Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Heather McDonald 

 

RESPONDING PARTY: Plaintiff Gina Bisignano 

 

 

BACKGROUND 

 

  Plaintiff Gina Bisignano has sued various defendants for their coverage of her provocative comments during a COVID-19 lockdown protest and her participation in the January 6, 2021 protests at the United States Capitol.  Plaintiff claims Defendants’ actions resulted in the demise of her previously “thriving” beauty salon business in Beverly Hills.   

One of those defendants is Heather McDonald, a comedian and podcaster. McDonald interviews celebrities and covers reality TV and other entertainment news.  In May 2021, McDonald hosted another defendant, Josh Flagg, on her podcast, “Juicy Scoop”.  McDonald and Flagg discussed Flagg’s interview of Bisignano after she was filmed calling a COVID 19 counter-protestor a “faggot” and the person filming her a “Nazi” and a “new world order Satanist”.  McDonald and Flagg also discussed Bisignano’s arrest at the Capitol, with Flagg claiming that Bisignano called him to ask for money while she was in jail.  During the interview, McDonald and Flagg referred to Bisignano as a “crazy lady,” a “Qanon person” and a “terrorist.” 

The operative complaint alleges eight causes of action for (1) misappropriation of likeness or identity, (2) violation of California Civil Code §3344, (3) invasion of privacy false light, (4) business defamation, (5) tortious interference with business relations, (6) tortious interference with contractual relations, (7) unfair business practices, and (8) declaratory relief. 

The Court previously granted McDonald’s special motion to strike, finding that Plaintiff’s claims were based on protected activity and had no merit as they were time-barred and Plaintiff could not prove the essential element of actual malice.      

This hearing is on McDonald’s motion for attorneys’ fees.  McDonald seeks to recover $58,281.25 in fees, $495 in costs, and $104.13 in expenses given she is the prevailing party on her anti-SLAPP motion.  Plaintiff has not filed an opposition.     

LEGAL STANDARD 

A prevailing defendant as to a special motion to strike is entitled to mandatory, reasonable attorney fees and costs. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141-1142; CCP § 425.16(c); Weil & Brown, Cal. Prac. Guide: Civ. Pro Before Trial (The Rutter Group 2011) ¶7:1120.)  The determination of a reasonable amount of attorney fees is within the sound discretion of trial courts.  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.) 

An award of fees may include not only the fees incurred with respect to filing the special motion to strike, but also the fees incurred in seeking mandatory fees under Code Civ. Proc. § 425.16.  (Ketchum, 24 Cal.4th at 1141.)  The anti-SLAPP statute is “intended to compensate a defendant for the expense of responding to a SLAPP suit.  To this end, the provision is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit.”  (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22.)  

To determine a reasonable attorney fee award for an anti-SLAPP motion, the California Supreme Court held that the lodestar approach should be applied.  (Ketchum, 24 Cal.4th at 1136.)  The lodestar is calculated “based on the reasonable hours spent, multiplied by the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type.”  (Id. at 1133.)  The reasonable hourly rate is “the product of a multiplicity of factors … [including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorneys’ reputation and the undesirability of the case.”  (Id. at 1139.)   The lodestar figure may be adjusted based on various factors including “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.”  (Id. at 1132.)   

DISCUSSION 

McDonald is entitled to recover attorneys’ fees and costs as the prevailing party on an anti-SLAPP motion which resulted in the striking of all claims against it.  (Ketchum, 24 Cal.4th at 1141-1142.)  To determine the reasonable fees to award, the Court starts with the lodestar approach, which requires a determination of the reasonable hourly rate and the reasonable hours spent.    

McDonald seeks reimbursement based on an hourly rate of $800 for lead attorney Jeffrey Lewis, $450 for his associate Sean Rotstan, and $225 for two paralegals, Jason Ebbens and Renee Miramontes.   

Mr. Lewis has been practicing law for 25 years.  (Lewis Decl. ¶5.)  He has been deemed an expert in anti-SLAPP matters by a judge of the Los Angeles Superior Court.  (Lewis Decl. ¶ 7(i).)   He has made and opposed over a dozen anti-SLAPP motions at the trial and appellate levels.  (Lewis Decl. ¶7.)  His hourly rate of $800 has been deemed reasonable by judges of the Los Angeles, San Francisco and Orange County Superior Courts.  (Lewis Decl. ¶7.)  Mr. Lewis’ hourly rate of $800 is in line with rates in other cases where courts have granted fee awards to attorneys with similar experience.  (See, e.g., Schneider v. Chipotle Mexican Grill Inc. (N.D. Cal. 2020) 336 F.R.D. 588, 601 (finding rates of $830 to $1,275 for partners reasonable); San Diego Comic Convention v. Dan Farr Productions (S.D. Cal. 2019) 2019 U.S. Dist. LEXIS 64418, at *39-*45 (finding reasonable hourly rates of $760 for partners with 28-29 years of experience); Hefler v. Wells Fargo & Co. (N.D. Cal. 2018) 2018 U.S. Dist. LEXIS 213045 at *39 (rates from $650 to $1,250 for partners or senior counsel are reasonable); Kikkert v. Berryhill (S.D. Cal. 2018) 2018 U.S. Dist. LEXIS 127237 at *5 (finding hourly rate of $943 reasonable, citing other decisions in the district approving rates from $656 to $886); Makaeff v. Trump Univ. LLC (S.D. Cal. 2015) 2015 U.S. Dist. LEXIS 46749 at *11-*15 (finding reasonable rates of $600 to $825 for partners).) 

Mr. Rotstan has been practicing law for five years.  (Lewis Decl. ¶4.)  He is a graduate of the Chapman University Dale E. Fowler School of Law.  (Lewis Decl. ¶4.)  He has made and opposed over a dozen anti-SLAPP motions at the trial and appellate levels.  (Lewis Decl. ¶¶4, 7.)  Judges in Los Angeles, Orange County, and San Francisco have approved Mr. Rotstan’s hourly rate of $450.  (Lewis Decl. ¶7.)   

Mr. Ebbens is a senior paralegal with more than 12 years experience in civil litigation.  (Lewis Decl. ¶4.)  He has worked on over two dozen anti-SLAPP motions at the trial and appellate levels.  (Lewis Decl. ¶4.)  Renee Marimontes is another paralegal at Jeff Lewis Law.  The requested rate of $225 per hour for paralegals has been found reasonable by other courts.  (Lewis Decl. ¶7.)       

The Court next considers the reasonable time spent.  In connection with the anti-SLAPP motion, Mr. Lewis spent a total of 14.9 hours; Mr. Rotstan spent 10.4 hours, and both paralegals spent a total of 16.5 hours.  For the fee motion, Mr. Lewis expects to spend 6 hours, Mr. Rostan 4 hours, and the paralegals 4 hours.  The Court finds these hours reasonable.  (See, e.g., Herring Networks Inc. v. Maddow (S.D. Cal. 2021) 2021 U.S. Dist. LEXIS 23163 at *30-31 (awarding attorneys’ fees based on 363 hours worked on anti-SLAPP motion); Lacoste v. Keen (C.D. Cal. 2020) 2020 U.S. Dist. LEXIS 263559 at *10-11 (awarding attorneys’ fees based on 275 hours worked on anti-SLAPP motion); Open Source Sec., Inc. v. Perens (N.D. Cal. 2018) 2018 U.S. Dist. LEXIS 98169 at *2 (awarding attorneys’ fees based on a total of 446 hours for anti-SLAPP motion).) 

McDonald also seeks a multiplier of 1.5, given her counsel was retained on a contingency fee basis.  The court may apply a multiplier based on contingent risk.  In contingent fee cases, a fee enhancement compensates the lawyer for having taken the case despite the risk of receiving no payment in the event of a loss or the risk of a delayed payment in the event of a victory. (Ketchum, 24 Cal.4th at 1132–1133, 1137–1138.)  The enhancement “is intended to approximate market-level compensation for” cases taken on contingency, “which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees.”  (Id. at 1138.)  While the Court recognizes that defense counsel was retained under a contingency fee agreement, the Court does not find that this litigation warrants a fee enhancement.  The anti-SLAPP motion was typical, not exceedingly complex and did not involve novel issues, and therefore, a lodestar multiplier is not warranted.      

McDonald also seeks costs and expenses of $599.13 for service fees, filing fees, and other court fees.  The Court concludes these amounts are reasonable.   

CONCLUSION 

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART McDonald’s motion for attorneys’ fees.   Plaintiff is directed to pay $28,411.13 to McDonald’s counsel within 30 days of this Order.    

   

DATED: May 17, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court