SUPERIOR COURT OF CALIFORNIA 

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT 

DEPARTMENT V 

 

 

 

MOVING PARTIES: Defendants Lions Gate Entertainment Corp., Miramax Film NY, LLC and Miramax (collectively “Miramax”); Defendants Warner Bros. Entertainment, Inc., Warner Bros. Pictures, a division of WB Studio Enterprises, The Walt Disney Company, Walt Disney Motion Pictures Group, Inc., Jennifer Todd, Suzanne Todd, and Paramount Pictures Corp. (collectively “Warner Bros.”); Defendants Ryan Seacrest and Ryan Seacrest Productions, LLC (collectively “Seacrest”); Defendants Benjamin Geza Affleck, Matthew Paige Damon, Jennifer Lopez, Pearl Street Productions, Inc., Nuyorican Productions, Inc., Kevin Smith, and View Askew Productions (collectively “Nuyorican”); and Defendant Harvey Weinstein (“Weinstein”) 

 

RESPONDING PARTY: Plaintiff Marisa Falero 

Motions for Attorneys’ Fees and Costs  

The court considered the moving, opposition, and reply papers filed in connection with Defendants’ respective motions for attorneys’ fees and costs.  

 

Motion to Proceed Using a Pseudonym and Sealing the Record  

The court considered the moving and opposition papers. No reply papers were filed as to Plaintiff’s motion to proceed using a pseudonym and sealing the record.  

 

BACKGROUND 

This action arises from the alleged use of the name, likeness, story, or persona of Plaintiff Marisa Falero (“Plaintiff”) without her consent in television and film projects. On November 23, 2022, Plaintiff filed a complaint against Defendants Benjamin Geza Affleck, Matthew Paige Damon, Jennifer Todd, Suzanne Todd, Caleb Affleck, Jennifer Lynn Affleck, Elaine Goldsmith-Thomas, Benny Medina, Kevin Smith, Ryan Seacrest, Harvey Weinstein, Robert Weinstein, Miramax Film NY, LLC fka Miramax Film Corp., Miramax, LLC, Pearl Street Productions, Inc., Nuyorican Productions, Inc., The Walt Disney Company, Walt Disney Motion Pictures Group, Inc., Warner Bros. Entertainment, Inc., Warner Bros. Pictures, View Askew Productions, Inc., Ryan Seacrest Productions, LLC, Dimension Films, Inc., Lions Gate Entertainment Corp., Paramount Pictures Corp., John Does 1 to 5, and Doe Corps. 1 to 5 (collectively, “Defendants”). 

On February 23, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants alleging causes of action for: (1) conspiracy to commit or violation of New York Civil Rights Law § 50-51, (2) conspiracy to commit or violation of California common law, (3) conspiracy to commit or violation of California Civil Code section 3344, (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, (6) stalking and harassment under California Civil Code sections 1708.7 and 527.6, (7) prima facie tort, (8) negligence, (9) negligent hiring, retention, and supervision, and (10) aiding and abetting.  

On March 20, 2023, pursuant to Plaintiff’s Request for Dismissal, the Court entered dismissal of the fifth cause of action in the FAC for negligent infliction of emotional distress.  

Defendants either filed an anti-SLAPP motion or—in the case of Defendants Ryan Seacrest and Ryan Seacrest Productions, LLC (“Seacrest”)—joined the other defendants in their anti-SLAPP motion. (07/28/23 Minute Order.) On July 28, 2023, after hearing oral argument, the Honorable Frank M. Tavelman, sitting in Department A at the Burbank Courthouse, granted the special motions to strike filed by Defendants Miramax, Seacrest, Warner Bros., and Nuyorican.1 (07/28/23 Minute Order.)  

On August 10, 2023, Plaintiff filed a motion for reconsideration of the Court’s ruling that evidentiary objections not be made orally at the hearing and instead required Plaintiff to submit a written response to evidentiary objections by August 7, 2023.  

On September 15, 2023, after hearing oral argument, the Court took Plaintiff’s motion for reconsideration under submission.  

On September 21, 2023, after hearing oral argument, the Court granted the special motion to strike filed by Defendant Weinstein.  

On September 27, 2023, Plaintiff filed a Notice of Appeal indicating that she was appealing the Court’s July 28, 2023 order which granted the special motions to strike filed by Defendants Miramax, Seacrest, Warner Bros., and Nuyorican.  

On October 31, 2023, Plaintiff filed a Notice of Appeal indicating that she was appealing the Court’s September 21, 2023 order which granted Defendant Weinstein’s special motion to strike.  

On November 1, 2023, the Court granted in part Plaintiff’s motion for reconsideration and stated that “the motion is hereby granted to the extent that [P]laintiff shall file written responses to the evidentiary objections filed in reply to her opposition to the . . . anti-SLAPP motions, if any, on or before the date that her Notice of Appeal is due from the July 28, 2023 order.” (See 11/01/23 Order at p. 2:18-21.)  

On November 7, 2023, Defendant Miramax filed and served a motion for attorneys’ fees and costs pursuant to CCP § 425.16(c) (the “Miramax Motion”).2 On November 8, 2023, Defendant Warner Bros. filed a motion to recover attorneys’ fees and costs (the “Warner Bros. Motion”).3 Also, on such date, Defendant Seacrest filed a motion to recover attorneys’ fees and costs under CCP § 425.16 (the “Seacrest Motion”).4  

On December 11, 2023, the Court issued a Notice of Default indicating that Plaintiff’s September 27, 2023 Notice of Appeal was placed in default and would be referred to the Court of Appeal for dismissal if Plaintiff failed to correct the defects listed in the notice by December 26, 2023.  

On December 19, 2023, Defendant Nuyorican filed and served a motion for attorneys’ fees and costs (the “Nuyorican Motion”).5 On December 26, 2023, Defendant Weinstein filed a motion for attorneys’ fees and costs (the “Weinstein Motion”)6 (collectively, the “Motions”). 

On December 27, 2023, the Court issued a Notice of Default indicating that Plaintiff’s October 31, 2023 Notice of Appeal was placed in default and would be referred to the Court of Appeal for dismissal if Plaintiff failed to correct the defects listed therein by January 11, 2024.  

On January 2, 2024, Plaintiff filed a motion for an order authorizing her to proceed in the instant case under the pseudonym “Jane Doe” and to seal the record and for related relief including, inter alia, a protective order restricting the disclosure of the identity or any information that may reveal her identity (the “Pseudonym Motion”).7  

On January 8, 2024, Defendant Weinstein filed a notice of errata as to the Weinstein Motion. Also, on January 8, 2024, Defendant Weinstein filed and served a corrected version of the Weinstein Motion.  

On January 11, 2024, Plaintiff filed a Notice Designating Record on Appeal as to her respective appeals filed on September 27, 2023 and October 31, 2023. 

On January 17, 2024, this action was reassigned to the Honorable Sarah J. Heidel in Department V at Alhambra Courthouse effective February 5, 2024.  

On January 22, 2024, the Court issued a Clerk’s Notice of Non-Compliance of Default on Appeal as to Plaintiff’s September 27, 2023 Notice of Appeal indicating that Plaintiff has failed to cure the defects listed in the Notice of Default within 15 calendar days of the mailing of such notice.  

On February 8, 2024, Defendants Miramax and Seacrest each filed respective oppositions to the Pseudonym Motion. Also, on such date, Defendant Warner Bros. filed a notice of joinder to the opposition of Defendant Miramax as to the Pseudonym Motion. On February 9, 2024, Defendant Nuyorican filed a notice of joinder to the opposition of Defendant Miramax as to the Pseudonym Motion.  

On February 15, 2024, after hearing, the Court denied Plaintiff’s ex parte application to extend Plaintiff’s time to oppose the respective motions for attorneys’ fees and costs. (02/15/24 Minute Order.)  

On February 22, 2024, Plaintiff filed an ex parte application to vacate the Court’s February 15, 2024 minute order, extend time to file the annexed opposition to Defendants’ fee motions, and continue the hearing on the Pseudonym Motion and extend time to file a reply.  

On February 23, 2024, after reviewing the Motions and considering Plaintiff’s ex parte application in court chambers, the Court denied Plaintiff’s request to vacate the Court’s February 15, 2024 order and the request to transfer this matter to Judge Tavelman. (02/23/24 Minute Order.) The Court also stated that it deemed “the declarations and attachment to the Ex Parte Application, approximately 692 pages of materials, to be the opposition to the pending motions for attorney’s fees and reply to Plaintiff’s motion re: pseudonym.”8 (02/23/24 Minute Order.) The Court stated that “[n]o further briefing will be considered by the court. The pending motions are continued to March 19, 2024 at 10 a.m.” (02/23/24 Minute Order.) The Court stated that “Defendants may file reply briefs, if any, on or before March 6, 2024.” (02/23/24 Minute Order.)  

On February 29, 2024, the Court issued a Clerk’s Notice of Non-Compliance of Default on Appeal as to Plaintiff’s October 31, 2023 Notice of Appeal.  

On March 6, 2024, Defendants filed and served their respective reply briefs.  

The Court will address the Motions, as well as the Pseudonym Motion, in this one ruling.  

LEGAL STANDARD AS TO A MOTION FOR ATTORNEYS’ FEES  

“A prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs.” (Code Civ. Proc., § 425.16, subd. (c)(1).) “[U]nder Code of Civil Procedure section 425.16, any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) “[A]n attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.” (Id. at p. 1133.) A court is authorized “to make an award of reasonable attorney fees to a prevailing defendant, which will adequately compensate the defendant for the expense of responding to a baseless lawsuit.” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.) “[O]nly those attorney fees and costs related to the special motion to strike, not the entire action, may be recovered under section 425.16, subdivision (c).” (Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 92.) “The fees awarded should include services for all proceedings, including discovery initiated by the opposing party pursuant to section 425.16, subdivision (g), directly related to the special motion to strike.” (Ibid.) Thus, a defendant who prevails on an anti-SLAPP motion is entitled “only to reasonable attorney fees, and not necessarily to the entire amount requested.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 434, internal quotations omitted, citation omitted.)  

“The fee-shifting provisions of section 425.16, subdivision (c) were enacted to impose litigation costs on those who assert meritless claims burdening the exercise of the defendant’s constitutional free speech and petition rights.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 344.) “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.” (Id. at p. 342.)  

The fee setting inquiry in California ordinarily “begins with the ‘lodestar’ [method], i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “The reasonable hourly rate is that prevailing in the community for similar work.” (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004.) There is a “strong presumption that the lodestar is reasonable.” (Perdue v. Kenny A. ex rel. Winn (2010) 559 U.S. 542, 543.)  

“[A] computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.” (Margolin v. Regional Planning Com., supra, 134 Cal.App.3d 999, 1004.) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 [discussing factors relevant to proper attorneys’ fees award].) Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. (Id. at p. 48, fn. 23.) The factors considered in determining the modification of the lodestar include “(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, [and] (4) the contingent nature of the fee award.” (Mountjoy v. Bank of Am. (2016) 245 Cal.App.4th 266, 271.) 

¿“[T]he burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98.) “[A]n award of attorney fees may be based on counsel’s declarations, without production of detailed time records.” (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1365.) A court will not declare that the number of hours claimed by counsel are unreasonable where no evidence is submitted indicating unreasonableness. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 560.) “[I]t is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence and arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at p. 564.) It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) Where a party is challenging the reasonableness of attorney’s fees as excessive that party must attack itemized billing with evidence that the fees claimed were not appropriate or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., supra,163 Cal.App.4th 550, 563-564.)    

A “court should defer to the winning lawyer’s professional judgment as to the tasks completed in an action because he won, and might not have, had he been more of a slacker.” (Moreno v. City of Sacramento (9th Cir. 2008) 534 F.3d 1106, 1111.) A losing party cannot litigate tenaciously then be heard to complain about the time spent or tasks performed by the prevailing party in response. (City of Riverside v. Rivera (1986) 477 U.S. 561, 580, fn.11.)  Where a defendant does not produce evidence contradicting the reasonableness of counsel’s hourly rates, the Court will deem an attorney’s hourly rate as reasonable. (Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473.) 

 

THE MIRAMAX MOTION   

Pursuant to its motion, Defendant Miramax seeks attorneys’ fees in the amount of $130,441.94 and expenses in the amount of $2,739.05 in achieving their anti-SLAPP victory.  

Evidentiary Objections 

The Court OVERRULES Plaintiff’s evidentiary objection to Exhibit 1 attached to the declaration of Alan R. Friedman (“Friedman”) in support of the Miramax Motion. Copenbarger v. Morris Cerullo World Evangelism (2018) 29 Cal.App.5th 1 is inapposite to support Plaintiff’s contention that the billing records attached to Friedman’s declaration are hearsay.  Copenbarger v. Morris Cerullo World Evangelism, supra, 29 Cal.App.5th 1 is inapposite as such case involved a litigant seeking to admit attorney billing records into evidence. Here, Friedman—who is counsel for Defendant Miramax—has laid a foundation for such billing records. Moreover, “[o]nce a [party] testifies . . . that a particular amount . . . was paid, the invoice itself can be introduced to explain and support the [party’s] testimony as well as show the amount was reasonable.” (Mai v. HKT Cal, Inc. (2021) 66 Cal.App.5th 504, 521.) Here, on reply, Defendant Miramax has presented evidence that the attorneys’ fees and expenses claimed in the Miramax Motion have been paid. (Friedman Reply Decl., ¶ 40.)  

A. Evidence in Support of the Miramax Motion   

In support of the Miramax Motion, Alan R. Friedman (“Friedman”) declares that, on July 28, 2023, the Court granted Defendants’ anti-SLAPP motions and struck all claims asserted against Defendants in their entirety. (Friedman Decl., ¶ 3.) Defendant Miramax seeks $108,364.39 in attorneys’ fees and costs, of which $105,778.79 represents attorneys’ fees and expenses represent $2,585.60, which Friedman states were incurred in connection with the anti-SLAPP motion. (Id., ¶¶ 4, 6.) Friedman has presented billing records which set forth the work related to the anti-SLAPP motion. (Id., ¶ 7; Exhibit 1.) Friedman states that 185.2 hours were spent as to the anti-SLAPP motion. (Id., ¶ 9.) Friedman also sets forth the expenses incurred pursuant to the anti-SLAPP motion. (Id., ¶ 9; Exhs. 2-8 and 10.) Friedman states that Defendant Miramax has limited the time entries and expenses that are the subject of the Miramax Motion to those that solely concern the anti-SLAPP motion and work related thereto. (Id., ¶ 10.) 

 Friedman declares that his agreed hourly rate from January through May 2023 was $675.50 and from June through September 2023 his hourly rate was $743.75. (Id., ¶ 13.) Friedman states that Phillip Langer also assisted on this matter and his hourly rate was charged at $450.00 per hour through May 2023 and, from June 2023 to the present, Mr. Langer’s hourly rate was $530.00. (Id., ¶ 13.) Friedman also sets forth the hourly rates of Tara McAndrews and Josh Bornstein who performed work in support of the anti-SLAPP motion (Id., ¶ 14), and states that their hourly rates are $405.00 per hour and $450.00 per hour, respectively. (Id., ¶ 14.) Friedman sets forth his experience and qualifications, as well as those of the other associates at his firm who worked on the anti-SLAPP motion. (Id., ¶¶ 15-20.) Friedman attests that the rates charged by the firm on this matter and the hours for which fees are sought are reasonable and appropriate in the circumstances of this case. (Id., ¶ 21.)  

In support of the reply, Friedman states that, in the moving papers, Defendant Miramax stated that it would seek attorneys’ fees and costs incurred in bringing the Miramax Motion in its reply papers. (Freidman Reply Decl., ¶ 2.) The total fees and expenses for work on the Miramax Motion total $30,598.15 in fees and $153.45 in costs. (Id., ¶ 3.) Defendant Miramax sets forth that the attorneys’ fees and costs incurred in preparing and filing the moving papers in support of the Miramax Motion total $10,631.24 in attorneys’ fees and $153.45 in expenses. (Id., ¶ 6.) The attorneys’ fees and costs incurred in preparing the reply papers total $19,966.61 in attorneys’ fees. (Id., ¶ 7; Exh. C.) The Miramax Defendants are not seeking attorneys’ fees and costs incurred in opposing Plaintiff’s multiple ex parte applications concerning the Miramax Motion and preparing and arguing the Miramax Motion. (Id., ¶ 8.) Friedman sets forth his role as billing partner in reviewing, approving, and sending the invoices for the fees and costs that Defendant Miramax seeks pursuant to its motion. (Id., ¶¶ 9-11; Exh. E and F.) Friedman then sets forth his stance on the purported baseless arguments raised in opposition to the Miramax Motion. (Id., ¶¶ 18-32.) Friedman states that the total award of attorneys’ fees that Defendant Miramax seeks for the work as to the anti-SLAPP motion is $99,843.79 in fees, which is a reduction of $5,935.00 from the fees set forth in the moving papers due to a discounting of work in the amount of $9,150.00 done as to Defendant Miramax’s opposition to Plaintiff’s motion to disqualify. (Id., ¶¶ 35-39.) Friedman declares that the $2,585.00 in expenses sought through the Miramax Motion remain unchanged. (Id., ¶ 39.) Friedman states that: (1) the fees and expenses for work done on the anti-SLAPP motion totals $102,429.39; (2) Defendant Miramax seeks $30,598.15 in fees and $153.45 in expenses incurred preparing and filing the moving and reply papers in support of the instant motion; and (3) adding these amounts together, the total award Defendant Miramax seeks is $133,180.99. (Id., ¶ 39.) Defendant Miramax, through its insurance carriers, has already paid $113,214.08 of such fees and expenses, which constitutes everything except the amounts sought for work performed in February and March 2024, which the firm has not yet billed. (Id., ¶ 40.)  

The Court finds that Defendant Miramax has shown the reasonableness of its requested attorneys’ fees and expenses. The billing records attached to Friedman’s declarations substantiate the work performed related to the anti-SLAPP motion and the instant fee motion.  

B. Plaintiff’s Evidence in Opposition to the Miramax Motion 

In opposition to the Miramax Motion, Plaintiff presents a declaration which sets forth her financial and health circumstances, a recitation of the procedural history of this action, and the fact that Defendant Miramax seeks a total of attorneys’ fees and costs in the amount of $108,364.39, which nominal to Defendant Miramax. (Falero Decl., ¶¶ 4-27.)  

C. Analysis as to the Miramax Motion 

Initially, the Court rejects Plaintiff’s contention that the fee should be reduced after disclosure and oral testimony because disclosure should be made of counsel’s time records. As stated above, the Court has overruled Plaintiff’s evidentiary objections to the billing invoices of Defendant Miramax’s counsel. Despite Plaintiff’s contention to the contrary, Defendant Miramax has presented admissible evidence in support of the Miramax Motion.  

Next, Plaintiff argues that the First Legal invoices for expenses related to the anti-SLAPP motion are redacted and no foundation was laid for such bills. Plaintiff did not file any evidentiary objections to such exhibits and therefore the Court deems them to be admissible. While the Court notes that some invoices are redacted (Friedman Decl., Exhs. 2-8 and 10), Plaintiff’s citations to Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811 and Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725 are inapposite to support the contention that redactions and block billing are inappropriate as Jaramillo v. County of Orange, supra, 200 Cal.App.4th 811 did not discuss redaction of invoices and Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th 725 did not involve a motion for attorneys’ fees. Plaintiff has not made a showing that any redactions have left her “unable to challenge the reasonableness of the fees.” (Banning v. Newdow (2004) 119 Cal.App.4th 438, 454.) Plaintiff’s declaration in opposition to the Miramax Motion does not indicate that the redactions have left her unable to challenge the reasonableness of the fee requests. “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)  

As to Plaintiff’s argument that Defendant Miramax engaged in block billing, the Court rejects such contention. A court has “discretion to penalize block billing when the practice prevents [the court] from discerning which tasks are compensable and which are not.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010.) The time entries are not block billed and, even if they were to be deemed block billing, the Court can ascertain the nature of the task to determine whether it is compensable or not. (Friedman Decl., Exh. 1.)  

Plaintiff next argues that the hourly rates of counsel and the hours requested are unreasonable. (Opp’n at pp. 6-11.) Plaintiff contends that the rate outside the forum should apply in this action because lead counsel is located in New York. Plaintiff cites to Herring Networks, Inc. v. Maddow, 2021 WL 409724 at *8 (S.D. Cal. February 5, 2021), which provides that “[r]ates outside the forum may be used if local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to handle properly the case.” The Court notes that federal trial court cases are not binding authority. (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1043, fn. 9.) Moreover, the reasonable hourly rate “is that prevailing in the community for similar work” and the relevant community is where the court is located.” (Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 71.) In support of this argument, Plaintiff cites to state court cases from New York, which are not binding on this Court. (Opp’n at p. 7.) Friedman has attested to the reasonableness of counsel’s hourly rates.  

The Court finds that Plaintiff has not met her burden in challenging the reasonableness of the claimed fees of Defendant Miramax. Plaintiff’s declaration in opposition to the motion is void of any evidence that the fees claimed are not appropriate as required under Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., supra, 163 Cal.App.4th 550, 563. Plaintiff has also failed to “obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate the” the fees claimed by Defendant Miramax are unreasonable. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., supra, 163 Cal.App.4th 550, 563.) Plaintiff’s declaration in opposition to the Miramax Motion is void of any mention of unreasonableness of fees. The Court also notes that Plaintiff attaching a Los Angeles Superior Court decision in the case of WnG Constr. JV, Inc. v. AAA Solar Electric, Inc., LASC Case No. VC065473 (Falero Decl., ¶ 35; Exh. E) does not allow her to meet her burden in challenging the unreasonableness of the claimed fees. Such action did not involve an anti-SLAPP motion or a motion for attorneys’ fees in connection thereto. (Id.) Moreover, such a ruling is not binding on this Court. (Id.)  

Here, Plaintiff chose to initiate this action which raised claims under California and New York law. Plaintiff cites to Garica v. Santana (2009) 174 Cal.App.4th 464, 475 for the proposition that “attorney’s fees should not result in financial ruin.” The Court finds that Garcia v. Santana, supra, 174 Cal.App.4th 464 is inapposite as such case discussed attorney’s fees in the context of an action brought under the California Fair Employment and Housing Act. Plaintiff brought this action against multiple defendants, as well as filed numerous ex parte applications and motions. Defendants prevailed on their respective anti-SLAPP motion and should be adequately compensated “for the expense of responding to a baseless lawsuit.” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th 777, 785.) The billing entries in support of the Miramax Motion all indicate work done related to the instant motion or the anti-SLAPP motion filed by Defendant Miramax.  

D. The Effect of the Pending Appeal 

“Except as provided in Sections 917.1 to 917.9, inclusive . . . the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916.) “Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for . . . (1) [m]oney or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action.” (Code Civ. Proc., § 917.1, subd. (a)(1).)  

“Under section 916, the trial court is divested of subject matter jurisdiction over any matter embraced in or affected by the appeal during the pendency of that appeal.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-97.) “Thus, [the trial court] is without power to proceed further as to any matter embraced therein until the appeal is determined.” (Ibid.) Any proceedings “taken after [a] notice of appeal [is] filed are a nullity.” (Davis v. Thayer (1980) 113 Cal.App.3d 892, 912.) “The purpose of the automatic stay under section 916 is to preserve the status quo until the appeal is decided . . . by maintaining the rights of the parties in the same condition they were before the order was made.” (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th 180, 198.) “Otherwise, the trial court could render the appeal futile by altering the appealed judgment . . . by conducting other proceedings that may affect it.” (Ibid.) “The primary example of collateral matters not affected by a notice of appeal are awards of attorney fees or sanctions.” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 161.) “Although a prevailing party . . . may not be the prevailing party after an appeal, it has been held that a motion for attorney fees is not premature despite the filing of a notice of appeal.” (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368.)  

Here, Plaintiff is appealing the granting of Defendants’ respective anti-SLAPP motions. However, Plaintiff’s appeals are collateral matters and therefore the Court can proceed with ruling on the Motions. The respective motions for attorneys’ fees are not premature under Bankes v. Lucas, supra, 9 Cal.App.4th 365, 368.  

Based on the foregoing, the Court GRANTS the Miramax Motion.  

 

THE WARNER BROS. MOTION 

Defendants Warner Bros. Entertainment Inc. and Warner Bros. Pictures, a division of WB Studio Enterprises (incorrectly named as Warner Bros. Pictures) (“Warner Brothers”); the Walt Disney Company and Walt Disney Motion Pictures Group, Inc. (“Disney”); Jennifer Todd and Suzzanne Todd (the “Todds”); and Paramount Pictures Corp. (“Paramount”) (collectively “Warner Bros.”) seek attorneys’ fees pertaining to the anti-SLAPP motion. (Siegel Decl., ¶ 10.) The Todds seek to recover $37,334.00 in fees and $885.00 in costs through October 2023. (Id.) Warner Brothers seeks $26,748.00 in fees and $885.00 in costs. (Id.) Disney seeks $26,748.00 in fees and $885.00 in costs. (Id.) Paramount seeks $26,748.00 in fees and $450.00 in costs. (Id.) Thus, pursuant to the Warner Bros. Motion, the respective defendants—Warner Brothers, Disney, the Todds, and Paramount—seek a total of $120,683.00 in attorneys’ fees and costs. (Warner Bros. Motion, p. 2:16-19.)  

Evidentiary Objections 

The Court OVERRULES Plaintiff’s evidentiary objection to Exhibit A attached to the declaration of Nathan Siegel (“Siegel”) in support of the Warner Bros Motion. Copenbarger v. Morris Cerullo World Evangelism, supra, 29 Cal.App.5th 1 is inapposite to support Plaintiff’s contention that the billing records attached to Siegel’s declaration are hearsay.  Copenbarger v. Morris Cerullo World Evangelism, supra, 29 Cal.App.5th 1 is inapposite as such case involved a litigant seeking to admit attorney billing records into evidence. Here, Siegel—who is counsel for Defendant Warner Bros.—has laid a foundation for such billing records.  

 

 

A. Evidence in Support of the Warner Bros. Motion  

Counsel for Defendant Warner Bros., Nathan Siegel (“Siegel”), presents a declaration in support of the Warner Bros. Motion in which he sets forth the hourly rates of counsel and states that the fees for work done were divided amongst the Todds, Disney, Warner Brothers, and Paramount. (Siegel Decl., ¶¶ 3, 5.) Siegel’s rate as partner is $603.00 per hour, Sarah E. Burns, an associate, has a rate of $403.00 per hour, paralegal Casey Yi has an hourly rate of $200.00 per hour, and paralegal Leigha Henson has an hourly rate of $200.00 per hour. (Id., ¶ 3.) Siegel has 30 years of experience in media and First Amendment Litigation and Sarah Burns graduated from UCLA School of Law in 2018 and has experience in media litigation and complex commercial litigation. (Id., ¶¶ 6(a)-(b).) Casey Yi has 30 years of experience as a paralegal and Leigha Henson has six years of experience as a paralegal. (Id., ¶¶ 6(c)-(d).) Siegel spent 94.5 hours on tasks related to the anti-SLAPP motion, Sarah Burns spent more than 144.9 hours on tasks related to the anti-SLAPP motion, Casey Yi spent more than 9.2 hours cite-checking briefs, and Leigha Henson spent more than 2.2 hours cite-checking briefs. (Id., ¶ 8.)  

Counsel states that based on the arrangement between the Todds, Disney, Warner Brothers, and Paramount, the Todds were responsible for paying a higher percentage of the time that counsel spent on this matter than the other three groups of defendants resulting in them being responsible for roughly one-third of the total fees billed by counsel. (Id., ¶ 5.) Counsel sets forth the experience of the attorneys and paralegals who worked on this matter. (Id., ¶ 6(a)-(d).) Counsel provides billing records pertaining to the work done related to Warner Bros.’ special motion to strike. (Id., ¶ 7; Exhibit A.) Counsel states that Warner Bros. only seeks compensation for work done related to the anti-SLAPP motion and does not seek fees incurred for other aspects of the litigation. (Id., ¶ 7.) Counsel’s declaration and the accompanying billing records thereto set forth the hours spent by each attorney and paralegal related to the anti-SLAPP motion. (Id., ¶¶ 7-8; Exhibit A.) Counsel states that Warner Bros. does not seek compensation for time spent on work unique to the demurrer but does seek compensation for time spent on the demurrer, where, the work performed on the demurrer “was also the same work used in the anti-SLAPP motion because both raised the same arguments and cited the same case law.” (Id., ¶ 7.) Counsel states that Warner Bros. has “eliminated $7,500 of fees that were billed in connection with the [d]emurrer from this request.” (Id., ¶ 7.)  

Brian Fanning (“Fanning”), who is the Director of Client Services and Pricing at Davis Wright Tremaine LLP, states that the billing rates for work on this case are below the median peer rate at other major law firms for lawyers of similar experience levels. (Fanning Decl., ¶ 3(d).)  

B. Plaintiff’s Evidence in Opposition to the Warner Bros. Motion 

In opposition to the Warner Bros. Motion, Plaintiff presents a declaration which sets forth her financial and health circumstances, a recitation of the procedural history of this action, her reasons for untimely filing oppositions, and the fact that Defendant Warner Bros. seeks a total of attorneys’ fees and costs in the amount of $120,683.00, which nominal to Defendant Warner Bros. (Falero Decl., ¶¶ 4-49.)  

C. Analysis as to the Warner Bros. Motion 

The Court notes that Plaintiff makes substantially similar arguments in opposition to the Warner Bros. Motion that were raised in opposition to the Miramax Motion. Initially, the Court rejects Plaintiff’s contention that the fee should be reduced after disclosure and oral testimony because Defendant Warner Bros. has submitted inadmissible time records. As stated above, the Court has overruled Plaintiff’s evidentiary objections. Despite Plaintiff’s contention to the contrary, Defendant Warner Bros. has presented admissible evidence in support of the Warner Bros. Motion.  

Next, Plaintiff takes issue with some redactions set forth on counsel’s billing records. While the Court notes that some billing entries are partially redacted (Siegel Decl., Exh.A), Plaintiff’s citations to Jaramillo v. County of Orange, supra, 200 Cal.App.4th 811 and Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th 725 are inapposite to support the contention that redactions and block billing are inappropriate as Jaramillo v. County of Orange, supra, 200 Cal.App.4th 811 did not discuss redaction of invoices and Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th 725 did not involve a motion for attorneys’ fees. Plaintiff has not made a showing that any redactions have left her “unable to challenge the reasonableness of the fees.” (Banning v. Newdow, supra, 119 Cal.App.4th 438, 454.) Plaintiff’s declaration in opposition to the Warner Bros. Motion does not indicate that the redactions have left her unable to challenge the reasonableness of the fee requests. “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th 216, 224.)  

As to Plaintiff’s argument that Defendant Warner Bros. engaged in block billing, the Court rejects such contention. A court has “discretion to penalize block billing when the practice prevents [the court] from discerning which tasks are compensable and which are not.” (Heritage Pacific Financial, LLC v. Monroy, supra, 215 Cal.App.4th 972, 1010.) The time entries are not block billed and, even if they were to be deemed block billing, the Court can ascertain the nature of the task to determine whether it is compensable or not. (Siegel Decl., Exh. 1.)  

Plaintiff next argues that the hourly rates of counsel and the hours requested are unreasonable. (Opp’n at pp. 8-12.) Plaintiff contends that the rate outside the forum should apply in this action because lead counsel is located in New York. Plaintiff cites to Herring Networks, Inc. v. Maddow, 2021 WL 409724 at *8 (S.D. Cal. February 5, 2021), which provides that “[r]ates outside the forum may be used if local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to handle properly the case.” The Court notes that federal trial court cases are not binding authority. (Markow v. Rosner, supra, 3 Cal.App.5th 1027, 1043, fn. 9.)  

Moreover, the reasonable hourly rate “is that prevailing in the community for similar work” and the relevant community is where the court is located.” (Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc., supra, 226 Cal.App.4th 26, 71.) In support of this argument, Plaintiff cites to state court cases from New York, which are not binding on this Court. (Opp’n at p. 9.) Moreover, Siegel has attested to the reasonableness of counsel’s hourly rates. As to Plaintiff’s contention that Burns should have submitted her own declaration in support of the Warner Bros. Motion, Plaintiff provides no legal authority to support such contention. (Opp’n at pp. 8-9.) “Contentions are waived when a party fails to support them with reasoned argument citations to legal authority.” (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)  

The Court finds that Plaintiff has not met her burden in challenging the reasonableness of counsel’s hourly rate. Plaintiff’s declaration in opposition to the motion is void of any evidence that the hourly rates claimed are not appropriate as required under Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., supra, 163 Cal.App.4th 550, 563. Plaintiff has also failed to “obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate” that the hourly rates of counsel are unreasonable. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., supra, 163 Cal.App.4th 550, 563.)  

Plaintiff argues that hours spent unrelated to the anti-SLAPP motion including service and appearances, case management conferences, pending appeals, and others are unreasonable. (Opp’n at pp. 9-10.) Fees for a demurrer may be awarded in connection with a motion for attorneys’ fees pursuant to CCP § 425.16 where the demurrer was inextricably intertwined with the arguments necessary to a party’s successful anti-SLAPP motion. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th 426, 441, fn. 19.) Here, counsel has declared that the demurrer and anti-SLAPP motion raised the same arguments and relied on the same case law. Thus, under 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th 426, 441, the Court will not disallow fees pertaining to the demurrer.  

A court may make a downward adjustment to the lodestar’s calculus based on the work claimed by counsel to be “unrelated to either the merits motion or the fees motion, such as work on discovery, ex parte appearances, work surrounding the case management conference, and conferring with cocounsel.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th 426, 441.)  The Court has reviewed the billing entries and notes that most of the tasks performed all relate in some capacity to the anti-SLAPP motion such as: an ex parte application related thereto, Plaintiff’s motion for reconsideration of the Court’s ruling on the parties’ anti-SLAPP motions, consolidating or stipulating concerning the hearing date on the anti-SLAPP motion, Plaintiff’s appeal of this Court’s order as it concerns the anti-SLAPP motions, Plaintiff’s seeking to amend the complaint which would have affected the anti-SLAPP motions filed by the parties, and Plaintiff’s motion to lift the stay of discovery imposed by the parties’ anti-SLAPP motions. (Siegel Decl., Exh. A.)   

The Court, however, does note that some time claimed is for reviewing other defendants’ filings or Plaintiff’s fee waiver filing. (Siegel Decl., Exh. A; Falero Decl., ¶ 52, Exh.C.) Certain entries on: March 30 (a review of the Nuyorican Defendants’ demurer and motion to strike), April 28 (the entries at issue here activities related to a notice of non-opposition filed by Defendant Miramax), May 24 (reviewing the opposition of Defendant Miramax to Plaintiff’s ex parte application), June 23 (reviewing Defendant Weinstein’s dispositive motions), August 4 (reviewing Plaintiff’s filing regarding waiver of fees), August 14 (reviewing the latest filings in Defendant Weinstein’s case), September 20 and September 21 (reviewing the tentative opinion and attending the hearing on Defendant Weinstein’s anti-SLAPP motion), and September 22, 2023 (reviewing a report on hearing for Defendant Weinstein’s anti-SLAPP motion) on their face appear improper. (Spiegel Decl., Exh. A.) Such work amounts to 5.2 hours in the amount of $2,758.50.  

The Court fails to see how tasks performed as to another defendant’s filings or a non-dispositive filing of Plaintiff unrelated to the anti-SLAPP motion were reasonable and necessary.  The Court also notes that there is a billing entry on January 13, 2023 for the amount of $301.25 for an outline for a motion to dismiss, which on its face does not appear related to the anti-SLAPP motion or the instant fee motion. Thus, the Court will adjust Defendant Warner Bros.’s lodestar downward in the amount of $3,059.75.  

Moreover, the Court notes that besides the declaration of counsel, Defendant Warner Bros. has failed to provide any evidence of its requested costs of $3,105.00. Due to the lack of substantiation of such costs by a billing invoice or receipts showing such costs, the Court will not award Defendant Warner Bros. such costs.  

Irrespective of the above, Plaintiff’s declaration in opposition to the Warner Bros. Motion is void of any mention of unreasonableness of fees. The Court also notes that Plaintiff attaching a Los Angeles Superior Court decision in the case of WnG Constr. JV, Inc. v. AAA Solar Electric, Inc., LASC Case No. VC065473 (Falero Decl., ¶ 53; Exh. D) does not allow her to meet her burden in challenging the unreasonableness of the claimed fees. Such action did not involve an anti-SLAPP motion or a motion for attorneys’ fees in connection thereto. (Id.) Moreover, such a ruling is not binding on this Court.  

Here, Plaintiff chose to initiate this action which raised claims under California and New York law. Plaintiff cites to Garica v. Santana, supra, 174 Cal.App.4th 464, 475 for the proposition that “attorney’s fees should not result in financial ruin.” The Court finds that Garcia v. Santana, supra, 174 Cal.App.4th 464 is inapposite as such case discussed attorney’s fees in the context of an action brought under the California Fair Employment and Housing Act. Plaintiff brought this action against multiple defendants, as well as filed numerous ex parte applications and motions. Defendants prevailed on their respective anti-SLAPP motion and should be adequately compensated “for the expense of responding to a baseless lawsuit.” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th 777, 785.)  

D. The Effect of the Pending Appeal 

The Court references its discussion of the pending appeal pursuant to the Miramax Motion and incorporates it herein. The respective motions for attorneys’ fees are not premature under Bankes v. Lucas, supra, 9 Cal.App.4th 365, 368.  

Based on the foregoing, the Court GRANTS IN PART the Warner Bros. Motion. The Court reduces the total amount of attorneys’ fees from the requested $120,683.00 to 114,518.25 and awards Defendant Warner Bros. such an amount of attorneys’ fees. Defendant Warner Bros. did not properly substantiate its costs. Moreover, as stated above, some of the billing entries on their face did not relate to the instant motion or the anti-SLAPP motion filed by Defendant Warner Bros.  

 

THE SEACREST MOTION  

Defendant Seacrest seeks attorneys’ fees in the amount of $93,025.00 and costs in the amount of $2,141.23, for a total amount of $95,166.23. (Seacrest Motion, p. 2:9-11.) On reply, Defendant Seacrest indicates that it inadvertently included requested fees in the amount of $2,025.00 and costs in the amount of $167.40, which it withdraws. (Reply at p. 4:25-28.)  

Evidentiary Objections 

The Court OVERRULES Plaintiff’s evidentiary objection to Exhibit A attached to the declaration of Andrew Baum (“Baum”) in support of the Seacrest Motion. Copenbarger v. Morris Cerullo World Evangelism, supra, 29 Cal.App.5th 1 is inapposite to support Plaintiff’s contention that the billing records attached to Baum’s declaration are hearsay.  Copenbarger v. Morris Cerullo World Evangelism, supra, 29 Cal.App.5th 1 is inapposite as such case involved a litigant seeking to admit attorney billing records into evidence. Here, Baum—who is counsel for Defendant Seacrest—has laid a foundation for such billing records.  

A. Evidence in Support of the Seacrest Motion  

Counsel for Defendant Seacrest, Andrew Baum (“Baum”), declares that during the time that he performed work for Defendant Seacrest, his billing rate was $1,200.00 per hour and he billed 15.0 hours of time representing a total amount of $18,000.00 billed to Defendant Seacrest. (Baum Decl., ¶ 4.) Baum states that he graduated from Loyola Law School in 1997 and became partner at Glaser Weil in 2005. (Id., ¶ 2.) Baum states that he has successfully litigated and resolved multi-million-dollar claims in a variety of business and litigation matters. (Id., ¶ 2.) Baum states his work on this action such as reviewing relevant case law and filings and developing key legal arguments and theories. (Id., ¶ 3.) Baum sets forth the hourly rates of Glaser Weil associates Grant Cofer and Elizabeth Chilton. (Id., ¶¶ 5-6.) Mr. Cofer spent 82.75 hours on various tasks and projects in this action at the hourly rate of $900.00. (Id., ¶ 5.) Mr. Cofer graduated from Harvard Law School and has been practicing law since 2010. (Id., ¶ 5.) Defendant Seacrest was billed $74,475.00 for Mr. Cofer’s services. (Id., ¶ 5.) As to Ms. Chilton, her hourly rate is $1,100.00 per hour and she was admitted to the California bar in 1983. (Id., ¶ 6.) Ms. Chilton spent 0.5 hours performing legal research with respect to Plaintiff’s notice of appeal of the July 28, 2023 order striking Plaintiff’s complaint under CCP § 425.16. (Id., ¶ 6.) Ms. Chilton received her law degree from the University of California, Los Angeles and her practice has focused exclusively on appellate litigation since joining Glaser Weil. (Id., ¶ 6.) Baum declares that counsel’s hourly rates are reasonable, and the hours expended are reasonable. (Id., ¶ 9.) Baum has provided billing entries to support the fees and costs claimed in the Seacrest Motion. (Id., ¶ 8; Exhibit A.)   

B. Plaintiff’s Evidence in Opposition to the Seacrest Motion 

In opposition to the Seacrest Motion, Plaintiff presents a declaration which sets forth her financial and health circumstances, a recitation of the procedural history of this action, her reasons for untimely filing oppositions, and the fact that Defendant Seacrest seeks a total of attorneys’ fees and costs in the amount of $100,000.00, which nominal to Defendant Seacrest. (Falero Decl., ¶¶ 4-37.)  

C. Analysis as to the Seacrest Motion 

Initially, the Court notes that Plaintiff makes substantially similar arguments in opposition to the Seacrest Motion that were raised in opposition to the Miramax Motion. Initially, the Court rejects Plaintiff’s contention that the fee should be reduced after disclosure and oral testimony because Defendant Seacrest has submitted inadmissible time records. The Court has overruled Plaintiff’s evidentiary objections to the Seacrest Motion.  

Plaintiff contends that the Seacrest Motion should be denied because the statute only authorizes fees for an anti-SLAPP motion and Defendant Seacrest did not file an anti-SLAPP motion. Rather, Plaintiff argues that Defendant Seacrest only filed a notice of joinder. On reply, Defendant Seacrest contends that Plaintiff’s contention that it is not entitled to fees is meritless and is contrary to California law.  

The Court finds that Defendant Seacrest’s citation to Balla v. Hall (2021) 59 Cal.App.5th 652 is inapposite. Balla v. Hall, supra, 59 Cal.App.5th 652 did not address the issue of whether a party who joins another party’s anti-SLAPP motion is entitled to attorneys’ fees. A party, however, that joins in another party’s anti-SLAPP motion and explicitly requests attorneys’ fees and costs,  in the event that the joining party prevails, may obtain attorneys’ fees and costs. (Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 661-62.) Here, Defendant Seacrest’s Notice of Joinder to the special motions to strike filed by Defendants Miramax and Warner Bros. explicitly states that Defendant Seacrest “further seeks attorneys’ fees and costs under Code of Civil Procedure section 425.16.” (Notice of Joinder, p.2:25-26.) Therefore, the Court finds that under Barak v. The Quisenberry Law Firm, supra, 135 Cal.App.4th 654, 661-62, Defendant Seacrest is entitled to attorneys’ fees and costs.  

On reply, Defendant Seacrest contends that the fees and costs requested were reasonably expended with extricating themselves from Plaintiff’s baseless lawsuit. (Reply at pp. 3-4.) Fees for a demurrer may be awarded in connection with a motion for attorneys’ fees pursuant to CCP § 425.16 where the demurrer was inextricably intertwined with the arguments necessary to a party’s successful anti-SLAPP motion. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th 426, 441, fn. 19.) 

The Court has reviewed the billing entries in support of the Seacrest Motion. The Court finds that the billing records contain numerous redactions where the Court cannot ascertain the nature of the purported task. (Baum Decl., Exh. A.) As such, the redactions do not allow Plaintiff “to challenge the reasonableness of the fees.” (Banning v. Newdow, supra, 119 Cal.App.4th 438, 454.) Based on the billing records presented by Defendant Seacrest, the Court cannot ascertain what the redacted billing entries represent. The Court must ensure that the claimed fees are appropriate. Counsel states that certain tasks are redacted for privilege purposes. (Baum Decl., ¶ 8; Exh. A.) The Court acknowledges that “[b]illing entries or portions of invoices that describe the work performed for a client . . . fall directly in the heartland protected” by the attorney-client privilege. (People v. Kelly (2020) 59 Cal.App.5th 1172, 1187, emphasis in original, internal quotations omitted.)  Redactions to billing entries may be made to protect the attorney-client privilege. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1382.) However, the dates, task completed, and amount billed pertaining to such tasks are all redacted from some of the billing entries. (Baum Decl., Exh. A.)  

Where there are unredacted entries, such entries primarily concern the demurrer filed by Defendant Seacrest. Where the joinder to the anti-SLAPP motions is set forth as a task—the March 31, 2023 entries on Defendant Seacrest’s billing records—such entry is block-billed. (Baum Decl., Exh. A.) A court has “discretion to penalize block billing when the practice prevents [the court] from discerning which tasks are compensable and which are not.” (Heritage Pacific Financial, LLC v. Monroy, supra, 215 Cal.App.4th 972, 1010.) Since the entries are block-billed entries, the Court cannot determine which tasks are compensable as the billing entries do not separate the time spent as to the demurrer and the joinder as to the anti-SLAPP motions. (Baum Decl., Exh. A.)  

A court may make a downward adjustment to the lodestar’s calculus based on the work claimed by counsel to be “unrelated to either the merits motion or the fees motion, such as work on discovery, ex parte appearances, work surrounding the case management conference, and conferring with cocounsel.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th 426, 441.)  Fees for a demurrer may be awarded in connection with a motion for attorneys’ fees pursuant to CCP § 425.16 where the demurrer was inextricably intertwined with the arguments necessary to a party’s successful anti-SLAPP motion. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th 426, 441, fn. 19.) 

Critically, without additional evidence, the Court cannot find that Defendant Seacrest should be compensated for any work done concerning the demurrer. From the unredacted portions of the billing entries, the Court finds that the work claimed by Defendant Seacrest concerns its demurrer. Due to the full redactions of some billing entries, the Court cannot determine the time spent, date of a task, or even partially whether it concerns the joined anti-SLAPP motion or Defendant Seacrest’s demurrer.  

Here, Defendant Seacrest did not file an anti-SLAPP motion but merely joined onto two other defendants’ anti-SLAPP motions. The Court fails to see how work on a demurrer is related to an anti-SLAPP motion that Defendant Seacrest did not file. Counsel has failed to attest whether some of the arguments or case law raised in its demurrer was a part of the other defendants’ anti-SLAPP motions to which it joined or if Defendant Seacrest contributed to the anti-SLAPP motions in some capacity. The Court does not dispute that Defendant Seacrest is a prevailing party. However, the Court finds that—based on the evidence presented by Defendant Seacrest—the fees incurred were not related to the special motion to strike. 

Under 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th 426, 441, fn. 19, the Court therefore cannot grant the Seacrest Motion.  

D. The Effect of the Pending Appeal 

The Court references its discussion of the pending appeal pursuant to the Miramax Motion and incorporates it herein. The Seacrest Motion is not premature under Bankes v. Lucas, supra, 9 Cal.App.4th 365, 368.  

Based on the foregoing, the Court DENIES the Seacrest Motion. Defendant Seacrest may file an amended motion for attorneys’ fees and costs which addresses the above-identified deficiencies.  

 

THE NUYORICAN MOTION 

Defendant Nuyorican seeks an award of attorneys’ fees and costs in the amount of $73,785.77, which represents $68,998.50 in attorneys’ fees related to the anti-SLAPP motion and $4,787.27 in costs. (Nuyorican Motion, p. 1:12-16.) On reply, Defendant Nuyorican states that since the filing of the Nuyorican Motion, attorney’s fees and costs in the amount of $8,957.00 have been incurred and “[i]t is requested that the [c]ourt include this amount in the final amount awarded to Defendants.” (Reply at p. 3:19-21.)  

Evidentiary Objections 

The Court OVERRULES Plaintiff’s evidentiary objection to Exhibits A attached to the declaration of Maureen C. O’Hara and Robert G. Vizza in support of the Nuyorican Motion. Copenbarger v. Morris Cerullo World Evangelism, supra, 29 Cal.App.5th 1 is inapposite to support Plaintiff’s contention that the billing records attached to such declarations are hearsay.  Copenbarger v. Morris Cerullo World Evangelism, supra, 29 Cal.App.5th 1 is inapposite as such case involved a litigant seeking to admit attorney billing records into evidence. Here, counsel for Defendant Nuyorican has laid a foundation for such billing records.  

Timeliness 

Plaintiff contends that the Nuyorican Motion should be denied as untimely. On reply, Defendant Nuyorican argues that Plaintiff should be estopped from arguing timeliness.  

A court has “broad discretion in allowing relief from a late filing where . . . there is an absence of a showing of prejudice to the opposing party.” (Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485, 488.) “A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court—including attorney’s fees on an appeal before the rendition of judgment in the trial court—must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case.” (Cal. Rules of Court, Rule 3.1702, subd. (b)(1).) A notice of appeal must be filed on or before the earliest of: (1) 60 days after the superior court clerk serves on the party filing a notice of appeal a document entitled Notice of Entry of judgment or a file-endorsed copy of the judgment; (2) 60 days after party filing the notice of appeal serves or is served by a party with a document entitled Notice of Entry of judgment or a file-endorsed copy of the judgment; or (3) 180 days after entry of judgment. (Cal. Rules of Court, Rule 8.104(a)(1)(A)-(C).)  

The Court rejects Plaintiff’s contentions that the instant motion is untimely. Plaintiff relies on an e-mail from another defendant’s counsel articulating the due date for the motions. (Falero Decl., Exh. B.) No notice of entry of judgment has been issued or served in this action. Moreover, even if the motion was untimely, Plaintiff has not indicated any prejudice caused by an untimely filing.  

A. Evidence in Support of the Nuyorican Motion 

Defendant Nuyorican was represented by Bartlett, LLP and Ropers Majeski, PC. (Vizza Decl., ¶¶ 1, 4; O’Hara Decl., ¶ 1.) Robert Vizza (“Vizza”) sets forth the hourly rates of the attorneys and paralegals from Bartlett, LLP who represented Defendant Nuyorican. (Vizza Decl., ¶ 4.) Paralegals charged a rate of $90.00 per hour, Stephen E. Snair, an associate, charged a rate of $210.00 per hour. (Id., ¶ 4.) Vizza charged a rate of $265.00 per hour. (Id., ¶ 4.) Vizza states that the fees for work performed by Bartlett, LLP was not divided among Defendant Nuyorican. (Id., ¶ 6.) Vizza states that the rates charged are below the rates typically charged by comparable firms. (Id., ¶ 7.) Vizza states that he has 33 years of experience in litigation. (Id., ¶ 7(a).) Vizza attaches billing records to his declaration for the work done in connection with the anti-SLAPP motion and matters related thereto, which sets forth 131.90 hours of work for a total of $31,745.00 in attorneys’ fees. (Id., ¶ 8; Exhibit A.)  

Maureen C. O’Hara (“O’Hara”) sets forth the hourly rates of the attorneys and paralegals from Ropers Majeski, PC who represented Defendant Nuyorican. (O’Hara Decl., ¶ 4.) Paralegals charged a rate of $90.00 per hour, Richard Schaefer, an associate, charged a rate of $265.00 per hour. (Id., ¶ 4.) O’Hara charged a rate of $310.00 per hour. (Id., ¶ 4.) O’Hara states that the fees for work performed by Ropers Majeski, PC was not divided among Defendant Nuyorican. (Id., ¶ 6.) O’Hara states that the rates charged are below the rates typically charged by comparable firms. (Id., ¶ 7.) O’Hara states that she has 30 years of experience in litigation. (Id., ¶ 7(a).) O’Hara attaches billing records to her declaration for the work done in connection with the anti-SLAPP motion and matters related thereto, which set forth 121 hours of work for a total of $37,253.50 in attorneys’ fees. (Id., ¶ 8; Exhibit A.) 

On reply, Vizza argues that Defendant Nuyorican has more than adequately satisfied the burden of substantiation of the legal fees incurred. (Vizza Reply Decl., ¶ 11.) Vizza provides billing records pertaining to the instant motion for fees and costs. (Id., ¶ 10; Exh. A.) Vizza states that counsel worked very closely and diligently to avoid overlap of efforts. (Id., ¶ 9.) Vizza states that he previously represented Defendant Nuyorican in a matter pending before the State of New York, County of New York, entitled Marisa Falero v. Benjamin Geza Affleck, et al., Index No. 159894/2020. (Id., ¶ 3.) The client principal requested that Bartlett LLP play an active role in the defense of this present action with the assistance of Ropers Majeski PC, as local counsel, where necessary with respect to local rules and procedural law. (Id.) Defendant Nuyorican has been represented by Bartlett, LLP and Ropers Majeski PC. (Id., ¶ 4.) Counsel states that they redacted information on the billing entries that reveals the nature and content of privileged communications and reveals legal strategy as to what issue they predicted would be important. (Id., ¶ 6.)  

In total, Defendant Nuyorican requests a total of $82,742.77 in fees and costs. (Id., ¶ 12.) $8,957.00 was incurred (which corresponds to 33.8 hours) as to the preparation of the instant motion and reply (Id., ¶ 12), $31,745.00 for 131.90 hours was expended on the anti-SLAPP motion plus $144.20 in disbursements for a total of $40,846.20 to be awarded to Defendant Nuyorican for fees and costs incurred to Bartlett, LLP, for 165.7 hours and $37,253.50 for 121 hours and $4,643.07 in costs incurred to Ropers Majewski PC. (Id.)  

B. Plaintiff’s Evidence in Opposition to the Nuyorican Motion 

In opposition to the Nuyorican Motion, Plaintiff presents a declaration which sets forth her financial and health circumstances, a recitation of the procedural history of this action, her reasons for untimely filing oppositions, and the fact that Defendant Nuyorican failed to refute Plaintiff’s claims. (Falero Decl., ¶¶ 4-54.)  

C. Analysis to the Nuyorican Motion 

The Court notes that Plaintiff makes substantially similar arguments in opposition to the Nuyorican Motion that were raised in support of the opposition to the Miramax Motion and the Warner Bros. Motion. Initially, the Court rejects Plaintiff’s contention that the fee should be reduced after disclosure and oral testimony because Defendant Nuyorican has submitted inadmissible time records. As stated above, the Court has overruled Plaintiff’s evidentiary objections. Despite Plaintiff’s contention to the contrary, Defendant Nuyorican has presented admissible evidence in support of the Nuyorican. Motion.  

Next, Plaintiff takes issue with some redactions set forth on counsel’s billing records. While the Court notes that some billing entries are partially redacted (Vizza Decl., Exh. A), Plaintiff has not made a showing that any redactions have left her “unable to challenge the reasonableness of the fees.” (Banning v. Newdow, supra, 119 Cal.App.4th 438, 454.) Plaintiff’s declaration in opposition to the Nuyorican Motion does not indicate that the redactions have left her unable to challenge the reasonableness of the fee requests. “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th 216, 224.)  

Timeliness 

Plaintiff contends that the Weinstein Motion is untimely. The Court references its discussion as to timeliness concerning the Nuyorican Motion and incorporates it herein. The Court rejects Plaintiff’s arguments as to untimeliness.  

A. Evidence in Support of the Weinstein Motion 

Dennis Shawn Burkley (“Burkley”), who is counsel for Defendant Weinstein, provides a declaration in support of the Weinstein Motion. Burkley attaches billing records of time spent related to the anti-SLAPP motion, which includes the hours spent on tasks and the corresponding monetary totals for such tasks. (Burkley Decl., ¶ 4; Exhibit A.) Burkley sets forth his experience and states that he has handled over 170 different matters as chief litigator. (Id., ¶ 18.) Burkley states that his standard rate to defend a civil action is $600.00 per hour and, at his former firm, his time was billed at $850.00 per hour, which was never contested by any client. (Id., ¶ 20.) In this action, his lodestar is $512.46 an hour. (Id., ¶ 21.) Burkley sets forth the work related to the anti-SLAPP motion and includes a brief procedural history of this action. (Id., ¶¶ 7-13.)  

The Court finds that Defendant Weinstein has shown the reasonableness of his requested attorneys’ fees and costs.  

B. Plaintiff’s Evidence in Opposition to the Weinstein Fee Motion 

In opposition to the Weinstein Motion, Plaintiff presents a declaration which sets forth her financial and health circumstances, a recitation of the procedural history of this action, her reasons for untimely filing oppositions, and the fact that Defendant Weinstein’s initial fee motion did not include a notice of hearing and had a reservation receipt for the wrong motion. (Falero Decl., ¶¶ 4-33.)  

C. Analysis as to the Weinstein Fee Motion 

The Court notes that Plaintiff makes substantially similar arguments in opposition to the Weinstein Motion that were raised in support of her respective oppositions to the other motions. Initially, the Court rejects Plaintiff’s contention that the fee should be reduced after disclosure and oral testimony because Defendant Weinstein has submitted inadmissible time records. As stated above, the Court has overruled Plaintiff’s evidentiary objections. Despite Plaintiff’s contention to the contrary, Defendant Weinstein has presented admissible evidence in support of the Weinstein Motion.  

Plaintiff argues that the instant motion should be denied because Defendant Weinstein merely copied Defendant Miramax’s citations and truncated its arguments in support of Defendant Weinstein’s anti-SLAPP motion. (Opp’n at p. 5.) Here, the Court notes Defendant Weinstein filed an anti-SLAPP motion and prevailed on such motion. Plaintiff presents mere argument—without any evidence—that Defendant Weinstein copied the motion of Defendant Miramax. Defendant Weinstein’s counsel refutes such an allegation on reply. (Burkley Decl., ¶ 8.) 

The Court also rejects Plaintiff’s contention that the instant motion should be denied because Defendant Weinstein did not include a notice of hearing and correct reservation receipt. Defendant Weinstein submitted a corrected notice of errata which merely contains a typographical error as to the CCP section upon which the motion is brought. Defendant Weinstein indicated that the instant motion is brought pursuant to CCP section “425.169(c)(1)” instead of CCP section 425.16(c)(1). While there is a typographical error in the corrected version of Defendant Weinstein’s Notice of Motion for Attorney’s Fees and Costs, Plaintiff does not indicate any prejudice due to such error.  

The Court has reviewed Defendant Weinstein’s billing records attached to the declaration of Burkley and finds that such records concern activities related to the anti-SLAPP motion. Plaintiff has not presented any evidence to attack the reasonableness of counsel’s hourly rate or tasks performed. While Plaintiff argues that a downward multiplier should be applied due to her financial condition, the Court reminds Plaintiff she tenaciously litigated this action. Plaintiff’s citation to Garcia v. Santana, supra, 174 Cal.App.4th 464 is therefore inapposite. Defendant Weinstein has shown that counsel’s hourly rates are reasonable and that the tasks performed were reasonably necessary. Plaintiff has not met her burden in showing unreasonableness.  

The Court also rejects Plaintiff’s argument that Defendant Weinstein should not be allowed his costs pertaining to the anti-SLAPP motion in the amount of $256.94 as such costs are related to the anti-SLAPP motion. Plaintiff has not presented any evidence showing that Defendant Weinstein’s costs are unreasonable.  

D. The Effect of the Pending Appeal 

Here, Plaintiff is appealing the granting of Defendants’ respective anti-SLAPP motions. However, such an appeal is a collateral matter and therefore the Court can proceed with ruling on the Motions. The respective motions for attorneys’ fees are not premature due to Plaintiff’s current pending appeal under Bankes v. Lucas, supra, 9 Cal.App.4th 365, 368.  

Based on the foregoing, the Court GRANTS the Weinstein Motion.  

The Court will now address Plaintiff’s motion to proceed using a pseudonym and to seal the record.  

 

MOTION TO PROCEED USING A PSEUDONYM AND SEAL THE RECORD 

Plaintiff seeks an order authorizing her to proceed in the instant case under the pseudonym “Jane Doe” and to seal the record and for related relief including, inter alia, a protective order restricting the disclosure of the identity or any information that may reveal the identity of Plaintiff. 

A. Appropriateness of Plaintiff Proceeding Under a Pseudonym 

“The names of all parties to a civil action must be included in the complaint.” (Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105, 109.) “That requirement extends to real parties in interest—anyone with a substantial interest in the subject matter of the action.” (Ibid.) An “important constitutional right is implicated when a party is allowed to proceed anonymously: the right of access to court proceedings. Among the guarantees of the First Amendment to the United States Constitution is that court proceedings are open and public.” (Id. at p. 110.) “The right of public access applies not only to criminal cases, but also to civil proceedings.” (Id. at p. 111.) “[T]he right to access court proceedings necessarily includes the right to know the identity of the parties.” (Ibid.) “Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party’s request for anonymity should be granted only if the court finds that an overriding interest will be likely be prejudiced without the use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access.” (Ibid.) “[L]itigating by pseudonym should occur only in the rarest of circumstances.” (Id. at p. 112.) “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)  

The Court finds that Plaintiff has not shown an overriding interest that will be prejudiced without the use of a pseudonym. Plaintiff has not provided a declaration in support of her motion and thus has not presented any facts showing an overriding interest. While the motion refers to a declaration (Motion, p. 4:1-2), Plaintiff did not file a declaration in support of the motion. Plaintiff argues that she sought to amend the operative FAC to include a cause of action for intentional dissemination of a reproduction of another. (Motion, p. 4:2-5.) However, the FAC is the operative pleading, and no Second Amended Complaint has been filed. Thus, the Court fails to see how a hypothetical cause of action in a non-existent pleading serves as a basis for Plaintiff to use a pseudonym. Plaintiff has therefore not shown an overriding interest to warrant the use of a pseudonym.  

B. Plaintiff’s Request to Seal the Record  

“[S]ubject to certain exceptions . . . a court record must not be filed under seal without a court order.” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 486.) “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Id., emphasis added.) “In doing so, the moving party must lodge with the court the record for which the sealing order is sought. The court holds the record conditionally under seal until it rules on the motion or application.” (Id. at p. 486-487.)     

In order for records to be sealed, “a trial court must hold a hearing and expressly find that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.” (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1279.) “Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, Rule 2.550(c).) “Since court records are public records, the burden rests on the party seeking to deny public access to those records to establish compelling reasons why and to what extent these records should be made private.” (Mary R. v. B. & R. Corp. (1983) 149 Cal.App.3d 308, 317.)  

Initially, the Court finds that Plaintiff’s request to seal is procedurally improper as Plaintiff has not provided a declaration stating facts sufficient to justify sealing of the record. Plaintiff failed to file a declaration in support of her motion to proceed under a pseudonym and seal the record. Moreover, Plaintiff has not lodged with the records which she seeks to seal. Additionally, as stated above, Plaintiff has not shown an overriding interest to warrant the requested relief. Plaintiff’s request to seal is based on a proposed Second Amended Complaint, which was never filed. Plaintiff has litigated this action for over one-year and is just now requesting a sealing order after the granting of Defendants’ respective anti-SLAPP motions. Such act is “inconsistent with an intent to enforce [Plaintiff’s] rights to obtain sealed records under the Rules of Court.” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 601.” Thus, the Court finds that Plaintiff has waived her right to request a sealing of the record. (Id. at p. 601-602.)  

The Court therefore DENIES Plaintiff’s motion for an order authorizing her to proceed in the instant case under the pseudonym “Jane Doe” and for an order sealing the record in this action.  

Defendant Miramax is ordered to give notice of this ruling in its entirety. 

 

IT IS SO ORDERED.