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Fleming v. Coverstone

March 18, 2009

HOYT A. FLEMING, PLAINTIFF,
v.
TOM COVERSTONE, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are the (1) Motion for Attorney Fees (Doc. # 31) filed by Defendant Tom Coverstone, and (2) Motion to Strike and Disregard Declaration of Gregor Hensrude in Support of Motion for Attorney Fees (Doc. # 42) filed by Plaintiff Hoyt Fleming.

Background

On February 22, 2008, Plaintiff Hoyt A. Fleming initiated this action by filing a complaint (Doc. # 1). The complaint alleged claims for breach of contract, defamation and civil extortion against Defendant Tom Coverstone. On February 26, 2008, Plaintiff filed a first amended complaint, which also alleged claims for breach of contract, defamation and civil extortion (Doc. # 3). On June 18, 2008, Defendant filed a special motion to strike the first amended complaint's second and third causes of action pursuant to California's anti-SLAPP state, Cal. Civ. Code § 426.16 (Doc. # 11). On June 18, 2008, Defendant also filed a motion to dismiss the first amended complaint for failure to state a claim (Doc. # 12). On June 30, 2008, Plaintiff filed a motion to amend complaint (Docs. # 13, 14). Plaintiff sought leave to amend his complaint in order to "add facts learned subsequent to the filing of the First Amended Complaint," including "additional detail relating to Defendant's actions, including his defamatory statements." Mot. to Amend, p. 1-2. Plaintiff attached a proposed second amended complaint to the motion to amend, which alleged causes of action for breach of contract, defamation and civil extortion. On July 16, 2008, Plaintiff filed a notice of withdrawal of the motion to amend regarding the defamation claim, which gave "notice that [Plaintiff] withdraws the motion to amend complaint regarding Count Two (defamation) of the proposed second amended complaint" (Doc. # 24). On October 17, 2008, this Court issued an order granting Plaintiff leave to amend and dismissing the motion to strike and the motion to dismiss as moot (Doc. # 28). The Court ordered Plaintiff to file a second amended complaint no later than November 3, 2008. On October 21, 2008, Plaintiff filed the "Second Amended Complaint for Breach of Contract and Extortion" ("SAC"), which is the operative pleading in this case (Doc. # 29). The SAC alleges causes of action for (1) breach of contract; and (2) extortion in violation of sections 518-527 of the California Penal Code. The SAC does not allege a cause of action for defamation.

On October 31, 2008, Defendant filed the Motion for Attorney Fees. Defendant contends that he is a prevailing party within the meaning of California's anti-SLAPP statute because Plaintiff voluntarily dismissed his defamation claim while Defendant's anti-SLAPP motion was pending. Defendant contends that he is therefore entitled to attorney fees in connection with the anti-SLAPP motion of the defamation claim. Defendant requests a total fee award of $15,839.50. In support of the Motion for Attorney Fees, Defendant submitted the declaration of Gregor A. Hensrude, an associate with the law firm of Klinedinst PC, and counsel of record for Defendant. Hensrude attests that he has personal knowledge of the facts in his declaration, and that he has been able to determine the work associated with the anti-SLAPP motion the based on "review of the bills and my involvement in the work." Hensrude Decl., ¶ 3.

Defendant requests an award of attorney fees based on an hourly rate of $435.00 for the shareholder on this file; of $245.00 for the senior associate on this file; and of $220.00 for the junior associate on this file. In support of these rates, Hensrude attests that John Klinedinst is the shareholder on file, that Klinedinst has practiced law in California since 1979, that Klinedinst is rated AV by Martindale-Hubbell, and that Klinedinst is highly regarded in the legal community; that Hernsrude is the senior associate on file, that Hensrude has been practicing law in California since 2003, and that Hensrude has litigated many cases dealing with anti-SLAPP and litigation privilege issues; and that Daniel Agle is the junior associate on file, and that Agle has been practicing law since 2007, and that Aglehas drafted numerous dispositive motions and has accomplished substantial success in doing so. Hensrude Decl., ¶¶ 6-8.

Hensrude attests that Klinedinst, Hensrude and Agle "performed the following legal services that are associated with the anti-SLAPP motion of the defamation claim filed by Plaintiff:" Hensrude Decl., ¶ 3.

Category Amount Communication and conference with Shareholder: $170.00 (0.4 hours at client regarding facts and strategy $425/hr) related to the defamation claim Senior Associate: $1,225.00 (5.0 hours at $220/hr)

Legal and factual research in Senior Associate: $980.00 (4.0 hours at preparation for anti-SLAPP of $245/hr) defamation claim (both motion and Junior Associate: $1,298.00 (5.9 hours reply) at $220/hr)

Analysis of law and facts regarding Shareholder: $255.00 (6 hours at anti-SLAPP of defamation claim $425/hr)

Senior Associate: $686.00 (2.8 hours at $245/hr)

Junior Associate: $704.00 (3/2 hours at $220/hr)

Draft anti-SLAPP motion, and Shareholder: $85.00 (0.2 hours at supporting papers related to $425/hr) defamation claim Senior Associate: $931.00 (3.8 hours at $245/hr) Junior Associate: $2,024.00 (9.2 hours at $220/hr)

Draft reply to anti-SLAPP motion (as Senior Associate: $1,029.00 (4.2 hours to defamation ...


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