The short answer is, yes. The attorney’s fee provision under subdivision (c) of the anti-SLAPP statute is applicable in federal court in diversity cases. The reason it applies is because it is deemed “substantive” for purposes of the Erie doctrine, and thus it does not directly collide with procedural rules, e.g., FRCP rules 56, 12, or 8. Newsham v. Lockheed MIssiles Space Co. Inc (9th Cir. 1999) 190 F.ed at 972-973 ..read more

It is not uncommon for litigants to challenge costs that were incurred by the other side in connection with a successful anti-SLAPP motion. Code of Civil Procedure section 1032, subdivision (b), provides that except as otherwise provided by statute, “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Such costs generally “shall be as determined by the court in its discretion.” CCP 1033(a). While the Code of Civil Procedure sets forth which categories of costs are allowed and which are not, courts have discretion to award certain costs. Id. at 103 ..read more

Plaintiffs often incorrectly point to their attorney’s fees and costs to set the standard for what is reasonable. Plaintiffs will urge a court to use their attorney’s claimed expenditure of time as the yardstick for an award of fees. However, courts “should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). This makes sense for a couple of reasons. First, defendants often have to do more work in the average anti-SLAPP case, since they are the moving party. Whereas a pl ..read more

In most cases a court is not permitted to consider settlement offers under Evidence Code section 1152, which makes “inadmissible” evidence that is offered to “prove [the offeror’s] liability for the loss.” The main purpose of this rule is to encourage settlement. However, that section does not prohibit a judge from considering a plaintiff’s rejection of a settlement offer when the court is considering a fee motion. In Meister v. Regents of the Univ. of Cal. (1998) 67 Cal.App.4th 445-456, the court found that it was trial court’s discretion to consider a party’s rejection of a settlement propos ..read more

There is no cognizable claim for intentional infliction of physical distress under California law. See Free v. Peikar, No. 1:17-cv-00159 MSJ (PC), 2017 U.S. Dist. LEXIS 61985, at *17 (E.D. Cal. Apr. 24, 2017) (“Plaintiff has also asserted a claim for intentional infliction of physical distress. There is no such claim, however, under California law.”). Further, we are unaware of any such claim for relief under federal law ..read more

Confusion abounds among litigants as to whether and when the anti-SLAPP may apply in a given case. A common mistake is to assume that the statute does not apply in bankruptcy court. However, there is long-standing authority in the Ninth Circuit for the application of California’s anti-SLAPP law in federal court so long as the claims are pendant state law claims and do not involve federal claims for relief. See, United States ex rel Newsham v. Lockheed Missiles & Space (9th Cir. 1999) 190 F.3d 963; Planned Parenthood Federation of America, Inc. v. Center for Medical Progress (9th Cir. 2018 ..read more

After prevailing on an anti-SLAPP motion, counsel will file often file a separate motion for attorney’s fees and costs. In order to obtain a recovery, counsel has the burden to substantiate the fees and costs. While invoices are not required, courts often prefer them (or other detailed time entries). One issue that comes up often is whether to redact attorney-client confidences in certain time entries. If too many entries are redacted, opposing counsel will complain, arguing that they cannot challenge the entries without knowing what they are. But on the other hand, you have a duty to protect ..read more

Under California Supreme Court Precedent, a trial court may adjust the lodestar figure based on factors such as the novelty and difficulty of the questions involved, and the quality of representation. Ketchum, 24 Cal.4th at 1132; see also Edgerton v. State Personnel Board (2000) 83 Cal.Ap.4th 1350, 1363. In Edgerton, the court approved a 1.5x multiplier in light of the difficulty of issues, quality of representation, and the public nature of the lawsuit. In my view, the public interest has been vindicated in every anti-SLAPP victory because of the First Amendment rights at stake. First Amendme ..read more

In Ketchum, our State Supreme Court reiterated that fee awards should be fully compensatory.  Ketchum, 24 Cal.4th at 1133.  The unadorned lodestar is computed by multiplying the number of hours reasonably spent by the prevailing hourly rate for private “attorneys in the community conducting ‘noncontingent’ litigation of the same type.”  Id.  “We remarked that the reasonable value of attorney services is variously defined as the ‘hourly amount to which attorneys of like skill in the area would typically be entitled.”’  Id.  In Ketchum, the trial court, in 1998, awa ..read more

Losing plaintiffs often argue after an anti-SLAPP shellacking that a defendant is limited to what an insurance company paid defense counsel. Typically, those rates are “insurance rates,” and are thus way below market rates. But this is wrong. Courts have consistently declined to cap the reasonable hourly rate to what was paid by an insurer. In Pasternack v. McCullough (2021) 65 Cal.App.5th at 1059, for example, plaintiff argued that there was no need for the trial court to set a reasonable hourly fee award. The reason was give was that the fee award should have been limited to the substantiall ..read more