Judge: Yolanda Orozco, Case: 20STCV09118, Date: 2022-10-06 Tentative Ruling
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Case Number: 20STCV09118 Hearing Date: October 6, 2022 Dept: 31
MOTION FOR ATTORNEY FEES (ANTI-SLAPP) IS DENIED
Background
Plaintiff Allan Gumarang, both individually and doing business as Creamistry (“Gumarang”), and ACME Outright Transaction LLC, filed a complaint on January 19, 2021, against Defendants Braemar on Raymond, LLC (“Braemar”), Braemar-Caledonia Company, M & A Real Estate Services, Inc. doing business as Minasian & Associates, Deanne Cantu, Sauve Riegel, Inc., Alice Chow, Ting Sung, and Ting Sung Insurance Agency. The complaint alleges the following causes of action, with some of the causes of action pleaded in separate counts against various Defendants:
1.
Breach of Contract
2.
Negligence
3.
Negligent Failure to Obtain Insurance Coverage
4.
Breach of the Implied Covenant of Good Faith and Fair
Dealing
5.
Breach of Fiduciary Duty
6.
Professional Malpractice
7.
Negligent Misrepresentation
8. Violation of California’s Unfair Competition Law
Plaintiff’s claims arise from their lease of a commercial property from Defendants Braemar and Braemar-Caledonia Company that began on May 24, 2016, where Plaintiff operated an ice cream store. (Second Amended Complaint [SAC]., ¶ 15.) On October 28, 2018, a fire occurred on the premises, causing $300,000.00 worth of damage. (SAC, ¶¶ 22, 24.) Plaintiff alleges that Defendant Braemar, the lessor, breached the lease by, among other things, failing to install sprinklers and maintain fire alarms that would have lessened the damage occasioned by the fire. (SAC, ¶ 61.)
As to Defendants Alice Chow, Ting Sung, and Ting Sung Insurance Agency, Plaintiff alleges that he had an oral agreement with them that they would procure insurance coverage for Plaintiff and failed to do so. Plaintiff’s lease agreement with Defendant Braemar also had a provision that required them to obtain commercial insurance coverage and required them to recoup any losses arising from fire, among other things, by filing a claim under the policy. The lease barred Plaintiff from suing the lessor, Defendant Braemar, for losses incident to occupying the premises.
On August 19, 2021, Defendants Braemar, Braemar-Caledonia Company, Minasian & Associates, and Deanne Cantu filed a cross-complaint against all Plaintiffs as well as Defendants/Cross-Defendants Alice Chow, Ting Sung, and Ting Sung Insurance Agency.
On September 13, 2021, Plaintiff filed a special motion to strike under the Code of Civil Procedure section 425.16 against all claims asserted in the Cross-Complaint.
On October 21, 2021, Braemar on Raymond voluntarily dismissed its cross-complaint against Plaintiff.
On June 28, 2022, the motion to strike was granted as to the first three causes of action and denied as to the fourth, fifth, sixth, and seventh cause of action in the Cross-Complaint.
On July 18, 2022, Plaintiff/Cross-Defendant filed a Motion
for Attorney’s fees.
Legal Standard
Code of Civil Procedure section 425.16, subdivision (c)(1)
provides that “[i]f 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.” (Code Civ. Proc., § 425.16, subd. (c)(1).)
“Section 128.5, subdivision (b)(2), defines frivolous to
mean “totally and completely” without merit, or for the “sole” purpose of
harassing an opposing party. When a motion has partial merit, it is not
“totally and completely” without merit, nor can it be said that its “sole”
purpose is to harass.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP¿(2011) 193
Cal.App.4th 435, 450.)
The California
Supreme Court has upheld the lodestar method for determining the appropriate
amount of attorney fees for a prevailing defendant on an anti-SLAPP motion.
(See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1136.)
Discussion
Plaintiffs/Cross-Defendant moves for an award of attorney fees incurred in connection with bringing a partially successful anti-SLAPP motion against Defendants’/Cross-Complaints’ Cross-Complaint.
Plaintiff’s counsels assert they incurred $104,718.71 in attorney’s fees and costs in bringing the Anti-SLAPP motion. In addition, Plaintiff’s counsel asserts they will incur $10,610.00 in bringing this instant motion to recover attorney’s fees.
On June 28, 2022, this Court granted Plaintiff’s Anti-SLAPP motion as to Defendants Cross-Complaint causes of action for (1) Comparative Indemnity and Apportionment of Fault; (2) Total Equitable Indemnity; and (3) Declaratory Relief. The Court denied the Anti-SLAPP motion as to the Cross-Complaint’s causes of action for (4) Contractual Indemnity, (5) Breach of Contract, (6) Declaratory Relief-Duty to Defend as to Allan Gumarang; and (7) Declaratory Relief-Duty to Indemnify.
The Cross-Complaint seeks to nullify Plaintiff’s action by making Plaintiff liable if Plaintiff succeeds in obtaining a judgment. By obtaining an order to strike three of the Cross-Complaint’s seven causes of action, Plaintiff’s counsel asserts it succeeded in diminishing the risk of this occurring. Accordingly, Plaintiff asserts it is the prevailing party in the Anti-SLAPP motion.
Defendants argue that Plaintiff obtains “no practical benefit” from the June 28, 2022 Order granting the motion to strike. Defendants assert that their cross-claims for comparative indemnity and apportionment of fault, equitable indemnity, and declaratory relief were properly raised in their answer as affirmative defenses. Therefore, the fact that they were dismissed from the Cross-Complaint but remain as affirmative defenses shows that Plaintiff did not obtain a significant or meaningful result in bringing the Anti-SLAPP motion.
“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.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340.)
The Court agrees with Defendants
in finding that the Plaintiff’s motion did not bring any significant or
meaningful result because the three cross-claims that were dismissed remain as
affirmative defenses in the Defendants’ answer and the possible recovery
against Defendants did not change, nor did the factual allegations that
Plaintiff must prove to prevail against Defendants. (Moran v.
Endres (2006) 135 Cal.App.4th 952, 955 [“The case was essentially the same after the ruling on
the special motion to strike as it was before. The results of the motion were
minimal and insignificant, fully justifying the court's finding that defendants
should not recover fees.”].)
Moreover, the reason Plaintiff prevailed as to the first three causes of action was because:
“Here, the non-moving party, Defendants/Cross-Complainants, neglect to address in their opposition brief why they will prevail on their first three causes of action. Having not addressed this issue at all, the Court need not analyze whether the claims arise from protected activity under the first prong, because the claims are subject to being stricken under the second prong.”
(Min. Or. 06/28/22).
Therefore, Plaintiff’s success in the Anti-SLAPP motion was not necessarily due to the skill of Plaintiff’s counsels but Defendants’ failure to address the three causes of action. Moreover, by the time this Court had ruled on the Anti-SLAPP motion, Defendant Braemar on Raymond had dismissed itself as a cross-complainant because Plaintiff’s insurer has accepted its tender for defense and indemnity.
Finding that any success gained from the Anti-SLAPP motion was minimal and insignificant on the impact of the case, the Court declines to award attorney’s fees to Plaintiff. (See Mann, supra, 139 Cal.App.4th at 347 [“an approach that concentrates on the practical impact of a partially successful motion on the overall litigation advances the objectives of the anti-SLAPP statute and minimizes abuses.].)
Conclusion
Plaintiff’s Motion for Attorney’s fees is DENIED.
Plaintiff to give
notice.