Judge: Stephanie M. Bowick, Case: 23STCV25306, Date: 2024-11-13 Tentative Ruling
DEPARTMENT 19 LAW AND MOTION RULINGS
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Case Number: 23STCV25306 Hearing Date: November 13, 2024 Dept: 19
After consideration of the briefing filed and oral argument at the hearing, Defendant Hyoung Wook Ko’s Motion for Attorney’s Fees and Costs is GRANTED in the reduced amount of $7,557.50.
Counsel for Defendant to give notice.
This action
arises out of alleged malicious prosecution. Plaintiff Myoung Jin Kang (“Plaintiff”) brings suit against
Defendant Hyoung Wook Ko (“Defendant”) alleging the following causes of action:
1.
Malicious Prosecution; and
2. Intentional Infliction of Emotional Distress.
On February 6, 2024, Defendant filed his “Special Motion To Strike Plaintiff's Complaint (Code Of Civil Procedure Section 425.16)” (the “Anti-SLAPP Motion”), noticed for hearing on August 19, 2024.
On July 9, 2024, before the hearing on the Anti-SLAPP Motion, Plaintiff dismissed the action without prejudice.
On July 18, 2024, Defendant filed the instant Motion for Attorney’s Fees and Costs (the “Motion”).
Pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1), Defendant moves for an award of $10,532.50 in attorney’s fees and costs on the ground that it is the prevailing party on a special motion to strike (anti-SLAPP).
REQUEST FOR JUDICIAL NOTICE
The Court GRANTS Defendant’s unopposed request to take judicial notice of Exhibits 1-3. (Evid. Code, § 452(d).)
However, the Court notes that it does not take judicial notice of the truth of statements or their proper interpretation when the facts are in dispute. (See Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 [“Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.”]; StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9 [“When judicial notice is taken of a document ... the truthfulness and proper interpretation of the document are disputable.”]; see also Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134 [holding that judicial notice does not require acceptance of the truth of factual matters that might be deduced therefrom].)
Code of Civil Procedure section 425.16, subdivision (c) provides that:
(1) Except as
provided in paragraph (2), in any action subject to subdivision (b), a prevailing
defendant on a special motion to strike shall be entitled to recover that
defendant’s attorney’s fees and costs. If the court finds that a special motion
to strike is frivolous or is solely intended to cause unnecessary delay, the
court shall award costs and reasonable attorney’s fees to a plaintiff
prevailing on the motion, pursuant to Section 128.5.
(2) A defendant
who prevails on a special motion to strike in an action subject to paragraph
(1) shall not be entitled to attorney’s fees and costs if that cause of action
is brought pursuant to Section 11130, 11130.3, 54960, or 54960.1 of the Government
Code, or pursuant to Chapter 2 (commencing with Section 7923.100) of Part 4 of
Division 10 of Title 1 of the Government Code. Nothing in this paragraph shall
be construed to prevent a prevailing defendant from recovering attorney’s fees
and costs pursuant to Section 7923.115, 11130.5, or 54960.5 of the Government
Code.
(Code Civ. Proc., § 425.16(c)(1).)
I. ENTITLEMENT TO FEES AND COSTS
For the following reasons, the Court finds that Defendant is entitled to recover his reasonable attorney’s fees and costs pursuant to Code of Civil Procedure section 425.16, subdivision (c).
As an initial matter, the instant action is not one of the actions enumerated in Code of Civil Procedure section 425.16, subdivision (c)(2).
Plaintiff voluntarily dismissed the action after the Anti-SLAPP Motion was filed but before the motion was heard.
As correctly argued by Defendant, if a plaintiff voluntarily dismisses the action after a special motion to strike is filed, the trial court retains jurisdiction to decide whether to award attorney fees and costs to the defendant, (Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 877-879), with the defendant being entitled to recover attorney’s fees and costs if it is determined that the defendant would have prevailed on the motion. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1456-1458.)
Thus, the Court proceeds to determine whether Defendant would have prevailed on the Anti-SLAPP Motion.
A. Legal Standards
Pursuant to Code of Civil Procedure section 425.16, subdivision (b)(1): “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16(b)(1).) “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16(b)(2).)
Under the anti-SLAPP statute, an “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc. § 425.16(e); see also Equilon Ent., LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.)
1. Moving Defendant’s Initial Burden
A moving defendant has the initial burden to demonstrate that a cause of action is subject to a special motion to strike. (Martinez v. Metabolife Inter. Ins. (2003) 113 Cal.App.4th 181, 186; Fox Searchlight Pictures Inc. v. Paladino (2001) 89 Cal.App.4th 294, 304.) Specifically, courts decide whether a moving defendant has made a prima facie showing that the attacked claims arise from a protected activity, including defendants’ right of petition or free speech. (See, e.g., Healy v. Tuscany Hills Landscape & Recreation Corp., (2006) 137 Cal.App.4th 1, 5; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278; Code Civ. Proc. § 425.16(e).) “[A] moving defendant's burden to show a cause of action arising from is not met simply by showing that the label of the lawsuit appears to involve the rights of free speech or petition; he or she must demonstrate that the substance of the plaintiff's cause of action was an act in furtherance of the right of petition or free speech.” (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 630.) “The sole inquiry under the first prong of the anti-SLAPP statute is whether the plaintiff's claims arise from protected speech or petitioning activity.” (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490 (citing Coretronic Corp. v. Cozen O'Connor (2011) 192 Cal.App.4th 1381, 1389); see Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478 [“The critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.”].)
“At this first step, courts are to ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (quoting Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063).) “The defendant's burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.” (Id. (citing Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884).)
The California Supreme Court in Bonni held that, in evaluating anti-SLAPP motions directed to an entire cause of action or complaint, each allegation of protected activity must be evaluated separately, with the moving defendant bearing the burden of showing that each allegation supporting a claim of recovery is one that rests on protected activity. (Id. at 1010-1013.) “Assertions that are ‘merely incidental’ or ‘collateral’ are not subject to section 425.16. Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 394; accord, Bonni, supra, 11 Cal.5th at 1012.)
2. Opposing Party’s Burden
If the moving party successfully shifts the burden, then the opposing party must demonstrate a probability of prevailing on the merits of the complaint. (Equilon Ent., supra, 29 Cal.4th at 67; Code Civ. Proc. § 425.16(b)(1).)
“To establish a probability of prevailing, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’” (Soukup, supra, 39 Cal.4th at 291 (quoting Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548); accord, Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 274; see Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89 (internal citations and quotations omitted) [“As we have previously observed, in order to establish the requisite probability of prevailing, the plaintiff need only have stated and substantiated a legally sufficient claim. Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”].)
“As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940 (quoting San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, 95); see Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 213 [“An anti-SLAPP motion is an evidentiary motion. Once the court reaches the second prong of the analysis, it must rely on admissible evidence, not merely allegations in the complaint or conclusory statements by counsel.”]; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1237 (quoting College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719) [anti-SLAPP motion “requires the plaintiff to demonstrate that he possesses a legally sufficient claim which is ‘substantiated,’ that is, supported by competent, admissible evidence.”].)
This burden is somewhat akin to that required to resist a nonsuit or to move for summary judgment,” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 584 (internal citation omitted)), and therefore “[t]he standard for determining the merits of a defendant's special motion to strike a complaint is similar to that for determining the merits of a defendant's motion for summary judgment. ‘Both seek to determine whether a prima facie case has been presented by [the] plaintiff in opposing the motions.’” (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 963 (quoting Bergman v. Drum (2005) 129 Cal.App.4th 11, 18) (citing with approval Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 7:1008, p. 7(II)–57 (rev. # 1, 2014) [“The ‘probability of prevailing’ is tested by the same standard governing a motion for summary judgment, nonsuit, or directed verdict”]).) “If a plaintiff sets forth a prima facie case in opposition to such motions, the motions must be denied.” (Id.)
“The court does not, however, weigh that evidence against the plaintiff's, in terms of either credibility or persuasiveness. Rather, the defendant's evidence is considered with a view toward whether it defeats the plaintiff's showing as a matter of law, such as by establishing a defense or the absence of a necessary element.” (1-800 Contacts, Inc., supra, 107 Cal.App.4th at 585.) “An [opposing party] cannot simply rely on his or her pleadings, even if verified. Rather, the [opposing party] must adduce competent, admissible evidence.” (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 735.) “[T]he court may only consider the opposing evidence to determine if it defeats the plaintiff's showing as a matter of law.” (Colt v. Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551, 1557 (internal quotation and citation omitted).)
“[I]n order to defeat a special motion to strike, a plaintiff need only present sufficient evidence showing ‘a case of ‘minimal merit.’’” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 155 (quoting Grewal v. Jammu (2011) 191 Cal.App.4th 977, 989).)
B. Analysis
1. Defendant’s Initial Burden
Defendant’s Anti-SLAPP Motion was directed to the entirety of the Complaint, arguing that both the First and Second Causes of Action “fall squarely within the Anti-SLAPP statute.” (Anti-SLAPP Motion, p. 4.)
In the Complaint both the First and Second Causes of Action are premised upon the allegations that Defendant filed a previous action, Case No. 20STCV17221 (the “Prior Action”), against Plaintiff despite having no reasonable grounds or probable cause to do so and for an improper purpose, knowing that Plaintiff was not liable for the allegations in the Prior Action that she helped co-defendants fabricate marital documents. (Compl., ¶¶ 7-21.) Plaintiff alleges that Defendant’s malicious prosecution of Case No. 20STCV17221 harmed her reputation and caused her to suffer serious emotional distress and mental suffering. (Id. at ¶¶ 22-25.)
The Court finds that Defendant would have prevailed in showing that both the First and Second Causes of Action arise out of protected activity and are subject to a special motion to strike.
“The Supreme Court has said that ‘plainly read, section 425.16 encompasses any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body.’” (Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, 1184 (quoting Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113).) “The court has also observed that ‘[n]othing in the statute itself categorically excludes any particular type of action from its operation.’” (Id. (quoting Navellier, supra, 29 Cal.4th at 92).) “‘It is beyond dispute the filing of a complaint is an exercise of the constitutional right of petition and falls under section 425.16.’” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537 (quoting A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1125).)
“The anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation.” (Id. (citing Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908).) “Indeed, courts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.’” (Id. (quoting Kashian, supra, 98 Cal.App.4th at 908).)
“Although a party's litigation-related activities constitute ‘act[s] in furtherance of a person's right of petition or free speech,’ it does not follow that any claims associated with those activities are subject to the anti-SLAPP statute. To qualify for anti-SLAPP protection, the moving party must demonstrate the claim ‘arises from’ those activities. A claim ‘arises from’ an act when the act ‘forms the basis for the plaintiff's cause of action’ ....’” (Id. (quoting Equilon Enterprises, supra, 29 Cal.4th at 66).) “‘[T]he ‘arising from’ requirement is not always easily met.’” (Ibid.) “A cause of action may be ‘triggered by’ or associated with a protected act, but it does not necessarily mean the cause of action arises from that act. (Id. (quoting City of Cotati v. Cashman (2002) 29 Cal.4th 69, 77–78).) “‘California courts rightly have rejected the notion ‘that a lawsuit is adequately shown to be one ‘arising from’ an act in furtherance of the rights of petition or free speech as long as suit was brought after the defendant engaged in such an act, whether or not the purported basis for the suit is that act itself.’” (Id. at 1537-1538 (quoting City of Cotati, supra, 29 Cal.4th at 77); see City of Cotati, supra, 29 Cal.4th at 78 [“In short, the statutory phrase ‘cause of action ... arising from’ means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech.”].)
Here, the Court concludes that Plaintiff’s claims arise from Defendant’s protected litigation-related activities “because ‘[b]y definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit.’” (Kolar, supra, 145 Cal.App.4th at 716 (quoting Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735).) Indeed, “every Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute. (Jarrow, supra, 31 Cal.4th at 735 (citing White v. Lieberman (2002) 103 Cal.App.4th 210, 220–221; Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1188; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087–1088); accord, Maleti v. Wickers (2022) 82 Cal.App.5th 181, 200–201 (internal citations and quotations omitted) [“…since the essence of the tort of abuse of process ... [is] some misuse of process in a prior action[,] ... it is hard to imagine an abuse of process claim that would not fall under the protection of the [anti-SLAPP] statute.”].)
Plaintiff argues that that her claims in the instant action do not arise out of protected activity because they are not in connection with a public issue or an issue of public interest. (Opposition, pp. 5-7.)
The Court rejects this argument. While “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or… any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest,” is included within the scope of the anti-SLAPP statute, (Code Civ. Proc., § 425.16(e)(3), (4)), as correctly argued by Defendant, (Reply, p. 2), the anti-SLAPP statute protects a party's litigation-related activities whether or not the activity involves a public issue or an issue of public interest. (Briggs, supra, 19 Cal.4th at 1116 [“Under the plain terms of the statute it is the context or setting itself that makes the issue a public issue: all that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding.”]; id. at 1118 [“Any matter pending before an official proceeding possesses some measure of “public significance” owing solely to the public nature of the proceeding, and free discussion of such matters furthers effective exercise of the petition rights section 425.16 was intended to protect. The Legislature's stated intent is best served, therefore, by a construction of section 425.16 that broadly encompasses participation in official proceedings, generally, whether or not such participation remains strictly focused on “public” issues.”].)
Plaintiff also argues that, in the Prior Action, Defendant “knowingly ignored and flatly denied” Plaintiff’s continuous request to dismiss the Prior Action. (Opposition at pp. 6-7.) However, Plaintiff fails to explain how that compels the conclusion that Defendant would not have prevailed on the Anti-SLAPP motion or that the instant Motion must be denied. The fact that Defendant declined to dismiss the Prior Action does not compel the conclusion that the instant action is not subject to a special motion to strike.
For the foregoing reasons, the Court finds that Defendant would have sustained his initial burden to demonstrate that Plaintiff’s claims are subject to a special motion to strike.
2. Plaintiff’s Burden
Finally, the Court finds that Plaintiff would fail to sustain her burden to demonstrate a probability of prevailing on the merits of her claims. Plaintiff did not file any evidence in opposition to the Anti-SLAPP Motion because she dismissed the instant action before filing any opposition papers.
Plaintiff also failed to file any evidence in opposition to the instant Motion.
Since Plaintiff was required to produce competent, admissible evidence in order to sustain her burden, (see Hailstone, supra, 169 Cal.App.4th at 735), but failed to do so, the Court finds that Defendant would have prevailed on the Anti-SLAPP Motion.
Accordingly, for all the foregoing reasons, the Court finds that Defendant is entitled to recover his attorney’s fees and costs pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1) and proceeds to address the reasonableness of the requested fees.
II. REASONABLENESS OF FEES
A. 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).
The party seeking attorney fees and costs “bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates” to show that the fees incurred were allowable and reasonably necessary to the conduct of the litigation. (Christian Research Institute, supra, 165 Cal.App.4th at 1320 (internal citations and quotations omitted); see Levy, supra, 4 Cal.App.4th at 816.) “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.” (Ibid.) “The court also may properly reduce compensation on account of any failure to maintain appropriate time records.” (Id. (internal citation omitted) (quoting ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020).) “The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.” (Id. (citing ComputerXpress, Inc., supra, 93 Cal.App.4th at 1020).)
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.)
“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, 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).)
Finally, in the context of a special motion to strike, a party entitled to fees and costs pursuant to Code of Civil Procedure section 425.16 is limited to recovering only those fees and costs incurred on the special motion to strike, (Lafayette Morehouse, Inc. v. Chronicle Pub. Co. (1995) 39 Cal.App.4th 1379, 1383), and a prevailing defendant is only entitled to such fees as the court deems reasonable. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362 [“We readily conclude section 425.16… authorizes an award of reasonable attorney fees to the prevailing party, irrespective of whether the prevailing party is the plaintiff or the defendant.”].)
B. Analysis
Your Honor: $4,4462.50 + $5,950.00 = $10,412.50 in total attorney’s fees requested
Defendant requests $4,462.50 in attorney’s fees incurred in connection with the Anti-SLAPP Motion and $5,950.00 in attorney’s fees incurred in connection with the instant Motion, for a lodestar totaling $10,412.50. (Motion at p. 9.)
1. Hourly Rates
Defendant requests that the Court award an hourly rate of $595.00. (Id.)
After consideration of the declaration of Sam M. Muriella, which sets forth evidence of counsel’s experience and rate determinations in other cases, (Sam M. Muriella Decl., ¶¶ 7-9), and relying on the Court’s own knowledge and familiarity with the legal market, the Court determines that $595.00 per hour is reasonable.
2. Time Spent
i.
$4,462.50 [Fees Incurred In Connection With Anti-SLAPP Motion]
Plaintiff contends that these fees are “excessive” given that Plaintiff dismissed the action. (Opposition at pp. 7-8.)
After review of the Anti-SLAPP Motion papers, the Court finds that 7.5 hours were reasonably expended by Defendant in drafting and filing the Anti-SLAPP Motion. Plaintiff did not dismiss the action until after the Anti-SLAPP Motion was filed, and failed to assert any other cognizable argument as to why the 7.5 hours requested are unreasonable or excessive.
ii. $5,950.00 [Fees Incurred In Connection With The Instant Motion]
Your Honor: As stated above, in the context of a special motion to strike, a party entitled to fees and costs pursuant to Code of Civil Procedure section 425.16 is limited to recovering only those fees and costs incurred on the special motion to strike. Thus, the issue is whether fees incurred in drafting the instant Motion are “incurred on the special motion to strike.” Plaintiff contends that such fees are “not mandatory and cannot be awarded,” but fails to clearly or adequately explain why. Since the instant Motion is brought pursuant to CCP 425.16 and seeks to recover fees incurred on the Anti-SLAPP Motion, I believe Defendant is also entitled to reasonable fees incurred in drafting the instant Motion, especially since Defendant needed to show that he would have prevailed on the Anti-SLAPP Motion had Plaintiff not dismissed the action.
With respect to the $5,950.00 requested for fees incurred on the instant Motion, Plaintiff argues that such fees are “not mandatory and cannot be awarded.” (Opposition at p. 8.) However, Plaintiff fails to clearly or adequately explain why Defendant cannot recover reasonable fees incurred on the instant Motion.
The Court finds that Defendant is also entitled to recover reasonable fees incurred on the instant Motion because it is seeking to recover the fees incurred on the Anti-SLAPP Motion and requires Defendant to show that he would have prevailed on the Anti-SLAPP Motion had Plaintiff not dismissed the action.
Defendant’s counsel attests that he “s¿pent no less than 6.0 hours preparing the instant Motion for Attorney’s Fees and Costs,” and anticipates “spending no less than 1.0 hour reviewing and analyzing Plaintiffs opposition, no less than 1.5 hours preparing a reply, no less than 0.5 hours preparing for the hearing and no less than 1.0 hour appearing (via LA Court Connect) at the hearing on Defendant’s Motion for Attorney’s Fees,” for a total of no less than 10 hours.
The Court finds the 6.0 hours requested for preparing the instant Motion to be excessive and unreasonable in light of the fact that the entirety of pages 4 through 8 of the instant Motion were copied and pasted from the Anti-SLAPP Motion. (See Anti-SLAPP Motion at pp. 3-8.) The Court already awarded Defendant fees for drafting the Anti-SLAPP Motion.
The Court finds that 2.0 hours, rather than the requested 6.0 hours, represents a reasonable amount of time to draft what was not copied and pasted from the Anti-SLAPP Motion, namely, the Notice of Motion, (Motion at pp. 1-2), the “Case Background,” (id. at p. 3), the calculation and conclusion on page 9, and the declaration of Sam. M. Muriella.
The Court also finds the 2.5 hours requested to review the Opposition and prepare the Reply to be excessive. The Opposition does not cite to any case authority, only cites to Code of Civil Procedure section 425.16, and repeats arguments. (See, generally, Opposition.) The Reply is less than three (3) pages, with almost a full page of legal authority cited and discussed in the Anti-SLAPP Motion.
The Court finds that 1.5 hours, rather than the requested 2.5 hours, represents a reasonable amount of time to review the Opposition and prepare the Reply.
However, the Court finds the 1.5 hours requested to prepare for and attend the hearing to be reasonable. As such, the Court reduces the requested lodestar by $2,975.00 (5.0 x $595.00 = $2,975.00.)
Accordingly, for all the foregoing reasons, the Court awards Defendant attorney’s fees in the reduced amount of $7,437.50 ($10,412.50 (requested lodestar) - $2,975.00 = $7,437.50.)
III. COSTS
Defendant also requests $120.00 in costs, representing a $60.00 filing fee for the Anti-SLAPP Motion and a $60.00 filing fee for the instant Motion.
Plaintiff does not contest these costs, and the Court finds that Defendant is entitled to recover these costs.
Thus, the Court awards $120.00 in costs.
Based on all the foregoing, the Court GRANTS the Motion in the reduced amount of $7,557.50 ($7,437.50 + $120.00 = $7,557.50.)
Defendant to give notice.
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