Judge: Kevin A. Enright, Case: 37-2023-00010536-CU-MC-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - February 29, 2024

03/01/2024  10:30:00 AM  2103 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kevin A. Enright

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Civil - Unlimited  Misc Complaints - Other Motion Hearing (Civil) 37-2023-00010536-CU-MC-CTL 151 LIMITED LIABILITY COMPANY VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant's Motion for Attorneys' Fees and Costs is GRANTED in part. Defendant is awarded $101,301.80 in attorneys' fees and $1,408.46 in costs.

DISCUSSION Preliminary Matters Defendant's unopposed request for judicial notice of Exhibits D-G is GRANTED. (ROA 85.) However, '[a] court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.' (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22, emphasis original.) The general rule of motion practice is that new evidence is not considered on reply unless the evidence fills gaps created by the opposition. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.) As this was the case here, the Court has considered the reply declaration of Austin M. Uhler and exhibits. (ROA 94.) Background This is the latest action involving a landlord/tenant dispute based on the alleged breach of two commercial lease agreements arising from Defendant's alleged conduct after the leases came to an end in 2014 and whether Plaintiff had insurance coverage for the damages caused by Defendant's conduct.

In the instant action, Plaintiff's Complaint alleged two causes of action for declaratory relief and intentional interference with contractual relations. (ROA 1.) The allegations in the Complaint concerned the settlement agreement from the Travelers action as well as Defendant's alleged conduct in the Blackburn action.

On April 14, 2023, Defendant filed a special motion to strike the entire Complaint (ROA 18.) Plaintiff dismissed the second cause of action for intentional interference with contractual relations without prejudice while the SLAPP motion was pending. (ROA 25.) On September 1, 2023, the Court requested supplemental briefing, which both parties timely filed and served. (ROA 63, 71-73.) On October 6, 2023, the Court granted Defendant's SLAPP motion. (ROA 76.) The Court found Calendar No.: Event ID:  TENTATIVE RULINGS

3052738 CASE NUMBER: CASE TITLE:  151 LIMITED LIABILITY COMPANY VS COUNTY OF SAN DIEGO  37-2023-00010536-CU-MC-CTL Defendant prevailed on the SLAPP motion and thus entitled to recover attorneys' fees and costs, which Defendant could seek via a separate noticed motion. (Id. at p. 5.) On November 20, 2023, Defendant timely filed the instant fees motion. (ROA 81.) Defendant seeks $153,404.20 in attorneys' fees and $1,408.46 in costs, for a total requested award of $154,812.66.

ANALYSIS Attorneys' Fees Defendant seeks $153,404.20 in attorneys' fees. This figure represents the $139,932.70 in fees initially sought in connection with the SLAPP motion and the fees motion, plus $13,471.50 in fees incurred to review Plaintiff's opposition to the fees motion, prepare the reply, and prepare for and attend the hearing. (ROA 82, p. 8:20-23; ROA 92, p. 11:9-15; ROA 94, ¶¶ 21-30.) Under C.C.P. § 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.' The fee-shifting provision is intended to discourage strategic lawsuits against public participation. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) C.C.P § 425.16(c) 'is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting [the defendant] from a baseless lawsuit.' (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22.) Only reasonable fees may be awarded. (Ketchum, supra, 24 Cal.4th at p. 1132.) It is within the Court's discretion to determine the reasonableness of attorney fees based on '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.' (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) Caselaw makes clear the SLAPP statute was intended to permit only recovery of fees and costs incurred on the motion itself and the subsequent attorneys' fees motion, not on the entire suit. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383; Ketchum, supra, 24 Cal.4th at p. 1133.) Defendant Prevailed or Would Have Prevailed on All Causes of Action Plaintiff acknowledges Defendant prevailed on the declaratory relief cause of action but notes that Plaintiff dismissed the second cause of action for intentional infliction of emotional distress while the SLAPP motion was pending. Plaintiff argues because the SLAPP motion did nothing to advance Defendant's position on the second cause of action and did not have any practical effect on that claim, it is unreasonable for Defendant to seek a full recovery of its fees.

Plaintiff's argument lacks merit. If a plaintiff voluntarily dismisses an action after a defendant filed a SLAPP motion, a defendant may recover their attorneys' fees and costs if the defendant shows they would have prevailed on the merits of the SLAPP motion. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1456-1457.) In assessing a motion for a fee award after a voluntary dismissal, 'notwithstanding the dismissal of the action, the trial court must proceed to determine the merits of the pending motion to strike and conclude that the plaintiff's action was a SLAPP suit before awarding attorney fees to the defendant.' (Wilkerson, supra, 99 Cal.App.4th at 447.) In that circumstance, 'the critical issue is the merits of the defendant's motion to strike.' (Liu v. Moore (1999) 69 Cal.App.4th 745, 752.) Here, Defendant moved to strike the entire Complaint on the grounds both causes of action arose from protected activity. (ROA 18.) As set forth in the Court's ruling, the Court considered the merits of the SLAPP motion as to both causes of action. (ROA 76, p, 2.) The Court specifically found both causes of action allege conduct that arose from protected activity, and Plaintiff failed to meet its burden to establish a probability of success on either cause of action. (Id., pp. 2-5.) Defendant showed that it would have prevailed on the merits of the SLAPP motion as to the tort claim and was thus entitled to an award of attorneys' fees for this claim as well. (Id., p. 5.) Calendar No.: Event ID:  TENTATIVE RULINGS

3052738 CASE NUMBER: CASE TITLE:  151 LIMITED LIABILITY COMPANY VS COUNTY OF SAN DIEGO  37-2023-00010536-CU-MC-CTL Lodestar Analysis '[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.' (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) 'The lodestar may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.' (Ibid.) '[A]n attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those solely related to the fee.' (Ketchum, supra, 24 Cal.4th at p. 1133, emphasis original.) In determining the reasonableness of the lodestar, courts can consider the complexity of the case, procedural demands, the skill exhibited, and the results achieved. (Robertson v. Fleetwood Travel Trailers of Cal., Inc. (2006) 144 Cal.App.4th 785, 817.) The moving party has the burden of establishing that the requested attorney fees are allowable, reasonable in amount, and were reasonably necessary for the litigation. (Warren v. Kia Motor America, Inc. (2018) 30 Cal.App.5th 24, 36.) 'The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.' (Ketchum, supra, 24 Cal.4th at p. 1132.) 'To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether.' (Id. at p. 1138.) Reasonable Hourly Rates In determining the reasonable hourly rates to be used in the lodestar calculation, 'the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.' (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436-37, citations omitted.) The correct measure of the hourly rate is the market value of the services provided, and '[t]his 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.' (Nemecek & Cole v. Horn (2012) 208 Cal.App.4th 641, 651.) Defendant claims hourly rates of $707.00 for Chief Deputy County Counsel John P. Cooley and $325.00 for Senior Deputy County Counsel Austin M. Uhler. (ROA 83, ¶ 27; ROA 84, ¶¶ 22.) The Court has considered the declarations of Defendant's counsel, the evidence offered by Defendant concerning the hourly rates, the declaration of Plaintiff's counsel, and the declaration of Attorney Daniel M. White. The Court also takes into account its own familiarity with the legal market. With this in mind, the Court concludes the claimed hourly rates are reasonable.

Reasonable Hours Defendant claims a total of 295 hours of attorney work incurred on the SLAPP motion and the instant motion (195.3 hours related to the SLAPP motion + 60.6 hours preparing the fees motion + 39.1 hours claimed for reviewing the opposition to the fees motion, preparing reply, and preparing for and attending the hearing). (ROA 83, ¶¶ 6-5; ROA 84, ¶¶ 8-14; ROA 94, ¶¶ 21-24.) In total, Attorney Cooley claims a total of 150.6 hours in connection with these motions, while Attorney Uhler claims 144.4 hours.

A party who challenges the claimed hours as excessive has the burden of identifying specific time entries. (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.) However, '[a] fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.' (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.) Reasonable compensation for time spent does not include fees for inefficient or duplicative efforts. (Morris v. Hyundai Motor Am. (2019) 41 Calendar No.: Event ID:  TENTATIVE RULINGS

3052738 CASE NUMBER: CASE TITLE:  151 LIMITED LIABILITY COMPANY VS COUNTY OF SAN DIEGO  37-2023-00010536-CU-MC-CTL Cal.App.5th 24, 38-39.) Contrary to Plaintiff's contentions, the fact the more senior attorney (Attorney Cooley) took primary responsibility for preparing the SLAPP motion and the supplemental briefing does not necessarily mean his work on the SLAPP motion was improper or unreasonable. The focus is the value of the services rendered. (See Ketchum, supra, 24 Cal.4th at p. 1132.) Nevertheless, for the reasons set forth below, the Court finds reductions in the claimed hours are warranted.

1. Hours Related to SLAPP Motion Plaintiff challenges the 87.4 hours claimed for preparing the SLAPP motion (76.6 hours by Attorney Cooley + 10.8 hours by Attorney Uhler) as unreasonable and excessive. The Court acknowledges the SLAPP motion required the parties to address some complexities given the various actions between the parties and the procedural history of Plaintiff's Complaint. Defense counsel also represents that Defendant does not seek the hours worked by two other attorneys, two paralegals, and a legal secretary. (ROA 83, ¶ 18.) However, the Court expresses concern over an award based on 87.4 hours of work on the motion. The Court finds there are excessive hours for vague billing entries for hours drafting and revising the SLAPP motion (including, but not limited to, block billing for both researching and drafting the supporting memorandum or both), excessive and potentially duplicative hours for legal research on the general law of SLAPP motions in addition to issues raised in the motion, and excessive and/or vague entries for interoffice communications. Accordingly, the Court deducts the hours spent drafting the SLAPP motion as follows: 30.7 hours for Attorney Cooley and 1.8 hours for Attorney Uhler.

Plaintiff also challenges the hours claimed for ex parte papers in connection with the SLAPP motion (7 hours by Attorney Cooley + 15.6 hours by Attorney Uhler). The Court agrees the hours sought are excessive and deducts the hours spent drafting the ex parte papers as follows: 2.0 hours for Attorney Cooley and 3.6 hours for Attorney Uhler.

Plaintiff also challenges the 36.3 hours claimed for preparing the reply in support of the SLAPP motion (30.3 hours by Attorney Cooley + 6.0 hours by Attorney Uhler) as unreasonable and excessive. As was the case with the moving papers for the SLAPP motion, the Court expresses similar concerns about an award based on 36.3 hours of work on the reply papers for excessive hours drafting and revising the reply. The Court deducts the hours spent drafting the reply in support of the SLAPP motion as follows: 4.6 hours for Attorney Cooley and 0.8 hours for Attorney Uhler.

Plaintiff also challenges the 38.7 hours claimed for preparing the supplemental briefing on the SLAPP motion (22.10 hours by Attorney Cooley + 16.6 hours by Attorney Uhler). The Court finds the hours claimed are cumulative and excessive considering the number of issues the Court identified for supplemental briefing, the interoffice communications on the supplemental briefing, and Defendant's multiple citations to its initial memorandum and reply papers in support of the SLAPP motion. The Court deducts the hours spent drafting the supplemental briefing as follows: 8.4 hours for Attorney Cooley and 1.2 hours for Attorney Uhler.

Plaintiff also requests the Court reduce the hours incurred for purported block billing or administrative tasks. Plaintiff fails to identify any specific entries challenged on these grounds. Nevertheless, the Court has addressed block billing entries as to the hours claimed for preparing the SLAPP motion. The Court otherwise does not reduce the fees sought on these grounds. Nor does the Court find duplicative work or overlap in the hours incurred on the SLAPP motion and work previously performed in the Blackburn action, and Defendant has shown they do not seek fees incurred for work related to the Blackburn action.

2. Hours Related to the Instant Motion The Court agrees with Plaintiff's contention the hours incurred in drafting the fees motion (3.9 hours by Attorney Cooley and 56.7 hours by Attorney Uhler) are excessive and unreasonable. The Court has concerns over Attorney Uhler's claimed 56.7 hours for drafting the fees motion, which the Court Calendar No.: Event ID:  TENTATIVE RULINGS

3052738 CASE NUMBER: CASE TITLE:  151 LIMITED LIABILITY COMPANY VS COUNTY OF SAN DIEGO  37-2023-00010536-CU-MC-CTL parenthetically notes is greater than the number of hours Attorney Uhler claims to help prepare the SLAPP motion (50.6 hours). (See ROA 84, ¶¶ 13-14.) Although the SLAPP motion involved some complex issues, the Court finds the fees motion was relatively straightforward given the Court found Defendant was the prevailing party on both claims. Accordingly, the Court deducts the hours spent drafting the fees motion as follows: 30.4 hours for Attorney Uhler.

For similar reasons, the Court finds the 39.1 hours claimed for reviewing the opposition, preparing the reply, and preparing for and attending the hearing on the motion (2 hours by Attorney Cooley and 37.1 hours by Attorney Uhler) are excessive and unreasonable. (See ROA 94, ¶¶ 21-30.) The Court deducts the hours spent on this work as follows: 23.1 hours for Attorney Uhler.

Based on these deductions, the Court finds the reasonable hours incurred by Defendant's counsel are as follows: 104.9 hours for Attorney Cooley, and 83.5 hours for Attorney Uhler. Thus, the lodestar is calculated as follows: Attorney Cooley: $707.00/hour x 104.9 hours = $74,164.30 Attorney Uhler: $325.00/hour x 83.5 hours = $27,137.50 Total Lodestar = $101,301.80 Based on the forgoing, Defendant is awarded $101,301.80 in attorneys' fees.

Costs C.C.P. § 425.16(c)(1) also allows for costs. Defendant seeks a total of $1,408.46 in costs, which the Court finds are reasonable. (ROA 82, p. 8:23-24; ROA 92, p. 11:13.) Accordingly, Defendant is awarded $1,408.46 in costs.

CONCLUSION Defendant's Motion for Attorneys' Fees and Costs is GRANTED in part. Defendant is awarded $101,301.80 in attorneys' fees and $1,408.46 in costs.

If this tentative ruling is confirmed, the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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