2017-00213513-CU-CR

Tara Arciga vs. County of Sacramento

Nature of Proceeding: Motion for Attorney Fees

Filed By: Griffith, Amanda N.

Defendant PF North Highlands’ (“Defendant”) Motion for Attorneys Fees incurred in defending the anti-SLAPP lawsuit is unopposed and is granted.

Defendant’s Request for Judicial Notice is granted.

Plaintiffs Complaint arose from the theft of a vehicle in Defendant’s parking lot for which she was arrested. Plaintiff was originally charged with the theft of the vehicle but, those charges were eventually dropped by the District Attorney. This case followed the dismissal of the criminal charges. Plaintiff alleges that moving defendant’s videotape of the theft provided to the police was somehow defective, causing her arrest. On January 23, 2018, the Court signed the formal Order After Hearing Granting Defendant’s Special Motion to Strike the Complaint. (Griffith Decl. ¶10; Exhibit 5.) Notice of Entry of Order was served on January 24, 2018 to all parties. (Id. at ¶11: Exhibit 6.)

Defendant seeks attorneys fees of $21,039.00 as the prevailing party on a motion to strike. Plaintiff’s “Notice of Non-Opposition” states that Plaintiff will be filing an appeal of the judgment as well as the consequential award of attorneys fees but is not appealing the amount of those fees separate and apart from the attack on the judgment.

A defendant who is successful in striking a plaintiff’s complaint under California Civil Code §425.16 is entitled to a mandatory award of attorneys’ fees. Cal. Code of Civ. Proc. §425.16(c) [“…a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys’ fees and costs…”]. The amount of recoverable fees is the reasonable amount of fees incurred by the successful defendant in eliminating itself from the litigation. Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785 [“This section authorizes the court lo make award of reasonable attorney fees to a prevailing defendant, which will adequately compensate the defendant for the expense of responding lo a baseless lawsuit.”]. Although the language of subd (c) is ambiguous, a Senate Committee on the Judiciary report and a Senate floor report showed the Legislature intended that a prevailing defendant be allowed to recover fees and costs only on the motion to strike, not the entire suit. Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995 39 Cal. App. 4th 1379. However, CCP § 425.16 does not preclude recovery of appellate fees and costs in connection with the anti-SLAPP motion. Dove Audio v. Rosenfeld, Meyer & Susman (1996), 47 Cal. App. 4th 777, 785)

When setting a fee award under section 425.16(c), courts generally apply a “lodestar” approach. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 658-659 disapproved on other grounds (upholding $130,000 award of attorney’s fees pursuant to section 425.16(c) lodestar method.) The lodestar figures are computed by multiplying (a) the number of hours reasonably spent by (b) the reasonable hourly rate for each attorney. (Ketchum, supra, 24 Cal.4th at p. 1132; Serrano v. Priest (1977) 20 Cal.3d 25,48-49.) Out-of-pocket expenses of the type normally billed to fee-paying clients are added to the lodestar figures, as is the time spent preparing the fee application. (Ketchum, supra, 24 Cal.4th at p. 1133, citing Serrano v. Unruh (1982) 32 Cal.3d 621, 633 (“absent circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee”) (emphasis in original); Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1407, 1419, disapproved on other grounds.)

In this case, plaintiff sought to lift the automatic stay on discovery and thereafter conducted four depositions in an effort to defeat the anti-slapp motion. Defendant seeks attorneys fees for the costs of discovery that arose in connection with plaintiff’s effort to defeat the anti-SLAPP motion as well as the attorneys fees in connection with the motion to strike itself.

In support of the fees incurred in defending the depositions taken by plaintiff, defendant relies on the case of Wanland v. Mastagni (2006) 141 Cal.App.4th 15, 21-

22. In Wanland, a successful SLAPP defendant sought an award of attorneys’ fees for an appeal which included opposing plaintiffs undertaking to stay enforcement while the appeal was pending. The appealing plaintiff argued that the SLAPP defendant was not entitled to an award of attorneys’ fees for litigating the undertaking. The Third Appellate District disagreed. Wanland, supra, 141 Cal.App.4th at 22-23,

The Third District Court of Appeal observed:

Section 425.16 subdivision (c) is intended lo compensate a defendant for the expense of responding to a SLAPP suit. (Citation omitted.) To this end, the provision ‘is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit.’ (Citation omitted.) If an award of costs and attorney fees is not permitted for a challenge to an

inadequate undertaking submitted to stay enforcement of an award of attorney fees under section 425.16, subdivision (c) the protection provided to a defendant who is brought into court for exercising free speech and petition rights would be compromised. This would be inconsistent with the Legislature’s directive that section 425.16 be broadly construed to encourage continued participation in free speech and petition activities. (Citation omitted.) Wanland,supra, 141 Cal.App.4th at 22.

The Court is persuaded that the same reasoning employed by the Third District in the Wanland case applies to defendant’s fees/expenses incurred, pursuant to the plaintiff’s successful lifting of the stay, in defending the discovery conducted by plaintiff in her effort to defeat the anti-SLAPP motion. Thus, the discovery was in direct response to the anti-slapp motion and to deny fees to defendant would violate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting itself from a baseless lawsuit. In Wanland, plaintiff sought to stay enforcement of the award by seeking to file an undertaking that defendant challenged as inadequate. Here, Plaintiff sought to lift the automatic stay to conduct discovery to defeat the anti-slapp motion. Although the procedural devices used were different, defendants here also had to expend resources to respond to plaintiff’s litigation efforts that were directly related to the anti-SLAPP motion.

Defendant is awarded fees in the requested amount of $21,039. The fees are reasonable for the work performed and the numbers of hours spent on each task. Plaintiff’s counsel filed a notice of non-opposition to the amount of the requested attorney fees.

It bears noting the reasonableness of attorneys’ fees is within the discretion of the trial court and is to be determined from a consideration of multiple factors such as: (1) the nature of the litigation; (2) the complexity of the issues; (3) the experience and expertise of counsel; and, (4) the amount of time involved. Wilkerson v Sullivan (2002) 99 Cal.App.4th at 443, 448 [the appropriate number of hours includes all time ‘reasonably expended in pursuit of the ultimate result achieved in the same manner that an attorney is traditionally compensated by a fee paying client for all the time reasonable expended on a matter.'” Hensley v. Eckerhart (1983) 461 U.S. 424, 431 (emphasis added).] See also Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131, 1139.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.