San Diego Puppy, Inc. et al v. San Diego, City of et al, No. 3:2013cv02783 - Document 78 (S.D. Cal. 2015)
Court Description: ORDER Granting in part and Denying in part 56 57 59 Motions for Attorney Fees. Signed by Judge Barry Ted Moskowitz on 8/28/2015. (All non-registered users served via U.S. Mail Service)(rlu)
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San Diego Puppy, Inc. et al v. San Diego, City of et al Doc. 78 1 2 3 UNITED STATES DISTRICT COURT 4 SOUTHERN DISTRICT OF CALIFORNIA 5 6 7 SAN DIEGO PUPPY, INC., a California corporation; DAVID SALINAS and VERONICA SALINAS, husband and wife, Case No.: 13-cv-2783-BTM-DHB ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR ATTORNEY’S FEES 8 Plaintiffs, 9 v. 10 15 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, 16 Defendants. 11 12 13 14 17 18 Defendants have filed motions for attorney’s fees. For the reasons 19 discussed below, Defendants’ motions for attorney’s fees are GRANTED IN 20 PART and DENIED IN PART. 1 13-cv-2783-BTM-DHB Dockets.Justia.com I. 1 BACKGROUND 2 On November 25, 2013, Plaintiffs filed their original complaint asserting 3 twelve causes of action. Defendants Animal Protection and Rescue League 4 (“APRL”), Bryan Pease (“Pease”), and Companion Animal Protection Society 5 (“CAPS”) each brought a special motion to strike Plaintiffs’ complaint 6 pursuant to Cal. Civ. Proc. Code § 425.16. On September 11, 2014, the 7 Court granted each Defendant’s special motion to strike and directed each 8 Defendant to file a motion for attorney’s fees. The Court also gave Plaintiffs 9 leave to file an amended complaint only as to Count VI, which alleged a 10 violation of 42 U.S.C. § 1985. 11 On September 23, 2014, Plaintiffs filed a two-page First Amended 12 Complaint (“FAC”). On November 6, 2014, Plaintiffs filed what the Court 13 considered as a motion for leave to amend their FAC and a proposed Second 14 Amended Complaint. On June 12, 2015, the Court dismissed Plaintiffs’ FAC 15 and denied Plaintiffs’ motion for leave to amend the FAC. 16 On June 29, 2015, the Court ordered the Singleton Law Firm to submit 17 papers itemizing its attorney’s fees in its representation of Defendant Pease. 18 // 19 // 20 // 2 13-cv-2783-BTM-DHB II. 1 LEGAL STANDARD 2 Defendants APRL, Pease, and CAPS each seek to recover the 3 attorney’s fees they incurred in connection with prosecuting the special 4 motions to strike and the instant motions for attorney’s fees. 5 As the prevailing parties on their special motions to strike, Defendants 6 are entitled to reasonable attorney’s fees and costs. Cal. Civ. Proc. Code § 7 425.16(c). Defendants may recover attorney’s fees and costs only for the 8 motion to strike, not the entire litigation. Christian Research Inst. v. Alnor, 9 165 Cal. App. 4th 1315, 1320 (2008) (citations omitted). 10 The amount of the prevailing party’s reasonable attorney’s fees is 11 calculated by utilizing the lodestar method. Camacho v. Bridgeport 12 Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008). To calculate the “lodestar,” 13 the court multiplies the number of hours the prevailing party reasonably 14 expended on the litigation by a reasonable rate. Morales v. City of San 15 Rafael, 96 F.3d 359, 363 (9th Cir. 1996). There is a strong presumption that 16 the lodestar figure represents a reasonable fee. Harris v. Marhoefer, 24 F.3d 17 16, 18 (9th Cir. 1994). 18 However, courts may adjust the lodestar figure upward or downward 19 based upon the following factors enunciated in Kerr v. Screen Extras Guild, 20 Inc., 526 F.2d 67, 70 (9th Cir. 1975): (1) the time and labor required, (2) the 3 13-cv-2783-BTM-DHB 1 novelty and difficulty of the questions involved, (3) the skill requisite to 2 perform the legal service properly, (4) the preclusion of other employment by 3 the attorney due to acceptance of the case, (5) the customary fee, (6) 4 whether the fee is fixed or contingent, (7) time limitations imposed by the 5 client or the circumstances, (8) the amount involved and the results obtained, 6 (9) the experience, reputation, and ability of the attorneys, (10) the 7 “undesirability” of the case, (11) the nature and length of the professional 8 relationship with the client, and (12) awards in similar cases. “Among the 9 subsumed factors presumably taken into account in either the reasonable 10 hours component or the reasonable rate component of the lodestar 11 calculation are: (1) the novelty and complexity of the issues, (2) the special 12 skill and experience of counsel, (3) the quality of representation, (4) the 13 results obtained and (5) the contingent nature of the fee agreement.” 14 Morales, 96 F.3d at 364 n.9. 15 16 III. DISCUSSION 17 Plaintiffs argue that Defendants should not be granted attorney’s fees 18 because Plaintiffs have not acted in “bad faith.” Doc. 71 at 3. But as the 19 prevailing parties in their special motions to strike, Defendants are “entitled” 20 to reasonable attorney’s fees and costs. Cal. Civ. Proc. Code § 425.16(c); 4 13-cv-2783-BTM-DHB 1 Christian Research Inst., 165 Cal. App. 4th at 1321. 2 Plaintiffs do not dispute the reasonableness of the hourly rates charged 3 or the number of hours billed by each of the attorneys who represented 4 Defendants APRL, Pease, and CAPS. 5 6 A. Animal Protection and Rescue League (“APRL”) 7 Defendant Animal Protection and Rescue League (“APRL”) is 8 represented by attorneys David Simon (“Simon”) and Bryan Pease 9 (“Pease”). Simon’s hourly rate is $425 per hour. Pease’s hourly rate is $375 10 per hour. Based on the experience of the billing attorneys and standard rates 11 in the community, the Court finds that the rates are reasonable. See Doc. 12 57, Simon Decl., Exh. A. 13 APRL seeks attorney’s fees in the amount of $67,959.38. Simon billed 14 40.25 hours at $425 per hour and Pease billed 75.20 hours at $375 per hour. 15 Both attorneys requested a 1.5 lodestar multiplier to account for the 16 contingent nature of their representation of APRL. As detailed below, the 17 Court will not grant the full amount requested. The Court makes reductions 18 for, among other things, excessive time spent on certain tasks and work that 19 should not be billed to the client. 20 // 5 13-cv-2783-BTM-DHB 1 1. David Simon’s Fees 2 Date Description Time Billed 0.35 3 12/13/13 Review APRL filing 12/13/13 Exchange emails with Pease re filing and hearing 0.40 12/13/13 Review and research basis for Plaintiffs’ TRO application Prepare for TRO hearing Participate in telephone hearing re TRO Review Plaintiffs’ attorney’s motion to withdraw Review notice of voluntary dismissal against San Diego Humane Society, City of 2.00 4 5 6 7 8 9 10 11 12 12/13/13 13 12/13/13 14 15 1/10/14 16 17 18 19 20 1/17/14, 2/5/14 Time Reason for Allowed Reduction 0 Vague description; presumably for opposition to TRO, work not related to motion to strike 0 Vague description; presumably for opposition to TRO, work not related to motion to strike 0 Work not related to motion to strike 0.75 0 Work not related to motion to strike Work not related to motion to strike 1.25 0 0.35 0 Work not related to motion to strike 0.40 (0.20 for each voluntary dismissal) 0.10 Each notice was less than onepage and did not require more than a minute to review 6 13-cv-2783-BTM-DHB 1 2 1/23/14 3 4 5 1/30/14 6 San Diego; related emails Review and reply to multiple emails from counsel; reply to email from Singleton Review joint motion to extend time to respond 0.45 0 0.20 0.10 0.40 0 0.20 0.10 Scheduling a hearing should not require the requested time 0.20 0 Vague description 0.20 0 Vague description 0.35 0 Vague description 0.60 0.10 Scheduling orders not substantive that requires time 7 8 2/13/14 9 10 11 2/14/14 12 13 14 2/18/14 15 16 2/22/14 17 3/3/14 18 19 20 3/8/14, 3/19/14, 3/27/14 Review email from court clerk; email and phone call with Pease re same Review numerous emails re changing date of anti-SLAPP hearing Review email from court clerk; email Pease re same Phone call with Pease Phone call and email with Pease re case status Review order scheduling settlement Vague description; presumably work not related to motion to strike since already filed Joint motion less than two pages long would take no more than a few minutes to review Vague description 7 13-cv-2783-BTM-DHB conference and calendar 1 2 3 4 5/5/14, 5/6/14, 5/20/14 5/24/14 5 6 7 9/23/14 8 9 10 10/9/14 11 12 Emails with 0.40 Pease; review motion and orders re: Plaintiffs’ attorney’s motion to withdraw Download and 0.35 review Plaintiffs’ First Amended Complaint and exhibits Review and 0.35 reply to emails from cocounsel re 12(b)(6) motion 0 to review; calendaring should not require requested time Vague description; work not related to motion to strike 0 Work not related to motion to strike 0 Work not related to motion to strike 13 Simon billed approximately 7.95 hours on the motion for attorney’s 14 fees. The Court finds that 5 hours would have been sufficient to prepare the 15 motion for attorney’s fees. 16 2. Bryan Pease’s Fees 17 18 19 Date 12/2/13, 12/3/13 Description Review notice of deficiency from clerk Time Billed 0.20 (0.10 for each notice) 20 Time Reason for Allowed Reduction 0.10 Notice is not a substantive notice or order that requires much time to review 8 13-cv-2783-BTM-DHB 1 12/12/13 2 12/12/13 Review motion 4.50 for TRO Review email 0.10 from court clerk 0 0 3 12/13/13 4 5 6 7 8 9 10 11 12 13 14 15 Opposition to TRO 12/13/13 Review City of San Diego’s Opposition to TRO 12/13/13 Hearing on TRO 12/16/13 Review order granting joint motion to extend time to respond and “minute entry for proceedings” 12/11/13, Review joint 12/30/13, motion to 1/30/13 extend time to respond 3 0 1 0 1 0 0.20 0 0.30 (0.10 for each joint motion) 0.10 1/3/14, 2/5/14 0.20 (0.10 for each order) 0 2.50 0 0.20 0 16 17 1/10/14 18 19 20 1/17/14 Review order granting joint motion to extend time to respond Review Plaintiffs’ attorney’s motion to withdraw Review order denying Plaintiffs’ Work not related to motion to strike Work not related to motion to strike; vague description Work not related to motion to strike Work not related to motion to strike Work not related to motion to strike Order and minute entry not substantive that requires time to review Each joint motion less than two pages long would take no more than a minute to review Three-sentence order not substantive that requires time to review Work not related to motion to strike Work not related to motion to strike; one-page order 9 13-cv-2783-BTM-DHB 1 2 1/17/14 3 4 attorney’s motion to withdraw Review Plaintiffs’ attorney’s notice of appearance 0.10 0 Review notice of voluntary dismissal against San Diego Humane Society, City of San Diego Review Plaintiffs’ attorney’s motion to withdraw Review order to show cause re Plaintiffs’ attorney’s motion to withdraw 0.20 (0.10 for each voluntary dismissal) 0.10 0.50 0 Work not related to motion to strike 0.20 0 Review order granting Plaintiffs’ attorney’s motion to withdraw Email with court clerk and other attorneys re: scheduling hearing 0.20 0 0.30 0.10 Work not related to motion to strike; one-paragraph order not substantive that requires time to review Work not related to motion to strike; one-page order would take no more than a minute to review Scheduling a hearing should not require the requested time 5 6 1/18/14, 2/5/14 7 8 9 1/23/14 10 11 1/23/14 12 13 14 15 2/6/14 16 17 18 19 20 2/14/14 would take no more than a minute to review Work not related to motion to strike; notice is not substantive that requires time to review Each notice was less than onepage and did not require more than a minute to review 10 13-cv-2783-BTM-DHB 1 2/18/14 2 3 3/3/14 4 5 6 3/7/14 7 8 9 10 4/24/14 11 12 13 5/2/14 14 15 16 5/13/14 17 18 19 5/20/14 20 Email with court clerk and other attorneys re: hearing off calendar Email with court clerk and other attorneys re: status of anti-SLAPP ruling Review order denying as moot San Diego Humane Society’s motion to dismiss Review order to show cause re Plaintiffs’ attorney failing to appear at ENE Review Plaintiffs’ attorney’s declaration in response to OSC Phone with clerk re: antiSLAPP hearing off calendar, correspond with other attorneys Review order re Plaintiffs’ 0.20 0.10 Canceling a hearing should not require the requested time 0.20 0.10 Asking court re status of order should not require the requested time 0.10 0 Work not related to motion to strike 0.20 0.10 Two-page OSC should not require the requested time 0.30 0.10 One-sentence declaration did not require more than a minute to review 0.50 0.10 Vague description; canceling a hearing should not require the requested time 0.10 0 Work not related to motion to strike 11 13-cv-2783-BTM-DHB 1 2 5/23/14 3 4 5 6/2/14 6 7 8 7/12/14 9 10 11 8/25/14 12 9/18/14 13 14 9/23/14 15 16 9/24/14 17 9/30/14 18 attorney’s motion to withdraw Review Plaintiffs’ attorney’s motion to withdraw Review order to show cause re Plaintiffs’ attorney’s motion to withdraw Review order granting Plaintiffs’ attorney’s motion to withdraw Review notice of substitution of attorney Review motion to substitute attorney Review Plaintiffs’ First Amended Complaint Meeting with Cardiff re: FAC Review order re FAC 0.50 0 Work not related to motion to strike 0.10 0 Work not related to motion to strike 0.10 0 Work not related to motion to strike 0.10 0 Work not related to motion to strike 0.10 0 Work not related to motion to strike 0.40 0 Work not related to motion to strike 0.60 0 0.1 0 Work not related to motion to strike Work not related to motion to strike 19 Simon projected that he would work 8 hours and Pease projected that 20 he would work 12 hours to “draft reply papers and prepare for and participate 12 13-cv-2783-BTM-DHB 1 in hearing on fee motion.” The Court finds that 3 hours each would have 2 been more than sufficient for Simon and Pease to analyze, research, and 3 draft the reply. 4 The Court finds the other hours spent to be reasonable. Taking into 5 account the reduction of hours detailed above, the Court will allow the 6 recovery of 23.5 hours worked by Simon at the hourly rate of $425 and 48.8 7 hours worked by Pease at the rate of $375, for a total of $28,287.50. The 8 Court finds that the hourly rate provides adequate and reasonable 9 compensation and a review of the Kerr factors does not support a lodestar 10 multiplier. 11 12 B. Bryan Pease (“Pease”) 13 Defendant Bryan Pease (“Pease”) is represented by attorney Todd T. 14 Cardiff (“Cardiff”) and the Singleton Law Firm, APC. Cardiff’s hourly rate is 15 $350 per hour. 16 McHarrie (“McHarrie”) and Paralegal Tyler Waters (“Waters”) from the 17 Singleton Law Firm also represented Pease. Singleton’s hourly rate is $650 18 per hour. McHarrie’s hourly rate is $175 per hour. Waters’ hourly rate is $65 19 per hour. Based on the experience of the billing attorneys and standard rates 20 in the community, the Court finds that the rates are reasonable except as to Attorneys Gerald Singleton (“Singleton”) and Jessica 13 13-cv-2783-BTM-DHB 1 Singleton for whom the Court finds $425 to be a reasonable hourly rate (the 2 same as for David Simon). 3 Pease seeks attorney’s fees in the amount of $33,475.00.1 Cardiff 4 billed 42 hours ($14,700.00) and requested a 1.3 lodestar multiplier to 5 account for the contingent nature of his representation of Pease 6 ($19,110.00). Cardiff also billed an additional 7 hours ($2450.00) for Pease’s 7 Reply to Plaintiffs’ Opposition to Defendants’ Motions for Attorney’s Fees. 8 Singleton billed 8.75 hours ($5687.50), McHarrie billed 35.4 hours 9 ($6195.00), and Waters billed 0.5 hours ($32.50). The Singleton Law Firm 10 did not request a lodestar multiplier. As detailed below, the Court will not 11 grant the full amount requested. The Court makes reductions for, among 12 other things, excessive time spent on certain tasks and work that should not 13 be billed to the client. 14 // 15 // 16 // 17 18 19 20 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 14 13-cv-2783-BTM-DHB 1 1. Todd T. Cardiff’s Fees 2 Date Description 3 12/12/13 Telephone call with Plaintiffs’ attorney Review and analyze TRO Review and analyze APRL’s Opposition to TRO Review and analyze City of San Diego’s Opposition to TRO TRO hearing and travel Review and analyze City of San Diego’s discovery on Plaintiffs Review City of San Diego’s Notice to Produce Review and analyze Plaintiffs’ attorney’s notice of motion to withdraw Telephone call with client re: 4 12/13/13 5 12/13/13 6 7 8 12/13/13 9 10 12/13/13 11 12 12/19/13 13 14 12/20/13 15 16 1/10/14 17 18 19 20 1/31/14 Time Billed 0.10 Time Reason for Allowed Reduction 0 Vague description 1.50 0 0.40 0 0.80 0 Work not related to motion to strike 3.00 0 0.20 0 Work not related to motion to strike Work not related to motion to strike 0.10 0 Work not related to motion to strike 0.50 0 Work not related to motion to strike 0.30 0 Vague description; work Work not related to motion to strike Work not related to motion to strike 15 13-cv-2783-BTM-DHB 1 2 2/3/14 3 4 Plaintiffs and scheduling Review stipulation for City of San Diego to extend time to respond not related to motion to strike Work not related to motion to strike 0.20 0 0.60 0 Work not related to motion to strike 0.40 0 Work not related to motion to strike 0.10 0 Work not related to motion to strike 0.60 0 Work not related to motion to strike 5 5/4/14 6 7 8 9 10 9/23/14 11 12 9/24/14 13 14 15 16 9/24/14 Review Plaintiffs’ attorney’s declaration re: failure to appear at settlement conference; discuss with client Review and analyze Plaintiffs’ FAC Discuss with paralegal calendar for filing response to FAC; file maintenance Meeting with client to discuss FAC 17 18 Cardiff billed approximately 10.7 hours on the motion for attorney’s 19 fees and stated that he anticipates spending an additional 2.5 hours on the 20 same fee motion. The Court finds that 5 hours would have been sufficient to 16 13-cv-2783-BTM-DHB 1 prepare the motion for attorney’s fees. 2 Cardiff also billed 10 hours to draft Pease’s Reply to Plaintiffs’ 3 Opposition to Defendants’ Motions for Attorney’s Fees. The Court finds that 4 5 hours would have been more than sufficient to analyze, research, and draft 5 the reply. 6 2. Gerald Singleton’s Fees 7 Date 8 1/14/14 9 10 Description Exchanged emails with client and emailed Tyler re issues raised by client Time Billed 0.10 Time Reason for Allowed Reduction 0 Vague description of emails and work not related to motion to strike 11 12 The Court finds the other hours spent to be reasonable. Taking into 13 account the reduction of hours detailed above, the Court will allow the 14 recovery of 25 hours worked by Cardiff at the hourly rate of $350 ($8750.00). 15 The Court finds that the hourly rate provides adequate and reasonable 16 compensation and a review of the Kerr factors does not support a lodestar 17 multiplier. The Court will also allow the recovery of an additional 5 hours 18 ($1750.00) to Cardiff for drafting Pease’s Reply to Plaintiffs’ Opposition to 19 Defendants’ Motions for Attorney’s Fees. The Court allows the recovery of 20 8.65 hours worked by Singleton ($3676.25), 35.4 hours worked by McHarrie 17 13-cv-2783-BTM-DHB 1 ($6195.00), and 0.5 hours worked by Tyler ($32.50). In sum, the Court 2 awards a total fee award of $20,403.75. 3 4 C. Companion Animal Protection Society (“CAPS”) 5 Defendant Companion Animal Protection Society (“CAPS”) is 6 represented by attorneys Gretel Smith (“Smith”) and John T. Maher 7 (“Maher”). Smith’s hourly rate is $250 per hour. Maher’s hourly rate is $350 8 per hour. Based on the experience of the billing attorneys and standard rates 9 in the community, the Court finds that the rates are reasonable. 10 CAPS seeks attorney’s fees in the amount of $18,087.50 (Smith billed 11 53.8 hours at $250 per hour and Maher billed 13.25 hours at $350 per hour).2 12 As detailed below, the Court will not grant the full amount requested. The 13 Court makes reductions for, among other things, excessive time spent on 14 certain tasks and work that should not be billed to the client. 1. Gretel Smith’s Fees 15 16 Date 17 12/2/13 Description Email to/from Maher Time Billed 0.40 Time Reason for Reduction Allowed 0 Vague description of email before 18 19 20 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. 2 18 13-cv-2783-BTM-DHB Telephone call with Maher re: CAPS representation 12/6/13 Draft and email retainer agreement 3/19/14, Telephone call 4/15/14, with court clerk 10/10/14 re: hearing date 12/20/13, Voicemail left 12/23/13, for Plaintiffs’ attorney 1/9/14, 0.50 0 retainer agreement sent Not a billable task 0.60 0 Not a billable task 0.60 (0.20 for each call) 0.10 Each call did not require more than a few minutes 0.60 0.10 (0.20 for each voicemail) 9/23/14 0.50 0 Each voicemail should not take twelve minutes; Vague description re: voicemail Work not related to motion to strike 2.40 0 1 2 3 4 5 6 7 8 12/3/13 9 10 11 12 10/13/14 13 14 Date 16 8/25/14 18 Work not related to motion to strike 2. John T. Maher’s Fees 15 17 Review First Amended Complaint (“FAC”) Draft motion to dismiss FAC Description Time Billed Emails to Smith 0.25 and “DH” and check docket for decision Time Reason for Reduction Allowed 0 Vague description of emails and not a billable task 19 The Court finds the other hours spent to be reasonable. Taking into 20 account the reduction of hours detailed above, the Court will allow the 19 13-cv-2783-BTM-DHB 1 recovery of 48.4 hours worked by Smith at the hourly rate of $250 and 13 2 hours worked by Maher at the hourly rate of $350, for a total of $16,650.00. 3 No upward or downward adjustment to the lodestar amount is warranted. 4 IV. 5 CONCLUSION 6 For the reasons discussed above, Defendants’ motions for attorney’s 7 fees are GRANTED IN PART and DENIED IN PART. The Court awards 8 Defendant Animal Protection and Rescue League attorney’s fees in the 9 amount of $28,287.50. The Court awards Defendant Bryan Pease attorney’s 10 fees in the amount of $20,403.75. The Court awards Defendant Companion 11 Animal Protection Society attorney’s fees in the amount of $16,650.00. The 12 Clerk shall enter judgment accordingly against Plaintiffs jointly and severally 13 in the above amounts. 14 IT IS SO ORDERED. 15 Dated: September 28, 2015 16 17 18 19 20 20 13-cv-2783-BTM-DHB
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