Judge: Michael P. Linfield, Case: 22STCV05772, Date: 2022-08-01 Tentative Ruling

Case Number: 22STCV05772    Hearing Date: August 1, 2022    Dept: 34

SUBJECT:                 Motion for Attorney’s Fees

Moving Party:          Defendant United Escrow Co.

Resp. Party:            Plaintiff Caroline S. Lee

The Court GRANTS Defendant United Escrow Co.’s request for attorney’s fees and costs in the amount of $39,236.96, which includes $38,550 for attorney’s fees and $686.96 in costs and expenses.

BACKGROUND:

On February 15, 2022, Plaintiff Caroline S. Lee (“Plaintiff”) filed a complaint against Defendants United Escrow Co. (“United”), Tracy Ko (“Ko”), and Douglas Chadwick Biggins (“Biggins”) to allege a single cause of action for abuse of process.

On March 3, 2022, Defendant United moved the Court, “pursuant to Code of Civil Procedure § 425.16, to strike the Complainant filed by Caroline S. Lee (“Lee") filed on or about 2-15-2022, alleging a single cause of action for abuse of process.” (Anti-SLAPP Motion, p. i:21-23.)

On March 7, 2022, counsel for Defendants filed a Notice of Related Case to state that Case No. BC697147 involves the same parties, arises from the same or substantially identical transactions, incidents, or events. (Notice of Related Case, filed March 7, 2022, ¶ 1(h).)

On March 22, 2022, Defendant United moved the Court, “pursuant to Code of Civil Procedure § 425.16, to strike the Complainant [sic] filed by Caroline S. Lee (“Lee") filed on or about 2-15-2022, alleging a single cause of action for abuse of process. Respondent reserves the right to request attorney’s fees by way of subsequent motion.” (Anti-SLAPP Motion, p. i:21-24.)

On May 12, 2022, Lee opposed United’s “motion, pursuant to Code of Civil Procedure § 425.16, to strike the Complaint filed by Caroline S. Lee (“Lee") filed on or about 2-15-2022, alleging a single cause of action for abuse of process.” (Opposition, p. 1:23-25.)

On May 17, 2022, United replied to Lee’s opposition.

On May 24, 2022, the Court granted United’s Anti-SLAPP motion. (Minute Order, filed May 24, 2022, p. 11, last paragraph.)

On July 5, 2022, United moved the Court “pursuant to Code of Civil Procedure § 425.16 for an award of its attorney’s fees incurred in connection with the granting of its anti-SLAPP motion on May 24, 2022.” (Notice of Motion for Attorney’s Fees (“Notice”), p. 1:19-21.) “United requests an award of $77,786.96, which is its reasonable attorney’s fees and costs, including a 2x multiplier pursuant to [Ketchum v. Moses (2001) 24 Cal.4th 1122], or whatever amount the Court deems appropriate.” (Notice, p. 1:21-23.)

On July 20, 2022, Plaintiff filed an opposition contending that she “opposes Defendant United Escrow’s … award of attorney’s fees, in [sic] entirety, supposedly incurred in connection with the Court’s granting of its anti-SLAPP motion on May 24, 2022.” (Opposition, p. 1:22-25.)

On July 22, 2022, United filed its reply.

ANALYSIS:

United seeks a total of $77,786.96 in fees and costs, which includes $38,550 in attorney fees, a 2x multiplier, and $686.96 in costs. (Motion, pp. 5:11-19; 6:23-25.)

It is undisputed that Plaintiff is the prevailing party because the Court granted United’s Anti-SLAPP motion on May 24, 2022. Therefore, United is entitled to recover reasonable attorney’s fees and costs under Code of Civil Procedure section 425.16.

A.  Legal Standard

Attorneys' fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).)

California Code of Civil Procedure § 425.16(c)(1) states, “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” This 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.’ [Citation.]” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 (“Ketchum”).) Code of Civil Procedure § 425.16 “permits the use of the so-called lodestar adjustment method under our long-standing precedents, beginning with Serrano v. Priest [(1977) 20 Cal.3d 621, 639, fn. 29.]” (Ibid.) 

“Under California law, the trial court begins by fixing a ‘lodestar’ or ‘touchstone’ reflecting a compilation of the time spent and reasonable hourly compensation of each attorney or legal professional involved in the presentation of the case.” (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171 (“Weeks”).)

After fixing the lodestar, the court “adjusts [that] figure in light of a number of factors that militate in favor of augmentation or diminution.” (Weeks, supra, 63 Cal.App.4th at p. 1171.) Those factors 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. [Citation.]” (Ibid.)

The attorney bears the burden of proof regarding the “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5).) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Ibid.) 

A plaintiff’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (See Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) “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. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488, quoting Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 564.)

B.  Request for Attorney’s Fees

Defendant United $38,550 in attorney fees. United submits its counsel’s declaration to attest to the nature and value of the attorney services rendered. Defense counsel attests to the following facts.

Counsel reasonably incurred at least 51.40 hours in connection with United’s anti-SLAPP motion for the following reasons. (Motion, Declaration of Chad Biggins (“Biggins Decl.”), ¶ 5.) On February 16, 2022, after Plaintiff filed her complaint, Defendant reserved United’s anti-SLAPP motion, but the only available hearing was on August 8, 2023. (Motion, Declaration of Chad Biggins (“Biggins Decl.”), ¶ 2.) Therefore, on March 21, 2022, defense counsel filed an ex parte application to advance the hearing date on the anti-SLAPP motion “in the new IC court (Dept. 56). (Biggins Decl., ¶ 3.) However, the court denied the ex parte and asked counsel to make a new reservation and re-file the motion, which he did. (Biggins Decl., ¶ 3.) “On April 21, 2022, an ex parte application was filed in related case BC697147 seeking to reset, inter alia, the hearing on United’s anti-SLAPP motion.” (Biggins Decl., ¶ 4.) “That matter was heard in Dept. 34 on 4/22/2022 and [counsel] was directed to meet and confer with opposing counsel as to the date and then to reset the hearing through the judicial assistant, which [he] did and the hearing was reset for 5/24/2022.” (Biggins Decl., ¶ 4.)

Counsel charges $750 per hour. (Biggins Decl., ¶ 5.) Therefore, United requests $38,550 in attorney fees, which is the 51.40 hours counsel expended in connection with the anti-SLAPP multiplied by the $750 per hour billing rate.

Plaintiff has not challenged the basis of United's requests for attorney’s fees by arguing that the requested fees are unreasonable. “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. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488, quoting Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Ass'n (2008) 163 Cal. App. 4th 550, 564.)

Instead, Plaintiff makes arguments that are irrelevant to this motion. (Cf. Opposition p. 4:12 [“Biggins still has not produced the telephone log despite court order”].) In addition, no evidence has been presented to support the arguments raised by Plaintiff’s counsel. (See Declaration in Support of Opposition to Motion for Attorney Fees, pp. 1:22-2:19 [failing to attest to the facts stated in the opposition].) “[T]he arguments of counsel in a motion are not a substitute for evidence, such as a statutorily required affidavit.” (Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 556 [emphasis in original]; Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 [“absolutely no evidence was submitted to support this factual claim . . . . Argument of counsel is not evidence”].)

As United states in its reply, Plaintiff’s opposition “fails to raise any legitimate objection to the motion for mandatory attorney’s fees pursuant to the anti-SLAPP statute. . . .” (Reply, p. 2:25-27.)

This Court is familiar with the case, having heard the anti-SLAPP motion.  This Court has also reviewed defense counsel’s billing entries. (Motion, Biggins Decl., ¶ 4; Exhibit A – Biggins Law Group billing entries.) The Court finds the hours spent and the billing rate reasonable. 

Accordingly, the Court GRANTS United’s attorney’s fees in the amount of $38,550.

C.  Request for a Multiplier

“[T]he trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof.” (Ketchum, supra, 24 Cal.4th at p. 1138 [italics in original].)

United requests a 2x multiplier arguing that this action was (1) taken on a contingency basis and (2) novel, difficult, and undesirable. (Motion, p. 6:15-17.) However, United does not provide facts showing why this action was novel, difficult, or undesirable.  More importantly, the Court, having heard the anti-SLAPP motion, does not consider that the issues raised in the motion were novel or difficult.  The Court also has no evidence to indicate that this case was taken on a contingency basis.  (See Declaration in Chad Biggins  [failing to attest to the facts that this case was taken on a contingency basis.])  

The Court finds that United has failed to meet its burden of proving it should be awarded a fee enhancement. In addition, the Court finds that the lodestar has adequately compensated defense counsel for his services.

Accordingly, the Court DENIES United’s request for a multiplier.

D.  Requests for Costs

Allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) Any items not specifically mentioned by statute “may be allowed or denied in the court's discretion.” (Id., subd. (c)(4).)

 United seeks $686.96 in costs. Defense counsel declares that the amount consists of (a) a first appearance fee of $446.96, and (b) filing fees of $240 (including filing fees for two ex parte applications and one anti-SLAPP motion). (Biggins Decl., ¶ 6.)

Plaintiff’s opposition does not challenge the costs.

The Court finds the costs were reasonably necessary to the conduct of the litigation because they are filing fees. In addition, filing fees are expressly allowed under Code of Civil Procedure section 1033.5, subdivision (a)(1): “The following items are allowable as costs under Section 1032: ¶ (1) Filing, motion, and jury fees.”

Accordingly, the Court GRANTS United’s costs in the amount of $686.96. 

E.   Conclusion

The Court GRANTS Defendant United Escrow Co.’s request for attorney’s fees and costs in the amount of $39,236.96, which includes $38,550 for attorney’s fees and $686.96 in costs and expenses.