Judge Thomas D. Long, Case Number: 21STCV11613, Date: 2023-09-05 Tentative Ruling

On July 23, 2021, the Court denied Defendant’s anti-SLAPP motion. On May 8, 2023, the Court of Appeal reversed and remanded for the trial court to conduct a second step anti-SLAPP analysis. Defendant was awarded her costs on appeal.

After the case was reassigned to this Department, the Court put Defendant’s anti-SLAPP motion back on calendar. On September 5, 2023, the Court granted Defendant’s anti-SLAPP motion and set a hearing date for Defendant’s motion for attorney fees. Defendant later filed her motion.

As the prevailing party on an anti-SLAPP motion, Defendant is entitled to an award of reasonable attorney fees. (Code Civ. Proc., § 425.16, subd. (c).) California courts apply the “lodestar” approach to determine what fees are reasonable. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, 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.” (Ibid.) Relevant factors 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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.)

Defendant seeks $247,413.78 in attorney fees and costs. (Motion at p. 13.) Defendant’s counsel’s invoices redact the rate and total amount billed for each task, including redaction of each invoice’s total fees, so the Court can only consider whether the amount of time spent on each task is reasonable. (Pietz Decl., Exs. 3-10.) Defendant does, however, provide a separate Appendix of lodestar calculations. (Motion at pp. 14-17.)

Defendant’s counsel charges various hourly rates: $740 for Morgan Pietz; $650 for Cyrus Shahriari; $650 for Thomas Burke; $515 for Sandra Vucinic; $125 for paralegal Kerry Dienelt; and $125 for paralegal Mandy Chen. (Motion at p. 17.)

Plaintiff argues that the hourly rates are unreasonable. (Opposition at pp. 14-18.) Based on counsel’s experience, the type of case, and the market rate, the Court concludes that $650 is a reasonable maximum hourly rate. Most of the work was done by three partners charging $740 or $650, and of those partners, Morgan Pietz (charging $740) billed the majority of the hours. (Motion at pp. 14-17.) The Court acknowledges the partners’ extensive experience, but more associate hours could have been spent on this matter. This is another reason why the Court concludes that the reduced rate of $650 for Morgan Pietz is reasonable. (See 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437-439 [affirming a trial court’s rejection of the Laffey Matrix rate and its application of a lower hourly rate of $275 for an anti-SLAPP motion “in which the yeoman’s work could have been handled by associates billing much lower rates”].)

Phase 1 (Original Anti-SLAPP Motion): $79,885.00 (Pietz) + $2,750.00 (Dienelt) = $82,635.00.

Phase 2 (Successful Appeal): $90,480.00 (Pietz) + $585.00 (Shahriari) + $520.00 (Burke) + $125.00 (Dienelt) + $112.50 (Chen) = $91,822.50.

Maximum total fees, from adding up the categories above: $82,635.00 (Phase 1) + $91,822.50 (Phase 2) + $40,680.00 (Phase 3) + $18,200.00 (From Motion to Hearing) = $233,337.50. Further deductions will be made from this total.

Plaintiff argues that the number of hours should be reduced: “anti-SLAPP motion hours by 50%; appellate hours by 50%; discovery hours by 70%; fee motion hours by 50%; and no fees relating to the pending motion for leave to amend.” (Opposition at p. 19.)

Plaintiff argues that the Court should impose a reduction of at least 25% to 50% of the requested hours for the anti-SLAPP motion because “[t]he motion here revolved around a single alleged false statement to Mary Allen, whether the statement was made, and if so, whether it was subject to the litigation privilege.” (Opposition at pp. 10-11.) In connection with this argument, Plaintiff does not identify any specific items that were unnecessary or overbilled.

The Court assumes that this refers to Plaintiff’s contention that Defendant has not explained why all six declarations were necessary. (See Opposition at pp. 7-8.) Defendant’s declaration authenticated exhibits and supported her argument that she was seriously contemplating getting a restraining order, for which she consulted with attorney Cynthia Flynn. Plaintiff acknowledges that Flynn’s declaration was relevant. The Court disagrees that the one-and-a-half-page declaration is cumulative because it provides additional context. Flynn declared that she and Defendant were still in contact about a contemplated restraining order in October 2020, shortly before Defendant’s January 15, 2021 conversation with Mary Allen. The declarations of Nicolette Fanelli, Jason Rosenbaum, and Meghan Hayden were cumulative and unnecessary for the Court’s consideration. The time spent on these declarations warrants some reduction, but not the requested 25% to 50% of time billed.

Plaintiff argues that $104,424.50 for 141 attorney hours on appeal is excessive because “[t]he appeal involved only a single issue, and resulted in a short, unpublished opinion. The single issue concerned review of the anti-SLAPP prong one, which is de novo, thus involving minimal treatment of the trial record. That the opinion was unpublished suggests that the appeal did not involve novel or complex issues of law.” (Opposition at p. 11.) Plaintiff again does not identify any specific items that were unnecessary or overbilled.

Plaintiff argues that $45,243 for over 55 attorney hours opposing discovery is excessive because Defendant’s opposition to Plaintiff’s ex parte failed and Plaintiff sought to take only two depositions. (Opposition at pp. 12-13.) According to Plaintiff, “[h]ad the depositions gone forward, they would have required Hayek’s attorneys to spend between 7 and 15 hours. It was not reasonably necessary to spend 55 attorney hours to avoid having to spend 7 to 15 hours.” (Id. at p. 13.) Plaintiff’s August 24, 2023 ex parte application sought to continue the hearing on the anti-SLAPP motion so his motion for discovery could be heard first. Instead of fully granting the application, the Court maintained the anti-SLAPP hearing date and advanced Plaintiff’s discovery motion to the same date. Defendant’s opposition, based in part on a lack of irreparable harm and prejudice from Plaintiff’s delay, was not wholly unreasonable, and it did not “fail.” Defendant’s opposition to Plaintiff’s motion for limited discovery, however, was excessive for the limited discovery sought and issues presented. This warrants some additional deductions.

Plaintiff argues that the $22,940 for 31 attorney hours for this fee motion should be reduced by 50% because “[a] fee motion can be prepared by a junior associate rather than a partner.” (Opposition at p. 13.) As Defendant notes in reply, 15 hours were billed by an associate and 10 hours were billed by a partner. (Reply at pp. 5-6.) This is reasonable.

Some of Defendant’s time that is anticipatorily billed is excessive. Pietz anticipates, at the time of filing the fee motion, “an estimated 6 hours for a reply in support of this motion, 16 hours to oppose the new motion for leave to amend, [and] 6 hours to prepare for, travel to, and attend what will hopefully be the final hearing in this case on November 21, 2023, and finalize judgment after it.” (Pietz Decl. ¶ 26.) A total of 12 hours for a reply and hearing is excessive.

Plaintiff also challenges the 16 hours for the opposition to Plaintiff’s motion for leave to amend. (Opposition at pp. 13-14.) These fees are not incurred in connection with the anti-SLAPP motion and are not recoverable here. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433 [“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 fees and costs incurred for the entire action.”].)

Considering the type of case, complexity of the case, length of litigation, and the record as a whole, the Court concludes that a reasonable amount of attorney fees is $140,000.00 (deduction of 40% + $2.50 from reduced-rate total of $233,337.50). (See Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 102 [“When a ‘voluminous fee application’ is made, the court may . . . ‘make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure.’”].)

Plaintiff does not challenge the requested $4,456.50 in costs and expenses ($1,643.70 + $1,252.49 + $1,560.31).

The motion for attorney fees is GRANTED IN PART. Defendant is awarded $140,000.00 in attorney fees and $4,456.50 in costs, for a total of $144,456.50.

The Court may, in its discretion and after notice to the adverse party, allow an amendment to any pleading. (Code Civ. Proc., § 473, subd. (a)(1).) A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (California Rules of Court, rule 3.1324(a).) The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. (California Rules of Court, rule 3.1324(b).)

Plaintiff provides a copy of the proposed amended complaint, but he does not identify the specific amendments. (Kowal Decl. ¶ 2 & Ex. 1.) Despite counsel declaring that “Exhibit 1 is a true and correct copy of the redlined version of the proposed amended complaint,” there are no redline edits. (See Kowal Decl. ¶ 2 & Ex. 1.) Counsel explains that the amendment deletes all allegations concerning Mary Allen and adds allegations of new claims for defamation based on unprotected false statements made to two other individuals, Max Page and Marina Hirschfeld. (Kowal Decl. ¶¶ 3-4.) According to Plaintiff, the amendment is necessary and proper because “[t]here is strong prima facie evidence that plaintiff suffered defamation.” (Kowal Decl. ¶ 4.) Plaintiff learned about the alleged statements to Page in August 2023, and he learned of the statements to Hirschfeld by the time the complaint was filed. (Braun Decl. ¶ 3.) Plaintiff did not originally include the allegations involving statements to Hirschfeld because “plaintiff did not wish to bring additional third parties into this litigation needlessly, given plaintiff Hayek’s history of vindictive behavior against those in the music business. Now, however, plaintiff has no choice but to assert this additional ground of defamation.” (Braun Decl. ¶ 4.)

“In enacting the anti-SLAPP statute, the Legislature set up a mechanism through which complaints that arise from the exercise of free speech rights ‘can be evaluated at an early stage of the litigation process’ and resolved expeditiously.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 (Simmons).) “Allowing a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from section 425.16’s quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend.” (Ibid.) Amendment would allow a plaintiff to “accomplish indirectly what could not be accomplished directly, i.e., depleting the defendant’s energy and draining his or her resources . . . totally frustrat[ing] the Legislature’s objective of providing a quick and inexpensive method of unmasking and dismissing such suits.” (Id. at p. 1074.)

Plaintiff’s attempts to distinguish his amendment from this policy is unavailing. (See Reply at pp. 3-6.) The nature of Plaintiff’s claims remains the same, even though Defendant is alleged to have made the statements to two new individuals. This appears to be Plaintiff’s attempt to “go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading.” (See Simmons, supra, 92 Cal.App.4th at p. 1073.)

“[T]he omission of any provision in section 425.16 for leave to amend a SLAPP complaint was not the product of inadvertence or oversight. . . . [G]ranting leave to amend the complaint after the court finds the defendant had established its prima facie case would be jamming a procedural square peg into a statutory round hole.” (Id. at p. 1074.)

The Court will sign the proposed judgment (submitted on November 14, 2023) after correcting the hearing date.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court