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Case 3:20-cv-01084-WQH-DEB Document 28 Filed 07/16/20 PageID.

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1 JONATHAN PATCHEN (SBN 237346)


2 Jonathan.Patchen@bakerbotts.com
BAKER BOTTS LLP
3 101 California Street, Suite 3600
4 San Francisco, CA 94111
Telephone:415.291.6200
5 Facsimile: 415.291.6300
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Attorneys for Defendants
7 BAKER BOTTS L.L.P. and JONATHAN A. SHAPIRO
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9 UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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HARVEY J. KESNER, Case No. 3:20-cv-01084-WQH-DEB
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REPLY MEMORANDUM OF
14 Plaintiff,
POINTS AND AUTHORITIES
15 v.
Date: July 27, 2020
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BAKER BOTTS L.L.P. and
17 NO ORAL ARGUMENT UNLESS
JONATHAN A. SHAPIRO,
REQUESTED BY THE COURT
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Defendants.
19 Filed: January 22, 2020
Transferred: June 8, 2020
20 Trial Date: None
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REPLY MEMORANDUM OF POINTS AND CASE NOS.: 3:20-CV-01084-WQH-DEB
AUTHORITIES
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1 REPLY MEMORANDUM
2 I. Factual Background and Introduction
3 Defendants Baker Botts, LLP and Jonathan A. Shapiro (“Defendants”)
4 respectfully request that the Court grant their Motion for Fees pursuant to California
5 Code of Civil Procedure section 425.16. (Dkt. 25).
6 Defendants filed a Special Motion to Strike, a Motion to Dismiss, and a Motion
7 for Fees on June 24, 2020 (the “Motion”). Id. The hearing was set for July 27, 2020.
8 Id. The Motion was served on Plaintiff’s counsel. (Dkt. 26). Pursuant to Local Rule
9 7.1(e)(2), Plaintiff’s opposition to the Motion was due on or before Monday, July 13,
10 2020. Plaintiff filed no opposition. Rather, two days later after missing the deadline to
11 oppose, Plaintiff filed a notice of voluntarily dismissal, without prejudice, “all claims
12 stated in his complaint.” (Dkt. 27).
13 Under well-established law, Plaintiff’s filing of a notice of dismissal does not
14 moot the mandatory award of fees under California anti-SLAPP law called for by
15 Defendants’ motion to strike and dismiss the motion, which he never opposed. To the
16 contrary, as explained below, Kesner’s voluntarily dismissal compels the award of fees.
17 The Court should grant the Motion for Fees.
18 II. Voluntary Dismissal Does Not Moot Defendants’ Motion for Attorney’s Fees
19 It is well-established that voluntary dismissal of a suit or claim does not moot the
20 request for attorney’s fees under anti-SLAPP. See, e.g., Gottesman v. Santana, 263 F.
21 Supp. 3d 1034, 1039-40 (S.D. Cal. 2017) (denying the underlying motion to strike as
22 moot, but exercising “its limited jurisdiction over the motion to determine whether
23 [defendants] are ‘prevailing defendants’ under the anti-SLAPP statute for purposes of
24 attorney’s fees and costs.”). “Of course, the mere fact that Mireskandari has now
25 dismissed the action does not affect ANL’s right to recover appropriate [anti-SLAPP]
26 fees.” Mireskandari v. Associated Newspapers, Ltd., 665 F. App'x 570, 571–72 & n.8
27 (9th Cir. 2016); see also Fleming v. Coverstone, No. 08CV355 WQH (NLS), 2009 WL
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1 764940, at *6 (S.D. Cal. Mar. 18, 2009) (holding a party “may not avoid liability for
2 attorney fees under the anti-SLAPP statute by dismissing his claims subject to a pending
3 anti-SLAPP special motion to strike”).
4 Simply put, Kesner cannot escape the mandatory attorney’s fees and costs due to
5 Defendants simply by voluntarily dismissing his unfounded lawsuit after an anti-
6 SLAPP motion has been filed. Coltrain v. Shewalter, 66 Cal. App. 4th 94, 107 (1998).
7 “Otherwise, [this] SLAPP plaintiff[] could achieve most of their objective with little
8 risk – by filing a SLAPP suit, forcing the defendant[s] to incur the effort and expense
9 of preparing a special motion to strike, then dismissing the action with prejudice.” Id.
10 at 106.
11 III. Defendants Are Prevailing Parties and Are Entitled to Attorney’s Fees
12 Kesner’s voluntary dismissal—while Defendants’ anti-SLAPP motion is
13 pending—creates the presumption that Defendants are the prevailing party. Gottesman
14 v. Santana, 263 F. Supp. 3d 1034, 1043 (S.D. Cal. 2017) (“[F]ederal courts applying
15 the anti-SLAPP statute, have generally followed the Coltrain [66 Cal. App. 4th at 107]
16 approach, which states that a plaintiff’s voluntary dismissal raises a presumption that
17 the defendant is the prevailing party that the plaintiff can rebut by explaining its reason
18 for dismissal.”) (internal citations omitted).
19 Plaintiff has not tried to rebut that presumption, which would require him to prove
20 that “he dismissed [] because [he] has substantially achieved his goals through
21 settlement, because Defendant was insolvent, or for other reasons unrelated to the
22 probability of success on the merits.” Fleming, 2009 WL 764940 at *6. The record
23 before the Court forecloses any such conclusion.
24  Plaintiff sought $35,000,000 in damages, prejudgment interest, attorney’s
25 fees, and costs. (Dkt. 3 at 1). He achieved nothing so far except being
26 sanctioned $1,000 in attorney’s fees for filing “frivolous” papers, by the
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1 Southern District of New York (which sanction remains unpaid). (Dkt. 18;
2 27).
3  There is no settlement.1 Plaintiff’s dismissal is without prejudice; he
4 certainly could attempt to file them again, subject to Rule 41(d). See, e.g.,
5 Primacy Eng'g, Inc. v. ITE, Inc., No. 318CV01781GPCMDD, 2019 WL
6 2059668, at *7–8 (S.D. Cal. May 9, 2019) (“An intent to refile the litigation
7 in other jurisdictions belies a claim that [the voluntarily dismissing
8 plaintiff] was able to substantially achieve its litigation objectives in this
9 suit”).
10  There is obviously no claim that Defendants are insolvent.
11 But even if Plaintiff were to belatedly generate some excuse (after again missing
12 another court deadline), it would be futile, and thus insufficient to rebut the Coltrain
13 presumption. Defendants were virtually certain to have won the Motion, which no
14 doubt is why Kesner did not even try to oppose it.
15 First, as a matter of law, there was no probability that Plaintiff could have
16 survived the Motion on the merits. The conduct challenged in the complaint was a
17 settlement demand letter attached a draft complaint, which draft complaint was then
18 shortly thereafter filed. That conduct is at the core of the protected litigation privilege;
19 Plaintiff could not have come close to demonstrating otherwise. (Dkt. 25 at 6-10; Dkt.
20 18 at n.1).
21 Second, Plaintiff failed to timely oppose the underlying Motion, which
22 independently provided grounds for Defendants to prevail. See Primacy Eng'g, Inc. v.
23 ITE, Inc., No. 318CV01781GPCMDD, 2019 WL 2059668, at *2 (S.D. Cal. May 9,
24 2019); Local Rule 7.1(f)(3)(c); Judge Hayes Civil Pretrial & Trial Procedures at 2.
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Plaintiff may claim that his dismissal was motivated by actual or potential settlement
26 of the related MabVax litigation. However, Defendants are not parties or counsel in that
litigation and undersigned counsel here has not participated in any such settlement
27 discussions. Whatever the resolution of that other litigation, it has no bearing that
Plaintiff filed a patently meritless SLAPP suit against Defendants and dismissed rather
28 than defend his actions.
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1 In short, faced with a certain defeat and mandatory fee award, after having
2 already been sanctioned once in this case, Kesner’s abandonment of his case leaves no
3 questions that Defendants have “prevailed.” See Orian v. Fed’n Int'l des Droits de
4 L’Homme, No. CV116904PSGFFMX, 2011 WL 13220921 *2 (C.D. Cal. Dec. 13,
5 2011) (“Because Plaintiffs filed no opposition to the motions to strike, Plaintiffs [] failed
6 to meet their burden to demonstrate a probability of success on the merits of their
7 claims. Therefore, Defendants would have prevailed on their anti-SLAPP motion.”);
8 id. at *3 (“[T]he Court has already found Defendants would have prevailed on the merits
9 of their anti-SLAPP motions. The Court, therefore, DEEMS Defendants to be the
10 prevailing parties on the anti-SLAPP motions.”); Plevin v. City & Cty. of San Francisco,
11 No. 11-CV-2359 MEJ, 2013 WL 2153660, at *7 (N.D. Cal. May 16, 2013) (“Whatever
12 Plaintiffs’ strategy or belief as to the merits of the arguments Defendants raised in their
13 anti-SLAPP motion, Plaintiffs chose to dismiss their state law claims in response. The
14 Court therefore agrees with Defendants that they are the prevailing parties and are
15 entitled to recover their fees associated with the motion.”).
16 Defendants have been put to the burden, expense and aggravation of a meritless
17 lawsuit that Kesner filed for an improper purpose but, after being called upon to justify
18 his claims, he simply abandoned. That, on the law and equities, entitles Defendants to
19 an award of their fees and costs.
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1 CONCLUSION
2 For all of these reasons, as well as those set forth in Defendants’ unopposed
3 Motion to Strike, Dismiss and for Attorney’s Fees, Defendants respectfully request that
4 the Court enter an order:
5 1. Finding Defendants’ to be prevailing party entitled to reasonable
6 costs and attorney’s fees;
7 2. Ordering Plaintiff to pay the $1,000 in sanctions as ordered by the
8 Federal District Court for the Southern District of New York;
9 3. Setting a briefing schedule for Defendants to prove up its attorney’s
10 fees and costs;
11 4. And granting Defendants such other and further relief that the Court
12 deems appropriate.
13
14 Dated: July 16, 2020 Respectfully submitted,
15
16 /s/ Jonathan Patchen
JONATHAN PATCHEN
17 (SBN 237346)
18 BAKER BOTTS LLP
101 California Street, Suite 3600
19 San Francisco, CA 94111
20 Telephone:415.291.6200
Facsimile: 415.291.6300
21 Jonathan.Patchen@bakerbotts.com
22 Attorneys for Defendants
BAKER BOTTS LLP and
23 JONATHAN A. SHAPIRO
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