Lynn v. Sherman et al

Filing 284

ORDER Denying Ex Parte Motion To Strike Motions For Attorneys' Fees [ECF No. 282 ]. Signed by Judge Linda Lopez on 11/17/2022. (ddf)

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Case 3:19-cv-00605-LL-AHG Document 284 Filed 11/17/22 PageID.3840 Page 1 of 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LAURA LYNN HAMMETT, Plaintiff, 12 13 v. 14 MARY E. SHERMAN, et al. 15 Case No.: 19cv605-LL-AHG ORDER DENYING EX PARTE MOTION TO STRIKE MOTIONS FOR ATTORNEYS’ FEES Defendants. [ECF No. 282] 16 17 18 This matter is before the Court on Plaintiff Laura Lynn Hammett’s ex parte Motion 19 to Strike the Motions for Attorneys’ Fees filed by Defendants Ellis Roy Stern, Alan N. 20 Goldberg, Stern and Goldberg (together, the “S&G Defendants”), and Defendants Patrick 21 C. McGarrigle and McGarrigle, Kenney & Zampiello (together, the “MKZ Defendants”) 22 (collectively the “Attorney Defendants”), filed on November 15, 2022. ECF No. 282. The 23 Attorney Defendants filed their opposition to Plaintiff’s ex parte Motion on the same date. 24 ECF No. 283. The Court finds this matter suitable for determination on the papers and 25 without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local 26 Rule 7.1.d.1. Upon review of the parties’ submissions and the applicable law, the Court 27 DENIES Plaintiff’s Motion to Strike for the reasons stated below. 28 1 19cv605-LL-AHG Case 3:19-cv-00605-LL-AHG Document 284 Filed 11/17/22 PageID.3841 Page 2 of 4 1 I. 2 The pending motions for attorneys’ fees by the MKZ Defendants [ECF No. 270] and 3 the S&G Defendants [ECF No. 271] (together, the “fee motions”) were filed following: (1) 4 the undersigned’s September 30, 2022 order [ECF No. 266] denying Plaintiff’s motion to 5 vacate or reconsider District Judge Janis L. Sammartino’s March 23, 2020 order [ECF No. 6 111] granting the fee motions of the attorney defendants; and (2) the undersigned’s 7 September 30, 2022 order [ECF No. 267] granting the S&G Defendants’ ex parte motion 8 to file a combined motion for attorneys’ fees. The underlying order awarding attorneys’ 9 fees stems from the Court’s determination that the Attorney Defendants were prevailing 10 parties under California’s anti-strategic lawsuit against public participation (“anti- 11 SLAPP”) statute. ECF No. 111. The Court adopts the summary of the relevant procedural 12 history as stated in its prior order denying reconsideration of that order. ECF No. 266 at 2. PROCEDURAL BACKGROUND 13 II. 14 Plaintiff argues that the fee motions of the MKZ Defendants [ECF No. 270] and the 15 S&G Defendants [ECF No. 271] should be stricken for failure to combine their motions 16 pursuant to Rule 3(D) of the undersigned’s Civil Chambers Rules.1 ECF No. 282. 17 Specifically, Plaintiff asserts that the “argument and relief requested in both motions are 18 substantially the same” noting that both motions state that Plaintiff’s claims were clearly 19 barred by California anti-SLAPP statute and that an attorney fee award is mandatory for 20 reasonable fees incurred in prevailing on the anti-SLAPP motion. Id. at 2. Plaintiff further 21 states that she “is not willing to do the extra work to graciously forgive the licensed 22 attorneys’ error and is asking instead that the motions be struck.” Id. at 4. DISCUSSION 23 24 25 26 27 28 Plaintiff also calls attention to an electronic notification issue which prevented her from receiving prompt notice of the fee motions. ECF No. 282 at 2. The Court is satisfied that Plaintiff has resolved the notification issue and has received courtesy copies of the fee motions as she states in the instant Motion. The Court is further satisfied that Plaintiff has had time to review and respond to the fee motions given that the Court granted the parties’ joint motion to extend Plaintiff’s time to respond to the fee motions. ECF No. 277. 1 2 19cv605-LL-AHG Case 3:19-cv-00605-LL-AHG Document 284 Filed 11/17/22 PageID.3842 Page 3 of 4 1 In response, the Attorney Defendants assert that Rule 3(D) does not apply to the fee 2 motions because “[w]hile some of the legal authority supporting entitlement to attorney 3 fees and costs is the same or similar in defendants’ motions, the substantive issues, 4 requested relief, and analysis for S&G Defendants and MKZ Defendants is different.” ECF 5 No. 283 at 3. They submit that the analysis of the reasonableness of fees requested is 6 different because they “were each represented by different counsel and incurred different 7 fees for different work[,]” which is further highlighted by the inclusion of fees incurred on 8 appeal in the S&G Defendants’ motion, which was explicitly authorized by the Court. Id. 9 The Attorney Defendants additionally note that to the extent the fee motions are based on 10 similar legal authority, they are scheduled for hearing on the same date, and the Attorney 11 Defendants stipulated to a continuation of both hearing dates at Plaintiff’s request. Id. 12 The Court agrees with the reasoning put forth by the Attorney Defendants. Both fee 13 motions are brought pursuant to section 425.16(c)(1) of the California Code of Civil 14 Procedure under which “a prevailing party on a special motion to strike shall be entitled to 15 recover his or her attorney’s fees and costs.” CAL. CODE CIV. PROC. § 425.16(c)(1). Under 16 that section, an award of attorneys’ fees and costs is mandatory, and “an award of fees may 17 include not only the fees incurred with respect to the underlying claim, but also the fees 18 incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 19 425.16.” Ketchum v. Moses, 24 Cal. 1122, 1141 (2001). The anti-SLAPP statute’s fee 20 award is “designed to ‘reimburse the prevailing defendant for expenses incurred in 21 extracting herself from a baseless lawsuit’ rather than to reimburse the defendant for all 22 expenses incurred in the baseless lawsuit.” 569 E. Cnty. Boulevard LLC v. Backcountry 23 Against the Dump, Inc., 6 Cal. App. 5th 426, 433 (2016) (quoting Wanland v. Law Offs. of 24 Mastagni, Holstedt & Chiurazzi, 141 Cal. App. 4th 15, 22 (2006)). Ultimately, while the 25 award of fees is mandatory, “the Court has broad discretion in determining the reasonable 26 amount of attorney fees and costs to award to a prevailing defendant.” Metabolife Int’l, 27 Inc. v. Wornick, 213 F. Supp. 2d 1220, 1222 (S.D. Cal. 2002) (citing Dove Audio, Inc. v. 28 Rosenfeld, Meyer & Susman, 47 Cal. App. 4th 777, 785 (1996)). 3 19cv605-LL-AHG Case 3:19-cv-00605-LL-AHG Document 284 Filed 11/17/22 PageID.3843 Page 4 of 4 1 This Court’s prior orders already determined that the S&G Defendants and MKZ 2 Defendants were prevailing parties, based on the Court’s analysis under Coltrain v. 3 Shewalter, 66 Cal. App. 4th 94 (1998), and awarded fees to the Attorney Defendants for 4 expenses incurred up to the Court’s initial order granting fees. See ECF Nos. 111 at 48; 5 266 at 9-10. In other words, the substance of the present fee motions is not whether 6 Plaintiff’s claims against the Attorney Defendants was barred by the anti-SLAPP statute or 7 whether an award of fees is mandatory under that statute, but whether the fees sought by 8 the Attorney Defendants is reasonable. As such, Plaintiff’s contention that the fee motions 9 are substantially similar and warrant consolidated briefing is incorrect. Each of the fee 10 motions is supported by different evidence and declarations because the S&G Defendants 11 and MKZ Defendants were represented by different attorneys who performed different 12 work. See ECF Nos. 270, 271. Accordingly, this Court’s analysis of whether the Attorney 13 Defendants’ respective fee motions are reasonable is separate, and consolidated briefing is 14 not required by the undersigned’s chambers rules in this instance. 15 Additionally, Plaintiff’s contention that requiring her to respond to separate fee 16 motions would prevent her from economizing on responses and cause her to do extra work 17 are belied by her own assertion that “her response to the S & G motion will be exactly what 18 she wrote in opposition to MKZ, just changing the names.” ECF No. 282 at 2. 19 III. 20 For the reasons stated above, Plaintiff’s Ex Parte Motion to Strike Attorney 21 Defendants’ Motions for Attorney Fees Set for Hearing on December 2, 2022 is DENIED. 22 ECF No. 282. 23 24 CONCLUSION IT IS SO ORDERED. Dated: November 17, 2022 25 26 27 28 4 19cv605-LL-AHG

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