Judge: Michael P. Linfield, Case: 21STCV43076, Date: 2022-08-03 Tentative Ruling

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Case Number: 21STCV43076    Hearing Date: August 3, 2022    Dept: 34

SUBJECT:                 Defendants’ Motion for Attorney’s Fees

Moving Party:          Defendants Heritage Provider Network, Inc., Regal Medical Group, Inc., Sierra Medical Group, Inc., and Lakeside Medical Organization, a Medical Group, Inc. (collectively, “Heritage”)

Resp. Party:             Plaintiff Community Family Care Medical Group IPA, Inc. (“CFC”)

The Court awards the prevailing defendants’ attorney's fees and costs in the amount of $116,524.50.

I.           BACKGROUND

On November 23, 2021, Plaintiff Community Family Care Medical Group IPA, Inc. filed a verified complaint against Defendants Heritage Provider Network, Inc., Regal Medical Group, Inc., Sierra Medical Group, Inc., Lakeside Medical Organization, a Medical Group, Inc., Doll Amir & Eley, LLP, and Michael M. Amir to allege malicious prosecution.

On December 15, 2021, Plaintiff Community Family Care Medical Group IPA, Inc. filed a Verified First Amended Complaint against Defendants Heritage Provider Network, Inc., Regal Medical Group, Inc., Sierra Medical Group, Inc., Lakeside Medical Organization, a Medical Group, Inc., Doll Amir & Eley, LLP, and Michael M. Amir to allege malicious prosecution.

On April 26, 2022, Defendants moved the Court, “for an order striking and dismissing with prejudice the Complaint filed against Defendants by plaintiff Community Family Care Medical Group IPA, Inc. (“CFC” or “Plaintiff”), and for costs of suit incurred herein and such other relief as may be just. Defendants move to strike the Complaint against them on the grounds that it constitutes a “strategic lawsuit against public participation” pursuant to the Anti-SLAPP Statute. Plaintiff’s Complaint for malicious prosecution arises from “protected activity,” specifically, Defendants’ filing of a federal antitrust lawsuit against Plaintiff and others. Additionally, Plaintiff cannot show a probability of prevailing on the merits because there was no favorable termination on the merits of Defendants’ federal antitrust lawsuit, the lawsuit was brought with probable cause and without malice, and Plaintiff cannot show the element of damages, which Plaintiff waived.” (Motion to Strike, filed April 26, 2022, p. 1:9-18.)

On May 16, 2022, Defendants Heritage Provider Network, Inc., Regal Medical Group, Inc., Sierra Medical Group, Inc., Lakeside Medical Organization, A Medical Group, Inc., Doll Amir & Eley, LLP, and Michael M. Amir, (collectively, “Defendants”) applied for the Court to enter an order sealing (a) the unredacted versions of Exhibits 2 and 6 to the Declaration of Craig Steinberg filed in support of Plaintiff Community Family Care Medical Group IPA, Inc.’s (“CFC” or “Plaintiff”) Opposition to Motion to Strike, and (b) unredacted references to the contents of Exhibits 2 and 6 in Plaintiff’s Opposition. (Motion to Seal, filed May 16, 2022.)

On May 20, 2022, the Court granted Defendants Heritage Provider Network, Inc., Regal Medical Group, Inc., Sierra Medical Group, Inc., Lakeside Medical Organization, a Medical Group, Inc., Doll Amir & Eley, LLP, and Michael M. Amir’s Motion to Strike Pursuant to Code Civ. Proc. § 425.16.

On June 10, 2022, the Court granted Defendants’ application to seal (A) Unredacted Exhibits 2 and 6 to the Declaration of Craig Steinberg Filled in Support of Plaintiff’s Opposition to Motion to Strike and (B) References to the Unredacted Contents of Exhibits 2 and 6 in Plaintiff’s Opposition to Motion to Strike.

On July 11, 2022, Defendants Heritage Provider Network, Inc., Regal Medical Group, Inc., Sierra Medical Group, Inc., and Lakeside Medical Organization, a Medical Group, Inc. (collectively, “Heritage”) moved the Court “pursuant to California Code of Civil Procedure § 425.16, for an award of attorneys’ fees they have incurred and will incur through the date of hearing, and ask that they be awarded $178,114 in attorneys’ fees and costs against plaintiff Community Family Care Medical Group IPA, Inc. (“CFC”), and for costs of suit incurred herein and such other relief as may be just.” (Motion, p. 2:6-10.)

On July 20, 2022, Plaintiff Community Family Care Medical Group IPA, Inc. opposed Heritage’s motion for attorney’s fees.

On July 27, 2022, Heritage replied to CFC’s opposition.

II.        ANALYSIS

A.          Evidentiary Objections

Defendants Heritage Provider Network, Inc., Regal Medical Group, Inc., Sierra Medical Group, Inc., Lakeside Medical Organization, a Medical Group, Inc., Doll Amir & Eley, LLP, and Michael M. Amir (collectively, “Defendants”) hereby object to, and ask the Court to strike or disregard, the following portions of the Declaration of Craig S. Steinberg submitted by Plaintiff Community Family Care Medical Group IPA, Inc. in Support of Plaintiff’s Opposition to Defendant’s Motion for Attorneys’ Fees. (Defendants' Objections to Plaintiff's Evidence, p. 2:1-5.)

The following constitutes the Court’s rulings on Heritage’s objections.

B.          Legal Standard

A “prevailing defendant” on an anti-SLAPP motion “shall be entitled to recover his or her attorney fees and costs.” (CCP § 425.16, subd. (c)(1); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.) The fee award “should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.” (Id. [emphasis in the original].) A prevailing defendant on an anti-SLAPP motion is entitled to seek fees and costs incurred in connection with the anti-SLAPP motion itself but is not entitled to an award of attorney's fees and costs incurred for the entire action. (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 21; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383; 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 443; see also § 2:96. Mandatory attorney's fees and costs for a successful defendant, Anti-SLAPP Litigation § 2:96.)

Courts generally use a “lodestar” approach (i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate prevailing in the community for similar work) in setting an attorney's fee award under CCP § 425.16. (Ketchum, supra, 24 Cal.4th at 1136.) The lodestar amount may be adjusted in consideration of factors such as the experience of defense counsel and the novelty and difficulty of the issues involved in the action. (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 345; Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 487 (affirming multiplier of 1.25 to lodestar for attorney's fees); see also § 2:111. Lodestar approach, Anti-SLAPP Litigation § 2:111.)

C.          Discussion

Defendants Motion for Attorney’s Fees requests $178,114 in attorney fee and costs. (Motion, p. 2:8.)

1.           Hourly Rates

On May 20, 2022, the Court granted Defendants Heritage Provider Network, Inc., Regal Medical Group, Inc., Sierra Medical Group, Inc., Lakeside Medical Organization, a Medical Group, Inc., Doll Amir & Eley, LLP, and Michael M. Amir’s Motion to Strike Pursuant to Code Civ. Proc. § 425.16. (Minute Order,  The Court finds that Defendants Heritage Provider Network, Inc., Regal Medical Group, Inc., Sierra Medical Group, Inc., Lakeside Medical Organization, a Medical Group, Inc., Doll Amir & Eley, LLP, and Michael M. Amir are the prevailing party for the instant motion’s purposes.

The requested attorney and paralegal support staff rates are as follows:

        “In making its calculation [of a reasonable hourly rate], the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.”  (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41, quoting 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437.)

The Court finds these requested hourly rates reasonable.

2.           Number of Hours Worked

Following review of the Declarations of Jerrold Abeles, Michael M. Amir, and the Court finds that the following chart reasonably approximates Defendants’ attorney fee requests. (Abeles Decl., ¶¶ 15-21; Amir Decl., ¶ 15; Jassy Decl., ¶ 11.)

In opposition, CFC argues that Michael Amir represented himself and his firm in this action, and that fees for self-representation are not recoverable. (Opposition, p. 4:8-18; Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 252.) Further, CFC argues that the fees “reflect a massive duplication or work”, where CFC would “pay two law firms for doing the same thing.” (Opposition, p. 5:12-14.) CFC also argues that the SLAPP motion was uncomplicated, Heritage’s counsels’ billing records were inadequate, and that the billing records reflect work unrelated to the SLAPP motion. (Opposition, p. 7:24—9:24.)

Defendants note the following:

·                    “CFC declined the opportunity to dismiss the case, without paying any defense fees, after receiving a detailed letter identifying the complaint’s factual and legal defects.

·                    CFC passed on a second chance to dismiss the case, again without liability for defense fees, when defense counsel spent half an hour explaining the case’s defects to CFC’s attorney.

·                    Despite the Court’s encouragement, CFC refused to offer a single dollar towards the statutory award of attorneys’ fees to avoid the need for this motion.

·                    Case law supports the request by Doll Amir to recover defense fees incurred in this case to defend the Heritage defendants. See Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510. CFC presented no contrary authority.” (Reply, p. 3:13-22.)

Defendants also contest CFC’s argument that the case was simple, noting CFC’s briefing, and point to their counsels’ attempts to avoid duplication, as referenced in the reasonableness determinations by Jean-Paul Jassy. (Reply, p. 5:10 – p. 6:12; 9:25 – p. 11:18.)

3.           The Work Performed by Attorney Michael Amir

Michael Amir is a partner in the law firm of Doll Amir & Eley, LLP, and was also a defendant in this case.  (See Amir Declaration, filed 4/26/2022.)  There was one anti-SLAPP motion that was filed on behalf of all defendants.  (Motion to Strike Pursuant to CCP §425.16, filed 4/26/2022.)

Plaintiff is correct that an attorney cannot be awarded sanctions for representing himself or his firm.  (Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 252.)  Defendant Amir’s attempt to avoid this conclusion – by arguing that he was representing the Heritage defendants and not his own firm – is not convincing.  Rather, it appears that Amir’s work was done on behalf of all of the defendants, including himself and his law firm.  (See, e.g., Amir Declaration, Exh. C, filed 7/11/2022.)  It is not possible to parse what time was spent on behalf of which clients.

Further, the Court notes that the Amir records are so heavily redacted that it is impossible to determine what work DAE’s attorneys performed for the time requested.  All that can be discerned is that the attorney “reviewed” something or “drafted” something.  (See Amir Declaration, Exhs. A and B, filed 7/11/2022.)

The Court will not award attorney's fees to Amir for the time that he spent on this matter.

4.           Lodestar

        This Court is familiar with the anti-SLAPP motion and the quality of work done by counsel for all parties. 

        “The exercise of sound discretion by the trial court in the matter of attorney’s fees includes also judicial evaluation of whether counsel’s skill and effort were wisely devoted to the expeditious disposition of the case.”  (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870, quoting In re Marriage of Huntington (1992) 10 Cal. App. 4th 1513, 1524.) For this reason, “[a] trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 38, quoting Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271.)

        Defendants presented the declaration of Attorney Jassey, an attorney who has “litigated dozens of anti-SLAPP motions,” to support their billing rates and opine that the amount of time Defendants spent on the anti-SLAPP motion was reasonable. (See Jassy Declaration, ¶ 2.) The Court finds this type of declaration to be useless; any attorney can find an expert to testify that their rates and hours were reasonable, just as any attorney can find another expert to opine that the opposing party’s rates and hours were unreasonable.

        Although Plaintiff argues that Defendants spent an unreasonable amount of time on this matter, Plaintiff has not indicated the attorney's fees they incurred in opposing the anti-SLAPP motion.

“[T]here is one particularly good indicator of how much time is necessary [for the purpose of determining reasonableness of attorneys’ fees] . . . and that is how much time the other side’s lawyers spent . . . [S]uch a comparison is a useful guide in evaluating the appropriateness of time claimed. If the time claimed by the prevailing party is of a substantially greater magnitude than what the other side spent, that often indicates that too much time is claimed. Litigation has something of the tennis game, something of war, to it; if one side hits the ball, or shoots heavy artillery, the other side necessarily spends time hitting the ball or shooting heavy artillery back.” (Democratic Party of Washington State v. Reed (9^th Cir. 2004) 388 F.3d 1281, 1287.)

        Therefore, it is not uncommon for courts to compare opposing counsel’s fees to help determine whether the moving party’s fees are reasonable. That is because a “comparative analysis of each side’s respective litigation costs may be a useful check on the reasonableness of any fee request.”  (Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 273, 281, quoting Donahue v. Donahue (2010) 182 Cal.App.4th 259, 272.)

        Plaintiff requests that this Court award only $25,000 in attorney's fees for the anti-SLAPP motion but does not indicate how or why it picked this number.  (See Opposition, p. 10:10-15.)  More importantly, whether intentionally or not, Plaintiff has not supplied the Court with evidence or its own fees in opposing the anti-SLAPP motion. 

On the other hand, Defendants’ records are somewhat opaque.  The billing records are so heavily redacted that the Court cannot discern how much of the billed time was reasonably spent.  Instead, given the redactions, the Court can only determine that Defendants’ counsel spent time “drafting” or “analyzing” or “strategizing.”  (See Abeles Declaration, Exh. 3, filed 7/11/2022; Amir Declaration, Exhs. A and B, filed 7/11/2022.)

        The Court is left with only a generalized summary of the hours spent.  (Motion, p. 18:14-22.)

        As indicated above, the Court declines to award attorney's fees for the work performed by attorney Amir.  This results in a reduction in the lodestar of $22,748.  In addition, the Court finds that some of the work done by Defendants was unnecessary to the prosecution of their anti-SLAPP motion.  (The Court notes, in passing, that virtually all of the objections interposed by Defendants in both the anti-SLAPP motion and this motion for attorney's fees were overruled.)  In addition, “consistent precedent in California cases . . . provide[s] trial courts with the discretion about whether [or not] to penalize block billing.”  (Heritage Pacific Financial v. Monroy (2013) 215 Cal.App.4th 972, 1010, fn. 6. [italics in original; brackets added].)

        This Court has ruled on dozens of anti-SLAPP motions.  The Court determines that it was not reasonable for defendants’ attorneys to have spent $178,114 in attorney's fees and costs for this motion.

“[T]rial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time. And appellate courts must give substantial deference to these determinations, in light of ‘the district court’s superior understanding of the litigation.’ [Citations.] We can hardly think of a sphere of judicial decisionmaking in which appellate micromanagement has less to recommend it.” (Fox v. Vice (2011) 563 U.S. 826, 838.)

The Court will reduce the Defendants’ remaining requested fees by 25%.  This results in a lodestar of $116,524.50 as indicated below:

Requested lodestar            $178,114,00

– Amir hours                     $  22,748.00

                Remaining lodestar            $155,366.00

                – 25%                               $  38,841.50

                Court-Approved Lodestar    $116,524.50

III.     CONCLUSION

The Court awards the prevailing defendants’ attorney's fees and costs in the amount of $116,524.50.