On 10/25/2017 KIMBERLY KOERBER filed a Personal Injury - Assault/Battery/Defamation lawsuit against PROJECT VERITAS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELAINE LU. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
O'KEEFE JAMES III
PROJECT VERITAS ACTION FUND
DOES 1 TO 100
RAND-LEWIS SUZANNE E. ESQ.
RAND-LEWIS SUZANNE ELIZABETH ESQ.
RAND-LEWIS TIMOTHY DANN
LITCHFIELD CAVO LLP
RUBIN G DAVID
SANGUINETTI ELIZABETH MARIE
3/9/2018: Minute Order
6/18/2018: Minute Order
7/19/2018: NOTICE OF LODGING OF EXHIBITS A AND C TO THE DECLARATION OF RUSSELL VERNEY FILED IN SUPPORT OF DEFENDANTS PROJECT VERITAS, PROJECT VERITAS ACTION FUND, JAMES O'KEEFE III, AND CHRISTIAN HARTSOCK'S SPEC
7/19/2018: NOTICE OF LODGING OF EXHIBITS H AND I TO THE DECLARATION OF ELIZABETH M. SANGUINETTI FILED IN SUPPORT OF DEFENDANTS PROJECT VERITAS, PROJECT VERITAS ACTION FUND, JAMES O'KEEFE III, AND CHRISTIAN HARTS
7/19/2018: DECLARATION OF ELIZABETH M. SANGUINETTI FILED IN SUPPORT OF DEFENDANTS PROJECT VERITAS, PROJECT VERITAS ACTION FUND, JAMES O'KEEFE III, AND CHRISTIAN HARTSOCK'S NOTICE OF MOTION AND SPECIAL MOTION TO
7/19/2018: DECLARATION OF ELIZABETH M. SANGUINETTI FILED IN SUPPORT OF DEFENDANTS PROJECT VERITAS, PROJECT VERITAS ACTION FUND, JAMES O'KEEFE III, AND CHRISTIAN HARTSOCK'S DEMURRER TO PLAINTIFF'S COMPLAINT (SLAP
7/24/2018: NOTICE OF POSTING JURY FEES
7/24/2018: CIVIL DEPOSIT
12/7/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
4/22/2019: Minute Order
12/20/2017: PROOF OF SERVICE SUMMONS
Notice (of Stay of Proceedings Pursuant to CCP 916); Filed by PROJECT VERITAS (Defendant); PROJECT VERITAS ACTION FUND (Defendant); JAMES III O'KEEFE (Defendant)Read MoreRead Less
Appeal - Notice of Appeal/Cross Appeal Filed; Filed by JAMES III O'KEEFE (Appellant); PROJECT VERITAS (Appellant); PROJECT VERITAS ACTION FUND (Appellant)Read MoreRead Less
Notice of Ruling; Filed by PROJECT VERITAS (Defendant); PROJECT VERITAS ACTION FUND (Defendant); JAMES III O'KEEFE (Defendant)Read MoreRead Less
Notice ( of Entry of Judgment or Order); Filed by PROJECT VERITAS (Defendant); PROJECT VERITAS ACTION FUND (Defendant); JAMES III O'KEEFE (Defendant) et al.Read MoreRead Less
at 08:30 AM in Department 26, Elaine Lu, Presiding; Case Management Conference (SPECIAL MOTION TO STRIKE DEMURRER) - Not Held - Continued - Party's MotionRead MoreRead Less
at 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Demurrer - without Motion to Strike - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Notice (of Ruling and Service of Order); Filed by KIMBERLY KOERBER (Plaintiff)Read MoreRead Less
Minute Order ( (Case Management Conference SPECIAL MOTION TO STRIKE DEMURRER)); Filed by ClerkRead MoreRead Less
at 08:47 AM in Department 26, Elaine Lu, Presiding; Ruling on Submitted MatterRead MoreRead Less
Certificate of Mailing for (Minute Order (Ruling on Submitted Matter) of 05/14/2019 and Order Re: (1) Special Motion to Strike by Defendants Project Veritas, Project Veritas Fund, James O'Keefe III and Christian Hartsock; (2) Demurrer to the Complaint); Filed by ClerkRead MoreRead Less
Motion to Quash; Filed by CHRISTIAN HARTSOCK (Defendant)Read MoreRead Less
SPECIALLY-APPEARING PARTY CHRISTIAN HARTSOCK ' NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF PLAINTIFF'S SUMMONS AND COMPLAINT AS TO CHRISTIAN HARTSOCKRead MoreRead Less
Declaration; Filed by CHRISTIAN HARTSOCK (Defendant)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by KIMBERLY KOERBER (Plaintiff)Read MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR DAMAGESRead MoreRead Less
Complaint; Filed by KIMBERLY KOERBER (Plaintiff)Read MoreRead Less
Case Number: BC681083 Hearing Date: December 19, 2019 Dept: 26
Superior Court of California
PROJECT VERITAS, et al.,
Case No.: BC681083
Hearing Date: December 19, 2019
[TENTATIVE] order RE:
defendants project veritas, project veritas action fund, james o’keefe iii, and christian hartsock’s motion for attorney fees and costs pursuant to code of civil procedure § 425.16
On October 25, 2017, plaintiff Kimberly Koerber (“Plaintiff”) filed this action against defendants Project Veritas, Project Veritas Action Fund, James O’Keefe III, Allison Maass and Christian Hartsock alleging causes of action for (1) Intentional Infliction of Emotional Distress, (2) Unfair Business Practices, (3) Negligence, (4) Defamation and (5) Intentional Interference with Prospective Economic Advantage.
The Complaint in relevant part alleges the following: In 2015, during a private meeting with Plaintiff, Defendants, without Plaintiff’s knowledge, secretly recorded Plaintiff’s comments during the meeting. (Complaint ¶¶ 1-2.) Subsequently, in 2016, Defendants used certain portions of the illegally recorded private conversation for its website, Youtube, and other public presentations, in a produced video format, with animated caricatures of Plaintiff, containing highly edited and inaccurate representations of her private statements, which Defendants published without Plaintiff’s knowledge or consent. (Id. ¶¶ 1-2, 7-8.) Defendants did the same thing to another individual who stated in a video that "we don't care about kids, all we care about is money." (Id. ¶¶ 1-2.) Plaintiff was not affiliated with this person and never said the words "we don't care about kids, all we care about is money." (Id.) Plaintiff was terminated from her job as a result of Defendants’ video. (Id. ¶.)
On August 7, 2017, Defendants’ insurer withdrew its coverage for Defendants for claims related to Defendants recording individuals without authorization. (Id. ¶¶ 18-19.)
On September 18, 2017, Defendants decided to replace the loss of insurance funding to cover their expenses with funding obtained from others and made false and defamatory statements that they needed funds because of wrongdoing by Plaintiff. (Id. ¶ 19.) On September 18, 2017, Defendants made further false and defamatory statements in an online video disseminated to the public on Defendants' website, Youtube, Twitter and Facebook, in tweets and writings posted on the defendant' website, Youtube, Twitter and Facebook then republished by numerous others, which Defendants stated were made in order to obtain funds to defend themselves. (Id. ¶ 21.) In particular, Defendants made false allegations that Plaintiff was being “investigated” due to her capacity as an “official” who has influence in the “book publishing industry.” (Id. ¶ 22.) Additionally, Defendants falsely claimed that the investigation of Plaintiff was “the one where they said ‘we don’t care about kids all we care about is money.’” (Id.) None of the statements made by Defendants in the September 18, 2017 video are true. (Id.)
On July 19, 2018, defendants Project Veritas, Project Veritas Action Fund, James O’Keefe III and Christian Hartsock (jointly, “Moving Defendants”) filed an anti-SLAPP motion and demurrer directed at the complaint. Both motions contended that Moving Defendants’ acts were in furtherance of the exercise of their constitutional rights of petition and free speech and are not actionable. Both motions contended that Plaintiff cannot establish a probability of prevailing on the merits of her claims because Plaintiff’s claims are constitutionally or statutorily barred and barred by the litigation privilege, res judicata, collateral estoppel, the Primary Rights doctrine, and via a Plea of Abatement. Moving Defendants also contended that Plaintiff’s claims are not valid causes of action, and Plaintiff cannot make the necessary evidentiary showing that she is likely to prevail on the merits.
Having taken the matter under submission on April 22, 2019, on May 14, 2019, the court granted the special motion to strike in its entirety as to Defendant Christian Hartsock. As to the remaining Moving Defendants, the special motion to strike was granted as to the First (intentional infliction of emotional distress), Third (negligence), and Fifth (intentional interference with prospective economic relations) Causes of Action and denied as to the Second (unfair business practices) and Fourth (defamation) Causes of Action. The demurrer was overruled in its entirety except to the extent that it was mooted by the ruling on the special motion to strike.
On July 11, 2019, Moving Defendants filed the motion for attorney fees and costs pursuant to Code of Civil Procedure Section 425.16. Plaintiff filed an opposition on December 6, 2019. Defendants filed a reply on December 12, 2019.
OBJECTIONS TO EVIDENCE
Plaintiff’s Objections to the Declaration of G. David Rubin and Exhibits Thereto
Objections 1-6: Overruled.
Objections 7-8: Sustained. Relevance, lacks foundation.
Objections 9-31: Overruled
Objections 32-37: Overruled.
Objections 38-42: Overruled.
Objections 43-45: Overruled.
Objection 46: Overruled.
Objection 47: Overruled.
Objection 48: Overruled.
Objection 49: Overruled.
Objection 50: Overruled.
Objection 51: Overruled.
Objection 52: Overruled.
Objection 53: Overruled.
Objection 54: Overruled.
Objection 55-56: Overruled.
Objection 57: Overruled.
Objections 58-63: Overruled.
Plaintiff’s Objections to the Declaration of Elizabeth M. Sanguinetti
Objection 1: Overruled.
Objections 2-: Overruled.
Objections 67-69: Overruled.
Defendants’ Objections to the Declaration of Suzanne E. Rand-Lewis
Objection 1: Overruled.
Objections 2-35: Overruled.
REQUEST FOR JUDICIAL NOTICE
Defendants request that the Court take judicial notice of the following documents attached to the Declaration of G. David Rubin filed with its reply brief: (1) a Court Order, issued on January 12, 2018, granting Defendant Project Veritas’ Motion to Strike (Anti-SLAPP Motion), filed in connection with the first lawsuit (Case No. BC649878) filed by Plaintiff; (2) the May 14, 2019 Order, in connection with Defendants’ Special Motion to Strike (Anti-SLAPP Motion), filed in connection with this lawsuit (Case No. BC681083) filed by Plaintiff; and (3) the decision issued by the Court of Appeal on September 26, 2019, in connection with the order granting Defendant Project Veritas’ Special Motion to Strike (Anti-SLAPP Motion), filed in connection with the first lawsuit (Case No. BC649878).
The court, in its discretion, will deny Defendants’ request for judicial notice filed with its reply. (See Newhall County Water District v. Castaic Lake Water Agency (2016) 243 Cal.App.4th 1430, 1450 (denial of judicial notice is “particularly appropriate where judicial notice has been requested in support of a reply brief to which the opposing party has no opportunity to respond”). The court additionally declines to take judicial notice of the requested Court Order issued on January 12, 2018 and the unpublished decision issued by the Court of Appeal on September 26, 2019, as those matters are irrelevant to the issues presented in this motion. (See Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 341 (a court may decline to take judicial notice of irrelevant matters); see also People v. McKinzie (2012) 54 Cal.4th 1302, 1326 (court will take judicial notice of only relevant matters); People v. Stoll (1989) 49 Cal.3d 1136, 1144 n.5 (courts do not take judicial notice of material “that has no bearing on the limited legal question at hand.”).) Additionally, a “trial court ruling in another case has no precedential value.” (Budrow v. Dave & Buster’s of California, Inc. (2009) 171 Cal.App.4th 875, 885.) Just as it is improper to cite unpublished opinions of the California Court of Appeal, it is similarly improper to cite decisions of California Superior Courts because they are never officially published even if the trial court decision involves the same issue. (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831.)
In sum, Defendants’ requests for judicial notice are DENIED.
Defendants contend that they did not receive a copy of Plaintiff’s opposition until December 10, 2019, and that the GSO tracking information indicates that Plaintiff’s opposition papers were not served until late December 9, 2019. (Rubin Decl., ¶¶ 12-14, Exhs. D-E.) Pursuant to Code of Civil Procedure section 1005, subdivision (c), “all papers opposing a motion . . . shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposition papers . . . are filed.” Defendants’ counsel states that Defendants did not receive Plaintiff’s opposition papers until two days before Defendants’ replies were due. (Rubin Decl., ¶¶ 12-14.)
“A trial court has broad discretion under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 623, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.) Here, given Defendants’ ability to timely file its reply papers, and that Defendants do not otherwise identify being unduly prejudiced by Plaintiff’s delayed service of its opposition, the court will exercise its discretion in considering Plaintiff’s opposition and addressing the merits of the motion.
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, 1141-42; Code Civ. Proc. § 425.16, subd. (c).) Attorney fees for a prevailing party on an anti-SLAPP motion are only recoverable if such fees were incurred in connection with the anti-SLAPP motion. (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 219.)
“‘“[T]he starting point of every fee award . . . must be a calculation of the attorneys’ services in terms of the time he has expended on the case. Anchoring the analysis to this concept is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts.’”” (In re Vitamin Cases (2003) 110 Cal.App.4th 1041, 1058, quoting Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322.) “[T]he primary method for establishing the amount of ‘reasonable’ attorney fees is the Lodestar method. The Lodestar (or Touchstone) is produced by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate.” (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 833.) Under this approach, a base amount is calculated from a compilation of time reasonably spent and reasonable hourly compensation of each attorney. (Serrano v. Priest (1977) 20 Cal.3d 25, 48; Serrano v. Unruh (1982) 32 Cal.3d 621, 639.) While “a fee request ordinarily should be documented in great detail,” the absence of time records and billing statements does not deprive the court of “substantial evidence” to support an award when the attorney provides a declaration under the penalty of perjury which describes the work and permits the trial court to make its own evaluation of the reasonableness of the work done in light of the nature of the case and on the credibility of counsel’s declaration. (Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587; Martino v. Denevi (1986) 182 Cal.App.3d 553, 558 (while not required for an award of attorney fees, the failure to keep books of account and other records has been found to be the basis for disciplinary action).) The determination of reasonable amount of attorney fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Atkins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.)
On June 14, 2019, Defendants filed a Notice of Stay of Proceedings pursuant to Code of Civil Procedure Section 916. Plaintiffs argue that Defendants’ motion for fees must be denied because the case is stayed pending appeal. “Even if the order granting the [special motion to strike] has been appealed, the trial court retains jurisdiction to entertain a motion for attorney fees.” (Doe v. Luster (2006) 145 Cal.App.4th 139, 144; see also Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461 (defendant’s appeal of order denying special motion to strike did not divest trial court of jurisdiction to consider plaintiff’s motion for attorney fees and costs.) Therefore, the court proceeds to the merits of the motion.
Plaintiff argues that Defendants Project Veritas, Project Veritas Action Fund, and James O’Keefe III are not prevailing parties to the anti-SLAPP motion and are therefore not entitled to attorney fees or costs. Alternatively, Plaintiff argues that even if Project Veritas, Project Veritas Action Fund, and James O’Keefe III are prevailing parties, they are not entitled to recover attorney fees and costs because they were only partially successful on their anti-SLAPP motions.
The anti-SLAPP statute reflects the Legislature’s “strong preference for awarding attorney fees to successful defendants.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 338.) The term “prevailing party” must be “interpreted broadly to favor an award of attorney fees to a partially successful defendant.” (Id. [citing ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1018].) However, a fee award is not required when the motion, though partially successful, was of no practical effect. (Moran v. Endres (2006) 135 Cal.App.4th 952, 955-56 (trial court did not abuse its discretion when it denied the defendant’s fees for an anti-SLAPP motion that challenged numerous tort claims brought by plaintiff but succeeded in striking only a single cause of action for conspiracy).) “A party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of a trial court.” (Mann 139 Cal.App.4th at 340.)
Here, Moving Defendants are “prevailing parties” within the meaning of the anti-SLAPP statute because the court granted the special motion to strike in its entirety as to Defendant Christian Hartsock and, as to the remaining Moving Defendants, the Court granted the special motion to strike as to the First (intentional infliction of emotional distress), Third (negligence), and Fifth (intentional interference with prospective economic relations) Causes of Action, and denied as to the Second (unfair business practices) and Fourth (defamation) Causes of Action. (See ComputerXpress 93 Cal.App.4th at 1020 (holding that defendants were prevailing parties because they were successful in striking five of nine challenged causes of action alleged in the complaint).)
A defendant’s lack of success on a portion of an anti-SLAPP motion, however, is relevant to the amount of fees awarded. (See id. at 1019.)
Under the circumstances of this case, the court finds that Defendants Project Veritas, Project Veritas Action Fund, and James O’Keefe III’s anti-SLAPP motion was not so insignificant that the parties did not achieve any practical benefit from bringing the motion. (See Mann 139 Cal.App.4th at 340.) Defendants successfully eliminated three causes of action: intentional infliction of emotional distress, negligence, and intentional interference with prospective economic advantage. Plaintiff, in opposition, argues that Defendants’ partial success on their motion does not entitle them to any attorney fees and costs because Plaintiff’s causes of action are based upon the defamatory video created and disseminated by Defendants, and the damages resulting to Plaintiff therefrom. By successfully eliminating the three causes of action, however, Defendants have narrowed the litigation with respect to the damages issues and the focus of the alleged defamatory statements. In particular, the tort of defamation concerns injury to the reputation of a person or business (Guess, Inc. v. Superior Court (1986) 176 Cal.App.3d 473, 479) while the tort of intentional interference with prospective economic advantage protects the expectation of an advantageous business relationship, even if the relationship is not yet contractual (see Buckaloo v. Johnson (1975) 14 Cal.3d 815, 822-23 (disapproved on other grounds by Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393, fn. 5). By bringing the anti-SLAPP motion, Defendants have narrowed the scope of the lawsuit, limiting discovery, and reducing potential recoverable damages. (See Mann 139 Cal.App.4th at 340.)
Accordingly, the court finds that Moving Defendants are prevailing parties as to the anti-SLAPP motion, and are entitled to recovery of reasonable attorney fees and costs in connection with the anti-SLAPP motion.
Relying upon her assertion that only Defendant Hartsock may be deemed a “prevailing party,” Plaintiff argues that attorney fees are not recoverable because the billing invoices Defendants have proffered were billed to Defendant Project Veritas, and not Hartsock. First, Plaintiff’s argument is moot in light of the court’s finding that the Moving Defendants are all “prevailing parties” entitled to attorney’s fees and costs in connection with the anti-SLAPP motion. Second, counsel for Moving Defendants attests that the fees were incurred in connection with the anti-SLAPP motion, that Hartsock specifically is seeking fees in connection with his anti-SLAPP motion, and that the fees incurred by all Moving Defendants are reflected in the billing invoices. (See Rubin Decl., ¶¶ 1-2, 6, 26-28.) Moreover, a defendant who successfully brings an anti-SLAPP motion is not barred from recovering fees, even if the fees were paid by a third party. (Macias v. Hartwell (1997) 55 Cal.App.4th 669, 676.)
Reasonableness of Fees
Defendants seek a combined lodestar amount of $43,807.00 in attorney fees. Defendants provide support for the requested attorney fees with the submitted declarations of their counsel, G. David Rubin and Elizabeth M. Sanguinetti. (See Rubin Decl., ¶ 1, Sanguinetti Decl., ¶ 1.) Mr. Rubin has been an attorney admitted to practice in the State of California since 1995 after graduating from Loyola Law School. (Rubin Decl., ¶ 4) Mr. Rubin is currently a managing partner of his law firm in California and has primarily focused his practice in all facets of civil litigation. (Id.) Ms. Sanguinetti has been an attorney admitted to practice in the state of California since 2011 after graduating from Chapman University School of Law. (Sanguinetti Decl., ¶ 3.) Ms. Sanguinetti has primarily focused her practice in all facets of civil litigation, as well as in matters of traditional labor law. (Id.) Both attorneys have substantial experience dealing in matters pertaining to litigation, the Internet, media, publishing, and the First Amendment. (See Rubin Decl., ¶ 4, Sanguinetti Decl., ¶ 3.) In light of their experience, the Court finds the hourly rate claimed by both counsel -- $250 per hour for Rubin and $200 per hour for Sanguinetti – to be reasonable.
Mr. Rubin declares that from April 25, 2018 through April 30, 2019, Defendants have incurred a total of $34,827.00 in attorney fees in connection with their special motion to strike. (Rubin Decl., ¶ 26.) This number does not include the entirety of the fees and costs incurred by the defense in this litigation, such as the fees and costs incurred in connection with the filing of Defendants’ demurrer or motion to quash, or Westlaw expenses. Counsel attests that the fees and costs requested herein include only attorney time or costs related or connected to Defendants’ special motion to strike. (Id.) Mr. Rubin states that the $34,827.00 of attorney fees incurred are broken down as follows: 36.7 hours at $250 per hour by G. David Rubin; 127.3 hours at $200 per hour by Elizabeth M. Sanguinetti; and 2.4 hours at $80 per hour by C. Bogdana Koiso. (Rubin Decl., ¶ 27.) Defendants’ counsel provides billing records reflecting attorney fees incurred by Defendants beginning in April 25, 2018 through April 25, 2019. (Rubin Decl., ¶ 28, Exh. E.) The billing records indicate which attorney performed a particular task on the particular date, the time spent on the task, and the fee attributable for the task performed. (See id.) Portions of the billing records have been redacted as to fee entries and amounts that are not claimed by way of the motion as irrelevant and/or privileged. (Rubin Decl., ¶ 28.) The attached billing records demonstrate that Defendants’ counsel engaged in various tasks related to the special motion to strike, including reviewing the pleadings, reviewing the subject videos in preparation for the motion, researching issues argued in the motion, the preparation of the motion and supporting evidence, the preparation of motions opposing Plaintiff’s ex parte application to extend the deadline to file an opposition to the motion, reviewing Plaintiff’s opposition papers, and the preparation of the reply and objections. (See Rubin Decl., Exh. E.)
Defendants also seek fees and costs related to the filing of this attorney fees motion, including anticipated fees for reviewing the opposition and drafting the reply, in the total amount of $6,480.00. Ms. Sanguinetti attests to having expended a total of 22.4 hours drafting this motion and preparing the supporting declarations. (Sanguinetti Decl., ¶ 4.) Ms. Sanguinetti further estimates spending another 10 hours will be spend reviewing the opposition and drafting a reply. (Id.) The Court finds that a total of 22.4 hours for drafting this motion for attorney fees is excessive, and that a more reasonable estimate for the time necessary to prepare the moving papers is 10 hours. The Court further finds 10 hours for reviewing the opposition and drafting a reply to be excessive and a more reasonable estimate for these tasks would be 5 hours. Therefore, the Court will reduce the requested award by $3,480.
With the exception of the time for preparing the moving and reply papers for the instant attorney fees motion, the court finds Defendants’ attorneys’ hours expended in connection with their special motion to strike to be reasonable under the circumstances of this case. The court also finds that the declarations of Defendants’ attorney and the billing records attached thereto sufficiently support an attorney fees award in the lodestar amount of $40,327.00.
In opposition, Plaintiff argues that Defendants’ request for attorney fees is unreasonably inflated because Defendants have previously filed a similar anti-SLAPP motion against Plaintiff in a prior, unrelated case. Specifically, Plaintiff asserts that significant portions of Defendants’ attorney fees motion and the accompanying declarations are “cut and pasted” from Defendants’ prior fee motion filed in the prior, unrelated case. (See Rand-Lewis Decl., ¶¶ 22-28.) Plaintiff contends, therefore, that the hours claimed to having been expended by Defendants’ counsel for researching issues, drafting, revising, and preparing Defendants’ anti-SLAPP motion are inflated. (Rand-Lewis Decl., ¶ 27.) Therefore, Plaintiff states that Defendants’ fee request should either be denied in its entirety or reduced to an amount not to exceed thirty hours. (Rand-Lewis Decl., ¶ 29.)
“‘[P]adding’ in the form of inefficient or duplicative efforts is not subject to compensation.” (Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 556.) Here, however, Plaintiff does not present any evidence that Defendants padded its claimed fees in relation to research, drafting, revising, and preparing Defendants’ anti-SLAPP motion. Plaintiff has not presented the prior attorney fees motion and does not identify any specific claim of attorney fees that Defendants have allegedly padded. Rather, Plaintiff makes a blanket assertion that Defendants’ attorneys’ fee request is inflated and should be denied or reduced to an amount not to exceed thirty hours. Parties opposing motions for attorney fees fail to show any abuse of discretion where they merely contend that amounts of attorney fees are excessive without providing an analysis or factual support. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1250; Avikian v. Wtc Fin. Corp. (2002) 98 Cal.App.4th 1108, 1119; Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 560 (emphasizing that opposing parties “submitted no evidence that the hours claimed by counsel were excessive,” and declining to “declare as a matter of law that the hours were unreasonable”); Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1204 (opposing party “offered no evidence of any kind which might have warranted a reduced fee award”). Plaintiff does not specifically dispute any entries and only provides general arguments that the hours are excessive. Moreover, even if Defendants’ counsel previously drafted a similar motion for a different case, this would not obviate the need for Defendants’ counsel to perform extensive research for the anti-SLAPP motion for the instant case to ensure the continuing validity of the authority previously cited; the Court notes that given the heavy litigation of anti-SLAPP motions, this is an ever-changing area of the law. In short, the Court finds the requested fees to be reasonable under the circumstances of this case.
Plaintiff also argues in the alternative that Defendants’ fee award should be reduced to only attorney fees incurred in connection with the anti-SLAPP motion. Indeed, attorney fees for a prevailing party on an anti-SLAPP motion are only recoverable if such fees were incurred in connection with the anti-SLAPP motion. (City of Industry 198 Cal.App.4th at 219.) Plaintiff contends that Defendants improperly attempt to recover 1.6 hours for analyzing and reviewing the Complaint and 2.8 hours for telephone conferences, correspondence, and email to individuals. The court finds, however, that such requested fees are reasonably related to the Moving Defendants’ anti-SLAPP motion. Preparation of an anti-SLAPP motion necessarily entails a thorough review of the Complaint to determine the gravamen of Plaintiff’s claims. Counsel for Moving Defendants attests that the fees and costs requested herein include only attorney time or costs related or connected to Defendants’ special motion to strike. (Rubin Decl., ¶ 26.) The billing invoices attached to counsel’s declaration corroborate that the claimed attorney fees were incurred in connection with the Moving Defendants’ anti-SLAPP motion.
Moving Defendants also seek $615.00 in filing fees costs consisting of a first appearance fee ($435), anti-SLAPP motion filing fee ($60.00), ex parte application filing fee ($60.00), and anticipated motion filing fee ($60.00). (See Rubin Decl., ¶¶ 37-38, Exh. F.) Filing fees are recoverable as costs pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(1). While Plaintiff argues that there is “no evidence” that Defendants paid or incurred any costs in relation to this matter, the court finds that the requested costs are sufficiently supported by the declaration of Defendant’s counsel. (See Rubin Decl., ¶¶ 37-38, Exh. F.)
CONCLUSION AND ORDER
For the foregoing reasons, Defendants’ motion for attorney fees and costs pursuant to Code of Civil Procedure section 425.16, subdivision (c), is GRANTED in the amount of $40,942.00.
Moving Defendants are ordered to provide notice of this order and file proof of service of such.
DATED: December 19, 2019 ___________________________
Judge of the Superior Court