2020-00286265-CU-DF
Michael Postle vs. Veronica Brill
Nature of Proceeding:
Filed By:
Motion for Attorney Fees
Shepard, Alex J.
Defendant Veronica Brill’s motion for costs and attorneys’ fees in connection with
defending the SLAPP (strategic lawsuit against public participation) suit and filing the
anti-SLAPP motion is unopposed and is ruled on as follows.
Defendant seeks $67,677.50 in attorneys’ fees and $961.91 in costs associated with
defending the SLAPP suit filed by Plaintiff.
The Court acknowledges the "supplemental brief" filed by Plaintiff on June 9, 2021.
(ROA 64.) The filing was untimely and will not be considered by the Court on that
basis. Further, even if the Court were to consider the filing, Plaintiff failed to provide a
declaration or request for judicial notice, etc., authenticating the purported evidence attached.
Plaintiff voluntarily dismissed his lawsuit on April 1, 2021, before the hearing on the
anti-SLAPP filed by Defendant was heard. On April 20, 2021, the Court dropped the
anti-SLAPP motion, without prejudice to Defendant filing a motion for attorneys’ fees
and costs incurred in defending this SLAPP lawsuit, pursuant to Code of Civil
Procedure section 425.16(c).
Where the plaintiff voluntarily dismisses an alleged SLAPP lawsuit while a special
motion to strike is pending, the trial court has discretion to determine whether the
defendant is the prevailing party for purposes of attorney’s fees under Code of Civil
Procedure section 425.16(c). The voluntary dismissal of a complaint before the
hearing on an anti-SLAPP motion creates a presumption that the defendant is the
prevailing party on the anti-SLAPP motion. The defendant need not obtain a ruling
from the court on the motion to strike in order to prevail for purposes of attorneys’ fees.
(Coletrain v. Shewalter (1998) 66 Cal.App.4th 94, 106-107.) The Court finds that
Defendant is the prevailing party in this action and is therefore entitled to attorneys’
fees and costs pursuant to section 425.16(c). Plaintiff has not opposed this motion, or
otherwise dispelled the presumption that Defendant is the prevailing party.
The anti-SLAPP statute provides: “In any action subject to subdivision (b), a prevailing
defendant on a special motion to strike shall be entitled to recover his or her attorney’s
fees and costs. (Code Civ. Proc. § 425.16(c).) An awar of attorney’s fees to a
prevailing defendant is mandatory. (Ketchum v. Moses (2001) 24 Cal.4th 1121, 1131
(“[A]ny SLAPP defendant who brings a successful motion to strike is entitled to
mandatory attorney fees.”); Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th
659, 685.) Defendant is entitled to recover attorney’s fees and costs she reasonably
incurred in extricating herself from this action. (Wilkerson v. Sullivan (2002) 99
Cal.App.4th 443, 446 (the statute is broadly construed as to effectuate the legislative
purpose of reimbursing the prevailing defendant for expenses incurred in extricating
herself from a baseless lawsuit).)
Under California law, in determining the amount of reasonable attorney fees to be
awarded under a statutory attorney fees provision, the court begins by calculating the
“lodestar” amount. (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379,
1393; Cruz v. Ayromloo (2007) 155 Cal.App.4th 1270.) The “lodestar” is “the number
of hours reasonably expended multiplied by the reasonable hourly rate.” (Bernardi, 167
Cal.App.4th at 1393; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th
140,154.) To determine the reasonable hourly rate, the court looks to the “hourly rate
prevailing in the community for similar work.” (Bernardi, 167 Cal.App.4th at 1394.) The
California Supreme Court has further instructed that attorney fee awards “should be
fully compensatory.” (Id., citing Ketchum, 24 Cal.4th at 1133.) Thus, an attorney fee
award should ordinarily include compensation for all of the hours reasonably spent,
including those relating solely to the fee. (Id. at 1394.) This lodestar fee may then be
adjusted to account for “(1) the novelty and difficulty of the questions involved, (2) the
skill displayed in presenting them, (3) the extent to which the nature of the litigation
precluded other employment by the attorneys, and (4) the contingent nature of the
award.” (Id.)
Fee award amounts are matters within the trial court’s discretion: the “trial judge is the
best judge of the value of professional services rendered in h[er] court, and while h[er]
judgment is of course subject to review, it will not be disturbed unless the appellate
court is convinced that it is clearly wrong.” (Ketchum, 24 Cal.4th at 1132; accord PLCM
Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) The Court will reduce the hours it
determines were excessive or not supported. (Levy v. Toyota Motor Sales, U.S.A., Inc.
(1992) 4 Cal.App.4th 807, 816 (party seeking attorney fees has the “burden of showing
that the fees incurred were ‘allowable,’ were ‘reasonably necessary to the conduct of
litigation,’ and were ‘reasonable in amount’”); Christian Research Institute v. Ahor
(2008) 165 Cal.App.4th 1315, 1326-1329.)
The billing records that support this motion are attached as Exhibit 3 to the motion, and
supported by the declaration of Marc J. Randazza, which is attached as Exhibit 2 to
the motion. The billing records reflect the following rates and amount of time
requested: $800/hour for Mr. Randazza for 32.3 hours; $450/hour for attorney Alex J.
Shepard for 80.5 hours; $200/hour for law clerk Trey Rothell for 1.1 hours; $200/hour
for law clerk Bryttni Yi for 1.2 hours; $175/hour for paralegal Cassidy Curran for 1.75
hours; $175/hour for paralegal Jasmyn Montano for 1.5 hours; and $175/hour for
paralegal Heather Ebert for 22.6 hours. In total, the motion seeks compensation for
142.9 hours of time and $67,677.50 in fees. The records submitted also reflect
$961.91 in costs.
The Court finds the costs requested to be reasonable, but finds the fees requested to
be excessive. For example, there are multiple entries totaling 33.5 hours for drafting a
memorandum regarding the initial draft of the anti-SLAPP motion. The Court awards
15 hours at $800 for Mr. Randazza; 25 hours at $450 an hour for Mr. Shepard; and 20
hours of paralegal time at the rate of $175 per hour. In total, the Court awards
$26,783.50 in attorneys’ fees and $961.91 in costs, for a total of $27,745.
Defendant is directed to submit an order for the Court's signature.
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