Lawzilla Additional Information:
Per the Los Angeles court records plaintiff is represented by attorney Michael Blue.

Case Number: BC580579 Hearing Date: May 17, 2018 Dept: 34

SUBJECT: Motion for attorney’s fees on appeal

Moving Party: Defendants Knox Ricksen LLP; Thomas E. Fraysse; and Eric J. Danowitz

Resp. Party: Plaintiff John Larson

The motion is GRANTED in part. Defendants are awarded attorney fees of $164,340.00 and costs of $1,102.58.

BACKGROUND:

Plaintiff commenced this action on 05/01/15. On 06/19/15, plaintiff filed a First Amended Complaint against defendants for: (1) extortion; (2) attempted extortion; (3) intentional infliction of emotional distress; (4) intentional misrepresentation; (5) interference with contractual relations; (6) interference with prospective economic advantage; (7) civil conspiracy; and (8) violation of Business & Professions Code § 17200.

Defendants’ special motion to strike (Anti-SLAPP) was granted on 12/14/15. (See Minute Order of 12/14/15.) On 01/05/16, Judge Michael Johnson dismissed the action against all defendants.

Plaintiff appealed the trial court’s ruling on the special motion to strike. On 11/16/17, the Court of Appeal affirmed the decision and awarded attorney fees and costs on appeal to defendants. The Remittitur was filed in this Court on 02/20/18.

ANALYSIS:

Defendants move the Court for an award of attorney fees and costs as the prevailing party in plaintiff’s appeal of the trail court’s ruling on the anti-SLAPP motion. Defendants request $168,190.00 in attorney fees and $1,102.58 in costs. (See Notice of Motion, p. 2:10-14.)

Relevant Law

A notice of motion to claim attorney’s fees on appeal must be served and filed within 40 days after the clerk sends notice of issuance of the remittitur. (Cal. Rules of Court, rules 3.1702(c)(1), 8.278(c)(1).) Here, the remittitur was filed on 02/20/18 and defendants filed their motion on 03/27/18. The motion is timely.

The prevailing party in an appeal is entitled to recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

“Unless the appellate court orders otherwise, an award of appellate costs does not include appellate attorney fees or preclude a party from seeking them.” (Eisenberg, Cal. Prac. Guide Civ. App. & Writs (The Rutter Group 2017) ¶ 14:112; See Cal. Rule of Court, rule 8.278, subd. (d)(2).) As in trial court litigation, attorney fees on appeal are recoverable if authorized by contract, statute or ‘law.’” (See Code Civ. Proc. § 1033.5(a)(10)(A),(B),(C); Serrano v. Unruh (1982) 32 Cal.3d 621, 637.)

“Statutory authorization for the recovery of attorney fees incurred in trial court proceedings necessarily includes attorney fees incurred on appeal . . . unless the statute specifically provides otherwise. The statute need not expressly authorize attorney fees on appeal. (Eisenberg, supra, at ¶ 14:114; Morcos v. Board of Retirement of County of Los Angeles Employee’s Retirement Ass’n (1990) 51 Cal.3d 924, 927.) “Conversely, where, pursuant to statute, attorney fees are not recoverable in the trial court proceeding, they ‘necessarily’ are not awardable on appeal therefrom. [Citation] — ‘since we have concluded plaintiff was not entitled to an award of attorney’s fees by the trial court . . . plaintiff is not entitled to attorney’s fees on appeal.’” (Eisenberg, supra, at ¶ 14:114a; Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 558.)

Code of Civil Procedure section 425.16(c) provides for an award of attorney fees to defendants who prevail on a special motion to strike and “also permits the recovery of attorney’s fees and costs incurred by the prevailing party in the appeal of an anti-SLAPP motion.” (Burke, Anti-Slapp Litigation (The Rutter Group 2017) § 2:96; See Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499.) “Courts generally use a ‘lodestar’ approach . . . in setting an attorney’s fee award under” section 425.16. (Burke, supra, at § 2:100; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1136.)

The attorney bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5).) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Martino, 182 Cal.App.3d at 559.)

Finally, “fees and costs incurred in collecting on the judgment for anti-SLAPP fees and costs are also recoverable on a noticed motion.” (Burke, supra, at § 2:98; See Lucky United Properties Inv., Inc. v. Lee (2010) 185 Cal.App.4th 125, 138.)

Discussion

On 11/16/17, the Court of Appeal affirmed the trial court’s ruling in favor of defendants and ordered that “[r]espondents are to recover their attorneys’ fees and costs on appeal in an amount to be determined by the trial court.” (RJN, Exh. 2, p. 34.)

The number of hours requested is reasonable

Defendants have submitted a declaration which states that their counsel spent 261.1 hours working on the appeal between February 2016 and February 2018. (See Chamberlain Decl. ¶ 32.) They further declare that their counsel spent 15.4 hours working to enforce the trial court’s Jan. 5, 2016 award of attorney fees. (Ibid.) Finally, defendants declare that their counsel will spend 29.3 hours in connection with the instant motion. (Ibid.) This evidence is sufficient to support an award of attorney fees. (See Martino, supra, at 559.)

Plaintiff opposes the motion on the ground that the number of hours that defense counsel spent on this case is unreasonable. Plaintiff’s counsel declares that it is his “understanding the reasonable fee for an appeal is often under $50,000.” (Blue Decl., ¶ 4.) Such a statement lacks foundation; according to his declaration, Mr. Blue has “approximately eight years of experience in civil litigation and ha[s] represented several clients regarding anti-SLAPP motions.” (Amd. Blue Decl., ¶ 3.) Mr. Blue presents no evidence that he is an expert in appellate litigation or appellate fees. Further, Mr. Blue’s “understanding” is irrelevant.

Mr. Blue further declares that the fee request is unreasonable because plaintiff’s appellate brief was nearly three times the length of defendants’ brief but it only took Mr. Blue half the time to complete his briefs. (See Amd. Blue Decl., ¶¶ 5-6.) Apparently Plaintiff’s brief, even though substantially longer than Defendant’s brief, was not nearly as persuasive to the Court of Appeal. This Court is reminded of the statement of Blase Pascal, the 17th century French mathematician, physicist, inventor, writer and Catholic theologian: “Forgive me for writing such a long letter; I did not have the time to make it shorter.” (Blase Pascal, Lettres Provinciales, 1657.)

Plaintiff also argues that the fees are excessive because in another, “considerably [more] complicated case” addressing a “newly developed area of law (i.e., The Communications Decency Act of 1996)” the “Court awarded 50 hours to the prevailing defendant.” (Opposition, p. 5:2-13; See Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242.) There
are two problems with this argument.
First, the $23,000 in attorney’s fees that was awarded to the prevailing
defendant in Maughan was awarded by the trial court in the underlying anti-SLAPP
motion. The Court of Appeal found that
there was no prevailing party on appeal, and hence did not award attorney’s
fees on the appeal. (Id.) So this citation is irrelevant.
Further, and perhaps more importantly, such selective citation to one case in
which a court awarded lesser fees is not persuasive.

Plaintiff’s argument fails to raise a proper challenge to defendants’ request. “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Lunada Biomeical v. Nunez (2014) 230 Cal.App.34th 459, 488 [quoting Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 564].)

As the parties are aware, this case was reassigned to Dept. 34 after the retirement of the Hon. Michael Johnson. This Court did not hear the anti-SLAPP motion and did not read the briefs submitted to the Court of Appeal. As indicated above, if Plaintiff believed that the number of hours spent by the attorneys was unreasonable, it was plaintiff’s counsel’s obligation to “point to the specific items challenged.” This he did not do. While this Court might quibble with particular fee entries – e.g., it appears somewhat excessive to charge 20.3 hours to draft the attorneys fees motion – it is not this Court’s job to do the work of the opposing party to this motion.

Nonetheless, it appears that no reply has been filed; therefore counsel’s request for 9 hours in attorneys fees for filing a reply and attending the hearing cannot stand. The Court will grant counsel 3 hours to attend the hearing, and thus reduce the requested attorneys fees by $3,850.00 (7 hours @ $550.00/hour).

$550 per hour is a reasonable rate for these attorneys

Defendants “request that the court set the ‘market’ lodestar rate at $550 per hour.” (Motion, p. 13:5.) In support of this request, defendants note that these are actually “discounted hourly rates [for] the three certified appellate specialists who primarily handled this sophisticated First Amendment litigation in the trail court and on appeal.” (Id. at p. 12:23-25.) These three specialists “have over 100 years of specialized appellate experience, their work has contributed to precedents defining litigation privileges and immunities, anti-SLAPP procedure and constitutional law in many prior cases before this one.” (Id. at p. 12:27-13:4; Chamberlain Decl., ¶¶ 3-7, 27-30; Exh. A.) Notably, the trial court’s ruling in favor of defendants has already concluded that $550 per hour is a reasonable rate in this case. (See Minute Order of 12/14/15, p. 14, ¶ 1.)

In his opposition, plaintiff spends a significant portion of his 3½-page memorandum arguing that an attorney named Peter Scalesi should not recover more than $200-$250 per hour for his work in this case. (See Opposition, p. 6:1-9.) There is no indication that defendants seek to recover any amount of fees for Mr. Scalesi’s work on the appeal. Defendants’ declaration suggests that all of the hours spent on the appeal are attributable to Harry W.R. Chamberlain II and Robert M. Dato. (See Chamberlain Decl, ¶ 32.) Plaintiff does not raise any objection to their request to be compensated at $550 per hour.

The Court concludes that $550 per hour is a reasonable rate in this case.

Costs

Defendants have submitted a verified memorandum of costs indicating that they incurred $1,102.58 in costs associated with the appeal. Plaintiff has not challenged these expenses. Accordingly, defendants’ costs are awarded in full.

Conclusion

The motion is GRANTED in part. Defendants are awarded attorney fees of $164,340.00 and costs of $1,102.58.