Judge: Margaret L. Oldendorf, Case: 22BBCV00019, Date: 2023-02-14 Tentative Ruling
Case Number: 22BBCV00019 Hearing Date: February 14, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
I.
INTRODUCTION
This litigation concerns a commercial lease. The case was
previously in Department B of the North Central District. Prior to being
transferred to this Court, Defendants made a partially successful motion under
the anti-SLAPP statute, Code Civ. Proc. §425.16. They now seek an order
awarding fees and costs as the partially prevailing party on that motion. For
the reasons that follow, the motion is granted in substantial part.
II. LEGAL
STANDARD
“Section 425.16, subdivision (c) provides that ‘a
prevailing defendant on a special motion to strike shall be entitled to recover
his or her attorney’s fees and costs.’ [fn. 4] Under this provision, ‘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, 104
Cal.Rptr.2d 377, 17 P.3d 735 (Ketchum).)” Mann v. Quality Old Time
Service, Inc. (2006) 139 Cal.App.4th 328, 338.
“[A] party who partially prevails on an anti-SLAPP motion
must generally be considered a prevailing party unless the results of the
motion were so insignificant that the party did not achieve any practical
benefit from bringing the motion.” Id. at 340. The prevailing party determination
is one for the court’s discretion and is reviewed pursuant to an abuse of
discretion standard. Ibid.
III. ANALYSIS
A. Summary of Pleading and Procedural History
Plaintiffs are Diamond Dreams Productions, Inc. (DDP) and
its principal Simin Hashemizadeh (Hashemizadeh). Defendant landlords are Raffi
Paichuk (Paichuk) and Silva Baghdasarian (Baghdasarian). The complaint concerns
a commercial lease of real property located at 5535 Cahuenga Blvd. in North
Hollywood. An initial lease of five years was signed March 25, 2015. Complaint,
¶¶8, 10 and Exhibit 1 thereto. The lease is on a form captioned “Air Commercial
Real Estate Association - Standard Industrial/Commercial Single -Tenant Lease.”
The Lessor is identified as Paichuk and the Lessee as DDP. It is signed and
initialed by Paichuk and Hashemizadeh, as well as by a Broker identified as
Re/Max Optima.
Plaintiffs allege that in agreeing to the five year lease
extension they relied on Defendants’ representations that they would cooperate
with Plaintiffs’ zoning application to the City of Los Angeles for video
production. They allege that in January 2020, Defendants refused to respond to
Plaintiffs’ requests for a signature on the application. Complaint, ¶¶9, 11,
12.
Plaintiffs allege that in April 2020 they wrote to inform
Defendants of their inability to pay some portion of the rent due to the
Covid-19 pandemic, pursuant to the Los Angeles County Covid-19 Protection for
Commercial Tenants, which was extended to January 2022. This continued, with
additional notice provided in December 2020. Complaint, ¶21, 22. Plaintiffs
allege that in August 2021, they again demanded Defendants cooperate on the
application and Defendants again refused. Id. at ¶23.
In December 2021, Defendants served Plaintiffs with a 3-day
notice to quit and a Notice of Belief of Abandonment. Id. at ¶24. On
January 6, 2022, Plaintiffs notified Defendants they had not abandoned the
property. Id. at ¶25. On January 10, 2022, Plaintiffs discovered that
Defendants had changed the locks and attempted to take back possession. Id.
at ¶26. Plaintiffs allege that the Notice of Belief of Abandonment was improper
and was intended to harass. Id. at ¶31.
The Complaint alleged the following causes of action: (1)
Constructive Eviction; (2) Violation of LA County Covid-19 Eviction Moratorium;
(3) Breach of Lease; (4) Breach of the Implied Covenant of Good Faith and Fair Dealing;
(5) Interference with Quiet Enjoyment; (6) Nuisance; (7) Abuse of Process; (8) Fraud;
(9) Negligent Misrepresentation; (10) Promissory Estoppel; (11) Declaratory
Relief; and (12) Injunctive Relief.
Defendants responded to the pleading by filing a special
motion to strike as to the 2nd and 7th causes of action,
the only two causes of action based solely on the service of notice to quit and
notice of belief of abandonment (and not on lock-out activities).
On July 15, 2022, Judge Kralik heard argument on the
motion to strike and took the matter under submission. On August 1, 2022, he
issued an order granting the motion as to the 7th cause of action
alone.
On August 12, 2022, Judge Kralik heard Defendants’
demurrer, sustaining it in part and overruling it in part.
On August 30, 2022, Plaintiffs filed the operative First
Amended Complaint. It omits both the 2nd and 7th causes
of action.
B. Defendants Are Prevailing Parties on the SLAPP
Motion
There is no doubt that Defendants prevailed on their
anti-SLAPP motion. It eliminated from contention service of the notice of belief
of abandonment. The amended pleading focuses solely on Defendants’ evictions
actions. The special motion to strike thus narrowed the issues to be tried.
C. The Fees Are Granted in Part
“[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 trial court has broad authority to determine
the amount of the reasonable fee.” Ibid.
The Declaration of Adam Apollo, attached to the motion,
offers evidence in support of the fee award. The Court finds that Apollo’s
hourly rate of $350 is reasonable for the Los Angeles County legal community.
Based on the supplemental Apollo Declaration detailing
the time spent on each task, the Court finds that the time spent on each task was
reasonable. However, the Court believes
that it is reasonable to deduct the 1.5 hours for the January 20 hearing; the
.6 hours drafting his supplemental Declaration; and 2 hours for a second Reply,
which was not filed. The Court therefore
deducts 4.1 hours from the requested total, for an adjusted Lodestar of 36.1
hours. At Apollo’s hourly rate of $350,
this amounts to $12,635.00.
The request for costs of $60 for the filing fee is also
granted.
The total granted pursuant to this motion is therefore
$12,695.00.
IV. CONCLUSION AND ORDER
Defendants’ motion for an award of fees and costs as the
partially prevailing party on their special motion to strike is granted. Fees
awarded in the amount of $12,635.00, and costs in the amount of $60. The amounts are payable within 45 days.
Moving party is ordered to give notice.
Dated: _______________________________
MARGARET L. OLDENDORF
JUDGE
OF THE SUPERIOR COURT