Case Number: EC060584    Hearing Date: November 07, 2014    Dept: A

Li v Zhang

MOTION FOR ATTORNEY’S FEES

Calendar: 5
Case No: EC060584
Date: 11/7/14

MP: Defendant, Ken Gross
RP: Plaintiff, James Li

RELIEF REQUESTED:
Order awarding attorney’s fees of $22,425 to Defendant, Ken Gross

DISCUSSION:
This case arises from the Plaintiff’s claim that after he provided legal services and paid with interests in parcels of real property, the Defendants attempted to thwart the Plaintiff’s ability to collect money by failing to service the mortgages on the properties. After the Defendants filed a motion to strike the Complaint under the anti-SLAPP statute, the Plaintiff dismissed the entire action without prejudice on July 16, 2014.
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.
Accordingly, at the hearing on the Defendants’ motions, the Court evaluated the merits of the Defendants’ motion to strike and determined that they were entitled to an award of attorneys’ fees because the Plaintiff’s claims against them were made in connection with an issue under consideration by a judicial body and the Plaintiff could not establish the merits of his claims because they were barred by the litigation privilege.

This hearing concerns the motions of the Defendant to identify the amount of attorney’s fees he incurred. CCP section 425.16(c) permits 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 Defendants seek attorney’s fees and expenses of $22,425. This amount is based on facts in the declaration of Austa Wakily indicating that she billed 54 hours to prepare, draft, and appear on the anti-SLAPP motion. Ms. Wakily also states that her billable rate is $325 per hour. In addition, Ms. Wakily states that an additional 15 hours were billed to prepare, draft, and appear on the pending motion for attorney’s fees.

The Plaintiff argues in his opposition papers that the Defendant has not submitted any evidence that his insurance carrier paid the attorney’s fees and that the Defendant did not explain why he did not make the request in the anti-SLAPP motion. There is no requirement that the Defendant submit evidence from an insurance carrier. Further, there is no requirement that the attorney’s fees be sought in the anti-SLAPP motion.
In addition, the Plaintiff argues that any amount beyond $1,000 is excessive, that the issues involved in this case are obvious, and that Ms. Wakily did not spend her time efficiently. None of these arguments are persuasive because Ms. Wakily have provided numerous facts in her declaration to demonstrate that time she spent attempting to understand the nature of the Plaintiff’s numerous claims that, in essence, the Defendants, including the parties and opposing counsel in the underlying case, conspired to deprive the Plaintiff os his interests in property that was sold in a partition order. Further, Ms. Wakily has provided detailed facts to demonstrate the time she spent reviewing the underlying case and then drafting and appearing on the anti-SLAPP motion and the pending motion for attorney’s fees. A review of these facts reveals that Ms. Wakily’s billing is reasonable.

Therefore, the Court will award $22,425 to the Defendant under CCP section 425.16.

RULING:
AWARD attorney’s fees and expenses to Defendant, Ken Gross in the sum of $22,425.00.