TENTATIVE RULING:

Defendant’s Motion for Attorney’s Fees and Costs in the amount of $13,805 is granted in part. Defendant is awarded total costs and fees of $12,342.50. [$9432.50 (special motion to strike) + $1925 (motion for attorney’s fees) + $985 in costs.]

CCP 425.16 mandates an award of fees to a defendant who prevails on a SLAPP motion.

“(c)(1) Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs….” (CCP 425.16(c))

Thus, defendant is entitled to its fees. The determination of the reasonable amount of fees is committed to the discretion of the trial court. In making this determination, the trial court considers the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)

In general, the court finds the time spent on this matter reasonable. In particular, it was reasonable for defendant to make an ex parte application to advance the hearing date given the time frame for hearing a special motion to strike. The court notes however that defendant billed for both the attorney who did the lion’s share of the work (Richman) and an apparently more senior attorney (Cousineau) who the billing record indicates reviewed, revised, and strategized. Defendant may, of course, elect to have two different attorneys work on the same motion. But, there appears to be a duplication of effort and the court will thus disallow the time billed by Cousineau (3.9 hours at $375/hour = $1462.50).

The court further notes that Cousineau’s time strategizing re co-defendant 24-Hour Fitness’s request for a declaration from plaintiff ($75) and strategizing re the assignment of the case to a new judge ($150) would have been disallowed in any event as these do not appear to have been necessary for the SLAPP motion.

In all other respects, the court finds the time spent on the special motion to strike and in bringing this motion for attorney’s fees, as well as the $275 billing rate, were reasonable. Accordingly, the court awards defendant $12,342.50 in attorney’s fees and costs ($13,805 – $1462.50 = $12,342.50). [$9432.50 (for the special motion to strike) + $1925 (for the motion for attorney’s fees) + $985 (for costs) = total costs and fees of $12,342.50.]

The court finally notes that defendant contends it was not timely served with the opposition and asks the court to disregard it. However, as a Reply was filed on the merits, any service issue has been mooted and the opposition has thus been considered.

2013-00649217