Case Number: BC606663 Hearing Date: October 01, 2018 Dept: 47

Buwei Shi Xi, et al. v Estate of Baozhen Wang Xi, et al.

MOTION FOR ATTORNEY FEES AND COSTS (SLAPP)

MOVING PARTY: Defendant Lin Hua Xi

RESPONDING PARTY(S): Plaintiffs Buwei Shi Xi and The Estate of Yanghua Xi

STATEMENT OF FACTS

Plaintiff alleges that Defendants breach an agreement to settle all claims against the estate of Plaintiff’s husband in return for payment of $250,000.

Defendant Lin Hua Xi moves for attorney’s fees and costs on appeal.

TENTATIVE RULING:

Defendant Lin Hua Xi’s motion for attorney’s fees and costs is GRANTED in the amount of $29,500.00 in attorney’s fees and $60.00 in costs, which the Court finds to be the lodestar amount for the reasonable amount of time billed at the approved hourly rates.

DISCUSSION:

Motion for Attorney’s Fees

The Court of Appeal affirmed this trial court’s grant of Defendant Lin Hua Xi’s anti-SLAPP special motion to strike. Defendant moves for attorney’s fees and costs on appeal.

[O]nly those attorney fees and costs related to the special motion to strike, not the entire action, may be recovered under section 425.16, subdivision (c). (See, e.g., S. B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 381 [46 Cal. Rptr. 3d 380, 138 P.3d 713] [“the fee ‘provision [under § 425.16] applies only to the motion to strike, and not to the entire action’ ”]; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383 [46 Cal. Rptr. 2d 542] [legislative history of § 425.16 “clearly show[s] the Legislature intended that a prevailing defendant on a motion to strike be allowed to recover attorney fees and costs only on the motion to strike, not the entire suit”].)

In awarding fees the trial court is not constrained by the amount sought by the successful moving parties (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 361 [42 Cal. Rptr. 2d 464]), but is obligated to award “reasonable attorney fees under section 425.16 [that] adequately compensate[] them for the expense of responding to a baseless lawsuit.” (Id. at p. 362; accord, Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785 [54 Cal. Rptr. 2d 830].) The fees awarded should include services for all proceedings, including discovery initiated by the opposing party pursuant to section 425.16, subdivision (g), directly related to the special motion to strike. ( [*93] Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1248 [132 Cal. Rptr. 2d 57] [affirming award of attorney fees including fees incurred in opposing discovery request and motion for reconsideration]; American Humane Assn. v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095, 1104 [112 Cal. Rptr. 2d 488] [documentation for attorney fee motion should include ?the total cost of the special motion to strike and any related discovery permitted by the court”]; see Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 446 [121 Cal. Rptr. 2d 275] [“statute is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extricating herself from a baseless lawsuit”].)

Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 92-93 (bold emphasis added).

CCP § 425.16(c) authorizes an award of attorney’s fees incurred on appeal by a prevailing defendant:

Assuming section 425.16, subdivision (c), is limited to an award of costs and attorney fees incurred in connection with the special motion to strike, this has been interpreted to include expenses incurred in litigating an award of attorney fees after the trial court has granted the motion to strike. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 [104 Cal. Rptr. 2d 377, 17 P.3d 735].) It also includes fees incurred in responding to an appeal of an order granting a special motion to strike or an order awarding attorney fees in connection with such motion. (See Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448 [121 Cal. Rptr. 2d 275].) “A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise. [Citations.] Under … section 425.16, subdivision (c), a prevailing defendant on a special motion to strike a SLAPP suit shall be entitled to recover his or her attorney’s fees and costs.’ The statute does not preclude recovery of appellate attorney fees by a prevailing defendant-respondent; hence they are recoverable.” (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499–1500 [45 Cal. Rptr. 2d 624]; see also Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785 [54 Cal. Rptr. 2d 830].)

Where costs and attorney fees are authorized for responding to an appeal of an order awarding costs and attorney fees under section 425.16, subdivision (c), there is no reason why this should not also encompass costs and attorney fees incurred in challenging the undertaking submitted by the plaintiff to stay enforcement of the award pending appeal. It was the Wanlands who decided to appeal the award and seek a stay of its enforcement. Mastagni, Kelly and Kreeger were forced to respond to protect the award. As set forth earlier, the trial court found the Wanlands’ inadequate sureties led to the litigation regarding the undertaking and the Wanlands do not challenge that finding here.

Section 425.16, subdivision (c), is intended to compensate a defendant for the expense of responding to a SLAPP suit. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362 [42 Cal. Rptr. 2d 464].) To this end, 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, supra, 99 Cal.App.4th at p. 446.)

If an award of costs and attorney fees is not permitted for a challenge to an inadequate undertaking submitted to stay enforcement of an award of attorney fees under section 425.16, subdivision (c), the protection provided to a defendant who is brought into court for exercising free speech and petition rights would be compromised. This would be inconsistent with the Legislature’s directive that section 425.16 be broadly construed to encourage continued participation in free speech and petition activities. (§ 425.16, subd. (a); see Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 286 [105 Cal. Rptr. 2d 674].) In our view, the full protection of a defendant’s rights requires an award of attorney fees for litigating the adequacy of the plaintiff’s undertaking.

Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 1-22.

Here, Defendant seeks $35,677.50 in attorney’s fees and costs. The Court finds that the $450/hour billing rate for partner David Ammons and $375/hour billing rate for associate Timothy Fox are reasonable for the Los Angeles market. See Declaration of David Ammons, ¶¶ 4-6. The Court has considered the billing summary submitted as Exhibit A to the Ammons Declaration, as well as the Plaintiffs’ opposition papers thereto. The Court finds that the lodestar amount for the reasonable amount of time billed at the above hourly rates, including in connection with the instant motion, is $29,500.00. Defendant did not set forth the specific costs to be recovered, so the Court will only award $60 for the filing fee for this motion.

Accordingly, the motion for attorney’s fees and costs is GRANTED in the amount of $29,500.00 in attorney’s fees and $60.00 in costs, which the Court finds to be the lodestar amount for the reasonable amount of time billed at the approved hourly rates.

Defendant to give notice, unless waived.

IT IS SO ORDERED.

Dated: October 1, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court