Judge Elaine W. Mandel, Case SC126806 2023-01-25 Tentative Ruling

Judge: Elaine W. Mandel, Case: SC126806, Date: 2023-01-25 Tentative Ruling

Case Number: SC126806 Hearing Date: January 25, 2023 Dept: P

Tentative Ruling

Doe v. Olson, et al., Case No. SC126806

Hearing Date January 25, 2023

Plaintiff Doe’s Motions for Attorney’s Fees; Plaintiff’s Motion to Strike

Plaintiff alleges sexual assault and battery. Defendant cross-complained, alleging plaintiff breached a prior non-disparagement agreement. This court granted plaintiff’s anti-SLAPP motion. Defendant appealed; the Supreme Court upheld the trial court’s order on the anti-SLAPP motion. Doe seeks attorney’s fees for prevailing on the anti-SLAPP motion and subsequent appeals, via two separate motions. The first motion seeks $231,606.25 for work by Martinez Law Group in the trial and appellate courts. The second seeks $750,000 for Sidley Austin and Bryan Cave’s work before the Supreme Court. These motions were continued from November 30, 2022.

Motion to Strike

Plaintiff moves to strike references in defendants’ opposition to other lawsuits in which she is involved and references to her identity. A court may strike any “irrelevant, false, or improper matter inserted in any pleading.” Cal. Code of Civ. Proc. §436. Additionally, in an invasion of privacy action under Cal. Civ. Code §1708.85, a plaintiff may proceed under a pseudonym, and other parties must redact identifying characteristics from court filings so as to prevent public revelation of plaintiff’s identity. Cal. Civ. Code §1708.85(f)(1)-(2).

Doe argues the opposition violates §1708.85(f)(1) by including her name, lawsuits in which she is involved and other identifying characteristics. Olson argued Doe waived her right to appear pseudonymously by appearing under her own name in California Supreme Court in October 2022.

The opposition includes extraneous arguments, such as a claim that Sidley is not representing Doe pro bono and that Doe is not actually a victim of sexual assault or harassment, which have no bearing on the issue presented. Olson admits the fee motion opposition includes identifying characteristics, in violation of Cal. Civ. Code §1708.85(f). Olson failed to adequately identify any act within the instant action that would constitute a waiver of the right to proceed under a pseudonym. GRANTED. The portions of the Olson opposition that identify Doe and reference other lawsuits she has been involved in are stricken.

Attorney’s Fees Motions

Defendant Olson filed a “sur-opposition” on December 7, 2022. As the court did not grant leave to file such a brief, it is not considered and will be stricken.

Cal. Code of Civ. Proc. §425.16(c) provides a prevailing party on an anti-SLAPP motion is

entitled to reasonable attorney’s fees and costs, including appellate fees. Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 489. If a fee request is excessive, a court has broad discretion to adjust it downward or to deny it altogether. Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321-1322. Elements undermining a fee request’s reasonableness include, but are not limited to, seeking fees for matters other than the motion at issue, vague block-billing, excessive time spent on tasks and overstaffing. Id. at 1320, 1325-1329.

Doe’s anti-SLAPP motion was granted and upheld by the Supreme Court. As prevailing party, she is entitled fees under §425.16. Martinez Law Group was lead counsel at the trial court and appellate court levels. Sidley and Bryan Cave became lead counsel during the Supreme Court phase.

The Martinez motion requests $231,606.25 in fees and $6,232.10 in costs. The reply requests a $19,200.00 for the instant motion, a total of $254,900.85. The Martinez firm provided 293.2 hours of legal services. Services from lead attorney Gloria Martinez-Senftner were billed at $550/hour before the notice of appeal and $600/hour after the appeal began. Work by Martinez’s associates, paralegals and law clerks were billed at $75-275/hour. Martinez-Senftner decl. ¶9. Martinez retained outside counsel to assist with the motion and appeal; the requested award includes these fees. These attorneys include James Moneer, seeking $3,300; Zachary Levine, seeking $2,397.50; Ulric Duverney, seeking $1,950; Steven Aaronoff, seeking $74,750; Paul Kujawsky, seeking $3000, and Mitchell Keiter, seeking $77,280. Martinez decl. ¶27.

Doe provides declarations and a lengthy, detailed billing record. Martinez declaration ¶¶3-27, exhibits A-C. The anti-SLAPP motion was strenuously litigated. A matter that works its way up the appellate ladder over more than four years, vigorously contested, requires significant expenditure of attorney time and resources. Given Martinez’s 35 years of practice, $550-600/hour is reasonable.

Nonetheless, there are several defects in the evidence. Ramirez’s declarations and billing records contain several redundant, vague or improper elements. There are multiple entries for work unrelated to the anti-SLAPP motion. A June 3, 2017 entry, for example, records 1 hour for “Payment for process servers to serve complaint[.]” Martinez decl. exhibit C, pg. 1. Other entries claiming work unrelated to the anti-SLAPP motion or its appeal can be found on June 5, 2017 (three separate entries) June 6 and 12, 2017 (entries related to opposing Olson’s motion for preliminary injunction) June 19, 2017, July 13, 2017 and August 2, 2017 (two entries). These are unrecoverable.

Olson notes many tasks memorialized in in exhibit C were performed before Martinez was retained as Doe’s attorney of record, while Doe was in pro per. Kennedy Decl. ¶¶4 Exhibits B, C. Prior to September 7, 2017, Doe proceeded in pro per. Olson argues none of these fees are recoverable, as a self-represented litigant cannot recover attorney’s fees. See Atherton v. Bd. of Supervisors (1986) 176 Cal.App.3d 433, 437. In reply, Doe argues reasonable attorney’s fees are recoverable by a pro per litigant who retains an attorney for assistance, even if the attorney is not of record. Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 524. The court agrees. Under Ramona and related cases, the issue is whether an attorney-client relationship exists and attorney services were provided. When an award for attorney’s fees is allowed by statute or contract, even a pro per litigant can recover services provided by an attorney.

The records include at least one instance of apparent double billing. Identical entries appear on July 19, 2018 and August 17, 2018, each seeking 8.4 hours’ worth of fees for a task described each time as “[a]ssist GMS with Briefing; proofread and suggest supplemental briefing; prepare.]” The court does not find it credible that Martinez would perform the exact same task twice, approximately a month apart, spending 8.4 hours each time; neither is recoverable.

Another improper entry appears on August 31, 2018, billing bills 4.6 hours, seeking $2,760, for “Professional Legal Services Matter #17-121 Jane Doe v. Olson. “Professional legal services” could describe any task performed. This is not the only instance of a vague entry. Doe seeks $100 on November 6, 2017 for “Re Olson Notice of Appeal Options [SIC], $180 on November 20, 2019 for “CSC Petition for Review is granted!” The court cannot determine the nature of the task referred to, so it cannot determine whether the billing was reasonable or necessary.

The record contains numerous entries labeled “call to client,” without further detail. E.g. Exhibit C entries Dec. 4, 5, 7 (three entries), 12, 18, 19 (two entries) 2017; Jan. 8 (two entries), 25, Apr. 4, 16, 19, 2018; and Feb. 14, 2019. While client communication is appropriate, the frequency with which client calls appear, coupled with the vagueness of each entry, does not allow the court to determine whether the billing is appropriate or excessive.

The declarations of outside counsel Keiter and Aaranoff consist of general descriptions of work performed. Aaranoff decl. ¶¶7-9, Keiter decl. ¶¶2-5. These declarations are not supported by detailed billing records. The court acknowledges “California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done[.]” Syers Props. II, Inc. v. Rankin (2014) 226 Cal. App.4th 691, 698. Nevertheless, these declarations are too vague for the court to determine whether all the time billed and work performed was reasonable or necessary. The matter will be continued to allow for submission of records which omit the improper entries identified above, and for Keiter and Aaranoff to provide more detailed explanations of the services provided.

Sidley/Bryan Cave Fees

On January 14, 2020, Sidley Austin substituted as lead counsel for Doe in the California Supreme Court. In October 2020 Brian Cave joined as co-counsel. Sidley argued the Court of Appeal erred when it partially overturned the trial court’s ruling. This argument prevailed before the Supreme Court.

This motion seeks $750,000 in fees. The motion argues this is reasonable because Olson, not Doe, initiated appellate proceedings, the issues were complex, appellate practice is more rigorous than trial work and attorneys David Carpenter and Jean-Claude Andre are experts in their fields.

Declarations from Andre and Carpenter describe the work performed. Large teams expended nearly 1,000 hours researching and drafting an initial brief and reply and arguing the motion before the Supreme Court. The declarations do not include detailed billing records, nor do they identify the tasks each attorney performed, the date any task was performed or the time spent on any task or category of tasks.

As per Syers, detailed records are not necessary. Nonetheless, given the immense reimbursement sought –751.5 hours of work by Sidley and 351 hours by Bryan Cave, with much work by partners billing over $1,000 an hour – the court needs vastly more detail than what is provided.

When evidence indicates a requested award is excessive, the trial court has “broad discretion” to adjust the fee downward or deny it altogether. See, e.g., Christian, supra, 165 Cal.App.4th at 1321-1322. This motion does not provide much evidence for the court to rely upon, but what is presented via the declarations suggests this matter was overworked, overbilled and overstaffed.

Doe argues the amount of time and number of attorneys assigned is justified by the “rigorous research” necessary to prevail before the Supreme Court on a complex issue of law. These arguments are well taken, but they do not negate the fact that this motion is supported by scanty evidence. Without a more detailed breakdown of tasks performed and time spent, the court cannot determine if the fees requested were reasonable. The court will allow a more detailed breakdown of the specific tasks performed, supported by declarations and/or billing records. The matter will be continued.

The court does note that, between the two motions, almost a million dollars is sought. The parties, particularly appellate counsel, will need to provide significant justification to justify a fee award in that range.