Judge: Curtis A. Kin, Case: 20STCV18681, Date: 2022-10-06 Tentative Ruling

Case Number: 20STCV18681    Hearing Date: October 6, 2022    Dept: 72

MOTION FOR ATTORNEY FEES

AS PREVAILING PARTY ON APPEAL

Date:               10/6/22 (9:30 AM)

Case:               Richard Pech v. Afshin Moghavem et al. (20STCV18681)

TENTATIVE RULING:

Defendants Stephen M. Doniger and Scott Alan Burroughs’ Motion for Attorney Fees as Prevailing Party on Appeal is GRANTED IN PART.

Defendants Stephen M. Doniger and Scott Alan Burroughs move for an award of attorney fees in the amount of $43,640.00 and costs in the amount of $412.20 after prevailing on appeal.

As a preliminary matter, based on the hearing date of October 6, 2022, the deadline to serve and file the opposition was September 22, 2022. (CCP § 1005(b) [opposition deadline is nine court days before hearing date – September 23, 2022 was a court holiday].) The opposition was untimely served and filed on September 27, 2022. However, because defendants were able to address the substantive merits of defendant’s opposition, the Court exercises its discretion and considers the opposition. (Rule of Court 3.1300(d) [“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)   

Defendants Stephen M. Doniger and Scott Alan Burroughs seek an award of attorney fees and costs defending against plaintiff Richard Pech’s appeal of the April 26, 2021 order granting in part defendants’ anti-SLAPP motion. In the opinion issued on February 18, 2022, the Court of Appeal awarded defendants and respondents Doniger and Burroughs their costs on appeal. (Blakely Decl. ¶ 9 & Ex. C at 29.) Under CCP § 425.16(c)(1), defendants are entitled to attorney fees that they reasonably incurred in defending against plaintiff’s appeal. (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 446.)

Plaintiff argues that defendants failed to timely file a memorandum of costs. Rule of Court 8.278(c)(1) states: “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.” The remittitur was issued on June 6, 2022. (Blakely Decl. ¶ 9 & Ex. D.) Accordingly, defendants had until July 18, 2022 to file a memorandum of costs. (CCP § 12a(a) [deadlines falling on Saturday extended to next court day].) Defendants have not filed any memorandum of costs. Accordingly, defendants waived any right to claim costs of $412.10. (Blakely Decl. ¶ 13 & Ex. F; see Moulin Electric Corp. v. Roach (1981) 120 Cal.App.3d 1067, 1070.)

However, with respect to defendants’ claim of $43,640 in fees, CCP § 1033.5(c)(5) allows prevailing parties to seek attorney fees pursuant to statute by noticed motion. Rule of Court 3.1702(c)(1) states: “A notice of motion to claim attorney's fees on appeal . . . 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 . . . .” The instant motion was served and filed on July 15, 2022, within 40 days of the date of issuance of the remittitur. Accordingly, plaintiffs are entitled to an award of attorney fees reasonably incurred in defending against plaintiff’s appeal.

Plaintiff argues that, in affirming the trial court’s order granting the anti-SLAPP motion, the Court of Appeal relied on Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130, which the California Supreme Court published on August 3, 2020, after the Complaint was filed on May 15, 2020. In the appeal at issue, Pech v. Doniger (2022) 75 Cal.App.5th 443, 464, the Court of Appeal cited Ixchel for the proposition that for “a claim for interference with contract … based on interference with an at-will attorney fee agreement, the plaintiff must allege that the defendant engaged in an independently wrongful act.” (Pech, 75 Cal.App.5th at 464.) Plaintiff maintains that, because Ixchel was published after the filing of the Complaint, he could not have known of the requirement to allege an independently wrongful act. Plaintiff also argues that neither the order granting the anti-SLAPP motion nor defendants’ responsive brief on appeal cited Ixchel.

Plaintiff’s contention based on Ixchel misses the point.  The order granting the anti-SLAPP motion was not affirmed because plaintiff failed to allege an independently wrongful act. Rather, the Court of Appeal agreed with defendants that “the legal advice provided by Doniger and Burroughs … causing the clients not to file the complaint that Pech drafted and to terminate his services” was protected activity. (Pech, 75 Cal.App.5th at 462.) Defendants made this argument on appeal. (Pech Decl. ¶ 4 & Ex. 2 at 17-22.) Accordingly, defendants reasonably incurred fees in defending against the appeal.

With respect to the reasonableness of the fees, the Court finds—and plaintiff does not dispute—that defense counsel’s hourly rates of $850 and $550 are reasonable. (Blakely Decl. ¶¶ 2-5; Currie Decl. ¶ 2.)  Nor does plaintiff dispute the reasonableness of the number of hours spent.  “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.”(Premier Medical Management. Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 564.) Here, plaintiff does not argue that the fees incurred were excessive, and the Court finds that defendants’ claim of $43,640 in attorney fees to defend against an appeal is reasonable. (Blakely Decl. ¶ 11 & Ex. E.)

The motion is GRANTED IN PART. Using the appropriate lodestar approach and based on the foregoing findings and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney fees incurred for the work performed in connection with the appeal of the April 26, 2021 order granting the anti-SLAPP motion is $43,640. Such fees are awarded to defendants Stephen M. Doniger and Scott Alan Burroughs and against plaintiff Richard Pech.