CIV 500530 ENVIRONMENTAL CAPITAL GROUP, INC. VS. CAPITAL

DYNAMICS, INC., ET AL.

ENVIRONMENTAL CAPITAL GROUP, INC. MARK MARTEL

CALPERS CLEAN ENERGY & TECHNOLOGY IAN JOHNSON

MOTION FOR ATTORNEYS’ FEES BY CALPERS CLEAN ENERGY & TECHNOLOGY FUND, LLC

· The motion for attorneys’ fees is granted but substantially reduced. A brief recitation of facts is important to understand the basis for reducing the amount CalPers Clean Energy has sought, which is $92,984.43.

· This fee is being sought for an anti-SLAPP motion, the reply brief and a single court appearance for argument which lasted less than 30 minutes. While an award of attorney fees and costs incurred in connection with a successful anti-SLAPP motion is mandatory (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131), Section 425.16 provides that a prevailing defendant on such a motion is only entitled to recover attorney fees and costs that the Court deems reasonable. Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362. A trial judge may rely on his or her own knowledge and discretion in determining the value of professional services rendered. Serrano v. Priest (1977) 20 Cal.3d 25, 29.

· There is no debate that CalPers was the prevailing party in the anti-SLAPP motion and as such is entitled to reasonable fees for a reasonable amount of time and resources invested in advocating their position. The motion was filed February 20, 2014 following PCG [Cross-Complainant] filing an amended pleading which added the offending cause of action, an action for indemnification. However, CalPers stipulated to the filing of the amended pleading, having been on notice of the proposed nature of the amendment since December 2013. From a review of CalPers’ attorneys’ billing records, they were already researching the anti-SLAPP motion at the very time they consented to its filing. PCG’s description of CalPers’ conduct in stipulating to the amended pleading as a pre-text for filing the anti-SLAPP motion is not unreasonable. That does not change the fact that PCG’s claim for indemnity should have been stricken, but it does shed some light on the reasonableness of CalPers’ motion for fees.

· The law firm representing CalPers, Orrick, is a top-tier firm employing thousands of attorneys both in and out of the state of California. For purposes of this motion the firm brought in a senior partner from New York, Mr. Fink, who brought with him his fee of $810.00/hour. In reviewing the bios attached to CalPers’ motion, it is difficult to understand why the senior associate in the San Francisco office working on this motion, Ms. Lui, was not sufficiently experienced after twelve years of practice to handle this motion without the need to elicit the involvement of Mr. Fink.

· Contrary to the assertions in CalPers’ motion, this anti-SLAPP motion was not complex; in fact it was one of the more straightforward such motions this Court has presided over. It involved only a single cause of action for indemnification under a contract controlled by Delaware law. Moreover, PCG actually alleged in their amended complaint that this cause of action was filed as a result of the Fund initiating litigation against them. There was no question that the first prong under CCP § 425.16 would be established, so the only real issue requiring any extensive research was whether or not PCG was likely to prevail on the underlying claim. However, even that was not a complicated issue, contrary to CalPers’ position. Moreover, the bios of the attorneys included in the motion suggest that whatever issues were involved in the anti-SLAPP motion should have paled in comparison to the truly complex issues the attorneys regularly deal with. Therefore, the utilization of a senior partner, senior associate and associate for almost 168 hours for the preparation and argument of this motion is not reasonable.

· Equally unreasonable is the assertion that more than 8 hours were necessary to prepare the pro hac vice motion allowing Mr. Fink to appear in court. This was an ex parte matter brought before the Court on February 24, 2014. The preparation of the motion should not have exceeded 1 hour. Yet Mr. Chang billed $3,960 for this uncontested pro forma motion. This request is emblematic of the overwhelming unreasonable nature of the fee request as a whole. This Court routinely deals with fee requests as well as anti-SLAPP motions, so it is familiar with what the prevailing rates are for senior partners, senior associates and associates in the Bay Area. As such, this Court has experience with how much time attorneys should be spending and typically do spend on difficult and complex matters such as discovery motions, motions for summary judgment and anti-SLAPP motions. By this ruling the Court does not suggest that all attorneys are to be paid the same, for there is obviously a scale of pay which takes into account skill and years of experience. Having read and considered the anti-SLAPP motion and its reply, the Court finds that a reasonable amount of time to expend would not exceed 40 hours. Even that amount seems on the high end, for it is difficult to conceive that it would require a single attorney working full time for a week to research, analyze, discuss, write, edit and file the motion [12 pages, no attachments] and its reply [9 pages, no attachments].

· Here, the Court finds the hourly billing rates claimed by CalPERS’ counsel ($810/hour for partner Steven Fink; $650/hour for senior associate Catherine Lui; and $495/hour for junior associate Roland Chang) to be excessive in light of prevailing market rates in the Bay Area. Further, the Court notes that CalPERS’ counsel’s billing records are replete with block-billed entries containing redacted information, such that it is difficult to determine how much time was actually spent on CalPERS’ anti-SLAPP motion. The Court notes that the total time for such block-billed entries is 63.25, and that CalPERS’ counsel has reduced these entries by 50%. The Court exercises its discretion to disregard all block-billed entries (Bell v. Vista Unified School District (2000) 82 Cal.App.4th 672, 689). In light of the substantial reduction in fees awarded, the calculation will not include the 15% deduction given by Orrick to CalPers. Accordingly, the attorneys’ fee award is as follows:

Hourly rate Hours Total

Steven Fink (partner) $650 10 $6,500

Catherine Lui (senior) $450 20 $9,000

Roland Chang (associate) $300 10 $6,500

Total: $22,000

· Within thirty days of notice of entry of this Order, Cross-Complainants PCG CLEAN TECH, LLC and PCG ASSET MANAGEMENT, LLC are ordered to pay $53,637.98 to CalPERS in compensation for the reasonable attorneys’ fees incurred in filing its anti-SLAPP motion.

· If the tentative ruling is uncontested, it shall become the order of the Court. The moving party shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.