Judge: Daniel M. Crowley, Case: 22STCV10768, Date: 2023-10-04 Tentative Ruling

Case Number: 22STCV10768    Hearing Date: October 4, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Cross-Complainants Ari Resnik’s and R.O.A.R. Management Company, Inc.’s motion for attorneys’ fees against Cross-Defendants Healthcare Management Associates, Inc., Mary Aviles a.k.a. Mari Aviles, Ismael Silva, Jr., M.D., Ismael Geli Silva, James Aviles, Starbase, Inc., American Financial Investment Services, Inc., National Intra-Operative Monitoring, Inc., and Orangewood Surgical Center, LLC, is denied.

Cross-Complainants Ari Resnik (“Resnik”) and R.O.A.R. Management Company, Inc. (“ROAR”) (collectively, “Cross-Complainants”) move for attorneys’ fees and costs incurred in connection with Cross-Defendants Healthcare Management Associates, Inc.’s (“HMA”), Mary Aviles a.k.a. Mari Aviles’ (“Mary”), Ismael Silva, Jr., M.D.’s (“Silva MD”), Ismael Geli Silva’s (“Geli Silva”), James Aviles’ (“James”), Starbase, Inc.’s (“Starbase”), American Financial Investment Services, Inc.’s (“AFI”), National Intra-Operative Monitoring, Inc.’s (“NIOM”), and Orangewood Surgical Center, LLC’s (“Orangewood”) (collectively, “Cross-Defendants”) anti-SLAPP motion and joinder to anti-SLAPP motion (collectively, “Anti-SLAPP Motion”) for attorneys’ fees and costs in the amount of $154,042, and attorneys fees and costs on the instant motion of $33,145.00, with a final amount to be provided at the conclusion of briefing on the motion.  (Notice of Motion, pg. 2; C.C.P. §425.16(c).)

Background

Plaintiff/Moving Cross-Defendant HMA filed its complaint on March 29, 2022, individually and derivatively on behalf of Healthcare Financial Solutions, LLC (“HFS”), against Defendants ROAR, Resnik, and Non-Moving Defendant 11 Funding, LLC (“11 Funding”) (collectively, “Defendants”).   Cross-Complainants filed their original cross-complaint (“XC”) on May 16, 2022, alleging four causes of action against Cross-Defendants HMA, Mary, and HFS. Cross-Complainants filed the operative first amended cross-complaint (“FAXC”) on February 15, 2023, against Cross-Defendants filed their Anti-SLAPP Motion on April 13, 2023, and the joinder on May 9, 2023.  Cross-Complainants filed their opposition May 18, 2023.  Cross-Defendants filed their replies on May 23, 2023.

On June 5, 2023, this Court denied Cross-Defendants’ Anti-SLAPP motion to strike portions of Cross-Complainants’ FAXC.

On August 4, 2023, Cross-Complainants filed the instant motion for attorneys’ fees.  On September 18, 2023, HMA, Mary, NIOM, and Orangewood filed their opposition.  On September 18, 2023, Silva MD, Geli Silva, James, Starbase, AFI, filed their opposition.  Cross-Complainants filed their reply on September 25, 2023.

Discussion

C.C.P. §425.16(c)(1) provides, in part, “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.”  “Section 128.5 . . . (b)(2) defines ‘frivolous’ as ‘(a) totally and completely without merit or (b) for the sole purpose of harassing an opposing party.’”  (Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 683, quoting C.C.P. §128.5.) 

“A motion is [frivolous] only if any reasonable attorney would agree that the motion is totally devoid of merit. This is an objective standard.”  (Id. at pgs. 683-684, citing Moore v. Shaw (2004) 116 Cal.App.4th 182, 199.)  “When a motion has partial merit, it is not ‘totally and completely’ without merit, nor can it be said that its ‘sole’ purpose is to harass.”  (Gerbosi v. Gaims, Weil, W. & Epstein, LLP (2011) 193 Cal.App.4th 435, 450.)   Further, if “reasonable attorneys could have disagreed as to [the motion’s] merits…” and/or if there is “developing case law surrounding . . . complex issues presented in the [motion],” a fees request made by a party successfully opposing an anti-SLAPP motion must be denied.  (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 606.)

“Whether the sole purpose of the motion is to harass an opposing party or the motion is solely intended to cause unnecessary delay, in contrast, concerns the subjective motivation of the moving defendant.”  (Chitsazzadeh, 199 Cal.App.4th at pg. 684, citing Wallis v. PHL Associates, Inc. (2008) 168 Cal.App.4th 882, 893; Campbell v. Cal-Gard Surety Services, Inc. (1998) 62 Cal.App.4th 563, 574.)

Here, Cross-Complainant was the prevailing party in the Anti-SLAPP Motion.  (See 6/5/23 Minute Order, pg. 10.)  However, Cross-Defendants’ Anti-SLAPP motion was not frivolous, as a reasonable attorney would not find the motion totally lacking in merit.  This Court considered each parties’ legal positions and found merit to the case law in support of each argument.

Further, Cross-Complainants fail to demonstrate Cross-Defendants’ anti-SLAPP motion was solely intended to cause unnecessary delay by way of failure to provide discovery responses. 

Accordingly, Cross-Complainants’ motion for attorneys’ fees is denied.

Moving Party to give notice.

Dated:  October _____, 2023