Judge Wesley L. Hsu, Case 22PSCV00441 2023-04-12 Tentative Ruling

Defendants Susan Rubio’s and Blanca Rubio’s Motion for Award of Mandatory Attorneys’ Fees and Costs is GRANTED, in the reduced amount of $75,501.57 [see below].

Plaintiff Roger Hernandez (“Plaintiff”) alleges as follows: Plaintiff is a former California State Assemblyperson, a former candidate for U.S. Congress and the ex-husband of Defendant California State Senator Susan Rubio (“Susan”). Defendant Blanca E. Rubio (“Blanca”) is Susan’s sister and a California State Assemblyperson. Defendant Maria Morales (“Maria”) is a former El Monte City Council member. Defendant Alma Martinez (“Alma”) is the City Manager of El Monte. Susan filed a request for a three-year domestic violence restraining order (“DVRO”) against Plaintiff on April 13, 2016, which the court granted on July 1, 2016. The DVRO was renewed by Susan on January 17, 2020 for an additional five years. Beginning in or about April 2017, Plaintiff began his post-elected-office professional life as a governmental consultant. Plaintiff’s clients, however, would terminate his services upon being informed—either directly or indirectly by Susan, Blanca, Maria and/or Alma—that the city councils of El Monte, West Covina and Baldwin Park would refuse to grant any permits to, or otherwise “do any business” with, any of Roger’s clients.

On October 27, 2022, an “Order Granting Motion to Strike Portions of Plaintiff’s Complaint (Anti-SLAPP)” was filed.

On November 30, 2022, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Susan, Blanca and Does 1-50 for:

On December 22, 2022, Plaintiff filed a “Notice of Appeal” of the court’s October 27, 2022 order.

“A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16(b)(1).) “[I]n 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…” (Code Civ. Proc., § 425.16(c)(1).)

“The language of the anti-SLAPP statute is mandatory; it requires a fee award to a defendant who brings a successful motion to strike.” (Cabral v. Martins (2009) 177 Cal.App.4^th 471, 490.) “A ‘prevailing’ defendant within the meaning of section 425.16, subdivision (c), includes a defendant whose anti-SLAPP motion was granted as to some causes of action but not others.” (Huntington Life Science, Inc. v. Stop Huntington Animal Cruelty USA, Inc. (2005) 129 Cal.App.4^th 1228, 1267.) “[A]n 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.” (Ketchum v. Moses (2001) 24 Cal.4^th 1122, 1141.)

Susan and Blanca (hereinafter, “Defendants”) move the court for an order compelling Plaintiff to reimburse them for at least $87,767.50 in attorney’s fees and $7,535.83 in costs incurred in connection with their successful anti-SLAPP motion, for $10,301.82 incurred in connection with the instant motion and for additional time incurred with any reply and hearing.[1]

On October 27, 2022, the court granted Defendants’ “Special Motion to Strike Portions of Plaintiff’s Complaint Pursuant to Code of Civil Procedure § 425.16;” that day, an “Order Granting Motion to Strike Portions of Plaintiff’s Complaint (Anti-SLAPP)” was filed. A fee award, then, is mandatory, pursuant to the above authority.

The court turns to the issue of reasonableness of the fees sought. “[T]rial courts have broad discretion in determining the amount of a reasonable attorney's fee award. This determination is necessarily ad hoc and must be resolved on the particular circumstances of each case.” (Meister v. Regents of University of California (1998) 67 Cal.App.4^th 437, 452.) “Trial judges are entrusted with this discretionary determination because they are in the best position to assess the value of the professional services rendered in their courts.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4^th 1315, 1321.)

“[O]nce a party has established he or she is entitled to fees, the lodestar method is generally presumed to be the starting point in analyzing the appropriate amount of attorney fees. Under this method, a court first calculates the number of hours reasonably spent multiplied by the reasonable hourly rate for each billing professional, and then may adjust the amount based on various relevant factors to ensure the fee reflects the fair market value [of the attorney services] for the particular action. (K.I. v. Wagner (2014) 225 Cal.App.4^th 1412, 1425 [quotation marks and citations omitted].)

“In determining hourly rates, the court must look to the prevailing market rates in the relevant community. The rates of comparable attorneys in the forum district are usually used. In making its calculation, the court should also consider the experience, skill, and reputation of the attorney requesting fees. The court may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4^th 972, 1009 [internal quotations and citations omitted].)

Based on the court’s own experience and knowledge, as well as on the experience and qualifications of counsel as set forth in the Declaration of Lawrence Iser (“Iser”), the court finds that requested hourly rates should be reduced as follows:

“[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4^th 359, 396.) “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4^th 550, 564.)

Allen Secretov (“Secretov”) represents that he has “carefully reviewed” the billing entries and removed entries that are not related to the anti-SLAPP Motion. (Secretov Decl., ¶ 14, Exh. A.) Secretov advises that the total billings directly related to the anti-SLAPP motion is 185.60; he explains, however in a footnote that his firm, Kinsella Weitzman Iser Kump Holley LLP (“KWIKH”), wrote off 33.90 of his hours as a “gesture of goodwill” for Defendants. (Id.). Iser has attached KWIKH invoices as Exhibit 1 to his declaration, which confirm that KWIKH attorneys and paralegals billed Defendants for 151.70 hours of work associated with the anti-SLAPP motion.

Plaintiff argues that the 94.8 hours identified as spent on “[r]eviewing and analyzing Plaintiff’s Complaint, conferring with Defendants regarding filing anti-SLAPP motion, reviewing the extensive case file, documents, and transcripts related to Plaintiff and Defendant Susan Rubio’s Domestic Violence Restraining Order (‘DVRO’) proceeding, obtaining, reviewing, and transcribing video footage of the allegedly defamatory statements made by Defendants, researching and drafting the anti-SLAPP motion and supporting documents” are unreasonable on three grounds: (1) the anti-SLAPP motion “only attacked one cause of action” and “dealt with only two defamatory statements,” (Opp., 4:27-5:3), (2) “a talented and experienced attorney” such as Secretov should not have needed to spend 70.3 hours preparing the motion (Id., 5:7-18) and (3) two partners with a combined 54 years of experience should not have needed to spend another combined 23.7 hours preparing the motion. As an aside, the fact that the anti-SLAPP motion was directed to only one of the three causes of action brought by Plaintiff and did not result in the dismissal of the entire lawsuit is of no import, inasmuch as an award of attorney fees under section 425.16, subdivision (c) does not require resolution of an entire lawsuit. What is significant here, in the context of this instant motion, is that Plaintiff fails to challenge any specific time entries. The court declines to reduce any of the hours billed in connection with preparation of the anti-SLAPP motion.

Plaintiff next argues that the 37.3 hours identified as spent on “[r]esearching and drafting the Defendants’ Reply in support of the anti-SLAPP motion and drafting objections to Plaintiff’s improper evidentiary submissions” are unreasonable, because Defendants’ reply did not need to address the “first prong” of the anti-SLAPP analysis (i.e., inasmuch as Plaintiff “did not dispute that the alleged defamatory statements arose out of protected speech”). (Opp. 6:1-16). Again, Plaintiff fails to challenge any specific time entries. The court declines to reduce any of the hours billed in connection with preparation of the reply brief filed as to the anti-SLAPP motion.

Plaintiff argues that the 19.6 hours identified as spent on “[p]reparing for and attending the hearing on the Anti-SLAPP motion” were unreasonable; in doing so, Plaintiff specifically takes issue with Secretov’s 8/8/22 (2.4 hrs.), 8/9/22 (0.5 hrs.); 8/23/22 (1.0 hr.), 8/24/22 (1.5 hrs.), 9/2/22 (2.2 hrs.), 9/6/22 (2.2 hrs.) and 9/7/22 (1.7 hrs.) entries. The court determines that these particular entries, which total 11.5 hours, should be reduced by 10 hours to 1.5 hours, such that the total preparation and hearing attendance time allotted to Secretov is 5 hours. The court declines to reduce any of the hours billed by Iser, Kleindienst and Mason with respect to this category as Plaintiff has not specifically challenged any of them.

The total amount of fees awarded on the anti-SLAPP motion is $64,722.50 (i.e., calculated as follows: 31.5 hours at $575.00/hour, plus 9.5 hours at $475.00/hour, plus 97.9 hours at $425.00/hour, plus 2.8 hours at $175.00/hour).

Plaintiff makes no challenge as to the reasonableness of the fees incurred in connection with this instant motion. The court, however, will reduce the amount of fees requested in connection with the reply, from $6,600.00 to $2,125.00. The total amount of fees awarded in connection with this instant motion and reply is $9,565.00 (i.e., 14.8 hours at $425.00/hour, plus 2 hours at $575.00/hour [motion], plus 5 hours at $425.00/hour [reply].)

Defendants seek $7,535.83 in costs incurred in connection with the anti-SLAPP motion. (Secretov Decl., ¶ 19, Exh. B.) Defendants seek an additional $981.92 in costs incurred with the instant motion. (Id., ¶ 21, Exh. C.) The court declines to award Defendants costs associated with “Westlaw Proflex.” “Fees for legal research, computer or otherwise, may not be recovered under section 1033.5.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4^th 761, 776.) Costs, then, are reduced to $1,214.07.

The motion is granted in the reduced amount of $75,501.57 (i.e., $64,722.50 for anti-SLAPP

motion, plus $9,565.00 attorneys’ fee motion briefing, plus $1,214.07 in costs).

[1] Susan and Blanca also seek another $6,600.00 in attorneys’ fees incurred in connection with the reply brief and hearing on this instant motion. (Secretov Reply Dec., ¶ 2.)