Lawzilla Additional Information:
Per the Sacramento court records plaintiff is represented by attorney John Cassinat.

2013-00147263-CU-FR

Edward Freidberg vs. Christo Bardis

Nature of Proceeding: Motion for Attorney Fees

Filed By: Ellis, Mark E.

Defendant Christo Bardis’ motion for attorneys’ fees pursuant to CCP § 425.16, is granted as set forth below.

On February 9, 2018, this Court issued a tentative ruling granting Defendant’s motion to strike Plaintiff s Edward Friedberg and Friedberg & Parker, LLP’s second amended complaint pursuant to CCP § 425.16. The Court affirmed the tentative ruling on February 14, 2018.

CCP § 425.16(c)(1) provides that a “prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” The mandatory fee provision allows the prevailing party to recover fees and costs incurred in connection with a special motion to strike, including those fees and costs incurred in connection with a fee motion. (Ketchum v. Moses (2001) 24 Cal.App.4th 1122, 1133.) “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.” (Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 92.) The statute authorizes an award of reasonable attorney fees to the prevailing party, and is not bound by the amount sought by the defendant. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362.) The appropriate amount is that which will adequately compensate the defendant for the expense of responding to a baseless lawsuit. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.)

Defendant seeks a total of $27,580 in fees and costs ($27,520 in fees and $60 in costs). This amount represents a total of 60.6 hours or work by 4 separate attorneys and one paralegal as follows:

Anti-SLAPP motion:

-Mark Ellis: 36.5 hours at $600/hr for a total of $21,900

-Anthony Valenti: 4.4 hours at $250/hr for a total of $1,100
-Aleysa Nalbandyan: 9.2 hours at $250/hr for a total of $2,300
-Paula Mahan-Crary (paralegal): 2.8 hours at $100/hr for a total of $280.

Anti-SLAPP fee motion:

-Mark Ellis: 1 hour at $600/hr for a total of $600

-Brett Beyler: 6.7 hours at $200/hr for a total of $1,340.

Plaintiffs oppose the motion on the basis that the hourly rate of Mr. Ellis must be reduced from the requested $600/hr to $275/hr and that the number of hours must also be reduced. Plaintiffs argue that a reasonable fee award is $6,095.

“The fee setting inquiry in California ordinarily begins with the ‘lodestar’ method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” ( Plcm Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The reasonable hourly rate is that prevailing in the community, for similar work.” (Id.) In making this determination, the Court may consider “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.) “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v Board of Trustees of California State University (2005)132 Cal.App.4th 359, 396; Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1367 [declarations of counsel are also “sufficient to meet the burden of establishing the reasonableness of the fees incurred, without the need to produce copies of counsel’s detailed billing statements.”] A party may redact billing statements to delete items protected by the attorney-client and attorney work product privileges. (See Lafayette Morehouse, Inc. v. Chronicle Publishing. Co.(1995) 39 Cal.App.4th 1379, 1382; Banning v. Newdow (2004) 119 Cal .App.4th 438,454.) Nonetheless, the Court will reduce the hours it determines were excessive or not supported. (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816 (party seeking attorney fees has the “burden of showing that the fees incurred were ‘allowable,’ were ‘reasonably necessary to the conduct of the litigation,’ and were ‘reasonable in amount'”); Christian Research Institute v. Ahor (2008) 165 Cal.App.4th 1315, 1326-29 (affirming award for 71 hours of attorney time in case where attorneys sought fees for over 600 hours).) Fee award amounts are matters within the trial court’s discretion: the “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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Plaintiffs first argue that Mr. Ellis’ $600 hourly rate is unreasonable. To that end Plaintiffs point to Mr. Ellis’ declaration which states that he only charged Defendant $275/hr. (Ellis Decl. ¶ 17.) They also point to a recent ruling from Judge Krueger on a recent fees motion pursuant to CCP § 425.16(c) in which Judge Krueger reduced Mr. Ellis’ requested $600 hourly rate to $350. Mr. Ellis attempts to justify the $600 hourly rate by declaring that he has been awarded up to $550 per hour under a lodestar analysis and that $600 per hour is the market rate for an attorney of his experience in this type of matter. (Id.) It is true that the a few award may be based on an hourly rate that exceeds that rate billed. Indeed, “[t]here is no requirement that the reasonable market rate mirror the actual rate billed.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 701 [emphasis in original].) Fee awards are properly calculated based on prevailing market rates regardless of the actual costs to the prevailing party. (Serrano v. Unruh, (1982) 32 Cal.3d 621, 643.) “The reasonable hourly rate is that prevailing in the community, for similar work.” (Plcm Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The reasonable market rate standard applies “regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel.” (Chacon v. Litke (2010) 181 Cal.App.4th 1234, 1260.)

While Mr. Ellis is not limited to the $275 hourly rate he charged to Defendant, the Court agrees that Mr. Ellis’ requested $600 hourly rate is excessive in the context of this action. The Court is well familiar with the instant lawsuit and the underlying anti-SLAPP motion was not particularly complex. No unique or complex questions of law were presented. Indeed, the anti-SLAPP motion involved fairly straightforward application of the law surrounding what constitutes a protected activity and the litigation privilege. Based on the Court’s experience with this matter and other similar matters and its own familiarity with the market for this type of work, the Court concludes that $400 is an appropriate hourly rate for Mr. Ellis in connection with the underlying anti-SLAPP. Reducing Mr. Ellis’ hourly rate to $400 results in a reduction of the total fees requested from $27,520 to $20,020.

Plaintiffs next argue that the requested hours must be reduced because numerous billings are not related to the anti-SLAPP motion directed to the operative second amended complaint. It is of course true that defendant is only entitled to recover costs and fees for the motion to strike, not the entire suit. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co., (1995) 39 Cal App 4th 1379.) Specifically, they challenge 22.70 hours billed by numerous attorneys which they argue was not related to the anti-SLAPP. (Plfs’ Opp. 9:19-12:15.) Having reviewed the highlighted entries, the Court does not find that all 22.70 hours were unrelated to the anti-SLAPP. To that end, many of the entries refer to research regarding a potential anti-SLAPP motion directed to the complaint and the first amended complaint. While the anti-SLAPP was ultimately filed as to the SAC, the Court does not find that research conducted with respect to the previous pleadings is not related to the anti-SLAPP directed to the SAC. However, the Court does agree that the following entries are unrelated to the anti-SLAPP, or contain insufficient detail to determine that they are related:

6/15/2017- .1 hours by Ms. Nalbandyan ($250/hr) for “Review letter to Edward Friedberg from Mark E. Ellis, dated May 16, 2017”

6/20/2017- .1 hours by Mr. Valenti ($250/hr) for “Review email form Mark Ellis to John Cassinat regarding extension of time to file responsive pleading to plaintiff’s complaint.”
6/20/2017- .1 hours by Mr. Valenti ($250/hr) for “Review multiple emails between Mark Ellis to Chris Bardis regarding extension of time to file responsive pleading to plaintiff’s Complaint.”
6/20/2017-. 1 hours by Mr. Valenti ($250/hr) for “Review email from Mark Ellis to John Cassinat regarding extension of time to file responsive pleading to plaintiff’s Complaint.”
6/21/2017- .1 hours by Mr. Valenti ($250/hr) for “Review email from John Cassinat’s office enclosing First Amended Complaint.”

6/27/2017- .1 hours by Mr. Valenti ($250/hr) for “Review multiple emails regarding potential service date of First Amended Complaint.”

Various entries on 8/29/2017 and 9/11/2017 and 10/6/2017-11/06/2017 related to a stipulation to file the SAC, reviewing the Court’s rejection of the stipulation and various tasks related to checking the status of the stipulation, etc. These entries are identified in the chart in Plaintiffs’ opposition at pp. 11:10-11, 11:13-17 and 11:20-12:9 and total .7 hours for Mr, Eliis, and 1 hour for Mr. Valenti.

The Court therefore reduces Mr. Ellis’ hours by .7, Ms. Nalbandyan’s by .1 and Mr. Valenti’s by 1.5 on the basis that these hours do not appear related to the anti-SLAPP.

Plaintiffs next argue that the hours should be reduced to eliminate excessive and duplicative hours. Plaintiffs have again prepared a chart highlighting the hours they believe were excessive or duplicative. (Oppo. 12:25-13:16.) Plaintiffs challenge a total of 5.2 hours on this basis. This includes 4.3 hours for Mr’ Ellis and .9 hours for Mr. Valenti. The Court does find some duplication of work here. Attorneys’ inefficient or duplicative efforts are not subject to compensation. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131. Specifically, numerous attorneys appear to have been conducting the same task (e.g. reviewing the SAC) and billing for work which appears excessive (e.g. “attention to service of second amended complaint”). The Court will thus reduce Mr. Ellis’ hours by an additional 2 hours and Mr. Valenti’s by an additional .5 hours on the basis that the hours were excessive, duplicative or not reasonably incurred.

Finally, Plaintiffs argue that Ms. Mahan-Crary’s 2.8 hours must be reduced because the work she performed was “secretarial”. The Court disagrees. Ms. Mahan-Crary’s entries show that she met with the attorneys regarding the case and prepared the exhibits for the anti-SLAPP motion. The Court does not agree that this is purely secretarial work and will allow these hours.

Taking into account the reduction in Mr. Ellis’ hourly rate and the reduction in hours identified above, the Court will award Defendant the following fees:

Anti-SLAPP motion:

-Mark Ellis: 33.8 (reduced from 36.5) hours at $400/hr (reduced from $600/hr) for a total of $13,520

-Anthony Valenti: 2.4 (reduced from 4.4) hours at $250/hr for a total of $600
-Aleysa Nalbandyan: 9.1 (reduced from 9.2) hours at $250/hr for a total of $2,275
-Paula Mahan-Crary (paralegal): 2.8 hours at $100/hr for a total of $280.

Anti-SLAPP fee motion:-Mark Ellis: 1 hour at $400/hr (reduced from $600/hr) for a total of $400

-Brett Beyler: 6.7 hours at $200/hr for a total of $1,340.
The total fees awarded for the anti-SLAPP motion and the instant fee motion is $18,415 reduced from the requested $27,520.

Defendant is also entitled to $60 in costs (motion filing fee) as to which no challenge was made.

The total award of costs and fees is $18,475.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.