Judge Walter P. Schwarm, Case 30-2021-01232609 2022-12-13 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01232609, Date: 2022-12-13 Tentative Ruling

Cross-Defendants’ (Robert O. Wolf and Robert O. Wolf DDS, Inc. for $15,005.04 in Attorneys’ Fees and Costs Pursuant to the Ruling on Motin to Strike Portions of Cross Complaint Pursuant to code of Civil Procedure Section 425.16 (Motion), filed on 7-14-22 under ROA No. 131, is GRANTED as set forth below.

Code of Civil Procedure section 425.16, subdivision, (c)(1), states, “Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. 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.”

569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (569) (2016) 6 Cal.App.5th 426, 433 (569), states, “An award of attorney fees to a prevailing defendant on an anti-SLAPP motion properly includes attorney fees incurred to litigate the special motion to strike (the merits fees) plus the fees incurred in connection with litigating the fee award itself (the fees on fees). [Citation.] However, a fee award under the anti-SLAPP statute may not include matters unrelated to the anti-SLAPP motion, such as ‘attacking service of process, preparing and revising an answer to the complaint, [or] summary judgment research.’ [Citation.] Similarly, the fee award should not include fees for ‘obtaining the docket at the inception of the case’ or ‘attending the trial court’s mandatory case management conference’ because such fees ‘would have been incurred whether or not [the defendant] filed the motion to strike.’ [Citation.] In short, the award of fees is designed to ‘reimburs[e] the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit” ’ [citation.] rather than to reimburse the defendant for all expenses incurred in the baseless lawsuit.” (Italics in 569.) The court may make a downward adjustment if the billing entries are vague or “blockbilled.” (Id., at p. 441.)

Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340 (Mann) states, “We thus hold that a party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti- SLAPP motion lies within the broad discretion of a trial court. [Citation.]” “ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020, provides, “Defendants consequently are entitled to recover attorney fees and costs incurred in moving to strike the claims on which they prevailed, but not fees and costs incurred in moving to strike the remaining claims. The trial court may determine the appropriate amount of fees and costs, upon a proper application by defendants. [Citation.]” “An award of attorney fees to a partially prevailing defendant under section 425.16, subdivision (c) thus involves competing public policies: (1) the public policy to discourage meritless SLAPP claims by compelling a SLAPP plaintiff to bear a defendant's litigation costs incurred to eliminate the claim from the lawsuit; and (2) the public policy to provide a plaintiff who has facially valid claims to exercise his or her constitutional petition rights by filing a complaint and litigating those claims in court. [Citations.] In balancing these policies, we conclude a defendant should not be entitled to obtain as a matter of right his or her entire attorney fees incurred on successful and unsuccessful claims merely because the attorney work on those claims was overlapping. Instead, the court should first determine the lodestar amount for the hours expended on the successful claims, and, if the work on the successful and unsuccessful causes of action was overlapping, the court should then consider the defendant's relative success on the motion in achieving his or her objective, and reduce the amount if appropriate. [¶] This analysis includes factors such as the extent to which the defendant's litigation posture was advanced by the motion, whether the same factual allegations remain to be litigated, whether discovery and motion practice have been narrowed, and the extent to which future litigation expenses and strategy were impacted by the motion. The fees awarded to a defendant who was only partially successful on an anti-SLAPP motion should be commensurate with the extent to which the motion changed the nature and character of the lawsuit in a practical way. The court should also consider any other applicable relevant factors, such as the experience and abilities of the attorney and the novelty and difficulty of the issues, to adjust the lodestar amount as appropriate. [Citation.] (Mann, supra, 139 Cal.App.4th at pp. 344-345; Italics in Mann.)

Cross-Complainants’ (Barbara Anne Dorber individually and as administrator of the Esttate of Rober Tomas Cadalso, Jr. and Robert T. Cadalso, Jr. aka Robert T. Cadalso Jr. Professional Dental Corporation) Opposition to Cross-Defendants’ Motion for Attorney Fees – Anti SLAPP (Opposition), filed on 11-30-22 under ROA No. 149, states, “The emotional distress causes of action are not part of this lawsuit because of their Anti-SLAPP Motion, but because of Dorber’s new counsel’s decision to narrow the pleadings in this case. Wolf should not be compensated for work that had no bearing on the posture of this case. Further, Wolf was only successful on a small piece of their Anti-SLAPP Motion and it would have changed nothing in this case even if the Infliction of Emotional Distress causes of action remained. [¶] The Court should deny this Motion outright as Wolf’s Motion had no impact on this case. Even if the Court finds Wolf is entitled to some fee, Wolf was only successful on a minor portion of its Motion and the requested fee should be appropriately reduced. If fees are imposed, they should only be imposed against Dorber’s former counsel who filed the original Cross-complaint.” (Opposition; 2:8-17.) Further, the Opposition states, “Wolf also erroneously argues that the filing of the Anti-SLAPP motion directly caused the dismissal of the Emotional Distress causes of action. That is not supported by the record. Dorber’s new counsel, Forward Counsel, reviewed the relevant pleadings and eliminated not only the Emotional Distress causes of action, but other causes of action as well, including violations of Unfair Competition Law.” (Opposition; 4:21-25.)

Cross-Defendants filed a Motion to Strike Portions of Cross-Complainants’ Cross-Complaint Pursuant to Code of Civil Procedure Section 425.16 (Anti-SLAPP Motion) on 2-2-22 under ROA 59. The Notice of the Anti-SLAPP Motion (Notice), filed on 2-2-22 under ROA No. 67, sought to strike the entire fifth cause of action for negligent infliction of emotional distress (NIED) and sixth cause of action for intentional infliction of emotional distress (IIED) in the Cross-Complaint. (Notice; 9-15.) Alternatively, the Notice also sought to strike paragraphs 44 and 54 of the Cross-Complaint. (Notice; 2:16-25.)

On 4-5-22 under RAO No. 89, Cross-Complainants filed a First Amended Cross-Complaint (FACC) on 4-5-22 under ROA No. 89 that removed the fifth and sixth causes of action. On 6-14-22, the court granted in part and denied in part the Anti-SLAPP Motion. The minute order stated in part, “. . . the court GRANTS the Motion to the extent it requests the court to strike the punitive damages allegations in paragraphs 45 and 54 of the CC.” (6-14-22 Minute Order; Emphasis in 6-14-22 Minute Order.)

The court finds that Cross-Defendants achieved some practical benefit by filing the Anti-SLAPP Motion because Cross-Defendants are not required to defend against the that they are liable for emotional distress based on the Cross-Complaint’s allegation of punitive damages as alleged in paragraphs 45 and 54 of the Cross-Complaint. Cross-Defendants, however, have shown the Anti-SLAPP Motion was not solely responsible for Cross-Complainants’ decision to withdraw the entire fifth and sixth causes of action. The FACC also removed the Violation of the Unfair Competition Law and other causes of action which were not subject to the Anti-SLAPP Motion.

Based on the partial success of Cross-Defendants’ Anti-SLAPP Motion, the court GRANTS Cross-Defendants’ (Robert O. Wolf and Robert O. Wolf DDS, Inc. for $15,005.04 in Attorneys’ Fees and Costs Pursuant to the Ruling on Motion to Strike Portions of Cross Complaint Pursuant to code of Civil Procedure Section 425.16 (Motion), filed on 7-14-22 under ROA No. 131. Based on the declaration of Mark B. Wilson and the billing records attached to this declaration, the court reduces the requested amount of $15,005.04 due to the partial success Cross-Defendants achieved by bringing the Anti -SLAPP Motion. The court find that a reasonable amount of attorneys’ fees and costs is amount of requested attorney the court’s review of the grants the motion for attorney fees in the total amount of $4,262.00. (Wilson Decl., ¶¶ 38, 39, 42, 52, and 53; (8 hours x $374 = $2,992.00 as Attorneys’ Fees) + ($1270.00 as Costs) = $4,262.00.). The court makes this reduction because the Anti-SLAPP Motion has some impact in terms reducing Defendants’ exposure to damages for emotional distress based on the punitive damages allegations contained in paragraphs 45 and 54 of the Cross-Complaint.

Cross-Defendants are to give notice.