Judge Thomas D. Long, Case 19STCV30907 2022-11-01 Tentative Ruling

On January 13, 2020, Plaintiffs Pagiel Shechter, M.D. and Pagiel Shechter, M.D., Inc. (collectively, “Plaintiffs”) filed a first amended complaint (“FAC”) against Defendant Jamshid Niknam M.D. and others.

On November 12, 2021, Defendant filed a special motion to strike under Code of Civil Procedure section 425.16 (“anti-SLAPP motion”), a motion to file documents under seal, and a demurrer. On July 25, 2022, the Court granted the anti-SLAPP motion, granted the motion to seal, and sustained the demurrer.

On August 1, 2022, Defendant filed a motion for attorney fees. Defendant seeks $67,862.50 in attorney fees, reflecting $58,127.50 in attorney fees incurred for the anti-SLAPP motion and another $9,735.00 incurred for this fee motion.

As the prevailing party on an anti-SLAPP motion, Defendant is entitled to an award of reasonable attorney fees. (Code Civ. Proc., § 425.16, subd. (c).) California courts apply the “lodestar” approach to determine what fees are reasonable. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant factors include “(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, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.)

Defendant’s counsel billed various hourly rates: $550 for Zachary Rothenberg (“ZER”); $525 Salvatore J. Zimmitti (“SJZ”); and $485 for Sarvnaz Mackin (“SMM”). Counsel declares that these rates are discounted from their standard rates of $660, $600, and $600, respectively. (Rothenberg Decl. ¶¶ 5-7.)

In support of these rates, counsel asks the Court to consider The Fitzpatrick Matrix, which “was prepared by the Civil Division of the United States Attorney’s Office for the District of Columbia and is based on rates identified in fee motions in numerous complex cases in federal court in the District of Columbia.” (Motion at p. 5.) While counsel acknowledges that “the matrix is based on cases pending in federal court in the District of Columbia,” they state in a conclusory manner that “there is no reason to believe that rates would be substantially different in the Los Angeles metropolitan area.” Counsel also relies on the United States Consumer Law Attorney Fee Report for 2017-2018, which is based on a survey conducted by Ronald L. Burdge, supported by the National Consumer Law Center. (Ibid.)

This was not a particularly complex anti-SLAPP motion. As Plaintiffs note (Opposition at p. 6), the majority of the motion was directed at only two causes of action, and the third cause of action for unlawful business practices was derivative and minimally briefed. Based on counsel’s experience, the type of case, and the market rate, the Court concludes that $450 is a reasonable hourly rate for all attorneys on this matter.

Additionally, most of the work was done by ZER, with substantial other work done by SMM. (See Rothenberg Decl. ¶ 9.) Both of these attorneys are partners. (Rothenberg Decl., Exs. B, D.) SJZ, the only other attorney on this matter, is Of Counsel. (Rothenberg Decl., Ex. C.) No associates worked on this matter. This is another reason why the Court concludes that the blended rate of $450 is reasonable. (See 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437-439 [affirming a trial court’s rejection of the Laffey Matrix rate and its application of a lower hourly rate of $275 for an anti-SLAPP motion “in which the yeoman’s work could have been handled by associates billing much lower rates”].)

Defendant provides a copy of the attorney billing records reflecting 109 hours billed. (Rothenberg Decl., Ex. E.)

Some of the billed time is not reasonable. For example, Defendant billed excessive time opposing Plaintiffs’ ex parte applications to continue the hearing on the anti-SLAPP motion—ex parte applications that were reasonable in light of Plaintiffs’ counsel’s termination and the entity defendant being unable to represent itself in opposition to the anti-SLAPP motion. Between February 10 and 15, 2022, SMM and ZER billed a total of 4.4 hours ($2,257.50) in connection with opposing Plaintiffs’ second ex parte application. As Defendant noted (02/14/2022 Opposition at p. 2), “Plaintiffs’ counsel previously filed a nearly identical ex parte application on December 8, 2021.” Defendant should not have spent much time opposing a second ex parte application on the same grounds.

The billing records also reflect overstaffing and numerous other inefficiencies. For example, ZER began billing for analysis regarding an anti-SLAPP motion in January 2020, which continued through February 2020. After remittitur of the appeal regarding denial of a petition to compel arbitration, both ZER and SMM continued researching for the anti-SLAPP motion. On July 5 and 7, 2022, ZER billed 2.5 hours ($1,375.00) for research and preparation for the reply, and on July 9, 2022, ZER billed 3 hours ($1,650.00) to review/analyze the opposition and “prepare to draft reply.” This research appears excessive when ZER was the primary drafter of the anti-SLAPP motion. Then on July 10, 2022, SMM billed 1.2 hours ($582.00) to evaluate the opposition. On July 11, 2022, SJZ billed 8.5 hours ($4,632.50) for “Review slapp motion, plaintiff’s opposition and declaration, and ZR notes re: same; telephone conference and analysis with ZR and SM re: preparation of reply; Lexis and Westlaw case and treatise research in support of drafting insert re: second prong of slapp test; review and analyze Plaintiffs FAC in support of same; read and analyze cases re: same; begin drafting reply insert.” On the same day, SMM billed 4.8 hours ($2,328.00) for “Strategy meeting with ZER and SJZ re: reply and objections in support of anti-SLAPP motion” and “Work on preparing objections to plaintiff’s declaration; research cases in opposition; being preparing reply brief re: prong one of anti-SLAPP statute,” and ZER billed 1.5 hours ($825.00) for further research for the reply. SJZ, SMM, and ZER continued to bill additional time for preparing, researching, drafting, editing, and revising the reply until it was filed on July 14, 2022.

Additionally, some of the work is duplicative of what would have been performed for Defendant’s simultaneously filed demurrer. The anti-SLAPP motion’s argument regarding Plaintiff’s probability of prevailing on the claims was largely the same as the arguments in the demurrer, and some research would necessarily overlap. The billing records are heavily redacted, so the Court cannot determine whether the research and drafting time was properly allocated. But even so, the billing records do reflect some duplication of work. For example, on November 8, 2021, ZER billed 2.2 hours ($1,210.00) for “Revise and finalize anti-SLAPP motion; analysis re: companion demurrer.” On July 14, 2022, ZER billed 1.4 hours ($770.00) to revise and finalize the reply to the demurrer. On July 21, 2022, ZER billed 4.9 hours ($2,695.00) for appearing for the hearings on both the anti-SLAPP motion and demurrer.

Based on the Court’s review of the case file, the motion, and the exhibits, the Court concludes that a reasonable amount of time spent in connection with the anti-SLAPP motion is 55 hours.

The motion is GRANTED IN PART. The Court awards Defendant $24,750.00 in attorney fees (55 hours at $450/hour).

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court