STAT? LZ SH FILED Superior Court of California : County of Los Angeles MAY 1.6°2018 RULING ON MOTION FOR ATTORNEYS’ FEES _ Sherif. Cartei, tavcuuve Urficer/Clerk ‘ @/ CASE NAME: Leykis v. Garner, et al. BY: R, INOSTROZA, DEPUTY CASE NO.: BC643046 COMPLAINT FILED: 12/8/16 HEARING: Monday 4/30/18 DEPARTMENT: Dept. 19 SUBJECT: MOTION FOR ATTORNEYS’ FEES PURSUANT TO CCP § 425.26(C)(1) MOVING PARTY: Defendant, Trevor Garner RESP. PARTY: __ Plaintiff, Tom Leykis RULING After consideration of the briefing filed and oral argument at the hearing, Defendant Trevor Garner's Motion for Attorneys’ Fees pursuant to CCP § 425.16 is GRANTED in part! ‘The Court reduces the amount of attorneys’ fees requested and awards $3,775.00, as explained more fully below. Order signed this date. Counsel for moving party to give notice, BACKGROUND This is an action for copyright infringement and misappropriation of Plaintiff's right of publicity arises from Defendants’ Trevor Gamer and Sarah Garner and their business’ (individually and dba Trevor's Happy Hour) (collectively “Gamers”) alleged copyright infringement, reproduction distribution, and public display of Plaintiff’ Tom Leykis’s (“Leykis”) allegedly copyrighted works. Leykis is a radio personality-broadcaster who operates a commercial business known as “The Tom Leykis” show. Plaintiff contends that beginning in 2015, Defendants reproduced, distributed, and publicly displayed photographs and audiovisual works owned by and copyrighted by Plaintiff, without Plaintiff's consent, through online websites and internet blogs for Defendants’ personal financial gain. Plaintiff specifically contends that Defendants are copying and relaying PlaintifP's entire shows and extended portions of Plaintiff's shows on Defendants’ broadcasts. Plaintiff further contends that Defendants’ illegally recorded and broadcast phone calls they made to Plaintiff's unpublished private cell phone, without Plaintiff" knowledge or consent, in a continued course and action of harassment. Plaintiff filed his FAC on January 27, 2017. In the FAC, Plaintiff alleged fourteen (14) causes of action: ‘The Court considers Plaintiff's “Response” filed on April 6, 2018, in light of Defendant's drastic position change and belated arguments in his Reply that are claimed to be due to “clerical oversight.” (Reply at p. 3-4).VUOer eT G8 RULING ON MOTION FOR ATTORNEYS’ FEES Copyright infringement; Contributory copyright infringement; Vicarious copyright infringement; n — Right of publi Invasion of privacy; a Intentional infliction of emotional distress; Invasion of privacy; Negligent infliction of emotional distress; ion in violation of Business & Professions Code, § 17200 et seq.; 10, Intentional interference with business advantage; 11, Negligent interference with business advantage; 12. Business & Professions Code §§ 17200 and 17500 et seq.; 13, Defamation ~ Libel per se; and 14, Defamation — Commercial disparagement. PeNaAvEeN On March 10, 2017, Defendants Trevor Gamer and Sarah Gamer filed a special motion to strike under CCP § 425.16, which sought to strike every cause of action asserted in the FAC. On July 27, 2017, the court granted Defendants Trevor Gamer and Sarah Gamer’s special motion to strike as to the thirteenth cause of action for defamation only. The motion was otherwise denied. ‘This matter was originally heard on March 5, 2018. However, it was continued to April 30, 2018, so that Plaintiff could filed an opposition to Plaintiff's reply, which Plaintiff did on April 6, 2018 Defendant Trevor Garner brings this motion for attomeys’ fees on the grounds that Defendant is entitled to attorneys’ fees for the special motion to strike, and for the instant attorney's fees motion. Defendant seeks $21,620.50 in fees, plus a multiplier of 1.25, for a total of $27,025.63 REASO! iG I. Entitlement to Attorneys’ Fees Pursuant to CCP § 425.16(c)(1), “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” “A party who partially prevails onan anti-SLAPP motion must generally be considered a prevailing party unless the results of. the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion, The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of a trial court.” (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1446.) In opposition, PI contends that Defendant was not the prevailing party becausegtarr7t/ 50 RULING ON MOTION FOR ATTORNEYS’ FEES Defendant prevailed on one of thirteen causes of action. (Opp. At 4-5.) However, the Court previously rejected this contention in its July 27, 2017 ruling on the anti-SLAPP motion. (7/27/2017 Order at 9 (“The court does not see that Defendants’ results are so ‘minimal and insignificant’ that Defendants did not achieve any ‘practical benefit’ from bringing the motion.”).) Therefore, Defendant may be entitled to a portion of his attorneys’ fees. However, Defendant cannot recover the entirety of his attorneys’ fees in connection with the anti-SLAPP motion, which was only partially successful. “In determining the lodestar amount, a prevailing party generally may not recover for work on causes of action on which the party was unsuccessful.” (Mann v. Quality of Old Time Service, Inc. (2006) 139 Cal.Appth 328, 342.) “[A] defendant should not be entitled to obtain as a matter of right his or her entire attorney fees incurred on successful and unsuccessful claims merely because the attorney work on those claims was overlapping. Instead, the court should first determine the lodestar amount for the hours expended on the successful claims, and, if the work on the suecessful and unsuccessful causes of action was overlapping, the court should then consider the defendant's relative success on the motion in achieving his or her objective, and reduce the amount if appropriate.” (Id. at 344-45; See also CommuterXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020 (“partial success reduces but does not eliminate the entitlement to attomey fees.”).) Thus, Defendant is entitled to attorneys’ fees for his partially successful anti-SLAPP motion. II, Reasonableness of Attorneys’ Fees Sought Defendant Trevor Garner originally requested compensation in the amount of $77,875.00. However, in his Reply brief, Defendant alleged that this amount was incorrect due to a clerical oversight. (Reply at 3-4.) Defendant now requests $27,025.63 calculated as $21,620.50 in attorney's fees with a 1.25 lodestar multiplier. Reasonable attorneys’ fees are determined by examining the time spent and the reasonable hourly rate charged. (Serrano v. Priest (1977) 20 Cal.34 25, 48-49.) Other considerations that may result in an upward or downward shift of the fees include the novelty and difficulty of the case, the legal skill needed to render services to the prevailing party, the customary fee for similar work, whether the case was taken under contingency, the attorneys? experience and reputation, and other circumstances. (Id.) “It is well established that the determination of what constitutes reasonable attomey fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion. [Citation.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. .. The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, theBOT Li so RULING ON MOTION FOR ATTORNEYS’ FEES success or failure, and other circumstances in the case. [Citations.]” (Melnyk v. Robledo (1976) 64 Cal. App:3d 618, 623-24.) In determining a reasonable attorney fee award, a court decides the “reasonable hours spent” on the case and multiplies the number by “the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type.” (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1133.) The result is called the “lodestar” figure. (/d.) The court may then adjust the lodestar figure in light of several relevant factors that weigh in favor of augmentation or diminution. (Weeks v. Baker & McKenzie (1998) 63 Cal. App. 4th 1128, 1171.) + Acourt determining the number of hours reasonably expended on a case “must carefully review attorney documentation of hours expended.” (Keichum, supra, 24 Cal.4th at 1132.) In doing so, the court must exclude hours that “were not reasonably expended in pursuit of successful claims,” (Harman v. City & County of San Francisco (2007) 158 Cal. App.4th 407, 417), “attorney time spent on services which produce no tangible benefit for the client,” (Meister v. Regents of Univ. of Cal, (1998) 67 Cal.App.4th 637, 652), or hours that were otherwise “duplicative or excessive.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal. App.4th 140, 161.) In this case, the Court finds Defendant’s reduced request to be excessive, Based upon the invoices submitted, $21,620.50 is unreasonable. Various hours was expended on unnecessary, duplicative, or administrative tasks. In addition, block billing prevents the Court from understanding exactly specific tasks were being completed by each attorney. While Defendant is, entitled to recover attorneys” fees and costs incurred in moving to strike the claims on which they prevailed, Defendant is not entitled to recover fees and costs incurred in moving to strike the remaining claims. Accordingly, Defendant is not entitled to the entirety of the attorneys’ fees requested, The Court imposes the following reductions: 1. Attorney Dariush G. Aldi’s 12.7 hours are reduced to 5 hours at an hourly rate of: $500 for a total $2,500 in attomey’s fees. The Court deducts partial time billed for analyzing the complaint, communications with client for “case strategy”, and time spent on the Anti-Slapp motion. 2. Attorney Hanwei Cheng’s 2.6 hours are not granted in light of duplication of tasks performed by Mr. Aldi and Mr. Menos 3. Attomey Anthony Tyler Menos’s 24.1 hours ate reduced to 3 hours at an hourly rate of $275 for a total of $825 for legal research and preparation of the Anti-Slapp motion, Reductions are made in light of duplication by Mr. Aldi and Mr. Cheng, including evaluation of the pleadings. 4, Attorney Jeremy L. Ross’s 4.2 hours are reduced to 1.5 hour at an hourly rate of $300 for a total of $450 in attorney's fees.BIT TLI SO RULING ON MOTION FOR ATTORNEYS’ FEES 5. Paralegals Ashely Stewart, Nicole Hachem-Sawaya, and Lorena Rodriguez’s time not awarded as the Court finds the time billed to be duplicative of time already billed by defense counsel and involve secretarial tasks, such as preparing proofs of service, creating table of contents, scheduling a hearing date and mailings.” 6. Additional fees in the amount of $2,090 (7.6 hours by Mr. Mellos and Ross) as part of the Reply are not awarded, Defendant completely changed course in his reply after receiving the Plaintiff's opposition. Additional fees are not be allowed because of counsels’ needing to correct the purported “clerical mistake” regarding the amount of fees requested in the opening brief, The Court does not find that fair or reasonable under the circumstances, especially in light of the large disparity in amounts. Accordingly, the lodestar amount awarded is $3,775.00. In addition, the Court finds that Defendant's request for a lodestar multiplier is unwarranted or justified in this matter. The lodestar amount of attorney’s fees “may be adjusted by the court based on factors including . .. (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award. (Citation.]” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1399.) The anti-SLAPP motion in this case did not involve novel or difficult questions and the skill in presenting issues was not exceptional. Additionally, Defendant achieved minimal success on the anti-SLAPP motion, as Defendant's motion was successful in striking one of fourteen causes of action. Thus, an upward adjustment is not deserved.> In conclusion, based on the foregoing, Defendant Trevor Garner’s motion for attorney's fees pursuant to CCP § 452(c)(1) is granted in the reduced amount of $3,775.00. Since the anti- SLAPP motion was only partially suecessful as to one claim, the Court finds the award reasonable. No costs are awarded, as itis unclear from the briefing what “non-taxable” costs are wt wt ae ? The Court also finds the hourly rate for the paralegals excessive. > Once the Court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative multiplier to take into account a variety of factors, including the quality of representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented. (Laffitte v. Robert Half Intern, Inc. (2016) | Cal.Sth 480, 489.) —5-BOLT GB RULING ON MOTION FOR ATTORNEYS’ FEES being requested; no total or explanation is set forth in Defendant’s opening or reply brief, or the supporting declarations. IT IS SO ORDERED. Date: 5/16/2018 Jel Phd fon. Stephanie Bowick