Du Bois v. Boskovich

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BEKAH DU BOIS, Case No. 21-cv-03224-HSG

8 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR 9 v. ATTORNEYS’ FEES

10 ANTHONY BOSKOVICH, et al., Re: Dkt. No. 62 11 Defendants.

12 13 Pending before the Court is Defendant Anthony Boskovich’s motion for attorneys’ fees. 14 Dkt. No. 62. The Court finds this matter appropriate for disposition without oral argument and the 15 matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the Court 16 GRANTS IN PART and DENIES IN PART the motion. 17 In February 2023, the Court granted Defendant’s motion to strike under California’s anti- 18 SLAPP statute. Dkt. No. 60 at 2–8. As the prevailing party, Defendant now moves for attorneys’ 19 fees under Cal. Civ. Proc. Code § 425.16(c)(1). In her opposition brief, Plaintiff Bekah DuBois 20 indicates that she lacks the ability to pay any amount of attorneys’ fees. See Dkt. No. 65 at 2. But 21 the award of attorneys’ fees to a prevailing defendant in an anti-SLAPP motion is mandatory. Cal. 22 Civ. Proc. Code § 425.16(c)(1); Ketchum v. Moses, 24 Cal. 4th 1122, 1131 (Cal. 2001) (“[A]ny 23 SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney 24 fees.”). Plaintiff does not cite—and the Court is unaware of—any authority giving the Court 25 discretion to consider her ability to pay in awarding fees under the anti-SLAPP statute. Cf. Khai v. 26 Cnty. of Los Angeles, 730 F. App’x 408, 411, & n.2 (9th Cir. 2018) (“[The plaintiff] did not ask 27 the court to consider his ability to pay, nor is it clear that the court would be permitted to do so 1 Rather, the Court considers whether the requested fees are reasonable. Courts typically 2 employ the “lodestar method” to calculate an appropriate award of attorneys’ fees. See Ketchum, 3 24 Cal. 4th at 1131–32. The lodestar figure is calculated by multiplying the number of hours the 4 prevailing party reasonably expended by a reasonable hourly rate. Id. at 1133. This figure can be 5 adjusted based on factors such as “the novelty and difficulty of the questions involved” and “the 6 skill displayed in presenting them.” Id. at 1132. The lodestar should only include fees incurred in 7 connection with the anti-SLAPP motion itself, and not for the entire action. See Wanland v. L. 8 Offs. of Mastagni, Holstedt & Chiurazzi, 141 Cal. App. 4th 15, 21 (Cal. Ct. App. 2006); see also 9 Ketchum, 24 Cal. 4th at 1141 (“[A]n award of fees may include not only the fees incurred with 10 respect to the underlying claim, but also the fees incurred in enforcing the right to mandatory fees 11 under Code of Civil Procedure section 425.16.”). 12 In this case, Defendant was represented by law firm Rankin, Shuey, Ranucci, Mintz, 13 Lampasona & Reynolds. As relevant to the request for fees, attorney Damon Thurston spent 28 14 hours researching and drafting the anti-SLAPP motion; 3.8 hours preparing the motion for 15 attorneys’ fees; and anticipated spending approximately 2.5 additional hours reviewing and 16 responding to the opposition, for a total of 34.3 hours. See Dkt. No. 62-1 (“Thurston Decl.”) at 17 ¶¶ 3–4. Rather than provide the actual billing records for this case, Mr. Thurston provided in his 18 declaration a summary table of the time he spent on various tasks related to the anti-SLAPP 19 motion in this case. See id. He also cites the Laffey Matrix, a table of attorney fee hourly rates 20 used in the District of Columbia. Id. at ¶¶ 6–8. When adjusted for the San Francisco Bay Area, 21 Mr. Thurston contends that the matrix results in an hourly rate of over $990 for an attorney of his 22 experience level. See id. Nevertheless, Mr. Thurston concludes that a reasonable hourly rate for 23 his time in this case based on his twenty-five years of experience is $450 an hour. See id. Thus, 24 in his motion for attorneys’ fees Defendant requests an award of $15,435 in fees.1 25 Plaintiff responds that Defendant did not actually have to pay any fees associated with this 26 case because they were covered by his malpractice insurance. See Dkt. No. 65 at 2–3. Plaintiff 27 1 further notes that Mr. Thurston actually billed at only $200 an hour, less than half of the requested 2 hourly fee. See id. In support, Plaintiff attaches several “courtesy copies” of invoices that she 3 received from Rankin, Shuey, Ranucci, Mintz, Lampasona & Reynolds for work incurred 4 litigating this case. See Dkt. No. 64-2, Ex. A; Dkt. No. 65-4, Ex. C. In short, Plaintiff suggests 5 that the Court should not award fees above the hourly rate Mr. Thurston actually billed in this 6 case. 7 Yet courts have routinely rejected this idea. As the California Court of Appeal has 8 explained: 9 There is no requirement that the reasonable market rate mirror the 10 actual rate billed . . . “The reasonable market value of the attorney’s services is the measure of a reasonable hourly rate. This standard 11 applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, 12 represent the client on a straight contingent fee basis, or are in-house counsel.” 13 14 Syers Properties III, Inc. v. Rankin, 226 Cal. App. 4th 691, 701 (Cal. Ct. App. 2014) (quoting 15 Chacon v. Litke, 181 Cal. App. 4th 1234, 1260 (Cal. Ct. App. 2010)) (emphasis in original); see 16 also Pasternack v. McCullough, 65 Cal. App. 5th 1050, 1057–58 (Cal. Ct. App. 2021) (rejecting 17 argument that lodestar must be calculated based on rate insurer actually paid). The determination 18 of reasonable fees is generally within the trial court’s sound discretion. See Syers Properties III, 19 226 Cal. App. 4th at 702–03. 20 Having reviewed the record in detail, the Court finds that the hours incurred by counsel are 21 reasonable. The motion for attorneys’ fees only seeks recovery for those hours spent preparing the 22 anti-SLAPP motion and related motion for attorneys’ fees. The Court further finds that counsel 23 appeared to work efficiently, spending only 34.3 hours researching and drafting two substantive 24 motions. However, the Court disagrees that $450 is a reasonable rate given the circumstances of 25 this case. Defendant does not appear to dispute that he actually billed only $200 an hour in this 26 case. See Dkt. No. 66 at 2. And although, as explained above, the reasonable market rate does not 27 have to match counsel’s actual billed rate, Defendant still bears the burden of supporting his 1 to support his assertion that $450 an hour is a reasonable rate for the work performed in this case. 2 Defendant cites but then disregards the Laffey Matrix. And in any event, the matrix itself offers no 3 adjustments for the context or complexity of the case. This case presented a straightforward 4 application of the anti-SLAPP statute. As the Court explained in its prior order, the complaint 5 itself alleged that Defendant’s misconduct occurred as part of his legal work representing 6 || Plaintiffs ex-husband in a family court case. See Dkt. No. 60. Defendant has not proffered any 7 support for his contention that a reasonable consumer of legal services would pay $450 an hour for 8 such a routine motion, and the Court does not find this credible. Based on the nature of this case 9 and the arguments presented, the Court finds that a reasonable rate for the work incurred is $200 10 an hour. In its discretion, the Court therefore GRANTS IN PART and DENIES IN PART the 11 motion for attorneys’ fees, awarding fees for Defendant in the amount of $6,860.” 12 IT IS SO ORDERED.

13 || Dated: 5/24/2023 HAYWOOD S. GILLIAM, JR. IS United States District Judge 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28 || > 34.3 hours x $200 = $6,860.