Judge: Bruce G. Iwasaki, Case: 24STCV05755, Date: 2024-07-16 Tentative Ruling
Case Number: 24STCV05755 Hearing Date: July 16, 2024 Dept: 58
Judge Bruce Iwasaki
Hearing Date: July 16, 2024
Case Name: Emir Phillips v. Gary Fidler,
et al.
Case
No.: 24STCV05755
Motion: (1)
Special Motion to Strike (“anti-SLAPP”)
(2) Special
Motion to Strike under CCP (“anti-SLAPP”)
Moving
Party: (1) Defendants Gary D.
Fidler and Gary D. Fidler, APLC
(2) Defendants
Amanda Robertson and Barham 22nd Street LLC
Responding Party: (1) and (2) Plaintiff Emir Phillips, in
pro per
Tentative
Ruling:
Defendants Gary D. Fidler and Gary
D. Fidler, APLC’s Special Motion to Strike is GRANTED as to the first through
fifth causes of action for defamation, false light, NIED, IIED and breach of
contract, GRANTED as to protected conduct incorporated into the sixth cause of
action for breach of privacy (Complaint, 7:21-22) and DENIED as to the
unprotected conduct in the sixth cause of action for breach of privacy
(Complaint, 7:23-25-8:1-3.) Defendants
are awarded fees in the amount $9,500.
Defendants Amanda Robertson and
Barham 22nd Street LLC’s Special Motion to Strike is GRANTED as to
the first through fifth causes of action for defamation, false light, NIED,
IIED and breach of contract. Defendants
are awarded fees in the amount $6,412.50.
I.
Background
Plaintiff
alleges Defendants defamed Plaintiff and painted him in a false light when they
attached his LinkdIn page as an exhibit to a pending unlawful detainer
complaint and made false allegations regarding his employment. Plaintiff alleges Defendants falsely stated
or conveyed the meaning that he was engaging in the unauthorized practice of
law. Plaintiff alleges Defendants have
also breached the lease agreement by filing the pending unlawful detainer
action. Plaintiff alleges Defendants
have also violated his privacy by setting up security cameras on the rental
premises.
On March 7,
2024, Plaintiff filed a complaint against Defendants Gary Fidler, esq., Gary D.
Fidler APLC, Barham 22nd Street, LLC and Amanda Robertson. Plaintiff alleges (1) defamation; (2) false
light; (3) negligent infliction of emotional distress; (4) intentional
infliction of emotional distress; (5) breach of lease agreement; and (6) breach
of the right of privacy.
II.
Discussion
Defendants
Gary D. Fidler and Gary D. Fidler, APLC (collectively, “Fidler”) and Defendants
Barham 22nd Street, LLC (“Barham”) and Amanda Robertson
(collectively, “Landlord Defendants”) move to strike each cause of action
alleged in Plaintiff’s complaint pursuant to Code of Civil Procedure section 425.16. Barham is the corporate landlord of the
premises leased by Plaintiff that is the subject of a pending unlawful detainer
(UD) action. Robertson is Barham’s
principal. Fidler is the attorney of
record for Barham in the UD action.
Fidler’s
anti-SLAPP Motion is directed to all causes of action. Landlord Defendants’ anti-SLAPP Motion is
only directed to the first through fifth causes of action and excludes the
sixth cause of action for breach of privacy.
Fidler and Landlord Defendants’ anti-SLAPP Motions substantially
overlap. For this reason, both
anti-SLAPP Motions will be analyzed together.
Where their arguments deviate from one another, they will be discussed
separately.
A. Request
for Judicial Notice
Fidler’s request
for judicial notice (RJN) of the Unlawful Detainer Complaint filed by
Defendants against Plaintiff is GRANTED as to its filing but not the truth of
the underlying allegations.
B. Objections
Fidler
objects to Plaintiff’s surreply filed on July 8, 2024. Plaintiff was not entitled to file a
surreply. However, the improper surreply
does not prejudice the Defendants and no further briefing is required.
C. Legal
Standard
“A cause of action against a person arising from any act
of that person in furtherance of the person's right of petition or free speech
under the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion to strike,
unless the court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., §425.16, subd. (b)(1).)
“As used in this section, ‘act in furtherance of a
person's right of petition or free speech under the United States or California
Constitution in connection with a public issue’ includes: (1) any written or
oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law, (2) any written
or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law, (3) any written or oral statement
or writing made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional
right of free speech in connection with a public issue or an issue of public
interest.” (Code Civ. Proc., §425.16, subd. (e).)
“Litigation of an anti-SLAPP motion involves a two-step
process. First, the moving defendant bears the burden of establishing that the
challenged allegations or claims arise from protected activity in which the
defendant has engaged. Second, for each
claim that does arise from protected activity, the plaintiff must show the
claim has “at least ‘minimal merit. If
the plaintiff cannot make this showing, the court will strike the claim.” (Bonni v. St. Joseph Health System (2021)
11 Cal.5th 995, 1009 [where moving party seeks to strike an entire cause of
action alleging multiple factual bases, court does not determine whether first
prong is met based on “gravamen” test but must determine whether each factual
bases supplies the element of claim or merely provides context].) Bonni expressly rejected the
“gravamen” test, which had been applied in the past. (Bonni, supra, 11
Cal.5th at 1009.)
On the first step, “courts are to consider the elements
of the challenged claim and what actions by the defendant supply those elements
and consequently form the basis for liability. The defendant's burden is to
identify what acts each challenged claim rests on and to show how those acts
are protected under a statutorily defined category of protected activity.” (Bonni, supra, 11 Cal.5th at 1009.)
Once defendant demonstrates that a cause of action arises
from protected conduct, the burden shifts to plaintiff on the second step to
demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited. (Navellier v. Sletten (2002) 29
Cal.4th 82, 88-89.) “The second prong of
the statute deals with whether the plaintiff has “demonstrated a probability of
prevailing on the claim. Under section
425.16, subdivision (b)(2), the superior court, in making these determinations,
considers ‘the pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.’ For purposes of an
anti-SLAPP motion, the court considers the pleadings and evidence submitted by
both sides, but does not weigh credibility or compare the weight of the
evidence. Rather, the court's responsibility is to accept as true the evidence
favorable to the plaintiff. A plaintiff
need only establish that his or her claim has minimal merit to avoid being
stricken as an anti-SLAPP. With these
descriptions in mind, we will not strike a cause of action under the anti-SLAPP
statute unless it lacks even minimal merit.”
(Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17
Cal.App.5th 245, 261.)
The “probability of prevailing” is tested by the same
standard governing a motion for summary judgment, nonsuit, or directed
verdict. Thus, in opposing a anti-SLAPP
motion, it is plaintiff's burden to make a prima facie showing of facts that
would support a judgment in plaintiff's favor.” (Taus v. Loftus (2007)
40 Cal.4th 683, 714 (a “summary-judgment-like procedure”).)
“Precisely because the statute (1) permits early
intervention in lawsuits alleging unmeritorious causes of action that implicate
free speech concerns, and (2) limits opportunity to conduct discovery, the
plaintiff's burden of establishing a probability of prevailing is not high: We
do not weigh credibility, nor do we evaluate the weight of the evidence.
Instead, we accept as true all evidence favorable to the plaintiff and assess
the defendant's evidence only to determine if it defeats the plaintiff's submission
as a matter of law. Only a cause of
action that lacks ‘even minimal merit' constitutes anti-SLAPP.” (Overstock.com, Inc. v. Gradient
Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.) “In order to establish a probability of
prevailing on a cause of action in the context of an anti-SLAPP motion, a
plaintiff must state and substantiate a legally sufficient claim.” (La Jolla Group II v. Bruce (2012) 211
Cal.App.4th 461, 470.)
D.
Fidler
and Landlord Defendants satisfy their burden on the first prong of anti-SLAPP
as to the first through fifth causes of action; Fidler satisfies the first
prong of anti-SLAPP as to the sixth cause of action
“The filing
of a lawsuit is an exercise of the First Amendment right to petition the
government. Consequently, claims that
arise out of the filing of a suit arise from protected activity for purposes of
the anti-SLAPP statute. (Bonni, supra, 11 Cal.5th at 1024.)
Plaintiff’s causes of action are
based on Defendants’ filing of the pending UD action against him, their
attachment of his LinkdIn profile to the UD complaint and their allegations
regarding his employment status in the UD complaint. (Complaint, 3:3-19 (allegations regarding
statements made in UD complaint and action); 3:26-27 (allegations that UD
action itself breached the lease agreement).)
These statements qualify as protected statements under Code of Civil
Procedure section 425.16, subdivisions (e)(1) and (2) as “any written or oral
statement or writing made before a…judicial proceeding…” and “any written or
oral statement or writing made in connection with an issue under consideration
by a…judicial body” (hereinafter referred to as the “Protected Conduct”).
The Protected Conduct necessarily
supplies an essential element of Plaintiff’s defamation, false light, NIED,
IIED and breach of lease claims, as required to satisfy the first prong under Bonni. Plaintiff explicitly alleges that the
Protected Conduct is the conduct upon which these causes of action are based. (Complaint, 5:24-25 (defamation); 6:9-10
(false light); 6:20-21 (NIED); 7:3-4 (IIED); 7:14-15.) As such, Fidler and Landlord Defendants satisfy
the first prong as to the first through fifth causes of action for defamation,
false light, NIED, IIED and breach of lease.
Fidler also moves to strike the
sixth cause of action for breach of privacy.
Plaintiff’s sixth cause of action is based explicitly on Defendants’
installation of security cameras.
(Complaint, 7:23-25.) Installation
of security cameras does not qualify as protected conduct (the “Unprotected
Conduct”).
However, Plaintiff incorporates all
preceding allegations of protected conduct, raising doubt as to whether he
bases his breach of privacy claim in part on the Protected Conduct . In his surreply, Plaintiff removes any doubt as
to whether the Protected Conduct supplies an element of the breach of privacy
claim. (Plaintiff’s Reply filed on July
8, 2024, 4:20-25-5:1-5.) Plaintiff argues
Defendants invaded his right to privacy by attaching his LinkdIn page to the UD
complaint. (Id.) As such,
Plaintiff’s sixth cause of action is based in part on Protected Conduct and in
part on Unprotected Conduct.
Defendant
Fidler’s anti-SLAPP motion therefore proceeds to the second prong as to the
Protected Conduct alleged in the sixth cause of action. The Unprotected Conduct is outside the scope
of section 425.16 and is unaffected by the outcome of Fidler’s anti-SLAPP motion. Even if Fidler prevails on his motion as to
the Protected Conduct alleged in the sixth cause of action, the sixth cause of
action would still be pending based on the Unprotected Conduct. The allegations of protected conduct would
merely be excised from the sixth cause of action. (Baral v. Schnitt (2016) 1 Cal.5th
376, 393-394, 398 (anti-SLAPP statute should be used like a scalpel, just as an
ordinary motion to strike is, excising the protected activity from the “mixed
cause of action” but leaving the cause of action intact as to the unprotected
activity).)
Plaintiff’s response to Defendants’
first prong arguments misunderstands the basis for Defendants’ claim of
protected conduct. Plaintiff argues that
section 425.16 does not apply, because the parties’ dispute is a private
dispute in which the public has no interest.
However, “public interest” or a “public issue” is only required under Code
of Civil Procedure §425.16(e)(3) and (4).
Defendants are not arguing protected conduct based on subsections (e)(3)
or (e)(4). Defendants argue protected
conduct based on subsections (e)(1) and (e)(2), statements before a judicial
body or statements in connection with an issue under review by a judicial
body.
Defendant
Fidler and Landlord Defendants therefore satisfy the first prong of anti-SLAPP
as to the first through fifth causes of action.
Based on Plaintiff’s surreply, the first prong of anti-SLAPP is
satisfied as to the Protected Conduct alleged in the sixth cause of action for
breach of privacy.
E.
Plaintiff
fails to satisfy his burden on the second prong
On
the second prong, the Court “accept[s] as true all evidence favorable to the
plaintiff and assess[es] the defendant's evidence only to determine if it
defeats the plaintiff's submission as a matter of law. Only a cause of action that lacks ‘even
minimal merit' constitutes anti-SLAPP.”
(Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151
Cal.App.4th 688, 699.)
Because Defendants have satisfied
their burden on the first prong of the anti-SLAPP statute as to the first
through fifth causes of action, the burden shifts to the Plaintiff to establish
the probability of prevailing on those claims.
(Ralphs Grocery Co., supra, 17 Cal.App.5th at 261.) Plaintiff must establish each element of
these causes of action with admissible evidence. (Id.)
However, a
defendant moving to strike under CCP §425.16 may assert an affirmative defense
on the second prong of anti-SLAPP. (Peregrine
Funding Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133
Cal.App.4th 658, 676 (defendant established that plaintiff investor’s claims
were time barred as a matter of law and plaintiff failed to establish
likelihood of prevailing in face of that showing).) “[A]lthough section 425.16 places on the
plaintiff the burden of substantiating its claims, a defendant that advances an
affirmative defense to such claims properly bears the burden of proof on the
defense.” (Id.) Once the defendant demonstrates that a
plaintiff’s claim is barred by an affirmative defense, the plaintiff must demonstrate
that a probability of prevailing despite that affirmative defense. (Id.)
i.
Plaintiff fails to submit prima facie evidence
establishing the probability that he will prevail
Plaintiff
fails to demonstrate the probability of prevailing on the first through fifth
causes of action, because (1) Plaintiff fails to submit prima facie evidence
establishing the elements of the first through fifth causes of action and (2)
Fidler and Landlord Defendants establish an absolute affirmative defense based
on Civil Code section 47(b), the litigation privileged.
Plaintiff’s evidence consists of
(1) emails regarding the security camera (Opposition, Ex. 1); (2) Plaintiff’s
resume or curriculum vitae (Opposition, Ex. 2); (3) a copy of Plaintiff’s
driver’s license and a copy of an “Enrollment to Practice Before the Internal
Revenue Service (Opposition, Ex. 3); and (4) various news articles submitted to
establish Plaintiff’s Internet presence (Opposition, Ex. 4). Plaintiff also submits an unauthenticated
document allegedly evidencing his Doctorate of Business Administration. (Surreply, Ex. 1.)
Plaintiff’s evidence is
inadmissible, because it is not authenticated.
Even if it were considered, it fails to establish that the statements
made in the UD proceeding were false or misleading, or that Plaintiff suffered
any damages, including the severe emotional distress required to recover for
NIED and IIED.
The emails pertain to the
Unprotected Conduct, which is outside the scope of the anti-SLAPP. None of these documents are authenticated,
nor are they relevant to Plaintiff’s first through fifth causes of action or
the sixth cause of action to the extent based on the Protected Conduct. Plaintiff’s evidence does not demonstrate how
the LinkedIn page was false, how the UD Complaint painted him in a false light
or how any of the allegations in the UD Complaint were false.
With regard to the UD Complaint’s
allegation that Plaintiff referred to himself on LinkedIn as “DBA JD,” the
complaint does not allege that Plaintiff represents himself to be lawyer
admitted to practice law. (RJN, Ex. 1, Unlawful
Detainer Complaint, p. 2 of 3.)
Defendants alleged, “If DBA is a statement by Defendant Emir
Phillips that he is doing business as “JD,” this too, is a false representation,
since unless he is licensed to practice law in Arkansas, he has been disbarred
by the California State Bar.” (Id.) Defendants’ allegation is not a statement of
fact, e.g. Phillips is representing himself to be a barred lawyer. Defendants allegation is an “if, then”
statement, i.e. if Plaintiff intended “DBA JD” to mean he was doing business as
a licensed lawyer, then such a statement would be false. Defamation must be based on a statement of
fact. (Smith v. Maldonado (1999)
72 Cal.App.4th 637, 645.) Plaintiff
fails to establish that this conditional statement is an actionable assertion
of fact or that it cast him in a false light.
Plaintiff’s evidence also fails to
establish that the information on his LinkedIn page was private information or
how attaching it to the Unlawful Detainer complaint was a serious invasion of
privacy. Plaintiff fails to submit any
evidence regarding LinkdIn, the nature of the information placed on LinkdIn,
e.g. how it got there, how private that information is, whether there is a
legally protected interest over information placed on LinkdIn, and why
attaching it to a UD complaint would be a serious invasion of privacy. A plaintiff alleging an invasion of privacy
must establish each of the following: (1) a legally protected privacy interest;
(2) a reasonable expectation of privacy in the circumstances; and (3) conduct
by defendant constituting a serious invasion of privacy. (Hill v. National Collegiate Athletic
Assn. (1994) 7 Cal.4th 1, 39–40.)
Plaintiff
therefore fails to satisfy his burden on the second prong of anti-SLAPP. Plaintiff fails to submit prima facie
evidence of each element of his first through sixth causes of action.
ii.
Defendants establish that Plaintiff’s first
through fifth causes of action, as well as the sixth cause of action to the
extent based on Protected Conduct, are barred by the litigation privilege
Civil Code
section 47, subdivision (b) is an absolute affirmative defense to all tort
causes of action, except the tort of malicious prosecution. (Flatley v. Mauro (2006) 39 Cal.4th
299, 322 (noting that there is not a complete overlap between statements
protected under the anti-SLAPP statute and the litigation privilege.) “[S]ection 47(b) operates to bar civil
liability for any tort claim based upon a privileged communication, with the
exception of malicious prosecution, whose requirements include malice, lack of
probable cause, and termination in the plaintiff's favor.” (Hagberg v. California Federal Bank FSB
(2004) 32 Cal.4th 350, 375.)
“Generally, the litigation
privilege precludes liability in tort, not liability for breach of
contract. If one expressly contracts not
to engage in certain speech or petition activity and then does so, applying the
privilege would frustrate the very purpose of the contract if there was a
privilege to breach it. Thus, the
privilege will apply to contract claims only if the agreement does not clearly
prohibit the challenged conduct, and if applying the privilege furthers the
policies underlying the privilege.” (Crossroads
Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th
757, 787 (on anti-SLAPP motion, litigation privilege did not apply to contract
claims based on defendant’s breach of contractual obligation to conduct
nonjudicial foreclosure in accordance with California law; application of
privilege would undermine, not further, policy goals of litigation privilege).)
Fidler and Landlord Defendants
assert the litigation privilege as an affirmative defense. Based on Plaintiff’s allegations, the
Protected Conduct that supplies an essential element of the first through fifth
causes of action is also protected by the litigation privilege under Civil Code
section 47, subdivision (b). Plaintiff’s
first through fifth causes of action are based entirely on statements made by
Fidler and Landlord Defendants in the pending unlawful detainer action. Such statements are a privileged publication
under section 47, subdivision (b) as a “publication” “made…in any…(2) judicial
proceeding.”
Plaintiff’s breach of contract
action is based on Defendants’ filing of the unlawful detainer action. Plaintiff fails to demonstrate that the Lease
Agreement clearly prohibits the filing of an unlawful detainer action. Moreover, the underlying policy goals of
Civil Code section 47, subdivision (b) would be furthered if applied to
Plaintiff’s breach of contract claim.
In opposition, Plaintiff fails to
identify any applicable exception to the litigation privilege or any grounds to
find that the litigation privilege does not apply. In his surreply, Plaintiff argues the
litigation privilege does not apply, because (1) Defendants allegedly acted
with malice and (2) Defendants’ acts were illegal.
Plaintiff is incorrect that the
litigation privilege does not apply to publications made with malice. “The purposes of section 47, subdivision (b),
are to afford litigants and witnesses free access to the courts without fear of
being harassed subsequently by derivative tort actions, to encourage open
channels of communication and zealous advocacy, to promote complete and
truthful testimony, to give finality to judgments, and to avoid unending
litigation. To effectuate these
purposes, the litigation privilege is absolute and applies regardless of
malice.” (Rusheen v. Cohen (2006)
37 Cal.4th 1048, 1063.) “The intention
of the party making the privileged communication is irrelevant because the
privilege is absolute in nature, applying to all publications, irrespective of
their maliciousness.” (Weeden v.
Hoffman (2021) 70 Cal.App.5th 269, 288.)
While the litigation privilege does not apply to an action for malicious
prosecution, Plaintiff does not allege such a claim. (Action Apartment Assn., Inc. v. City of
Santa Monica (2007) 41 Cal.4th 1232, 1242.)
Plaintiff also fails to establish
that the litigation privilege does not apply to illegal conduct. Plaintiff cites Flatley v. Mauro (2006)
39 Cal.4th 299 for the proposition that the litigation privilege does not apply
to acts that are illegal as a matter of law.
Flatley does not stand for that proposition. Flatley found that, while the
litigation privilege and section 425.16 overlap, illegal conduct that may be
protected by the litigation privilege may not necessarily be protected under
CCP §425.16. (Flatley, supra, 39
Cal.4th at 323-325.) “Applying
the litigation privilege to some forms of unlawful litigation-related activity
may advance those broad goals notwithstanding the “occasional unfair result” in
an individual case.” (Id. at
324.) Flatley found that acts
illegal as a matter of law are not protected conduct under Code of Civil
Procedure section 425.16. (Id. at
330-331 [defendants’ letter to plaintiff was extortion as a matter of law and
therefore undeserving of protection by the anti-SLAPP statute].). Flatley made no such finding as to the
litigation privilege.
Plaintiff fails to establish that
he can prevail in the face of Defendants’ showing that Plaintiff’s claims based
on Protected Conduct are barred by the litigation privilege. For this additional reason, Plaintiff fails
to satisfy his burden on the second prong.
D. Request for Attorney’s Fees
“A prevailing defendant on an
anti-SLAPP motion is entitled to seek fees and costs incurred in connection
with the anti-SLAPP motion itself, but is not entitled to an award of attorney
fees and costs incurred for the entire action.
An award of attorney fees to a prevailing defendant on an anti-SLAPP
motion properly includes attorney fees incurred to litigate the special motion
to strike (the merits fees) plus the fees incurred in connection with
litigating the fee award itself (the fees on fees). However, a fee award under the anti-SLAPP
statute may not include matters unrelated to the anti-SLAPP motion, such as
attacking service of process, preparing and revising an answer to the
complaint, or summary judgment research.
Similarly, the fee award should not include fees for obtaining the
docket at the inception of the case or attending the trial court's mandatory
case management conference because such fees would have been incurred whether
or not the defendant filed the motion to strike. In short, the award of fees is designed to
reimburse the prevailing defendant for expenses incurred in extracting herself
from a baseless lawsuit rather than to reimburse the defendant for all expenses
incurred in the baseless lawsuit.” (596
East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6
Cal.App.5th 426, 433 (affirming trial court reduction of requested fees under
CCP §425.16(c) from $152,529.15 to $28,290 based on finding that (1) hourly
rate of $750 was excessive for San Diego and finding reasonable rate to be
$275; (2) defendants improperly included work spent on tasks other than the
anti-SLAPP motion and that were duplicative; and (3) the anti-SLAPP motion was
only to one cause of action that was not especially novel or complex).) While a prevailing defendant on a anti-SLAPP
is “entitled to mandatory fees, he or she is entitled only to reasonable
attorney fees, and not necessarily the entire amount requested.” (Id.)
A defendant who partially succeeds
on an anti-SLAPP motion generally is considered a prevailing party and
therefore entitled to fees and costs, unless the results of the motion were so
insignificant that defendant did not achieve any “practical benefit” from
bringing the motion. This determination lies within the “broad discretion” of
the trial court. (Mann v. Quality Old
Time Service, Inc. (2006) 139 Cal.App.4th 328, 340.) Only those fees and costs incurred in
connection with the successful portion of the anti-SLAPP motion that is granted
in part may be recovered. (Jackson v.
Yarbray (2009) 179 Cal.App.4th 75, 82.)
The fee award is against the losing
plaintiff, not the losing plaintiff's attorney. Plaintiff's counsel is not a
party to the action and thus not subject to a fee award under CCP § 425.16. (Moore
v. Kaufman (2010) 189 Cal.App.4th 604, 614.)
i.
Fidler Request for Attorney’s Fees
Fidler moved to strike all six
causes of action from the complaint.
Fidler successfully struck the first through fifth and a portion of the
sixth. As such, Fidler is entitled to
mandatory fees as prevailing party on the anti-SLAPP motion. Although Fidler did not obtain dismissal of
the entire sixth cause of action, he significantly reduced the conduct at issue
therein.
Fidler requests attorney’s fees in
the amount of $19,060 based on 15 hours of motion prep, 4 hours of opposition
review and reply prep and an additional 1 hour for hearing attendance. Fidler therefore asks for a total of 20 hours
@ $950/hr.
“To
determine the reasonable hourly rate, courts consider the rate prevailing in
the community for similar work. This
market rate approach has been applied in cases involving in-house counsel,
contingency fees, and pro bono work. In each of these cases, courts have
refused to limit the market rate to the attorney's fee arrangement with the
prevailing party. Although the terms of
a fee contract may be considered, they do not compel any particular
award.” (Pasternack v. McCullough
(2021) 65 Cal.App.5th 1050, 1055-1056.)
The
court should consider the market rate for “similar work” or “comparable legal
service.” (Id. at 1057.) In doing so, the court might determine the
relevant market to be that of insurance defense litigation and litigators,
rather than civil litigation in general.
The “market rate for such services might be limited accordingly.” (Id. at 1057.)
The amount of time Fidler spent on
this motion is reasonable. However,
Fidler’s hourly rate is excessive. Fidler fails to establish that $950/hr is
reasonable based on the market rate for similar work or comparable legal
services. Fidler’s request for attorney’s
fees is granted in the amount of $9,500 (20 hours @ $475/hr)
ii. Landlord Defendants’ Request for Attorney’s
fees
Landlord Defendants completely
prevailed on its anti-SLAPP Motion, successfully striking the first through
fifth causes of action. Landlord
Defendants request for attorney’s fees in the amount of $7,375 based on 13.5
hours. Of the 13.5 hours, 10 hours were
@ $475/hr and 3.5 hours were @ $750/hr. The
amount of time spent on the anti-SLAPP is extremely reasonable. The hourly rate of $750 is excessive for the
reasons discussed in connection with Fidler’s request for attorney’s fees. Landlord Defendants are awarded $6,412.50 based
on 13.5 hours @ $475/hr.
Conclusion
Defendants Gary D. Fidler and Gary
D. Fidler, APLC’s Special Motion to Strike is GRANTED as to the first through
fifth causes of action for defamation, false light, NIED, IIED and breach of
contract, GRANTED as to protected conduct incorporated into the sixth cause of
action for breach of privacy (Complaint, 7:21-22) and DENIED as to the
unprotected conduct in the sixth cause of action for breach of privacy
(Complaint, 7:23-25-8:1-3.) Fidler Defendants
are awarded attorney’s fees in the amount $9,500.
Defendants Amanda Robertson and
Barham 22nd Street LLC’s Special Motion to Strike is GRANTED as to
the first through fifth causes of action for defamation, false light, NIED,
IIED and breach of contract. Landlord Defendants
are awarded attorney’s fees in the amount $6,412.50.