Motion for Attorneys’ Fees for anti-SLAPP Motions (Judge William Stewart)


Case Number: BC590643 Hearing Date: April 29, 2016 Dept: A
Tamazyan v Tamazyan

MOTIONS FOR ATTORNEY?S FEES (2)

Calendar: 4
Case No: BC590643
Date: 4/29/16

MP: Defendants, Armen Shaghzo and Shaghzo & Shaghzo Law Firm
Defendant, Ishkhan Tamazyan
RP: Plaintiff, Masis Tamazyan

RELIEF REQUESTED:
1. Order awarding attorney?s fees to Defendants, Armen Shaghzo and Shaghzo & Shaghzo Law Firm
2. Order awarding attorney?s fees to Defendant, Ishkhan Tamazyan

DISCUSSION:
This case arises from the Plaintiff’s claim that the Defendants engaged in malicious prosecution by seeking a temporary restraining order to protect themselves from the Plaintiff. After the Defendants filed motions to strike the Complaint under the anti-SLAPP statute, CCP section 425.16, the Plaintiff dismissed the case without prejudice on October 13, 2015.

This hearing concerns the Defendants? motions to seek the attorney?s fees they incurred to file the anti-SLAPP motions. A plaintiff’s voluntary dismissal of a suit, after a section 425.16 motion to strike has been filed, does not automatically preclude a Court from awarding attorney?s fees. Kyle v. Carmon (1999) 71 Cal. App. 4th 901, 918. Instead, the Court must adjudicate the merits of the motion to strike. Id. An award of expenses under section CCP section 425.16 is only justified when a defendant demonstrates that plaintiff’s action falls within the provisions of subdivision (b) and the plaintiff is unable to establish a reasonable probability of success. Id.

1. Merits of Defendants? Motions
CCP section 425.16 permits the Court to strike causes of action arising from an act in furtherance of the defendant’s right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim. Under CCP section 425.16, the defendant bears the initial burden of showing that the claims fall within the class of suits subject to a motion to strike, i.e., that plaintiff’s claim is based on an act of defendant in furtherance of his right to free speech. Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal. App. 4th 294, 304.
In order to determine whether a cause of action is subject to a SLAPP motion, the Court examines the principal thrust or gravamen of the plaintiff’s cause of action. Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal. App. 4th 510, 519-520. The critical consideration for section 425.16 analysis is whether the cause of action is based on the defendant’s protected free speech or petitioning activity. Feldman v. 1100 Park Lane Associates (2008) 160 Cal. App. 4th 1467, 1478-1479. The focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning. Navellier v. Sletten (2002) 29 Cal. 4th 82, 92-93.

Under CCP section 425.16(b)(2), the Court may consider the pleadings and supporting affidavits in making its determination. A defendant meets his initial burden by demonstrating that the act underlying the plaintiff?s case fits one of the categories identified in section 425.16(e). City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78. Subdivision (e) defines the protected acts as the following:

1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or
4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

If the defendant meets this initial burden, the plaintiff then has the burden of demonstrating a probability of prevailing on the claim. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 741. The plaintiff satisfies this burden by demonstrating that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. Id. Under CCP section 425.16(b)(2), a plaintiff may use affidavits to meet the plaintiff?s burden.

A review of the Defendants? motions reveal that they both meet their initial burden because the Plaintiff?s Complaint was based on a written statement made in a judicial proceeding, i.e., the application for a temporary restraining order. The Defendant, Ishkhan Tamazyan, through his attorneys, Defendants, Armen Shaghzo and Shaghzo & Shaghzo Law Firm, filed an application for a restraining order under the CCP section 527.6. The Defendants then dismissed the application. The Plaintiff alleged in his Complaint that the action was frivolous and brought without any probable cause and that a John Doe had engaged in trespass when he served the Plaintiff with the papers for the temporary restraining order. Since the Defendants? activity arises from the written document that they filed in a judicial proceeding, the Defendants meet their initial burden of showing that the Plaintiff?s claim is based on conduct protected under CCP section 425.16(e).
This shifts the burden to the Plaintiff. In his opposition, the Plaintiff argues that this controversy could have been avoided if the Defendants? counsel had advised him that he should seek his attorney?s fees in the underlying action regarding the restraining order. This does not offer any grounds to find that the Plaintiff has met his burden under CCP section 425.16. Further, there is no authority holding that the Plaintiff can meet his burden by arguing that the Defendants were required to provide legal advice to the Plaintiff before filing their anti-SLAPP motions.
In addition, the Plaintiff cannot meet his burden as a matter of law because the unsuccessful filing of a petition for an injunction under section 527.6 may not form the basis for a malicious prosecution action. Siam v. Kizilbash (2005) 130 Cal. App. 4th 1563, 1574. Since the Plaintiff’s Complaint for malicious prosecution is based upon defendant’s unsuccessful section 527.6 petition, the Plaintiff cannot, as a matter of law, demonstrate a probability of prevailing existed. In addition, since there is a eleven year old case directly on point, there are no grounds to find that the Defendants? attorneys, as opposed to the Plaintiff?s attorney, should have advised the Plaintiff on the correct manner to seek attorney’s fees.
Therefore, the Defendants? motions to strike would have been granted and they are entitled to an award of attorney?s fees under CCP section 425.16.

2. Requests for Attorney?s Fees
CCP section 425.16(c) authorizes the Court to award a prevailing defendant the fees and costs which will adequately compensate the defendant for the expenses of responding to the lawsuit. Dove Audio, Inc. v. Rosenfeld, Meyer, & Susman (1996) 47 Cal.App.4th 777, 785. The SLAPP statute reflects the Legislature’s ?strong preference for awarding attorney fees to successful defendants.? Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 338. Further, the provision is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit. Wilkerson v. Sullivan (2002) 99 Cal. App. 4th 443, 448.
The fee amount is left to the trial court’s sound discretion. Christian Research Institute v. Alnor (2008) 165 Cal. App. 4th 1315, 1320. 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. Id.

The Defendants provide evidence that, after the Plaintiff dismissed the action, they sent a letter to the Plaintiff?s counsel to request attorney?s fees under CCP section 425.16, but that the Plaintiff did not pay any fees. Accordingly, the Defendants had to incur additional fees and costs to file the pending motions.

a. Defendants, Armen Shaghzo and Shagzo & Shaghzo Law Firm
The Defendants seek attorney?s fees of $5,640. This amount is based on facts in the declaration of the Defendants? attorney, Ara Aroustamian, showing that 6 hours were spent researching and drafting the anti-SLAPP motion at $400 per hour and that the staff spent 4.4 hours at $100 per hour on the motion. Further, Mr. Aroustamian states that 7 hours at $400 per hour were spent on the pending motion for attorney?s fees. The amount requested of $5,640 is a reasonable amount of attorney?s fees to incur on the anti-SLAPP motion and the motion to recover the attorney?s fees to which the Defendants are entitled on the anti-SLAPP motion.
In his opposition, the Plaintiff argues that Armen Shaghzo is representing himself and seeking his own attorney?s fees. This is not accurate. As noted above, Armen Shaghzo is represented by Ara Aroustamian.
The Plaintiff also argues that there are insufficient facts to support the requests for fees. The trial court has broad authority to determine the amount of a reasonable fee. PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095. The fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. Id. No specific findings reflecting the Court?s calculations are required. Wershba v. Apple Computer, Inc. (2001) 91 Cal. App. 4th 224, 254-255. The record need only show that the attorney fees were awarded according to the ‘lodestar’ approach. Id. In Wershba, the trial court awarded attorney?s fees to the plaintiffs based upon declarations evidencing the reasonable hourly rate for their services and establishing the number of hours spent working on the case. There were no time sheets submitted describing work done, there was no evidence establishing the rate charged as a reasonable hourly rate, and there was no evidence from which the Court could make findings regarding the various factors considered in the lodestar approach. The Court of Appeal found that no specific findings were required and affirmed the trial court?s order.
In the pending case, the Defendants are seeking attorney?s fees for the fees arising from an anti-SLAPP motion and a motion to recover attorney?s fees. The declaration of Ara Aroustamian is sufficient to provide the facts needed to determine the amount of a reasonable fee, i.e., the hourly rate and the number of hours. Accordingly, there are sufficient facts to support the request for fees.

Therefore, the Court will grant the Defendants? motion and award the requested amount of attorney?s fees of $5,640.

b. Defendant, Ishkhan Tamazyan
The Defendant seeks attorney?s fees of $4,965.00. This amount is based on facts in the declaration of Ishkhan Tamazyan?s attorney, Armen Shaghzo, showing that he spent 10.55 hours at $300 per hour on the motion to strike and 6 hours at $300 per hour on the pending motion. The amount requested of $4,965 is a reasonable amount of attorney?s fees to incur on the anti-SLAPP motion and the motion to recover the attorney?s fees to which the Defendant is entitled on the anti-SLAPP motion.

Therefore, the Court will grant the Defendant?s motion and award the requested amount of attorney’s fees of $4,965.

RULING:
1. Grant motion and award attorney?s fees of $5,640.00 to Defendants, Armen Shaghzo and Shagzo & Shaghzo Law Firm
2. Grant motion and award attorney?s fees of $4,965.00 to Defendant, Ishkhan Tamazyan