Judge: Edward B. Moreton, Jr., Case: 23SMCV04030, Date: 2024-07-18 Tentative Ruling
Case Number: 23SMCV04030 Hearing Date: July 18, 2024 Dept: 205
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ADAM J. TENSER, Plaintiff, v. CITY NATIONAL BANK, et al., Defendants. |
Case No.: 23SMCV04030 Hearing Date: 7/18/24 Trial Date: N/A [TENTATIVE] RULING RE: MOTION FOR ATTORNEYS’ FEES |
Background
On August 29,
2023, Plaintiff Adam J. Tenser (“Plaintiff”) filed a Complaint against
Defendants City National Bank (“CNB”), Ervin Cohen & Jessup LLP, Kenneth
Paul Hsu, Byron Z. Moldo, Michael Clifford Lieb, Robert Joshua Ryan, and Does 1
to 10 (collectively, the “Defendants”), inclusive, alleging causes of action
for: (1) Defamation; (2) Negligence; and (3) Public Entity Liability. The
Complaint arises from Plaintiff’s representation of Blake Leibel in the matter
of People v. Leibel. (Complaint, ¶ 19.)
On October 18,
2023, Defendant CNB filed a Special Motion to Strike Plaintiff’s Complaint
Pursuant to CCP § 425.16. Plaintiff filed an opposition to Defendant CNB’s
special motion to strike, to which Defendant CNB filed a reply brief.
On February 13,
2024, Plaintiff filed a First Amended Complaint alleging a single cause of
action for Defamation.
On February 21,
2024, after hearing oral argument and taking the matter under submission, the
Court granted the motion to strike filed by Defendant CNB. (02/21/24 Ruling
After Hearing and Order for Dismissal at p. 1.) The Court dismissed the
complaint against Defendant CNB with prejudice and without leave to amend. (Id.)
The Court’s order provides that Plaintiff is to take nothing on his complaint
against Defendant CNB, and that Defendant CNB is the prevailing party and is
entitled to recover its attorneys’ fees and costs by a separate motion under
CCP § 425.16. (Id.)
On February 27,
2024, at the OSC re: Why the Court Should Not Strike the First Amended
Complaint, the Court noted that the First Amended Complaint was filed without
leave of court. (02/27/24 Minute Order at p. 1.) The Court indicated that the
First Amended Complaint was moot as to Defendant CNB because of the Court’s
granting of its special motion to strike. (Id.) Defendant CNB was
ordered stricken from the First Amended Complaint. (Id.)
On April 22, 2024,
Defendant CNB filed and served the instant Motion for Attorneys’ Fees (the
“Motion”). Defendant CNB requests an award of attorneys’ fees in the amount of
$66,611.55 pursuant to CCP § 425.16(c). The Motion is made on the grounds that Defendant
CNB is the prevailing defendant under CCP § 425.16(c).
The Motion is
unopposed as of July 15, 2024. Any opposition to the Motion was required to
have been filed and served at least nine court days prior to the hearing. (CCP
§ 1005(b).) Plaintiff, who is representing himself in pro per, was
served with the Motion by mail.
Given that the
Motion is unopposed, there is an inference that the Motion is meritorious. (Sexton
v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)
Motion for Attorneys’ Fees
Standard
“In general, a
prevailing party may recover attorney’s fees only when a statute or agreement
of the parties provides for fee shifting.” (Kirby v. Immoos Fire Protection,
Inc. (2012) 53 Cal.4th 1244, 1248.) “It is well established that
the determination of what constitutes reasonable attorney fees is committed to
the discretion of the trial court, whose decision cannot be reversed in the
absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64
Cal.App.3d 618, 623.) The fee setting inquiry in California ordinarily “begins
with the ‘lodestar’ [method], i.e., the number of hours reasonably expended
multiplied by the reasonable hourly rate.” (Graciano v. Robinson Ford Sales,
Inc. (2006) 144 Cal.App.4th 140, 154.) “The reasonable hourly
rate is that prevailing in the community for similar work.” (Margolin v.
Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004.)
“A prevailing
defendant on a special motion to strike shall be entitled to recover that
defendant’s attorney’s fees and costs.” (Code Civ. Proc., § 425.16, subd.
(c)(1).) “[U]nder Code of Civil Procedure section 425.16, any SLAPP defendant
who brings a successful motion to strike is entitled to mandatory attorney
fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) “[A]n
attorney fee award should ordinarily include compensation for all the
hours reasonably spent, including those relating solely to the fee.” (Id.
at p. 1133.) A court is authorized “to make an award of reasonable attorney
fees to a prevailing defendant, which will adequately compensate the defendant
for the expense of responding to a baseless lawsuit.” (Dove Audio, Inc. v.
Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.)
“[O]nly those attorney fees and costs related to the special motion to strike,
not the entire action, may be recovered under section 425.16, subdivision (c).”
(Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 92.) “The fees
awarded should include services for all proceedings, including discovery
initiated by the opposing party pursuant to section 425.16, subdivision (g),
directly related to the special motion to strike.” (Ibid.)
“The fee-shifting
provisions of section 425.16, subdivision (c) were enacted to impose litigation
costs on those who assert meritless claims burdening the exercise of the
defendant’s constitutional free speech and petition rights.” (Mann v.
Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 344.)
“The California Supreme Court has upheld the lodestar method for determining
the appropriate amount of attorney fees for a prevailing defendant on an
anti-SLAPP motion.” (Id. at p. 342.)
“[A] computation
of time spent on a case and the reasonable value of that time is fundamental to
a determination of an appropriate attorneys’ fee award.” (Margolin v.
Regional Planning Com., supra, 134 Cal.App.3d 999, 1004.) The
lodestar figure may then be adjusted, based on consideration of factors
specific to the case, in order to fix the fee at the fair market value for the
legal services provided. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49
[discussing factors relevant to proper attorneys’ fees award].) Such an
approach anchors the trial court’s analysis to an objective determination of
the value of the attorney’s services, ensuring that the amount awarded is not
arbitrary. (Id. at p. 48, fn. 23.) The factors considered in determining
the modification of the lodestar include “(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.” (Mountjoy v.
Bank of Am. (2016) 245 Cal.App.4th 266, 271.) “[T]he burden
is on the party seeking attorney fees to prove that the fees it seeks are
reasonable.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th
44, 98.) “[A]n award of attorney fees may be based on counsel’s declarations,
without production of detailed time records.” (Raining Data Corp. v.
Barrenechea (2009) 175 Cal.App.4th 1363, 1365.)
Where a party is
challenging the reasonableness of attorney’s fees as excessive that party must
attack itemized billing with evidence that the fees claimed were not
appropriate or obtain the declaration of an attorney with expertise in the
procedural and substantive law to demonstrate that the fees claimed were
unreasonable. (Premier
Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008)
163 Cal.App.4th 550, 563-564.) “[I]t is the burden of the
challenging party to point to the specific items challenged, with a sufficient
argument and citations to the evidence and arguments that fees claimed are excessive, duplicative, or unrelated do not
suffice.” (Id. at p. 564.) It is well
established that the determination of what constitutes reasonable attorney fees
is committed to the discretion of the trial court. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084,
1096.)
A “court should
defer to the winning lawyer’s professional judgment as to the tasks completed
in an action because he won, and might not have, had he been more of a
slacker.” (Moreno v. City of Sacramento (9th Cir. 2008) 534
F.3d 1106, 1111.) A losing party cannot litigate tenaciously then be heard to
complain about the time spent or tasks performed by the prevailing party in
response. (City of Riverside v. Rivera (1986) 477 U.S. 561, 580,
fn.11.) Where a defendant does not
produce evidence contradicting the reasonableness of counsel’s hourly rates,
the Court will deem an attorney’s hourly rate as reasonable. (Goglin v. BMW
of North America, LLC (2016) 4 Cal.App.5th 462, 473.)
Analysis
Evidence in Support of the Motion
In support of the Motion, counsel
for Defendant CBN, F. Phillip Hosp V (“Hosp”), provides a declaration. Mr. Hosp
is a Partner at Foley & Lardner LLP (“Foley”). (Hosp Decl., ¶ 1.) Mr. Hosp
sets forth efforts to meet and confer with Plaintiff regarding the special
motion to strike. (Hosp Decl., ¶¶ 2-5.) Mr. Hosp sets forth the reasonableness
of the requested attorney’s fees by setting forth the experience of the
attorneys who worked on this matter. (Hosp Decl., ¶¶ 6-10; Exs. A- B.) Foley
billed Defendant CNB at a discounted rate, which was generally less than the
“standard rates” that Foley charges. (Id., ¶ 4.) Mr. Hosp, Nicholas
Gross (“Gross”), Troy Tessem (“Tessem”), and a junior associate all were
involved with the anti-SLAPP Motion. (Hosp Decl., ¶¶ 6-10.) Given the history
of Plaintiff of suing opposing counsel, Mr. Hosp omitted the name of the junior
associate from the pleading caption in this case and refers to them in his
declaration as “Associate 1.” (Hosp Decl., ¶ 10.) Mr. Hosp was admitted to the
California State Bar in 2009. (Hosp. Decl., ¶ 7.)
Mr. Hosp further states that the
rates are commensurate with the rates charged by other national firms of
similar sizes with offices in Southern California. (Hosp Decl., ¶ 13.) Mr. Hosp
has a standard rate of $1,000.00 per hour but the rate for Defendant CNB is
$796.50. (Hosp Decl., ¶ 14.) Mr. Gross has a standard rate in 2024 of $975.00
per hour but his rate for Defendant CNB is $760.00. (Hosp Decl., ¶ 14.) Mr.
Tessem has a standard 2024 rate of $815.00 per hour but charged Defendant CNB
an hourly rate of $590.00. (Hosp Decl., ¶ 14.) Associate 1 has a 2024 standard
rate of $600.00 per hour but charged Defendant CNB an hourly rate of $490.00
per hour. (Hosp Decl., ¶ 14.)
Mr. Hosp then attests that the
hourly rates charged by Foley in this case are generally less than or equal to
the rates charged by similar firms for lawyers of equivalent expertise and
experience. (Hosp Decl., ¶¶ 15-16, Ex. C.)
Folley has billed fees totaling
$66,611.55 on the special motion to strike and Mr. Hosp has provided billing invoices.
(Hosp Decl., ¶ 17; Exs. D-G.) 109.2 hours were expended to move to specially
strike Plaintiff’s complaint and were reasonable and necessary to protect and
advance Defendant CNB’s interests. (Hosp Decl., ¶ 18.) As to the special motion
to strike, Mr. Hosp spent 8.7 hours, Mr. Gross spent 20.1 hours, Mr. Tessem
spent 50.1 hours, and Associate 1 spent 30.3 hours. (Hosp Decl., ¶17.)
Mr. Hosp then provides a breakdown
of how the 109.2 hours were spent for each attorney who completed a task
pertaining to the special motion to strike. (Hosp Decl., ¶ 18.) Collectively,
2.0 hours were spent analyzing the complaint; 3.3 hours were spent on meet and
confer efforts; and 12.2 hours were spent on research in support of the special
motion to strike. (Hosp Decl., ¶ 18.) 54.6 hours were spent drafting the
special motion to strike and 8.1 hours was spent drafting the request for
judicial notice in support thereof. (Hosp Decl., ¶ 18.) 7.9 hours were spent
analyzing Plaintiff’s opposition; 2.2 hours were spent researching in support
of the reply brief; and 18.9 hours were spent drafting the reply brief. (Hosp
Decl., ¶ 18.) Mr. Hosp states that Defendant CNB is only claiming hours
directly related to the special motion to strike. (Hosp Decl., ¶ 19.)
Appropriateness of the Claimed Attorneys’ Fees
The Court finds that Defendant CNB has
shown that it is the prevailing party. Plaintiff has not opposed the Motion and
therefore has not met his burden in challenging the reasonableness of the
requested attorneys’ fees. The Court finds that due to the lack of an
opposition brief, Plaintiff has conceded to all the arguments raised in the
Motion as “[c]ontentions are waived when a party fails to support them with
reasoned argument and citations to authority.” (Moulton Niguel Water Dist.
v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)
However, the Court has reviewed the
billing entries (Hosp Decl., Exs. D-G), and the Court notes that “Associate 1”
is not referenced therein. The Court has only been able to see the work done by
Mr. Hosp, Mr. Gross, and Mr. Tessem pursuant to the billing entries. Thus,
although requesting attorneys’ fees for Associate 1 in the amount of
$14,847.00, Mr. Hosp has not provided the identity of such associate because of
Plaintiff’s “history of suing apposing counsel.” (Hosp Decl., ¶ 10.) The
Court notes that Mr. Hosp indicates that Associate 1 graduated from a top 20
law school in 2022 and was admitted to the California State Bar in 2022. (Hosp
Decl., ¶ 10.)
“California law does not require detailed billing records
to support a fee award.” (Rancho Mirage Country Club Homeowners Assn. v.
Hazelbaker (2016) 2 Cal.App.5th 252, 263.) “[A]n attorney’s
testimony as to the number of hours worked is sufficient evidence to support an
award of attorney’s fees, even in the absence of detailed time records.” (Ibid.)
While the Court does acknowledge the concerns of Mr. Hosp regarding Associate 1
being sued by Plaintiff given Plaintiff’s purported history, the Court must
ensure that the fees of Associate 1 are reasonable. Without being able to
verify the identity of such an individual, the Court finds that awarding fees
for the work of that associate is not appropriate. Given the substantial amount
of fees requested, the Court cannot merely “rubber stamp” a request for
attorneys’ fees. (Consumer Privacy Cases (2009) 175 Cal.App.4th
545, 555.)
Thus, the Court will not award Defendant CNB any fees for
the work of Associate 1 given Defendant CNB’s failure to identify such an
individual. The Court therefore will reduce the attorneys’ fees awarded to
Defendant CNB by $14,847.00, which is the amount corresponding to the work done
by Associate 1.
Conclusion
Based on the
foregoing, the Court GRANTS IN PART the Motion for Attorneys’ Fees filed by
Defendant City National Bank and AWARDS Defendant City National Bank attorneys’
fees in the sum of $51,764.55. Such an amount represents the work done by Mr.
Hosp, Mr. Gross, and Mr. Tessem and does not include the work done by Associate
1 due to Mr. Hosp’s failure to identify such an associate by name or provide
billing records reflecting work done by Associate 1.
Dated: July 18, 2024
__________________________________________
Edward B. Moreton, Jr.
Judge of the Superior Court