Judge: Monica Bachner, Case: 19STCV44270, Date: 2023-03-01 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: March 1, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Denise Tukes’ motion for attorney’s fees and costs on appeal against Plaintiff Pierre Richard is granted in the reduced total amount of $48,997.50 in attorney’s fees plus costs in the amount of $591.51, totaling $49,589.01.

Defendant Denise Tukes (“Tukes”) (“Defendant”) moves for an order awarding her attorney’s fees and costs on appeal against Plaintiff Pierre Richard (“Richard”) (“Plaintiff”) in the total amount of $56,898.00.  (Notice of Motion, pg. 2; C.C.P. §425.16(c).)

Background

Plaintiff and Defendant Tukes’ mother are each 50% beneficiaries of the Adeline R. Bennett, M.D. Trust (“the Bennett Trust”). Defendant Tukes is not a beneficiary of the Trust.  (Decl. of Frieden ¶1.)  The Bennett Trust and the Pitts Grandchildren’s Trust (“the Pitts Trust”) (collectively “the Trusts”) owned an EPA Superfund Site in California (“the Property”).  Defendant Tukes located a buyer for the Property leading to a $13 million sale and thereafter sought to collect a finder’s fee for her efforts. Defendant Tukes eventually retained an attorney, Defendant James A. Frieden (“Frieden”) (“Defendant”), to file a civil action against the trustees of the two trusts seeking to collect the finder’s fee, LASC Case No.185TCV09049 (“the Civil Action”).  (Decl. of Frieden ¶¶2, 3.)

Plaintiff was never a party to this case but filed an unauthorized answer to Defendant Tukes’ Complaint. On April 4, 2019, Defendant Tukes dismissed her Civil Action without prejudice against the Bennett Trust trustee. The Pitts Trust trustee removed the Civil Action to the U.S. District Court.  Defendant Tukes and the Pitts Trust trustee then settled, with Defendant Tukes dismissing the now federal action against the Pitts Trust trustee with prejudice. (Decl. of Frieden ¶¶4, 5.)  On November 14, 2019, Defendant Tukes filed a creditor’s petition in the Probate Division of LASC against the Trustee of the Bennett Trust seeking an award of her finder’s fee against the Bennett Trust trustee (“Tukes’ Finder’s Fee Creditor’s Petition”).  Plaintiff appeared and opposed the Petition, using Probate Division procedures.  (Decl. of Frieden ¶6.)

Thereafter, on December 10, 2019, Plaintiff brought this malicious prosecution action against non-moving Defendant Frieden and Defendant Tukes (collectively, “Defendants”).  On July 30, 2020, this Court granted Defendants’ Special Motion to Strike (“Anti-SLAPP Motion”) 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 and granted Defendants’ awards for attorney’s fees, awarding Defendant Tukes $26,905, 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 August 5, 2020, after this Court’s July 30, 2020  anti-SLAPP rulings striking Plaintiff’s Complaint, Defendant Frieden, acting in pro per and as attorney for Defendant Tukes, filed in the Bennett Trust proceedings in the Probate Division, a Petition for an order directing the trustee to hold $208,711 of the funds of beneficiary Pierre Richard to pay the judgment against Richard in this case (hereinafter, “the Asset Protection Creditors’ Petition”).  (Decl. of Frieden ¶13.)  The Asset Protection Creditors’ Petition sought to secure sufficient funds from Richard’s Trust distributions in an amount sufficient to satisfy this Court’s existing anti-SLAPP fee requests then pending in this Court for both Defendants (a total of $78,711) and the expected additional anti-SLAPP fees and costs award if Plaintiff’s appeals were unsuccessful (an additional estimated $130,000).  (Decl. of Frieden ¶¶13, 14, Exh. D.) 

On or about January 29, 2021, Plaintiff filed a demurrer to the Asset Protection Creditors’ Petition.  (Decl. of Frieden ¶19.)  On August 21, 2021, the Probate Division Court overruled the demurrer as to the then-current judgment for

Defendants for anti-SLAPP attorney’s fees and costs and sustained the demurrer as to any potential award of anti-SLAPP fees and costs arising from work relating to the appeal.  (Decl. of Frieden ¶19, Exh. F.)

          After Plaintiff lost his appeals, on or about October 12, 2022, Plaintiff paid the anti-SLAPP fees and costs to Defendants which mooted the Asset Protection Creditors’ Petition.  (Decl. of Frieden ¶26.)

On December 30, 2022, Defendant Tukes filed the instant motion for fees and costs incurred to prevail against Plaintiff’s two appeals.  On February 17, 2023, Plaintiff filed his opposition.  On February 22, 2023, Defendant Tukes filed her reply.

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.  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, or “fees on fees.”.  (Ketchum, 24 Cal.4th at pg. 1141 [“follow[ing] the rule of the overwhelming majority of courts that have considered the question .... [w]e hold ... that, absent circumstances rendering the award unjust, fees recoverable ... ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the fee claim. The amount of litigation on this issue typically lies in the plaintiff's hands: having litigated the matter tenaciously, Ketchum  cannot ... be heard to complain about the time necessarily spent by the [defendant] in response.”  [citations and internal quotation marks omitted].])

Defendant Tukes is the prevailing party in this action and is entitled to recovery of attorney’s fees because Defendant Tukes prevailed in defending her anti-SLAPP motion and associated attorney’s fees and costs incurred on appeal.  Further, Defendant Tukes is entitled to fees and costs incurred to recover her resulting fee award.

          Defendant Tukes has demonstrated the hourly rates requested for her counsel are reasonable and proper.  Defendant Tukes’ Counsel James A. Frieden declares his hourly rate for this case is $450.00 per hour and Counsel Benjamin Bastomski’s hourly rate is $250.  (Decl. of Frieden ¶¶27, 28.)  These rates are reasonable and commensurate with the rates of other attorneys of comparable skill and experience in the legal community.  (See Decl. of Frieden ¶¶27, 28.)

Defendant Tukes requests payment for attorney’s fees for Counsel Frieden for a total of 28.05 hours incurred on appeal, 12.8 hours incurred for the Asset Protection Creditors’ Petition, 14 hours for settlement discussions, and 23.2 hours for post-judgment fees and costs including preparation of the instant motion, for a total of 78.05 hours for a total of $35,122.50.  (Decl. of Frieden ¶31, Exh. A.)  Defendant Tukes requests payment for attorney’s fees for Counsel Bastomski for a total of 57.8 hours on appeal, 9.5 hours incurred for the Asset Protection Creditors’ Petition, and 17.4 hours for post-judgment fees and costs including preparation of the instant motion, for a total of 84.7 hours for a total of $21,175.  (Decl. of Frieden ¶31, Exh. A.)  The combined total of requested attorney’s fees is $56,297.50.  (Decl. of Frieden ¶31, Exh. A.)   In addition, Defendant Tukes requests $591.51 in costs.  The Court notes that there is no opposition to the costs, and that in reply, Defendant Tukes suggest that Plaintiff should get a $1,000 credit.

Plaintiff’s opposition to Defendant Tukes’ request for attorney’s fees does not challenge the reasonableness of counsels’ hourly rates or the reasonableness of counsels’ hours in litigating the anti-SLAPP appeals, nor the costs.  (See Opposition.)  Plaintiff opposes Defendant Tukes’ requested attorney’s fees in the probate case, namely costs from the Asset Protection Creditors’ Petition and post-judgment fees and costs, are based entirely on attorney’s fees in probate, and there is no authority for the court to award attorney’s fees for attorney time in settlement discussions.  (Opposition, pgs. 2-3.)

Defendant Tukes’ request for attorney’s fees related to costs from the Asset Protection Creditors’ Petition, and post-judgment fees and costs all relate to the anti-SLAPP motion and were reasonably necessary to enforcement are recoverable regardless of the proceeding in which they were incurred.  (See Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 936 [C.C.P. §685.040 entitled judgment creditor to recover fees incurred in opposing debtor’s bankruptcy petition, in order to protect creditor’s ability to collect award]; Globalist Internet Technologies, Inc. v. Reda (2008) 167 Cal.App.4th 1267, 1275 [attorney fees incurred in defending a separate action to enforce a settlement were recoverable under C.C.P. §685.040, where that defense was necessary to protecting rights under judgment in first action]; see also York v. Strong (2015) 234 Cal.App.4th 1471, 1477 [“attorney fees incurred in an effort to enforce a fee judgment obtained under the anti-SLAPP law do qualify as recoverable costs under section 685.040”].)  Defendant Tukes’ Creditor’s Petition was reasonably necessary in efforts at enforcement and its expenses are therefore reimbursable in the full requested amount of $8,135. Fees incurred for filing the instant motion are fees necessarily expended in securing Defendant Tukes’ mandatory fee award and are therefore recoverable in the full amount of $14,790.

However, Defendant Tukes fails to provide persuasive authority to the entitlement to fees expended in settlement  discussions, thus the Court will deduct $6,300 (14 hours x $450/hour).

Defendant Tukes states in reply that Counsel Frieden spent less time drafting his reply than originally estimated, and Plaintiff should be credited of two hours of attorney’s fees, or $1,000 related to post-judgment fees and costs.

Accordingly, the Court grants Defendant Tukes’ attorney’s fees in the reduced amount of $48,997.50 plus costs in the amount of $591.51, totaling $49,589.01.

Dated:  March _____, 2023

Hon. Monica Bachner

Judge of the Superior Court