Judge: Gail Killefer, Case: 22STCV35150, Date: 2023-05-22 Tentative Ruling

Case Number: 22STCV35150 Hearing Date: September 29, 2023 Dept: 37

HEARING DATE: Friday, September 29, 2023

CASE NUMBER: 22STCV35150

CASE NAME: Gheorghe Firescu, et al. v. Paula Salvador

MOVING PARTY: Defendant Paula Salvador

OPPOSING PARTY: Plaintiffs Gheorghe Firescu and Gabriela Firescu

TRIAL DATE: N/A

PROOF OF SERVICE: OK

PROCEEDING: Motion for Attorney’s Fees

OPPOSITION: 15 September 2023

REPLY: 21 September 2023

TENTATIVE: Defendant’s Motion for attorney’s fees and costs in the amount of $18,424.62 is granted.

Background

This action arises in connection with the employment of Paula Salvador (“Defendant”) by Gheorghe Firescu and Gabriela Firescu (“Plaintiffs”). Plaintiffs allege Defendant acted fraudulently in using an allegedly false identity, committed conversion, defamed Plaintiffs, and caused emotional distress to Plaintiffs. In their Complaint, Plaintiffs reference on several occasions the pending underlying litigation brought by Defendant against Plaintiffs for several employment causes of action, Case No. 19STCV35570. in the County of Los Angeles Superior Court (“Underlying Action”).

Plaintiffs’ Complaint alleges the following causes of action: (1) Forgery and Identity Theft; Violation of California Penal Code § 530.5(b-c); (2) Fraud and Negligent Misrepresentation; (3) Conversion and Civil Theft; (4) Fraud and Constructive Fraud and Deceit, (Civ. Code, § 1572; 1709-1710); (5) Defamation (libel & slander; Civ. Code, §§ 43,45, 46); (6) Intentional Infliction of Emotional Distress; and (7) Negligent Infliction of Emotional Distress.

Defendant brought a Special Motion to Strike the Complaint pursuant to CCP § 425.16. On May 22, 2023, the court granted the motion and found that Plaintiff was entitled to attorney’s fees as the prevailing party on the anti-SLAPP motion.

On September 01, 2023, the Defendant brought a Motion for Attorney’s fees. Plaintiffs oppose the Motion.

Discussion

I. Legal Standard

Pursuant to CCP § 425.16(c), a prevailing defendant is entitled to recover attorneys’ fees and costs associated with the motion. Under CRC, rule 3.1702, a request for attorneys’ fees must be made within 180 days of service of the notice of entry of judgment or “within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case[.]” A defendant may only recover fees and costs related to the motion to strike. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) This includes fees associated with bringing the motion for fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 (“an award of fees may include not only the fees incurred with respect to the underlying claim, but also the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16.”).) Additionally, “[a]ny fee award must also include those incurred on appeal. [Citation.]” (Trapp v. Naiman¿(2013) 218 Cal.App.4th 113, 122.)¿¿

II. Discussion

A. Defendant’s Motion is Timely

The deadline for filing a motion for attorney’s fees is mandatory.¿(Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1444.) Plaintiffs argue that Defendant’s Motion is untimely as it was not filed within 60 days pursuant to CRC, rules 3.1702 and 8.104. Under rule 8.104(a)(1), a notice of appeal must be filed on or before the earliest of:¿

(A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, showing the date either was served;¿

(B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or¿

Here, no appeal has been filed, and no Notice of Entry of Judgment has been served. Plaintiffs have only filed a Notice of Dismissal as to this action. Therefore, Defendant’s Motion is timely.

Moreover, the court finds that Defendant’s proof of service is not defective and was signed under penalty of perjury and was timely served on Plaintiffs pursuant to CCP § 1005(b).

B. Motion for Attorney’s Fees

“A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.)

Defendant’s Notice of Motion fails to state the amount of attorney’s fees and costs requested. Defendant’s Motion only states that she seeks fees for 32.4 hours of work, billed at an hourly rate of $550.00 per hour, and $604.62 in costs. (Sirmabekian Decl. ¶¶ 12, 17, 20, Ex. B, C.) On reply, Defense counsel specifies they seek $18,424.62 in fees. (Reply at 1:23-25.) An omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought. (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 807-808; 366-388 Geary St., L.P. v. Superior Court (1990) 219 Cal.App.3d 1186.) The purpose of the notice requirement is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” (Hernandez v. National Dairy Products (1954) 126 Cal.App.2d 490, 493.)

The Notice of Motion requires that the moving party specify the grounds for the relief requested and Defendant’s Motion sufficiently gave the Plaintiffs notice that Defendant sought attorney’s fees in the amount of $18,424.62 (32.4 hours x $550.00/hour = $17,820.00 + $604.62 (costs) = $18,424.62). Seeing no prejudice to the Plaintiffs in Defendant’s failure to state the exact amount of fees sought, the court proceeds to address the Motion on the merits.

i. Reasonable Hourly Rates

The burden is on the party seeking attorney’s fees to prove that the fees it seeks are reasonable. (See Vines v. O'Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174, 184.) But “‘[i]n challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.’” (Lunada Biomedical, supra, 230 Cal.App.4th at p. 488, citing Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.)

Defense counsel asserts that their hourly rate of $550.00 per hour is reasonable based on over eleven (11) years of experience representing employees in employment-related disputes and is a comparable rate requested by and awarded to other attorneys with similar experience, background, and achievement. (Sirmabekian Decl. ¶¶ 15, 17, 18.)

The court finds that the defense counsel’s hours are reasonable.

ii. Reasonable Hours Spent

Defense counsel asserts he spent 32.4 hours working on tasks related to the anti-SLAPP motion and provides a detailed timesheet. (Sirmabekian Decl. ¶¶ 12, 13, Ex. B.) Plaintiffs make no opposition to the hours billed by Defense counsel. Having reviewed the Defense counsel’s billing entries, the court finds that the hours billed were reasonable and no deductions are warranted.

Therefore, the court finds that Defendant is entitled to $17,820.00 in attorney’s fees for 32.4 hours of work spent on matters related to the anti-SLAPP motion.

iii. Request for Costs

Pursuant to CCP § 425.16(c)(1), Defendant is also entitled to recover costs. Defendant seeks to recover costs in the amount of $604.62, as outlined in Exhibit C of the Declaration of Sarkis Sirmabekian. The costs include court fees, delivery service/messengers, and postage fees related to the anti-SLAPP motion. (Sirmabekian Decl. ¶ 20, Ex. C.)

The court finds the costs incurred are allowable and reasonable.

Conclusion

Defendant’s Motion for attorney’s fees and costs in the amount of $18,424.62 is granted.

Dated: September __, 2023 _______________________________

Gail Killefer

Judge, Los Angeles Superior Court