Judge: Yolanda Orozco, Case: 21STCV29326, Date: 2022-10-25 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 21STCV29326    Hearing Date: October 25, 2022    Dept: 31

MOTION FOR ATTORNEY FEES (ANTI-SLAPP) IS GRANTED, IN PART 

Background 

This action arises out of the alleged fraudulent conduct of Guadalupe Morante, a former employee of LRS Realty & Management, Inc.  

On August 9, 2021, LRS Realty & Management, Inc. (“Plaintiff” or “LRS”) initiated the present action against Guadalupe Morante, Humberto Morante, L&B General Contractors, Inc., and Fix It Right Construction.   

Plaintiff’s Complaint alleges the following causes of action:  

1.     Fraud; 

2.     Embezzlement; 

3.     Misappropriation of Trade Secrets (California Civil Code § 3426, et seq.); 

4.     Misappropriation of Trade Secrets; 

5.     Interference with Prospective Economic Advantage; 

6.     Intentional Interference with Contractual Relations; 

7.     Conversion; 

8.     Breach of Duty of Loyalty; 

9.     Violation of Business and Professions Code § 17200; 

10.  Injunctive Relief; 

11.  Loss Due to Dishonest or Willful Act of Employee (Labor Code, Section 2865; IWC Wage Order 4-2001, Section 8); 

12.  Violation of the Computer Data Access and Fraud Act (Penal Code, Section 502(e)); 

13.  Violation of the Computer Fraud and Abuse Act (18 U.S.C § 1030);  

14.  Unjust Enrichment/Restitution; (15) Accounting; and (16) Constructive Trust.  

On October 04, 2022, Guadalupe Morante and Humberto Morante filed an Amended Cross-Complaint against Eric Steven Cano and LRS Realty & Management, Inc. for: 

1)     Failure To Compensate For All Hours Worked In Violation Of Labor Code § 1198 Et Seq.,

2)     Failure To Pay Overtime In Violation Of Labor Code §§ 510, 1194, 1194.2, 1198,

3)     Failure To Authorize Or Permit Meal Periods In Violation Of Labor Code §§ 226.7, 512 And The Applicable Wage Order,

4)     Failure To Authorize Or Permit Rest Periods In Violation Of Labor Code §§ 226.7 And The Applicable Wage Order,

5)     Failure To Furnish Complete And Accurate Wage Statements In Violation Of Labor Code §§ 226 Et Seq.,

6)     Violation Of The California Healthy Workplaces, Healthy Families Act Per Labor Code §§ 245.5-248.5,

7)     For Sexual Discrimination In Violation Of Gov’t Code §§ 12940 Et Seq.,

8)     For Sexual Harassment In Violation Of Gov’t Code §§ 12940 Et Seq.,

9)     Failure To Prevent Discrimination, Harassment, And Retaliation In Violation Of Gov’t Code § 12940(K),

10) For Sexual Harassment Pursuant To Civil Code § 51.9

11) Violations Of Business & Professions Code § 17200 Et Seq.

12) Retaliation In Violation Of Labor Code § 1102.5,

13) Negligent Supervision, CACI 426,

14) Negligent Hiring, Supervision, Or Retention Of Employee. 

On March 14, 2022, Plaintiffs/Cross-Defendants LRS Realty & Management Inc. and Eric Cano brought a Special Motion to Strike Defendant/Cross-Complainant Humberto Morante’s fifteenth and sixteenth causes of action. 

On September 02, 2022, the Anti-SLAPP was Granted. 

On September 26, 2022, Cross-Defendants moved for attorney’s fees as the prevailing party to the Anti-SLAPP motion. No opposition has been filed. 

Legal Standard 

Pursuant to CCP § 425.16(c), a prevailing defendant is entitled to recover attorneys’ fees and costs associated with the motion. 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 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.) 

Discussion 

Cross-Defendants seek attorney’s fees totaling $5,339.90 in attorney’s fees, a 2.0 lodestar multiplier, and $145.80 in costs for bringing that Anti-SLAPP motion and succeeding. 

Reasonable Hourly Rate 

“The reasonable hourly rate is that prevailing in the community for similar work.”¿ (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The experienced trial judge is the best judge of the value of professional services rendered in [her] court.” (Id.)¿  

Cross-Defendants counsel’s hourly rate is $268.00 per hour because this is the rate Cross-Defendants have agreed to pay. (Benbow Decl. ¶¶  6, 9.) 

The Court finds that the hourly rate requested by the Cross-Defendants is reasonable. 

Reasonable Hours Incurred 

“The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.”  (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)  California case law permits fee awards in the absence of detailed time sheets.  (Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1651; Dunk v. Ford Motor Co. (1996) 48Cal.App.4th 1794, 1810; Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103.)  An experienced trial judge is in a position to assess the value of the professional services rendered in his or her court.  (Id.; Serrano v. Priest (1977) 20 Cal.3d 25, 49; Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255.)  

Defendants assert they spent 19.925 hours in connection with the Anti-SLAPP motion. Cross-Defendants did not provide a billing statement but did provide a declaration of counsel, Shannon M. Benbow. Of the 18.1 hours spent evaluating the Cross-Complaint and its defenses to it, 25% of that time was related to claims asserted by Humberto against Cross-Defendants and resulted in fees totaling $1,212.70. (Benbow Decl. ¶ 10.) 13.3 hours were spent directly on the Anti-SLAPP motion totaling $3,510.80. (Id. ¶ 11.) An additional 2.3 hours were spent preparing this instant fee motion totaling $616.40. (Id. ¶ 13.) In total Cross-Defendants seek $5,339.90 in attorney’s fees. 

The Court finds the hours billed for the Anti-SLAPP motion were reasonably incurred. 

Costs 

Cross-Defendants incurred $145.80 in costs associated with the Anti-SLAPP motion, including $61.65 for the motion fee, $39.15 process server fee, and $45.00 process server fee for delivering courtesy copies. (Benbow Decl. ¶ 14.) 

The Court finds the costs incurred to be reasonable. 

Multiplier 

The lodestar amount “may be adjusted by the court based on factors including (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.”¿(Bernardiv. County of Monterey (2008) 167 Cal.App.4th 1379, 1399 [citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)¿ The purpose of any lodestar and the increase “is intended to approximate market-level compensation for such services” and is entirely discretionary.¿ (Id.)¿ “The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action.”¿ (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171-72.)  

Cross-Defendants request a 2.0 multiplier arguing that Cross-Defendant’s efficiency in bringing the Anti-SLAPP motion resulted in overall efficiency of the proceedings. (Benbow Decl. ¶ 18.) The 2.0 multiplier would result in an award of $10,825.60. 

The Court finds that no multiplier is warranted. There is nothing before the Court to suggest this motion required extortionary legal skill and/or required counsel to bear unnecessary risk. 

Therefore, the Court awards $5,339.90 in attorney’s fees and $145.80 in costs. 

Conclusion 

The Court GRANTS Cross-Defendant’s motion IN PART, and awards $5,339.90 in attorney’s fees and $145.80 in costs but no multiplier. 

Cross-Defendants to give notice.