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Electronically Filed
CYNTHIA G. LAWRENCE (SBN 148927)
TAHMINA YASSINE (SBN 285542) by Superior Court of CA,
SIMS, LAWRENCE & ARRUTI County of Santa Clara,
1891 E. Roseville Pkwy, Ste. 180 on 8/14/2019 4:23 PM
Roseville, CA 95661 Reviewed By: Tunisia Turner
Telephone: (916) 797-8881 Case #18CV332169
Facsimile: (916) 253-1544 Envelope: 3263517
Attorneys for Defendant
RUTHVEN (aka “RUTH”) PATRICK
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
10 DR. RONALD S. PATRICK, an Individual, Case No. 18CV332169
11 Plaintiff, RUTHVEN PATRICK’S REPLY TO
PLAINTIFF’S OPPOSITION TO
12 vs. DEFENDANT’S MOTION FOR
ATTORNEY’S FEES PURSUANT TO
13 RUTHVEN (aka “RUTH”) PATRICK, an CODE OF CIVIL PROCEDURE SECTION
individual; and DOES | through 20, inclusive, 425.16
14
Defendants. Date: August 22, 2019
15 Time: 9:00 a.m.
Department: 9
16 Judge: Hon. Mary E. Arand
17
18
19 I INTRODUCTION
20 Plaintiff's opposition and attendant declarations embody the very reason attorney fees with a
21 lodestar multiplier are wholly appropriate. Plaintiff, having lost on every essential element of his
22 SLAPP Complaint, nonetheless audaciously states “I do not accept the blame for bringing this court
23 case” and demands this Court to apply a “discretionary adjustment” to offset: (1) fees Plaintiff
24 incurred in filing evidence in support of his anti-SLAPP Opposition under seal; and (2) fees related to
25 Plaintiff's effort to quash Defendant’s subpoena for Plaintiffs attorney to testify as to the date
26 Plaintiff filed his citizenship application. Plaintiff also rehashes claims that because Defendant
27 prevailed in her Special Motion to Strike/Anti-SLAPP using evidence in direct violation of the parties
28 Personal Conduct Contract (“PCC”), the court should consider a “further adjustment” based on the
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RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR,
ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16
liquidated damages provision of that expired and unenforceable agreement. Having lost on every
issue, Plaintiff nonetheless tries to punish Defendant further.
Throughout this entire litigation process, Plaintiff has proffered completely irrelevant (and
inflammatory) facts/information, used Defendant’s confidential medical/psychiatric information
without her consent, and attempted to bury crucial information. Plaintiff's Opposition, his wild-eyed
and irrelevant declaration, and counsel’s declaration are all further evidence of Plaintiff's harassing,
controlling, abusive, and unethical behaviors towards the Defendant that started during their
marriage, and will apparently never end. For these reasons, and those further outlined below, a
Lodestar multiplier of 2.5 or greater is completely warranted and appropriate for this matter, and the
10 court should grant Defendant’s Motion for Attorneys’ fees in its entirety.
11 Il. BACKGROUND
12 Sadly, Plaintiff seeks to rehash arguments (almost verbatim) he lost on in the underlying
13 Special Motion. Plaintiff claims in his Opposition that the PCC is today a valid agreement. This
14 allegation is without merit. The agreement states that its terms are valid until December 22, 2015.
15 Additionally, if Plaintiffs citizenship application was pending as of December 22, 2015, the PCC
16 would continue until he either received his citizenship pursuant to the application or that application
17 was denied. (Exhibit A to Declaration of Ronald S. Patrick in Opposition to Defendant’s Motion for
18 Attorneys’ Fees, Page 3, paragraph d.) Nowhere does Plaintiff ever state under the penalty of perjury
19 that his citizenship application was pending as of December 22, 2015, only that he was granted
20 citizenship in January 2019 (more than three years later).
21 Furthermore, Plaintiff never wrote to Defendant (through counsel) asking her to abide by the
22 PCC... unless serving her with the paperwork pertaining to this lawsuit counts.
23 Finally, while the Court does not need a reminder of the outcome of the Special Motion to
24 Strike, clearly Plaintiff and his counsel do. He lost the Motion in its entirety. The Court found his
25 “blanket assertion that the alleged breaching of a contract [the PCC] is not protected under the anti-
26 SLAPP statute is incorrect.” In the underlying Motion, Plaintiff proffered copious over-the-top
27 declarations and documents, and none could overcome the law or the Defendant’s facts and defenses.
28 “Plaintiff does not demonstrate a probability of prevailing on his breach of contract and
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RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR,
ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16
dependent...causes of action.” The Court found that with or without the Today Show video and
transcript, his lawsuit lacked merit and indeed, nothing Plaintiff threw against the evidentiary wall
“demonstrate[d] a probability of prevailing on each of his causes of action.”
Plaintiff's pattern and mantra, however, are clear. If you cannot win, you must nonetheless
spitefully fight on, destroy your foe, disparage opposing counsel, make wild and totally irrelevant
accusations, publicly reveal and file sensitive mental health records, make up claims and salt the
fields of your enemy. It must come to an end. The entirety of the fees requested (save one small
double billing entry) are valid. The lodestar multiplier of 2.5 is valid and it is requested, in light of
the opposition’s attorney fee rate, that it be raised to a multiplier of 3 or more.
10 Til. ARGUMENT
11 Plaintiff's legal arguments against Defendant’s Motion for Attorney’s fees are: (1) CCP
12 §425.16(c) only authorizes awards for fees reasonably necessary to the anti-SLAPP proceedings, not
13 all fees incurred; (2) no enhancement is warranted or supported by any evidence and the enhancement
14 requested vastly exceeds maximum available by law; (3) a discretionary downward adjustment is
15 appropriate to offset fees Plaintiff incurred trying to protect the privacy of Defendant’s psychiatric
16 records; and (4) Plaintiff requests the Court to consider offsetting the entire potential award by the
17 amount of liquidated damages for Defendant’s alleged disclosure of her 2009 DVRO allegations to
18 advance her anti-SLAPP position. None of these arguments have merit and the entire opposition and
19 scurrilous declarations demonstrate exactly why fees and the lodestar multiplier are appropriate.
20 A. Defendant’s Request for Attorney’s Fees Are Reasonable and Related to The Anti-
SLAPP Motion.
21
Plaintiff contends Defendant’s request for attorney’s fees is based on a series of prebills that
22
include multiple time entries for work outside the scope of the anti-SLAPP proceedings. Plaintiff
23
alleges the work falls into the following categories: (1) unrelated to anti-SLAPP issues; (2)
24
counterproductive to Defendant’s admitted privacy interest; and (3) unnecessary because the relief
25
sought was not legally available in anti-SLAPP proceedings. Plaintiff is legally and factually wrong.
26
The enclosed Declaration of Cynthia G. Lawrence supports the contested billing entries are
27
all related and necessary towards the issues in this case. Defendant was not a client of our firm prior
28
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RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR,
ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16
to the meritless suit by Plaintiff. By definition, ALL of the work for Defendant arose out of and is
specifically related to this case and the Special Motion to Strike. The attorney’s fees requested are
costs incurred by Defendant in extracting herself from this action, including required reports to the
adjuster, drafting subpoenas to the United States Citizenship and Immigration Services, telephone
calls, attending case management conferences, etc. (Wilkerson v. Sullivan (2002) 99 Cal.App.4th
443, 448 (“The statute is broadly construed so as to effectuate the legislative purpose of
reimbursing the prevailed defendant for expenses incurred in extricating himself or herself from a
baseless lawsuit.”))
The Court in Environmental Protection Information Center v. Dept. of Forestry and Fire
10 Protection (2010) 190 Cal. App. 4 2017 was faced with a similar argument by Defendants who
11 argued some of the work by the successful Plaintiff should be rejected. Not so, said the Court.
12 There is a two-part inquiry with the first step asking whether the claims [or defenses] were
13 “unrelated to the claims on which he succeeded.” (/d. at 239 (citations omitted)). The Court must
14 first examine whether the “prevailing party’s unsuccessful claims are related to its successful
15 ones.” (/d.) Related claims “involve a common core of facts” ‘related legal theories.” Here, the
16 inquiry ends because ALL of Defendant’s defenses were successful and ALL the work a common
17 core of facts and related legal theories. “But for” Plaintiff's lawsuit, the work would not have
18 been performed. Next, the Court determines if the claims [or defenses] were related, and was that
19 party successful, the Court must evaluate the “significance of the overall relief obtained in relation
20 to the hours spent.” (/d.) Here, Defendant was successful on every issue and Plaintiff failed
21 on every issue. Thus, Plaintiff's challenge fails by every measure.
22 Plaintiff further contends Defendant inexplicably opposed every attempt Plaintiff made to
23 protect the privacy of “Defendant’s medical and arrest records” by filing them under seal in
24 support of his opposition. Plaintiff conveniently omits that he wrongly proffered these protected
25 documents to the Court to support his Opposition to Defendant’s Special Motion to Strike.
26 Plaintiff also deliberately omits that he obtained these documents without Defendant’s consent or
27 knowledge. On the contrary, Defendant was almost required to file her own Motion to Seal
28 because Plaintiff's Reply included her unredacted medical/psychiatric documents that were
4.
RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR,
ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16
originally filed under seal. Furthermore, Plaintiff stated in his Reply that he was withdrawing the
motion and he directed the court clerk to file the documents in the court’s public record. Plaintiffs
abuse of process forced Defendant to file an ex parte motion for an order shortening time to file
her own Motion to Seal. All of this work was in fact directly related to the anti-SLAPP motion and
was initiated by wrongful (and shameful) conduct by Plaintiff and his counsel despite Plaintiffs
claim to the contrary.
Finally, Plaintiff claims Defendant contacted Plaintiff's immigration attorney and induced
her to breach attorney-client privilege and disclose alleged confidential information, which is
delusional and not relevant to this motion. This argument is nonsensical. The date Plaintiff filed
10 his citizenship application is not confidential or attorney-client privileged information; indeed, it is
11 discoverable under the Freedom of Information Act. It is not a privileged communication under
12 any analysis. Obtaining information as to when Plaintiff applied for his citizenship was directly
13 relevant to Plaintiffs Complaint and the Anti-SLAPP motion. Plaintiff (wrongly) contended the
14 PCC was a valid contract when Defendant went on the Today Show with Megyn Kelly in 2018,
15 and she was thus supposedly not allowed to disclose information regarding her belief that she was
16 a survivor of domestic violence. But the PCC expired in December 2015, and Plaintiff did not
17 apply for citizenship until after Defendant appeared on the Today Show; thus, the PCC was
18 unenforceable. Obviously, Plaintiff knew this and he repeatedly refused (then and now) to disclose
19 his citizenship application date. The only reason Plaintiff's immigration attorney was not required
20 to reveal how patently frivolous Plaintiff's lawsuit was at the Special Motion to Strike hearing was
21 because the Court found the suit without merit based on the evidence and Plaintiff's own damning
22 admissions. Therefore, Defendant’s efforts were necessary and are related to her Special Motion to
23 Strike. That the Plaintiff lost on other, additional grounds is not relevant.
24 B. Defendant’s Request for A Lodestar Multiplier and Enhancement Of 2.5 Is An
Appropriate Request And Not An Overreach For De Facto Punitive Damages
25
Against Plaintiff.
26 Under CCP § 425.16(c), a SLAPP defendant who brings a successful motion to strike is
27 entitled to attorney’s fees. The fee-shifting provision was a public policy mechanism designed to
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RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR,
ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16
discourage such lawsuits by imposing the litigation costs on the party seeking to “chill the valid
exercise of the constitutional rights of freedom of speech and petition for the redress of grievances”.
(Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1131.) The California Supreme Court in Ketchum
explained that because the anti-SLAPP provision refers to attorney’s fees and costs without indicating
any restrictions on how they are to be calculated, it is presumed the legislature intended courts to use
the prevailing lodestar adjustment method. (/d. at p. 744.) The legislative aim in including the
attorney fee provision was to strengthen enforcement of certain constitutional rights, including
freedom of speech and petition for redress of grievances, by placing the financial burden of defending
against so-called SLAPP actions on the party abusing the judicial system, and by encouraging private
10 representation, including instances when a litigant cannot afford fees. (/d.)
11 California courts in anti-SLAPP litigation allow for an award of attorney’s fees to be
12 subject to a lodestar/enhancement multiplier. (/d. at 1131)
13 Under Serrano III, the lodestar is the basic fee for comparable legal
services in the community; it may be adjusted by the court based
14
on factors including, as relevant herein, (1) the novelty and
15 difficulty of the questions involved, (2) the skill displayed in
presenting them, (3) the extent to which the nature of the
16 litigation precluded other employment by the attorneys, (4) the
contingent nature of the fee award. (Serrano III, supra, 20 Cal.3d at
17 p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303.) The purpose of such
adjustment is to fix a fee at the fair market value for the particular
18
action. In effect, the court determines, retrospectively, whether the
19 litigation involved a contingent risk or required extraordinary legal
skill justifying augmentation of the unadorned lodestar in order to
20 approximate the fair market rate for such services. The
“experienced trial judge is the best judge of the value of
21 professional services rendered in his court, and while his
judgment is of course subject to review, it will not be disturbed
22 2
unless the appellate court is convinced that it is clearly wrong.
23 (Ibid.)
24 (Ud. at 1131-1132 (emphasis added).)
25
Here, Defendant’s request for a Lodestar multiplier and enhancement of 2.5 should be granted
26
as a matter of public policy and preventing similar lawsuits. The lodestar multiplier of 2.5 is not
27
outrageous or a stratospheric overreach as claimed by Plaintiff but would bring Defendant’s counsel’s
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RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR,
ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16
attorney’s fee rate from $175 to $437.50, which is still less than Plaintiff's counsel’s hourly rate of
$485 per hour. Indeed, a multiplier of 2.5 is more reasonable and realistic in light of the grossly
offensive declarations and conduct by Plaintiff and his counsel. A higher rate is legitimate.
C. Plaintiff’s Request For An Offset Of Fees Is Unreasonable As Plaintiff Was Not The
Prevailing Party In This Matter And Has No Recovery Or Credit For Attorney’s
Fees.
Although the court authorizes a discretionary enhancement or reduction of attorney’s fees
sought from a prevailing party who files an Anti-SLAPP motion, there is no legal authority cited by
Plaintiff which supports his position that the court should give a losing Plaintiff a “credit” for
attorney’s fees he incurred in pursuing unsuccessful claims. No case supports such a upside down
10 demand and because the Plaintiff did not bring a motion, the Court cannot (in effect) award him fees.
11 Plaintiff wrongly obtained and used Defendant’s psychiatric records without the authorization
12 or consent of Defendant, despite falsely claiming he had authority from a family law judge to obtain a
13 copy of the confidential Palo Alto Police Report filed in 2010. Defendant’s psychiatric records were
14 irrelevant to Plaintiff's Opposition to Defendant’s Special Motion to Strike and were not even
15 considered by the court in granting Defendant’s Special Motion to Strike. Defendant had every right
16 to oppose the Motion to Seal and should not be punished for doing so.
17 Furthermore, as stated above, Defendant’s attempt to get information regarding the date
18 Plaintiff filed for his citizenship application was not an attempt to invade the attorney-client privilege
19 but obtain relevant and important information to counter a claim that the PCC was enforceable.
20 Defendant was required to speak to Plaintiffs immigration attorney, because Plaintiff refused to
21 provide information, he knew would expose his lawsuit for the harassing, abusive, baseless con that it
22 was. Therefore, Defendant respectfully requests the court deny Plaintiffs request for an “equitable”
23 adjustment to offset fees Plaintiff incurred in filing his Motion to Seal and ex parte motion to quash
24 Defendant’s subpoena to Plaintiffs immigration attorney.
25 The Court cannot equitably adjust Defendant’s fees without a noticed motion by Plaintiff.
26 And, as the party which lost, Defendant cannot (1) relitigate matters upon which he lost and (2)
27 cannot ask for fees without a noticed motion—which he cannot bring because he lost the case.
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RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR,
ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16
D. Plaintiffs Request For The Court To Consider An Offset In The Amount Of
Liquidated Damages For Breaching The PCC Is Outrageous.
It is astonishing that despite knowing the PCC between the parties expired in December 2015,
Plaintiff is still requesting without merit the court to consider the liquidated damages provision in the
agreement to offset the amount of attorney’s fees owed to Defendant. Made worse for Plaintiff is that
he lost on all issues and yet demands this court grant him fees for losing. The abuse continues.
Plaintiff fails to cite any legal authority for his novel position, and further thumbs his nose at
the court’s order and the basis for granting Defendant’s Special Motion to Strike/Anti-SLAPP
motion. The Motion was not granted by the Court considering the allegations made in Defendant’s
Domestic Violence Restraining Order and claiming she was a victim of domestic violence, but
10
because Defendant did not go on the Megyn Kelly show and speak adversely about Plaintiff or speak
11
about her personal experience as a survivor of domestic violence, as alleged in his Complaint. More
12
broadly, the Court found Plaintiffs “blanket assertion that the alleged breaching of a contract [the
13
PCC] is not protected under the anti-SLAPP statute is incorrect.” Plaintiff lost and cannot backdoor a
14
motion for reconsideration. As the losing party, Plaintiff is never entitled to fees, offsets and/or costs.
15
E. Plaintiff's Inflammatory Declaration Alone Supports An Award Of All Fees And
16 Costs Along With A Lodestar Multiplier Of 2.5 Or Higher.
17 Plaintiff's declaration in support of his Opposition is filled with irrelevant and incendiary
18 allegations, hearsay and falsehoods. It demonstrates what the Defendant has been worried about all
19 along—the Plaintiff is a bully, abusive, and destructive. Again, mental health information is publicly
20 disseminated. Again, he tries in vain to discredit Defendant while pretending he did not lose the
21 Special Motion. He now cries wolf and refuses to even accept responsibility for this lawsuit stating:
22 “I do not accept the blame for bringing this court case.” His counsel should be ashamed to
23 countenance such conduct and then has the gall to blame the Defendant for vigorously defending
24 herself (and winning), falsely claiming Defendant’s counsel overbilled the file, and asserting counsel
25 is trying to punish the Plaintiff.
26 The fees, even with the lodestar multiplier are less than Plaintiff's counsel is charging. So, if
27 defense counsel is trying to punish the Plaintiff it can only mean she is too. The multiplier is allowed
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RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR,
ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16
on public policy grounds and is not meant to punish the losing party, but to discourage plaintiffs from
trying to bully a defendant into forfeiting her Constitutional rights. As with the entire Opposition,
there are no statutes or case law that Plaintiff cites to support his position and the lodestar multiplier
has been routinely allowed in California. It is fair and completely within the public policy of
discouraging such frivolous lawsuits for a trial court to exercise its discretion to confirm a lodestar
multiplier. And, surely no one can assert that a multiplier which allows fees at a rate LESS THAN
his own counsel is charging is punitive or unfair. Given the conduct and outrageous allegations and
improper use of mental health records, a multiplier of 2.5 or more is completely justified.
IV. CONCLUSION
10 Plaintiff's declaration and additional irrelevant information submitted with his declaration as
11 evidence in support of his Opposition have nothing to do with Defendant’s Motion for Attorney’s
12 fees, and evidence that a Lodestar multiplier of 2.5 is warranted, reasonable, and appropriate for this
13 matter. He lost but cannot accept that immutable fact.
14 Plaintiff's Opposition is not based in reason, the facts of this case, or any legal authority.
IS Plaintiff also believes any potential amount should be reduced but Plaintiff failed to bring a motion
16 for his attorney fees. The Court is therefore without statutory basis to award an offset. Thus,
17 Plaintiffs Opposition is without merit and should be rejected by the court.
18 Therefore, Defendant respectfully requests the court grant her request for updated attorney
19 fees and costs in the total amount of $141,966.25 comprised of $138,856.25 in attorney’s fees
20 ($54,452.50 to date X 2.5 Lodestar enhancement) + $2,625.00 in attorneys for finalizing, preparing
21 and arguing this motion and $3,110.00 total in costs.
22 Dated: August 14, 2019 SIMS, LAWRENCE & ARRUTI
Cy
23
24
By rs
25 CYN’ IA G. LAWRENCE
TAHMINA YASSINE
26 Attorneys for Defendant
RUTHVEN (aka “RUTH”) PATRICK
27
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RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR
ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16
Preview
Electronically Filed CYNTHIA G. LAWRENCE (SBN 148927) TAHMINA YASSINE (SBN 285542) by Superior Court of CA, SIMS, LAWRENCE & ARRUTI County of Santa Clara, 1891 E. Roseville Pkwy, Ste. 180 on 8/14/2019 4:23 PM Roseville, CA 95661 Reviewed By: Tunisia Turner Telephone: (916) 797-8881 Case #18CV332169 Facsimile: (916) 253-1544 Envelope: 3263517 Attorneys for Defendant RUTHVEN (aka “RUTH”) PATRICK SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 DR. RONALD S. PATRICK, an Individual, Case No. 18CV332169 11 Plaintiff, RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPOSITION TO 12 vs. DEFENDANT’S MOTION FOR ATTORNEY’S FEES PURSUANT TO 13 RUTHVEN (aka “RUTH”) PATRICK, an CODE OF CIVIL PROCEDURE SECTION individual; and DOES | through 20, inclusive, 425.16 14 Defendants. Date: August 22, 2019 15 Time: 9:00 a.m. Department: 9 16 Judge: Hon. Mary E. Arand 17 18 19 I INTRODUCTION 20 Plaintiff's opposition and attendant declarations embody the very reason attorney fees with a 21 lodestar multiplier are wholly appropriate. Plaintiff, having lost on every essential element of his 22 SLAPP Complaint, nonetheless audaciously states “I do not accept the blame for bringing this court 23 case” and demands this Court to apply a “discretionary adjustment” to offset: (1) fees Plaintiff 24 incurred in filing evidence in support of his anti-SLAPP Opposition under seal; and (2) fees related to 25 Plaintiff's effort to quash Defendant’s subpoena for Plaintiffs attorney to testify as to the date 26 Plaintiff filed his citizenship application. Plaintiff also rehashes claims that because Defendant 27 prevailed in her Special Motion to Strike/Anti-SLAPP using evidence in direct violation of the parties 28 Personal Conduct Contract (“PCC”), the court should consider a “further adjustment” based on the -l- RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR, ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 liquidated damages provision of that expired and unenforceable agreement. Having lost on every issue, Plaintiff nonetheless tries to punish Defendant further. Throughout this entire litigation process, Plaintiff has proffered completely irrelevant (and inflammatory) facts/information, used Defendant’s confidential medical/psychiatric information without her consent, and attempted to bury crucial information. Plaintiff's Opposition, his wild-eyed and irrelevant declaration, and counsel’s declaration are all further evidence of Plaintiff's harassing, controlling, abusive, and unethical behaviors towards the Defendant that started during their marriage, and will apparently never end. For these reasons, and those further outlined below, a Lodestar multiplier of 2.5 or greater is completely warranted and appropriate for this matter, and the 10 court should grant Defendant’s Motion for Attorneys’ fees in its entirety. 11 Il. BACKGROUND 12 Sadly, Plaintiff seeks to rehash arguments (almost verbatim) he lost on in the underlying 13 Special Motion. Plaintiff claims in his Opposition that the PCC is today a valid agreement. This 14 allegation is without merit. The agreement states that its terms are valid until December 22, 2015. 15 Additionally, if Plaintiffs citizenship application was pending as of December 22, 2015, the PCC 16 would continue until he either received his citizenship pursuant to the application or that application 17 was denied. (Exhibit A to Declaration of Ronald S. Patrick in Opposition to Defendant’s Motion for 18 Attorneys’ Fees, Page 3, paragraph d.) Nowhere does Plaintiff ever state under the penalty of perjury 19 that his citizenship application was pending as of December 22, 2015, only that he was granted 20 citizenship in January 2019 (more than three years later). 21 Furthermore, Plaintiff never wrote to Defendant (through counsel) asking her to abide by the 22 PCC... unless serving her with the paperwork pertaining to this lawsuit counts. 23 Finally, while the Court does not need a reminder of the outcome of the Special Motion to 24 Strike, clearly Plaintiff and his counsel do. He lost the Motion in its entirety. The Court found his 25 “blanket assertion that the alleged breaching of a contract [the PCC] is not protected under the anti- 26 SLAPP statute is incorrect.” In the underlying Motion, Plaintiff proffered copious over-the-top 27 declarations and documents, and none could overcome the law or the Defendant’s facts and defenses. 28 “Plaintiff does not demonstrate a probability of prevailing on his breach of contract and -2- RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR, ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 dependent...causes of action.” The Court found that with or without the Today Show video and transcript, his lawsuit lacked merit and indeed, nothing Plaintiff threw against the evidentiary wall “demonstrate[d] a probability of prevailing on each of his causes of action.” Plaintiff's pattern and mantra, however, are clear. If you cannot win, you must nonetheless spitefully fight on, destroy your foe, disparage opposing counsel, make wild and totally irrelevant accusations, publicly reveal and file sensitive mental health records, make up claims and salt the fields of your enemy. It must come to an end. The entirety of the fees requested (save one small double billing entry) are valid. The lodestar multiplier of 2.5 is valid and it is requested, in light of the opposition’s attorney fee rate, that it be raised to a multiplier of 3 or more. 10 Til. ARGUMENT 11 Plaintiff's legal arguments against Defendant’s Motion for Attorney’s fees are: (1) CCP 12 §425.16(c) only authorizes awards for fees reasonably necessary to the anti-SLAPP proceedings, not 13 all fees incurred; (2) no enhancement is warranted or supported by any evidence and the enhancement 14 requested vastly exceeds maximum available by law; (3) a discretionary downward adjustment is 15 appropriate to offset fees Plaintiff incurred trying to protect the privacy of Defendant’s psychiatric 16 records; and (4) Plaintiff requests the Court to consider offsetting the entire potential award by the 17 amount of liquidated damages for Defendant’s alleged disclosure of her 2009 DVRO allegations to 18 advance her anti-SLAPP position. None of these arguments have merit and the entire opposition and 19 scurrilous declarations demonstrate exactly why fees and the lodestar multiplier are appropriate. 20 A. Defendant’s Request for Attorney’s Fees Are Reasonable and Related to The Anti- SLAPP Motion. 21 Plaintiff contends Defendant’s request for attorney’s fees is based on a series of prebills that 22 include multiple time entries for work outside the scope of the anti-SLAPP proceedings. Plaintiff 23 alleges the work falls into the following categories: (1) unrelated to anti-SLAPP issues; (2) 24 counterproductive to Defendant’s admitted privacy interest; and (3) unnecessary because the relief 25 sought was not legally available in anti-SLAPP proceedings. Plaintiff is legally and factually wrong. 26 The enclosed Declaration of Cynthia G. Lawrence supports the contested billing entries are 27 all related and necessary towards the issues in this case. Defendant was not a client of our firm prior 28 3- RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR, ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 to the meritless suit by Plaintiff. By definition, ALL of the work for Defendant arose out of and is specifically related to this case and the Special Motion to Strike. The attorney’s fees requested are costs incurred by Defendant in extracting herself from this action, including required reports to the adjuster, drafting subpoenas to the United States Citizenship and Immigration Services, telephone calls, attending case management conferences, etc. (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448 (“The statute is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailed defendant for expenses incurred in extricating himself or herself from a baseless lawsuit.”)) The Court in Environmental Protection Information Center v. Dept. of Forestry and Fire 10 Protection (2010) 190 Cal. App. 4 2017 was faced with a similar argument by Defendants who 11 argued some of the work by the successful Plaintiff should be rejected. Not so, said the Court. 12 There is a two-part inquiry with the first step asking whether the claims [or defenses] were 13 “unrelated to the claims on which he succeeded.” (/d. at 239 (citations omitted)). The Court must 14 first examine whether the “prevailing party’s unsuccessful claims are related to its successful 15 ones.” (/d.) Related claims “involve a common core of facts” ‘related legal theories.” Here, the 16 inquiry ends because ALL of Defendant’s defenses were successful and ALL the work a common 17 core of facts and related legal theories. “But for” Plaintiff's lawsuit, the work would not have 18 been performed. Next, the Court determines if the claims [or defenses] were related, and was that 19 party successful, the Court must evaluate the “significance of the overall relief obtained in relation 20 to the hours spent.” (/d.) Here, Defendant was successful on every issue and Plaintiff failed 21 on every issue. Thus, Plaintiff's challenge fails by every measure. 22 Plaintiff further contends Defendant inexplicably opposed every attempt Plaintiff made to 23 protect the privacy of “Defendant’s medical and arrest records” by filing them under seal in 24 support of his opposition. Plaintiff conveniently omits that he wrongly proffered these protected 25 documents to the Court to support his Opposition to Defendant’s Special Motion to Strike. 26 Plaintiff also deliberately omits that he obtained these documents without Defendant’s consent or 27 knowledge. On the contrary, Defendant was almost required to file her own Motion to Seal 28 because Plaintiff's Reply included her unredacted medical/psychiatric documents that were 4. RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR, ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 originally filed under seal. Furthermore, Plaintiff stated in his Reply that he was withdrawing the motion and he directed the court clerk to file the documents in the court’s public record. Plaintiffs abuse of process forced Defendant to file an ex parte motion for an order shortening time to file her own Motion to Seal. All of this work was in fact directly related to the anti-SLAPP motion and was initiated by wrongful (and shameful) conduct by Plaintiff and his counsel despite Plaintiffs claim to the contrary. Finally, Plaintiff claims Defendant contacted Plaintiff's immigration attorney and induced her to breach attorney-client privilege and disclose alleged confidential information, which is delusional and not relevant to this motion. This argument is nonsensical. The date Plaintiff filed 10 his citizenship application is not confidential or attorney-client privileged information; indeed, it is 11 discoverable under the Freedom of Information Act. It is not a privileged communication under 12 any analysis. Obtaining information as to when Plaintiff applied for his citizenship was directly 13 relevant to Plaintiffs Complaint and the Anti-SLAPP motion. Plaintiff (wrongly) contended the 14 PCC was a valid contract when Defendant went on the Today Show with Megyn Kelly in 2018, 15 and she was thus supposedly not allowed to disclose information regarding her belief that she was 16 a survivor of domestic violence. But the PCC expired in December 2015, and Plaintiff did not 17 apply for citizenship until after Defendant appeared on the Today Show; thus, the PCC was 18 unenforceable. Obviously, Plaintiff knew this and he repeatedly refused (then and now) to disclose 19 his citizenship application date. The only reason Plaintiff's immigration attorney was not required 20 to reveal how patently frivolous Plaintiff's lawsuit was at the Special Motion to Strike hearing was 21 because the Court found the suit without merit based on the evidence and Plaintiff's own damning 22 admissions. Therefore, Defendant’s efforts were necessary and are related to her Special Motion to 23 Strike. That the Plaintiff lost on other, additional grounds is not relevant. 24 B. Defendant’s Request for A Lodestar Multiplier and Enhancement Of 2.5 Is An Appropriate Request And Not An Overreach For De Facto Punitive Damages 25 Against Plaintiff. 26 Under CCP § 425.16(c), a SLAPP defendant who brings a successful motion to strike is 27 entitled to attorney’s fees. The fee-shifting provision was a public policy mechanism designed to 28 5 RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR, ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 discourage such lawsuits by imposing the litigation costs on the party seeking to “chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances”. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1131.) The California Supreme Court in Ketchum explained that because the anti-SLAPP provision refers to attorney’s fees and costs without indicating any restrictions on how they are to be calculated, it is presumed the legislature intended courts to use the prevailing lodestar adjustment method. (/d. at p. 744.) The legislative aim in including the attorney fee provision was to strengthen enforcement of certain constitutional rights, including freedom of speech and petition for redress of grievances, by placing the financial burden of defending against so-called SLAPP actions on the party abusing the judicial system, and by encouraging private 10 representation, including instances when a litigant cannot afford fees. (/d.) 11 California courts in anti-SLAPP litigation allow for an award of attorney’s fees to be 12 subject to a lodestar/enhancement multiplier. (/d. at 1131) 13 Under Serrano III, the lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based 14 on factors including, as relevant herein, (1) the novelty and 15 difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the 16 litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. (Serrano III, supra, 20 Cal.3d at 17 p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303.) The purpose of such adjustment is to fix a fee at the fair market value for the particular 18 action. In effect, the court determines, retrospectively, whether the 19 litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to 20 approximate the fair market rate for such services. The “experienced trial judge is the best judge of the value of 21 professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed 22 2 unless the appellate court is convinced that it is clearly wrong. 23 (Ibid.) 24 (Ud. at 1131-1132 (emphasis added).) 25 Here, Defendant’s request for a Lodestar multiplier and enhancement of 2.5 should be granted 26 as a matter of public policy and preventing similar lawsuits. The lodestar multiplier of 2.5 is not 27 outrageous or a stratospheric overreach as claimed by Plaintiff but would bring Defendant’s counsel’s 28 -6- RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR, ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 attorney’s fee rate from $175 to $437.50, which is still less than Plaintiff's counsel’s hourly rate of $485 per hour. Indeed, a multiplier of 2.5 is more reasonable and realistic in light of the grossly offensive declarations and conduct by Plaintiff and his counsel. A higher rate is legitimate. C. Plaintiff’s Request For An Offset Of Fees Is Unreasonable As Plaintiff Was Not The Prevailing Party In This Matter And Has No Recovery Or Credit For Attorney’s Fees. Although the court authorizes a discretionary enhancement or reduction of attorney’s fees sought from a prevailing party who files an Anti-SLAPP motion, there is no legal authority cited by Plaintiff which supports his position that the court should give a losing Plaintiff a “credit” for attorney’s fees he incurred in pursuing unsuccessful claims. No case supports such a upside down 10 demand and because the Plaintiff did not bring a motion, the Court cannot (in effect) award him fees. 11 Plaintiff wrongly obtained and used Defendant’s psychiatric records without the authorization 12 or consent of Defendant, despite falsely claiming he had authority from a family law judge to obtain a 13 copy of the confidential Palo Alto Police Report filed in 2010. Defendant’s psychiatric records were 14 irrelevant to Plaintiff's Opposition to Defendant’s Special Motion to Strike and were not even 15 considered by the court in granting Defendant’s Special Motion to Strike. Defendant had every right 16 to oppose the Motion to Seal and should not be punished for doing so. 17 Furthermore, as stated above, Defendant’s attempt to get information regarding the date 18 Plaintiff filed for his citizenship application was not an attempt to invade the attorney-client privilege 19 but obtain relevant and important information to counter a claim that the PCC was enforceable. 20 Defendant was required to speak to Plaintiffs immigration attorney, because Plaintiff refused to 21 provide information, he knew would expose his lawsuit for the harassing, abusive, baseless con that it 22 was. Therefore, Defendant respectfully requests the court deny Plaintiffs request for an “equitable” 23 adjustment to offset fees Plaintiff incurred in filing his Motion to Seal and ex parte motion to quash 24 Defendant’s subpoena to Plaintiffs immigration attorney. 25 The Court cannot equitably adjust Defendant’s fees without a noticed motion by Plaintiff. 26 And, as the party which lost, Defendant cannot (1) relitigate matters upon which he lost and (2) 27 cannot ask for fees without a noticed motion—which he cannot bring because he lost the case. 28 -T- RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR, ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 D. Plaintiffs Request For The Court To Consider An Offset In The Amount Of Liquidated Damages For Breaching The PCC Is Outrageous. It is astonishing that despite knowing the PCC between the parties expired in December 2015, Plaintiff is still requesting without merit the court to consider the liquidated damages provision in the agreement to offset the amount of attorney’s fees owed to Defendant. Made worse for Plaintiff is that he lost on all issues and yet demands this court grant him fees for losing. The abuse continues. Plaintiff fails to cite any legal authority for his novel position, and further thumbs his nose at the court’s order and the basis for granting Defendant’s Special Motion to Strike/Anti-SLAPP motion. The Motion was not granted by the Court considering the allegations made in Defendant’s Domestic Violence Restraining Order and claiming she was a victim of domestic violence, but 10 because Defendant did not go on the Megyn Kelly show and speak adversely about Plaintiff or speak 11 about her personal experience as a survivor of domestic violence, as alleged in his Complaint. More 12 broadly, the Court found Plaintiffs “blanket assertion that the alleged breaching of a contract [the 13 PCC] is not protected under the anti-SLAPP statute is incorrect.” Plaintiff lost and cannot backdoor a 14 motion for reconsideration. As the losing party, Plaintiff is never entitled to fees, offsets and/or costs. 15 E. Plaintiff's Inflammatory Declaration Alone Supports An Award Of All Fees And 16 Costs Along With A Lodestar Multiplier Of 2.5 Or Higher. 17 Plaintiff's declaration in support of his Opposition is filled with irrelevant and incendiary 18 allegations, hearsay and falsehoods. It demonstrates what the Defendant has been worried about all 19 along—the Plaintiff is a bully, abusive, and destructive. Again, mental health information is publicly 20 disseminated. Again, he tries in vain to discredit Defendant while pretending he did not lose the 21 Special Motion. He now cries wolf and refuses to even accept responsibility for this lawsuit stating: 22 “I do not accept the blame for bringing this court case.” His counsel should be ashamed to 23 countenance such conduct and then has the gall to blame the Defendant for vigorously defending 24 herself (and winning), falsely claiming Defendant’s counsel overbilled the file, and asserting counsel 25 is trying to punish the Plaintiff. 26 The fees, even with the lodestar multiplier are less than Plaintiff's counsel is charging. So, if 27 defense counsel is trying to punish the Plaintiff it can only mean she is too. The multiplier is allowed 28 -8- RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR, ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 on public policy grounds and is not meant to punish the losing party, but to discourage plaintiffs from trying to bully a defendant into forfeiting her Constitutional rights. As with the entire Opposition, there are no statutes or case law that Plaintiff cites to support his position and the lodestar multiplier has been routinely allowed in California. It is fair and completely within the public policy of discouraging such frivolous lawsuits for a trial court to exercise its discretion to confirm a lodestar multiplier. And, surely no one can assert that a multiplier which allows fees at a rate LESS THAN his own counsel is charging is punitive or unfair. Given the conduct and outrageous allegations and improper use of mental health records, a multiplier of 2.5 or more is completely justified. IV. CONCLUSION 10 Plaintiff's declaration and additional irrelevant information submitted with his declaration as 11 evidence in support of his Opposition have nothing to do with Defendant’s Motion for Attorney’s 12 fees, and evidence that a Lodestar multiplier of 2.5 is warranted, reasonable, and appropriate for this 13 matter. He lost but cannot accept that immutable fact. 14 Plaintiff's Opposition is not based in reason, the facts of this case, or any legal authority. IS Plaintiff also believes any potential amount should be reduced but Plaintiff failed to bring a motion 16 for his attorney fees. The Court is therefore without statutory basis to award an offset. Thus, 17 Plaintiffs Opposition is without merit and should be rejected by the court. 18 Therefore, Defendant respectfully requests the court grant her request for updated attorney 19 fees and costs in the total amount of $141,966.25 comprised of $138,856.25 in attorney’s fees 20 ($54,452.50 to date X 2.5 Lodestar enhancement) + $2,625.00 in attorneys for finalizing, preparing 21 and arguing this motion and $3,110.00 total in costs. 22 Dated: August 14, 2019 SIMS, LAWRENCE & ARRUTI Cy 23 24 By rs 25 CYN’ IA G. LAWRENCE TAHMINA YASSINE 26 Attorneys for Defendant RUTHVEN (aka “RUTH”) PATRICK 27 28 -9- RUTHVEN PATRICK’S REPLY TO PLAINTIFF’S OPPSITION TO DEFENDANT’S MOTION FOR ATTORNEY’S FREES PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16