2017-00223097-CL-DF

Kathryn L. Gerwig vs. Patrick De Alva

Nature of Proceeding: Motion for Attorney Fees

Filed By: Valenti, Anthony P.J.

The Motion for Attorney Fees and Costs filed by Defendants Patrick DeAlva and Nancy DeAlva (“Defendants”) is UNOPPOSED and is GRANTED.

Defendants present this motion to the Court following the Court granting Defendants’ anti-SLAPP motion on July 17, 2018. In its ruling, the Court noted that this anti-SLAPP motion was Plaintiff’s second chance to oppose the merits of Defendants’ motion.

Plaintiff filed this lawsuit on December 4, 2017, alleging a sole claim for malicious prosecution arising out of Defendants’ underlying lawsuit against her for property damage to their vehicles. Defendants prevailed in the underlying lawsuit. In this case, Defendants originally filed their special motion to strike pursuant to Code of Civil Procedure section 425.16 on February 8, 2018. Plaintiff did not oppose that motion, nor did she oppose contest the Court’s tentative ruling in Defendants’ favor , issued March 12, 2018. Since Plaintiff did not oppose the tentative ruling, the tentative ruling became the order of the Court on March 13, 2018. Thereafter, Plaintiff filed a ‘response” claiming she was never served with the moving papers.

Plaintiff then filed a motion to “set aside default” even though the Court had never entered default against her. The Court construed Plaintiff’s motion as a request to set aside its order regarding the unopposed anti-SLAPP motion. Rather than contest whether service on Plaintiff was properly effected, Defendants filed anex parte application to set aside the Court’s order granting their motion and to reset the hearing

on the anti-SLAPP motion to permit Plaintiff to properly oppose the motion.

With Plaintiff’s approval, the Court granted Defendants’ex parteapplication on June 8, 2018. In so doing, the Court vacated its prior ruling on the anti-SLAPP motion and set a new hearing date of July 18, 2018. Plaintiff was ordered to file her opposition to the motion on or before July 6, 2018, and Defendants were ordered to file their reply no later than July 11, 2018.

Despite being given asecond opportunity to oppose the motion, Plaintiff failed to do so and instead filed a “Motion for Change of Plea Designation and Complaint for Damages.” Therein, Plaintiff sought leave to amend her complaint, and designated the same hearing date (July 18, 2018) as was set for Defendants’ anti-SLAPP motion. As the Court noted in its tentative ruling, issued July 17, 2018, Plaintiff’s motion had to be dropped because in substance it was a noticed motion and was untimely filed and served. Further, to the extent that the Court considered Plaintiff’s motion as an opposition (which it was not), it did not address any portion of the merits of Defendant’s special motion to strike. Finally, as the Court noted, as a matter of law, a plaintiff cannot avoid a pending anti-SLAPP motion by filing, or seeking to file, an amended complaint. (See, e.g.,APR Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc.(2006) 138 Cal.App.4th13078, 1323.) In light of Plaintiff’s failure to oppose the motion in any fashion, the Court reinstated its prior tentative ruling, granting the motion to strike.

The Court entered judgment in favor of Defendants on August 3, 2018.

Defendants now seek to recover $10,510.00 in fees related to the motion to strike, $1,500.00 in fees related to this motion, and $1,050.00 in costs.

A defendant who is successful in striking a plaintiff’s complaint pursuant to Code of Civil Procedure section 425.16 is entitled to amandatoryaward of attorneys’ fees. (Code Civ. Proc. § 425.16(c) [“… a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys’ fees and costs …”].) The amount of recoverable fees is the reasonable amount of fees incurred by the successful defendant in eliminating itself from the litigation. (Dove Audio, Inc. v. Rosenfeld, Meyer

& Susman(1996) 47 Cal.App.4th777, 785 [“This section authorizes the court to make award of reasonable attorney fees to a prevailing defendant, which will adequately compensate the defendant for the expense of responding to a baseless lawsuit.”].) While the language of subdivision (c) is ambiguous, a Senate Committee on the Judiciary report and a Senate floor report showed that the Legislature intended that a prevailing defendant be allowed to recover fees and costs only on the motion to strike,

not the entire suit. (Lafayette Morehouse, Inc. v. Chronicle Publishing co.(1995) 39 Cal.App.4th 1379.)

The Court notes that Plaintiff filed an untimely Opposition to Defendants’ instant motion. The Court received Plaintiff’s motion on Friday, January 4, 2019, for a hearing that was originally set for Monday, January 7, 2019. The Court is under no obligation to consider late-filed papers. (CRC 3.1300.) Nonetheless, and despite that fact, the Court has reviewed Plaintiff’s purported Opposition and finds that the papers do not, in fact, oppose Defendants’ motion in any respect. Rather, Plaintiff addresses only her status as a litigantin propria personaand her desire to be excused from payingany fees and costs that the Court may choose to award to Defendant.

The Court is not unsympathetic to Plaintiff’s position in either regard, but nevertheless is bound by established legal precedent. First, although Plaintiff represents herself in this actionin propria persona,self-represented litigants are not entitled to special treatment. (Nelson v. Gaunt(1981) 125 Cal. App.3d 623, 638-639.) While Plaintiff is self-represented and no doubt has little or no legal training, self-represented litigants are required to follow the same procedural rules that govern civil litigation. (McComber v. Wells(1999) 72 Cal.App.4th 512, 522-523.) A party representing himself or herself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba(2004) 122 Cal.App.4th 1229, 1246-1247;Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210). In other words, Plaintiff’s failure to file a substantive opposition here and with regard to the underlying motion to strike is accorded the same treatment as would any other party engaging in the same conduct who was represented by counsel. Second, by the very terms of section 425.16, the award of fees and costs to a party who successfully filed a special motion to strike is mandatory, not discretionary. (Code Civ. Proc. § 425.16(c);Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 215.) Since Plaintiff has not substantively opposed the merits of Defendants’ motion for fees and costs, the Court examines the reasonableness of the award requested.

When setting a fee award under section 425.16(c), courts generally apply a “lodestar” approach. (Ketchum v. Moses(2001) 24 Cal.4th1122, 1131-1132;Church of Scientology v. Wollersheim(1996) 42 Cal.App.4th628, 658-659,disapproved on other
grounds[upholding $130,000 award of attorney fees pursuant to § 425.16(c) lodestar
method].) Lodestar figures are calculated by multiplying the number of hours
reasonably spent by the reasonable hourly rate for each attorney. (Ketchum, 24 Cal.4th
at Serrano1132; v. (1977)Priest 20 Cal.3d 25, 48-49.) The reasonableof
attorneyfees is withinthe discretionof the trial court and is to be determinedfroma
considerationof multiplefactors,such as: (1) the nature of the litigation;(2) th
complexityof the issues;(3) the experienceand expertiseof counsel;and, (4) th
amount of time involvedWilkerson(. Sullivan. (2002) 99 th 44
Cal443,.App.4
[appropriatenumberof hours includesall time “reasonablyexpendedin pursuit of th
ultimate result achievedin the same manner that an attorneyis tra
compensatedby a fee paying client for all the time reasonablyexpendedon a
matter”].)In addition,out-of-pockexpetnsesof the type normallybilled to fe
clients are addedto the lodestarfigures,as is the time spent preparingthe fe
application. Ketchum( , 24 th 1133 Serrano[citing v. (1982)Unruh 32 C
Calat.4
621, 633] [“absentcircumstarencderingsthe award unjust, an attorneyfee aw
should ordinarilyinclude compensationfor all the hours reasonablyspent, in
those relating solely to the fee” motion].)
Here, counselfor Defendantsidentify an hourly rate of $400/hourfor principalatt
Mark Ellis and $250/hourfor associateattorneysAnthonyValenti and Brett Be
Plaintiffshas not opposedthis motionat all, and the Court finds these rates to be
reasonable based on counsels’ respective legal experience and expertise.
With regard to the time expendedby defensecounselrelated to the an
motion, the Court has carefullyreviewedthe billing recordssubmittedin supportof
Defendant’smotion.The Court notes that its own review of the Complaint,the ca
history (whichis all connectedin some way to the anti-SLAPPmotion),and reviewof
the anti-SLAPPmotion and related opposition,reply and all supportingdo
took a significamountof time. Further,the Court concludesthat defenseco time spent in preparing this motion is also reasonable. For counsel to now request compensation of $10,510 for attorney time appears eminently reasonable under the circumstances.

With regard to fees pertaining to theex parteapplication, Plaintiff’s failed attempt to amend the Complaint, and Defendants’ subsequent reply, the Court finds that these fee-incurring activities are sufficiently related to the anti-SLAPP motion itself as to warrant compensation under section 425.16(b). InWanland v. Mastagni(2006) 141 Cal.App.4th15, a successful anti-SLAPP defendant sought an award of attorney fees for an appeal, which included opposing plaintiff’s undertaking to stay enforcement while the appeal was pending. The appealing plaintiff argued that the anti-SLAPP defendant was not entitled to an award of attorneys’ fees for litigating the undertaking. The Third District Court of Appeal disagreed, observing:

Section 425.16 subdivision (c) is intended to compensate a defendant for th expense of responding to a SLAPP suit. To this end, the provision ‘is broad construed so as to effectuate the legislative purpose of reimbursing the prevailin defendant for expenses incurred in extracting himself from a baseless lawsuit.’ an award of costs and attorney fees is not permitted for a challenge to a inadequate undertaking submitted to stay enforcement of an award of attorne fees under section 425.16, subdivision (c, the protection provided to a defenda who is brought into court for exercising free speech and petition rights would b compromised. This would be inconsistent with the Legislature’s directive th section 425.16 be broadly construed to encourage continued participation in fre speech and petition activities.

(Wanland, 141 Cal.App.4th at 22 [internal citations omitted].)

The Court concludes that the same reasoning stated by the Third District appellate court inWanland applies to Defendants’ fees and expenses incurred in this case. The fees Defendants request here are clearly related to the special motion to strike and therefore are subject to recovery under section 425.16(b).

In addition, the Court notes that Plaintiff does not challenge Defendants’ request for costs in the amount of $1050.00, which includes $515.00 filing fees as to each Defendant related to the motion to strike, and also filing fees related to the motion to ex parte application and the instant motion. The Court considers Plaintiff’s failure to oppose these costs as a concession to the veracity and reasonableness thereof.

For the foregoing reasons, Defendants’ motion for attorney fees and costs is GRANTED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.