Opinion
Case No.: 13-cv-2783-BTM-DHB
09-28-2015
SAN DIEGO PUPPY, INC., a California corporation; DAVID SALINAS and VERONICA SALINAS, husband and wife, Plaintiffs, v. 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.
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR ATTORNEY'S FEES
Defendants have filed motions for attorney's fees. For the reasons discussed below, Defendants' motions for attorney's fees are GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
On November 25, 2013, Plaintiffs filed their original complaint asserting twelve causes of action. Defendants Animal Protection and Rescue League ("APRL"), Bryan Pease ("Pease"), and Companion Animal Protection Society ("CAPS") each brought a special motion to strike Plaintiffs' complaint pursuant to Cal. Civ. Proc. Code § 425.16. On September 11, 2014, the Court granted each Defendant's special motion to strike and directed each Defendant to file a motion for attorney's fees. The Court also gave Plaintiffs leave to file an amended complaint only as to Count VI, which alleged a violation of 42 U.S.C. § 1985.
On September 23, 2014, Plaintiffs filed a two-page First Amended Complaint ("FAC"). On November 6, 2014, Plaintiffs filed what the Court considered as a motion for leave to amend their FAC and a proposed Second Amended Complaint. On June 12, 2015, the Court dismissed Plaintiffs' FAC and denied Plaintiffs' motion for leave to amend the FAC.
On June 29, 2015, the Court ordered the Singleton Law Firm to submit papers itemizing its attorney's fees in its representation of Defendant Pease.
II. LEGAL STANDARD
Defendants APRL, Pease, and CAPS each seek to recover the attorney's fees they incurred in connection with prosecuting the special motions to strike and the instant motions for attorney's fees.
As the prevailing parties on their special motions to strike, Defendants are entitled to reasonable attorney's fees and costs. Cal. Civ. Proc. Code § 425.16(c). Defendants may recover attorney's fees and costs only for the motion to strike, not the entire litigation. Christian Research Inst. v. Alnor, 165 Cal. App. 4th 1315, 1320 (2008) (citations omitted).
The amount of the prevailing party's reasonable attorney's fees is calculated by utilizing the lodestar method. Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008). To calculate the "lodestar," the court multiplies the number of hours the prevailing party reasonably expended on the litigation by a reasonable rate. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). There is a strong presumption that the lodestar figure represents a reasonable fee. Harris v. Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994).
However, courts may adjust the lodestar figure upward or downward based upon the following factors enunciated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975): (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the "undesirability" of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. "Among the subsumed factors presumably taken into account in either the reasonable hours component or the reasonable rate component of the lodestar calculation are: (1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation, (4) the results obtained and (5) the contingent nature of the fee agreement." Morales, 96 F.3d at 364 n.9.
III. DISCUSSION
Plaintiffs argue that Defendants should not be granted attorney's fees because Plaintiffs have not acted in "bad faith." Doc. 71 at 3. But as the prevailing parties in their special motions to strike, Defendants are "entitled" to reasonable attorney's fees and costs. Cal. Civ. Proc. Code § 425.16(c); Christian Research Inst., 165 Cal. App. 4th at 1321.
Plaintiffs do not dispute the reasonableness of the hourly rates charged or the number of hours billed by each of the attorneys who represented Defendants APRL, Pease, and CAPS. A. Animal Protection and Rescue League ("APRL")
Defendant Animal Protection and Rescue League ("APRL") is represented by attorneys David Simon ("Simon") and Bryan Pease ("Pease"). Simon's hourly rate is $425 per hour. Pease's hourly rate is $375 per hour. Based on the experience of the billing attorneys and standard rates in the community, the Court finds that the rates are reasonable. See Doc. 57, Simon Decl., Exh. A.
APRL seeks attorney's fees in the amount of $67,959.38. Simon billed 40.25 hours at $425 per hour and Pease billed 75.20 hours at $375 per hour. Both attorneys requested a 1.5 lodestar multiplier to account for the contingent nature of their representation of APRL. As detailed below, the Court will not grant the full amount requested. The Court makes reductions for, among other things, excessive time spent on certain tasks and work that should not be billed to the client.
1. David Simon's Fees
| Date | Description | TimeBilled | TimeAllowed | Reason forReduction |
|---|---|---|---|---|
| 12/13/13 | Review APRLfiling | 0.35 | 0 | Vaguedescription;presumably foropposition toTRO, work notrelated to motionto strike |
| 12/13/13 | Exchangeemails withPease re filingand hearing | 0.40 | 0 | Vaguedescription;presumably foropposition toTRO, work notrelated to motionto strike |
| 12/13/13 | Review andresearch basisfor Plaintiffs'TROapplication | 2.00 | 0 | Work not relatedto motion to strike |
| 12/13/13 | Prepare forTRO hearing | 0.75 | 0 | Work not relatedto motion to strike |
| 12/13/13 | Participate intelephonehearing re TRO | 1.25 | 0 | Work not relatedto motion to strike |
| 1/10/14 | ReviewPlaintiffs'attorney'smotion towithdraw | 0.35 | 0 | Work not relatedto motion to strike |
| 1/17/14, | Review notice | 0.40 | 0.10 | Each notice was |
| 2/5/14 | of voluntarydismissalagainst SanDiego HumaneSociety, City of | (0.20 foreachvoluntarydismissal) | less than one-Page and did notrequire more thana minute to review |
| San Diego;related emails | ||||
| 1/23/14 | Review andreply tomultiple emailsfrom counsel;reply to emailfrom Singleton | 0.45 | 0 | Vaguedescription;presumably worknot related tomotion to strikesince already filed |
| 1/30/14 | Review jointmotion toextend time torespond | 0.20 | 0.10 | Joint motion lessthan two pageslong would takeno more than afew minutes toreview |
| 2/13/14 | Review emailfrom courtclerk; emailand phone callwith Pease resame | 0.40 | 0 | Vague description |
| 2/14/14 | Reviewnumerousemails rechanging dateof anti-SLAPPhearing | 0.20 | 0.10 | Scheduling ahearing shouldnot require therequested time |
| 2/18/14 | Review emailfrom courtclerk; emailPease re same | 0.20 | 0 | Vague description |
| 2/22/14 | Phone call withPease | 0.20 | 0 | Vague description |
| 3/3/14 | Phone call andemail withPease re casestatus | 0.35 | 0 | Vague description |
| 3/8/14,3/19/14,3/27/14 | Review orderschedulingsettlement | 0.60 | 0.10 | Scheduling ordersnot substantivethat requires time |
| conference andcalendar | to review;calendaringshould not requirerequested time | |||
| 5/5/14,5/6/14,5/20/145/24/14 | Emails withPease; reviewmotion andorders re:Plaintiffs'attorney'smotion towithdraw | 0.40 | 0 | Vaguedescription; worknot related tomotion to strike |
| 9/23/14 | Download andreviewPlaintiffs' FirstAmendedComplaint andexhibits | 0.35 | 0 | Work not relatedto motion to strike |
| 10/9/14 | Review andreply to emailsfrom co-counsel re12(b)(6) motion | 0.35 | 0 | Work not relatedto motion to strike |
Simon billed approximately 7.95 hours on the motion for attorney's fees. The Court finds that 5 hours would have been sufficient to prepare the motion for attorney's fees.
2. Bryan Pease's Fees
| Date | Description | TimeBilled | TimeAllowed | Reason forReduction |
|---|---|---|---|---|
| 12/2/13,12/3/13 | Review noticeof deficiencyfrom clerk | 0.20(0.10 foreachnotice) | 0.10 | Notice is not asubstantive noticeor order thatrequires muchtime to review |
| 12/12/13 | Review motionfor TRO | 4.50 | 0 | Work not relatedto motion to strike |
| 12/12/13 | Review emailfrom court clerk | 0.10 | 0 | Work not relatedto motion to strike;vague description |
| 12/13/13 | Opposition toTRO | 3 | 0 | Work not relatedto motion to strike |
| 12/13/13 | Review City ofSan Diego'sOpposition toTRO | 1 | 0 | Work not relatedto motion to strike |
| 12/13/13 | Hearing onTRO | 1 | 0 | Work not relatedto motion to strike |
| 12/16/13 | Review ordergranting jointmotion toextend time torespond and"minute entryforproceedings" | 0.20 | 0 | Order and minuteentry notsubstantive thatrequires time toreview |
| 12/11/13,12/30/13,1/30/13 | Review jointmotion toextend time torespond | 0.30(0.10 foreach jointmotion) | 0.10 | Each joint motionless than twopages long wouldtake no more thana minute to review |
| 1/3/14,2/5/14 | Review ordergranting jointmotion toextend time torespond | 0.20(0.10 foreachorder) | 0 | Three-sentenceorder notsubstantive thatrequires time toreview |
| 1/10/14 | ReviewPlaintiffs'attorney'smotion towithdraw | 2.50 | 0 | Work not relatedto motion to strike |
| 1/17/14 | Review orderdenyingPlaintiffs' | 0.20 | 0 | Work not relatedto motion to strike;one-page order |
| attorney'smotion towithdraw | would take nomore than aminute to review | |||
| 1/17/14 | ReviewPlaintiffs'attorney'snotice ofappearance | 0.10 | 0 | Work not relatedto motion to strike;notice is notsubstantive thatrequires time toreview |
| 1/18/14,2/5/14 | Review noticeof voluntarydismissalagainst SanDiego HumaneSociety, City ofSan Diego | 0.20(0.10 foreachvoluntarydismissal) | 0.10 | Each notice wasless than one-Page and did notrequire more thana minute to review |
| 1/23/14 | ReviewPlaintiffs'attorney'smotion towithdraw | 0.50 | 0 | Work not relatedto motion to strike |
| 1/23/14 | Review orderto show causere Plaintiffs'attorney'smotion towithdraw | 0.20 | 0 | Work not relatedto motion to strike;one-paragraphorder notsubstantive thatrequires time toreview |
| 2/6/14 | Review ordergrantingPlaintiffs'attorney'smotion towithdraw | 0.20 | 0 | Work not relatedto motion to strike;one-page orderwould take nomore than aminute to review |
| 2/14/14 | Email withcourt clerk andother attorneysre: schedulinghearing | 0.30 | 0.10 | Scheduling ahearing shouldnot require therequested time |
| 2/18/14 | Email withcourt clerk andother attorneysre: hearing offcalendar | 0.20 | 0.10 | Canceling ahearing shouldnot require therequested time |
| 3/3/14 | Email withcourt clerk andother attorneysre: status ofanti-SLAPPruling | 0.20 | 0.10 | Asking court restatus of ordershould not requirethe requestedtime |
| 3/7/14 | Review orderdenying asmoot SanDiego HumaneSociety'smotion todismiss | 0.10 | 0 | Work not relatedto motion to strike |
| 4/24/14 | Review orderto show causere Plaintiffs'attorney failingto appear atENE | 0.20 | 0.10 | Two-page OSCshould not requirethe requestedtime |
| 5/2/14 | ReviewPlaintiffs'attorney'sdeclaration inresponse toOSC | 0.30 | 0.10 | One-sentencedeclaration did notrequire more thana minute to review |
| 5/13/14 | Phone withclerk re: anti-SLAPP hearingoff calendar,correspondwith otherattorneys | 0.50 | 0.10 | Vaguedescription;canceling ahearing shouldnot require therequested time |
| 5/20/14 | Review orderre Plaintiffs' | 0.10 | 0 | Work not relatedto motion to strike |
| attorney'smotion towithdraw | ||||
| 5/23/14 | ReviewPlaintiffs'attorney'smotion towithdraw | 0.50 | 0 | Work not relatedto motion to strike |
| 6/2/14 | Review orderto show causere Plaintiffs'attorney'smotion towithdraw | 0.10 | 0 | Work not relatedto motion to strike |
| 7/12/14 | Review ordergrantingPlaintiffs'attorney'smotion towithdraw | 0.10 | 0 | Work not relatedto motion to strike |
| 8/25/14 | Review noticeof substitutionof attorney | 0.10 | 0 | Work not relatedto motion to strike |
| 9/18/14 | Review motionto substituteattorney | 0.10 | 0 | Work not relatedto motion to strike |
| 9/23/14 | ReviewPlaintiffs' FirstAmendedComplaint | 0.40 | 0 | Work not relatedto motion to strike |
| 9/24/14 | Meeting withCardiff re: FAC | 0.60 | 0 | Work not relatedto motion to strike |
| 9/30/14 | Review orderre FAC | 0.1 | 0 | Work not relatedto motion to strike |
Simon projected that he would work 8 hours and Pease projected that he would work 12 hours to "draft reply papers and prepare for and participate in hearing on fee motion." The Court finds that 3 hours each would have been more than sufficient for Simon and Pease to analyze, research, and draft the reply.
The Court finds the other hours spent to be reasonable. Taking into account the reduction of hours detailed above, the Court will allow the recovery of 23.5 hours worked by Simon at the hourly rate of $425 and 48.8 hours worked by Pease at the rate of $375, for a total of $28,287.50. The Court finds that the hourly rate provides adequate and reasonable compensation and a review of the Kerr factors does not support a lodestar multiplier. B. Bryan Pease ("Pease")
Defendant Bryan Pease ("Pease") is represented by attorney Todd T. Cardiff ("Cardiff") and the Singleton Law Firm, APC. Cardiff's hourly rate is $350 per hour. Attorneys Gerald Singleton ("Singleton") and Jessica McHarrie ("McHarrie") and Paralegal Tyler Waters ("Waters") from the Singleton Law Firm also represented Pease. Singleton's hourly rate is $650 per hour. McHarrie's hourly rate is $175 per hour. Waters' hourly rate is $65 per hour. Based on the experience of the billing attorneys and standard rates in the community, the Court finds that the rates are reasonable except as to Singleton for whom the Court finds $425 to be a reasonable hourly rate (the same as for David Simon).
Pease seeks attorney's fees in the amount of $33,475.00. Cardiff billed 42 hours ($14,700.00) and requested a 1.3 lodestar multiplier to account for the contingent nature of his representation of Pease ($19,110.00). Cardiff also billed an additional 7 hours ($2450.00) for Pease's Reply to Plaintiffs' Opposition to Defendants' Motions for Attorney's Fees. Singleton billed 8.75 hours ($5687.50), McHarrie billed 35.4 hours ($6195.00), and Waters billed 0.5 hours ($32.50). The Singleton Law Firm did not request a lodestar multiplier. As detailed below, the Court will not grant the full amount requested. The Court makes reductions for, among other things, excessive time spent on certain tasks and work that should not be billed to the client.
Pease's moving papers state $31,317.50 as the total amount of attorney's fees. However, the Singleton Law Firm corrected the number of hours it actually billed in its supplemental submission. Cardiff also billed additional time for drafting Pease's Reply to Plaintiffs' Opposition to Defendants' Motions for Attorney's Fees. Therefore, according to the Court's calculation, the correct total amount of attorney's fees sought is $33,475.00.
1. Todd T. Cardiff's Fees
| Date | Description | TimeBilled | TimeAllowed | Reason forReduction |
|---|---|---|---|---|
| 12/12/13 | Telephone callwith Plaintiffs'attorney | 0.10 | 0 | Vague description |
| 12/13/13 | Review andanalyze TRO | 1.50 | 0 | Work not relatedto motion to strike |
| 12/13/13 | Review andanalyzeAPRL'sOpposition toTRO | 0.40 | 0 | Work not relatedto motion to strike |
| 12/13/13 | Review andanalyze City ofSan Diego'sOpposition toTRO | 0.80 | 0 | Work not relatedto motion to strike |
| 12/13/13 | TRO hearingand travel | 3.00 | 0 | Work not relatedto motion to strike |
| 12/19/13 | Review andanalyze City ofSan Diego'sdiscovery onPlaintiffs | 0.20 | 0 | Work not relatedto motion to strike |
| 12/20/13 | Review City ofSan Diego'sNotice toProduce | 0.10 | 0 | Work not relatedto motion to strike |
| 1/10/14 | Review andanalyzePlaintiffs'attorney'snotice ofmotion towithdraw | 0.50 | 0 | Work not relatedto motion to strike |
| 1/31/14 | Telephone callwith client re: | 0.30 | 0 | Vaguedescription; work |
| Plaintiffs andscheduling | not related tomotion to strike | |||
| 2/3/14 | Reviewstipulation forCity of SanDiego toextend time torespond | 0.20 | 0 | Work not relatedto motion to strike |
| 5/4/14 | ReviewPlaintiffs'attorney'sdeclaration re:failure toappear atsettlementconference;discuss withclient | 0.60 | 0 | Work not relatedto motion to strike |
| 9/23/14 | Review andanalyzePlaintiffs' FAC | 0.40 | 0 | Work not relatedto motion to strike |
| 9/24/14 | Discuss withparalegalcalendar forfiling responseto FAC; filemaintenance | 0.10 | 0 | Work not relatedto motion to strike |
| 9/24/14 | Meeting withclient todiscuss FAC | 0.60 | 0 | Work not relatedto motion to strike |
Cardiff billed approximately 10.7 hours on the motion for attorney's fees and stated that he anticipates spending an additional 2.5 hours on the same fee motion. The Court finds that 5 hours would have been sufficient to prepare the motion for attorney's fees.
Cardiff also billed 10 hours to draft Pease's Reply to Plaintiffs' Opposition to Defendants' Motions for Attorney's Fees. The Court finds that 5 hours would have been more than sufficient to analyze, research, and draft the reply.
2. Gerald Singleton's Fees
| Date | Description | TimeBilled | TimeAllowed | Reason forReduction |
|---|---|---|---|---|
| 1/14/14 | Exchangedemails withclient andemailed Tylerre issuesraised by client | 0.10 | 0 | Vague descriptionof emails andwork not relatedto motion to strike |
The Court finds the other hours spent to be reasonable. Taking into account the reduction of hours detailed above, the Court will allow the recovery of 25 hours worked by Cardiff at the hourly rate of $350 ($8750.00). The Court finds that the hourly rate provides adequate and reasonable compensation and a review of the Kerr factors does not support a lodestar multiplier. The Court will also allow the recovery of an additional 5 hours ($1750.00) to Cardiff for drafting Pease's Reply to Plaintiffs' Opposition to Defendants' Motions for Attorney's Fees. The Court allows the recovery of 8.65 hours worked by Singleton ($3676.25), 35.4 hours worked by McHarrie ($6195.00), and 0.5 hours worked by Tyler ($32.50). In sum, the Court awards a total fee award of $20,403.75. C. Companion Animal Protection Society ("CAPS")
Defendant Companion Animal Protection Society ("CAPS") is represented by attorneys Gretel Smith ("Smith") and John T. Maher ("Maher"). Smith's hourly rate is $250 per hour. Maher's hourly rate is $350 per hour. Based on the experience of the billing attorneys and standard rates in the community, the Court finds that the rates are reasonable.
CAPS seeks attorney's fees in the amount of $18,087.50 (Smith billed 53.8 hours at $250 per hour and Maher billed 13.25 hours at $350 per hour). As detailed below, the Court will not grant the full amount requested. The Court makes reductions for, among other things, excessive time spent on certain tasks and work that should not be billed to the client.
CAPS' moving papers state that Maher billed 13.5 hours for a total amount of $4631.50 in attorney's fees. However, upon review of Maher's time details, it appears that Maher billed 13.25 hours for a total amount of $4637.50 in attorney's fees. --------
1. Gretel Smith's Fees
| Date | Description | TimeBilled | TimeAllowed | Reason forReduction |
|---|---|---|---|---|
| 12/2/13 | Email to/fromMaher | 0.40 | 0 | Vague descriptionof email before |
| retaineragreement sent | ||||
| 12/3/13 | Telephone callwith Maher re:CAPSrepresentation | 0.50 | 0 | Not a billable task |
| 12/6/13 | Draft and emailretaineragreement | 0.60 | 0 | Not a billable task |
| 3/19/14,4/15/14,10/10/1412/20/13,12/23/13,1/9/14, | Telephone callwith court clerkre: hearingdateVoicemail leftfor Plaintiffs'attorney | 0.60(0.20 foreach call)0.60(0.20 foreachvoicemail) | 0.100.10 | Each call did notrequire more thana few minutesEach voicemailshould not taketwelve minutes;Vague descriptionre: voicemail |
| 9/23/14 | Review FirstAmendedComplaint("FAC") | 0.50 | 0 | Work not relatedto motion to strike |
| 10/13/14 | Draft motion todismiss FAC | 2.40 | 0 | Work not relatedto motion to strike |
2. John T. Maher's Fees
| Date | Description | TimeBilled | TimeAllowed | Reason forReduction |
|---|---|---|---|---|
| 8/25/14 | Emails to Smithand "DH" andcheck docketfor decision | 0.25 | 0 | Vague descriptionof emails and nota billable task |
The Court finds the other hours spent to be reasonable. Taking into account the reduction of hours detailed above, the Court will allow the recovery of 48.4 hours worked by Smith at the hourly rate of $250 and 13 hours worked by Maher at the hourly rate of $350, for a total of $16,650.00. No upward or downward adjustment to the lodestar amount is warranted.
IV. CONCLUSION
For the reasons discussed above, Defendants' motions for attorney's fees are GRANTED IN PART and DENIED IN PART. The Court awards Defendant Animal Protection and Rescue League attorney's fees in the amount of $28,287.50. The Court awards Defendant Bryan Pease attorney's fees in the amount of $20,403.75. The Court awards Defendant Companion Animal Protection Society attorney's fees in the amount of $16,650.00. The Clerk shall enter judgment accordingly against Plaintiffs jointly and severally in the above amounts.
IT IS SO ORDERED.
Dated: September 28, 2015
/s/_________
Barry Ted Moskowitz, Chief Judge
United States District Court