Judge: Teresa A. Beaudet, Case: 21STCV18852, Date: 2022-10-11 Tentative Ruling

Case Number: 21STCV18852    Hearing Date: October 11, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On May 26, 2022, the Court granted Defendant Kimora Lee Simmons-Leissner’s (“Lee”) motion pursuant to Code of Civil Procedure section 425.16 to strike the twenty-third cause of action in Plaintiff Russell Simmons’s (“Simmons”) First Amended Complaint (“FAC”)

Lee now moves an order awarding her $119,259.57 in attorneys’ fees and costs, as the prevailing defendant on her anti-SLAPP motion to strike the twenty-third cause of action in the FAC. Simmons opposes.

Discussion

The anti-SLAPP statute provides that “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).) “[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” ((Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) An award of fees may also include “the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16.” (Id. at p. 1141.) “It is well established that the amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the familiar lodestar method.” ((569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432 [internal quotations and brackets omitted].) Under the lodestar method, the court tabulates the attorney fee lodestar by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.” (Ibid. .)

With regard to the number of hours reasonably expended, “the 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 v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) In determining the reasonable hourly rate, the “burden is on the successful party to prove the appropriate market rate to be used in calculating the lodestar.” ((MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13.) The trial court may reduce the award where the fee request appears unreasonably inflated, such as where the attorneys’ efforts are unorganized or duplicative. ((Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21.)

Lee submits that she incurred $83,227.40 in attorneys’ fees and $157.17 in costs in connection with her successful anti-SLAPP motion. (Roth Decl., ¶ 15; Willingham Decl., ¶ 13, Ex. 2.) Lee seeks an additional $35,875.00 in attorneys’ fees incurred in preparing the instant motion, and anticipated to be incurred in preparing the future reply and in connection with any hearing on the motion. (Roth Decl., ¶ 16.)   

The legal work was performed by three partners: David Willingham ($1,260/hour), Michael Roth ($1,125/hour), and Kelly Perigoe ($1,075/hour); one senior associate, Blythe Kochsiek ($1,090/hour); and one paralegal, David Clark ($395/hour.) (Roth Decl., ¶ 15; Willingham Decl., ¶ 5.)[1] Lee’s counsel asserts that based on his reading of the relevant case law, fee applications submitted in other district courts in California, and his overall familiarity with rates charged by Lee’s counsel’s firm’s competitors, it is his understanding that the foregoing rates are both reasonable and typical in Los Angeles County for attorneys of comparable qualifications, skill level, and experience in matters of the type and complexity of this matter. (Willingham Decl., ¶ 5.)[2] Lee’s counsel also sets forth each attorney’s background and experience. (Willingham Decl., ¶¶ 7-11; Roth Decl., ¶¶ 2-3.)

Simmons contends that Lee’s attorneys’ requested hourly rates are excessive.

First, Simmons asserts that based on the Wolters Kluwer 2021 Real Rate Report’s analysis of the rates for partners and associates that practice in law firms with more than 1,000 lawyers in Los Angeles, Lee’s attorney’s and paralegal’s hourly rates should be adjusted. (Niborski Decl., ¶¶ 3-6, Ex. 1.) Specifically, Simmons asserts that Mr. Willingham, Mr. Roth, Ms. Perigoe, and Ms. Kochsiek’s hourly rates should be adjusted to $812/hour, and that Mr. Clark’s hourly rate should be adjusted to $256/hour. However, as Lee notes, Simmons counsel’s declaration asserts that the Wolters Kluwer report demonstrates that “among other things, the median hourly rate for associates at large law firms in Los Angeles in commercial litigation is $812.” (Niborski Decl., ¶ 4, citing Ex. 1 at p. 180, emphasis added.) Lee also notes that the report indicates that for the third quartile of firms with more than 1,000 lawyers, the 2021 partner rate for commercial work in Los Angeles was $1,240, which is above the rates requested for          Mr. Roth and Ms. Perigoe in connection with this motion ($1,125/hour and $1,075/hour, respectively); and the 2021 associate rate for the third quartile was $945, which Lee asserts is on par with Ms. Kochsiek’s rate ($1,090/hour). (Niborski Decl., ¶ 6, Ex. 1, p. 180; Roth Decl.,         ¶ 15.)

As to the hourly rate for paralegals, Lee asserts that Mr. Clark’s paralegal rate of $395 is comparable to the paralegal rate of $331 for the third quartile, especially considering his 18 years of experience and fact that the paralegal rates in the Rate Report are not specific to the            Los Angeles community. (Niborski Decl., ¶ 16, Ex. 1, p. 45; Willingham Decl., ¶ 12.)   

Lastly, Simmons cites to 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th 426, 429, where the defendant “sought attorney fees and costs in a total amount of $152,529.15 pursuant to section 425.16, subdivision (c)(1). Plaintiffs did not contest defendant’s entitlement to a fees and costs award, but argued the amount sought was exorbitant. The court found [defendant] was entitled to attorney fees and costs incurred for the successful anti-SLAPP motion, but awarded a reduced amount of $30,752.86.” The defendant appealed from that order, arguing the reduced award was an abuse of discretion, and the Court of Appeal affirmed the judgment. (Ibid.) The Court of Appeal found that “[b]ecause there was evidence this was a relatively uncomplicated anti-SLAPP motion, in which the yeoman’s work could have been handled by associates billing much lower rates, there was evidence on which the trial court could have concluded the reasonable hourly rate prevailing in the community for similar work was $275 per hour…” (Id. at p. 438-439 [internal quotations and citations omitted].)

Simmons argues that here, the underlying anti-SLAPP motion was not complex as it only concerned one cause of action. Simmons notes that in her reply in support of the anti-SLAPP motion, Lee states, “Plaintiff Russell Simmons’s twenty-third cause of action for breach of contract is a textbook SLAPP…”[3] Lee counters that the number of claims is not determinative of whether the hours are reasonable, arguing that “[s]uccess on this meritless claim would have deprived Lee of a primary defense that the contracts prove that Simmons was not a member or manager of Nu Horizons at the time of the relevant transactions, and thus the value of prevailing on the anti-SLAPP motion was well in excess of the $45,000,000 bond security that triggered this case.” (Reply at p. 7:4-7.) Simmons also asserts that Lee’s counsel could have easily delegated the bulk of the research and drafting of the motion to a more junior associate, but utilized three partners and a senior associate to handle the anti-SLAPP motion. Lee notes that it omitted the time of one of the partners, and argues that the complexity and high-stakes nature of the motion warranted partners handling it. Lee also notes that 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th 426, discussed above, was decided six years ago and involves counsel in San Diego. (Id. at p. 437.) Lee notes that the Wolters Kluwer 2021 Real Rate Report indicates that San Diego rates are typically lower than              Los Angeles rates. (Niborski Decl., ¶ 16, Ex. 1 at pp. 21-22.)

Based on the foregoing, the Court finds that the hourly rates of Mr. Willingham,          Mr. Roth, Ms. Perigoe, and Mr. Clark are reasonable, and finds that Simmons has demonstrated good cause to adjust Ms. Kochsiek’s hourly rate to $945/hour.

As to the asserted number of hours, Mr. Roth spent 42.96 adjusted hours[4] on the anti-SLAPP motion and an additional 10 hours on the fee motion. (Roth Decl., ¶¶ 14, 16.)              Ms. Perigoe spent 9.12 adjusted hours on the anti-SLAPP motion. (Roth Decl., ¶ 14.)              Ms. Kochsiek spent 19.76 adjusted hours on the anti-SLAPP motion and an additional 15 hours on the fee motion. (Roth Decl., ¶¶ 14, 16.) Mr. Willingham spent 5 hours on the fee motion. (Roth Decl.,    ¶ 16.) Mr. Clark spent 9 adjusted hours on the anti-SLAPP motion and an additional 5 hours on the fee motion. (Roth Decl., ¶ 14, 16.) The total amount of adjusted hours spent on the anti-SLAPP motion is 80.84 hours. (Roth Decl., ¶ 14.) The total amount of hours spent and anticipated hours to be incurred in connection with the fee motion is 35 hours. (Roth Decl., ¶ 16.)

Simmons asserts that the requested hours are excessive. First, Simmons asserts that Lee’s attorneys engaged in a substantial amount of block billing for the work on the anti-SLAPP motion and reply, which makes it impossible to discern whether the amount of time spent on each task was reasonable. “Block billing occurs when a block of time [is assigned] to multiple tasks rather than itemizing the time spent on each task.” ((Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 279 [internal quotations omitted].) Simmons identifies certain billing entries that he asserts constitute improper “block billing.” (See Opp’n at p. 10:5-12:16.) Simmons asserts that “[a]s a result of the improper block billed and vague time entries the Court should reduce the 65.8 block billed hours by half…” (Opp’n at p. 12:16-17.) Lee counters that although “[t]rial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not,” ((Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010.), Lee does not seek fees for work unrelated to the anti-SLAPP motion. Indeed, the unredacted portions of the billing entries referenced on pages 10:5-12:16 of the opposition all appear to concern the anti-SLAPP motion, and Mr. Roth states in his declaration that he “included any entries in their entirety where work was solely billed for the anti-SLAPP motion.” (Roth Decl., ¶ 12.)

Simmons also notes that many of the billing entries contain multiple lines of redactions, which he asserts makes it impossible to determine whether the entirety of the billing entry pertained to the subject anti-SLAPP motion. (See Willingham Decl., ¶ 13, Ex. 1.) Lee counters that to the extent unrelated work was included in a time entry, it was redacted and excluded from the calculation of hours spent on the anti-SLAPP motion. (Reply at p. 9:25-10:1.) In support of this assertion, Lee cites to paragraph 12 of Mr. Roth’s declaration, which provides, “In calculating the total hours, I included any entries in their entirety where work was solely billed for the anti-SLAPP motion. For the few entries where additional work was included in the time entries, such as for the criminal matter, I reduced the total hours to account for the additional work.” (Roth Decl., ¶ 12.)

Simmons also asserts that Lee’s counsel spent excessive time on certain tasks. Simmons notes that Lee’s counsel’s billing entries indicate that they expended 16.8 hours to revise the reply. (See Opp’n at p. 13:7-24; Willingham Decl., ¶ 13, Ex. 1, p. 14.) The Court does not find that this amount is excessive, considering the complexity of the issues. In addition, as Lee points out, three attorneys worked on different sections of the reply. (Willingham Decl., ¶ 13, Ex. 1,    p. 14.)

            Simmons also notes that Lee’s counsel Mr. Roth seeks a total of 15.5 hours for preparing for oral argument. (Willingham Decl., ¶ 13, Ex. 1, p. 15; See 5/22/22, 5/23/22, 5/24/22, and 5/25/22 time entries.) Simmons notes that Mr. Roth was involved in the briefing of the anti-SLAPP motion (Willingham Decl., ¶ 13, Ex. 1) such that he was presumably “up to speed on the relevant issues that would be addressed at the hearing.” (Opp’n at p. 14:4-6.) The Court agrees with Simmons that this requested amount of time is excessive, and reduces the requested hours by half, or 7.5 hours. At Mr. Roth’s hourly rate of $1,125/hour, this equals $8,437.50.

            In addition, Simmons contends that Lee’s counsel duplicated efforts. Simmons notes that “trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation.” ((Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) Simmons notes that on May 26, 2022, Ms. Kochsiek billed 5.3 hours to “[r]eview tentative rulings on Lee’s two anti-SLAPP motions; confer with K&S team regarding same; attend hearing on anti-SLAPP motions; draft update summarizing court's rulings at hearing.” (Willingham Decl., ¶ 13, Ex. 1, p. 15.) Simmons notes that on May 26, 2022,       Mr. Roth billed 5.2 hours for similar tasks. ((Ibid. .) Simmons argues that because Ms. Kochsiek was not arguing the anti-SLAPP motion, her preparation for the hearing and attendance were duplicative and unnecessary, and the Court should decline to include Ms. Kochsiek’s 5.3 hours in the total hours awarded. The Court agrees and declines to include the subject 5.3 hours.

Simmons also asserts that Lee does not provide any factual support for the hours that she seeks for her counsel’s time drafting the fee motion, as well as for the anticipated reply and hearing on the motion. Lee does not provide any billing records to support the requested 20 hours for preparation of the fee motion. (Roth Decl., ¶ 16.) Lee counters that “[i]t is well established that California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court’s own view of the number of hours reasonably spent.” ((Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698 [internal quotations omitted].) However, the Court notes that Mr. Roth’s declaration does not provide any description regarding the work its counsel did on the fee motion, it simply lists the asserted number of actual and estimated hours. (Roth Decl., ¶ 16.) Based on the foregoing, the Court will require a supplemental declaration setting forth in further detail the work done on the fee motion.

Lastly, Lee indicates that she has incurred $157.17 in costs in connection with the anti-SLAPP motion. (Willingham Decl., ¶ 13, Ex. 2.) Simmons does not dispute this requested amount of costs.

Conclusion

Based on the foregoing, the Court continues the hearing on the instant motion to ________________,  at 10:00 a.m. in Dept. 50.  

The Court sets the following briefing schedule:  

Lee’s supplemental declaration is to be filed and served by _________________, with a courtesy copy delivered to Dept. 50.  

Simmons’s response, if any, to be filed and served by _________________, with a courtesy copy delivered to Dept. 50.  

The argument and evidence in the supplemental papers are limited to the requested additional information, as discussed above, and the response thereto. The parties may not include any argument or evidence on any other issue.  

Lee is to provide notice of this ruling.   

DATED:  October 11, 2022                           ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court