2017-00210530-CU-DF

Martin Straznicky vs. Dignity Health

Nature of Proceeding: Motion for Attorney Fees

Filed By: Kilduff, Carolee G.

Defendant Russell’s motion for attorney fees and costs following his successful special anti-SLAPP motion to strike plaintiff Straznicky’s First Amended Complaint (“1AC”) is UNOPPOSED and GRANTED IN PART, as follows.

Factual Background

The present action was commenced on 3/28/2018 and the operative 1AC purports to assert four separate causes of action for defamation along with one for intentional infliction of emotional distress (“IIED”). Plaintiff is a physician whose hospital privileges were in 2014 suspended by defendant Dignity Health in response to allegations by various hospital employees. He alleges that when they learned plaintiff might be regain his privileges, certain employees “falsely and maliciously” reported to the FBI on or about 4/5/2016 that he had made threats against staff members.

The 1AC asserts that in investigating the reports about plaintiff, the FBI telephoned Dignity Health seeking to speak with plaintiff and when asked the reason for the call, “the FBI stated in very general terms…Plaintiff ‘may’ pose a ‘potential’ threat but… there were no stated threats to any specific individuals…” (1AC, ¶17.) On or about 4/6/2016 defendant Russell, a Dignity Health employee, wrote and posted a BOLO (i.e

., be on the lookout for) “falsely indicating that Plaintiff is a ‘person of interest to the FBI’ for a ‘credible threat to Dignity Health staff and leadership’.” (1AC, ¶18.) Plaintiff maintains that Dignity Health was not told that he was a “person of interest” or had made “credible threats” against staff but the BOLO was subsequently “posted on the

walls of all of the Dignity Hospital[s], including, but not limited to, Methodist, Mercy San Juan, Mercy General, and Mercy Folsom, with a photo of Plaintiff.” (1AC, ¶19.) It is also alleged that an email regarding the warning about plaintiff was sent to all Dignity Health employees and that the latter contacted CBS Channel 13 in Sacramento which republished the defamatory statements on the news, adding that plaintiff was wanted by the FBI. (1AC, ¶¶19, 22-23.) Finally, plaintiff contends there additional false rumors that he had made threats in a Facebook posting. (1AC, ¶26.)

Defendant Russell alone moved to strike the entirety of the 1AC pursuant to Code of Civil Procedure §425.16, claiming plaintiff had no “probability of prevailing” on the merits because Russell’s publication was to interested persons (i.e., security personnel and potential victims of the reported threat) and thus privileged, and because the publication was neither outrageous nor intended to cause emotional harm to plaintiff. Although plaintiff opposed, the motion was ultimately granted in its entirety.

Moving Papers. Having prevailed on his anti-SLAPP motion, defendant Russell now seeks an award of $29,055 for those attorney fees and costs incurred in connection with not only the anti-SLAPP motion but also the present motion. According to the moving papers, the following fees were incurred in connection with the anti-SLAPP motion:

Atty Kilduff (Partner) $250/hr. x 32.7 hrs. = $ 8,175
Atty Whitesides (Partner) $250/hr. x 18.6 hrs. = $ 4,650
Atty Blocher (Associate) $225/hr. x 54.3 hrs. = $ 12,217.50
$25,042.50

Additionally, the fees incurred in connection with the preparing the moving papers for the present motion are listed as follows:

Atty Kilduff $250/hr. x 1.5 hrs. = $ 375 (not $750 as claimed)
Atty Blocher $225/hr. x 10.5 hrs. = $2,362.50
$2,737.50 (not $3,112.50 as claimed)

Defendant Russell anticipates the following fees for reviewing the opposition, preparing the reply and attending the hearing:

Atty Blocher $225/hr. x 4 hrs. = $900

Opposition. The court notes that plaintiff failed to (timely) file any opposition to the present motion.

Analysis

Although the present motion is unopposed, the court finds holds that the 105-plus hours spent in connection with the anti-SLAPP motion is unreasonably excessive. In particular, the 54.3 hours billed by attorney Blocher is not justified and thus, given that the two partners working on this matter together billed just over 50 hours, attorney Blocher’s hours will be reduced by roughly 40% to 32.6 hours or $7,335. When combined with the two partners’ billing of $8,175 and $4,650, defendant Russell may recoup fees of no more than $20,160 relative to the earlier anti-SLAPP proceedings.

Likewise, defendant’s claim for over $3,100 in fees for 12 hours of attorney time to

prepare the present motion for fees is not reasonably necessary since the moving papers here required little more than a statement that defendant Russell prevailed on the anti-SLAPP motion followed by a summary of the fees and costs incurred. Thus, the court finds that no more than three hours (1.5 hours at $250/hr. and 1.5 hours at $225/hr.) for preparation of the moving papers is reasonable under the circumstances, meaning that only $712.5 ($375+$337.50) will be recoverable along with the $60 motion fee. In light of plaintiff’s failure to oppose the present motion, the court declines to award defendant any fees for reviewing the opposition, preparing a reply and/or attending oral argument.

Conclusion

Defendant Russell is awarded total fees and costs in the amount of $20,932.50, representing $20,160 for the anti-SLAPP motion, $712.50 for preparation of the present motion and the $60 motion fee.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)