Opinion
D072275
03-23-2018
MARTIN P. MONTOYA et al., Plaintiffs and Appellants, v. MIKE BELK, Defendant and Respondent.
James W. Denison for Plaintiffs and Appellants. Law Office of James J. Moneer and James J. Moneer for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00014213-CU-DF-CTL) APPEAL from a judgment and order of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Affirmed. James W. Denison for Plaintiffs and Appellants. Law Office of James J. Moneer and James J. Moneer for Defendant and Respondent.
Plaintiff Martin P. Montoya and his small business, Advanced Exteriors, Inc. (sometimes together, Plaintiff) filed an action against a former client, defendant and respondent Mike Belk (Defendant), seeking damages on a number of theories, based on Defendant's published criticisms of the work that Plaintiff had performed at Defendant's property. In response, Defendant brought a motion to strike the amended pleading, pursuant to the anti-SLAPP statute. (Code Civ. Proc., § 425.16, [strategic lawsuit against public participation]; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) The motion was granted.
All statutory references are to this code unless otherwise specified.
Defendant next sought $20,108 in attorney fees and costs, pursuant to section 425.16, subdivision (c)(1), which provides that a prevailing defendant on a special motion to strike is entitled to recover attorney fees and costs. The court granted the motion but in a reduced amount, $16,396. Plaintiff appeals the fees order and judgment, arguing it represents an abuse of discretion or a failure by the trial court to apply the correct legal standards. Although Plaintiff acknowledges that the underlying motion to strike the pleading was meritorious, he argues that defense counsel overbilled the case by including fees that were excessive and did not relate to the anti-SLAPP motion. Plaintiff argues that James J. Moneer, lead counsel for the defense and a specialist in the anti-SLAPP procedure, submitted duplicative work that consisted of recycled old briefs, as he had done in other cases.
In applying the correct abuse of discretion standard of review to this record, we find the trial court utilized the proper legal standards and made an accurate evaluation of the work performed, in arriving at an appropriate award of statutory attorney fees and costs. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum); PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) We affirm.
I
BACKGROUND
Plaintiff contracted with Defendant for work in applying exterior coating systems to the walls of Defendant's house. Although the work was completed to Defendant's apparent satisfaction and Plaintiff received full payment on the contract, Defendant became dissatisfied and placed unfavorable reviews about Plaintiff's company's work on social media.
Acting in propria persona on his own behalf and on behalf of his company, Plaintiff sued Defendant in April 2016 on damages theories that included intentional infliction of emotional distress, "willful act," misrepresentation, slander and declaratory relief. Defendant answered, also in propria persona.
Subsequently, Defendant retained counsel, Moneer, whose law office filed the special motion to strike. Meanwhile, case management conferences were scheduled, and a jury trial set for April of 2017. Ultimately, after some procedural confusion that the court outlined in its tentative ruling, both of the Plaintiffs were successfully served and they retained the law office of Melody Grover to represent them. The court then heard and granted the motion to strike on its merits, relying in part on Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1146 "for the proposition that the posting of reviews of businesses on social media is a protected activity within the ambit of section 425.16." In the second step of the anti-SLAPP analysis, the court determined the complaint was "clearly not legally sufficient" as to any of its claims, and Plaintiff had not been able to demonstrate it had even "minimal merit."
Plaintiff came to realize that he had objections to the handling of the case by his retained attorney. He obtained new counsel, who expressed a belief that those earlier mistakes had allowed the case to be subject to an anti-SLAPP ruling, which could have been prevented. Defendant then filed his "Motion for Mandatory Attorney's Fees for Prevailing on Anti-SLAPP Motion," requesting a total amount of $20,108 in fees and costs. The request was supported by declarations from Moneer, as lead counsel, and his associate, Eric Austin, about the work that they had performed and their hourly rates. In summary, Defendant sought $14,742 for work performed by Moneer, at a negotiated hourly rate of $400 per hour, plus a multiplier. Compensation for Austin's work was requested in the amount of $4,540, together with costs of $826, for a total of $20,108.
Plaintiff raised numerous objections to the request. Even though it had admittedly been a well taken anti-SLAPP motion, such that no complex issues requiring great expertise on the part of defense counsel had been presented, the fees sought seemed to be excessive in some respects. Plaintiff argued no multiplier should be allowed, since the motion had apparently been prepared using defense counsel's own boilerplate materials, as shown by citations provided to several other cases in which similar materials had been used. Plaintiff supplied a color coding key for such previously filed defense papers, from other cases, and sought to identify duplication of materials or billings for work that was not directly related to preparing the motions. Overall, he argued the amount of the fees and costs award requested was unreasonable.
Defendant then requested a continuance to allow the filing of reply papers. The court found it unnecessary to continue the matter and issued a full ruling on the merits, setting forth its reasoning, as will be summarized in part III.A, post. An order and judgment were issued to grant the special motion to strike in full and award Defendant reasonable attorney fees and costs in the grand total of $16,396, payable by Plaintiffs jointly and severally to defense counsel.
II
APPLICABLE STANDARDS
Appellate courts generally "[i]ndulg[e] all inferences in favor of the trial court's order . . . [and] presume the trial court's attorney fees award is correct." (McKenzie v. Ford Motor Co. (2015) 238 Cal.App.4th 695, 704.) We do not disturb the trial court's fee determination " ' "unless the appellate court is convinced that it is clearly wrong." ' " (Ketchum, supra, 24 Cal.4th at p. 1132.) For example, where a trial court fails to apply proper legal standards in making a fees award, appellate review on a de novo basis is appropriate. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 434 (569 East County Boulevard).) " ' "Action that transgresses the confines of the applicable principles of law is outside the scope of discretion" ' " and therefore qualifies as an abuse of discretion. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 148-149.)
Although a SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees, he or she is entitled " 'only to reasonable attorney fees, and not necessarily to the entire amount requested.' " (G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 620.) The court's exercise of discretion in awarding attorney fees in this context must be based on a proper utilization of the lodestar adjustment method. (Cabral v. Martins (2009) 177 Cal.App.4th 471, 491.) "Under that method, the court 'tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.' " (Ibid.) Trial courts retain some deference when evaluating the value of services rendered by attorneys appearing before them. (Ketchum, supra, 24 Cal.4th at p. 1132.)
"[A]s the parties seeking fees and costs, defendants 'bear[] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.' [Citation.] To that end, the court may require defendants to produce records sufficient to provide ' "a proper basis for determining how much time was spent on particular claims." ' " (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) A prevailing defendant on an anti-SLAPP motion is entitled to seek fees and costs " 'incurred in connection with' " the anti-SLAPP motion itself, but is not entitled to an award of attorney fees and costs incurred for the entire action. (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 21; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.)
Thus, a fee award under the anti-SLAPP statute should not include matters unrelated to the anti-SLAPP motion, such as "attacking service of process, preparing and revising an answer to the complaint, [or] summary judgment research." (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325 (Christian Research).) Such fees "would have been incurred whether or not [the defendant] filed the motion to strike." (Ibid.) This statutory award of fees is designed to " 'reimburs[e] the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit' " (Wanland, supra, 141 Cal.App.4th at p. 22, italics added) rather than to reimburse the defendant for all expenses incurred in the baseless lawsuit. (Ibid.; 569 East County Boulevard, supra, 6 Cal.App.5th 426, 433.)
III
CONTENTIONS AND APPLICATION OF RULES
Plaintiff argues that the trial court awarded excessive fees and costs, in view of the "cookie-cutter" nature of the anti-SLAPP motion which had resulted in the striking of the amended complaint. He suggests that de novo review is warranted because the trial court incorrectly interpreted and applied the criteria identified by the court in Ketchum for determining whether a lodestar amount of attorney fees should be modified. These factors include: "(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." (Ketchum, supra, 24 Cal. 4th at pp. 1132, 1134; 569 East County Boulevard, supra, 6 Cal.App.5th at p. 437.) He contends that a downwards adjustment should have been ordered from the amount Defendant was requesting, due to evidence he presented that "unnecessary," "duplicative," or "excessive" fees were billed. (Ketchum, supra, at p. 1132.)
A. Trial Court's Explanation of Ruling
In its minute order, the court outlined the basis for its decision to award fees in an amount approximately $4,000 less than Defendant was requesting. First, the court reviewed the proceedings leading up to the fees request, explaining that it took a while for both Plaintiffs to become represented by counsel and then to file opposition to the motion to strike. The court had issued an intended ruling on the underlying motion on January 13, 2017, but unfortunately, as the result of a clerical oversight, the trial readiness conference as previously set remained on calendar, at which point Plaintiff took the opportunity to express dissatisfaction with his then attorney. As shown in the register of actions, the court vacated the trial and the readiness conference, and set a hearing on that attorney's motion for leave to withdraw, which was initially denied. The representation issue was rendered moot when Plaintiff substituted her out anyway. The motion was decided and the fees proceeding followed.
Turning to the merits of the fees motion, the court noted that at least part of Plaintiff's opposition sought to reargue the special motion to strike. The court acknowledged that Attorney Moneer was seeking to have imposed a multiplier of 1.3 for the rate differential he had agreed to, at the request of Defendant ($400 v. his usual $550). Such a multiplier was authorized by law in an appropriate case. (E.g., Kern River Public Access Com. v. City of Bakersfield (1985) 170 Cal.App.3d 1205, 1228.) However, the court declined to impose it in this case, explaining that this set of circumstances did not represent any justification for allowing a fee enhancement, e.g., where it was necessary to attract competent representation in cases meriting legal assistance. (Ibid.)
The court enunciated these reasons for disallowing a multiplier in this case. There was no lengthy or undue delay in receiving payment of fees, and there was "little risk to defendant or Mr. Moneer that the motion would not be granted (and thus that fees would not be ordered). As Mr. Moneer (a renowned expert on SLAPP) knew from the moment he first looked at the file, there was a case [Chaker v. Mateo (2012) 209 Cal.App.4th 1138 (Benke, J.)] practically on all fours from the 4th DCA, Div. 1. This was a case of little risk . . . ." Further, there was no danger that defense counsel would not be receiving a "market" rate for his services, because Attorney Moneer had previously agreed to an adjusted rate of $400 per hour.
To the extent that the defense associate Austin had provided other services, such as 16.8 hours for the fee application itself, the court acknowledged that some of them might be considered to be excessive. However, since the associate's billing rate was relatively low in the relevant legal community, this was said to ameliorate the court's concerns to some extent. The court decided to award the associate's amount as requested, but without any addition for the ministerial time that would be needed to prepare the judgment. In making the overall determination awarding fees and denying the requested multiplier, the minute order gives this explanation for the total amount of $16,396:
"The court makes these observations having successfully brought special motions to strike while in practice in San Diego prior to 2005; having ruled on numerous such motions since taking over a civil [independent calendar] department in 2008; and having ruled on hundreds of fee applications, in a variety of settings, in the last 12 years. This experience has allowed the court to keep current on prevailing rates charged in San Diego for similar work during the relevant timeframe."
B. Analysis
We first observe that the ruling is obviously well grounded in familiarity with the proceedings leading up to the fees request, as summarized in its references to the register of actions about the procedural difficulties encountered during the case, in achieving service and calendaring hearings. The court used the negotiated fee amount to which lead defense counsel had agreed, representing the market rate, and disallowed a multiplier. The court was well informed about the nature of the work performed by each defense counsel, and utilized a straight billing method to calculate the award, finding that was in line with the policies underlying section 425.16. The trial court was in the best position to value the services rendered by attorneys in the courtroom. (569 East County Boulevard, supra, 6 Cal.App.5th at p. 437; Ketchum, supra, 24 Cal.4th at p. 1132.) Overall, the hours spent and the rates charged by defense counsel were deemed to be reasonable (with a possible exception about the associate, as discussed post). There is no apparent basis for de novo review on appeal of the trial court's conclusions, since it showed knowledge of and compliance with relevant legal principles in rendering its ruling.
Plaintiff's real objections are first, that the trial court abused its discretion by rejecting his argument that the associate Austin had billed an excessive amount to prepare the fees motion (16.8 hours out of his approximately 45 hours total). As shown in the ruling, the court evidently balanced such considerations against the relatively low hourly fee the associate was charging, comparable to a legal assistant, and thus it seemed to make some allowance for payment of work by the associate that was arguably administrative or peripheral to the motions themselves. The trial court acknowledged Plaintiff's objections in this respect, but decided that they were not well taken or at least were not dispositive.
To the extent that the respondent's brief suggests that the trial court further explained its reasoning at the hearing on the motion, we note that there is no reporter's transcript designated as part of the record. Since we review the order on its terms, not for the indicated reasoning of the trial court, there is no need for Plaintiff to seek augmentation of the record with an agreed statement about what happened at the hearing. In any event, no express finding was made that Austin was being compensated in part not for attorney work but solely for tasks performed in a case manager/assistant capacity. The trial court was presumably familiar with the details and evolution of legal practice in the modern, computerized community. --------
In the ruling, the court foreclosed any further associate fee applications for preparation of the judgment, apparently as a partial accommodation of the overbilling concerns being raised by Plaintiff. This was an appropriate exercise of discretion which took all the circumstances of the case into account. To the extent implied findings were made in the ruling, that any inaccuracies in the fees and costs requests as submitted were deemed to be nonobjectionable, in view of the unmeritorious nature of the complaint, those findings would support the award as it stands, within the policy of the anti-SLAPP statutory scheme. (569 East County Boulevard, supra, 6 Cal.App.5th at p. 438, fn. 14 [award may be deemed supported by implied findings].)
Plaintiff next objects the trial court abused its discretion by rejecting the showing that lead defense attorney Moneer apparently has an obvious practice of recycling material from previous filings, which Plaintiff contends is plain evidence of overreaching or inflated billings. (See Christian Research Institute, supra, 165 Cal.App.4th at p. 1322 [acknowledging there are ways to inflate a fee request, the most severe of which may justify denial of an award].)
Overall, the record shows that the trial court took all the appropriate considerations into account, as outlined by governing law, when exercising its discretion. This action had to be defended and despite its lack of merit, it was not going to go away by itself. The court evaluated the course of the litigation in light of its own professional experience in practice and in the courtroom, as justification for the adjustments being made to the defense fees requests. The court's familiarity with the legal market, as well as its knowledge about the experience, skill, and reputation of the attorneys requesting fees, gave it an appropriate basis for ruling on the motion. (569 East County Boulevard, supra, 6 Cal.App.5th at p. 437.) No showing has been made that these discretionary fee determinations that awarded statutorily authorized fees, at a reasonable level, were clearly wrong (Ketchum, supra, 24 Cal.4th at p. 1132) or unjust (Christian Research Institute, supra, 165 Cal.App.4th at p. 1322). We affirm.
DISPOSITION
The judgment and order are affirmed. The ordinary costs on appeal are awarded to Respondent.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. O'ROURKE, J.