Judge: Mark A. Young, Case: 19SMCV99329, Date: 2023-08-15 Tentative Ruling
Case Number: 19SMCV99329 Hearing Date: August 15, 2023 Dept: M
CASE NAME: Dutton, et
al., v. Domanosvki, et al.
CASE NO.: 19SMCV99329
MOTION: Attorneys’
Fees Motion Post-Special Motion to Strike
HEARING DATE: 8/15/2023
Legal
Standard
“Under 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. The fee-shifting provision was
apparently intended to discourage such strategic lawsuits against public
participation by imposing the litigation costs on the party seeking to chill
the valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances. The fee-shifting provision also
encourages private representation in SLAPP cases, including situations when a
SLAPP defendant is unable to afford fees or the lack of potential monetary damages precludes a
standard contingency fee arrangement.” (Ketchum v. Moses (2001) 24
Cal.4th 1122, 1131.)
“It is well established that the
determination of what constitutes reasonable attorney fees is committed to the
discretion of the trial court, whose decision cannot be reversed in the absence
of an abuse of discretion. [Citation.]” (Melnyk v. Robledo (1976) 64
Cal.App.3d 618, 623 624.) The fee setting inquiry in California ordinarily
“begins with the ‘lodestar’ [method], i.e., the number of hours reasonably
expended multiplied by the reasonable hourly rate.” (Graciano v. Robinson
Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “[A] computation of time
spent on a case and the reasonable value of that time is fundamental to a
determination of an appropriate attorneys’ fee award.” (Margolin v. Reg’l
Planning Comm’n (1982) 134 Cal.App.3d 999, 1004.) The lodestar
figure 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. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 [discussing
factors relevant to proper attorneys’ fees award].) Such an approach anchors
the trial court’s analysis to an objective determination of the value of the
attorney’s services, ensuring that the amount awarded is not arbitrary. (Id.
at 48, fn. 23.) The factors considered in determining the modification of the
lodestar include “(1) the novelty and difficulty of the questions involved, (2)
the skill displayed in presenting them, (3) the extent to which the nature of
the litigation precluded other employment by the attorneys, (4) the contingent
nature of the fee award.” (Mountjoy v. Bank of Am. (2016) 245
Cal.App.4th 266, 271.)
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.¿(Premier Medical Management Systems, Inc. v.
California Ins. Guaranty Assoc. (2008) 163 Cal.App.4th 550, 564.)¿General
arguments that fees claimed are
excessive, duplicative, or unrelated do not suffice. (Ibid.)
Request
for judicial notice
Defendant’s request for judicial notice is GRANTED.
(Evid. Code § 452(d).)
Analysis
Plaintiffs James Dutton and
Patricia Dutton move for an order that Defendant Barry E. Cohen, a Professional
Corporation (“BEC”) and its counsel of record, Lee B. Ackerman, pay reasonable attorney’s fees and costs of
$31,685.00 incurred while defending against Defendant’s Special Motion to
Strike.
Timeliness
Defendant BEC opposes the motion
arguing that the instant motion is untimely. Defendant argues that the motion
needed to comply with California Rules of Court, rule 3.1702(b)(1). This rule
states that a “notice of motion to claim attorney's fees for services up to and
including the rendition of judgment in the trial court-including attorney's
fees on an appeal before the rendition of judgment in the trial court-must be
served and filed within the time for filing a notice of appeal under rules
8.104 and 8.108 in an unlimited civil case[.]” Rule 8.104(a) provides the normal
timing requirements for a fee motion. Unless otherwise provided, a notice of
appeal must be filed on or before the earliest of: “(A) 60 days after the
superior court clerk serves on the party filing the notice of appeal a document
entitled "Notice of Entry" of judgment or a filed-endorsed copy of
the judgment, showing the date either was served; [¶] (B) 60 days after the
party filing the notice of appeal serves or is served by a party with a
document entitled "Notice of Entry" of judgment or a filed-endorsed
copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days
after entry of judgment.”
The above-described provisions, however,
do not apply to a fee motion by a party that successfully opposed an anti-SLAPP
motion. No party has filed a notice of entry of judgment, no party has filed a
notice of appeal, and no judgment has been entered following the denied anti-SLAPP
motion. Notably, Defendant did not appeal the denial of the motion. There has
been no entry of judgment, thus no notice of entry of judgment could have been
served. Therefore, none of these time limitations would be triggered. Notably, Mallard
v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531 provides that a
motion seeking fees “following an order granting an anti-SLAPP
motion must be served and filed within the time limits for filing a notice of
appeal.” (Id., at 545, emphasis added, citing CRC Rule 3.1702(b),
8.104(a), (f); see Carpenter v. Jack in the Box Corp. (2007) 151
Cal.App.4th 454, 458 [“We interpret rule 3.1702 so that the time limits imposed
by the rule commence to run upon entry of judgment at the conclusion of a
lawsuit. Those time limits do not commence to run upon entry of a prejudgment appealable
order, such as an order granting or denying a special motion to strike under
section 425.16. Plaintiff's motion for attorney fees in this case was filed
before entry of final judgment and was timely under rule 3.1702.”].)
Thus, the above timing requirements
do not apply to this motion. As noted, none
of the circumstances described in Rule 8.104(a) have come to pass. As such, this
motion was made before: 1) 60 days after service of any Notice of Entry of Judgment;
and 2) 180 days after entry of judgment.
The motion is timely.
Even if the motion was untimely
filed, the Court has discretion to hear the motion. “For good cause, the trial
judge may extend the time for filing a motion for attorney's fees in the
absence of a stipulation or for a longer period than allowed by stipulation.”
(CRC Rule 3.1702(d).) Good cause is shown by the above case law demonstrating
that the cited timing requirements do not apply. Thus, Plaintiffs reasonably
filed the motion more than 60 days after the motion was granted.
Frivolous Anti-SLAPP Motion
“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.” (CCP § 425.16(c)(1).) “‘Frivolous’
means totally and completely without merit or for the sole purpose of harassing
an opposing party.” (CCP § 128.5 (b)(2).) A claim is factually frivolous if it
is “not well grounded in fact” and is legally frivolous if it is “not warranted
by existing law or a good faith argument for the extension, modification, or
reversal of existing law.” (Bucur
v. Ahmad (2016) 244 Cal.App.4th 175, 189–190.) In either case, the
moving party must show the party's conduct in asserting the claim was
objectively unreasonable. (Ibid.)
A claim is objectively unreasonable if “any reasonable attorney would agree
that [it] is totally and completely without merit.” (Ibid.)
Under these standards, courts have
found anti-SLAPP motions frivolous where the moving party unreasonably and
unnecessarily employed the anti-SLAPP motion. For example, courts have found
anti-SLAPP motions unreasonable where the moving party fails to show any basis
for protected activity. (See L.A. Taxi Cooperative, Inc. v. The Independent
Taxi Owners Assn. of Los Angeles (2015) 239 Cal.App.4th 918, 933 [“it was
well-established when defendants filed their motion that purely commercial
speech is not protected under the anti-SLAPP statute. Defendants cited no case…
finding advertisements designed solely to promote a party's goods or services
to be protected speech… defendants failed even to address this [point] when
they filed their second anti-SLAPP motion. Nor did they provide any reasonable
basis for arguing that their search advertisements were not purely commercial
speech.”]; Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th
454, 471 [while there was an issue of first impression as to whether statements
made in connection with employer's investigation of employee's alleged sexual
harassment were an “official proceeding authorized by law”, the anti-SLAPP motion
was still frivolous because defendant ignored the additional public interest
requirement; the issues involved a private employer's investigation of
harassment by an individual who was entirely outside the public eye, and thus was
not in connection with a public issue or an issue of public interest].)
Plaintiffs argue that the motion
was untimely and patently without merit. They note that the motion was designed
to delay the action, especially since the motion was untimely filed more than
60 days after the service of the Second Amended Complaint (SAC), and Defendant
obtained a continuance on the anti-SLAPP motion that they noticed via ex parte
application. Further, Plaintiffs argue that the motion was frivolous because
the SAC did not rest upon any alleged protected activity. Defendant failed to
meet its threshold showing that the SAC rested on any petitioning activity, contrary
to the claims of the motion.
Defendant moved to strike the
allegations concerning Cohen’s alleged assistance in committing
financial elder abuse by obtaining a portion of the Duttons’ $427,000.00,
secreting that money, and paying Ouriel from those funds. Defendant inferred
that Cohen must have been acting in his capacity as the attorney for his
client(s), including Marinescu, during the course of the alleged scheme.
Defendant posited that, to act as a “conduit” for passing funds from Marinescu
to Ouriel, he necessarily had to have communicated with his client. Defendant further
argued that the requisite knowledge for financial elder abuse could have only been
obtained from his representation of Marinescu. (See
Welf. & Inst. Code § 15610.30(b) [wrongful use turns on whether the alleged
abuser knew or should have known that taking an elder’s property was likely
to harm the elder].) Defendant concluded that such communications between
counsel and client were a part of his client’s right of petition, and that the
claim therefore arose from protected petitioning activity under
the anti-SLAPP statute.
The Court concurs that the motion
was frivolous, as Defendant failed to show any reasonable basis that the
conduct alleged in the SAC was protected under the anti-SLAPP statute. Given
the allegations and facts presented during the motion, no reasonable attorney
would have filed an anti-SLAPP on the grounds stated. The
Court agrees that Cohen and his client probably communicated at some point
during this alleged scheme. Further, the Court agrees that Cohen might have gained
knowledge of the harm to the Duttons during the pendency of his representation
of Marinescu. However, any communications between
Cohen and Marinescu were not the basis of this financial elder abuse suit. The
fact that Cohen incidentally gained any knowledge during his representation of Marinescu
would not mean that the claims of elder abuse arose from any petitioning activity.
If courts were to apply Defendant’s suggested rule,
then all cases involving an attorney and a client would be protected by the anti-SLAPP
statute, no matter the circumstances or the basis of the claims. Indeed, the
Court observed at the hearing that if the Court found that the instant claim
arose from protected activity, counsel and clients would be automatically insulated
from all tort liability (such as fraud) so long as they committed the tort
together.
As noted
in the underlying motion, caselaw is clear that “a claim may be struck only if the speech or petitioning
activity itself is the wrong complained of, and not just evidence of
liability or a step leading to some different act for which liability is asserted.”
(Park v. Board of Trustees of California State University (2017) 2
Cal.5th 1057, 1060, emphasis added; see Navellier v. Sletten
(2002) 29 Cal.4th 82, 89 [“the critical consideration is whether the cause of
action is¿based on¿the defendant’s protected free speech or petitioning
activity”].) The analysis
must focus on “the allegedly wrongful and injury-producing conduct that
provides the foundation for the claims.” (Castleman v. Sagaser (2013)
216 Cal.App.4th 481, 490-491.) Allegations that are merely incidental or
collateral to a plaintiffs’ claim are not subject to a motion to strike under
section 425.16. (Baral v.
Schnitt (2016) 1 Cal.5th 376, 394.)
“Allegations of protected activity that merely provide context, without
supporting a claim for recovery, cannot be stricken under the anti-SLAPP
statute.” (Ibid.)
Defendant’s anti-SLAPP motion did
not argue that the communication itself was the wrong alleged. Rather, the motion argued that the assumed communications
were a necessary step leading to the alleged misappropriation.
Considering this posture and the other issues discussed, any reasonable
attorney would agree that this argument could not support a finding of a protected
petitioning activity and thus was totally and completely without merit. As
Defendant did not provide reasonable grounds for the protected activity,
Defendant unreasonably and unnecessarily employed the anti-SLAPP motion.
Plaintiffs are therefore entitled to fees and costs associated with the underlying
motion.
Defendant also argues that this
motion is an improper motion for reconsideration. The instant fee request does
not improperly asks the court to reconsider any previously ruled on points. The
Court has never considered Plaintiffs’ entitlement to fees associated with the
anti-SLAPP motion. In the moving papers, Plaintiffs merely observe that
Defendant delayed the action by noticing the meritless anti-SLAPP motion, and
then securing a continuance on the motion. They do not request that the Court
reconsider any continuance, only that the continuance and untimeliness of the
anti-SLAPP motion might support a finding of delay. Thus, the motion is not an
improper motion for reconsideration.
Reasonable Fees
Plaintiffs seek attorney’s fees at
the rate of $600 per hour which they submit is reasonable for West Los Angeles.
Plaintiff’s counsel has been practicing in Los Angeles for 29 years, and a rate
of $600/hour is reasonable given his experience and the prevailing rate in the
legal community (Staub Decl., ¶¶ 13-22.)
Counsel claims 32.5 hours of time associated
with the anti-SLAPP motion. Counsel provides a breakdown of this time. (Id.
¶¶25-36.) This breakdown is as follows:
i) 3.75 hours reviewing the anti-SLAPP
Motion itself;
ii) 4.25 hours performing legal
research;
iii) 2.25 hours preparing the
request for judicial notice;
iv) 13.75 hours drafting and filing
the opposition;
v) 2.25 hours drafting the
opposition to the 2/7/23 ex parte application (to accept the late-filed
anti-SLAPP);
vi) 1.50 hours drafting the
opposition to the 2/22/23 ex parte application (to continue the anti-SLAPP,
among other things);
vii) 4.25 hours drafting a
permitted sur-opposition;
viii) .25 hours reviewing the
minute order denying the anti-SLAPP; and
ix) .25 preparing, filing and
serving a “Notice of Entry of Judgment or Order”.
Counsel also claims 19.50 hours of
attorney time spent on the instant fee motion. (Staub Decl., ¶¶ 38-44.) The
breakdown is as follows:
i) 3.75 hours conducting legal
research;
ii) 4.25 hours drafting;
iii) 2.75 hours revising;
iv) an anticipated 4.75 hours
reviewing the opposition and preparing a reply;
v) an anticipated 3.50 hours to
prepare for, attend, and return from the hearing; and
vi) an anticipated .5 hours
drafting and serving a notice of ruling.
Reviewing the amount of time
claimed, and the record provided, the Court finds that the requested fees are
inflated. Counsel spent an unreasonable amount of time on certain activities,
such as nearly four hours solely reviewing the anti-SLAPP motion, 2.25 hours
solely preparing the request for judicial notice, .25 hours reviewing a minute
order, .25 hours to serve a notice of ruling, and an anticipated 3.5 hours
traveling to and attending the instant hearing. In addition to adjusting the
time spent on the above activities to reasonable amounts, the Court also
believes that the overall time spent opposing the motion and drafting the
attorney’s fee motion to be unreasonable.
Therefore, the Court will award a reasonable fee of $21,000.00.
Plaintiffs also request costs in
the amount of $485.34. This includes $337.50 for a court reporter at the
anti-SLAPP hearing; $50.00 to have a courtesy copy of their opposition to the
SLAPP Motion delivered to Department M; $9.95 to send a courtesy copy of their
sur opposition to Department M; $61.65 to reserve the hearing date; $13.12 to
electronically file the Fee Motion; and a further $13.12 to file their reply in
support of the Fee Motion. (Staub Decl., ¶¶47-53.) The Court will not grant
costs for the courtesy copies ($59.95), but otherwise will grant the requested costs
for a total of $425.39.
Accordingly, Plaintiffs’ motion is
GRANTED in the reduced total amount of $21,425.39.