Garrison v. Ringgold

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 TOMMY GARRISON, an individual, Case No.: 19cv244-GPC(RBB) and CHRISTINE GARRISON, an [12] individual , ORDER GRANTING IN PART 13 PLAINTIFFS/COUNTERDEFENDANTS’ Plaintiffs, MOTION FOR ATTORNEY’S FEES [14] v. 15 [Dkt. No. 33.] REGINALD BUDDY RINGGOLD, III 16 aka Rasool Abdul Rahim El, an individual, ROSEGOLD [17] INVESTMENTS, LLP, a Delaware 18 Partnership, and MASTER INVESTMENT GROUP, INC., a [19] California Corporation, [20] Defendants. [22] Before the Court is Plaintiffs/Counterdefendants’ motion for attorney’s fees [23] pursuant to the anti-SLAPP statute under California Code of Civil Procedure section [24] 425.16(c). (Dkt. No. 33.) Defendant/Counterclaimant Reginald Buddy Ringgold, III [25] filed an opposition. (Dkt. No. 38.) Plaintiffs/Counterdefendants replied. (Dkt. No. 39.) [26] Based on the reasoning below, the Court GRANTS in PART Plaintiffs’ motion for [27] attorney’s fees. [28] 1 Background 2 Plaintiff Tommy Garrison, who is over 65 years old, and his wife, Plaintiff 3 Christine Garrison (collectively “Plaintiffs” or “Garrisons”) filed a complaint for 4 securities violations and financial elder abuse against Defendant Reginald Buddy 5 Ringgold, III aka Rasool Abdul Rahim El, (“Defendant” or “Ringgold”), Rosegold 6 Investments LLP, and Master Investment Group, Inc.1 (Dkt. No. 1, Compl. ¶¶ 16, 21, 7 22.) On May 13, 2019, the Court granted in part and denied in part Defendant 8 Ringgold’s motion to dismiss with leave to amend. (Dkt. No. 16.) On May 28, 2019, 9 Plaintiffs filed an amended complaint alleging the same three causes of action. (Dkt. No. 10 17.) Defendant Ringgold, proceeding pro se, filed an answer and a counterclaim. (Dkt. 11 No. 18.) The counterclaim alleged malicious prosecution and abuse of process, 12 defamation, emotional distress, and sought punitive damages. (Dkt. No. 18 at 18-20.) 13 On July 9, 2019, Plaintiffs/Counterdefendants filed a motion to strike the counterclaims 14 under California’s anti-Strategic Lawsuit Against Public Participation (“anti-SLAPP 15 statute”) pursuant to California Code of Civil Procedure section 425.16(e)(4), or in the 16 alternative, motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 17 20.) Defendant/Counterclaimant did not file an opposition. On August 26, 2019, the 18 Court granted the Garrisons’ motion to strike and dismissed the counterclaims as 19 unopposed. (Dkt. No. 20.) In that order, the Court denied without prejudice Plaintiffs’ 20 request for attorney’s fees as they did not demonstrate that they were “prevailing parties” 21 as required under the anti-SLAPP statute. On September 13, 2019, Plaintiffs filed a 22 motion for attorney’s fee under the anti-SLAPP statute seeking fees in the amount of 23 $8,150.00. (Dkt. No. 33.) On this motion, Ringgold filed an opposition. (Dkt. No. 38.) 24 The Garrisons also filed a reply. (Dkt. No. 39.) 25 / / / [27] 1 Default judgment was entered against Defendants Rosegold Investments LLP and Master Investment [28] 1 Discussion 2 A. Prevailing Parties under anti-SLAPP Statute 3 The anti-SLAPP statute provides that “a prevailing defendant on a special motion 4 to strike shall be entitled to recover his or her attorney's fees and costs.” Cal. Civ. Proc. 5 Code § 425.16(c). Under the anti-SLAPP statute, an award of attorney’s fees to a 6 prevailing defendant is mandatory. Christian Research Inst. v. Alnor, 165 Cal. App. 4th 7 1315, 1321 (2008). The anti-SLAPP statute is “intended to compensate a defendant for 8 the expense of responding to a SLAPP suit. To this end, the provision is broadly 9 construed so as to effectuate the legislative purpose of reimbursing the prevailing 10 defendant for expenses incurred in extracting herself from a baseless lawsuit.” Graham11 Sult v. Clainos, 756 F.3d 724, 752 (9th Cir. 2014) (quoting Wanland v. Law Offices of 12 Mastagni, Holstedt & Chiurazzi, 141 Cal. App. 4th 15, 21 (2006)). 13 The Garrisons, relying on Gottesman v. Santana, 263 F. Supp. 3d 1034 , 1043-44 14 (S.D. Cal. 2017), argue they are prevailing parties under the anti-SLAPP statue even if 15 the anti-SLAPP motion was unopposed or the action was voluntarily dismissed after the 16 anti-SLAPP motion was filed. Ringgold responds that due to recent hardships, he was 17 unable to file an opposition to the motion to strike because he was homeless for a couple 18 of months and was unable to access the internet to view the courthouse records. 19 In Gottesman, the district court recognized a split in California courts in 20 “determining whether a defendant is a prevailing defendant under the anti-SLAPP statute 21 when that defendant has been voluntarily dismissed from the action” and followed the 22 pragmatic approach of Coltrain v. Shewalter, 66 Cal. App. 4th 94, 107 (1998), an analysis 23 that most federal courts follow. Gottesman, 263 F. Supp. 3d at 1043 . This Court also 24 recently relied on the reasoning in Gottesman. See Primacy Eng’g, Inc. v. ITE, Inc., Case 25 No. 18cv1781-GPC(MDD), 2019 WL 2059668 , at *3-4 (S.D. Cal. May 9, 2019) and 26 applied it to dismissal due to Plaintiff’s non-opposition to a motion to dismiss. (Case 27 No. 18cv1781-GPC(MDD), Dkt. No. 45 at 4 (S.D. Cal. Jan. 4, 2019) (citing Pfeiffer 28 Venice Properties v. Bernard, 101 Cal. App. 4th 211, 218 (2002) (“[A] defendant who 1 has been sued in violation of his or her free speech rights is entitled to an award of 2 attorney fees . . . even if the matter has been dismissed prior to the hearing on that 3 motion.”); Wilkerson v. Sullivan, 99 Cal. App. 4th 443 , 446 (2002); Plevin v. City and 4 Cnty. of San Francisco, No. C 11-02359 CW, 2011 WL 3240536 , at *4 (N. D. Cal. July 5 29, 2011)). 6 The court of appeal in Coltrain noted that when “the plaintiff voluntarily dismisses 7 an alleged SLAPP suit while a special motion to strike is pending, the trial court has 8 discretion to determine whether the defendant is the prevailing party for purposes of 9 attorney's fees under Code of Civil Procedure section 425.16, subdivision (c).” Coltrain, [10] 66 Cal. App. 4th at 107 . A SLAPP plaintiff’s voluntary dismissal or failure to oppose a 11 motion to dismiss raises a rebuttable presumption that the defendant is the prevailing 12 party. Id. Then a plaintiff “may try to show it actually dismissed because it had 13 substantially achieved its goals through a settlement or other means, because the 14 defendant was insolvent, or for other reasons unrelated to the probability of success on 15 the merits.” Id. In determining whether to exercise their discretion to deem a defendant a 16 prevailing party, courts must consider the “critical issue” of “which party realized its 17 objectives in the litigation.” Id. In Coltrain, the SLAPP plaintiffs dismissed the case 18 after the anti-SLAPP motion was filed because they ran out of money yet they did not 19 produce any evidence so the presumption was not rebutted. Id. The court of appeal held 20 that the trial court correctly concluded that the defendants were the prevailing parties. Id. 21 at 108. 22 Here, because Ringgold did not oppose the motion to strike, a presumption arises 23 that the Garrisons are the prevailing parties. In opposing the attorney’s fee motion, 24 Defendant explains that he is proceeding pro per and suffered recent hardship which 25 caused him to become homeless for a couple of months preventing him from accessing 26 the internet in order to access the courthouse records. (Dkt. No. 28.) Therefore, he 27 claims he was unable to file an opposition to the anti-SLAPP motion before the deadline. [28] 1 Yet, Ringgold has not provided any evidence, such as by declaration, to support his 2 claim that he suffered hardship and was unable to access the court’s docket or file his 3 opposition because he did not have access to the internet. He also does not state when he 4 was homeless. Moreover, even if Ringgold was homeless, he had the option to access the 5 court records by visiting the Clerk’s Office. The Court notes that Ringgold attended an 6 Early Neutral Evaluation conference with the Magistrate Judge on August 16, 2019, prior 7 to the Court’s ruling. (See Dkt. No 24.) On that date, he could have visited the Clerk’s 8 Office to look up his case and could have sought an extension of time to file a late 9 opposition. He does not claim that he never received the anti-SLAPP motion, filed on 10 July 9, 2019, or the Court’s order ruling on the motion filed on August 26, 2019. After 11 he received the Court’s order granting dismissal of the counterclaim, he could also have 12 sought relief from the Court’s order. Ringgold did not object until he filed his opposition 13 to the instant motion on October 10, 2019. (Dkt. No. 38.) Thus, by failing to produce 14 any evidence to support his argument, the Court concludes that Ringgold has failed to 15 rebut the presumption that the Garrisons are the prevailing parties under section 16 425.16(c). See Coltrain, 66 Cal. App. 4th at 107 (presumption not rebutted due to failure 17 to produce any evidence). The Garrisons are prevailing parties under the anti-SLAPP 18 statute and the Court now considers what amount of attorney’s fees are reasonable. 19 B. Amount of Attorney’s Fees 20 The district court has wide discretion in determining the reasonableness of 21 attorney's fees. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). California 22 courts use the lodestar method to compute attorney fees. See Ketchum v. Moses, 24 Cal. 23 4th 1122, 1133-36 (2001); Serrano v. Priest, 20 Cal. 3d 25, 48-49 (1977). The lodestar 24 method is calculated on the “careful compilation of the time spent and reasonably hourly 25 compensation of each attorney.” Ketchum, 24 Cal. 4th at 1131-32 (quoting Serrano, 20 26 Cal. 3d at 48). The lodestar “may be adjusted by the court based on factors including . . . 27 (1) the novelty and difficulty of the questions involved, (2) the skill displayed in 28 presenting them, (3) the extent to which the nature of the litigation precluded other 1 employment by the attorneys, (4) the contingent nature of the fee award.” Ketchum, 24 2 Cal. 4th at 1132. Plaintiff has the burden to establish entitlement to fees and provide 3 supporting evidence. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The Court 4 may reduce an award based on inadequate documentation of hours or rates requested. Id. 5 at 433. A prevailing party is entitled to a reasonable award and the court does not simply 6 award the amount requested but exercises its discretion to determine whether the fees 7 requested are reasonable. Christian Research Inst., 165 Cal. App. 4th at 1321 . 8 1. Lodestar Calculations 9 a. Reasonable Hourly Rate 10 A reasonable hourly rate “is that prevailing in the community for similar work.” 11 Kearney v. Foley and Lardner, 553 F. Supp. 2d 1178, 1185 (S.D. Cal. 2008) (quoting 12 PLCM Group v. Drexler, 22 Cal. 4th 1084, 1095 (2000)). The relevant community is 13 usually the forum in which the district court sits. Scott v. Kelkris Assocs., 2:10–CV– 14 1654 WBS, 2012 WL 1131360 , at *5 (E.D. Cal. Mar. 29, 2012) (finding the Eastern 15 District of California to be the relevant community in motion pursuant to anti-SLAPP 16 statutes). Ordinarily, “[a]ffidavits of the [prevailing party's] attorney[s] and other 17 attorneys regarding prevailing fees in the community, and rate determinations in other 18 cases . . . are satisfactory evidence of the prevailing market rate.” United Steelworkers of 19 Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). 20 Plaintiffs submitted a declaration to support their request for fees for work 21 performed by William Restis and his paralegal as well as the billing record. (Dkt. No. 22 33-2, Restis Decl.; Dkt. No. 39-1, Restis Decl.) Restis states he has over 13 years of 23 experience prosecuting consumer and securities actions and corporate governance 24 matters. (Dkt. No. 33-2, Restis Decl. ¶ 2.; id., Ex. A.) Plaintiffs seeks $650.00 per hour 25 for Attorney William Restis and $150 per hour for his paralegal even though his usual 26 and customary hourly rate is $750 per hour and his paralegal rate is usually $190 per 27 hour. (Dkt. No. 33-2 Restis Decl. ¶¶ 3, 4.) [28] 1 To support the $650 per hour rate, Plaintiffs cite to cases awarding attorney’s fees 2 to plaintiff’s counsel in class action cases but they involve more complex issues. See 3 Iorio v. Allianz Life Ins. Co. of N. America, Inc., Case No. 05cv633-JLS(CAB), 2011 4 WL 13177361 , at *9 (S.D. Cal. Mar. 3, 2011) (billing rates of $410 - $750 per hour for 5 class counsels were reasonable due to the complexity of the litigation and counsels’ 6 experience, reputation and competence and are in line with comparable complex work by 7 comparably qualified counsel); Carr v. Tadin, Inc., 51 F. Supp. 3d 970, 978-79 (S.D. Cal. 8 2014) (assessing class counsel’s hourly rate by surveying fee awards in other class action 9 settlements). 10 Instead, the Court concludes, after a review of cases in non-class action cases, that 11 $550 per hour is the prevailing rate in this district based on counsel’s skill and 12 experience. See Primacy Eng’g, Inc., Case No. 18cv1781-GPC(MDD), Dkt. No. 45 at 10 13 ($550 per hour for partners at a firm was reasonable); Johnson v. Auto Zone, Inc., Case 14 No. 17cv2941-PJH, 2019 WL 2288111 , at *6 (N.D. Cal. May 29, 2019) (reducing hourly 15 rate for experienced San Diego ADA attorneys from $650 per hour to $425 per hour); 16 Lewis v. Cnty. of San Diego, Case No. 13cv2818-H-JMA, 2017 WL 6326972 , at *12 17 (S.D. Cal. Dec. 11, 2017) (reducing hour rate of 17 year experienced attorneys’ request 18 from $650 and $700 per hour to $450 per hour); Brighton Collectibles, Inc. v. Coldwater 19 Creek Inc., 06cv1848–H(POR), 2009 WL 160235 , at *4 (S.D. Cal. Jan. 20, 2009) ($550 20 per hour for lead counsel with 25 years of experience, and $625 for outside, general 21 counsel's work with 35 years of experience were reasonable); Moore v. Bank of America, 22 N.A. (USA), No. 03cv520-IEG, 2008 WL 68851 , at *3 (S.D. Cal. Jan.7, 2008) ($550 per 23 hour was reasonable in Truth in Lending Act cause of action). 24 As to the paralegal rate, Plaintiffs seek $150 per hour yet does not provide any 25 evidence as to the background and experience of the paralegal and has failed to provide 26 support that the $150 per hour is a prevailing market rate for paralegals in this district. 27 Because Plaintiffs have failed to provide any support for the $150 per hour for the 28 paralegal, the Court DENIES Plaintiffs’ request for the paralegal fee. See Zest IP 1 Holdings, LLC v. Implant Direct Mfg., LLC, No. 10–cv–541–GPC (WVG), 2014 WL 2 6851612, at *6 (S.D. Cal. Dec. 3, 2014) (denying paralegal fees because insufficient facts 3 were presented as to the paralegal hourly rate); Brighton Collectibles, Inc. v. RK Texas 4 Leather Mfg., No. 10–cv–419–GPC (WVG), 2014 WL 5438532 , at *5 (S.D. Cal. Oct. 24, 5 2014) (same); J & J Sports Prods., Inc. v. Ortiz, No. 12–cv–05766–LHK, 2014 WL 6 1266267, at *3–4 (N.D. Cal. Mar.24, 2014) (denying attorney's fees, including for 7 “research attorney,” because plaintiff failed to provide evidence of prevailing market 8 rates or attorneys' experience). 9 The Court finds that $550 per hour reasonable for William Restis and DENIES the 10 Garrisons’ request for paralegal fees. 11 b. Hours Reasonably Expended 12 Plaintiffs’ counsel asserts he spent a total of 12.1 hours on the motion and did not 13 include time that was spent on drafting the Rule 12(b)(6) portion of the motion to dismiss 14 and did not include time to draft the reply to the motion to dismiss as well as the reply to 15 the instant motion. (Dkt. No. 33-2, Restis Decl. ¶ 5.) Therefore, they contend 12.1 hours 16 spent by Restis is reasonable. 17 Ringgold generally objects arguing the fee is excessive, ridiculous and outrageous. 18 First, he contends that the records are ambiguous because they do not specify what 19 amount of time was spent on what activity. In the reply, Restis submitted his detailed 20 time records. 21 Next, Ringgold claims that the work is duplicative, irrelevant or inefficient. 22 However, a review of the records demonstrates that the work performed by Restis was 23 not duplicative, irrelevant or inefficient. Moreover, contrary to Defendant’s argument, 24 Plaintiffs are not seeking multipliers above the lodestar amount. The Court finds that the 25 12.1 hours spent on the motion to strike was reasonable in light of the fact that Plaintiffs 26 did not include fees for drafting the reply to the motion to strike as well as the reply to 27 this motion. 28 / / / 1 Conclusion 2 Based on the above, the Court GRANTS in PART Plaintiffs/Counterdefendants’ 3 ||motion for attorney’s fee in the amount of $6,655.00. The hearing set on November 8, 4 shall be vacated. 5 IT IS SO ORDERED. 6 || Dated: November 1, 2019 < 8 United States District Judge