O 1

2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 11 THOMAS H. WAGNER, Case No.: 2:16-cv-06259-ODW (PLA) 12 Plaintiff,

ORDER GRANTING DEFENDANT’S

13 v.

MOTION FOR ATTORNEYS’ FEES

14 SOUTHERN CALIFORNIA EDISON AND COSTS [219] 15 COMPANY et al., 16 Defendants. 17 18 I. INTRODUCTION 19 Following the Court’s Order Granting, In Part, Denying, In Part, Defendant 20 Southern California Edison Company’s (“Edison”) Special Motion to Strike 21 (“Anti-SLAPP Order,” ECF No. 167) and a jury trial, Edison moved to recover its 22 attorneys’ fees and costs (Mot. for Att’ys’ Fees (“Mot.”), ECF No. 219). Specifically, 23 Edison argues that it is the prevailing party on its Special Motion to Strike Defamation 24 Claim (“Anti-SLAPP Motion”) (ECF No. 138), and is thus entitled to recover its 25 attorneys’ fees and costs pursuant to California Code of Civil Procedure section 26 425.16. For the following reasons, the Court GRANTS Edison’s Motion.1 27

28 1 After considering the papers filed in connection with this Motion, the Court deemed this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 1 II. FACTUAL AND PROCEDURAL BACKGROUND 2 On February 19, 2019, Edison filed its Anti-SLAPP Motion to strike Plaintiff 3 Thomas Wagner’s (“Wagner”) defamation claim. On April 18, 2019, the Court 4 granted, in part, and denied, in part, Edison’s Anti-SLAPP Motion. (Anti-SLAPP 5 Order 1.) Specifically, the Court found that statements made to Edison’s human 6 resources department did not qualify for protection under the anti-SLAPP statute, but 7 struck Wagner’s defamation claim as it related to statements made to Edison’s 8 workers’ compensation representative. (Anti-SLAPP Order 6–9.) 9 On April 23, 2019, a jury trial commenced in this case. (Mins. of Jury Trial, 10 ECF No. 192.) On April 26, 2019, the jury returned a special verdict of $300 for 11 Wagner on his defamation claim and for Edison on all other claims. (Jury Verdict, 12 ECF No. 202.) Edison now moves to recover its attorneys’ fees and costs on the basis 13 that it was the prevailing party on the Anti-SLAPP Motion. (Mot. 3–4.) 14 III. LEGAL STANDARD 15 California’s anti-SLAPP (Strategic Lawsuit against Public Participation) statute 16 allows defendants to make a special motion to strike a claim if that claim arises from 17 an act by the defendants to further their right of petition or free speech in connection 18 with a public issue. Cal. Civ. Proc. Code § 425.16(b)(1); see also Newsham v. 19 Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999) (concluding that 20 the twin aims of the Erie doctrine “favor application of California’s anti-SLAPP 21 statute in federal cases). “[A] prevailing defendant on a special motion to strike shall 22 be entitled to recover [its] attorney’s fees and costs.” Cal. Civ. Proc. Code § 23 425.16(c)(1); Ketchum v. Moses, 24 Cal. 4th 1122, 1131 (2001) (“[A]ny SLAPP 24 defendant who brings a successful motion to strike is entitled to mandatory attorney 25 fees.”). 26 A. Prevailing Party 27 A party that partially prevails on an anti-SLAPP motion “must generally be 28 considered a prevailing party unless the results of the motion were so insignificant that 1 the party did not achieve any practical benefit from bringing the motion.” Mann v. 2 Quality Old Time Serv., Inc., 139 Cal. App. 4th, 328, 340 (2006). Courts will 3 consider the following factors in determining whether to award attorneys’ fees to 4 parties that partially prevail on an anti-SLAPP motion: (1) “extent to which the 5 defendant's litigation posture was advanced by the motion”; (2) “whether the same 6 factual allegations remain to be litigated”; (3) “whether discovery and motion practice 7 have been narrowed”; and (4) “the extent to which future litigation expenses and 8 strategy were impacted by the motion.” Id. at 345. 9 Here, it is undisputed that Edison partially prevailed on its Anti-SLAPP Motion. 10 (See Opp’n to Mot. (“Opp’n”) 7, ECF No. 224; Mot. 5.) Wagner argues only that the 11 results of the Anti-SLAPP Motion were minimal and insignificant, and Edison did not 12 obtain any practical benefit from the Anti-SLAPP Motion. (Opp’n 7–9.) Here, 13 Wagner insists that the exclusion of the statements to workers’ compensation did not 14 have any practical benefit since the jury heard the same statements that were presented 15 to human resources and awarded Wagner $300. (See Opp’n 8–9.) Not so. 16 Wagner attempted to proceed on two theories of defamation, and through the 17 Anti-SLAPP Motion, Wagner was only allowed to proceed on one theory. This 18 resulted in a jury trial that lasted only four days and eliminated a critical witness, 19 Karen Phillipo (and corresponding exhibits), who Wagner repeatedly attempted to 20 unsuccessfully call at trial. This advanced Edison’s litigation posture and negatively 21 affected Wagner’s litigation strategy at trial. 22 Moreover, although the same statements were made to human resources and the 23 workers’ compensation representative, the factual circumstances were different. In 24 one instance, Wagner’s immediate supervisor, Michael Diaz, sent an unsolicited letter 25 to human resources, and in the other, the workers’ compensation representative 26 reached out to Mr. Diaz to investigate Wagner’s workers’ compensation claim. (Anti- 27 SLAPP Order 7.) Thus, at trial, the remaining factual allegation that was litigated was 28 the circumstances surrounding the statement made to human resources, not the 1 workers’ compensation claim. This also resulted in a narrowed motion practice as the 2 workers’ compensation theory was not subject to Edison’s Rule 50(a) Nonsuit Motion 3 or Edison’s Motion for Summary Judgment. 4 Thus, Edison is entitled to its attorneys’ fees and costs. 5 B. Reasonableness of Hours and Fees 6 Where a defendant is only partially successful on an anti-SLAPP motion, the 7 fees awarded “should be commensurate with the extent to which the motion changed 8 the nature and character of the lawsuit.” Mann, 139 Cal. App. 4th at 345. Where a 9 party prevails on some claims and not others, courts can award fees to all claims if 10 there are “overlapping factual and legal issues involved in those claims.” Id. at 343. 11 Courts should “first determine the lodestar amount for the hours expended on the 12 successful claims, and, if the work on the successful and unsuccessful causes of action 13 was overlapping, the court should then consider the defendant’s relative success on 14 the motion . . . and reduce the amount if appropriate.” Id. at 345. 15 The party seeking attorneys’ fees and costs bears “the burden of establishing an 16 award and documenting the appropriate hours expended and hourly rates.” 17 ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1020 (2001) (internal 18 quotation marks omitted). A reasonable fee is determined by the lodestar figure, 19 which is calculated by multiplying the number of hours reasonably expended by a 20 reasonable hourly rate. Gate v. Duekmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). A 21 reasonable hourly rate “is that prevailing in the community for similar work.” PLCM 22 Grp. v. Drexler, 22 Cal. 4th 1084, 1090 (2000). 23 Additionally, a party who prevails on an anti-SLAPP motion is also entitled to 24 recover attorneys’ fees “to establish and defend the fee claim,” also known as “fees on 25 fees.” Ketchum, 24 Cal. 4th at 1141. 26 Here, Edison spent 49.5 hours on the Anti-SLAPP Motion and 31 hours on the 27 instant fee Motion at various rates (as reflected below). (Mot. 9; see Decl. of Reginald 28 Roberts, Jr. (“Roberts Decl.”) ¶¶ 9–10, ECF No. 219-1; Decl. of Melvin L. Felton 1 || (‘Felton Decl.) § 5, ECF No. 219-3; Suppl. Decl. of Melvin L. Felton (“Suppl. Felton Decl.”) 9 3, ECF No. 225-1.) 3

[se 9 (Law Clerk)

1 (Paralegal) mp Totes | as | 814,813.50 13 i

19 (Law Clerk) oe 21 22 Here, Edison’s Counsel attached copies of their billing records providing 23 | detailed information about how they spent their time on the Anti-SLAPP Motion. 24 || (See Roberts Decl. Ex. A.) Based on the Court’s review of Edison’s billing entries, 25 the hours appear reasonable. See Lin v. Dignity Health-Methodist Hosp. of 26 || Sacramento, No. S-14-0666 KJM CKD, 2014 WL 5698448, at *4 (E.D. Cal. Nov. 4, 27 || 2014) (collecting cases where courts found 40 to 71.5 hours spent on anti-SLAPP 28

1 motions to be reasonable). Moreover, Wagner did not address or otherwise oppose 2 the reasonableness of Edison’s hours. 3 Additionally, Edison’s hourly rates appear reasonable. In evaluating rates, 4 courts consider the reasonableness of rates for the specific geographic area and type of 5 practice. See Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 6 1986). Edison’s lead counsel, Reginald Roberts, Jr. has practiced employment 7 litigation for approximately 19 years and has billed clients in excess of $800 per hour. 8 (Roberts Decl. ¶ 3.) However, Mr. Roberts provides Edison with a special rate of 9 $335 per hour. (Roberts Decl. ¶ 4.) Mr. Felton has practiced employment litigation 10 for approximately 8 years and has billed clients in excess of $500 per hour. (Felton 11 Decl. ¶ 3.) Like Mr. Roberts, Mr. Felton provides Edison with a special rate of $225 12 per hour. (Felton Decl. ¶ 4.) These rates appear reasonable compared to the hourly 13 rates of other attorneys in the Central District. See Grant & Eisenhofer, P.A. v. 14 Brown, No. CV 17-5968 PSG (AFMx), 2018 WL 4945303, at *2 (C.D. Cal. May 14, 15 2018) (finding that in Los Angeles, partners have an hourly rate ranging from $400 to 16 $847, and associates from $300 to $595). The rates charged by Edison’s Counsel are 17 below the range of rates typically charged by partners and associates in Los Angeles. 18 See id. Moreover, Wagner did not address or otherwise oppose the reasonableness of 19 the hourly rates. Accordingly, the Court finds that the hourly rates are reasonable. 20 Although Edison was only partially successfully on its Anti-SLAPP Motion, the 21 Court finds that the work on the successful and unsuccessful claims largely 22 overlapped such that it is not appropriate to reduce Edison’s fees. Specifically, the 23 legal issues largely overlapped as both involved defamatory statements and whether 24 the statements were qualified to protections under the anti-SLAPP statute. (See 25 generally Anti-SLAPP Order.) Further, although the circumstances surrounding the 26 alleged defamatory statements were different, the statements made to both human 27 resources and the workers’ compensation representative were the same. As the Court 28 addressed above, Edison advanced its litigation position significantly through the 1 || Anti-SLAPP Motion, and eliminated an entire basis of Wagner’s defamation claim 2 | and removed a witness from trial. As such, Edison’s attorneys’ fees do not warrant a 3 || reduction. 4 Edison also seeks to recover $30.75 in costs related to service of the Anti- 5 || SLAPP Motion. (Suppl. Felton Decl. 4 4, Ex. A.) This is also unopposed. As such, 6 || Edison is also entitled to recover its costs. See Cal. Civ. Proc. Code § 425.16(c)(1) ([A] prevailing defendant . . . shall be entitled to recover his or her attorney’s fees 8 | and costs.”). 9 IV. CONCLUSION 10 For the foregoing reasons, the Court GRANTS Edison’s Motion (ECF No. 219) 11 |} and awards Edison $21,708.50 in attorneys’ fees and $30.75 in costs. (ECF 12 | No. 219.) 13 14 IT IS SO ORDERED. 15 os 16 September 9, 2019 ae,

18 OTIS D. GHT, Il 9 UNITED STATES DISTRICT JUDGE

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