Shepard v. Miller et al

Filing 72

MEMORANDUM AND ORDER signed by Judge William B. Shubb on 5/4/11, GRANTING 54 defendants' Motion for Attorney Fees and Costs in the amount of $119,143.05. (Kastilahn, A)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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----oo0oo---10
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PAULA SHEPARD,

NO. CIV. 2:10-1863 WBS JFM

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Plaintiff,
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MEMORANDUM AND ORDER RE:
MOTION FOR ATTORNEY’S FEES AND
COSTS

v.
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JANE MILER, an individual,
CAREER PRESS, INC., NEW PAGE
BOOKS, and DOES 1-100.

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Defendants.
___________________________/

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----oo0oo---19
Plaintiff Paula Shepard brought this action against
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defendants Jane Miller,1 Career Press, Inc., and New Page Books,
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based on defendants’ alleged use of plaintiff’s protected work in
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a book about the use of dogs to treat psychiatric disabilities.
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In her Complaint, plaintiff alleged a federal copyright
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infringement claim and state law claims for fraud, common law
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misappropriation, and violation of California’s Unfair
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Jane Miller is sued erroneously as “Jane Miler.”
at 1:22 (Docket No. 6).)
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(Ans.

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Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200-17210.

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The court previously granted defendants’ special motion

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to strike plaintiff’s state law claims pursuant to California’s

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anti-Strategic Lawsuits Against Public Participation (“anti-

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SLAPP”) statute, Cal. Civ. Proc. Code § 425.16.

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Miler, Civ. No. 2:10-1863, 2010 WL 5205108 (E.D. Cal. Dec. 15,

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2010).

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for judgment as a matter of law pursuant to Federal Rule of Civil

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Procedure 12(c) on plaintiff’s federal copyright claim.

See Shepard v.

In the same Order, the court denied defendants’ motion

Pursuant

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to subsection 425.16(c)(1) of the anti-SLAPP statute, defendants

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now seek the attorney’s fees and costs incurred in litigating

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their anti-SLAPP motion.

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I.

Entitlement to Fees

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Pursuant to California’s anti-SLAPP statute, “a

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prevailing defendant on a special motion to strike shall be

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entitled to recover his or her attorney’s fees and costs.”

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Civ. Proc. Code § 425.16(c)(1).

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award of fees and costs is mandatory under the statute, Ketchum

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v. Moses, 24 Cal. 4th 1122, 1131 (2001), and applies to

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successful anti-SLAPP motions brought in federal court.

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Del., Inc. v. Covad Commc’ns Co., 377 F.3d 1081, 1091 (9th Cir.

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2004).

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include the “fees incurred in litigating the award of attorney

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fees,” Ketchum, 24 Cal. 4th at 1141, and appellate fees and

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costs, Metabolife Int’l, Inc. v. Wornick, 213 F. Supp. 2d 1220,

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1222 (S.D. Cal. 2002).

Cal.

It is well-settled that such an

Verizon

An award of fees under subsection 425.16(c)(1) may also

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“The fee-shifting provision was apparently intended to

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discourage [] strategic lawsuits against public participation by
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imposing the litigation costs on the party seeking to ‘chill the

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valid exercise of the constitutional rights of freedom of speech

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and petition for the redress of grievances’ and encourage

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‘private representation in SLAPP cases.’”

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at 1131 (2001) (quoting Cal. Civ. Proc. Code § 425.16(a)); see

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also Northon v. Rule, --- F.3d ----, ----, 2011 WL 135720, at *2

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(9th Cir. 2011) (“The entitlement to fees and costs enhances the

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anti-SLAPP law’s protection of the state’s ‘important,

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substantive’ interests.”).

Ketchum, 24 Cal. 4th

California courts have thus held that

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the anti-SLAPP statute reflects a “strong preference for awarding

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attorney fees to successful defendants” and the “term ‘prevailing

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party’ must be interpreted broadly to favor an award of attorney

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fees to a partially successful defendant.”

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Pleasanton, 176 Cal. App. 4th 408, 425-26 (1st Dist. 2009)

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(internal citations and quotation marks omitted).

Lin v. City of

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Although the court granted defendants’ anti-SLAPP

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motion and thus struck all of plaintiff’s state law claims,

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plaintiff nonetheless contends that defendants are not entitled

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to fees under subsection 425.16(c)(1) as the “prevailing party.”

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Specifically, plaintiff argues that defendants should not be

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treated as the prevailing party because the court did not grant

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defendants’ motion for judgment on the pleadings as to

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plaintiff’s federal copyright claim, which is similar to her

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state law claims.

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Under certain circumstances, a defendant may not be

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considered a prevailing party even though the court granted its

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anti-SLAPP motion because “the results of the motion were so

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insignificant that the party did not achieve any practical
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benefit from bringing the motion.”

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Serv., Inc., 139 Cal. App. 4th 328, 340 (4th Dist. 2006).

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crucial question is one of practicality; did anything of

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substance (technical victories notwithstanding) change in the

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posture of the case and the claims being lodged against the

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defendant after it brought the special motion to strike than were

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in existence beforehand.”

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Supp. 2d 1148, 1155 (S.D. Cal. 2010).

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Mann v. Quality Old Time
“The

Brown v. Elec. Arts, Inc., 722 F.

In Brown, the court determined that the defendant was

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not entitled to fees after the court granted its unopposed anti-

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SLAPP motion but gave the plaintiff leave to amend, and the

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plaintiff reasserted all of his state law claims in an amended

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complaint.

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F.3d at 1090).

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qualify as the “prevailing party” on its second motion to strike

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the amended complaint because the court simply declined to

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exercise supplemental jurisdiction over the state law claims,

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thus leaving the plaintiff free to assert the claims in state

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court.

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Id. at 1155-57 (discussing Verizon Del., Inc., 377
The court also held that the defendant did not

Id. at 1157.
In Moran v. Endres, 135 Cal. App. 4th 952 (2d Dist.

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2006), the state appellate court upheld the trial court’s denial

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of fees under subsection 425.16(c)(1) when the defendant moved to

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strike all eleven causes of action in the complaint, but

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prevailed only as to a purported cause of action for

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“conspiracy.”

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victory did not entitle defendant to fees because, although his

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motion was granted in part, the ruling “in every practical sense

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meant nothing.”

Id. at 954-56.

The court held that such a trivial

Id. at 956.
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Unlike Brown and Moran, the success of defendants’

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anti-SLAPP motion in this case was neither minor nor technical.

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In its Order granting defendants’ motion, the court addressed the

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merits and ultimately struck all of plaintiff’s state law claims.

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While the court agrees that plaintiff’s misappropriation and UCL

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claims were similar to her federal copyright claim, it was

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plaintiff, not defendants, who chose to assert those claims and

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defendants were entitled to utilize the anti-SLAPP statute to

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dispose of them.

With the elimination of the state law claims--

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especially the fraud claim--defendants undeniably “narrowed the

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scope of the lawsuit, limiting discovery, reducing potential

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recoverable damages, and altering the settlement posture of the

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case,” Mann, 139 Cal. App. 4th at 340.

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Nat’l Am. Life Ins. Co., 54 Cal. App. 3d 331, 336 (1976)

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(“Respondent’s claim of fraud . . . is in tort, and will support

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a punitive damage award upon proper proof.”); U.S. for Benefit &

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Use of Ehmcke Sheet Metal Works v. Wausau Ins. Cos., 755 F. Supp.

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906, 910-11 (E.D. Cal. 1991) (“Presumably, it is the potential

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for punitive damages inherent in the bad faith claim which makes

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the claim alluring.

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assert unwarranted settlement demands, and ultimately to coerce

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inflated settlements.”).

See, e.g., Miller v.

Such a threat could induce litigants to

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Moreover, the fact that plaintiff’s federal copyright

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claim remains is not indicative of defendants’ success on their

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anti-SLAPP motion because that claim is not subject to the state

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anti-SLAPP statute.

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defendants’ success on their anti-SLAPP motion as less

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significant simply because, in the same Order, the court denied

It would also be misguided to treat

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defendants’ motion for judgment on the pleadings as to

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plaintiff’s federal copyright claim simply because the two

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motions--which were actually filed one month apart--were heard on

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the same date.

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Accordingly, because defendants obtained the full

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extent of relief available to them through the anti-SLAPP statute

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and prevailed in eliminating plaintiff’s state law claims from

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this action, they are entitled to fees under subsection

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425.16(c)(1).

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II.

Calculating the Award

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“[T]he fee setting inquiry in California ordinarily

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begins with the ‘lodestar,’ i.e., the number of hours reasonably

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expended multiplied by the reasonable hourly rate.”

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Drexler, 22 Cal. 4th 1084, 1095 (2000); see Ketchum, 24 Cal. 4th

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at 1131 (indicating that the lodestar is used to calculate fees

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under the anti-SLAPP statute).

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that prevailing in the community for similar work.”

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22 Cal. 4th at 1095 (citing Margolin v. Reg’l Planning Comm’n,

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134 Cal. App. 3d 999, 1004 (2d Dist. 1982)).

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then by adjusted upward or downward by the court based on

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relevant factors.”

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Eastern District Local Rule 293(c) provides the following list of

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non-exhaustive factors that guide a court’s award of attorney’s

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fees:

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(1)
(2)

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(3)
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(4)
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PLCM Grp. v.

“The reasonable hourly rate is
PLCM Grp.,

The lodestar may

Ketchum, 24 Cal. 4th at 1132.

Specifically,

the time and labor required of the attorney(s);
the novelty and difficulty of the questions
presented;
the skill required to perform the legal service
properly;
the
preclusion
of
other
employment
by
the
attorney(s) because of the acceptance of the
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action;
the customary fee charged in matters of the type
involved;
whether the fee contracted between the attorney and
the client is fixed or contingent;
any time limitations imposed by the client or the
circumstances;
the amount of money, or the value of the rights
involved, and the results obtained;
the experience, reputation, and ability of the
attorney(s);
the “undesirability” of the action;
the
nature
and length
of the
professional
relationship between the attorney and the client;
awards in similar actions; and
such other matters as the Court may deem
appropriate under the circumstances.

(5)
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(6)
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(7)
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(8)
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(9)
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(10)
(11)

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(12)
(13)

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E.D. Local R. 293(c); see also Kerr v. Screen Extras Guild, Inc.,

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526 F.2d 67, 70 (9th Cir. 1975) (identifying the same factors as

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relevant).

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fee at the fair market value for the particular action.”

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Ketchum, 24 Cal. 4th at 1132.

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The purpose of adjusting the lodestar is to “fix a

Defendants propose a lodestar figure of $125,444.40.

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This amount accounts for the hours principally expended by Roger

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Myers, a partner of the law firm Holme Roberts Owen LLP (“HRO”),

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Katherine Keating, a Senior Associate of HRO, Leila Knox, an

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associate of HRO, and Joel Rayala, a paralegal of HRO.

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A.

Reasonable Hourly Rate
The first step in calculating the lodestar is

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determining the reasonable hourly rate, which is the rate

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“prevailing in the community for similar work.”

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Cal. 4th at 1095.

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forum in which the district court sits.”

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F.3d 496, 500 (9th Cir. 1997).

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district in which the court sits may be used “if local counsel

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was unavailable, either because they are unwilling or unable to

PLCM Group, 22

“Generally, the relevant community is the
Barjon v. Dalton, 132

However, rates outside of the

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perform because they lack the degree of experience, expertise, or

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specialization required to handle properly the case.”

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Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992); accord

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Mendenhall v. Nat’l Transp. Safety Bd., 213 F.3d 464, 471 n.5

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(9th Cir. 2000).

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rate from a city outside of where the court sits when the

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prevailing party has offered “substantive evidence” illustrating

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the unavailability of local counsel.

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1405-06.

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Gates v.

The Ninth Circuit has upheld use of a higher

See Gates, 987 F.2d at

Here, defendants seek hourly rates of $436.50 for

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Myers, $355.50 for Keating, $270.00 for Knox, and $207.00 for

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Rayala; these rates are discounted from counsel’s regular rates,

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which are $495.00, $400.00, $320.00, and $230.00, respectively.

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(Myers Decl. ¶ 30.)

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rates consistent with those in the San Francisco, not the

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Sacramento, legal community.

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explains that the “publishers defense bar in Northern California

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is extremely small,” with only one attorney in Sacramento, and

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the “pool of attorneys with expertise in defending copyright

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claims is relatively small,” with only two lawyers in Sacramento

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that are members of the American Intellectual Property Law

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Association.

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Defendants indicate that they are seeking

In support of this request, Myers

(Id. ¶¶ 4-5.)

Although this case involves a relatively simple

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copyright claim, plaintiff’s counsel indicated at oral argument

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that plaintiff does not object to the hourly rates defendants

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requested and agrees that the rates are reasonable.

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even assuming the rates defendants seek are higher than those in

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the Sacramento legal community, the court will use the unopposed
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Therefore,

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rates defendants proposed.
B.

Reasonable Number of Hours

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Defendants have submitted itemized billing for their

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work on the anti-SLAPP motion that details the work done by each

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employee.

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unreasonable because (1) defendants improperly attempt to recover

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for the costs for their unsuccessful motion for judgment on the

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pleadings and plaintiff’s warning regarding a motion for

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sanctions under Federal Rule of Civil Procedure 11; and (2) the

Plaintiff contends that the hours defendants seek are

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requested hours are excessive given defendants’ claimed expertise

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and the amount at stake in this action.

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Although the court heard argument on defendants’ anti-

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SLAPP and Rule 12(c) motions at the same hearing and decided both

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motions in the same order, defendants indicate that they limited

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their fee request to the hours expended on the anti-SLAPP motion.

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(See id. ¶ 29.)

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defendants’ bills corroborates this representation.

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almost all of the entries on defendants’ billings reference only

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work done on the anti-SLAPP motion.

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SLAPP motion on September 20, 2010, and did not file their Rule

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12(c) motion until October 18, 2010, and different evidence was

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filed with each motion.

A review of the docket in this case and
First,

Defendants filed their anti-

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Duplication appears possible, however, with respect to

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defendants’ reply brief, which addressed both motions, the joint

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hearing on the motions, and defendants’ review of this court’s

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Order.

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of the work done generally differentiate between each motion and

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defendants seek only the time spent on the anti-SLAPP motion.

With respect to the reply brief, defendants’ descriptions

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To

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the extent work was performed for both motions, such as reviewing

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plaintiff’s opposition, defendants are seeking only half of the

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time billed, which appears to be a reasonable adjustment.

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Similarly, defendants request only half of the amount of time

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they expended in traveling to and appearing at the hearing on

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both motions.

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billed to initially review the case or the 0.5 hours billed for

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Myers’ review of the court’s Order, and thus the court will award

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only half of this time.

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Defendants did not, however, reduce the 3.8 hours

On November 15, 2010, plaintiff’s counsel served a

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threatened motion for sanctions against defendants’ counsel

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pursuant to Rule 11.

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the court, defendants expended and seek reimbursement for 1.8

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partner hours and 4.4 associate hours in connection with the Rule

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11 motion.

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the threatened motion addressed both the anti-SLAPP and Rule

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12(c) motions and, more importantly, Rule 11 provides for

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monetary sanctions awarded against counsel only; thus, defending

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against the threatened motion was not necessary for defendants to

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obtain relief under the anti-SLAPP statute.

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court will not award the 6.2 hours attributable to work done in

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response to the threatened Rule 11 motion.

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Although the motion was never filed with

The court will not award defendants that time because

Accordingly, the

Defendants also seek reimbursement for 3.6 partner

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hours and 5.2 associate hours incurred to prepare an application

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for leave to reply to plaintiff’s response to defendants’

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objections, which the court ultimately denied.

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submitted this request after the court held oral argument on both

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motions and had taken them under submission.
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Defendants

Not only does the

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court believe that the general practice of objecting to evidence

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during motion practice is unproductive and unnecessary, see

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generally Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d

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1110, 1118-19 (E.D. Cal. 2006), defendants could have addressed

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the objections at the hearing or, at the very least, sought leave

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to file a response at that time.

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8.8 hours addressing a potential reply in support of objections

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after the matter was taken under submission and thus the court

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will not award fees for that time.

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It was unreasonable to expend

Plaintiff also contends that the hours defendants

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billed are excessive given the experience of defendants’ counsel,

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especially Myers.

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evidence supporting this contention.

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Sys., Inc. v. Cal. Ins. Guar. Ass’n, 163 Cal. App. 4th 550, 560-

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63, (2d Dist. 2008) (recognizing that, “[s]ince appellants

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submitted no evidence that the hours claimed by counsel were

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excessive, they appear to be asking that we declare as a matter

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of law that the hours were unreasonable,” and declining to do

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so); Maughan v. Google Tech., Inc., 143 Cal. App. 4th 1242, 1251

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(2d Dist. 2008) (discussing a declaration plaintiff submitted

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when affirming trial court’s significant reduction in fees as

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excessive).

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Plaintiff has failed, however, to submit any
See Premier Med. Mgmt.

While courts have awarded fees that are significantly

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less than the fees defendants seek, see, e.g., Sonoma Foods, Inc.

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v. Sonoma Cheese Factory, LLC, Civ. No. 07-00554, 2007 WL

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2729422, at *3 (N.D. Cal. Sept. 18, 2007) (reducing award to

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$6,167.50), courts have also awarded fees similar to the award

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defendants seek, see, e.g., Church of Scientology v. Wollersheim,
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42 Cal. App. 4th 628, 658-59 (2d Dist. 1996) (affirming award of

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$130,506.71), overruled on other grounds by Equilon Enters. v.

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Consumer Cause, Inc., 29 Cal. 4th 53 (2002).

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defendants’ itemized billings and the lack of any evidence from

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plaintiff about the number of hours that should have been billed

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in this case, the court will not arbitrarily reduce the award

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based on defendants’ expertise.

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Based on

Plaintiff also argues that the award should be reduced

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because it greatly exceeds the actual damages at issue in this

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case, which plaintiff estimated in her opposition at $5,000.00.

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Not only is this number inconsistent with plaintiff’s prior

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representation that her federal claim could result in $150,000.00

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in damages and the allegation in her Complaint that the amount in

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controversy exceeded $75,000.00 (Compl. ¶ 7), it also overlooks a

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potential award of punitive damages on plaintiff’s fraud claim,

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which could roughly reach ten times an award of actual damages.

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See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 581 (1996).

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her Complaint, plaintiff also alleges that she was promised to

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receive “attribution in the book for her work” and be “included

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in speaking engagements in connection with the book,” (Compl. ¶

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16), which a jury could have determined to have significant

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monetary value.

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discovery costs both sides could have incurred if the state law

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claims proceeded to trial.

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In

This amount also ignores the significant

Moreover, even if incurring the cost of litigating the

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anti-SLAPP motion might not have been a wise financial decision

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because defendants could have settled the case for less, reducing

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the award based on the actual damages at issue would dilute the
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anti-SLAPP statute’s purpose of encouraging defendants to hire

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private counsel to protect their free speech rights.

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at issue in a case should not dictate the value of one’s right to

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free speech.

The damages

5

Lastly, without citing any cases and for the first time

6

at oral argument, plaintiff claimed that the fee award defendants

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seek would be unconstitutional because it is disproportional to

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the damages at issue in this case.

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Constitution imposes limits on attorney’s fees akin to the limits

10

it imposes on punitive damages, plaintiff has not shown that the

11

fee award defendants seek is unconstitutionally disproportional

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to the potential damages at issue in this case.

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plaintiff claimed at oral argument that she would have sought an

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award under $40,000.00 at trial, this amount contradicts the

15

allegations in her Complaint and her prior representations about

16

the damages at issue in this case.

17

allegations about attribution and speaking engagements, nothing

18

prevented plaintiff from seeking a more significant award at

19

trial, and the court has no reason to assume that plaintiff would

20

have limited her request for damages if her state law claims had

21

survived defendants’ anti-SLAPP motion.

22

Even assuming the

Although

With her fraud claim and

Accordingly, the court will award defendants costs of

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$285.00 and fees for the following hours:

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Task
Review complaint and
initial research

25
26
27
28

Prepare motion to strike

Employee Hours Rate
Myers
5.45 $436.50

Fee
$2,378.93

Knox
Myers
Knox
Rayala

$1,809.00
$27,674.10
$15,714.00
$2,732.40

13

6.7
63.4
58.2
13.2

$270.00
$436.50
$270.00
$207.00

1
2
3
4
5
6
7
8
9
10
11
12
13

Review opposition and
Myers
prepare reply to motion to
strike
Knox
Keating
Rayala
Hearing on motion to strike Myers
Knox
Address plaintiff’s appeal Myers
Knox
Prepare fee request
Myers
Knox
Rayala
Review opposition and
Myers
prepare reply to fee
request
Knox
Keating
Rayala
Hearing on fee request
Myers
TOTAL

30.45 $436.50

$13,291.43

49.5
3.6
4.3
16.2
0.9
10.5
0.4
31.8
3.2
5.4
12.5

$270.00
$355.50
$207.00
$436.50
$270.00
$436.50
$270.00
$436.50
$270.00
$207.00
$436.50

$13,365.00
$1,279.80
$890.10
$7,071.30
$243.00
$4,583.25
$108.00
$13,880.70
$864.00
$1,117.80
$5,456.25

5.8
6
2.5
5

$270.00
$355.50
$207.00
$436.50

$1,566.00
$2,133.00
$517.50
$2,182.50
$118,858.05

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15

IT IS THEREFORE ORDERED that defendants’ motion for

16

attorney’s fees and costs be, and the same hereby is, GRANTED in

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the amount of $119,143.05.

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DATED: May 4, 2011

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