Judge: Carolyn M. Caietti, Case: 37-2022-00052021-CU-BC-CTL, Date: 2024-05-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 30, 2024

05/31/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00052021-CU-BC-CTL LAVILLOTTI VS DONALD R HOLBEN & ASSOCIATES APC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Douglas Pettit's Motion for Attorney Fees and Costs Pursuant to C.C.P. Section 425.16(c) is GRANTED.

Background This is a professional negligence, breach of fiduciary duty, breach of contract and fraud case against several attorneys, including the moving party, Douglas Pettit, who allegedly represented Plaintiff in an underlying employment matter. On July 12, 2023, Defendant Pettit filed a special motion to strike under C.C.P. section 425.16 seeking to dismiss the entire case against him and for 'an award of attorney's fees and costs incurred in bringing this motion against Lavillotti, as mandated by Code of Civil Procedure § 425.16(c), with the amount of such award to be determined by a separate noticed motion.' (ROA 24 – Notice of Special Motion to Strike, at p. 2:12-14; see also, ROA 25-26.) Before the Court heard the special motion to strike, Plaintiff voluntarily dismissed Pettit from the lawsuit. (ROA 30.) Preliminary Matters Plaintiff's objections to the Declaration of Andrew Waxler are overruled.

The Court reviewed but did not consider Plaintiff's unpermitted sur-reply in ruling on this motion. (ROA 119; C.C.P., § 1005.) Discussion A 'prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.' (C.C.P., § 425.16(c)(1).) If a plaintiff voluntarily dismisses an action after a defendant filed an anti-SLAPP motion, a defendant may recover their attorney fees and costs if the defendant shows they would have prevailed on the merits of the anti-SLAPP motion. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1456-1457.) Pettit Would Have Prevailed on the Anti-SLAPP Motion A special motion to strike involves a two-step process. (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1161.) First, the defendant must establish that the challenged claim arises from activity protected by C.C.P. section 425.16. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) Second, if the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a Calendar No.: Event ID:  TENTATIVE RULINGS

3050986  36 CASE NUMBER: CASE TITLE:  LAVILLOTTI VS DONALD R HOLBEN & ASSOCIATES APC [IMAGED]  37-2022-00052021-CU-BC-CTL probability of success. (Ibid.) First Step A claim is subject to an anti-SLAPP motion if the claim arises from the defendant's act in furtherance of the defendant's federal or state constitutional right of petition or free speech in connection with a public issue and the plaintiff has not established a probability of prevailing on the claim. (C.C.P. § 425.16(b)(1).) C.C.P. section 425.16(e) defines four categories of acts in furtherance of a person's right of petition or free speech in connection with a public issue. Two such categories include: 'any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law' and 'any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.' (C.C.P., § 425.16(e)(1)-(2).) Here, the alleged conduct against Pettit involved his purported representation of a client in connection with anticipated litigation. 'Numerous cases have held that the SLAPP statute protects lawyers sued for litigation-related speech and activity.' (Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 154, citing Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) 'Put otherwise, legal advice and settlement made in connection with litigation are within section 425.16, and may protect defendant attorneys from suits brought by third parties on any legal theory or cause of action 'arising from' those protected activities.' (Ibid.; see also, Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 210 ['Under the plain language of section 425.16, subdivisions (e)(1) and (2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute...'].) Here, the acts alleged arise from Pettit's purported representation of Plaintiff in the underlying case.

(FAC, at ¶¶ 18 [Pettit provided various legal services to Plaintiff], 110 [Pettit charged Plaintiff attorney fees], 111 [communications and advice received from Pettit], 112, 120-121 [Defendants failed to provide adequate advice],125-126 [Defendants failed to properly communicate and advise Plaintiff, inter alia], 130-133 [Defendants breached the retainer agreement by failing to take certain litigation actions and to advice Plaintiff, inter alia], 136-142.) Advice attorneys communicate to their clients in connection with a lawsuit is protected activity under the statute. (Contreras v. Dowling (2016) 5 Cal.App.5th 394, 409.) Thus, Pettit would have satisfied the first step of the analysis, shifting the burden to Plaintiff on the second step.

Second Step The second step is a 'summary-judgment-like procedure.' (Baral, supra, 1 Cal.5th at p. 384.) The burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. (Ibid.) The court does not weigh evidence or resolve conflicting factual claims. (Ibid.) Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. (Id. at p. 384-85.) The court accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. (Id. at p. 385.) Claims with the requisite 'minimal merit' may proceed. (Ibid.) Here, Plaintiff would not have established a probability she would prevail on the claims against Pettit.

Factually, there is no evidence Pettit represented Plaintiff or that he was an attorney at Holben's law firm. Pettit never spoke or communicated with Plaintiff. He did not bill Plaintiff for any services and Plaintiff did not pay Pettit for any of his time/service. (ROA 25 – Declaration of Douglas Pettit, at ¶¶ 2-3, 7.) There was no attorney-client relationship between Plaintiff and Pettit and thus no duty owed to Plaintiff by Pettit. Plaintiff argues there was an 'implied attorney-client relationship' because her counsel, Defendant Holben, spoke with Pettit and charged her for Holben's time. No legal authority and analysis Calendar No.: Event ID:  TENTATIVE RULINGS

3050986  36 CASE NUMBER: CASE TITLE:  LAVILLOTTI VS DONALD R HOLBEN & ASSOCIATES APC [IMAGED]  37-2022-00052021-CU-BC-CTL is provided.

As for the breach of contract cause of action, Plaintiff would not have been able to show minimal merit that she entered into an agreement with Pettit. The FAC is based on a fee agreement between Plaintiff and Holben & Associates, APC. (FAC, at ¶¶ 130-134.) As for the fraud cause of action, there are no facts alleged or evidence supporting that Pettit made any representations to Plaintiff constitute fraud.

Plaintiff also does not contest her claims against Pettit would be barred by the litigation privilege codified in Civil Code section 47(b).

Thus, Plaintiff would not have met her burden on the second step.

Accordingly, Pettit would have prevailed on the special motion to strike and he is entitled to attorney fees and costs.

The Amount of Attorney Fees and Costs Sought is Reasonable The next question is the amount of fees to award, which requires a lodestar calculation. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432 (569 East County).) First, with regard to Pettit's counsel's hourly rates, after considering the Court's own knowledge and familiarity with the legal market, the experience, skill and reputation of the attorney requesting fees and the difficulty or complexity of the litigation (id., at p. 436-37), Pettit's counsel's discounted hourly rates are reasonable [Attorney Waxler - 40 years/$650 rate; Attorney Lupton - 18 years/$500 rate; Attorney Lescaille - 7 years/$400 rate].

Second, as to the number of hours reasonably worked, trial courts are not bound to accept the evidence submitted by counsel when making its determination and may reduce the hours if it concludes the attorneys performed work unrelated to the anti-SLAPP motion, or represented work that was unnecessary or duplicative or excessive in light of the issues fairly presented. (569 East County, at p. 440.) 'When a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether.' (Ibid.) 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. (Premier Medical Management Systems, Inc. v. Cal. Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [award of attorney fees for 345 hours spent on joint anti-SLAPP motion for two defendants was not unreasonably excessive].) General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. (Ibid.) Here, Plaintiff did not point to any specific hours or services charged that are excessive, duplicative or unrelated to the motion. Notwithstanding, the Court reviewed the billing and finds the hours worked reasonable [Attorney Waxler – 8.8 hours; Attorney Lupton – 16.8 hours; Attorney Lescaille – 11.3 hours]. Pettit is also entitled to fees incurred on this motion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141.) The Court will award the full amount of fees sought, including $18,640 in fees to prepare the special motion to strike and this motion; and $854.99 in costs, for a grand total of $19,494.99.

For these reasons, the motion is GRANTED.

In light of this ruling, Plaintiff's opposition request for sanctions is DENIED.

Concluding Orders Plaintiff Kaylan Lavillotti is ordered to pay (Dismissed) Defendant Douglas Pettit attorney fees and costs in the total amount of $19,494.99.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

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3050986  36 CASE NUMBER: CASE TITLE:  LAVILLOTTI VS DONALD R HOLBEN & ASSOCIATES APC [IMAGED]  37-2022-00052021-CU-BC-CTL (Dismissed) Defendant Pettit is ordered to serve written notice of the Court's final ruling on all appearing parties by June 4, 2024.

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