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Chipman v. Nelson

United States District Court, E.D. California

September 11, 2019

MARCIA F. NELSON, et al., Defendants.



         This matter is before the Court pursuant to Defendant Jane Stansell's (“Defendant”) Motion for Attorney's Fees. (ECF No. 585.) Plaintiff Rickie Chipman (“Plaintiff”) opposes Defendant's motion. (ECF No. 587.) The Court has carefully considered the arguments raised by both parties. For the reasons set forth below, Defendant's Motion for Attorney's Fees and Costs is hereby DENIED without prejudice.

         I. Factual and Procedural Background

         Plaintiff sued all Defendants on October 20, 2011, alleging violations of civil and Constitutional rights under 42 U.S.C. § 1983, and asserting several state law claims. (See ECF No. 1 at 7.) In February 2012, Defendants filed their first motion to dismiss and special motion to strike the state law claims pursuant to Cal. Code. Civ. Proc. § 425.12. (See ECF No. 25.) Plaintiff filed an opposition that same month. (ECF No. 49.) The magistrate judge construed the motion as a motion to amend Plaintiff's complaint and granted it. (See ECF No. 64.) Plaintiff filed a first amended complaint on March 30, 2012. (ECF No. 74.) Thereafter, Plaintiff was allowed to amend and refile a second, third, fourth, and fifth amended complaint. (ECF Nos. 154, 180, 246, & 336.) Plaintiff's fifth amended complaint contained only state law claims. (See ECF No. 336.) Defendant filed a motion to dismiss and strike each one of Plaintiff's subsequent amended complaints, totaling 5 motions to strike under California's Anti-SLAPP statute since the inception of this litigation. (See ECF Nos. 25, 96, 187, 248, & 344.) In September 2015, this Court adopted the findings and recommendations of the magistrate judge (ECF No. 403) and granted Defendant's motion to dismiss without leave for Plaintiff to amend (ECF No. 408). Judgment was entered for Defendant on October 13, 2017. (ECF No. 578.)

         In November 2017, Defendant filed a Motion for Attorney Fees, requesting $87, 312.50 in fees. (ECF No. 585.) Plaintiff filed an Opposition to Defendant's Motion for Attorney Fees, however, the opposition does not address the basis for the fee and the cost award sought, i.e., the anti-SLAPP statute; it merely attempts to re-allege Plaintiff's original allegations. (See ECF No. 587.)

         II. Legal Standard

         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); 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) (“[W]e 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 Erie analysis set forth in Lockheed the anti-SLAPP statute may be applied to state law claims which, as in this case, are asserted pendent to federal question claims.”).

         Regarding attorneys' fees and costs, the California anti-SLAPP statute provides, in part, that except in certain specific circumstances, “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). 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 (2001). “[T]he Legislature intended that a prevailing defendant on a motion to strike be allowed to recover attorney fees and costs only on the motion to strike, not the entire suit.” Lafayette Morehouse, Inc. v. Chronicle Publ'g Co., 39 Cal. App 4th 1379, 1383 (1995). A successful defendant is also entitled to fees incurred in filing the motion for anti-SLAPP fees, also referred to as “fees on fees.” Ketchum, 24 Cal.4th at 1141.

         The California Supreme Court has presumed that the California Legislature intended for anti-SLAPP fees to be calculated using the “lodestar” approach but did not intend to require use of the lodestar approach. See Ketchum, 24 Cal.4th at 1136. In addressing fee-shifting statutes other than the anti-SLAPP statute, the Ninth Circuit 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). 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. 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 (“[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.”). In Kethcum, the court considered adjustment of 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.

         Although the Ninth Circuit has not expressly held that the anti-SLAPP statute's fees provision applies to state law claims over which the district court has supplemental jurisdiction, it 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 dismiss the § 1983 malicious prosecution claim and the anti-SLAPP motion to strike the defamation claim. It is undisputed that the City is entitled to fees for having prevailed on the anti-SLAPP motion.”).

         III. Analysis

         It is undisputed that Defendant is the prevailing party with regard to her motion to dismiss and the anti-SLAPP motion. (See ECF No. 408.) Defendant successfully moved the Court to dismiss all of Plaintiff's claims without leave to amend. (See ECF No. 403 at 30; ECF No. 408.) Plaintiff offers no substantive basis in opposition to an award of fees and costs under California's anti-SLAPP statue. (See ECF No. 587.) Plaintiff merely attempts to re-assert her original causes of action against Defendant which were dismissed without leave to amend. (See ECF No. 587.) And, as set forth above, the Court finds Defendant is entitled to an award of fees, generally speaking. Thus, all that remains is the calculation of the appropriate fee award to which Defendant is entitled. Plaintiff only specifically opposes $1000 in fees for a meeting and an agreement, and otherwise uses her opposition to provide a lengthy narrative of the facts and history of the case. (See ECF No. 587 at 4.)

         A. Award of Fees and Costs to Which Defendant is Entitled Although

         Defendant is entitled to recover mandatory attorneys' fees and costs pursuant to the anti-SLAPP statute, the records submitted in support of Defendant's motion do not substantiate that Defendant is entitled to recover the roughly $87, 312.50 sought. Claimants bear the burden of documenting the appropriate hours expended in the litigation. United States v. Biotronik, Inc., No. 2:09-CV-3617-KJM-EFB, 2015 WL 1291371, at *5 (E.D. Cal. Mar. 20, 2015). The billing records submitted here do not provide ...

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