2013-00155479-CU-WT

Jaroslaw Waszczuk vs. The Regents of the University of Ca.

Nature of Proceeding: Motion for Attorney Fees

Filed By: Burkett, David P.

Defendants’ Michael Boyd, et al.’s motion for fees and costs pursuant to CCP § 425.16 (c) is granted as set forth below.

Defendants’ request for judicial notice is granted.

On April 14, 2015, this Court entered an order granting Defendants’ motion to strike the first through fourth causes of action in self-represented Plaintiff Jaroslaw Waszczuk’s second amended complaint and judgment was entered in their favor. The order also awarded Defendants’ fees and costs pursuant to CCP § 425.16(c) to be determined by a separate motion. Defendants’ motion for fees was ultimately stayed on August 12, 2015 by this Court given Plaintiff’s appeal. A remittitur affirming the judgment was issued on January 18, 2018, and Defendants’ re-noticed the motion for today’s date. The motion is based on the papers previously filed in connection with the 2015 hearing.

It bears noting what the Court of Appeal stated, preliminarily, in addressing Mr. Waszczuk’s appeal from the SLAPP motion underpinning this motion: “Plaintiff, a Polish immigrant, feels deeply aggrieved by the University of California (the University), his lawyer, the defense lawyer, and the trial judge. A brief excerpt from a letter he sent to the general counsel for the University reflects his bitterness as well as his belief that there is much more at stake than his mere wrongful termination lawsuit. [Waszczuk v. Regents of the Univ. of Cal., 2017 Cal. App. Unpub. LEXIS 6933 *1-2] …

While plaintiff’s pain is clear, his legal analysis is not.” (Id. at *3) Much like the appellate court, the Court perceives that nothing this Court can say will disabuse plaintiff of his “fiercely held belief.” (Id. at *9). Nonetheless, as will be addressed, this motion is not about the merits of Mr. Waszczuk’s claims, but rather whether defendant is entitled to fees under the statutes providing for such fees.

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.) [emphasis added]

The motion sought $32,738 in fees ($29,384 for the anti-SLAPP and $3,354 for the fee motion itself). In addition Defendants request $2,236 in fees for reviewing the opposition and preparing the reply.

“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.)

Plaintiff raises numerous arguments in opposition, yet none of them warrant denial of the instant motion. First the Court must note that the opposition memorandum exceeds the 15 page limit set forth in California Rules of Court Rule 3.1113 and Plaintiff failed to obtain an order pursuant to CRC Rule 3.1113(e) permitting an oversized memorandum. The Court has previously admonished Plaintiff for failing to comply with this rule.

At the outset, a large portion of Plaintiff’s brief is Plaintiff’s recitation of what he believes the facts show in this case, how he believes he has been mistreated by Defendants, and his belief that the anti-SLAPP motion was improperly granted. None of these issues have any relevance to the instant motion. Moreover, the Third District Court of Appeal has affirmed the judgment and it is now final. Plaintiff also recounts the issues he had with his former counsel, Mr. Stein, which are also not relevant to this motion. Plaintiff appears to contend that Defendants were aware of the issues he was having with his former attorney and that Defendants’ counsel was somehow collaborating with his former counsel to harm him (e.g., Defendants’ counsel supposedly were aware that Plaintiff’s former attorney filed the subject second amended complaint when his license was suspended). There is no support for this argument even if it were relevant to the limited inquiry at issue on this motion.

Plaintiff contends that Defendants cannot obtain any fees at all because they did not personally expend the fees and Defendants’ counsel has been paid by the Regents of the University of California. This is no bar to recovery. (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 284-285.) “We do not presume that the Legislature intended to create a disparity between defendants who advance their own attorney fees and those whose counsel look to an outside source for payment. In each case, the fees have accrued and can be recovered.” (Id., at 285.) “In conclusion, the plain language and purpose of section 425.16, as well as the decisional law, support the recovery of attorney fees that have accrued in representing the defendants here, notwithstanding counsel’s agreement not to look to defendants for payment.” (Id. at 287.)

Plaintiff next argues that Defendants are not entitled to recovery of fees for clerical work which he contends amounts to $4,852. Plaintiff, however, fails to specify which charges in the billing records represent clerical work. Conjecturally, it may be that Plaintiff is referring to the paralegal fees and law clerk fees set forth in the billing records. If so, these fees are recoverable. (Guinn v. Dotson (1994) 23 Cal.App.4th 262, 268-269.) In any event, courts have no duty to search the record for evidence; it

is the party’s duty to point out portions of the record that support his position. See, e.g. Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379; see also City of Lincoln v. Barringer(2002) 102 Cal.App.4th 1211, 1239; Salas v. Dep’t of Transportation (2011) 198 Cal. App. 4th 1058 [“We are not required to search the record to ascertain whether it contains support for [plaintiffs’] contentions.”]. .

Plaintiff next argues that fees for attorney Douglas Ropel from December 1, 2014 to January 23, 2015 should not be awarded because no record is shown that he represented Defendants (apparently because he was not listed on the captions of pleadings during that time). However, Defendants have provided declarations with billing records showing attorney Douglas Ropel performed legal work in connection with the anti-SLAPP motion.

Plaintiff next challenges the hourly rates charged for Defendants’ counsel. First he argues that attorney Douglas Ropel’s $260 hourly rate is inflated because at the time he was an associate attorney with little experience and is seeking the same rate as attorney Michael Pott who is a shareholder. Defendants’ declarations demonstrate that it charged the same rate ($260/hr) for all attorneys that worked on this case. (Burkett Decl. ¶ 4.) The fact that Defendants’ counsel may have charged the same rates for the attorneys with differing levels of experience does not render the rate unreasonable. Further this Court is well familiar with billing rates in this community and a $260 hourly rate is reasonable. Plaintiff’s citation to non-binding federal authority awarding $250/hr for partners and $150/hr for associates does not change this Court’s finding.

Plaintiff next argues that Defendants cannot be awarded fees in the amount of $7,630 which represent the fees incurred by Defendant responding to opposition papers filed by his former counsel Douglas Stein on December 23, 2014. Plaintiff argues that Defendants’ counsel was informed on December 16, 2014 that Douglas Stein no longer represented Plaintiff. However, as pointed out by Defendants in reply, Douglas Stein represented to Defendants’ counsel and the Court at an ex parte hearing on December 17, 2014 that he represented Plaintiff in asking for relief related to timely filing an opposition. (ROA 29) It was not until the Court issued a tentative ruling on January 6, 2015 continuing the anti-SLAPP motion to February 6, 2015 indicating that Plaintiff had filed declarations on December 29, 2014 stating that he terminated Douglas Stein as of December 16, 2014 that it was clear that Mr. Stein no longer represented Plaintiff. (ROA 45) The Court therefore disregarded the opposition filed by Douglas Stein, continued the anti-SLAPP motion to allow Plaintiff to file a new opposition and ordered Plaintiff to file a substitution of attorney. (Id.) But up until that time, the opposition filed by Douglas Stein was the only opposition on file for Defendants’ motion and they had no choice but to reply to it. Moreover, a substitution of counsel was not actually filed until January 14, 2015. (ROA 50.) On the facts presented, the Court will not disallow these fees.

Plaintiff’s “notice of objection” to Defendants’ supplemental declaration does nothing more than repeat the issues discussed above related to his previous counsel and the alleged collusion with Defendants’ counsel in addition to alleging that Defendants’ counsel had attempted to provoke him into a physical confrontation. The Court would note Defendants’ supplemental declaration merely indicated that this Court had previously stayed the hearing on the fees motion pending the appeal of the anti-SLAPP ruling and that the Third District Court had affirmed the decision granting Defendants’ anti-SLAPP motion. There was no basis to file an “objection.” Plaintiff

also requested a continuance of the instant motion until August 23, 2018 because he needs extra time to finish his motion to recall the remittitur issued by the Third District Court of Appeal and because he is seeking to file a third amended complaint. The Court declines the request to continue the fees motion.

Defendants are clearly entitled to their fees as the prevailing parties on their anti-SLAPP motion. (CCP § 425.16(c).) The Court is well familiar with the history of this action and the voluminous complaint and filings associated with the anti-SLAPP motion. To that end, the second amended complaint contained 165 paragraphs, many which contained subparagraphs and which covered many years of time and which were directed at many different parties and non-parties. In addition, after the anti-SLAPP was filed, two oppositions were filed, each with many exhibits. Moreover, Plaintiff filed motions for reconsideration and motions to dismiss Defendants’ anti-SLAPP motion which Defendants were forced to respond to. (Ropel Decl. ¶¶ 8-10, 12, 15-17.) Defendants seek $32,738 which represents 94.4 hours of attorney time, 43.2 hours of law clerk time and 5.2 hours of paralegal time. The following attorneys/legal assistants worked on this matter in connection with the anti-SLAPP motion and charged the following rates:

-Michael W. Pott worked 31.5 hours at $260/hr for a total of $8,190

-David P.E. Burkett worked 1.2 hours at $260/hr for a total of $312

-Douglas L. Ropel worked 61.7 hours at $260/hr for a total of $16,042
-Douglas L. Ropel (as a law clerk) worked 43.20 hours at $100/hr for a total of $4,320 -Marilyn Gamper (paralegal) worked 5.2 hours at $100/hr for a total of $520.

The Court concludes that the hourly rates are reasonable. However, after a careful review of the declarations and billing records, the Court does find that a reduction is required in the number of hours. To that end, the billing records are replete with block billing and contain a level of vagueness that suggests a duplication of efforts. The Court will not conduct a line by line analysis of the billing records in this ruling but simply notes that they fail to demonstrate that all of the 142.8 hours are reasonable.

Given the Court’s review of this matter and its familiarity with anti-SLAPP motions in general, the Court will award the following hours: Michael W. Pott 25 hours at $260/hr (reduced from 31.5) for $6,500; David P.E. Burkett 1.2 hours at $260/hr (no reduction) for $312; Douglas L. Ropel 40 hours at $260/hr (as an attorney) (reduced from 61.7 hours) for $10,400; Douglas L. Ropel 30 hours at $100/hr (as a law clerk) (reduced from 43.2 hours) for $3,000; and Marilyn Gamper 5.2 hours at $100/hr (no reduction) for $512. The hours awarded for the work associated with the anti-SLAPP motion and the instant fee motion are 101.4 which is reduced from 142.8 for a total of $20,724.

Defendants are also entitled to $166.20 costs in connection with the anti-SLAPP motion.

In addition, the Court will award Defendants an additional 3 hours at $260/hr for work associated with the reply for a total of $780.

The total award of costs and fees is $22,284.