San Diego Puppy, Inc. et al v. San Diego, City of et al

Filing 110

ORDER Denying Motion for Reconsideration and Granting Motion for Attorney's Fees (ECF No. 86 , 92 ). Plaintiffs' motion for reconsideration is Denied and Defendant Bryan Pease's motion for reconsideration is Granted. The Court awards Defendant Companion Animal Protection Society attorneys fees in the amount of $4,250.00. Defendants Bryan Pease and Animal Protection and Rescue League may each file a motion for attorneys fees and costs within fourteen (14) days of the entry of this Order. Failure to do so shall be deemed a waiver of fees and costs. Plaintiffs must file their opposition within twenty-one (21) days of the entry of this Order. Signed by Judge Barry Ted Moskowitz on 3/17/2016. (rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SAN DIEGO PUPPY, INC., a
California corporation; DAVID
SALINAS and VERONICA
SALINAS, husband and wife,
Plaintiffs,

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ORDER DENYING MOTION FOR
RECONSIDERATION AND
GRANTING MOTION FOR
ATTORNEY’S FEES

v.

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Case No.: 13-cv-2783-BTM-DHB

SAN DIEGO ANIMAL DEFENSE
TEAM, business entity of unknown
form; ANIMAL PROTECTION AND
RESCUE LEAGUE, a California
501(c)(3) corporation;
COMPANION ANIMAL
PROTECTION SOCIETY,
Delaware non-profit corporation;
BRYAN PEASE, a California
resident,
Defendants.

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Plaintiffs have filed a motion for reconsideration of the Court’s Order granting

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Defendants’ special motions to strike under Cal. Civ. Proc. Code § 425.16 and the

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Court’s Order granting attorney’s fees related to the special motions to strike.
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13-cv-2783-BTM-DHB

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Plaintiffs argue that they are entitled to relief under Federal Rule of Civil Procedure

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60(b)(6) because Plaintiffs’ former attorney Carolyn Chan (“Chan”) failed to oppose

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Defendants’ special motions to strike and failed to inform Plaintiffs of the risk posed

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by the attorney’s fee provision in Cal. Civ. Proc. Code § 425.16. Gross negligence

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by counsel amounting to “virtual abandonment” can be an “extraordinary

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circumstance” that justifies relief under Rule 60(b). Mackey v. Hoffman, 682 F.3d

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1247, 1251 (9th Cir. 2012) (citation omitted). Gross negligence is defined as

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“neglect so gross that it is inexcusable,” and “vitiates the agency relationship that

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underlies our general policy of attributing to the client the acts of his attorney.” Id.

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(citation omitted). Plaintiffs assert that Chan committed gross negligence and

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abandoned Plaintiffs by not opposing the special motions to strike. The Court finds

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that Plaintiffs have not made a requisite showing that they are entitled to relief

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under the theory that Chan committed gross negligence because Plaintiffs were

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on notice that Chan had withdrawn as their attorney of record and Plaintiffs chose

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to move forward with the case pro se. Id. at 1252-53 (client typically bears risk of

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attorney’s negligent conduct unless attorney abandons client without notice).

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Defendant Bryan Pease also filed a motion for reconsideration of the Court’s

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Order granting in part and denying in part motions for attorney’s fees as it pertains

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to attorney Gerald Singleton’s hourly rate. The Court ordered the Singleton Law

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Firm to supplement the record. Attorney Gerald Singleton provided the Court with
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copies of standard retainer agreements that he uses, affidavits of other attorneys

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regarding prevailing fees in the community, and rate determinations in other cases

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in the Southern District of California. See United Steelworkers of Am. v. Phelps

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Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990) (affidavits of attorneys regarding

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prevailing fees in the community, and rate determinations in other cases are

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satisfactory evidence of prevailing market rate). The Court finds that Singleton’s

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requested rate of $650 per hour is in line with those prevailing in the community

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for similar services by lawyers of reasonably comparable skill, experience and

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reputation. Therefore, the Court amends its Order granting in part and denying in

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part motions for attorney’s fees only as it pertains to Singleton’s hourly rate. The

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Court allows the recovery of 8.65 hours worked by Singleton at $650 per hour

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($5622.50). This results in an additional fee recovery of $1946.25.

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For the reasons discussed above, Plaintiffs’ motion for reconsideration is

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DENIED and Defendant Bryan Pease’s motion for reconsideration is GRANTED.

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Defendants are entitled to attorney’s fees under Cal. Civ. Proc. Code § 425.16 for

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their oppositions to Plaintiffs’ motion for reconsideration of the Court’s Order

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granting Defendants’ special motions to strike. Christian Research Inst. v. Alnor,

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165 Cal. App. 4th 1315, 1320 (2008) (appellate challenges concerning motion to

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strike also subject to award of fees). The Court awards Defendant Companion

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Animal Protection Society attorney’s fees in the amount of $4,250.00. Defendants
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Bryan Pease and Animal Protection and Rescue League may each file a motion

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for attorney’s fees and costs within fourteen (14) days of the entry of this Order.

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Failure to do so shall be deemed a waiver of fees and costs. Plaintiffs must file

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their opposition within twenty-one (21) days of the entry of this Order.

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IT IS SO ORDERED.

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Dated: March 17, 2016

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13-cv-2783-BTM-DHB