Judge: Kenneth J. Medel, Case: 37-2020-00040674-CU-NP-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2020-00040674-CU-NP-CTL SIMPSON VS DOLAN-CLUNE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/04/2023

Background: This is one of three cases involving the use of a closet in a professional building involving the Camino Professional Condo Association. This Court is familiar with the unlawful detainer action filed by the Camino Professional Condominium Association against Plaintiff (Case No.

37-2018-00026835-CL-UD-CTL) and the Quiet Title action filed by Plaintiff against the Association (Case No. 37-2018-00024713-CU-BC-CTL). The Quiet Title case recently went to trial.

A third case was filed in Judge Whitney's Dept - Plaintiff filed a complaint against the individual alleging breach of fiduciary duty by the Defendants in their capacities as Directors of the Association. This third case was assigned to this department after a preemptory challenge was granted after the remand from the Court of Appeal.

Judge Whitney DENIED defendants' special motion to strike based on CCP 425.16 finding that the gravamen of Plaintiff's complaint is that Defendants breached their fiduciary duty to Plaintiff and that Plaintiff's action is not aimed at the result of the protected activity (the filing of the unlawful detainer and quiet title actions). (See, Tentative Ruling dated March 19, 2021, confirmed as the Order of the Court.) Defendants appealed this ruling. The Fourth District Court of Appeal reversed in part. As to an issue related to flooring matters, the Court affirmed the denial. The flooring matter was a private dispute and not public interest and thus, as to this issue the trial court was correct that it was not within the purview of the Anti-SLAPP statute.

However, the closet was a different story. The Court concluded that Plaintiff's 'claims regarding the closet arose from protected activity, as she expressly alleged Defendants' filing of the unlawful detainer and her having to file a quiet title action harmed her.' The Court then remanded with instructions to the trial court to determine whether Plaintiff met her burden of showing a probability of prevailing on the merits (prong two analysis in an Anti-SLAPP motion).

Defendant then filed an Anti-SLAPP motion arguing that plaintiff cannot show a probability of prevailing on plaintiff's claims in the breach of fiduciary action related to the closet issue.

The Court originally heard this motion on 11/18/22. The Court had posted a tentative ruling that GRANTED Defendant's Special Motion to Strike. At the hearing, Plaintiff persuaded the Court to consider a late-filed reply brief. In addition, the Court was going to review the original Opposition to the Original Motion to Strike to determine whether plaintiff had addressed the probable cause finding.

On February 15, 2023, the court issued its Minute Order granting Defendants' Special Motion to Strike portions of the Plaintiff's complaint. In the minute order, the court stated: 'A prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs. (Code of Civil Procedure § 425.16.(c)(1).) A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1426.) 'Defendants are entitled to bring a motion for Calendar No.: Event ID:  TENTATIVE RULINGS

3021712  40 CASE NUMBER: CASE TITLE:  SIMPSON VS DOLAN-CLUNE [IMAGED]  37-2020-00040674-CU-NP-CTL determination of the reasonable amount of attorney's fees to be awarded as the prevailing party in a successful anti-SLAPP motion pursuant to California Rules of Court, Rule 3.1702.' Cross-Motions for Attorney Fees Originally heard on 8/25/23, Defendants filed a motion for a determination of reasonable attorney's fees not only for the anti-SLAPP motion, but also for their successful appeal of the trial court's previous ruling denying their anti-SLAPP motion. The Court took the matter under submission and on 9/18/23, issued an order continuing the hearing to 11/3/23 to coincide with plaintiff's motion.

Plaintiff separately filed a motion for attorney fees related to the same Anti-SLAPP ruling. Plaintiff argues that the Anti-SLAPP motion was partially frivolous because it was directed to issues that were not covered by the Anti-SLAPP legislation.

The Court addresses both motions below.

Motion by Defendants - Standard A prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs. (Code of Civil Procedure § 425.16.(c)(1).) A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1426.) An award of attorneys' fees and costs to the prevailing defendant on an anti-SLAPP motion is mandatory.

Attorney's fees and costs incurred on appeal are also mandatory under CCP § 425.16(c)(1). In Liu v. Moore (1999) 69 Cal.App.4th 745. Courts are to use the lodestar method in calculating the amount of reasonable attorney's fees for the prevailing defendant in an anti-SLAPP Motion.

Under the lodestar approach, a base amount is calculated from a compilation of time reasonably spent at a reasonable hourly rate for each attorney. The reasonable hourly rate is the prevailing rate charged by attorneys of similar skill and experience in the relevant community. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095) California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court's own view of the number of hours reasonably spent. (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698.) Declarations under penalty of perjury in support of the hours sought, broken down by hours expended in each category of services rendered, is sufficient for a trial judge, who has presided over the entire matter, to evaluate whether the time expended by counsel in this case, given its complexity and other factors, was reasonable. (see Syers, supra, at 700.) - Amount The Declaration of Rian W. Jones filed in support of this motion for attorney's fees sets forth a description of work performed and the hours expended. Defendant requests the Court should grant this motion and award attorney's fees of $123,015.00 and costs of $2,905.00 to Defendants.

Plaintiff challenges the amount. Plaintiff argues that the declaration of counsel is insufficient because it does not provide sufficient detail for the court or opposing counsel to determine whether the asserted fees are reasonable. According to plaintiff, hours are inflated and unreasonable. However, the declaration with the attachment seems sufficiently specific – I do not see how additional billing records would be necessary or assist.

For a general break-down, the fees requested for the filing and arguing of the anti-SLAPP motion total $28,007.50, which the Court determines to be reasonable amount for an anti-SLAPP motion of this magnitude.

The fees for the appeal are significantly more - $70,910.00. Defendant argues that the Court of Appeal indicated that this is a complex issue. (According to defendants the issues rested on a Supreme Court case that was decided during the pendency of the appeal, Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, that gave further guidance on how the courts must deal with anti-SLAPP motions where both protected and unprotected speech is alleged.) Post-appeal, defendants request $24,097.50. Assuming reasonableness of the underlying Anti-SLAPP, the do-over would be similar in costs. It was plaintiff who wanted further pleadings and argument in support of the opposition to the anti-SLAPP motion, which the court allowed. The total billed for this segment, including 6.3 hours for drafting the motion for attorney's fees, is $24,097.50. This does not on its face appear unreasonable.

The hourly rates – ranging from $375 to $425 are also within the range of similar hourly rates charged in Calendar No.: Event ID:  TENTATIVE RULINGS

3021712  40 CASE NUMBER: CASE TITLE:  SIMPSON VS DOLAN-CLUNE [IMAGED]  37-2020-00040674-CU-NP-CTL the community for litigation such as this.

Partial win The problem: this was at best a 'partial win'. A partially-prevailing Defendant can only recover the fees related to the successful 'portion' of their anti-SLAPP motion. '[T]he court should first determine the lodestar amount for the hours expended on the successful claims, and, if the work on the successful and unsuccessful causes of action was overlapping, the court should then consider the defendant's relative success on the motion in achieving his or her objective, and reduce the amount if appropriate.' Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 344-345. This is the proper metric in determining to what extent Defendants 'prevailed' on their anti-SLAPP motion: the ratio between what Defendants achieved (eliminating a single (admittedly significant) item of claimed damages), as compared to what Defendants sought (striking the entire complaint and dismissing the lawsuit).

The analysis of fees for a partial win 'includes factors such as the extent to which the defendant's litigation posture was advanced by the motion, whether the same factual allegations remain to be litigated, whether discovery and motion practice have been narrowed, and the extent to which future litigation expenses and strategy were impacted by the motion. The fees awarded to a defendant who was only partially successful on an anti-SLAPP motion should be commensurate with the extent to which the motion changed the nature and character of the lawsuit in a practical way.' (See Ketchum, supra, 24 CaL4th at p. 1132.)' Mann at 345.

Defendants moved and appealed on the ground that the entire case should be dismissed. The Court of Appeal ruled that there was an 'issue' that should be stricken – anything related to the attempted foreclosure of the closet. But this issue does not remove any cause of action from the Complaint – there remains one cause of action for breach of fiduciary duty. The effect of the Court of Appeal's 'partial strike' is to eliminate an issue regarding the closet from the litigation. But defendants still will be required to defend this action based on alleged breach of fiduciary duty by the association related to conflict of interest allegations regarding its (improper?) decision to require plaintiff to replace flooring in her unit.

Defendant claims removing the closet issue 'guts' the case. Perhaps. But breach of fiduciary duty remains. Plaintiff argues either no fees are appropriate or, at most 25%.

The Court has carefully reviewed the Complaint. The Complaint focuses heavily on the laminate floor issue. As alleged, plaintiff replaced the flooring in the dental suite to better comply with OSHA requirements. As alleged, a board member – Ms. Dolan-Clune – complained about noise from newly replaced laminate floors in plaintiff's dental suite above her. According to the pleading, the CC&Rs did not require permission to replace the flooring. Indeed, the replacement was required for a legitimate business reason. All board members knew from consultation with attorneys that there was no requirement for prior board approval to replace flooring. Nevertheless, at Ms. Dolan-Clune's behest, the board (or at least a member of the board) sent a letter demanding replacement due to noise issues.

Plaintiff alleges she took mitigation measures, still the board demanded replacement. According to plaintiff, Ms. Dolan-Clune did not properly recuse herself from the decision and the board continued to demand something not required in the CC&Rs. Cease and desist orders were issued. All this is a breach of fiduciary duty.

At this point, the closet comes into the story. After plaintiff would not remove the flooring, the board in retaliation focused on evicting plaintiff from the closet. (This became the primary issue in the separate unlawful detainer litigation before this court). But in this breach of fiduciary duty action, it relates to the story as a vendetta after the main breach of fiduciary occurred. The wording in paragraph 17 reflects this: 'But that was not all. When Plaintiff did not immediately accede to Ms. Dolan-Clune's demands (transmitted first in November 2017 via the Board's cease and desist letter, and later, in December 2017 by the Board's chosen attorney's letter), Ms. Dolan-Clune then instructed the Property's manager, to instruct 'the attorney' to evict Plaintiff from the Closet. This action would not be brought by the Board Members. Rather the Other Owners of the Property, via their agent POA, brought the action against Ms.

Simpson.' The closet in an issue – but not necessarily the main issue of the litigation. What is the effect of the Court of Appeal's decision? 'Don't mention the closet.' Even if evidence re the closet is out, there is much more to the breach of fiduciary claim.

Based on the Court's reading of the case, the Court accepts plaintiff's statement of 25% value to the Calendar No.: Event ID:  TENTATIVE RULINGS

3021712  40 CASE NUMBER: CASE TITLE:  SIMPSON VS DOLAN-CLUNE [IMAGED]  37-2020-00040674-CU-NP-CTL closet issue. (Opposition 11:16-22) The awards $30,753.75 in attorney fees.

Plaintiff's Motion for Attorney Fees Plaintiff separately moves for a partial award of attorney's fees solely as to the portion of Defendants' anti-SLAPP motion that plaintiff argues was 'frivolously overbroad'. Pursuant to CCP 425.16(c)(1), '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.' The standard for frivolousness is high.

The 'reference to section 128.5 in section 425.16, subdivision (c) means a court must use the procedures and apply the substantive standards of section 128.5 in deciding whether to award attorney fees under the anti-SLAPP statute.' (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1392, 129 Cal.Rptr.2d 892.)9 Attorney fees under section 128.5 may be assessed against a party, the party's attorney, or both. (§ 128.5, subd. (a).) A determination of frivolousness requires a finding the anti-SLAPP 'motion is 'totally and completely without merit' (§ 128.5, subd. (b)(2)), that is, 'any reasonable attorney would agree such motion is totally devoid of merit.' [Citation.]' Moore v. Shaw, 116 Cal. App. 4th 182, 199, (2004), as modified (Mar. 26, 2004) Frivolous in this context means that any reasonable attorney would agree the motion was totally devoid of merit.' L.A. Taxi Coop., Inc. v. The Indep. Taxi Owners Assn. of Los Angeles, 239 Cal. App. 4th 918, 932, (2015).

In this case, the complaint only states one cause of action for breach of fiduciary duty. As discussed above, the Court of Appeal, in reversing the trial court's denial of Defendants' anti-SLAPP motion found that the motion presented a mixed cause of action that included both protected and unprotected speech and remanded with instructions to consider prong two of the anti-SLAPP procedure as to the protected speech only. The Court observed: 'During the pendency of this appeal, the California Supreme Court issued an opinion instructing how trial courts should proceed in such cases: 'Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief-each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action-to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion.' (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010.)' (Simpson v. Dolan-Clune (May 20, 2022, No. D078809) ___Cal.App.5th___ [2022 Cal. App. Unpub. LEXIS 3157, at *13].) Since Bonni was decided during the pendency of the appeal, and after Defendants' motion was filed, it would not be reasonable for the Court to hold Defendants' counsel to a standard that had not yet been published at the time the anti-SLAPP motion was filed.

Plaintiff relies heavily on the recent case of Nirschl v. Schiller (2023) 91 Cal.App.5th 386. In Nirschl, after the plaintiff amended her complaint to add a claim for defamation, the defendant filed an anti-SLAPP motion attacking the entire complaint and all causes of action, including causes of action for wage and hour claims and unfair business practices. The Court found that the portion of the Schillers' motion seeking to strike Nirschl's non-defamation claims was frivolous because moving to strike wage-and-hour causes of action was unreasonable. (Nirschl, supra, at 408.) 'The Schillers have never contended that any element of any of the seven wage-and-hour-related causes of action arose from protected activity under the anti-SLAPP law.' (Id., at 407, fn. 12.) The Court of Appeals observed that 'the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech.' (Id. at 408.) In the instant case, the plaintiff's cause of action for breach of fiduciary duty was based on an act in furtherance of the defendants' right of petition.

Unlike the facts in Nirschl, Defendants in this case did not attack separate causes of action that clearly did not allege protected activity. Unlike the Court of Appeal in Nirschl, the Court of Appeal in the instant case did not find Defendants' motion and appeal to be frivolous. As stated above, the issue that prompted reversal for the Court in this case (the Bossi decision) was not settled law at the time of the filing of the Anti-SLAPP motion. The Court cannot find that the Anti-SLAPP motion to the entire pleading that included one cause of action was frivolous.

Thus, plaintiff's motion for attorney fees is DENIED.

Defendant's Motion to Strike Punitive Damages Defendants separately move to strike punitive damages. According to defendants, there is no basis for punitive damages. 'What is alleged, at best, is a misrepresentation to Dr. Libby, Plaintiff's tenant, and a breach of the CC&Rs and Rules and Bylaws of the Association. Paragraphs 5-9 and 16, 18, and 21 of Calendar No.: Event ID:  TENTATIVE RULINGS

3021712  40 CASE NUMBER: CASE TITLE:  SIMPSON VS DOLAN-CLUNE [IMAGED]  37-2020-00040674-CU-NP-CTL the complaint.' The Court of Appeal, in reversing the trial court's denial of DEFENDANTS' Anti-SLAPP Motion, stated 'we conclude that Simpson's claims regarding the closet arose from protected activity, as she expressly alleged appellant's filing of the unlawful detainer and her having to file a quiet title action harmed her:' Hope Simpson v. Colleen Dolan-Clune et.al (2022) D078809 at 11. The trial court then granted DEFENDANTS' Anti-SLAPP Motion as to the claims arising from the protected activity. All that remains now is the flooring matter, which the Appellate Court characterized as 'a private dispute of no public interest and does not arise from protected activity.' Id. at 13.

However, as discussed above, breach of fiduciary duty remains in this case. The factual allegations summarized above involve conduct where the Association was repeatedly acting to benefit Board Member Dolan-Clune and to further her interest in forcing Plaintiff and her tenant to cede to Ms.

Dolan-Clune's 'self-dealing demands' regarding the flooring.

The Motion to Strike is DENIED.

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