Judge: Monica Bachner, Case: 19STCV44270, Date: 2023-02-28 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: 19STCV44270    Hearing Date: February 28, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant James A. Frieden’s unopposed motion for attorney’s fees and costs on appeal against Plaintiff Pierre Richard is granted in the reduced total amount of $88,529.00.   

Defendant James A. Frieden (“Frieden”) (“Defendant”) moves unopposed for an order awarding him attorney’s fees in the amount of $89,820 and costs on appeal in the amount of $1709, against Plaintiff Pierre Richard (“Richard”) (“Plaintiff”) in the total amount of $91,529.00.  (Notice of Motion, pg. 2; C.C.P. §425.16(c).)

Plaintiff brought a malicious prosecution action against Defendant Frieden and non-moving Defendant Denise Tukes (“Tukes”) (collectively, “Defendants”).  On July 30, 2020, this Court granted Defendants Special Motion to Strike (“Anti-SLAPP Motion”) against Plaintiff’s complaint and held that Defendants are each entitled to file motions to recover their fees and costs under C.C.P. §425.16.  (7/30/20 Ruling.)  On August 8, 2020, this Court dismissed Defendants with prejudice from Plaintiff’s action and granted Defendants’ awards for attorney’s fees, awarding Defendant Frieden $49,071.50, pursuant to a court order dated January 21, 2021.  (Judgment of Dismissal.)  Plaintiff filed two appeals, the first against this Court’s decision to grant Defendants’ anti-SLAPP Motion and the second against this Court’s award of attorney’s fees to Defendants.  On June 12, 2022, the Court of Appeal affirmed both of this Court’s orders in a published opinion.  (Tukes v. Richard (2022) 81 Cal.App.5th 1.)

On October 13, 2022, Defendant Friedan filed the instant motion for fees and costs incurred to prevail against Plaintiff’s two appeals.  On February 21, 2023, Defendant Friedan filed a notice of non-opposition.

Attorney’s Fees Motion

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.  (Evans v. Unkow (1995) 8 Cal.App.4th 1490, 1499; Dove Audio, Inc. v. Rosenfeld Meyer & Susman (1996) 47 Cal.App.4th 777, 785; 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.)

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.)  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.  (Id. 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.)

Defendant Frieden is the prevailing party in this action and is entitled to recovery of attorney’s fees because Defendant Frieden prevailed in defending his anti-SLAPP motion and associated attorney’s fees and costs incurred on appeal.

          Defendant Frieden has demonstrated the hourly rates requested for his counsel are reasonable and proper.  Defendant Frieden’s Counsel Kenny C. Brooks declares his hourly rate is $600.00 per hour, Counsel Michael McCarthy’s hourly rate is $600, and Counsel Mark Schaeffer’s hourly rate is $600.  (Decl. of Brooks ¶¶22, 23-25.)  Plaintiff has 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 Brooks ¶¶21-25, Exh. F; Nemecek & Cole v. Horn (2012) 208 Cal.App.4th 641.)  Defendant Frieden requests payment for a total of 143.7 hours incurred on appeal, and 3 hours to prepare the instant motion for attorney’s fees, an additional five hours to review Plaintiff’s opposition, preparing a reply and attending the hearing, and costs in the amount of $1,709.00, for a total of $91,529.  (Decl. of Brooks ¶¶20, 27, Exh. E.)  Given the brevity of the instant motion and declaration, as well as the fact that no opposition was filed, the Court reduces the requested attorney’s fees to $89,729.00.  

Accordingly, the Court grants Defendant Frieden’s motion for attorney’s fees and costs on appeal in the reduced amount of $88,529.00.

Dated:  February _____, 2023

Hon. Monica Bachner

Judge of the Superior Court