Judge Holly J. Fujie, Case Number: 21STCV41627, Date: 2024-12-31 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

This action arises out of an employment relationship. Plaintiff filed the operative first amended complaint (the “FAC”) against defendants Centurion Protection Services (“Centurion”), Richard Ray Dudgeon (“Dudgeon”), Tom Rogers, and Does 1 through 5 (collectively, “Defendants”) alleging: (1) Private Attorneys General Act; (2) failure to pay overtime wages in violation of Labor Code section 510; (3) failure to reimburse and indemnify for expenditures; (4) failure to provide meal and rest periods or compensation in lieu thereof in violation of Labor Code section 226.7; (5) Labor Code section 203 waiting time penalties; (6) Labor Code section 1198.5, subdivision (k) penalty; (7) Labor Code section 226, subdivision (f) penalty; (8) intentional infliction of emotional distress; (9) violation of Penal Code section 637.7; and (10) negligent infliction of emotional distress.

Centurion and Dudgeon (collectively, “Cross-Complainants”) filed a second amended cross-complaint (the “SAXC”) against Plaintiff and Roes 1 through 5 alleging: (1) breach of contract; (2) intentional interference with contractual relations; (3) intentional interference with prospective economic relations; (4) intentional misrepresentation; (5) defamation; and (6) libel.

On September 12, 2023, Plaintiff filed a special motion to strike (the “Anti-SLAPP Motion”). On October 10, 2023, the Court granted the Anti-SLAPP motion. On October 18, 2023, Cross-Complainants filed a Notice of Appeal of the October 10 order. On July 24, 2024, the Court of Appeal affirmed the ruling.

On October 28, 2024, Plaintiff filed the instant motion for attorney’s fees (the “Motion”). No opposition has been filed.

Pursuant to Code of Civil Procedure (“CCP”) section 425.16 subdivision (c)(1), “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” (See also Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141-1142.) Parties may seek attorney fees and costs in connection with a special motion to strike (1) in the moving papers, (2) in a subsequently filed motion, or (3) as part of a cost memorandum. (Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 992.)¿The moving party has the burden of proof in a motion for attorney’s fees. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) ¿

“[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.” (Mann v. Quality Old Time Serv. Inc. (2006) 139 Cal.App.4th 328, 344-345, overruled on other grounds in Baral v. Schnitt (2016) 1 Cal.5th 376, 392-396 [disapproving Mann in its “refusal to permit anti-SLAPP motions to reach distinct claims within pleaded counts”]; accord. Moran v. Endres (2006) 135 Cal.App.4th 952, 956 [defendants were not entitled to fees, where their partial success on their anti-SLAPP motion “in every practical sense meant nothing”].) This no-practical-benefit doctrine does not apply where the defendant “successfully narrowed the scope of the lawsuit, limiting discovery, reducing potential recoverable damages, and altering the settlement posture of the case.” (Mann, supra, 139 Cal.App.4th at 340.) The no-practical-benefit doctrine is a “narrow” exception to the general rule mandating a fee award to a partially successful defendant. (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1446.) Except with limited types of claims, a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs.” (CCP, § 425.16, subd. (c)(1).) Whether a partially successful defendant achieved sufficient benefit to be a “prevailing party” is left to the discretion of the trial court and reviewed accordingly. (Mann, supra, 139 Cal.App.4th at 340.)

Plaintiff argues that he is the prevailing party on the Anti-SLAPP Motion and thus is entitled to recover attorney’s fees. (Memo. of Points and Auths., pp. 2:23-3:4.) In ruling on the Anti-SLAPP Motion, this Court issued a ruling striking certain paragraphs of Cross-Complainants’ claims after concluding that the text message at issue in those paragraphs constituted “protected activity” under Code of Civil Procedure section 425.16 and that Cross-Complainants’ had not made a showing that the claims had minimal merit. (10/10/2023 Minute Order.) On July 24, 2024, the Court of Appeal affirmed the ruling. (10/18/2024 Appeal-Remittitur-Affirmed NOA 10/13/2023 B333621)

Plaintiff is thus the prevailing party for anti-SLAPP fee recovery purposes. (CCP, § 425.16, subd. (c)(1).)

In determining whether the attorneys’ fees requested under Section 425.16 are “reasonable,” the Court “may and should consider the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney’s efforts, his learning, his age, and his experience in the particular type of work demanded . . . [,] the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed.” (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659, disapproved on other grounds by Equilon Enters. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5, quotation marks omitted, emphasis omitted.)

This approach “concentrates on the practical impact of a partially successful motion on the overall litigation[.]” (Id. at p. 347.) To that end, in adjusting the lodestar for overlapping work, the court considers such factors as (1) the extent to which the defendants’ litigation posture was advanced by the anti-SLAPP motion and appeal; (2) whether the same factual allegations remain to be litigated; (3) whether discovery and motion practice have been narrowed; (4) the extent to which future litigation expenses and strategy were impacted by the motion; and (5) any other applicable relevant factors, such as the experience and abilities of the attorneys and the novelty and difficulty of the issues. (Id. at p. 345.)

The successful party is also entitled to fees incurred in filing the motion for anti-SLAPP fees, also referred to as “fees on fees.” (Ketchum, supra, 24 Cal.4th at p. 1141 [in anti-SLAPP, CCP § 425.16 context].)

The Court finds that the fee rates sought by Plaintiff are reasonable based on fee rates in the Los Angeles County area and based on the declaration of counsel supporting those rates. (Gutierrez Decl. ¶¶ 6-11) Upon review of the time entries submitted with this Motion, the Court notes that there are three entries which pertain to work on motions other than the Anti-SLAPP Motion and the instant Motion. (Ex. D [9/8/23 entry for 0.3 hours; 9/26/23 entry for 0.1 hours; 10/10/23 entry for 0.4 hours].) The time entries provided add up 38.8 hours for the Anti-SLAPP Motion and 6.9 hours for the instant Motion. In addition, as no opposition was filed, a 2.5 hour reduction is appropriate.

Accordingly, the Court will GRANT Plaintiff attorney’s fees and costs for the Anti-SLAPP Motion and the instant Motion for attorney’s fees in the reduced amount of $30,463.20 based upon counsel’s rate of $650/hour for: (1) 38.8 hours for the Anti-SLAPP Motion and appeal; (2) 6.9 hours for this Motion; (3) 0.5 hours attending the hearing; (4) $412.20 in court costs for the appeal; and (5) $21.00 for the filing transaction costs.

Thus, Plaintiff’s Motion is GRANTED, in part. Cross-Complainants are ordered to pay $30,463.20 to Plaintiff within 20 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court