Not a Lexis Advance subscriber? Try it out for free.

Ketchum v. Moses

Supreme Court of California

February 26, 2001, Decided

No. S077350.


 [*1127]  [***380]  [**738]    MOSK, J. 

Defendant sought mandatory attorney fees after he moved to strike allegations in a so-called strategic lawsuit against public participation, or SLAPP action, under section 425.16 of the Code of Civil Procedure. The superior court granted the motion and awarded attorney fees, including fee [****3]  enhancements based on contingent risk and the exceptional quality of the legal services provided. We granted review to address the question whether the attorney fees were properly calculated in this matter. As will appear, based on our review of record, we conclude that they were not.

Plaintiff Smith A. Ketchum III owns a multi-unit apartment building in Sausalito. His tenant, defendant John M. Moses, reported numerous code violations to government agencies, including the Sausalito fire and building departments. According to another tenant, Ketchum referred to Moses as a "troublemaker" and stated that he would "get [him] into court" and "keep him there," asserting that he could "afford the best lawyers" while Moses could obtain only "cheap legal aid."

In October 1995, Ketchum filed an action against Moses seeking compensatory and exemplary damages, including allegations  [***381]  that he had made false complaints to the various local government agencies in an effort to harass, annoy, and inflict emotional distress on him. Attorney Jeremy L. Friedman agreed to represent Moses on a contingent fee basis. In January 1996, he filed a special motion to strike under Code of Civil [****4]  Procedure section 425.16, on the ground that the suit constituted a SLAPP action. The special motion was supported by declarations of government officials to the effect that their inspections based on Moses's reports revealed numerous code violations involving hazardous conditions, and that tenants should not be discouraged from reporting such information. Friedman attempted to negotiate a dismissal without formal court action, but was informed by Ketchum's counsel that there was no possibility of settlement. Instead, Ketchum filed an opposition to the motion, supported by declarations by himself and an attorney.

In April 1996, the superior court granted the special motion. Other claims by the parties, including a claim by Ketchum of assault and battery, and  [*1128]  claims by Moses of harassment, breach of the warranty of habitability, and retaliatory eviction, were subsequently settled by the parties.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

24 Cal. 4th 1122 *; 17 P.3d 735 **; 104 Cal. Rptr. 2d 377 ***; 2001 Cal. LEXIS 916 ****; 2001 Daily Journal DAR 1969; 2001 Cal. Daily Op. Service 1549

SMITH A. KETCHUM III, Plaintiff and Appellant, v. JOHN M. MOSES, Defendant and Respondent.

Subsequent History:   [****1]  Rehearing Denied May 16, 2001, Reported at: 2001 Cal. LEXIS 3277.

Prior History: Superior Court of Marin County. Super. Ct. No. 165699. Richard H. Breiner, Judge.

Court of Appeal of California, First Appellate District, Division Three. No. A076353.

Disposition: For the foregoing reasons, we affirm the judgment of the Court of Appeal and remand the case with directions that it be remanded in turn to the superior court for recalculation of attorney fees consistent with the views expressed herein.


attorney's fees, enhancement, lodestar, superior court, cases, contingency, fee award, prevailing, contingent risk, costs, lodestar figure, declarations, calculation, trial court, anti-SLAPP, skill, hourly rate, multiplier, factors, legal services, spent, special motion, fee-shifting, subdivision, compensate, courts, tenant, contingent nature, nonpayment, provisions

Constitutional Law, Fundamental Freedoms, Freedom of Speech, Scope, Civil Procedure, Remedies, Costs & Attorney Fees, General Overview, Damages, Monetary Damages, Strategic Lawsuits Against Public Participation, Judicial & Legislative Restraints, Standing, Attorney Fees & Expenses, Reasonable Fees