Case Number: EC063250 Hearing Date: April 13, 2018 Dept: NCD

TENTATIVE RULING

Date: 4/13/18

Calendar: 8

Case No: EC 063250 Trial Date: None Set

Case Name: Perry, et al. v. Xenon Investment Corporation, et al.

MOTION FOR ATTORNEY’s FEES

(CCP §425.16)

MP: Defendants Xenon Investment Corporation, LS2 Properties, LLC, Westside Habitats, LLC, Rohta Mehta and Loren Medina

RP: Plaintiffs Andre Perry and Tiffany Perry .

RELIEF REQUESTED:

Order awarding defendants reasonable attorney’s fees incurred in defending against plaintiffs’ appeal of an order granting defendants’ special motion to strike in the sum of $89,850

RULING:

Defendants and Respondents’ Motion Pursuant to CCP 425.16(C)(1) for an Order Awarding them Attorney’s Fees is GRANTED.

The court finds that defendants Xenon Investment Corporation, LS2 Properties, LLC, Westside Habitats, LLC, Rohta Mehta and Loren Medina were the prevailing defendants on the appeal of an order granting a special motion to strike under CCP section 425.16, and are entitled to recover their reasonable attorney’s fees and costs. The court awards fees and costs of $67,330.00 [$89,850 requested], reflecting reasonable time the court finds was reasonably expended at the stated billing rates to prevail on the appeal, and to pursue the fees.

SUMMARY OF FACTS:

Plaintiffs Andre Perry and Tiffany Perry bring this action against their former residential landlords, defendants Xenon Investment Corporation and LS2 Properties, and the parties who managed the property, defendant Westside Habitats, Rohit Mehta and Loren Medina, alleging that during plaintiffs’ tenancy, plaintiffs requested repairs to their unit, complaining of an expired elevator permit, improperly installed smoke detectors, inoperable magnetic fire doors in the building, a damaged trash chute which caused unsavory odors and insect infestation, and plumbing issues which caused plaintiffs to go for three days without hot water. Plaintiffs also allege that plaintiffs, along with other tenants of the property, signed a petition requesting that defendants evict one of their tenants who possessed a dog with dangerous and violent propensities. Plaintiffs allege that despite promises to cure the defects, defendants made efforts to increase monthly rents being charged.

Plaintiffs further allege that on August 16, 2014, plaintiffs discovered that their on-site storage units had been broken into, and their personal belongings removed, which they believed was an additional retaliatory act by defendants. Plaintiffs contacted the police department and filed a police report. Defendant Mehta admitted to plaintiffs that Mehta was responsible for the incident with the storage unit, and that plaintiffs’ personal belongings had been discarded by defendant Medina, without the authorization of plaintiffs. Plaintiffs shared the information with the police department, which conducted a criminal investigation for the crime of grand larceny.

The operative complaint is the First Amended Complaint. The original complaint had alleged that on September 16, 2015, Xenon filed an unlawful detainer action against plaintiffs to recover possession of the rental unit, and that the action was filed in retaliation for plaintiffs’ involvement in the petition to evict another tenant with the dangerous dog, the many complaints they had regarding the unsafe and unsanitary conditions of the property, and the criminal investigation which occurred as the result of plaintiff’s stolen property.

Moving defendants filed a special motion to strike the cause of action in the original complaint for retaliatory eviction. The court, Judge Doyle presiding, on February 13, 2015 granted the motion. Defendants in that motion had also sought attorneys’ fees for bringing the motion. However, as the court’s minute order noted, “Here, the moving papers do not specify what costs or fees have been incurred, so no substantial evidence supports an award. No costs or fees shall be awarded.” The minute order also provides, “The court rules that the Defendant has not lost the ability to move for attorney fees and costs.”

Defendants then brought a motion to recover fees and costs, which was heard on July 10, 2015, and was granted, the court awarding $14,045.

On August 5, 2015, plaintiffs filed a Notice of Appeal of the order granting the special motion to strike.

The court of appeal unpublished opinion was filed on August 8, 2017. The trial court order was affirmed, and the Disposition states, “Defendants are to recover costs on appeal.” On October 20, 2017, the remittitur was filed with this court, which also states that, “Defendants are to recover costs on appeal.”

ANALYSIS:

The motion seeks attorneys’ fees for the expense of having to defend against the appeal and for making this motion for such fees.

With respect to attorneys’ fees as costs, CRC Rule 8.278(d)(2) states: “Unless the court orders otherwise, an award of costs neither includes attorney’s fees on appeal nor precludes a party from seeking them under rule 3.1702.”

Under CCP Section 1032, a prevailing party in an action is entitled to allowable costs. Under CCP § 1033.5(c)(2), allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Subdivision (3) requires: “Allowable costs shall be reasonable in amount.”

Under CPC section 1032(b), “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Section 1033.5 (a) provides that an allowable cost under §1032 includes:

“(10) Attorney’s fees, when authorized by any of the following:

Contract

Statute

Law.”

Here, the fees are sought under statute, CCP § 425.16 which provides mandatory sanctions to a prevailing defendant:

“(c) 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.

Where a defendant brings a successful motion to strike under section 425.16, these fees are considered mandatory. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131. Where a defendant on a special motion to strike prevails on appeal, reasonable attorneys’ fees are to be awarded under the statute, which does not specifically preclude recovery on appeal. Dowling v. Zimmerman (2001) 85 CalApp.4th 1400, 1426.

The party seeking fees bears the burden of establishing entitlement to an award and of documenting the appropriate hours spent and hourly rates, and the court may require that party to produce records sufficient to provide a proper basis for that determination. Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.

The trial court’s determination of the amount of a fee award will be upheld on appeal if supported by substantial evidence. Macia v. Hartwell (1997) 55 Cal.App.4th 669, 676.

Here, the opposition indicates that plaintiffs do not challenge defendants’ entitlement to attorneys’ fees in this matter, but argue that the fees sought are excessive and should be reduced.

The fees sought are $89,850, which include $76,250 for defending against the appeal of the anti-SLAPP order and $13,600 for bringing this motion for fees.

There are no billing statements attached, as we usually see, but declarations from each attorney who performed work on the appeal and this motion for fees setting forth the services provided, the hours spent and the hourly rate. Mr. Citron is billed at $450 per hour, and Ms. Tatikian is billed at $400 per hour, which appear reasonable. Mr. Citron billed a total of 13.8 hours defending the order on appeal and preparing for oral argument.

Ms. Tatikian spent 185 hours in defending the order in the court of appeal, preparing the respondent’s brief and materials for oral argument, and explains that the issues were complex, and involved addressing representations of facts by plaintiffs on appeal, as well as various opinions from the Second District reversing anti-SLAPP orders, and various legal contentions on appeal by plaintiffs which defendants claimed were erroneous. She also indicates that in connection with this motion, she has performed 23.5 hours of work, with another 10.5 hours anticipated in preparing a reply and preparing for and attending the hearing.

The tasks and time spent appear reasonable on the appeal, and it does not appear that Citron spent an inordinate amount of time supervising or duplicating the efforts of Tatikian, who is an experienced attorney. However, the time spent to file this motion, which is largely duplicative of the previous motion for fees filed in this matter, appears somewhat high.

The previous fees motion, prepared at a $250 per hour billing rate, required only 5 hours to prepare, and an anticipated 9.5 hours preparing a reply and attending the hearing ($3,625), with 1.9 hours at $450 per hour reviewing the motion by Citron ($855). This totals $4,480, which appears more reasonable, and may be reduced even further to account for clear cutting and pasting into this motion what was already prepared for the previous motion.

The opposition argues that the fees are unreasonable.

With respect to the motion for fees, plaintiffs object that three pages of the fourteen page motion was spent arguing entitlement to fees, to which defendants have already established they are entitled, and that the memorandum copies verbatim materials from the attorney declarations, but that defendants request 8.4 hours to draft the memorandum and 8.4 hours to draft the Tatikian Declaration. This does seem duplicative and excessive, and a more reasonable total sum for preparing this motion will be awarded, as discussed above, in the amount of $3,000.

The opposition also objects that defendants spent over 6 hours combined preparing a chart of billing entries, which appears more in the nature of clerical work, and that defendants should not be able to claim such work to inflate their award. This does appear to be an excessive amount of time to summarize what were likely billing records already kept contemporaneously, and the fees for the motion should be reduced, as discussed above.

With respect to the work on appeal, the argument is that defendants summarily declare that over 120 hours were spent preparing the respondent’s brief in the appeal of this matter, which is outsized given the complexity of this matter and the experience of attorney Tatikian. Plaintiffs also argue that it is clearly unreasonable to have spent 29.8 hours preparing for an oral argument which Tatikian herself did not make, and that in fact Citron only spent 3.9 hours in preparation for the argument.

It does appear a bit irregular that so much time was spent preparing materials for Citron to use in preparing for oral argument, when much of the work had already been done to generate the respondent’s brief. However, the moving papers explain, and the declarations set forth tasks in some detail in connection with the issues which seem ever changing in the anti-SLAPP world, and the opposition does not point to any particular issue which it was unnecessary to brief, or to ensure that Citron was prepared for in oral argument. Overall, the court eliminates the time on the oral argument preparation expended by Tatikian, as it appears that time was already spent in the many hours claimed to prepare the respondent’s brief. The court disallows the 29.8 hours given that Attorney Citron spent almost 4 hours preparing for, and argument on, the appeal. Such an additional recovery of attorneys fees regarding oral argument preparation would be duplicative and excessive. Those hours at $400 per hour would total $11,920 in a reduction. This would result in a fee for the appeal of $76,250, less $11,920 = $64,330 and for the motion of approximately $3,000, for a total of $67,330.