Case Number: 20STCV14403    Hearing Date: May 17, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

 MOVING PARTY:              Cross-Defendants Douglas Chad Biggins and Bow Tie Realty and Investment, Inc.

 OPPOSITION:                      [None] 

Background

On April 14, 2020, Plaintiff/Cross-Defendant Bow Tie Realty and Investment, Inc. (Bow Tie Realty) sued Defendant/Cross-Complainant Caroline S. Lee and Defendants Poetry Properties, LLC, Seong H. Lee, and Does 1-100 pursuant to claims of (1) Declaratory Relief, (2) Fraudulent Transfer, (3) Civil Code 3412, and (4) Aiding and Abetting.

On May 26, 2020, Caroline Lee filed a Cross-Complaint against Bow Tie Realty and Cross-Defendant Douglas Chad Biggins (Biggins)—counsel for Bow Tie Realty—alleging claims of (1) Fair Debt Collection Practice Act, (2) Civil Code § 3412, (3) Intentional Infliction of Emotional Distress, and (4) Aiding and Abetting.

On June 17, 2020, Bow Tie Realty and Biggins made an anti-SLAPP motion to strike the entirety of the Cross-Complaint.

On January 21, 2021, the Court granted the anti-SLAPP motion in favor of Bow Tie Realty and Biggins.

On January 26, 2021, Caroline Lee noticed an appeal to the anti-SLAPP ruling, designated by court of appeal case number B310246.

On March 19, 2021, Bow Tie Realty and Biggins moved for attorney fees as the prevailing parties on the anti-SLAPP motion.

On April 28, 2021, Caroline Lee’s appeal to the anti-SLAPP ruling was placed in default for failure to pay a deposit and corresponding fee for a reporter’s transcript.

On May 5, 2021, the Court granted the motion for attorney fees in the amount of $45,500.

Also on May 5, 2021, Bow Tie Realty and Biggins filed a proposed judgment in conformity with the January 21, 2023 anti-SLAPP ruling.

On June 1, 2021, judgment was entered on the Cross-Complaint according to the May 5, 2021 proposed judgment.

On June 21, 2021, notice of entry of judgment was filed.

On August 18, 2021, Caroline Lee appealed the May 5, 2021 ruling granting fees in favor of Bow Tie Realty and Biggins, designated by court of appeal case number B314897.

On September 9, 2021, the court of appeal noticed a failure to pay fees related to the B314897 fees appeal.

On October 1, 2021, the Court issued a notice of default in the B314897 fees appeal for failure to deposit and pay a fee related to reporter’s transcripts.

On October 5, 2021, the court of appeal dismissed the B314897 fees appeal.

On October 28, 2021, the court of appeal reinstated the B314897 fees appeal.

On September 8, 2022, pursuant to Caroline Lee’s unopposed request during oral argument, the January 26, 2021 appeal was dismissed. (Bow Tie Realty and Biggins argue in their briefing that the dismissal involved dismissal of both the B310246 anti-SLAPP ruling appeal and the B314897 fees appeal, which had been consolidated.)

Remittitur thereon was issued the same day.

On October 24, 2022, Bow Tie Realty and Biggins moved for attorney’s fees on appeal in the amount of $11,287.50 as related to both the B310246 anti-SLAPP ruling appeal and the B314897 fees appeal.

On the same day, Bow Tie Realty and Biggins filed a memorandum of costs on appeal in the amount of $1,070.65.

The motion for attorney’s fees on appeal and memorandum of costs are now before the Court.

Caroline Lee has failed to oppose the fees motion and the costs memorandum. 

Motion for Attorney’s Fees and Costs

Legal Standard

A prevailing party is entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032, subds. (a)(4), (b).) Attorney’s fees are also recoverable as costs when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10); Cal. Rules of Court, rule 8.278 [attorney’s fees recoverable as costs on appeal].) “[T]o collect appellate attorney fees, a party must demonstrate the right to do so under either a statute or a contract, independent of a costs statute.” (Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 927.) A prevailing defendant on an anti-SLAPP motion is entitled to recover their attorney’s fees and costs. (Code Civ. Proc., § 425.16, subd. (c)(1); Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) Since section 425.16, subdivision (c) provides for an award of attorney’s fees and costs to a prevailing defendant on a special motion to strike and does not preclude recovery of appellate attorney fees by a prevailing defendant-respondent, those fees are also recoverable. (Trapp v. Naiman (2013) 218 Cal.App.4th 113, 122; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.) A prevailing party may recover fees incurred in defending an appeal to a favorable anti-SLAPP ruling even where the appeal is voluntarily dismissed. (See Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.)

Self-Represented Litigant Also Counsel

Here, Biggins represented Bow Tie Realty and himself on appeal. (Mot., Biggins Decl., ¶ 2, Ex. 1 [verified time records].)

A party representing him- or herself cannot claim fees under the anti-SLAPP statute. (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 493-494 [no pro se attorney’s fees under the anti-SLAPP statute]; Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 252-260, as modified, Oct. 22, 2014 [fees not awardable to a firm’s “of counsel” attorneys, to independent contractors within a firm that is a party, or to in house counsel].)

However, as argued by the fees motion before the Court (Mot., pp. 4-5), fees incurred by Biggins in representing Bow Tie Realty on appeal are recoverable insofar as an attorney/defendant may recover attorney’s fees for legal assistance provided to co-defendants. (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 523-525.) The key is the existence of a true attorney-client relationship, where the attorney/defendant assists in the legal defense of him- or herself and the co-defendants. (Id. at p. 524.)

Here, Biggins is Bow Tie Realty’s counsel of record on the original April 14, 2020 Complaint (see Complaint, p .1) and was only brought into this action as a party through his inclusion as a cross-defendant in the Cross-Complaint (see Cross-Complaint generally). Biggins continued in his role as counsel for Bow Tie Realty, including throughout the appeal proceedings. (Mot., Biggins Decl., ¶ 2, Ex. 1.) As such, a true attorney-client relationship existed between Biggins and Bow Tie Realty, which permits Bow Tie Realty’s recovery of attorney’s fees for Biggins’ work performed on Bow Tie Realty’s behalf. (See Ramona Unified School Dist. v. Tsiknas, supra, 135 Cal.App.4th at pp. 523-25.)

Analysis

Bow Tie Realty and Biggins—with no opposition from Caroline Lee—move for attorney’s fees in the amount of $11,287.50 related to the B310246 anti-SLAPP ruling appeal and the B314897 fees appeal, as well as costs on appeal in the amount of $1,070.65. (See 10/24/22 Fees Mot. and Memo of Costs on Appeal.)

The Court begins this inquiry “with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar figure may then be adjusted [according to a multiplier enhancement] based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant multiplier factors include “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

No specific findings reflecting the court’s calculations for attorney’s fees are required; the record need only show that the attorney’s fees were awarded according to the “lodestar” or “touchstone” approach. (Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349.) The Court has broad discretion to determine the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.)

The Court first finds that the fee rate sought by Bow Tie Realty and Biggins—$750 per hour—is reasonable and, as argued by Bow Tie Realty and Biggins, is supported by the Laffey Matrix. (Mot., p. 7; see Mot., Biggins Decl., ¶ 2.)

The Court next finds that the hours spent on the appeals—15.05 hours—is on its face reasonable. (Mot., pp. 6-7; Mot., Biggins Decl., Ex. 1 [verified time records].) The question remains whether a full recovery for these hours is permissible where the time records do not differentiate between the hours expended on appeal by Biggins on his own behalf as opposed to the same work on behalf of Bow Tie Realty. (See Mot., Biggins Decl., Ex. 1.) The Court finds that the most reasonable interpretation of case law in Ramona is that the Court need not differentiate between the hours ascribable to the work performed by Biggins on appeal on his behalf as opposed to on behalf of Bow Tie Realty. (Ramona Unified School Dist. v. Tsiknas, supra, 135 Cal.App.4th at pp. 524-25 [in awarding fees for work of attorney/defendant, failing to differentiate between hours spent on anti-SLAPP by attorney/defendant on her own behalf as opposed to on behalf of her co-defendants, under circumstances where attorney/defendant “contribut[ed] her expertise in environmental litigation to preparing the [anti-SLAPP] motion[] to aid in the legal defense of [her co-defendants] (as well as herself) against [plaintiff’s] complaint”].)

Bow Tie Realty, Inc. is thus entitled to $11,287.50 in fees, calculated at a rate of $750 per hour times 15.05 hours.

No multiplier enhancement is sought by the fees motion.

The Court last finds that the costs of $1,070.65 are reasonable. (Memo of Costs, p. 1.)

The motion for attorney’s fees on appeal and memorandum of costs on appeal are thus GRANTED in the amount of $12,358.15. 

Conclusion

 Cross-Defendants Douglas Chad Biggins and Bow Tie Realty and Investment, Inc.’s Motion for Attorney’s Fees on Appeal is GRANTED in the amount of $11,287.50 as reasonable compensation to Bow Tie Realty for Biggins’ work on the B310246 anti-SLAPP ruling appeal and the B314897 fees appeal.

Cross-Defendants Douglas Chad Biggins and Bow Tie Realty and Investment, Inc.’s Memorandum of Costs is reasonable and GRANTED in the full amount of $1,070.65.

Defendant/Cross-Complainant Caroline Lee is ORDERED TO REMIT (1) payment of $11,287.50 to Bow Tie Realty WITHIN 60 CALENDAR DAYS, as well as (2) payment of $1,070.65 to Bow Tie Realty and Chad Biggins WITHIN 60 CALENDAR DAYS.