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Kearney v. Foley and Lardner

March 18, 2008

JOAN BROWN KEARNEY, PLAINTIFF,
v.
FOLEY AND LARDNER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING IN PART AND DENYING IN PART WITHOUT PREJUDICE DEFENDANT McCARTY'S MOTION FOR ATTORNEYS' FEES [doc. #60]

Defendant Michael T. McCarthy*fn1 ("McCarty" or defendant") moves to an award of attorneys' fees for his successful motions to dismiss [doc. #8], to strike the complaint [doc. #13], and to strike plaintiff's sixth and seventh causes of action [doc. #15]. Plaintiff opposes the motion. For the reasons set forth below, the Court enters the following decision.

McCarty seeks attorneys' fees in the amount of $42,802.00 as the prevailing party in the above-captioned case. Plaintiff opposes the motion contending it attempts to obtain attorneys' fees for the entire action rather than just that portion of fees associated with the state law claims that were stricken under the anti-SLAPP*fn2 statute and fails to properly apportion the allowable from the non-allowable fees. For the reasons set forth below, the Court enters the following decision.

FACTUAL AND PROCEDURAL BACKGROUND

On January 20, 2006, plaintiff filed a First Amended Complaint ("FAC") in this Court alleging violations of RICO, and constitutional rights under 42 U.S.C. § 1983, and state law claims for fraud, fraud and deceit by suppression of fact, spoliation of evidence, and prima facie tort against McCarty. In response to the FAC, defendant filed a motion to dismiss the federal causes of action under Federal Rule of Civil Procedure 12(b)(6) [doc. #8], and a special motion to strike the state law causes of action -- spoliation of evidence and prima facie tort -- as being subject to the anti-SLAPP statute [doc. #15] and a special motion to strike the Complaint [doc.

After full briefing, the Court granted McCarty's motions to dismiss the federal causes of action directed to McCarty finding that the Noerr-Pennington doctrine*fn3 and/or litigation privilege were applicable. The Court also granted defendant's motion to strike plaintiff's state law causes of action finding that those claims were based on conduct in furtherance of the underlying eminent domain proceeding and therefore, were subject to the anti-SLAPP statute, and plaintiff had failed to make a showing of legally sufficient claims to sustain a favorable judgment even if the evidence submitted by plaintiff was credited. (Order filed March 28, 2007 [doc. #41]).

ATTORNEYS' FEES UNDER ANTI-SLAPP STATUTE

California's anti-SLAPP statute provides a mechanism for a defendant to strike civil actions or claims brought primarily to chill the exercise of free speech. CODE CIV. P. § 425.16(b)(1). In order to deter such chilling, "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." CODE CIV. P. § 425.16(c).

It is well-settled that an award of attorney's fees and costs to a successful anti-SLAPP movant is mandatory. Ketchum v. Moses, 24 Cal. 4th 1122, 1131, 104 Cal. Rptr.2d 377 (2001). "[A]bsent circumstances rendering an award unjust, the fee should ordinarily include compensation for all hours reasonably spent, including those relating solely to [obtaining] the fee [award]." Serrano v. Unruh, 32 Cal. 3d 621, 624, 186 Cal. Rptr. 754 (1982) (applying CAL.CODE CIV. P. § 1021.5) (cited in Ketchum, 24 Cal. 4th at 1141). An award of attorney fees and costs must be reasonable.

ODE CIV. P. § 425.16.

The fee provision of the anti-SLAPP statute is applied in federal court. Metabolife Intern., Inc. v. Wornick, 213 F. Supp.2d 1220 (S.D. Cal.2002); see also United States v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972-73 (9th Cir. 1999)(the California anti-SLAPP statute should be applied in federal court as it is in state court.).

DISCUSSION

1. Entitlement to Full Fees Requested

Plaintiff does not dispute that McCarty is entitled to an award of attorney's fees for his successful motion to strike under the anti-SLAPP statute. But she contends that defendant should not recover any attorneys' fees for arguments that were unnecessary to prevail on the anti-SLAPP motion. Plaintiff argues that defendant may only recover fees for work specifically performed in preparing their motion to strike but all other aspects of defendants' motion practice should be excluded from ...


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