Judge Serena R. Murillo, Case 22STCV28350 2023-05-09 Tentative Ruling

Judge: Serena R. Murillo, Case: 22STCV28350, Date: 2023-05-09 Tentative Ruling

Case Number: 22STCV28350 Hearing Date: May 9, 2023 Dept: 31

TENTATIVE

Defendants Greenberg Gross LLP, Deborah S. Mallgrave, Brian L. Williams, and Jemma E. Dunn’s Motion for Attorney’s Fees is GRANTED IN PART and awards Defendants $33,250.10 in attorney’s fees and costs.

LEGAL STANDARD

Pursuant to CCP § 425.16(c), a prevailing defendant is entitled to recover attorneys’ fees and costs associated with the motion. Under CRC 3.1702 and CRC 8.104, a request for attorneys’ fees must be made within 60 days of service of the notice of entry of judgment. A defendant may only recover fees and costs related to the motion to strike. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) This includes fees associated with bringing the motion for fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 (“an 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.”).) Additionally, “[a]ny fee award must also include those incurred on appeal. [Citation.]” (Trapp v. Naiman¿(2013) 218 Cal.App.4th 113, 122.)¿¿

“A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.)

DISCUSSION

On January 18, 2023, the Court granted Defendants Greenberg Gross LLP, Deborah S. Mallgrave, Brian L. Williams, and Jemma E. Dunn’s (collectively the “Greenberg Defendants”) special motion to strike (Anti-SLAPP). Now the Greenberg Defendants seek to recover attorney’s fees and costs in the amount of $40,190.10 pursuant to Code of Civil Procedure section 425.16 subdivision (c). The Greenberg Defendants seek attorney’s fees and costs in the amount of $40,190.10.

Plaintiff opposes the Motion on the basis that because the fee requests is excessive, and the total hours billed unreasonably inflated such that the motion should be altogether be denied. However, if the Court is inclined to grant the Motion, Plaintiff states the fee should be reduced because the litigation involved a single cause of action for malicious prosecution, was not complex, and the Defense counsels’ experience and expertise should have resulted in less billing time.

Reasonable Hourly Rate

“The reasonable hourly rate is that prevailing in the community for similar work.”¿ (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The experienced trial judge is the best judge of the value of professional services rendered in [her] court.” (Id.)¿¿ “There is no requirement that the reasonable market rate mirror the actual rate billed.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 701 [italics original].) “This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel.” (Id. at 701.)

Defense counsel Barry Z. Brodsky requests payments at an hourly rate of $600.00 per hour which is a lower billing rate in comparison to rates charged by attorneys with similar experience and education in Southern California. (Brodsky Decl. ¶¶ 4, 7, Ex. 2.) Co-defense counsel on this matter was John T. Lupton, who requests payment at a rate of $500.00 per hour. (Id. ¶ 5, 7, Ex. 2.)

Plaintiff asserts that the prevailing rate for Defense counsel is the rate actually billed to the client, $245.00 per hour, rather than the reasonable market rate. (See Brodsky Decl. Ex. 5 [“Billed rate”].) However, the Appeal Court in Syers Properties III, Inc., expressly disagreed with Plaintiff’s argument and found that the “reasonable market rate” in setting a lodestar attorney fee award is the prevailing rate in the community for similar work based on similar experience. (Syers Properties III, Inc., supra, 226 Cal.App.4th at 701.)

The Court finds the hourly rates requested by Defense counsel are reasonable.

Reasonable Hours Incurred

“The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.”¿ (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)¿¿California case law permits fee awards in the absence of detailed time sheets.¿ (Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1651; Dunk v. Ford Motor Co. (1996) 48Cal.App.4th 1794, 1810; Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103.)¿ An experienced trial judge is in a position to assess the value of the professional services rendered in his or her court.¿ (Id.; Serrano v. Priest (1977) 20 Cal.3d 25, 49; Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255.)¿

The Greenberg Defendants represent they spent 63 hours bringing the anti-SLAPP motion. (Bronsky Decl. ¶ 7, Ex. 3, 4, 5.) An additional 9.3 are anticipated in bringing this fee motion, preparing a reply, and appearing at the hearing. (Id.) In total, Defendants spent 72.3 hours on both matters. Defense counsel represents they exercised “billing judgment” and did not seek compensation for tasks that only took a small amount of time or would have been incurred regardless of whether Defendants made the anti-SLAP motion. (Id. ¶ 7.)

Plaintiff asserts that the 72.3 hours billed are not reasonable given the lack of complexity and that the amount stated is not supported by the Defendants’ evidence. The Court disagrees and notes that California does not require detailing billing records when considering a motion for attorney’s fees. (See Syers Properties III, Inc., supra, 226 Cal.App.4th at 769-701.)

Mr. Bronsky Declaration contains a breakdown of the tasks performed and hours expended on the matters related to the anti-SLAPP motion and this fee Motion.

· Mr. Bronsky spent 12.4 hours reviewing and analyzing documents and evidence and related communications.

· Similarly, Mr. Lupton spent 9.6 hours reviewing and analyzing facts and evidence in connection with motion and related communications.

The Court finds that Defense counsel billing on this matter appears to be duplicative and instead credits Mr. Bronsky with 10.0 hours of work and Mr. Lupton with 8.0 hours of work.

· 12.6 – 10.0 = 2.4 x $600.00/hour = $1,400.00

· 9.6 - 8.0 =1.6 x $500.00/hour = $800.00

Accordingly, $1,440.00 and $800.00 will be subtracted from the lodestar.

Similarly, in replying to Plaintiff’s opposition, it should have taken Mr. Lupton 8.0 hours at the most rather than 15.7 hours.

· 15.7 - 8.0= 7.7 x $500.00/hour = $3,850.00

Therefore, $3,850.00 will be subtracted from the loadstar.

Preparing for and attending the hearing on the anti-SLAPP motion should have taken at most 1.5 hours rather than 3.2 hours.

· 3.2 – 1.5=1.7 x $500/hour = $850.00

Therefore $850.00 will be subtracted from the lodestar.

In total, $6,940.00 will be subtracted from the lodestar.

Costs

The Greenburg Defendants represent they incurred costs totaling $2,760.10. (Brodsky Decl. ¶ 7, Ex. 3, 4.) This includes Court fees, photocopy fees (as this Court requires courtesy copies for anti-SLAPP motions), and attorney filing services.

Defendant does not object to the costs incurred and the Court finds the costs to be reasonable.

CONCLUSION

Moving party is ordered to give notice.