California SLAPP Law

I grow so weary.

Every time I submit a motion for attorney fees following a successful anti-SLAPP motion, I am met with at least one of the following arguments, that ten minutes of research would reveal are nonsense. I am convinced that most of the attorneys know what they are saying is wrong, but with no ability to make a viable argument against the fees, they elect to make all the usual crazy arguments in the hope they can slip one or more past the judge.

Here are the top 6 bad arguments attorneys make in opposition to my motions for attorney fees.

1. He didn’t provide his invoices.

I have never attached my invoices to a fee motion. The law is exceedingly clear that an attorney need only attest to the time he spent on the matter. The declaration is under penalty of perjury, and that is sufficient to establish the time.

But I go far beyond that. With a few key strokes, our billing program spits out all the time entries that went into the actual invoices, and I just cut and paste that into my declaration, deleting any entries that are unrelated to the anti-SLAPP motion. I attest to this fact in my declaration, and no judge has ever had a problem with that approach.

So why not just attach the invoices, since they contain the same information? Because the invoices reflect all the time I spent on the case that was not related to the anti-SLAPP motion, and includes other information about payments and such. The client may have limited funds, and I might have decided to handle the anti-SLAPP motion with a small initial retainer. That would create an additional argument, with the opposition proclaiming, “The defendant only paid $5,000 for the motion!” (As you’ll see in a moment, the amount the client paid is irrelevant to the analysis.)

2. He didn’t provide his fee agreement.

Attorney fees are awarded on what is called the “lodestar” method. The fee award is based on a reasonable number of hours spent on the anti-SLAPP motion, times a reasonable hourly rate based on the experience of the attorney.

The rate the attorney is charging the client is irrelevant to the analysis. An attorney might decide to charge the client a reduced hourly rate. Indeed, the attorney might be charging the client nothing, with the understanding that he or she will get paid by the other side if they prevail on the motion. In such cases, the courts actually allow a multiplier, where the attorney might get, say, 1.5 times the reasonable hourly rate, to compensate the attorney for the added risk of handling the case on the contingency arrangement.

Despite these realities, plaintiff’s counsel will often argue that I should not be awarded the requested hourly rate because there is no proof that the client was actually charged that amount. In one case, the attorney thought she was being clever and served a discovery request for the fee agreement and invoices. I served an objection because the information was irrelevant. In her opposition she made a big deal of my failure to produce the documents, but the judge agreed they were entirely irrelevant.

3. There is no proof the client has paid the fees.

This is related to the above. In opposing the motion for attorney fees, the plaintiff’s counsel will state, “He has provided no proof that the client paid the amounts indicated,” usually in bold type, sometimes underlined with all caps. 

In one case, I won attorney fees against an attorney who was representing himself (there’s a saying about that). He appealed the ruling on the anti-SLAPP motion and the attorney fee motion, and incredibly argued on appeal that no evidence had been presented to show that the client had paid the fees, or (and this is the fun part) that should the fees be awarded, they would actually go to the client. He lost on all counts.

Whether the client has paid the fees is irrelevant to the loadstar calculation.

4. He used block billing.

Although an attorney can simply attest to the time spent on the anti-SLAPP motion, enough detail must be provided for the judge to determine whether the time spent on individual tasks was reasonable.

True block billing does not provide sufficient detail. The entries might simply show:

1-4-2025 Research for anti-SLAPP motion; Drafting anti-SLAPP motion. 7.2 hours

1-5-2025 Research for anti-SLAPP motion; Drafting anti-SLAPP motion. 6.5 hours

1-6-2025 Research for anti-SLAPP motion; Drafting anti-SLAPP motion. 5.3 hours

That is block billing, and the judge has no ability to determine how much time was spent on research versus drafting, and whether those hours were reasonable. (But even there, the judge has seen the anti-SLAPP motion, and if the total hours seem reasonable for the motion, he or she might not be concerned by the block billing.)

But the thing is, while I might technically block bill, it does not prevent the judge from determining whether the time was reasonable. Here is a typical entry:

1-4-2025 Research for and drafting of anti-SLAPP motion, including searching for and analyzing cases discussing whether HOA meetings fall under subparts (e)(1) and (2), as an “official proceeding authorized by law” or (e)(3) and (4) as a matter of public interest; emailed latest draft to client for review. 4.9 hours.

Almost always, the attorneys will feel compelled to argue that is block billing, because the judge cannot possibly know how much time was spent on the motion, and how much time was spent on the email. They usually conclude the argument by saying the entire time should be denied due to that uncertainty.

The argument has never worked. The attorneys fail to realize that the judge does not need to know how much time was spent on the email. The only determination the judge needs to make is whether 4.9 hours was a reasonable amount of time for all the activities listed.

5. The complaint was an obvious SLAPP.

Usually because of a lack of understanding that the anti-SLAPP statute goes far beyond defamation claims, opposing counsel sometimes argues that the complaint is so obviously NOT a SLAPP, that I should sanctioned for bringing the motion. Then, naturellement, I prevail on the anti-SLAPP motion.

In opposition to the attorney fee motion, that same attorney will then argue that the complaint was so OBVIOUSLY a SLAPP, it should have taken me mere minutes to draft the anti-SLAPP motion.

The most extreme example of this was an attorney who sued his client for malicious prosecution, because the client had dared to take him to fee arbitration. I responded with an anti-SLAPP motion, and the attorney could not contain his outrage that I would make such an argument. In that case, my motion was denied by the trial court, but I had the ruling reversed on appeal, meaning that the plaintiff attorney was now liable for all the fees for the original motion and the appeal. In opposition to my motion for attorney fees, after arguing both in the trial court and the Court of Appeal that my anti-SLAPP theory was utterly ridiculous, he stated that it was so obvious that I should have been able to handle the motion and appeal in just a few hours.

6. His hourly rate is too high.

This would be a perfectly valid argument to make, if in fact my hourly rate was too high. According to the Laffey Matrix – a guide to the reasonable hourly rates for attorneys based on their experience and region – I could command an hourly rate in excess of $1,000 per hour based on my 35 years of experience. I charge far, far less than that amount.

But that doesn’t stop opposing counsel from making the argument. In one of the more humorous examples, plaintiff’s counsel hired an expert to opine on the reasonableness of my fees. He claimed that the maximum any attorney could charge, no matter how experienced, would be about $65 per hour less than what I was seeking. He based his opinion entirely on the location of my office. He claimed that attorneys in the bordering city could charge the higher amount, but that my city was mostly residential. Apparently attorney fees are based on the number of surrounding highrises. Total nonsense. Different regions have different rates – attorneys in the Los Angeles area charge more than attorneys in Tucson – but it doesn’t change from block to block.

The judge rejected the expert’s opinion, and noted that my hourly rate was “notably modest.” I always feel like the attorney and his expert lose all credibility when they make such a ridiculous claim.