Case Number: 19GDCV00317 Hearing Date: November 22, 2019 Dept: E

MOTION FOR ATTORNEY FEES (Anti-SLAPP) MOTION FOR MONETARY SANCTIONS

Date: 11/22/19

Case OS Pacific, LLC v. T-C Trio Apartments, LLC, et al. (19 GDCV00317)

TENTATIVE RULING:

I. MOTION FOR ATTORNEY FEES (ANTI-SLAPP)

Defendant Trio Pasadena, LLC’s Motion for Attorney Fees and Costs is GRANTED IN PART. The Court finds that defendant Trio Pasadena, LLC was the partially prevailing defendant on a special motion to strike under CCP § 425.16, entitling defendant to recover attorney’s fees and costs for that partial success, which eliminated one of three causes of action in plaintiff OS Pacific’s complaint.

With respect to the $31,976 in attorney fees requested by defendant, the Court finds that an award of $25,234 more appropriately reflects the time the Court finds was reasonably expended at a reasonable billing rate (1) to partly prevail on the anti-SLAPP motion and (2) to obtain the fee award. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)

Specifically, with respect to the anti-SLAPP motion, the Court finds that the hours and billing rates reflected in defendant’s summary of attorney fees (totaling $22,788.75) reasonably accounts for defendant’s expense in bringing the motion, with the exception of the amount spent in connection with preparing and filing an errata to the motion (i.e., $292.50, as reflected in Item Nos. 12, 14, & 15). (Martin Decl. ¶ 4 & Ex. 1.) The Court further concludes that amount ($22,496.25) should be subject to a multiplier of .8 to account for the partial success of the anti-SLAPP motion. In this regard, the Court notes that, although the motion was only successful as to one of the three causes of action against which it was brought, its success was significant and reasonably accounted for 80% of the time and effort to bring the entire motion. (See Lee Decl. ¶¶ 4-6.) Thus, the Court awards fees of $17,997 in connection the anti-SLAPP motion.

As for the motion to obtain fees, the Court finds reasonable fees to be $7,237, consisting of $3,187 to prepare the motion (see Martin Decl. ¶¶ 12-15), plus $4,050 to prepare a reply and appear at the hearing (4 hours at $405 to review opposition and prepare reply, .5 hours at $540 to review reply, and 4 hours at $540 preparing for, traveling to and attending hearing).

At this time, the Court does not award costs. That determination will be made in connection with an evaluation of defendant’s Memorandum of Costs seeking $11,383.07 and

plaintiff’s Motion to Tax Costs, which is scheduled to be heard on 12/6/19 in this Department.

II. MOTION FOR MONETARY SANCTIONS (DISCOVERY VIOLATIONS)

Defendant’s Motion for Monetary Sanctions of $120,518.26 Against Plaintiff and its Counsel, Jointly and Severally, for Discovery Violations is GRANTED IN PART.

For the reasons stated on the record on 10/7/19, the Court found plaintiff had abused the discovery process, as claimed in defendant’s Motion for Issue Sanctions made during trial. In so finding, the Court ruled, among other things, that defendant is entitled “to any and all fees and costs brought not only in connection with th[at] motion but all their failed prior attempts to obtain the discovery to which they were so clearly entitled, all of which in an amount to be determined by this court at a later date.” (10/30/19 Martin Decl. Ex. 2 at p. 52.) That date has arrived. And yet, while the issue before this Court is a narrow one, i.e., the amount of fees and costs to be awarded, plaintiff in opposition reargues the merits of the discovery violation and the Court’s chosen remedy (see Opp. at 4-12) and ironically devotes an entire section of its opposition to argue that defendant’s “MOTION IS ACTUALLY A MOTION FOR RECONSIDERATION.” (Opp. at 17.) The Court maintains its view that plaintiff and plaintiff’s counsel “have been negligent, if not reckless” in their conduct in discovery. (10/30/19 Martin Decl. Ex. 2 at p. 51.) Indeed, with respect to the withholding of certain discovery (the lease indemnification agreement), the Court adheres to its view that such conduct was willful. (10/30/19 Martin Decl. Ex. 2 at p. 53.)

The Court finds the reported billing rates and hours spent by defendant’s counsel to be reasonable and awards fees (minus $1,080 for two attorney hours at $540 per hour to account for double-billing of time spent at same hearing on the two fee motions) and costs (minus Westlaw charges) in connection with the following:

Motion to Compel Document Production: $13,602.23 (10/30/19 Martin Decl.¶¶ 22-30)
Motion for Issue and Evidence Sanctions: $10,994 (10/30/19 Martin Decl.¶¶ 41-48)
Informal Discovery Conference: $9,963.25 (10/30/19 Martin Decl.¶¶ 49-52)
Fee Motion: $13,204.50 (10/30/19 Martin Decl.¶¶ 61-68)

With respect to the fees and costs associated with the Motion for Issue Sanctions (During Trial), the Court does not find that all the claimed attorney hours spent preparing for and during trial should reasonably be included in connection with bringing that motion. The Court recognizes that some attorney time spent in connection with trial laid the groundwork for the motion, but much of the attorney time spent in connection with trial on 9/26/19 and 9/27/19 was entirely independent of the subject matter of the motion. With reference, in part, to the Summary of Invoices attached as Exhibit 1 to the 10/30/19 Martin Declaration, the Court awards $8,356.50 in connection with that motion, consisting of the following:

Line Item 126: $432 (Research and correspondence)
Line Item 127: $810 (Legal research and drafting)
Line Item 128: $324 (Correspondence and review)
Line Item 129: $2,470.50 (Drafting motion)
Line Item 130: $540 (Review of documents)
Four hours of trial time for attorney Martin at $540 per hour: $2,160
Four hours of trial time for attorney Lee at $405 per hour: $1,620

The Court declines to award any fees and costs in connection with: (1) Motion to Compel Deposition of Tenant’s PMQ and Ex Parte Application; and (2) Motion to Compel Deposition of Anthony Carrick. The subject matter of those motions does not directly relate to the discovery violations found. As for the Motion to Compel Further Responses to Document Requests, Set One, the Court already imposed monetary sanctions of $2,085 and declines to impose any further sanction.

In sum, monetary sanctions for discovery violations are awarded against plaintiff OS Pacific, LLC, and its counsel of record, jointly and severally, in the total amount of $56,120.48, payable within thirty days.