Opinion
A129671
10-21-2011
WAUKEEN MCCOY, Plaintiff and Appellant, v. KENNETH WALCZAK, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. CGC09493150)
Plaintiff Waukeen McCoy appeals an order granting defendant Kenneth Walczak's motion for attorney fees, which was made after the trial court granted Walczak's special motion to strike pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP motion). He contends the motion for attorney fees was untimely, and that the award was excessive. We shall affirm the order.
Kenneth Walczak's name is misspelled as "Walzak" in parts of the record, including the case caption below.
All statutory references are to the Code of Civil Procedure. All rule references are to the California Rules of Court.
I. BACKGROUND
Walczak filed a special motion to strike McCoy's action against him for defamation, and on February 2, 2010, the trial court granted the motion and found Walczak to be the prevailing party.
The "Factual and Procedural Background" section of McCoy's opening brief contains two pages of factual assertions unsupported by any citations to the record. We remind the parties of their duty to provide adequate record citations. (See Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.)
Walczak filed a motion for attorney fees on April 2, 2010. His counsel on the motion were the law firms of Lewis Brisbois Bisgaard & Smith LLP (Lewis Brisbois), and Rosen, Bien & Galvan, LLP (Rosen Bien). At the May 18, 2010, hearing on the motion, the trial court ruled that Walczak was entitled to fees for the work of both firms, but said the record was inadequate for it to determine the proper amount of fees, and that it was "inclined to deny this without prejudice to its being renewed."
On July 21, 2010, the trial court issued a written order denying the motion for attorney fees without prejudice to renewing the motion, stating in its order that it could not evaluate the request because the motion did not provide any breakdown on how the time was spent, "especially given the relatively high amount of award sought, and the sequential involvement of 2 firms." The court denied the motion "without prejudice to renewing on an adequate factual record." The court expressly found, however, that Walczak was entitled to recover his reasonable attorney fees, and ordered that the issue in the renewed motion would be limited to the reasonableness of the fees Walczak sought. The court concluded, "Mr. Walczak shall be permitted to renew his Motion for Reasonable Attorneys' Fees and Costs Following Successful Anti-SLAPP Motion."
Walczak filed his renewed motion for attorney fees on July 23, 2010. The renewed motion included detailed billing records from both law firms. The trial court awarded Walczak $92,898 in attorney fees.
II. DISCUSSION
A. Timeliness of Renewed Motion For Attorney Fees
McCoy contends Walczak's renewed motion for attorney fees was untimely. Rule 3.1702, subdivision (b)(1) provides that a motion for attorney fees must be served and filed within the time for filing a notice of appeal—in this case, within 60 days of February 4, 2010, the date the notice of entry of order granting the anti-SLAPP motion was served. (Rule 8.104, subd. (a)(2); see also American Humane Assn. v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095, 1104 [prevailing party on anti-SLAPP motion may seek fees as permitted by predecessor to rule 8.104].) However, "[f]or good cause, the trial judge may extend the time for filing a motion for attorney's fees in the absence of a stipulation . . . ." (Rule 3.1702, subd. (d).) " „[I]t [is] settled that the time limitation set out in [the predecessor to rule 3.1702] is . . . not jurisdictional in character and that a trial court has broad discretion in allowing relief from a late filing where . . . there is an absence of a showing of prejudice to the opposing party.' [Citation.]" (Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal.App.4th 1301, 1304.)
The initial motion for attorney fees was filed within this 60-day window. After the trial court denied the motion without prejudice to filing a renewed motion, Walczak filed a renewed motion, outside the 60-day window.
The subject of the timing of the renewed motion was discussed at the May 18, 2010, hearing on the initial motion. After the trial court stated it was inclined to deny the motion without prejudice to its being renewed, counsel for Walczak said, "I'm not here to contest the tentative, but I did want to clear with the Court a proposed timeline for renewing the motion so that we can give the Court an adequate factual record on which to base an award." The court replied, "I think you'd be free to just file it on regular notice, unless there's something I'm missing that would prevent that." Counsel for Walczak continued, "And I don't know that there is anything, Your Honor. I just wanted it to be clear that we may renew the motion in, say, 30 days from notice of entry of order or something along those lines, and I wanted to make sure that that was acceptable to the Court." The court asked counsel for McCoy to respond, and he said, "Your Honor, we're not too concerned about the timeline the Court sets out. We just—again, if the motion is renewed, we would like to bring our arguments again regarding the entitlement to fees." After further argument, the court ruled that Walczak was entitled to fees. The trial court later issued its order denying the motion without prejudice and permitting Walczak to renew his motion to argue the limited issue of the reasonable amount of fees.
In his opposition to the renewed motion for attorney fees, McCoy argued the fee request was untimely because it did not fall within the time limits of rule 3.1702. The trial court rejected this argument, ruling, "Defendant timely filed a notice of motion claiming fees, which preserved jurisdiction to determine the amount of an award."
McCoy argues on appeal that the trial court did not extend the time for Walczak to file his renewed motion for attorney fees, and that the renewed motion was therefore untimely. We reject this contention. Although the trial court did not state expressly that it was extending the time to file a renewed motion pursuant to rule 3.1702, it is clear that both the court and the parties understood that Walczak would be permitted to file a renewed motion to complete the task of demonstrating the amount of fees to which the court had ruled he was entitled. It is also clear that McCoy suffered no prejudice. The order denying the initial motion was signed on July 20, 2010, and filed on July 21, 2010. Two days later, on July 23, 2010, Walczak filed his renewed motion.
In the circumstances, we conclude the trial court properly exercised its discretion to allow Walczak to file his renewed motion after the 60-day period contemplated by rule 3.1702 had passed.
B. Reasonableness of Fees
McCoy also contends the fees the trial court awarded were excessive. "Section 425.16, subdivision (c) makes an award of attorney fees to a defendant, who prevails on an anti-SLAPP motion, mandatory. [Citation.] We review the amount of attorney fees awarded for abuse of discretion. [Citation.] A trial court's attorney fee award will not be set aside 'absent a showing that it is manifestly excessive in the circumstances.' [Citation.]" (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)
McCoy's first contention is that Lisa Ells, an associate at Rosen Bien who graduated from law school in 2005, billed an excessive number of hours (34.3) in drafting the special motion to strike given that she was not the lead attorney. He also argues that "[t]he number of hours billed for certain tasks does not reflect their alleged level of expertise," but he does not tell us which tasks he has in mind or to whom he is referring.
In his reply brief, McCoy argues the fees were so excessive as to shock the conscience, citing as an example Ells's billing of "$34,419.00 for 34.3 hours of work, or $1003.47 per hour for a third year junior associate's work." McCoy is mistaken. Ms. Ells logged 104.3 total hours of work.
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The amount of attorney fees following a successful anti-SLAPP motion is calculated in accordance with the "lodestar" method. (Cabral v. Martins (2009) 177 Cal.App.4th 471, 491.) Under that method, " 'a court assessing attorney fees begins with a touchstone or lodestar figure, based on the "careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case." [Citation.]' " (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579.) This lodestar " 'is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including . . . (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action.' " (Ibid.)"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." (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 (Premier Medical).)
Walczak presented evidence that the billing rates for the attorneys who represented him, including Ells, were well within the reasonable range for attorneys in the San Francisco Bay Area with comparable skills, reputation, and experience. McCoy draws our attention to nothing in the record suggesting otherwise. We therefore reject his challenge to the billing rates.
McCoy also asserts that the fees awarded were duplicative. Walczak was an associate at Rosen Bien. It appears that McCoy brought the defamation action against him based on events in two underlying lawsuits in federal court. Walczak was initially represented in the defamation action by Rosen Bien. Rosen Bien's insurance carrier later retained Lewis Brisbois to defend Walczak. Walczak presented evidence that Peter Dixon, the partner at Lewis Brisbois assigned to the case, was in trial at the time of the tender, and the record in the case underlying the defamation action was extensive and complex. Because the 60-day period for filing an anti-SLAPP motion was running (see § 425.16, subd. (f)), Rosen Bien began working on the motion, and collaborated with Lewis Brisbois on strategic matters. After counsel at Lewis Brisbois became "fully engaged," Rosen Bien principally "provid[ed] factual support, strategic insight and background information relevant to the finalizing of the anti-SLAPP motion, with the exception of limited research and drafting assistance" provided by Ells.
McCoy contends the involvement of the two firms led to duplication of effort and fees. He argues that Lewis Brisbois attorneys claimed over 32 hours of work during the period the Lewis Brisbois partner was involved in the unrelated trial; that Rosen Bien claimed more than 36 hours of work during the same period; that in total Lewis Brisbois claimed 33.1 hours and Rosen Bien claimed 57.7 hours to draft the anti-SLAPP motion and accompanying documents; and that more than 12 hours of that time was spent in conference calls and correspondence " 'strategizing' " the motion.
As noted in Premier Medical, "[c]ollaboration does not necessarily amount to duplication that is not compensable under section 425.16, subdivision (c)." (Premier Medical, supra, 163 Cal.App.4th 550 at p. 562.) Rather, it is the duty of the party challenging the fee award to present evidence that the award is based on unnecessary or duplicative work. (Ibid.; see also Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1052-1053; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1248.) McCoy's conclusory complaints about the amount of time the attorneys spent come nowhere near meeting this burden.
Moreover, in awarding $92,898 in attorney fees, the trial court deducted nearly $16,000 from the amount sought by Walczak, stating as it did so: "In arriving at this fee award, the Court has carefully reviewed the time records submitted by Mr. Walczak, and has eliminated any duplicative, inefficient and/or otherwise inappropriately claimed hours." McCoy makes no attempt to show that any duplicative hours exceeded this reduction in the fee award.
III. DISPOSITION
The order appealed from is affirmed.
RIVERA, J. We concur: RUVOLO, P.J. SEPULVEDA, J.