Judge: Nathan Vu, Case: 30-2022-01288253, Date: 2023-07-17 Tentative Ruling

Demurrer

Defendant Chad Wanke’s Demurrer to the Complaint is OVERRULED as to the 4th Cause of Action, and SUSTAINED with 21 days leave to amend as to the 3rd and 6th Causes of Action.

Defendant Chad Wanke demurs to the 3rd, 4th, and 6th Causes of Action of the Complaint filed by Plaintiff Brett R. Barbre.

Standard for Demurrer

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Although courts should take a liberal view of inartfully drawn complaints, (see Code Civ. Proc., § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)

3rd Cause of Action (Violation of Government Code Section 84305)

The 3rd Cause of Action of the Complaint alleges that Defendant produced, paid for, and distributed material that did not contain the name, address, and phone number of the individual or organization that produced, paid for and distributed the material, in violation of Government Code section 84305. (See Compl., ¶¶ 24-25.)

The Political Reform Act (PRA) was passed by the voters as an initiative measure, Proposition 9, in the June 1974 General Election, and is contained in section 81000 et seq. of the Government Code. (See McCauley v. BFC Direct Marketing (1993) 16 Cal.App.4th 1262, 1266–1267.) Before a private entity may file a civil action against a person who is alleged to have violated any of the reporting requirements of the PRA, the private entity “must first file with the civil prosecutor a written request for the civil prosecutor to commence the action.” (Gov. Code, § 91007, subd. (a).)

The Complaint does not allege facts showing that Plaintiff complied with Section 91007. The demurrer must be sustained as to the 3rd Cause of Action.

4th Cause of Action (Violation of Placentia and Yorba Linda Municipal Codes)

In the 4th Cause of Action, the Complaint alleges that Defendant failed to include the identifying information on campaign signs as required by Placentia Municipal Code Section 23.90.120 and Yorba Linda Municipal Code Section 18.40. (See Compl. ¶¶ 28-31.)

Defendant contends that there is no private right of action for these city ordinances and that Plaintiff was not damaged by the violations because he won the election.

Government Code section 36900 provides that “[t]he violation of a city ordinance may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action.” (Gov. Code, § 36900, subd. (a), italics added.)

Courts thus have held that Section 36900(a) creates a private right of action to redress violations of city ordinances. (See Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1181 n.10; Huntington Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1263–64; Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599, 607.)

In addition, the Complaint alleges damages to Plaintiff’s reputation as a result of these violations of city ordinances. (See Compl., ¶ 32.)

Thus, the demurrer must be overruled as to the 4th Cause of Action.

6th Cause of Action (Declaratory Relief)

The Complaint alleges in the 6th Cause of Action that a dispute has arisen regarding the identification required on campaign material published on or about October 15, 2022. (See Compl. ¶¶ 11, 39.) Plaintiff contends that Defendant violated both city and state mandates in his use of the illegal material. (Id., ¶ 39.)

Code of Civil Procedure section 1061 provides: “The court may refuse to exercise the power granted by this chapter [declaratory relief] in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” (Code Civ. Proc., § 1061.)

The Court of Appeal has held that Section 1061 grants the trial court discretion to dismiss a declaratory relief claim where 1) an adequate remedy exists for the parties to resolve their dispute (i.e., another cause of action) and 2) there are no allegations suggesting declaratory relief will regulate future conduct by the parties. (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 374.)

As stated above, the 3rd Cause of Action could provide an adequate remedy for violations of the PRA if Plaintiff had followed its procedural requirements and the 4th Cause of Action provides an adequate remedy for violations of city ordinances. Further, there are no allegations suggesting that there is an ongoing relationship between the parties that will be regulated by the court’s ruling on a declaratory relief cause of action. For example, there are no allegations that Plaintiff and Defendant will engage in another political campaign against each other.

The court will exercise its discretion to sustain the demurrer to the 6th Cause of Action. This is necessary because if the court does not do so, the 6th Cause of Action could be used by Plaintiff to bring a claim similar to the 3rd Cause of Action without following the procedural requirements of the PRA.

The court will sustain the demurrer to the 6th Cause of Action.

Defendant shall give notice of this ruling.

Motion for Attorney’s Fees

Defendant Chad Wanke’s Motion for Attorney’s Fees is GRANTED.

The court ORDERS that Plaintiff Brett R. Barbre shall pay Defendant Chad Wanke attorney’s fees in the amount of $14,850 (29.7 hours x $ 500 per hour.

Defendant Chad Wanke requests an award of attorneys’ fees of $23,025 based on the granting of his Anti-SLAPP special motion to strike.

Attorney’s Fees on the Granting of an Anti-SLAPP Special Motion to Strike

Code of Civil Procedure section 425.16 states that “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs.” (§ 425.16, subd. (c)(1); see Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 [“[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.”].)

The purpose of the statute is “compensating the prevailing defendant for the undue burden of defending against litigation designed to chill the exercise of free speech and petition rights.” (Barry v. State Bar of California (2017) 2 Cal.5th 318, 328.)

Prevailing Party

“The term ‘prevailing defendant,’ as used in section 425.16, subdivision (c)(1), is not defined, and it is unstated whether a defendant who prevails on some, but not all, of the claims challenged in his or her anti-SLAPP motion is entitled to fees and costs. (Maleti v. Wickers (2022) 82 Cal.App.5th 181, 232.)

“But as a general rule, a defendant who prevails in part in bringing a special motion to strike is entitled to fees and costs, subject to the trial court's determination of the appropriate amount awardable based upon the defendant's partial success.” (Ibid.)

However, this rule is not absolute. A party that partially prevails on an anti-SLAPP motion “must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion.” (Mann v. Quality Old Time Serv., Inc. (2006) 139 Cal. App. 4th, 328, 340.)

Courts will consider the following factors in determining whether to award attorney’s fees to parties that partially prevailed on an anti-SLAPP motion: (1) “extent to which the defendant’s litigation posture was advanced by the motion”; (2) “whether the same factual allegations remain to be litigated”; (3) “whether discovery and motion practice have been narrowed”; and (4) “the extent to which future litigation expenses and strategy were impacted by the motion.” (Id. at p. 345.)

Here, the Complaint originally contained six causes of action. (See ROA #2.) Defendant’s anti-SLAPP special motion to strike meaningfully narrowed what was at issue, as well as the time and resources otherwise necessary to address the claims struck pursuant to the anti-SLAPP motion.

The parties now can focus on litigating the election law violations, which Plaintiff contends are the fundamental issues to be resolved, without having to consider claims for defamation, intentional infliction of emotional distress, and conspiracy (to the extent it is based on a conspiracy to commit defamation).

Thus, the Defendant’s litigation posture was advanced by the anti-SLAPP motion, the parties can focus on a more narrow set of factual allegations, the discovery and motions practice have been concomitantly narrowed, and future litigation expenses and strategy have been reduced. The Defendant achieved a not insignificant benefit as a result of the anti-SLAPP motion and is thus a prevailing party.

Lodestar Calculation of Attorney’s Fees

The lodestar method for calculating attorneys’ fees applies to any statutory attorney’s fees award, unless the statute authorizing the award provides for another method of calculation. (Galbiso v. Orosi Pub. Util. Dist. (2008) 167 Cal.App.4th 1063, 1089; K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425.)

When using this method, the court begins by determining the reasonable hours the prevailing party’s attorney spent on the case and multiplying that number by the reasonable hourly rate. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-34; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.)

Although reasonable attorney’s fees are recoverable under the above statute, it is not intended that the prevailing party receive a “windfall.” (Ketchum vs. Moses, supra, 24 Cal.4th at p. 1132.)

Thus, the prevailing defendant who seeks attorney’s fees “’bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.’” (Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020, quoting Hensley v. Eckerhart (1983) 461 U.S. 424, 437.) “To that end, the court may require defendants to produce records sufficient to provide ‘a proper basis for determining how much time was spent on particular claims.’” (Computer Xpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1020, quoting Hensley v. Eckerhart , supra, 461 U.S. at p. 437, fn. 12.)

The court also has the discretion to increase or decrease the lodestar figure by applying a positive or negative multiplier based on a variety of factors that the court did not consider when determining the lodestar figure, such as the novelty and difficulty of the issues presented, the extent to which the nature of the litigation precluded other employment by the attorneys, and the contingent nature of the fee award. (See Northwest Energetic Servs., LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, 879-82; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)

The court is not required to impose a multiplier; the decision is discretionary. (See Galbiso v. Orosi Pub. Util. Dist., supra,167 Cal.App.4th at p. 1089; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1241.) “The trial judge is ‘the best judge of the value of professional services rendered in his court.’” (Ketchum v. Moses , supra, 24 Cal.4th at p. 1132.) 

Reasonable Hourly Rate

The reasonable hourly rate is based on the reasonable market value of the attorney’s services. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094-1095.) This standard applies regardless of how much the attorney actually charged the client. (See ibid.) Thus, the same reasonable hourly rate will apply whether the attorney charged nothing for their services, charged below-market or discounted rates, represented the client on a contingent fee basis, or are in-house counsel paid a fixed salary.

To determine the reasonable market value of the legal services provided, the court must look to the range of reasonable rates charged by and judicially awarded to comparable attorneys for comparable work. (See Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal. App. 4th 740, 783; see also PLCM Group v. Drexler, supra, 22 Cal.4th 1084, 1095 [“[The] reasonable hourly rate is that prevailing in the community for similar work.” ].)

“In making its calculation [of a reasonable hourly rate], 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.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41, citations omitted; see also Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

Defendant requests an hourly rate of $500 per hour for his counsel. Plaintiff does not contest this rate. Considering all of the above enumerated factors, the court finds the requested rate to be reasonable.

Hours Reasonably Expended

The court may reduce the number of hours based on considerations of “whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.” (Christian Research Institute v. Alnor , supra, 165 Cal.App.4th at p. 1320.) The trial court may also “reduce compensation on account of any failure to maintain appropriate time records.” (Computer Xpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1020.)

Further, the defendant may recover fees and costs “only for the motion to strike, not the entire litigation.” (Christian Research Inst. v. Alnor, supra, 165 Cal. App. 4th at p. 1320.)

In challenges to the reasonableness of the number of hours billed, “it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence.” (Premier Medical Mgmt. Sys., Inc. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 564.) “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Ibid.)

The prevailing party’s verified time records should be “entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees (2005) 132 Cal.App.4th 359, 396.) However, “[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.)

In this case, Plaintiff claims that Defendant’s counsel should have spent “significantly less time”, that the hours expended are “speculative” and “merely estimates”, that Defendant failed to present substantive documentation such as bills actually received, and that Defendant’s counsel relied on “block billing.”

However, Plaintiff does not point to any specific tasks or hours that were excessive or duplicative. Such general arguments are not sufficient for Plaintiff to meet his burden here.

In addition, Defendant’s counsel’s hours are not speculative, estimates, or block billed. Rather, Defendant’s counsel’s declaration provides sufficient detail with respect to each period of time for the court to determine whether the work related to the anti-SLAPP motion and whether it was reasonably necessary.

It is true that Defendant did not include any actual bills from his attorney. However, as the above case law reveals, this is irrelevant. Defendant may seek attorney’s fees even if his attorney never actually charged him anything and never sent him any bills.

After a careful review of Defendant’s counsel’s declaration, the court finds Defendant’s counsel’s time expended to be reasonable. The court subtracts one hour for the time Defendant’s counsel dedicated to matters that did not pertain to the defamation causes of action, for a total of 29.7 hours. (See Decl. of Mark S. Rosen attached to reply, ¶ 2.)

Multiplier

The Supreme Court has “set forth a number of factors the trial court may consider in adjusting the lodestar figure. These include: ‘(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; [and] (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award.’” (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322 fn. 12, quoting Serrano v. Priest (1977) 20 Cal.3d 25, 49; see also Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 248.)

Plaintiff requests a lodestar multiplier of 1.5 because: (1) the defamation lawsuit was an attempt to silence a public official discussing the qualifications of another person to seek public office; (2) anti-SLAPP motions require an attorney to give immediate attention to the case due to the short time limits to bring the motion; and (3) the case involved significant legal and political issues.

However, “for the most part, the difficulty of a legal question and the quality of representation are already encompassed in the lodestar. A more difficult legal question typically requires more attorney hours, and a more skillful and experienced attorney will command a higher hourly rate.” (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1138–1139.)

“’The reasonable hourly rate [used to calculate the lodestar] is the product of a multiplicity of factors . . . the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case.’” (Margolin v. Regional Planning Comm’n (1982) 134 Cal.App.3d 999, 1004, quoting Copeland v. Marshall (D.C. Cir. 1980) 641 F.2d 880, 892.) Thus, this court has already considered the difficulty of the questions involved when it determined the appropriate lodestar amount.

In addition, the preclusion of other work by counsel does not weigh in favor of a multiplier. Ordinary preclusion from performing other work while engaged in a pending action is part of every case. A party is not entitled to a multiplier merely because their counsel was busy in the specific case at hand.

Further, any successful anti-SLAPP motion will involve substantial legal or political issues. (See Code Civ. Proc., § 425.16, subds. (e)(1)-(4).) Defendant points to nothing unusual about this case that sets it apart from other cases involving successful anti-SLAPP motions.

Based on the foregoing, the court declines to exercise its discretion to award a multiplier.

Defendant shall give notice of this ruling.