Judge: Linda S. Marks, Case: 2019-01056982, Date: 2023-07-31 Tentative Ruling
Motion for Attorney Fees filed by Morris Cerullo World Evangelism on 4/4/23
Cross-Defendant/Cross-Complainant, Morris Cerullo World Evangelism (“Cross-Defendant” or “MCWE”) moves for an order awarding attorney fees and costs against Cross-Complainants Dennis D’Alessio (“D’Alessio”), Vertical Media Group, Inc., and Newport Harbor Ventures, LLC (collectively “Cross-Complainants”), jointly and severally under Code of Civil Procedure section 425.16(c)(1) as the prevailing party under the anti-SLAPP statute.
MCWE requests an award of $53,494 against Cross-Complainants, inclusive of fees for the anti-SLAPP motion ($41,339), and the instant fee motion ($12,155).
Code of Civil Procedure section 425.16(c)(1) provides that a defendant who prevails on a special motion to strike “shall be entitled to recover his or her attorney’s fees and costs.” “[U]nder Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) The fees “should ordinarily include compensation for all hours reasonably spent, including those relating solely to the fee. [Citation.]” (Id. at pp. 1133, 1141.)
It is undisputed that MCWE prevailed on its anti-SLAPP motion on the Cross-Complaint brought by Cross-Complainants Dennis D’Alessio, Vertical Media Group, Inc., and Newport Harbor Ventures, LLC, and is entitled to attorney fees and costs pursuant to Code of Civil Procedure section 425.16(c)(1). (See ROA 486, 03/13/23 MO.)
Reasonableness of Fees for the Anti-SLAPP Motion
The lodestar method is used for determining the appropriate amount of attorney fees for a prevailing defendant on an anti-SLAPP motion. (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 342.) The court first determines the time spent and the reasonable hourly compensation of each attorney and then determines whether that lodestar figure should be adjusted based on relevant factors. (Ibid.)
“As the moving party, the prevailing defendant seeking fees and costs ‘ “bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” [Citation.] To that end, the court may require [a] defendant[] to produce records sufficient to provide ‘ “a proper basis for determining how much time was spent on particular claims.” ’ [Citation.] ‘The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended. [Citation.]’ (Ibid.) The court also may properly reduce compensation on account of any failure to maintain appropriate time records. [Citation.]’ [Citation.]” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.)
To oppose a showing of a fee request supported by declarations describing the efforts taken with billing records to establish the hours of work, a party may “attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Med. Mgmt. Sys. V. Cal. Ins. Guarantee Assoc. (2008) 163 Cal.App.4th 550, 563-564.) “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at p. 564.) “When confronted with hundreds of pages of legal bills, trial courts are not required to identify each charge they find to be reasonable or unreasonable, necessary or unnecessary.” (Gorman v. Tassajara
Development Corp. (2009) 178 Cal.App.4th 44, 101.) “The party opposing the fee award can be expected to identify the particular charges it considers objectionable. A reduced award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.” (Ibid.)
Here, MCWE seeks 71 hours for Attorney Daniel Watts, and 12.2 hours for paralegals Jill Trost and Linda Koller. (Declaration of Daniel Watts, ¶ 16; Ex. E, ROA 499.) As noted by Cross-Complainants, this totals 83.2 hours, not 93.2 hours.
The Court deducts 0.3 hours by Linda Koller on May 8, 2020, and 0.6 hours by Attorney Watts on April 9, 2020, as these entries do not appear to be for time spent on the anti-SLAPP motion. The Court reduces the following block billed time entries by the paralegals which totals 7.9 hours by 20%:
· October 25, 2022 - Jill Trost (2 hours) work includes demurrer and motion to strike NHOM’s Answer
· May 26, 2020 – Linda Koller (1.3 hours)
· May 11, 2020 – Linda Koller (1.5 hours) fees for work on discovery requests/responses
· April 9, 2020 – Linda Koller (2.1 hours) fees for work on discovery requests/responses
· March 12, 2020 – Linda Koller (1 hour)
This results in a reduction of 1.58 hours (7.9 hours x. 0.20), rounded to 1.6 hours, from the paralegal time.
Cross-Complainants additionally argue that the hours claimed by MCWE are unreasonable and include time that cannot be recovered, such as the following:
· March 13, 14, 2023 – Attorney Watts (0.5 hours and 1.5 hours respectively) to review and analysis court’s tentative order on anti-SLAPP motion, and to prepare for and oral argument at hearing
· April 3, 7, and 8, 2020 – Attorney Watts (0.2 hours, 0.6 hours, 0.5 hours, respectively) for communications that involve non-essential work
· April 1, 2020 – Attorney Watts (1.5 hours) researching the basic rule that speculative damages are not available
· March 26, 2020 – Attorney Watts (7.3 hours) for arguments that would be included in a demurrer
None of these entries appear unreasonable, and appear to be reasonably spent on the anti-SLAPP motion.
Based on the foregoing, the Court finds that 70.4 hours by Attorney Watts and 10.3 hours by the two paralegals to be time reasonably spent on the anti-SLAPP motion.
Reasonableness of Hourly Rates
MCWE contends that the hourly rates for $550 per hour for 12th-year attorney, Daniel Watts, and $150 per hour for paralegals Jill Trost and Linda Coller, are reasonable, and that these rates have already been found reasonable Judge Richard Lee in December 2022. (Declaration of Daniel Watts, ¶¶ 14(1), 15, 16; Exs. F, G, ROA 499.)
In determining a reasonable rate for the attorney's services, courts usually consider: (1) the prevailing rate charged by attorneys of similar skill and experience for comparable legal services in the community; (2) the nature of the work performed; and (3) the attorney's customary billing rates. (See Serrano v. Unruh (1982) 32 Cal.3d 621, 643.)
The reasonableness of the hourly rates is not opposed. The requested hourly rates appear to be reasonable and commensurate with the prevailing rates charged by attorneys and paralegals with similar experience, practicing in the same area of law within the County of Orange, and these rates for Attorney Watts and Paralegals Trost and Coller have been recently awarded in another case. Therefore, attorney’s fees in the amount of $40,265 ($38,720 for Attorney Watts and $1,545 for two paralegals) was reasonably spent on the anti-SLAPP motion.
Fees for Instant Motion
Cross-Complainants argue that MCWE does not provide any basis for the hours requested in preparation of the instant fee motion and simply asks for a flat rate without providing evidence of time spent.
The Declaration of Daniel Watts states, “attorney Daniel Watts spent 15.6 hours reviewing time entries and redacting them, as well as researching and drafting this fee motion and supporting declaration, which will be billed to the client during our next monthly billing cycle. I estimate I will spend an additional 5.0 hours on the reply brief in support of this fee motion and 1.5 hours on oral argument which totals 22.1 hours.” (Watts Decl., ¶ 16, ROA 499.)
The Court deducts 5.0 hours on the reply brief should be This results in a total amount of 17.1 hours (22.1 hours – 5 hours) which appears reasonably incurred for the instant fee motion. Thus, the Court awards $9,405 for fees incurred for this motion.
Tentative Ruling: Based on the foregoing, the Court GRANTS the motion and AWARDS a total of $49,670 ($40,265 + $9,405) in attorney’s fees against Cross-Complainants Dennis D’Alessio, Vertical Media Group, Inc., and Newport Harbor Ventures, LLC, jointly and severally.
Fees Against D’Alessio
Cross-Complainants cite to authority providing that a judge may consider the losing party’s financial circumstances when determining a reasonable fee, and that a judge has discretion to determine that a reasonable fee award is $0 when the losing party is unable to pay the fee award, but makes no such arguments and presents no evidence in support of these contentions.
Instead, they argue that fees should not be imposed against D’Alessio as his new counsel did not draft the current cross-complaint, and that as D’Alessio was not a party to either the Management Contract or Settlement Agreement, it is unclear why D’Alessio was named as a party to this Cross-Complaint.
This argument is made without citation to authority supporting that such facts would support a refusal to impose fees against D’Alessio. Arguments not supported by authority are waived.
(See Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 165 [issues mentioned “without fully or properly briefing them” are waived]; Mission Shores Assn. v. Pheil (2008) 166 Cal. App. 4th 789, 796 [noting that “every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived and pass it without consideration. [Citations.]”]; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 [legal proposition not supported by authority is forfeited].)
The Court GRANTS Cross-Complainants’ Request for Judicial Notice