Case Number: BC662736 Hearing Date: June 13, 2018 Dept: 37

CASE NAME: Christopher v. Thie, et al.

CASE NO.: BC662736

HEARING DATE: 6/13/18

DEPARTMENT: 37

CALENDAR NO.: 9

NOTICE: OK

SUBJECT: Motion for Attorney’s Fees

MOVING PARTY: Defendant Carlene Thie [1]

OPPOSING PARTY: Plaintiff Anthony E. Christopher
COURT’S TENTATIVE RULING

The court GRANTS Defendant Thie’s motion for attorney’s fees and costs in the amount of $14,336.80. Counsel for Defendant Carlene Thie to give notice.
STATEMENT OF THE CASE

This action arises from allegations that Defendant Carlene Thie (“Thie”) interfered with Plaintiff Anthony E. Christopher (“Christopher”)’s business opportunities in connection with certain photographs and photograph negatives in his ownership and possession. Plaintiff alleges that he purchased vintage photo negatives and photographs of Disneyland Park during its initial construction around the year 1992. Plaintiff further alleges that Defendant interfered with business agreements he had entered into, including a consignment agreement with Van Eaton Galleries to display and sell photographs printed from these negatives, by falsely claiming that she was the true owner of the photographs and negatives and that Plaintiff was not entitled to sell them.

In the Complaint, Plaintiff alleges six causes of action for: (1) interference with prospective economic advantage; (2) negligent interference with prospective economic advantage; (3) intentional interference with contractual relations; (4) inducing breach of contract; (5) intentional infliction of emotional distress (“IIED”); and (6) negligent infliction of emotional distress (“NIED”).

The Complaint specifically accuses Defendant of committing wrongful acts including: (1) falsely claiming to the Van Eaton representative that Defendant was the owner of the photographs on display, that they were stolen, and that Van Eaton was not entitled to sell them (Compl. ¶ 22) and causing Van Eaton to discontinue the consignment agreement with Plaintiff (id. at ¶ 24-25); (2) causing the publication of an advertisement in the Los Angeles Times falsely stating that Plaintiff had her ‘grandfather’s stolen Disneyland Images’ (id. at ¶ 34); and (3) initiating an action in the Small Claims division of the Los Angeles Superior Court (Case Number ALH14G00120) against Plaintiff alleging copyright infringement and possession of stolen goods (id. at ¶ 37).

Defendant Thie’s special motion to strike under Code of Civil Procedure, section 425.16 (“anti-SLAPP motion”) came to hearing on January 31, 2018, at which time the court granted the motion as to the fifth cause of action for IIED and the sixth cause of action for NIED. The motion was otherwise denied. Defendant now moves for attorney’s fees pursuant to section 425.16.
DISCUSSION
I. Legal Standard

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.”].)
II. Apportionment

Defendant Arta Lahiji requests attorney’s fees and costs in the amount of $14,755.21 as compensation for the expense incurred in bringing the subject motion. Defendant contends that she incurred total fees through the date of the receipt of the court’s ruling on the anti-SLAPP motion of $28,900 and total costs of $1,360.41, of which $28,150 in attorney’s fees and all of the costs are fairly related to the anti-SLAPP motion. (Mot. 10.) Defendant requests 50% of the fees and costs on the grounds that it prevailed on prong one for all of the causes of action and because the court granted the motion in-part and struck two of the six causes of action. (Ibid.)

Plaintiff opposes the motion on the grounds that the dismissal of two of Plaintiff’s causes of action constitutes a “minimal and insignificant” result in the context of the overall litigation. The court disagrees. The dismissal of Plaintiff’s IIED and NIED causes of action eliminated an entire basis of Plaintiff’s claim for recovery and obviated the need for discovery or further litigation on the question of emotional damages. Nevertheless, the court does not find that Plaintiff is entitled to attorney’s fees in the amount requested.

In connection with the second prong of the anti-SLAPP motion, Defendant argued (1) her conduct was privileged; (2) Plaintiff could not present evidence to state his first through fourth causes of action for interference with economic advantage and contract; and (3) Plaintiff could not present evidence to support his fifth and sixth causes of action or demonstrate that she had engaged in “outrageous” conduct or that he suffered “severe or extreme emotional distress.” Defendant only prevailed on the issue of Plaintiff’s emotional distress claims and did not prevail on the question of privilege or the economic/contract interference claims. In these circumstances, the court finds it appropriate to award Defendant a one-third apportionment of the fees incurred in connection with the anti-SLAPP motion.
III. Reasonableness of Fees

Defendant’s counsel Howard S. Fredman (“Fredman”) attests to his experience and hourly billing rate of $375 and further attests to his legal secretary Preny Sarkissian (“Sarkissian”)’s hourly billing rate of $100 per hour. (Fredman Decl. ¶ 5-6.) The court finds that these rates are reasonable for an attorney of Fredman’s experience and qualifications and further finds that an hourly rate of $100 is reasonable for a legal assistant. (See Fredman Decl. Ex. D.)

Defendant includes a copy of her counsel’s billing records as Exhibit B to the Fredman Declaration. (Fredman Decl. Ex. B.) Plaintiff does not challenge the reasonableness of any specific entry within the billing records; accordingly, the court finds that the requested amount of time incurred in connection with the anti-SLAPP motion is reasonable. A one-third apportionment of the total claimed comes to attorney’s fees and costs in the amount of $9,836.80.

Defendant further requests $6,000 for the costs of preparing the subject fees motion, a reply, and for appearing at the hearing. (Mot. 10.) Fredman attest to spending 12 hours preparing the fees motion and states that he expects to spend an additional 4 hours preparing a reply and attending the hearing on this motion. (Fredman Decl. ¶ 8.) Fredman does not, however, present any billing records to support his assertion that he spent 12 hours on the subject motion. Accordingly, the court finds it appropriate to award $4,500 in connection with the subject motion, reply, and the hearing to compensate Fredman for 12 hours of total time.

In sum, the court grants Defendant’s motion in the amount of $14,336.80.

[1] Defendant fails to tab the exhibits attached to her motion as is required by California Rules of Court, rule 3.1110(f)(3). The court expects the parties to abide by all statutory requirements and court rules.