Judge: Curtis A. Kin, Case: 21STCV38713, Date: 2022-09-20 Tentative Ruling
Case Number: 21STCV38713 Hearing Date: September 20, 2022 Dept: 72
MOTION FOR ATTORNEY FEES
AFTER ANTI-SLAPP MOTION
Date: 9/20/22 (8:30
AM)
Case: Divine Food & Catering v. Western Diocese of
the Armenian Church (21STCV38713)
Defendants Diocese of the Armenian Church of North America;
St. John Armenian Apostolic Church Hollywood, California; Manoug Markarian; and
Harout Markarian’s Motion for an Award of Their Reasonable Attorney Fees and
Costs After Dismissal against Plaintiff under Code of Civil Procedure 425.16(c)
is GRANTED IN PART.
Defendants’ request for judicial notice is GRANTED as to
Exhibit 1, the Notice of Entry of Dismissal in the instant action, pursuant to
Evidence Code § 452(d). Defendants’ request for judicial notice is GRANTED as
to Exhibit 2, the Memorandum of Costs filed in the instant action, but only for
the existence of the document, not the truth of the matters asserted therein. (See
Evid. Code § 452 (d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548,
1564-69.)
Defendants’ request for judicial notice with respect to
Exhibits 3 through 9 and plaintiff Divine Food and Catering, LLC’s requests for
judicial notice with respect to Exhibits 1 through 4 are DENIED, as orders awarding
attorney fees in other actions are irrelevant to the resolution of the issues
before the Court. (Mangini v. R.J. Reynolds Tobacco
Co. (1994) 7 Cal.4th 1057, 1063.)
On April 18, 2021, the Court
granted defendants Diocese of the Armenian Church of North America; St. John
Armenian Apostolic Church Hollywood, California; Manoug Markarian; and Harout
Markarian’s Special Motion to Strike the Complaint. Accordingly, the Court finds
that defendants are entitled to recover the fees and costs incurred in moving
to strike the Complaint, pursuant to CCP § 425.16(c)(1).
Defendants seek an award of $114,762.30,
comprised of $112,802.50 in attorney fees and $1,959.80 in costs.
Absent any direct opposition
to the hourly rates charged by counsel, the Court finds that the hourly rates
of defense counsel ranging between $350 and $875 are reasonable. (Chamberlain
Decl. ¶¶ 3-8, 26 & Ex. A; Beligan Decl. ¶¶ 4-8; Opp. at 1:28 [“Divine does
not object to the $601.93 average rate for purposes of this motion only”].)
Further, the Court has reviewed the
billing invoices submitted by defendants in support of their request. The Court finds reasonable the request for
attorney fees based on the submitted billing invoices with the exception of
certain entries for matters unrelated to the anti-SLAPP motion (e.g.,
address the Notice of Related case), discussed below. (569 East County Boulevard LLC v.
Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433 [“A fee
award under the anti-SLAPP statute may not include matters unrelated to the
anti-SLAPP motion, such as ‘attacking service of process, preparing and
revising an answer to the complaint, [or] summary judgment research.’
[Citation.]”].) The Court also finds the
hours expended overstated in certain instances in light of the nature of the
task described and the expertise the Court expects from an attorney commanding
such a relatively high billing rate.
Accordingly, because certain billing entries were either unrelated to
the anti-SLAPP motion or excessive, the Court reduces the requested fees set
forth in the billing entries as follows:
Jerusalem F. Beligan - $18,900 in reductions
·
On 11/5/21, Beligan billed 0.1 hours for
reviewing the notice of related case filed by plaintiff. This was unrelated to
the anti-SLAPP motion. This billing entry is reduced by 0.1 hours, or $75.00.
·
On 11/8/21, Beligan billed 0.6 hours for
drafting defendants’ objection to the notice of related case. This was
unrelated to the anti-SLAPP motion. This billing entry is reduced by 0.6 hours,
or $450.00.
·
On 11/11/21, Beligan billed 0.1 hours for
reviewing plaintiff’s response to defendants’ objection to the notice of
related case. This was unrelated to the anti-SLAPP motion. This billing entry
is reduced by 0.1 hours, or $75.00.
·
On 11/15/21, Beligan billed 0.6 hours for
researching affirmative defenses to assert in the Answer. This would have
occurred even if defendants did not file an anti-SLAPP motion. This billing
entry is reduced by 0.6 hours, or $450.00.
·
On 11/22/21, Beligan billed 0.8 hours for
drafting the Answer. This would have occurred even if defendants did not file
an anti-SLAPP motion. This billing entry is reduced by 0.8 hours, or $600.00.
·
On 12/1/21, 12/3/21, and 12/6/21, Beligan billed
a total of 12 hours for reviewing and analyzing three days of trial transcripts
in the underlying unlawful detainer case. The trial transcript for January 18,
2019 was 188 pages. (Beligan Decl. filed 12/27/21 in Support of Anti-SLAPP
Motion Ex. B.) The trial transcript for January 22, 2019 was 220 pages.
(Beligan Decl. filed 12/27/21 in Support of Anti-SLAPP Motion Ex. B.) The trial
transcript for January 28, 2019 was 140 pages. (Beligan Decl. filed 12/27/21 in
Support of Anti-SLAPP Motion Ex. B.) Based on the page lengths of the trial
transcripts, Beligan’s billing for review and analysis of the trial transcripts
are excessive. These billing entries are reduced by 5 hours, or $3,750.00.
·
On 12/9/21 and 12/10/21, Beligan billed a total
of 13.5 hours for conducting research for an anti-SLAPP motion. Considering the
experience inherently reflected in a $750.00 hourly rate and the malicious
prosecution forming the basis of the entire Complaint, this is excessive. These
billing entries are reduced by 8.5 hours, or $6,375.00.
·
On 12/13/21, 12/14/21, and 12/15/21, and
12/27/21, Beligan billed a total of 19.0 hours for drafting the anti-SLAPP
motion. Considering the experience inherently reflected in a $750.00 hourly
rate, the malicious prosecution forming the basis of the entire Complaint,
prior legal research, and the prior review of the transcripts and appellate opinion
in the underlying unlawful detainer action, for which Beligan billed a total of
12.2 hours from 12/1/21 to 12/7/21, the billing entries for drafting the
anti-SLAPP motion are excessive. These billing entries are reduced by 9.5
hours, or $7,125.00.
Shant Karnikian - $1,365 in reductions
·
On 11/5/21, Karnikian billed 0.5 hours for
reviewing plaintiff’s notice of related case and drafting a suggested response.
Karnikian also billed for researching whether the filing of an objection to the
notice of related case impacts the anti-SLAPP motion. For reviewing and
drafting an objection to the notice of related case, which was not related to
the anti-SLAPP motion, this billing entry is reduced by 0.3 hours, or $195.00.
·
On 11/22/21, Karnikian billed 0.3 hours for
reviewing a draft of the Answer and sharing research on the Answer’s
implications on the pending anti-SLAPP motion. For reviewing the Answer, which
would have been done even if defendants did not file an anti-SLAPP motion, this
billing entry is reduced by 0.2 hours, or $130.00.
·
On 12/8/21, Karnikian billed 0.3 hours for
finding and sending the section in the Rutter Guide pertaining to anti-SLAPP
motions and sample motions. This is excessive. This billing entry is reduced by
0.1 hours, or $65.00.
·
On 12/23/21, Karnikian billed 3 hours for
reviewing a draft of the anti-SLAPP motion. Considering that Kabateck also
reviewed the draft, at least some of Karnikian’s review is duplicative or is
otherwise excessive. This billing entry is reduced by 1.5 hours, or $975.00.
Talitha S. Galstyan - $175 in reductions
·
On 12/20/21, Galstyan billed 1.0 hour for
reviewing the draft of the anti-SLAPP motion. Considering that Kabateck and
Karnikian also reviewed the draft, at least some of Galstyan’s review is
duplicative or is otherwise excessive. This billing entry is reduced by 0.5
hours, or $175.00 based on Galstyan’s hourly rate of $350.00.
Harry W.R. Chamberlain II - $16,074 in reductions
·
On 1/26/22, Chamberlain billed 4.6 hours for
reviewing the Complaint and anti-SLAPP motion, as well as consulting with
Muse-Fisher. Some of this work is duplicative and excessive, as the attorneys
of Kabateck LLP already reviewed the Complaint and prepared the motion. This
billing entry is reduced by 2.1 hours, or $1,197.00 based on
Chamberlain’s hourly rate of $570.00.
·
On 2/9/22, Chamberlain billed 6.9 hours for
reviewing the opposition and consulting with co-counsel. Based on counsel’s
extensive knowledge of anti-SLAPP law (Chamberlain Decl. ¶¶ 7, 8), this is
excessive. This billing entry is reduced by 2.9 hours, or $1,653.00.
·
On 2/15/22 and 2/16/22, Chamberlain billed a
total of 12.9 hours for reviewing and revising the reply. For a ten-page reply,
this is excessive. These billing entries are reduced by 6.9 hours, or $3,933.00.
·
On 2/23/22, Chamberlain billed 3.5 hours for
reviewing the papers associated with the anti-SLAPP hearing in preparation for
the hearing. Based on Chamberlain’s prior review of the papers, this is
excessive. This billing entry is reduced by 1.5 hours, or $855.00.
·
On 4/21/22, 4/28/22, 4/29/22, 5/2/22, and
5/3/22, Chamberlain billed a total of 18.7 hours for drafting the motion for
attorney fees and supporting declaration. These billing entries are excessive
because this is a routine motion. These billing entries are reduced by 13.7
hours, or $7,809.00.
·
On 4/22/22, Chamberlain billed 1.6 hours for
revising and updating the proposed order dismissing the instant action. This is
excessive because the order tracks the Court’s ruling on the anti-SLAPP motion.
This billing entry is reduced by 1.1 hours, or $627.00.
Michael Muse-Fisher - $7,056 in reductions
·
On 2/3/22 and 2/8/22, Muse-Fisher billed a total
of 7 hours for reviewing the Complaint and case law for this matter, as well as
consulting with co-counsel and identifying issues with the allegations. Some of
this work is duplicative and excessive, as the attorneys of Kabateck LLP
already reviewed the Complaint and prepared the motion. This billing entry is
reduced by 3 hours, or $1,440.00 based on Muse-Fisher’s hourly rate of
$480.00.
·
On 2/20/22, Muse-Fisher billed 0.6 hours for
reviewing the notice of related case. This is unrelated to the anti-SLAPP
motion. This billing entry is reduced by 0.6 hours, or $288.00.
·
On 2/13/22, 2/14/22, and 2/15/22, Muse-Fisher
billed a total of 14.2 hours for working on the reply, including research,
outlining, and drafting. For a ten-page reply, this is excessive. This billing
entry is reduced by 7.2 hours, or $3,456.00.
·
On 2/22/22, Muse-Fisher billed 2.9 hours for
review of the sur-reply filed by plaintiff. As noted by the Court in the ruling
on the anti-SLAPP, defendants’ argument regarding the interim judgment rule was
a new argument posed in reply. (4/18/22 Minute Order at 4-5.) This argument
should have been raised in the motion. Accordingly, defendants’ review of the
sur-reply should not have been necessary. This billing entry is reduced by 2.9
hours, or $1.392.00.
·
On 4/21/22, Muse-Fisher billed 1.5 hours for
revising and updating the proposed order dismissing the instant action. This is
excessive because the order tracks the Court’s ruling on the anti-SLAPP motion.
This billing entry is reduced by 1.0 hours, or $480.00.
Mancy Pendergrass - $2,079 in reductions
·
On 2/14/22 and 2/15/22, Pendergrass billed a
total of 7.2 hours for drafting evidentiary objections. While the Court
overruled the objections, defendants were entitled to assert the objections. (Greene
v. Dillingham Construction, N.A., Inc. (2002) 101 Cal.App.4th 418, 424,
quoting Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 250 [“Attorneys
generally must pursue all available legal avenues and theories in pursuit of
their clients' objectives; it is impossible, as a practical matter, for an
attorney to know in advance whether or not his or her work on a potentially
meritorious legal theory will ultimately prevail.”].) However, the billing
entries are excessive because the objections were routine. These billing
entries are reduced by 4.2 hours, or $2,079.00 based on Pendergrass’
hourly rate of $495.00.
For the foregoing reasons,
defendants’ request for attorney fees for the anti-SLAPP motion in the amount
of $112,802.50 is reduced by $45,649 to $67,153.50.
All other billing entries are reasonable. Considering the
success of the motion, some amount of duplicative work performed between
Kabateck LLP and Buchalter, PC was reasonable.
In any event, the billing entries largely reflect that the attorneys of
Kabateck LLP handled the motion initially, while Buchalter handled review of
the opposition, preparation of the reply, and preparation of the instant fee
motion. The Court also finds reasonable the 10 hours defendants seek for work
performed in connection with reviewing the opposition and preparing the reply
for the instsant motion. While the reply was routine, defense counsel notes
that they spent 16 hours opposing plaintiff’s motion for stay of proceedings
pending resolution of the appeal on the anti-SLAPP motion, which was denied by
the Court on August 18, 2022. (Muse-Fisher Decl. ¶ 17.) Had the Court granted
the motion for stay, the Court would not be ruling on the instant motion.
Accordingly, defendants’ work opposing the motion for stay is related to the anti-SLAPP
motion. Defendants’ request for 10 hours adequately reflects the work on the
motion for attorney fees and opposing plaintiff’s motion for stay.
Lastly, the Court also finds that defendants’ unopposed
request for $1,959.80 in costs is reasonable.
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 total and reasonable amount of attorney fees and costs incurred for the work performed in connection with the Special Motion to Strike is $69,113.30 ($67,153.50 anti-SLAPP motion and fee motion + $1,959.80 costs). Such fees and costs are awarded to defendants Diocese of the Armenian Church of North America; St. John Armenian Apostolic Church Hollywood, California; Manoug Markarian; and Harout Markarian against plaintiff Divine Food and Catering, LLC.