United States District Court, S.D. California
CRITICAL CARE DIAGNOSTICS, INC., dba CRITICAL CARE DIAGNOSTICS, Plaintiff,
AMERICAN ASSOCIATION FOR CLINICAL CHEMISTRY, INC., et al. Defendants.
ORDER GRANTING IN PART AACC'S MOTION FOR ATTORNEYS' FEES AND COSTS [doc. #70]
M. JAMES LORENZ, District Judge.
The American Association for Clinical Chemistry, Inc. ("AACC" or "publisher defendant") moved to strike plaintiff's entire complaint under the California anti-SLAPP statute, California Code of Civil Procedure § 425.16. Plaintiff's complaint included causes of action for libel per se, libel per quod, trade libel, and violation of California Business & Professions Code §17200, et seq. After full briefing, the Court granted AACC's special motion to strike all four counts and dismissed the complaint. AACC now moves for attorneys' fees and costs. The motion is considered without oral argument.
1. Legal Standard for Attorneys' Fees Under § 425.16
The "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)(1). "[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees." Ketchum v. Moses, 24 Cal.4th 1122, 1131 (2001). "[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. To determine the reasonable number of hours billed, courts are to evaluate the time expended, the nature of and need for the services performed, and the relevant fee records. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983).
An award of fees and costs in an anti-SLAPP case must be reasonable, and courts have broad discretion in determining what is reasonable. See Metabolife Intern., Inc. v. Wornick, 213 F.Supp.2d 1220, 1222 (S.D. Cal. 2002). The degree of success obtained is the most critical factor in determining a reasonable fee. Farrar v. Hobby, 506 U.S. 103, 114 (1992).
Defendant seeks $97, 510.84 in attorneys' fees and $181.16 in costs. In support of its request, defendant provides invoices, Exhibits 1 through 4, that were prepared and sent to the client in the normal course of business. Additional time sheets were attached to defendant's reply memorandum. [doc. #76]
a. Hours Billed
Plaintiff argues that the Court should not award attorneys' fees for actions unrelated to the anti-SLAPP motion, including time expended prior to the filing of the anti-SLAPP motion. The anti-SLAPP statute is "intended to compensate a defendant for the expense of responding to a SLAPP suit. The provision is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit." Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi, 45 Cal.Rptr.3d 633, 637 (Ct. App. 2006) (citation omitted) (internal quotation marks omitted). Here, AACC incurred expenses in removing the action and answering the complaint in addition to moving to strike plaintiff's lawsuit. After removal, defendant was able to successfully strike all four claims which resulted in dismissal of the action in its entirety. Thus defendant is entitled to attorneys' fees for activities occurring prior to the filing of the anti-SLAPP motion.
Further, "work that is inextricably intertwined with an anti-SLAPP motion is also compensable." Braden v. BH Financial Services, Inc., 2014 WL 892897, *5 (N.D. Cal. 2014) (citing Graham-Sult v. Clainos, 2012 WL 994754, at *4 (N.D. Cal. Mar. 23, 2012) (granting defendants' fee requests for work performed directly on anti-SLAPP motion, in addition to "inextricably intertwined" work on indemnity and case management issues), affirmed in part and vacated in part by Graham-Sult v. Clainos, 12-15892, 2013 WL 6820452 (9th Cir. Dec. 27, 2013) ("district court did not abuse its discretion by awarding fees for these activities").
AACC filed an Answer and a special motion to strike. Although AACC limited its motion practice to the special motion to strike, plaintiff argues that based on the time sheets submitted, AACC's counsel charged 30 hours, totaling $11, 030.00 in fees, for work solely related to researching personal jurisdiction and drafting an unfiled Rule 12(b)(2) motion. The unfiled motion to dismiss, according to plaintiff, is unrelated to the anti-SLAPP motion and therefore, AACC should not be compensated. However, AACC contends that research on the issue of personal jurisdiction was inextricably intertwined with the defense of the action.
In Kearney v. Foley and Lardner, 553 F.Supp.2d 1178 (S.D. Cal. 2008), defendants filed a motion to strike the pendant state law claims and a motion to dismiss federal claims. Defendants argued that because "all of plaintiff's claims involve[d] a common core of facts and [were] based on related legal theories, all the fees in preparing the motion to strike and to dismiss should be recoverable because they were "in connection with" the motion to strike and were "necessary to prevail." Id. at 1183. The Court noted that defendants' motions to strike and to dismiss were based entirely on a common factual scenario, and some of plaintiff's challenged claims were based on the Noerr-Pennington doctrine or the related litigation privilege or both. But there were other claims including RICO, conspiracy to commit RICO violations, and 42 U.S.C. § 1983. In denying attorneys' fees for defendant's motion to dismiss the RICO claims and the § 1983 claims, the Court reasoned mere common issues of fact are insufficient to award all fees when legal theories do not overlap or are not inextricably intertwined. Id.
In the present case, the motion to dismiss for lack of personal jurisdiction neither overlaps nor is inextricably intertwined with the anti-SLAPP issues. Accordingly, the Court will not award attorneys' fees for time related to the issue of personal jurisdiction.
Plaintiff also argues that the legal research time expended on the anti-SLAPP motion, 38.8 hours, was excessive give counsel's experience with anti-SLAPP motions. Notwithstanding counsel's experience, the threshold issues, i.e., whether statements found in a journal and on-line journal article occurred in a public forum or were matters of public concern, were somewhat complicated and unusual, and resulted in finding the common interest ...