Judge: Theodore R. Howard, Case: 21-1201005, Date: 2022-09-15 Tentative Ruling

The motion by defendants/cross-complainants Susan and John Belenardo (“Belenardos”) for attorney’s fees pursuant to CCP §425.16(c) is GRANTED with reduced fees awarded.

Preliminary Matters

Lack of Proof of Service

The moving party failed to file proof of service of the motion and the reply. (CRC 3.1300(c)).  Although these defects were waived by plaintiffs/cross-defendants Lora and Dean Bales (“Bales”) opposing the motion on the merits, (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697), Belenardos are admonished to timely file proof of service for all future motions.

Notice of Appeal

The filing of a notice of appeal of this court’s ruling on Bales demurrer to the Belenardos’ FACC does not stay the proceedings as to the present motion. (CCP §916(a); See also Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461).

Merits

“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.” (CCP §425.16(c)(1))

The Safe Harbor Provisions of CCP §128.5 do not apply. (See Changsha Metro Group Co., Ltd. v. Xufeng (2020) 57 Cal.App.5th 1, 21, 23) Thus, Bales’ contention, that the fees motion should be denied because Belenardos did not comply with CCP §128(f)(1)(B), lacks merit. 

Was the anti-SLAPP Motion Frivolous? Yes

Attorney’s fees under the anti-SLAPP statute and §128.5 may be assessed against a party and the party’s attorney or both where there is a determination that the anti-SLAPP motion is frivolous, meaning totally and completely without merit. (Moore v. Shaw (2004) 116 Cal.App.4th 182, 199).

Totally and completely without merit means that “any reasonable attorney would agree such motion is totally devoid of merit.” (Ibid. emphasis in original)

The court finds that Bales’ special motion to strike the Belenardos’ cross-complaint was frivolous for the following reasons.

Ordinarily, a cross-complaint will not be considered a SLAPP suit because, as it is here, a cross-complaint usually arises from the underlying dispute alleged in the complaint rather than from the litigation process. (Third Laguna Hills Mutual v. Joslin (2020) 49 Cal.App.5th 366, 372) Bales made no showing that any cause of action alleged in the cross-complaint arose from Bales’ act of filing of their initial complaint.

In addition, the court found that Bales did not meet their threshold burden of demonstrating that the cross-complaint arose from an act in furtherance of the right of free speech or petition. (See ROA #212; Workman v. Colichman (2019) 33 Cal.App.5th 1039, 1056) Also, as in Workman, Bales did not cite any case law which supported their contentions that the allegations in the cross-complaint related to the easement dispute concern a public issue or free speech. 

In finding that the Bales’ anti-SLAPP motion was frivolous, the court considered that some cases have found homeowner disputes involving HOAs to involve conduct in furtherance of the exercise of free speech in connection with a public issue or an issue of public interest but only where the matter concerns a substantial number of people, not where the matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. (See Colyear v. Rolling Hills Community Assn. of Ranch Palos Verde (“Colyear”) (2017) 9 Cal.App.5th 119, 129-132 – outcome of ongoing homeowner dispute affected 532 lots; Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, complaints to HOA board concerned issues affecting all members of the association.) The evidence and the anti-SLAPP motion establish that this dispute is solely between two neighbors and the easement related to their specific properties. There is no public interest in squabbles between neighbors. (See Jeppson v. Ley (2020) 44 Cal.App.5th 845, 854)

Because the court finds that the Bales’ anti-SLAPP motion was frivolous, the fee award is mandatory. (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th  1375, 1388)

Reasonable Fees

The court may award “reasonable expenses, including attorney’s fees” (CCP §128.5(a)).

The prevailing party seeking fees and costs bears the burden of establishing entitlement to the award and documenting the hours expended and the hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784)

The reasonable market value of the attorney’s services is the measure of a reasonable hourly rate. (Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1055) The court considers the rate prevailing in the community for similar work and uses the lodestar method by calculating the number of hours reasonably expended multiplied by the reasonable hourly rate; the lodestar rate may be adjusted based on factors specific to the case. (Ibid.) 

The prevailing party is entitled to compensation for the hours reasonably spent on the motion and those solely relating to the fee. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 556) Padding in the form of inefficient efforts is not subject to compensation. (Ibid.)

Inflated fee requests constitute a special circumstance supporting an attorney fees award for less than the lodestar amount. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321-1322) The trial court may properly reduce an attorney fee award on account of any failure to maintain appropriate time records sufficient to provide a proper basis for determining how much time was spent on particular claims. (Id. at p.1320.; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020; Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 486).

The fee award includes compensation for all the hours reasonably spent, including solely for the fee, but the prevailing party may not recover a windfall. (Christian Research, supra, 165 Cal.App.4th at p. 1321).

The court finds the fees requested are not supported by sufficiently detailed records and that the fees requested represent inefficient efforts.  Attorney Porter states she spent 32.2 hours researching the motion, discussing the case with her clients, drafting the opposition and appearing at the anti-SLAPP hearing. (Porter Decl. ¶5) Her time is broken down a bit further in Ex. B to her declaration which shows her spending 17.6 hours researching the anti-SLAPP motion. The court finds that 17.6 hours of time for researching the motion is excessive and inefficient, especially for a 20+ year attorney and overlapping issues with the demurrer heard on the same date. The court makes the same findings for the remaining time billed in connection with the opposition to the anti-SLAPP motion.

Regarding the attorney’s fees motion, Belenardos are seeking fees attributable to 18.4 hours which the court also finds excessive and inefficient for a seasoned attorney. 

The court finds 23 hours of time for opposing the anti-SLAPP motion and 8.8 hours of time for the attorney’s fee motion to be reasonably incurred by Belenardos. 

The court therefore awards a total of 31.8 hours at attorney Porter’s reasonable billable rate of $450 per hour. The court relies on its own knowledge and familiarity with the legal market when calculating the hourly rate. (569 East County Boulevard LLC v. Backcountry Against

the Dump, Inc. (2016) 6 Cal.App.5th 426, 437). 

Plaintiffs Lora and Dean Bales are ordered to pay Susan and John Belenardo $14,310 in reasonable attorney’s fees and costs within 60 days.

Moving party to give Notice of Ruling.