(1-2) Motions for Attorney Fees (3) CMC

 

Tentative Ruling:  (1) Motion for Attorney Fees:  GRANTED, pursuant to Code of Civil Procedure section 425.16(c).  Defendants are awarded fees and costs in the amount of $7,831.90.

 

Pursuant to Code of Civil Procedure section 425.16(c) “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”

 

In this instance, as Defendants prevailed on their first Anti-SLAPP Motion, with respect to the Fourth Cause of Action for Malicious Prosecution, Defendants are entitled to an award of fees and costs under Code of Civil Procedure section 425.16(c).

 

A review of the first Anti-SLAPP Motion, however, reveals that Defendants sought to strike the entire First Amended Complaint, which consisted of 9 Causes of Actions.  Pursuant to this Court’s July 3, 2013 Order, Defendants succeeded, only, as to the Fourth Cause of Action.  Based on the above, the amount requested shall be reduced to $6,672.00, which reflects 27.8 hours of labor, calculated at $240/hr. (¶4-¶6 of Bush Dec.)   Additionally, the Court shall reduce the amount of fees related to this motion, to $960.00 (4 hours at $240.00/hr.).  This reduction is justified, as the instant motion was relatively simple and unopposed.   The entirety of Defendants’ requests for costs, in the amount of $199.90 is granted, for a total award of $7,831.90.00.

 

(2) Motion for Attorney Fees:  GRANTED, pursuant to Code of Civil Procedure section 425.16(c).  Defendants are awarded fees and costs in the amount of $5,832.95.

 

First, while this Court declines to follow the holding in Coltrain v. Shewalter(1998) 66 Cal.App.4^th 94, opting instead to adopt the standard articulated in Moore v. Liu (1999) 69 Cal.App.4^th 745, the Court finds Defendants are the prevailing parties on the underlying Anti-SLAPP Motion:

 

A review of the Second Amended Complaint confirms Defendants’ assertion:  Each of the Tenth through Fourteenth Causes of Action arises from and relies on allegations Defendants falsely accused Plaintiff of theft and reported him to the police. (¶144, ¶149, ¶154, ¶159 and ¶162 of SAC.)

 

Pursuant to Chabak v. Monroy (2007) 154 Cal.App.4^th 1502, statements made to the police constitute protected activity under Code of Civil Procedure section 425.16, as such statements fall within the right to “petition the government.”  (Id. at 1522.)   Further, while the Complaint alleges the accusations made to the police were false, these allegations are insufficient to avoid application of Code of Civil Procedure section 425.16.

 

While Penal Code section 148.5 criminalizes false police reports and case law establishes illegal conduct does not fall within the protection of Code of Civil Procedure section 425.16, this principle applies to defeat an Anti-SLAPP Motion only where “defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law.” (Flatley v. Mauro (2006) 39 Cal.4^th299, 320.)

 

Here, Defendants do not concede that the reports were false.  Additionally, as Plaintiff presented no evidence which conclusively established the reports were false (and instead, opted to dismiss his claims), the Court must conclude Code of Civil Procedure section 425.16 applied.

 

Finally, as Plaintiff chose not to oppose the motion, or present evidence establishing a probability of prevailing, had the Motion proceeded, the Motion would have been GRANTED.  (Macias v. Hartwell (1997) 55 Cal.App.4^th 669, 675.)   Thus, Defendants are entitled to reasonable attorney fees and costs, pursuant to Code of Civil Procedure section 425.16(c).

 

Defendants request attorney fees and costs in the total amount of $6,656.45, which includes the following:  (1) $4,824.00 in fees, in relation to the underlying Anti-SLAPP Motion; (2) $1,732.50 in fees, in relation to the instant motion; and (3) $99.95 in costs. (¶5 of Bush Dec.)  Additionally, Counsel indicates she charges rates of $240.00/hr. for Partners and $183/hr. for Senior Associates. (¶4 of Bush Dec.)

 

The above referenced rates and figures are reasonable, with one exception: Given the simplicity of this motion and the fact it was unopposed, the Court shall reduce the amount of fees requested, with respect to this motion, to $909.00 (which includes 3 hours of labor at $183/hr. and 1.5 hours at $240/hr.)