Filed 5/6/20 Cruz v. Abdelaziz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

FRANK CRUZ,

Plaintiff and Appellant,

v.

MEL ABDELAZIZ,

Defendant and Respondent.

F077506

(Super. Ct. No. 17CECG04380)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Donald S. Black, Judge.

Frank Cruz, in pro. per, for Plaintiff and Appellant.

Yarra Law Group and H. Ty Kharazi for Defendant and Respondent.

-ooOoo-

Plaintiff appeals from an order awarding defendant his attorney fees, after the trial court granted defendant’s special motion to strike the malicious prosecution cause of action from plaintiff’s complaint. Because plaintiff has not established any legal error or abuse of the trial court’s discretion, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed an action against defendant, alleging three causes of action, including malicious prosecution. The malicious prosecution cause of action was based on a prior unlawful detainer action, which defendant had filed against plaintiff. In response to plaintiff’s complaint, defendant filed a special motion to strike pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion). The trial court granted the motion in part, striking the malicious prosecution cause of action. It subsequently granted defendant’s motion for an award of attorney fees as the party prevailing on the anti-SLAPP motion; it awarded defendant $2,510. Plaintiff challenges that award.

DISCUSSION

I. Standard of Review

“The issue of a party’s entitlement to attorney’s fees is a legal issue which we review de novo. [Citations.] However, the determination of the amount of fees to be awarded is reviewed for abuse of discretion.” (Garcia v. Santana (2009) 174 Cal.App.4th 464, 468–469 (Garcia).) “We will disturb the trial court’s exercise of discretion in the determination of a reasonable attorney’s fee ‘only where there has been a manifest abuse of discretion.’ ” (Id. at p. 469.)

II. Award of Attorney Fees

Generally, “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (§ 425.16, subd. (c).) “[U]nder [] section 425.16, subdivision (c), any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) The trial court granted defendant’s anti-SLAPP motion; as the prevailing party on that motion, he was entitled to an award of attorney fees.

Plaintiff claims the trial court erred in making an award of attorney fees to defendant because it failed to consider his in forma pauperis status. It is not clear whether he contends an award of attorney fees is barred as a matter of law when the plaintiff against whom the award is imposed is indigent, or whether he contends the trial court abused its discretion in determining the amount of the award by failing to consider indigence. In either case, plaintiff has failed to establish any error.

The anti-SLAPP statute makes the award of attorney fees to the prevailing defendant mandatory. It makes no exception for indigent plaintiffs. Two of the cases cited by plaintiff in support of his argument stress the mandatory nature of the attorney fee award to the prevailing defendant (Cabral v. Martins (2009) 177 Cal.App.4th 471, 490 [“The language of the anti-SLAPP statute is mandatory; it requires a fee award to a defendant who brings a successful motion to strike”]; G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 620 [quoting the same language from Cabral]). Neither case discussed indigence or its effect on an award of attorney fees. Neither stands for the proposition that attorney fees cannot be awarded to a defendant who prevails on an anti-SLAPP motion, when the plaintiff is indigent. Plaintiff has not established any error in the trial court’s decision to make an award of attorney fees to defendant.

“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. [Citation.] Under that method, the court ‘tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.’ ” (Cabral v. Martins, supra, 177 Cal.App.4th at p. 491.) “ ‘The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.’ ” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1134.) “The ‘ “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.” ’ ” (Id. at p. 1132.) “The fee award ‘should ordinarily include compensation for all the hours reasonably spent .…’ ” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 556.)

The trial court concluded defense counsel’s hourly rates and time spent on the anti-SLAPP and fee motions appeared reasonable. It noted defendant’s attorney fee motion was unopposed. It granted defendant’s motion and awarded $2,510 in attorney fees.

Plaintiff does not challenge the sufficiency of defendant’s showing in support of the attorney fee award. He does not contend the number of hours for which defense counsel was compensated was unreasonable or inflated. He does not contend the hourly rate was excessive. Consequently, he has not established any abuse of discretion by the trial court.

Plaintiff cites Garcia, in support of his argument that the trial court abused its discretion by failing to consider his alleged indigence in making its fee award. In Garcia, the court reviewed an award of attorney fees made pursuant to the Davis-Stirling Common Interest Development Act (Civ. Code, former § 1354). (Garcia, supra, 174 Cal.App.4th at p. 468.) The statute provided that, in an action to enforce the governing documents of a common interest development, “ ‘the prevailing party shall be awarded reasonable attorney’s fees and costs.’ ” (Garcia, at p. 469.) In response to the defendants’ motion for attorney fees, the plaintiff claimed indigence and filed supporting documents, including a copy of the waiver of her court fees and costs. (Id. at p. 468.) The trial court awarded no attorney fees because of the plaintiff’s financial condition. (Ibid.)

The court interpreted the term “reasonable attorney’s fees” to permit the trial court, in applying the lodestar method, to adjust the lodestar based on consideration of the plaintiff’s financial status, among other factors. (Garcia, supra, 174 Cal.App.4th at pp. 474–477.) Prior cases identified various factors to be considered in adjusting the lodestar: “ ‘ “the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” ’ ” (Id. at p. 474.) Other cases the court cited “recognized an award of attorney’s fees should not impose an unreasonable financial burden on the losing party.” (Id. at p. 475.) The court concluded: “In determining the amount of fees to be awarded to the prevailing party where the statute, as here, requires that the fee be reasonable, the trial court must therefore consider the other circumstances in the case in performing the lodestar analysis. Those other circumstances will include, as appropriate, the financial circumstances of the losing party and the impact of the award on that party.” (Id. at pp. 476–477.) The trial court had considered the plaintiff’s financial condition, but because it had not clearly considered all of the other relevant circumstances in setting the amount of fees, the court reversed and remanded for a redetermination of the fee award. (Id. at p. 477.)

We need not determine whether Garcia’s interpretation is correct or whether the same interpretation would apply to an award of attorney fees under section 425.16, subdivision (c). Plaintiff did not raise this argument below, so the trial court had no occasion to consider it. As a general rule: “ ‘[A] party is precluded from urging on appeal any point not raised in the trial court. [Citation.] Any other rule would “ ‘ “permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.” ’ ” ’ ” (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) The reviewing court has discretion to consider an argument not made in the trial court, if it raises a pure question of law. (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767.)

According to the order granting defendant’s motion for an award of attorney fees, plaintiff did not file opposition to the motion. The record does not contain any opposition to the attorney fee motion. Plaintiff has not cited us to anything in the record indicating he raised this argument in the trial court. It does not constitute a pure question of law, as it raises factual questions regarding whether plaintiff is indigent and whether the attorney fee award would pose a financial hardship to him. Consequently, plaintiff has forfeited the issue of the effect of his alleged indigence on the award of attorney fees, and we will not consider it.

DISPOSITION

The order awarding attorney fees to defendant is affirmed. Defendant is entitled to his costs on appeal.