Judge Christian R. Gullon, Case Number: 23PSCV00917, Date: 2024-08-08 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV00917, Date: 2024-08-08 Tentative Ruling

Defendant Laurie M. Leer SPECIAL MOTION TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO C.C.P. 425.16 [ANTI-SLAPP STATUTE]; REQUEST FOR ATTORNEY’S FEES AND COSTS PURSUANT TO C.C.P. §425.16(c)(1) is GRANTED, but in the reduced amount of $11,135.00.

This is a defamation case. Plaintiff Dr. ANIL GUPTA (“Plaintiff”) alleges the following against Defendant Laurie M. Leer (“Defendant”): On February 10, 2023, Defendant made false statements to others that Plaintiff “keeps his medical license for insurance fraud,” which was intended to hurt Plaintiff’s reputation. (Complaint p. 4 of 4 of PDF.)[1] Plaintiff claims he has been damaged in an amount of $500,000.

This Motion is made on the grounds that Defendant is the “prevailing defendant” under Civ. Proc. Code, supra, § 425.16, which mandates that the court shall award reasonable attorneys to the prevailing defendant on a special motion to strike. (Civ. Proc. Code § 425.16, subd. (c)(1) [emphasis added].)

Here, as the appellate court dismissed Plaintiff’s appeal on 4/16/24 due to Plaintiff’s failure to cure its default, Defendant, per the court’s 8/15/23 order, is entitled to attorney fees, which Plaintiff does not dispute. Instead, Plaintiff argues that the fees are unreasonable. Defendant seeks an award of $31,625 in attorney fees (and $539.25 in costs). According to Defense Counsel Burns’ declaration, his firm spent a total of 45.7 hours on the matter. For reasons to be discussed below, the court agrees with Plaintiff that the hours expended on the matter and hourly rate are unreasonable.

The court will address each category of billing in the order presented in Counsel Burns’ declaration.

Counsel Burns, who has 25 years of experience, states that he spent approximately 4.8 hours in connection with reviewing the Complaint and drafting/revising the Anti-SLAPP Motion and 2.7 hours in connection with review of the Opposition, Plaintiff’s objections and drafting/revising the Reply and Defendant’s Objections. Based on his hourly rate of $625/hour, Defendant was billed approximately $4,687.50 for Burns’ services.

Here, as underscored in the court’s ruling,[3] the complaint was a four-page form complaint with nine lines of material allegations. Reading (and re-reading) the complaint would reasonably take no more than half an hour. To the extent that Counsel Burns maintains it took longer, even if detailed time records are not necessary (Reply p. 2), no verified time records are submitted that would be entitled to a presumption of credibility. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395.) As for Counsel Burns’ work in drafting the motion and papers, the research and writing largely seems to be conducted by Counsel Brown, infra. (Ibid [while a trial court abuses its discretion in “rejecting wholesale counsels’ verified time records,” it may deny compensation for “inefficient or duplicative” work. (Id. at pp. 394-395, quoting Ketchum v. Moses (2001) 24 Cal.4th 1122, 1130, 1132.)[4] That would leave revising any of the drafted material, which would—for a 15-page substantive motion and 6-page reply—reasonably take no more than 2 hours.

Therefore, the court determines that Counsel Burns reasonably expended 2.5 hours on the matter.

As for the hourly rate, Burns has not set forth evidence that his hourly rate is the prevailing rate in this community. (See Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 155 [explaining the reasonable hourly rate is that prevailing in the community for similar work]; Altavion, Inc. v. Konica Minolta Sys. Lab., Inc. (2014) 226 Cal.App.4th 26, 71 [“The relevant ‘community’ is that where the court is located.”].) Accordingly, the court reduces the amount $425/hour. (See also Opp. p. 5 [seeking imposition of $425 rate].) And if there is evidence of the prevailing rates in this community, it is presented by Plaintiff’s Counsel who has been practicing for 10 years but charges $375/hour. (See Opp. p. 5:8-10.)

Thus, the court awards 2.5 hours/$425/hour for a total of $1,062.50 for counsel Burns in association with the anti-slapp motion.

This included: (1) approximately 10.3 hours in connection with reviewing the Complaint, conducting necessary legal research relating to the applicability of the Anti-SLAPP statute and litigation privileges to Plaintiff’s claims for defamation, and also researching potential merits defenses[6] as well as research regarding the applicability of the Anti SLAPP statute and its relation to Medi-Cal laws, as well as the applicability of formal grievances made towards medical providers on whether such grievances fall within the ambit of protected activity of section 425.16, subdivision (e), and communicating with our client in the investigation and gathering of applicable evidence for her declaration; (2) approximately 13 hours in connection with drafting the Anti-SLAPP Motion and supporting declarations; (3) approximately 8.2 total hours in reviewing Plaintiff’s Opposition and Plaintiff’s Objections and preparing the Reply and Defendant’s Objections (4) approximately 6.0 hours in preparing for and attending the hearing on the Anti-SLAPP Motion. Based on his hourly rate of $425/hour, Leer was billed approximately $15,937.50 in connection with Mr. Brown’s services for the Anti-SLAPP Motion.

In opposition, Plaintiff contends that it is unreasonable for a seasoned to take 7.5 hours in drafting the motion, but that 6.5 hours to prepare and write the motion and the reply is 6.5 hours is reasonable. The court agrees, namely as the motion and reply did not provide a robust analysis as to whether Defendant’s conduct pertained to the public interest. (See e.g., Final Ruling, fn. 8.) Therefore, the court awards 10.3 hours (research) + 6.5 hours (drafting motion, reviewing opposition, and drafting reply) for a total of 16.8 hours at $425/hour for a total of $7,140.00.

Lastly, Defense Counsel seeks $11,000 in connection with the motion for attorney fees (20 hours (8 by Burns and 12 by Brown) in drafting motion, any necessary reply and preparing for and attending the hearing on this motion.

Here, as the motion is largely a recitation of case law, the court determines a total of 6.9 hours is reasonable. [7] Therefore, the court awards $2,932.50 in connection with the motion for attorney fees (6.9 hours x $425/hour).

Based on the foregoing, the court grants the motion, but in the reduced amount of $11,135.00.

[1] A Judicial Council form was used for the complaint and the substantive allegations are no more than a couple of conclusory sentences.

[2] The opposition is slightly unclear as to its arguments as it does not go through each entry (e.g., Burns, Brown, and instant motion), but appears to largely focus on the work spent on the anti-slapp motion. With that, the court will take the general/overarching arguments raised by Plaintiff.

[3] See 8/15/23 Final Ruling, p. 1, fn. 1 [“A Judicial Council form was used for the complaint and the substantive allegations are no more than a couple of conclusory sentences.”].)

[4] To the extent in reply Defendant argues that fees incurred for multiple counsel are recoverable even if there is some duplication of work, the cases she cites to do not support that position because in both Balsam v Trancos, Inc. (2012) 203 Cal. App. 4th 1083 and California DUI Lawyers Ass’n v California DMV (2022) 77 Cal. App. 5th 517, timesheets were submitted whereas here, no such timesheets have been provided. What is more, the latter case involved unique factual issues that required additional briefing; here, arguably, the complaint was lack that it could have been disposed of on possibly a demurrer. In any event, attorney fees rest in the sound discretion of the trial judge. (Reply p. 2, citing Syers Properties III, Inc. v. Rankin (2014) 226 Cal. App. 4th 691, 698.)

[5] He has 5 years of litigation experience.

[6] In opposition, Plaintiff argues that work on defenses cannot be considered. (Opp. p. 4:10-11.) As noted in Reply, Plaintiff does not cite to legal authority to support this argument.

[7] It appears Plaintiff argues 6.5 hours plus .4 hours is reasonable in connection with this motion. (See Opp. p. 5.)