Superior Court of California

County of Los Angeles

Department 50

800 E. Pico Blvd., llc, et al., Plaintiffs, vs. online edugo, INC., et al., Defendants.	Case No.:	21STCV38823
	Hearing Date:	December 12, 2023
	Hearing Time:	10:00 a.m.
	TENTATIVE RULING RE: MOTION FOR AWARD OF MANDATORY ATTORNEY FEES AND COSTS

Background

On October 21, 2021, Plaintiffs 800 E. Pico Blvd., LLC and Xiang Hao Cui (jointly, “Plaintiffs”) filed this action against Defendants Online Edugo, Inc. (“Edugo”), Andrew Kim (“Kim”) and Law Office of Andrew Kim, APC (the “Law Office”). The Complaint asserts one cause of action for wrongful use of civil proceedings.

On August 3, 2022, the Court issued an Order granting Edugo’s special motion to strike Plaintiffs’ Complaint. In addition, on April 28, 2023, the Court issued an Order granting Kim and the Law Office’s special motion to strike Plaintiffs’ Complaint.

Edugo and the Law Office (jointly, the “Moving Parties”) now move for an order compelling Plaintiffs to pay the Moving Parties attorney fees “in connection with the successful Special Motions to Strike, and to prepare this Motion, for all the mandatory fees and costs.” (Notice of Motion at p. 2:3-5.)

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).) 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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141.)

As an initial matter, Plaintiffs assert in the opposition that the instant motion is untimely. Plaintiffs cite to California Rules of Court, rule 3.1702, which provides, inter alia, that “[e]xcept as otherwise provided by statute, this rule applies in civil cases to claims for statutory attorney’s fees and claims for attorney’s fees provided for in a contract. Subdivisions (b) and (c) apply when the court determines entitlement to the fees, the amount of the fees, or both, whether the court makes that determination because the statute or contract refers to ‘reasonable’ fees, because it requires a determination of the prevailing party, or for other reasons.” (Cal. Rules of Court, rule 3.1702, subd. (a).) Pursuant to California Rules of Court, rule 3.1702, subdivision (b), “[a] notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court--including attorney’s fees on an appeal before the rendition of judgment in the trial court--must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case…”

Pursuant to California Rules of Court, rule 8.104, subdivision (a), “[u]nless a statute or rules 8.108, 8.702, or 8.712 provides otherwise, a notice of appeal must be filed on or before the earliest of: (1) (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, showing the date either was served; (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or (C) 180 days after entry of judgment.” California Rules of Court, rule 8.104, subdivision (e) provides that “[a]s used in (a) and (d), ‘judgment’ includes an appealable order if the appeal is from an appealable order.” Plaintiffs note that “[a]n order granting or denying a special motion to strike shall be appealable under Section 904.1.” (Code Civ. Proc., § 425.16, subd. (i).)

Plaintiffs assert that accordingly, the “deadline to appeal an order granting a special motion to strike is 60 days after service by the clerk of a filed-endorsed copy of the order granting the anti-SLAPP motion, or 60 days after notice of entry of that order is served by a party, whichever is earlier.” (Opp’n at p. 2:10-13.)

Plaintiffs note that here, on April 28, 2023, the Court issued an Order granting Kim and the Law Office’s special motion to strike. The Court’s April 28, 2023 minute order provides, inter alia, that “[t]he Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) filed by Andrew Kim, Law Office of Andrew Kim, APC on 11/28/2022 is Granted.”

On April 28, 2023, a Certificate of Mailing was filed which provides, inter alia, that “I, the below-named Executive Officer/Clerk of the above-entitled court, do hereby certify that I am not a party to the cause herein, and that on this date I served the Minute Order (Hearing on Special Motion to Strike under CCP Section 425.16 ...) of 04/28/2023 upon each party or counsel named below by placing the document for collection and mailing so as to cause it to be deposited in the United States mail at the courthouse in Los Angeles, California, one copy of the original filed/entered herein in a separate sealed envelope to each address as shown below with the postage thereon fully prepaid, in accordance with standard court practices.” This certificate of mailing filed on April 28, 2023 is dated May 1, 2023. Sixty days after May 1, 2023 is June 30, 2023. As noted by Plaintiffs, the instant motion was filed on September 28, 2023.

The Court notes that the Moving Parties did not file any reply in support of the motion, and thus do not dispute that the motion is untimely.

The Court also notes that to the extent the instant motion concerns Edugo’s motion to strike, the Court issued an Order on August 3, 2022 granting Edugo’s special motion to strike Plaintiffs’ Complaint. The docket for this action does not appear to show the filing of a certificate of mailing of the August 3, 2022 Order. In any event, 180 days after August 3, 2022 is January 30, 2023. (Cal. Rules of Court, rule 8.104, subd. (a)(1)(C).) The instant motion was filed on September 28, 2023.

In light of the foregoing, the Court denies the instant motion as untimely.

Conclusion

Based on the foregoing, the Moving Parties’ motion for attorney’s fees is denied.

Plaintiffs are ordered to provide notice of this Order.

DATED: December 12, 2023 ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court