Judge: Gregory Keosian, Case: 20STCV07430, Date: 2023-01-20 Tentative Ruling

Case Number: 20STCV07430    Hearing Date: January 20, 2023    Dept: 61

Defendant Wendy McEntyre’s Motion for Attorney Fees is GRANTED in the amount of $30,360.00.

Defendant to provide notice.

I.                   OBJECTIONS

Defendant Wendy McEntyre (Defendant) objects to the declaration of Katherine Tatikian submitted in opposition to the present motion for attorney fees. Objections No. 2 and 3 are SUSTAINED, this matter consists of Defendant’s arrest record, which is irrelevant.

II.                MOTION FOR ATTORNEYS’ FEES

Code of Civil Procedure § 425.16, subd. (c)(1) states that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” “The party prevailing on a special motion to strike may seek an attorney fee award through three different avenues: simultaneously with litigating the special motion to strike; by a subsequent noticed motion, . . .  or as part of a cost memorandum.” (Carpenter v. Jack In The Box Corp. (2007) 151 Cal.App.4th 454, 461.) “[T]he fact that he or she has prevailed on some claims but not on others is a factor to be considered in determining the amount of the fee awarded.” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019.)

In determining the proper amount of fees to award, courts use the lodestar method.  The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate.  “Fundamental to its determination . . . [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.”  (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).)  A reasonable hourly rate must reflect the skill and experience of the attorney.  (Id. at p. 49.)  “Prevailing parties are compensated for hours reasonably spent on fee-related issues.  A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.”  (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV).)

“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.)  In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment.  (See id.)

Defendant Wendy McEntyre (Defendant) here seeks attorney fees incurred in defending the appeal of this court’s order granting Defendant’s anti-SLAPP motion, in a lodestar amount equal to $35,805.00, plus a multiplier. (Motion at pp. 1, 3.) “The right to attorney fees extends to attorney fees on appeal as well.” (City of Alhambra v. D'Ausilio (2011) 193 Cal.App.4th 1301, 1309.) The fees that Defendant seeks here represent a total of 65.1 hours of attorney work spent on appeal, at a rate of $550 per hour. (Allen Decl. Exh. A.)

Plaintiffs raise a number of objections to this attorney fee request. They argue that Defendant’s counsel has not supported his request for fees at the rate of $550 per hour. (Opposition at p. 3.) They argue that the attorney fee entries are vague, broad, and boilerplate, and include some charges for noncompensable clerical tasks. (Opposition at pp. 4–6.) These also include fees by another attorney, Nina Kovach, whose hourly rate and experience are unexplained and unjustified. (Opposition at pp. 6–7.) Plaintiffs finally argue that Defendant’s counsel has not satisfied the burden to show that a fee multiplier is warranted, as there has been no showing that this case precluded counsel from taking other work. (Opposition at pp. 9–10.) Finally, Plaintiffs argue that Defendant’s actions are malicious and designed to unfairly target and harm Plaintiffs. (Opposition at pp. 10–14.)

Defendant has supported the request for attorney fees in the overall amount and in the hourly rate requested. The hourly rate of Defendant’s counsel, in addition to forming the basis for this court’s prior attorney fee award, is supported by the declaration of Tom M. Allen, who attests to his 40 years of experience in civil litigation and civil appeals. (Allen Decl. ¶ 5.) Additionally, Plaintiffs’ arguments concerning the block-billed nature of the charges sought is unfounded; the charges identified in Defendant’s billing records are reasonably divided by date and the nature of the tasks performed. There is no authority for Plaintiffs’ contention that a party charging for appellate briefing must specifically delineate the time spent on each claim or issue that the briefing addresses. (Opposition at p. 9.)

Plaintiffs do raise, however, grounds for more-specific reductions in fees. First, Plaintiffs correctly note that a $1,595.00 charge for 2.9 hours of work spent preparing topical indexes and tables of authorities, which are properly construed as administrative or clerical tasks not properly compensable at the $550 hourly attorney rate. (See Collins v. City of Los Angeles (2012) 205 Cal.App.4th 140, 159.) Thus the requested lodestar is properly reduced by $1,595.00.

Additionally, Defendants note that seven hours and $3,850.00 in charges were performed by one Nina Kovach, whose experience, qualifications, and hourly rate are unsupported. (Opposition at pp. 6–7.) Defendant in reply acknowledge that the fees sought are unsupported. (Reply at p. 4.) Thus the lodestar shall be reduced by $3,850.00.

This leaves the question of what multiplier, if any, should be applied to the lodestar. “Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative ‘multiplier’ to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented.” (Thayer v. Wells Fargo Bank., N.A. (2001) 92 Cal.App.4th 819, 833.) “[W]hen determining the appropriate enhancement, a trial court should not consider these factors to the extent they are already encompassed within the lodestar.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.)

Defendant’s counsel has obtained a favorable result and defended it on appeal, and has done so on a pro-bono basis, meaning that some “contingent risk” was present because there would have been no attorney compensation if the anti-SLAPP motion was lost or overturned. (Allen Decl. ¶¶ 5–6.) However, neither the complexity of the subject matter nor the quality of the representation far exceeded that ordinarily seen for the types of claims that Defendant’s counsel defended; the basic lodestar already accounts for such factors.  (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1139 [lodestar multiplier ought to be awarded “only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation”].) Moreover, Defendant’s contention that this case has caused them to decline “other, more profitable assignments,” is advanced only broadly, and is relatively unsupported. (Allen Decl. ¶ 13.) Accordingly, no lodestar multiplier is warranted.

Thus the motion for attorney fees is GRANTED in the amount of $30,360.00.