Judge: Robert B. Broadbelt, Case: BC696666, Date: 2022-07-25 Tentative Ruling

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Case Number: BC696666    Hearing Date: July 25, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:              Defendants County of Orange, Anthony “Tony” Rackauckas, Donde McCament, and Elaine Noce    

RESPONDING PARTIES:    Plaintiffs AWI Builders, Inc., Construction Contractors Corporation, Zhirayr “Robert” Mekikyan, and Anna Mekikyan

Motion for Attorneys’ Fees Incurred on Appeal

The court considered the moving, opposition, and reply papers filed in connection with this motion.

Background

On November 8, 2018, the court issued an order granting defendants Anthony “Tony” Rackauckas, Donde McCament, Elaine Noce, and County of Orange’s (collectively, the “OC Defendants”) special motion to strike the Second Amended Complaint of plaintiffs AWI Builders, Inc., Construction Contractors Corporation, Zhirayr “Robert” Mekikyan, and Anna Mekikyan (collectively, “Plaintiffs”) pursuant to Code of Civil Procedure section 425.16.  The court awarded the OC Defendants attorney’s fees in the sum of $71,655 on July 23, 2019.

Plaintiffs filed Notices of Appeal of (1) the court’s order granting OC Defendants’ special motion to strike the Second Amended Complaint on December 20, 2018 and (2) the court’s order granting OC Defendants’ motion for attorney’s fees on September 12, 2019.  Plaintiffs also appealed the court’s orders granting the special motions to strike and motions for attorney’s fees filed by the other named defendants.  The Court of Appeal consolidated the appeals.  (Koeller Decl., ¶¶ 11-12.)

On October 22, 2019, the Court of Appeal affirmed the court’s orders granting the special motions to strike and motions for attorney’s fees filed by, inter alia, the OC Defendants.  (Koeller Decl., Ex. 1, p. 67.)  The Court of Appeal further ruled that the moving defendants “shall recover their costs on appeal.”  (Ibid.)

The OC Defendants now move the court for an award of attorney’s fees as the prevailing defendants on the special motion to strike, on appeal, pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1). 

DISCUSSION

OC Defendants move the court for an award of attorney’s fees in the sum of $120,880, consisting of fees incurred as follows: (1) $84,080 incurred in defending the anti-SLAPP motion appeal; (2) $28,750 incurred in defending the fee motion appeal; and (3) $8,050 incurred in bringing the instant motion to enforce the right to mandatory fees pursuant to section 425.16.

Code of Civil Procedure section 425.16, subdivision (c)(1), provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”  “Thus, under 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.)  Prevailing defendants are further entitled to recover appellate attorney fees.  (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499-1500.)  These awards of fees may also include “the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16.”  (Ketchum, supra, 24 Cal.4th at p. 1141.) 

“It is well established that ‘[t]he amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the familiar “lodestar” method.  Under that method, the court “tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.’”  (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432 [citations omitted].) 

In support of their motion, the OC Defendants submit the declarations of their attorneys, William Haluck, Zachary Schwartz, and Greg Koeller.

William Haluck attests to the reasonableness of the $450 per hour and $350 per hour rates for Zachary Schwartz (“Schwartz”) and Greg Koeller (“Koeller”), respectively.  (Haluck Decl., ¶ 12.)  Both Schwartz and Koeller submit declarations describing their educational and professional backgrounds in support of their request for attorney’s fees.  (Schwartz Decl., ¶¶ 2-3; Koeller Decl., ¶¶ 14-15.)  Although Plaintiffs contend that the hourly rates claimed by Schwartz and Keller are excessive, the court finds the rates to be reasonable based on the qualifications and experience of counsel.  The court therefore evaluates the reasonableness of the hours expended by counsel.

As set forth above, OC Defendants seek attorney’s fees for the work incurred (1) in defending the anti-SLAPP appeal, (2) in defending the fee motion appeal, and (3) in bringing this motion to enforce their right to an award of attorney’s fees on appeal.

As to the anti-SLAPP appeal, OC Defendants submit a chart setting forth the amount of time billed between December 2018 and September 2021 for tasks performed in defending the anti-SLAPP appeal.  (Koeller Decl., Ex. 2.)  Schwartz was primarily responsible for drafting OC Defendants’ appellate brief, requiring him to review “hundreds of documents” regarding the four-year investigation into Plaintiffs’ practices, as well as the 976-page deposition transcript of Christa Schott.  (Schwartz Decl., ¶¶ 7-8.)  Koeller assisted in drafting the appellate brief.  (Koeller Decl., ¶ 18.)  In performing these tasks, Schwartz billed 136.3 hours and Koeller billed 64.6 hours.  (Koeller Decl., Ex 2 at p. 81; Schwartz Decl., ¶ 9; Koeller Decl., ¶ 18.)  The court finds that OC Defendants have established that they incurred $83,945 in connection with the anti-SLAPP appeal ($61,335 (136.3 hours x Schwartz’s $450 hourly rate) + $22,610 (64.6 hours x Koeller’s $350 hourly rate).  The court notes that OC Defendants request $84,080 in attorney’s fees for work expended on the anti-SLAPP appeal; however, as described above, the court has calculated the attorney’s fees to amount to $83,945, and therefore uses this sum.

Although Plaintiffs generally challenge OC Defendants’ request for attorney’s fees as excessive and unreasonable, Plaintiffs appear to only specifically challenge the October 2019 and November 2019 entries as unclear.  (Opp., 6:1-9.)  The court finds that the entries do not indicate excessive or unreasonable time incurred for the specified work.  “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.4th 550, 564.)  Plaintiffs have failed to challenge specific entries as excessive or unreasonable.  The court, based on its own review, finds that the time entries do not reflect excessive or unreasonable billing.

The court also notes that Plaintiffs take issue with OC Defendants’ decision to provide the court with charts reflecting the hours billed rather than offering time records and similar documentation.  However, “[a]n attorney's testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.”  (Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.)

The court therefore finds that the lodestar for attorney’s fees that have reasonably been incurred by OC Defendants in connection with the appeal on the order granting OC Defendants’ anti-SLAPP motion amounts to $83,945.00.

As to the fee motion appeal, OC Defendants submit a chart setting forth the amount of time billed between August 2019 and August 2021 for tasks performed in defending the appeal of the attorney’s fees awarded to OC Defendants.  (Koeller Decl., Ex. 3.)  Koeller was primarily responsible for drafting OC Defendants’ appellate brief on this appeal.  (Koeller Decl., ¶ 19.)  In performing these tasks, Koeller billed 79.7 hours and Schwartz billed 1.9 hours.  (Koeller Decl., Ex. 3, p.; Koeller Decl., ¶¶ 20-21.)  OC Defendants have therefore established that they incurred $28,750 in connection with the fee motion appeal ($27,895 (79.7 hours x Koeller’s $350 hourly rate) + $855 (1.9 hours x Schwartz’s $450 hourly rate).) 

As described above, Plaintiffs have failed to challenge specific entries and instead assert general objections on the grounds of vagueness and excessiveness, which are insufficient.  (Premier Medical Management Systems, Inc., supra, 163 Cal.App.4th at p. 564.)  The court has reviewed the billing chart submitted by OC Defendants and finds that the time entries do not demonstrate unreasonable or excessive billing.  The court therefore finds that the lodestar for attorney’s fees that have reasonably been incurred by OC Defendants in connection with the appeal of the order granting OC Defendants’ motion for attorney’s fees amounts to $28,750.

Finally, as to the fees incurred in bringing this motion, OC Defendants submit the declaration of Koeller to establish that OC Defendants (1) incurred $4,200 to draft this motion and (2) anticipate incurring additional fees in the sum of $3,850 to review Plaintiffs’ opposition, draft their reply, and attend the hearing on this motion.  (Koeller Decl., ¶ 22.)  The court finds that the amount of attorney’s fees incurred in preparing and defending the instant motion is reasonable.  The court therefore finds that the lodestar for attorney’s fees that have reasonably been incurred by OC Defendants in connection with bringing the pending motion for attorney’s fees amounts to $8,050.

For the reasons set forth above, the court finds that OC Defendants are entitled to an award of attorney’s fees in the sum of $120,745 ($83,945 + $28,750 + $8,050).  (Code Civ. Proc., § 425.16, subd. (c)(1).)

ORDER

The court grants defendants Anthony “Tony” Rackauckas, Donde McCament, Elaine Noce, and County of Orange’s motion for attorney’s fees.  The court orders that defendants Anthony “Tony” Rackauckas, Donde McCament, Elaine Noce, and County of Orange shall recover $120,745.00 in attorney’s fees from plaintiffs AWI Builders, Inc., Construction Contractors Corporation, Zhirayr “Robert” Mekikyan, and Anna Mekikyan pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1).

The court orders the OC Defendants to give notice of this ruling.

IT IS SO ORDERED.

DATED:  July 25, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court