Judge: Richard Y. Lee, Case: 30-2022-01257749, Date: 2023-08-03 Tentative Ruling
Defendants Ngo Ky and Nam Quan dba Nam Quan-Trust Media (“Defendants”) move for an award of attorney’s fees and costs against Plaintiff Rose Bui (“Plaintiff”) pursuant to Code of Civil Procedure section 425.16 on the grounds that Defendants were prevailing parties on their Special Motion to Strike.
On October 4, 2022, the Court issued its final ruling on Defendants’ Special Motion to Strike, which was granted. (See ROA 40.) Judgment was entered against Plaintiff on November 3, 2022. (ROA 48.) Plaintiff’s Motion for Reconsideration was denied on February 16, 2023. (ROA 56.) Defendants seek an award of attorney fees based on the lodestar with a 1.5 multiplier. Defendants contend the requested multiplier is reasonable because this was a contingency case that involved significant legal and political issues.
As an initial matter, the Court notes that on February 21, 2023, Plaintiff filed a Notice of Appeal of the October 4, 2022 order granting the Special Motion to Strike, the February 16, 2023 order denying the Motion for Reconsideration, and Judgment entered on November 3, 2022. Despite this appeal, the Court still has jurisdiction to consider the instant Motion for Attorney Fees. (Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461 [“ ‘Even if the order granting the [special motion to strike] has been appealed, the trial court retains jurisdiction to entertain a motion for attorney fees.’ ”].)
Code of Civil Procedure section 425.16(c)(1) provides that, subject to certain exceptions not applicable here, “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs.” It is the moving party’s burden of proof to establish entitlement to an award and the appropriate hours expended and hourly rates. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) “The defendant may recover fees and costs only for the motion to strike, not the entire litigation.” (Ibid.)
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.)
When considering a request for a multiplier, trial courts may consider “the contingent nature of the fee award, the novelty and difficulty of the questions involved and the skill displayed in presenting them.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.) The “trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case.” (Ketchum, 24 Cal.4th at p. 1138.)
As the Court previously noted on June 22, 2023, Defendants are entitled to fees and costs incurred on the special motion to strike. (ROA 85.) This matter was continued from June 22, 2023, however, because the Court could not determine how much of the submitted time entries were devoted to the anti-SLAPP motion only. Defendants have now filed a supplemental declaration in which they contend that 34.7 hours billed by Mr. Rosen and 17 hours billed by Ms. Nguyen are attributable to the anti-SLAPP motion and should be included in the attorney fee award.
Plaintiff contends that Mr. Rosen has failed to properly segregate his time between the anti-SLAPP motion and the demurrer, the three hours billed for reviewing Plaintiff’s three-page motion for reconsideration is excessive, and Ms. Nguyen’s 17 hours of work was for paralegal and secretarial tasks that should not be billed at the rate of $400.00/hour.
Defense counsel’s supplemental declaration asserts that all time entries that relate to developing the facts of the case, watching videos, and translating the videos or other documents are attributable to the anti-SLAPP because they involve evidence that could not have been presented in a demurrer. (Supp. Declaration of Mark S. Rosen, ¶ 8.) Out of the 41.2 total hours billed by Mr. Rosen, he attributes 6.5 hours to the demurrer and the balance of 34.7 hours to the anti-SLAPP. (Id. ¶ 9.) He attributes the entirety of the 17 hours billed by Dina Nguyen to the anti-SLAPP. (Id. ¶ 10.) Ms. Nguyen is fluent in Vietnamese and worked directly with Defendants to obtain their declarations and the videos and documents used in the anti-SLAPP motion. (Ibid.) She also obtained a witness declaration used to support the anti-SLAPP motion. (Ibid.)
The prior declaration of counsel, dated February 27, 2023, shows that Mr. Rosen has been practicing law for 46 years and graduated from the UCLA Law School in 1976. (Declaration of Mark S. Rosen, ¶ 3.) He has experience representing political candidates and litigating cases involving candidate statements and defamation. (Id., ¶¶ 3-5.) Dina Nguyen, who assisted on this case, has been an attorney for 20 years and is familiar with political campaigning. (Id., ¶¶ 6-7.) Mr. Rosen bills at the hourly rate of $500/hour and Ms. Nguyen bills at the hourly rate of $400/hour.
The hourly rates charged by Mr. Rosen and Ms. Nguyen are within the ballpark of the rates commonly charged in the community for similar work. Thus, the Court finds the hourly rates of $500 and $400 to be reasonable.
In their moving papers, Defendants request a 1.5 multiplier. In support of the request, counsel states that Defendant Ngo is well-known in the Vietnamese community but does not have a lot of assets and many attorneys would be hesitant to take on Plaintiff as an opponent as the wife of a City councilman. (Rosen Decl., ¶ 9.)
Though counsel filed a successful special motion to strike, this case does not involve particularly novel or difficult questions of law. Further, though Defendants argue in favor of a multiplier due to the contingent nature of representation, counsel does not affirmatively state that this case was accepted on a contingency basis. Thus, there is no evidence that the case was contingent in nature and no evidence to support the requested multiplier. Accordingly, no multiplier will be awarded.
The demurrer filed by Defendants is six pages long. (ROA 11.) The Court finds that attributing 6.5 hours of the total number of hours billed by Mr. Rosen to a demurrer of such length is reasonable. Further, the Court agrees that attributing the hours spent conducting fact investigation into this case and reviewing documents are fairly attributable to the anti-SLAPP motion, as evidence is not permitted on demurrer. Thus, the Court finds the 34.7 hours billed by Mr. Rosen to be reasonable.
Plaintiff’s characterization of Ms. Nguyen’s work as secretarial lacks merit. Mr. Rosen’s declaration makes clear that Ms. Nguyen was Defendants’ main point of contact, as she is fluent in Vietnamese, and she worked directly with Defendants to obtain their declarations, as well as the declaration of another witness. The billing records show that she personally prepared the witness’s declaration and answered Defendants’ questions regarding their own declarations. As part of this work, Ms. Nguyen would have had to carefully translate words with legal significance. This goes beyond translation and paralegal work. Thus, the Court finds that the 17 hours billed by Ms. Nguyen, at the rate of $400/hour, to be reasonable.
In light of the above, the Court GRANTS the Motion and awards Defendants a total of $24,150.00 in attorney’s fees.
Defendants to give notice.