Judge: Jon R. Takasugi, Case: 22STCV06275, Date: 2022-09-20 Tentative Ruling

Case Number: 22STCV06275    Hearing Date: September 20, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff is awarded $4,950.00 in reasonable attorneys fees, and $386.50 in costs.

On February 18, 2022, Plaintiff Rastegar & Matern filed a suit against Matern Law Group, PC and Matthew J. Matern alleging: (1) breach of contract; (2) breach of fiduciary duty; (3) intentional interference with prospective economic relations; and (4) negligent interference with economic relations.

On July 19, 2022, the Court denied Defendants’ Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion).

Plaintiff now moves for sanctions pursuant to California Code of Civil Procedure sections 128.5 and 425.16.

Legal Standard

“If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (Code Civ. Proc. § 425.16(c)(1).)

Section 128.5 reads: “A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc. § 128.5(a).) “‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (Id. § 128.5(b)(2).)

Discussion

            Plaintiff argues Defendants’ Anti-SLAPP motion was frivious, and pursuant to California Code of Civil Procedure sections 128.5 and 425.16, is entitled to attorney fees and costs from opposing the Anti-Slapp motion and bringing this Motion for Sanctions. Plaintiff asks for $33,754 in attorney’s fees and $386.50 in costs.

            Defendants argue the instant motion is procedurally flawed as Plaintiff did not identify a legitimate statute for the basis of their Motion and did not comply with the 21 day safe harbor provision mandated by California Code of Civil Procedure section 128.5(f). Defendants further argue their Anti-SLAPP motion was brought in good faith, and that Plaintiff asks for an unreasonable amount of attorney fees.

            Procedural Issues

            Code of Civil Procedure section 128.5(f)(1)(B)(2) states: "If the alleged action or tactic is the making … of a written motion … that can be withdrawn … a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn…." (Code Civ. Proc., § 128.5(f)(1)(B)(2).) In other words, Section 128.5 provides a 21 day safe harbor for parties to withdraw allegedly frivolous motions. (see Ibid.)

            However, because hearings on Anti-SLAPP motions must be heard within 30 days, “subdivision (f) does not work with the anti-SLAPP statute. Therefore, we conclude the proper procedure for the trial court to follow in regard to a request for attorney's fees related to an anti-SLAPP motion is the procedure set forth in subdivisions (a) and (c).” (Changsha Metro Group Co., Ltd. v. Peng Xufeng (2020) 57 Cal.App.5th 1, 21.)

Section 128.5, subdivision (a) which the Changsha Court refers to provides that “a trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc. § 128.5(a).) Subdivision (c) reads: “Expenses pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers or, on the court’s own motion, after notice and opportunity to be heard.” (Code Civ. Proc. § 128.5(c).)

            Here, Plaintiff has met the procedural requirements of subdivisions (a) and (c). Plaintiff provided notice of motion including memoranda arguing Defendants’ Anti-SLAPP motion was frivolous or intended to cause delay.

            With respect to Plaintiff’s Motion identifying a nonexistant statute, this appears to be merely a typo. Plainitff’s Motion refers to “sections 128.5 and 426.16.” (Motion, 2:4-5.) And the Court is not familiar with a section 426.15 of the California Code of Civil Procedure. However, Plaintiff correctly refers to Section 425.16 several times in the memorandum of points and authorities accompanying its Motion. (E.g., Motion 3:24; 4:7.) Plaintiff’s Motion for Sanctions is procedurally sound.

            Good Faith of Anti-SLAPP Motion

“[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for purposes of the anti-SLAPP statute.” (Gaynor v. Bulen (2018) 19 Cal.App.5th 864. “Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Ibid.)

On July 19, 2022, the Court applied this reasoning and denied Defendants’ Anti-SLAPP motion, finding: “Plaintiff’s claims here are not based on the act of filing declarations with the Court. Rather, Plaintiff’s claims are based on the Defendants’ alleged improper taking of attorney fees, which is evidenced by declarations filed in the underlying litigation. As such, Defendants have not met their burden to show that Plaintiff’s claims arise out of protected activity.” (Minute Order, 7/19/22.)

Nonetheless, Defendants insist their Anti-SLAPP was brought in good faith by reiterating the merits of the motion. The Court need not relitigate the matter here. Plaintiff’s claims are based on the Defendants’ alleged improper taking of attorney fees. It is frivolous to argue that Plaintiff’s claims arise from protected activity simply because Plaintiff offers court filings as evidence of the improper taking. Such a rule would leave courts effectively unable to resolve disputes between firms over fees accrued by their respective attorneys.

            Reasonable Costs and Attorney Fees

“The amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the familiar ‘lodestar’ method. Under that method, the court ‘tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 491 [internal citations omitted].) Plaintiff "bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.)

Here, Plaintiff requests $33,754 in attorney’s fees and $386.50 in costs. In support, Plaintiff’s Counsel states he has been practicing law for twenty years, has extensive business litigation experience, and his “billing rate in this matter is $650 per hour.” (Partain Decl. ¶ 2.) With respect to the amount of time spent, Counsel states: “I spent 29.08 hours reviewing the Motion, analyzing its arguments, researching legal authority, drafting the Opposition, revising and editing the Opposition, reviewing and finalizing the Declaration of Farzad Rastegar, reviewing and analyzing the Reply submitted by Defendants, preparing for oral argument, attending the hearing for the Motion, and preparing the Notice of Ruling as directed by the Court. (Ibid.) Counsel states he spent over 18 additional hours on this Motion for Sanctions. (Ibid.) Finally, Counsel states the senior partner at his firm has spent 3.1 hours on the matter at a rate of $1,000/hour. (Id. ¶ 3.)

The Court finds both Plaintiff’s Counsel’s hourly rate and hours billed to be unreasonable. Regardless of Counsel’s experience, this particular matter did not require a significant amount of specialized knowledge or experience. Indeed, California Appellate Courts have found $275/hour to be reasonable for work performed on Anti-SLAPP matters. (See 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437.) The Court finds $400/hour to be appropriate.

Plaintiff does not provide billing records or an accounting of hours beyond the declaration of counsel. Setting aside the duplicative details of Counsel’s stated work, the Court finds 29.8 hours spent opposing a relatively straightforward—and allegedly frivolous—Anti-SLAPP motion to be excessive. Twelve (12) hours is more than enough time to oppose the Anti-SLAPP motion Defendants put forward and appear at the hearing. Likewise, the Court finds that spending over 18 hours on this Motion for Sanctions is excessive. Four (4) hours is more than enough time to prepare the instant Motion and appear at the hearing—Plaintiff even acknowledges that the sanctions motion includes "much of this Court's analysis" from the order denying the anti-SLAPP motion. (Motion, pp. 4-5, fn. 1.)

Finally, Plaintiff does not indicate how the 3.1 hours of time spent by the senior partner at $1,000/hour is not merely duplicative of the work already accounted for in the senior associate’s declaration. Without billing records, or at a minimum a declaration from the senior partner, the Court cannot award sanctions for more than one (1) hour of the senior partner’s time at $600.  Twelve (12) hours to prepare and argue the opposition to Defendants’ Anti-SLAPP motion, plus 4 hours to prepare and argue this Motion for Sanctions, equals 16 hours. Sixteen hours at $400/hour, plus one (1) hour at $600 equals $7,000. Accordingly, Plaintiff is awarded attorney’s fees in the reduced amount of $7,000.

Plaintiff seeks costs for filing and court reporter fees. Defendants do not appear to object. Thus, Plaintiffs request for costs totaling $386.50 is granted.

Plaintiff’s Motion for Sanctions is GRANTED in the amount of $7,386.50.

It is so ordered.

Dated:  September    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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