Thursday, October 12, 2006
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C.A. Upholds Fee Award in Defamation Action Against Google
Justice Vogel Vigorously Dissents, Argues That Request Was Unfairly Slashed
By KENNETH OFGANG, Staff Writer
A $23,000 award of attorney fees and costs in favor of Google Technology, Inc., which successfully brought an anti-SLAPP motion against an accountant who claimed he was defamed online, was not so small as to constitute an abuse of discretion, the Court of Appeal for this district ruled yesterday.
A divided panel in Div. One said it saw no reason to set aside Los Angeles Superior Court Judge Peter Lichtman’s determination that Timothy L. Alger and Lesley E. Williams of Quinn Emanuel Urquhart and Hedges should have been able to prepare their successful motion in 50 hours, rather than the 200 or more hours they claimed.
Justice Miriam Vogel vigorously dissented, arguing that the complexity of the issues involved justified granting the entire amount sought by Google’s lawyers, over $98,000 in fees and $5,000 in costs.
Anti-SLAPP Motion
The plaintiff in the action, Mark G. Maughan, represented by the Los Angeles firm of Girardi & Keese, brought a class action complaint alleging that he was defamed because a Google search under his name or that of his firm generated results “suggesting” he was disciplined by the California Board of Accountancy for “gross negligence” and accepting a contingent fee for the preparation of tax returns, which he called “veritable scarlet letters in the accounting world.”
Maughan conceded he had been disciplined for other wrongful conduct, and explained that the allegedly libelous search results showed his name and, separated by ellipses, statements describing misconduct by other accountants in a listing of disciplinary actions created by the Board of Accountancy.
Lichtman granted the anti-SLAPP motion, striking the complaint, on the grounds that the alleged defamation involved a matter of public interest and that the plaintiff was unlikely to prevail, because the defendant had immunity under the Communications Decency Act of 1996 and search engine results have been held not to be reasonably understood as conveying a defamatory meaning.
Maughan did not appeal from the order striking the complaint, but did appeal from the final judgment. Google, in turn, cross-appealed, in a notice filed about 10 days after it was served with the notice of appeal.
The appellate panel dismissed Maughan’s appeal as untimely. Because orders granting or denying anti-SLAPP motions are directly appealable, Justice Robert Mallano explained, the appeal from that order had to be filed within 60 days of the clerk’s service of notice of the order and the plaintiff’s failure to appeal within that time barred the Court of Appeal from reviewing the order on appeal from the final judgment.
The cross-appeal, however, was timely because filed within 20 days of service of the notice of appeal, Mallano explained.
The justice went on to say that the trial judge was entitled to draw on his experience with matters of similar complexity in determining how much time was reasonably spent on the motion, and that he reasonably calculated the fee award by multiplying those hours by the average billing rate of the two lawyers who worked on the motion.
Google, he said, failed to show that the fee ruling was “was arbitrary, irrational, or beyond the bounds of reason.” Justice Frances Rothschild concurred.
Vogel Dissent
Vogel, dissenting, said the factual and legal complexity of the dispute was “uncontroverted,” requiring the defendant to retain “experienced and qualified lawyers...with expertise about the both the substantive and procedural issues.” The fee issue was made more complex, she added, because the attorneys had to defend their billings while protecting the company’s attorney-client privilege.
“Although he had copies of Quinn Emanuel’s invoices, Maughan did not identify any item as unnecessary, and he did not suggest an alternative formula (other than the accepted lodestar used by Google — multiplying the number of hours by the hourly rates) to arrive at a more reasonable fee,” Vogel argued. The burden, she said, should have been placed on the plaintiff to show, by admissible evidence, that the hours claimed or the hourly rate was unreasonable.
The case is Maughan v. Google Technology, Inc., B183969
Copyright 2006, Metropolitan News Company