Judge Theresa M. Traber, Case 21STCV22573 2022-12-05 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV22573, Date: 2022-12-05 Tentative Ruling

Case Number: 21STCV22573 Hearing Date: December 5, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: December 5, 2022 TRIAL DATE: NOT SET

CASE: Christopher Avellone v. Karissa Barrows, et al.

CASE NO.: 21STCV22573

(1) MOTION FOR ATTORNEY’S FEES

(2) MOTION TO TAX COSTS

MOVING PARTY: (1) Defendant Karissa Barrows; (2) Plaintiff Christopher Avellone

RESPONDING PARTY(S): (1) Plaintiff Christopher Avellone; (2) Defendant Karissa Barrows

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a libel action that was filed on June 16, 2021. Plaintiff alleges that Defendants falsely tweeted, among other things, that he preyed on young women at Dragon Con, the comic book convention held in Atlanta.

Defendant moves for an award of attorney’s fees in the amount of $133,340 plus $4,848.75 in costs following appellate vacatur of the Court’s denial of Defendant’s Motion to Quash Service of Summons and Special Motion to Strike. Plaintiff moves to tax specific costs in the Memorandum of Costs.

TENTATIVE RULING:

Defendant’s Motion for Attorney’s Fees is GRANTED on the issue of costs in the amount of $4,848.75 pursuant to Code of Civil Procedure section 425.16(c)

Plaintiff’s Motion to Tax Costs is GRANTED.

DISCUSSION:

Motion For Attorney’s Fees

Defendant moves for an award of attorney’s fees in the amount of $133,340, plus $4,848.75 in costs following appellate vacatur of the Court’s denial of Defendant’s Motion to Quash Service of Summons and Special Motion to Strike. The Court addressed the request for attorney’s fees in the November 15, 2022 ruling on this motion, but continued the issue of costs to be heard simultaneously with the Motion to Tax Costs. As both motions have now been fully briefed, the Court rules on the issue of costs.

Legal Standard

Code of Civil Procedure section 425.16(c) entitles a prevailing defendant on a special motion to strike, otherwise known as an anti-SLAPP motion, to recover their attorney’s fees and costs. A statute authorizing attorney fee awards at the trial court level also authorizes appellate attorney’s fees unless explicitly stated otherwise. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1426.) The amount of attorneys’ fees awarded must be reasonable. (See, e.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)

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, 1393-1394.) 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 Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)

Reasonableness of Costs

Defendant requests an award of $4,848.75 in costs. In connection with this request, Defendant has provided an itemized list of costs with the moving papers. (Defendant’s Exh. E.) Defendant also filed a Summary Memorandum of Costs and a Memorandum of Costs on Appeal.

In Plaintiff’s opposition to the Motion for Attorney’s fees, Plaintiff opposes the costs as requested on several bases.

First, Plaintiff contends that Defendant improperly seeks recovery of costs for Court Reporters from September 22, 2021, September 28, 2021, and October 8, 2021, even though those reporters were not court-ordered. Plaintiff contends that these costs are barred under Code of Civil Procedure section 1033.5. Section 1033.5 itemizes the costs which are recoverable by a prevailing party at trial under section 1032. (Code Civ. Proc. §§ 1032, 1033.5.) However, as Defendant states correctly in response, this section is inapplicable to the recovery of costs on appeal, which is instead governed by Code of Civil Procedure section 1034 and California Rule of Court 8.278. Rule 8.278(d)(1)(B) expressly states that the costs for any portion of the record are recoverable, if reasonable. (Cal. Rules of Court Rule 8.278(d)(1)(B).) Further, the cost-shifting provision under the anti-SLAPP statute does not itemize the types of costs allowed, requiring only that the costs be reasonable. (Code Civ. Proc. § 425.16(c)(1).) As Defendant has moved for recovery of fees and costs pursuant to the anti-SLAPP statute, the Court cannot conclude that these costs are unreasonable.

Second, Plaintiff contends that the request for $24.47 in Court Reporter fees dated October 8, 2021 should not be granted because the description of that item in Defendant’s supporting itemized list of costs was cut off. (See Defendant’s Exh. E.) These costs are not apparent from either of Defendant’s memorandum of costs. However, in reply, Defendant’s counsel states under penalty of perjury that these costs are for the transcript of the proceedings from the hearing on September 28, 2021. (See Supplemental Declaration of Daniel Allender ISO Reply ¶ 3.) These costs are recoverable under section 425.16(c)(1). In light of this evidence, the Court finds that the costs requested are reasonable.

Third, and finally, Plaintiff contends that Defendant is seeking to recover the same $1,000.80 in court reporter fees in both memoranda of costs and in the Motion. Defendant states expressly in the Motion, however, that these costs are being presented multiple times only because they are recoverable on multiple grounds, and not because Defendant is seeking recovery of the same costs more than once. Defendant also states that she is not seeking recovery of any costs awarded to Ms. Bristol, and that, if the costs requested are granted in full, the memoranda of costs may be disregarded. Thus, it appears to the Court that there is no disagreement between the parties as to the propriety of this cost.

Conclusion

Accordingly, Defendant’s request for costs in the amount of $4,848.75 is GRANTED.

Motion to Tax Costs

Plaintiff moves to tax three items in Defendant’s Trial Court Memorandum of Costs.

Specifically, Plaintiff moves to tax $90 in filing and motion fees representing the pro rata share of costs previously claimed by Ms. Bristol; $1,000.80 in court reporter fees that are also requested in the Appellate Memorandum of Costs and the Motion, addressed above; and $23.10 in fees for electronic filing or service previously identified on a pro rata basis in Ms. Bristol’s memorandum of costs. Defendant consents to the relief requested as to all three items.

Although Defendant addresses Plaintiff’s contentions regarding the Memorandum of Costs filed by Ms. Bristol, the Court declines to address this issue as it was not raised in the Notice of Motion and no relief is requested on this basis.

Conclusion

Accordingly, Plaintiff’s Motion to Tax Costs is GRANTED.

CONCLUSION:

For the reasons explained above, Defendant’s Motion for Attorney’s Fees is GRANTED on the issue of costs in the amount of $4,848.75 pursuant to Code of Civil Procedure section 425.16(c)

Plaintiff’s Motion to Tax Costs is GRANTED.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: December 5, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.