Judge: Anne Richardson, Case: 22STCV24759, Date: 2023-05-09 Tentative Ruling

Case Number: 22STCV24759    Hearing Date: May 9, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiffs Stacey Santos and Aris Castellanos sue a number of Defendants—including Defendants Adam Michael Sacks and Jamie Lee—for their alleged participation in a scheme to wrongfully evict Plaintiffs from their rental unit in a two-dwelling residential property—unit which at all relevant times lacked a Certificate of Occupancy, thus making any attached Lease void—by means of a May 12, 2022 unlawful detainer action (LASC Action No. 22CHUD00401) (hereafter “Underlying Action” or “Unlawful Detainer Action”) filed during a period of COVID-19 eviction protections and under false pretenses, i.e., eviction for cause through alleged breach of lease by owning dogs on the Subject Property where the property manager was aware of the dogs’ presence and abided the same as of the date Plaintiffs moved in to the Subject Property on May 1, 2019, and where the Underlying Action was dismissed without prejudice by the owners of the Property (either Defendants Wilman Olmedo and Jeannine Brevik or the TelBrown Statutory Trust) on June 27, 2022.

Plaintiffs specifically sue Defendant Sacks—the attorney who initiated and maintained the Unlawful Detainer Action against Plaintiffs on behalf of the Subject Property’s owner(s)—and Defendant Lee—the process server who claims to have served on Plaintiffs the proofs of service for summons and complaint in the Unlawful Detainer Action—pursuant to claims of (2) Equitable and Declaratory Relief under the Bane Act, (17) Intentional Infliction of Emotional Distress (“IIED”), (18) Negligent Misrepresentation, (19) Abuse of Process, (20) Aiding and Abetting, and (21) Malicious Prosecution (Sacks only).

On September 13, 2022, Defendants Sacks and Lee filed a Special Motion to Strike under Anti-SLAPP (“anti-SLAPP motion”) against the claims made against them in the Verified Complaint for this action, as premised on the grounds that (1) the conduct ascribed to Sacks and Lee in the Complaint—i.e., the initiation, maintenance, and/or service of process in the Unlawful Detainer Action—constitutes protected activity for the purposes of anti-SLAPP and (2) Plaintiffs cannot show even minimal merit to their claims. The motion also contained a request for $7,735 in attorney’s fees.

On October 26, 2022, Plaintiffs filed an opposition to the anti-SLAPP motion.

On November 1, 2022 Defendants Sacks and Lee replied to Plaintiff’s opposition to the anti-SLAPP motion.

On November 8, 2022, the Court heard the anti-SLAPP motion, which was granted as to striking the claims alleged in the Complaint against Defendants Sacks and Lee, but which was silent as to the request for attorney’s fees.

Also on November 8, 2022, Defendants Sacks and Lee served a corresponding notice of ruling on Plaintiffs and filed a proposed judgment for judgment in favor of Defendants Sacks and Lee and attorney’s fees in favor of Defendant Lee.

On November 15, 2022, Defendants Sacks and Lee filed a motion for entry of judgment with prejudice based on the November 8, 2022 ruling and requesting $5,915 in attorney’s fees as the prevailing party on an anti-SLAPP motion.

On November 18, 2022, Plaintiffs sought reconsideration of the November 8, 2022 Court order pursuant to Code of Civil Procedure sections 1008 and 473, subdivision (b).

On December 5, 2022, Plaintiffs made an ex parte application to obtain a settled statement from the Court summarizing the circumstances surrounding the grant of the anti-SLAPP motion the purpose of appeal.

On the same day, Defendants Sacks and Lee opposed the ex parte application.

On December 6, 2022, the Court heard the ex parte application and denied it.

In or around December 9, 2022, the Honorable Judge David Sotelo, who ruled on the anti-SLAPP motion, retired from the bench and Department 40.

Per the record, on January 9, 2023, the proposed judgment filed by Defendants Sacks and Lee on November 8, 2022 was denied.

In or around February 14, 2023, the Honorable Judge Anne Richardson assumed the bench for Department 40.

On March 9, 2023, Defendants Sacks and Lee filed an opposition to the reconsideration motion.

On April 3, 2023, the Court heard oral arguments on the reconsideration motion.

On April 20, 2023, the Court DENIED the reconsideration motion on the grounds that it had not presented valid statutory grounds for Judge Anne Richardson to reconsider Judge Sotelo’s (Ret.) November 8th decision.

On April 26, 2023, Plaintiffs Santos and Castellanos opposed the November 15, 2022 motion for entry of judgment, solely as to denying attorney’s fees in favor of Lee.

On May 2, 2023, Defendants Sacks and Lee filed a supplemental declaration regarding fees requesting $14,365 in attorney’s fees for (1) work on the anti-SLAPP motion and November 8th appearance, (2) work in opposing and appearing for Plaintiffs’ ex parte application, and (3) work on briefing and appearing for the motion for reconsideration.

The motion for entry of judgment is now before the Court.

Motion for Entry of Judgment

I. Entry of Judgment

Having denied the motion by Plaintiffs for reconsideration of the November 8th ruling, the claims against Defendants Sacks and Lee fail, this motion is GRANTED as to judgment, and JUDGMENT IS ENTERED in favor of Defendants Sacks and Lee as to all claims made against them in the operative August 1, 2022 Complaint.

II. Attorney’s Fees

II.A. Defendant Sacks

Defendants Sacks states that he does not seek to recover attorney’s fees for himself in this action. (See 5/2/23 Supp. Sacks Decl., p. 1 [“Defendant Jamie Lee will bring a motion for entry of Judgment for Lodestar attorneys fees and costs in connection with the court’s granting the special motion to strike on 11-8-22.”].)

Such fees would not have been recoverable by Defendant Sacks because he represented himself in this action. (See record generally.) No attorney’s fees are recoverable under Code of Civil Procedure section 425.16, subdivision (c), if the fees were incurred by an attorney who is either representing himself or herself as a defendant in the action or they are an employee of a law firm defendant. (Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1207-1211; Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 493; Carpenter & Zuckerman v. Cohen (2001) 195 Cal.App.4th 373, 385; Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties LLC (2014) 230 Cal.App.4th 244, 257; compare Witte v. Kaufman, supra, 141 Cal.App.4th at pp. 1211-1212 [Attorney’s fees incurred by an outside lawyer who is assisting a self-represented lawyer or law firm (creating an attorney-client relationship) are recoverable].)

II.B. Defendant Lee

Defendant Lee seeks $14,365 in attorney’s fees as the prevailing party on the anti-SLAPP motion filed by Defendants Sacks and Lee, with the fees sought consisting of Defendant Sacks’s (1) work on the anti-SLAPP motion and November 8th appearance, (2) work in opposing and appearing for an ex parte application by Plaintiffs to obtain a statement from the Court for the purpose of appeal, and (3) work on briefing and appearing for the motion for reconsideration. (5/2/23 Supp. Sacks Decl., pp. 2-4.)

In opposition, Plaintiffs Santos and Castellanos argue various points. First, Plaintiffs argue that the November 15, 2022 declaration filed by Defendant Sacks in support of attorney’s fees is not admissible for failure to comply with California Rules of Court, rule 3.1110, i.e., requirement to state in opening paragraph of motion the nature of the order sought and grounds therefor. (Opp’n, p. 5.) Second, the opposition argues that the November 15, 2022 motion fails to show the sought-after attorney’s fees therein were reasonable and necessary in defense of the case. (Opp’n, pp. 5-6.) Third, the opposition argues that the September 3, 2022 declaration attached to the anti-SLAPP motion is not admissible evidence in support of attorney’s fees because it failed to set forth which specific portions of the SLAPP motion were relevant to Defendant Lee that were different and separate from his personal liability requiring the expenditure of time claimed in his declaration. (Opp’n, p. 8.) Fourth, the opposition argues that the September 3, 2022 declaration was not submitted under penalty of perjury, making it defective. (Opp’n, p. 8.) Fifth, the opposition argues that neither Defendants Sacks nor Lee expended attorney’s fees or became liable for such expenditures because Defendant Sacks represented them both on the anti-SLAPP motion. (Opp’n, pp. 8-10.) Sixth and last, the opposition argues that even if the Court were to consider the Sacks declarations in support of fees, the Court should reduce any award based on the declarations’ failure to specify what work was performed solely for defendant Lee that merit the award of attorney’s fees under these facts. (Opp’n, pp. 10-11.)

In his May 2, 2023 supplemental declaration, Defendant Sacks does not address the argument that he failed to differentiate between anti-SLAPP work performed for his benefit and work performed for the benefit of Defendant Lee. (See 5/2/23 Supp. Sacks Decl. generally.) Instead, the supplemental declaration focuses on breaking down the hours expended on the anti-SLAPP motion and hearing, the December ex parte opposition and hearing, and the motion for reconsideration of the November 8th anti-SLAPP ruling. (5/2/23 Supp. Sacks Decl., pp. 2-4.)

The Court first finds that fees as to the work performed by Defendant Sacks on the anti-SLAPP motion through the November 8th hearing were DENIED by Judge Sotelo through his silence on the fees request in the November 8th ruling, which this Court—under Judge Richardson—cannot change absent statutory grounds for doing so. The September 3, 2022, November 15, 2022, and May 2, 2023 Sacks declarations do not provide any such ground. (See Greene v. State Farm Fire & Cas. Co. (1990) 224 Cal.App.3d 1583, 1588-1589 [judge inappropriately vacated a general order made by the superior court because judge was not so empowered to act under any statute].)

Even if that were not dispositive, the Court also finds—in line with Plaintiffs’ fifth argument in opposition—that recovery of fees for any of the worked performed by Defendant Sacks in relation to the anti-SLAPP motion, up through the motion for reconsideration, are not available and DENIED. The reason for this conclusion is that none of the September 3, 2022, November 15, 2022, and May 2, 2023 Sacks declarations differentiate how many hours of work performed by Defendants Sacks in bringing the anti-SLAPP motion, opposing Plaintiffs’ ex parte application, and opposing Plaintiffs’ motion for reconsideration relate to work performed for his sake only, as opposed to for Defendant Lee only or for himself and Defendant Lee together. Without such information, the Court cannot conclude that the sought-after fees were reasonably incurred by Defendant Lee through Defendant Sacks’s representation of her alone. Indeed, prevailing on the anti-SLAPP motion, ex parte opposition, and reconsideration opposition was equally a victory for Defendant Sacks as it was a victory for Defendant Lee.

The request for attorney’s fees pursuant to Code of Civil Procedure section 425.16, subdivision (c), in the September 3, 2022, November 15, 2022, and May 2, 2023 declarations by Defendant Sacks is DENIED. 

Conclusion

Defendants Adam Michael Sacks and Jamie Lee’s Motion for Entry of Judgment is GRANTED in Part and DENIED in Part:

(1) GRANTED as to entry of judgment in favor of Defendants Sacks and Lee; and

(2) DENIED as to attorney’s fees in favor of Defendant Lee in connection with being a prevailing party on the anti-SLAPP motion, the December ex parte application by Plaintiffs, and the April 2023 ruling on Plaintiffs’ motion for reconsideration.

Defendants Sacks and Lee are ORDERED to submit a proposed judgment in conformity with this order WITHIN SEVEN CALENDAR DAYS.