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Stanley P. Berman v. Julie Mcmanus

April 25, 2012


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


Presently before the court is defendant Leane Renee's unopposed motion for mandatory attorneys' fees and costs (Dkt. No. 44) brought pursuant to California's anti-SLAPP*fn1 statute, Cal. Civ. Proc. Code § 425.16(c).*fn2 Renee seeks a total award of $17,588.48. Because oral argument would not materially aid the resolution of the pending motion, this matter was submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). The undersigned has fully considered Renee's motion and appropriate portions of the record in this case and, for the reasons that follow, grants Renee's unopposed motion in part.

The undersigned awards Renee $15,342.75 in reasonable attorneys' fees and $20.40 in costs, for a total award of $15,363.25.


Plaintiff's complaint concerns an underlying marital and child custody dispute

between plaintiff and his ex-wife that proceeded in the California Superior Court for the County of Nevada ("Superior Court"). Relevant here, the complaint alleges that Leane Renee is an attorney who the Superior Court appointed in May of 2008 to serve as counsel for the two minor children at the center of the Superior Court proceedings.*fn3 (Compl. ¶ 11.) Plaintiff alleged the following claims against Renee: (1) fraud, alleging that Renee's fraudulent actions "deprived plaintiff of his constitutional rights to a familial relationship with his daughters" (Compl. ¶ 16);

(2) intentional infliction of emotional distress (id. ¶ 18); (3) negligent infliction of emotional distress (id. ¶ 19); and (4) conspiracy to slander plaintiff (id. ¶ 22). In regards to plaintiff's claim of fraud alleged against Renee, the court "broadly construe[d] this claim, out of an abundance of caution, as seeking relief pursuant to California law and 42 U.S.C. § 1983." (See Order and Findings and Recommendations, May 31, 2011, at 24 (emphasis in original), Dkt. No. 32.)

In response to plaintiff's complaint, Renee filed a motion entitled "Anti-SLAPP Special Motion to Strike Plaintiff's Complaint/Motion to Dismiss" (Dkt. No. 8). The court granted Renee's anti-SLAPP motion in regards to plaintiff's common law claims of fraud, intentional infliction of emotional distress, negligent infliction of emotional distress, and slander. (See Order and Findings and Recommendations, May 31, 2011, at 28-29, adopted in full by Order, July 28, 2011, Dkt. No. 40.) However, the court did not grant the anti-SLAPP motion to the extent that plaintiff's fraud claim consisted of a claim alleging constitutional violations pursuant to 42 U.S.C. § 1983 because the anti-SLAPP statute cannot be used to strike federal claims. (See Order and Findings and Recommendations, May 31, 2011, at 13, 24-25.) As to plaintiff's Section 1983 claim, the court granted Renee's motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Order and Findings and Recommendations, May 31, 2011, at 29-31.) Accordingly, the court dismissed all of plaintiff's claims against Renee. (See Order, July 28, 2011, at 2.) Renee subsequently filed the pending motion for attorneys' fees and costs pursuant to the anti-SLAPP statute's mandatory fee and cost award provision. See Cal. Civ. Proc. Code § 425.16(c).*fn4


A party may bring an anti-SLAPP special motion to strike in federal court.

Thomas v. Fry's Elecs., Inc., 400 F. 3d 1206, 1206-07 (9th Cir. 2005) (per curiam); Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003). A party may seek to specially strike state law claims brought in federal court on the basis of the court's diversity subject matter jurisdiction and state law claims that are supplemental to federal claims in an action premised on federal question jurisdiction. See Hilton v. Hallmark Cards, 599 F.3d 894, 900 n.2 (9th Cir. 2010) (stating that "we have long held that the anti-SLAPP statute applies to state law claims that federal courts hear pursuant to their diversity jurisdiction") (citing United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 970-73 (9th Cir. 1999)); Globetrotter Software, Inc. v. Elan Computer Group, Inc., 63 F. Supp. 2d 1127, 1130 (N.D. Cal. 1999) ("[I]t appears that under the Erieanalysis set forth in Lockheedthe anti-SLAPP statute may be applied to state law claims which, as in this case, are asserted pendent to federal question claims.").*fn5

In regards to attorney's fees and costs, California's anti-SLAPP statute provides, in relevant part, that except in circumstances not present here, "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." Cal. Civ. Proc. Code § 425.16(c) (emphasis added). Under California law, "any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees." Ketchum v. Moses, 24 Cal. 4th 1122, 1131, 17 P.3d 735, 741 (2001).*fn6 The successful defendant is also entitled to fees incurred in filing the motion for anti-SLAPP fees, also referred to as "fees on fees." Id. at 1141, 17 P.3d at 747.

The California Supreme Court has presumed that the Legislature intended for anti-SLAPP fees to be calculated using the "lodestar" approach, but does not require use of the lodestar approach. See Ketchum, 24 Cal. 4th at 1136, 17 P.3d at 744; accord Mann v. Quality Old Time Serv., Inc., 139 Cal. App. 4th 328, 342, 42 Cal. Rptr. 3d 607, 616 (Ct. App. 2006). The undersigned finds that the lodestar approach is appropriate here. In addressing fee-shifting statutes other than the anti-SLAPP statute, the Ninth Circuit Court of Appeals has stated that the "'lodestar' is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate." Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citation omitted). It has further held that "[a]lthough in most cases, the lodestar figure is presumptively a reasonable fee award, the district court may, if circumstances warrant, adjust the lodestar to account for other factors which are not subsumed within it." Id. (citation omitted). The California Supreme Court's description of the lodestar method, as applied in the anti-SLAPP context, is in accord. See Ketchum, 24 Cal. 4th at 1131-32, 17 P.3d at 741 (stating that "a court assessing attorney fees begins with a touchstone or lodestar figure, based on the careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case.") (citations and quotation marks omitted). The California Supreme Court has advised that courts may adjust the lodestar in consideration of factors such as: "(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, (4) the contingent nature of the fee award." Id. at 1132, 17 P.3d at 741.

The Ninth Circuit Court of Appeals has held that the anti-SLAPP statute's fee provision applies in federal court where the case is premised on the court's diversity jurisdiction. See, e.g., Thomas, 400 F.3d at 1206; Verizon Del., Inc. v. Covad Commc'ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004). Although it does not appear that the Court of Appeals has expressly held that the anti-SLAPP statute's fee provision applies to state law claims over which the district court exercises supplemental jurisdiction, it recently acknowledged that a party who prevailed on its anti-SLAPP motion that was combined with a motion to dismiss a Section 1983 claim was entitled to anti-SLAPP fees. See Fabbrini v. City of Dunsmuir, 631 F.3d 1299, 1302 (9th Cir. 2011) ("In the district court, the City filed in a single pleading the motion to ...

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