Graham-Sult et al v. Clainos et al

Filing 142

ORDER by Judge Claudia Wilken GRANTING DEFENDANTS 98 , 105 , 110 MOTIONS FOR ATTORNEYS FEES AND COSTS. (ndr, COURT STAFF) (Filed on 3/23/2012)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4
5

ALEXANDER GRAHAM-SULT and DAVID
GRAHAM,
Plaintiffs,

6
7

v.

10

Defendants.

8
9

United States District Court
For the Northern District of California

ORDER GRANTING
DEFENDANTS’
MOTIONS FOR
ATTORNEYS’ FEES
AND COSTS

NICHOLAS P. CLAINOS, RICHARD L.
GREENE, LINDA McCALL, GREENE
RADOVSKY MALONEY SHARE & HENNIGH
LLP, BILL GRAHAM ARCHIVES LLC,
d/b/a WOLFGANG’S VAULT, NORTON
LLC and WILLIAM E. SAGAN,

11

No. CV 10-4877 CW

12

________________________________/

13
14

Defendant Nicholas P. Clainos and Defendants Richard Greene,

15

Linda McCall and Greene Radovsky Maloney Share & Hennigh LLP

16

(collectively, Greene Defendants) move for an award of attorneys’

17

fees and costs pursuant to California Code of Civil Procedure

18

section 425.16, commonly known as California’s Anti-Strategic

19
Lawsuit Against Public Participation (Anti-SLAPP) statute.
20
21

Defendants Bill Graham Archives LLC, Norton LLC and William E.

22

Sagan (collectively, BGA Defendants) move for an award of

23

attorneys’ fees and costs under the Copyright Act, 17 U.S.C.

24

§ 505.

25

all three motions.

26

Plaintiffs Alexander Graham Sult and David Graham oppose

After a full consideration of the evidence and declarations

27
filed in support and in opposition, the Court GRANTS Clainos’s
28

1

Motion for Attorneys’ Fees and Costs and awards him $126,431.50 in

2

fees incurred and reasonable fees for the reply; GRANTS Greene

3

Defendants’ Motion for Attorneys’ Fees and Costs and awards them

4

$240,506 in fees incurred and reasonable “fees on fees”; and

5

GRANTS BGA Defendants’ Motion for Attorneys’ Fees and Costs and

6

awards them $134,243.25 in fees and $3,819.95 in costs incurred,

7
and reasonable “fees on fees.”
8
BACKGROUND

9

United States District Court
For the Northern District of California

10

In its Order of June 24, 2011, the Court granted Clainos’s

11

and Greene Defendants’ anti-SLAPP motions to strike and for

12

attorneys’ fees.

13

for an award of attorneys’ fees and fees incurred in filing

14

motions for anti-SLAPP fees (i.e. “fees on fees”) pursuant to

Clainos and Greene Defendants now move the Court

15
California Code of Civil Procedure section 425.16(c), which
16
permits a prevailing defendant to recover his or her attorneys’
17
18

fees and costs.

19

amounts of $133,431.50 and $260,506.50, respectively.

20

oppose both motions on the ground that the fees requested are

21

unreasonably high.

22
23

Clainos and Greene Defendants are requesting
Plaintiffs

Clainos argues that an award of $133,431.50 for attorneys’
fees and costs is reasonable.

The $133,431.50 figure comprises

24
$92,640.00 (approximately 235 hours) for the anti-SLAPP motion,
25
26

$20,118.50 incurred with respect to indemnity issues, $1,945.50

27

for case management matters, $11,727.50 for the fee request and an

28

estimated $7,000 for the reply.

Clainos submits detailed billing
2

1

records and declarations attesting to the reasonableness of the

2

rates of Clainos’s attorneys.

3

Dec., Ex. A; Stratton Dec. and Stumpf Dec.

4
5
6

Norman Dec., Ex. A; Norman Supp.

Greene Defendants request $240,506.50 in attorneys’ fees and
an estimated $20,000 for “fees on fees.”

Greene Defendants submit

records and declarations in support of charges by their attorneys

7
at the Howard Rice and Hinshaw law firms.

Falk Dec.; Hughes Dec.;

8
9

United States District Court
For the Northern District of California

10

Mallen Dec. and Chivers Dec.
Plaintiffs argue that the amounts requested by Clainos and

11

Greene Defendants are unreasonably high.

With respect to

12

Clainos’s motion, Plaintiffs contend that 235 hours spent on an

13

anti-SLAPP motion is excessive.

14

argue that Clainos should be entitled to fees only for the motion

Olson Dec. ¶ 14.

Further, they

15
to strike.

They contend that an award in excess of $71,857.50

16
would be improper.

Johnston Dec. ¶ 5.

17
18

Plaintiffs advance similar arguments in opposing Greene

19

Defendants’ motion.

20

unreasonably high because of Greene Defendants’ decision to retain

21

both the Howard Rice and Hinshaw law firms.

22

that the involvement of the Howard Rice law firm was unnecessary

23

They claim that the amount requested is

Plaintiffs allege

and, further, that the collaboration between the Howard Rice and

24
Hinshaw law firms created inefficiency.

Accordingly, Plaintiffs

25
26

argue that the fees incurred by the Howard Rice law firm or

27

incurred as a result of the collaboration between the Howard Rice

28

and Hinshaw law firms should be excluded.
3

Olson Dec. ¶¶ 7-13.

1

Moreover, Plaintiffs contend that the Court should not award fees

2

for tasks not related directly to the motion to strike, notably

3

the motion to dismiss.

4

$15,000 would be a more reasonable amount for “fees on fees.”

5

In the Order of June 24, 2011, the Court granted BGA

6

Lastly, Plaintiffs allege that $10,000 to

Defendants’ motion to dismiss pursuant to Federal Rule of Civil

7
Procedure 12(b)(6) for failure to state a claim.

Plaintiffs

8
9

invoked federal question jurisdiction (28 U.S.C. 1338(a)) and

United States District Court
For the Northern District of California

10

brought five claims against BGA Defendants: conversion, unjust

11

enrichment, promissory estoppel, copyright infringement and

12

declaratory relief.

13

leave to amend.

14

of the Copyright Act, for an award of attorneys’ fees in the

The Court dismissed all five claims without

BGA Defendants now move, pursuant to section 505

15
amount of $177,366.75 (including $43,123.50 in “fees on fees”) and
16
costs in the amount of $3,819.95.

Ranahan Dec. and Ranahan Sec.

17
18
19

Supp. Dec.
Plaintiffs oppose the motion.

They contend that BGA

20

Defendants are not entitled to a recovery of attorneys’ fees and

21

costs under the Copyright Act because the only issue adjudicated--

22

ownership and title to the poster copyrights--does not arise under

23

the Copyright Act.

In the alternative, Plaintiffs argue, the

24
Court should grant BGA Defendants fees incurred with respect only
25
26
27

to defending the copyright claim.

Plaintiffs contend that the

Court should reduce the fee request by at least ninety percent.

28
4

DISCUSSION

1
2

I. Legal Standard

3

California’s anti-SLAPP statute provides that “a prevailing

4

defendant on a special motion to strike shall be entitled to

5

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

6

Cal. Civ. Proc.

Code § 425.16(c); see also Bernardo v. Planned Parenthood Fed. of

7
Am., 115 Cal. App. 4th 322, 360-367 (2004) (explaining policy
8
9

behind mandatory fees and costs provision of anti-SLAPP statute).
In the Ninth Circuit, reasonable attorneys’ fees are

United States District Court
For the Northern District of California

10
11

determined by first calculating the “lodestar.”

Jordan v.

12

Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987).

13

‘lodestar’ is calculated by multiplying the number of hours the

14

prevailing party reasonably expended on the litigation by a

“The

15
reasonable hourly rate.”

Morales v. City of San Rafael, 96 F.3d

16
359, 363 (9th Cir. 1996).

There is a strong presumption that the

17
18

lodestar figure represents a reasonable fee.

19

1262.

20

Jordan, 815 F.2d at

In calculating the lodestar, the court must determine both a

21

reasonable number of hours and a reasonable hourly rate for each

22

attorney.

23

Morales, 96 F.3d at 363.

In calculating a reasonable

number of hours, the applicant must justify his or her claim by

24
submitting detailed time records.

The court may adjust these

25
26

hours down if it believes the documentation to be inadequate, if

27

the hours were duplicative, or if the hours were either excessive

28

or unnecessary.

Chalmers v. City of Los Angeles, 796 F.2d 1205,
5

1

1210 (9th Cir. 1986).

2

appropriate only in extraordinary cases, such as when the

3

attorneys faced exceptional risks of not prevailing or not

4

recovering any fees.

5
6

An upward adjustment of the lodestar is

Id. at 1212.

Determining a reasonable hourly rate is also a critical
inquiry.

Jordan, 815 F.2d at 1262 (citing Blum v. Stenson, 465

7
U.S. 886, 895 n.11).

In establishing the reasonable hourly rate,

8
9

the district court should take into account (1) the novelty and

United States District Court
For the Northern District of California

10

complexity of the issues, (2) the special skill and experience of

11

counsel, (3) the quality of representation, (4) the results

12

obtained and (5) the contingent nature of the fee agreement.

13

of Burlington v. Dague, 505 U.S. 557, 562-63 (1992).

14

factors are subsumed in the initial lodestar calculation, and

City

These

15
should not serve as independent bases for adjusting fee awards.
16
Morales, 96 F.3d at 363-64.

Reasonable fees are generally

17
18

calculated according to the prevailing market rates in the forum

19

district.

20

1992).

21
22
23

Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir.

The Supreme Court has recognized that, while it is
appropriate for the district court to exercise its discretion in
determining an award of attorneys’ fees, it remains important for

24
the court to provide “a concise but clear explanation of its
25
26

reasons for the fee award.”

Hensley v. Eckerhart, 461 U.S. 424,

27

437 (1983); Hall v. Bolger, 768 F.2d 1148, 1151 (9th Cir. 1985)

28

(in computing an award, the district court should provide a
6

1

“detailed account of how it arrives at appropriate figures for

2

‘the number of hours reasonably expended’ and ‘a reasonable hourly

3

rate’”) (quoting Blum, 465 U.S. at 898).

4

Under the Copyright Act, an award of attorneys’ fees to the

5

prevailing party is within the Court’s discretion: “In any civil

6

action under this title, the court in its discretion may allow the

7
recovery of full costs by or against any party . . . .

[T]he

8
9

court may also award a reasonable attorney’s fee to the prevailing

United States District Court
For the Northern District of California

10

party as part of the costs.”

17 U.S.C. § 505.

In Fogerty v.

11

Fantasy, Inc., 510 U.S. 517, 534 (1994), the Supreme Court held,

12

“Prevailing plaintiffs and prevailing defendants are to be treated

13

alike.”

14

guide the trial court’s discretion in determining whether to award

The Court approved a list of “nonexclusive” factors to

15
attorneys’ fees to a prevailing party in a copyright infringement
16
action: “frivolousness, motivation, objective unreasonableness
17
18

(both in the factual and in the legal components of the case) and

19

the need in particular circumstances to advance considerations of

20

compensation and deterrence.”

21

Topstone Indus., Inc., 788 F.2d 151, 156 (3d Cir. 1986)).

22

Court stressed that such factors may be used so long as they are

23

Id. at 534 n.19 (quoting Lieb v.
The

“faithful to the purposes of the Copyright Act and are applied to

24
prevailing plaintiffs and defendants in an evenhanded manner.”
25
26
27
28

Id.
The Supreme Court confirmed that an award of attorneys’ fees
pursuant to section 505 is within the discretion of the trial
7

1

court: “‘There is no precise rule or formula for making these

2

determinations,’ but instead equitable discretion should be

3

exercised ‘in light of the considerations we have identified.’”

4

Id. at 534 (quoting Hensley, 461 U.S. at 436-37).

5
6

The Ninth Circuit applies the factors prescribed by the Court
in Fogerty, noting that trial courts should focus on the “purposes

7
of the Copyright Act (to promote creativity for the public good)
8
9

and apply the factors in an evenhanded manner to prevailing

United States District Court
For the Northern District of California

10

plaintiffs and prevailing defendants alike.”

Jackson v. Axton, 25

11

F.3d 884, 890 (9th Cir. 1994).

12

another factor to consider, “the degree of success obtained,” id.

13

at 890, and has stressed that “blameworthiness” or “exceptional

14

circumstances” are not necessary for an award of attorneys’ fees

The Ninth Circuit has also added

15
to a defendant, see Fantasy, Inc. v. Fogerty, 94 F.3d 553, 558,
16
559 (9th Cir. 1996);1 Historical Research v. Cabral, 80 F.3d 377,
17
18

378 (9th Cir. 1996).

19

the prevailing party in a copyright action may recover attorneys’

20

fees in defending that claim or any related claims.

21

Cat Ass'n, Inc. v. Gilbreath, 340 F.3d 829, 833 (9th Cir. 2003).

22

II.

23
24

Moreover, the Ninth Circuit has stated that

Traditional

Clainos and Greene Defendants
A. Reasonable Hours
With respect to Clainos’s motion, upon a thorough review of

25
the billing records and declarations, the Court finds that the 235
26
27
28

1

This case stems from the Supreme Court’s remand to the
Ninth Circuit, and subsequent trial and appellate proceedings.
8

1

hours Clainos’s attorneys spent on the anti-SLAPP motion is not

2

unreasonably high.

3

Ex. A.

4

convincingly that Clainos’s attorneys should have spent fewer

5

hours on the anti-SLAPP motion.

6

See Norman Dec., Ex. A and Norman Supp. Dec.,

Plaintiffs do not offer specific evidence to demonstrate

Their assumption that Clainos’s

attorneys could have benefitted from work done by Greene

7
Defendants’ attorneys who filed their motion first is speculative.
8
9

Plaintiffs have not demonstrated persuasively that the fee award

United States District Court
For the Northern District of California

10

Clainos is requesting is unreasonably high in light of the facts

11

of this particular case.

12

With respect to Greene Defendants’ motion, the Court finds

13

that the time expended by the attorneys involved is not

14

unreasonable.

It is possible that the collaboration between the

15
two law firms may have led to duplication in some instances.
16
Here, however, Plaintiffs do not offer concrete examples or
17
18

evidence to show persuasively that the work of the Howard Rice law

19

firm was unnecessary or that the collaboration between the Howard

20

Rice and Hinshaw law firms created inefficiency.

21

satisfied with Greene Defendants’ explanation and justification

22

that the involvement of the Howard Rice law firm was essential

23

The Court is

and, further, that the collaboration between the Howard Rice and

24
Hinshaw law firms did not create inefficiency.

See Falk Dec.,

25
26
27
28

Hughes Dec., Mallen Dec. and Chivers Dec.
Plaintiffs also argue that Clainos and Greene Defendants
should be entitled to fees incurred only with respect to the
9

1

motion to strike.

2

recover fees not incurred directly on the anti-SLAPP motion if the

3

work done is “based entirely on a common factual scenario” and the

4

issues are “inextricably intertwined.”

5

Lardner, 553 F. Supp. 2d 1178, 1184 (S.D. Cal. 2008).

6

The Court disagrees.

A prevailing party can

Kearney v. Foley &
Here,

Clainos and Greene Defendants defended successfully against a

7
SLAPP suit.

Order Granting Clainos’s and Greene Defendants’ Anti-

8
9

SLAPP Motions to Strike and for Attorneys’ Fees, Docket No. 93 at

United States District Court
For the Northern District of California

10

20:2 and 21:14-15.

The Court finds that the work of Clainos’s

11

attorneys on indemnity and case management issues, as well as the

12

work of Greene Defendants’ attorneys on the motion to dismiss, is

13

“based entirely on a common factual scenario” and “inextricably

14

intertwined” with the anti-SLAPP motion.

See Kearney, 553 F.

15
Supp. 2d at 1184.

Accordingly, Clainos and Greene Defendants’

16
reasonable defense fees are recoverable.
17
18
19

B. Reasonable Hourly Rates
Plaintiffs do not object to the hourly rates of Clainos and

20

Greene Defendants’ attorneys.

21

submitted by Clainos and Greene Defendants, the Court is satisfied

22

that the hourly rates of the attorneys involved are reasonable for

23

attorneys with comparable levels of experience working on similar

24

Upon a review of the declarations

issues in this market.

25
For the foregoing reasons, the Court GRANTS the motions for
26
27
28

attorneys’ fees and costs.

The Court awards Clainos $126,431.50

in fees incurred and reasonable fees for the reply.
10

The Court

1

awards Greene Defendants $240,506 in fees incurred and reasonable

2

“fees on fees.”

3

III. BGA Defendants

4
5
6

Based on the Fogerty factors, and an equitable exercise of
discretion, the Court finds that an award of attorneys’ fees and
costs to BGA Defendants is warranted.

BGA Defendants defended

7
successfully against an action brought under the copyright laws by
8
9

securing a dismissal without leave to amend.

The fact that

United States District Court
For the Northern District of California

10

Plaintiffs brought this action under the copyright laws even

11

though they did not own the copyrights in question does not prove

12

that Plaintiffs filed this action frivolously or that their motive

13

was improper.

14

unreasonable because Plaintiffs could not meet the elements of a

Nevertheless, this action is objectively

15
copyright infringement claim or allege facts to demonstrate an
16
actual case or controversy with respect to the other four non17
18

copyright claims.

19

Defendants will help deter similarly unreasonable lawsuits.

20

An award of attorneys’ fees and costs to BGA

Contrary to Plaintiffs’ argument, the Court determines that

21

BGA Defendants may recover all reasonable defense fees because the

22

copyright infringement claim is related to the claims of

23

conversion, unjust enrichment, promissory estoppel and declaratory

24
relief. See Traditional Cat Ass’n, Inc., 340 F.3d at 833.
25
26

Plaintiffs have failed to show that the four non-copyright claims

27

are unrelated to the copyright infringement claim.

28

claims stem from the same set of facts and relate to the core
11

All five

1

issue of ownership of the copyrights in question.

2

awards fees to BGA Defendants for their successful defense of the

3

copyright infringement and related non-copyright claims.

4
5
6

The Court

Upon a careful review of the records submitted by BGA
Defendants, the Court is satisfied that the amount requested
represents a reasonable “lodestar” figure.

The number of hours

7
BGA Defendants’ attorneys expended on this litigation is not
8
9

excessive; and the hourly rate is reasonable because the evidence

United States District Court
For the Northern District of California

10

indicates that the blended rate reduced the attorneys’ fees by

11

approximately $30,000.

12

Dec.

13

necessary costs for their successful defense.

14

See Ranahan Dec. and Ranahan Sec. Supp.

Furthermore, BGA Defendants can recover “fees on fees” and

Thus, the Court awards BGA Defendants $134,243.25 in fees and

15
$3,819.95 in costs incurred, and reasonable “fees on fees.”
16
CONCLUSION
17
18

For the foregoing reasons, the Court GRANTS Clainos’s Motion

19

for Attorneys’ Fees and Costs and awards him $126,431.50 in fees

20

incurred and reasonable fees for the reply; GRANTS Greene

21

Defendants’ Motion for Attorneys’ Fees and Costs and awards them

22

$240,506 in fees incurred and reasonable “fees on fees”; and

23

GRANTS BGA Defendants’ Motion for Attorneys’ Fees and Costs and

24
awards them $134,243.25 in fees and $3,819.95 in costs incurred,
25
26
27

and reasonable “fees on fees.”

Within seven days, Clainos shall

submit documentation for fees incurred for the reply and Greene

28
12

1

Defendants and BGA Defendants shall submit documentation for fees

2

incurred for “fees on fees.”

3

If necessary, Plaintiffs may file a response of five pages or

4

less, seven days thereafter, addressing only the reasonableness of

5

the additional hours claimed, without repeating their arguments.

6

Defendants may file a reply with the same restrictions.

A further

7
order will issue thereafter.
8
9

United States District Court
For the Northern District of California

10
11

IT IS SO ORDERED.
Dated: 3/23/2012
CLAUDIA WILKEN
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13