Preview
FlLED/ENDORSED
APR 15 2019
1 PATRICIA L. GLASER - State Bar No. 55668
pglaser@glaserweil.com By:. E. Medina
2 JOEL N. KLEVENS - State Bar No. 45446 Deputy Cleric
jklevens@glaserweil.com
3 AZIN VALAFAR - State Bar No. 292068
avalafar@glaserweil.com
4 GLASER WEIL FINK HOWARD
AVCHEN & SHAPIRO LLP
5 10250 Constellation Boulevard, I9tii Floor
Los Angeles, Caiifomia 90067
6 Telephone: (310)553-3000
Facsimile: (310)556-2920
7
Attomeys for Plaintiff
8 Matthew Dababneh
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
il FOR THE COUNTY OF SACRAMENTO >0
12
13 MATTHEW DABABNEH, an individual; CaseNo. 34-2018-00238699
Unlimited Jurisdiction
14- Plaintiff,
1/) Assigned to the Honorable Kevin R. Culhane
15 v. Department: 23
16 PAMELA LOPEZ, an individual, PLAINTIFF'S OPPOSITION TO
and DOES I-10, DEFENDANT'S MOTION FOR
17 ATTORNEYS' FEES
Defendants.
18 Date: April 26, 2019
Time: 2:00 p.m.
19 Dept.: 53
20 Complaint Filed: August 14,2018
Trial Date: TBD
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PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES
1613311
TABLE OF CONTENTS
Page
I. INTRODUCTION AND STATEMENT OF FACTS 4
II. ARGUMENT 5
A. Defendant Pamela Lopez Is Not Entitled To Attorneys' Fees Because She
Is Not A Prevailing Defendant 5
B. Defendant Should Not Recover Costs And Attorneys' Fees For Time Spent
On The Unsuccessful Portion Of The Anfi-SLAPP Motion 7
C. Defendant Pamela Lopez's Request For Attomeys' Fees And Costs Is
Unreasonable , 8
III. CONCLUSION 9
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V)
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PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES
1613311
TABLE OF AUTHORITIES
Page
3 FEDERAL CASES
4 Hensley v. Eckerhart,
461 U.S. 424(1983) 5,6
5
6 STATE CASES
7 ComputerXpress, Inc. v. Jackson,
93 Cal. App. 4th 993 (2001) 4, 5
8
Ketchum v. Moses,
9 24 Cal. 4th 1122(2001) 8
10 Mann v. Quality Old Time Serv., Inc.,
139 Cal. App. 4th 328 (2006) 4, 5, 7
11
Moran v. Endres,
12 135 Cal. App. 4th 952 (Jan 27, 2006) 4, 6
13
STATE STATUTES
14
to Cal. Code of Civ. Proc. § 425.16 4, 5
-IS 15
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PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES
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I I. INTRODUCTION AND STATEMENT OF FACTS
2 Defendant Pamela Lopez has brought this motion for attorneys' fees claiming to be a
3 prevailing defendant under Caiifomia Code of Civil Procedure § 425.16. As a matter of law, she is
4 not. Caiifomia courts have held that a prevailing defendant is one who prevails on the merits of the
5 motion, obtaining a significant result by the court's ruling. Mann v. Quality Old Time Serv., Inc.,
6 139 Cal. App. 4th 328, 340 (2006); Moran v. Endres, 135 Cal. App. 4th 952, 955, as modified
7 (Jan 27, 2006); ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993,1017 (2001). Defendant
8 here has not attained such results. Rather, the Court's mling gave Defendant nominal and
9 insignificant relief in light of the objective of her mofion.
10 On August 14, 2019, Plaintiff Matthew Dababneh brought a complaint ("Complaint") against
II Defendant for defamation - making and disseminating false and malicious statements - and for
12 intentional infliction of emotional disti-ess ("IIED") caused by the defamatory statements. The
13 gravamen of Plaintiffs Complaint was that, on December 4, 2017, Defendant held a press conference
14 where she publicly and falsely accused Dababneh of sexual assault at a pre-wedding party on January
to
15 16, 2016 in a hotel suite bathroom in Las Vegas. (Complaint at 15). Dababneh also stated that
16 Defendantfileda report with the Caiifomia State Assembly on the same day, in which she made
17 similar false statements. Id.
18 On October 23, 2018, Defendant filed an anti-SLAPP motion allegingtiiatthe entirety of
19 Dababneh's complaint was without merit and must be dismissed. In her opening brief. Defendant
20 argued that the reports made to the Caiifomia State Assembly and at her press conference were
21 protected speech and that Dababneh could not prevail on the merits because her speech was not only
22 protected First Amendment speech, but also absolutely privileged. In his opposition, Dababneh did
23 not oppose Defendant's argument that her letter to the State Assembly was privileged, but showed
24 that no privilege applied to Defendant's false statements at her press conference.
25 On January 16,2019, the Court mled that Defendant's anti-SLAPP motion was granted in part
26 because her letter to the Assembly was privileged, but denied the motion and allowed the defamation
27 action to proceed because Defendant's allegedly false statements at her press conference were not
28 privileged. The Court's ruling left intact the entire defamation action against Defendant, leaving
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES
1613311
I Plaintiff to prove that Defendant's accusation of sexual assault against him was false and malicious.
2 The matter at issue in the defamation case—whether Defendant's accusation was tme or not—was
3 identical notwithstanding the partial grant of the anti-SLAPP motion. Recognizing this reality, and to
4 avoid litigating the case on die merits, Defendant filed a notice of appeal from the denial of her anti-
5 SLAPP motion on January 31,2019.
6 Defendant now moves the Court to grant her motion for attorneys' fees for the underlying
7 anti-SLAPP Motion in the amount of $14,999.96 and for her fee application in the additional
8 amount of $ 13,553.78, under the mistaken belief that her illusory victory renders her a prevailing
9 defendant. As will be shown morefiillyhereinafter. Defendant should not be entitled to recover any
10 attorneys' fees because she should not be deemed to be a prevailing party. Also, the amount of fees
11 requested by Defendant—even if some award of fees were justified—is unreasonable.
12 IL ARGUMENT
13 A. Defendant Pamela Lopez Is Not Entitled To Attornevs' Fees Because She
Is Not A Prevailing Defendant
14
(V
{A
15 Caiifomia Code of Civil Procedure § 425.16(c) states that "a prevailing defendant on a
16 special motion to strike shall be entitled to recover his or her attomeys' fees and costs." Defendant
17 "bear[s] the burden of establishing enfitlement to an award and documenting the appropriate hours
18 expended and hourly rates." ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1020
19 (2001)(intemal citation and quotation omitted). Defendant here has not and cannot establish that
20 she is entitled to attorneys' fees because she is not a prevailing defendant.
21 Caiifomia law holds that when "awarding attomey fees under the SLAPP statute, [] the
22 critical issue in determining which party has prevailed is which party realized its objectives in the
23 litigation." Id. at 1017 (intemal citation omitted). "The determination of whether there is a prevailing
24 party is to be made on a practical level after considering what each party accomplished via the
25 litigation." Id. (intemal quotation omitted); Mann v. Quality Old Time Serv., Inc., 139 Cal. App. 4th
26 328, 343 (2006)(citing to Hensley v. Eckerhart, 461 U.S. 424, 440 (1983)) ("wheretiie[party]
27 achieved only limited success, the district court should award only that amount of fees that is
28 reasonable in relation to the results obtained.") When a partially successful anti-SLAPP motion
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES
1613311
1 accomplishes nothing of real consequence or "[wjhere the results of the motion are 'minimal' or
2 'insignificant' a court does not abuse its discretion infindingthe defendant was not a prevailing
-» party." Mat 340. "The determination whether a party prevailed on an anti-SLAPP motion lies within
4 the broad discretion of a trial court." Id.
5 The trial court in Moran v. Endres, 135 Cal. App. 4th 952, 955, as modified (Jan. 27,2006),
6 denied defendants' fee motion in connection with a partially successfiil anti-SLAPP motion because
7 the relief granted was minimal compared to the objective of their motion - to dismiss the entire
8 complaint. The Court of Appeal affumed the trial court's decision, finding:
9 "defendants' motion accomplished nothing, except that plaintiffs were put to the cost
of defending the motion. The possible recovery against defendants did not change. The
10 factual allegafions which defendants had to defend did not change. The work involved
in trying tiie case did not change. Defendants' burden conceming their jurisdictional
II
defense did not change. The case was essentially the same after the mling on the special
12
motion to strike as it was before. The results of the motion were minimal and
insignificant, fiilly justifying the court's finding that defendants should not recover
13
fees."
14
Similarly in Mann, 139 Cal. App. 4th at 345, the Court of Appeal held:
15
"This analysis includes factors such as the extent to which the defendant's litigation
posture was advanced by the motion, whether the same factual allegations remain to
16 be litigated, whether discovery and motion practice have been narrowed, and the extent
to which fiiture litigation expenses and strategy were impacted by the motion. The fees
17 awarded to a defendant who was only partially successful on an anti-SLAPP motion
should be commensurate with the extent to which the motion changed the nature and
18 character of the lawsuit in a practical way."
19 The same analysis should apply here. Defendant moved to dismiss Dababneh's entire
20 Complaint. Instead of obtaining the results she sought, the Court granted relief on a nominal issue,
21 namely dismissing individual allegations in the defamation cause ofaction that referred to
22 Defendant's letter to the Caiifomia State Assembly, but leaving to be litigated PlaintifFs defamation
23 cause of action based on Defendant's false accusation of sexual assault. Defendant's illusory success
24 did not change the scope or nature of the case. The same legal and factual theories of the case
25 remain. The same causes of actions for defamation and IIED remain. The Court's mling did not
26 narrow the litigation or Dababneh's potential recoverable damages. The parties' burden to prevail at
27 trial and the expense to litigate the case is very much the same as it was before the Court's mling.
28 For example, the scope of discovery relating to the pre-wedding party and the names of witnesses
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES
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1 who may have knowledge of what transpired that evening are the same. As in Moran, the case is
2 essentially the same now as it was before this Court's mling on Defendant's anti-SLAPP motion.
3 "Defendant[] here sought to dismiss the case against [her], but instead obtained a mling which in
4 every practical sense meant nothing. That does not entitie them to fees." Moran, 135 Cal. App. 4th at
5 956.
6
B. Defendant Should Not Recover Costs And Attornevs' Fees For Time Spent On
7
The Unsuccessful Portion Of The Anti-SLAPP Motion
8
"In determining the lodestar amount, a prevailing party generally may not recover for work on
9
causes of action on which the party was unsuccessful." Mann v. Quality Old Time Serv., Inc.,
10 139 Cal. App. 4th 328, 342 (2006). Defendant concedes that she is not entitied to attorneys' fees for
II portions of the anti-SLAPP motion that were denied, namely all of the research, writing and argument
12 pertaining to her defamatory statements made to the press. However, Defendant argues that she is
I 13
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entitied to attorneys' fees based on the Court's mling on the limited issue of the statements she made
to the State Assembly, Dababneh did not contest this issue in his opposition to Defendant's anti-
to
15 SLAPP Motion. Therefore, any time that Defendant's counsel spent from that point forward,
iS
16 including time spent on the reply brief, preparing for oral argiunents, traveling to and from the
17 hearing and the time spent at the hearing, was spent on the issue of Defendant's defamatory
18 statements made during her press conference. Defendant's counsel, Ms. Jean Hyams, stated in her
19 declaration that she applied a 97% reduction to the time spent on the anti-SLAPP Motion after the
20 moving papers, but that 100% of her traveltimeto the hearing is included in the sum for which
21 Defendant seeks reimbursement. (Hyams Decl. H 11). The Court should deduct 100% of any time
22 Defendant's counsel spent on the anti-SLAPP Motion after the moving papers, including Ms. Hyams'
23 travel time to the hearing. Therefore, at least $1,531.44 in fees and $1,937.50 in travel time, for a
24 total of fees incurred after PlaintifiPs opposition of $3,468.94 should be deducted.
25 ///
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28 ///
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES
1613311
C. Defendant Pamela Lopez's Request For Attorneys' Fees And Costs Is
Unreasonable
2 Assuming arguendo that Defendant's anti-SLAPP motion were partially successful, she would
3 be entitled to only her reasonable attorneys' fees incurred in pursuing the successful portion of her
4 motion. See Ketchum v. Moses, 24 Cal. 4th 1122, 1137 (2001). Code of Civil Procedure section
5 425.16 "authorizes recovery of attomey fees only to defend against unmeritorious claims." Id. The
6 policy behind statutory fee authorization is to allow prompt and meaningful redress for defendants
7 facing meritless actions. Mann., 139 Cal. App. 4th at 344. "A fee request that appears unreasonably
8 inflated is a special circumstance permitting the trial court to reduce the award or deny one
9 altogether." Ketchum, 24 Cal. 4th at 1137 (intemal citation omitted).
10
Here, Defendant did not bring an anti-SLAPP motion against an unmeritorious claim. To the
11
contrary, the Court found that Dababneh's complaint met the threshold of prevailing on the merits
12
and denied Defendant's motion, but for the limited issue of the statements made to the State
13
Assembly. Thus, Defendant should not be entitled to attomeys' fees for her anti-SLAPP Motion or
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for the fee application.
to
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Even if the Court were to consider awarding attomeys' fees to Defendant, Defendant's request
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for fees is unreasonable. In her fee application. Defendant requests $14,999.96 in attorneys' fees for
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the anti-SLAPP Motion and $13,553.78 for attorneys' fees for the fee application.
18
, In her declaration, Ms. Hyams states that the fees requested in relation to the anti-SLAPP
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moving papers were reduced by 60%. (Hyams Decl. 11). Defendant's request for reimbursement of
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40% of the fees incurred in prosecuting the anti-SLAPP motion that did not change the scope ofthe
21
litigation is unreasonable. At most, the Court should award no more than 20% of the fees and, as
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stated above, no fees or costs incurred after Plaintiffs opposition. Therefore, if the Court were
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disposed to award any fees, the amount should not exceed the requested amount of $14,999.96,
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reduced by $3,468.94 for fees post Plaintiffs opposition, leaving $11,531.02, which should then be
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reduced by half, leaving a maximum fee award for the anti-SLAPP motion of $5,765.51.
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Further, it is unreasonable that the fee requested for the fee application, of $13,553.78, far
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exceeds any reasonable fee incurred in the successful portion ofthe anti-SLAPP motion. Defendant
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PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES
1613311
1 could have and should have met and conferred with Plaintiff before filing the fee application, so that
2 there would have been the possibility of resolving the fee issue without further need to litigate.
3 Now, given that Plaintiffs defamation action was not without merit and will be pursued after
4 this Court's anti-SLAPP ruling is affirmed on appeal, any recovery by Defendant of fees incurred in
5 making the fee application should be reduced to bear a reasonable relationship to the fees
6 recoverable for the successful portion of the anti-SLAPP motion. Therefore, if the Court were to
7 award $5,765.51 in fees for the anti-SLAPP motion, additional fees for the fee application should not
8 exceed one-half of that amount, or $2,882.75.
9 III. CONCLUSION
10 For the reasons set forth above. Plaintiff Matthew Dababneh respectfully requests that this
11 Court deny Defendant's Motion For Attorneys' Fees. In the altemative, should the Court be inclined
12 to grant Defendant's request for attorneys' fees, the Court should significantly reduce the amounts
13 awarded to $5,765.51 for the anti-SLAPP motion and $2,882.75 for the fee application, for a total of
0) 14 $8,648.27.
to
ra 15
16 DATED: April |.| ,2019 GLASER WEIL FINK HOWARD
AVCHEN & SHAPIRO LLP
17
18
By:
PATFaCTA CrtjLASER
19
JQELN. KLEVENS
AiSi>A,'ALAFAR
20 Attomeys for Plaintiff
Matthew Dababneh
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PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES
1613311
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of Caiifomia; I am over the age of
3 18 and not a party to the within action; my business address is 10250 Constellation Boulevard,
18* Floor, Los Angeles, Caiifomia 90067.
4
On April 15, 2019,1 served the foregoing document(s) described as:
5
6 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS'
FEES
7
on the interested parties to this action by delivering a copy thereof in a sealed envelope addressed to
8 each of said interested parties at the following address(es):
9 Jean K. Hyams, Esq.
Leslie F. Levy, Esq.
10 Hilary P. Hammell, Esq.
LEVY VENICK BURRELL HYAMS LLP
n 180 Grand Avenue, Suite 1300
Oakland, CA 94612
12 Tel: (510) 318-7700 / Fax: (510) 318-7701
E-mail: jean(^levyvinick.com; sharon(^levyvinickcom; hilary(^levyvinickcom
I
to
13
14
15
n
Attorneys for Defendant Pamela Lopez
(BY MAIL) I am readily familiar with the business practice for collection and processing of
correspondence for mailing with the United States Postal Service. This correspondence shall
be deposited with the United States Postal Service this same day in the ordinary course of
business at our Firm's office address in Los Angeles, California. Service made pursuant to
16 this paragraph, upon motion of a party served, shall be presumed invalid if the postal
cancellation date of postage meter date on the envelope is more than one day after the date of
17 deposit for mailing contained in this affidavit.
18 • (BY E-MAIL SERVICE) I caused such document to be delivered electronically via e-mail
to the e-mail address of the addressee(s) set forth in the attached service list.
19
(il (BY OVERNIGHT DELIVERY) I served the foregomg document by FedEx, an express
20 service carrier which provides ovemight delivery, as follows: 1 placed tme copies ofthe
foregoing docviment in sealed envelopes or packages designated by the express service
21 carrier, addressed to each interested party as set forth above, with fees for ovemight delivery
paid or provided for.
22
S (State) I declare imder penalty of perjury under the laws of the State of Caiifomia that
23 the above is tme and correct.
24 • (Federal) I declare that I am employed in the office of a member of the bar of this court at
whose direction the service was made. I declare under penalty of perjury that the
25 above is tme and correct.
26
Executed on April 15, 2019 at Los Angeles, Caiifomia.
27
28 nyNA COJOCARI
PROOF OF SERVICE
16180S4
Preview
FlLED/ENDORSED APR 15 2019 1 PATRICIA L. GLASER - State Bar No. 55668 pglaser@glaserweil.com By:. E. Medina 2 JOEL N. KLEVENS - State Bar No. 45446 Deputy Cleric jklevens@glaserweil.com 3 AZIN VALAFAR - State Bar No. 292068 avalafar@glaserweil.com 4 GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO LLP 5 10250 Constellation Boulevard, I9tii Floor Los Angeles, Caiifomia 90067 6 Telephone: (310)553-3000 Facsimile: (310)556-2920 7 Attomeys for Plaintiff 8 Matthew Dababneh 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA il FOR THE COUNTY OF SACRAMENTO >0 12 13 MATTHEW DABABNEH, an individual; CaseNo. 34-2018-00238699 Unlimited Jurisdiction 14- Plaintiff, 1/) Assigned to the Honorable Kevin R. Culhane 15 v. Department: 23 16 PAMELA LOPEZ, an individual, PLAINTIFF'S OPPOSITION TO and DOES I-10, DEFENDANT'S MOTION FOR 17 ATTORNEYS' FEES Defendants. 18 Date: April 26, 2019 Time: 2:00 p.m. 19 Dept.: 53 20 Complaint Filed: August 14,2018 Trial Date: TBD 21 22 23 24 25 26 27 28 1 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES 1613311 TABLE OF CONTENTS Page I. INTRODUCTION AND STATEMENT OF FACTS 4 II. ARGUMENT 5 A. Defendant Pamela Lopez Is Not Entitled To Attorneys' Fees Because She Is Not A Prevailing Defendant 5 B. Defendant Should Not Recover Costs And Attorneys' Fees For Time Spent On The Unsuccessful Portion Of The Anfi-SLAPP Motion 7 C. Defendant Pamela Lopez's Request For Attomeys' Fees And Costs Is Unreasonable , 8 III. CONCLUSION 9 9 10 11 12 13 14 V) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES 1613311 TABLE OF AUTHORITIES Page 3 FEDERAL CASES 4 Hensley v. Eckerhart, 461 U.S. 424(1983) 5,6 5 6 STATE CASES 7 ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993 (2001) 4, 5 8 Ketchum v. Moses, 9 24 Cal. 4th 1122(2001) 8 10 Mann v. Quality Old Time Serv., Inc., 139 Cal. App. 4th 328 (2006) 4, 5, 7 11 Moran v. Endres, 12 135 Cal. App. 4th 952 (Jan 27, 2006) 4, 6 13 STATE STATUTES 14 to Cal. Code of Civ. Proc. § 425.16 4, 5 -IS 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES 1613311 I I. INTRODUCTION AND STATEMENT OF FACTS 2 Defendant Pamela Lopez has brought this motion for attorneys' fees claiming to be a 3 prevailing defendant under Caiifomia Code of Civil Procedure § 425.16. As a matter of law, she is 4 not. Caiifomia courts have held that a prevailing defendant is one who prevails on the merits of the 5 motion, obtaining a significant result by the court's ruling. Mann v. Quality Old Time Serv., Inc., 6 139 Cal. App. 4th 328, 340 (2006); Moran v. Endres, 135 Cal. App. 4th 952, 955, as modified 7 (Jan 27, 2006); ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993,1017 (2001). Defendant 8 here has not attained such results. Rather, the Court's mling gave Defendant nominal and 9 insignificant relief in light of the objective of her mofion. 10 On August 14, 2019, Plaintiff Matthew Dababneh brought a complaint ("Complaint") against II Defendant for defamation - making and disseminating false and malicious statements - and for 12 intentional infliction of emotional disti-ess ("IIED") caused by the defamatory statements. The 13 gravamen of Plaintiffs Complaint was that, on December 4, 2017, Defendant held a press conference 14 where she publicly and falsely accused Dababneh of sexual assault at a pre-wedding party on January to 15 16, 2016 in a hotel suite bathroom in Las Vegas. (Complaint at 15). Dababneh also stated that 16 Defendantfileda report with the Caiifomia State Assembly on the same day, in which she made 17 similar false statements. Id. 18 On October 23, 2018, Defendant filed an anti-SLAPP motion allegingtiiatthe entirety of 19 Dababneh's complaint was without merit and must be dismissed. In her opening brief. Defendant 20 argued that the reports made to the Caiifomia State Assembly and at her press conference were 21 protected speech and that Dababneh could not prevail on the merits because her speech was not only 22 protected First Amendment speech, but also absolutely privileged. In his opposition, Dababneh did 23 not oppose Defendant's argument that her letter to the State Assembly was privileged, but showed 24 that no privilege applied to Defendant's false statements at her press conference. 25 On January 16,2019, the Court mled that Defendant's anti-SLAPP motion was granted in part 26 because her letter to the Assembly was privileged, but denied the motion and allowed the defamation 27 action to proceed because Defendant's allegedly false statements at her press conference were not 28 privileged. The Court's ruling left intact the entire defamation action against Defendant, leaving PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES 1613311 I Plaintiff to prove that Defendant's accusation of sexual assault against him was false and malicious. 2 The matter at issue in the defamation case—whether Defendant's accusation was tme or not—was 3 identical notwithstanding the partial grant of the anti-SLAPP motion. Recognizing this reality, and to 4 avoid litigating the case on die merits, Defendant filed a notice of appeal from the denial of her anti- 5 SLAPP motion on January 31,2019. 6 Defendant now moves the Court to grant her motion for attorneys' fees for the underlying 7 anti-SLAPP Motion in the amount of $14,999.96 and for her fee application in the additional 8 amount of $ 13,553.78, under the mistaken belief that her illusory victory renders her a prevailing 9 defendant. As will be shown morefiillyhereinafter. Defendant should not be entitled to recover any 10 attorneys' fees because she should not be deemed to be a prevailing party. Also, the amount of fees 11 requested by Defendant—even if some award of fees were justified—is unreasonable. 12 IL ARGUMENT 13 A. Defendant Pamela Lopez Is Not Entitled To Attornevs' Fees Because She Is Not A Prevailing Defendant 14 (V {A 15 Caiifomia Code of Civil Procedure § 425.16(c) states that "a prevailing defendant on a 16 special motion to strike shall be entitled to recover his or her attomeys' fees and costs." Defendant 17 "bear[s] the burden of establishing enfitlement to an award and documenting the appropriate hours 18 expended and hourly rates." ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1020 19 (2001)(intemal citation and quotation omitted). Defendant here has not and cannot establish that 20 she is entitled to attorneys' fees because she is not a prevailing defendant. 21 Caiifomia law holds that when "awarding attomey fees under the SLAPP statute, [] the 22 critical issue in determining which party has prevailed is which party realized its objectives in the 23 litigation." Id. at 1017 (intemal citation omitted). "The determination of whether there is a prevailing 24 party is to be made on a practical level after considering what each party accomplished via the 25 litigation." Id. (intemal quotation omitted); Mann v. Quality Old Time Serv., Inc., 139 Cal. App. 4th 26 328, 343 (2006)(citing to Hensley v. Eckerhart, 461 U.S. 424, 440 (1983)) ("wheretiie[party] 27 achieved only limited success, the district court should award only that amount of fees that is 28 reasonable in relation to the results obtained.") When a partially successful anti-SLAPP motion PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES 1613311 1 accomplishes nothing of real consequence or "[wjhere the results of the motion are 'minimal' or 2 'insignificant' a court does not abuse its discretion infindingthe defendant was not a prevailing -» party." Mat 340. "The determination whether a party prevailed on an anti-SLAPP motion lies within 4 the broad discretion of a trial court." Id. 5 The trial court in Moran v. Endres, 135 Cal. App. 4th 952, 955, as modified (Jan. 27,2006), 6 denied defendants' fee motion in connection with a partially successfiil anti-SLAPP motion because 7 the relief granted was minimal compared to the objective of their motion - to dismiss the entire 8 complaint. The Court of Appeal affumed the trial court's decision, finding: 9 "defendants' motion accomplished nothing, except that plaintiffs were put to the cost of defending the motion. The possible recovery against defendants did not change. The 10 factual allegafions which defendants had to defend did not change. The work involved in trying tiie case did not change. Defendants' burden conceming their jurisdictional II defense did not change. The case was essentially the same after the mling on the special 12 motion to strike as it was before. The results of the motion were minimal and insignificant, fiilly justifying the court's finding that defendants should not recover 13 fees." 14 Similarly in Mann, 139 Cal. App. 4th at 345, the Court of Appeal held: 15 "This analysis includes factors such as the extent to which the defendant's litigation posture was advanced by the motion, whether the same factual allegations remain to 16 be litigated, whether discovery and motion practice have been narrowed, and the extent to which fiiture litigation expenses and strategy were impacted by the motion. The fees 17 awarded to a defendant who was only partially successful on an anti-SLAPP motion should be commensurate with the extent to which the motion changed the nature and 18 character of the lawsuit in a practical way." 19 The same analysis should apply here. Defendant moved to dismiss Dababneh's entire 20 Complaint. Instead of obtaining the results she sought, the Court granted relief on a nominal issue, 21 namely dismissing individual allegations in the defamation cause ofaction that referred to 22 Defendant's letter to the Caiifomia State Assembly, but leaving to be litigated PlaintifFs defamation 23 cause of action based on Defendant's false accusation of sexual assault. Defendant's illusory success 24 did not change the scope or nature of the case. The same legal and factual theories of the case 25 remain. The same causes of actions for defamation and IIED remain. The Court's mling did not 26 narrow the litigation or Dababneh's potential recoverable damages. The parties' burden to prevail at 27 trial and the expense to litigate the case is very much the same as it was before the Court's mling. 28 For example, the scope of discovery relating to the pre-wedding party and the names of witnesses PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES 1613311 1 who may have knowledge of what transpired that evening are the same. As in Moran, the case is 2 essentially the same now as it was before this Court's mling on Defendant's anti-SLAPP motion. 3 "Defendant[] here sought to dismiss the case against [her], but instead obtained a mling which in 4 every practical sense meant nothing. That does not entitie them to fees." Moran, 135 Cal. App. 4th at 5 956. 6 B. Defendant Should Not Recover Costs And Attornevs' Fees For Time Spent On 7 The Unsuccessful Portion Of The Anti-SLAPP Motion 8 "In determining the lodestar amount, a prevailing party generally may not recover for work on 9 causes of action on which the party was unsuccessful." Mann v. Quality Old Time Serv., Inc., 10 139 Cal. App. 4th 328, 342 (2006). Defendant concedes that she is not entitied to attorneys' fees for II portions of the anti-SLAPP motion that were denied, namely all of the research, writing and argument 12 pertaining to her defamatory statements made to the press. However, Defendant argues that she is I 13 14 entitied to attorneys' fees based on the Court's mling on the limited issue of the statements she made to the State Assembly, Dababneh did not contest this issue in his opposition to Defendant's anti- to 15 SLAPP Motion. Therefore, any time that Defendant's counsel spent from that point forward, iS 16 including time spent on the reply brief, preparing for oral argiunents, traveling to and from the 17 hearing and the time spent at the hearing, was spent on the issue of Defendant's defamatory 18 statements made during her press conference. Defendant's counsel, Ms. Jean Hyams, stated in her 19 declaration that she applied a 97% reduction to the time spent on the anti-SLAPP Motion after the 20 moving papers, but that 100% of her traveltimeto the hearing is included in the sum for which 21 Defendant seeks reimbursement. (Hyams Decl. H 11). The Court should deduct 100% of any time 22 Defendant's counsel spent on the anti-SLAPP Motion after the moving papers, including Ms. Hyams' 23 travel time to the hearing. Therefore, at least $1,531.44 in fees and $1,937.50 in travel time, for a 24 total of fees incurred after PlaintifiPs opposition of $3,468.94 should be deducted. 25 /// 26 /// 27 /// 28 /// PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES 1613311 C. Defendant Pamela Lopez's Request For Attorneys' Fees And Costs Is Unreasonable 2 Assuming arguendo that Defendant's anti-SLAPP motion were partially successful, she would 3 be entitled to only her reasonable attorneys' fees incurred in pursuing the successful portion of her 4 motion. See Ketchum v. Moses, 24 Cal. 4th 1122, 1137 (2001). Code of Civil Procedure section 5 425.16 "authorizes recovery of attomey fees only to defend against unmeritorious claims." Id. The 6 policy behind statutory fee authorization is to allow prompt and meaningful redress for defendants 7 facing meritless actions. Mann., 139 Cal. App. 4th at 344. "A fee request that appears unreasonably 8 inflated is a special circumstance permitting the trial court to reduce the award or deny one 9 altogether." Ketchum, 24 Cal. 4th at 1137 (intemal citation omitted). 10 Here, Defendant did not bring an anti-SLAPP motion against an unmeritorious claim. To the 11 contrary, the Court found that Dababneh's complaint met the threshold of prevailing on the merits 12 and denied Defendant's motion, but for the limited issue of the statements made to the State 13 Assembly. Thus, Defendant should not be entitled to attomeys' fees for her anti-SLAPP Motion or 14 for the fee application. to 15 Even if the Court were to consider awarding attomeys' fees to Defendant, Defendant's request 16 for fees is unreasonable. In her fee application. Defendant requests $14,999.96 in attorneys' fees for 17 the anti-SLAPP Motion and $13,553.78 for attorneys' fees for the fee application. 18 , In her declaration, Ms. Hyams states that the fees requested in relation to the anti-SLAPP 19 moving papers were reduced by 60%. (Hyams Decl. 11). Defendant's request for reimbursement of 20 40% of the fees incurred in prosecuting the anti-SLAPP motion that did not change the scope ofthe 21 litigation is unreasonable. At most, the Court should award no more than 20% of the fees and, as 22 stated above, no fees or costs incurred after Plaintiffs opposition. Therefore, if the Court were 23 disposed to award any fees, the amount should not exceed the requested amount of $14,999.96, 24 reduced by $3,468.94 for fees post Plaintiffs opposition, leaving $11,531.02, which should then be 25 reduced by half, leaving a maximum fee award for the anti-SLAPP motion of $5,765.51. 26 Further, it is unreasonable that the fee requested for the fee application, of $13,553.78, far 27 exceeds any reasonable fee incurred in the successful portion ofthe anti-SLAPP motion. Defendant 28 8 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES 1613311 1 could have and should have met and conferred with Plaintiff before filing the fee application, so that 2 there would have been the possibility of resolving the fee issue without further need to litigate. 3 Now, given that Plaintiffs defamation action was not without merit and will be pursued after 4 this Court's anti-SLAPP ruling is affirmed on appeal, any recovery by Defendant of fees incurred in 5 making the fee application should be reduced to bear a reasonable relationship to the fees 6 recoverable for the successful portion of the anti-SLAPP motion. Therefore, if the Court were to 7 award $5,765.51 in fees for the anti-SLAPP motion, additional fees for the fee application should not 8 exceed one-half of that amount, or $2,882.75. 9 III. CONCLUSION 10 For the reasons set forth above. Plaintiff Matthew Dababneh respectfully requests that this 11 Court deny Defendant's Motion For Attorneys' Fees. In the altemative, should the Court be inclined 12 to grant Defendant's request for attorneys' fees, the Court should significantly reduce the amounts 13 awarded to $5,765.51 for the anti-SLAPP motion and $2,882.75 for the fee application, for a total of 0) 14 $8,648.27. to ra 15 16 DATED: April |.| ,2019 GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO LLP 17 18 By: PATFaCTA CrtjLASER 19 JQELN. KLEVENS AiSi>A,'ALAFAR 20 Attomeys for Plaintiff Matthew Dababneh 21 22 23 24 25 26 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES 1613311 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of Caiifomia; I am over the age of 3 18 and not a party to the within action; my business address is 10250 Constellation Boulevard, 18* Floor, Los Angeles, Caiifomia 90067. 4 On April 15, 2019,1 served the foregoing document(s) described as: 5 6 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES 7 on the interested parties to this action by delivering a copy thereof in a sealed envelope addressed to 8 each of said interested parties at the following address(es): 9 Jean K. Hyams, Esq. Leslie F. Levy, Esq. 10 Hilary P. Hammell, Esq. LEVY VENICK BURRELL HYAMS LLP n 180 Grand Avenue, Suite 1300 Oakland, CA 94612 12 Tel: (510) 318-7700 / Fax: (510) 318-7701 E-mail: jean(^levyvinick.com; sharon(^levyvinickcom; hilary(^levyvinickcom I to 13 14 15 n Attorneys for Defendant Pamela Lopez (BY MAIL) I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service. This correspondence shall be deposited with the United States Postal Service this same day in the ordinary course of business at our Firm's office address in Los Angeles, California. Service made pursuant to 16 this paragraph, upon motion of a party served, shall be presumed invalid if the postal cancellation date of postage meter date on the envelope is more than one day after the date of 17 deposit for mailing contained in this affidavit. 18 • (BY E-MAIL SERVICE) I caused such document to be delivered electronically via e-mail to the e-mail address of the addressee(s) set forth in the attached service list. 19 (il (BY OVERNIGHT DELIVERY) I served the foregomg document by FedEx, an express 20 service carrier which provides ovemight delivery, as follows: 1 placed tme copies ofthe foregoing docviment in sealed envelopes or packages designated by the express service 21 carrier, addressed to each interested party as set forth above, with fees for ovemight delivery paid or provided for. 22 S (State) I declare imder penalty of perjury under the laws of the State of Caiifomia that 23 the above is tme and correct. 24 • (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. I declare under penalty of perjury that the 25 above is tme and correct. 26 Executed on April 15, 2019 at Los Angeles, Caiifomia. 27 28 nyNA COJOCARI PROOF OF SERVICE 16180S4