Case Number: BC479461    Hearing Date: April 23, 2014    Dept: 32

CASE NAME: Jade Fashion & Co., Inc. v. Harkham Industries, Inc., et al.
CASE NO.: BC479461
HEARING DATE: 04/23/14
DEPARTMENT: 32
SUBJECT: Motion for Attorney’s Fees Pursuant to CCP § 425.16(c)
MOVING PARTY: Plaintiff and Cross-Defendant Jade Fashion & Co., Inc. (“Jade” or “Plaintiff”)
RESP. PARTY: Defendant and Cross-Complainant Harkham Industries, Inc. (“Harkham” or “Defendant”)

TENTATIVE RULING

Motion for Attorney’s Fees Pursuant to CCP § 425.16(c) GRANTED in the reduced amount of $28,086.50.

ANALYSIS

Jade’s Request for Judicial Notice

Exhibit 1-2 – GRANTED.

Motion for Attorneys’ Fees

Prevailing Parties on Anti-SLAPP Motion

The first issue is whether Jade is entitled to attorney’s fees even though its attorneys, Cross-Defendants Resch Polster & Berger LLP and Sandra Khalili, also brought the anti-SLAPP motion and responded to the appeal. A prevailing defendant as to a special motion to strike is entitled to mandatory, reasonable attorney fees and costs. (CCP §425.16(c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 -1142.) “An attorney who represents him- or herself in propria persona is not entitled to be compensated for the time spent to litigate the lawsuit.” (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 523.) However, this principle does not apply where, as here, the attorney or law firm is a co-defendant of a client and brings an anti-SLAPP motion on behalf of both the attorney and client. (Id. at 523-524 [awarding SLAPP fees where the attorney was a co-defendant with the client].) Here, the undisputed evidence reflects that the SLAPP motion was brought jointly by Jade and its co-defendant counsel. (See Mot. Exh. A; RJN Exh. 1; Oppo. Exh. K-L.) The opposition is unpersuasive because Harkham seems to argue that Jade’s attorneys are seeking attorney’s fees on this motion, which they are not. Also, contrary to Harkham’s suggestion, the cross-complaint named Jade as a defendant to all cross-claims. (See Oppo. 5.)

Accordingly, Jade is entitled to all reasonable attorney’s fees incurred in responding to the appeal.

Lodestar Fees

“The 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.) If the motion is supported by evidence, the opposing party must respond with specific evidence showing that the fees are unreasonable. (Premier Med. Mgmt. Sys. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 560-63.) The Court has discretion to reduce fees that result from inefficient or duplicative use of time. (Horsford at 395.)

“The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’” “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)

Jade submits evidence that four attorneys spent a total of 74.2 hours on the appeal. Attorney Meyer spent 1 hour on the appeal; attorney Barnes spent 10.30 hours; and attorneys Byerts and Khalili spent 32.30 and 30.60 hours, respectively. (Mot. Exh. C.) Meyer billed at $250/hour; Barnes billed at $425/hour; Byerts billed at $295/hour; and Khalili billed at $390/hour. Jade also seeks to recover $3,510 in fees in litigating the instant fee motion. (Khalili Decl. ¶ 10.)

Jade has submitted evidence to show the reasonableness of the hourly rates requested. (See Khalili Decl. ¶¶ 11-12.) Barnes, Khalili, and Byerts have been admitted to practice law in California since 1980, 1997, and 2002, respectively. Barnes and Byerts received their law degrees from UCLA School of Law, while Khalili received her law degree from Loyola University. Meyer completed her law degree at Tulane University and is also admitted to practice law in California. The hourly rates requested are reasonable based on the educational qualifications and years of practice for Jade’s attorneys. Harkham has asserted no argument in opposition to the contrary.

Jade’s counsel has verified billing records showing that 74.2 attorney hours were incurred related to the appeal, and further explained why this amount of time was needed in her declaration. She indicates that Jade was required to file a motion to strike portions of Harkham’s Appendix and Request for Judicial Notice, and that such motion was granted. (Khalili Decl. ¶ 13.) The billing records reflect a reasonable use of time for an appeal of this complexity.

Harkham contends that Jade unreasonably used four attorneys in handling the appeal. However, Meyer only worked one hour on the appeal, which is de minimis. Barnes, the most senior attorney with the highest billing rate, billed only 10.30 hours, and 4 fours of his hours were spent arguing the appeal at oral argument. Thus, the vast majority of the hours were incurred by only two attorneys. This distribution of work does not appear unreasonable.

Harkham contends that Jade’s prior requests for attorney’s fees have been reduced, and that Jade’s Respondent’s Brief on appeal was substantially similar to its anti-SLAPP motion at the trial court level. (Oppo. 6-7.) The reasonableness of Jade’s fee request must be based on the complexity of the appeal, the billing records for the appeal, and the declarations of counsel. The prior attorney fees rulings are not dispositive. Other than the appearance of two attorneys for Jade at oral argument, Harkham has not identified any billing entries it contends are unreasonable. (Oppo. 6.) The appearance of two attorneys at oral argument was not unreasonable given that Barnes, as the most senior attorney, argued the appeal, while Khalili appeared in support, in part because she was a named co-defendant. Khalili Decl. ¶ 12.) Although the Respondent’s Brief and anti-SLAPP motion discussed many of the same cases and legal issues, they were not identical. (Oppo. Exh. K, L.) The appellate briefing required an appendix and a specific response to the arguments raised in the Opening Brief, as well as a motion to strike portions of Harkham’s Appendix and Request for Judicial Notice. Thus, Harkham fails to show that the amount of hours requested is unreasonable.

Finally, and considering the arguments made in opposition and reply, Jade’s request for $3,510 in fees related to the instant motion is reasonable. (Khalili Decl. ¶ 10 [9 hrs x $390/hr].) However, the Court notes that Khalili had already requested 2.9 hours ($1131 in fees at $390/hr) related to appellate SLAPP fees and that Byerts incurred .9 hours on research related to appellate SLAPP fees ($265.5 in fees) in the calculation of the attorneys’ fees for the appeal as reflected in the billing records. Accordingly, as these fees appear duplicative, the Court reduces the total fee award by $1,396.50. (Mot. Exh. C.)

The motion is GRANTED in the reduced amount of $28,086.50 ($29,483 – $1,396.50).