Can't Skip the Lodestar

Frym v. 601 Main Street LLC, No. A163086 (D1d5 Aug. 24, 2022)

Tenant brings similar claims against each of Landlord Entity, Landlord Entity’s Owner, and Landlord Entity’s Attorney. Each is separately represented. All three defendants file anti-SLAPP motions. Court grants Owner’s motion, and awards her fees. While briefing is pending, however, Tenant dismisses LE and Attorney. Court correctly recognizes that the dismissals don’t moot LE and Attorney’s motions—indeed it effectively concedes their merits. But it declines to award them fees, finding that the three motions had so much overlap that they could have been brought as one joint motion, so there’s no marginal value-add to the two extra motions.

That was error. A prevailing anti-SLAPP movant is statutorily entitled to fees, determined by the lodestar (reasonable rate times reasonable time) method. The court could have done that and—to the extent time was wasted or duplicated—declined to include it in the lodestar. But it could not just make a gestalt judgment that the whole shebang was duplicative. Moreover, because they had separate counsel, it could not all have been duplicative. For instance, Attorney’s lawyer prepped for and showed up at the hearing. And it just wasn’t fair to give fees only to Owner’s lawyer, just because her motion was heard first. So the case gets remanded to the trial court to do a legit lodestar. And moreover, Owner and LE get fees on appeal.

Reversed.