1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 KATHRYN KAILIKOLE, an individual, Case No.: 18-cv-02877-AJB-MSB 11 Plaintiff,

ORDER GRANTING IN PART

12 v. PLAINTIFF’S MOTION FOR 13 PALOMAR COMMUNITY COLLEGE ATTONEYS’ FEES DISTRICT, a governmental entity; and 14 DOES 1 through 25, inclusive, (Doc. No. 37) 15 Defendant. 16 17 Before the Court is Plaintiff’s motion for attorneys’ fees. (Doc. No. 37.) For the 18 reasons stated herein, the Court GRANTS IN PART the motion. 19 I. BACKGROUND 20 Kathryn Kailikole (“Plaintiff”) brought seven causes of action against her former 21 employer, Palomar Community College District (“Defendant” or “District”), which 22 included five state claims and two federal claims, namely one under Title IX of the 23 Education Amendments of 1972, as amended, 20 U.S.C. § 1681 et seq. and another under 24 Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.). (Doc. No. 7.) 25 Defendant thereafter filed a motion to dismiss all seven causes of action pursuant to 26 section 425.16 of the California Code of Civil Procedure (“anti-SLAPP motion”). (Doc. 27 No. 14.) 28 // 1 On August 22, 2019, the Court denied Defendant’s anti-SLAPP motion in its 2 entirety. (Doc. No. 34.) The Court declined to dismiss the five state causes of action 3 because Defendant did not establish that its conduct was within the scope of “protected 4 activity.” (Id. at 9.) The Court also denied the motion as to the federal causes of action 5 under Title IX and Title VI, finding that “[t]he law is unequivocally clear; California’s 6 anti-SLAPP statute does not apply to federal claims.” (Id. at 3.) 7 The Court then ordered Plaintiff to “submit an itemization detailing the attorneys’ 8 fees incurred in opposing Defendant’s motion to dismiss the federal claims pursuant to 9 Cal. Code Civ. Proc. § 425.16.” (Id. at 10 (emphasis in original).) Pursuant to the Court’s 10 Order, Plaintiff submitted an attorneys’ fee application, requesting $19,414.56, inclusive 11 of the hours spent on the fee application. (Doc. Nos. 37, 51 at 3.) Defendant opposed the 12 application, arguing that the Court did not have jurisdiction to impose attorneys’ fees 13 resulting from its anti-SLAPP motion, and that Plaintiff’s requested fees are excessive. 14 (Doc. No. 48 at 2, 6.) 15 II. LEGAL STANDARD 16 Pursuant to 28 U.S.C. § 1927, an attorney “who so multiplies the proceedings in 17 any case unreasonably and vexatiously may be required by the court to satisfy personally 18 the excess costs, expenses, and attorneys’ fees reasonably incurred because of such 19 conduct.” Sanctions under § 1927 requires a finding of bad faith or recklessness. Lahiri v. 20 Universal Music & Video Distrib. Corp., 606 F.3d 1216, 1219 (9th Cir. 2010); In re 21 Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 436 (9th Cir.1996). “Bad faith is present 22 where an attorney knowingly or recklessly raises a frivolous argument.” Keegan, 78 F.3d 23 at 436. An argument is frivolous if it is “wholly without merit” or “the result is obvious.” 24 Int’l Union of Petroleum & Industrial Workers v. W. Indus. Maint., Inc., 707 F.2d 425, 25 430 (9th Cir. 1983); In re Nat’l Mass Media Telecomm. Sys., Inc., 152 F.3d 1178, 1181 26 (9th Cir. 1998). If sanctions are awarded, § 1927 “authorizes the taxing of only excess 27 costs incurred because of an attorney’s unreasonable conduct; it does not authorize 28 imposition of sanctions to reimburse a party for the ordinary costs of trial.” United States 1 v. Associated Convalescent Enterprises, Inc., 766 F.2d 1342, 1347 (9th Cir. 1985). 2 Reasonableness is the benchmark for sanctions, and reasonable attorneys’ fees are 3 determined based on the two-part “lodestar” approach. Intel Corp. v. Terabyte Int’l, 6 4 F.3d 614, 622 (9th Cir. 1993) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). 5 Moreover, “costs of obtaining sanctions may be included in a sanctions award under 6 § 1927.” Blixseth v. Yellowstone Mountain Club, LLC, 854 F.3d 626, 631 (9th Cir. 2017). 7 III. DISCUSSION 8 A. Authority to Award Attorneys’ Fees 9 Defendant asserts that the Court lacks authority to issue sanctions in this case, and 10 that his anti-SLAPP motion was brought in good faith and not frivolous. (Doc. No. 48 at 11 2–4.) The Court disagrees. 12 Section 1927 authorizes the Court to issue sanctions for Defendant’s attorney’s 13 unreasonable and vexatious multiplication of proceedings in this case. See 28 U.S.C. 14 § 1927. Notwithstanding the fact that “[t]he law is unequivocally clear; California’s 15 anti-SLAPP statute does not apply to federal claims,” (Doc. No. 34 at 3), Defendant 16 sought to dismiss Plaintiff’s federal causes of action by filing an anti-SLAPP motion 17 against those claims, (Doc. No. 14 at 14). See Hilton v. Hallmark Cards, 599 F.3d 894, 18 901 (9th Cir. 2010) (“a federal court can only entertain anti-SLAPP special motions to 19 strike in connection with state law claims”); Bulletin Displays, LLC v. Regency Outdoor 20 Adver., Inc., 448 F.Supp.2d 1172, 1180–82 (C.D. Cal. 2006) (“Although the anti-SLAPP 21 statute does apply to state law claims brought in federal court . . . it does not apply to 22 federal question claims in federal court because such application would frustrate 23 substantive federal rights.”) (citations omitted). Given the clarity of law on this issue, the 24 Court finds that the anti-SLAPP motion against Plaintiff’s federal claims was “entirely 25 without merit,” and that its result was “obvious.” Int’l Union of Petroleum & Industrial 26 Workers, 707 F.2d at 430. 27 Moreover, despite having multiple occasions to brief the issue of attorneys’ fees 28 relating to the anti-SLAPP motion, Defendant presented no argument as to why its 1 anti-SLAPP motion against the federal causes of action was not frivolous other than to 2 assert that because it challenged Plaintiff’s federal claims along with her state law claims, 3 “[a]s a whole, the motion was brought in good faith, and was not frivolous.” (Doc. No. 48 4 at 4 (emphasis in original).) This argument is unavailing. There is no requirement that a 5 defendant challenge all causes of action even where the challenge is clearly inapplicable 6 to some. See Toombs v. Leone, 777 F.2d 465, 471 (9th Cir. 1985) (“Of course, counsel’s 7 avowed concern for thoroughness and completeness is not inconsistent with a finding of 8 recklessness or bad faith.”). Thus, the Court finds that Defendant’s anti-SLAPP 9 arguments as to the federal claims were frivolous.1 See Keegan, 78 F.3d at 436; Int’l 10 Union of Petroleum & Industrial Workers, Inc., 707 F.2d at 430. 11 Furthermore, a reasonable attorney performing legal research would have readily 12 discovered case law unequivocally contrary to Defendant’s anti-SLAPP arguments on the 13 federal claims. The quality of Defendant’s arguments was therefore “a gross deviation 14 from the standard of” legal arguments one would expect under these circumstances. 15 Recklessly, Black’s Law Dictionary (11th ed. 2019). As such, the Court finds that 16 Defendant “recklessly raised a frivolous argument,” and therefore engaged in conduct 17 tantamount to bad faith. Keegan, 78 F.3d at 436. 18 19 1 Defendant appears to argue that his anti-SLAPP motion against the federal claims was not without 20 merit because “[t]here is a split of authority as to whether or not a defendant can utilize a state’s 21 anti-SLAPP statute in federal court to challenge a complaint.” (Doc. 48 at 2.) In support, Defendant cited the concurring opinion in Makaeff v. Trump Univ., LLC, 715 F.3d 254 (9th Cir. 2013) for the 22 proposition that U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc. “is wrong and should be reconsidered.” (Doc. 48 at 3.) Defendant’s reliance on this concurring opinion, however, is misplaced 23 because Newsham has no bearing on the question at issue here. The issue here is whether California’s anti-SLAPP statute may be applied against federal claims, whereas Newsham concerned whether the 24 anti-SLAPP statute may be applied against state law claims in federal diversity suits. As such, the 25 concurring opinion’s disagreement with how Newsham applied the Erie doctrine does not affect the federal question claims in this case. The distinction is readily apparent. 26 The Court also notes that in this section of Defendant’s opposition to Plaintiff’s request for attorneys’ 27 fees, it made repeated references to “Ninth District.” (Id. at 2–3.) There being no “Ninth District” in the federal court or California state system, the Court construes these references as meaning the Ninth 28 1 Based on the foregoing, the Court finds that by recklessly bringing a frivolous 2 anti-SLAPP motion against Plaintiff’s federal claims, Defendant has unnecessarily 3 multiplied these proceedings. Accordingly, pursuant to 28 U.S.C. § 1927, the Court 4 awards Plaintiff reasonable attorneys’ fees incurred in defending her federal claims 5 against the anti-SLAPP motion.2 6 B. Reasonableness of Requested Fees 7 Plaintiff requests attorneys’ fees in the amount of $19,414.56, which includes 8 hours spent on the fee application and reply. (Doc. Nos. 37, 51 at 3) Under the two-part 9 lodestar approach for determining attorneys’ fees, the court “must first determine the 10 presumptive lodestar figure by multiplying the number of hours reasonably expended on 11 the litigation by the reasonable hourly rate.” Intel Corp., 6 F.3d at 622 (citing Hensley v. 12 Eckerhart, 461 U.S. 424, 433 (1983)). Second, the court considers whether to adjust the 13 presumptively reasonable lodestar figure based on factors listed in Kerr v. Screen Extras 14 Guild, Inc., 526 F.2d 67, 69–70 (9th Cir. 1975). Intel Corp., 6 F.3d at 622. “The fee 15 applicant has the burden of producing satisfactory evidence, in addition to the affidavits 16 of its counsel, that the requested rates are in line with those prevailing in the community 17 for similar services.” Id. at 622–23. If the applicant satisfies its burden of showing that 18 the asserted rate and hours expended are reasonable, “the resulting product is presumed to 19 be the reasonable fee.” Id. at 622–23. 20 1) Hourly Rates 21 Plaintiff’s attorneys assert that the hourly rates of $550 for Evan Dwin (“Mr. 22 Dwin”) and $300 for Miguel Mendez-Pintado (“Mr. Mendez-Pintado”) are reasonable 23 based on the prevailing market rate and the relevant community of San Diego, California. 24 (Doc. No. 37 at 6–7.) Mr. Dwin is graduate of the University of California Los Angeles 25 School of Law, is the principal of his firm, and has fourteen years of experience 26

27 2 As the Court awards attorneys’ fees pursuant to its statutory authority under 28 U.S.C. § 1927, it need not consider Defendant’s argument that the Court lacks authority to enforce the sanctions provisions of 28 1 practicing law. (Id. at 6–7.) In support of his requested rate, Mr. Dwin submitted cases 2 arising in the Southern District of California to show that his hourly rate is consistent 3 with those previously approved in the local community for attorneys with similar 4 experience. (Id. at 6; Doc. No. 37-1 at 12–92.) Based on this evidence, the Court finds 5 that Mr. Dwin’s claimed hourly rate of $550 is reasonable. See Intel Corp., 6 F.3d at 6 622–23. As to Mr. Mendez-Pintado, he graduated from the University of San Diego 7 School of Law in 2018 and has one year of experience. (Doc. Nos. 37 at 6–7, 37-1 at 2.) 8 To determine the local market rate for similarly situated attorneys, Mr. Dwin telephoned 9 counsel for Defendant, Kevonna Ahmad (“Ms. Ahmad”), who graduated from the same 10 law school and in the same year as Mr. Mendez-Pintado. (Doc. No. 37-1 at 7.) Ms. 11 Ahmad relayed that her hourly rate was $310. Based on this evidence, the Court finds 12 that Mr. Mendez-Pintado’s claimed hourly rate of $300 is reasonable. See Intel Corp., 6 13 F.3d at 622–23. 14 2) Hours Expended 15 Turning to the hours expended in defending the federal causes of action against 16 Defendant’s anti-SLAPP motion, Plaintiff asserts that Mr. Dwin spent 44.8 hours and Mr. 17 Mendez-Pintado spent 29.4 hours. (Doc. No. 37 at 7–8.) These hours were derived from 18 determining the total hours each attorney spent on the entire anti-SLAPP motion, and 19 concluding that 2/7 (29%) of the total is the reasonable hours spent on the federal claims 20 because they comprised two of the seven causes of action challenged by the anti-SLAPP 21 motion. (Id. at 8–9.) This method of calculation appears reasonable at first blush; 22 however, given the clarity of law that the anti-SLAPP statute does not apply to federal 23 claims, the Court does not find that the number of hours spent can be, as Plaintiff 24 proposes, equally apportioned among the seven claims. 25 Although Plaintiff’s counsels maintain that the hours expended are reasonable 26 “[g]iven the complexity of the motion, the number of authorities cited by the District, the 27 volume of purported evidence submitted and the critical importance of prevailing,” (Id. at 28 8), the Court’s authority under § 1927 authorizes an award only for excess costs incurred 1 by the multiplication of the proceedings—here, by having to defend her federal claims. 2 See Associated Convalescent Enterprises, Inc., 766 F.2d at 1347 (Section 1927 3 “authorizes the taxing of only excess costs incurred because of an attorney’s unreasonable 4 conduct”). It does not include costs incurred for the entire anti-SLAPP motion and work 5 that would have been performed, regardless of the attack on the federal claims, i.e., 6 reviewing the moving papers as to the state claims, and the evidence and authority relating 7 thereto. See id. (Section 1927 “does not authorize imposition of sanctions to reimburse a 8 party for the ordinary costs of trial”). 9 As fee applicants, Plaintiff’s counsel bear the burden to demonstrate that they 10 made a “good faith effort to exclude from the fee request hours that are excessive, 11 redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. While Plaintiff’s 12 attorneys claim that they were unable to separate the hours worked between the federal 13 and state claims, their itemized timesheets include time entries that clearly specify hours 14 spent on the federal claims. (Doc. No. 37-1 at 9–10.) The record shows that the time 15 spent on the federal claims was 5.5 hours for Mr. Dwin and 2.7 hours for Mr. 16 Mendez-Pintado. (See, e.g., id. at 9 (“procedural requirements in federal court and 17 application to discrimination cases”), 10 (“use of SLAPP motions for federal causes of 18 actions”).) To the extent that Plaintiff’s attorneys assert that additional hours were spent 19 on issues, evidence, and legal research common to the defense of the federal and state 20 claims, the Court declines to find that such overlap entailed excess costs. 21 In opposing Plaintiff’s fee application, Defendant asserts that the reasonable hours 22 expended should be calculated based on the number of pages Plaintiff used to defend her 23 federal claims. (Doc. 48 at 5–6.) Defendant states that of the twenty-five pages Plaintiff 24 submitted to oppose the entire anti-SLAPP motion, three-and-a-half pages were devoted 25 to the federal claims. (Id. at 5–7; Doc. No. 37 at 9.) The hours reasonably spent on these 26 claims thus amount to 3.5/25 (14%) of the total hours each attorney spent on the motion. 27 Applying Defendant’s algorithm, the reasonable hours spent for Mr. Dwin (14% of 28 44.8 total hours spent on the anti-SLAPP motion) equals 6.3 hours, and the reasonable 1 hours spent for Mr. Mendez-Pintado (14% of 29.4 total hours spent on the anti-SLAPP 2 motion) equals 4.2 hours. These hours approximately track those listed in Mr. Dwin’s and 3 Mr. Mendez-Pintado’s submitted timesheets. (Doc. No. 37-1 at 9–10 (showing 5.5 hours 4 for Mr. Dwin and 2.7 hours for Mr. Mendez-Pintado).) In addition, the Court notes that 5 Mr. Dwin is an experienced employment law attorney, and the defense of the federal 6 claims did not involve unsettled questions of law and were readily resolved through 7 simple case law research. As such, the Court finds these adjusted hours reasonable. See 8 Kerr, 526 F.2d at 670. Multiplying the reasonable hours expended by the reasonable 9 rates, Mr. Dwin’s sum is $3,465 (6.3 x $550), and Mr. Mendez-Pintado’s sum is $1,260 10 (4.2 x $300). Altogether, the excess costs reasonably incurred by Plaintiff in defending 11 her federal claims total $4,725. 12 3) “Fees-on-Fees” 13 Plaintiff also seeks to recover $6,545 for the 11.9 hours Mr. Dwin spent preparing 14 the fee application, plus $3,300 for the 6 hours he spent replying to Defendant’s 15 opposition. (Doc. Nos. 37 at 9, 51-1 at 2.) Defendant contends that given the Court’s 16 simple directive for Plaintiff “to submit an itemization detailing the attorneys’ fees 17 incurred in opposing Defendant’s motion to dismiss the federal claims[,]” (Doc. No. 34 18 at 10), Plaintiff’s claimed hours for the fee application are excessive, (Doc. 48 at 7). 19 Because a fee applicant bears the burden to demonstrate the reasonableness of their 20 request, a court may reduce the requested award where documentation of the time 21 expended is inadequate. See Hensley, 461 U.S. at 433. As to the fee application, the Court 22 finds that certain time entries submitted in support thereof are too vague for the Court to 23 determine whether the hours reflected therein were reasonably expended. For example, 24 counsel submitted the following entries:

25 • begin drafting application for attorney’s fees (1.4) 26 • continue drafting and revising application for fees (.9) • continue drafting and revising application for fees and 27 supporting declaration (1.1) 28 • compile evidence in support of fee application (1.2) 1 • draft and revise fee application and supporting declaration (1.2) • continue drafting and revising fee application and supporting 2 declaration (1.3) 3 • compile and prepare exhibits in support of motion (.8) 4 (Doc. No. 37-1 at 9–10.) The Court is unable to determine from these overly generalized 5 entries how much time was spent on the different sections of the fee application, and how 6 much time was spent on the various portions of the 110-page supporting documentation. 7 (Doc. No. 37, 37-1.) Neither the fee application nor Mr. Dwin’s corresponding 8 declaration provide details necessary to determine whether the hours expended on these 9 entries were reasonable, as opposed to redundant and unnecessary. Without more, the 10 Court does not find that counsel has met his burden of demonstrating the reasonableness 11 of certain time entries reflected in his billing records. As such, the Court will deduct the 12 insufficiently detailed billing entries listed above, which total 7.9 hours, from the 13 requested 11.9 hours for the fee application. Thus, Plaintiff’s counsel may recover 4 14 hours for the fee application. 15 Turning to the hours spent replying to Defendant’s opposition, the Court finds that 16 counsel has adequately accounted for the 6 hours expended on Plaintiff’s reply brief. 17 Because Defendant challenged not only the reasonableness of the fees requested, but also 18 the authority upon which the Court could award fees, Plaintiff was forced to conduct 19 additional research and draft a brief responsive to Defendant’s multi-layered arguments. 20 (See Doc. No. 51-1 at 2.) Therefore, the Court finds that the claimed 6 hours spent on the 21 reply brief in support of the fee application is reasonable. Accordingly, adding the 22 reasonable hours spent on the fee application and reply (4 hours + 6 hours = 10 hours), 23 multiplied by Mr. Dwin’s reasonable hourly rate (10 hours x $550), the Court concludes 24 that Plaintiff’s counsel is entitled to “fees-on-fees” award of $5,500. See Blixseth, LLC, 25 854 F.3d at 631. 26 // 27 // 28 // 1 IV. CONCLUSION 2 For the foregoing reasons, the excess costs reasonably incurred by Plaintiff in 3 || defending her federal claims total $4,725, and those associated with the fee application 4 $5,500. Added together, these costs equal $10,225. Thus, the Court GRANTS IN 5 || PART Plaintiff's motion for attorneys’ fees, and awards Plaintiff fees in the reduced 6 ||amount of $10,225. 7 8 || IT IS SO ORDERED. ? Dated: October 22, 2020 © x : 10 Hon. Anthony J.Battaglia 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10