Lawzilla Additional Information:
Per the Los Angeles court records plaintiff is represented by attorney Jackie Rose Kruger of the Kruger Law Firm who is responsible for the legal work being sanctioned by the court.

Case Number: BC626749 Hearing Date: April 06, 2018 Dept: 74

SCOTT DUNCOMBE,

Plaintiff,

vs.

BARFRESH FOOD GROUP, INC.,

Defendant

Case No.: BC626749

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR ATTORNEY FEES

TENTATIVE RULING: Barfresh’s motion for attorney fees is granted, in part. Fees in the amount of $15,515.00 related to Barfresh’s opposition to the anti-SLAPP motion to strike the cross-complaint are awarded. Barfresh’s request for fees related to the motion to set aside default is denied.

Motion to Set Aside Default

Rule 3.1702(b)(1) of the California Rules of Court provides that a motion for attorney’s fees incurred “for services up to and including the rendition of judgment in the trial court . . . must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case.” Rule 8.104(a)(1) provides that a notice of appeal must be filed on or before 60 days after service of the notice of entry of judgment or 180 days after entry of judgment, whichever occurs earliest. Here, notice of ruling on the motion to set aside default was filed and served on July 26, 2017. It follows, then, that a motion for attorney’s fees and costs in connection with the motion to set aside default must have been filed on or before 60 days after July 26, 2017, or September 24, 2017. The initial notice of motion did not include a request for fees and costs under section 473, subdivision (b), but even if it had, the motion would still be untimely because it was not filed until November 30, 2017, more than two months past the deadline.

California Rules of Court, rule 3.1702(d) provides “[f]or good cause, the trial judge may extend the time for filing a motion for attorney’s fees.” Therefore, the Court may consider the merits of an untimely motion for attorney’s fees, but Barfresh has provided the Court with no information as to why this motion was not timely filed. This is particularly noteworthy considering the initial notice of motion did not include a request for attorney’s fees under section 473, meaning that the motion for attorney’s fees under this section was in fact filed on March 12, 2018, nearly six months after service of the notice of ruling on the motion to set aside.

Barfresh has failed to articulate any facts that would allow the Court to find good cause to allow the late filing of its request for attorney’s fees under section 473, subdivision (b). Accordingly, the motion for attorney’s fees under Code of Civil Procedure section 473, subdivision (b), is DENIED.

The Anti-SLAPP Motion

Barfresh also moves for attorneys’ fees under the anti-SLAPP statute, which requires the Court to “award costs and reasonable attorney’s fees to a plaintiff prevailing on” an anti-SLAPP motion to strike where “the court finds that a special motion to strike [was] frivolous or [was] solely intended to cause unnecessary delay.” (Code Civ. Proc., § 425.16, subd. (c)(1).)

A motion is “frivolous” within the meaning of section 425.16, subdivision (c)(1) where the anti-SLAPP motion to strike was “totally and completely without merit.” (See Code Civ. Proc., § 128.5, subd. (b)(2).) The Court finds that cross-defendants’ anti-SLAPP motion to strike was frivolous such that an award of fees and costs is appropriate because, as discussed during the hearing, the motion to strike did not address any of the specific causes of action contained within the cross-complaint. The motion also failed to provide any grounds upon which the Court could find that the cross-complaint arose out of protected activity, as cross-defendants only stated that the cross-complaint was filed in response to the complaint, which is true of every cross-complaint. Although cross-defendants provided communication from the opposing party that “threatened” filing a cross-complaint, the communication did not establish that the cross-complaint was filed to chill protected speech, as it shows only that the cross-complainant hoped to resolve the matter without filing a cross-complaint. (See Exs. A, B, attached to Cross-Defs.’ Mot. to Strike.) The allegations of the cross-complaint concern a business dispute which cannot be resolved, and cross-defendants’ arguments consisted only of conclusory statements without evidentiary support. Therefore, the Court finds that cross-defendants’ anti-SLAPP motion to strike was “totally and completely without merit” such that an award of attorney’s fees and costs is proper.

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.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “[A] computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.” (Margolin v. Reg’l Planning Comm’n (1982) 134 Cal.App.3d 999, 1004.)

Barfresh asks for attorney’s fees and costs in the amount of $17,710.60 related to the anti-SLAPP motion to strike, which represents 31.80 hours of work at a rate of $550.00 per hour. Notably, the billing sheet submitted in support of this motion contains only six entries that inadequately describe counsel’s work, and counsel’s declaration does not provide any further detail. While the time spent at the hearing on the motion to strike is reasonable, the rest of the entries contain multiple tasks, sometimes repeated; for example, counsel includes one entry to make multiple phone calls plus draft and research the opposition, and there is another entry to “prepare declaration” as part of a 10.70 hour block with an additional 0.7 hours spent completing, filing, and serving the declarations. The billing sheet also contains multiple entries for researching and drafting the opposition to the motion to strike such that the Court cannot discern whether counsel performed the same task more than once. “Trial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not.” (Heritage Pac. Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010.) In light of the repeated entries and block billing of 6, 8, and 10 hour blocks, the Court exercises its discretion to reduce the requested amount of hours by 3 hours based on multiple entries for researching anti-SLAPP authority, and by 0.7 hours based on multiple entries for drafting declarations without indication as to what work was accomplished when. The Court also deducts the request for costs related to a filing service to $60.00, as counsel provides no information as to why the cost amounted to $220.60. The Court notes that while cross-defendants argue that Barfresh could have used an associate at a lower hourly rate, there is no information before the Court that shows an associate was already working on this case, and there is no requirement that certain tasks be performed by an associate where there is no associate assigned to the case. Therefore, Barfresh is entitled to 28.1 hours at a rate of $550.00 per hour, plus $60.00 in costs, for a total award of $15,515.00.