Lynn v. Sherman et al

Filing 305

ORDER Granting Renewed Motion For Attorneys' Fees [ECF No. 291 ]. Signed by Judge Linda Lopez on 5/9/2024. (ddf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LAURA LYNN HAMMETT,

Case No.: 19cv605-LL-AHG
Plaintiff,

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v.

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MARY E. SHERMAN, et al.

ORDER GRANTING RENEWED
MOTION FOR ATTORNEYS’ FEES
[ECF No. 291]

Defendants.

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This matter is before the Court on the Renewed Motion for Attorneys’ Fees (the

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“S&G Fee Motion”) filed by Defendants Ellis Roy Stern, Alan N. Goldberg, and Stern &

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Goldberg (together, the “S&G Defendants”). ECF No. 291. Plaintiff Laura Lynn Hammett

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filed an opposition to the S&G Fee Motion [ECF No. 293] and the S&G Defendants filed

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a reply in response to Plaintiff’s opposition [ECF No. 296]. The Court finds this matter

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suitable for determination on the papers and without oral argument pursuant to Federal

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Rule of Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. Upon review of the parties’

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submissions and the applicable law, the Court GRANTS the S&G Fee Motion for the

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reasons stated below.

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I.

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Plaintiff originally brought claims for conversion and legal malpractice against

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Defendants Patrick C. McGarrigle and McGarrigle, Kenney & Zampiello (together, the

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“MKZ Defendants”) and the S&G Defendants (collectively, the “Attorney Defendants”) in

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her first amended complaint (“FAC”). ECF No. 3 ¶¶ 264-303. The Attorney Defendants

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filed special motions to strike or dismiss the claims against them in Plaintiff’s FAC based

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on California’s anti-strategic lawsuit against public participation (“anti-SLAPP”) statute

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[ECF Nos. 20, 21], and Plaintiff voluntarily dismissed her claims against the Attorney

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Defendants under Rule 41(a)(1)(A)(i) [ECF No. 38]. The Court dismissed the special

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motions to strike as moot [ECF No. 39], determined that the Attorney Defendants were

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prevailing parties under the anti-SLAPP statute [ECF No. 111 at 46-48], and awarded

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attorneys’ fees to the Attorney Defendants [id. at 52].

BACKGROUND

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Plaintiff appealed the Court’s order granting attorneys’ fees to the Attorney

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Defendants [ECF No. 135], and the Court of Appeals for the Ninth Circuit dismissed the

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appeal for lack of jurisdiction [ECF No. 144]. Plaintiff then filed a motion for

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reconsideration of the order granting an award of attorneys’ fees. ECF No. 177. The Court

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denied Plaintiff’s motion for reconsideration of the fee order [ECF No. 266] and granted

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the S&G Defendants’ ex parte motion to file a combined motion for attorneys’ fees [ECF

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No. 267]. The Court also dismissed Plaintiff’s third amended complaint (“TAC”) without

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leave to amend. ECF No. 268. Following the Court’s orders [ECF Nos. 266-268], the

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Attorney Defendants each filed motions for attorneys’ fees [ECF Nos. 270, 271], and

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Plaintiff filed a notice of appeal challenging, among other things, the fee order [ECF No.

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111], the denial of the motion for reconsideration of the fee order [ECF No. 266], and

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dismissal of her TAC [ECF No. 268]. ECF No. 273. Plaintiff also moved to strike the fee

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motions for failure to consolidate briefing as per the undersigned’s civil chambers rules

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[ECF No. 282], which the Court denied as incorrect [ECF No. 284]. The Court denied both

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fee motions without prejudice for failure to include satisfactory evidence that the requested

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fee rates were supported by sufficient evidence regarding prevailing rates in the community
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for similar services of lawyers of reasonably comparable skill and reputation, directing the

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Attorney Defendants to file renewed motions if desired. ECF No. 290. In response, the

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S&G Defendants filed the instant Motion [ECF No. 291], and the MKZ Defendants also

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filed a renewed fee motion [ECF No. 292]. Plaintiff further appealed the Court’s order

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denying the fee motions without prejudice. ECF No. 295. The Ninth Circuit Court of

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Appeals subsequently denied Plaintiff’s appeal of the denial order for lack of jurisdiction.

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ECF No. 302. In the intervening time, the MKZ Defendants withdrew their motion for

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attorneys’ fees. ECF No. 303.

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II.

JURISDICTION

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As noted above, Plaintiff has appealed the Court’s initial order awarding attorneys’

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fees to the Attorney Defendants as well as the Court’s order denying reconsideration of

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that award. That appeal is currently pending before the United States Court of Appeals for

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the Ninth Circuit. See Hammett v. Sherman et al., No. 22-56003 (9th Cir. filed Oct. 27,

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2022).

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Normally, “[t]he effective filing of a notice of appeal transfers jurisdiction from the

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district court to the court of appeals with respect to all matters involved in the appeal.”

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Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 956 (9th Cir. 1983) (citing Griggs v.

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Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam)). However, a pending

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appeal does not foreclose the award of attorneys’ fees by the district court, and a decision

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on fees may likewise promote judicial efficiency. Id. at 956-57 (citing White v. New

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Hampshire Dep’t of Emp. Sec., 455 U.S. 445, 454 (1982)), 957 n.1 (citing Culinary & Serv.

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Emps. Union v. Hawaii Emp. Benefit Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982)).

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Accordingly, the Court retains jurisdiction to rule on the Motions for Attorneys’ Fees

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despite the pendency of Plaintiff’s appeal.

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The Court additionally notes that the instant Motion for Attorneys’ Fees relates to

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fees incurred in defending the Court’s initial fee award in the context of Plaintiff’s

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interlocutory appeal [see ECF Nos. 135, 144] and Plaintiff’s motion to vacate or reconsider

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the fee award [see ECF No. 177, 266]. In other words, the substance of the S&G Fee

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Motion is not part of Plaintiff’s pending appeal.

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III.

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California’s anti-SLAPP statute provides that “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.” Cal. Civ.

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Proc. Code. § 425.16(c)(1); see also Ketchum v. Moses, 17 P.3d 735, 741 (Cal. 2001)

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(“[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory

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attorney fees.”). The fee provision of the anti-SLAPP statute includes compensation for

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“‘all hours reasonably spent, including those necessary to establish and defend the fee

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claim.’” Ketchum, 17 P.3d at 748 (quoting Serrano v. Unruh, 652 P.2d 985, 997 (Cal.

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1982)). In other words, the provision is broadly construed as to effectuate the legislative

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purpose of compensating defendants for the expense of responding and extracting

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themselves from a SLAPP suit. See Wanland v. Law Ofcs. of Mastagni, Holstedt &

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Chiurazzi, 45 Cal. Rptr. 3d 633, 637 (Ct. App. 2006) (citing Wilkerson v. Sullivan, 121

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Cal. Rptr. 2d 275, 277 (Ct. App. 2002)). As such, section 425.16(c) has been interpreted to

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include expenses incurred in litigating an award of attorney fees, Ketchum, 17 P.3d at 747,

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in litigating an appeal, Morrow v. Los Angeles Unified Sch. Dist., 57 Cal. Rptr. 3d 885, 902

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(Ct. App. 2007) (citation omitted), and in litigating a stay of the enforcement of a fee order,

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Wanland, 45 Cal. Rptr. 3d at 637.

LEGAL STANDARD

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

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have broad discretion to determine what is reasonable. See Metabolife Int’l, Inc. v.

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Wornick, 213 F. Supp. 2d 1220, 1222 (S.D. Cal. 2002). California courts apply the lodestar

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approach for determining a reasonable fee award in an anti-SLAPP case. Ketchum, 17 P.3d

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at 744; see also Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1024

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(9th Cir. 2003) (“An award of attorneys’ fees incurred in a suit based on state substantive

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law is generally governed by state law.”). For the lodestar approach, the Court begins by

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fixing a lodestar by “multiplying the number of hours reasonably expended by counsel by

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a reasonable hourly rate.” Lealao v. Beneficial California, Inc., 97 Cal. Rptr. 2d 797, 803
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(Ct. App. 2000). The Court may then adjust the lodestar amount based on factors including

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

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

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employment by the attorneys, [and] (4) the contingent nature of the fee award.” Ketchum,

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17 P.3d at 741 (citing Serrano v. Priest, 569 P.2d 1303, 1316 (Cal. 1977)).

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IV.

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While the trial court has broad discretion in setting attorneys’ fees, it begins with the

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determination of the lodestar figure, and the court’s exercise of discretion must be based

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on the lodestar adjustment method. Ketchum, 17 P.3d at 743 (citing Press v. Lucky Stores,

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Inc., 667 P.2d 704 (Cal. 1983)). As such, the Court must determine a reasonable hourly

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rate and consider the number of hours reasonably expended by the Attorney Defendants in

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responding and extracting themselves from the present suit.

DISCUSSION

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In determining what “elements . . . should comprise a determination of the

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reasonable hourly value of an attorney’s services,” California courts look to the reasoning

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in federal cases as “both persuasive and appropriate for consideration.” Margolin v. Reg’l

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Plan. Comm’n, 185 Cal. Rptr. 145, 147 (Ct. App. 1982) (noting that the California Supreme

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Court in Serrano v. Priest “cited and relied on many federal decisions in promulgating the

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California rules” related to awarding attorneys’ fees). To determine a reasonable hourly

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rate, the Court looks to the “rate prevailing in the community for similar work performed

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by attorneys of comparable skill, experience, and reputation.” Camacho v. Bridgeport Fin.,

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Inc., 523 F.3d 973, 979 (9th Cir. 2008) (internal quotation marks and citation omitted). In

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this case, the relevant community is the Southern District of California because it is “the

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forum in which the district court sits.” Id. The burden is on the party requesting attorneys’

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

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

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

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F.2d 1258, 1263 (9th Cir. 1987). Evidence that the Court should consider includes

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“[a]ffidavits of the [movant’s] attorney and other attorneys regarding prevailing fees in the
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community, 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 403,

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507 (9th Cir. 1990).

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In assessing the reasonableness of time expended in its lodestar calculation, the

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Court examines submissions from the party or parties seeking fees, who bear the “burden

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of establishing entitlement to an award and documenting the appropriate hours expended

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and hourly rates.” ComputerXpress, Inc. v. Jackson, 113 Cal. Rptr. 2d 625, 649 (Ct. App.

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2001) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). Although the lodestar

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method does not explicitly require “detailed billing time sheets,” Concepcion v. Amscan

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Holdings, Inc., 168 Cal. Rptr. 3d 40, 53 (Ct. App. 2014), the “evidence should allow the

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court to consider whether the case was overstaffed, how much time the attorneys spent on

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particular claims and whether the hours were reasonably expended,” Christian Rsch. Inst.

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v. Alnor, 81 Cal. Rptr. 3d 866, 870 (Ct. App. 2008). As such, “the court may require

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[movants] to product records sufficient to provide ‘a proper basis for determining how

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much time was spent on particular claims.” ComputerXpress, Inc., 113 Cal. Rptr. 2d at 649

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(quoting Hensley, 461 U.S. at 438 n.12). The Court should exclude hours “that are

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excessive, redundant, or otherwise unnecessary[.]” Hensley, 461 U.S. at 434.

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To challenge a movant’s evidence supporting the hours and rates claimed in a motion

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for attorneys’ fees, “the opposing party ‘has a burden of rebuttal that requires submission

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of evidence . . . challenging the accuracy and reasonableness of the . . . facts asserted by

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the prevailing party in its submitted affidavits.’” Chaudry v. City of Los Angeles, 751 F.3d

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1096, 1110-11 (9th Cir. 2014) (quoting Camacho, 523 F.3d at 980).

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At the outset, the Court notes that Plaintiff did not submit any evidence challenging

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the S&G Fee Motion, and that her responses to the Motion largely re-hashes her arguments

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about whether the Attorney Defendants can be considered prevailing defendants under

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California’s anti-SLAPP statute. See generally ECF No. 293. As explained elsewhere in

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this Order, the substance of the Attorney Defendants’ anti-SLAPP claim, the Court’s initial

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order awarding fees, and the Court’s order denying reconsideration of the fee award are the
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subject of the appeal pending before the United States Court of Appeals for the Ninth

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Circuit and are separate from the substance of the instant Fee Motions. The Court therefore

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disregards Plaintiff’s arguments related to issues on which the Court has been divested of

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jurisdiction.

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Plaintiff also challenges the reasonableness of “aggregate attorney fee awards”

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against her as oppressive and in violation of her constitutional rights. ECF No. 293 at 7.

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Plaintiff’s opposition cites to Wakefield v. Visalus, Inc., 51 F.4th 1109 (9th Cir. 2022) in

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support of the proposition that awarding oppressive attorneys’ fees may render such an

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award unconstitutional. Id.; see also ECF No. 285-1 at 7-8. Plaintiff additionally argues

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that, based on the same principle of fairness discussed in Wakefield, the attorney fees

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should be reversed or drastically reduced. Id. While Plaintiff argues that the use of

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prevailing rates is not reasonable, she argues only that the prevailing rates are “artificially

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inflated” and that “the only reason to make legal services so expensive” “is to oppress the

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masses.” ECF No. 293-1 at 8 (emphasis in original).

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The Court in Wakefield found that aggregated statutory damages are “subject to

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constitutional limitation in extreme situations—that is, when they are ‘wholly

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disproportioned’ and ‘obviously unreasonable’ in relation to the goals of the statute and

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the conduct the statute prohibits.” 51 F.4th at 1123 (citing St. Louis, I.M. & S. Co. v.

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Williams, 251 U.S. 63, 67 (1919)). Wakefield is inapposite to this case and the instant

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Motion because it did not involve California’s anti-SLAPP statute and because attorney

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fees were not at issue in Wakefield. As detailed elsewhere in this Order, this Court employs

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the adjusted lodestar method of calculating reasonable fees, which is likewise employed

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by California courts in the context of the anti-SLAPP statute.

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The S&G Defendants submit that they incurred 21.2 hours of work in relation to

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Plaintiff’s appeal of the initial fee award, and an additional 73.1 hours in responding to

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Plaintiff’s further efforts to challenge the fee award, and request to be compensated at an

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hourly rate of $450 per hour for work performed by attorneys for a total of $42,435 for

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94.3 hours of work. ECF No 291 at 16-17. They submit that attorney Corinne Bertsche has
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been licensed to practice law in California for over 27 years, is a certified legal malpractice

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specialist in California, and has been practicing in professional liability for the majority of

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her legal career, with experience in numerous anti-SLAPP motions and judgments, and that

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the rate of $450 per hour is both reasonable and less than the prevailing rates for the

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community for attorneys with similar qualifications. Id. at 17. Together with the Motion,

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Bertsche submitted a declaration detailing the tasks related to the fee motion [ECF No.

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291-2], the USAO Attorney’s Fee Matrix [id. at 14-15], a 2021 wage table from the Office

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of Personnel Management (“OPM”) for San Diego [id. at 17], a 2021 OPM wage table for

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the District of Columbia [id. at 19], and numerous filings from other Court cases in San

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Diego and other California Courts [id. at 21-55] as well as filings from other attorneys with

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similar experience in San Diego charging $550 and $450 hourly rates for similar work

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performed [id. at 57-65].

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Upon review of Bertsche’s declaration detailing the tasks performed, the Court finds

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that the entries are sufficiently detailed for the Court to determine that the tasks were related

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to litigating the S&G Defendants’ anti-SLAPP motion resulting in dismissal of the claims

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against them, and that time incurred is within the range awarded in this district for similar

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cases. Furthermore, while the Court does not endorse the use the USAO Attorney’s Fee

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Matrix, adjusted to San Diego, as substantial evidence of prevailing rates for similar work

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performed in this community, the Court finds that the evidence of other attorney fee awards

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in similar cases in San Diego by Bertsche and other attorneys sufficiently demonstrates

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that $450 per hour is a reasonable rate informed by the prevailing rate for similar work in

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San Diego.

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V.

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In accordance with the above, the S&G Fee Motion is GRANTED. The S&G

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Defendants are awarded $42,435 in attorney fees based on the Court’s adjusted lodestar

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assessment.

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CONCLUSION

IT IS SO ORDERED.
Dated: May 9, 2024

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