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Kevin Moreau v. the Daily Independent

March 1, 2013

KEVIN MOREAU,
PLAINTIFF,
v.
THE DAILY INDEPENDENT,
DEFENDANT.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ON MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS (Doc. 18) PRELIMINARY STATEMENT TO PARTIES AND COUNSEL

Judges in the Eastern District of California carry the heaviest caseload in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. This Court cannot address all arguments, evidence and matters raised by parties and addresses only the arguments, evidence and matters necessary to reach the decision in this order given the shortage of district judges and staff. The parties and counsel are encouraged to contact the offices of United States Senators Feinstein and Boxer to address this Court's inability to accommodate the parties and this action. The parties are required to consider consent to a Magistrate Judge to conduct all further proceedings in that the Magistrate Judges' availability is far more realistic and accommodating to parties than that of U.S. District Judge Lawrence J. O'Neill who must prioritize criminal and older civil cases.

INTRODUCTION

Plaintiff Kevin Moreau ("Moreau") filed this action against Defendant The Daily Independent ("TDI") for libel and "intentional tort" relating to an article TDI published on the motorcycle accident that resulted in the death of Moreau's son Staff Sergeant Kirk Collado ("Collado"). On January 8, 2013, the Court granted TDI's motion to strike Moreau's complaint pursuant to California's anti-Strategic Lawsuit Against Public Participation ("anti-SLAPP") statute, Cal. Code Civ. Proc. § 425.16. Before the Court is TDI's motion for award of attorneys' fees and costs pursuant to Cal. Code Civ. Proc. § 425.16(c). Moreau did not file an opposition. This Court considered TDI's motion for attorneys' fees and costs on the record and VACATES the March 13, 2013 hearing, pursuant to Local Rules 230(c) and 230(g). For the reasons discussed below, this Court GRANTS WITH REDUCTION TDI's motion for award of attorneys' fees and costs.

BACKGROUND

On September 20, 2012, Moreau filed suit against TDI in the Kern County Superior Court for libel and "intentional tort" in relation to an article published by TDI regarding a motorcycle collision that resulted in the death of Collado. Moreau based his claims on the publication of a statement in the article by Sergeant Jed McLaughlin that "Alcohol and drugs may have played a role in the collision." Moreau sought $26 million in damages.

TDI timely removed the action to this Court on November 13, 2012 and filed a motion to strike pursuant to the anti-SLAPP statute on December 11, 2012. Moreau did not file an opposition. TDI nonetheless filed a reply on December 31, 2012. This Court granted TDI's motion to strike on January 8, 2013.

TDI filed the instant motion for award of attorneys' fees and costs pursuant to the anti-SLAPP statute on Feb. 4, 2013. Moreau again did not file an opposition.

DISCUSSION

Motion for Attorneys' Fees and Costs

A.Legal Standard

The anti-SLAPP statute provides that, "[i]n any action subject to [the special motion to strike], a prevailing defendant ... shall be entitled to recover his or her attorney's fees and costs." Cal.Code Civ. Pro. § 425.16(c).*fn1 Therefore, any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees. "The fee-shifting provision was apparently intended to discourage such strategic lawsuits against public participation by imposing the litigation costs on the party seeking to 'chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.'" Ketchum v. Moses, 24 Cal. 4th 1122, 1131 (2001) (quoting Cal.Code Civ. Pro. § 425.16(a)). "The fee-shifting provision also encourages private representation in SLAPP cases, including situations when a SLAPP defendant is unable to afford fees or the lack of potential monetary damages precludes a standard contingency fee arrangement." Id.

The California Supreme Court has interpreted the terms of the anti-SLAPP statute to permit the use of the lodestar adjustment method it outlined in Serrano v. Priest, 20 Cal.3d 25, 141 (1977). Id. "Under Serrano III, 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.'" Id. at 1131-32 (citing Serrano, 20 Cal.3d at 141). In referring to "reasonable" compensation, the Supreme Court instructed that, "trial courts must carefully review attorney documentation of hours expended; 'padding' in the form of inefficient or duplicative efforts is not subject to compensation." Id. at 1132. Lodestar may be adjusted by the Court based on factors including "(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 ...


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