Judge: Nathan Vu, Case: 2022-01245789, Date: 2022-09-12 Tentative Ruling
Motion for Attorneys’ Fees
The motion for attorneys’ fees of Defendant Gabriella Banducci is GRANTED in part and DENIED in part.
The court AWARDS Defendant Gabriella Banducci attorneys’ fees and costs in the amount of $4,734.97 and ORDERS Plaintiff Orange County Shutters Corp. to pay said amount to Defendant Gabriella Banducci.
Defendant Gabriella Banducci (Gabriella Banducci) requests an award of attorneys’ fees and costs of $27,591.97 based on the granting of her Anti-SLAPP special motion to strike.
Pursuant to Civil Procedure Code section 425.16(c), “any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131; see Code Civ. Proc., § 425.16, subd. (c)(1) [“[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.”].)
Attorneys’ Fees for Derek Banducci
At the same time, “an attorney who chooses to litigate in propria persona and therefore does not pay or become liable to pay consideration in exchange for legal representation cannot recover ‘reasonable attorney's fees’ under Civil Code section 1717 as compensation for the time and effort he expends on his own behalf or for the professional business opportunities he forgoes as a result of his decision.” (Trope v. Katz (1995) 11 Cal.4th 274, 292.)
The rule in Trope v. Katz also applies to the recovery of attorney fees pursuant to a successful Anti-SLAPP motion. (See Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1208.) But “[a]n attorney appearing in an action on his own behalf may nevertheless retain outside counsel for assistance, and the legal expenses incurred for such outside representation may be included in an award of attorney fees.” (Id. at pp. 1211–1212.)
Here, Gabriella Banducci seeks attorneys’ fees and costs for work done by both defense counsel Cathy Pham Zotti and Derek Banducci.
Plaintiff opposes the motion for attorneys’ fees on the basis that Derek Banducci is the husband of Gabriella Banducci and was himself a named defendant in this action.
Gabriella Banducci argues that the special motion to strike was brought only by herself and not by Derek Banducci as a defendant, and that she is a separate person from Derek Banducci and is entitled to hire him as her counsel.
Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44 is instructive. There, the Court of Appeal noted:
“[I]n this case, husband and wife sued for and obtained recovery for the defective construction of their residence. There is no indication that [wife] suffered any damages apart from those suffered by her husband. Their interests in this matter appear to be joint and indivisible. There is no claim that [husband] spent extra time in this case representing his wife in addition to the time he spent representing himself. There is no claim that each of them owes half his fees. Their community estate is liable for their contracts. (Fam. Code, § 910, subd. (a).) Since [husband’s] billable hours appear to be entirely attributable to representing his common interests with Cheng, we conclude that the rule of Trope applies to this situation.”
(Id. at p. 95.)
This case presents similar facts. The dispute here revolves around custom shutters that were to be installed at the residence of Gabriella Banducci and Derek Banducci. The original complaint stated a cause of action for breach of contract based on a Custom Order Contract that listed “Derek & Cathy Banducci” as parties. The remaining operative cause of action for common counts/quantum meruit is asserted against both Gabriella Banducci and Derek Banducci, relating to the installation of the same custom shutters at their residence.
There is no indication that Cathy Banducci is alleged to have any liability separate and apart from the liability of Derek Banducci. Nor is any argument made that Derek Banducci spent extra time in this case representing Cathy Banducci that also did not benefit himself. For example, while the special motion to strike was brought by and granted only as to Cathy Banducci, in preparing the first amended complaint, Plaintiff removed the malicious prosecution cause of action against both Cathy Banducci and Derek Banducci.
Therefore, Defendant may recover the attorney fees billed by Attorney Cathy Pham Zotti, but not by Attorney Derek Banducci. (fn.1)
Attorney’s Fees for Cathy Pham Zotti
It is axiomatic that “[a] trial court ‘assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case.’” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.)
“The moving party has ‘the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.’” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.)
This court will first consider whether the attorney’s billing rate is reasonable, given the “reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)
“The trial judge is ‘the best judge of the value of professional services rendered in his court.’” (Ketchum v. Moses (2001) 24 Cal.4th 112, 1132.) “In making its calculation, 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 . . . the difficulty or complexity of the litigation to which that skill was applied . . . and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (569 E. County Boulevard LLC v. v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436–437. )
Attorney Cathy Pham Zotti billed at a rate of $300.00 per hour. No real argument is made that this rate is unreasonable and the court finds that it is consistent with the reasonable hour rate prevailing in this community for similar work.
This court will then consider the time spent by the attorney. In doing so, “[a] trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended. . . . Reasonable compensation does not include compensation for . . . inefficient or duplicative efforts . . . .’” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271-272.)
Further, the defendant may recover fees and costs “only for the motion to strike, not the entire litigation.” (Christian Research Inst. v. Alnor (2008) 165 Cal. App. 4th 1315, 1320.) As explained by the Court of Appeal in 569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal. App. 5th 426:
“[A] fee award under the anti-SLAPP statute may not include matters unrelated to the anti-SLAPP motion, such as ‘attacking service of process, preparing and revising an answer to the complaint, [or] summary judgment research.’ . . . Similarly, the fee award should not include fees for ‘obtaining the docket at the inception of the case’ or ‘attending the trial court's mandatory case management conference’ because such fees ‘would have been incurred whether or not [the defendant] filed the motion to strike.’ . . . In short, the award of fees is designed to ‘reimburs[e] the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit’ . . .rather than to reimburse the defendant for all expenses incurred in the baseless lawsuit.”
(Id. at pp. 433, citations omitted.)
Attorney Cathy Pham Zotti submitted a declaration with her detailed billing. (ROA 63, Exh. B.) Attorney Zotti billed 10.88 hours for work done only on the Anti-SLAPP special motion to strike. Attorney Zotti also billed 5.73 hours for both the demurrer and the special motion to strike combined. Adding the time solely for the Anti-SLAPP motion plus one half of the combined time, the total time is 13.75 hours.
The recoverable attorneys’ fees are $4,125.00 and the recoverable costs are $609.97, for a total award of $4,734.97.
(fn.1) In light of the court’s reliance on Gorman v. Tassajara Development Corp., the court need not and does not consider whether Derek Banducci may represent Cathy Banducci pursuant to the “advocate-witness rule.” (See Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1208.)
Defendant Cathy Banducci shall give notice of this ruling.