Judge: Alison Mackenzie, Case: 21STCV22675, Date: 2024-02-28 Tentative Ruling
Case Number: 21STCV22675 Hearing Date: February 28, 2024 Dept: 55
BACKGROUND
GERALD OWEN RYCKMAN and
JUDITH LORRAINE RYCKMAN (“Plaintiffs”) brought this case against Defendants LAURA
DREXLER and DAVID DREXLER as Trustees of the Drexler Trust (“Drexler Defendants”),
and the Drexlers’ attorney Michael Schwimer (“Schwimer”) (Drexler Defendants
and Schwimer collectively referred to herein as “Defendants”), to preclude
enforcement of sanctions orders issued in a separate case between Plaintiffs
and the Drexler Defendants. Schwimer and the Drexler Defendants both filed anti-SLAPP
motions and Plaintiffs dismissed the case days after filing their opposition.
The Court entered judgment, awarding attorneys’ fees to Defendants pursuant to
the SLAPP statute.
Plaintiffs appealed the judgment.
The Court of Appeal issued a remittitur affirming the judgment on 7/13/23. On 8/21/23,
Schwimer and the Drexler Defendants each filed a memorandum of costs on appeal.
Plaintiffs now seek to strike
or tax the costs sought by Defendants. Defendants oppose the motions.
LEGAL STANDARD
Code of Civil Procedure
Section 1033.5 sets forth items that are and are not allowable as costs recoverable
by a prevailing party. A verified memorandum of costs is prima facie evidence
of their propriety, shifting the burden of proof to the attacking party. Adams
v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486-87. If items on a cost
bill appear on their face to be proper, a party seeking to tax costs has the
burden of showing the items on the cost bill were not reasonable or necessary. Ladas
v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.
“Whether a cost is reasonably
necessary to the conduct of the litigation is a question of fact for the trial
court, whose decision will be reviewed for abuse of discretion.” Gibson v.
Bobroff (1996) 49 Cal. App. 4th 1202, 1209 (internal quotation and citation
omitted). A court’s decision to grant or deny a motion to tax costs “will not
be disturbed if substantial evidence supports its decision.” Chaaban v. Wet
Seal, Inc. (2012) 203 Cal.App.4th
49, 52 (internal quotation and citation omitted).
ANALYSIS
Attorney’s Fees- Memorandum
of Costs
As reflected in the
verified memoranda of costs, Schwimer and the Drexler Defendants both seek
recovery of attorney’s fees pursuant to Code of Civil Procedure Section
425.16(c). The Drexler Defendants seek $35,162.50 in fees and Schwimer seeks $12,373.50
in fees. Contrary to Plaintiffs’ contention, a prevailing party may seek
attorney’s fees and costs in connection with a Code of Civil Procedure Section
425.16 (“anti-SLAPP statute”) motion to strike in one of three ways: (1) in the
moving documents, (2) in a subsequently filed motion, or (3) as part of a cost
memorandum. Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 992; see
also Code Civ. Proc. §§ 425.16(c) (prevailing party in anti-SLAPP suit may seek
fees); 1033.5 (stating that attorney’s fees are allowable as costs when
authorized by statute or law).
The provisions for awarding attorney’s fees and costs
under the anti-SLAPP statute include the authority to award fees incurred in
responding to an appeal of an order granting or denying a special motion to
strike. City of Alhambra v. D'Ausilio (2011) 193 Cal. App. 4th 1301,
1309-10. “Statutory authorization for
recovering attorney fees in the trial court necessarily includes attorney fees
incurred on appeal unless the statute specifically provides otherwise.” Maranatha
Corrections, LLC v. Dept. of Corrections and Rehab. (2008) 158 Cal.App.4th 1075, 1091 (internal
quotation and citation omitted). Accordingly, Defendants may seek attorney’s
fees for the appeal of the anti-SLAPP motion by way of their memoranda of
costs.
Attorney’s Fees-Reasonableness
Plaintiffs also contend that
the fees sought by Defendants are unreasonable and excessive. Attorney billing
records are not required, but there must be some evidence in support of fees. Weber
v. Langholz (1995) 39 Cal.App.4th 1578, 1587. Defendants support their
requests for fees with declarations by Schwimer and his colleague Mitch
Rosensweig describing the tasks they did defending the judgment on appeal, and
the hours spent on those tasks. (Schwimer Decl., ¶ 3; Rosensweig Decl., ¶ 3.) This
is sufficient to demonstrate the reasonableness of the fees. “It is not necessary to provide detailed
billing timesheets to support an award of attorney fees under the lodestar
method…. Declarations of counsel setting forth the reasonable hourly rate, the
number of hours worked and the tasks performed are sufficient.” Concepcion
v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1324. The Court’s review
of the the hours and tasks performed by counsel revealed that the fees sought in
connection with the appeal of this hard-fought anti-SLAPP suit are reasonable.
Plaintiffs’ vague
contentions that the fees are excessive does not suffice to challenge the
reasonableness of the fees. “In challenging attorney fees as excessive because
too many hours of work are claimed, it is the burden of the challenging party
to point to the specific items challenged, with a sufficient argument and
citations to the evidence. General arguments that fees claimed are excessive,
duplicative, or unrelated do not suffice.” Lunada Biomedical v. Nunez
(2014) 230 Cal.App.4th 459, 488. Parties
opposing motions for attorneys' fees fail to show any abuse of discretion where
they merely contend that amounts of attorneys' fees are excessive without
providing a specific analysis or factual support. Mallard v. Progressive
Choice Ins. Co. (2010) 188
Cal.App.4th 531, 545. Here, Plaintiffs merely assert that the fees were excessive
and unreasonable without providing any examples or details, which does not meet
their burden with respect to challenging the fees. The Court therefore allows Defendants’
attorney’s fees in full.
Drexler Defendants’ Other
Appeal Costs
In addition to attorney’s
fees, the Drexler Defendants’ verified memorandum of costs seeks recovery of
costs for preparation of the original and copies of clerk’s transcript or
appendix (item #2, $3,271.81) and printing and copying of briefs (item #4, $1,662.62).
A party is entitled to recover
costs paid for any portion of the record, including an appendix in lieu of the
clerk’s transcript. CRC 8.278(d)(1)(B). A party may also recover reasonable
costs to “print and reproduce” any brief. CRC 8.278(d)(1)(E). The amounts sought
by the Drexler Defendants for this task in the verified memorandum of costs are
prima facie evidence of their propriety, thus shifting the burden of proof to Plaintiffs
to demonstrate the costs are not reasonably necessary to the conduct of the appeal.
They have not met their burden. Plaintiffs’
only evidence consists of a declaration by Plaintiff Gerald Ryckman, in which
he states in conclusory fashion that Defendants’ appendix was not reasonable.
(Ryckman Dec., ¶ 20.) Such a bald assertion does not show that Defendants’
costs were unreasonable for the litigation. And indeed, Defendants’ opposition includes
the invoice for these items of costs, which mirror the costs sought in the
costs memo. The Court finds these costs were, in fact, reasonably necessary for
the conduct of the litigation, and will allow them in full.
CONCLUSION
The Court denies both motions
to strike or tax costs.