Judge: Gregory Keosian, Case: 22STCV18984, Date: 2023-05-08 Tentative Ruling

Case Number: 22STCV18984    Hearing Date: May 8, 2023    Dept: 61

Defendant Los Angeles Magazine’s Motion for Attorney Fees is GRANTED in the amount of $39,710.00.

Defendant to provide notice.

I.       MOTION FOR ATTORNEY FEES

Code of Civil Procedure § 425.16, subd. (c)(1) states that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” “The party prevailing on a special motion to strike may seek an attorney fee award through three different avenues: simultaneously with litigating the special motion to strike; by a subsequent noticed motion, . . .  or as part of a cost memorandum.” (Carpenter v. Jack In The Box Corp. (2007) 151 Cal.App.4th 454, 461.) “[T]he fact that he or she has prevailed on some claims but not on others is a factor to be considered in determining the amount of the fee awarded.” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019.)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.”  (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.)  In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment.  (See id.) 

In determining the proper amount of fees to award, courts use the lodestar method.  The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate.  “Fundamental to its determination . . . [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.”  (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).)  A reasonable hourly rate must reflect the skill and experience of the attorney.  (Id. at p. 49.)  “Prevailing parties are compensated for hours reasonably spent on fee-related issues.  A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.”  (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV).)  The Court in Serrano IV also stated that fees associated with preparing the motion to recover attorneys’ fees are recoverable.  (See id. at p. 624.)

Defendant Los Angeles Magazine, LLC (Defendant) seeks attorney fees based on the partial granting of their anti-SLAPP motion on February 2, 2023, which resulted in the dismissal of Plaintiff Yashar Ali’s first and second causes of action for defamation and promissory fraud, leaving only the third cause of action for breach of oral contract, for which the motion was denied. Defendant now seeks $42,335.00 in fees, which it claims are attributable to the two causes of action that were dismissed. (Motion at p. 4.)

Defendant is the prevailing party on its anti-SLAPP motion. “[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.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340.) Here, Defendant’s anti-SLAPP motion successfully resulted in the dismissal of Plaintiff’s tort causes of action, leaving only his claim for breach of oral contract. This relief was significant under the above law. Plaintiff in opposition contends that it is not significant, based on Defendant’s characterization of the third cause of action as a defamation claim in its motion. (Opposition at pp. 3–4.) The import of this argument appears to be that if a “defamation” claim has survived the motion, then Defendant has obtained no real relief. However, the court assessed Plaintiff’s contract claim as a contract claim in denying the motion. It is unclear why Defendant should be bound by an argumentative assertion of the claim’s nature which the court rejected, while allowing Plaintiff to escape a pleaded characterization of his claim which the court embraced.

Plaintiff argues that Defendant has not shown that the lodestar requested is reasonable, specifically by failing to present evidence of the novelty and difficulty of the legal questions, the skill requisite to perform legal services properly, or the rates customarily charged for similar work. (Opposition at pp. 4–5, citing  Glendora Community Redevelopment Agency v. Demeter (1984) 155 Cal.App.3d 465, 470.)

The motion is not deficient in the respects that Plaintiff identifies. The novelty and difficulty of the legal questions at issue are apparent to the court that decided the motion. And the declarations of Defendant’s counsel attest to their experience and expertise, as well as the reasonableness of their rates. (Spirra Decl. ¶ 14.) These rates — $350 per hour for a partner of 35-years’ experience, and $250 per hour for a partner of 25-years’ experience — are reasonable. (Spirra Decl. ¶ 14.)

This leaves the lodestar itself: $42,335.00 in fees, representing 128.3 hours of attorney work at an average rate of $329.97 per hour. (Spirra Decl. ¶ 4.) This does not include 5.7 hours spent addressing specifically the third cause of action, which was not dismissed. (Ibid.) Defendant also presents time records associated with the motion. (Spirra Decl. Exh. A.)

These time entries, supported by the declaration of Defendant’s counsel, are, in the main, reasonable. That relatively little time was spent on Plaintiff’s third cause of action is reasonable, given that the third cause of action was only added by an amended pleading filed on December 21, 2022, and the anti-SLAPP motion was filed two days later on December 23. Within the entries provided by Defendant, two stand out as improper. The first is 4.5 hours spent researching the “applicability of CCP sec. 425.16 to claims arising from statements in a newspaper or magazine” on December 12, 2022. (Spirra Decl. Exh. A.) The applicability of the protections of the anti-SLAPP statute to such publications could have been established in less time, especially given the experience of Defendant’s counsel. (See Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1038 [holding that newspapers and magazines are “public fora” within the meaning of the anti-SLAPP statute].) Additionally, a charge dated December 8, 2022, seeks three hours of fees for “[i]dentification and analysis of potential defenses to plaintiff’s claims.” (Spirra Decl. Exh. A.) This charge has no specific relation to the anti-SLAPP motion, as the motion itself rested on no affirmative defenses, and the charge itself does not mention the motion. The removal of these charges yields a reduction of 7.5 hours at $350 per hour, for a reduction of $2,625.00.

Accordingly, the motion for attorney fees is GRANTED in the amount of $39,710.00.