Case Number: BC687731 Hearing Date: May 31, 2018 Dept: 37

CASE NAME: Abir Cohen Treyzon Salo, LLP, et al. v. Tran, et al.

CASE NO.: BC687731

HEARING DATE: 5/31/18

DEPARTMENT: 37

CALENDAR NO.: 7

NOTICE: OK

SUBJECT: Special Motion to Strike the First Amended Complaint (Code Civ. Proc., § 425.16)

MOVING PARTY: Defendant Arta Lahiji

OPPOSING PARTY: Plaintiffs Abir Cohen Treyzon Salo, LLP and Alexander Cohen
COURT’S TENTATIVE RULING

The court GRANTS Defendant Arta Lahiji’s special motion to strike the Complaint and GRANTS Defendant’s request for reasonable attorney’s fees and costs in the amount of $12,590. Counsel for Defendant Arta Lahiji to give notice.
STATEMENT OF THE CASE

This case arises from allegations that Defendants Dr. Arta Lahiji, M.D. (“Arta Lahiji”) and Dr. Thuy Tran, M.D. (“Tran”) posted defamatory statements regarding Plaintiffs Abir Cohen Treyzon Salo, LLP and Alexander Cohen (collectively “Abir Cohen”). Plaintiffs filed the Complaint on December 19, 2017, alleging one cause of action for defamation.

Plaintiffs’ claims against Arta Lahiji center on allegedly defamatory posts she allegedly made on internet sites including Yelp, Avvo, Facebook, and Google. The Complaint alleges that the posted statements of fact are demonstrably false because Plaintiffs have never represented Arta Lahiji or had an attorney-client relationship with her. It is undisputed by the parties that Plaintiffs represented Arta Lahiji’s mother, non-party Nahid Lahiji, in connection with a home insurance claim against nonparty Liberty Insurance Company (“Liberty”). Defendant Arta Lahiji contends that her mother Nahid Lahiji made the posts in question.

Defendant Arta Lahiji brings the subject special motion to strike (“anti-SLAPP motion”) Plaintiffs’ claims. Plaintiffs oppose the motion.
EVIDENTIARY OBJECTIONS

Plaintiffs’ Objections to the Declaration of Nahid Lahiji (“Nahid Lahiji Decl.”)

Overruled: 2-4, 6-18

Sustained: 1, 5

Objection 1: Sustained. Secondary evidence rule. (Evid. Code, §§ 1521, 1523.)

Objection 2: Overruled. The statement does not qualify as a statement that was made other than by a witness while testifying at the hearing and is not hearsay.

Objections 3-4, 6, 8: Overruled. Declarant has knowledge of and can offer lay opinion testimony of her own beliefs. No prejudice demonstrated. Parole evidence rule is inapposite as this does not relate to oral negotiations concerning a written contract. (See Civ. Code, § 1625.) Any statements by Defendant are party admissions and not inadmissible hearsay.

Objection 5: Sustained. Inadmissible hearsay. The statement is submitted as proof of the statements.

Objections 7, 16: Overruled. Declarant’s statement of her own conduct is not hearsay. See also Objection 3, above.

Objections 9-15: Overruled. Declarant’s statements are not submitted for the truth of the statements (i.e. the contents of the writing) but are submitted as evidence that she was the person who made the postings. Not hearsay. Does not violate the secondary evidence rule. (Evid Code, § 1523, subd. (d).)

Objection 17: Overruled. Same as prior objections. (See Evid Code, § 1523, subd. (d).)

Objection 18: Overruled. Not hearsay. Same as prior objections.

Plaintiffs’ Objections to the Declaration of Arta Lahiji (“Arta Lahiji Decl.”)

Overruled: 19-22

Sustained:

Objections 19-22: Overruled. No prejudice shown. Declarant can establish foundation and personal knowledge of her own experiences and items within her knowledge and rationally based on her perceptions. (Evid. Code, § 800). Not hearsay. Parol evidence rule is inapposite.

Defendant’s Objections to the Declaration of Brandon Brousseau (“Brousseau Decl.”)

Overruled: 2

Sustained: 1, 3

Objection 1: Sustained. Declarant does not establish foundation for the evidence. Declarant does not attest as to when the exhibit was obtained.

Objection 2: Overruled. Declarant attests that this is a true and correct copy of the exhibit, as of May 17, 2018. Declarant can establish personal knowledge for the existence of the Yelp profile. The statement is a general result of the whole writing. (Evid. Code, § 1523, subd. (d).)

Objection 3: Sustained. Inadmissible hearsay. Nahid Lahiji is not a party to this lawsuit and this statement does not constitute a party admission. (See Evid. Code, § 1220.)

Defendant’s Objections to the Declaration of Alexander Cohen (“Cohen Decl.”)

Overruled: 6, 11, 13-14, 18-24, 26

Overruled in-part, Sustained in-part: 7-8, 12, 17

Sustained: 5, 9-10, 15-16, 25, 27

Objection 4, 10: Sustained. (Evid. Code, § 1523.)

Objection 5: Sustained. Inadmissible hearsay. The declaration testimony is submitted for the truth of the statement.

Objection 6: Overruled. Declarant’s statement that Plaintiffs exchanged emails with Arta and Nahid Lahiji is not hearsay.

Objection 7: Overruled in-part, Sustained in-part. The objection to the first sentence is sustained as speculative and conclusory. The objection to the third sentence is sustained under the secondary evidence rule. The objection is otherwise overruled.

Objection 8: Overruled in-part, Sustained in-part. The objection to the statement “stating, ‘Correction: please blind copy my daughter* Arta and I.’ ” is sustained under the secondary evidence rule. The objection is otherwise overruled.

Objection 9: Sustained. Argumentative. (Gilbert v. Sykes (2007) 147 Cal. App. 4th 13, 26.)

Objection 11: Overruled. The testimony is not submitted to prove the contents of a writing.

Objection 12: Overruled in-part, Sustained in-part. Sustained to the statement “Arta appeared to retaliate by making a number of defamatory statements about ACTS – i.e. the Postings – on various internet forums” as argumentative and conclusory. The objection is otherwise overruled.

Objection 13: Overruled. The testimony is admissible. (Evid. Code, § 1523, subd. (d).) Declarant counsel can establish personal knowledge as to the postings that are the subject of the Complaint.

Objection 14: Overruled. Declarant’s statement regarding the negotiation process is neither hearsay nor testimony regarding the contents of the writing.

Objections 15-16: Sustained. Argumentative and conclusory.

Objection 17: Overruled in-part, Sustained in-part. Declarant can establish personal knowledge of filings against him with the State Bar. The objection is sustained as to the phrase “apparently in retaliation for ACTS filing the instant defamation Complaint” as speculative.

Objections 18-24: Overruled. The exhibits are authenticated by the Cohen Declaration. Party admission. (Evid. Code, § 1220.)

Objection 25: Sustained. Lack of authentication.

Objection 26: Overruled. Party admission.

Objection 27: Sustained. Inadmissible hearsay.
DISCUSSION
I. Legal Standard

Code of Civil Procedure section 425.16 sets forth the procedure governing anti-SLAPP motions.[1] In pertinent part, the statute provides, “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike (“anti-SLAPP motion”), unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech. (§ 425.16, subd. (a); see Sylmar Air Conditioning v. Pueblo Contracting Servs., Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

Courts employ a two-step process to evaluate anti-SLAPP motions. (Equilon Enters. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) To invoke the protections of the statute, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (Ibid.) From this fact, courts “presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights.” (Id. at p. 61.) “It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.” (Ibid.) In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) “When assessing the plaintiff’s showing, the court must also consider evidence that the defendant presents.” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.) “The court does not, however, weigh that evidence against the plaintiff’s, in terms of either credibility or persuasiveness. Rather, the defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element. [Citation.]” (Ibid.)
II. First Prong: Whether the Alleged Conduct Arises From Protected Activity

Code of Civil Procedure, section 425.16, subdivision (e) provides in relevant part that “act[s] in furtherance of a person’s right of . . . free speech under the United States or California Constitution in connection with a public issue” include: “(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of . . . the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc. § 425.16, subds. (e)(3), (4).) This section is to be construed broadly. (Id. § 425.16, subd. (a); see also Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119.)

As the party bringing the anti-SLAPP motion, Defendant Arta Lahiji bears the initial burden to demonstrate that the challenged claims arise from protected activity. (Code Civ. Proc, § 425.16, subd. (b).) The court independently reviews the allegations of the Complaint to determine whether the challenged claims arise from protected activity. “[T]he anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393 (Baral).)

Arta Lahiji contends that Plaintiff’s defamation claim arises out of protected conduct because it is based on statements made on the Internet, which is “a place open to the public or a public forum” and because the statements related to an issue of public interest. (Mot. 4-5.) Defendant cites Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1146 (Chaker) to argue that the Internet has widely been accepted as a “public forum,” and that online reviews and comments regarding business are squarely within the public interest. (Mot. 5.)

In Chaker, the Court of Appeal cited prior California Courts in holding that statements made on the Internet qualified as statements made in a public forum. (Chaker, 209 Cal.App.4th at pp. 1144-1147; see also id. at p. 1146 [“[W]e view the Internet as an electronic bulletin board open to literally billions of people all over the world. [Citation.] The Internet is a classic public forum which permits an exchange of views in public about everything from the great issues of war, peace, and economic development to the relative quality of the chicken pot pies served at competing family restaurants in a single small neighborhood.”].) The Chaker Court further held that a consumer review of a plaintiff’s business posted to the “Ripoff Report Web site” about the Chaker plaintiff’s character and business practices were of public interest because these statements “plainly fall within the rubric of consumer information about Chaker’s ‘Counterforensics’ business and were intended to serve as a warning to consumers about his trustworthiness.” (Id. at p. 1146.)

Here, as in Chaker, the allegedly defamatory statements were reviews that were posted on business review websites including Yelp, AVVO, Facebook, Ripoff Report, and Google. Accordingly, Defendant’s alleged conduct in posting reviews on the Internet comprises statements that were made in a public forum with respect to a matter of public interest within the meaning of section 425.16, subdivision (e)(3). (See Chaker, supra, 209 Cal.App.4th at p. 1147.)

Plaintiffs argue that the anti-SLAPP motion does not apply when the moving party denies that it is the party that engaged in the accused activity. Plaintiffs cite section 425.16, subdivision (b)(1) to argue that the anti-SLAPP motion only applies against “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech. . . .” (Opp. 7-8, emphasis in opposition brief, citing Code Civ. Proc., § 425.16, subd. (b)(1).)

California Courts have ruled, however, that “a cause of action arises from protected conduct if the wrongful, injurious act(s) alleged by the plaintiff constitute protected conduct.” (E.g. Old Republic Construction Program Group v. The Boccardo Law Firm, Inc. (2014) 230 Cal.App.4th 859, 868 (Old Republic), emphasis in original; see also id. at pp. 868-869 [citing cases demonstrating that the anti-SLAPP motion is based on the gravamen of the Plaintiff’s cause of action, charge or claim].) “In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action was based on an act in furtherance of the defendant’s right of petition or free speech.” (Old Republic, at p. 869, citing City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, emphasis added in Old Republic.) The language of section 425.16, subdivision (b)(1) does not contradict the interpretation that it is the gravamen of the plaintiff’s pled cause of action that is determinative of whether the anti-SLAPP statute applies. Section 425.16 provides that the statute is to be construed broadly because of the “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech . . . .” (Civ. Code, § 425.16, subd. (a).) Section 425.16, subdivision (b)(1) applies against “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . .” (Id. § 425.16, subd. (b)(1), emphasis added.)

In the case at hand, Plaintiff’s asserted cause of action alleges that Defendant Arta Lahiji committed defamation based on her alleged Internet postings. (Compl. ¶¶ 17-29, 33-53.) As such, Plaintiff’s cause of action arises from Arta Lahiji’s alleged acts which were allegedly taken in furtherance of her right of free speech in connection with a public issue. Defendant Arta Lahiji’s denial that she was the person who made the postings does not change the nature of the cause of action asserted or the fact that it arises from Defendant’s alleged exercise of her right to free speech. Accordingly, Plaintiff’s argument fails. (See Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369 (Wong) [granting an anti-SLAPP motion in favor of a defendant who denied posting a review that was at the heart of the plaintiff’s libel claims].)

For these reasons, the court finds that Defendant Arta Lahiji meets her burden to demonstrate that Plaintiff’s defamation claim arises from protected activity under the anti-SLAPP statute. The court now turns to the second prong of the test.
III. Second Prong: Whether There Is a Probability that Plaintiffs Will Prevail on the Merits

Once a defendant has met its initial burden, “[i]t is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.” (Equilon, supra, 29 Cal.4th at p. 61.) In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2); see Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at 269, fn. 3.) The test for showing a probability of success under section 425.16 is similar to the standard applied to evidentiary showings in summary judgment motions, and the plaintiff must make a prima facie showing by competent admissible evidence within the personal knowledge of the declarant. (Ludwig v. Superior Court (1995) 37 Cal.App.4th at 15-16.) “To show a likelihood of success, ‘[t]he plaintiff’s showing of facts must consist of evidence that would be admissible at trial.’ [Citation.] The plaintiff may not rely on the allegations in the complaint or assertions in a declaration based on information and belief.” (Wong, supra, 189 Cal.App.4th at p. 1368.)

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or cause special damage. (Wong, supra, 189 Cal.App.4th at p. 1369.) Civil Code section 45 provides, “Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.)

Plaintiffs contend that Defendant Arta Lahiji published the allegedly defamatory posts in question. Plaintiffs present evidence that the initial Yelp Posting was made on the account “AI L,” which bore Arta Lahiji’s picture, before being moved to a “new” account for Nahid Lahiji. (Cohen Decl. ¶ 24, Exs. C, G.) Plaintiffs also present evidence that an email was sent from Arta Lahiji’s email address to Plaintiffs on October 6, 2017, which corrected an earlier email that was sent from Nahid Lahiji’s email account that stated: “Please blind copy my mom and I on the email.” (Cohen Decl. Ex. B.) Based on this, Plaintiffs conclude that Arta Lahiji “impersonated” Nahid Lahiji in electronic communications and argue that a triable issue exists as to whether she posted the social media posts in question. Plaintiffs argue that the social media postings were false and defamatory because Plaintiffs never represented Arta Lahiji in connection with a homeowner’s insurance claim. (See Compl. ¶¶ 48.)

Defendant Arta Lahiji contends that she did not make the social media postings in question. Defendant attests that she did not post the Yelp review about Plaintiffs, that she has never posted a Yelp review about Plaintiffs (or any other social media review at issue in this case) and that the “AI L” Yelp account was an account she shared with her mother Nahid Lahiji at the time of the posting. (Arta Lahiji Decl. ¶¶ 3-8.) Defendant also submits the declaration of Nahid Lahiji, who attests to retaining the services of Plaintiffs and to posting the Yelp review on November 19, 2017 in the “AI L” account, which Nahid Lahiji states was an account she shared with her daughter. (Nahid Lahiji Decl. ¶¶ 2, 14-15.) Nahid Lahiji further attests that after this lawsuit was filed, she reposted the original Yelp review under the name “Nahid L” in a separate, individual account which she created after her original posting. (Id. at ¶ 158.) [2] According to Nahid Lahiji, she additionally posted the Avvo review on November 21, 2017 under an anonymous name (and later reposted the review under the name Nahid), posted the Ripoff Report review under the username “Nancy” and posted the Google review on December 14, 2017 under the name “Nahid.” (Nahid Lahiji Decl. ¶¶ 16-18.)

After consideration of the evidence presented by both parties, the court finds that Plaintiffs do not meet their burden to demonstrate the existence of a triable issue of material fact as to whether Arta Lahiji posted the allegedly defamatory social media statements on her own behalf.

First, the October 6, 2017 email correspondence to Plaintiffs has been significantly redacted—including the redaction of the second half of the sentence at issue, all other substantive content in the emails aside from the specific sentences quoted, and the subject line of the email—such that the court has no context for the statement in question and no ability to determine whether the statement supports Defendants’ assertion. (See Cohen Decl. Exs. A, B.)

Second, even if the court were to assume that Arta Lahiji responded on behalf of Nahid Lahiji as Plaintiffs contend, in correspondence to Nahid Lahiji’s counsel regarding Nahid Lahiji’s case against Liberty—that fact would not be sufficient to demonstrate that Arta Lahiji “impersonates” Nahid Lahiji to make social media postings on her own (Arta Lahiji’s) behalf on social media as Plaintiffs allege. Plaintiff Cohen attests that Nahid Lahiji contacted Plaintiffs through Arta Lahiji and that Arta Lahiji was included in Plaintiffs’ emails with Nahid Lahiji discussing various aspects of Nahid Lahiji’s claim against Liberty. (Cohen Decl. ¶¶ 5, 15.) Plaintiffs present no legal authority for the proposition that an individual may not seek assistance in writing legal communications to others, including communications to her own counsel.

To the contrary, the court notes that Cohen attests that Plaintiffs’ own communications to Nahid Lahiji were largely conducted by Farid Golshani (“Golshani”) (who was the individual to whom the October 6, 2017 email was directed) on Plaintiffs’ behalf and under Cohen’s supervision. (Cohen Decl. ¶¶ 11-12, Ex. B.) Just as Golshani’s communications to Nahid Lahiji appear to have been made on behalf of Plaintiffs and not in Golshani’s individual capacity, the evidence presented indicates that Arta Lahiji’s email communications to Plaintiffs, regarding Nahid Lahiji’s claim against Liberty, were also performed on behalf of Nahid Lahiji and not on Arta Lahiji’s individual capacity. (See Cohen Decl. Ex. B.) On the second prong of the anti-SLAPP statute, Plaintiffs bear the burden to demonstrate a reasonable probability of success on the merits. The evidence the Arta Lahiji may have assisted Nahid Lahiji in email communications to Plaintiffs does not demonstrate that Arta Lahiji “impersonates” or “masquerades as” Nahid Lahiji in social media postings. Thus, Plaintiffs’ argument fails.

Third, while Plaintiffs argue that the average reader on Yelp would see the original Yelp Posting and believe that Plaintiffs represented Arta Lahiji in a homeowner’s insurance claim (Opp. 11), the court disagrees. The posting in question was made by a Yelp account with the name “AI L.” (Cohen Decl. Ex. C.) While Plaintiffs argue that the presence of Arta Lahiji’s picture on the account as well as the prohibition of “shared” accounts in Yelp’s Terms of Service would make it reasonable for the “average” Yelp reader to believe that Plaintiffs handled a home insurance claim on Arta Lahiji’s behalf, Plaintiffs do not present any evidence that would lead the court to believe that the “average” Yelp reader would recognize a picture of Arta Lahiji or the account name “AI L” and associate it with Defendant. There is no evidence in the record that would suggest that Arta Lahiji is a public figure or sufficiently well-known among the Yelp community or the general public such that she would be generally recognizable based on her picture or the username “AI L” alone. Accordingly, Plaintiffs’ argument fails.

Fourth, Plaintiffs argue that Defendant’s assertion of affirmative defenses that are only available to the publisher of a statement constitutes a tacit admission that Arta Lahiji made the statements at issue. (Opp. 13-14.) The court disagrees. Courts have long recognized that a party may assert arguments in the alternative. (See Citizens United v. FEC (2010) 558 U.S. 310, 328.) Defendant specifically raises the additional arguments in the hypothetical, “if plaintiffs could prove that Arta posted the Yelp review.” (See Mot. 8-10, 12 [the headings also state that Plaintiffs’ claim fails “even if they had named the correct party”].) Accordingly, Plaintiffs’ argument fails.

On the second prong of the anti-SLAPP motion, a plaintiff bears the burden to demonstrate that it has a reasonable probability of success against the defendant. (Equilon, supra, 29 Cal.4th at p. 61.) [3] Plaintiffs’ assertions that Defendant Arta Lahiji posted the social media statements at the heart of Plaintiffs’ Complaint are speculative and not supported by the evidence in the record. (See Wong, supra, 189 Cal.App.4th at pp. 1368-1369 [recognizing that the plaintiff bears the burden of presenting evidence to demonstrate liability against a defendant who claims that they did not make the social media posts at the center of a defamation claim].) As Plaintiffs fail to demonstrate that Defendant Arta Lahiji made the posts in question, the court necessarily concludes that Plaintiffs cannot establish a probability of success on their defamation claim. (See Dible v. Haight Ashbury Free Clinics, Inc. (2009) 170 Cal.App.4th 843, 855 [recognizing that publication or republication to a third person is necessary to establish a cause of action for defamation].) [4]

For these reasons, the court GRANTS the anti-SLAPP motion.
IV. Attorney’s Fees

Code of Civil Procedure, section 425.16, subdivision (c)(1) provides, in relevant part: “[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (Code Civ. Proc. § 425.16, subd. (c)(1).) The fee-shifting provision is mandatory, and it is a mechanism intended to promote the policy underlying the anti-SLAPP statute generally—namely, to discourage SLAPP suits brought to chill the valid exercise of the constitutional rights of free speech and petition for the redress of grievances. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)

The prevailing party may only recover the attorney fees incurred in connection with the special motion to strike, not the action as a whole. (See, e.g., Lafayette Morehouse, Inc. v. Chronicle Publ’g Co. (1995) 39 Cal.App.4th 1379, 1383 [“the 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”]; S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 381 [“the fee ‘provision applies only to the motion to strike, and not to the entire action’ ”]; City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 218 [“The defendant can recover only its fees and costs in connection with the motion, not the entire action.”].)

Defendant Arta Lahiji requests attorney’s fees and costs in the amount of $16,210 as compensation for the expense incurred in bringing the subject motion. Plaintiff’s counsel Jamie L. Keeton (“Keeton”) attests to the qualifications of the attorneys who worked on the subject anti-SLAPP motion and further attests to their hourly billing rates of $300 and $350 and the paralegals’ billing rate of $150. (Keeton Decl. ¶¶ 5, 7-12.) Plaintiffs do not respond to Defendant’s request for attorney’s fees or challenge the reasonableness of the amounts or the billing rates claimed. Accordingly, the court finds that the requested hourly billing rates are reasonable.

The court has reviewed Defendant’s submitted billing records and finds that Defendant has presented evidence that her counsel reasonably incurred $10,730 in attorney’s fees on items listed in connection with the anti-SLAPP motion. (Keeton Decl. Ex. 5.) While Defendant requests $13,660 in attorney’s fees; the submitted billing records also include entries for work incurred in connection with discovery and with Defendant’s Answer to the Complaint; Defendant does not demonstrate that this work was reasonably incurred in connection with the subject motion. (See ibid.) Keeton additionally expects to spend another 4 hours drafting Defendant’s reply brief at a rate of $300 per hour and 3 hours attending the April 12, 2018 hearing, at the same rate. (Id. at ¶ 6.) The court finds that it is reasonable to compensate Defendant for the time anticipated for the reply and for 2 hours for the hearing, for an additional $1,800 in attorney’s fees. Finally, Keeton requests costs in the amount of $495 to reflect the $435 filing fee, the $60 fee for the subject motion, and $395 for court reporter fees.[5] (Ibid.) The $435 filing fee was not incurred in connection with the subject motion and is not recoverable under section 425.16, subdivision (c). As Defendant does not offer any explanation for how the court reporter fees were incurred, they are not recoverable on the subject motion. The court will therefore award an additional $1,860 in attorney’s fees and costs in addition to the amount listed above.

On reply, Defendant contends that she has incurred additional attorney’s fees to defend against multiple ex parte applications and motions filed by Plaintiffs related to the anti-SLAPP motion. (Reply 10.) Defendant did not raise these arguments or claim these costs in the subject motion. “Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) Accordingly, the court will not consider Defendant’s request for additional attorney’s fees on the subject motion. (See Doe v. Luster (2006) 145 Cal.App.4th 139, 144.)

In sum, the court awards Defendant $12,590 in reasonable attorney’s fees and costs pursuant to Code of Civil Procedure, section 425.16, subdivision (c).

V. Conclusion

For these reasons, the court finds that Defendant Arta Lahiji meets her burden to demonstrate that Plaintiffs’ claims arise from protected activity under section 425.16, but Plaintiffs have not met their burden to demonstrate a reasonable probability of success on the merits of their claim against Defendant Arta Lahiji. The court therefore GRANTS the anti-SLAPP motion as to this Defendant and GRANTS reasonable attorney’s fees in Defendant’s favor the amount of $12,590.

[1] All subsequent statutory references will be to the Code of Civil Procedure, unless otherwise specified.

[2] Plaintiffs cite the Yelp terms of service and argues that Yelp does not allow shared accounts. (Cohen Decl. Ex. H.) This exhibit was not authenticated and is not admissible. However, even if the court were to consider this evidence and to find that Yelp prohibits shared accounts, this fact would not demonstrate that Defendant Arta Lahiji did not share an account with Nahid Lahiji in violation of the terms of service. The Yelp terms of service are thus irrelevant to demonstrating Defendant and Nahid Lahiji’s social media practices. Plaintiffs further cite an email by Nahid Lahiji’s counsel in a separate matter as evidence that Nahid Lahiji has previously requested the use of an interpreter. (Cohen Decl. Ex. J.) Plaintiffs point to this evidence to suggest that Nahid Lahiji would have been unable to write the allegedly defamatory posts on her own. This evidence is inadmissible hearsay by the attorney for a non-party and may not be considered. Furthermore, the fact that non-party Nahid Lahiji requested an interpreter in an Arbitration proceeding does not demonstrate that she did not or could not have written the review in question or posted a review which she authorized to be written. Plaintiff Cohen attests that Nahid Lahiji negotiated and executed a written retainer Agreement with Plaintiffs and that she received emails from Plaintiffs in connection with Nahid Lahiji’s claim against Liberty. (Cohen Decl. ¶¶ 6, 26.) These assertions would appear to belie Plaintiffs’ assertions regarding Nahid Lahiji’s ability to understand or write in English.

[3] Plaintiffs additionally contend that Defendant presents a triable issue of fact regarding liability based on the statement in the motion that “Arta, if anything, was a conduit through which Nahid expressed her opinion about plaintiffs.” (Opp. 14, citing Mot. 9.) As stated above, Plaintiffs bear the burden to demonstrate a reasonable probability of success on the merits of their claim. Plaintiffs, however, do not cite any legal authority in support of their argument that a party who acts as a conduit to post an allegedly defamatory statement can be held liable as the speaker. Accordingly, Plaintiffs’ fail to meet their burden on the subject motion and their argument fails.

[4] Having found that Plaintiffs have failed to demonstrate that Defendant made the statements in question, the court need not address the parties’ arguments regarding Defendant’s Arta Lahiji affirmative defenses

[5] Although these three items would come to a total of $890, Defendant only requests $495 in the Keeton Declaration. (Keeton Decl. ¶ 6.)

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