Judge Theresa M. Traber, Case Number: 23STCV10824, Date: 2025-02-24 Tentative Ruling

Judge: Theresa M. Traber, Case: 23STCV10824, Date: 2025-02-24 Tentative Ruling

Case Number: 23STCV10824 Hearing Date: February 24, 2025 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: February 24, 2025 JUDGMENT: April 30, 2024

CASE: Larry Gross v. Joy Freiberg

CASE NO.: 23STCV10824

(1) MOTION FOR ENTRY OF SATISFACTION OF JUDGMENT

(2) MOTION FOR ATTORNEY’S FEES ON APPEAL

MOVING PARTY: (1) Plaintiff Larry Gross; (2) Defendant Joy Freiberg

RESPONDING PARTY(S): (1) Defendant Joy Freiberg; (2) Plaintiff Larry Gross

CASE HISTORY:

· 05/15/23: Complaint filed.

· 04/02/24: Special Motion to Strike granted.

· 04/30/24: Judgment entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for defamation that was filed on May 15, 2023. Plaintiff alleges that Defendant made numerous false statements about him on social media.

Plaintiff moves for an order entering satisfaction of judgment and for fees and costs. Defendant moves for attorney’s fees and costs as the prevailing party on appeal.

TENTATIVE RULING:

Plaintiff’s Motion for Entry of Satisfaction of Judgment is DENIED AS MOOT.

Plaintiff’s request for attorney’s fees is DENIED.

Defendant’s Motion for Attorney’s Fees is GRANTED in the amount of $11,838.74.

DISCUSSION:

Motion for Entry of Satisfaction of Judgment

Plaintiff moves for the clerk of court to enter full satisfaction of the judgment against him as of October 24, 2024, and for attorney’s fees arising from Defendant’s failure to timely serve acknowledgment of satisfaction of judgment.

Entry of Satisfaction of Judgment

Plaintiff moves for the clerk of court to enter full satisfaction of the judgment against him as of October 24, 2024.

Pursuant to Code of Civil Procedure Section 724.050: “(a) If a money judgment has been satisfied, the judgment debtor, the owner of real or personal property subject to a judgment lien created under the judgment, or a person having a security interest in or a lien on personal property subject to a judgment lien created under the judgment may serve personally or by mail on the judgment creditor a demand in writing that the judgment creditor do one or both of the following: [¶](1) File an acknowledgment of satisfaction of judgment with the court. [¶](2) Execute, acknowledge, and deliver an acknowledgment of satisfaction of judgment to the person who made the demand.” (Code Civ. Proc., § 724.050(a).) “If the judgment has been satisfied, the judgment creditor shall comply with the demand not later than 15 days after actual receipt of the demand.” (Code Civ. Proc., § 724.050(c).)

“If the judgment creditor does not comply with the demand within the time allowed, the person making the demand may apply to the court on noticed motion for an order requiring the judgment creditor to comply with the demand. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. If the court determines that the judgment has been satisfied and that the judgment creditor has not complied with the demand, the court shall either (1) order the judgment creditor to comply with the demand or (2) order the court clerk to enter satisfaction of the judgment.” (Code Civ. Proc., § 724.050(d).)

Plaintiff argues that Defendant was properly served a demand to file a full satisfaction of judgment within 15 days on November 13, 2024 and failed to do so despite her counsel twice representing he would file it. (Declaration of Frances Campbell ISO Mot. ¶3, Exhs. B-C.) However, Defendant has since filed the acknowledgement of satisfaction of judgment. (Acknowledgement of Satisfaction of Judgment, filed on 1/30/25.) As a result, there is no need to enter an order directing the clerk of court to enter full satisfaction of the judgment against Plaintiff as requested in the instant motion.

Request for Attorney’s Fees

Plaintiff also seeks an award of attorney’s fees in the amount of $5,098.46 on the grounds that Defendant Freiberg’s counsel failed to immediately file with the court an acknowledgement of satisfaction of judgment.

Where, after a demand to serve acknowledgment of satisfaction of judgment has been made, a judgment creditor fails “without just cause to comply with the demand within the time allowed, the judgment creditor is liable to the person who made the demand for all damages sustained by reason of such failure and shall also forfeit one hundred dollars ($100) to such person.” (Code Civ. Proc., § 724.050(e).)

Here, Plaintiff properly served Defendant with a demand to file an acknowledgement of satisfaction of judgment with the Court on November 13, 2024. (Campbell Decl., ¶3, Exh. B.) Thus, Defendant had until December 2, 2024, accounting for the Court holiday on November 29 (see Code Civ. Proc. § 12) to file the acknowledgment of satisfaction of judgment. The record indisputably establishes that Defendant did not do so. Nevertheless, Defendant argues in opposition that a fee award should not be imposed because the demand had been served by mail, notwithstanding the Parties’ stipulation to accept service and notice via email, while counsel for Defendant was traveling abroad and unable to receive mail. (Declaration of Paul Boylan ISO Opp. ¶ 2.) Defendant argues that the deadline to file the acknowledgment should, in light of counsel’s lack of access to mail, be calculated from November 27, 2024, the date Defendant’s counsel collected his mail. Defendant cites no authority supporting this method of calculation and, moreover, Defendant’s counsel admits to receiving notice of the formal demand before the expiration of the 15-day period. The Court therefore does not consider Attorney Boylan’s travel as “just cause” for the failure to comply with the demand for acknowledgment within the statutory time.

That said, Defendant’s counsel also states the initial Notice of Acknowledgment, filed December 16, 2024, was rejected by the Court Clerk on the basis that Plaintiff’s appeal was pending. (Boylan Decl. ¶ 6; Exh. 3.) Plaintiff abandoned that appeal on Tuesday, December 3, 2024—i.e., after the expiration of the 15-day deadline. (See Boylan Decl. Exh. 1.) Thus, it is not apparent that Defendant could have filed an acknowledgment of satisfaction of the judgment within the 15-day deadline. On such a record, the Court cannot conclude that Defendant’s failure to comply with the demand was lacking in just cause. The Court thus declines to award Plaintiff attorney’s fees, costs, and forfeiture.

Conclusion

Accordingly, Plaintiff’s Motion for Entry of Satisfaction of Judgment is DENIED AS MOOT.

Plaintiff’s request for attorney’s fees is DENIED.

Motion for Attorney’s Fees

Defendant moves for attorney’s fees as the prevailing party on an appeal from the Court’s order granting Defendant’s Special Motion to Strike.

Entitlement to Fees

Code of Civil Procedure section 425.16(c) entitles a prevailing defendant on a special motion to strike, otherwise known as an anti-SLAPP motion, to recover their attorney’s fees and costs. The amount of attorneys’ fees awarded must be reasonable. (See, e.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) However, the prevailing defendant may only recover fees and costs incurred in connection with the motion to strike. (Lafayette Morehouse, inc. v. Chronical Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) This limitation nevertheless permits recovery of consequential fees, such as those incurred litigating the fee award (Ketchum v. Moses, supra, 24 Cal.4th at 1141) and on appeal. (Evans v. Unknow (1995) 38 Cal.App.4th 1490, 1499-1500 [Section 425.16(c) permits recovery of appellate fees because they are not expressly precluded by the statutory language].) Examples of matters which are excluded from a fee award under this provision include, inter alia, fees for “attacking service of process, preparing and revising an answer to the complaint” and “obtaining the docket at the inception of the case.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325.)

Plaintiff noticed an appeal from the Court’s order granting Defendant’s Special Motion to Strike and from the judgment thereon. (Declaration of Frances Campbell ISO Opp. Exh B.) The parties briefly litigated the preparation of a settled statement to support the appeal, but Plaintiff abandoned the appeal before the record was transmitted to the Court of Appeal. (See Campbell Decl. ¶ 7.) The Parties agree that the abandonment of the appeal effected a dismissal of the appeal, entitling Defendant to recover fees and costs incurred. (See Cal. Rules of Court 8.278 [costs on appeal from dismissal]; 8.904(b)(2) [abandonment effects dismissal].)

Reasonableness of Fees

Defendant requests a total award of $29,545.00 in attorney’s fees, based on 14.5 hours of attorney time at $950 per hour incurred on appeal, 9.2 hours of attorney time at the same rate on the instant motion, and 7.4 hours of attorney time at that rate incurred to prepare the reply brief, plus $29.75 in filing costs.

Reasonable attorney fees are ordinarily determined by the Court pursuant to the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096; Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004 [“California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.”].) “[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….” (Ibid.) In setting the hourly rate for a fee award, courts are entitled to consider the “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Info. Sys., Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.) The burden is on the party seeking attorney’s fees to prove the reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)

The Court has broad discretion in determining the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.) The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)

Defendant argues that the total fee request is reasonable because, first, Attorney Boylan’s $950/hour appellate rate is within the typical range charged by appellate attorneys, both according to his own experience and according to Attorneys Richard Chaskin and Robert Shtofman, whose supporting declarations have been submitted with this motion. (Declaration of Paul Boylan ISO Mot. ¶ 5; see also Declarations of Richard Chaskin & Robert Shtofman ISO Mot.) In response, Plaintiff contends that the hourly rate requested is not reasonable where Defendant had previously claimed an $850 hourly rate at the trial level as “reasonable.” These positions are not mutually exclusive, and the Court is not persuaded that $950 per hour is per se an unreasonable rate on appeal.

Defendant also argues that the total number of hours sought is reasonable. Defendant has provided itemized billing records for both the fees on appeal and the fees on this motion. (Supplemental Declaration of Paul Boylan ISO Reply Exh. 1.) About nine hours of attorney time in connection with the appeal were incurred for pre-emptive researching of issues and preparation of ultimately unnecessary appellate briefing, while the remaining appellate fees principally relate to correspondence and preparation of the settled statement. (See Id.) The Court also observes that Defendant’s counsel’s entries are extremely granular and often separate contiguous tasks, such as reviewing correspondence, into one-tenth-hour segments, such as for reviewing the correspondence and any attachments separately. (Id.) Plaintiff objects to this billing pattern as excessive and a means of padding time and fees. The Court concurs that Defendant’s billing is excessively detailed and therefore marginally inflationary, especially in light of counsel’s high hourly rate. The Court is also unpersuaded by Defendant’s argument in response that the Court’s ruling on the previous fee motion is somehow controlling on this motion. The Court therefore will impose a 5% fee reduction to account for Defendant’s inflationary billing.

Plaintiff also objects to Defendant’s counsel’s billing for pre-emptive legal research that was not necessary where the record had not yet been transmitted to the Court of Appeal. Defendant’s counsel justifies this practice based on his own experience and practice in appellate law. (Boylan Decl. ¶¶ 2-3, 6.) In response, Plaintiff offers expert declarations which decry the practice as “unusual.” (See, e.g., Declaration of Benjamin Shatz ISO Opp. ¶ 10; Declaration of Timothy Kowal ¶ 5.) Plaintiff also asserts that the only fees which should be awarded are one hour at $850 per hour to prepare the settled statement because Defendant’s counsel’s total fee demand is excessive. The Court is not prepared to adopt such an extreme remedy, but again concurs with Plaintiff that Attorney Boylan’s anticipatory research was not justified in this context. It seems highly unlikely that, for a seasoned litigator such as Mr. Boylan, any appeal from this case on the Special Motion to Strike would have raised any novel issues that would warrant anticipatory research and briefing. The Court therefore imposes a further 30% reduction on the fee request to account for the unnecessary research.

Plaintiff also argues that Defendant’s original billing records sought fees for unsent correspondence and hearings which did not transpire. Defendant’s reply acknowledges these entries were erroneous and have been excised—and the corresponding fees—from the billing records produced on reply. The Court therefore declines to impose any further reduction in the fees on this basis.

Finally, Plaintiff argues that Defendant’s request for fees in connection with 9.2 hours of attorney time on the fee motion itself—not including the further 7.4 hours of attorney time on the reply—is excessive. Once more, the Court concurs with Plaintiff. Even accounting for the extraordinary hostility between counsel in this action, sixteen hours of attorney time at $950 per hour on a straightforward fee motion is excessive on its face. The Court therefore imposes a further 25% reduction on the total fee request to account for the inflated fees on fees, for a total reduction of 60%.

Costs

Defendant also requests $20.74 in filing costs. As Plaintiff does not object to this cost request, the Court will award the full amount of costs sought.

Conclusion

Accordingly, Defendant’s Motion for Attorney’s Fees is GRANTED in the amount of $11,838.74.

CONCLUSION:

Accordingly, Plaintiff’s Motion for Entry of Satisfaction of Judgment is DENIED AS MOOT.

Plaintiff’s request for attorney’s fees is DENIED.

Defendant’s Motion for Attorney’s Fees is GRANTED in the amount of $11,838.74.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: February 24, 2025 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.