Case Name: Kemron Ebanks vs John Stratton et al

Case No.: 18CV326684

The motion by Defendants John Stratton, Semanthia Beal, Don Aves, and DJ Hilbun (“Defendants”) for attorney fees following the Court’s grant of Defendants’ special motion to strike was first scheduled for hearing on February 21, 2019. Plaintiff Kemron Ebanks (“Plaintiff”) did not oppose the motion and did not appear at the hearing. The Court continued the hearing to March 21, 2019 and required Defendants to submit supplemental evidence to support their request. Plaintiff again did not oppose the motion, but appeared at the March 21 hearing, but did not notify Defendants that he intended to appear. The Court again continued the hearing and gave Plaintiff until April 5, 2019 to file an opposition. Again, Plaintiff failed to oppose the motion by the deadline set by the Court. The Court will not continue the hearing again.

On August 31, 2018, the Court granted the Defendants’ Special Motion to Strike the complaint of Plaintiff Kemron Ebanks (“Plaintiff”) pursuant to Code of Civil Procedure section 425.16 (otherwise known as an “Anti-SLAPP motion).

Defendants are seeking their attorney fees pursuant to Code of Civil Procedure section 425.16(c)(1). As noted above, the motion was first set for hearing on February 7, 2019 and continued by the Court in order for the Defendants to submit supplemental evidence to support the hourly rates charged and the reasonableness of the time spent. Defendants submitted supplemental evidence on February 13, 2019 as ordered.

Code of Civil Procedure section 425.16(c)(1) contains a mandatory fee provision for prevailing defendants: that is, except in circumstances not applicable here, “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”

The motion was timely and properly served, and is unopposed. Although given the opportunity to file opposition, even well after opposition was due, Plaintiff still has not contested the motion or the amount of attorney fees sought.

If the Plaintiff had challenged the fees, he would be required do more than simply argue that the fees claimed are excessive: such a challenge must be specific and supported by relevant evidence. (Premier Med. Mgmt. Sys., Inc. v. California Ins. Guar. Ass’n (2008) 163 Cal.App.4th 550, 564.) In any event, he has not opposed this motion.

The mandatory fees that may be awarded under Code of Civil Procedure section 425.16(c), are those fees that the court deems to be reasonable. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) In fixing a reasonable fee, the court computes the lodestar figure—a calculation based on the number of hours reasonably expended multiplied by the relevant hourly rate.

The Court finds, based on many fee applications that it has considered, that the hourly rates charged are slightly above the general rates that prevail in the Santa Clara county community where the court is located for similar work, but that the fees are not so out of line that the Court feels a need to adjust them. Accordingly, in general, the Court finds the hourly rates charged to be generally in line with the rates charged in this community.

Plaintiff has not made any attempt to challenge the hours charged and the Court finds that in general the amended statements of hours worked, including fees for this motion, were reasonably and necessarily incurred. The Court generally does not award fees for time not yet incurred, and the Court notes that the original moving papers sought time for review of opposition and preparation of a reply which were never filed. It appears that the time for preparation of review of opposition and preparation of reply has been removed from the request, but the Court expects counsel to review their billings to insure that the time for which fees are sought was actually spent.

Accordingly, the motion for attorney fees is GRANTED, in the modified amount sought in the supplemental pleadings that were filed.

Defendants shall submit a proposed order consistent with this tentative, that includes the exact amount of fees and costs ordered. After Defendants have served notice of entry of the signed order, Defendants shall submit a judgment that incorporates the ordered amount of attorney fees.