Judge: Stephen P. Pfahler, Case: 22CHCV00138, Date: 2023-08-22 Tentative Ruling

Case Number: 22CHCV00138    Hearing Date: December 12, 2023    Dept: F49

Dept. F-49

Date: 12-12-23 c/f 9-29-23 c/f 8-22-23 c/f 7-19-23

Case #22CHCV00138

Trial Date: Not Set

ATTORNEY FEES

MOVING PARTY: Defendants, Automobile Club of Southern California, et al.

RESPONDING PARTY: Plaintiff, Ashlie Anderson, pro per

RELIEF REQUESTED

Motion for Attorney Fees on the Special Motion to Strike the Complaint

SUMMARY OF ACTION

On November 1, 2021, Plaintiff Ashlie Anderson was involved in an automobile accident with defendant Ricardo Avelar, and insured with defendants Automobile Club of Southern California and/or Interinsurance Exchange of the Automobile Club, LLC. Plaintiff alleges Avelar wrongfully denied any liability after allegedly agreeing to take full responsibility for the accident.

Plaintiff subsequently submitted a claim with the insurer, which led to a designation of Plaintiff’s vehicle as a “total loss salvage.” Plaintiff contends said designation constituted false information as part of greater “general business practice” for various fraudulent and discriminatory purposes, due in part to Plaintiff identifying as African American. Individual defendants Frances Schultz and Gail Louis were employees of insurer at all relevant times.

Note, the complaint identifies Anderson’s insurer as Mercury, and the involvement of Anderson’s “boyfriend” in communications with the insurers. [Comp., ¶¶ 30, 33.] Other than communicating the denial of liability by Avelar to Anderson, it’s not clear from the complaint how Mercury was otherwise involved with the adjustment of the claim.

On March 2, 2022, Plaintiff filed a 12 cause of action “verified” complaint, comprised of 108 paragraphs of allegations and exhibits, totaling 92 pages, for Failing to Signal and Illegal Lane Change; Fraud in Violation of California Vehicle Code section 11515, subdivision (a); Fraud Based on Concealment; Non-Disclosure of Material Facts; Slander and Disgorgement of Title; Bad Faith in Violation of Insurance Code section 790.03, subdivision (b); Fraud in the Inducement; Civil Rights violations under Unruh and Bane Acts, Civil Code sections 51 and 52.1, et seq., and 42 U.S.C. section 1983; Fraud; Fraud and Violation of California Vehicle Code 11515, subdivision (a-b, d-e) in Falsifying a Settlement Agreement; Criminal Conspiracy in violation of Penal Code section 182, subdivision (a)(4) and the 14^th Amendment; and Violation of the Unfair Business Practices Act.

On March 14, Anderson filed a 170.6 challenge to Department 47, which led to the reassignment of the action to Department 49. On September 22, 2022, Department 49 reassigned the case to Department 51, as part of the opening of the new courtroom. On October 3, 2022, Anderson filed a 170.6 challenge to Department 51, which led to the reassignment of the case to Department 49 a second time.

On February 2, 2023, Ricardo Avelar answered the complaint.

On March 8, 2023, the court granted the special motion to strike of Automobile Club of Southern California, Interinsurance Exchange of the Automobile Club, LLC, Frances Schultz, and Gail Louis to the second through twelfth causes of action in the complaint. Plaintiff filed an appeal.

RULING: Granted.

Defendants Automobile Club of Southern California, Interinsurance Exchange of the Automobile Club, LLC, Frances Schultz, and Gail Louis move for $15,267.43 in attorney fees ($10,733.11 for the SLAPP motion + $4,534.22 for the instant motion) following their successful special motion to strike the second through twelfth causes of action from the complaint of Ashlie Anderson on grounds that the entire cross-complaint arises from privileged and protected conduct.

Plaintiff in opposition challenges the motion as untimely, in violation of the stay pending appeal, and, and improperly claiming fees before entry of judgment, and unreasonableness of the fees. Plaintiff also cites to “Private Attorney General doctrine,” as a basis justifying the underlying complaint, thereby “vindicating” the pursuit of rights. Plaintiff cites to “Private Attorney General doctrine” as a means of in fact awarding fees in favor of Plaintiff instead. Plaintiff challenges the underlying order granting the special motion to strike, due in part from the “hostility, prejudice and impatience” exhibited by the judicial officer in “intentionally” remaining “ignorant” on “13 pertinent” exhibits omitted from the small claims amended complaint incorporated as Exhibit G in the motion. Plaintiff also blames the court for a deprivation of the opportunity to argue the motion, due to the unawareness of the availability of the tentative ruling on the court operated website, and poor phone connection. Plaintiff also asserts “resentment, bias and prejudice” due to the handling of another pending case against a different set of defendants as part of the argument for court impartiality. Finally, Plaintiff requests an opportunity to conduct additional discovery into examining the lodestar basis for the attorney fee calculation. The opposition consists of 15 pages of points and authorities, two pages of a declaration, and 70 pages of exhibits regarding the underlying insurance claim.

Defendants in reply challenge the format of the opposition. Defendant describes the opposition as an effort to reargue the motion after the hearing, and notes the requirement that a pro per Plaintiff remains subject to the same standard as all appearing parties before the court. On the fee request, Defendants reiterate the right to fees and costs under the SLAPP statute without the necessity of a memorandum of costs, prior to the entry of any judgment, and even during an appeal. Defendant proceeds to address the service issues in the underlying action. Finally, Defendants maintains all fees and costs are reasonable.

The subject motion was continued from the prior July 19, 2023, hearing date, due to the notice from Anderson regarding a hospitalization beginning on July 2, 2023, and until at least July 8, 2023. Because Anderson holds a right to appear for oral argument, and the court found no intention of a waiver to appear, the court continued the hearing. (Moles v. Regents of University of California (1982) 32 Cal.3d 867, 871.) On August 19, 2023, Anderson effectively refiled the same notice of unavailability for the hearing on August 22, 2023, without any new information. Because the court continued the hearing in a separate action also involving Anderson as an in pro per Plaintiff, for consistency, the court continued the hearing to the same date as the subject hearing—December 12, 2023. The court ordered no further briefs unless Anderson sought another continuance, with a due date no later than December 5, 2023. The court electronic filing system show no additional request. The court proceeds with the hearing.

Appellate Stay and Underlying Order

Plaintiff filed an appeal on the underlying order granting the special motion to strike. The court retains jurisdiction to hear the motion for attorney fees. (Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461.)

As for the challenges to the underlying order itself, including the accusation of the “hostility, prejudice and impatience,” the court declines any form of sua suponte reconsideration of the subject motion. Plaintiffs may rightfully pursue their appeal challenging any asserted errors of law and fact.

Timing

A motion for attorney fees must be served and filed within the time for the filing of a notice of appeal in a civil case. (Cal. Rules Ct., rule 3.1702(b)(1).) The time for the filing of a notice of appeal in an unlimited action is 60 days if a “Notice of Entry” of Judgment was served by the court clerk or a party to the action, or within 180 days of entry of judgment. (California Rules of Court, rule 8.104.) The motion was filed on April 5, 2023, following the March 8, 2023, grant of the special motion to strike and March 9, 2023, Notice of Entry of Judgment or Order form, but before entry of judgment. The motion was filed less than 60 days after the filing of notice, and is therefore timely under California Rules of Court rule 3.1702(b)(1).

Private Attorney General

The court finds no basis of applicability for any form of Private Attorney General doctrine to the instant action. The action was filed in the personal interests of Anderson over an insurance policy adjustment dispute and transmission of a “salvage” designation over a single automobile. Plaintiff neither prevailed, nor established any basis for consideration of a public benefit. (Serrano v. Unruh (1982) 32 Cal.3d 621, 632-636.)

Standard for Recovery of Fees and Costs on Special Motion to Strike

A successfully prevailing party on a special motion to strike may recover attorney fees, including costs of the motion itself. (Code Civ. Proc., § 425.16, subd. (c)(1); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141-1142.) “An award of attorney fees to a prevailing defendant on an anti-SLAPP motion properly includes attorney fees incurred to litigate the special motion to strike (the merits fees) plus the fees incurred in connection with litigating the fee award itself (the fees on fees).” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433; Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 21; Lafayette Morehouse, Inc. v. Chronicle Pub. Co. (1995) 39 Cal.App.4th 1379, 1383.)

The lodestar method for determination of fees applies in special motions to strike. (Ketchum v. Moses (2001) 24 Cal.4th at p. 1136.) “‘[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.’” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)

The reasonableness of attorney fees lies within the discretion of the trial court. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) The court makes it determination based on the consideration of a number of factors, including, “the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” (Ibid.) The court should apply an objective standard of reasonableness. (Id. at p. 1098.)

Prevailing counsel seeks $10,733.11 for the prior SLAPP motion itself based on hours of work at an hourly rate range of of $200 to 250/hour. [Declaration of Barbara Mandell.] The summarized declaration and billing statement shows time spent on the SLAPP motion and the appearance for a total of $4,024 by Barbara Mandell and $4,752.50 by associate Matthew Balmuth, plus $1,956.61 in costs. On the instant motion, the prevailing party seeks $4,534.32 based on $1,625 billed by Mandell, $2,812.50 listed by Balmuth, and $96.82 in costs. The total fees add up to $13,214 in fees and $2,054.43 in costs. Counsel represents total hours of 57.6 hours dedicated to the motions, include: 16.2 hours on the SLAPP motion and 6.5 hours on the attorney fees motion, which includes an anticipated 4.5 hours on any reply and oral argument by Mandell. Balmuth lists 22.4 and 12.5 hours on the SLAPP and instant motion, with 5 hours included for the reply on the instant motion. [Mandel Decl., ¶¶ 8, 9, 12, 13, Ex. C-D.]

While the recovery of costs are normally governed by the filing of a memorandum of costs under California Rules of Court, rule 3.1700(a)(1), the special motion to strike statute allows for the recovery of fees and costs as part of the motion. “[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, subd. (c)(1).)

Plaintiff offers no challenge to the hourly rate. The court finds the rate for experienced insurance counsel in Los Angeles County reasonable. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619-620; see Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanitary Corp. (3d Cir. 1973) 487 F.2d 161, 167.)

The next step involves the determination of the reasonableness of the number of hours spent. Plaintiff challenges the necessity of two attorneys concurrently billing for the same work and conferencing on said motion.

On reasonableness, the court considers the substantive support presented by moving counsel contrasted with the counter statement of opinion on the topic of “reasonableness.” “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. ‘If ... the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful. ...’” (Serrano v. Unruh, supra, 32 Cal.3d at p. 635.)

The court finds all, but one category of entries (addressed below) meets the standard for fee recovery. The court also finds the billing of both the managing partner and associate reasonable and conventional for law and motion work presented to the court. Thus, the court is left with considering the reasonableness of the hours spent on both the SLAPP motion and subject attorney fee motion. The court considers the context of the motion based at least in part on the time and fees necessitated as a result of the voluminous litigation tactics of Plaintiff in both filing the 12 causes of action against prevailing defendants, and the two oppositions, which were comprised of 21 pages of points and authorities, plus an additional 63 pages of exhibits in the first, with the second opposition consisting of 22 pages of points and authorities, and 106 additional pages of exhibits.

Initially, the court determines the time spent on e-mail to Plaintiff regarding incorrect service and response to threats of sanctions, insufficiently relates to the special motion to strike. The 0.7 hour/$175 in fees is therefore deducted. The court finds the declaration of Deborha Bennett only addresses the service issues already found inapplicable to the special motion to strike, and therefore deducts the 1.2 hours/$270 spent drafting this declaration.

The court next finds the combined 6.2 hours of time spent on the declaration of Frances Schultz, the 12.5 (8.5 hours by Balmuth and 4 hours by Mandell) on the points and authorities, and 9.3 combined hours on the first reply redundant and excessive. The 23-paragraph declaration and exhibits merely constituted a summary of the claim process on a motion dependent on a finding of privileged activity—a small part of the negotiation between the parties.

On the instant motion for the fees, the court additionally finds the 9.3 hours (7.3 hours by Balmuth and 2 additional hours by Mandell) unnecessarily redundant. The motion raises no particularly unique arguments, and seeks fees within a well developed area of the law. The court however allows for all charges associated with the review of the second filed opposition to the special motion to strike, opposition to the instant motion, time to review the tentative rulings, and, oral argument for both motions.

Counsel also filed a supplemental brief following the latest continuances of the hearing, whereby counsel appeared, as well as the pending appeals, and the OSC hearings regarding the appellate process. Counsel represents a total of ten (10) additional hours at $250 hour billed to the client. Plaintiff in a responsive brief seeks to reargue the merits of the case and right to recovery of fees in general. Plaintiff also accuses counsel of submitting “misleading” information to the court. The court will not reconsider any right to recovery and only considers the total fee recovery. As addressed above, the court finds the incurrence of additional hours due to the tactics of Plaintiff recoverable as they relate to the actual motion. [Supplemental Declaration of Barbara Mandell.]

The court declines to award fees associated with the appellate process and related status conferences, but will increase the fees due to the continuances. The court of appeal can determine the right to recovery of any fees and/or costs as part of the appellate process.

In summary, the court reduces the number of hours recoverable on grounds of excessive billing as to the items addressed above, and allows for recovery of the remaining balance at the average of the hourly rates. (Serrano v. Unruh, supra, 32 Cal.3d at p. 635; see Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1329.) The court therefore strikes the $445 in 1.9 hours billed in relation to the proof of service issues on the complaint. The court reduces the 6.2 hours spent on the Schultz declaration to 3 hours, the 12.5 hours spent on the points and authorities to the motion reduced to 8 hours, and the 9.3 hours in the reply reduced to 5 hours, due to the two oppositions. On the instant motion the court reduces the hours from 9.3 to 5 hours. Total fees for the reduced and eliminated items equates to a deduction of 15.8 hours from the 29.7 hours addressed for a net of 13.9 hours. Deducting the 15.8 hours from 57.6 hours leaves a net balance of 41.8 hours. The court adds in an additional five (5) hours as a result of the two continuances in the form of supplemental briefs and appearances thereby raising total hours to 46.8. [Supplemental Mandell Dec.] The court multiplies the balance by the average hourly rate of $225 for a total award $10,530. Along with the unchallenged the unchallenged costs of $2,053.43, the court awards a total of $12,583.43 in fees and costs.

Because the amount of fees exceeds $5,000, this order is immediately appealable. (Code Civ. Proc., 904.1, subd. (a)(12); Doe v. Luster (2006) 145 Cal.App.4th 139, 146.)

Moving parties to give notice.