Judge Peter A. Hernandez, Case Number: 24STCV01638, Date: 2024-09-19 Tentative Ruling

Judge: Peter A. Hernandez, Case: 24STCV01638, Date: 2024-09-19 Tentative Ruling

Case Number: 24STCV01638 Hearing Date: September 19, 2024 Dept: 34

Bacelar, et al. v. Sill, et al. (24STCV01638)

1. Ballin’s Motion for Attorney’s Fees is GRANTED in part. Fees and costs are AWARDED in favor of Defendant Ballin and against Plaintiffs, jointly and severally, in the total amount of $13,210.27. This amount is comprised of $12,500.00 in attorney’s fees and $710.27 in costs and expenses.

2. Sill’s Motion for Attorney’s Fees is GRANTED in part. Fees and costs are AWARDED in favor of Defendant Sill and against Plaintiffs, jointly and severally, in the total amount of $6,042.48. This amount is comprised of $2,716.50 in attorney’s fees associated with Slaughter, Reagan & Cole, LLP, $2,000.00 in attorney’s fees associated with Plonsker Law LLP, and $1,325.98 in costs.

3. Defendant SHEI’s anti-SLAPP Motion is GRANTED. Defendant SHEI is STRICKEN from the Complaint. Defendant SHEI may move for attorney’s fees and costs.

4. Defendant Friedman’s anti-SLAPP Motion is GRANTED. Defendant Friedman is STRICKEN from the Complaint. Defendant Friedman may move for attorney’s fees and costs.

5. All Parties have been stricken or dismissed from the Complaint. The Complaint is now DISMISSED with prejudice.

6. SHEI’s Demurrer and SHEI’s Motion to Strike are TAKEN OFF CALENDAR.

Background

On January 22, 2024, Plaintiffs Melissa Bacelar (“Bacelar”), Wagmor Pets (“Wagmor”), and Wylder’s Holistic Pet Center, Inc. (“WHPC”) filed their Verified Complaint against Defendants Kim Sill (“Sill”), Shelter Hope Pet Shop, Inc. (“SHPS”), Matt Friedman (“Friedman”), and Faith Ballin (“Ballin”) on a single cause of action for defamation.

On February 27, 2024, Plaintiffs amended their Complaint to substitute Doe 1 with Shelter Hope Enterprises, Inc. (“SHEI”)

On February 28, 2024, Defendant Ballin filed her Special Motion to Strike Complaint (“Ballin’s anti-SLAPP Motion”).

On March 28, 2024, the court granted Ballin’s anti-SLAPP Motion and dismissed with prejudice Defendant Ballin from the Verified Complaint.

On March 28, 2024, Defendant Sill filed her Special Motion to Strike (“Sill’s anti-SLAPP Motion”).

On April 11, 2024, Defendant Ballin filed Judicial Council Form MC-010, Memorandum of Costs.

On April 19, 2024, Defendant Ballin filed her Motion for an Award of Attorney’s Fees (“Ballin’s Motion for Attorney’s Fees”). Defendant Ballin concurrently filed her Proposed Order.

On April 24, 2024, the court granted Sill’s anti-SLAPP Motion and struck Defendant Sill from the Complaint.

On April 25, 2024, Defendant Sill filed Judicial Council Form MC-010, Memorandum of Costs.

On May 3, 2024, Defendant Sill filed her Motion for an Award of Attorney’s Fees (“Sill’s Motion for Attorney’s Fees”). Defendant Sill concurrently filed her Proposed Order.

On May 13, 2024, Plaintiffs filed Judicial Council Form APP-002, Notice of Appeal regarding the Court’s orders dismissing Defendants Ballin and Sill on March 28, 2024 and April 24, 2024, respectively.

On May 16, 2024, Defendant Shelter Hope Pet Shop (“SHPS”) filed Special Motion to Strike (“SHPS’s anti-SLAPP Motion”). Defendant SHPS concurrently filed: (1) Declaration of Kim Sill; (2) Declaration of Jordanae P. Walker; and (3) Proposed Order.

On May 16, 2024, Defendant SHPS also filed: (1) Demurrer to Plaintiffs’ Complaint (“SHPS’s Demurrer”); and (2) Motion to Strike Portions of Plaintiffs’ Complaint (“SHPS’s Motion to Strike”). For each of these filings, Defendant SHPS concurrently filed its Proposed Order.

On May 20, 2024, by request of Plaintiffs, the Clerk’s Office dismissed without prejudice Defendant SHPS from the Complaint.

On May 21, 2024, Defendant Shelter Hope Enterprises, Inc. (“SHEI”) filed its Notice of Errata Re SHEI’s Responsive Pleadings to Plaintiffs’ Complaint, in which it noted that Defendant SHEI was erroneously listed on the Complaint as Defendant SHPS. Defendant SHEI then proceeded to refile its Special Motion to Strike (“SHEI’s anti-SLAPP Motion”), Demurrer to Plaintiffs’ Complaint (“SHEI’s Demurrer”), Motion to Strike Portions of Plaintiffs’ Complaint (“SHEI’s Motion to Strike”), and all their associated filings.

On May 24, 2024, Plaintiffs filed their Opposition to Ballin’s Motion for Attorney’s Fees.

On May 28, 2024, Plaintiffs filed their Opposition to Sill’s Motion for Attorney’s Fees.

On May 29, 2024, Defendant Friedman filed his Special Motion to Strike Complaint (“Friedman’s anti-SLAPP Motion”). Defendant Friedman concurrently filed: (1) Memorandum of Points and Authorities; (2) Declaration of Matt Friedman; (3) Declaration of Bryan Pease; (4) Proposed Order; and (5) Proof of Service.

On June 4, 2024, Defendant Ballin filed her Reply in support of Ballin’s Motion for Attorney’s Fees.

On June 4, 2024, Defendant Sill filed her Reply in support of Sill’s Motion for Attorney’s Fees.

On June 5, 2024, Plaintiffs filed their Opposition to SHEI’s Demurrer and Motion to Strike.

On June 5, 2024, Plaintiffs filed their Opposition to SHEI’s anti-SLAPP Motion.

On June 12, 2024, Plaintiffs filed their Opposition to Friedman’s anti-SLAPP Motion.

On June 14, 2024, Defendant SHEI filed its Reply in support of SHEI’s anti-SLAPP Motion.

I. Ballin’s Motion for Attorney’s Fees

A. Legal Standard

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)

Attorneys’ fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).)

B. Discussion

1. The Parties’ Arguments

Defendant Ballin moves the Court to award her $29,965.27, which is comprised of $25,605.00 in attorney’s fees for the anti-SLAPP Motion, $3,650.00 in attorney’s fees for the fee motion, and $710.27 in costs and expenses. (Ballin’s Motion for Attorney’s Fees, pp. 3:14–28, 7:14–15; Proposed Order to Ballin’s Motion for Attorney’s Fees, p. 2:5–7.)

Defendant Ballin argues: (1) that she is entitled to an award of reasonable attorney’s fees under the lodestar method; (2) that her lawyers’ hourly rates and hours incurred are reasonable; and (3) that she is entitled to an award of costs. (Ballin’s Motion for Attorney’s Fees, pp. 4:1–2, 4:15–16, 4:26–27, 5:14–15, 5:24–25, 6:3–4, 6:13–14, 6:19.)

Plaintiffs apparently concede that Defendant Ballin is entitled to attorney’s fees for prevailing on Ballin’s anti-SLAPP Motion, instead arguing that “an award of $10,000 seems appropriate.” (Opposition to Ballin’s anti-SLAPP Motion, pp. 2:13–15, 4:16–17, 5:7.) Plaintiffs come to this number after arguing that Ballin’s anti-SLAPP Motion was not factually or legally complex. (Id. at p. 4:16–17.)

In her Reply, Defendant Ballin reiterates her arguments and requests an additional $1,770.00 in fees for 4.5 hours of work (not 5.0 hours) done since filing the motion. (See Reply in support of Ballin’s Motion for Attorney’s Fees, p. 6:7–8 and Supp. Decl. Lewis, ¶ 3.) Thus, the total amount of fees requested by Defendant Ballin is $31,735.27. (Id. at p. 6:18–20.) (Although this number is not explicitly listed in the Reply, the language in the body of Ballin’s Motion for Attorney’s Fees and the associated Reply indicate that Defense Counsel mistakenly forgot to account in the conclusory figures for the initial seven hours allegedly spent on the fee motion.)

2. Authority for Fees & Prevailing Party

a. Legal Standard

“Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (Code Civ. Proc., § 425.16, subd. (c)(1).)

“A defendant who prevails on a special motion to strike in an action subject to paragraph (1) shall not be entitled to attorney’s fees and costs if that cause of action is brought pursuant to Section 11130, 11130.3, 54960, or 54960.1 of the Government Code, or pursuant to Chapter 2 (commencing with Section 7923.100) of Part 4 of Division 10 of Title 1 of the Government Code. Nothing in this paragraph shall be construed to prevent a prevailing defendant from recovering attorney’s fees and costs pursuant to Section 7923.115, 11130.5, or 54960.5 of the Government Code.” (Code Civ. Proc., § 425.16, subd. (c)(2).)

b. Discussion

On March 28, 2024, the court granted Ballin’s anti-SLAPP Motion and dismissed with prejudice Defendant Ballin from the Verified Complaint. (Minute Order dated March 28, 2024, p. 15.)

Defendant Ballin is a prevailing defendant on a special motion to strike that is not brought pursuant to one of the causes of action listed in Code of Civil Procedure section 425.16, subdivision (c)(2). Thus, Defendant Ballin is entitled to recover her attorney’s fees and costs. (Code Civ. Proc., § 425.16, subd. (c)(1).)

3. Method of Calculation for Fees

a. Legal Standard

“Section 425.16, subdivision (c), provides that a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. It is well established that the amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the familiar lodestar method. Under that method, the court tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.” (569 East Cnty. Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432, brackets, quotations, internal quotation marks omitted.)

b. Discussion

Defendant Ballin argues that the lodestar adjustment method should be used to calculate attorney’s fees. (Ballin’s Motion for Attorney’s Fees, p. 4:1–2.)

Plaintiffs do not dispute this or propose a different method.

The court uses the lodestar adjustment method to calculate fees.

4. Reasonableness of the Fees Claimed

a. Reasonableness of the Hourly Rates

i. Legal Standard

“The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom, and this includes the determination of the hourly rate that will be used in the lodestar calculus. In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (569 Easy Cnty. Boulevard LLC, supra, 6 Cal.App.5th at p. 437, citations omitted.)

ii. Discussion

Counsel for Defendant Ballin claim the following hourly rates: (1) $800.00 per hour for Counsel Jeff Lewis; (2) $400.00 per hour for Counsel Kyla Dayton; (3) $225.00 per hour for Paralegal Jason Ebbens; and (4) $225.00 per hour for Counsel Paralegal Renee Miramontes. (Ballin’s Motion for Attorney’s Fees, pp. 4:15–6:1, Decl. Lewis ¶¶ 5–12, Exh. 1.)

Plaintiffs do not make an argument about the hourly rates, although Plaintiffs’ Counsel states that Counsel Lewis’ rate of $800.00 per hour “is a bit steep, in my opinion, but not unreasonable.” (Opposition to Ballin’s Motion for Attorney’s Fees, Decl. Schuman, ¶ 5.)

After considering the information provided, the court agrees that the hourly rates for Counsel Lewis and Counsel Dayton. However, the court does not agree that attorney’s fees should be awarded for services provided by Paralegals. (Roe v. Halbig (2018) 29 Cal.App.th 286, 312.)

b. Reasonableness of the Number of Hours

i. Legal Standard

“Under the lodestar adjustment methodology, the trial court must initially determine the actual time expended and then ascertain whether under all the circumstances¿of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. Factors to be considered include, but are not limited to, the complexity of the case and procedural demands, the attorney skill exhibited and the results achieved. The prevailing party and fee applicant bears the burden of showing that the fees incurred were reasonably necessary to¿the conduct of the litigation, and were reasonable in amount. It follows that if the prevailing party fails to meet this burden, and the court finds the time expended or amount charged is not reasonable under the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Mikhaeilpoor v. BMW of N. Am., LLC (2020) 48 Cal.App.5th 240, 247 [cleaned up].)

ii. Discussion

Counsel for Defendant Ballin claims that the following hours were incurred: (1) 7.5 total hours for Counsel Lewis; and, (2) 47.6 hours for Counsel Dayton. (Ballin’s Motion for Attorney’s Fees, pp. 3:14–28 and Exh. 1, pp. 1, 7, 10; Reply in support Ballin’s Motion for Attorney’s Fees, Supp. Decl. Lewis, ¶ 3.)

Plaintiffs’ Counsel argues that the number of hours is unreasonable because Ballin’s anti-SLAPP Motion was not factually or legally complex. (Opposition to Ballin’s Motion for Attorney’s Fees, p. 4:16–17.) In his declaration, Counsel Schuman does not point to any specific line items but rather generally notes: (1) that an associate spent “volume hours” here, which was not the best use of time; (2) that many of the hours requested do not relate to Ballin’s anti-SLAPP Motion but rather to the motion for an undertaking, settlement discussion, and communications with the client; and (3) that it is difficult to assess certain items due to the redactions. (Id., Decl. Schuman, ¶¶ 8–11.)

The court agrees with most of Plaintiffs’ Counsel’s arguments.

First, the primary reason why Defendant Ballin prevailed on her special motion to strike is because Plaintiffs did not provide sufficient (or, for some claims, any) admissible evidence to substantiate their allegations. Furthermore, the court spent a significant amount of additional time working on the Minute Order dated March 28, 2024 because Ballin’s anti-SLAPP Motion did a below-average job in breaking down and considering the various individual pieces of conduct within the Complaint. (Compare Ballin’s anti-SLAPP Motion, pp. 7–10 with Minute Order dated March 28, 2024, pp. 6–8.)

Second, the issues in this case were relatively straightforward, and thus it was unreasonable to incur over fifty-five hours of attorney work (and dozens more hours of paralegal work) on a special motion to strike with such issues. This is particularly the case when the quality of those “volume hours” do not appear to have provided a better product.

Third, the court finds it difficult to parse through the redacted invoices. Specifically, it is very difficult to tell when certain line items in the invoices are (or, perhaps more importantly, are not) directly related to the special motion to strike. From what the Court can tell, it does appear that a significant amount of items are not related to the special motion to strike.

Finally, the court notes that the amount of hours incurred for the fees motion is patently unreasonable. The fee motion is a boilerplate document that should not have taken five hours of attorney time and two hours of paralegal time, much less an additional 4.5 hours. Even if such hours could have been reasonably justified, it does not appear likely that those hours were actually incurred here. As noted above in Section I.B.1, Defense Counsel appears to have rushed through the fee motion so quickly that they did not even request the initial seven hours of work on the fee motion in the conclusions of either the motion or the reply.

Based on the court’s assessment of a reasonable amount of hours incurred for both Ballin’s anti-SLAPP Motion and Ballin’s Motion for Attorney’s Fees, the court will allow 4 total hours for Counsel Lewis and 20 hours for Counsel Dayton.

5. Reasonableness of the Costs Claimed

Defendant Ballin lists $710.27 in costs and expenses, which are comprised of: (1) $435.00 in filing fees for the special motion to strike; (2) $60.00 in filing fees for the motion for undertaking; (3) $60.00 in filing fees for fee motion; and (4) $155.27 in service fees. (Ballin’s Motion for Attorney’s Fees, pp. 6:19–7:4.)

Plaintiffs concede that these costs should all be awarded, but not twice. (Opposition to Ballin’s Motion for Attorney’s Fees, p. 3:7–11.)

The court notes that as a prevailing defendant who has been dismissed from the Complaint, Defendant Ballin can obtain costs pursuant to both Code of Civil Procedure section 1032, subdivision (b) and pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1). The court agrees with Plaintiffs that Defendant Ballin is not entitled to a double recovery of costs.

All of these costs are reasonable and allowable under at least one of the cost statutes. The Court will award all $710.27 in these costs and expenses.

C. Conclusion

Ballin’s Motion for Attorney’s Fees is GRANTED in part. Fees and costs are AWARDED in favor of Defendant Ballin and against Plaintiffs, jointly and severally, in the total amount of $11,910.27. This amount is comprised of $11,200.00 in attorney’s fees and $710.27 in costs and expenses.

II. Sill’s Motion for Attorney’s Fees

A. Legal Standard

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)

Attorneys’ fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).)

B. Discussion

1. The Parties’ Arguments

Defendant Sill moves the Court to award her $42,650.78, which is comprised of $41,324.80 in total attorney’s fees (for both the anti-SLAPP Motion and the fee motion) and $1,325.98 in costs. (Sill’s Motion for Attorney’s Fees, p. 5:26–27.)

Defendant Sill argues: (1) that she is entitled to an award of reasonable attorney’s fees under the lodestar method; (2) that her lawyers’ hourly rates and hours incurred are reasonable; (3) that the time spent on preparing the fee motion, any reply, and appearing at the motion on it should be included; and (4) that she is entitled to an award of costs. (Sill’s Motion for Attorney’s Fees, pp. 3:15, 3:26–4:1, 4:7, 4:25, 5:13–14, 5:19.)

Plaintiffs argue that Defendant Sill is not entitled to fees because the issues in Sill’s anti-SLAPP Motion were identical to those in Ballin’s anti-SLAPP Motion yet Defendant Sill waited until after the court had already ruled on Ballin’s anti-SLAPP Motion to file a separate motion instead of joining Defendant Ballin’s motion. (Opposition to Sill’s Motion for Attorney’s Fees, p. 3:8–15.) Plaintiffs also argue that even if the work was necessary, the issues were not complex, the hours incurred were duplicative, and the hours did not relate to the special motion to strike. (Id. at pp. 4:1–2, 5:8–10.) Plaintiffs ultimately allow that the $2,500.00 would be an appropriate amount of fees and do not comment on costs. (Id. at pp. 5:26–6:2.)

In her Reply, Defendant Sill reiterates her arguments and requests the same amount as before. (Reply in support of Sill’s Motion for Attorney’s Fees, p. 3:16–17.)

2. Authority for Fees & Prevailing Party

a. Legal Standard

b. Discussion

On April 24, 2024, the court granted Sill’s anti-SLAPP Motion and struck Defendant Sill from the Complaint. (Minute Order dated April 24, 2024, p. 10.)

Defendant Sill is a prevailing defendant on a special motion to strike that is not brought pursuant to one of the causes of action listed in Code of Civil Procedure section 425.16, subdivision (c)(2). Thus, Defendant Sill is entitled to recover her attorney’s fees and costs. (Code Civ. Proc., § 425.16, subd. (c)(1).)

3. Method of Calculation for Fees

a. Legal Standard

b. Discussion

Defendant Sill argues that the lodestar adjustment method should be used to calculate attorney’s fees. (Sill’s Motion for Attorney’s Fees, pp. 3:26–4:6.)

Plaintiffs do not dispute this or propose a different method.

The court uses the lodestar adjustment method to calculate fees.

4. Reasonableness of the Fees Claimed

a. Reasonableness of the Hourly Rates

i. Legal Standard

ii. Discussion

Defendant Sill is represented by two law firms: (1) Slaughter, Reagan & Cole, LLP; and (2) Plonsker Law LLP. (Sill’s Motion for Attorney’s Fees, p. 4:8, 4:17.)

The former firm’s attorneys claim the following hourly rates: (1) $225.00 per hour for Counsel Barry J. Reagan; (2) $225.00 per hour for Counsel Kevin J. Heimler; (3) $209.00 per hour for Counsel Gabrielle Mezger-Lashley; and (4) $209.00 per hour for Counsel Jeffrey J. Halfen. The court does not agree that attorney’s fees should be awarded for services provided by Paralegals. (Roe v. Halbig (2018) 29 Cal.App.th 286, 312.)

The latter firm’s attorneys claim the following hourly rates: (1) $1,000.00 per hour for Counsel Michael J. Plonsker; and (2) $700.00 per hour for Counsel Rex Glensy. (Sill’s Motion for Attorney’s Fees, p. 4:17–24 and Decl. Plonsker, ¶ 4.)

Plaintiffs do not discuss the hourly rates, either in the body of their opposition or in the associated declaration.

After considering the information provided, the court agrees that the hourly rates for the lawyers at Slaughter, Reagan & Cole, LLP are reasonable.

However, the court does not agree that Counsel Plonsker and Glensy’s hourly rates are reasonable. The court has not been provided with sufficient evidence that would explain why respective rates of $1,000.00 and $700.00 are reasonable. Length of practice, being a named partner, and having represented well-known individuals in the entertainment industry are insufficient for why such a significant departure from the standard range of rates in this community is appropriate in this circumstance. (Sill’s Motion for Attorney’s Fees, Decl. Plonsker, ¶¶ 6–7.) In addition, while Counsel Plonsker’s Declaration does state that they have been involved with “the prosecution and defense of actions for defamation and also Anti-SLAPP Motions”, this detail is vague as it does not state, for example, how many such motions have been litigated and what their results were. (Id. at ¶ 4.) Thus, the Court will allow a $600.00 per hour rate for Counsel Plonsker and a $500.00 per hour rate for Counsel Glensy.

b. Reasonableness of the Number of Hours

i. Legal Standard

ii. Discussion

The attorneys from Slaughter, Reagan & Cole, LLP claim that the following hours were incurred for Sill’s anti-SLAPP Motion: (1) 5.1 hours for Counsel Reagan; (2) 18.2 hours for Counsel Heimler; (3) 47.4 hours for Counsel Mezger-Lashley; and (4) 4.8 hours for Counsel Halfen. (Sill’s Motion for Attorney’s Fees, Decl. Heimler, ¶¶ p. 4:8–16 and Decl. Heimler, ¶ 6–12.)

The attorneys from Plonsker Law LLP claim that the following hours were incurred for Sill’s anti-SLAPP Motion: (1) 16.95 hours for Counsel Michael J. Plonsker; and (2) 5.9 hours for Counsel Glensy. (Sill’s Motion for Attorney’s Fees, Decl. Plonsker, ¶¶ 6–7.)

In addition to those hours, 13.8 hours are estimated to be incurred by Counsel Heimler for the fees motion, which would be comprised of 7.8 hours on the motion, five hours reviewing the opposition and preparing a reply, and one hour attending the hearing. (Sill’s Motion for Attorney’s Fees, Decl. Heimler, ¶ 14.)

As previously stated, Plaintiffs argue that no fees should be granted because Defendant Sill could have joined the earlier special motion to strike. (Opposition to Sill’s Motion for Attorney’s Fees, p. 3:8–15.) Plaintiffs also argue that even if the work was necessary, the issues were not complex, the hours incurred were duplicative, and the hours did not relate to the special motion to strike. (Id. at pp. 4:1–2, 5:8–10.) Plaintiffs’ Counsel even makes an additional argument about redactions and how they make it difficult to tell what each line item relates to. (Id., Decl. Schuman, ¶ 10.)

The court agrees with most of the opposing arguments.

First and foremost, it was unnecessary to file a separate special motion to strike. Excluding the cover page and the verification, the pleading is only four pages, and it is filled with paragraphs that do not make any distinction among any of the defendants when it comes to descriptions of the conduct alleged. Thus, Counsel for Defendant Sill could have simply filed a joinder to Ballin’s anti-SLAPP Motion, which would have conserved both their resources and judicial resources.

Second, once Defendant Sill did choose to file her own special motion to strike, it was not reasonable to spend almost 100 hours of attorney time on a special motion to strike that dealt with identical conduct to what the Court had already ruled on. It is particularly unreasonable given that Sill’s anti-SLAPP Motion does not make any different arguments from Ballin’s anti-SLAPP Motion.

Third, while there is no set number of attorneys who are allowed to work on a case, the number of attorneys can be unreasonable. “Plainly, it is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.” (Morris v. Hyundai Motor Am. (2019) 41 Cal.App.5th 24, 39.) “[J]ust as there can be too many cooks in the kitchen, there can be too many lawyers on a case.”¿ (Id. at p. 38, quoting Donahue v. Donahue¿(2010) 182 Cal.App.4th 259, 272.) The use of six attorneys and three paralegals—all of whom billed in connection with the special motion to strike—led to overstaffing, inefficiencies, and inflated fees. Simply put, there was no reason here to use two law firms on a relatively straightforward special motion to strike that had already been ruled upon.

Fourth, many of the hours listed have nothing to do with Sill’s anti-SLAPP Motion. Contrary to Defense Counsel’s arguments, line items like the 2.6 hours spent on writing the demurrer, 2.1 hours writing the motion to strike, 0.1 hours analyzing a notice of related case, 2.3 hours of reviewing pleadings in related cases, and so on are not recoverable because they were completely unrelated to Sill’s anti-SLAPP Motion. (Sill’s Motion for Attorney’s Fees, p. 5:6–12 and Exhs. 1–2; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383–1384 [“These reports clearly show the Legislature intended that a prevailing defendant on a motion to strike be allowed to recover attorney fees and costs only on the motion to strike, not the entire suit. . . . We decline to interpret and apply the statute in a way other than as the Legislature intended.”].)

Fifth, as with Ballin’s anti-SLAPP Motion, the primary reason why Defendant Sill prevailed on her special motion to strike is because Plaintiffs did not provide sufficient (or, for some claims, any) admissible evidence to substantiate their allegations. In addition, it is notable that Sill’s anti-SLAPP Motion is very similar to Ballin’s anti-SLAPP Motion—and ignores how the Court broke down the individual pieces of conduct in the Minute Order dated April 24, 2024—even though the Court’s tentative order had been available for days prior to the filing of Sill’s anti-SLAPP Motion. This indicates a copy-and-paste approach to the work rather than close attention paid to the case at hand.

Sixth, the Court faces even more difficulty parsing these invoices than it did with the invoices in Ballin’s Motion for Attorney’s Fees. Specifically, the invoices from Plonsker Law LLP are so vague and over-redacted that it is difficult to see why they should be awarded more than few hours even if incurring such hours was reasonable. Submitting invoices with sections that are completely redacted is tantamount to not submitting that evidence at all. Further, it is unclear why the Plonsker Law LLP invoices include so many hours for “researched” and “read websites”, whether those hours were directly related to the special motion to strike, and why those hours are reasonable if the purpose of the second firm was to be experts on anti-SLAPP litigation.

Finally, the court notes that the number of hours claimed for the fees motion is patently unreasonable and unlikely to have actually occurred. The fee motion is a boilerplate document that should not have taken multiple hours to create and is highly unlikely to have actually taken 7.8 hours of attorney time—much less five additional hours for a three-page reply.

In its discretion, the court chooses not to deny all attorney’s fees. The reason for this is because Defendant Sill was not required to file a separate special motion to strike, even if doing so would have been more efficient. However, given the duplicative nature of the work for the second special motion to strike, the reasonableness of additional hours comes under a higher level of scrutiny.

Based on the court’s assessment of a reasonable amount of hours incurred for both Sill’s anti-SLAPP Motion and Sill’s Motion for Attorney’s Fees, the court will allow 0.75 hours for Counsel Reagan, 4.5 hours for Counsel Heimler, 5 hours for Counsel Mezger-Lashley, 1 hour for Counsel Halfen, ~~1 hour for Paralegal DeSoto, 1 hour for Paralegal Suarez, 0.25 hours for Paralegal Gomez~~, 2.5 hours for Counsel Plonsker, and 1 hour for Counsel Glensy.

5. Reasonableness of the Costs Claimed

Defendant Ballin lists $1,325.98 in costs, which are comprised of: (1) $1,130.00 in filing and motion fees; (2) $78.55 in court reporter fees; and (3) $117.43 in e-filing fees. (Sill’s Motion for Attorney’s Fees, Decl. Heimler, ¶ 16.)

Plaintiffs do not make a separate argument about costs but rather leave it to Plaintiffs’ Counsel to declare a belief that the total amount of fees and costs should be no more than $2,500.00. (Opposition to Sill’s Motion for Attorney’s Fees, Decl. Schuman, ¶ 12.)

The Court notes that, as a prevailing defendant who has been dismissed from the Complaint, Defendant Sill can obtain costs pursuant to both Code of Civil Procedure section 1032, subdivision (b) and pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1), but that she is not entitled to a double recovery of costs.

All of these costs are reasonable and allowable under at least one of the cost statutes. The Court will award all $1,325.98 in these costs.

C. Conclusion

Sill’s Motion for Attorney’s Fees is GRANTED in part. Fees and costs are AWARDED in favor of Defendant Sill and against Plaintiffs, jointly and severally, in the total amount of $5,761.23. This amount is comprised of $2,435.25 in attorney’s fees associated with Slaughter, Reagan & Cole, LLP, $2,000.00 in attorney’s fees associated with Plonsker Law LLP, and $1,325.98 in costs.

III. SHEI’s anti-SLAPP Motion & Friedman’s anti-SLAPP Motion

A. 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).)

“In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).)

“A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. The Legislature enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055–56, citations omitted.)

“In light of the foregoing, we may summarize a court's task in ruling on an anti-SLAPP motion to strike as follows. Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enters. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

“Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89, emphases in original.)

B. Discussion

1. The Parties’ Arguments

Defendant SHEI moves the Court to strike it from the Complaint and to award it attorney fees and costs. (SHEI’s anti-SLAPP Motion, p. 14:19–21.)

Defendant Friedman similarly moves the Court to strike him from the Complaint. (Friedman’s anti-SLAPP Motion, p. 9–10.)

Plaintiffs oppose both special motions to strike.

Plaintiffs argue that SHEI’s anti-SLAPP Motion is untimely. (Opposition to SHEI’s anti-SLAPP Motion, pp. 2:21, 6:19–21.)

Plaintiffs argue that Friedman’s anti-SLAPP Motion should be denied, based entirely on the arguments and evidence made in opposition to the other three special motions to strike. (Opposition to Friedman’s anti-SLAPP Motion, p. 2:8–10.)

2. Timeliness

a. Legal Standard

“The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.” (Code Civ. Proc., § 425.16, subd (f).)

b. Discussion

A brief recounting of the timeline is helpful here.

· On January 30, 2024, Plaintiffs filed Judicial Council Form POS-010, Proof of Service of Summons regarding Defendant SHPS.

· On February 27, 2024, Plaintiffs amended their Complaint to substitute Doe 1 with Defendant SHEI.

· On March 4, 2024, SHEI’s Counsel signed Judicial Council Form POS-015, Notice and Acknowledgment of Receipt—Civil regarding receipt of the Summons and Complaint in this matter. (Opposition to SHEI’s anti-SLAPP Motion, Exh. 1.)

· On April 17, 2024, the Parties agreed via email to an additional thirty days for SHEI to file SHEI’s anti-SLAPP Motion.

· On May 16, 2024, Defendant SHPS filed SHPS’s anti-SLAPP Motion.

· On May 20, 2024, by request of Plaintiffs, the Clerk’s Office dismissed without prejudice Defendant SHPS.

· On May 21, 2024, Defendant SHEI filed SHEI’s anti-SLAPP Motion.

Regarding the sixty-day service deadline, SHEI had until May 3, 2024 to file its anti-SLAPP Motion because SHEI was served with the Complaint on March 4, 2024. Unless the Court uses its discretion here, SHEI’s anti-SLAPP Motion would be considered untimely because it was filed on May 21, 2024.

The Court finds that the late filing of SHEI’s anti-SLAPP Motion is proper given the circumstances at hand. Specifically, it appears that the Parties informally agreed to a thirty-day extension of the deadline. (Reply in support of SHEI’s anti-SLAPP Motion, Exh. 7 [actual pp. 128–130 of 164].) While the Court need not accept the Parties’ stipulations, the Court looks favorably upon the Parties’ respective Counsel acting civilly and granting each other extensions.

In this situation, it is important to note that one could reasonably have read ambiguity into this extension, such that the deadline had either become May 17, 2024 (based on if the thirty-day extension was from the date requested of April 17, 2024) or June 3, 2024 (based on if the thirty-day extension was to a ninety-day deadline, plus one day due to it falling on a Sunday). That issue did not require resolution because Defendant SHPS filed SHPS’s anti-SLAPP Motion on May 16, 2024. While Defendant SHPS and SHPS’s anti-SLAPP Motion were soon dismissed, they were in reality identical to Defendant SHEI and SHEI’s anti-SLAPP Motion.

Thus, the circumstances here do not indicate that Defendant SHEI inappropriately delayed but rather that, despite minor procedural issues, the Parties and their Counsel did their best to work together and submit their filings on a timely basis.

The Court allows the filing of SHEI’s anti-SLAPP Motion past the sixty-day service deadline.

In addition, the Court notes that both SHEI’s anti-SLAPP Motion and Friedman’s anti-SLAPP Motion are being heard long past the thirty-day deadline for service of those motions. (Code Civ. Proc., § 425.16, subd (f).) This was necessary due to the docket conditions of the Court, which have been delayed for months by the recent retirement of the prior judicial officer in Department 34. (Ibid.)

3. The Merits

The two special motions to strike at hand (and their associated filings) do not present the Court with any new law, arguments, or evidence.

Notably, each of the individual pieces of conduct alleged in the Complaint was alleged against all of the Defendants. (Complaint, ¶¶ 10–18.)

The Court has already twice granted special motions to strike against this Complaint after concluding that the alleged activity involves protected activity and that Plaintiffs have not demonstrated a probability of prevailing on their claims. (Minute Order dated March 28, 2024, pp. 6–8, 10–12; Minute Order dated April 24, 2024, pp. 5–8, 10.)

“Where the reason is the same, the rule should be the same.” (Civ. Code, § 3511.)

Conclusion

Defendant SHEI’s anti-SLAPP Motion is GRANTED. Defendant SHEI is STRICKEN from the Complaint. Defendant SHEI may move for attorney’s fees and costs.

Defendant Friedman’s anti-SLAPP Motion is GRANTED. Defendant Friedman is STRICKEN from the Complaint. Defendant Friedman may move for attorney’s fees and costs.

All Parties have been stricken or dismissed from the Complaint. The Complaint is now DISMISSED with prejudice.

IV. SHEI’s Demurrer and SHEI’s Motion to Strike

In addition to SHEI’s anti-SLAPP Motion, Defendant SHEI also filed SHEI’s Demurrer and SHEI’s Motion to Strike.

The Court has now stricken Defendant SHEI from the Complaint. Thus, the Court lacks jurisdiction to hear SHEI’s Demurrer and SHEI’s Motion to Strike.

SHEI’s Demurrer and SHEI’s Motion to Strike are TAKEN OFF CALENDAR.