KIMBERLY KOERBER VS CENGAGE LEARNING INC ET AL

Tentative Rulings

Case Number: ****9878    Hearing Date: April 30, 2021    Dept: 39

Kimberly Koerber v. Cengage Learning, Inc., et al.

Case No. ****9878

Motion for Attorney’s Fees

Plaintiff Kimberly Koerber (“Koerber”) worked for Cengage Learning, Inc. and Cengage Learning Holdings II, Inc. (collectively, “Cengage”) selling educational materials. Plaintiff was fired in January 2016 after Project Veritas published footage of a secretly recorded interview in which Koerber made disparaging comments about opponents of the Common Core curriculum, Republicans, Texas school administrators, and the Second Amendment. In February 2017, Koerber sued Project Veritas, Cengage, and other defendants relating to the secret recording, as well as her termination. The Court (Feffer, J.) granted an anti-SLAPP motion, finding that Project Veritas’s challenged conduct was protected journalistic and reporting activity under the anti-SLAPP statute and that, in any event, Koerber failed to demonstrate a probability of prevailing on the merits. In March 2018, Project Veritas field a motion for attorney’s fees and costs under Code of Civil Procedure section 425.16, which was granted.

Koerber filed three separate appeals. First, Koerber appealed Judge Feffer’s grant of the anti-SLAPP motion, which was affirmed. Second, Koerber appealed Judge Feffer’s orders granting motions to quash service of the summons and complaint, which were dismissed as moot. Third, Koerber appealed Judge Feffer’s decision to award Project Veritas attorney’s fees in the amount of $63,970 plus $1,680.13 in costs.

Now, Project Veritas seeks attorney’s fees in the amount of $29,010 relating to the latest appeal and this motion. Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(B), attorney fees when authorized by statute are allowable as costs and may be awarded upon a noticed motion pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5). In determining what fees are reasonable, California courts apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “[t]he lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant factors include: “(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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).)

Project Veritas seeks judicial notice of certain Court filings. The Court does so pursuant to, and within the parameters of, Evidence Code section 452(d). The Court overrules the parties’ evidentiary objections but gives no evidentiary weight to materials that are argumentative or draw improper legal conclusions.

Koerber does not challenge the Court’s authority to award attorney’s fees, and Project Veritas is entitled to recover its costs on appeal, per the District Court of Appeal’s decision. G. David Rubin, Esq. spent 24.4 hours on the appeal, and Elizabeth M. Sanguinetti spent 89 hours on the appeal. These hours are reasonable and supported by the record. The case did not appear to be overstaffed, as Ms. Sanguinetti did approximately 80% of the work, and Mr. Rubin did 20% of the work. Therefore, the Court finds no basis to write-down the hours. The billing rates in the case are (imminently) reasonable. Mr. Rubin charged $250 per hour, and Ms. Sanguinetti charged $200 per hour. The Court finds it inconceivable that Project Veritas could have found qualified attorneys to handle an appeal at lower rates. Therefore, the Court finds no basis to write-down the rates.

Based upon the foregoing, Project Veritas is entitled to $23,900 in attorney’s fees, based upon: (1) 24.4 hours at $250 per hour, or $6,100, and (2) 89 hours at $200 per hour, or $17,800. The only remaining issue is determining how much to award for the pending motion. Counsel requests $5,110 based upon 4.2 hours by Mr. Rubin and 20 hours by Ms. Sanguinetti. While Counsel’s billing rates are reasonable, the Court authorizes only 15 hours by Ms. Sanguinetti. Therefore, the Court awards an additional $4,050 in attorney’s fees, based upon (1) 4.2 hours by Mr. Rubin at $250 per hour, and (2) 15 hours by Ms. Sanguinetti at $200 per hour. The Court orders payment of $60 as a filing fee for the instant motion, and $390 for costs on appeal.

The Court has considered Koerber arguments and finds them to be without merit. Therefore, the Court orders Koerber to pay attorney’s fees to Project Veritas, by and through counsel, in the total amount of $28,400.

CONCLUSION AND ORDER

The Court orders Plaintiff Kimberly Koerber to pay Project Veritas, by and through counsel, attorney’s fees and costs in the total amount of $28,400, to be paid within thirty (30) days. Since Plaintiff dismissed the case against all other defendants on March 2, 2020, and because no party objected, the Court dismisses this case with prejudice though the Court retains jurisdiction to enforce this order and, if necessary, issue a judgment against Kimberly Koerber. Counsel for Project Veritas shall provide notice and file proof of such with the Court.