Bilema et al v. Bostic et al

Filing 57

ORDER Denying Defendants' 52 Request for Attorneys' Fees. Signed by Judge Michael M. Anello on 8/7/2017. (ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 17 SOUTHERN DISTRICT OF CALIFORNIA FRANK URIARTE, RUDY ALARCON, LUIS CASILLAS, STEVEN GARCIA, GERMAN DURAN, GABRIEL RODRIGUEZ, ISAIAS NAVARRO, and STEPHEN FRAZIER, Case No.: 15cv1606-MMA (PCL) ORDER DENYING DEFENDANTS’ REQUEST FOR ATTORNEYS’ FEES [Doc. No. 52] Plaintiffs, v. MICHAEL BOSTIC, CITY OF CALEXICO, RICHARD WARNE, and GONZALO C. GERARDO, 18 Defendants. 19 20 21 On May 26, 2017, the Court granted in part and denied in part Defendants’ motion 22 to dismiss Plaintiffs’ Second Amended Complaint (SAC), and granted Defendants’ 23 motion to strike Plaintiffs’ remaining state law claims pursuant to California’s anti- 24 SLAPP1 statute, California Code of Civil Procedure § 425.16. See Doc. No. 50. 25 Defendants requested an award of attorneys’ fees and costs pursuant to section 26 27 28                                                                   1 “SLAPP stands for strategic lawsuits against public participation.” Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569, 1573 (2005). -1- 15cv1606-MMA (PCL) 1 425.16(c)(1), and requested leave to file further briefing regarding the proper amount. 2 Pursuant to section 425.16, a prevailing defendant on a motion to strike “shall be entitled 3 to recover his or her attorney’s fees and costs.” Cal. Civ. Proc. Code § 425.16(c)(1). 4 Accordingly, the Court granted Defendants’ request, and ordered Defendants to file a 5 supporting declaration of counsel outlining the basis for the fees and costs incurred, and 6 further ordered that Defendants’ brief not exceed 15 pages, excluding exhibits. See Doc. 7 No. 50. The Court allowed Plaintiff to respond in no more than 8 pages. Defendants 8 have filed a declaration of counsel, which Plaintiffs oppose. For the reasons set forth 9 below, the Court DENIES Defendants’ request for fees. 10 PROCEDURAL BACKGROUND 11 On July 20, 2015, Plaintiffs filed this action against Defendants alleging numerous 12 causes of action. Defendants moved to dismiss the Complaint pursuant to Federal Rules 13 of Civil Procedure 12(b)(1) and 12(b)(6), and moved to strike the state law claims 14 pursuant to California Code of Civil Procedure § 425.16. Doc. Nos. 7, 8, 9. The Court 15 granted Defendants’ motion to dismiss, dismissing some claims with prejudice and 16 granting Plaintiffs leave to amend those claims dismissed without prejudice. Doc. No. 17 20. The Court denied Defendants’ motion to strike without prejudice based on its 18 dismissal of all claims. Doc. No. 20. 19 Plaintiffs then filed the First Amended Complaint (FAC), and Defendants filed a 20 motion to dismiss and a motion to strike the state law claims. Doc. No. 23. The Court 21 granted in part and denied in part Defendants’ motion to dismiss. Doc. No. 35. 22 Regarding Plaintiffs’ state law claims, the Court dismissed them all without prejudice and 23 with leave to amend. The Court also denied Defendants’ motion to strike the FAC’s state 24 law claims without prejudice, again based on the Court’s dismissal of all state law claims. 25 Doc. No. 35. 26 27 28 -2- 15cv1606-MMA (PCL) Subsequently, Plaintiffs filed the SAC.2 Doc. No. 39. The SAC alleges First 1 2 Amendment retaliation pursuant to 42 U.S.C. § 1983, and state law claims for violations 3 of the Meyers-Milias-Brown Act (“MMBA”) pursuant to California Government Code 4 sections 3502 and 3506, and for defamation and false light. Defendants moved to dismiss 5 the SAC pursuant to Rule 12(b)(6), and moved to strike all state law claims pursuant to 6 California Code of Civil Procedure § 425.16. Doc. Nos. 42, 43. With respect to 7 Plaintiffs’ state law claims, the Court dismissed the MMBA claims with prejudice for 8 failure to state a claim, and granted Defendants’ motion to strike Plaintiffs’ defamation 9 and false light claims. See Doc. No. 50. Because the Court granted Defendants’ motion 10 to strike, the Court allowed Defendant to file the instant declaration supporting their 11 request for fees and costs. See Doc. Nos. 50, 52. 12 DISCUSSION 13 On June 12, 2017, defense counsel filed a brief declaration under penalty of 14 perjury in support of Defendants’ request for fees. Counsel requests a fee award in the 15 amount of $16,100.00 for work that he and an associate completed. Counsel states that 16 the associate attorney “did the majority of the work related to this motion to strike.” See 17 Doc. No. 52, ¶ 3. Also, counsel declares that the “firm researched and prepared motions 18 to strike and motions to dismiss, as well as replies in support” as to each of the three 19 iterations of the complaint filed over the course of this litigation. See Doc. No. 52, ¶ 5. 20 Defense counsel states that the firm “has been paid more than $70,000.00 for the work 21 done . . . after the complaint was filed.” See Doc. No. 52, ¶ 5. He states, “[w]e prepared 22 and submitted detailed and specific billing statements for our client, but we did not 23 allocate our time to each of the various counts alleged in each complaint.” See Doc. No. 24 52, ¶ 5. But, counsel states, “[i]t would be very difficult, if not impossible, to determine 25 exactly how much time was spent evaluating, researching, and addressing the specific 26 counts which have been stricken.” See Doc. No. 52, ¶ 6. Thus, counsel “account[s] for 27                                                                   28 2 The SAC omitted Joseph Bielma as a plaintiff, and Maritza Hurtado as a defendant. -3- 15cv1606-MMA (PCL) 1 the time attributed to the stricken defamation/false light claim by virtue of the occurrence 2 and relationship of that stricken claim relative to the claims not stricken,” as follows: 3 The first two versions of plaintiffs’ complaint each listed five counts, and the Second Amended Complaint listed three counts. Accordingly, the defamation/false light claim appeared three times and therefore accounts for 3/13 (or 23%) of the total claims addressed through defendants’ several motions. 23% x $70,000.00 = $16,100.00. To be clear, what I am proposing is that it would be fair and reasonable to assume that 23% of the attorneys [sic] time spent on this matter after the complaint was filed has been devoted to addressing the defamation false light [sic] claim which has been stricken, and it would be reasonable for the court to require Plaintiffs to reimburse our clients for those fees. 4 5 6 7 8 9 10 11 12 13 14 15 16 See Doc. No. 52, ¶ 6. Counsel declares that he was admitted to the California Bar in 1977, and has practiced law for 38 years. He attests that his associate has been practicing law since he was admitted to the California Bar in 1995. Regarding their rates, counsel declares: 17 Prior to November of 2015, my billing rate on this file was $175 per hour, and after November 2015, my billing rate for this file has been $195 per hour. Prior to November of 2015, Mr. Borgen’s billing rate on this file was $155 per hour, and after November 2015, his billing rate for this file has been $165 per hour. 18 19 20 21 22 See Doc. No. 52, ¶ 3. Counsel urges that “[b]ased on [his] experience, these rates are 23 well within the range of reasonable for Southern California attorneys.” See Doc. No. 52, 24 ¶ 3. 25 Under California law, where California’s anti-SLAPP statute provides for the 26 attorneys’ fee award, courts use the lodestar method to determine the award. Ketchum v. 27 Moses, 17 P.3d 735, 744 (Cal. 2001). Under the lodestar method, courts first determine a 28 lodestar amount based on a “careful compilation of the time spent and reasonable hourly -4- 15cv1606-MMA (PCL) 1 compensation of each attorney . . . involved in the presentation of the case.” See id. at 2 741. Although the courts have discretion in determining fee awards, the determination of 3 the lodestar figure is “so fundamental to arriving at an objectively reasonable amount,” 4 that “the exercise of that discretion must be based on the lodestar adjustment method.” 5 Id. (citing Press v. Lucky Stores Inc., 667 P.2d 704 (1983)). Courts calculate the lodestar 6 by multiplying the number of hours reasonably expended on the relevant matters by the 7 reasonable hourly rate for similar work in the same community. PLCM Grp. v. Drexler, 8 997 P.2d 511, 518 (2000), as modified (June 2, 2000). “The lodestar figure may then be 9 adjusted, based on consideration of factors specific to the case, in order to fix the fee at 10 the fair market value for the legal services provided.” Id. This procedure “ensur[es] that 11 the amount awarded is not arbitrary.” Id. 12 The party seeking fees bears the burden of demonstrating that the amount 13 requested is reasonable. De La Riva Const., Inc. v. Marcon Eng’g, Inc., No. 11-CV-52- 14 MMA DHB, 2014 WL 794807, at *4 (S.D. Cal. Feb. 27, 2014). “[T]rial courts must 15 carefully review attorney documentation of hours expended; ‘padding’ in the form of 16 inefficient or duplicative efforts is not subject to compensation.” See Ketchum, 17 P.3d 17 at 741. “Although ‘a fee request ordinarily should be documented in great detail,’ the 18 amount of required evidence will depend on the nature of the case.” See Computer 19 Econ., Inc. v. Gartner Grp., Inc., No. 98-CV-0312 TW (CGA), 1999 WL 33178020, at 20 *8 (S.D. Cal. Dec. 14, 1999) (quoting Weber v. Langholz, 39 Cal. App. 4th 1578, 1587 21 (1995)). While attorneys need not necessarily submit contemporaneous time records 22 under California law, attorneys must provide sufficiently detailed documentation of 23 services rendered and hours expended to ensure that trial courts are not “placed in the 24 position of simply guessing at the actual value of the attorney[s’] services.” See Martino 25 v. Denevi, 182 Cal. App. 3d 553, 559 (1986). 26 Here, Defendants do not provide sufficient information for the Court to calculate 27 the applicable lodestar figure. Specifically, the Court is unable to discern (1) the number 28 of hours reasonably expended, or (2) the reasonable hourly rate for similar work in the -5- 15cv1606-MMA (PCL) 1 community. Defendants do not specify the number of hours expended by counsel. In 2 order to fairly assess the fee request, the Court must determine the number of hours 3 expended by each attorney on the issues presented in Defendants’ motions to strike. 4 Regarding the reasonableness of the hourly rates provided, counsel states that the 5 proffered rates “are well within the range of reasonable for Southern California 6 attorneys.” See Doc. No. 52, ¶ 3. While the rates appear quite reasonable, under 7 California law, counsel must specify for what type of work those rates are reasonable, 8 and must demonstrate that those rates are reasonable in the relevant market, for the same 9 type of work. Defendants do not provide the Court with this information. For example, 10 counsel states that the rates are reasonable in “Southern California,” but the relevant 11 market is San Diego. See De La Riva Const., Inc., 2014 WL 794807, at *5 (“Because 12 Plaintiff litigated this action in San Diego, the San Diego legal community is the relevant 13 market . . . .”). 14 Further, the Court notes that Defendants “may recover fees and costs only for the 15 motion to strike, not the entire litigation.” Christian Research Inst. v. Alnor, 165 Cal. 16 App. 4th 1315, 1320 (2008). Here, in order to satisfy their burden on a motion to strike, 17 Defendants were required to make a “threshold showing” that the state law causes of 18 action arose from protected activities. See Jarrow Formulas, Inc. v. LaMarche, 31 19 Cal.4th 728, 733 (2003). Then, the burden shifted to Plaintiffs to show probability of 20 prevailing on the claims. Id. Accordingly, Defendants are only entitled to fees and costs 21 related to hours expended researching and briefing those issues. It can be difficult to 22 accurately apportion hours expended on relevant issues, but it appears that the $16,100.00 23 requested by Defendants would necessarily include time spent on unrelated issues. 24 California law provides that a court cannot adequately determine the 25 reasonableness of a fee request where the “only evidence presented in support of [a] 26 motion for attorney fees [is] the attorney’s request for a flat fee for ‘services rendered,’” 27 and where no documentation, “such as billing or time records, were submitted to the 28 court, nor was an attempt made to explain, in more than general terms, the extent of -6- 15cv1606-MMA (PCL) 1 services rendered to the client.” See Computer Econ., Inc., 1999 WL 33178020, at *8 2 (quoting Martino, 182 Cal. App. 3d at 559–60). As such, the Court cannot award fees for 3 “work unrelated to the anti-SLAPP motion,” or “work that was unnecessary or 4 duplicative or excessive in light of the issues fairly presented.” See 569 E. Cty. 5 Boulevard LLC v. Backcountry Against the Dump, Inc., 6 Cal. App. 5th 426, 440 (2016), 6 as modified on denial of reh’g (Dec. 29, 2016). In this case, where the parties have 7 litigated several motions to dismiss and motions to strike, the risk of inefficient or 8 duplicative efforts is heightened, as is the need for thorough fee documentation. 9 In sum, the Court is unable to determine the reasonableness of Defendants’ fee 10 request. Any award based on the information provided by Defendants would necessarily 11 be arbitrary. See Martino, 182 Cal. App. 3d at 558 (“[I]n the absence of such crucial 12 information as the number of hours worked, billing rates, types of issues dealt with and 13 appearances made on the client’s behalf, the trial court is placed in the position of simply 14 guessing at the actual value of the attorney’s services.”). 15 16 17 18 CONCLUSION Based on the foregoing, the Court DENIES Defendants’ request for attorneys’ fees. See Doc. No. 52. IT IS SO ORDERED. 19 20 21 22 Dated: August 7, 2017 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 23 24 25 26 27 28 -7- 15cv1606-MMA (PCL)

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