Judge: Michael E. Whitaker, Case: 22STCV02576, Date: 2025-03-24 Tentative Ruling

Case Number: 22STCV02576    Hearing Date: March 24, 2025    Dept: 207

TENTATIVE RULING

BACKGROUND

This case arises from a fatal motorcycle accident whereby decedent hit a metal plate in the road while riding his motorcycle.  The metal plate was placed there in connection with a nearby construction project. 

On January 21, 2022, Plaintiffs Susana Madrid, Individually and as Successor in Interest to Decedent Joe Villa; and Daniel Villa, Individually and as Successor in Interest to Decedent Joe Villa (“Plaintiffs”) filed suit against Defendants Overland Asset Group, LLC (“Overland”); Oakmont Capital (“Oakmont”); Helio Group (“Helio”); Reed Architectural Group, Inc. (“Reed”); City of Los Angeles (“City”); County of Los Angeles (“County”); and State of California (“State”) alleging five causes of action for (1) Negligence; (2) Negligent Hiring, Retention, and Supervision; (3) Negligence – Dangerous Condition of Public Property; (4) Survival Action; and (5) Wrongful Death. 

On March 17, 2022, Plaintiffs added Defendant O.L. Development, Inc. (“O.L.”) via Doe amendment.  On June 13, 2023, Plaintiffs added Defendants Simon Lazar (“Lazar”) and Venue Residences, LLC (“Venue”) via Doe amendments.

Helio is the general contractor for the project at the site where the metal plate was located.  Lazar is the managing director of Helio and the manager of Venue, the owner of the construction project. 

On March 20, 2023, before Lazar was named as a defendant, the Court denied Plaintiffs’ motion to compel Lazar’s deposition on the basis that Lazar is an apex witness, and Plaintiffs had not met their burden to depose an apex witness.  (March 20, 2023 Minute Order.)  Specifically, the Court held “Plaintiffs have not shown that [Lazar] has unique or superior knowledge that could (sic) be obtained via any other source.  Should Plaintiffs later discover, via the discovery process, that there are certain questions only [Lazar] can answer, Plaintiffs will then be entitled to take [Lazar’s] deposition.”  (Ibid.)

After Plaintiff named Lazar and Venue via Doe amendments,  Lazar filed a special motion to strike the complaint as to Lazar, pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP) on the grounds that Plaintiffs’ decision to add Lazar was due to Lazar’s successful assertion of the apex doctrine in response to Plaintiffs’ motion to compel Lazar’s deposition, which is protected speech/petition activity.  On October 12, 2023, the Court denied Lazar’s anti-SLAPP motion.  Lazar timely appealed. 

On January 16, 2025, the Court of Appeal affirmed the Court’s October 12, 2023 order denying Lazar’s anti-SLAPP.

Plaintiffs now move to recover $43,500 in reasonable attorneys’ fees and $2,821.44 in costs incurred litigating the appeal.  Lazar opposes the motion and Plaintiffs reply.

ANALYSIS

I.                ATTORNEYS’ FEES

Code of Civil Procedure section 425.16, subdivision (c)(1) provides, in relevant part, “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.”  (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.)  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.)

Lazar opposes the motion on the grounds that (1) the appeal was not frivolous or solely intended to cause unnecessary delay; (2) the fees sought are unreasonable; and (3) the “other” costs sought are unsupported.

a.     Frivolous or Solely Intended to Cause Unnecessary Delay

In affirming this Court’s order denying Lazar’s anti-SLAPP, the Court of Appeal held:

In holding that perfecting an appeal from an order denying a special motion to strike under Code of Civil Procedure section 425.161 stays trial court proceedings on the merits, the Supreme Court recognized some such appeals “will undoubtedly delay litigation even though the appeal is frivolous or insubstantial.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 186, 195; see Oakland Bulk & Oversized Terminal, LLC v. City of Oakland (2020) 54 Cal.App.5th 738, 763 [a “‘major reason’” for the explosion of special motions to strike under section 425.16 “‘is that the statute rewards the filer of an unsuccessful . . . motion with what one court has called a “free time-out” from further litigation in the trial court’”].)  This is one of those appeals. And the timeout is over.

(Ex. B at p. 1, emphases added.)  Further, the Court of Appeal noted:

Lazar acknowledges that, under section 425.16, the plaintiff’s claim must “arise from” a defendant’s protected activity and that Madrid and Villa’s claim does not arise from such activity (or at least, in Lazar’s words, does not “ostensibly” arise from protected activity). As Lazar seems to recognize, claims that follow “directly,” are “triggered by,” or are filed “immediately after” protected activity does not mean the claims arose from that activity. Which is the law: “That a cause of action arguably may have been ‘triggered’ by protected activity does not entail that it is one arising from such. . . . [T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89; see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77 [“the mere fact an action was filed after protected activity took place does not mean it arose from that activity”]; Iloh v. Regents of University of California (2023) 94 Cal.App.5th 947, 958 [“for a moving party to meet the ‘arising from’ burden, ‘it is not enough to establish that the action was filed in response to or in retaliation for a party’s exercise of the right to petition’”].)

Recognizing the law is contrary to his position, Lazar makes only a prescriptive argument based, not on what the law is, but on what he believes it ought to be. (See Hume, A Treatise of Human Nature, Book 3, Part 1, Section 1 (1739) pp. 469-470 [discussing the is-ought problem].)

(Ex. B at p. 11-12 [emphases added].)

            Thus, the Court of Appeal has expressly held that Lazar’s appeal was demonstrably frivolous and solely intended to cause unnecessary delay.

b.           Reasonableness of Fees Sought

Plaintiffs seek $43,500 in reasonable attorneys’ fees, representing 58 hours at an hourly rate of $750 as follows:

·       2 hours to review appellant’s motion and supporting evidence

·       15 hours to research appellant’s legal authorities

·       20 hours to draft response to appeal

·       1 hour to review appellant’s reply

·       5 hours to review legal authority in appellant’s reply and prepare for oral argument

·       5 hours to prepare outline of arguments and issues to raise with the Court of Appeal

·       4 hours to appear at the hearing

·       6 hours to prepare this motion

(DeSantis Decl. ¶¶ 8, 10-17.)

Lazar first contests the $750 hourly rate sought as nearly double the $400 hourly rate sought in connection with counsel’s prior Motion to Compel, filed February 21, 2023.  Plaintiffs counter that $400 is their hourly rate for simple law and motion matters, such as a motion to compel, whereas $750 is their hourly rate to prepare briefing and appear before the Court of Appeal.  Plaintiffs further contend that $750 per hour is within the rates charged by private attorneys of similar skill, reputation, and experience for comparable appellate work.  (DeSantis Decl. ¶ 8.)  Therefore, the Court does not find the $750 hourly rate unreasonable.

Lazar also takes issue with the reasonableness of certain hours billed.  For example, Plaintiffs’ counsel spent an additional 15 hours researching and 20 hours drafting their opposition to the appeal, even though only seven additional cases were cited on appeal that were not cited in opposition to Lazar’s anti-SLAPP motion in this Court, and much of the rest of the briefing was identical.  Lazar contends that Plaintiffs are effectively seeking their costs incurred in connection with the underlying opposition to Lazar’s anti-SLAPP, which they already expressly waived in their opposition to the anti-SLAPP motion.

In Reply, Plaintiffs argue that Lazar does not present any authority that their request is improper.  The Court disagrees that Plaintiffs may effectively recover fees incurred in connection with the underlying opposition that Plaintiffs have already expressly waived.  Further, the Court agrees that the hours sought are excessive for the research and drafting work done in connection with the appeal, given how much of the appellate brief was duplicative of the underlying opposition.

As such, the Court reduces the research time to five (5) hours and the drafting time to eight (8) hours.

As such, the Court awards $27,000 in attorneys’ fees, representing 36 total hours at a rate of $750 per hour.

c.            Costs

Plaintiffs also seek $2,821.44 in costs as follows:

·       Filing and Motion fees $73.15

·       Service of process $556.03

·       Other $2,182.26

Lazar requests that Plaintiffs’ unspecified “other” costs be denied. 

Plaintiffs do not specify what the $2,182.26 in “other” fees encompass.  As such, the Court cannot evaluate whether these fees are permitted or expressly disallowed by statute.  Therefore, the Court taxes the $2,182.26 in “other” costs requested.

As such, the Court awards $629.18 in costs.

CONCLUSION AND ORDER

            Therefore, the Court finds that Lazar’s appeal was frivolous and solely intended to cause unnecessary delay, and grants in part Plaintiffs’ request for attorneys’ fees and costs.  The Court awards Plaintiffs $27,000 in attorneys’ fees and $629.18 in costs, and will enter the Order (as modified).

            Plaintiffs shall provide notice of the Court’s order and file the notice with a proof of service forthwith.

DATED:  March 24, 2025                                                      ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court