Published Articles

GETTING THE MOST BANG FOR YOUR BUCK IN SLAPP FEE MOTIONS WITH THE USE OF EXPERT DECLARATIONS

This article is designed to inform practitioners regarding the larger body of case law interpreting the anti-SLAPP fee provision and its practical application in a civil litigation context. Given the growing body of case law in this area, the my extensive experience with handling anti-SLAPP fee motions since 1994, and the enormous discretion trial judges have in setting the amount of a SLAPP fee award, the use of expert declarations in making and opposing SLAPP fee motions provides maximum persuasive power in convincing the judge to move as close as possible to the number ultimately sought. Obviously, in the case of an unsuccessful SLAPP plaintiff, zero is ideal but unrealistic in most cases. In cases where the amount of fees sought by the defendant approaches or exceeds $50,000.00, expert declarations almost invariably result in a significant reduction in the amount of fees awarded. In most cases, the amount of the reduction in the fee award pays for the cost of the expert declaration anywhere from two to ten times over. This is what I refer to as "damage control" after the SLAPP filer has lost the SLAPP motion and SLAPP appeal. The fee opposition in the trial court is the SLAPP plaintiff's last chance to mitigate the enormous damage that can easily befall him or her (and the plaintiff's attorney) if a large fee is awarded. The same can be said of expert declarations in cases where defendants seek to boost the amount of fees awarded. Aside from assembling a detailed record of billing tasks and hours, an expert declaration supported by a solid foundation is like adding a turbo charger to your fee motion.

THE RAPID EXPANSION OF CALIFORNIA'S ANTI-SLAPP LAW
The California Anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, set forth in CCP § 425.16, is expanding and contracting at a feverish pace. Enacted in 1992 as a deterrent to the filing of meritless lawsuits which prevent citizens from exercising petition or free speech rights or punish them for doing so, section 425.16 has since been amended four times and interpreted by nearly 400 published opinions to date. Along with the anti-SLAPP statute's unique discovery stay and immediate appeal provisions, the unavailability of leave to amend, the one-sided mandatory attorney-fee provision set forth in subdivision (c) has made the section 425.16 special motion to strike the most powerful dispositive motion available to California civil litigation attorneys seeking to quickly dismiss an action or cross-action and recover fees and costs.

THE DEVELOPMENT OF SLAPP FEE JURISPRUDENCE
Under subdivision (c), a prevailing defendant is entitled to a mandatory award of reasonable attorney's fees and costs, broadly construed to deter "abuse of the judicial process" and to "encourag[e] participation in matters of public significance." CCP § 425.16, subd. (a); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1138; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 360-362. A SLAPP defendant enjoys the same preference for attorney’s fees as a civil rights plaintiff if they are successful. Computer Xpress v. Jackson (2001) 93 Cal.App.4th 993, 1018. A prevailing plaintiff, however, who defeats a special motion to strike may recover fees only through a CCP § 128.5 motion pertaining to frivolous or delaying actions. CCP § 425.16(c); Carpenter v. Jack In The Box (2007) 151 Cal.App.4th 454. The SLAPP defendant who ultimately prevails on appeal is entitled to recover fees for all work performed at both the trial and appellate levels in connection with the motion. Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1425-1426. A defendant who prevails on less than all causes of action is entitled to recover fees for each cause of action stricken. Shekhter v. Financial Indemnity Co. (2001) 89 Cal.app.4th 140, 149-151. Where the time spent on claims successfully stricken on the SLAPP motion is inextricably intertwined with time spent on claims that were not stricken, the court must apply a reasonable method of apportioning compensable time from non-compensable time. Mann II v. Quality Old Time Service (2006) 139 Cal.App.4th 328.
Compensable time includes all time necessarily spent in connection with succeeding on the SLAPP motion. This includes time spent on the anti-SLAPP motion, SLAPP discovery motions and specified SLAPP discovery ordered pursuant to subd. (g), SLAPP appeals and related writs, and SLAPP fee motion time. Lafayette Morehouse v. Chronicle Publishing (1995) 39 Cal.App.4th 1379. More recently, the Wanland court held that all time spent in connection with enforcement of the judgment for SLAPP fees is compensable time - allowing for prevailing SLAPP defendants to hire collections counsel on a contingent or deferred hourly fee. Wanland v. Mastagani, Holstedt & Chuirazzi (2006) 141 Cal.App.4th 15, 20-21.
In Dowling, I was hired as defendant's special counsel, and agreed to defend the case on a contingent fee basis with a nominal retainer up front. Plaintiff contended that Zimmerman was limited to recovering only the $1,300.00 in fees that she "actually incurred" as a nominal retainer. Dowling, supra, 1425-1426. Construing the statute broadly, the Court of Appeal also rejected this contention and concluded that Zimmerman was entitled to recover "reasonable" attorney's fees for work performed in both the trial court and on appeal under CCP § 425.16(c). Id.
In a highly instructive discussion, Justice Nares concluded that attorney's fees and costs awarded under CCP § 425.16(c) are not "routine costs" under CCP § 917.1(d) but, instead, constitute a judgment directing the "payment of money" under CCP § 917.1(a)(1) for which a bond or undertaking is required to stay enforcement pending a SLAPP appeal. Dowling, supra, at 1426-1434. Again, the court reasoned that the anti-SLAPP statute, including the fee provision, must be construed broadly to achieve its purpose and that requiring a SLAPP plaintiff to file a bond or undertaking to stay enforcement of a judgment for attorney's fees and costs awarded under section 425.16(c) pending appeal will deter the perpetuation of meritless SLAPP suits at the appellate level. Id.

PLAINTIFF CANNOT EVADE FEES BY AMENDMENT OR DISMISSAL
Once a special motion to strike is filed, the plaintiff cannot evade fees by amending or withdrawing the complaint in lieu of opposition. Moreover, no meet and confer effort or other warning is required before fees may be awarded under the section 425.16(c). Liu v. Moore (1999) 69 Cal.App.4th 745, 749-751; Simmons v. Allstate (2001) 92 Cal.App.4th 1068, 1072-1073. Our Supreme Court recently held that the SLAPP filer can evade fees only if the complaint or cross-complaint is voluntarily dismissed with prejudice before the defendant files the anti-SLAPP motion. S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374. Plaintiff can also amend at any time before the SLAPP motion is filed. Once the SLAPP motion is filed, however, the plaintiff is trapped in a vice grip. A recent case held that where a plaintiff propounds special interrogatories, deposition notices, and document production demands and where the defendant fails to timely respond to any of the discovery, the filing of the anti-SLAPP motion retroactively moots all pending motions to compel and motions for sanctions and preserves the defendants' objections to discovery. Britts v. Superior Court (2006) 145 Cal.App.4th 1112.
KETCHUM: SLAPP FEES CAN BE TWICE AS NICE IF THEY ARE CONTINGENT
A. NO FEE ENHANCEMENT FOR FEE MOTION TIME
In Ketchum v. Moses, the California Supreme Court held that mandatory fee awards to defendants who prevail on special motion to strike under CCP § 425.16(c) are properly subject to lodestar enhancements. Ketchum v. Moses (2001) 24 Cal.4th 1122.
In Ketchum, the trial court awarded an initial lodestar figure of $70,106.00 to the prevailing defendant's attorney Id., at 1129. In addition, the trial court augmented the lodestar figure with a multiplier of 2.00 to compensate for the contingent risk assumed, the superior skill displayed in presenting the case, and the attorney's expertise in anti-SLAPP law. Id.
The Ketchum court reversed and remanded the award on two grounds. First, the court held that a multiplier for contingent risk cannot be applied to the lodestar amount awarded for legal services performed on the fee application because such fees are not contingent - payment of "fees on fees" is certain as the defendant has already prevailed at this point. Id., 1141-1142. The Supreme Court also reversed and remanded the award for clarification of the extent to which the attorney has already been compensated for his or her expertise and superior display of skill in the initial lodestar figure, holding that the application of a multiplier for superior skill and expertise was improper if these factors were already taken into account in the attorney's hourly rate. Id. If, however, the 2.00 multiplier was awarded solely to compensate the attorney for the contingent risk assumed in performing services on the special motion to strike, then the award may properly be upheld.Id.

B. CONTINGENT RISK MULTIPLIERS ARE APPROPRIATE IN SLAPP CASES
Our Supreme Court reasoned that the purpose of a fee enhancement for contingent risk is to bring the financial incentives for attorneys enforcing important constitutional rights, such as those protected under the anti-SLAPP provision, into line with incentives they have to undertake claims for which they are paid on a fee-for-service basis. Id., at 1132-1133.
As the court explained, "[a] contingent fee must be higher than the fee for the same legal services as they are performed. The contingent fee compensates the lawyer not only for the services he renders but also for the loan of those services. ... A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is being paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases." Id.

C. ATTORNEY SUED AS CO-DEFENDANT ENTITLED TO RECOVER FEES
Where an attorney is sued as a co-defendant along with the non-lawyer clients, the attorney may recover all of the attorney's fees for all time spent in assisting the special anti-SLAPP counsel with the defense of the nonlawyer co-defendants. In Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 522-525, I successfully represented two non-lawyer environmental activists and their environmental attorney, Julie Hamilton, Esq., from a SLAPP suit. Although Ms. Hamilton was a co-defendant in the action, she was not listed as a "pro per". She was, instead, listed as "general counsel" for the two non-lawyer co-defendants. Declarations were filed showing that Ms. Hamilton at all times assisted attorney me, as special anti-SLAPP counsel, with the representation of the two non-lawyer clients. I was special counsel for all three defendants including Ms. Hamilton. I recovered all of my fees with a contingent risk multiplier. But Ms. Hamilton was also entitled to recover fees for all of her time on the case with a contingent risk multiplier of 1.50 based in part on Moneer's expert fee declaration.

D. MAUGHAN v. GOOGLE - SLAPP PLAINTIFF'S BEST FRIEND
Maughan v. Google (2006) 143 Cal.App.4th 1242, 1248-1253 is the “go to” case if you are a SLAPP plaintiff hit with a massive SLAPP fee request by a large reputable law firm with multiple billing attorneys. The lesson of Google is that detailed billing statements showing that a reasonable number of hours were spent performing tasks reasonably necessary to win the SLAPP motion, especially by so-called SLAPP experts, is essential to obtaining an optimal SLAPP fee award. The Google court decimated a SLAPP fee request of $110,000.00 for a simple SLAPP motion in the trial court where no discovery was sought, no contingent risk was assumed, no appeal time was spent, and the case was disposed of on a clean kill Communications Decency Act privilege defense for third party publishers of internet communications. [47 U.S.C.A. § 230(c)(2)] The partner, Timothy Alger, Esq., of Quinn Emanuel, billed for all of his time at $500.00 per hour, the time sheets were vague, and the court found it hard to believe that these SLAPP experts spent 200 hours on a SLAPP motion that was disposed of on technical privilege grounds. There were no voluminous pleadings or exhibits from prior proceedings to analyze and there were multiple attorneys on the case. Here, the Court decimated the Quinn Emanuel firm's fee request from $110,000.00 to a meager $23,000.00 in a case where the anti-SLAPP motion was successful in striking all causes of action.
Finally, the hourly rate must be reasonable in light of the attorney's knowledge, training, experience, and skill in the relevant area of the law. Graciano v. Robinson Ford Motor Co. (2006) 144 Cal.App.4th 140. Graciano involved consumer rights litigation. In SLAPP cases, the defendant's experience with handling anti-SLAPP motions, SLAPP fee motions, and SLAPP appeals is the relevant skill justifying a higher rate. The attorney's customary hourly rate and years of experience handling non-SLAPP cases is not entirely probative as to the reasonable rate for that attorney in a SLAPP case. The number and complexity of prior SLAPP cases handled, the number of published SLAPP appellate decisions where the attorney was lead counsel for one of the parties, prior SLAPP fee awards, SLAPP articles published, and teaching experience, and of course declarations from other attorneys in the community, are highly probative in determining a reasonable hourly rate in SLAPP cases.
CONCLUSION
The use of expert declarations by a prevailing SLAPP defendant in support of a request for mandatory attorney's fees can be extremely helpful in boosting the defendants' bottom line - particularly in contingent fee cases where a discretionary multiplier is sought or where the number of hours billed is substantial. But where an unsuccessful SLAPP plaintiff seeks to decimate a massive SLAPP fee request, an expert declaration is essential. Because the unsuccessful SLAPP filer after appeal often becomes the target of a SLAPP fee request that is well in excess of $100,000.00, the use of an expert declaration by an attorney who has demonstrable experience and expertise in anti-SLAPP jurisprudence is indispensable. In light of the newly enacted SLAPPback provisions of CCP § 425.18, the SLAPP plaintiff's attorney becomes exposed not only to a legal malpractice action by the former client for the loss of the prior action and for the fee award, but the attorney may also become subject to a SLAPPback malicious prosecution suit without a meaningful SLAPP defense. (See "Two SLAPPs Don't Make a Right" by James J. Moneer, Esq. in California Litigation, March 2007 Vol. 20, No. 1.) Hence, a prudent SLAPP filer who unsuccessfully opposes a SLAPP motion would be wise to make the strongest record possible for reducing the fee award before it is too late.
James J. Moneer, Esq. is a San Diego attorney who has specialized in handling all aspects of SLAPP cases for plaintiffs and defendants throughout California since 1994. His website is WWW.SLAPPLAW.COM.