Judge: Gail Killefer, Case: 23STCV25174, Date: 2024-08-29 Tentative Ruling
Case Number: 23STCV25174 Hearing Date: August 29, 2024 Dept: 37
HEARING DATE: Thursday, August 29, 2024
CASE NUMBER: 23STCV25174
CASE NAME: Woo Bum Heo v. Hyoung Wook Ko
MOVING PARTY: Defendant Hyoung Wook Ko
OPPOSING PARTY: Plaintiff Woo Bum Heo
TRIAL DATE: Dismissed
PROOF OF SERVICE: OK
PROCEEDING: MOTION FOR ATTORNEY’S FEES
OPPOSITION: 5 August 2024
REPLY: 21
August 2024
TENTATIVE: Defendant’s motion for attorney’s fees is
granted in the sum of $7,735.00 in
attorney’s fees plus $120.00 in costs. Defendant to give notice.
Background
On October 16, 2023, Woo Bum Heo
(“Plaintiff”), in pro per, filed a Complaint against Hyoung Wook Ko
(“Defendant”). The Complaint alleged two causes of action: (1) Malicious
Prosecution; and (2) Intentional Infliction of Emotional Distress.
On February 6, 2024, Defendant
filed a Special Motion to Strike under CCP § 425.16 (Anti-SLAPP motion)
Plaintiff’s Complaint. On May 23, 2024,
the court set the anti-SLAPP motion for hearing on June 24, 2024. On June 5, 2024, Plaintiff’s request for
dismissal of the entire action was granted.
On July 18, 2024, Defendant filed
this Motion for attorney’s fees. Plaintiff opposes the Motion. The matter is
now before the court.
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 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. Request for Judicial Notice
Defendant requests judicial notice
of the following:
1)
Exhibit 1: Complaint in the action
entitled Hyoung Wook Ko. v. Yong Mi Choi, etc., et. al. filed on May 6, 2020,
in Los Angeles County Superior Court Case No. 20STCV17221.
2)
Exhibit 2: Statement of Decision on Trial
in the action entitled Hyoung Wook Ko. v. Yong Mi Choi, etc., et. al.
filed on July 11, 20203 in Los Angeles County Superior Court Case No.
20STCV17221.
III. Discussion
Defendant seeks $10,830.00 in
attorney’s fees and costs as the prevailing party in an anti-SLAPP motion.
Plaintiff opposes the motion on the basis that the prior action did not involve
a public issue and/or public interest. “Where a plaintiff dismisses an action
while an anti-SLAPP motion is pending, the defendant may nonetheless be
entitled to recover attorney fees.” (Wilkerson v. Sullivan (2002) 99
Cal.App.4th 443, 446.) “[N]otwithstanding a dismissal of the action, the trial
court has discretion to determine whether the defendant is the prevailing party
for purposes of awarding attorney fees, based on a determination of which party
realized its objectives in the litigation. The [Coltrain] court
suggested that although the defendant would ordinarily be the prevailing party
for purposes of recovering attorney fees, the plaintiff could avoid liability
for fees based on a showing that it dismissed the action for reasons unrelated
to the probability of success on the merits.” (Id., referencing Coltrain
v. Shewalter (1998) 66 Cal.App.4th 94, 106–107.)
Therefore, in order for Defendant
to be entitled to attorney’s fees, the court must determine that Defendant would
have prevailed on the merits and that Plaintiff did not dismiss this action
because Plaintiff “‘had substantially
achieved its goals through a settlement or other means, because the defendant
was insolvent, or for other reasons unrelated to the probability of success on
the merits.’” (Pfeiffer Venice Properties v. Bernard (2002) 101
Cal.App.4th 211, 217.)
A.
This Lawsuit Arose from A
Protected Activity
“In ruling on a defendant's
anti-SLAPP motion, the trial court engages in a two-step analysis.” (Navellier
v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) First, the
court determines “whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity,” which
includes the defendants’ right of petition, or free speech, under a
constitution, in connection with issues of public interest. (Ibid; CCP,
§ 425.16.)¿“[T]he moving defendant must identify the acts alleged in the
complaint that it asserts are protected and what claims for relief are
predicated on them. In turn, a court should examine whether those acts are
protected and supply the basis for any claims.” (Bonni v. St. Joseph Health
System (2021) 11 Cal.5th 995, 1010 (Bonni I).)
Here, Plaintiff’s first cause of
action for malicious prosecution relates to Defendant’s conduct in the
underlying litigation, LASC Case No. 20STCV1722. (Compl., ¶¶ 7-9, 19-30; RJN
Ex. 1, 2.) “The plain language of the anti-SLAPP statute dictates that every
claim of malicious prosecution is a cause of action arising from protected
activity because every such claim necessarily depends upon written and oral
statements in a prior judicial proceeding.” (Daniels v. Robbins (2010)
182 Cal.App.4th 204, 215.)
Accordingly, the first cause of
action arises out of Defendant’s petitioning activity.
The second cause of action arises
out to Defendant’s refusal to dismiss Plaintiff as a defendant in the prior
action. “Nonetheless, KO did not dismiss HEO, even if he knew and should have
known that HEO was not related to and involved in the Forgery and fabrication
of marital documents, abusively and maliciously purposing other ulterior
purpose such as a desire to ruin the HEO and intent to use him to pressure his
mom, one of other defendants (YOUNG JA CHO).” (Compl., ¶ 38.) “KO nonetheless
flatly denied and ignored HEO’s request, seeking other ulterior purpose of
harassment and threatening (i.e., use him to pressure his mom, Young Ja Cho).”
(Id., ¶ 40.) “More than three (3) years, HEO’s life was extremely tired
and rampaged by KO’s groundless action, causing serious emotional distress and
mental suffering (i.e., Panic-Disorder) in addition to actual damage (Court
Costs, legal consulting, etc.).” (Id., ¶ 42.)
“In the anti-SLAPP context, the
critical consideration is whether the cause of action is based on the
defendant's protected free speech or petitioning activity.” (Navellier, supra,
29 Cal.4th at p. 89 [italics added].) “By its terms, section 425.16,
subdivision (e)(4) extends protection not just to speech and petitioning but to
certain conduct “in furtherance of” speech and petitioning.” (Bonni I, supra,
11 Cal.5th at p. 1020.) Section 425.16 applies to “[a] cause of action against
a person arising from any act of that person in furtherance of the person's
right of petition” including “any other conduct in furtherance of the exercise
of the constitutional right of petition or the constitutional right of free
speech in connection with a public issue or an issue of public interest.” (CCP,
§ 426.16 subd. (b)(1), (e)(4).)
Here, the second cause of action
arises out of Defendant’s initiation of the underlying action and refusal to
dismiss Plaintiff as a defendant. This is all conduct done in furtherance of
Defendant’s petitioning activity. Therefore, the second cause of action also
arises from Defendant’s petitioning activity.
B. Plaintiff
Could Not Have Prevailed on the Merits due to the Litigation Privilege
“Only a cause of action that
satisfies both prongs of the anti-SLAPP statute—i.e., that arises from
protected speech or petitioning and lacks even minimal merit—is a SLAPP,
subject to being stricken under the statute.” (Navellier, supra,
29 Cal.4th at p. 89 [italics original].)
Plaintiff’s opposition addresses
the probability that Plaintiff could have succeeded on the merits. The court
finds that Plaintiff could not have prevailed on the merits due to the
litigation privilege. “The litigation privilege bars liability for ‘any
communication (1) made in judicial or quasi-judicial proceedings; (2) by
litigants or other participants authorized by law; (3) to achieve the objects
of the litigation; and (4) that ha[s] some connection or logical relation to
the action.’ [Citation.]” (Bowen v. Lin (2022) 80 Cal.App.5th 155, 165.)
“It is ‘relevant to the second step in the anti-SLAPP analysis in that it may
present a substantive defense [the nonmoving party] must overcome to
demonstrate a probability of prevailing.’ [Citation.]” (Id., at p. 165.)
The court finds that the filing of
a Complaint against Plaintiff in the underlying action is conduct that falls
under the litigation privilege and Defendant is immune from liability.
Therefore, Plaintiff cannot show he would have prevailed on the merits in this
action.
C. Reasonable
Attorney’s Fees
i. Reasonable Hourly Rate
“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 (Christian Research).) “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 counsel, Sam Muriella (“Muriella”), has continuously
practiced law in Southern California since 1987. (Muriella Decl., ¶ 2, 5.) Muriella’s
hourly billing rate for this action is $595.00/hour. (Id., ¶ 10.)
Muriella’s $595.00 hourly billing rate has been approved by other courts in the
actions entitled Young Ja Cho v. Hyoung (LASC Case No. 23STCV25288) and Soon
Hyung Lee v. Hyoung Ko (LSAC Case No. 23STCV24950.) (Id., ¶¶ 8, 9.)
Based on the above, the court finds that Muriella’s hourly rate of
$595.00 is reasonable.
ii. Reasonable Hours Spent
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 v. Nunez¿(2014)
230 Cal.App.4th 459, 488 citing Premier Medical Management Systems,
Inc. v. California Ins. Guarantee Assn. (2008) 163¿Cal.App.4th¿550,
564.)¿“The anti-SLAPP statute provides for an award of attorney fees and costs
to the prevailing defendant on a special motion to strike. (§ 425.16, subd.
(c).) The defendant may recover fees and costs only for the motion to strike,
not the entire litigation.” (Christian Research, supra, 165
Cal.App.4th at p. 1320.)
In connection with filing the anti-SLAPP motion, Defendant requests
$4,760.00 in fees for 8.0 hours of work. (Muriella Decl., ¶ 4.) In connection
with this fee motion related to the anti-SLAPP, Defendant requests $5,950.00
for 10.0 hours of work. Defendant also requests $120.00 in costs for two
filings billed at $60.00 each. (Muriella Decl., ¶ 5.) The court finds that the
8.0 hours billed for the anti-SLAPP were reasonably incurred. However, the
court finds that the time Defendant spent on this fee motion is excessive given
the fact that the motion was not complex and did not require billing records to
be produced. The court deducts 5.0 hours or $2,975.00 from the lodestar.
The adjusted lodestar is $7,735.00 plus $120.00 in costs.
Conclusion
Defendant’s motion for attorney’s
fees is granted in the sum of $7,735.00
in attorney’s fees plus $120.00 in costs. Defendant to give notice.