Judge: Richard Y. Lee, Case: 30-2019-01052734, Date: 2022-08-04 Tentative Ruling

Plaintiff Sanford Edward (“Plaintiff”) moves for attorney’s fees and costs in the amount of $137,854.36 against Defendant David Ellis (“Ellis”) pursuant to Code of Civil Procedure section 425.16(c)(1) on the grounds that the anti-SLAPP motion filed by Ellis was frivolous and solely intended to cause unnecessary delay and Plaintiff is entitled to recover appellate costs after prevailing on the appeal by Ellis of this Court’s order denying his anti-SLAPP motion.


On April 8, 2021, the Court awarded Plaintiff attorney’s fees and costs in the amount of $43,139.24 incurred in opposing Ellis’ anti-SLAPP motion and bringing Plaintiff’s prior motion for attorney’s fees.  (ROA 294.)  Ellis appealed the denial of his anti-SLAPP motion and this Court’s award of attorney’s fees, both of which were affirmed.  (See ROAs 359, 398.)


Plaintiff now seeks an award of fees and costs incurred in opposing: (1) Ellis’ appeal of the anti-SLAPP motion; (2) Ellis’ appeal of the Court’s award of attorney’s fees; (3) Ellis’ Petition for Rehearing; and (4) Ellis’ Request for Depublication in the California Supreme Court.


Plaintiff contends his counsel expended 165.5 hours on the tasks described above, 91.3 of which were billed at a rate of $950/hour and 74 of which were billed at a rate of $550/hour.  He further contends he expended $4,719.86 in costs on appeal, has expended more in preparing this instant motion, and will expend an additional six hours, at a rate of $950/hour, to prepare for and attend the hearing on this motion.  Plaintiff therefore contends the total amount of fees and costs awarded should be $137,854.36.


Ellis contends Plaintiff’s motion fails because Plaintiff provided no documentation on the hours expended and there is no explanation as to how many hours were spent on each appeal, such that the Court cannot determine the reasonableness of the hours billed.  Ellis further contends the motion fails to explain how Plaintiff’s counsel spent four times the amount of time spent opposing Ellis’ anti-SLAPP motion on the appeals, where there was only one cause of action and Plaintiff conceded the first prong of the two-prong test and his status as a limited purpose public figure.


Code of Civil Procedure § 425.16(c)(1) provides, “If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.”  A request for attorney fees under Section 425.16(c) may be made by the successful party, either the moving party or the party opposing the motion, by a separate, subsequently filed noticed motion.  (Doe v. Luster (2006) 145 Cal.App.4th 139, 144.)  The fees awarded may include those incurred in appellate challenges concerning the motion to strike.  (Christian Research Institute v. Alno (2008) 165 Cal.App.4th 1315, 1320.) 


Code of Civil Procedure section 425.16 permits the use of the lodestar adjustment method under California’s long-standing precedents, beginning with Serrano v. Priest (1977) 20 Cal.3d 25.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132.)  “Under Serrano III, the lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on 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, (4) the contingent nature of the fee award. [Citation.]”  (Id., at p. 1132.)  The calculation of attorney fees begins with a lodestar figure based on the reasonable hours spent, multiplied by the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type.  (Id., at p. 1133.)  An attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.  (Ibid.)


It is Plaintiff’s burden of proof to show the fees they incurred and that those fees are reasonable.  (Christian Research, 165 Cal.App.4th at p. 1320; Maughan v. Google Tech., Inc. (2007) 143 Cal.App.4th 1242, 1254.)


The Court is unable to assess the reasonable amount of attorney’s fees incurred by Plaintiff in responding to Ellis’ appeals of the denial of his anti-SLAPP motion and award of attorney’s fees to Plaintiff, petition for rehearing, and request for depublication.  Plaintiff’s counsel’s declaration states counsel “expended significant hours and [Plaintiff] paid costs to oppose Ellis’s actions in opposing Ellis’s appeal of the anti-SLAPP motion and Ellis’s collateral filings related to that appeal and to oppose Ellis’s appeal of [Plaintiff’s] motion for fees.”  (Declaration of Gary L. Bostwick, ¶ 20.)  He further states that he devoted 91.3 hours and Deborah Drooz devoted 74 hours in performing these tasks.  (Id., ¶ 22.) 


The motion and declaration, however, provide no further detail as to the tasks performed during the 156.5 hours for which Plaintiff now seeks attorney’s fees and there are no supporting documents attached.  Plaintiff provides some detail as to the tasks completed by counsel in his Reply, but those details are not supported or demonstrated by any evidence and, even if they were, the Court would decline to consider them as raised for the first time in reply.


Without more detail sufficient to allow the Court to consider whether the hours claimed were reasonably expended, the Court cannot conduct a lodestar analysis.  Thus, Plaintiff has failed to meet his burden of proof to show that the fees incurred are reasonable.  Accordingly, the motion is DENIED.


Defendant to give notice.