polak v. ramirez-diaz

VERMONT SUPERIOR COURT 1
fl4 CIVIL DIVISION
Franklin Unit Case N0. 21-CV-00594
17 Church Street
Vermont Superior Court
St. Albans VT 05478 Flled 11_01 2_1
Fran 1n mt
802—524—7993 fifi
wwwvermontjudiciaryorg

Kristina Polak, et a1 v. Felipe Ramirez-Diaz, et al

ENTRY REGARDING MOTION
Title: Motion for Attorney's Fees Defendants’ Petition for Attorney's Fees (Motion: 8)
Filer: Erika Johnson
Filed Date: August 31, 2021

The motion is GRANTED.

Defendants seek an award of $18,481.77 in attorney’s fees and costs incurred in successfully
pursuing their Special Motion to Strike pursuant to Vermont’s anti-SLAPP statute, 12 V.S.A.
§ 1041, et seq. The statute provides that “[i]f the court grants the special motion to strike,
the court shall award costs and reasonable attorney’s fees to the defendant.” Id. §1041(f)(1).
The Vermont Supreme Court has indicated that “the award of fees is mandatory when a
motion to strike is granted,” but “[t]he trial court does have discretion in determining the
amount of an award.. ..” Cornelius V. Chronicle, Ina, 2019 VT 4, 1119, 209 Vt. 405.

Here, the Defendants were represented by Erika Johnson, Esq. of Vermont Legal Aid.
Attorney Johnson graduated from Harvard Law School in 2017, and she is admitted to
practice in the state and federal courts in Vermont. Her hourly rates ($175 an hour for legal
work and $87.50 for paralegal work) are reasonable, given her experience, the complexity of
this case, and the issues at stake; indeed, Plaintiffs do not challenge Attorney Johnson’s
hourly rates.
Plaintiffs oppose the fee request on the grounds that the amount sought “is unreasonable,
excessive, duplicative and comprised work that is unrelated to the anti-SLAPP motion”
(Plaintiff’s Opposition, at 3). More specifically, Plaintiffs argue that: 33.3 hours should be
reduced or deleted because they related to the Defendants’ motion to dismiss, rather than
their special motion to strike; 2 hours of time and $1,430.45 in expenses should be deleted or
reduced because they were necessitated by Plaintiff’s claim of malicious prosecution, and,
therefore, Defendants would have incurred them regardless of their motion to strike; 6.1
hours should be deleted or reduced because they were incurred in drafting affidavits that
were merely duplicative of information contained in Defendants’ motion to dismiss; and 19.7
hours should be reduced because that was an excessive amount of time for counsel to spend
preparing for the one-hour oral argument on the special motion to strike.

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21—CV—00594 Kristina Polak, et a1 v. Felipe Ramirez—Diaz, et a1
Vermont Superior Court
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The Court has reviewed the affidavit and exhibits accompanying the Defendants’ fee
application and is satisfied that the time spent, and expenses incurred were reasonable in
amount, and were necessitated by the Plaintiffs’ decision to file a suit in violation of the
anti-SLAPP statute. The issues in Defendants’ motions (their motion to dismiss and their
special motion to strike) were inextricably intertwined, such that it was appropriate to
include the time spent on both in Defendants’ fee application. In addition, the affidavits
that counsel prepared in support of the special motion to strike did more than merely recite
information already contained in the motion to dismiss. Moreover, it does not matter that
defense counsel would have incurred some of the same time defending against Plaintiff’s
malicious prosecution claim; that claim was brought in violation of the statute, so, under the
statute, Defendants are entitled to an award of fees incurred in getting the claim stricken.
As for the 19.7 hours spent by Attorney Johnson in preparing for oral argument on the
special motion to strike, the Court cannot conclude that they were “grossly excessive,
unnecessary, and unreasonable,” as Plaintiffs claim. While more experienced attorneys
would probably have spent considerably less time preparing for an oral argument on most
dispositive motions, here the issues were unusually complex, both factually and legally. The
relevant events went back several years and involved three previous adjudications between
the parties. The Vermont Supreme Court has not had occasion to interpret our anti-SLAPP
statute very frequently, and several of the issues in this case were therefore ones of first
impression. The motion to strike itself was 22 pages long and contained 37 exhibits
comprising hundreds of pages of materials. Plaintiffs’ opposition to the motion was 30
pages long and raised additional issues needing to be addressed. In short, there was a lot to
prepare for.
Given the complexity of the case, the novelty of the issues, and the successful outcome on
Defendants’ special motion to strike, the Court concludes that Defendants are entitled to an
award of the $16,600 in attorney’s fees that they have requested. Indeed, this award is less
than awards that have been granted for similar motions in other cases under the statute. In
addition, the court concludes that Defendants are entitled to the $1,821.77 in costs that they
have requested; those costs were almost entirely incurred in obtaining transcripts of the
prior adjudications between the parties and in obtaining Spanish translations of certain
documents for the Defendants.

For the foregoing reasons, Defendants are awarded $18,481.77 in attorneys’ fees and costs
pursuant to 12 V.S.A. § 1041(t)(1).

signed on 10/27/2021 1:51 PM, pursuant t0 V.R.E.F. 9(d)

Electrgiically
Robert A. fiello
Superior Judge

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21—CV—00594 Kristina Polak, et al v. Felipe Ramirez—Diaz, et a1