I agree with the majority's conclusion that the challenge to the anti-SLAPP (anti-strategic lawsuit against public participation) motion order is not cognizable on this appeal, but dissent from those parts of the opinion affirming the award of attorney fees and refusing to award additional fees on appeal. Because my view of the attorney fee issue is based in large part on the complexity of this case and the concomitant exposure to Google, the majority's statement of facts is insufficient to make my point — and I thus offer a bit more detail.
A. Mark G. Maughan and Brown Maughan (the firm is included in my references to Maughan) filed this class action against Google Technology, Inc., seeking damages and injunctive relief for libel, products liability, and unfair business practices on the ground that a Google search for "Mark Maughan Accountancy" (or a variation on that theme) generates a list of Web sites "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 says are "veritable scarlet letters in the accounting world." Maughan concedes he has been disciplined for other wrongful conduct, and 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.
Google responded with a special motion to strike (Code Civ. Proc., § 425.16) and for attorney fees.1 Over Maughan's opposition, the motion was granted, the trial court finding that Google's statements were made in a public forum about a matter of public interest (ComputerXpress, Inc. v.Jackson (2001) 93 Cal.App.4th 993, 1006 [113 Cal.Rptr.2d 625]; Damon v. Ocean *Page 1255 Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [102 Cal.Rptr.2d 205]), that this action was not brought solely for the benefit of the public interest (§ 425.17), and that it was "unlikely" that Maughan would ultimately prevail on any of his claims (1) because they were barred by the immunity provision of the Communications Decency Act of 1996 (47 U.S.C. § 230(c)(1); Batzel v. Smith (9th Cir. 2003)333 F.3d 1018, 1026; Carafano v. Metrosplash.com, Inc. (9th Cir. 2003) 339 F.3d 1119, 1122-1125), and (2) because, as a matter of law, search engine results are not reasonably understood as conveying a defamatory meaning (Knievel v.ESPN (9th Cir. 2005) 393 F.3d 1068, 1073-1074; Forsherv. Bugliosi (1980) 26 Cal.3d 792, 802-803 [163 Cal.Rptr. 628, 608 P.2d 716]).2
Google then filed a motion for attorney fees in which it asked for fees of $98,120.40 and costs in the amount of $5,168.23. Maughan opposed the motion, contending his lawyers had "spent significantly less time but produced an equally valuable product of work," approximating their lawyers' time at 50 hours, and suggesting (without any evidentiary support) that Google's claim was "vastly over the top and . . . patently unreasonable." The trial court bought Maughan's opposition hook, line and sinker, fixing Google's fees at $21,250 based on 50 hours at $425 per hour, and its costs at only $1,750, a total of $23,000.
Maughan did not appeal from the order granting Google's special motion to strike but did appeal from the judgment of dismissal, contending the anti-SLAPP motion should have been denied. Google challenged the appeal as untimely and on the merits, cross-appealed to challenge the trial court's reduction of its fees and costs, and requested fees on appeal. As noted at the outset, I agree with the majority's conclusion that Maughan's challenge to the anti-SLAPP order is not cognizable on this appeal from the judgment, but it is my view that Google's fees and costs should not have been reduced at all, *Page 1256 and that Google is entitled to its fees and costs as the party prevailing on this appeal. I would reverse the award of attorney fees and costs but otherwise affirm the judgment.
B. I agree with Google that the trial court abused its discretion by reducing its fee award to less than one-fourth of the amount requested or, for that matter, at all.
1. Google's motion for fees and costs established the followinguncontroverted facts.
The case was factually and legally complex, and the magnitude of risk to Google was substantial. Google's search engine operates on a computer algorithm that responds to query terms provided by Google's users. The search engine (the computer) performs all required tasks (finding, ranking, and excerpting documents) in a fraction of a second, making no judgment about the documents it finds on the Web, all of which are created by others. No human edits the results before they are delivered to the Google user. Maughan sought an injunction that would have required Google to employ humans to review and edit the computer's work, a process that would have slowed the present system to a crawl and placed Google at a profound competitive disadvantage. Maughan also sought compensatory and punitive damages for himself and a class of thousands.
For these reasons, Google retained experienced and qualified lawyers (Quinn Emanuel Urquhart Oliver Hedges, LLP) with expertise about both the substantive and procedural issues raised by Maughan's complaint. Quinn Emanuel's billing rates are comparable to those charged by comparable California law firms (as shown by Google's evidence, a survey published in the National Law Journal in December 2004). In drafting the anti-SLAPP motion and the reply to Maughan's opposition, Quinn Emanuel had to address three major points: (1) the application of the anti-SLAPP statute to Maughan's claims; (2) the immunity granted by the Communications Decency Act, and (3) the law of defamation as applied to search engine results.
In support of its motion, Google presented Quinn Emanuel's invoices, redacted as necessary to protect Google's attorney-client privilege, and explained that the invoices covered a demurrer and a motion to strike the class and representative allegations as well as the anti-SLAPP motion. Google did not ask for fees for work performed on the other matters, only for the *Page 1257 hours spent by two lawyers (Timothy L. Alger, a partner who bills at the rate of $500 per hour, and Lesley E. Williams, an associate who bills at the rate of $350 an hour) on the anti-SLAPP motion — and then discounted by 40 percent the hours devoted to issues that overlapped the other motions. Thus, although Google was billed a total of $169,173.10, it sought only about 60 percent of that sum, or $98,120.40. The same formula was applied to Google's costs, so that the total ($8,613.72) was discounted by 40 percent to $5,168.23. Google asked for an additional $9,000, an estimate of the fees and costs it incurred in making the motion for fees.
2. In his four-page opposition to Google's motion for fees and costs, Maughan claimed that, "[b]y any reasonable attorney's standards (including the attorneys at Girardi Keese who spent significantly less time but produced an equally valuable product of work) both the time spent and the amount calculated are unreasonable." Maughan took issue with Google's "arbitrarily applied" 40 percent writeoff (but did not suggest an alternative approach), and offered nary a word about Google's costs. At the heart of the opposition is Maughan's comparison to the hours supposedly spent by his lawyers: "In comparison, [Maughan's] attorneys, who defense counsel states were also `capable lawyers with an impressive track record for class action litigation' . . ., spent significantly less time and incurred significantly less costs and fees in preparing the same amount of work which was of equal caliber." While I agree that Girardi Keese are capable lawyers with an impressive track record in litigation (I wouldn't limit it to class actions), I found no evidence supporting Maughan's opposition.
First, the declaration by John A. Girardi states only this: "Iestimate that the amount of time spent by firm associate Joseph A. Schwar and myself, on the thorough andcomplete representation of our client, was 50 hours. [¶] Although the opposition was clearly unsuccessful, the court was moved to comment that both [Google's] and [Maughan's] oppositions [sic] were well researched and well briefed. [Maughan] achieved this end with a diligent use of resources. [¶] [Google's claim for 400 hours] is vastly over the top and is patently unreasonable."3 (Italics added.) No time records are attached, no *Page 1258 explanation is given for Mr. Girardi's "estimate," and Maughan doesn't say how much he spent on costs.
Second, the opposition to the anti-SLAPP motion was not comparable to the motion itself.
The Anti-SLAPP Motion. Of necessity, Google's anti-SLAPP motion explained the intricacies of its search engine's operation and the damaging effect of the injunctive relief sought by Maughan's complaint; discussed the anti-SLAPP law, the Communications Decency Act's immunity, and the law of defamation; and (in support of its immunity and defamation arguments) explained in detail the difference between a search engine and an "information content provider" as relevant to these issues.4 In a 14-page declaration, Daniel Dulitz (a Google software engineer) detailed the service provided by Google and explained how it works and how to interpret its search results, emphasizing that "[e]very aspect of Google's search process, from the time a query is sent by a user's web browser to the time the results are displayed on the user's screen, is performed by computer hardware and software and is completely automated. No human at Google ranks web pages, finds query terms, summarizes documents, or manipulates search timers. The query terms are selected by the user. The web pages in Google's database are created by the developers of those sites, stored without substantive alteration in Google's database, and made available to Google users for searching via Google's search engine technology." "A Google query is usually processed in less than half a second. . . ."
Google also established that its search engine results were authored by others, not Google, and that Google's computers merely extract search terms through an automatic process, without human intervention. Google's "terms of service" notice to its users makes this clear: The "sites displayed as search results or linked to by Google Services are developed by people over whom Google exercises no control. . . . A search using Google Services may produce search results and links to sites that some people find objectionable, inappropriate, or offensive. We cannot guarantee that a Google Search will not locate unintended or objectionable content and assume no responsibility for the content of any site included in any search results or otherwise linked to by Google Services." In another declaration, Timothy L. Alger (a Quinn Emanuel partner) authenticated copies of printouts of Web pages posted by *Page 1259 the California Board of Accountancy (certified by the board's custodian of records) to establish the discipline imposed on Maughan and the postings on the board's Web site.
The Opposition to the Anti-SLAPP Motion. Maughan's opposition focused on the manner in which Maughan came upon the allegedly defamatory Google search results but offered nary a word about the nature of a search engine or any of the information put forth in Google's moving papers. On the law, Maughan's opposition discussed the general rules applicable to run-of-the-mill anti-SLAPP motions, insisted that an injunction was necessary without any discussion of the effect it would have on Google's automated search engine, and relied on inapposite authorities to suggest that, contrary to all the evidence (including his own), Google is an Internet content provider. The evidentiary support for Maughan's opposition consisted of his own declaration explaining the discipline imposed on him by the California Board of Accountancy and the manner in which he found the allegedly defamatory Google search results. Other printouts of Google search results are authenticated by Maughan's lawyer (Mr. Schwar), and publication (for the libel cause of action) is established by a two-paragraph declaration from Aaron Greenwood to the effect that he was "shocked" when he saw the search result.5 3. In its reply vis-à-vis its motion for fees, Google neatly summarized Maughan's position this way: "After launching a class action lawsuit that attacked the very manner in which Google does business, and seeking a broad injunction and tort damages on behalf of unknown thousands of people, [Maughan] now — when faced with a mandatory fee award — suddenly say[s] `never mind,' and attempt[s] to belittle the litigation. This contention is especially disingenuous given that Google fully informed [Maughan] of its defenses and its intention to bring an anti-SLAPP motion. [Maughan] knowingly assumed the risk that [he] would have to pay for Google's successful effort to dispose of this case, [¶] . . . [¶] That [Maughan's] counsel now asserts that he spent minimal time on the lawsuit . . . establishes only that the action was brought without reasonable inquiry into its factual and legal basis. It does not warrant a reduction in Google's fees."
As Google pointed out, Maughan did not dispute Quinn Emanuel's billing rates, only the number of hours spent on the anti-SLAPP motion (enhanced *Page 1260 by a conclusory assertion that some of the work could have been done by a less experienced and less expensive associate). 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.
4. The trial court acknowledged that Google sought fees for only two lawyers (Alger at $500 per hour and Williams at $350 per hour), and acknowledged that Google had discounted the lawyers' time and all costs by 40 percent to the extent their work was relevant to the other pending motions, but rejected Google's request for $98,120.40 for fees and $5,168.23 for costs. Instead, the court looked at Google's timesheets, described them as "somewhat vague in their descriptions of what precisely defense counsel was doing for the claimed amount of time" (ignoring the fact that the invoices had been redacted to delete privileged information), found that 200 hours "seem[ed] excessive especially since Google's counsel acknowledge that they are old hats at SLAPP motions and experts in defamation and the [Communications Decency Act]. Such a motion should not have been such a monumental undertaking."
The court gave lip service to the factors to be considered in determining the reasonableness of a fee request — "the nature of the litigation and its difficulty; the amount of money involved in the litigation; the skill required and employed in handling the litigation; the attention given to the case; the attorney's success, learning, age and experience in the particular type of work demanded; the intricacy and importance of the litigation; the labor and necessity for skilled legal training and ability in trying the case; and the amount of time spent on the case" (Niederer v. Ferreira (1987)189 Cal.App.3d 1485, 1507 [234 Cal.Rptr. 779]) — but in the end simply accepted Maughan's suggestion that he shouldn't have to pay for more than the time Girardi Keese "estimated" it spent, and that Maughan shouldn't have to pay at the rates billed by Google's lawyers. The court gave Google $23,000-50 hours at $425 per hour plus a fraction of its costs.
5. I agree with Google that the trial court abused its discretion, and that there is no substantial evidence to support its order. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311,322-323 [193 Cal.Rptr. 900, 667 P.2d 704] [the starting point of every fee award must be a calculation of the attorney services in terms of the time he has expended on the case, and the exercise of *Page 1261 the court's discretion in awarding attorney fees must bear some reasonable relationship to the lodestar figure of time spent and hourly compensation]; Flannery v. California HighwayPatrol (1998) 61 Cal.App.4th 629, 643 [71 Cal.Rptr.2d 632] [the trial court's exercise of discretion must be based upon a proper utilization of the lodestar method]; In reCortez (1971) 6 Cal.3d 78, 85 [98 Cal.Rptr. 307,490 P.2d 819] ["judicial discretion" implies the absence of arbitrary determinations, capricious dispositions, and whimsical thinking]; Church of Scientology v. Wollersheim (1996)42 Cal.App.4th 628, 659 [49 Cal.Rptr.2d 620], disapproved on another point in Equilon Enterprises v. Consumer Cause,Inc. (2002) 29 Cal.4th 53, 68, fn. 5 [124 Cal.Rptr.2d 507,52 P.3d 685] [upholding a fee award under the anti-SLAPP statute because it was supported by substantial evidence and there was no evidence to the contrary]; TuchscherDevelopment Enterprises, Inc. v. San Diego Unified PortDist. (2003) 106 Cal.App.4th 1219, 1248 [132 Cal.Rptr.2d 57] [same]; Braun v. Chronicle Publishing Co. (1997)52 Cal.App.4th 1036, 1052-1053 [61 Cal.Rptr.2d 58] [same].)
(a) The anti-SLAPP statute is neither ambiguous nor equivocal. It says the "prevailing defendant on a special motion to strikeshall be entitled to recover [its] attorney's fees andcosts." (§ 425.16, subd. (c), italics added; seePfeiffer Venice Properties v. Bernard (2002)101 Cal.App.4th 211, 215 [123 Cal.Rptr.2d 647] [the award of attorney fees to the party prevailing on an anti-SLAPP motion "is not discretionary but mandatory"].) Although the award of fees must be reasonable, it must also "adequately compensate the defendant for the expense of responding to a baseless lawsuit." (Dove Audio, Inc. v. Rosenfeld, Meyer Susman (1996) 47 Cal.App.4th 777, 785 [54 Cal.Rptr.2d 830]; see also Liu v. Moore (1999) 69 Cal.App.4th 745,750 [81 Cal.Rptr.2d 807] [the relief afforded by section 425.16 includes "financial relief in the form of attorney's fees and costs, to persons who have been victimized by meritless, retaliatory SLAPP lawsuits"].) To that end, the prevailing party is entitled not only to the fees incurred in making the anti-SLAPP motion, but also the fees incurred in enforcing its right to mandatory fees. (Ketchum v. Moses (2001)24 Cal.4th 1122, 1141 [104 Cal.Rptr.2d 377, 17 P.3d 735].)
(b) Because Google presented a prima facie showing that its fee request was fair and reasonable, the burden of proof was on Maughan to show, by admissible evidence, that Quinn Emanuel's fees were unreasonable — either the number of hours or the hourly rate or both (Gates v. Gomez (9th Cir. 1995) 60 F.3d 525, 535; Ketchum v. Moses, supra,24 Cal.4th at pp. 1140-1141; *Page 1262 Church of Scientology v. Wollersheim, supra,42 Cal.App.4th at p. 659), and it certainly was not enough to say that, because Girardi Keese purportedly spent less time, so too should have Quinn Emmanuel. (Brandt v. SchalAssociates, Inc. (7th Cir. 1992) 960 F.2d 640, 648 [rejecting a similar assertion because the court had "little sympathy for the litigant who fires a big gun, and when the adversary returns fire, complains because he was only firing blanks"]; Ferland v. Conrad Credit Corp. (9th Cir. 2001) 244 F.3d 1145, 1151 ["opposing parties do not always have the same responsibilities under the applicable rules, nor are they necessarily similarly situated. . . . Comparison of the hours spent in particular tasks by the attorney for the party seeking fees and by the attorney for the opposing party, therefore, does not necessarily indicate whether the hours expended by the party seeking fees were excessive"].)
(c) This was not a small case with minimal risk. To the contrary, the complaint raised significant free speech issues involving a search engine's immunity for republication of content originally published by interactive computer services, plus additional issues about the nature of defamation in this context, and the relief sought went to the heart of Google's business — its ability to provide instantaneous search results without human intervention. As the trial court conceded, the litigation was "difficult from the Court's perspective given the newly developed area of law vis-à-vis the [Communications Decency Act]," and the probability of an appeal was apparent from the outset (if not to the trial court, certainly to the parties) — so that a thorough defense and complete evidentiary record had to be presented by Google. For these reasons, I believe the trial court's analysis was flawed.
The Nature of the Litigation and Its Difficulty. The trial court said it was "hard to believe that counsel for Google spent approximately four 50-hour work weeks preparing the SLAPP motion," and then discounted "the detailed factual record that had to be developed for the motion regarding how Google works," finding it "helpful" but concluding it "simply did not merit the time expended." I disagree. Daniel Dulitz's declaration certainly aided my understanding of the issues, and I know from my own experience how many lawyer hours it takes to translate an expert's technical jargon into an explanation that can be absorbed by a judge. (Niederer v. Ferreira, supra,189 Cal.App.3d at p. 1507 [judges may rely on their own experience and knowledge, as lawyers and as judges, in determining the reasonable value of the attorney's services].) *Page 1263
In the same vein, the trial court conceded that this "litigation may have been difficult from the Court's perspective," but then used Quinn Emanuel's expertise as a reason for reducing its fee, finding that "Google's counsel is clearly on the cutting edge of such jurisprudence and the firm has handled some of the only cases interpreting the [Communications Decency] Act. Accordingly, counsel was presumably up to speed on the subject as well as being well versed in SLAPP motion litigation. Hence, the Court must factor in some type of efficiency analysis." The trial court was mistaken. From the record, it appears that no court had previously been asked to decide whether the Communications Decency Act of 1996 protects search engine providers, or whether Internet search results can support a defamation claim — there are close cases, but none directly on point. The anti-SLAPP motion was not a cut-and-paste project. Of course, there is also the fact that Maughan was represented by one of the preeminent plaintiff's firms in town, "capable lawyers with an impressive track record for class action litigation" who had to know their presence would justifiably provoke a full court press.
The Amount of Money Involved in the Litigation. The trial court ignored the significance of this litigation to Google, finding only that it was "unclear how much money would have been involved in the litigation [because] the main relief sought by [Maughan] appeared to be injunctive relief [that would make] Google stop the alleged misrepresentation." The court was mistaken. Maughan asked for both compensatory and punitive damages for himself and for a class consisting of all persons in California "who must be licensed by the State of California in order to carry out the regular functions of their business or profession, and of whom a registry is maintained by the State of California or any of its agencies which is accessible to the public through [Google's] search engine software." Medical doctors. Dentists. Podiatrists. Physical therapists. Nurses. Lawyers. Accountants. Architects. General contractors. Realtors. I could go on, but I think this brief list makes the point.
More importantly, the trial court's analysis ignores the undisputed evidence establishing that the injunctive relief sought by Maughan would have imposed on Google's automated search service an obligation to employ humans to edit search results, thereby depriving it of its ability to provide the instantaneous response that has fueled its growth.
The Skill Required and Employed in Handling theLitigation. In considering this issue, the trial court once again used Quinn Emanuel's expertise as a reason for reducing its fees, finding that its skill should have made it more efficient. With that, the court commented on its own experience with "attorneys' fee requests in complex cases" and in deciding "how much time attorneys should be spending and typically do spend on difficult and complex matters." On that basis, the court simply adopted Maughan's proposal — "50 *Page 1264 hours or one attorney work week" — then averaged the two attorneys' billing rates to arrive at $425 per hour, and gave Google only $21,250 for the fees it incurred in opposing the motion and in pursuing its claim for fees. For no reason at all, the court also cut the cost bill from $5,168.23 to $1,750, a total of $23,000.
(d) In the anti-SLAPP context, prevailing parties are "compensated for hours reasonably spent on fee-related issues," and it is only when the request appears "unreasonably inflated" that the trial court is permitted to reduce the award. (Ketchum v.Moses, supra, 24 Cal.4th at p. 1137.) Here, we have nothing more than Maughan's conclusory and unsupported assertion that Quinn Emanuel's fees were too high, and (in my view) the trial court's apparent misunderstanding about the application of the factors articulated in Niederer v.Ferreira, supra, 189 Cal.App.3d at page 1507. The complexity of the issues, the substantiality of the risk to the defendant, and the skill and experience of the lawyers are factors justifying a fee enhancement, not a reduction of hours and hourly rates. As the Supreme Court explained in Ketchumv. Moses, supra, 24 Cal.4th at pages 1138-1139, a "reasonable hourly rate" is the product of a multiplicity of factors including the level of skill, time limitations, the amount at issue, and the attorney's reputation — and the trial court has discretion to enhance, not reduce that amount, for such things as exceptional skill.
Because Google's uncontroverted evidence established the baseline for the award of fees, any departure from the amount requested had to be based on some evidence in the record suggesting the fee was unreasonable, not (as Google puts it) on a "wholesale rejection of the evidence in favor of the self-interested and unsupported claim of opposing counsel." (Shaw v. AAA Engineering Drafting, Inc. (10th Cir. 2000) 213 F.3d 538, 543 [the opponent's time is not an immutable yardstick of reasonableness]; Norman v. HousingAuthority of City of Montgomery (11th Cir. 1988)836 F.2d 1292, 1305, fn. 3 [the time spent by opposing counsel is seldom relevant to a determination of the hours reasonably expended on many tasks]; Johnson v. Univ. Col. of Univ. of Ala. inBirmingham (11th Cir. 1983) 706 F.2d 1205, 1208 [the amount of hours needed by one side to prepare adequately may differ substantially from that for opposing counsel because the nature of the work may vary dramatically]; Ferland v.Conrad Credit Corp., supra, 244 F.3d at p. 1151 ["the prevailing party's attorney — who after all, did prevail — spent more time because she did better work"];Samuel v. University of Pittsburgh (W.D.Pa. 1978) 80 F.R.D. 293, 294-295 [estimating that, before trial, the hourly demands on defense counsel are triple that of plaintiff's counsel].) It goes without saying that the same is true with regard to costs. *Page 1265
For these reasons, I believe Google is entitled to the amount it requested for fees and costs in making the anti-SLAPP motion ($98,120.40 for fees and $5,168.23 for costs), plus the $9,000 it requested for its fees incurred in obtaining the award of fees, and I would reverse the judgment insofar as the award of fees and costs is concerned. It follows that I also believe Google is entitled to its costs and fees on appeal.6
The petition of appellant Google Technology, Inc., for review by the Supreme Court was denied February 7, 2007, S148197.