Judge: Anne Richardson, Case: 21STCV07836, Date: 2023-10-17 Tentative Ruling

Case Number: 21STCV07836    Hearing Date: October 17, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Sabrina Peterson sues Defendants Clifford Harris, Tameka Harris, and Shekinah Jones Anderson pursuant to a March 1, 2021 Complaint alleging claims of (1) Defamation (Libel Per Se), (2) Defamation (Trade Libel), (3) Invasion of Privacy (False Light), (4) Intentional Interference with Prospective Economic Advantage, (5) Negligent Interference with Prospective Economic Advantage, (6) Intentional Infliction of Emotional Distress, and (7) Negligent Infliction of Emotional Distress.

The claims arise from allegations that, among other things, after Plaintiff Peterson posted a video and messages to her Instagram account accusing Defendants Clifford and Tameka Harris (the Harris Defendants) of various forms of sexual and physical abuse, Defendants made social media posts relating to Plaintiff Peterson’s son, sexual acts that Plaintiff Peterson allegedly engaged in with the Harris Defendants, and other subjects, which led to Plaintiff Peterson being harassed by persons on Instagram, as well as to various damages being suffered by Plaintiff Peterson.

On June 24, 2021, the Harris Defendants made an anti-SLAPP motion against the Complaint, which Plaintiff Peterson opposed on July 9, 2021.

The motion was set to be heard on July 22, 2021 but was continued to August 19, 2021 and then again to September 14, 2021, at which time the Court heard oral argument and took the matter under submission.

Later that day, the Court denied the Harris Defendants’ anti-SLAPP motion.

On September 16, 2021, the Harris Defendants appealed to the anti-SLAPP ruling.

On June 2, 2023, the court of appeals rendered its unpublished opinion on the appeal, reversing the anti-SLAPP denial in part. The opinion granted a request by the Harris Defendants to obtain attorneys’ fees based on work performed in the trial court and as a prevailing defendant under the anti-SLAPP statute.

On August 3, 2023, the court of appeal returned its remittitur.

On August 29, 2023, the Harris Defendants moved for attorneys’ fees and costs. The motion was served on Plaintiff Peterson’s counsel, Ivie McNeill Wyatt Purcell & Diggs, who the record shows continue to be Plaintiff’s counsel.

On September 13, 2023, the Harris Defendants filed a notice regarding Plaintiff’s failure to oppose their motion.

On September 26, 2023, the Harris Defendants’ motion came before the Court. At that time, Plaintiff Peterson’s counsel represented to the Court that they had not received a copy of this motion and thus requested a continuance, which the Court granted. The Court also ordered the parties to further brief the issue of time spent by counsel on the claims prevailed on at appeal.

On September 29, 2023, counsel for the Harris Defendants made a supplemental declaration relating to the fees and costs sought.

On October 4, 2023, Plaintiff Peterson opposed the Harris Defendants’ motion.

On October 10, 2023, the Harris Defendants replied to the opposition.

The motion for attorney’s fees and costs is now before the Court.

Motion for Attorneys’ Fees and Costs

Legal Standard 

A prevailing party is entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032, subds. (a)(4), (b).) Attorney’s fees are also recoverable as costs when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) “[T]o collect appellate attorney fees, a party must demonstrate the right to do so under either a statute or a contract, independent of a costs statute.” (Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 927.) Attorney’s fees may be recoverable as costs on appeal. (Cal. Rules of Court, rule 8.278.) A prevailing defendant on an anti-SLAPP motion is entitled to recover their attorney’s fees and costs. (Code Civ. Proc., § 425.16, subd. (c)(1); Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) Because section 425.16, subdivision (c) provides for an award of attorney’s fees and costs to a prevailing defendant on a special motion to strike and does not preclude recovery of appellate attorney fees by a prevailing defendant-respondent, those fees are also recoverable. (Trapp v. Naiman (2013) 218 Cal.App.4th 113, 122; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.) A prevailing party may recover fees incurred in defending an appeal to a favorable anti-SLAPP ruling even where the appeal is voluntarily dismissed. (See Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.)

The Court begins this inquiry “with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar figure may then be adjusted [according to a multiplier enhancement] 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 multiplier 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.)

No specific findings reflecting the court’s calculations for attorney’s fees are required; the record need only show that the attorney’s fees were awarded according to the “lodestar” or “touchstone” approach. (Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349, disagreed with on other grounds in In re Marriage of Demblewski (1994) 26 Cal.App.4th 232, 236, fn. 7 [disagreement as to statement of decision requirements].) The Court has broad discretion to determine the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.)

Order Granting Fees and Costs: GRANTED, in Part.

The Harris Defendants request $116,901.89 in attorneys’ fees and costs for their counsel’s trial work and appeal work related to their anti-SLAPP motion and for the work drafting this motion, as well as costs incurred. The $116,901.89 figure is represented by counsel to comprise five-sevenths of the total amount originally sought in the Harris Defendants’ motion ($164,650.56). (See 9/29/23 Brettler Decl., ¶ 12; see also Mot., p. 4; Mot., Brettler Decl., ¶ 18.)

I. Reasonable Fee Rate

The Harris Defendants seek a fee rate of between $750 per hour and $950 per hour for attorney Andrew B. Brettler, as well as fee rates of between $400 to $450 per hour for Kelsey J. Leeker and $600 per hour for Jake A. Camara. (Mot., Brettler Decl., ¶¶ 8-10.) The fee rates are supported by a declaration from Andrew Brettler, which establishes the professional and academic background of counsel, compares the requested fee rates to those of other law firms in the Los Angeles area, and shares information related to Brettler’s experience and understanding of hourly billing rates for counsel’s law firms. (Mot., Brettler Decl., ¶¶ 12-16.)

Plaintiff Peterson’s opposition argues that the fee rates sought by the Harris Defendants are not reasonable because counsel failed to keep adequate time records and because these Defendants failed to provide the Court with documents evidencing billing entries, hours worked, complexity, novelty, or tasks performed. Plaintiff also cites case law standing for the proposition that an anti-SLAPP motion may be properly denied or the fee rate reduced where a court cannot determine the reasonability of the prevailing rate or determines that the anti-SLAPP work merits a fee rate corresponding to a less experienced practitioner. (Opp’n, pp. 13-14.)

In reply, the Harris Defendants point to four declarations from counsel supporting the requested fee rates. (Reply, p. 4.)

The Court finds that based on its experience with fee rates in the Los Angeles area and based on the representations set forth in the Brettler declaration, the fee rates requested by the Harris Defendants are reasonable.

The Court also notes that Plaintiff Peterson’s opposition does not do enough to undercut the requested fee rates. For example, Plaintiff cites a case where an anti-SLAPP motion was denied and that determination was affirmed on appeal because the Court could not determine the prevailing rate on hours expended were reasonable. (Opp’n, p. 14.) However, here, the Brettler declaration goes into great detail to support the requested fee rates, comparing his fee rate to others in the community. (Mot., Brettler Decl., ¶¶ 12-16.) Plaintiff also cites case law significantly reducing fees where the work involved was billed at a high rate by practitioners who could have assigned less experienced counsel at a lower billing rate to perform the anti-SLAPP work. (Opp’n, p. 14.) However, Plaintiff does not sufficiently elaborate on why defense counsel’s work in this action—as related to anti-SLAPP matters—connoted the work of a mere “yeoman.”

II. Reasonable Hours

In their motion, the Harris Defendants point to 241.1 hours sought for counsel’s anti-SLAPP work up through work on this motion. (See Mot., Brettler Decl., ¶¶ 8-10.) Those hours supported $148,795 in legal fees up through work on this motion. (Mot., Brettler Decl., ¶ 18.) Defendants also sought to recover $9,750 in fees for 15 hours expended by counsel making and replying to the opposition to this motion. (Mot., Brettler Decl., ¶¶ 17-18.) After the hearing on September 26, 2023, the Harris Defendants modified their request to receive an award of five-sevenths the original amount requested. (9/29/23 Brettler Decl., ¶ 12.)

Plaintiff Peterson’s opposition generally argues that the fees sought in this motion are inflated. (Opp’n, pp. 9-11.) Plaintiff’s opposition more specifically argues that the hours sought by the Harris Defendants are not reasonable. Plaintiff argues that the lack of timesheets, records, and evidence substantiating the hours claimed by defense counsel weigh against reasonability, particularly where such omissions prevent a determination on block billing and padding. (Opp’n, pp. 14-15.)

Plaintiff Peterson also argues that fees and costs cannot be collected in connection with this motion pursuant to case law in S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 382-383 (Berti) and Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383 (Lafayette). (Opp’n, pp. 15-16.)

In reply, the Harris Defendants argue that they have submitted sufficient evidence to support their reasonable request of fees, which should not be reduced, and that Plaintiff has failed to provide any evidence contradicting the reasonableness of the sought-after fees and costs. (Reply, pp. 3-8.)

The Court determines that the hours sought by the Harris Defendants for work performed by counsel in the trial, appeals, and fees and costs proceedings are reasonable up to four-sevenths of the hours sought by the Harris Defendants.

The Court notes that Plaintiff Peterson has not convinced the Court that the Harris Defendants may not recover fees for hours expended on the motions for attorney’s fees and costs made pursuant to the anti-SLAPP statute. Berti is distinguishable. In dictum, the court of appeal simply highlighted the difficulties that would arise if the legislature allowed prevailing defendants to recover attorney’s fees and costs for work on an anti-SLAPP motion that was not filed before the case was voluntarily dismissed by the plaintiff. (Berti, supra, 39 Cal.4th at pp. 382-383.) Quoted directly, Berti stated that the filing of a viable anti-SLAPP motion was a necessary trigger for both an imposed judgment of dismissal and an award of fees and costs and that to find otherwise would raise “vexing questions,” such as: “[H]ow … [would] a trial court … evaluate the viability of an incomplete anti-SLAPP motion, not yet filed at the time of dismissal” and would “a defendant [be] entitled to finish briefing the motion [despite a dismissal in the case], or to include the expense of [drafting the] completed [anti-SLAPP] briefing as part of a motion for fees and costs?” (Id. at pp. 381, 382-383.) Plaintiff’s opposition mischaracterizes this quote as limiting recovery of anti-SLAPP attorney’s fees and costs to anti-SLAPP work up through the filing of a motion for attorney’s fees, which is either a misunderstanding or a mischaracterization of the authority cited. Lafayette, in turn, merely stated that the legislature limited anti-SLAPP recovery to fees and costs incurred prosecuting or defending an anti-SLAPP motion. (Lafayette, supra, 39 Cal.App.4th at p. 1383.) Such language does not explicitly exclude a motion for attorney’s fees and costs from the ambit of prosecuting an anti-SLAPP motion, and the Court declines to read such an exclusion into Lafayette.

However, the Court accepts Plaintiff’s arguments that the declaration(s) from counsel are vague as to how counsel actually expended upwards of 250 hours on anti-SLAPP work. The original Brettler declaration only gives a cursory list of tasks performed by counsel. (Mot., Brettler Decl., ¶ 5.) The supplemental Brettler declaration was limited to the amount of time expended by counsel on successful anti-SLAPP work and therefore did not clarify the tasks on which counsel expended time. (9/29/23 Brettler Decl., ¶¶ 1-12.) The Camara and Leeker declarations attached to the reply are similarly limited as to the specific number of hours expended by counsel on tasks that added up to over 250 hours of anti-SLAPP work.

The Court thus determines that recovery is permissible here, but that the recovery will be limited to four-sevenths of the requested amount, which the Court concludes, after reviewing all the evidence and argument of both parties, represents the reasonable recovery on successful anti-SLAPP work by the Harris Defendants’ counsel. (8/3/23 Remittitur, p. 30 [“The Harrises are entitled to fees and costs incurred both in the trial court and on appeal in moving to strike the claims on which they prevailed”].)

III. Multiplier Enhancement

No multiplier enhancement award is sought.

IV. Costs

The Court last finds that costs of $6,105.56 for more than two years of litigation is reasonable. (Mot., Brettler Decl., ¶ 11.)

V. Fees and Costs Conclusion

The Court thus GRANTS the Harris Defendants’ motion, in Part, in the amount of $96,702.70.

Fees are broken down as follows: ((4 / 7) * ($148,795 + $9,750)) + $6,105.56 = $96,702.70.

Conclusion

Defendants Clifford Harris and Tameka Harris’s Motion for Attorney Fees and Costs Pursuant to Code of Civil Procedure Section 425.16(c) is GRANTED, in Part, in the amount of $96,702.70.

Plaintiff Sabrina Peterson is ORDERED to remit payment of these monies to Defendants Clifford Harris and Tameka Harris within 90 days of this ruling.