Judge Jill Feeney, Case Number: 23STCV07866, Date: 2024-01-18 Tentative Ruling

Pursuant to Code of Civil Procedure section 425.16(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.)

A prevailing party may only recover for work related to the motion, not the entire suit. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383 (“These reports clearly show the Legislature intended that a prevailing defendant on a motion to strike be allowed to recover attorney fees and costs only on the motion to strike, not the entire suit. We conclude the trial court erred when it awarded the Chronicle fees for the entire suit.”); S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 381.) However, compensable fees include fees incurred establishing the appropriate fee amount. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433 (“An award of attorney fees to a prevailing defendant on an anti-SLAPP motion properly includes attorney fees incurred to litigate the special motion to strike (the merits fees) plus the fees incurred in connection with litigating the fee award itself (the fees on fees).”); Ketchum, supra, 24 Cal.4th at 1133 (“an attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.”).)

Where a plaintiff voluntarily dismisses an alleged SLAPP while an anti-SLAPP motion is pending, the trial court has discretion to determine whether the defendant is a prevailing party for purposes of an attorney fees award. (Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107.) A trial court must determine who is the prevailing party on a practical level. (Id., quoting Heather Farms Homeowners Assn. Inc. v. Robinson (1994) 21 Cal.App.4th 1568, 1574.) Voluntary dismissal of a SLAPP suit does not preclude the award of attorney’s fees because this result would be contrary to public policy. (Moore v. Liu (1999) 69 Cal.App.4th 745, 753.)

Here, although the causes of action at issue in this motion were dismissed, Cross-Defendants were the prevailing party as a practical matter because they met their burden on the first prong and Cross-Complainants failed to meet their burden as to the second prong. The motion would have been granted with respect to the third cause of action but for the dismissal of the causes of action at issue. Therefore, Cross-Defendants are the prevailing party on the special motion to strike.

“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…Under this method, a court assesses attorney fees by first determining the time spent and the reasonable hourly compensation of each attorney. The court next determines whether that lodestar figure should be adjusted based on various relevant factors.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 342. See also Frym v. 601 Main Street LLC (2022) 82 Cal.App.5th 613, 620 (“It is well settled that the trial courts are to use the lodestar method when determining an award of attorney fees under the anti-SLAPP statute.”).)

“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.) The Court “need not simply award the sum requested. To the contrary, ascertaining the fee amount is left to the trial court's sound discretion.” (Ibid.) “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.) “The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.” (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.) “The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.” (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford, supra, 132 Cal.App.4th at 396; City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 785 (same).)

Cross-Complainants argue that the hours worked by a senior attorney with a higher billing rate is excessive and that Bloch’s hourly rate should be reduced because he should not be permitted to bill at his full rate when work could have been performed by younger associates with lower rates. Cross-Complainants cite 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 439 in support of their argument. In 569 East County Boulevard, the court there ruled that it was within a trial court’s discretion to adjust downward the hour component for the lodestar calculus for work unrelated to the merits of the motion, unnecessary hours, or because the motion was not especially novel or complex, among other reasons. (569 East County at p.440-441.) The court also noted other situations where more senior attorneys could have delegated work to more junior attorneys. (Id at p. 438-439.) Additionally, the court noted in a footnote that attorneys who do everything themselves would typically bill at a lower hourly rate than one who only does the most difficult work. (Id at p. 439, fn. 15.)

An examination of Bloch’s billing entries shows that he performed most of the work on the anti-SLAPP motion, including reviewing the pleadings, contacting opposing counsel, drafting declarations and briefs, drafting ex parte motions associated with the motion, drafting supplemental briefing, performing legal research, and revising the work of other attorneys. Abrams attended one hearing on an ex parte matter associated with the motion. Berman performed legal research for a supplemental brief on jurisdiction. (Bloch Decl., Exh. B.)

This motion was not especially novel or complicated because the case law on cases for extortion and abuse of process is well-established. The issues here were not especially complex. Additionally, Bloch billed hours for both substantive work related to the merits of the motion and other work, such as communications with clients and opposing counsel, conferring with co-counsel, serving the motion, preparing notices, and making an ex parte motion related to calendaring the motion. The hours Bloch billed on matters unrelated to the merits of the motion total just over 20 hours. In light of these factors, the Court will reduce Bloch and Breman’s hourly rates to $535.

After the lodestar method, the second step is determining whether a multiplier should be applied. The factors that Courts look at to determine if a multiplier is reasonable are: 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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

As discussed above, the issues in this motion were not particularly novel or complex. Bloch testifies that he has been working on this matter on a contingency basis and that he gave up other more lucrative work to bring this motion. (Bloch Decl., ¶¶10-11.) However, because this matter was not particularly complex and because the drafting of the motion could not have prevented the attorneys from taking on other work for a significant amount of time, the multiplier is not warranted here.