Case Number: BC572581    Hearing Date: June 25, 2019    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

INTELLIGENT SCM, LLC,

Plaintiff,

vs.

RUSSELL W. ROTEN, et al.

Defendants.

Case No.: BC 572581
Hearing Date: June 25, 2019
Hearing Time: 8:30 a.m.
[TENTATIVE] ORDER RE: 

 

CROSS-DEFENDANT ANDREW SCOTT’S MOTION FOR ATTORNEYS’ FEES UNDER C.C.P. § 425.16(c)(1) AND COSTS

 

 

Background

On August 1, 2017, the Court granted Cross-Defendant Andrew Scott’s (“Scott”) motion to strike the Cross-Complaint of Cross-Complainants Peter Lamy and Graham Burford (jointly, “Cross-Complainants”) pursuant to Code of Civil Procedure section 425.16.

Scott now moves for an award of attorneys’ fees and costs, as the prevailing defendant on an anti-SLAPP motion, in the amount of $30,702.50 in attorney’s fees and $554.31 in costs. Cross-Complainants oppose.

Discussion

The anti-SLAPP statute provides that “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.” (Code Civ. Proc., § 425.16(c)(1).) “[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) An award of fees may also include “the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16.” (Id. at p. 1141.) “It is well established that the amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the familiar lodestar method.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432 [internal quotations omitted].) Under the lodestar method, the court tabulates the attorney fee lodestar by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.” (Ibid.)

With regard to the number of hours reasonably expended, “the 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.4th 359, 396.) In determining the reasonable hourly rate, the “burden is on the successful party to prove the appropriate market rate to be used in calculating the lodestar.” (MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13.) The trial court may reduce the award where the fee request appears unreasonably inflated, such as where the attorneys’ efforts are unorganized or duplicative. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21.)

In support of his motion, Scott has submitted a declaration from his attorney, Roger N. Behle, Jr.  Mr. Behle attests to the following amounts of attorney’s fees incurred on the anti-SLAPP motion and the instant attorney’s fee motion (including estimates for fees to be incurred):

  • $13,860 for Mr. Behle (28 hours x $495/hour)
  • $15,045 for associate Muhammed T. Hussain (51 hours x $295/hour)
  • $1,032.50 for associate Kevin D. Gamarnik (3.5 hours x $295/hour)
  • $765 for paralegal Rachel Evans (5.1 hours x $150/hour) (Behle Decl., ¶ 7, Ex. B.)

Mr. Behle also attests to the experience and qualifications of each of the attorneys who billed on this matter. (Behle Decl., ¶¶ 3-5.)

Cross-Complainants oppose the fee request as unreasonable because the billing entries provided by Scott are vague, because the redactions made to the billing entries obscure the nature of the work performed, and because Scott seeks fees for matters unrelated to the anti-SLAPP motion. A fee award may not include matters unrelated to the anti-SLAPP motion. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325 [non-anti-SLAPP efforts such as attacking service of process are not reimbursable].)

First, Cross-Complainants object to the $2,970 (6 hours x $495/hour) requested for traveling to and attending the combined case management conference and the hearing on the anti-SLAPP motion on August 1, 2017. Cross-Complainants contend that the hearing on the anti-SLAPP motion was separate from the hearing on the case management conference, and therefore Scott cannot recover for time spent on the case management conference. Cross-Complainants refer to the court reporter’s transcript of the August 1, 2017 hearing to show that the time spent on the anti-SLAPP motion was much less than the time spent on the case management conference. However, Cross-Complainants do not provide a copy of the transcript so that the Court can verify the assertion. Therefore, the Court declines to deduct fees for the time incurred on August 1, 2017.

Second, Cross-Complainants object to what they characterize as overbilling for Mr. Hussain. Cross-Complainants argue that the billing entries show that Mr. Hussain only billed 44.1 hours, but Scott is requesting attorney’s fees for Mr. Hussain totaling 51 hours. Cross-Complainants argue that because Mr. Hussain is no longer employed as an attorney by Scott’s counsel, the time estimated for Mr. Hussain’s additional work on this motion should be deducted. In reply, Scott provides a supplemental declaration from Mr. Behle showing the number of hours actually billed by Mr. Hussain to be 46.2. (Suppl. Behle Decl., ¶¶ 6-7, Ex. C.) Therefore, the Court will reduce the amount of fees allocated to Mr. Hussain to $13,629 (46.2 hours x $295/hour).

Third, Cross-Complainants object that Scott’s counsel generally excessively overbilled on the anti-SLAPP-related matters. Cross-Complainants contend that the time spent on matters such as attending hearings, preparing evidentiary objections, drafting motions, and preparing supporting documents was not reasonable. The Court finds that the hours billed by Scott’s attorneys were reasonable.

Fourth, Cross-Complainants object that the estimate for future fees is excessive and unreasonable, and that the Court should only award three hours of time to prepare a reply and three hours to attend the hearing. The Court does not find that the time estimated for future fees is excessive.

Finally, the Court notes that, in Scott’s reply, he is seeking additional fees incurred in opposing an ex parte application by Cross-Complainants to continue the hearing on the instant motion for fees. Therefore, as of the date of the filing of the reply, Scott has actuallyincurred $39,395.50 in attorney’s fees as follows:

  • $20,889 for Mr. Behle (42.2 hours x $495/hour)
  • $13,629 for associate Muhammed T. Hussain (46.2 hours x $295/hour)
  • $1,622.50 for associate Kevin D. Gamarnik (5.5 hours x $295/hour)
  • $3,255 for paralegal Rachel Evans (21.7 hours x $150/hour) (Suppl. Behle Decl., ¶¶ 6-8, Ex. C.)

Scott seeks an additional 3 hours for Mr. Behle’s time to appear at the hearing on the instant motion, adding an additional $1,485. (Reply, p. 1:16-17.)

As of the date of the filing of the reply, Scott has incurred $619.75 in costs. (Suppl. Behle Decl., ¶¶ 9-10, Ex. D.)

Since the reply was filed, Cross-Complainants have filed an objection to the reference in the reply to the decision by another court re fees.  The Court sustains that objection and has not considered it in determining the award of fees to be awarded in connection with this motion. Cross-Complainants also request an additional opportunity to address the request in the reply papers for attorney fees related to the ex parte application to continue the hearing on this motion.  The Court grants that request and will set a date at the hearing for the response to the additional request and for the continued hearing.

Scott is to provide notice of this ruling.

DATED:  June 25, 2019                                    ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court