Judge: Richard Y. Lee, Case: 30-2022-01281019, Date: 2023-08-17 Tentative Ruling
Defendant, Laura Krain, (“Defendant” or “Krain”) moves for an order awarding her attorney’s fees in the total amount of $23,376 pursuant to Code of Civil Procedure section 425.16(c).
Krain contends that she is entitled to an award of attorney’s fees as mandated by Code of Civil Procedure section 425.16(c) in the amount of $18,342, plus $4,600 additional fees and $523 in non-cost expenses incurred for the reply, and a deduction of $89 based on an overstated amount, for a total amount of $23,376. Krain contends that a $500 hourly rate for her counsel, Joshua Koltun (“Koltun”), is reasonable and within the range for experienced media attorneys in California based upon his experience and specialty in media/First Amendment issues, and that $500 per hour was the charged rate in this case. Krain also argues that the hours for which Defendant seeks an award are reasonable as Defendant seeks fees for all work done directly on the anti-SLAPP motion and filing related reports in the sum of 30.3 hours. No multiplier is requested.
Defendant also seeks fees for 4.1 hours spent on the instant motion, and 9.2 hours spent on the reply.
Plaintiff, Optimum First Mortgage Inc. (“Plaintiff” or “Optimum”) contends pursuant to an agreement between counsel for the parties on March 8, 2023, Krain waived her right to attorney’s fees. Plaintiff alternatively contends that the Court should reduce Koltun’s requested fees to $13,760 because it is excessive and unreasonable. Plaintiff argues that Koltun’s $500 hourly rate is high compared to the community standard in Southern California which is $400 for a civil litigation attorney, and that the hourly rate should be reduced from $500 to $400.
In reply, Krain contends that Optimum’s contention that she waived her right to seek attorney’s fees is false, that the communications upon which Plaintiff relies are silent on the issue of attorney fees, and that the full communications between the parties show that Defendant never intended to waive her right to seek attorney fees. Krain asserts that Plaintiff was not prejudiced by any misunderstanding as Koltun put Plaintiff’s counsel, Daniel Hitzke (“Hitzke”) on notice that Krain would be seeking her attorney fees, and Hitzke had plenty of time to advise the Court that the parties had submitted to the tentative in error, but did not, as well as that Koltun has stipulated that Hitzke is free to make, at the oral argument on this fee motion, any arguments he would have made to reverse the tentative ruling granting the anti-SLAPP motion. Krain also argues that leave to amend the complaint is foreclosed as a matter of law, and that Plaintiff cannot claim it was prejudiced with regard to its right to appeal because after having put Hitzke on notice multiple times that Krain had not waived her right to attorney fees, Koltun specifically warned Hitzke about the deadline to appeal, but Hitzke chose not to file a notice of appeal. Krain also provides that Plaintiff’s proposed fee award ($13,760) is based on a reduced hourly rate ($400 from $500), and omits compensation for noncost expenses such as Lexis Nexis charges incurred ($1142), but that Plaintiff does not explain who such legitimate expenses should not be compensated.
Initially, Plaintiff’s counsel contends that their counsel and Koltun had an agreement on March 8, 2023 that Plaintiff would submit on this Court’s tentative ruling, waive its immediate right to appeal or seek leave to amend the complaint, and pay Plaintiff costs in exchange for Defendant waiving her right to seek attorney’s fees, but that Defendant violated this agreement by filing the instant fee motion. (Declaration of Daniel L. Hitzke, ¶¶ 3, 4, ROA 71.)
Plaintiff cites to no authority in support of waiver in these circumstances. When legal argument with citation to authority is not furnished on a particular point, the court may treat the point as forfeited and move on without consideration. (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1.)
Nevertheless, even if the Court considered this argument, the purported agreement is based on e-mail correspondence dated March 8, 2023, and the email does not state what Plaintiff contends. The email states:
“I spoke with my client. He is amenable to submitting on the tentative, waive his immediate right to appeal and or seek leave to amend the complaint at a minimum at oral argument. As we do not have much time, I will just let you know that my client is also willing to reimburse your client for her costs at this time. If this agreeable [sic] I will be willing to simply submit on the tentative. Please advise.”
(Ex. A to Hitzke Decl.)
The foregoing email upon which the purported agreement rests is silent to the issue of attorney’s fees, and more specifically, waiving attorney’s fees.
Even assuming there was some ambiguity at the time of the foregoing email, communications between Koltun and Hitzke on March 8, 2023, and by Koltun to Hitzke on March 9, 2023, March 13, 2023, and March 20, 2023, make clear that Defendant did not understand or agree that she would waive attorney’s fees. (See 2nd Koltun Decl., ¶¶ 1-3; Exs. A-C, E, ROA 78.)
Subsequent correspondence in April 2023, also indicate that to the extent there was some misunderstanding, Hitzke did not provide an explanation as to his position despite Koltun’s requests for an explanation, requests to settle the attorney fee amount, or suggestions or an offer to give Plaintiff an opportunity to argue the merits of the anti-SLAPP motion as well as consider alternative proposals all the while noting that Plaintiff’s time to file an appeal had not run. (See 2nd Koltun Decl., ¶¶ 6-8; Exs. F and G, ROA 78.)
Based on the foregoing, the Court finds no legal or evidentiary support for the assertion that Defendant waived her right to attorney’s fees pursuant to Code of Civil Procedure section 425.16(c).
Code of Civil Procedure section 425.16(c)(1) provides that a defendant who prevails on a special motion to strike “shall be entitled to recover his or her attorney’s fees and costs.” “[U]nder Code of Civil Procedure section 425.16, subdivision (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.) Code of Civil Procedure § 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. (Id. at pp. 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.)
“As the moving party, the prevailing defendant seeking fees and costs ‘ “bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” [Citation.] To that end, the court may require [a] defendant[] to produce records sufficient to provide ‘ “a proper basis for determining how much time was spent on particular claims.” ’ [Citation.] The court also may properly reduce compensation on account of any failure to maintain appropriate time records. [Citation.]’ [Citation.]” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.)
Reasonableness of Hours Claimed
A trial court may accept the declaration of an attorney as sufficient proof of the attorney’s hourly rate, the time spent, and the reasonableness of the time spent. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784-785.)
Defendant seeks an award of fees for 30.3 hours which includes all work done directly on the anti-SLAPP motion as well as filing related reports including factual research on the underlying Yelp postings and correspondence between the parties, and relevant legal research and drafting. (Declaration of Joshua Koltun, ¶ 5, ROA 65.) Defendant also seeks fees for 4.1 hours for the instant fee motion.
Plaintiff does not dispute that the hours for which fees are sought were reasonably incurred.
Accordingly, the Court finds the hours requested to have been reasonably incurred and reasonably necessary.
In addition to fees claimed in the moving papers, Krain provides in reply that she has incurred additional fees in responding to the issues raised in the opposition including 9.2 hours. (See 2nd Koltun Decl., 4:1-7; Ex. H, ROA 78.) The hours requested to prepare reply papers in support of the instant fee motion are also reasonable.
Reasonableness of Hourly Rate
In determining a reasonable rate for the attorney's services, courts usually consider: (1) the prevailing rate charged by attorneys of similar skill and experience for comparable legal services in the community; (2) the nature of the work performed; and (3) the attorney's customary billing rates. (See Serrano v. Unruh (1982) 32 Cal.3d 621, 643.)
Defendant requests a fee award at $500 per hour, based on his years of experience practicing law since 1993, his prior standard hourly rates at DLA Piper which in 2007 was $530 per hour, his extensive experience representing media companies and individuals in defamation and other matter involving the First Amendment type of experience, and his actual charged rate in this matter. (Declaration of Joshua Koltun, ¶¶ 1-4, ROA 65.)
Plaintiff disputes the $500 hourly rate requested by Attorney Koltun, and argues that $400 is a reasonable hourly rate for a civil litigation attorney in Orange County, California. The $400 hourly rate is supported only by the declaration of counsel which states, “I believe that Joshua Koltun’s hourly rate of $500.00 per hour is excessive and unsupported. Given my extensive experience in civil litigation, I believe the standard hourly rate of a civil litigation attorney is $400.00 per hour in Orange County, California. My own firm charges $400.00 per hour for civil litigation. Accordingly Koltun’s [sic] hourly rate should be reduced to $400.00 per hour.” (Declaration of Daniel L. Hitzke, ¶ 8, ROA 71.) However, Hitzke’s own belief is not particularly persuasive, and this does not consider Koltun’s 30 years’ of experience, or his experience and specialty as a media/First Amendment attorney.
The Court finds that $500 per hour for Attorney Koltun is reasonable and commensurate with the prevailing rates charged by attorneys of similar experience specializing in media/First Amendment issues within the community of Orange County.
“Non-Cost” Expenses
In reply, Krain addresses the issue of “non-cost” expenses for Lexis-Nexis charges as Krain asserts that Plaintiff’s proposed amount of $13,760 omits the Lexis-Nexis Charges. Krain argues that Optimum does not explain why these expenses should not be compensated.
To the extent that the proposed amount by Plaintiff, namely $13,760, excludes “noncost” expenses such as Lexis Nexis charges incurred ($1142), Plaintiff provides no argument and cites to no authority to contest these expenses. It is axiomatic the failure to challenge a contention in a brief results in the concession of that argument. (DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”]; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [“failure to address the threshold question ... effectively concedes that issue and renders its remaining arguments moot”]; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [issue is impliedly conceded by failing to address it].)
To oppose a showing of a fee request supported by declarations describing the efforts taken with billing records to establish the hours of work, a party may “attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Assoc. (2008) 163 Cal.App.4th 550, 563-564.) “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at p. 564.)
On the one hand, by failing to address the “non-cost expenses,” including these Lexis-Nexis charges, Plaintiff implicitly concedes that such expenses are properly includable in an award of attorney’s fees.
However, on the other hand, Krain, as the party seeking fees, has the burden of establishing entitlement to an award. Krain does not establish entitlement to the requested “non-cost” expenses in the amount of $1,142 as properly includable in an award of attorney’s fees.
Initially, it is unclear how Krain calculated $1,142 as a “non-cost expense” in its moving papers. (Koltun Decl., ¶ 5.) The billing invoices indicate the following expenses:
DATE DESCRIPTION CHARGE
10/31/22 Lexis-Nexis Charges for the Month $553
11/04/22 Filing and Vendor Fees $465.08
11/30/22 Lexis-Nexis Charges for the Month $47.07
01/27/23 Filing CMS, Request $60.95
02/25/23 Cost of downloading papers from Superior Court website that Defendant had failed to serve $30.82
02/28/23 Lexis-Nexis Charges for the Month $332.98
TOTAL $1,489.90
(Ex. A to Koltun Decl., ROA 65.)
The requested “non-cost expenses” total $1,142, which is less than total amount of expenses at $1,489.90, but is more than the total for Lexis-Nexis Charges at $933.05 ($553 + $47.07 + $332.98) and Krain does not identify which expenses for which she seeks to include as attorney’s fees.
The reply also seeks $523 in “expenses” for work done on the fee motion to reply to the opposition. The billing invoice indicates the following expenses:
DATE DESCRIPTION CHARGE
04/13/23 Deliver Court copy of motion papers $46.07
04/30/23 Lexis-Nexis Charges for the Month $366.22
08/08/23 Lexis-Nexis Charges for the month to date $111.09
TOTAL $523.38
(See 2nd Koltun Decl., 4:1-7; Ex. H, ROA 78.)
Therefore, it appears that Krain seeks all expenses including delivering a copy of motion papers to the Court as part of the additional $523 in “expenses.”
Krain cites to authorities in support of the foregoing expenses, but they do not address the types of expenses at issue here. Necessary support services for attorneys, e.g., secretarial and paralegal services, are includable within an award of attorney fees. (Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 951; Downey Cares v. Downey Community Development Com. (1987) 196 Cal.App.3d 983, 989, fn. 13 [Photocopying and messenger service are not costs which would be awarded pursuant to Code of Civil Procedure sections 1032 and 1032.5 and were included in the attorney fee award because the applicable Government Code section authorized an award of the prevailing party’s “costs of litigation, including reasonable attorney’s fees.].) Neither of the cases dealt with expenses such as Lexis-Nexis charges, nor with and award of attorney’s fees under Code of Civil Procedure section 425.16(c).)
Based on the foregoing, the Court finds that only attorney’s fees for a total of 43.6 hours (30.3 + 4.1 + 9.2) incurred for work on Krain’s anti-SLAPP motion, and the instant fee motion, at an hourly rate of $500 per hour, is reasonable.
Accordingly, the Court AWARDS attorney’s fees in the total amount of $21,800 against Plaintiff, Optimum First Mortgage, Inc.
Krain to give notice.