Opposition Attys Fees SGT Sarver V Nicolas Chartier

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PLAITIFFS OPPOSITIO TO DEFEDATS MOTIOS FOR
ATTOREY FEES

ERIK L. JACKSON (State Bar No. 166010)
COZEN & OCONNOR
601 S. Figueroa Street, Suite 3700
Los Angeles, California 90017
Telephone: (213) 892-7961
Fax: (866) 484-0947
ejackson@cozen.com

TODD J. WEGLARZ (pro hac vice)
Law Offices of Todd J. Weglarz, PLLC
30903 Northwestern Highway, Suite 250
Farmington Hills, Michigan 48334
Telephone: (248) 539-9081
Fax: (248) 413-2647
tweglarz@weglarzlaw.com
Attorneys for Plaintiff

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

SGT. JEFFREY S. SARVER,

Plaintiff,

v

THE HURT LOCKER, LLC, MARK
BOAL, KATHRYN BIGELOW, GREG
SHAPIRO, NICOLAS CHARTIER,
TONY MARK, DONALL McCUSKER,
SUMMIT ENTERTAINMENT, LLC,
VOLTAGE PICTURES, LLC,
GROSVENOR PARK MEDIA, LP,
FIRST LIGHT PRODUCTIONS, INC.,
KINGSGATE FILMS, INC., and
PLAYBOY ENTERPRISES, INC., Jointly
and Severally,

Defendants.
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Case No.: 2:10-cv-09034-JHN
(JCx)

PLAITIFFS OPPOSITIO
TO DEFEDATS MOTIOS
FOR ATTOREY FEES

Case 2:10-cv-09034-JHN -JC Document 141 Filed 11/21/11 Page 1 of 14 Page ID
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ATTOREY FEES
i

Table of Contents
Page
I. INTRODUCTION ................................................................................................... 1
II. LAW & ARGUMENT ............................................................................................. 1
A. LAW .................................................................................................................. 1
B. ARGUMENT........................................................................................................ 2
1. Defendants Fail to Present Evidence Establishing Their Requested
Hourly Rates Are the Prevailing Hourly Rate in this District .......................... 2
2. Defendants Requested Hours Are Excessive and Unreasonable ...................... 4
3. Reasonable Attorney Fees Ruling on a Recent, anti-SLAPP, High
Profile Case Involving Counsel Herein Should be Followed, And
Illustrate the excessiveness of Defendants' Fee Requests ................................ 6
4. Objections to Defendants' Itemized Billing Records ........................................ 7
5. All Hours Billed Regarding Plaintiff's Ex Parte Motion for
Additional Time to Respond to Defendants' anti-SLAPP Motion ................... 8
6. All Hours Billed Regarding Plaintiff's Supplemental Brief Based
Upon Authorities Presented to the Court During Oral Argument .................... 8
III. CONCLUSION ...................................................................................................... 11

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ATTOREY FEES
ii

TABLE OF AUTHORITIES
Page(s)
CASES
Christian Research Institute v. Alnor,
165 Cal. App. 4th 1315 (2008) ..................................................................................4, 5, 7
Fein v. Kesterson,
2010 Lexis 128489 (C.D. Ca. 2010) ................................................................................4
Jackson v. Yarbray,
179 Cal. App. 4th 75 (2009) ...........................................................................................1, 4
Kearney v. Foley and Lardner,
553 F.Supp.2d 1178 (S.D. Cal. 2008) ......................................................................1, 2, 3
Ketchum v. Moses,
24 Cal. 4th 1122 (2001) ...............................................................................................4, 5, 7
McCown v. City of Fontana,
550 F.3d 918 (9th Cir. 2009) ..............................................................................................2
Platypus Wear, Inc. v. Goldberg,
166 Cal. App. 4th 772 (2008) ............................................................................................1
Ravet v. Stern,
2010 U.S. Dist. Lexis 7958 (2010) ...............................................................................2, 3
Serrano v.Unruh,
32 Cal. 3d 621 (1982) ..........................................................................................................5
STATUTES
Cal. Civ. Proc. Code 423.16(c) .............................................................................................1
Cal. Civ. Proc. Code 423.16(c)(1) ........................................................................................1
OTHER AUTHORITIES
FRCP 12(b)(6) .........................................................................................................................6, 9
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PLAITIFFS OPPOSITIO OT DEFEDATS MOTIOS FOR
ATTOREY FEES
1

PLAITIFFS OPPOSITIO TO DEFEDATS
MOTIOS FOR ATTOREY FEES
I. ITRODUCTIO
Pursuant to the Court's Order Granting Plaintiff's Motion to Strike under the
Anti-SLAPP statute, Defendants have filed Motions for an Award of Attorneys Fees
under Cal. Civ. Proc. Code 423.16(c). For the reasons set forth below, Defendants'
Motions should be denied or, in the alternative, the requested fees should be reduced
significantly.
II. LAW & ARGUMET
A. LAW
Though Cal. Civ. Proc. Code 423.16(c)(1) provides that a prevailing defendant
shall be entitled to recover his or her attorney's fees and costs, such an award is
subject to preconditions and limitations. California case law makes clear that "absent
circumstances rendering an award unjust, the fee should ordinarily include
compensation for all hours reasonably spent, including those relating solely to
[obtaining] the fee [award]." Kearney v. Foley and Lardner, 553 F.Supp.2d 1178,
1181-1182 (S.D. Cal. 2008) (quoting Serrano v.Unruh, 32 Cal. 3d 621, 624 (1982))
(emphasis added).
The recoverable attorney fees and costs are limited to only those hours
reasonably expended on the anti-SLAPP motion, and not the entire litigation. The
trial court is not constrained by the amount sought by the successful moving party.
Platypus Wear, Inc. v. Goldberg, 166 Cal. App. 4th 772, 784 (2008); Jackson v.
Yarbray, 179 Cal. App. 4th 75 (2009). A reasonable award of attorney fees under
Anti-SLAPP is determined by reference to the lodestar figure, which is the number of
hours reasonably expended multiplied by a reasonable hourly rate. A "reasonable
hourly rate" is the rate prevailing in the community for similar work. Kearney v.
Foley and Lardner, 553 F. Supp. 2d 1178, 1185 (S.D. Cal. 2008).
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ATTOREY FEES
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The amount of fees to be awarded are within the complete discretion of the
court:
"The reasonableness of attorney fees is within the discretion of the trial
court, to be determined from a consideration of such factors as the nature
of the litigation, the complexity of the issues, the experience and
expertise of counsel and the amount of time involved. [Citation omitted.]
The Court must have "substantial evidence" to support the fee award.
[Citations omitted]. The party petitioning for attorneys' fees necessarily
bears the burden of persuasion on the elements of that claim. [Citation
omitted]. An attorney fee award should be reduced if claimed hours are
"excessive, redundant, or otherwise unnecessary," [quoting from Hensley
v. Eckerhart, 461 U.S. 424, 434,103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)].
Reasonableness depends in part on "the success of the attorney's efforts."
[Citation omitted].
Kearney v. Foley and Lardner, 553 F. Supp. 2d 1178, 1185 (S.D. Cal. 2008).
When awarding reasonable attorney fees, the ninth circuit requires a specific
explanation as to why certain fees were awarded, reduced, or rejected:
"Once the district court completes its analysis of the final lodestar
amount, it must explain how it arrived at its determination with sufficient
specificity to permit an appellate court to determine whether the district
court abused its discretion in the way the analysis was undertaken."
McCown v. City of Fontana, 550 F.3d 918, 922 (9th Cir. 2009).
B. ARGUMET
1. Defendants Fail to Present Evidence Establishing Their
Requested Hourly Rates Are the Prevailing Hourly Rate in this
District
To determine the reasonable hourly rate, the Court looks to the rate prevailing
in the community for similar work performed by attorneys of comparable skill,
experience, and reputation. Ravet v. Stern, case no 09- Civ-5575, 2010 U.S. Dist.
Lexis 7958, *5 (February 1, 2010, S.D.N.Y.) According to Ravet, in this case, the
relevant community is the Central District of California because it is "the forum in
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ATTOREY FEES
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which the district court sits." Id. at 5-6.
1
The burden is on the party requesting
attorneys' fees to "produce satisfactory evidence." Id., at 6 (quoting Blum v. Stenson,
465 U.S. 886, 895 n.11 (1984)). Evidence that the Court should consider includes
"[a]ffidavits of the [movant's] attorney and other attorneys regarding prevailing fees
in the community, and rate determinations in other cases, particularly those setting a
rate for the [movant's] attorney." Id., (quoting United Steelworkers of Am. v. Phelps
Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990)). In Kearny, the federal district court
denied a prevailing anti-SLAPP Defendant's Motion for attorney fees in its entirety
(without prejudice) when the hourly rate upon which the motion was based was only
presented with the movant attorney's declaration. Kearny, 553 F. Supp. 2d at 1186-
87.
Here, Defendants' attorneys request an hourly rate of $450.00 on most of the
hours submitted. In support of these rates, Defendants only offer the Declarations of
the movant attorneys, all of which represent that they billed at the rate of $450/hour,
and conclude that this rate represents the Los Angeles market rate. [Doc 132-1, 133-
1, & 134-1]. Aside from the movant attorneys' declarations, Defendants fail to submit
any evidence establishing the prevailing hourly attorney rate for attorneys performing
similar work in the Central District of California. Because Defendants failed to satisfy
carry their burden of proof in establishing the prevailing market rate for the Central
District, this court should deny Defendants' Motions.
2

Furthermore, evidence shows that Defendants' requested hourly rate of $450.00
is above the prevailing hourly rate for attorneys. Studies show that the average billing
rate for California firms is just above $300/hour. [Decl TJW, Doc 135-1]. Consistent
with this average California billing rate is a recent California Superior Court ruling on

1
Citing Camacho v. Bridgeport Fin., Inc., F.3d 973, 979 (9
th
Cir 2008) (quoting Barjon v. Dalton, 132 F.3d 496, 502 (9
th

Cir. 1997).
2
Defendants likewise fail to satisfy their burden of proof in establishing the prevailing market rate for attorney Wu, an
attorney with just 12-18 months experience at the time of her billings (billed at $375/hour, Doc 134-1).
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a high profile, Anti-SLAPP ruling, awarding some of the same attorneys herein an
hourly rate of $300/hour.
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[Decl TJW, Doc 135-1]. Similarly, in Christian Research
Institute v. Alnor, 165 Cal. App. 4th 1315 (2008), the California Court of Appeals
determined that an attorney hourly rate of $300 was reasonable for an prevailing anti-
SLAPP Defendant. Id., at 1324. And in Fein v. Kesterson, Case No. 10-cv-02048,
2010 Lexis 128489 (C.D. Cal., Nov. 23 2010), the district court ruled that $350/hour
was a reasonable hourly rate for a seasoned Los Angeles attorney specializing in
Anti-SLAPP and defamation law, who also taught law school courses at Pepperdine
Law School.
Because Defendants failed to present evidence satisfying their burden of proof
that their requested hourly rates represent the prevailing hourly rate in this district,
Defendants' Motions should be denied. In the alternative, at the very least, this court
should reduce the hourly rates as follows:
Attorney Kinsella and Attorney Reynolds - $300/hour
Attorney Halberstadter - $300/hour
Attorney Gorry and Attorney Hill - $300/hour
Attorney Joseph - $200/hour
2. Defendants Requested Hours Are Excessive and Unreasonable
Collectively, Defendants request the Court to enter a judgment against Plaintiff
in the exorbitant amount of $220,000. Defendants attach a host of itemized billing
records to support these attorney fees and costs. However, as explained above, the
court is not constrained by the amount sought by the successful moving party, and the
prevailing party is entitled only to a reasonable award, based upon the reasonable
time expended on the actual anti-SLAPP motion, not the entire litigation. See

3
On May 11, 2011, in the case of The Revenue Resource Group v. Dash Dolls (The Kardashians), Superior
Court Case No. 11CECG00058, California Superior Court Judge Jeffrey Hamilton granted Defendants Anti-
SLAPP Motion, dismissing Plaintiffs 62 page, nine count Complaint, and awarded Defendants attorney fees in the total
amount of $6,825.00, based in part upon an hourly rate of $300 for attorney Jeremiah Reynolds (who is counsel for
Defendants Boal / Bigelow herein). [Decl. TJW, Doc 135-1].
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Jackson, 179 Cal. App. 4th 75; Christian Research, 165 Cal. App. 4th at 870, and
Ketchum v. Moses, 24 Cal. 4th 1122, 1133 (2001).
The prevailing Defendants seeking fees and costs have the burden of
establishing entitlement to an award and documenting the appropriate hours expended.
The court may require a defendant to produce records sufficient to provide a proper
basis for determining how much time was spent on particular claims. The court also
may properly reduce compensation on account of any failure to maintain appropriate
time records. Christian Research, 165 Cal. App. 4th at 870.
"Padded" fees, in the form of inefficient or duplicative efforts, are not subject to
compensation. Id. at 871. "To the extent a trial court is concerned that a particular
award is excessive, it has broad discretion to adjust the fee downward or deny an
unreasonable fee altogether." Ketchum, 24 Cal. 4th at 1138. "A fee request that
appears unreasonably inflated is a special circumstance permitting the trial court to
reduce the award or deny one altogether." Christian Research, 165 Cal. App. 4th at
871 (quoting Serrano v. Unruh, 32 Cal. 3d 621, 635 (1982). The Serrano court has
authorized the denial of a fee request in its entirety on the ground of an unreasonable
request and inadequate documentation. Serrano, 32 Cal.3d at 635, n. 21.
In Christian Research Institute, the trial court acted within its discretion in
awarding attorney fees to a prevailing anti-SLAPP defendant by reducing the number
of compensable hours from over 600 hours, as requested by defendant, to 71
(Defendant requested $250,000 in fees; the court reduced to $21,300) , where defense
counsel's billing entries were vague and block billed,
4
and included many time entries
devoted to matters other than the motion to strike. Id. The Christian Research panel
justified this reduction based upon the lack of credibility of the submitted time entries:

4
Generally, block billing can "obscure [] the nature of some of the work claimed" and "exacerbate [ ] the vagueness of
counsel's fee request." Christian Research, 165 Cal. App. 4th at 874. Because "block billing makes it more difficult to
determine how much time was spent on particular activities," the Ninth Circuit has held that it will not "quarrel with the
district court's authority to reduce hours that are billed in block format." Welch v.Metropolitan Life Ins. Co., 480 F.3d
942, 948 (9th Cir.2007)
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"The fee request included, for example, billings for obtaining the docket
at the inception of the case, obtaining unspecified but "numerous court
documents," and attending the trial court's mandatory case management
conference - all of which would have been incurred whether or not
[Defendant] filed the motion to strike."
Id. at 1325.
For the reasons more fully explained below, Defendants fee requests are
excessive and unreasonable, and should be denied outright, or significantly reduced.
3. Reasonable Attorney Fees Ruling on a Recent, anti-SLAPP,
High Profile Case Involving Counsel Herein Should be
Followed, And Illustrate the excessiveness of Defendants' Fee
Requests
Defendant Boal's / Bigelow's counsel, Mr. Reynolds and the Kinsella law firm,
recently received an anti-SLAPP attorney fees award of $6,825.00 while representing
the Kardashians in the case of The Revenue Resource Group v. Dash Dolls, Superior
Court Case No. 11CECG00058. In Dash Dolls, Plaintiff debit card company filed a
sixty-two (62) page, nine (9) count breach of contract action against the Kardashians.
Defendants moved to strike under anti-SLAPP, and on May 21, 2011, California
Superior Court Judge Jeffrey Hamilton granted Defendants' Anti-SLAPP Motion and
awarded said attorney fees award, after reducing the requested hourly attorney rate
from $595 and $450 to $350 and $300 respectively. [Decl TJW, Doc 135-1].
There is no reason why the case at bar could not have been handled
accordingly. The herein case did not involve any discovery, and was dismissed before
a single defendant filed an Answer to Plaintiff's Complaint. The case at bar involved
a shorter Complaint - twenty-six (26) pages (plus the Playboy article) and seven
counts. Plaintiff submits the total attorney fees awarded in the Kardashian case should
applied to the case at bar. Though Defendants claim they expended numerous hours
preparing the anti-SLAPP motion, they also made very similar arguments in their
FRCP 12(b)(6) Motions to Dismiss while this case was pending in New Jersey. In
those Motions - the fees for which are not recoverable under CCP 425.16(c)(1) -
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Defendants asserted many of the arguments which were later set forth in their anti-
SLAPP Motions.
5

Furthermore, a review of Defendants' billings show that a considerable amount
of time involved attorneys performing work and tasks which overlapped and was
redundant of other attorneys' work. Though there were three separate law firms
representing separate group of Defendants (Boal/ Bigelow, Summit, and The Hurt
Locker Defendants), all firms and attorneys were hired by, and reported to, a single
insurance company. Under these circumstances, an award consistent with the
Kardashian case is appropriate.
4. Objections to Defendants' Itemized Billing Records
Defendants' Itemized Billing Records vary significantly when compared to the
work performed, and therefore lack credibility, warranting dismissal under Ketchum
and Christian Research, supra. For example, though Defendant Summit and THL
Defendants collaborated together in the drafting of a single anti-SLAPP motion so as
to allegedly avoid the duplication of efforts and fees, those Defendants are claiming a
total of 366.4 attorney hours, whereas counsel for Defendants Boal / Bigelow, while
drafting their own, but very similar, motion to strike, are claiming only 96.60 attorney
hours. Boal / Bigelow even involved the drafting of a somewhat length Declaration
form Defendant Boal. There is no reasonable explanation for the huge discrepancy in
the number of hours allegedly incurred in the drafting of similar motions.
The credibility of Defendants' fee requests are further undermined when
considering that at the time of filing Defendants' anti-SLAPP motions, Defendant
summit was only claiming $25,000 plus in fees, plus an estimated $12,400 for the
remainder of the proceedings in their entirety (including review of opposition, drafting

5
Defendants even conceded in their federal motions to dismiss that it appears that New Jersey law applicable to the
claims that Plaintiff has alleged is not materially different from California law. Therefore, much of work product which
went into the later drafting of the anti-SLAPP motions was already done by virtue of Defendants having drafted and filed
the federal motions to Dismiss in New Jersey. See Doc 01, Doc 25, Def Summit Brief In Support, p. 18, fn 4.
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ATTOREY FEES
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a reply, and attending the hearing; based upon the excess hourly rate of $450/hour for
Halberstadter and $395/hour for 1st year attorney Wu). Doc 82, pp. 19-20. Defendant
Summit is now claiming almost twice this amount.
Similarly, in their anti-SLAPP motion, THL Defendants claimed an
award of attorney fees in the amount of $19,155 (apparently billed at the excess
hourly rate of $450). Doc 78, p 32. Now, THL Defendants are claiming an amount
nearly 5 times greater than initially requested.
Because the credibility of Defendants' documented fee requests are undermined
(as explained above and further explained below), the court should dismiss
Defendants' Motions or significantly reduce Defendants attorney fees award. More
specific objections to Defendants' billings are addressed below.
5. All Hours Billed Regarding Plaintiff's Ex Parte Motion for
Additional Time to Respond to Defendants' anti-SLAPP
Motion
All Defendants have requested fees incurred for addressing Plaintiff's Ex Parte
Motion for Continuation of this Court's initial Hearing date on Defendant's Motion to
Strike. The court will recall Defendants refused to stipulate to Plaintiff's request to
adjourn the hearing date for 28 days, from March to April 2011 (Plaintiff was still
actively deployed in Afghanistan at the time). The court granted Plaintiff's Motion.
Because Defendants did not prevail, they should not be able to recover their fees
associated with forcing Plaintiff to file the Ex Parte Motion.
6. All Hours Billed Regarding Plaintiff's Supplemental Brief
Based Upon Authorities Presented to the Court During Oral
Argument
Plaintiff objects to Defendants' Billings regarding review of Plaintiff's
Supplemental Motion based upon the new authorities Defendants presented to the
court during oral argument held on August 8, 2011. Because Defendant's newly
raised authorities presented Plaintiff's counsel from adequately responding to same
during oral argument, Plaintiff filed the supplemental brief. Defendants should not be
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permitted to further bill Plaintiff when it was their own dilatory conduct which
necessitated Plaintiff's filings. Same argument applies to billings incurred in
responding to Plaintiff's Supplemental Brief, and reviewing Plaintiff's second
supplemental brief.
Defendant Summit's Hours
o Summit requests 96.60 attorney hours. Summit admittedly only filed a 2
page Joinder and a 5 page accompanying Memorandum to THL
Defendants' anti-SLAPP motion (Doc 82), followed by a 6 page Reply to
Plaintiff's Opposition.
o A significant number of Summit's' billing entries are partially redacted,
such that it is impossible for Plaintiff's counsel to determine whether the
time entered for said entry was devoted entirely to Anti-SLAPP work or
whether the time was also attributed to the "redacted" event. Plaintiff
objects to these incomplete, block-billed / redacted billings (ie,12-07-10,
12-22-10, 12-28-10, 01-05-11, 01-21-11, 01-28-11, 02-10-11, 03-01-11,
03-02-11, 03-03-11, 03-15-11, 03-16-11, 03-17-11, 03-28-11, 03-30-11,
08-05-11, ). Specific objections in addition to the objection herein are as
follows:
o 12-07-10 2.0 Hrs (DH) for Conf Call & .60 Hrs (Wu) to Attend Mtg re
Anti-SLAPP Mtn [(1) Vague, Block Billing; (2) this event is not even
identified on Def Boal's billings; (3) the conference call / meeting was to
discuss the preparation for the Rule 26(f) Report, which is not anti-
SLAPP work; see Def THL Billings, 12-07-10, Doc 133-2, p25; (4)
billings are duplicative in that it is unreasonable for Summit to bill for
two attorneys attending same meeting / conference]
o 12-22-10 2.80 Hrs for review of Anti-SLAPP matters (the individual
descriptions suggest the total time was only 1.7 hrs)
o 12-27-10 .5 Hrs for emails to & from T Gorry re Anti-SLAPP
[Gorry's / THL's Itemizations make no such reference to this event]
Defendant THL's Hours
o THL Defendants request 225 attorney hours. THL filed a 25 page anti-
SLAPP motion (half of half of which included substantive arguments
similar to those made in Defendant Summit's Rule 12(b)(6) Motion to
Dismiss. THL Defendants also filed a 31 page Reply.
o A significant number of THL's billing entries are partially redacted, such
that it is impossible for Plaintiff's counsel to determine whether the time
entered for said entry was devoted entirely to Anti-SLAPP work or
whether the time was also attributed to the "redacted" event. Plaintiff
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objects to these incomplete, block-billed / redacted billings (ie, 11-30-10,
12-02-10, 12-03-10, 12-06-10, 12-07-10, 12-08-10, 12-10-10, 12-13-10,
12-14-10, 12-15-10, 01-03-11, 01-13-11, 01-20-11, 01-24-11, 01-27-11,
02-09-11, 02-10-11, 02-11-11, 02-14-11, 03-03-11, 03-11-11, 03-17-11,
03-31-11). Specific objections in addition to the objection herein are as
follows:
o 11-29-10 2.80 Hrs (JL) re draft motion to dismiss [event is not anti-
SLAPP work (see entry for 12-02-10 & 12-07-10, where "motion to
dismiss" is distinguished from "anti-SLAPP motion (motion to strike)")
o 11-30-10 2.0 Hrs (JJ) for conference re choice of law issues; tel conf
with Summit counsel re strategy for responsive pleading for CD Cal &
review prelim orders of dist ct [(1)events are not identified on Summit's
billings; (2) events do not deal with the Anti-SLAPP Mtn]
o 12-02-10 1.0 Hrs (JL) for draft motion to dismiss and review legal
authorities supporting same and potential anti-SLAPP motion [(1) Vague,
Block Billing; (2) event as it relates to motion to dismiss is not anti-
SLAPP work]
o 12-07-10 2.50 Hrs (JJ) for review draft mtn strike, Conf Call w/
defense counsel re strategy with prep of 26(f) report, motion to strike,
and motion to dismiss [(1) Vague, Block Billing(2) this event is not
identified on Def Boal's billings; (3) the conference call / meeting was to
discuss the preparation for the Rule 26(f) Report and motion to dismiss,
which would have been incurred separate and apart from the Anti-
SLAPP Motion (motion to strike)].
o 12-15-10 1.80 Hrs (JL) for correspondence re anti-SLAPP motion and
rule 26 report (including corr to and from Summit / Halberstadter
[(1)Vague, Block Billing; (2) event as it relates to rule 26 report is not
anti-SLAPP work; (3) Summit's Itemizations make no such reference to
this event]
o 12-28-10 3.0 Hrs (JL) for correspondence concerning conflict of laws
statutes and rules [event is not anti-SLAPP work]
o 12-29-10 3.0 Hrs (JJ) for review of authorities concerning conflicts of
laws [event is not anti-SLAPP work]
o 01-03-11 6.30 Hrs (JL) to review Wu correspondence and review and
revise Anti-SLAPP motion; draft motion to dismiss, review legal
authorities supporting same [(1)Vague, Block Billing; (2) event as it
relates to motion to dismiss is not anti-SLAPP work].
o 01-03-11 3.10 Hrs (TG) to review Wu comments and review and
check anti-SLAPP motion [redundant and duplicative of above entry by
atty JL]
#:2045
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ATTOREY FEES
11

o 01-06-11 1.0 Hrs (JL & JJ) for teleconference & emails with with
Halberstadter [these events do not exist in Halberstadter's / Summit's
Billings]
III. COCLUSIO
For the reasons set forth above, Defendants' Motions should be denied or,
alternatively, significantly reduced consistent with the above.
Dated: November 21, 2011 COZEN & O'CONNOR

-/S/-
Erik L. Jackson

LOS_ANGELES\195378\1
#:2046

DECLARATION OF TODD J. WEGLARZ IN SUPPORT OF
OPPOSITION TO DEFENDANTS MOTIONS FOR ATTORNEY FEES

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ERIK L. JACKSON (State Bar No. 166010)
COZEN & OCONNOR
601 S. Figueroa Street, Suite 3700
Cozen OConnor
Los Angeles, California 90017
Telephone: (213) 892-7961
Fax: (866) 484-0947
ejackson@cozen.com

TODD J. WEGLARZ (pro hac vice)
Law Offices of Todd J. Weglarz, PLLC
30903 Northwestern Highway, Suite 250
Farmington Hills, Michigan 48334
Telephone: (248) 539-9081
Fax: (248) 413-2647
tweglarz@weglarzlaw.com
Attorneys for Plaintiff

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

SGT. JEFFREY S. SARVER,

Plaintiff,

v

THE HURT LOCKER, LLC, MARK
BOAL, KATHRYN BIGELOW, GREG
SHAPIRO, NICOLAS CHARTIER,
TONY MARK, DONALL McCUSKER,
SUMMIT ENTERTAINMENT, LLC,
VOLTAGE PICTURES, LLC,
GROSVENOR PARK MEDIA, LP,
FIRST LIGHT PRODUCTIONS, INC.,
KINGSGATE FILMS, INC., and
PLAYBOY ENTERPRISES, INC., Jointly
and Severally,

Defendants.
__________________________________
______
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Case No.: 2:10-cv-09034-JHN
(JCx)

DECLARATION OF TODD J.
WEGLARZ IN SUPPORT OF
OPPOSITION TO
DEFENDANTS MOTIONS
FOR ATTORNEY FEES

Case 2:10-cv-09034-JHN -JC Document 141-1 Filed 11/21/11 Page 1 of 3 Page ID
#:2047


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DECLARATION OF TODD J. WEGLARZ
I, TODD J. WEGLARZ, declare:
1. I am an attorney at law duly licensed to practice law in the State of
Michigan and have been admitted pro hac vice before this Court. I am owner of the
law firm of Law Offices of Todd J. Weglarz, PLLC, which is the counsel of record
for Plaintiff Sgt. Jeffrey S. Sarver in this action. I have personal knowledge of the
matters stated below and if called on to testify I could and would testify competently
thereto.
2. Attached as Exhibit A is a true and correct copy of the State Bar of
Californias information page for attorney Wu, showing admission to the state bar on
December 1, 2009.
3. Attached as Exhibit B is a true and correct copy of an article regarding
the 2009 attorney billing surveys conducted Incisive Legal, published by
calattorneyfees.com, 02-13-2011.
4. Attached as Exhibit C is a true and correct copy of the Revenue Resource
Group v. Dash Dolls Complaint, filed in California Superior Court, County of Fresno,
Case No. 11CECG00058.
//
//
//
//
//
//
//
//
//
#:2048


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5. Attached as Exhibit D is a true and correct copy of the California
Superior Courts May 2011 Tentative Ruling issued by Judge Jeffrey Hamilton in the
matter of Revenue Resource Group v. Dash Dolls, granting Defendants Anti-SLAPP
Motion and awarding Defendants attorney fees in the total amount of $6,825.00,
based in part upon an hourly rate of $300 for attorney Jeremiah Reynolds (who is
counsel for Defendants Boal/Bigelow herein).

I declare under penalty of perjury under the laws of the United States that the
foregoing is true and correct.

Executed on November 21, 2011, at Farmington Hills, Michigan.

_-/S/-________________
Todd J. Weglarz

#:2049
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#:2051
CALIFORNIA ATTORNEY'S FEES : Reasonableness Of Fees: Two Recent Incisive Legal Intelligence Studies Show Average Billing Rates For Small And Mid-Sized Firms And Internal...
http://www.calattorneysfees.com/...leness-of-fees-two-recent-incisive-legal-intelligence-studies-show-average-billing-rates-for-small-and-mid-sized-fir.html[11/20/2011 1:16:09 AM]
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In The News . . . . Different Corporate Clients May Get Different Rates For Same Type
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Attorney Hourly Rates May Shut Out The Middle Class | Main | In The News . . . .
Adventure Writer Clive Cussler Must Be Breathing Easier
February 13, 2011
Reasonableness Of Fees: Two Recent
Incisive Legal Intelligence Studies Show
Average Billing Rates For Small And Mid-
Sized Firms And Internal Costs For In-
House Counsel Departments
Incisive Legal Intelligence has two fairly recent surveys
that may be of interest to those of you who follow our blog
with respect to national attorney hourly rates and in-house
counsel costs. Here you go.
2009 Billings Rates and Practice Survey for Small and Mid-Sized
Firms.
In its 2009 study on billing rates and practices in small
and mid-sized firms, Incisive Legal Intelligence has tallied
some interesting findings from a sample size of 255
nationwide firms with the largest group having an average
of 21-40 lawyers.
This is what they found:
*The majority of firms bill by the hour, regardless of
firm size.
*The average billing rate, nationwide, is $284 per
hour.
*Firms with 2-8 lawyers have an average hourly
billing rate of $262, firms with 76-150 lawyers increase to
$295 per hour, and firms with over 150 lawyers have an
average billable rate of $333.
*The average billing rate also increases with a
lawyers number of years in practice, with lawyers in or
near major metropolitan areas commanding much higher
fees than the averages.
*By region, average hourly rates break out this way:
Northeast -- $319; West -- $296; South -- $276; and
Midwest -- $264.
*The Pacific division (California, Oregon,
Washington, Hawaii, and Arizona) has higher billing rates
with an average hourly billing rate of $319.
*The practice areas with the highest hourly billing
rates are Plaintiffs Contingency Litigation ($413), followed
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*The Pacific division ( *The Pacific division ( *The Pacific division ( *The Pacific division ( *Th Pacifi divisi ( , eg ,
g has higher billing rates has higher billing rates has higher billing rates has higher billing rate gt , , a) gt , , a)
wi a average hourly b ng ate of $319. with an average hourly billing rate of $319. with an average hourly billing rate of $319. with an average hourly billing rate of $319. with an average hourly billing rate of $319.
ig ig
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#:2052
CALIFORNIA ATTORNEY'S FEES : Reasonableness Of Fees: Two Recent Incisive Legal Intelligence Studies Show Average Billing Rates For Small And Mid-Sized Firms And Internal...
http://www.calattorneysfees.com/...leness-of-fees-two-recent-incisive-legal-intelligence-studies-show-average-billing-rates-for-small-and-mid-sized-fir.html[11/20/2011 1:16:09 AM]
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2008 Study on In-House.
In a 2008 Law Department Metrics Benchmarking
Survey of 111 companies, Incisive Legal Intelligence
reports that the median internal cost of operating an in-
house law department at a large company grew to $381,618
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Median external expenditures for large companies were up
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What are the primary criteria for selecting outside
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E X H I B I T " B "
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E X H I B I T " E "
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E X H I B I T " H "
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(19)
Tentative Ruling

Re: The Revenue Resource Group v. Dash Dolls
Superior Court Case No. 11CECG00058

Hearing Date: May 11, 2011 (Dept. 402)

Motion: by defendants to strike complaint pursuant to anti-SLAPP
statutes

Tentative Ruling:

To grant, and to grant attorneys fees request, but to lower the amount
awarded to $6,825.00.

Explanation:

1. Oral Testimony Request

This request is denied, as unnecessary to the resolution of the matter, and
as no good cause was shown by plaintiff for presentation of live witnesses rather
than declarations. California Rules of Court, Rule 3.1306(a).

2. Timeliness Issue

The Court finds that the motion is timely, based on the statement on the
notices of acknowledgement and receipt that such receipt is t o be completed by
sending before mailing. Mail service adds five days. Code of Civil Procedure
section 1013(a) applies that five day addition to service by mail of thenotice or
other paper.

Further, Code of Civil Procedure section 426.15(f) does not always require
that leave to file a late motion be sought. Instead, it also permits the Court to
hear a motion later than 60 days after service of the complaint, i n its discretion.
Considering the strong public policy in favor of determining if anti-SLAPP
protection is appropriate, a delay of five days is de minimus, and warrants an
exercise of this Courts discretion to consider the motion on the merits.

3. Plaintiffs Objections to Evidence

Plaintiff made Objections Nos. 1 through 7 and Nos. 11 through 16 to
news articles and other media discussions of the Kardashian Kard, on hearsay
and other grounds. However, the materials are not offered for the truth of the
matters stated in the publications, but to show that there was a public interest in
this issue. These objections are overruled.

Exhibit D
#:2116

Plaintiffs Objection No. 17 is to a statement made by plaintiffs counsel
and reported in the media. The same basis for the objections is tendered,
however this is offered to show that plaintiff also knew of the public interest in the
subject. Plaintiffs Objections Nos. 8 through 10 are to the Connecticut Attorney
Generals letter, on the same basis. These objections are also overruled.

Plaintiffs Objections Nos. 18 and 19 are to defense counsels recollection
of the settlement discussions and extension of time to file this motion. They are
not hearsay; counsel has a personal recollection of what he himself was involved
in. The statements are not susceptible to the objections for lack of foundation,
speculation, inadmissible opinion, or that they are argumentative. These
objections are also overruled.

Lastly, plaintiffs objection No. 20 is to all exhibits to the declaration of
defense counsel. Those items are the media reports, the Connecticut AGs
letter, and the correspondence between counsel in this case. The objections are
made for the same reasons as the above and are overruled for the same
reasons.

4. Defendants Objections to Evidence

Objection No. 1 is made to paragraph 4 of Ms. Castro-Ayalas declaration
describing the letter she is attaching. The objection is that the document speaks
for itself. That is true, but the declaration contents authenticate it. This objection
is overruled.

Objection No. 2 is to paragraph 5 of her declaration, wherein she relates
she granted no extension on the 60 day period for the anti-SLAPP motion. The
objection is that her statement is an inadmissible legal opinion, speculation,
irrelevant, and lacks foundation. These are overruled. She knows what she
personally did and did not do. Objection No. 3 is to Mr. Millers declaration,
paragraph 6, stating his belief as to why the anti-SLAPP motion was filed. The
objections are that the statement is an impermissible legal opinion,
argumentative, lacks foundation, is speculation, and irrelevant. As a statement of
evidence, it is speculation, and that objection is sustained.

Objection No. 4 is to paragraph 8 of Mr. Millers declaration, which Mr.
Miller states is based on information and belief. The objection is hearsay, which
is sustained. Anexamination of the affidavits discloses that the statements
therein were upon information and belief or hearsay evidence. Hence they were
devoid of any evidentiary value. Jeffers v. Screen Extras Guild, Inc. (1955) 134
Cal. App. 2d 622, 623, citing Kellett v. Kellett (1934) 2 Cal. 2d 45, 48: As
evidence, an affidavit made upon information and belief is hearsay and no proof
of the facts stated therein. Star Motor Imports, Inc. v. Superior Court (1979) 88
Cal. App. 3d 201, 204 relies on Kellett for this point.

Exhibit D
#:2117

Objection No. 5 is to paragraph 10 of Mr. Millers declaration, concerning a
letter sent to defense counsel. The objections are that the letter is argumentative
and contains an impermissible legal opinion. These objections are overruled. A
statement of position in a meet and confer letter is admissible to show that meet
and confer occurred, and what was discussed.

Objection No. 6 is to paragraph 11 of Mr. Millers declaration, wherein Mr.
Miller states he never granted an extension for the anti-SLAPP motion. The
objections are the same as for Ms. Castro-Ayalas declaration on this point, and
are overruled for the same reason.

4. Discussion of Basic Tenets of anti-SLAPP Protection

SL APP is an acronym for Strategic Lawsuit Against Public Participation.
SLAPP litigation, generally, is litigation without merit filed to dissuade or punish
the exercise of First Amendment rights of defendants. Lafayette Morehouse,
Inc. v. Chronicle Publishing Co. (1995) 37 Cal. App. 4
th
855, 858. The relative
burdens of the parties with regard to such a motion are set forth in Shekhter v.
Fin. Indem. Co. (2001) 89 Cal. App. 4th 141, 150-151 (citations omitted):

T he burdens of proof on a special motion to strike pursuant to
section 425 [are] as follows: Section 425.16, subdivision (b)(1),
requires the trial court to engage in a two-step process when
determining whether a defendant's section 425.16 motion to strike
should be granted. First, the court decides whether the defendant
has made a threshold prima facie showing that defendant's acts, of
which the plaintiff complains, were ones taken in furtherance of the
defendant's constitutional rights of petition or free speech in
connection with a public issue. If the court finds that such a
showing has been made, then the plaintiff will be required to
demonstrate that 'there is a probability that the plaintiff will prevail
on the claim.' ( 425.16, subd. (b)(1). The defendant has the
burden on the first issue, the threshold issue; the plaintiff has the
burden on the second issue.

In terms of the so-called threshold issue, the moving defendant's
burden is to show the challenged cause of action arises from
protected activity. Once it is demonstrated the cause of action
arises from the exercise of the defendant's free expression or
petition rights, then the burden shifts to the plaintiff to show a
probability of prevailing in the litigation. Under section 425.16,
subdivision (b)(2), the trial court, in making its determination,
considers the pleadings and affidavits stating the facts upon which
the liability or defense is based.

Exhibit D
#:2118

Opposition Attys Fees SGT Sarver V Nicolas Chartier

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