Judge: Stephanie M. Bowick, Case: 22STCV28481, Date: 2024-11-21 Tentative Ruling
Case Number: 22STCV28481 Hearing Date: November 21, 2024 Dept: 19
After consideration of the briefing filed and oral argument at the hearing, Defendant BOWERS* f/k/a Bowers Consulting Firm’s Motion For An Award Of Additional Attorney’s Fees Incurred To Address And Oppose Plaintiff’s Dismissed Appeal is GRANTED in the reduced amount of $9,434.60.
The Court orders Defendant BOWERS* f/k/a Bowers Consulting Firm to file a new proposed order that simply states that the fee motion is granted and that the Court awards $9,303.80 (total attorney’s fees) + $130.80 (costs), for a total award of $9,434.60.
Counsel for Defendant BOWERS* f/k/a Bowers Consulting Firm to give notice.
This action arises out of alleged fraud. Plaintiff Black
Lives Matter Grassroots, Inc. (“Plaintiff” or “BLM Grassroots”) brings suit
against Defendants Black Lives Matter Global Network Foundation, Inc. (“GNF”), BOWERS*
f/k/a Bowers Consulting Firm (“Bowers Consulting”), and Shalomyah Bowers
(“Bowers”) (collectively, “Defendants”) alleging the following causes of
action:
1. Unfair Business Practices;
2. Intentional Misrepresentation;
3. Fraud;
4. Conversion; and
5. Unjust Enrichment.
On August 4, 2023, following the granting of Defendant GNF’s and Defendant Bowers’s anti-SLAPP motions and Defendant Bowers Consulting’s joinder to those motions, the Court entered a judgment of dismissal in favor of Defendant Bowers Consulting and against Plaintiff.
On August 23, 2023, Plaintiff filed a Notice of Appeal.
On January 9, 2024, the Court granted Defendant Bowers Consulting’s Motion For An Award Of Attorney’s Fees Pursuant To CCP § 425.16(c) (the “Original Motion”), awarding $100,602.15 in attorney’s fees and $95.95 in costs. (January 9, 2024 Minute Order, pp. 1, 6.)
Accordingly, on March 13, 2024, the Court entered the “Amended Judgment of Dismissal, Awarding Attorney’s Fees” (the “Amended Judgment”).
On April 4, 2024, the Court of Appeal, pursuant to Plaintiff’s request for dismissal, entered a Remittitur dismissing Plaintiff’s appeal.
On April 15, 2024, Defendant Bowers Consulting filed the instant Motion For An Award Of Additional Attorney’s Fees Incurred To Address And Oppose Plaintiff’s Dismissed Appeal (the “Motion”).
Pursuant to Code of Civil Procedure section 425.16, subdivision (c), Defendant Bowers Consulting moves for an award of ¿$12,153.80 in attorney’s fees and $130.80 in costs incurred in defending against Plaintiff’s appeal.
I.
ATTORNEYS’ FEES
A. Entitlement To Attorney’s Fees
Code of Civil Procedure section 425.16, subdivision (c) provides, in relevant part, that in any action subject to Code of Civil Procedure section 425.16, subdivision (b), “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs.” (Code Civ. Proc., § 425.16(c)(1).)
As explained by the Court of
Appeal in Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47
Cal.App.4th 777:
“A statute
authorizing an attorney fee award at the trial court level includes appellate
attorney fees unless the statute specifically provides otherwise.” (Evans
v. Unkow (1995) 38 Cal.App.4th 1490, 1499….) Since section 425.16,
subdivision (c) provides for an award of attorney fees and costs to a
prevailing defendant on a special motion to strike, and does not preclude
recovery of appellate attorney fees by a prevailing defendant-respondent, those
fees are recoverable. (38 Cal.App.4th at p. 1500.)
(Id. at 785; accord, Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448; Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 287.)
Defendant Bowers Consulting prevailed on its anti-SLAPP motion and therefore is entitled to recover its attorney’s fees and costs, including those incurred on appeal.
Plaintiff does not contest Defendant Bowers Consulting’s right to recover reasonable attorney’s fees incurred in defending against the appeal. (See Opposition, p. 1.)
B. Reasonableness Of Requested Fees
1. Legal Standards
As explained by the Court of Appeal in Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315:
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. 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. [T]he lodestar figure may be increased or decreased depending
on a variety of factors, including the contingent nature of the fee award. …absent
circumstances rendering the award unjust, an attorney fee award should
ordinarily include compensation for all the hours reasonably spent, including
those relating solely to the fee. … ‘padding’ in the form of inefficient or
duplicative efforts is not subject to compensation.
(Id. at 1321 (internal citations and quotations omitted).
A trial court has broad discretion to award attorney fees in an amount that is less than the lodestar amount and, to discourage claimants from making an unreasonable demand, may deny altogether a fee request that appears unreasonably inflated. (Id. at 1321-1322; see Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (quoting Brown v. Stackler (7th Cir.1980) 612 F.2d 1057, 1059).
“The basis for the trial court's calculation must be the
actual hours counsel has devoted to the case, less those that result from
inefficient or duplicative use of time.” (Horsford v. Board Of Trustees Of
California State University (2005) 132 Cal.App.4th 359, 395.) “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.) “[T]he verified
time statements of the attorneys, as officers of the court, are entitled to
credence in the absence of a clear indication the records are erroneous.” (Horsford,
supra at 396; City of Colton v. Singletary
(2012) 206 Cal.App.4th 751, 785 (same).)
“‘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. Failure to raise specific challenges in the trial court forfeits
the claim on appeal.’” (Lunada Biomedical v. Nunez (2014) 230
Cal.App.4th 459, 488 (quoting Premier Medical Management Systems, Inc. v.
California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564).)
“[T]he trial court is in the best position to value the services rendered by the attorneys in his or her courtroom, and this includes the determination of the hourly rate that will be used in the lodestar calculus.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436-437 (internal citation omitted); see, e.g., Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448 [“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.”]; Christian Research Institute, supra, 165 Cal.App.4th at 1321-1322 [ascertaining the amount of attorney’s fees to be awarded is left to the sound discretion of the trial court and the trial court need not simply award the sum requested].)
In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664; see also Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [“[R]ate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.”].) “In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (569 East County Boulevard LLC, supra, 6 Cal.App.5th at 437 (internal citations omitted).)
2. Analysis
Defendant Bowers Consulting requests a lodestar figure of $12,513.80, comprising of (1) $3,691.00 in attorneys’ fees incurred in connection with its defense/opposition in response to Plaintiff’s appeal; (2) $4,997.00 in attorney’s fees incurred in the preparation and prosecution of the instant Motion; and (3) $3,695.00 in anticipated fees incurred to review and research any Opposition papers, prepare and file an expected Reply memorandum, and participate in further court proceedings in connection with the instant Motion. (Motion, pp. 2, 7.)
i. Hourly Rates
Defendant Bowers Consulting requests the following hourly
rates for attorneys, (Lawrence Segal Decl., ¶ 8):
·
Lawrence
Segal: $565/hour in 2023 and $585/hour in 2024
·
Andrew
Shupe: $465/hour in 2023 and $485/hour in 2024
·
Tabitha
Chan: $365/hour in 2023 and $385/hour in 2024
Plaintiff does not challenge the hourly rates requested.
The hourly rates requested in the instant Motion are the
same hourly rates requested by Defendant Bowers Consulting in the Original
Motion, (Lawrence Segal Decl. Attached to Original Motion, ¶ 4), and approved
by the Court. (January 9, 2024 Minute Order, pp. 5-6.)
ii. Hours Requested
Plaintiff does not challenge (1) the $3,691.00 in attorneys’ fees requested in connection with Defendant Bowers Consulting’s defense of Plaintiff’s appeal; or (2) the $4,997.00 in attorney’s fees requested in connection with the preparation and prosecution of this Motion.
Thus, the Court finds that Plaintiff fails to sustain its burden to challenge these fees. The Court finds these fees reasonable.
However, Plaintiff challenges the $3,695.00 in anticipatory attorney’s fees that Defendant Bowers Consulting contends it will incur to review and research opposition papers to the instant Motion, to file a reply memorandum, and to participate in further court proceedings on this Motion. (Opposition at p. 1.)
The $3,695.00 in anticipatory attorney’s fees requested by Defendant Bowers Consulting reflect four (4) hours of Andrew Shupe’s time “to review the Opposition and prepare a Reply brief,” plus three (3) hours of Lawrence Segal’s time “in connection with reviewing any Opposition, editing the Reply, and attending the hearing on this Motion.” (Segal Decl. at ¶ 15.)
Since Plaintiff’s limited
opposition is only one sentence, and Defendant Bowers Consulting did not file any reply brief, the Court
agrees with Plaintiff that the $3,695.00 in anticipatory attorney’s fees
requested by Defendant Bowers
Consulting should be reduced.
Thus, the Court reduces the requested lodestar by
$3,210.00, and awards attorney’s fees in the reduced amount of $9,303.80.
II. COSTS
Defendant Bowers Consulting also requests $130.80 in costs. (See Motion at p. 2.)
Plaintiff does not oppose Defendant Bowers Consulting’s request for $130.80 in costs, and Defendant Bowers Consulting provides evidence showing that the requested costs are recoverable. (Segal Decl. at ¶ 14; see id. at ¶ 11, Ex. D at p. 19.)
Thus, the Court awards Defendant Bowers Consulting $130.80 in costs.
Accordingly, the Court GRANTS the
Motion and awards a total amount of $9,434.60.