Judge: Michael E. Whitaker, Case: 20SMCV00587, Date: 2024-03-20 Tentative Ruling

Case Number: 20SMCV00587    Hearing Date: March 20, 2024    Dept: 207

tentative ruling

background

On April 17, 2020, Plaintiffs Craig Ross and Natalie Operstein (“Plaintiffs”) brought suit against Defendants Seyfarth Shaw LLP and Colleen Regan (“Defendants”), alleging eleven causes of action.  (See Complaint.)  On June 4, 2020, Defendants responded by filing a Special Motion to Strike under Code of Civil Procedure section 425.16 (“Anti-SLAPP motion”).  The day before the hearing on the Anti-SLAPP motion, Plaintiff filed a dismissal of the entire case.  (See October 27, 2020 Minute Order.)

On December 17, 2020, Defendants moved for attorneys’ fees.  On February 18, 2021, the Court granted Defendants’ motion, but reduced the amount from the requested $79,779 to $63,911, on the basis that the fifth, eighth, and ninth causes of action were properly subject to strike, but the first, second, third, fourth, sixth, seventh, tenth, and eleventh causes of action are “mixed” and arise in part from unprotected activity.  (See February 9, 2021 Minute Order & February 18, 2021 Minute Order.) 

Plaintiffs appealed the partial award of attorneys’ fees and Defendants cross appealed the partial denial.  The appellate court held in favor of Defendants, determining all causes of action arise entirely from protected activity, and remanded to the trial court with instructions to award the full $79,779 Defendants had originally requested.  The appellate court also held “Defendants shall recover their costs on appeal.”  (See Ross v. Seyfarth Shaw LLP (2023) 96 Cal.App.5th 722, 747.)

Defendants now request $95,640.66 in attorneys’ fees and costs incurred in connection with the appeal and in bringing the instant motion.  Plaintiffs oppose the motion and Defendants reply.

REQUEST FOR JUDICIAL NOTICE

            Plaintiffs request judicial notice of the following:

1.      Court of Appeal’s Stay Order on Plaintiff’s Petition for a Writ of Mandate (Case B280532)

2.      Court of Appeal’s Alternative Writ and Order to Show Case [sic] on Plaintiffs’ Petition for a Writ of Mandate (Case B280532)

3.      Court of Appeal’s Alternative Writ and Order to Show Case [sic] on Plaintiff’s Petition for a Writ of Mandate (Case 320316)

4.      Order in Plaintiff’s favor denying defendant’s anti-SLAPP motion in the Case SC125558, Ross e al. v. Board of Trustees of California State University

5.      Plaintiffs’ Petition for Review filed in the California Supreme Court.

Evidence Code section 451, subdivision (a) provides judicial notice shall be taken of “[t]he decisional, constitutional, and public statutory law of this state and of the United States[…]”  Similarly, Evidence Code section 452 provides judicial notice may be taken of

(a) [t]he decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state

[…]

(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States

[…]

(d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.

            Thus, the Court grants Plaintiffs’ request and takes judicial notice of all five exhibits as decisional law, official acts of the judicial departments, and/or court records.

DISCUSSION

            Plaintiffs argue that (1) the requested fees are not mandatory, and should be rejected on public policy grounds; and (2) the attorneys’ fees requested are unreasonable.

            Availability of Fees

Code of Civil Procedure section 425.16, subdivision (c)(1) provides that, except for certain cases brought pursuant to various sections of the Government Code, not relevant here, “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs.”  (Code Civ. Proc., § 425.16.)

“The appellate courts have construed section 425.16, subdivision (c), to include an attorney fees award on appeal.”  (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 287, as modified (Apr. 5, 2001).)

Section 425.16, subdivision (c) also includes “fees on fees” or “all hours reasonably spent, including those necessary to establish and defend the fee claim.”  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141.)

As such, the Court rejects Plaintiffs’ public policy arguments, which contradict clear precedent on the issue.

Plaintiffs also cite to Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, where the Court of Appeal denied plaintiff’s request for attorney fees on appeal because “Resolution of this issue, however, proved to be neither simple nor straightforward[.]”  (Id. at p. 458.)  But here, the Appellate Court expressly held that Defendants shall recover their attorneys’ fees on appeal.  (See Ross v. Seyfarth Shaw LLP (2023) 96 Cal.App.5th 722, 747.)

Therefore, the Court finds that Defendants are generally entitled to recover their attorneys’ fees incurred on appeal and in connection with bringing the instant motion.

Reasonableness of Fees

Plaintiffs argue the fees requested are unreasonable because (1) they are excessive and duplicative of the work and research done in connection with the underlying fee motion; (2) the $8,000 incurred for research and opposition of Plaintiffs’ request for relief from the undertaking requirement because that opposition was “meritless[,]” “unnecessary” and “unreasonable”; and (3) the requested fees should be denied or reduced for violations of the California Rules of Court.

1.      Duplicative Fees

Plaintiffs first contend that Defendant’s appellate briefs “repeat the argument and authorities presented in their trial court motions” and therefore Defendants were already adequately compensated by virtue of the award of $79,779 in attorneys’ fees for that work done in the trial court.  (Opp. at pp. 12-13.)  However, a review of the billing entries demonstrates that most of the entries were spent on things unique to the appeal, and the entries do not demonstrate a large amount of time was spent researching or drafting the same issues briefed in connection with the original anti-SLAPP motion.  Moreover, Plaintiffs do not point out any specific entries that they believe are impermissibly duplicative.  Therefore, the Court does not reduce any fees on the basis that they are duplicative.

2.      Undertaking

Plaintiffs next contend that the $8,000 incurred in connection with opposing Plaintiffs’ request for relief from the undertaking requirement should be denied, because that opposition was “meritless” “unnecessary” and “unreasonable.”  However, Plaintiffs provide no legal support for their contention that such fees are not awardable.  To the contrary, the attorneys’ fee provision of Section 425.16, subdivision (c) encompasses fees incurred “for litigating the adequacy of the plaintiff's undertaking.”  (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 21-23.)

Therefore, the Court does not reduce any fees incurred in connection with litigating the adequacy of the undertaking.

3.      Violations of California Rules of Court

Plaintiffs argue that Defendants’ requested fees should be reduced or denied because (1) Defendants violated California Rules of Court, rule 8.216(b)(2) by failing to separate in their combined brief the issues on appeal and on cross-appeal; (2) Defendants violated California Rules of Court, rule 8.278 by failing to file a Memorandum of Costs; and (3) Defendants violated California Rules of Court, rule 2.109 by beginning their numbering on the second page, restarting it several times within their motion.

In support of Plaintiffs’ argument that the fee request may be reduced due to failure to comply with California Rules of Court, Plaintiffs cite to Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.  The Court is unable to find a portion of Ketchum, on page 1132 or otherwise, standing for such a proposition.

Therefore, Defendants’ purported violations of the California Rules of Court do not provide a basis for the Court to reduce or deny Defendants’ requested attorneys’ fees.

Costs

Although not challenged by Plaintiffs, the Court additionally analyzes the costs sought, as though Defendants had submitted a memorandum of costs.

California Rules of Court, rule 8.278(d) provides as follows:

(d) Recoverable costs

(1)  A party may recover only the following costs, if reasonable:

(A)  Filing fees;

(B)  The amount the party paid for any portion of the record, whether an original or a copy or both. The cost to copy parts of a prior record under rule 8.147(b)(2) is not recoverable unless the Court of Appeal ordered the copying;

(C)  The cost to produce additional evidence on appeal;

(D)  The costs to notarize, serve, mail, and file the record, briefs, and other papers;

(E)  The cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply;

(F)  The cost to procure a surety bond, including the premium, the cost to obtain a letter of credit as collateral, and the fees and net interest expenses incurred to borrow funds to provide security for the bond or to obtain a letter of credit, unless the trial court determines the bond was unnecessary; and

(G)  The fees and net interest expenses incurred to borrow funds to deposit with the superior court in lieu of a bond or undertaking, unless the trial court determines the deposit was unnecessary.

            Most of the expenses sought are for filing fees, mail/messenger service fees, and for “printing & assembly of hard copy of plaintiff’s record (appellants’ appendix) submitted to court of appeal,” all of which are permitted under Rule 8.278(d).  However, Defendants also seek $850 for “First Legal Investigations Asset search[es]” for Craig Ross and Natalie Operstein ($425 each), $15 in a remote appearance fee (Jassy Decl., Ex. A, Invoice # 2894 at p. 3.)  These amounts are not permitted by the Rule.  Therefore, the Court deducts $865 from the requested $1,322.66 in costs.

Conclusion

Finding no legal or factual basis to deny or reduce Defendants’ requested attorneys’ fees, the Court grants, in part, Defendants’ Motion for attorneys’ fees and awards Plaintiff a total of $94,775.66, representing $94,318.89 in attorneys’ fees and $456.77 in costs incurred in connection with the appeal and in bringing this motion to recover fees and costs.

Defendants shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  March 20, 2024                                                      ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court