Teresa R. Burwell v. Dr. Phil McGraw, et al.

DEFENDANTS’ MOTION FOR ATTORNEY’S FEES AND COSTS

 

MOVING PARTIES: Defendants Paramount Global Holdings, Inc.; CBS Studios Inc.; and Dr. Phil McGraw

RESPONDING PARTY(S): No response filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Teresa R. Burwell brought this action against Defendants The Dr. Phil Show, Dr. Phil McGraw, CBS Studios, and Paramount Studios. Plaintiff alleged that her and her children appeared on The Dr. Phil Show, and experienced unfair treatment and humiliation, among other things. Plaintiff asserts causes of action for (1) negligent misrepresentation, (2) professional negligence, (3) personal injury, (4) equitable relief, (5) defamation, and (6) violation of Civil Code section 1714.

On November 22, 2022, this court granted Defendants’ special motion to strike the FAC in its entirety.  (See 11/22/2022 Ruling.) Consistent with that ruling, Defendants now move for attorney’s fees.

The matter initially came for hearing on March 30, 2023. The court continued the hearing pending the automatic bankruptcy stay. On September 29, 2023, this court lifted the stay based on the dismissal of Plaintiff’s bankruptcy proceeding. On October 2, 2023, Defendants filed a declaration providing evidence Plaintiff’s bankruptcy proceeding had concluded. That same day, Defendants provided Plaintiff notice of the continued hearing date. Plaintiff has not filed an opposition to the motion.

TENTATIVE RULING:

Defendants’ Motion for Attorney’s Fees is GRANTED in its entirety.

Defendant’s Motion for Costs is DENIED as untimely.

If appropriate and allowed by law, Defendants may file and serve a proposed judgment consistent with this and the prior rulings of this court in connection with the special motion to strike.

Moving party to give notice.

DISCUSSION:

Motion for Attorney’s Fees

I. Legal Standard

A prevailing defendant on a special motion to strike “shall” be entitled to recover its attorney’s fees and costs.  (CCP 425.16(c)(1).) A party may file a noticed motion for attorney's fees after receiving a successful ruling on the anti-SLAPP motion. (Martin v. Inland Empire Utilities Agency (2011) 198 Cal. App. 4th 611, 631.)

The determination of reasonable amount of attorney fees is within the sound discretion of trial courts.  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.)  “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’”  “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….”  (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)  In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “‘fees customarily charged by that attorney and others in the community for similar work.’”  (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664.)  The burden is on the party seeking attorney fees to prove reasonableness of the fees.  (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal. App. 4th 603, 615.) 

The Court has broad discretion in determining the amount of a reasonable attorney's fee award which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal. App. 4th 1379, 1393-94.  The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.) 

II. Analysis 

A. Background

On November 22, 2022, this court granted Defendants’ Special Motion to Strike the Complaint in its entirety, thereby disposing of the action. (See 11/22/22 Final Ruling.) Therefore, Defendants prevailed on the motion and are entitled to recover their reasonable attorney’s fees. (See CCP 425.16(c)(1).) The court instructed Defendants they could file a separate noticed motion for attorney’s fees. This court entered judgment in Defendants’ favor on December 13, 2022. 

Defendants filed this motion for attorney’s fees on January 18, 2023, seeking fees and costs in the amount of $82,908.99.  On February 2, 2023, Defendants filed a “Notice of Automatic Stay of Proceedings,” indicating Plaintiff Teresa R. Burwell filed for bankruptcy under Chapter 7 of the United States Bankruptcy Code on January 9, 2023. As of September 29, 2023, the stay has been lifted through dismissal of Plaintiff’s bankruptcy proceeding. The court now turns to the merits of the request for attorney’s fees.

B. Reasonable Hourly Rate

Defendants utilized two law firms on the special motion to strike: Jackson Walker LLP and local counsel Ford, Walker, Haggerty & Behar LLP.

Jackson Walker LLP seeks attorney’s fees in the total amount of $66,401.60, which includes the estimated fees incurred to bring this motion and appear at the hearing. (See Hamilton Decl. ¶ 2.) Attorney Nancy Hamilton billed the bulk of the time at a rate of $732.00 per hour, with assistance from paralegal Kevin Kunec, who billed at $320.00 per hour. (Id. ¶¶ 3, 4.)

Local counsel Ford, Walker, Haggerty & Behar LLP seeks $14,520.00 in fees, which again includes the time estimated to bring this motion and appear at the hearing. The firm used two attorneys: Katherine M. Harwood, who billed at $400.00 per hour, and William C. Haggerty, who billed at $500.00 per hour. (Harwood Decl. ¶ ¶ 7, 8.)

Under the totality of the circumstances and based upon general prevailing rates in the Los Angeles area for this type of litigation, this court finds the quoted rates to be reasonable. This determination considers the complexity of the case, the quality of services provided, and the attorneys’ experience.  

C. Hours Reasonably Incurred

Defendants represent that their counsel spent a total of 115.7 hours in relation to the anti-slapp motion. They also estimate an additional 19 hours preparing this motion for fees and costs, and preparing for and participating in the hearing on this motion.

The fee award “should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.” (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1133 [emphasis in the original].) 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's fees and costs incurred for the entire action. (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal. App. 4th 15, 21.)

Here, Defendants were completely successful in striking the entirety of Plaintiff’s Complaint, which included six causes of action. In doing so, Defendants successfully demonstrated (1) that Plaintiff’s challenged conduct in appearing on the Dr. Phil Show was protected under the first prong of the anti-SLAPP analysis, and (2) that none of Plaintiff’s claims had even minimal merit. 

On one hand, this required strong briefing and advocacy, and such an effort should be rewarded. On the other, this result was mostly a foregone conclusion. Indeed, Plaintiff’s opposition to the motion was not a high barrier to overcome. Plaintiff was in pro per and failed to even challenge that the subject activity was protected in prong 1, and then failed to present any evidence showing a probability of success in prong 2. (See 11/13/23 Final Ruling.) 

Be that as it may, considering the totality of the circumstances—including the complexity of the motion, the quality of the work, and the motion’s substantial success in striking the Complaint in its entirety—the court finds the reasonable attorney’s fees, using a lodestar method, is $80,921.00

Accordingly, Defendants are awarded attorney’s fees in the total amount of $80,921.00.

D. Costs

Defendants seek to recover $1,987.39 in costs. The costs are included in the declarations filed with the motions and the accompanying billing records. However, Defendants did not file a memorandum of costs. 

Under Rules of Court Rule 3.1700, “[a] prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Emphasis added.)

Here, judgment was entered on December 13, 2022. Defendants served the notice of entry of judgment on December 22, 2022. Because Defendants failed to file a cost memorandum, and the time to do so has past, they cannot recover costs. The time limitation to file a memorandum of costs is mandatory. (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929.)

Accordingly, Defendants’ request for costs is DENIED.

If appropriate and allowed by law, Defendants may file and serve a proposed judgment consistent with this and the prior rulings of this court in connection with the special motion to strike.

Moving party to give notice.

IT IS SO ORDERED.

Dated:   October 27, 2023 ___________________________________