Judge: Ashfaq G. Chowdhury, Case: EC064357, Date: 2024-07-19 Tentative Ruling

Case Number: EC064357    Hearing Date: July 19, 2024    Dept: E

Hearing Date:  07/19/2024 – 8:30am

Case No: EC064357   

Trial Date: UNSET

Case Name: VILPULKUMAR PATEL v. GOVIND VAGHASHIA, ET AL.

[TENTATIVE RULING– MOTION FOR ATTORNEY FEES]

RELIEF REQUESTED¿ 
Defendants, Govind and Sonal Vaghashia, move the Court for an Order re Motion for Attorney Fees.

[The Court notes that the caption of the motion is titled “DEFENDANTS GOVIND AND SONAL VAGHASHIA’S NOTICE OF MOTION AND MOTION FOR ATTORNEY FEES AS PREVAILING PARTIES ON THE ANTI SLAPP MOTION ON APPEAL UNDER CCP 425.16 (c) AND AWARD OF COST BY APPELLATE COURT AS PER THE REMITTUR; SUPPORTING DECLARATION OF HARI S. LAL WITH SUPPORTING EXHIBITS #1-13 (FILED CONCURRENTLY WITH THE MEMORANDUM OF COSTS).”]

PROCEDURAL
Moving Party: Defendants, Govind Vaghashia and Sonal Vaghashia
Responding Party: No Opposition by Plaintiff

16/21 Day Lapse (CCP § 12c and § 1005(b): Uncertain
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a, 1013b): Uncertain

Moving Papers: Notice/Motion; Hari S. Lal Declaration; Memorandum of Costs on Appeal

Opposition Papers: No Opposition

Reply Papers: No Reply

ANALYSIS

Service
The moving papers (motion and Lal Declaration) and the memorandum of costs on appeal were served via email to mrupal@rupallaw.com. It is unclear if this was the proper service address because eCourt does not list an email address for Plaintiff’s counsel. eCourt lists a mailing address, but no email address is listed for Plaintiff’s counsel. While the moving papers and the memorandum of costs on appeal appear as if they would be timely under CCP § 1005(b) since they were allegedly served on June 6, 2024, the Court cannot make the determination if the papers were timely because it is unclear if Plaintiff’s counsel received them in the first place.

The Court will hear argument.

Preliminary
The Court notes that Defendants’ motion is written in a confusing manner that is borderline incomprehensible at times. A significant amount of Defendants’ motion is entirely irrelevant and unhelpful, as Defendants set forth arguments as if they are filing an anti-SLAPP motion, when in fact the instant motion is a motion for attorney’s fees.

Background
Plaintiff filed a Second Amended Complaint (SAC) on 7/14/2021. The SAC alleged ten causes of action. Defendants filed a special motion to strike (anti-SLAPP motion) against the ninth cause of action for Harassment/Retaliation and the tenth cause of action for Conspiracy to Commit Abuse of Process and Actual Abuse of Process.

In September 2021, this Court denied the anti-SLAPP motion as to the ninth cause of action, but granted the motion as to the tenth cause of action and struck the tenth cause of action.

Defendants filed an appeal to the Second Appellate District of the Court of Appeal.

The court of appeal noted that this Court’s ruling on the tenth cause of action was correct and that this Court’s ruling on the tenth cause of action was not challenged on appeal. (Remittitur, p.6.)

As to the ninth cause of action, the court of appeal explained the two-step process involved in analyzing an anti-SLAPP motion. As to the first step – whether the ninth cause of action was protected activity under the anti-SLAPP statute – the court of appeal disagreed with this Court and found that the ninth cause of action arose from protected activity.

The court of appeal explained that this Court should have proceeded to the second step of the anti-SLAPP analysis and determined whether Plaintiff established a probability of prevailing on the merits of the ninth cause of action. (Remittitur, p. 11.) Therefore the court of appeal remanded so that this Court may consider and resolve that question, which the court of appeal explicitly stated, “[O]ne on which we now express no view.” (Remittitur, p. 11.)

The court of appeal ruled:

The order granting in part and denying in part defendant’s special motion to strike is vacated. The cause is remanded with directions to enter a new and different order that maintains the court’s ruling granting the special motion to strike the tenth cause of action and that, consistent with the views expressed in this opinion, rules on whether the ninth cause of action must also be stricken. Defendant is awarded costs on appeal.

(Remittitur, p. 12.)

What This Motion Seeks
It is not entirely clear what this motion seeks. It is clear that this motion seeks attorney’s fees. It appears, based on reading the entire motion, that Defendants are seeking attorney’s fees for work performed pertaining to the anti-SLAPP motion at the trial court level, attorney’s fees for work performed pertaining to the anti-SLAPP at the court of appeal level, and costs incurred from filing the appeal.

“A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” (CRC, rule 3.110(a).)

Here, the only thing Defendants state in the opening paragraph of their notice of motion is, “PLEASE TAKE NOTICE THAT on July 5, 2024, 2024 at 8:30am or as soon thereafter as the Motion may be heard, in Department E of the above-captioned Court located at 600 E. Broadway, Glendale, California 91206. Defendants Govind Vaghashia and Sonal Vaghashia (collectively, the “Govind Parties”) will and hereby do move the Court for an Order re Motion for Attorney Fees.” (Mot. p. ii.)

This Court notes that the notice of motion does not include how much in attorney’s fees the Defendants are seeking. Further, this Court notes that the notice of motion does not indicate that Defendants are seeking costs on appeal, as their separately filed memorandum of costs seems to indicate.

The only time the motion indicates how much Defendants are seeking is located in the last paragraph of the motion: “Based on the above foregoing reasons, it is respectfully requested that this court award the Govind parties a prevailing party fee of $234,664.30 and increase the amount based on the Loadstar Fee Adjustment.” (Mot. p. 19.)

Fees From Trial Court Work/Should This Motion Be Continued
As stated in CCP § 425.16(c)(1):

Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.

(CCP § 425.16(c)(1).)

Defendants seem to be arguing that they are entitled to attorney’s fees as the “prevailing party” on the special motion to strike. While the Court agrees that 425.16(c)(1) allows for the prevailing party to recover attorney’s fees and costs, Defendants’ moving papers fail to address several key issues, and at times misrepresent facts of this case.

For example, Defendants state, “The Govind parties are the prevailing parties on both Ninth Cause of action for Harassment and filing false police report and the Tenth Cause of Action for Abuse of Legal Process.” (Mot. p. 10.)

However, the Court fails to understand how Defendants are the prevailing party as to the ninth cause of action.

Presumably, Defendants are arguing that they are the prevailing party as to the tenth cause of action because this Court granted Defendants’ motion to strike as to the tenth cause of action.

However, as to the ninth cause of action, the court of appeal directed this Court to proceed to the second step of the anti-SLAPP analysis to determine whether Plaintiff established a probability of prevailing on the merits of the ninth cause of action.

Therefore, the Court is not entirely clear how Defendants are arguing that they were the prevailing party as to the ninth cause of action at the trial court level on the anti-SLAPP motion. This Court has yet to rule on the ninth cause of action.

Defendants argue that the term “prevailing party” in the anti-SLAPP statute must be interpreted broadly to favor an award of attorney fees to a partially successful defendant such as Defendants here. Defendants cite to City of Colton v. Singletary (2012) 142 Cal.App.4th 751 to support their argument, but Defendants don’t cite a page number to support their argument.

Upon the Court’s perusal of City of Colton, the Court found:

‘[A] party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of [the] trial court.’ [Citation.]” (Lin v. City of Pleasanton (2009) 176 Cal.App.4th 408, 425–426, 96 Cal.Rptr.3d 730.)

(City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 782.)

Despite Defendants previously arguing that they were the prevailing party as to both the ninth and tenth causes of action, Defendants then argue that even if they only partially prevailed, they must be considered the prevailing party for purposes of an attorney’s fee award based on City of Colton.

Defendants seem to be confused, because they are citing City of Colton in context inapplicable to the context here. City of Colton dealt with a partially prevailing party in the sense that the party succeeded on some causes of action in the anti-SLAPP motion and didn’t succeed on other causes of action on the anti-SLAPP.

However, that is not what this Court is dealing with here. This Court has not yet ruled on the ninth cause of action from when it was remanded back from the court of appeal. Therefore, it has not yet been decided whether Defendants succeeded on their anti-SLAPP motion with respect to the ninth cause of action.

Therefore, the Court will hear argument as to if this motion should be continued, or if Defendants want this motion heard, despite the fact that there has been no ruling on the ninth cause of action.

Attorney’s Fees and Costs on Appeal
It is not entirely clear as to the legal authority in which Defendants believe they can seek attorney’s fees on appeal.

For example, Defendants “Preliminary Statement” in their Notice states:

This motion is based on California Rules of Court 8.278 (d)(2) which states as follows; Rules of Court 8.278 (c)(1)- Within 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700 and Rules of Court 8.278 (d)(2) (2)- Unless the court orders otherwise, an award of costs neither includes attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702.

California Rules of Court 3.1702. Rule 3.1702 (c) Attorney's fees on appeal(1) - A notice of motion to claim attorney's fees on appeal -other than the attorney's fees on appeal claimed under (b) under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1) in an unlimited civil case or under rule 8.891(c)(1) in a limited civil case.

(Mot. p. iii-iv.)

Despite citing the various California Rules of Court above, Defendants’ motion does not address these rules, nor does it apply the facts to the rules and explain why they are applicable or how certain requirements have been met. Also, when Defendants state above that “…8.278(d)(2) which states as follows;..” the Court notes that 8.278(d)(2) did not state what Defendants alleged it to state.

Defendants should be prepared to discuss the California Rules of Court that they cited on pages iii-iv and why or how they are applicable.

It is also unclear if Defendants are seeking attorney’s fees for their appellate work based on the court of appeal stating, “Defendant is awarded costs on appeal.” (Remittitur, p. 12.)

As noted in Mann v. Quality Old Time Service, Inc.:

A “prevailing party” with respect to an appellate cost award is not necessarily the same as a “prevailing party” under the anti-SLAPP statute. (Compare § 425.16, subd. (c) with Cal. Rules of Court, rule 27.) Moreover, although a prevailing party is generally entitled to costs on appeal, appellate courts have the discretion to deviate from the general “prevailing party” rule in “the interests of justice,” and make any award or apportionment of costs that it determines is appropriate. (Cal. Rules of Court, rule 27(a)(4); see Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2004) ¶ 14:61, p. 14–12; see Dobbins v. Hardister (1966) 242 Cal.App.2d 787, 798, 51 Cal.Rptr. 866; Stuckey v. Stuckey (1964) 231 Cal.App.2d 382, 387, 41 Cal.Rptr. 792.) Because the Mann decision was silent on the reason for the cost award, the trial court erred in inferring the award reflected a determination that defendants were the prevailing parties for purposes of the anti-SLAPP proceedings.

(Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 341.)

While it is unclear to the Court as to what Defendants are arguing allows them to recover attorney’s fees for the work on appeal, the Court notes the following:

The trial court's authority to award fees and costs under section 425.16, subdivision (c), includes authority to award fees incurred in responding to an appeal of an order granting or denying a special motion to strike, or of an order awarding **845 attorney fees in connection with such motion. (See Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448, 121 Cal.Rptr.2d 275.) “A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise. [Citations.]” (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499, 45 Cal.Rptr.2d 624.) Section 425.16, subdivision (c), does not preclude recovery of appellate attorney fees; hence attorney fees recoverable under the statute include appellate fees. (Ibid.; see also Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785, 54 Cal.Rptr.2d 830.)

(Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461.)

The Court will hear argument as to if, or what, Defendants are seeking based on the appeal.

If The Court Hears This Motion
As explained in Mann v. Quality Time Service, Inc.:

The California Supreme Court has upheld the lodestar method for determining the appropriate amount of attorney fees for a prevailing defendant on an anti-SLAPP motion. (Ketchum, supra, 24 Cal.4th at p. 1136, 104 Cal.Rptr.2d 377, 17 P.3d 735.) Under this method, a court assesses attorney fees by first determining the time spent and the reasonable hourly compensation of each attorney. (Id. at pp. 1131–1132, 104 Cal.Rptr.2d 377, 17 P.3d 735.) The court next determines whether that lodestar figure should be adjusted based on various relevant factors (id. at p. 1132, 104 Cal.Rptr.2d 377, 17 P.3d 735), including a plaintiff's limited success in the litigation (Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 249, 261 Cal.Rptr. 520; Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 973–975, 259 Cal.Rptr. 599; see also Feminist Women's Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1674, 39 Cal.Rptr.2d 189). In determining the lodestar amount, a prevailing party generally may not recover for work on causes of action on which the party was unsuccessful. (See ComputerXpress, supra, 93 Cal.App.4th at p. 1020, 113 Cal.Rptr.2d 625.)

 (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 342.)

Further, as explained in City of Colton v. Singletary:

“As the moving party, the prevailing defendant seeking fees and costs ‘ “bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” [Citation.] To that end, the court may require [a] defendant[ ] to produce records sufficient to provide “ ‘a proper basis for determining how much time was spent on particular claims.’ ” [Citation.] The court also may properly reduce compensation on account of any failure to maintain appropriate time records. [Citation.]' [Citation.] The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended. [Citation.]” (Christian Research, supra, 165 Cal.App.4th at p. 1320, 81 Cal.Rptr.3d 866.)

“Although a fee request ordinarily should be documented in great detail, it cannot be said ... that the absence of time records and billing statements deprive[s] [a] trial court of substantial evidence to support an award....” (Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587, 46 Cal.Rptr.2d 677.) “[T]he verified time statements of [an] attorney [ ], as [an] officer[ ] of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396, 33 Cal.Rptr.3d 644 (Horsford ).)

(City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784-785.)

Costs
The motion and Lal declaration does not state how much in costs that Defendants are seeking. The motion simply states that Defendants are seeking a fee of $234,664.30.

Defendants’ motion does not address their memorandum of costs or explain how much in costs Defendants are seeking.

The Court will hear argument