Judge: Helen Zukin, Case: 21SMCV00158, Date: 2023-06-20 Tentative Ruling

Case Number: 21SMCV00158    Hearing Date: June 20, 2023    Dept: 207

Background

Plaintiff Bradford A. Phillips, individually and in his capacity of the Estate of Gene E. Phillips (“Plaintiff”) brought this action against Defendant Marsana de Monserat (“Defendant”). Defendant was a close friend of Gene Phillips, Plaintiff’s father and a Texas billionaire. Plaintiff brought this action against Defendant for extortion and negligent and intentional infliction of emotional distress stemming from a letter written sent to Plaintiff by Defendant’s attorney after Plaintiff caused his father’s estate to cease certain payments to Defendant. Defendant moved to strike Plaintiff’s operative First Amended Complaint pursuant to Code Civ. Proc. § 425.16, which extends protections to strategic lawsuits against public participation (“SLAPP” actions). The Court granted Defendant’s motion, as well as Defendant’s subsequent motion to collect her attorney fees in connection with bringing the anti-SLAPP motion, and entered judgment against Plaintiff. Plaintiff separately appealed each of these actions, and those three appeals were subsequently consolidated in the Court of Appeal. The Court of Appeal affirmed the trial court, and remittitur issued on April 27, 2023.

Defendant now moves to recover her attorney’s fees and costs incurred in defending Plaintiff’s appeals. Plaintiff opposes Defendant’s motion.

Objections to Evidence

Defendant’s objections to the Declaration of Dennis M. Holmgren are OVERRULED.

Legal Standard

“Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (C.C.P. § 425.16(c)(1).) “We thus hold that a party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of a trial court.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340.)

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.)¿

The fee setting inquiry in California ordinarily begins with the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. A computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award. The lodestar figure may then be adjusted, based on factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. (Id., at p. 48, fn. 23.) After the trial court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-1096.)

As explained in Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154:

“[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. . . . This approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary.” [Internal citations and internal quotation marks omitted.]

(Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140.) “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. [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. . . . The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. [Citations.]” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623624.)

“The California Supreme Court has upheld the lodestar method for determining the appropriate amount of attorney fees for a prevailing defendant on an anti-SLAPP motion.” (Mann, supra, 139 Cal.App.4th at 342.)

No specific findings reflecting the court’s calculations are required. The record need only show that the attorney fees were awarded according to the “lodestar” or “touchstone” approach. The court’s focus in evaluating the facts should be to provide a fee award reasonably designed to completely compensate attorneys for the services provided. The starting point for this determination is the attorney’s time records. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 395-397 [verified time records entitled to credence absent clear indication they are erroneous].) An experienced trial judge is in a position to assess the value of the professional services rendered in his or her court. (Id.; Serrano v. Priest (1977) 20 Cal.3d 25, 49; Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255.)

Analysis

Defendant seeks an award of $37,256 in attorney’s fees and $1,267.50 in costs for a total award of $38,523.50. Plaintiff does not raise any objection to Defendant’s claimed costs of $1,267.50, and the Court GRANTS Defendant’s request for a cost award in that amount.

Plaintiff has, however, challenged the attorney fee award sought by Defendant, arguing certain billing entries are unreasonable. Plaintiff argues Defendant’s request for 2.8 hours of attorney time to research and draft the section of the appellate brief concerning the standard of review is unreasonable. Plaintiff claims that section of Defendant’s brief is comprised of nothing more than a quote from a single case. Neither party has attached a copy of Plaintiff’s appellate brief and the Court is thus unable to conduct its own review of that brief. However, the Court notes Defendant does not dispute this characterization, but instead argues this time is recoverable because Plaintiff misstated the standard of review in her own brief. The question is not whether Defendant is entitled to recover for time spent on researching and writing a section on the appropriate standard of review, rather the question is whether the claimed 2.8 hours spent on this task is reasonable. The Court finds this amount appears to be inflated based on the record before it, and in its discretion will reduce Defendant’s award by 2.8 hours, or $1,288.

Plaintiff makes a similar argument regarding the 3.2 hours of attorney time claimed for drafting the statement of background facts in Defendant’s brief. Plaintiff argues this information was available in other briefing and “the facts are relatively simple.” (Opp. at 3.) Unlike the argument regarding the standard of review, this argument is far vaguer and more generalized. The Court does not have Defendant’s appellate brief before it, nor has Plaintiff put forth any evidence showing or suggesting this section was simply copy-and-pasted from other briefing prepared by Defendant. In the absence of such evidence, the Court is left to guess at whether the section in question is comprised of a single paragraph or several pages. Plaintiff’s characterization of the facts of this case as “relatively simple,” standing alone, is insufficient to show this charge is unreasonable or inflated.

Plaintiff argues the 1.8 hours of attorney time claimed to research and draft a motion to consolidate the three appeals is unreasonable because it was a joint motion and Plaintiff’s counsel drafted the fact section. Again, Plaintiff has not provided the Court with a copy of this motion and the Court thus has no way to determine the validity of Plaintiff’s argument. Defendant argues the 1.8 hours of time was reasonable as it included time to review the Second District’s local rules as well as applicable rules of Court to determine the method by which the parties could propose this consolidation. (Topp Reply Decl. at ¶¶3-5.) On the record before it, the Court does not find that 1.8 hours of attorney time is unreasonable to draft a joint motion to consolidate three appeals.

Plaintiff objects to the 1.9 and 1.5 hours of attorney time claimed by Defendant to modify Defendant’s briefs for the second and third appeals, claiming they were “virtually identical” to the first brief. Defendant argues the second appeal was of the Court’s order granting Defendant’s prior attorney fee motion, which was not the subject of Plaintiff’s first appeal. Defendant however does not offer any explanation as to the third appellate brief other than to state that it was not completely identical to the first brief and Defendant had to review the opening briefs for that appeal and modify her responsive brief accordingly. (Reply at 8, fn. 1.) Again, none of the parties’ briefing has been put before the Court and the Court cannot conduct its own review of that briefing to determine the extent to which Defendant’s second and third briefs overlapped with her first brief. On the record before it, the Court finds Defendant has offered a plausible explanation for the 1.9 hours of time incurred in connection with the second brief, while the 1.5 hours claimed in connection with the third brief appears to be inflated. The Court in its discretion will reduce Defendant’s fee award by 1 hour, or $460 in connect with the modification of the third brief.

Plaintiff also argues the 23.9 cumulative hours of attorney time claimed for drafting Defendant’s appellate briefs is unreasonable because “the issues for appeal were narrow and largely briefed in this Court.” (Opp. at 4.) Without some evidence supporting this characterization, the Court is not convinced that 23.9 hours of attorney time to draft multiple appellate briefs is unreasonable and the Court declines to reduce Defendant’s fee award on this basis.

Finally, Plaintiff claims the 3.8 hours of attorney time spent drafting this motion is excessive. The Court disagrees. While the memorandum of points and authorities is relatively short, the motion clearly involved additional work to separate recoverable charges from non-recoverable charges, review the remaining billing entries for issues involving attorney-client privilege, gather information on costs, and calculate the ultimate amounts to be sought in this motion. On review of Defendant’s moving papers, the Court does not find the requested 3.8 hours of attorney time claimed in connection with this motion to be excessive.

Applying these reductions to Defendant’s fee award results in an award of $35,508 in attorney’s fees incurred in defending Plaintiff’s appeals.

Conclusion

Defendant’s motion is GRANTED. Defendant is awarded $35,508 in attorney’s fees and $1,267.50 in costs for a total award of $36,775.50.