Judge: Peter A. Hernandez, Case: 21STCV31664, Date: 2022-08-17 Tentative Ruling

Case Number: 21STCV31664    Hearing Date: August 17, 2022    Dept: O

Plaintiff/Cross-Defendant Jane Doe’s Motion for an Award of Attorney’s Fees and Costs is GRANTED, in the reduced amount of $12,182.24.

Background[1]  

Plaintiff Jane Doe (“Doe”) alleges as follows:

On or about May 21, 2021, Doe went to A&G Auto Works located at 805 E. San Bernardino Rd., Covina (“Property”), in order to have Luis Gerardo Acosta (“Acosta”) perform installation work on her vehicle. Acosta pinned Doe against the wall and groped her body. The Property is owned by Connie T. Nhan (“Nhan”).

On August 26, 2021, Doe filed a complaint, asserting causes of action against Acosta, Nhan and Does 1-70 for:

1.                  Sexual Battery in Violation of Civil Code § 1708.5

2.                  Gender Violence in Violation of Civil Code § 52.4

3.                  Ralph Civil Rights Act (Violation of Civil Code § 51.7)

4.                  Battery

5.                  Assault

6.                  Intentional Infliction of Emotional Distress

7.                  Negligence (Premises Liability)

On September 15, 2021, Acosta filed a counterclaim, asserting causes of action against Doe for:

1.                  Defamation

2.                  Malicious Prosecution

On December 8, 2021, this case was transferred from Department 32 of the Personal Injury Court to this instant department.

On March 11, 2022, an “Order Granting Jane Doe’s Special Motion to Strike Cross-Complaint” was filed. On March 14, 2022, Plaintiff filed and mail-served a “Notice of Entry of Order.”

The Motion for Attorney’s Fees was continued from July 11, 2022 to August 17, 2022.[2]

Legal Standard

“A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16(b)(1).) “[I]n any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs…” (Code Civ. Proc., § 425.16(c)(1).)

“The language of the anti-SLAPP statute is mandatory; it requires a fee award to a defendant who brings a successful motion to strike.” (Cabral v. Martins (2009) 177 Cal.App.4^th 471, 490.)  “A ‘prevailing’ defendant within the meaning of section 425.16, subdivision (c), includes a defendant whose anti-SLAPP motion was granted as to some causes of action but not others.” (Huntington Life Science, Inc. v. Stop Huntington Animal Cruelty USA, Inc. (2005) 129 Cal.App.4^th 1228, 1267.)  “[A]n award of fees may include not only the fees incurred with respect to the underlying claim, but also the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16.” (Ketchum v. Moses (2001) 24 Cal.4^th 1122, 1141.)

Discussion

Doe moves the court for an award of attorney’s fees and costs in the amount of $25,858.49 in connection with her preparation and prosecution of her anti-SLAPP motion.

1.         Notice[3]

At the outset, the court notes that the proof of service accompanying the motion is unsigned. Accordingly, the following analysis/ruling is contingent upon Doe’s filing of an executed proof of service reflecting Code of Civil Procedure § 1005, subdivision (b) compliance at or before the time of the hearing.

2.         Entitlement to Fees

On March 9, 2022, the court granted Doe’s “Special Motion to Strike Cross-Complaint.”  On March 11, 2022, an “Order Granting Jane Doe’s Special Motion to Strike Cross-Complaint” was filed. A fee award, then, is mandatory, pursuant to the above authority.

3.         Reasonableness of Fees

The court turns to the issue of reasonableness of the fees sought. “[T]rial courts have broad discretion in determining the amount of a reasonable attorney's fee award. This determination is necessarily ad hoc and must be resolved on the particular circumstances of each case.” (Meister v. Regents of University of California (1998) 67 Cal.App.4^th 437, 452.) “Trial judges are entrusted with this discretionary determination because they are in the best position to assess the value of the professional services rendered in their courts.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4^th 1315, 1321.)

“[O]nce a party has established he or she is entitled to fees, the lodestar method is generally presumed to be the starting point in analyzing the appropriate amount of attorney fees. Under this method, a court first calculates the number of hours reasonably spent multiplied by the reasonable hourly rate for each billing professional, and then may adjust the amount based on various relevant factors to ensure the fee reflects the fair market value [of the attorney services] for the particular action. (K.I. v. Wagner (2014) 225 Cal.App.4^th 1412, 1425 [quotation marks and citations omitted].)

a.      Reasonableness of Hourly Rates

“In determining hourly rates, the court must look to the prevailing market rates in the relevant community. The rates of comparable attorneys in the forum district are usually used. In making its calculation, the court should also consider the experience, skill, and reputation of the attorney requesting fees. The court may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4^th 972, 1009 [internal quotations and citations omitted].)

The hourly rates in this matter are set forth as follows:

            Jeffrey Lewis--$800.00

            Sean Rotstan--$450.00

            Jason Ebbens (paralegal)--$225.00

            Renee Miramontes (paralegal)--$225.00

Based on the court’s own experience and knowledge, as well as on the experience and qualifications of counsel as set forth in the Declaration of Jeffrey Lewis (“Lewis”), the court finds that Lewis’s requested hourly rate should be reduced from $800.00/hour to $550.00/hour, that Rotstan’s hourly rate should be reduced from $450.00/hour to $350.00/hour and that Ebbens’s and Miramontes’s hourly rates should be reduced from $175.00/hour to $175.00/hour.

b.      Reasonableness of Time Incurred

“[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4^th 359, 396.) “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4^th 550, 564.)

Lewis has attached his firm’s billing entries as Exhibit 1 to his declaration. The determines that said entries adequately support the reasonableness of the time incurred in connection with the anti-SLAPP motion and fee motion (i.e., 6.7 hours for Lewis, 18.9 hours for Rotstan, 2.8 hours for Ebbens and 6.3 hours for Miramontes). Inasmuch as the instant motion is not being contested, however, the court will not award additional fees outlined on page 4, lines 12-17 of the points and authorities.

4.         Entitlement to Multiplier

Doe next requests a multiplier of 1.5. “Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative ‘multiplier’ to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented.” (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4^th 819, 833 [quotation marks and citation omitted].) “T]he party seeking a fee enhancement bears the burden of proof.” (Ketchum, supra, 24 Cal.4^th 1122, 1138.)

The court determines that Lewis has not articulated a sufficient basis warranting the imposition of a multiplier under the circumstances. The anti-SLAPP motion involved herein did not raise particularly novel or complex issues. The court finds that Doe is not entitled to a multiplier.

5.         Costs

Doe is entitled to costs in the amount sought (i.e., $289.74).

6.         Conclusion

The motion is granted in in the reduced amount of $12,182.24 (i.e., $9,392.50 for anti-SLAPP motion, plus $2,500.00 for fee motion, plus $289.74 in costs).