United States District Court, S.D. California
TOMMY GARRISON, an individual, and CHRISTINE GARRISON, an individual, Plaintiffs,
REGINALD BUDDY RINGGOLD, III aka Rasool Abdul Rahim El, an individual, ROSEGOLD INVESTMENTS, LLP, a Delaware Partnership, and MASTER INVESTMENT GROUP, INC., a California Corporation, Defendants.
ORDER GRANTING IN PART
PLAINTIFFS/COUNTERDEFENDANTS' MOTION FOR ATTORNEY'S
FEES [Dkt. No. 33.]
Gonzalo P. Curiel United States District Judge.
the Court is Plaintiffs/Counterdefendants' motion for
attorney's fees pursuant to the anti-SLAPP statute under
California Code of Civil Procedure section 425.16(c). (Dkt.
No. 33.) Defendant/Counterclaimant Reginald Buddy Ringgold,
III filed an opposition. (Dkt. No. 38.)
Plaintiffs/Counterdefendants replied. (Dkt. No. 39.) Based on
the reasoning below, the Court GRANTS in PART Plaintiffs'
motion for attorney's fees.
Tommy Garrison, who is over 65 years old, and his wife,
Plaintiff Christine Garrison (collectively
“Plaintiffs” or “Garrisons”) filed a
complaint for securities violations and financial elder abuse
against Defendant Reginald Buddy Ringgold, III aka Rasool
Abdul Rahim El, (“Defendant” or
“Ringgold”), Rosegold Investments LLP, and Master
Investment Group, Inc. (Dkt. No. 1, Compl. ¶¶ 16, 21,
22.) On May 13, 2019, the Court granted in part and denied in
part Defendant Ringgold's motion to dismiss with leave to
amend. (Dkt. No. 16.) On May 28, 2019, Plaintiffs filed an
amended complaint alleging the same three causes of action.
(Dkt. No. 17.) Defendant Ringgold, proceeding pro se, filed
an answer and a counterclaim. (Dkt. No. 18.) The counterclaim
alleged malicious prosecution and abuse of process,
defamation, emotional distress, and sought punitive damages.
(Dkt. No. 18 at 18-20.) On July 9, 2019,
Plaintiffs/Counterdefendants filed a motion to strike the
counterclaims under California's anti-Strategic Lawsuit
Against Public Participation (“anti-SLAPP
statute”) pursuant to California Code of Civil
Procedure section 425.16(e)(4), or in the alternative, motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6).
(Dkt. No. 20.) Defendant/Counterclaimant did not file an
opposition. On August 26, 2019, the Court granted the
Garrisons' motion to strike and dismissed the
counterclaims as unopposed. (Dkt. No. 20.) In that order, the
Court denied without prejudice Plaintiffs' request for
attorney's fees as they did not demonstrate that they
were “prevailing parties” as required under the
anti-SLAPP statute. On September 13, 2019, Plaintiffs filed a
motion for attorney's fee under the anti-SLAPP statute
seeking fees in the amount of $8, 150.00. (Dkt. No. 33.) On
this motion, Ringgold filed an opposition. (Dkt. No. 38.) The
Garrisons also filed a reply. (Dkt. No. 39.)
Prevailing Parties under anti-SLAPP Statute
anti-SLAPP statute provides that “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 the anti-SLAPP
statute, an award of attorney's fees to a prevailing
defendant is mandatory. Christian Research Inst. v.
Alnor, 165 Cal.App.4th 1315, 1321 (2008). The anti-SLAPP
statute is “intended to compensate a defendant for the
expense of responding to a SLAPP suit. To this end, 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.” Graham-Sult v. Clainos, 756 F.3d
724, 752 (9th Cir. 2014) (quoting Wanland v. Law Offices
of Mastagni, Holstedt & Chiurazzi, 141 Cal.App.4th
15, 21 (2006)).
Garrisons, relying on Gottesman v. Santana, 263
F.Supp.3d 1034, 1043-44 (S.D. Cal. 2017), argue they are
prevailing parties under the anti-SLAPP statue even if the
anti-SLAPP motion was unopposed or the action was voluntarily
dismissed after the anti-SLAPP motion was filed. Ringgold
responds that due to recent hardships, he was unable to file
an opposition to the motion to strike because he was homeless
for a couple of months and was unable to access the internet
to view the courthouse records.
Gottesman, the district court recognized a split in
California courts in “determining whether a defendant
is a prevailing defendant under the anti-SLAPP statute when
that defendant has been voluntarily dismissed from the
action” and followed the pragmatic approach of
Coltrain v. Shewalter, 66 Cal.App.4th 94, 107
(1998), an analysis that most federal courts follow.
Gottesman, 263 F.Supp.3d at 1043. This Court also
recently relied on the reasoning in Gottesman.
See Primacy Eng'g, Inc. v. ITE, Inc., Case No.
18cv1781-GPC(MDD), 2019 WL 2059668, at *3-4 (S.D. Cal. May 9,
2019) and applied it to dismissal due to Plaintiff's
non-opposition to a motion to dismiss. (Case No.
18cv1781-GPC(MDD), Dkt. No. 45 at 4 (S.D. Cal. Jan. 4, 2019)
(citing Pfeiffer Venice Properties v. Bernard, 101
Cal.App.4th 211, 218 (2002) (“[A] defendant who has
been sued in violation of his or her free speech rights is
entitled to an award of attorney fees . . . even if the
matter has been dismissed prior to the hearing on that
motion.”); Wilkerson v. Sullivan, 99
Cal.App.4th 443, 446 (2002); Plevin v. City and Cnty. of
San Francisco, No. C 11-02359 CW, 2011 WL 3240536, at *4
(N. D. Cal. July 29, 2011)).
court of appeal in Coltrain noted that when
“the plaintiff voluntarily dismisses an alleged SLAPP
suit while a special motion to strike is pending, the trial
court has discretion to determine whether the defendant is
the prevailing party for purposes of attorney's fees
under Code of Civil Procedure section 425.16, subdivision
(c).” Coltrain, 66 Cal.App.4th at 107. A SLAPP
plaintiff's voluntary dismissal or failure to oppose a
motion to dismiss raises a rebuttable presumption that the
defendant is the prevailing party. Id. Then a
plaintiff “may try to show it actually dismissed
because it had substantially achieved its goals through a
settlement or other means, because the defendant was
insolvent, or for other reasons unrelated to the probability
of success on the merits.” Id. In determining
whether to exercise their discretion to deem a defendant a
prevailing party, courts must consider the “critical
issue” of “which party realized its objectives in
the litigation.” Id. In Coltrain, the
SLAPP plaintiffs dismissed the case after the anti-SLAPP
motion was filed because they ran out of money yet they did
not produce any evidence so the presumption was not rebutted.
Id. The court of appeal held that the trial court
correctly concluded that the defendants were the prevailing
parties. Id. at 108.
because Ringgold did not oppose the motion to strike, a
presumption arises that the Garrisons are the prevailing
parties. In opposing the attorney's fee motion, Defendant
explains that he is proceeding pro per and suffered recent
hardship which caused him to become homeless for a couple of
months preventing him from accessing the internet in order to
access the courthouse records. (Dkt. No. 28.) Therefore, he
claims he was unable to file an opposition to the anti-SLAPP
motion before the deadline.
Ringgold has not provided any evidence, such as by
declaration, to support his claim that he suffered hardship
and was unable to access the court's docket or file his
opposition because he did not have access to the internet. He
also does not state when he was homeless. Moreover, even if
Ringgold was homeless, he had the option to access the court
records by visiting the Clerk's Office. The Court notes
that Ringgold attended an Early Neutral Evaluation conference
with the Magistrate Judge on August 16, 2019, prior to the
Court's ruling. (See Dkt. No 24.) On that date,
he could have visited the Clerk's Office to look up his
case and could have sought an extension of time to file a
late opposition. He does not claim that he never received the
anti-SLAPP motion, filed on July 9, 2019, or the Court's
order ruling on the motion filed on August 26, 2019. After he
received the Court's order granting dismissal of the
counterclaim, he could also have sought relief from the
Court's order. Ringgold did not object until he filed his
opposition to the instant motion on October 10, 2019. (Dkt.
No. 38.) Thus, by failing to produce any evidence to support
his argument, the Court concludes that Ringgold has failed to
rebut the presumption that the Garrisons are the prevailing
parties under section 425.16(c). See Coltrain, 66
Cal.App.4th at 107 (presumption not rebutted due to failure
to produce any evidence). The Garrisons are prevailing
parties under the anti-SLAPP statute and the Court now
considers what amount of attorney's fees are reasonable.
Amount of Attorney's Fees
district court has wide discretion in determining the
reasonableness of attorney's fees. Gates v.
Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992).
California courts use the lodestar method to compute attorney
fees. See Ketchum v. Moses, 24 Cal.4th 1122, 1133-36
(2001); Serrano v. Priest, 20 Cal.3d 25, 48-49
(1977). The lodestar method is calculated on the
“careful compilation of the time spent and reasonably
hourly compensation of each attorney.”
Ketchum, 24 Cal.4th at 1131-32 (quoting
Serrano, 20 Cal.3d at 48). The 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 precluded other employment by
the attorneys, (4) the contingent nature of the fee
award.” Ketchum, 24 Cal.4th at 1132. Plaintiff
has the burden to establish entitlement to fees and provide
supporting evidence. See Hensley v. Eckerhart, 461
U.S. 424, 437 (1983). The Court may reduce an award based on