Judge: H. Jay Ford, III, Case: 20SMCV01465, Date: 2022-09-08 Tentative Ruling

Case Number: 20SMCV01465    Hearing Date: September 8, 2022    Dept: O

  Case Name:  Topper v. Haworth, et al.

SUBJECT:                 MOTION FOR SLAPP FEES

MOVING PARTY:   Defendant Roger Tsai, MD

RESP. PARTY:         Plaintiff Doreen Topper, R.N.

TENTATIVE RULING

            Defendant Roger Tsai, MD’s Motion for SLAPP Fees is GRANTED.  Defendant is awarded fees based on a rate of $225/hr for a total of 122.81 hours or a total of $27,632.25, plus costs in the amount of $1,357.73.  Defendant is to submit the proposed order.

I.  Defendant Tsai is entitled to fees as partially prevailing party

A defendant who partially succeeds on an anti-SLAPP motion generally is considered a prevailing party and therefore entitled to fees and costs, unless the results of the motion were so insignificant that defendant did not achieve any “practical benefit” from bringing the motion. This determination lies within the “broad discretion” of the trial court.  See Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340.  Only those fees and costs incurred in connection with the successful portion of the anti-SLAPP motion that is granted in part may be recovered.  See Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 82.

            Plaintiff does not dispute Defendant Tsai’s status as partially prevailing party.  Plaintiff argues, however, that the amount requested should reflect a 1/6 reduction to reflect Defendant’s failure to dismiss the 1^st cause of actionfor invasion of privacy.  Defendant Tsai states on reply he does not object to such a reduction, so long as it is limited to the time spent by Shireen Ashtari preparing the SLAPP motion.

            As such, Ashtari’s hours will be reduced by 1/6 based on the parties’ agreement.  Ashtari’s hours are therefore reduced from 113.20 hours to 94.33. 

II.  Reasonableness of rate

            “It is well established that an attorney who accepts a reduced rate from a client is not precluded from seeking a reasonable hourly rate pursuant to the lodestar method.  The reasonable market value of the attorney's services is the measure of a reasonable hourly rate.  This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel.”  Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1055.

            “To determine the reasonable hourly rate, courts consider the rate prevailing in the community for similar work.  This market rate approach has been applied in cases involving in-house counsel, contingency fees, and pro bono work. In each of these cases, courts have refused to limit the market rate to the attorney's fee arrangement with the prevailing party.  Although the terms of a fee contract may be considered, they do not compel any particular award.”  Id. at 1055-1056. 

            The court should consider the market rate for “similar work” or “comparable legal service.”  Id. at 1057.  In doing so, the court might determine the relevant market to be that of insurance defense litigation and litigators, rather than civil litigation in general.  The “market rate for such services might be limited accordingly.”  Id. at 1057. 

            Defense counsel was provided by Defendant’s insurer, The Doctor’s Company.  Defense counsel accepted a discounted rate negotiated with the insurer in the amount of $225/hr.    Defendant asks that the Court award him fees based on the community rate of $700/hr for partner Kaytee V. Costa’s work and $500/hour for the work performed by associates. 

            Defendant fails to provide admissible evidence to support the claim that the market rates for insurance counsel in Los Angeles are currently $500/hr for associate work and $700/hr for partner work.  Defendant relies on the declaration testimony of defense counsel.  Costa testifies that based on her education and experience, she “believed” that $700/hr is a reasonable rate for her partner-level work and $500/hr is a reasonable rate for associate work.  See Motion, Dec. of K. Costa, ¶¶6-7; Dec. of P. Gamez, ¶3. 

            The declarations are insufficient to establish that these are the market rates for the work performed.  The testimony lacks foundation.  Defendant also fails to define what the relevant market should be, e.g. firms of similar size, attorneys of similar experience, litigation of similar claims. 

            Defense counsel refer to the Pasternack case and the rates requested by the firm of Lewis, Brisbois therein.  In Pasternack, the Lewis, Brisbois attorneys sought fees in the amount of $330,420 based on hourly rates ranging from $300-$500 per hour.  See Pasternack, supra, 65 Cal.App.5^th at 1053.  The attorneys also attested that these were the proper market rates for their services, but the opinion provides no details regarding the substance of the declarations.  The trial court ultimately awarded $146,010, a reduction of approximately 56%.  The court reduced the number of hours reasonably expended on the SLAPP motion and the hourly rate of one partner from $600 to $250.  Id. at 1054.  Nothing in Pasternack provides evidentiary or legal support for Defendant’s claim that the market rate for the partner work performed is $700 and $500 for associate work. 

            Defendant fails to substantiate his claim that the market rate for similar services performed is $700 for the partner work performed or $500 for the associate work performed.  The Court cannot arbitrarily adopt these rates.  Based on the evidence presented, the Court finds  the negotiated contract rate of $225/hr is the the reasonable rate for the work performed in this case related to the anti-SLAPP motion.

III.  Plaintiff’s Objections

            Plaintiff objects to the number of hours spent, as well as inclusion of time that was not spent on SLAPP.  As the party attacking the reasonableness of the fees, Plaintiff was required to identify the particular time entry or task performed that was inflated or excessive. See Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 (“In 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.”)

·       Time spent on non-SLAPP tasks--.3 hours.  Defendants are only entitled to the fees and costs incurred in connection with the portion of the SLAPP motion that was successful. See Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 82; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1018 (defendants entitled to recover attorney fees and costs incurred in SLAPPing claims on which they prevailed, but not fees and costs incurred in moving to strike the remaining claims where claims based on different conduct and different theories).  Plaintiff identifies .3 hours spent on settlement discussions, which is not “in connection with” the SLAPP motion.  Plaintiff’s other objections on relatedness grounds are meritless.

·       Excessive time spent on SLAPP motion and Fee Motion—No reduction.  Less the .3 hours and factoring in the agreed upon 1/6 reduction, the total time spent on the SLAPP motion is 122.81 hours (135.11 less .3 hours for settlement work).  Based on the complexity of the legal and factual issues, 122.81 hours in connection with the SLAPP motion is not excessive or unreasonable. 

·       Costs—Defendant agrees to a 1/6 reduction is now only requesting $259.55 in costs.  Plaintiff cites no authority to support her claim that the cost to purchase documents and messenger fees are not recoverable under CCP §1033.5.  The Court sustains Plaintiff’s objection to recovery of costs for transcripts of court proceedings that were not court ordered.  CCP §1033.5(a)(9) and (11) and (b)(5)(“following items are not allowable as costs…(5) Transcripts of court proceedings not ordered by the court”).  However, the agreed upon reduction exceeds the transcript costs. No further reduction is necessary.

IV.  Final award

            Defendant is awarded fees based on a rate of $225/hr for a total of 122.81 hours or a total of $27,632.25, plus costs in the amount of $1,357.73.  The fee award is against the losing plaintiff, not the losing plaintiff's attorney. Plaintiff's counsel is not a party to the action and thus not subject to a fee award under CCP § 425.16.  See Moore v. Kaufman (2010) 189 Cal.App.4th 604, 614.