Judge: Joseph Lipner, Case: 21STCV35635, Date: 2025-04-10 Tentative Ruling
Case Number: 21STCV35635 Hearing Date: April 10, 2025 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
CHRIS NELSON, Plaintiff, v. PHOEBE BRIDGERS, Defendant. |
Case No:
21STCV35635 Hearing Date: April 10, 2025 Calendar Number: 2 |
Defendant Phoebe Bridgers (“Defendant”) moves for an order awarding
(1) post-judgment attorney’s fees and costs incurred in enforcing the April 18,
2023 judgment of attorney’s fees in Defendant’s favor; (2) interest on the
judgment and on post-judgment fees and costs; and (3) fees and costs on appeal,
against Plaintiff Chris Nelson (“Plaintiff”).
Defendant seeks a total additional award of $498,458.66,
consisting of:
(a)
$143,527.21 in post-judgment fees (following adjustment
in the Reply; compare Strub Decl. ¶ 2 with Streisand Decl. ¶ 2);
(b) $2,166.87
in post-judgment costs;
(c)
$117,013.72 in interest on the judgment and
post-judgment fees and costs together;
(d) $206,170.09
in fees on appeal;
(e)
$5,286.77 in costs on appeal; and
(f)
$25,644.00 in fees incurred on this motion (following
adjustment in the Reply; compare Strub Decl. ¶ 2 with Streisand Decl. ¶ 2).
The Court GRANTS the motion in part, with reductions as set
forth in this order. The Court orders that defense counsel recalculate the
requested fee in light of these reductions. The Court additionally orders that
defense counsel recalculate the requested interest in light of these
reductions.
The Court continues the hearing to May 8, 2025 at 8:30 a.m.
for a final calculation of these amounts.
Within one week of today, Defendant shall provide Plaintiff with a recalculated
fee and interest amount. If the parties
agree that this recalculated amount accords with the order, they may file a
proposed order that so indicate in the filing.
In that event, the May 8 hearing will go off calendar. If they do not agree, Defendant shall file
its calculations with the Court no later than April 25, 2025. Plaintiff shall file any objection by May 2,
2025.
On November 9, 2022, the Court granted Defendant’s
anti-SLAPP motion as to all of Plaintiff’s causes of action against Defendant.
Defendant
subsequently moved for an award of attorney’s fees pursuant to the anti-SLAPP
statute. On March 9, 2023, the Court granted Defendant’s motion. On April 18,
2023, the Court entered a judgment in Defendant’s favor in the amount of
$490,608.32 in attorney’s fees.
On
May 9, 2023, Plaintiff filed a notice of appeal.
Plaintiff
has since refused to pay the judgment. (Strub Decl. ¶ 3.)
On
October 31, 2023, Defendant served discovery on Plaintiff seeking information
to ascertain whether there is any property of Plaintiff that should be applied
to the payment of the judgment. (Strub Decl. ¶ 4.) This discovery resulted in
Defendant filing a motion to compel further on January 30, 2024. (Strub Decl. ¶
5.) On February 27, 2024, the Court granted the motion to compel and granted
sanctions against Plaintiff in the amount of $5,000.00, representing a
discounted portion of Defendant’s attorney’s fees stipulated to by Defendant.
On
April 19, 2024, Plaintiff made his initial production. Counsel for the parties
met and conferred several times regarding the adequacy of the responses. On
July 12, 2024, Plaintiff produced supplemental responses. (See Strub Decl. ¶
6.)
On
April 25, 2024, Defendant filed a judgment lien against Plaintiff. On April 26,
2024, Defendant filed a writ of execution against Plaintiff. (Strub Decl. ¶ 7.)
On
October 30, 2024, the Court of Appeal issued an order affirming the Court’s
judgment and orders, including the award of attorneys fees. (Remittitur at p.
23.) The Court of Appeal awarded Defendant her costs on appeal. (Remittitur at
p. 23.) Remittitur was filed on January 23, 2025.
Defendant
filed this motion on March 4, 2025. Plaintiff filed an opposition and Defendant
filed a reply.
“The judgment creditor is entitled to the reasonable and
necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing
a judgment are not included in costs collectible under this title unless
otherwise provided by law. Attorney’s fees incurred in enforcing a judgment are
included as costs collectible under this title if the underlying judgment
includes an award of attorney's fees to the judgment creditor pursuant to
subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.” (Code
Civ. Proc., § 685.040.) Code of Civil Procedure, section 1033.5, subd.
(a)(10)(A) allows attorney’s fees to be collected as costs where authorized by
statute. (Code Civ. Proc., § 1033.5, subd. (a)(10)(A).)
A defendant who prevails on an anti-SLAPP motion is
generally entitled to recover attorney fees and costs. (Code Civ. Proc., §
425.16, subd. (c)(1).)
Thus, “attorney fees incurred in an effort to enforce a fee
judgment obtained under the anti-SLAPP law do qualify as recoverable costs
under section 685.040[.]” (York v. Strong (2015) 234 Cal.App.4th 1471,
1477.)
Attorney’s fees in anti-SLAPP motions are determined using
the lodestar method. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) “Under
the lodestar method, the trial court must first determine the lodestar
figure—the reasonable hours spent multiplied by the reasonable hourly
rate—based on a careful compilation of the time spent and reasonable hourly
compensation of each attorney involved in the presentation of the case.” (Glaviano
v. Sacramento City Unified School Dist. (2018) 22 Cal.App.5th 744,
751.)
The trial court has broad authority to determine the amount
of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th
1084, 1095.)
The moving party bears the burden of proof as to
“reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5, subd. (c)(5).)
The party seeking fees has the burden of documenting the appropriate hours
expended and hourly rates. (City of Colton v. Singletary (2012) 206
Cal.App.4th 751, 784.) This burden requires competent evidence as to the nature
and value of the services rendered. (Martino v. Denevi (1986) 182
Cal.App.3d 553, 559.) A plaintiff’s verified billing invoices are prima
facie evidence that the costs, expenses, and services listed were necessarily
incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)
“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.” (Lunada Biomedical v. Nunez (2014) 230
Cal.App.4th 459, 488, quoting Premier Med. Mgmt. Sys., Inc. v. California
Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 564.) When items are
properly objected to, the burden of proof is on the party claiming them as
costs. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.)
“ ‘The reasonable market value of the attorney's services is
the measure of a reasonable hourly rate. [Citations.] 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…’ [Citation.]” (Chacon
v. Litke (2010) 181 Cal.App.4th 1234, 1260.) Thus, even though defense
counsel represented defendant on a partial pro bono basis, defense counsel is
entitled to the reasonable value of their services.
“As a threshold matter, the Court finds that the hourly
rates claimed by defendant counsel are reasonable. However, the Court notes
that such relatively high billing rates must necessarily correlate with reduced
time spent completing tasks due to the greater experience that such rates
indicate.” (3/9/2023 Minute Order [granting Defendant’s Motion for Attorney’s
Fees] at p. 1.)
Here, the Court notes that the lion’s share of the hours
billed are by lead counsel Michael H. Strub, who is the highest biller on
Defendant’s legal team. Strub billed various rates of $1,150.00 per hour,
$959.35 per hour, and $900.00 per hour, although most of his hours are at the
highest rate of $1,150.00 per hour. Given these rates, there is a concurrent
expectation that the time billed be spent highly efficiently.
The Court finds that while most of the hours spent by
Defendant’s counsel are reasonable, the Court reduces certain of the requested
hours. While the rates charged by the lawyers are reasonable, the time expended
at that billing rate for particular tasks should reasonably have been lower.
Plaintiff objects to 37.2 hours billed by defense counsel
for legal research relating to enforcement of the judgment. The Court has
reviewed the submitted billing records and finds that the time expended was
reasonable. These entries do not result from obscure block billing; rather,
they represent a series of reasonably-sized items over the two-year period when
the judgment has been outstanding. The entries demonstrate research into
various collection methods and into Plaintiff’s assets and controlled entities
to determine avenues by which the judgment could be collected. While the final
number is high, it appears that it does, in fact, result from long-term efforts
that are ongoing as a result of Plaintiff’s failure to pay the judgment.
The Court finds that these amounts were generally warranted,
but reduces the time spent by 8 hours for Strub.
Defendant requests fees for the January 30, 2024 discovery
motion in addition to the Court’s previous award of $5,000.00 in attorney’s
fees for that motion.
On that motion, Defendant agreed to limit her requested fees
to $5,000.00 in spite of her contention that the actual fees were much higher.
Defendant contends that she can now recover the fees in excess of $5,000.00 as
post-judgment costs under section 685.040.
The Court’s determination that the requested sanctions on
the discovery motion were reasonable was a result of Defendant’s limitation of
the request to $5,000.00. The motion in question was a routine discovery motion
that did not involve complicated questions of law or fact. The Court approved
Michael H. Strub’s hourly rate of $1,195.00 for that motion in part because the
higher hourly fee was then correlated with fewer hours requested. But the Court
does not believe that the excess time would be reasonable at the hourly rate
billed by Strub.
The Court does not approve additional fees for the January
30, 2024 discovery motion.
Plaintiff objects to 5.5 hours billed by David T.
Shackelford at $765.00 per hour for an ex parte application for an order
directing levy officer to enter private place, which was never filed. While the
fact that an avenue of recovery was not ultimately pursued does not necessarily
make work on that avenue unreasonable per se, the Court reduces this time to
3.5 hours in light of the rate charged by Shackelford and the fact that this
route was ultimately not pursued.
Shackelford billed 1.5 hours preparing an outline for a
debtor examination that never occurred. Defendant raises the issue of the
debtor examination in her initial motion (Motion at 8:12-20), and argues that
Plaintiff repeatedly resisted complying with discovery requests. Nevertheless,
the reason the examination was not ordered was because no party appeared for
the hearing. (See 6/6/2023 Minute Order re Application for Order for Appearance
and Examination.) The Court strikes this item.
Plaintiff objects to 2 hours spent by Strub drafting a
motion for OSC re contempt that was never filed. The Court reduces this time to
1 hour.
Plaintiff objects to 15 hours spent by Strub on April 2,
2024 opposing Plaintiff’s ex parte application for an extension to file
discovery responses, which was ultimately granted. The Court reduces this time
to 5 hours given the relatively routine nature of the motion.
Plaintiff objects to 7.7 hours spent by Strub and Streisand
in June 2024 for drafting a 1.5-page meet and confer letter regarding the
discovery requests. This time includes entries for 5.3 hours billed by Strub
for drafting a meet and confer letter and 1.5 hours billed by Strub for
research regarding the 45-day rule as it applies to a motion to compel
compliance. The Court reduces the time spent on discovery meet and confer by 3
hours for Strub.
Plaintiff does not object to the post-judgment costs other
than attorney’s fees. Defendant provides a memorandum of costs evidencing her
non-attorney fee costs to which Strub attests under penalty of perjury. The
Court approves these costs.
A judgment creditor is entitled to recover interest on the
principal amount of a judgment that remains unsatisfied at the rate of ten
percent per annum. (Code Civ. Proc., § 685.010, subd. (a)(1).)
Interest on a judgment continues to accrue during the
pendency of an appeal – “[t]he only way in which [an] appellant could have
avoided or terminated [their] liability to pay interest during pendency of the
appeal was to have made an actual tender.” (Beeler v. American Trust Co.
(1946) 28 Cal.2d 435, 438.)
Plaintiff does not object to the requested interest on the
underlying April 18, 2023 judgment of attorney’s fees. Under the applicable
law, Defendant is unambiguously entitled to this interest at the statutory rate
of 10 percent, and the Court approves it.
Here, the interest on the underlying judgment is rolled into
Plaintiff’s interest calculations for interest on post-judgment fees and costs.
Because the Court requests that Plaintiff recalculate interest for
post-judgment fees and costs, the Court requests that Defendant separate out
the interest on the underlying judgment for the sake of clarity.
Although
Plaintiff objects to various underlying items of post-judgment fees and costs,
Plaintiff does not object to the availability of interest where the underlying
fees and costs are themselves appropriate. The Court agrees with Defendant that
interest at the rate of 10 percent is appropriate here.
Because
the Court strikes certain portions of the underlying post-judgment fees and
costs, the Court requests that Defendant submit the recalculated interest
following these changes.
“A statute authorizing an attorney fee award at the trial
court level includes appellate attorney fees unless the statute specifically
provides otherwise.” (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499.)
“Section 425.16, subdivision (c), does not preclude recovery
of appellate attorney fees; hence attorney fees recoverable under the statute
include appellate fees.” (Carpenter v. Jack in the Box Corp. (2007) 151
Cal.App.4th 454, 461.)
Defendant requests $206,170.09 in fees on appeal.
Plaintiff objects to a number of categories of time spent on
appeal, including more than 50 hours spent on the opening papers and over 30
hours in addition on legal research. Plaintiff similarly objects to 19 hours
for conferring internally, 27 hours for supplemental briefing, 15 hours
opposing Plaintiff’s request for judicial notice, and 48 hours spent preparing
for oral argument.
The Court has reviewed the billing records in question. In
light of the complexity of the issues involved in this anti-SLAPP case and the
resulting appeal, the Court believes that a high time expenditure on appeal is
to be expected. Further, the heavy use of the lead counsel is more warranted on
appeal.
The Court reduces Strub’s time spent opposing the request
for judicial notice by 6 hours. The Court reduces Strub’s time spent preparing
for oral argument by 15 hours. The Court approves the remaining time spent on
appeal.
The Court of Appeal ruled that Defendant would be entitled
to her costs on appeal.
Defendant requests $5,286.77 in costs on appeal and provides
a memorandum of costs to which Strub attests under penalty of perjury.
Plaintiff does not object to these costs. The Court approves
the requested costs on appeal.
Defendant requests $25,644.00 in fees incurred on this
motion (following adjustment in the Reply; compare Strub Decl. ¶ 2 with
Streisand Decl. ¶ 2). This fee represents 29.5 hours of attorney time to draft
the motion, plus 7.5 hours to draft the reply and 2.5 hours to appear at the
hearing. The time requested here is primarily from Lena G. Streisand at $635.00
per hour.
The Court acknowledges that this fee motion involved
aggregating fee records from two law firms which cover the span of roughly two
years. However, the Court views only a portion of the fees as reasonable.
The Court reduces the fees incurred for this motion to $15,000.00.