Judge: Helen Zukin, Case: 22SMCV02968, Date: 2023-05-25 Tentative Ruling

Case Number: 22SMCV02968    Hearing Date: June 29, 2023    Dept: 207

Background

Plaintiffs Leonard Whiting (“Whiting”) and Olivia Hussey (“Hussey” or, collectively with Whiting, “Plaintiffs”) brought this action against Defendant Paramount Pictures Corporation (“Defendant”). Plaintiffs allege they were cast as actors in a 1968 film adaptation of Romeo and Juliet. Plaintiffs state they were minors at the time the movie was filmed in 1967, and the director coerced them into appearing nude in the film despite representations that no nudity would be required or filmed in connection with the movie. Plaintiffs’ Complaint asserted seven causes of action against Defendant for sexual harassment, fraud, sexual abuse, appropriation of name and likeness, intentional infliction of emotional distress, negligence, and unfair business practices.

Defendant previously brought a motion to strike under Code Civ. Proc. § 425.16, which extends protections to strategic lawsuits against public participation (“SLAPP” actions). On May 26, 2023, the Court issued an order striking Plaintiffs’ entire Complaint. Defendants now move for an award of $173,338.41 in attorney’s fees and costs in bringing the anti-SLAPP motion to strike and $8,501 in attorney’s fees under Code Civ. Proc. § 3344(a), for a total claimed amount of $181,236.60 in fees and $602.81 in costs. Plaintiffs did not file an opposition to Defendant’s motion, but instead filed objections to the motion and a notice of filing of bankruptcy for Hussey.

Legal Standard

Under CCP § 425.16(c), a prevailing defendant is entitled to recover attorneys’ fees and costs associated with the motion. A defendant may only recover fees and costs related to the motion to strike. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) This includes fees associated with bringing the motion for fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 (“an award of fees may include not only the fees incurred with respect to the underlying claim, but also the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16.”).)

Under Civil Code § 3344(a), a prevailing party in a statutory claim for appropriate of name or likeness is entitled to attorney’s fees and costs.

“A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) “The California Supreme Court has upheld the lodestar method for determining the appropriate amount of attorney fees for a prevailing defendant on an anti-SLAPP motion.” (Mann v. Quality Old Time Service, Inc., (2006) 139 Cal.App.4th 328, 342.)

No specific findings reflecting the court’s calculations are required. The record need only show that the attorney fees were awarded according to the “lodestar” or “touchstone” approach. The court’s focus in evaluating the facts should be to provide a fee award reasonably designed to completely compensate attorneys for the services provided. The starting point for this determination is the attorney’s time records. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 395-397 [verified time records entitled to credence absent clear indication they are erroneous].) An experienced trial judge is able to assess the value of the professional services rendered in his or her court. (Id.; Serrano v. Priest (1977) 20 Cal.3d 25, 49; Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255.)

Request for Judicial Notice

The Court GRANTS Defendant’s request for judicial notice under Evidence Code section 452(d), as the notice of filing of bankruptcy petition is a record of the federal court and it is responsive to Plaintiffs’ notice of filing of bankruptcy petition for Plaintiff Hussey. However, the Court only takes judicial notice of “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)

Analysis

Plaintiffs do not raise any objections to the reasonableness of Defendant’s claimed fees of $181,236.60 and $602.81 in costs. Plaintiffs instead filed objections, first arguing that fees are inappropriate because “the statute of limitations acts as a shield not as a sword.” To the extent Plaintiffs are referring to the Court’s order granting the anti-SLAPP motion on statute of limitations grounds, Plaintiffs did not seek reconsideration of the Court’s order and cannot do so in the context of this fees motion. Defendant is unquestionably the prevailing party in the anti-SLAPP motion regardless of the basis for the Court’s ruling in that motion. (See Traditional Cat Ass’n, Inc., supra, at p. 399 [“a claim which is meritless because it is barred by the statute of limitations will cause just as much intimidation as a claim which is barred because of a constitutional defense. Both forms of meritless lawsuits are the subject of section 425.16.”].) Defendant therefore is entitled to an attorneys’ fees award under Section 425.16, as the award of fees is mandatory except for limited exceptions, none of which apply here. (See Code Civ. Proc. § 425.16(c)(1)-(2).)

Plaintiffs’ other objection is that Hussey’s bankruptcy stays the fees motion. The Court agrees with Defendant that Hussey’s 2021 bankruptcy petition has no bearing on his Court’s ability to grant Defendant’s fees motion. Plaintiffs initiated this action against Defendant almost two years after Hussey filed for bankruptcy, facts which take this action outside of the stay protections set forth in 11 U.S.C. § 362(a). (Kim Decl., Ex. N; 11 U.S.C. § 362(a)(1).) The Court also agrees that 11 U.S.C. § 362(b)(4) permits the Court to award attorneys’ fees to Defendant for prevailing on its anti-SLAPP motion and thereby enforce its regulatory power and policies. (See 11 U.S.C. § 362(b)(4).) Lastly, the bankruptcy petition only applies to Hussey and has no bearing on Whiting. (See Kim Decl., Ex. N.) For all of these reasons, Hussey’s bankruptcy does not stay this action and this Court’s order on the fees motion.

The total amount sought here is $181,236.60, comprised of $150,547.20 in attorneys’ fees related to the anti-SLAPP motion, $602.81 in costs, $22,1884.00 for the instant motion for attorneys’ fees, and $8,501.00 in attorneys’ fees for the appropriation of name and likeness claim.

The Court has conducted its own review of the billing records attached to Defendant’s motion. The Court finds the amounts requested for the anti-SLAPP motion are reasonable. The hourly rates for Defendant’s counsel are commensurate with its counsels’ respective experience and skill levels and in the Los Angeles legal community. The Court also finds that this was a sufficiently complex matter that warranted extensive research and drafting in connection with the anti-SLAPP motion involving varied legal arguments including the application of British and Italian law. The Court ultimately granted the anti-SLAPP motion on statute of limitations grounds but finds that the hours spent researching and briefing arguments for both prongs of the anti-SLAPP motion was reasonable given the numerous claims filed by Plaintiffs and the complexity of the issues involved. The Court agrees that Plaintiffs and their counsel needlessly multiplied Defendant’s legal fees by filing multiple ex parte motions, an oversized opposition memorandum beyond the expanded page limit approved by the Court, and otherwise unnecessarily obstructing Defendant’s efforts in connection with the anti-SLAPP motion. The fees sought for the name and likeness claim are reasonable and recoverable under Civil Code section 3344. And further bolstering the reasonableness of Defendant’s requested fee amount is the fact that Defendant is not seeking to recover all the fees it incurred for the anti-SLAPP motion, including time its counsel spent watching the subject film, reading Hussey’s memoir, time billed by the foreign-law experts, and time spent by counsel collecting documents for the motion and commenting on drafts.

In its motion, Defendant estimated that its attorneys would spend approximately 35-40 hours briefing the fees motion, and it included with the reply brief the billing records reflecting approximately 30 hours of attorney time spent researching and briefing the fees motion. The Court has reviewed these billing records and finds the amounts to be reasonable.

Conclusion

The motion for attorneys’ fees is GRANTED in the amount of $181,236.60 in attorneys’ fees and $602.81 in costs.