Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

 

MOVING PARTY: Cross-Defendant Leo David 

 

RESPONDING PARTY: Cross-Complainant Aurice Veloso 

 

 

BACKGROUND 

 

This case arises from an employment dispute.  Cross-Complainant Aurice Veloso was a caregiver for Defendant Leo David and his late wife, Ruth David.  (Cross-Compl. ¶ 10.)  She was responsible for cooking meals, housecleaning, running errands, chauffeuring, and assisting with business parties and travel.  (Cross Compl. ¶¶ 14, 16.)  In connection with her duties, David provided her “perks” including a “work vehicle”.  (Cross-Compl. ¶ 14.)   

According to Veloso, trouble began in 2016 when she “earned the enmity of Leo David’s current girlfriend [Svetlana] Sirot.”  (Cross Compl. ¶¶ 14, 16.)  Veloso alleges “Sirot treated Plaintiff with contempt,” and falsely accused her of blocking Sirot’s phone number in David’s phone, which resulted in her termination.  (Cross Compl. ¶¶ 18-19.)   

Subsequently, David demanded the return of the “work vehicle.”  (Cross-Compl. ¶ 27.)  Veloso alleges David and Alon Zeltzer (David’s business partner) extorted Veloso’s return of the car when they “wrongfully filed a lawsuit against Veloso accusing her of theft and threatened to report her to the police if she did not return the car.”  (Cross-Compl. ¶ 27.)   

The cross-complaint alleges two claims for (1) extortion (against David and Zeltzer) and (2) tortious interference with economic advantage (against Sirot).   

This hearing is on David’s special motion to strike pursuant to Code Civ. Proc. §425.16(e)(1), demurrer and motion to strike.  On February 17, 2023, Plaintiff voluntarily dismissed her complaint, thereby mooting the demurrer and motion to strike.  The dismissal also partially moots the special motion to strike, leaving only the question of whether attorneys’ fees and costs should be awarded to David, as the prevailing party on the special motion to strike.       

SPECIAL MOTION TO STRIKE 

Veloso’s voluntary dismissal does not moot the request for attorneys’ fees in connection with David’s special motion to strike.  “[A] defendant who has been sued in violation of [the anti-SLAPP statute] is entitled to an award of attorneys fees … even if the matter has been dismissed prior to the hearing on that motion.”  (Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 218.) 

Where there has been a voluntary dismissal, the trial court must first rule on the merits of the special motion to strike, and award attorney fees “when a defendant demonstrates that plaintiff's action falls within the provisions of subdivision (b) and the plaintiff is unable to establish a reasonable probability of success.” (Liu v. Moore, 69 Cal.App.4th 745, 752.)   

“Litigation of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims arise from protected activity in which the defendant has engaged.  Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’  If the plaintiff cannot make this showing, the court will strike the claim.”  (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) 

Here, the Court concludes that Veloso’s extortion claim arises from a protected activity (namely, David’s filing of the present lawsuit).  (See Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 19 (the constitutional right to petition includes the basic act of filing a lawsuit).)  Veloso filed the extortion claim because, as she admits, David “wrongfully filed a lawsuit against Veloso accusing her of theft.”  (Cross-Compl. ¶ 28.)  Therefore, but for David’s lawsuit, Veloso would have no reason to file the extortion claim.  (See, e.g., Navellier v. Sletten (2002) 29 Cal.4th 82, 90 (“Sletten is being sued because of the affirmative counterclaims he filed in federal court.  In fact, but for the federal lawsuit and Sletten’s alleged actions taken in connection with the litigation, plaintiffs’ present claims would have no basis.  This action therefore falls squarely within the ambit of the anti-SLAPP statute’s ‘arising from’ prong.”).)   

As David has met his burden of establishing the first prong, the burden shifts to Plaintiff to show that her extortion claim had minimal merit.  Plaintiff has not met her burden.  Indeed, Plaintiff voluntarily dismissed her complaint shortly after the filing of the anti-SLAPP motion.  And her “opposition” to the special motion to strike does not argue that her extortion claim had any merit.     

Veloso argues David is not the prevailing party because he received no practical benefit from filing the motion.  But Veloso dismissed the extortion claim two days after David filed the motion.  This conferred a substantial benefit on David by eliminating a claim.  (See, e.g., Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340 (finding anti-SLAPP motion conferred a benefit on the movant when the respondent dismissed a trade liable claim in response to the motion).)  

Veloso also argues that David’s special motion to strike was frivolous as he knew Veloso intended to dismiss her complaint.  There is no evidence that David’s counsel knew Veloso intended to dismiss her complaint before he filed the special motion to strike.  (Baker Decl. ¶¶3-4.)     

Because David would have prevailed on his special motion to strike, he is entitled to attorneys’ fees and costs.  David seeks $12,800 in attorneys’ fees and costs representing 32 hours at the blended hourly rate of $400.  (Tobi Decl. ¶2.)  The Court concludes that the hourly rate is reasonable and in line with rates charged by attorneys in the Southern California legal market. (Vasquez v. Cent. Basin Mun. Water Dist., 2023 Cal. Super. LEXIS 2771 at * 4 ($400 represents a reasonable hourly rate); Martinez v. Fca Us Llc Imaged, 2019 Cal. Super. LEXIS 54862 at *2 ($400 is a reasonable hourly rate); Brandon v. Robert J. McHarris, D.D.S., 2019 Cal. Super. LEXIS 50438 (finding $400 hourly rate reasonable).) 

However, the number of hours expended by David’s counsel on a relatively simple anti-SLAPP motion is excessive.  The Court has the discretion to reduce the amount of fees (or deny recovery altogether) when the amount of attorney fees is inflated.  (Serrano v. Unruh (1982) 32 Cal.3d 621, 635; Meister v. Regents of the Univ. of California (1998) 67 Ca. App. 4th 437, 455.)  The Court reduces the hours from 32 to 10, representing 6 hours for preparing the motion, 2 hours for reviewing the opposition and drafting the reply (given Plaintiff had already voluntarily dismissed her complaint and the only issue was fees), and 2 hours for preparing for and attending the hearing.      

Accordingly, the Court grants in part and denies in part David’s motion for attorneys fees in connection with his special motion to strike.  Veloso is obligated to pay $4,000 to David.          

DEMURRER AND MOTION TO STRIKE    

Veloso’s voluntary dismissal of her complaint moots the demurrer and the motion to strike.  However, David argues that Veloso should still be sanctioned for filing a factually and legally frivolous cross-complaint, pursuant to Code Civ. Proc. §128.5.   

Under §128.5, the party moving for sanctions must serve the motion on the opposing party, but the motion “shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.”   

Thus, a party seeking sanctions under §128.5 must follow a two-step procedure. (Martorana v. Marlin & Saltzman (2009) 175 Cal. App. 4th 685, 698.)  First, the “moving party must serve on the offending party a motion for sanctions.” (Id.)  Service of the sanctions motion triggers the 21-day safe harbor period during which the moving party may not file the motion.  (Id.)  That is because the offending party may avoid sanctions by withdrawing the challenged pleading during the 21-day period.  (Id.)  Second, if the offending party does not withdraw the challenged pleading during that period, then the moving party may file the sanctions motion. (Id.) 

The “21 days is not a notice period. … It defines when the target of a sanctions motion can act without penalty and withdraw” an objectionable document.  (Broadcast Music, Inc. v. Structured Asset Sales, LLC, 75 Cal. App. 5th 596, 606.)  The moving party must file the motion “outside the safe harbor period,” not “on day one of the safe harbor period, day 21 of the safe harbor period, or any day in between.” (Id.)  In other words, the “sanctions motion cannot be filed until the 22nd day after service of the motion, i.e., after the 21-day safe harbor period expires.” (Id. at 605.) 

Moreover, the law requires strict compliance with the safe harbor provision. (Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 593.)  Failure to comply with the safe harbor provisions “precludes an award of sanctions.” (Martorana v. Marlin & Saltzman (2009) 175 Cal. App. 4th 685, 700; see also Li, 177 Cal.App.4th at 594 (“compliance with the safe harbor is a prerequisite to recovering sanctions”).) 

David has not shown he complied with the safe harbor provision.  Therefore, his request for §128.5 sanctions is denied.  The Court also declines to exercise its inherent power to award § 128.5 sanctions, particularly where as here, Plaintiff voluntarily dismissed her complaint within the safe harbor period.        

CONCLUSION 

For the foregoing reasons, the Court DENIES as moot David’s demurrer and motion to strike.  The Court also DENIES David’s request for attorneys’ fees pursuant to Code Civ. Proc. § 128.5.  The Court GRANTS IN PART and DENIES IN PART David’s motion for attorneys’ fees in connection with his special motion to strike.  The Court awards attorneys’ fees and costs in the amount of $4,000 to Plaintiff/Cross-Defendant.   

DATED: March 16, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court