Judge: Daniel S. Murphy, Case: 20STCV42553, Date: 2023-05-03 Tentative Ruling

Case Number: 20STCV42553    Hearing Date: May 3, 2023    Dept: 32

BACKGROUND

            On May 3, 2021, this Court granted Defendant Barry Tyerman (“Tyerman”) and Defendant Jackoway Austen Tyerman Wertheimer Mandelbaum Morris Bernstein Trattner & Klein’s (“Jackoway’) Special Motion To Strike (Anti-SLAPP) pursuant to Code of Civil Procedure, Section 425.16 (the “Anti-SLAPP Motion”).

            On August 11, 2021, after hearing oral argument, the court granted Defendants’ motion as to four of Plaintiff’s causes of action (interference with contractual relations, unfair competition, intentional infliction of emotional distress and, negligent supervision/retention) and awarded attorney’s fees in the amount of $49,000 and, costs of $1,612.21 for a total of $50, 612.21.

On March 31, 2022, Plaintiffs filed an appeal as to the court’s award of attorney’s fees to

Defendants. on February 24, 2023, the Court of Appeal affirmed the trial court’s decision awarding attorney’s fees in the amount of $50,612.21.

Defendants now seek an award of attorney’s fees incurred in obtaining and defending their fee award.

LEGAL STANDARD

A special motion to strike under CCP section 425.16 — the anti-SLAPP statute — allows a defendant to seek early dismissal of a lawsuit that qualifies as a SLAPP, that is, a strategic lawsuit against public participation.  (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.)  With exceptions not applicable here, a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.  (CCP § 425.16(c).) 

Under the anti-SLAPP statute, a defendant may recover attorney fees and costs incurred in connection with the special motion to strike, not the entire suit.  (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.)  Further, the award of attorney fees and costs must be reasonable.  (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362.)  In determining the amount of the award, courts follow the lodestar method by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.  (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432.)

A prevailing defendant is entitled to “fees on fees”—i.e., “the fees incurred in connection with litigating the fee award itself,” which includes fees incurred on appeal. (See, Frym v. 501 Main Street LLC, (2022) 82 Cal. App. 5th 613, 622 [reversing order denying attorneys’ fees and

remanding for a determination of reasonable attorneys’ fees, including those incurred on appeal];

and Sebago, Inc. v. City of Alameda (1989) 211 Cal. App. 3d 1372, 1388 (1989) [where a party is entitled to its attorneys’ fees in an action in trial court, the party is “necessarily entitled to its

attorneys’ fees for defending against the appeal”.])  As such, Defendants are thus entitled to the reasonable fees they incurred defending the Court’s fee award on appeal.

DISCUSSION

            Defendants Tyerman and Jackoway move pursuant to CCP section 425.16(c) for attorney fees in the amount of $27,200.00.

A. Entitlement to Fees and Costs

The Court of Appeal affirmed the trial court’s decision awarding attorney’s fees to defendants as prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”  (CCP § 425.16(c).  As such, Defendants Tyerman and Jackoway are entitled to fees   incurred in connection with litigating the fee award itself, which includes fees incurred on appeal. (See, Frym v. 501 Main Street LLC, (2022) 82 Cal. App. 5th 613, 622.)

B. Reasonableness of Fees

1. Reasonableness of Hourly Rates

The hourly rates claimed by Defendants Tyerman and Jackoway’s attorneys who worked on the appeal are: (1) Sasha Frid, Esq. $500 per hour;  and (2) Colin Rolf, Esq. $500 per hour.

 “In determining hourly rates, the court must look to the ‘prevailing market rates in the relevant community.’”  (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 100.)  In making this determination, “[t]he court may rely on its own knowledge and familiarity with the legal market.”  (Ibid.) 

The Court finds that $500 per hour is the reasonable hourly rate for this motion.

2. Reasonableness of Number of Hours Billed

The total number of billable hours claimed by Defendants Tyerman and Jackoway’s attorneys on this appeal is 54.4 hours, and an additional 4 hours related to their attorney fee motion.   

            Plaintiffs claim that the number of hours billed by Defendants Tyerman and Jackoway

is unreasonable.    

The Court finds that the reasonable hours spent by Defendants Tyerman and Jackoway’s

attorneys on the appeal and related to their attorney fee motion is 20  hours.

In making this determination, the court notes that some of the billing was excessive, especially for attorneys as experienced as Defendants Tyerman and Jackoway’s counsel.  (ie, 17 hours on “research, analysis and strategizing.”)  Also, while Defendants Tyerman and Jackoway have the right to have multiple attorneys, the court finds that some of the attorneys’ work was duplicative and redundant.   

CONCLUSION

Based on the foregoing reasons, Plaintiff’s motion for attorney fees is GRANTED.  The Court awards $10,000.00 in attorney fees.