First District, Division 4 Rebuffs Challenge to $18,750 Fee Award.
The next case trumpets a familiar refrain that we have seen from many appellate decisions: a contention asking for denial or reduction of fees in any award needs to be supported by specific argumentation and specific evidence. Otherwise, the contention may well be found nonpersuasive at even an elementary level of consideration.
Appellant Dr. McRae, in McRae v. Richman, Case No. A121284 (1st Dist., Div. 4 Jan. 16, 2009) (unpublished), filed a false light privacy invasion complaint against the Oakland Tribune arising out of an article
that she claimed cast her as a confrontational troublemaker. The Tribune asked her to dismiss the complaint before defendants were forced to file an anti-SLAPP motion (even going so far as to explain the mandatory fee-shifting provision that was triggered if she lost). Dr. McRae apparently did not respond, the Tribune brought its motion, and the Tribune won after she did not file any opposition to the motion. The trial court awarded Tribune $18,750 in fees (out of requested fees of $27,298) and $1,722.96 in costs (matching the costs request). McRae appealed.
The appellate court affirmed.
“Cursory arguments based on generalized dissatisfaction with an attorney fee award that are not accompanied by citation to the record or explanation of which fees are unreasonable, duplicative, etc., will not suffice,” citing Tuchscher Develop. Enterprises, Inc. v. San Diego Unified Port Dist., 106 Cal.App.4th 1219, 1248 (2003). McRae’s generalized gripe that the case was simple and fees were unreasonable did not come close to meeting her burden of proof when challenging a fees award. Beyond that, Tribune did not know in advance that she would not oppose the motion and did give her warning about the fee-shifting component of anti-SLAPP motions. Finally, with respect to the reasonableness of Tribune’s counsel’s hourly rate, counsel reduced its regular hourly rate from $450 to $375 for the motion, with the trial court further reducing more than 30% off the fees request. No abuse of discretion was demonstrated under all the circumstances.
BLOG POINTERS—This case has some nice prophylactic touches that should be adopted by practitioners forced to bring anti-SLAPP motions carrying fee exposure. First, ask your opponent to voluntarily dismiss the complaint and explain the anti-SLAPP mandatory fee-shifting risks. Second, reduce your hourly rate (especially against an individual defendant) so as to make it more difficult for the trial court to find a fee award unpalatable. Third, do not request exorbitant fees when the anti-SLAPP motion is granted based on a lack of opposition by the plaintiff. If you follow these tips, McRae suggests that you will not be subject to severe reductions in your anti-SLAPP fee requests.