Case Name:   Hindi v. Crowley, et al.

 

Case No.:       1-14-CV-261719

 

Motions for Attorney Fees and Costs by Defendants John Kevin Crowley and Crowley & Brereton and by Defendant Tenenbaum, Crowley & Brereton

 

            Defendants bring these motions pursuant to Code of Civil Procedure section 425.16(c) on the ground that they were prevailing parties on their special motion to strike. Plaintiff does not dispute that Defendants are prevailing parties and that they are entitled to recover fees and costs, but challenges the amount of the awards sought.

 

1. Motion for Attorney Fees and Costs by Defendants John Kevin Crowley and Crowley & Brereton

 

John Kevin Crowley and Crowley & Brereton (collectively, Crowley) seeks $116,530.52 in attorney fees and costs incurred in: 1) making the special motion to strike; 2) opposing Plaintiff’s motion for limited discovery under section 425.16; 3) opposing Plaintiff’s motion for reconsideration; and 4) making the current motion.  The motion is supported by Declarations of David Helbraun and Daniel Hager.  The Request for Judicial Notice filed with the Reply is relevant to matters raised in Plaintiff’s Opposition and is granted.

 

Plaintiff argues that the fee request should be stricken with respect to all services provided by Mr. Hager because he was not counsel of record and because he was retained by Mr. Helbraun rather than by Crowley.  This court is aware of no requirement that counsel be named on the pleadings for time to be compensable in a fee motion.  To the contrary, fee motions (although not this one) routinely seek fees for time spent by paralegals who of course are not on the pleadings.  Nor is the court aware of any requirement that counsel be retained by the client rather than by counsel of record.  Plaintiff provides no authority for either proposition, except one bankruptcy court case addressing counsel’s obligation to advise the client when other counsel are brought into a case: an issue important in that case because of the unique responsibility of bankruptcy judges in evaluating fee requests (In Re Wright, 290 B.R.145, 154-55 (Bankr.C.D.Cal. 2003), but not pertinent here.  Plaintiff also argues that it is “unconscionable” that Mr. Hager’s work is “passed off as Helbraun’s” (Opposition, at 12:11), but provides no explanation or authority for this argument.

 

Plaintiff also argues that the hours claimed are unreasonable because Mr. Helbraun and Mr. Hager claim to be substantive law experts and should have been more efficient.  The court is mindful of the complexity of the special motion to strike and the substantive law in this area, and finds that the hours spent on the services provided were reasonable, with two exceptions: one hour is deducted from the time spent on the order after hearing, and seven hours are deducted from the time spent on the motion for reconsideration.

 

Finally, Plaintiff argues that the claimed rate of $566.80 is excessive.  Although Plaintiff argues that Crowley does not disclose the hourly rate actually charged to clients in this case, that information does not necessarily determine the reasonable hourly rate for purposes of a fee award.  (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095.)  Plaintiff provides a Declaration of Gregory Gentile who has handled legal malpractice claims, the most recent one concluding two years ago.  Mr. Gentile opines that his firm currently bills insurance companies in legal malpractice matters between $200 and $275 per hour, and then shares hearsay anecdotal evidence of rates between $300 and $375.  While Mr. Gentile’s opinion is not directly on point, in the court’s view some reduction of the claimed hourly rate is in order.  Certainly there are efficiencies involved in having only two lawyers working on a matter such as this, but there are also significant inefficiencies when senior lawyers such as Mr. Helbraun and Mr. Hager undertake to accomplish every necessary task, even ones for which their level of experience is not utilized.  Taking that into account along with all the information provided about their experience and qualifications and the tasks performed, a rate of $400 is more appropriate.

 

Subtracting costs from the total claimed and dividing by the suggested hourly rate of $566.80 indicates total hours of 203.9.  Subtracting eight hours and applying a $400 rate generates a total for fees of $78,360.

 

Accordingly, Crowley’s motion is granted and fees are awarded in the amount of $78,360, and costs of $960, for a total of $79,320.

 

1. Motion for Attorney Fees and Costs by Defendant Tenenbaum, Crowley & Brereton

 

            Tenenbaum, Crowley & Brereton (TCB) seeks $29,455 in attorney fees and costs incurred in: 1) making its own special motion to strike; 2) joining Crowley’s special motion to strike; 3) opposing Plaintiff’s motion for limited discovery under section 425.16; 4) opposing Plaintiff’s motion for reconsideration; and 5) making the current motion.

 

Plaintiff opposes on the ground that, as to both the special motion to strike and the motion for reconsideration, the court ruled that it would not consider TCB’s papers other than the one-page joinder itself.  In this regard, Plaintiff relies on the language of the order filed July 22, 2014, that “[t]he Court has not considered any additional material submitted on behalf of TCB beyond its request to join in [Crowley’s] motion.”  (Order Granting Defendants’ Special Motion to Strike Pursuant to CCP 425.16, filed July 22, 2014 (Declaration of Daniel Hager, Exhibit K), at 2:13-15.)  Plaintiff argues that TCB should be limited to recovery for one hour of effort.

 

In reply, TCB notes that Plaintiff submits no evidence that the court did not consider TCB’s opposition to the motions for reconsideration and for discovery.  As to the special motion to strike, TCB argues that counsel spent time developing work product to assist in Crowley’s motion.  After reviewing the billing statements, the court has determined that the ruling concerning the joinder warrants a reduction of 22.5 hours, from 64.7 to 42.2.  Based on all the record evidence, the court adopts an hourly rate of $350 for Mr. Fink, for a subtotal for his time of $14,770.

 

Accordingly, TCB’s motion is granted and fees are awarded in the amount of $15,020, and costs of $90, for a total of $15,110.