(PS) Chipman v. Nelson et al

Filing 605

ORDER signed by District Judge Troy L. Nunley on 9/11/2019 DENYING without prejudice #585 Motion for Attorney Fees. Defendant is permitted to file a renewed motion, if at all, within thirty (30) days of this Order.(Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICKIE L. CHIPMAN,

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Plaintiff,

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No. 2:11-cv-02770-TLN-EFB

v.
MARCIA F. NELSON, et al.,

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ORDER DENYING DEFENDANT’S
MOTION FOR ATTORNEY’S FEES AND
COSTS WITHOUT PREJUDICE

Defendants.

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This matter is before the Court pursuant to Defendant Jane Stansell’s (“Defendant”)

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Motion for Attorney’s Fees. (ECF No. 585.) Plaintiff Rickie Chipman (“Plaintiff”) opposes

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Defendant’s motion. (ECF No. 587.) The Court has carefully considered the arguments raised by

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both parties. For the reasons set forth below, Defendant’s Motion for Attorney’s Fees and Costs

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is hereby DENIED without prejudice.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff sued all Defendants on October 20, 2011, alleging violations of civil and

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Constitutional rights under 42 U.S.C. § 1983, and asserting several state law claims. (See ECF

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No. 1 at 7.) In February 2012, Defendants filed their first motion to dismiss and special motion to

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strike the state law claims pursuant to Cal. Code. Civ. Proc. § 425.12. (See ECF No. 25.)

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Plaintiff filed an opposition that same month. (ECF No. 49.) The magistrate judge construed the

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motion as a motion to amend Plaintiff’s complaint and granted it. (See ECF No. 64.) Plaintiff

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filed a first amended complaint on March 30, 2012. (ECF No. 74.) Thereafter, Plaintiff was

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allowed to amend and refile a second, third, fourth, and fifth amended complaint. (ECF Nos. 154,

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180, 246, & 336.) Plaintiff’s fifth amended complaint contained only state law claims. (See ECF

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No. 336.) Defendant filed a motion to dismiss and strike each one of Plaintiff’s subsequent

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amended complaints, totaling 5 motions to strike under California’s Anti-SLAPP statute since the

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inception of this litigation. (See ECF Nos. 25, 96, 187, 248, & 344.) In September 2015, this

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Court adopted the findings and recommendations of the magistrate judge (ECF No. 403) and

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granted Defendant’s motion to dismiss without leave for Plaintiff to amend (ECF No. 408).

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Judgment was entered for Defendant on October 13, 2017. (ECF No. 578.)

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In November 2017, Defendant filed a Motion for Attorney Fees, requesting $87,312.50 in

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fees. (ECF No. 585.) Plaintiff filed an Opposition to Defendant’s Motion for Attorney Fees,

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however, the opposition does not address the basis for the fee and the cost award sought, i.e., the

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anti-SLAPP statute; it merely attempts to re-allege Plaintiff’s original allegations. (See ECF No.

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587.)

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II.

LEGAL STANDARD

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A party may bring an anti-SLAPP special motion to strike in federal court. Thomas v.

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Fry’s Elecs., Inc., 400 F.3d 1206, 1206–07 (9th Cir. 2005); Vess v. Ciba-Geigy Corp USA, 317

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F.3d 1097, 1109 (9th Cir. 2003). A party may seek to specially strike state law claims brought in

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federal court on the basis of the court’s diversity subject matter jurisdiction, and state law claims

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that are supplemental to federal claims in an action premised on federal question jurisdiction. See

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Hilton v. Hallmark Cards, 599 F.3d 894, 900 n.2 (9th Cir. 2010) (“[W]e have long held that the
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anti-SLAPP statute applies to state law claims that federal courts hear pursuant to their diversity

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jurisdiction.”) (citing United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d

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963, 970–73 (9th Cir. 1999)); Globetrotter Software, Inc. v. Elan Computer Group, Inc., 63 F.

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Supp. 2d 1127, 1130 (N.D. Cal. 1999) (”[I]t appears that under the Erie analysis set forth in

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Lockheed the anti-SLAPP statute may be applied to state law claims which, as in this case, are

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asserted pendent to federal question claims.”).

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Regarding attorneys’ fees and costs, the California anti-SLAPP statute provides, in part,

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that except in certain specific circumstances, “a prevailing defendant on a special motion to strike

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shall be entitled to recover his or her attorney’s fees and costs.” Cal. Civ. Proc. Code § 425.16(c).

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Under California law, “any SLAPP defendant who brings a successful motion to strike is entitled

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to mandatory attorney fees.” Ketchum v. Moses, 24 Cal. 4th 1122, 1131 (2001). “[T]he

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Legislature intended that a prevailing defendant on a motion to strike be allowed to recover

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attorney fees and costs only on the motion to strike, not the entire suit.” Lafayette Morehouse,

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Inc. v. Chronicle Publ’g Co., 39 Cal. App 4th 1379, 1383 (1995). A successful defendant is also

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entitled to fees incurred in filing the motion for anti-SLAPP fees, also referred to as “fees on

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fees.” Ketchum, 24 Cal. 4th at 1141.

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The California Supreme Court has presumed that the California Legislature intended for

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anti-SLAPP fees to be calculated using the “lodestar” approach but did not intend to require use

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of the lodestar approach. See Ketchum, 24 Cal. 4th at 1136. In addressing fee-shifting statutes

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other than the anti-SLAPP statute, the Ninth Circuit has stated that the “lodestar” is calculated by

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multiplying the number of hours the prevailing party reasonably expended on the litigation by a

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reasonable hourly rate. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). It

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has further held that “[a]lthough in most cases, the lodestar figure is presumptively a reasonable

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fee award, the district court may, if circumstances warrant, adjust the lodestar to account for other

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factors which are not subsumed within it.” Id. The California Supreme Court’s description of the

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lodestar method, as applied in the anti-SLAPP context, is in accord. See Ketchum, 24 Cal. 4th at

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1131–32 (“[A] court assessing attorney fees begins with a touchstone or lodestar figure, based on

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the careful compilation of the time spent and reasonable hourly compensation of each attorney . . .
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involved in the presentation of the case.”). In Kethcum, the court considered adjustment of the

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lodestar in consideration of factors such as “. . . . (1) the novelty and difficulty of the questions

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involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the

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litigation precluded other employment by the attorneys, (4) the contingent nature of the fee

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award.” Id. at 1132.

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Although the Ninth Circuit has not expressly held that the anti-SLAPP statute’s fees

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provision applies to state law claims over which the district court has supplemental jurisdiction, it

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acknowledged that a party who prevailed on its anti-SLAPP motion that was combined with a

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motion to dismiss a Section 1983 claim was entitled to anti-SLAPP fees. See Fabbrini v. City of

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Dunsmuir, 631 F.3d 1299, 1302 (9th Cir. 2011) (“In the district court, the City filed in a single

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pleading the motion to dismiss the § 1983 malicious prosecution claim and the anti-SLAPP

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motion to strike the defamation claim. It is undisputed that the City is entitled to fees for having

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prevailed on the anti-SLAPP motion.”).

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III.

ANALYSIS

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It is undisputed that Defendant is the prevailing party with regard to her motion to dismiss

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and the anti-SLAPP motion. (See ECF No. 408.) Defendant successfully moved the Court to

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dismiss all of Plaintiff’s claims without leave to amend. (See ECF No. 403 at 30; ECF No. 408.)

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Plaintiff offers no substantive basis in opposition to an award of fees and costs under California’s

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anti-SLAPP statue. (See ECF No. 587.) Plaintiff merely attempts to re-assert her original causes

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of action against Defendant which were dismissed without leave to amend. (See ECF No. 587.)

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And, as set forth above, the Court finds Defendant is entitled to an award of fees, generally

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speaking. Thus, all that remains is the calculation of the appropriate fee award to which

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Defendant is entitled. Plaintiff only specifically opposes $1000 in fees for a meeting and an

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agreement, and otherwise uses her opposition to provide a lengthy narrative of the facts and

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history of the case. (See ECF No. 587 at 4.)

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A. Award of Fees and Costs to Which Defendant is Entitled

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Although Defendant is entitled to recover mandatory attorneys’ fees and costs pursuant to

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the anti-SLAPP statute, the records submitted in support of Defendant’s motion do not
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substantiate that Defendant is entitled to recover the roughly $87,312.50 sought. Claimants bear

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the burden of documenting the appropriate hours expended in the litigation. United States v.

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Biotronik, Inc., No. 2:09-CV-3617-KJM-EFB, 2015 WL 1291371, at *5 (E.D. Cal. Mar. 20,

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2015). The billing records submitted here do not provide sufficient detail to determine the

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amount of fees for work that was performed in connection to the anti-SLAPP portion of

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Defendant’s motion.

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Defendant’s lead defense counsel, William Muñoz, of the firm Murphy, Pearson, Bradley

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& Feeney, filed a declaration and a table of exhibits in support of Defendant’s request for a total

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award of $87,312.50 in attorneys’ fees and costs, purportedly incurred in connection with the

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portions of Defendant’s motions filed pursuant to California’s anti-SLAPP statute. (See ECF No.

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585-2.) In support of the request, Mr. Muñoz’s declaration states that four attorneys in his law

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firm represented Defendant in connection with her special motion to strike: Mr. Muñoz, who

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typically bills his time to private clients at a rate of $425 per hour; Gregory A. Bastian, who bills

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his time at a rate of $425 per hour; Robert W. Lucas, who bills his time at $350 per hour; and

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Heather A. Barnes, who bills her time at $300 per hour. (See ECF No. 585-2 at 4, 6.)

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However, the bills submitted in support of the motion reflect that the attorneys did not

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actually bill at the rates set forth in Mr. Munoz’s declaration. Instead, it appears each attorney’s

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rate was significantly reduced in this matter. For example, Mr. Muñoz’s stated “market rate” is

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$425 per hour, while the rate he actually billed Defendant’s insurer is $220 per hour. (See ECF

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No. 585-2 at 22.) There are similar discrepancies between the hourly rates charged by the other

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attorneys. Mr. Muñoz fails to sufficiently explain why he is entitled to fee calculations based on

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“market rate” that he charges private clients, as opposed to the much lower per hour rate that was

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actually billed to Defendant’s insurer. (See ECF No. 585-1 at 22.) Mr. Muñoz states that “[t]he

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cases interpreting attorney fee awards allow a party to recover attorney’s fees based on lodestar

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on ‘market rate’ rather than the actual negotiated billing rate charged.” (ECF No. 585-2 ¶ 20.)

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Yet the Court is not persuaded as to why Mr. Muñoz’s higher market rate is a reasonable rate,

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compared to his reduced billing rate. See Winters v. Jordan, No. 2:09-CV-00522 JAM, 2011 WL

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1549391, at *8 (E.D. Cal. Apr. 21, 2011) (finding a reduced hourly rate of $235 per hour charged
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to an insurer to be reasonable, when the “market rate” was $300–$375.) Thus, the Court is not

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convinced that the market rate claimed here is reasonable.

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Further — and most significantly — the Court cannot readily determine the number of

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hours at issue billed by Defendant’s attorneys. Mr. Muñoz declares, under penalty of perjury, that

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the total hours indicated are related to the special motion to strike. (See ECF No. 585-2 at 7–8.)

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But the Court cannot discern, based on the billing records submitted, which items are specifically

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connected to work on Defendant’s anti-SLAPP motion. For example, Mr. Muñoz’s declaration

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states Ms. Barnes spent 3.5 hours preparing Defendant’s anti-SLAPP motion. (ECF No. 585-2 at

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8.) He submitted billing statements for the month of January 2012. (ECF No. 585-2 at 19–22.)

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Some of the billing items claimed during this month could arguably go toward Defendant’s anti-

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SLAPP motion while others clearly are not related to the anti-SLAPP motion. (See ECF No. 585-

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2 at 19–22.) More specifically, on January 23, 2012, Ms. Barnes spent 0.70 hours on “research

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re[garding] elements for dismissal of attorney for Plaintiff’s mother from 1983 claims.” (ECF

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No. 585-2 at 20.) The time and fee summary indicate Ms. Barnes charged 12 hours total during

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this period. (ECF No. 585-2 at 22.) From February to May 2012, the billing statements show

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Ms. Barnes spent only .10 hours on Defendant’s case. (See ECF No. 585-2 at 29.) According to

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the billing statements submitted, the viability of an anti-SLAPP motion was not first discussed

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until February 2012. (ECF No. 585-2 at 26.) Based on the current records submitted, it is

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difficult for the Court to discern which of Ms. Barnes’s 12.1 hours charged during these periods

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went toward the 3.5-hour total claimed by Mr. Muñoz as going toward work on Defendant’s anti-

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SLAPP motion.

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The same is true for the 13.1 hours claimed by Mr. Muñoz, the 4.8 hours claimed by Mr.

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Bastian, and the 222.3 hours claimed by Mr. Lucas. (ECF No. 585-2 at 7.) For example, the

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billing statements in Exhibit D show many hours spent by Defendant’s attorneys reviewing other

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defendants’ filings in this action, and plaintiffs’ responses. (See, e.g., ECF No. 585-2 at 38.) It is

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unclear how many, if any, of these hours Defendant is claiming go toward the hours spent

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preparing the anti-SLAPP motion, and thus this Court will not rule on their permissibility. Courts

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within this district have determined that defendants are not entitled to recovery of attorneys’ fees
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and costs when the parties submit similarly vague billing entries. See Winters, 2011 WL

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1549391, at *5.

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In sum, while Defendant is entitled to an award of attorneys’ fees and costs pursuant to

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California’s anti-SLAPP statue, because the declarations and billing entries do not reliably

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establish the reasonability of the rate charged, and what specific fees and costs Defendant is

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legitimately entitled to, the Court denies Defendant’s motion without prejudice. Defendant may

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file a renewed motion for attorneys’ fees and declarations substantiating a reasonable award of

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attorneys’ fees and costs. If Defendant does so, counsel is directed to indicate which billing items

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Defendant claims go towards the hours spent as indicated on the table on page 7 of Mr. Muñoz’s

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declaration (ECF No. 585-2 at 7–8) so the Court can accurately determine whether Defendant is

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entitled to those fees and costs.

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IV.

CONCLUSION

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For the foregoing reasons, the Court DENIES Defendant’s motion for attorneys’ fees and

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costs (ECF No. 585) without prejudice. Defendant is permitted to file a renewed motion, if at all,

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within thirty (30) days of this Order.

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IT IS SO ORDERED.

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Dated: September 11, 2019

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Troy L. Nunley
United States District Judge

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