

The Court agrees with Trump University that Makaeff’s lumping together of

25

time, rather than breaking down time by tasks, makes it difficult to assess whether the

26

time spent on each discrete task was reasonable. Overall, the time spent on the initial

27

anti-SLAPP motion seems high. The lumping together of tasks makes it hard to

28

evaluate whether all of the time spent was necessary. For example, it is impossible to
- 13 -

10cv0940 GPC (WVG)

1

determine how much time was spent on legal research, and as a result whether such

2

amount of time was reasonable.

3

Makaeff’s lumping together of multiple tasks is similar to “block billing.” See

4

Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945 n.2 (9th Cir. 2007) (“‘Block billing’

5

is ‘the time-keeping method by which each lawyer and legal assistant enters the total

6

daily time spent working on a case, rather than itemizing the time expended on specific

7

tasks.’” (citation omitted)). Although “block billing” is “not objectionable per se,” its

8

use may obscure “the nature of some of the work claimed.” Christian Research Inst.,

9

81 Cal. Rptr. 3d at 873-74. As such, courts have discretion to reduce blocked billed

10

hours because it “makes it more difficult to determine how much time was spent on

11

particular activities.” Welch, 480 F.3d at 948 (citing Role Models Am., Inc. v.

12

Brownlee, 353 F.3d 962, 971 (D.C. Cir. 2004) (reducing requested hours because

13

counsel’s practice of block billing “lump[ed] together multiple tasks, making it

14

impossible to evaluate their reasonableness”)); see also Heritage Pac. Fin., LLC v.

15

Monroy, 156 Cal. Rptr. 3d 26, 55 (Ct. App. 2013) (“Trial courts retain discretion to

16

penalize block billing when the practice prevents them from discerning which tasks are

17

compensable and which are not.”). When presented with block billing in a fee request,

18

“the trial court should exercise its discretion in assigning a reasonable percentage to the

19

entries or simply cast them aside.” Bell v. Vista Unified Sch. Dist., 98 Cal. Rptr. 2d

20

263, 275 (Ct. App. 2000). However, an across-the-board reduction on hours should not

21

be applied to all requested hours and should instead be specific to counsel’s block

22

billed hours, and the district court should “‘explain how or why . . . the reduction . . .

23

fairly balance[s]’ those hours that were actually billed in block format.” Welch, 480

24

F.3d at 948 (citation omitted).

25

The Court determines that a 20 percent reduction is warranted for the hours spent

26

on the initial anti-SLAPP motion because the lumping together of tasks makes it

27

difficult to evaluate whether a reasonable amount of time was expended. In Welch, the

28

Ninth Circuit approved of a 20 percent fee reduction for block billing because a
- 14 -

10cv0940 GPC (WVG)

1

California State Bar Committee report concluded that block billing “may increase time

2

by 10% to 30%” and 20 percent was in the “middle range.” Welch, 480 F.3d at 948.

3

Similarly here, the Court finds a 20 percent reduction warranted.9

4
5
6
7

The Court also excludes Ms. Zeldes’s and Mr. Olsen’s time because there is no
clear indication what tasks they performed.
Accordingly, the Court EXCLUDES $19,656.00 in fees for the initial antiSLAPP motion.
2.

8
9
10
11

Makaeff’s counsel states that the following amount of time was spent on the
district court reply brief by the various attorneys:10
Name

Law

Rachel Jensen
Paula Roach
Amber Eck

Firm
RGRD
RGRD
ZHE

12
13
14
15
16

District Court Reply Brief

Position

Hourly

Hours

Partner
Associate
Partner

Rate
$660
$360
$690

Expended
6.00
20.75
27.00

Amount
$3,960.00
$7,470.00
$18,630.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 6; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 5.)

17

Ms. Jensen’s and Ms. Eck’s supplemental declarations provide the following

18

additional descriptions of the tasks performed. Ms. Jensen “reviewed and edited

19

Makaeff’s supplemental declaration drafted by co-counsel.” (Dkt. No. 364-1 (Jensen

20

Supp. Decl.) ¶ 6; see also Dkt. No. 331-1 (Jensen Decl.) ¶ 17.) Ms. Roach “drafted the

21
22
23
24
25
26
27

The Court notes that Makaeff has offered to provide additional information to
the Court, including the underlying time entries and records. (Dkt. No, 364 at 9 n.5;
Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 3; Dkt. No. 364-2 (Eck Supp. Decl. ¶ 35.)
However, the Court has already generously provided Makaeff two opportunities to
offer sufficient evidence. Moreover, the burden of culling sufficient information from
contemporaneous records properly rests with the fee applicant, not the Court. See In
re Equity Funding Corp. of Am. Sec. Litig., 438 F. Supp. 1303, 1327 (C.D. Cal. 1977)
(“The burden is clearly on counsel to file adequately-documented applications for fees
and those who fail to meet that burden do so at their own risk.”). As such, the Court
will not entertain Makaeff’s offer to provide additional information.
9

Because it has already excluded all staff attorney and paralegal fees, the Court
does not include the 43.25 staff attorney hours and 16.50 paralegal hours. (Dkt. No.
364-1 (Jensen Supp. Decl.) ¶ 6.)
10

28

- 15 -

10cv0940 GPC (WVG)

1

reply brief.” (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 6; see also Dkt. No. 331-1 (Jensen

2

Decl.) ¶ 17.) Ms. Eck’s tasks involved “reviewing Trump University’s Opposition to

3

our Anti-SLAPP motion; conducting extensive legal research regarding the issues

4

involved; numerous conversations with Makaeff regarding relevant facts; review of

5

documents relating to the Bank of America letter and Better Business Bureau (‘BBB’)

6

letter that Trump University produced for the first time, attached to their opposition;

7

and assisting Makaeff in preparing a detailed supplemental declaration.” (Dkt. No.

8

364-2 (Eck Supp. Decl.) ¶ 5; see also Dkt. No. 331-2 (Eck Decl.) ¶¶ 23-24.)

9

Trump University argues that these hours should be reduced because Ms. Eck

10

has provided a lumped description of her numerous tasks, making it difficult to

11

determine whether the hours spent were reasonable. (Dkt. No. 367 at 12.) In addition,

12

Trump University argues that there appears to be duplication of efforts because two

13

partners worked on Makaeff’s declaration, and Ms. Eck spent time “conducting

14

extensive legal research” at the same time that a staff attorney was conducting legal

15

research. (Id.)

16

The Court agrees with Trump University that Ms. Eck’s hours should be reduced

17

due to the lumping together of tasks, which makes it difficult for the Court to determine

18

if the hours spent are reasonable. As such, for the reasons discussed above, the Court

19

applies a 20 percent reduction to Ms. Eck’s hours. See Welch, 480 F.3d at 948.

20

However, the Court does not reduce Ms. Jensen’s and Ms. Roach’s hours.
Accordingly, the Court EXCLUDES $3,726.00 in fees for the district court reply

21
22

brief.
3.

23
24
25

Opposition to Motion to Strike

Makaeff’s counsel states that the following amount of time was spent on the
opposition to Trump University’s motion to strike by the various attorneys:11

26
27
28

Because it has already excluded all paralegal fees, the Court does not include
the 4.25 paralegal hours. (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 7.)
11

- 16 -

10cv0940 GPC (WVG)

1

Name

Law

Rachel Jensen
Paula Roach
Amber Eck

Firm
RGRD
RGRD
ZHE

2
3
4
5
6

Position

Hourly

Hours

Partner
Associate
Partner

Rate
$660
$360
$690

Expended
1.50
2.75
9.75

Amount
$990.00
$990.00
$6,727.50

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 7; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 6.)

7

Ms. Jensen’s and Ms. Eck’s supplemental declarations provide the following

8

additional descriptions of the tasks performed. Ms. Jensen states that her “firm took

9

the lead in researching and drafting the opposition brief.” (Dkt. No. 364-1 (Jensen

10

Supp. Decl.) ¶ 7; see also Dkt. No. 331-1 (Jensen Decl.) ¶ 18.) Ms. Eck states that “we

11

were required to research, prepare, and file an Opposition to the motion to strike.”

12

(Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 6; see also Dkt. No. 331-2 (Eck Decl.) ¶ 25.)

13

Trump University argues that these hours should be reduced because the

14

descriptions lump together the time spent on multiple tasks, preventing the Court from

15

determining if the hours spent are reasonable. (Dkt. No. 367 at 12.) Trump University

16

also argues that the time spent by two firms researching and drafting is duplicative.

17

(Id.)

18

The Court agrees with Trump University that the hours should be reduced due

19

to lumping together of tasks, which makes it difficult for the Court to determine if the

20

hours spent are reasonable. For example, Ms. Jensen states that her counsel at her firm

21

“took the lead,” and yet Ms. Eck’s firm spent over twice as much time on the

22

opposition. Moreover, Ms. Eck vaguely describes tasks that “we” performed, even

23

though she is the only individual from her firm who expended hours. As such, the

24

Court applies a 20 percent reduction to the hours expended on the opposition to the

25

motion to strike. See Welch, 480 F.3d at 948.

26
27

In addition, the Court excludes Ms. Roach’s hours because there is no clear
indication what tasks she preformed.

28
- 17 -

10cv0940 GPC (WVG)

1
2

Accordingly, the Court EXCLUDES $2,533.50 in fees for the opposition to the
motion to strike.
4.

3
4
5
6

Makaeff’s counsel states that the following amount of time was spent on the
district court hearing regarding the anti-SLAPP motion by the various attorneys:
Name

Law

Rachel Jensen
Paula Roach
Amber Eck

Firm
RGRD
RGRD
ZHE

7
8
9
10
11

District Court Hearing and Preparation

Position

Hourly

Hours

Partner
Associate
Partner

Rate
$660
$360
$690

Expended
1.25
1.00
23.5

Amount
$825.00
$360.00
$16,215.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 8; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 7.)

12

Ms. Jensen’s and Ms. Eck’s supplemental declarations provide the following

13

additional descriptions of the tasks performed. Ms. Jensen’s “firm assisted co-counsel

14

with preparation for the hearing and reviewed Trump’s sur-reply.” (Dkt. No. 364-1

15

(Jensen Supp. Decl.) ¶ 8; see also Dkt. No. 331-1 (Jensen Decl.) ¶ 19.) Ms. Eck, who

16

“personally argued” the anti-SLAPP motion, “spent a substantial amount of time

17

preparing for the hearing, which included: additional research regarding the issues

18

involved; additional review and analysis of all cases cited in our briefs and Trump

19

University’s briefs; and further conversations with Makaeff.” (Dkt. No. 364-2 (Eck

20

Supp. Decl.) ¶ 7; see also Dkt. No. 331-2 (Eck Decl.) ¶ 26.) Additional attorneys from

21

both firms attended the hearing, but Makaeff is not seeking reimbursement for their

22

time. (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 8; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 7.)

23

Trump University argues that the hours should be reduced because the lumping

24

together of tasks makes it impossible to assess the reasonableness of hours, and there

25

appears to be duplication of efforts, with two attorneys preparing a third attorney for

26

the hearing. (Dkt. No. 367 at 12-13.)

27

The Court agrees with Trump University that the hours should be reduced due

28

to lumping together of tasks, which makes it difficult for the Court to determine if the
- 18 -

10cv0940 GPC (WVG)

1

hours spent are reasonable. For example, Ms. Eck’s declaration lumps together the

2

time for additional research, review of cases, conversations with Makaeff, and the

3

actual argument. As such, the Court applies a 20 percent reduction to the hours

4

expended on the district court hearing and preparation. See Welch, 480 F.3d at 948.

5
6
7
8

In addition, the Court excludes Ms. Roach’s hours because there is no clear
indication what tasks she preformed.
Accordingly, the Court EXCLUDES $3,768.00 in fees for the district court
hearing and preparation.
5.

9
10
11
12

Makaeff’s counsel states that the following amount of time was spent on the
motion for reconsideration by the various attorneys:12
Name

Law

Eric Isaacson
Rachel Jensen
Paula Roach
Amber Eck
Helen Zeldes

Firm
RGRD
RGRD
RGRD
ZHE
ZHE

13
14
15
16
17
18
19

Motion for Reconsideration

Position

Hourly

Hours

Partner
Partner
Associate
Partner
Partner

Rate
$825
$660
$360
$690
$600

Expended
1.50
9.50
4.50
66.00
5.00

Amount
$1,237.50
$6,270.00
$1,620.00
$45,540.00
$3,000.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 9; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 8.)

20

Ms. Jensen’s and Ms. Eck’s supplemental declarations provide the following

21

additional descriptions of the tasks performed. Mr. Isaacson, Ms. Jensen, and Ms.

22

Roach all helped revise the motion. (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 9; see also

23

Dkt. No. 331-1 (Jensen Decl.) ¶ 20.) Ms. Eck “spent a considerable amount of time

24

researching for the motion for reconsideration, including: reviewing treatises on

25

defamation and Anti-SLAPP motions; reading a large number of cases; and speaking

26

with numerous first amendment and Anti-SLAPP experts, professors, and consultants.”

27

Because it has already excluded all staff attorney and paralegal fees, the Court
does not include the 22.00 staff attorney hours and 17.50 paralegal hours. (Dkt. No.
364-1 (Jensen Supp. Decl.) ¶ 9.)
12

28

- 19 -

10cv0940 GPC (WVG)

1

(Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 8; see also Dkt. No. 331-2 (Eck Decl.) ¶¶ 27-28.)

2

In addition, “[w]e then spent additional time preparing” the motion. (Dkt. No. 364-2

3

(Eck Supp. Decl.) ¶ 8.)

4

Trump University argues that these hours should be reduced because the

5

descriptions lump together time spent on multiple tasks, which prevents the Court from

6

determining if the hours spent are reasonable. (Dkt. No. 367 at 13.) Trump University

7

also argues that the hours are duplicative, because it took four partners, an associate,

8

and a staff attorney to prepare a simple, and ultimately unsuccessful, motion for

9

reconsideration. (Id.)

10

The Court excludes Ms. Zeldes’s time because there is no indication what tasks

11

she performed. In addition, the Court agrees with Trump University that the lumping

12

together of tasks makes it difficult for the Court to evaluate whether the hours are

13

reasonable. As such, the Court applies a 20 percent reduction to the other hours

14

expended on the motion for reconsideration. See Welch, 480 F.3d at 948.
Accordingly, the Court EXCLUDES $13,933.50 in fees for the motion for

15
16

reconsideration.
6.

17
18
19
20

Makaeff’s counsel states that the following amount of time was spent on the
motion for reconsideration reply brief by the various attorneys:13
Name

Law

Rachel Jensen
Amber Eck

Firm
RGRD
ZHE

21
22
23
24

Motion for Reconsideration Reply Brief

Position

Hourly

Hours

Partner
Partner

Rate
$660
$690

Expended
3.00
27.50

Amount
$1,980.00
$18,975.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 10; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 9.)

25
26
27

Because it has already excluded all staff attorney and paralegal fees, the Court
does not include the 24.00 staff attorney hours and 16.50 paralegal hours. (Dkt. No.
364-1 (Jensen Supp. Decl.) ¶ 10.)
13

28

- 20 -

10cv0940 GPC (WVG)

1

Ms. Jensen’s and Ms. Eck’s supplemental declarations provide the following

2

additional descriptions of the tasks performed. Ms. Jensen declares that “[w]e . . .

3

reviewed and revised the reply brief drafted by co-counsel.” (Dkt. No. 364-1 (Jensen

4

Supp. Decl.) ¶ 10; see also Dkt. No. 331-1 (Jensen Decl.) ¶ 21.) Ms. Eck declares that

5

“[p]reparation of the Reply in support of our Motion for Reconsideration involved:

6

reviewing and analyzing Defendant’s motion for reconsideration . . . , including all

7

cases cited therein; additional legal research; additional consultation with Anti-SLAPP

8

experts; and preparation of the Reply.” (Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 9.)

9

Trump University argues the hours should be reduced because the descriptions

10

lump together time spent on multiple tasks, which prevents the Court from determining

11

if the hours spent are reasonable. (Dkt. No. 367 at 14.) Trump University also argues

12

that Ms. Jensen’s declaration vaguely states that “we” reviewed and revised the reply

13

brief, which evidences duplicative efforts. (Id.)

14

The Court agrees with Trump University that the lumping together of tasks

15

makes it difficult for the Court to evaluate whether the hours are reasonable. As such,

16

the Court applies a 20 percent reduction to the hours expended on the motion for

17

reconsideration reply brief. See Welch, 480 F.3d at 948.
Accordingly, the Court EXCLUDES $4,191.00 in fees for the motion for

18
19

reconsideration reply brief.

20

7.

21
22
23

Makaeff’s counsel states that the following amount of time was spent on the
appeal opening brief by the various attorneys:14
Name

Law

Eric Isaacson
Rachel Jensen

Firm
RGRD
RGRD

24
25
26

Appeal Opening Brief

Position

Hourly

Hours

Amount

Partner
Partner

Rate
$825
$660

Expended
221.75
10.00

$182,943.75
$6,600.00

27
28

Because it has already excluded all paralegal fees, the Court does not include
the 77.50 paralegal hours. (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 11.)
14

- 21 -

10cv0940 GPC (WVG)

1
2
3
4

Amanda Frame RGRD
Amber Eck
ZHE
Helen Zeldes
ZHE

Associate
Partner
Partner

$440
$690
$600

45.50
12.50
0.50

$20,020.00
$8,625.00
$300.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 11; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 10.)

5

Ms. Jensen’s and Ms. Eck’s supplemental declarations, as well as Mr. Isaacson’s

6

declaration, provide the following additional descriptions of the tasks performed. Mr.

7

Isaacson “took the lead on researching and briefing the appeal,” while Ms. Jensen

8

“reviewed and revised the brief and request for judicial notice.” (Dkt. No. 364-1

9

(Jensen Supp. Decl.) ¶ 11; see also Dkt. No. 331-1 (Jensen Decl.) ¶ 22.) Mr. Isaacson

10

declares that he read a variety of legal research, consulted with outside attorneys, and

11

briefed the appeal. (Dkt. No. 331-3 (Isaacson Decl.) ¶¶ 14-15, 19, 22.) Ms. Eck

12

declares that: “I and my firm assisted in research, preparation, and revision of the

13

appellate brief, and in compiling Trump University and Donald Trump articles, letters,

14

emails, advertisements, website snapshots, and other such documents for use on

15

appeal.” (Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 10; see also Dkt. No. 331-2 (Eck Decl.)

16

¶¶ 35-36.)

17

Trump University argues that these hours should be reduced for several reasons.

18

(Dkt. No. 367 at 14.) First, Trump University argues that the descriptions lump

19

together time spent on multiple tasks, which prevents the Court from determining if the

20

hours spent are reasonable. (Id.) Second, Trump University argues that there is

21

duplication, with Ms. Jensen and Ms. Eck reviewing the work of Mr. Isaacson. (Id.)

22

Third, Trump University argues that there was improper staffing, with Ms. Eck, a

23

partner, working on relatively simple tasks. (Id.) Finally, Trump University argues

24

that Mr. Isaacson spent excessive time on the opening brief, because it was unnecessary

25

for him to consult with outside attorneys and read books on Trump University and

26

Donald Trump. (Dkt. No. 367-2 at 79.)

27

The Court excludes Ms. Frame’s and Ms. Zeldes’s time because there is no

28

indication what tasks they performed. The Court also excludes Ms. Eck’s time because
- 22 -

10cv0940 GPC (WVG)

1

her tasks were either duplicative of other attorneys, or improper tasks for a high billing

2

partner. For Mr. Isaacson and Ms. Jensen, the Court agrees with Trump University that

3

the lumping together of tasks makes it difficult for the Court to evaluate whether the

4

hours are reasonable, and as such, applies a 20 percent reduction to their hours. See

5

Welch, 480 F.3d at 948.
Accordingly, the Court EXCLUDES $66,853.75 in fees for the appeal opening

6
7

brief.
8.

8

Opposition to Motion to Stay

9

Makaeff’s counsel states that the following amount of time was spent on the

10

opposition to Trump University’s motion to stay the action pending appeal by the

11

various attorneys:15

12

Name

Law

Eric Isaacson
Rachel Jensen
Amber Eck

Firm
RGRD
RGRD
ZHE

13
14
15
16
17

Position

Hourly

Hours

Partner
Partner
Partner

Rate
$825
$660
$690

Expended
4.75
9.00
27.50

Amount
$3,918.75
$5,940.00
$18,975.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 12; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 13.)

18

Ms. Jensen’s and Ms. Eck’s supplemental declarations provide the following

19

additional descriptions of the tasks performed. Ms. Eck spoke with Trump University’s

20

counsel regarding withdrawing the motion, and then “research[ed] and draft[ed] [the]

21

opposition.” (Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 12; see also Dkt. No. 331-2 (Eck

22

Decl.) ¶¶ 32-34.) Ms. Jensen and Mr. Isaacson “reviewed and edited the opposition

23

brief prepared by co-counsel.” (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 12; see also

24

Dkt. No. 331-1 (Jensen Decl.) ¶ 23.)

25

Trump University argues that the hours should be reduced because the

26

descriptions lump together time spent on multiple tasks, which prevents the Court from

27
28

Because it has already excluded all paralegal fees, the Court does not include
the 13.75 paralegal hours. (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 12.)
15

- 23 -

10cv0940 GPC (WVG)

1

determining if the hours spent are reasonable. (Dkt. No. 367 at 15.) Trump University

2

also argues that the time is duplicative, with two partners reviewing the work of a third

3

partner. (Id.)

4

The Court agrees with Trump University that some of the hours are duplicative,

5

and it was unnecessary for the opposition drafted by one partner to be reviewed by two

6

other partners. As such, the Court excludes Ms. Jensen’s hours. For Ms. Eck and Mr.

7

Isaacson, the Court agrees with Trump University that the lumping together of tasks

8

makes it difficult for the Court to evaluate whether the hours are reasonable, and

9

therefore applies a 20 percent reduction to their hours. See Welch, 480 F.3d at 948.
Accordingly, the Court EXCLUDES $10,518.75 in fees for the opposition to

10
11

the motion to stay.
9.

12
13
14
15

Makaeff’s counsel states that the following amount of time was spent on the
Ninth Circuit Settlement Conference by the various attorneys:
Name

Law

Eric Isaacson
Rachel Jensen
Amber Eck

Firm
RGRD
RGRD
ZHE

16
17
18
19
20

Ninth Circuit Settlement Conference

Position

Hourly

Hours

Partner
Partner
Partner

Rate
$825
$660
$690

Expended
4.50
1.25
2.75

Amount
$3,712.50
$825.00
$1,897.50

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 13; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 14.)

21

Ms. Jensen’s and Ms. Eck’s supplemental declarations provide the following

22

additional descriptions of the tasks performed. Mr. Isaacson and Ms. Jensen prepared

23

for and participated in the telephonic settlement conference. (Dkt. No. 364-1 (Jensen

24

Supp. Decl.) ¶ 13.) Ms. Eck attended the conference, and “had conversations with

25

Makaeff both before and after the” conference, “in order to prepare a settlement offer

26

and to relay the results.” (Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 14; see also Dkt. No.

27

331-2 (Eck Decl.) ¶ 31.) Ms. Eck notes that she did not charge two of the hours she

28
- 24 -

10cv0940 GPC (WVG)

1

spent preparing for and attending the conference. (Dkt. No. 364-2 (Eck Supp. Decl.)

2

¶ 14.)

3

Trump University argues that the hours should be reduced because the

4

descriptions lump together time spent on multiple tasks, which prevents the Court from

5

determining if the hours spent are reasonable. (Dkt. No. 367 at 15.) Trump University

6

also argues that the time is duplicative, with three partners participating in the

7

telephonic conference. (Id.)

8

The Court agrees with Trump University that it was excessive to have three

9

partners participating in the settlement conference, and therefore excludes Ms. Jensen’s

10

hours. The Court also agrees with Trump University that the lumping together of tasks

11

makes it difficult for the Court to evaluate whether the hours are reasonable, and as

12

such, applies a 20 percent reduction to the other hours. See Welch, 480 F.3d at 948.

13
14

Accordingly, the Court EXCLUDES $1,947.00 in fees for the Ninth Circuit
Settlement Conference.
10.

15
16
17
18

Makaeff’s counsel states that the following amount of time was spent soliciting
public support and coordinating amici and amicus briefs by the various attorneys:
Name

Law

Eric Isaacson
Kevin Green
Rachel Jensen
Amber Eck

Firm
RGRD
RGRD
RGRD
ZHE

19
20
21
22
23
24

Work with Amicus on Appeal

Position

Hourly

Hours

Partner
Partner
Partner
Partner

Rate
$825
$720
$660
$690

Expended
12.75
7.75
3.50
6.00

Amount
$10,518.75
$5,580.00
$2,310.00
$4,140.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 14; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 16.)

25

Ms. Jensen’s and Ms. Eck’s supplemental declarations, as well as Mr. Isaacson’s

26

declaration, provide the following additional descriptions of the tasks performed. Mr.

27

Isaacson, Mr. Green, and Ms. Jensen “consulted with lawyers for the American Civil

28

Liberties Union (‘ACLU’) and Consumer Attorneys of California concerning issues
- 25 -

10cv0940 GPC (WVG)

1

relevant to the opening appeal brief and reply appeal brief, as well as providing

2

feedback on amicus briefs they submitted to the Ninth Circuit and keeping amici

3

informed of developments.” (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 14; see also Dkt.

4

No. 331-1 (Jensen Decl.) ¶ 25; Dkt. No. 331-3 (Isaacson Decl.) ¶¶ 16-18.) Ms. Eck

5

spoke with attorneys for the Consumer Attorneys of California and the BBB regarding

6

submitting amicus briefs, reviewed amicus briefs filed by the ACLU and Consumer

7

Attorneys of California, and communicated with amici and Makaeff regarding the

8

briefs. (Dkt. No. 364-2 (Eck Supp. Decl.) ¶¶ 15-16; see also Dkt. No. 331-2 (Eck

9

Decl.) ¶¶ 37-38.)

10

Trump University argues that the hours should be denied entirely as unnecessary,

11

duplicative, and excessive. (Dkt. No. 367 at 16.) Trump University questions why it

12

took four partners to consult with amici. (Id.) Further, the descriptions lump together

13

time spent on multiple tasks, which prevents the Court from determining if the hours

14

spent are reasonable. (Id.)

15

The Court agrees with Trump University that much of the time appears

16

duplicative, which is exacerbated by the failure to differentiate how much time was

17

spent on different tasks by different attorneys. For example, it is unclear whether all

18

four partners consulted with the Consumer Attorneys of California. Therefore, the

19

Court excludes the hours of Mr. Green and Ms. Jensen as duplicative. The Court also

20

agrees with Trump University that the lumping together of tasks makes it difficult for

21

the Court to evaluate whether the hours of Mr. Isaacson and Ms. Eck are reasonable,

22

and as such, applies a 20 percent reduction to their hours. See Welch, 480 F.3d at 948.

23

Accordingly, the Court EXCLUDES $10,821.75 in fees for working with

24

amicus on appeal.

25

///

26

///

27

///

28

///
- 26 -

10cv0940 GPC (WVG)

11.

1
2
3
4

Makaeff’s counsel states that the following amount of time was spent on the
request for judicial notice reply brief by the various attorneys:16
Name

Law

Eric Isaacson
Thomas Merrick
Rachel Jensen

Firm
RGRD
RGRD
RGRD

5
6
7
8
9

Request for Judicial Notice Reply Brief

Position

Hourly

Hours

Partner
Partner
Partner

Rate
$825
$685
$660

Expended
26.50
0.75
0.25

Amount
$21,862.50
$513.75
$165.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 15.)

10

Ms. Jensen’s supplemental declaration provides the following additional

11

descriptions of the tasks performed. Mr. Isaacson “took the lead on researching and

12

drafting the request for judicial notice reply brief.” (Dkt. No. 364-1 (Jensen Supp.

13

Decl.) ¶ 15; see also Dkt. No. 331-1 (Jensen Decl.) ¶ 26.) Mr. Merrick and Ms. Jensen

14

reviewed the brief. (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 15.)

15

Trump University argues that these hours should be reduced for several reasons.

16

(Dkt. No. 367 at 16.) First, Trump University argues that the descriptions lump

17

together time spent on multiple tasks, which prevents the Court from determining if the

18

hours spent are reasonable. (Id.) Second, Trump University argues that there was

19

improper staffing, with an $825 per hour partner researching and drafting a simple

20

request for judicial notice reply brief. (Id.) Third, Trump University argues that the

21

time is duplicative in having two partners review the work of a third partner. (Id.)

22

The Court agrees with Trump University that Mr. Merrick’s and Ms. Jensen’s

23

time appears duplicative, and therefore excludes their time. The Court also agrees with

24

Trump University that Mr. Isaacson’s hours seem excessive and improperly staffed for

25

a request for judicial notice reply brief. As such, the Court reduces Mr. Isaacson’s time

26

by 50 percent, which would make his hourly rate more in line with that of an associate.

27
28

Because it has already excluded all paralegal fees, the Court does not include
the 8.00 paralegal hours. (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 15.)
16

- 27 -

10cv0940 GPC (WVG)

1

Accordingly, the Court EXCLUDES $11,610.00 in fees related to the request

2

for judicial notice reply brief.

3

12.

4
5
6

Makaeff’s counsel states that the following amount of time was spent on the
appeal reply brief by the various attorneys:17
Name

Law

Eric Isaacson
Thomas Merrick
Amanda Frame
Amber Eck

Firm
RGRD
RGRD
RGRD
ZHE

7
8
9
10
11
12

Appeal Reply Brief

Position

Hourly

Hours

Partner
Partner
Associate
Partner

Rate
$825
$685
$440
$690

Expended
88.00
2.50
14.50
3.25

Amount
$72,600.00
$1,712.00
$6,380.00
$2,242.50

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 16; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 17.)

13

Ms. Jensen’s and Ms. Eck’s supplemental declarations provide the following

14

additional descriptions of the tasks performed. Mr. Isaacson “took the lead in

15

researching and preparing the reply brief, with research assistance from Ms. Frame.”

16

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 16; see also Dkt. No. 331-1 (Jensen Decl.)

17

¶ 27.) Mr. Merrick “also assisted with reviewing and revising the brief.” (Dkt. No.

18

364-1 (Jensen Supp. Decl.) ¶ 16.) Ms. Eck’s time reflects reviewing and revising both

19

the appeal reply brief and the supplemental request for judicial notice. (Dkt. No. 364-2

20

(Eck Supp. Decl.) ¶ 17; see also Dkt. No. 331-2 (Eck Decl.) ¶ 39.)

21

Trump University argues that these hours should be reduced for several reasons.

22

(Dkt. No. 367 at 16-17.) First, Trump University argues that the descriptions lump

23

together time spent on multiple tasks, which prevents the Court from determining if the

24

hours spent are reasonable. (Id.) Second, Trump University argues that there was

25

improper staffing, with a $685 per hour partner reviewing the work of an $825 per hour

26

partner. (Id. at 17.) Third, Trump University argues that the time is duplicative

27
28

Because it has already excluded all paralegal fees, the Court does not include
the 33.00 paralegal hours. (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 16.)
17

- 28 -

10cv0940 GPC (WVG)

1

because two partners reviewed the work of a third partner, and because Ms. Frame and

2

Mr. Isaacson both conducted research. (Id.)

3

The Court agrees with Trump University that Mr. Merrick’s and Ms. Eck’s

4

hours, reviewing and revising Mr. Isaacson’s work, reflect improper staffing and

5

duplication of effort. As such, the Court excludes their hours. The Court also agrees

6

with Trump University that the lumping together of tasks makes it difficult for the

7

Court to evaluate whether the hours of Mr. Isaacson and Ms. Frame are reasonable, and

8

therefore, applies a 20 percent reduction to their hours. See Welch, 480 F.3d at 948.

9

Accordingly, the Court EXCLUDES $19,751.00 in fees related to the appeal

10

reply brief.
13.

11
12
13
14

Makaeff’s counsel states that the following amount of time was spent on the
supplemental request for judicial notice by the various attorneys:18
Name

Law

Eric Isaacson
Thomas Merrick

Firm
RGRD
RGRD

15
16
17
18

Supplemental Request for Judicial Notice

Position

Hourly

Hours

Partner
Partner

Rate
$825
$685

Expended
13.50
0.75

Amount
$11,137.50
$513.75

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 17.)

19

Ms. Jensen’s supplemental declaration provides the following additional

20

descriptions of the tasks performed. Mr. Isaacson “researched and prepared Makaeff’s

21

supplemental request for judicial notice and reply.” (Dkt. No. 364-1 (Jensen Supp.

22

Decl.) ¶ 17; see also Dkt. No. 331-1 (Jensen Decl.) ¶ 28.) There is no mention of Mr.

23

Merrick’s tasks.

24

Trump University argues that these hours should be reduced for several reasons.

25

(Dkt. No. 367 at 17.) First, Trump University argues that the descriptions lump

26

together time spent on multiple tasks, which prevents the Court from determining if the

27
28

Because it has already excluded all paralegal fees, the Court does not include
the 7.25 paralegal hours. (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 17.)
18

- 29 -

10cv0940 GPC (WVG)

1

hours spent are reasonable. (Id.) Second, Trump University argues that there was

2

improper staffing, with an $825 per hour partner researching and drafting a

3

supplemental request for judicial notice. (Id.) Third, Trump University argues that

4

there is no explanation for why Mr. Merrick needed to spend any time on the

5

supplemental request. (Id.)

6

The Court agrees with Trump University that Mr. Merrick’s time should be

7

excluded because there is no indication what tasks he performed. The Court also

8

agrees with Trump University that Mr. Isaacson’s hours seem excessive and improperly

9

staffed for a supplemental request for judicial notice. As such, the Court reduces Mr.

10

Isaacson’s time by 50 percent, which would make his hourly rate more in line with that

11

of an associate.

12
13

Accordingly, the Court EXCLUDES $6,082.50 in fees related to the
supplemental request for judicial notice.
14.

14
15
16
17

Makaeff’s counsel states that the following amount of time was spent by the
various attorneys on strategy for the Ninth Circuit appeal:
Name

Law

Eric Isaacson
Rachel Jensen

Firm
RGRD
RGRD

18
19
20
21

Ninth Circuit Appeal Strategy

Position

Hourly

Hours

Partner
Partner

Rate
$825
$660

Expended
1.75
0.25

Amount
$1,443.75
$165.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 18.)

22

Ms. Jensen’s supplemental declaration provides the following additional

23

descriptions of the tasks performed. Mr. Isaacson and Ms. Jensen spent a total of two

24

hours “strategizing and thinking about our approach to the anti-SLAPP litigation that

25

does not easily fit into another category” such “as “exploring potential avenues to bring

26

to the Court’s attention misrepresentations made by Trump’s counsel.” (Id.)

27

Trump University argues that these two hours should be denied entirely because

28

the descriptions lump time together and the time is duplicative. (Dkt. No. 367 at 17.)
- 30 -

10cv0940 GPC (WVG)

1
2
3
4

The Court disagrees with Trump University, and determines that these two hours
were reasonably expended.
Accordingly, the Court does not exclude any fees for the Ninth Circuit Appeal
strategy.
15.

5
6
7
8

Makaeff’s counsel states that the following amount of time was spent on the
Ninth Circuit hearing by the various attorneys:19
Name

Law

Eric Isaacson
Thomas Merrick
Amanda Frame
Amber Eck
Jessica Labrencis

Firm
RGRD
RGRD
RGRD
ZHE
ZHE

9
10
11
12
13
14
15

Ninth Circuit Hearing

Position

Hourly

Hours

Partner
Partner
Associate
Partner
Associate

Rate
$825
$685
$440
$690
$250

Expended
69.50
9.50
8.50
1.00
1.00

Amount
$57,337.50
$6,507.50
$3,740.00
$690.00
$250.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 19; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 19.)

16

Ms. Jensen’s and Ms. Eck’s supplemental declarations, as well as Mr. Isaacson’s

17

declaration, provide the following additional descriptions of the tasks performed.

18

According to Ms. Jensen, Mr. Isaacson “spent a substantial amount of time over the

19

course of weeks prepar[ing] for the oral argument, including holding a mock argument

20

in which two attorneys from [her] firm participated.”20 (Dkt. No. 364-1 (Jensen Supp.

21

Decl.) ¶ 19; see also Dkt. No. 331-1 (Jensen Decl.) ¶ 29.) Mr. Isaacson declares that

22

he “devot[ed] many hours to” “preparing for oral argument” and “personally argued the

23

appeal.” (Dkt. No. 331-3 (Isaacson Decl.) ¶ 19.) Ms. Eck’s “firm spent a total of one

24

hour talking and e-mailing with Makaeff over the course of three separate days in

25

preparation for the hearing, and one hour assisting in preparation for the Ninth Circuit

26

Because it has already excluded all paralegal fees, the Court does not include
the 3.50 paralegal hours. (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 19.)
19

27
28

Ms. Eck and Ms. Labrencis also participated in the mock argument, but have
not charged for this time. (Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 19.)
20

- 31 -

10cv0940 GPC (WVG)

1

hearing.” (Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 18; see also Dkt. No. 331-2 (Eck Decl.)

2

¶ 35.) Makaeff only seeks to recoup Mr. Isaacson’s time and expenses for attending

3

the hearing itself, even though additional attorneys also attended the hearing. (Dkt. No.

4

364-1 (Jensen Supp. Decl.) ¶ 19; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 19; see also Dkt.

5

No. 331-1 (Jensen Decl.) ¶ 30.)

6

Trump University argues that the hours should be reduced for several reasons.

7

(Dkt. No. 367 at 18.) First, Trump University argues that the descriptions lump

8

together time spent on multiple tasks, which prevents the Court from determining if the

9

hours spent are reasonable. (Id.) For example, there is no indication how much of Mr.

10

Isaacson’s time was spent on the actual argument, the mock argument, and other

11

preparation. (Id.) Second, Trump University argues that Mr. Isaacson’s time appears

12

excessive, and that it should not have taken him several weeks to prepare. (Id.) Third,

13

Trump University contends that a mock argument was unnecessary for an experienced

14

attorney like Mr. Isaacson, and that participation in the mock argument should not be

15

billed as it is educational.21 (Id.; see also Dkt. No. 335 at 18.) Finally, Trump

16

University argues that Ms. Labrencis’s time is duplicative. (Id.)

17

The Court agrees with Trump University that the lumping together of tasks

18

makes it difficult for the Court to evaluate whether the hours are reasonable. As such,

19

the Court applies a 20 percent reduction to the hours expended on the Ninth Circuit

20

hearing. See Welch, 480 F.3d at 948. The Court disagrees with Trump University that

21

a mock argument was unnecessary to prepare for the hearing.

22

Accordingly, the Court EXCLUDES $13,705.00 in fees related to the Ninth

23

Circuit hearing.

24

16.

25
26

Research Regarding Possible 28(j) Letter

Makaeff’s counsel states that the following amount of time was spent on
researching submitting a letter under Federal Rule of Appellate Procedure 28(j):

27

Makaeff counters that it is precisely because of Mr. Isaacson’s experience that
he knew that a mock argument is the best way to prepare for a Ninth Circuit oral
argument. (Dkt. No. 364 at 17.)
21

28

- 32 -

10cv0940 GPC (WVG)

1

Name

Law

Eric Isaacson

Firm
RGRD

2
3
4

Position

Hourly

Hours

Partner

Rate
$825

Expended
7.50

Amount
$6,187.50

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 20.)

5

Ms. Jensen’s supplemental declaration provides the following additional

6

descriptions of the tasks performed: “My firm considered submitting a Rule 28(j) letter

7

to the Ninth Circuit with supplemental authorities that had come to our attention. We

8

also considered sending a letter to the Ninth Circuit correcting misrepresentations made

9

to the Court. However, we ultimately decided against submitting such a letter. . . . Mr.

10

Isaacson spent [time] reviewing the record and researching a possible Rule 28(j) letter

11

to submit to the Ninth Circuit.” (Id.)

12

Trump University argues that these hours should be denied entirely because the

13

descriptions lump time together and the time appears excessive and unnecessary. (Dkt.

14

No. 367 at 18.)

15

The Court agrees with Trump University that the lumping together of tasks

16

makes it difficult for the Court to evaluate whether the hours are reasonable. The Court

17

also agrees that these hours appear excessive and unnecessary. In addition, these hours

18

appear duplicative because the Ninth Circuit appeal strategy category already included

19

“exploring potential avenues to bring to the Court’s attention misrepresentations made

20

by Trump’s counsel.” (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 18.) As such, the Court

21

excludes Mr. Isaacson’s hours.

22

Accordingly, the Court EXCLUDES $6,187.50 in fees related to the Ninth

23

Circuit hearing.

24

///

25

///

26

///

27

///

28

///
- 33 -

10cv0940 GPC (WVG)

17.

1

Opposition to Petition for Rehearing En Banc

2

Makaeff’s counsel states that the following amount of time was spent on the

3

opposition to Trump University’s petition for rehearing en banc by the various

4

attorneys:22

5

Name

Law

Position

Eric Isaacson
Kevin Green
Thomas Merrick
Rachel Jensen
Amanda Frame
Amber Eck
Helen Zeldes
Jessica Labrencis

Firm
RGRD
RGRD
RGRD
RGRD
RGRD
ZHE
ZHE
ZHE

Rate
Partner
$825
Partner
$720
Partner
$685
Partner
$660
Associate $440
Partner
$690
Partner
$600
Associate $250

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Hourly

Hours

Amount

Expended
183.75
0.50
9.25
10.50
8.20
13.00
0.50
1.25

$151,593.75
$360.00
$6,336.25
$6,930.00
$3,608.00
$8,970.00
$300.00
$312.50

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 21; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 20.)
Ms. Jensen’s and Ms. Eck’s supplemental declarations, as well as Mr. Isaacson’s
declaration, provide the following additional descriptions of the tasks performed. Ms.
Jensen declares that Mr. “Isaacson, with the assistance of Ms. Frame and [a staff
attorney], drafted an opposition that was reviewed and revised by additional attorneys
at my firm, including myself.” (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 21; see also Dkt.
No. 331-1 (Jensen Decl.) ¶ 32.) Mr. Isaacson declares that: “[The fact that] separate
concurring opinions both urged en banc rehearing meant that I would have to devote
considerable time to review the law of federal courts and federal jurisdiction, and as
well as the collateral-order doctrine – none of which had previously been at issue in the
litigation.” (Dkt. No. 331-3 (Isaacson Decl.) ¶ 21.) “Because the concurring opinions
and Trump University’s petition for en banc rehearing focused on questions of

26
27

Because it has already excluded all staff attorney and paralegal fees, the Court
does not include the 84.55 staff attorney hours and 11.00 paralegal hours. (Dkt. No.
364-1 (Jensen Supp. Decl.) ¶ 21.)
22

28

- 34 -

10cv0940 GPC (WVG)

1

constitutional law and federal jurisdiction that had never been at issue in the litigation,

2

I could not rely on my previous work in the case, but instead had to review and digest

3

a further vast body of law in order to effectively oppose en banc rehearing.” (Id.) Ms.

4

Eck “communicated with Makaeff on several occasions regarding the Appeal and the

5

en banc petition” and her “firm assisted in researching and preparing the opposition to

6

the en banc petition.” (Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 20; see also Dkt. No. 331-2

7

(Eck Decl.) ¶ 41.)

8

Trump University argues that the hours should be reduced for several reasons.

9

(Dkt. No. 367 at 18-19.) First, Trump University argues that the descriptions lump

10

together time spent on multiple tasks, which prevents the Court from determining if the

11

hours spent are reasonable. (Id.) Second, there appears to be duplication of efforts,

12

with several attorneys researching and drafting the opposition. (Id. at 19.) Third,

13

Trump University argues that there is no description of what was done by Mr. Green

14

and Mr. Merrick. (Id.)

15

The Court excludes the time for Mr. Green, Mr. Merrick, Ms. Zeldes, and Ms.

16

Labrencis because there is no clear indication what tasks they performed. The Court

17

agrees with Trump University that the lumping together of tasks makes it difficult for

18

the Court to evaluate whether the other hours are reasonable. As such, the Court

19

applies a 20 percent reduction to the hours expended by Mr. Isaacson, Ms. Jensen, Ms.

20

Frame, and Ms. Eck. See Welch, 480 F.3d at 948.

21
22

Accordingly, the Court EXCLUDES $41,529.10 in fees for the opposition to the
petition for rehearing en banc.
18.

23

Work with Amicus on En Banc Opposition

24

Makaeff’s counsel states that the following amount of time was spent working

25

with amicus on the opposition to Trump University’s petition for rehearing en banc by

26

the various attorneys:

27
28

Name

Law
Firm

Position

Hourly

Hours

Rate

Expended

- 35 -

Amount

10cv0940 GPC (WVG)

1
2
3
4
5

Eric Isaacson
Kevin Green
Thomas Merrick
Amber Eck

RGRD
RGRD
RGRD
ZHE

Partner
Partner
Partner
Partner

$825
$720
$685
$690

12.25
2.25
2.50
3.25

$10,106.25
$1,620.00
$1,712.50
$2,242.50

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 22; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 21.)

6

Ms. Jensen’s and Ms. Eck’s supplemental declarations, as well as Mr. Isaacson’s

7

declaration, provide the following additional descriptions of the tasks performed. Ms.

8

Jensen declares that: [m]y partners also met with lawyers from the ACLU and

9

Consumer Attorneys of California and with a number of anti-SLAPP practitioners

10

concerning strategy, soliciting public support, and considering the submission of

11

additional briefs in support of our opposition to the en banc petition.” (Dkt. No. 364-1

12

(Jensen Supp. Decl.) ¶ 22; see also Dkt. No. 331-1 (Jensen Decl.) ¶ 32.) Mr. Isaacson

13

declares that he “again consulted extensively with lawyers from the ACLU and the

14

Consumer Attorneys of California, and also with experienced practitioners specializing

15

in Anti-SLAPP litigation,” and that “[o]nce again, the Consumer Attorneys of

16

California submitted an amicus curiae brief supporting Makaeff, this time opposing the

17

petition for en banc rehearing.” (Dkt. No. 331-3 (Isaacson Decl.) ¶¶ 22-23.) Ms. Eck

18

“personally spoke with attorneys for the Consumer Attorneys and the BBB, and

19

participated in various communications with them” regarding submitting amicus curiae

20

briefs. (Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 21.)

21

Trump University argues that these hours should be denied entirely for several

22

reasons. (Dkt. No. 267 at 19.) First, Trump University argues that the descriptions

23

lump together time spent on multiple tasks, which prevents the Court from determining

24

if the hours spent are reasonable. (Id.) Second, there appears to be duplication of

25

efforts, with four partners soliciting support from amici. (Id.) Third, Trump University

26

argues that there is improper staffing, with high billing partners doing the task of an

27

associate. (Id.)

28
- 36 -

10cv0940 GPC (WVG)

1

The Court agrees with Trump University that much of the time appears

2

duplicative, which is exacerbated by the failure to differentiate how much time was

3

spent on different tasks by different attorneys. For example, it is unclear whether all

4

four partners consulted with the Consumer Attorneys of California. Therefore, the

5

Court excludes the hours of Mr. Green and Mr. Merrick as duplicative. The Court also

6

agrees with Trump University that the lumping together of tasks makes it difficult for

7

the Court to evaluate whether the hours of Mr. Isaacson and Ms. Eck are reasonable,

8

and as such, applies a 20 percent reduction to their hours. See Welch, 480 F.3d at 948.

9

Accordingly, the Court EXCLUDES $5,802.25 in fees for working with amicus

10

on the en banc opposition.
19.

11

Strategy Regarding the Remand and the Motion to Transfer
Fee Motion to District Court

12
13

Makaeff’s counsel states that the following amount of time was spent on

14

strategizing about the remand and researching the best vehicle for addressing attorney’s

15

fees by the various attorneys:23

16

Name

Law

Eric Isaacson
Kevin Green
Rachel Jensen
Amber Eck

Firm
RGRD
RGRD
RGRD
ZHE

17
18
19
20
21
22

Position

Hourly

Hours

Partner
Partner
Partner
Partner

Rate
$825
$720
$660
$690

Expended
18.30
1.00
2.75
6.25

Amount
$15,097.50
$720.00
$1,815.00
$4,312.50

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 23; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 22.)

23

Ms. Jensen’s and Ms. Eck’s supplemental declarations, as well as Mr. Isaacson’s

24

declaration, provide the following additional descriptions of the tasks performed. Mr.

25

Isaacson “researched, drafted, and filed a motion asking the Ninth Circuit to transfer

26

jurisdiction over the award of those fees to this Court.” (Dkt. No. 331-3 (Isaacson

27

Because it has already excluded all staff attorney and paralegal fees, the Court
does not include the 30.80 staff attorney hours and 3.75 paralegal hours. (Dkt. No.
364-1 (Jensen Supp. Decl.) ¶ 23.)
23

28

- 37 -

10cv0940 GPC (WVG)

1

Decl.) ¶ 25; see also Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 23; Dkt. No. 331-1 (Jensen

2

Decl.) ¶ 35.) Mr. Green reviewed the motion “after reading some relevant opinions.”

3

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 23.) Ms. Jensen “spoke to Mr. Isaacson and

4

reviewed the applicable rules and commented on the strategy and the draft as well.”

5

(Id.)

6

transferring the issue of the fee motion to the District Court.” (Dkt. No. 364-2 (Eck

7

Supp. Decl.) ¶ 22.)

Ms. Eck “researched the logistics for submitting a motion for fees and

8

Trump University argues that the hours should be reduced for several reasons.

9

(Dkt. No. 367 at 19-20.) First, Trump University argues that the descriptions lump

10

together time spent on multiple tasks, which prevents the Court from determining if the

11

hours spent are reasonable. (Id. at 19.) Second, there appears to be duplication of

12

efforts. (Id. at 20.) For example, Ms. Eck was conducting research at the same time

13

as Mr. Isaacson and a staff attorney. (Id.) Third, Trump University argues that there

14

was improper staffing because the drafting by Mr. Isaacson could have been done by

15

a lower rate biller. (Id.)

16

The Court agrees that the hours by the four partners appear duplicative. As such,

17

the Court excludes the hours of Mr. Green, Ms. Jensen, and Ms. Eck. The Court also

18

agrees with Trump University that the lumping together of tasks makes it difficult for

19

the Court to evaluate whether the hours of Mr. Isaacson are reasonable, and as such,

20

applies a 20 percent reduction to his hours. See Welch, 480 F.3d at 948.

21
22

Accordingly, the Court EXCLUDES $9,867.00 in fees for the strategy regarding
remand and motion to transfer fee motion to district court.
20.

23

Makaeff Deposition Preparation and Document Production

24

Makaeff’s counsel states that the following amount of time was spent preparing

25

Makaeff for an additional deposition and further discovery by the various attorneys:24

26
27

Because it has already excluded all staff attorney and paralegal fees, the Court
does not include the 27.25 staff attorney hours and 24.50 paralegal hours. (Dkt. No.
364-1 (Jensen Supp. Decl.) ¶ 24.)
24

28

- 38 -

10cv0940 GPC (WVG)

1

Name

Law

Position

Jason Forge
Rachel Jensen
Amber Eck
Aaron Olsen
Jessica Labrencis

Firm
RGRD
RGRD
ZHE
ZHE
ZHE

Rate
Partner
$740
Partner
$660
Partner
$690
Associate $410
Associate $250

2
3
4
5
6
7
8

Hourly

Hours
Expended
22.00
43.50
55.50
0.25
2.25

Amount
$16,280.00
$28,710.00
$38,295.00
$102.50
$562.50

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 24; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 26.)

9

Ms. Jensen’s and Ms. Eck’s supplemental declarations provide the following

10

additional descriptions of the tasks performed. Ms. Jensen declares that she and Mr.

11

Forge performed the following tasks “in connection with the negotiation of the Makaeff

12

deposition terms and conditions, strategizing, traveling back and forth to Los Angeles,

13

preparing Ms. Makaeff for her deposition, reviewing her anti-SLAPP documents and

14

producing them to Trump’s counsel”:

15
16
17
18
19
20
21
22

My colleague Jason Forge and I had calls with Ms. Makaeff to discuss
sitting for deposition again, had calls with our co-counsel Ms. Eck about
the same, calls and emails with Trump’s counsel at first objecting to Ms.
Makaeff sitting for another deposition session, calling Judge Gallo’s
chambers, and then spending hours negotiating the terms and conditions
of the deposition. Thereafter, I spent time strategizing about the
deposition and helping Ms. Makaeff draft a supplemental declaration.
After we finished a draft, Mr. Forge reviewed the draft declaration and
provided comments. Then, my partner Jason Forge and I both spent
separate days traveling to Los Angeles and meeting with Ms. Makaeff to
prepare and defend her for the deposition. In the course of those
meetings, Ms. Makaeff provided documents that were relevant to the
SLAPP proceedings (which were previously stayed before the matter was
remanded to this Court). I spent a day reviewing all the potentially
responsive documents before they were produced, and finalized Makaeff’s
supplemental declaration.

23

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 24; see also Dkt. No. 331-1 (Jensen Decl.)

24

¶ 37.) Ms. Eck declares that “the Court . . . permitted additional discovery on the issue

25

of actual malice” and “[w]e spent a substantial amount of time conferring with Makaeff

26

and compiling, reviewing, and producing all potentially responsive documents,

27

including hundreds of pages of e-mails and other documents that she discovered upon

28

further review of her files.” (Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 23; see also Dkt. No.
- 39 -

10cv0940 GPC (WVG)

1

331-2 (Eck Decl.) ¶ 46.) In addition, “we spent numerous hours over the course of a

2

week to prepare Makaeff for her deposition.”25 (Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 25;

3

see also Dkt. No. 331-2 (Eck Decl.) ¶ 45.)

4

Trump University argues that the hours should be reduced for several reasons.

5

(Dkt. No. 367 at 20.) First, Trump University argues that the descriptions lump

6

together time spent on multiple tasks, which prevents the Court from determining if the

7

hours spent are reasonable. (Id.) For example, there is no break down of how much

8

time was spent on negotiations, deposition preparation of Makaeff, travel time, etc.

9

(Id.) Second, there appears to be duplication of efforts. (Id.) Third, Trump University

10

argues that the hours were excessive because the deposition was limited to two hours

11

and the issue of “actual malice,” and Makaeff was familiar with the deposition process

12

having already sat for three depositions. (Id.)

13

The Court agrees with Trump University that much of the time appears

14

duplicative and excessive, which is exacerbated by the failure to differentiate how

15

much time was spent on different tasks by different attorneys. For example, it is

16

unclear why it was necessary for at least three attorneys, two of which had to travel to

17

Los Angeles, to prepare Makaeff for her two-hour deposition. Therefore, the Court

18

excludes the time of Mr. Forge. The Court also excludes the time of Mr. Olsen and Ms.

19

Labrencis because it is unclear what tasks they preformed. In addition, the Court

20

agrees with Trump University that the lumping together of tasks makes it difficult for

21

the Court to evaluate whether the hours of Ms. Jensen and Ms. Eck are reasonable, and

22

as such, applies a 20 percent reduction to their hours. See Welch, 480 F.3d at 948.
Accordingly, the Court EXCLUDES $30,346.00 in fees for Makaeff deposition

23
24

preparation and document production.

25

///

26

///

27

Ms. Eck notes that she has not charged for her time in preparing for the
deposition of Makaeff’s former boyfriend, which was later taken off-calendar. (Dkt.
No. 364-2 (Eck Supp. Decl.) ¶ 26.)
25

28

- 40 -

10cv0940 GPC (WVG)

21.

1

Supplemental Brief Regarding Actual Malice

2

Makaeff’s counsel states that the following amount of time was spent on this

3

Court’s request for supplemental briefing on the issue of actual malice by the various

4

attorneys:26

5

Name

Law

Eric Isaacson
Jason Forge
Rachel Jensen
Amber Eck

Firm
RGRD
RGRD
RGRD
ZHE

6
7
8
9
10
11

Position

Hourly

Hours

Partner
Partner
Partner
Partner

Rate
$825
$740
$660
$690

Expended
4.00
7.00
39.75
36.75

Amount
$3,300.00
$5,180.00
$26,235.00
$25,357.50

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 25; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 27.)

12

Ms. Jensen’s and Ms. Eck’s supplemental declarations provide the following

13

additional descriptions of the tasks performed. Ms. Jensen personally drafted the

14

supplemental brief, and Mr. Forge and Mr. Isaacson reviewed it. (Dkt. No. 364-1

15

(Jensen Supp. Decl.) ¶ 25; see also Dkt. No. 331-1 (Jensen Decl.) ¶ 38; Dkt. No. 331-3

16

(Isaacson Decl.) ¶ 27.) Ms. Eck “spent a considerable amount of time preparing the

17

supplemental brief and supplemental declaration of Makaeff, including legal research,

18

factual research and review of relevant documents, and communications with Anti-

19

SLAPP and actual malice experts.” (Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 27; see also

20

Dkt. No. 331-2 (Eck Decl.) ¶ 43.) In addition, Ms. Eck “had numerous conversations

21

with Makaeff throughout the briefing process.” (Dkt. No. 364-2 (Eck Supp. Decl.)

22

¶ 27.)

23

Trump University argues that the hours should be reduced for several reasons.

24

(Dkt. No. 367 at 20-21.) Trump University argues that the descriptions lump together

25

time spent on multiple tasks, which prevents the Court from determining if the hours

26

spent are reasonable. (Id.) In addition, Trump University argues that there is

27

Because it has already excluded all staff attorney and paralegal fees, the Court
does not include the 29.75 staff attorney hours and 23.75 paralegal hours. (Dkt. No.
364-1 (Jensen Supp. Decl.) ¶ 25.)
26

28

- 41 -

10cv0940 GPC (WVG)

1

duplicative, excessive, and overstaffed time, with two partners reviewing Ms. Jensen’s

2

brief, and Ms. Eck also working on the supplemental brief. (Id.)

3

The Court agrees with Trump University that Mr. Isaacson’s and Mr. Forge’s

4

time is duplicative with that of Ms. Jensen and Ms. Eck, and therefore excludes their

5

time. The Court also agrees with Trump University that the lumping together of tasks

6

makes it difficult for the Court to evaluate whether the hours of Ms. Eck are reasonable,

7

and as such, applies a 20 percent reduction to her hours. See Welch, 480 F.3d at 948.

8

The Court does not reduce the hours of Ms. Jensen because all of her time was spent

9

on the single task of drafting.

10

Accordingly, the Court EXCLUDES $13,551.50 in fees for the supplemental

11

brief regarding actual malice.

12

22.

13
14
15

Makaeff’s counsel states that the following amount of time was spent on the
supplemental reply brief regarding actual malice by the various attorneys:27
Name

Law

Position

Eric Isaacson
Rachel Jensen
Amber Eck
Aaron Olsen

Firm
RGRD
RGRD
ZHE
ZHE

Rate
Partner
$825
Partner
$660
Partner
$690
Associate $410

16
17
18
19
20
21

Supplemental Reply Brief Regarding Actual Malice

Hourly

Hours
Expended
3.25
25.75
18.00
0.50

Amount
$2,681.25
$16,995.00
$12,420.00
$205.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 26; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 28.)

22

Ms. Jensen’s and Ms. Eck’s supplemental declarations provide the following

23

additional descriptions of the tasks performed. Ms. Jensen researched and prepared the

24

supplemental reply brief, and Mr. Isaacson reviewed it and commented on it. (Dkt. No.

25

364-1 (Jensen Supp. Decl.) ¶ 26; see also Dkt. No. 331-1 (Jensen Decl.) ¶ 39; Dkt. No.

26

331-3 (Isaacson Decl.) ¶ 27.) Ms. Eck’s “firm” also “researched for and prepared a

27

Because it has already excluded all paralegal fees, the Court does not include
the 12.25 paralegal hours. (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 26; Dkt. No. 364-2
(Eck Supp. Decl.) ¶ 28.)
27

28

- 42 -

10cv0940 GPC (WVG)

1

Reply.” (Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 28; see also Dkt. No. 331-2 (Eck Decl.)

2

¶ 48.)

3

Trump University argues that the hours should be reduced because the

4

descriptions lump together time spent on multiple tasks, which prevents the Court from

5

determining if the hours spent are reasonable. (Dkt. No. 367 at 21.) For example, there

6

is no breakdown of how much time was spent on research versus drafting. (Id.) In

7

addition, Trump University argues that Ms. Eck’s time appears duplicative of Ms.

8

Jensen’s firm. (Id.)

9

The Court agrees with Trump University that Ms. Eck’s time appears

10

duplicative, which is exacerbated by the failure to differentiate how much time was

11

spent on different tasks. Therefore, the Court excludes Ms. Eck’s hours. The Court

12

also excludes Mr. Olsen’s hours because it is not clear what tasks he performed. The

13

Court agrees with Trump University that the lumping together of tasks makes it

14

difficult for the Court to evaluate whether the hours of Ms. Jensen and Mr. Isaacson are

15

reasonable, and as such, applies a 20 percent reduction to their hours. See Welch, 480

16

F.3d at 948.

17
18

Accordingly, the Court EXCLUDES $16,560.25 in fees for the supplemental
reply brief regarding actual malice.
23.

19
20
21
22

Makaeff’s counsel states that the following amount of time was spent on the
hearing regarding actual malice by the various attorneys:28
Name

Law

Eric Isaacson
Jason Forge
Rachel Jensen

Firm
RGRD
RGRD
RGRD

23
24
25
26

Hearing on Actual Malice

Position

Hourly

Hours

Partner
Partner
Partner

Rate
$825
$740
$660

Expended
0.25
0.75
1.50

Amount
$206.50
$555.00
$990.00

27
28

Because it has already excluded all paralegal fees, the Court does not include
the 2.50 paralegal hours. (Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 27.)
28

- 43 -

10cv0940 GPC (WVG)

1
2
3
4

Amber Eck
Helen Zeldes
Aaron Olsen

ZHE
ZHE
ZHE

Partner
$690
Partner
$600
Associate $410

26.75
5.00
3.50

$18,457.50
$3,000.00
$1,435.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 27; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 30.)

5

Ms. Jensen’s and Ms. Eck’s supplemental declarations provide the following

6

additional descriptions of the tasks performed. Ms. Jensen prepared for oral argument,

7

before it was rescheduled and Ms. Eck ultimately appeared at the oral argument

8

(because Ms. Jensen was then out on maternity leave.) (Dkt. No. 364-1 (Jensen Supp.

9

Decl.) ¶ 27; see also Dkt. No. 331-1 (Jensen Decl.) ¶¶ 40-41.) Mr. Isaacson and Mr.

10

Forge assisted Ms. Eck with her preparation for the hearing. (Dkt. No. 364-1 (Jensen

11

Supp. Decl.) ¶ 27; Dkt. No. 331-3 (Isaacson Decl.) ¶ 27.) Ms. Jensen notes that

12

additional attorneys also attended the hearing, but they are not seeking that time. (Dkt.

13

No. 364-1 (Jensen Supp. Decl.) ¶ 27; see also Dkt. No. 331-1 (Jensen Decl.) ¶ 41.)

14

Ms. Eck “spent a considerable amount of time preparing for this hearing,

15

reviewing all of the Anti-SLAPP motions and Orders to date, a voluminous amount of

16

case law, the four volumes of Makaeff’s deposition testimony, Makaeff’s several

17

declarations, and voluminous documents and exhibits submitted by both parties.” (Dkt.

18

No. 364-2 (Eck Supp. Decl.) ¶ 29; see also Dkt. No. 331-2 (Eck Decl.) ¶ 49.) Ms. Eck

19

notes that she is not seeking seven hours of her preparation time for the hearing. (Dkt.

20

No. 364-2 (Eck Supp. Decl.) ¶ 29.) Ms. Zeldes and Mr. Olsen assisted in Ms. Eck’s

21

preparation for the hearing. (Id.) Ms. Eck argued at the hearing before this Court.

22

(Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 30; see also Dkt. No. 331-2 (Eck Decl.) ¶ 50.)

23

Trump University argues that the hours should be reduced because the

24

descriptions lump together time spent on multiple tasks, which prevents the Court from

25

determining if the hours spent are reasonable. (Dkt. No. 367 at 21.) For example, there

26

is no breakdown of how much time Ms. Eck spent preparing for the hearing, reviewing

27

documents, and arguing at the hearing itself. (Id.) In addition, Trump University

28
- 44 -

10cv0940 GPC (WVG)

1

argues that there is a duplication of efforts, with three partners and one associate

2

preparing another partner arguing the motion. (Id.)

3

The Court disagrees with Trump University that the time is duplicative.

4

However, the Court agrees with Trump University that the lumping together of tasks

5

makes it difficult for the Court to evaluate whether the hours of Ms. Eck are reasonable,

6

and as such, applies a 20 percent reduction to her hours. See Welch, 480 F.3d at 948.

7

Accordingly, the Court EXCLUDES $3,691.50 in fees for the hearing on actual

8

malice.
24.

9
10
11
12

Makaeff’s counsel states that the following amount of time was spent on
“multiple tasks” by the various attorneys:
Name

Law

Eric Isaacson
Rachel Jensen

Firm
RGRD
RGRD

13
14
15
16

Time Spent on Multiple Tasks

Position

Hourly

Hours

Partner
Partner

Rate
$825
$660

Expended
8.50
5.75

Amount
$7,012.50
$3,795.00

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 28.)

17

Ms. Jensen’s supplemental declaration states that these 14.25 hours pertain to

18

multiple tasks related to the anti-SLAPP proceedings, but cannot be definitely assigned

19

to the above procedural categories. (Id.) For example, Mr. Isaacson “spent time

20

researching the potential for a Rule 28(j) letter and also preparing for 9th Circuit oral

21

argument (which were occurring contemporaneously).” (Id.) Makaeff notes that she

22

is willing to reduce her requested fees by these 14.25 hours. (Dkt. No. 364 at 11 n.6.)

23

Trump University argues that the hours should be denied entirely because the

24

descriptions lump together time spent on multiple tasks, which prevents the Court from

25

determining if the hours spent are reasonable. (Dkt. No. 367 at 21-22.) For example,

26

there is not breakdown between how much time Mr. Isaacson spent researching versus

27

preparing. (Id. at 22.) In addition, Trump University notes that the time appears

28

duplicative of category 16 above, concerning research of a possible 28(j) letter. (Id.)
- 45 -

10cv0940 GPC (WVG)

1

The Court agrees with Trump University that these hours should be denied

2

entirely. The vague description of “multiple tasks” related to the anti-SLAPP litigation

3

prevents the Court from determining if these hours were reasonable. Moreover,

4

Makaeff has stated that she is willing to omit these hours.
Accordingly, the Court EXCLUDES $10,807.50 in fees for work on multiple

5
6

tasks.
25.

7
8
9
10

Makaeff’s counsel states that the following amount of time was spent on the
preparation of the Bill of Fees and Costs by the various attorneys:
Name

Law

Position

Amber Eck
Aaron Olsen

Firm
ZHE
ZHE

Rate
Partner
$690
Associate $410

11
12
13
14

Bill of Fees and Costs

Hourly

Hours
Expended
22.25
10.00

Amount
$15,352.50
$4,100.00

(Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 31.)

15

Ms. Eck states that “we spent considerable time researching and preparing the

16

motion, compiling all of our time records and expenses related to the Anti-SLAPP

17

issues over the past four years, and preparing a detailed declaration setting forth our

18

work performed in the case, time, lodestar, and expenses.” (Id.) She states that her

19

firm does not seek fees for additional time spent on the brief after June 27, 2014, or for

20

time spent preparing the supplemental brief or declarations. (Id.) Ms. Jensen states

21

that her firm also spent a “substantial amount of time” on the Bill of Fees and Costs,

22

but is not claiming this time to “demonstrate the reasonableness of the requested fees.”

23

(Dkt. No. 364-1 (Jensen Supp. Decl.) ¶ 28.)

24

Trump University argues the hours should be denied entirely because the

25

descriptions lump together time spent on multiple tasks, which prevents the Court from

26

determining if the hours spent are reasonable. (Dkt. No. 367 at 22.) Trump University

27

also argues that this Court’s supplemental briefing order did not explicitly invite

28

Makaeff to include these fees. (Id.)
- 46 -

10cv0940 GPC (WVG)

1

The Court agrees with Trump University that the lumping together of tasks

2

makes it difficult for the Court to evaluate whether the hours of Ms. Eck and Mr. Olsen

3

are reasonable, and as such, applies a 20 percent reduction to their hours. See Welch,

4

480 F.3d at 948. The Court appreciates that Ms. Jensen’s firm does not seek time for

5

preparation of the Bill of Fees and Costs.

6
7

Accordingly, the Court EXCLUDES $3,890.50 in fees for the preparation of Bill
of Fees and Costs.

8

C.

Upward Multiplier

9

Makaeff argues that any reduction in fees should be offset by an upward

10

multiplier because this is a contingency fee case. (Dkt. No. 331 at 17-18; Dkt. No. 364

11

at 8, 20.) Trump University counters that no upward multiplier is justified here

12

because, among other reasons, Makaeff’s counsel are not sole practitioners, but rather

13

a large team of high billing attorneys. (Dkt. No. 335 at 21-25; Dkt. No. 367 at 23-25.)

14

The California Supreme Court has held that a court may adjust the lodestar figure

15

based on various factors, including the contingent nature of the fee award. Ketchum,

16

17 P.3d at 741. “The purpose of a fee enhancement, or so-called multiplier, for

17

contingent risk is to bring the financial incentives for attorneys enforcing important

18

constitutional rights, such as those protected under the anti-SLAPP provision, into line

19

with incentives they have to undertake claims for which they are paid on a

20

fee-for-services basis.” Id. at 742. A contingency enhancement “is intended to

21

approximate market-level compensation for such services, which typically includes a

22

premium for the risk of nonpayment or delay in payment of attorney fees.” Id. at 746.

23

The Court declines to apply an upward multiplier here due to the contingency fee

24

nature of this case. The Court notes that Makaeff already argued that its higher than

25

average hourly rates were also justified because this is a contingency case. (Dkt. No.

26

331 at 15.) As such, an upward multiplier would be duplicative. Moreover, the basic

27

lodestar figure adequately compensates Makaeff’s counsel, and Makaeff has not met

28

her burden that a contingency fee enhancement is appropriate here. See Ketchum, 17
- 47 -

10cv0940 GPC (WVG)

1

P.3d at 746 (“Of course, the trial court is not required to include a fee enhancement to

2

the basic lodestar figure for contingent risk, exceptional skill, or other factors, although

3

it retains discretion to do so in the appropriate case; moreover, the party seeking a fee

4

enhancement bears the burden of proof.”).

5

D.

6

In sum, Makaeff has sought $1,333,004.2529 in fees, and the Court has excluded

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

Conclusion

a total of $542,920.85 in fees as follows:
Category
Staff Attorney Fees
Paralegal Fees
1. Initial Anti-SLAPP Motion
2. District Court Reply Brief
3. Opposition to Motion to Strike
4. District Court Hearing and Preparation
5. Motion for Reconsideration
6. Motion for Reconsideration Reply Brief
7. Appeal Opening Brief
8. Opposition to Motion to Stay
9. Ninth Circuit Settlement Conference
10. Work with Amicus on Appeal
11. Request for Judicial Notice
12. Appeal Reply Brief
13. Supplemental Request for Judicial Notice
14. Ninth Circuit Appeal Strategy
15. Ninth Circuit Hearing

Fees Excluded
$121,047.50
$90,542.50
$19,656.00
$3,726.00
$2,533.50
$3,768.00
$13,933.50
$4,191.00
$66,853.75
$10,518.75
$1,947.00
$10,821.75
$11,610.00
$19,751.00
$6,082.50
$0.00
$13,705.00

24
25

The Court notes that the breakdown of fees in Ms. Jensen’s and Ms. Eck’s
supplemental declarations actually totals $1,333,659.50, which is a difference of
$655.25. (Dkt. No. 364-1 (Jensen Supp. Decl.); Dkt. No. 364-2 (Eck Supp. Decl.).)
27 However, since neither party raised this difference, and using the lower figure benefits
Trump University, the Court uses $1,333,004.25. (Dkt. No. 331 at 18; Dkt. No. 331
28 (Jensen Decl.) ¶ 58; Dkt. No. 331-2 (Eck Decl.) ¶ 55; Dkt. No. 364-1 (Jensen Supp.
Decl.) ¶ 2; Dkt. No. 364-2 (Eck Supp. Decl.) ¶ 2.)
29

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10cv0940 GPC (WVG)

1
2
3
4
5
6
7
8
9
10
11
12

16. Research Regarding Possible 28(j) Letter
17. Opposition to Petition for Rehearing En Banc
18. Work with Amicus on En Banc Opposition
19. Strategy Regarding Remand and Motion to Transfer

$6,187.50
$41,529.10
$5,802.25
$9,867.00

Fee Motion to District Court
20. Makaeff Deposition Preparation and Document

$30,346.00

Production
21. Supplemental Brief Regarding Actual Malice
22. Supplemental Reply Brief Regarding Actual Malice
23. Hearing on Actual Malice
24. Work on Multiple Tasks
25. Preparation of Bill of Fees and Costs
TOTAL FEES EXCLUDED

13
14

$13,551.50
$16,560.25
$3,691.50
$10,807.50
$3,890.50
$542,920.85

Accordingly, the Court AWARDS Makaeff $790,083.40 in fees.
III.

Reasonable Costs

15

In addition to attorney’s fees, a prevailing defendant on an anti-SLAPP motion

16

is entitled to recover reasonable costs. Cal. Civ. Proc. Code § 425.16(c)(1). Here,

17

Makaeff seeks $9,209.27 in costs for successfully litigating the anti-SLAPP motion.30

18

(Dkt. No. 331 at 18; Dkt. No. 364 at 19 n.11.) Specifically, Makaeff seeks the

19

following costs:

20
21
22

Category
Meals, Hotel &

23

Transportation
Messenger, Overnight

24

RGRD Costs
$836.49

ZHE Costs
$280.88

Total
$1,117.37

Delivery

$57.85

$57.85

25
26

Makaeff originally sought $9,812.11 in costs, but is no longer seeking
approximately $603 for the costs of postage, telephone, and photocopying charges, in
light of Trump University’s observation that California Code of Civil Procedure
28 § 1033.5(b) applies. (Dkt. No. 335 at 26; Dkt. No. 364 at 19 n.11; Dkt. No. 364-1
(Jensen Supp. Decl.) ¶ 31 n.1; Dkt. No. 367 at 26.)
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1

Video Deposition of

2

Makaeff
Lexis, Westlaw, Online

3
4
5
6
7
8
9

$290.00
$4,931.21

Library Research
Publications
Miscellaneous

$6,870.59

$2,057.80

$6,989.01

$299.79
$455.25

Deposition Costs
TOTAL COSTS

$290.00

$299.79
$455.25
$2,338.68

$9,209.27

(Dkt. No. 331-1 (Jensen Decl.) ¶ 59); (Dkt. No. 331-2 (Eck Decl.) ¶ 57.)
The Court ordered Makaeff to “submit additional information substantiating

10
11

the costs requested.” (Dkt. No. 358 at 6.) The supplemental declarations of Ms. Jensen

12

and Ms. Eck provide additional details regarding costs. (Dkt. No. 364-1 (Jensen Supp.

13

Decl.) ¶¶ 31-32; Dkt. No. 364-2 (Eck Supp. Decl.) ¶¶ 33-34.) Trump University argues

14

that the Court should deny the costs entirely for various reasons. (Dkt. No. 367 at 26-

15

27.)

16

The Court agrees with Trump University that the charge of $225.05 for lunch

17

after the Ninth Circuit hearing is not compensable since it was for the “team” and

18

Makaeff admits that not all who attended the hearing were necessary. (Id.) The Court

19

also excludes Mr. Forge’s $288.41 in expenses for meals and hotel accommodations

20

for preparing Makaeff for her deposition since the Court has already determined that

21

his time was duplicative. (Id.) Otherwise, the Court determines that Makaeff’s costs

22

are reasonable. For example, Trump University argues that the Court should not allow

23

Mr. Isaacson’s online research costs because he has a high hourly rate. (Id. at 26.)

24

However, the fact that Mr. Isaacson is a more experienced attorney would likely reduce

25

his research costs.
Therefore, the Court excludes $513.46 in costs.

26
27

AWARDS Makaeff $8,695.81 in costs.

28

Accordingly, the Court

///
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10cv0940 GPC (WVG)

CONCLUSION AND ORDER

1
2

For the reasons set forth above, IT IS HEREBY ORDERED:

3

(1)

the Court GRANTS IN PART AND DENIES IN PART Makaeff’s
request for fees and costs (Dkt. No. 331);

4
5

(2)

the Court AWARDS Makaeff $790,083.40 in fees;

6

(3)

the Court AWARDS Makaeff $8,695.81 in costs;

7

(4)

the Court GRANTS Makaeff’s ex parte application to file a limited

8
9
10

response (Dkt. No. 368).
IT IS SO ORDERED.
DATED: April 9, 2015

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12
13
14

HON. GONZALO P. CURIEL
United States District Judge

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