Judge: Monica Bachner, Case: 19STCV14497, Date: 2023-03-09 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 19STCV14497    Hearing Date: March 9, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants Larchmont Place, LLC’s, and Massco Investments, Inc.’s, motion for attorney’s fees and costs on appeal against Plaintiffs Coffee + Food, LLC, and Art Works Studio & Classroom, LLC, and the instant motion is granted in the reduced total amount of $170,310.73.   

Defendants Larchmont Place, LLC (“Larchmont”), and Massco Investments, Inc. (“Massco”) (collectively, “Buyer Defendants”) move for an order awarding them attorney’s fees in the amount of $184,710.73 on appeal against Plaintiffs Coffee + Food, LLC (“Coffee”), and Art Works Studio & Classroom, LLC (“Art”) (collectively, “Plaintiffs”).  (Notice of Motion, pg. 2; C.C.P. §425.16(c)(1).)

          Background

On October 11, 2019, Buyer Defendants filed an anti-SLAPP motion, and on February 7, 2020, this Court issued an order granting in part Buyer Defendants’ anti-SLAPP motion, permitting Buyer Defendants to move for attorneys’ fees and costs under C.C.P. §425.16.  (2/7/20 Ruling.)  On October 26, 2020, this Court granted Buyer Defendants’ motion for attorneys’ fees in the amount of $107,534.36, finding Buyer Defendants were the prevailing party on Buyer Defendants’ anti-SLAPP motion.  (10/26/20 Ruling.)  On February 20, 2020, Plaintiffs filed an appeal of the anti-SLAPP order.  On March 14, 2022, the Court of Appeal filed its opinion, holding the issues on appeal were moot and reversing the order granting the anti-SLAPP motion and remanding to this Court to vacate this Court’s order for attorneys’ fees.  (3/14/22 Court of Appeal Opinion, pgs. 2, 20.)  On March 17, 2022, Buyer Defendants filed a petition for rehearing on the basis that it was improper for the Court of Appeal to instruct this Court to vacate this Court’s order for attorneys’ fees.  On April 12, 2022, the Court of Appeal issued an order modifying its 3/14/22 Opinion, deleting its previous instruction to this Court to vacate its order for attorneys’ fees.  (4/12/22 Court of Appeal Order Modifying Opinion.)  On April 14, 2022, Buyer Defendants filed a Petition for Review with the California Supreme Court regarding the mootness of its anti-SLAPP claims on appeal.  On June 22, 2022, the California Supreme Court denied Buyer Defendants’ Petition for Review.  On June 30, 2022, the Court of Appeal issued its remittitur, remanding this matter to this Court.  (6/30/22 Court of Appeal Remittitur.)

On August 9, 2022, Buyer Defendants filed the instant motion for attorneys’ fees and costs incurred on appeal.  On February 24, 2023, Plaintiffs filed their opposition.  On March 2, 2023, Buyer Defendants filed their reply.

Attorneys’ Fees Motion

As a preliminary matter, “the issue of [anti-SLAPP] attorney fees and costs [is not] rendered moot even by an involuntary dismissal.”  (See Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055; Moraga-Orinda Fire Protection District v. Weir (2004) 115 Cal.App.4th 477, 480 [holding “resolution of the underlying action [on the ground of lack of standing] does not moot a fee request under the SLAPP statute.”]; Liu v. Moore (1999) 69 Cal.App.4th 745, 750 [reversing trial court’s denial of defendants’ motion to attorneys’ fees based on the purpose of the anti-SLAPP statute “to give relief, including financial relief in the form of attorney’s fees and costs, to persons who have been victimized by meritless, retaliatory SLAPP lawsuits because of their ‘participation in matters of public significance’”].)

C.C.P. §425.16(c) provides for the recovery of attorney’s fees and costs incurred by the prevailing party in the appeal of an anti-SLAPP motion.  (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659, disapproved of on other grounds by Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53; Harbour Landing-Dolfann v. Anderson (1996) 48 Cal.App.4th 260, 263; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499.)

The amount to award for an anti-SLAPP motion is to be determined by the two-step lodestar-adjustment method.  Under the lodestar method, the trial court first calculates the “lodestar,” which consists of reasonable hourly rates multiplied by a reasonable number of hours.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.)  Per the lodestar method, “[t]he reasonable hourly rate is that prevailing in the community for similar work.”  (Id. at pg. 1132; PLCM Group, Inc. v. Drexler (2000) 22 Cal.App.4th 1084, 1095.)  The lodestar may then be adjusted to consider other factors including (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, and (4) the contingent nature of the fee award.  (Ketchum, 24 Cal.4th at pg. 1132, internal citations omitted.)

In determining the number of reasonable hours, C.C.P. §425.16(c) “is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit.”  (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443,446.)  Therefore, work done in responding to SLAPP suits beyond just the anti-SLAPP motion itself should be compensated, so long as the fees are associated in some manner with the Anti-SLAPP motion.  (Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 92 [“The fees awarded should include services for all proceedings . . . directly related to the special motion to strike”]; Wanland v. Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22, 23 [fees award includes fees litigating plaintiffs undertaking on appeal]; Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1659 [fees mandatory for defending order granting anti-SLAPP motion on appeal].)  The prevailing party is also entitled to fees and costs incurred in enforcing their right to mandatory fees via this motion.  (Ketchum, 24 Cal.4th at pg. 1141; Serrano v. Unruh (1982) 32 Cal.3d 621, 639.)

Buyer Defendants are the prevailing parties in this action and are entitled to recovery of attorneys’ fees on appeal because Buyer Defendants prevailed in defending their anti-SLAPP motion, the anti-SLAPP motion was only reversed on appeal based on mootness, the Court of Appeal explained that Plaintiffs could not prevail on any of the causes of action struck by the anti-SLAPP motion, and the Court of Appeal modified its original order vacating this Court’s order for attorneys’ fees.  (3/14/22 Court of Appeal Opinion at pg. 18; 4/12/22 Court of Appeal Order Modifying Opinion.) 

          Reasonableness of Hourly Rate

          Buyer Defendants have demonstrated the hourly rates requested for their counsel are reasonable and proper.  Buyer Defendants’ Counsel Ryan D. Kashfian declares his hourly rate was $600.00 per hour, Counsel Robert A. Kashfian’s hourly rate was $600.00, and law clerk Matthew M. Everts’ hourly rate was $185.00 while working on the anti-SLAPP appeal.  (Decl. of Kashfian ¶¶3, 5.)  Associate Eric W. Wang declares his hourly rate was $395.00 while working on the anti-SLAPP appeal.  (Decl. of Wang ¶¶3-4.)  Buyer Defendants have demonstrated counsel’s hourly rates are reasonable and commensurate with the rates of other attorneys of comparable skill and experience in the legal community.  (Decl. of Kashfian ¶¶4, 7-10, Exh. B; Decl. of Wang ¶¶3-4.)  

          Plaintiffs’ opposition attempts to relitigate the merits of the underlying anti-SLAPP motion, which is irrelevant and inappropriate with respect to the instant motion.  Plaintiffs do not challenge the reasonableness of Buyer Defendants’ counsel’s hourly rates on appeal and therefore concede the hourly rates are reasonable.

          Reasonableness of Fees Billed

Buyer Defendants request payment for a total of 291.44 hours of fees incurred on appeal for a total amount of fees on appeal for $162,303.50 and a total amount of costs for $1,383.08, for a total of $163,686.58 for fees and costs on appeal.  (Decl. of Kashfian ¶37, Exh. A.)  Buyer Defendants request payment for the instant motion, which Buyer Defendants’ counsel Ryan D. Kashfian declares took him 18 hours to prepare, and he anticipates an additional ten hours to review Plaintiff’s opposition and prepare a reply, and anticipates 2 hours to prepare to attend the hearing on the instant motion, $61.65 for the filing fee for the instant motion, and his associate’s work on the motion at the hourly rate of $395.00 for 7.5 hours, for a total of $21,024.15 on the instant motion.  (Decl. of Kashfian ¶38.)

Plaintiffs concede the total amount fees billed by Buyer Defendants’ counsel because they do not raise the issue in opposition, nor do they challenge any particular fees.  (See Opposition.)

Buyer Defendants’ requested fees for the instant motion and reply appear excessive and duplicative, with Partner Ryan D. Kashfian working on the instant motion for 18 hours in addition to an associate working on the motion for 7.5 hours.  (Decl. of Kashfian ¶38.)  For example, it was not necessary to list all of the cases cited and reviewed in briefs.  (See Decl. of Kashfian ¶ 36.) The reduction is reflected in the final award.

Accordingly, the Court grants Defendants’ motion for attorney’s fees and costs on appeal and for the instant motion for a reduced total of $170,310.73.

Dated:  March _____, 2023

Hon. Monica Bachner

Judge of the Superior Court