Judge Upinder S. Kalra, Case Number: 22STCV20378, Date: 2023-05-10 Tentative Ruling

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RESPONDING PARTY(S): (1) Plaintiff Wilfred J. Killian and (2) Cross-Complainant Jose Hernandez

1. Defendant’s Motion for Attorneys’ Fees against Plaintiff is GRANTED in the amount of $10,500.

2. Cross-Defendant’s Motion for Attorneys’ Fees against Cross-Complainant is GRANTED in the amount of $6,000.

On June 22, 2022, Plaintiff Wilfred J. Killian (“Plaintiff”) filed a complaint against Defendants Marc Anthony Cubas, Vlaze Media Networks, Inc., Patrick O’Greene, Sydney Susana Cubas, Jose Hernandez (“Defendants.”) The complaint alleges five causes of action: (1) Trade Libel, (2) Intentional Infliction of Emotional Distress, (3) Negligent Infliction of Emotional Distress, (4) Misrepresentation, and (5) Intentional Interference with Contractual Relationship. Plaintiff alleges that that AMAG and Vlaze entered into a Loan Agreement in 2007. However, AMAG filed a complaint for breach of the loan agreement in 2015, which resulted in a judgment for AMAG. Another lawsuit resulted after part of the judgment, which required Vlaze to provide AMAG collateral, was not completed. During the second lawsuit, a Motion to Disqualify counsel was filed, which had various declarations about Plaintiff, which Plaintiff alleges are false and fictious.

On July 28, 2022, Defendant Marc Anthony Cubas, Patrick O’Greene, Sydney Susan Cubas filed a Special Motion to Strike, Anti-SLAPP, which was GRANTED. The court dismissed the complaint.

On September 13, 2022, Defendant Jose Hernandez filed an Answer and Cross-Complaint.

On October 14, 2022, Defendants Marc Anthony Cubas and Sydney Susan Cubas filed an Answer to the Cross-Complaint.

On December 20, 2022, Cross-Defendants Diane Mancinelli, Mentis Law Group, PLC, Marc Cubas, Sydney Cubas filed a Special Motion to Strike, Anti-SLAPP, which was GRANTED.

On February 16, 2023, Plaintiff filed a Motion for Reconsideration of the Anti-SLAPP, which was DENIED.

On April 3, 2023, Defendants Marc Cubas and Sydney Cubas (“Moving Defendants”) filed a Motion for Attorneys’ Fees as to the Anti-SLAPP against Plaintiff (“Plaintiff”). Plaintiff’s Opposition was filed on June 8, 2023. Defendants’ Reply was filed on June 14, 2023. On June 22, 2023, Defendants Motion for Attorneys’ Fees was continued.

On May 30, 2023, Cross-Defendants (“Moving Cross-Defendants”) filed a Motion for Attorneys’ Fees as to the Anti-SLAPP against Cross-Complainant Jose Hernandez (“Cross-Complainant”). Cross-Complainant filed an opposition on August 11, 2023, and Cross-Defendants filed a reply on August 15, 2023.

Pursuant to Code of Civil Procedure section 425.16(c), a prevailing defendant is entitled to recover attorneys’ fees and costs associated with a motion to strike. Under CRC 3.1702 and CRC 8.104, a request for attorneys’ fees must be made within 60 days of service of the notice of entry of judgment. A defendant may only recover fees and costs related to the motion to strike. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co.¿(1995) 39 Cal.App.4th 1379, 1383.) This includes fees associated with bringing the motion for fees. (Ketchum v. Moses¿(2001) 24 Cal.4th 1122, 1141 (“an award of fees may include not only the fees incurred with respect to the underlying claim, but also the fees incurred in enforcing the right to mandatory fees under Code¿of Civil Procedure section 425.16.”).) Additionally, “[a]ny¿fee award must also include those incurred on appeal. [Citation.]” (Trapp v.¿Naiman¿(2013) 218 Cal.App.4th 113, 122.)¿

“A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney . . .¿ involved in the presentation of the case.” (Christian Research Institute v.¿Alnor¿(2008) 165 Cal.App.4th 1315, 1321.) The Court “need not simply award the sum requested. To the contrary, ascertaining the fee amount is left to the trial court's sound discretion.” (Id.) “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan¿(2002) 99 Cal.App.4th 443, 448.)¿

Defendants move for $49,488 in attorneys’ fees in total. This is based on $39,288 for the Anti-SLAPP motion and $10,200 for the current motion.[1]

Code of Civil Procedure § 426.16 states that “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs.” Plaintiff does not dispute that Defendants were the prevailing party on the special motion to strike.

Plaintiff argues that the motion is untimely as it was not filed within 60 days of the Court’s order granting the Motion to Strike. However, as Defendants’ correctly argue, the motion was timely as the 60^th day fell on a Sunday, and therefore, the period is extended to the next day. (California Rules of Court 1.10(b).) Thus, the motion is timely.

To determine if the requested amount is reasonable, California courts utilize the lodestar method. The two-step process begins with the lodestar method, which is the time spent on the matter multiple by the hourly rate. After the lodestar method, the second step is determining whether a multiplier should be applied. The factors that Courts look at to determine if a multiplier is reasonable are: 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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Defense counsel requests an hourly rate of $600. (Mancinelli Decl. ¶ 12.) Defense counsel states that she has had 38 years of litigation experience. (Mancinelli Decl. ¶ 11.) However, Defense counsel states that Defendants were being “charged well below the market rate in his case for an attorney with Ms. Mancinelli’s experience.” (Motion 7: 15-17.)

In determining hourly rates, the court must look to the “prevailing market rates in the relevant community.” (Bell v. Clackamas County (9th Cir.2003) 341 F.3d 858, 868.) The rates of comparable attorneys in the forum district are usually used. (See Gates v. Deukmejian (9th Cir.1992) 987 F.2d 1392, 1405.) In making its calculation, the court should also consider the experience, skill, and reputation of the attorney requesting fees.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

Although the hourly rate of $600 supported by a declaration of counsel that suggests the rate is reasonable based on Ms. Mancinelli’s level of experience, there is no assertion that Ms. Mancinelli performed all the work on this case.[2] The hourly rates as well as the names of the individuals who performed the work are redacted on the monthly billing summaries. (Mancinelli Decl. Ex. B.) It does not appear that Ms. Mancinelli has performed all the work listed, as Ms. Mancinelli only states that “[m]y firm has expended a total of 65.48 hours in defending Mr. Killian’s lawsuit.” (Mancinelli Decl. ¶ 7.) In fact, looking at the monthly billing summaries, Ms. Mancinelli only appears to have worked 0.42 hours in this case. (Mancinelli Decl. Ex. B.) Defendants have not provided the Court with any indication of other employees’ hourly rates, experience, or skill levels. As such, the Court will use its own experience and knowledge of this type of litigation, the lack of novelty and complexity of this particular motion, and the fact that much of the discovery and litigation occurred in a prior case between the parties, and determines that a blended rate of $300 per hour is reasonable.

“[O]nly¿those attorney fees and costs related to the special motion to strike, not the entire action, may be recovered under¿section 425.16, subdivision (c). [Citations.] [¶] In awarding fees the trial court is not constrained by the amount sought by the successful moving parties [citation], but is obligated to award “reasonable attorney fees under¿section 425.16 [that] adequately compensate [ ] them for the expense of responding to a baseless lawsuit.”¿[Citations.] The fees awarded should include services for all proceedings, including discovery initiated by the opposing party pursuant to¿section 425.16, subdivision (g), directly related to the special motion to strike. (Tuchscher¿Development Enterprises, Inc. v. San Diego Unified Port Dist.¿(2003) 106 Cal.App.4th 1219, 1248, 132 Cal.Rptr.2d 57 [affirming award of attorney fees including fees incurred in opposing discovery request and motion for reconsideration].)

Cross-Defendants argue that the requested hours are reasonable. Attached to the motion as Exhibit B is the hours billed and tasks performed. Although a verified fee bill is “prima facie evidence the costs, expenses and services listed were necessarily incurred,” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682), ultimately, Plaintiff still has the burden to demonstrate the reasonableness of charges. (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247 (Mikhaeilpoor).) Thus, the trial court is the ultimate arbiter in deciding whether expenses are reasonable.

Along with arguing that the redactions on the fee bill prevent Plaintiff from determining that the hourly rate is reasonable, Plaintiff argues that there are numerous examples on the monthly billing statements for tasks that are unreasonable, unnecessary, or unrelated to the instant matter. Plaintiff takes issue with numerous entries for “research” or “reading emails.” Plaintiff also cites to matters billed which are related to the Hernandez Cross-Complaint. (See Ex. B [12/19/22, 3/15/23, 3/24/23].) Not only have Defendants presented a heavily redacted bill, Defendants have not offered any further as to how these fees are reasonably related to prosecuting the Special Motion to Strike. Accordingly, the Court agrees that these matters are improper.

Additionally, Defendants request 17 hours for this current motion. This is based on 7 hours preparing the current motion and anticipatory 10 hours for opposing Plaintiff’s Motion for Reconsideration. The Court finds that this amount is unreasonable as well.[3]

In fulfilling its duty to ensure that the work is reasonable and necessary, a trial court must necessarily rely on its experience and consider multiple case specific factors in determining the necessity of work and the reasonableness of the time expended. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) To be sure, “trial courts are not required to identify each charge they find to be reasonable or unreasonable, necessary or unnecessary. . . . A reduced award might be fully justified by a general observation that an attorney over litigated a case.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101.) In review, the Court concludes Court finds the reasonable lodestar amount, based upon its experience and knowledge of this type of litigation, the lack of novelty and complexity of this case, is 35 hours at a blended rate of $300 per hour for a total attorney fee award of $10,500.

ANALYSIS – Cross-Defendant’s Motion against Cross-Complainant Hernandez:

Defendants move for $20,694 in attorneys’ fees in total. This is based on $16,494 for the Anti-SLAPP motion and $4,200 for the current motion.

Code of Civil Procedure § 426.16 states that “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs.” Cross-Complainant does not dispute that Cross-Defendants were the prevailing party on the special motion to strike.

Plaintiff argues that the motion is untimely as it was not filed within 60 days of the Court’s order granting the Motion to Strike. However, as Defendants’ correctly argue, the motion was timely as the 60^th day fell on a Sunday and then Monday, which was Memorial Day, and therefore, the period is extended to the next day. (California Rules of Court 1.10(b).) Thus, the motion is timely.

Cross-Defense counsel requests an hourly rate of $600. (Mancinelli Decl. ¶ 12.) Defense counsel states that she has had 38 years of litigation experience. (Mancinelli Decl. ¶ 11.) However, Defense counsel states that Cross-Defendants were being “charged well below the market rate in his case for an attorney with Ms. Mancinelli’s experience.” (Motion 7: 15-17.)

The hourly rate of $600 is reasonable based on Ms. Mancinelli’s level of experience. Cross-Complainant argues that the hourly rates as well as the names of the individuals who performed the work are redacted on the monthly billing summaries and this obscures the reasonable hourly rate. However, unlike the case above, it appears that Ms. Mancinelli was the one who was working on this case, as her billed hours total the 27.49 hours claimed. (See Mancinelli Decl. ¶ 7, Ex. B.) Thus, as Ms. Mancinelli has performed all the work, and has attested to her reasonable hourly rate, experience, and skill level, the Court finds that the hourly rate is reasonable. . However, billing at a high rate comes with the expectation that the attorney also works in an efficient manner that reflects the premium paid for his or her services. The court considers this fact in addressing the reasonableness of the hours expended, below.

Cross-Complainant argues that there are numerous examples on the monthly billing statements for tasks that are unreasonable, unnecessary, or unrelated to the instant matter. Cross-Complainant takes issue with tasks that are allegedly unrelated to the Motion to Strike. The Court agrees.

Additionally, Cross-Defendants request 7 hours for this current motion. (Mancinelli Decl. ¶ 8.) The Court finds that this amount is unreasonable as well.[4]

The Court is all to familiar with this litigation. This special motion to strike is essentially a cut and paste of the special motion to strike involving Plaintiff Killian. The Court cannot understand how an experienced attorney billing $600 per hour could spend 29 hours essentially copying a duplicate motion. In review, the Court concludes Court finds the reasonable lodestar amount, based upon its experience and knowledge of this type of litigation, the lack of novelty and complexity of this case, is 10 hours at $600 per hour for a total attorney fee award of $6,000.

As such, Cross-Defendants motion for attorneys’ fees is GRANTED in the amount of $6,000.

Defendant’s Motion for Attorneys’ Fees against Plaintiff is GRANTED in the amount of $10,500.

Defendant’s Motion for Attorneys’ Fees against Cross-Complainant is GRANTED in the amount of $6,000.

[1] The Court notes that Plaintiff’s Opposition contains arguments about the timing of the hearing for the Motion to Strike. As the Court has already ruled on the Motion to Strike, the Court will not address these arguments. Plaintiff also makes another argument as to Defendant’s alleged failure to pay fees. This was also address by the Court previously, and as such, the Court will not address this argument.

[2]Plaintiff has included an unauthenticated document to his opposition purporting to be the fee agreement between defendants and attorney Mancinelli setting a rate at $350 per hour.(See Exhibit B.)

[3]The Court will note that no reply was filed.

[4]The Court will note that no reply was filed.