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Brent Allan Winters, et al v. Delores Jordan

April 20, 2011

BRENT ALLAN WINTERS, ET AL., PLAINTIFF,
v.
DELORES JORDAN, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court are separate motions for attorneys' fees and costs filed by defendants Judy Ford and Valerie Logsdon. (Dkt. Nos. 202, 204.) Ford and Logsdon seek attorneys' fees and costs in connection with their successful special motions to strike, which each of them filed pursuant to California's anti-SLAPP statute, California Code of Civil Procedure 425.16.*fn1 For the reasons stated below, the undersigned: (1) denies Ford's motion without prejudice; and (2) grants Logsdon's motion and awards her a total of $12,126.00 in attorneys' fees, and $368.70 in costs.

I. BACKGROUND

The operative complaint is plaintiffs' Third Amended Complaint, which alleged numerous claims against Ford and Logsdon premised on state law and federal law. (See generally Third Am. Compl., Dkt. No. 66.) Underlying the pending motions for fees and costs are pleading motions filed separately by Ford and Logsdon, each of which included a special motion to strike pursuant to California's anti-SLAPP statute and a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

A. Ford's Combined Motion to Dismiss and Special Motion to Strike Although plaintiffs' Third Amended Complaint is the operative pleading, plaintiffs' Second Amended Complaint is also implicated by Ford's motion for attorneys' fees and costs. (Second Am. Compl., Dkt. No. 15.) On July 24, 2009, Ford filed a special motion to strike the Second Amended Complaint pursuant to the anti-SLAPP statute. (Dkt. No. 34.) That anti-SLAPP motion was not resolved on the merits; the then-presiding magistrate judge denied the motion as moot and granted plaintiffs leave to file a Third Amended Complaint as a less drastic alternative to involuntary dismissal stemming from plaintiffs' inability to follow the court's orders. (See Order, Aug. 24, 2009, Dkt. No. 56.)

Plaintiffs' Third Amended Complaint alleged several claims against Ford. It alleged four state law claims for relief and four claims premised on violations of federal law.

In response to the Third Amended Complaint, Ford filed a special motion to strike pursuant to the anti-SLAPP statute and a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 69.) This motion was substantially similar to Ford's special motion to strike the Second Amended Complaint.

On July 20, 2010, the undersigned entered findings and recommendations that recommended the dismissal, with prejudice, of all of the claims asserted against Ford in the Third Amended Complaint. (Order and Findings & Recommendations, Jul. 20, 2010, Dkt. No. 143.) Specifically relevant to Ford's pending motion, the undersigned recommended the dismissal of plaintiffs' state law claims-for abuse of process, trespass to chattels, loss of consortium, and intentional infliction of emotional distress-on the basis of the well-taken anti-SLAPP motion.

(See id. at 6-11.)

On September 14, 2010, United States District Judge John A. Mendez adopted the findings and recommendations in full and dismissed all of the claims alleged against Ford, including the four state law claims for relief. (Order, Sept. 14, 2010, Dkt. No. 176.) On October 14, 2010, plaintiffs filed an notice of interlocutory appeal of several of Judge Mendez's orders. (Notice of Appeal, Dkt. No. 187.) Plaintiffs' interlocutory appeal is presently pending before the United States Court of Appeals for the Ninth Circuit. (See Winters v. Jordan, No. 10-17829 (9th Cir.).)

On October 18, 2010, Ford requested the entry of judgment in her favor. (Req. for Entry of J., Dkt. No. 193.) On October 21, 2010, Judge Mendez entered judgment in Ford's favor. (Judgment, Oct. 21, 2010, Dkt. No. 194.)

On November 17, 2010, Ford filed the pending motion for anti-SLAPP attorneys' fees and costs. Plaintiffs filed a written opposition, but that opposition does not address the basis for the fee and cost award sought, i.e., the anti-SLAPP statute. (Dkt. No. 219.) On February 17, 2011, the undersigned conducted a hearing on several motions, including Ford's motion for fees and costs, and plaintiffs failed to appear. (See Minutes, Feb. 17, 2011, Dkt. No. 255.) In light of a recent decision of the Ninth Circuit Court of Appeals addressing the apportionment of fees incurred where an anti-SLAPP motion to strike is filed along with a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), see Fabbrini v. City of Dunsmuir, 631 F.3d 1299 (9th Cir. 2011), the undersigned ordered Ford's counsel to file a supplemental declaration addressing whether the fee and cost award previously sought should be reduced. On February 24, 2011, Ford filed, as ordered by the court, a supplemental declaration attempting to clarify the basis for the amount of fees and costs sought. (Second Suppl. Sommer Decl., Feb. 24, 2011, Dkt. No. 259.)

B. Logsdon's Combined Motion to Dismiss and Special Motion to Strike Plaintiffs' Third Amended Complaint alleged several claims against defendant Valerie Logsdon. It alleged six state law claims for relief and four claims premised on violations of federal law. In response to the Third Amended Complaint, Ford filed a special motion to strike pursuant to the anti-SLAPP statute and a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 72.)

On July 22, 2010, the undersigned entered findings and recommendations that recommended the dismissal, with prejudice, of several of the claims asserted against Logsdon in the Third Amended Complaint. (Order and Findings & Recommendations, Jul. 22, 2010, Dkt. No. 145.) Specifically relevant to Logsdon's present motion for fees and costs, the undersigned recommended the dismissal of plaintiffs' state law claims against Logsdon except for a single claim of civil battery alleged by plaintiff Christy Winters. (Id. at 22-23.) The undersigned recommended that plaintiffs' state law claims for abuse of process, trespass to chattels, loss of consortium, intentional infliction of emotional distress, and breach of contract be dismissed with prejudice. (Id.) As to all of the state claims subject to dismissal, the undersigned recommended that all but the breach of contract claim be dismissed on the basis of Logsdon's well-taken anti-SLAPP motion. (See id. at 5-10.)

On September 14, 2010, Judge Mendez adopted the findings and recommendations in full and dismissed all of the claims alleged against Logsdon, including the four state law claims for relief. (Order, Sept. 14, 2010, Dkt. No. 178.) Plaintiffs' notice of interlocutory appeal, filed on October 14, 2010, included an attempt to appeal Judge Mendez's September 14, 2010 order. (See Notice of Appeal.) However, on January 25, 2011, the Ninth Circuit Court of Appeals entered an order stating that the scope of the appeal does not include the order on Logsdon's motion because no judgment had been entered as to Logsdon. (See Winters v. Jordan, No. 10-17829, Order, Jan. 25, 2011, Dkt. No. 4 (9th Cir.); see also Exhibit to Suppl. Bacon Decl., Feb. 10, 2011, Dkt. No. 244.)

On November 12, 2010, Logsdon filed the pending motion for anti-SLAPP attorneys' fees and costs. Plaintiffs filed a written opposition, but that opposition, as with plaintiffs' opposition to Ford's motion, does not address the basis for the fee and cost award sought, i.e., the anti-SLAPP statute. (Dkt. No. 220.) On February 17, 2011, the undersigned conducted a hearing on several motions, including Logsdon's motion for fees and costs, and plaintiffs failed to appear. (See Minutes, Dkt. No. 255.) On February 24, 2011, Logsdon filed, as ordered by the court, a supplemental ...


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