Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendants 2680 Barrington Associates, Leticia Mercado, Armand Derfner, Isaac Zaharoni, and Suzanne Derfner (collectively “Defendants”) 

 

RESPONDING PARTY: Plaintiffs Derya Altay and Jason Rogers 

 

 

BACKGROUND 

 

  Plaintiffs Derya Altay and Jason Rogers sued Defendants based on an unlawful detainer action brought by Defendant 2680 Barrington Associates (“Barrington Associates”).  Barrington Associates previously filed an unlawful detainer action against Plaintiffs on the grounds they were unauthorized occupants squatting in the apartment unit after the named tenant terminated the lease, and they refused to submit a rental application or sign a new lease.  Barrington Associates then voluntarily dismissed its unlawful detainer action against Plaintiffs who remain tenants of the apartment unit.   

This suit followed nearly a year after the voluntary dismissal of the unlawful detainer action.  Defendants Armand Derfner, Isaac Zaharoni, and Suzanne Derfner were partners in Barrington Associates, while Defendant Leticia Mercado was an employee of Barrington Associates.   

Defendants filed an anti-SLAPP motion which the Court granted in large part.  The Court struck seven out of twelve causes of action, and struck references to the unlawful detainer action as to the other claims.  After the ruling, Plaintiffs voluntarily dismissed their entire case.   

Defendants now move for attorneys’ fees and costs pursuant to § 425.16(c)(1).  Defendants Barrington Associates and Leticia Mercado seek $35,573.30 in attorneys’ fees and costs, while Defendants Armand Derfner, Isaac Zaharoni, and Suzanne Derfner seek $80,854.80 in fees and costs. 

LEGAL STANDARD 

A prevailing defendant as to a special motion to strike is entitled to mandatory, reasonable attorney fees and costs. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141-1142; CCP § 425.16(c); Weil & Brown, Cal. Prac. Guide: Civ. Pro Before Trial (The Rutter Group 2011) ¶7:1120.)  The determination of a reasonable amount of attorney fees is within the sound discretion of trial courts.  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.) 

An award of fees may include not only the fees incurred with respect to filing the special motion to strike, but also the fees incurred in seeking mandatory fees under Code Civ. Proc. § 425.16.  (Ketchum, 24 Cal.4th at 1141.)  The anti-SLAPP statute is “intended to compensate a defendant for the expense of responding to a SLAPP suit.  To this end, the provision is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit.”  (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22.)  

To determine a reasonable attorney fee award for an anti-SLAPP motion, the California Supreme Court held that the lodestar approach should be applied.  (Ketchum, 24 Cal.4th at 1136.)  The lodestar is calculated “based on the reasonable hours spent, multiplied by the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type.”  (Id. at 1133.)  The reasonable hourly rate is “the product of multiplicity of factors … [including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorneys’ reputation and the undesirability of the case.”  (Id. at 1139.)   The lodestar figure may be adjusted based on various factors including “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.”  (Id. at 1132.)   

DISCUSSION 

The Court must first consider whether Defendants are the prevailing parties on the anti-SLAPP motion as their motion was granted only in part.  A defendant who partially succeeds on an anti-SLAPP motion generally is considered a prevailing party and may be awarded his or her fees and costs unless “the results of the motion were minimal and insignificant” so that defendant did not achieve any “practical benefit” from bringing the motion.  (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340 (affirming grant of attorneys’ fees to defendants who prevailed in part on their anti-SLAPP motion where defendants successfully narrowed the scope of the lawsuit, limited discovery, reduced potential recoverable damages, and altered the settlement posture of the case).) 

Here, the ruling on Defendants’ anti-SLAPP motion significantly narrowed the case, disposing of more than half of the causes of action, thereby limiting discovery and reducing the potential for recoverable damages.  The ruling also gutted Plaintiffs’ remaining claims, precluding Plaintiffs from relying on the unlawful detainer action as a theory for recovery.  The ruling was so significant and so advanced Defendants’ litigation posture that Plaintiffs chose to voluntarily dismiss their entire case after the ruling was issued.  Accordingly, Defendants are the prevailing party on the anti-SLAPP motion and are therefore entitled to recover attorneys’ fees and costs.    

To determine the reasonable fees to award, the Court starts with the lodestar approach, which requires a determination of the reasonable hourly rate and the reasonable hours spent.   Defendants seek reimbursement based on an hourly rate of $650 for their counsel, J. Brian Urtnowski and Lisamarie McDermott.  Mr. Urtnowski and Ms. McDermott are partners of Urtnowski & Associates.  Mr. Urtnowki is a graduate of the University of California, Hastings College of Law and has 38 years of experience as a litigator.  Ms. McDermott is a graduate of Chapman University School of Law and has 15 years experience litigating complex cases.      

Their hourly rate of $650 is in line with rates in other cases where courts have granted fee awards to attorneys with similar experience.  (See, e.g., Schneider v. Chipotle Mexican Grill Inc. (N.D. Cal. 2020) 336 F.R.D. 588, 601 (finding rates of $830 to $1,275 for partners reasonable); San Diego Comic Convention v. Dan Farr Productions (S.D. Cal. 2019) 2019 U.S. Dist. LEXIS 64418, at *39-*45 (finding reasonable hourly rates of $760 for partners with 28-29 years of experience and $685 for a partner with 14 years of experience); Hefler v. Wells Fargo & Co. (N.D. Cal. 2018) 2018 U.S. Dist. LEXIS 213045 at *39 (rates from $650 to $1,250 for partners or senior counsel); Kikkert v. Berryhill (S.D. Cal. 2018) 2018 U.S. Dist. LEXIS 127237 at *5 (finding hourly rate of $943 reasonable, citing other decisions in the district approving rates from $656 to $886); Medina v. Metropolitan Interpreters & Translators, Inc. (S.D. Cal. 2015) 139 F. Supp. 3d 1170, 1179 (finding reasonable hourly rate of $850 for a partner with 38 years of experience and $625 for a partner with 17 years of experience); Makaeff v. Trump Univ. LLC (S.D. Cal. 2015) 2015 U.S. Dist. LEXIS 46749 at *11-*15 (finding reasonable rates of $600 to $825 for partners); Carr v. Tadin, Inc. (S.D. Cal. 2014) 51 Supp.3d 970, 978 (awarding in 2014, hourly rate of $650 for a partner); Eastwood Ins. Servs., Inc. v. Titan Auto Ins. of N.M., Inc., 2010 WL 11595919, at *3 (C.D. Cal. Nov. 23, 2010) (hourly rate of $775 for a partner in 2010 was consistent with market rate).)  Plaintiffs do not argue that $650 is not a reasonable hourly rate. 

The Court next considers the reasonable hours spent.  Defendants Barrington Associates and Leticia Mercado seek reimbursement for 37.2 hour spent in connection with litigating the anti-SLAPP motion and 16 hours for litigating the fees motion.  Defendants Armand Derfner, Isaac Zaharoni and Suzanne Zaharoni seek reimbursement for 80.25 hours spent in connection with the anti-SLAPP motion, and 42 hours in connection with litigating the fees motion.    

The hours were spent (1) analyzing a very dense, lengthy and factually complex complaint, (2) performing legal and fact research into Plaintiffs’ twelve claims, (3) developing the strategies for the anti-SLAPP motion and drafting and revising the motion, (4) analyzing Plaintiffs’ opposition to the anti-SLAPP motion including cited cases and evidence, (5) drafting and researching the reply brief, (6) preparing for and attending the hearing on the anti-SLAPP motion, (7) researching and drafting the attorneys’ fees motion, (8) analyzing any opposition to the attorneys’ fees motion, (9) drafting a reply to the attorneys’ fees motion, and (10) preparing for and attending a hearing on the attorneys’ fees motion.   

Defendants have not attempted to allocate their fees as between the claims on which they prevailed and the claims which were not struck.  (ComputerExpress Inv. v. Jackson (2001) 93 Cal.App.4th 993, 1020 (“Defendants consequently are entitled to recover attorney fees and costs incurred in moving to strike the claims on which they prevailed, but not fees and costs incurred in moving to strike the remaining claims.”).)  Defendants also filed virtually identical anti-SLAPP and attorneys’ fees motions which suggests a substantial portion of their fees were duplicative  and unnecessary.  Given these factors, the Court will reduce by 50% the amount of fees sought by each group of Defendants.    

Defendants contend they did not file a consolidated special motion to strike because they were served at different times, and anti-SLAPP motions are statutorily driven and must be filed within 60 days after service.   Defendants also argue that Defendants Mercado and Barrington Associates could not simply file a joinder to the earlier filed special motion to strike because the two defendant groups were responding to two different complaints.  After the first motion to strike was filed, Plaintiffs had amended their complaint, requiring Defendants Mercado and Barrington Associates to file a separate special motion to strike directed at the amended complaint.  However, these arguments do not address the fact that the motions filed by the two defendant groups were virtual carbon copies of each other, suggesting there was substantial duplication of effort.  These arguments also have no bearing on the fact that fees must be reduced to account for the fact that Defendants’ special motions to strike were only partially granted.       

Defendants Armand Derfner, Isaac Zaharoni and Suzanne Zaharoni also seek costs in the amount of $1,428.30 while Defendants Barrington Associates and Leticia Mercado seek $993.30 in costs.  The costs are for first appearance fees and filing fees.  Plaintiffs do not address the costs sought by Defendants.  The Court finds these costs reasonable.   

CONCLUSION 

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendants Armand Derfner, Isaac Zaharoni and Suzanna Zaharoni’s motion for attorneys’ fees and costs in the amount of $41,141.55.  The Court also GRANTS IN PART and DENIES IN PART Defendants 2680 Barrington Associates and Leticia Mercado’s motion for attorneys’ fees and costs in the amount of $18,283.30.  Plaintiffs are directed to pay these fees and costs within 30 days.   

 

DATED: March 17, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court