Opinion
NOT TO BE PUBLISHED
Super. Ct. No. GIC 844321
APPEAL from an order of the Superior Court of San Diego County, Luis R. Vargas, Judge.
AARON, J.
I.
INTRODUCTION
Donald C. White filed a two-count complaint against Vivian D. Osborn alleging slander and slander per se based on e-mails Osborn sent to several San Diego County (County) employees in which Osborn stated that White had "a selective memory" regarding conversations that he previously had with County officials. Osborn filed a special motion to strike White's complaint pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16). Prior to filing an opposition to Osborn's motion, White voluntarily dismissed the action without prejudice. After being informed that the anti-SLAPP motion would be heard notwithstanding the dismissal, White filed an opposition. Ten days after White dismissed his lawsuit, the trial court granted Osborn's anti-SLAPP motion.
"SLAPP" stands for Strategic Lawsuit Against Public Participation. (See Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
Osborn subsequently filed a motion for attorney fees pursuant to section 425.16, subdivision (c), seeking a total of $40,000 for work performed in connection with the underlying anti-SLAPP motion and the fee motion. Specifically, Osborn sought $32,200 in attorney fees for 46 hours of work performed in connection with the underlying anti-SLAPP motion, and an additional $7,800 for 19.5 hours of work performed in connection with the fee motion. In ruling on Osborn's motion for attorney fees, the trial court found that Attorney James Moneer, Osborn's attorney, "spent an excessive amount of time on this case." The court concluded that Osborn was entitled to a fee award for 33 hours of work at $200 an hour, and awarded Osborn a total of $6,600 in attorney fees.
In her opening brief, Osborn states that she sought fees totaling $40,400. The $400 difference is not material to the appeal. We use the $40,000 amount throughout this opinion.
On appeal, Osborn claims that the trial court abused its discretion in awarding only $6,600 in attorney fees. We affirm the trial court's order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The complaint
In March 2005, White filed a two-count complaint against Osborn and 20 Doe defendants, alleging slander and slander per se. The only allegation in the complaint that pertained to actions Osborn took was the following:
"[White] is informed and believes that Defendants intentionally and falsely wrote an email to San Diego County personnel Robert Hingtgen, Glenn Russell, Priscilla Jaszkowiak, and Gary Pryor, among others, stating that they are 'personally aware' that [White], among other things, has a 'selective memory' regarding conversations he ha[d] with San Diego County personnel and others, and that he 'obviously remembers only the conversations that have a content that he cares to remember.'"
White claimed that the statements in the e-mails constituted "unprivileged, false and defamatory statements of fact that tend to injure to injure [White's] reputation in his business by imputing to it something that has a natural tendency to lessen [White's] profits and [White's] general or occupational reputation by accusing [White] of deceitfulness, deception, and duplicity." Included in White's prayer for relief was a request for both money damages and punitive damages.
B. The anti-SLAPP motion
On May 24, 2005, Osborn, through Attorney Moneer, appearing specially for the anti-SLAPP motion only, filed a special motion to strike White's complaint pursuant to section 425.16 (anti-SLAPP motion). In her motion, Osborn claimed that White's complaint constituted a "paradigm SLAPP suit." Osborn stated that she was a member of the Ramona Community Planning Group (RCPG), and argued that White's complaint arose from statements Osborn had made in connection with land use issues that were under review before the San Diego County Department of Planning and Land Use and the RCPG. Osborn argued that the statements at issue were within the scope of section 425.16, subdivision (e), parts (1) and (2). Osborn also argued that her comments were made to County officials regarding a draft environmental impact report (draft EIR) for a proposed development on White's land, during the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) public comment period. Osborn contended that the statements were thus within the scope of section 425.16, subdivision (e), parts (3) and (4).
Section 425.16 provides in relevant part: "(b)(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] . . . [¶]
Osborn maintained that White's defamation claims were "frivolous," because Osborn's statements were clearly protected under both the litigation privilege (Civ. Code § 47, subd. (b)) and the public interest privilege (Civ. Code § 47, subd. (e)). Finally, Osborn claimed that White's defamation claims failed on the merits for a number of reasons, including that the statements were made with a reasonable good faith belief in their substantial truth, and that the statements were, in fact, substantially true.
Osborn supported her motion with her own declaration and declarations from six other individuals: David Bittner (director of the Wildlife Research Institute), Carolyn Dorroh (RCPG member), Kristi Manslof (RCPG member and secretary), Heather Thomson (a resident of the area and certified archaeologist), Janet Gilbert (former RCPG member), and Dianne Jacob (San Diego County Supervisor).
In her eight-page declaration, Osborn declared, among other statements, that her February 7, 2005 e-mails regarding White's selective memory were prompted in part by White's statement at a February 3, 2005 RCPG meeting that no one had previously offered to buy his property for conservation. Osborn also stated that she sent the e-mails that formed the basis of White's complaint to County officials out of concern that White intended to allow certain historic corrals to be removed from the project site during the CEQA public comment period on the draft EIR.
In his declaration, Bittner described past discussions between Bittner and White, among others, regarding possible acquisition of White's land for conservancy purposes. Dorroh outlined why Osborn's statement regarding White's selective memory was accurate, and discussed the environmental features of the area in which White's land is located. Manslof detailed the February 3 meeting that Osborn claimed served as the genesis for her comments regarding White's selective memory. Manslof's declaration also contained a discussion of the environmental importance of the Ramona Grasslands, and prior planning efforts the County had taken with respect to the Grasslands. Thomson stated that she had asked that a letter she had written to the RCPG be read into the record of the February 3 RCPG meeting. The letter concerned the historic corrals on the project site. Gilbert described in her declaration the taping of a television show about the controversy regarding development of White's land in either 2002 or 2003. Jacob stated in her declaration that a meeting had been held with landowners in the Ramona Grasslands and/or their representatives on August 7, 2002, for the purpose of "seeing if the property owners were interested in working with county planners in order to develop a master plan for the grasslands."
Among the numerous exhibits attached to the declarations were various comments regarding the draft EIR, articles regarding the Ramona Grasslands and conservancy efforts in the area, minutes of various RCPG meetings, a report entitled "A Round-Up of Ranching Features in San Diego's Back-Country," the e-mails that formed the basis of White's complaint, documents regarding County efforts to potentially acquire land in the area for conservancy purposes, and a notice of availability of the draft EIR showing that the CEQA public comment period was from January 13, 2005 to February 28, 2005.
In support of her motion, Osborn also filed a request that the court take judicial notice of a Nature Conservancy Project Evaluation that referred to White's project being in an area of the highest biological and ecological value and "miscellaneous news articles and election flyers showing that the RCPG has been at the epicenter of the public controversy over development in the Ramona Grasslands."
On June 7, 2005, White dismissed his lawsuit against Osborn, without prejudice. On June 9, Osborn filed a memorandum requesting that the trial court rule on the merits of her anti-SLAPP motion. In her motion, Osborn argued that the court was required to rule on the merits of the motion notwithstanding White's voluntary dismissal of the action.
On June 16, White filed an opposition to Osborn's anti-SLAPP motion. In his opposition, White argued that the court had discretion to determine that White was the prevailing party. White claimed that the reason he dismissed his lawsuit was because Osborn's declaration contained a retraction and an apology.
On June 17, the trial court granted Osborn's anti-SLAPP motion. In its ruling, the court determined that Osborn's statements "clearly arise from [Osborn's] protected activities." The court noted that White had failed to present any evidence in support of his case, and that he had therefore failed to establish a probability of prevailing on his claims.
C. The motion for attorney fees
1. The amount sought
In August 2005, Osborn filed a notice of motion for attorney fees in which she sought $38,200 in fees. In the memorandum in support of the motion, Osborn claimed that Attorney Moneer had spent a total of 46 hours of billable time at his 2005 rate of $400 an hour in connection with the anti-SLAPP motion, for a total of $18,400. Osborn stated that Attorney Moneer had agreed to represent her on a partial contingency basis, pursuant to which she would pay him at a reduced rate of $200 an hour. Osborn further requested that the court award a multiplier of 2.5 to the $9,200 contingent portion of the fees, for an award of $23,000. Osborn requested that this enhanced fee ($23,000) be added to the non-contingent portion of the fees ($9,200), for a total award of $32,200 in attorney fees for the underlying anti-SLAPP motion. In his accompanying declaration, Attorney Moneer stated that he had spent 15 hours at $400 an hour on the fee motion. Osborn sought an additional $6,000 for the fee motion. Finally, Attorney Moneer stated in a supplemental declaration that he had spent 4.5 hours at $400 an hour on the reply papers for the fee motion. Osborn requested an additional $1,800 for this time. Osborn requested a total of $40,000 in attorney fees.
This total would result in an effective rate of $700 per hour ($32,200 divided by 46 hours).
2. The documentation supporting the motion for attorney fees
In support of her request for attorney fees, Osborn filed numerous documents, including a declaration of Attorney Moneer. Among other items discussed in his 21-page declaration, Moneer detailed his hourly rates for 2005 ($400 an hour) and for preceding years, described his experience handling anti-SLAPP matters, outlined the partial contingency agreement mentioned in the motion for attorney fees, and described the types of work he performed in this case. Attorney Moneer also described fee awards he had received in recent cases, including a case in which he was awarded $400 an hour for work performed in 2005, and a 2.5 multiplier for partial contingent risk. Attached to Attorney Moneer's declaration were exhibits that included numerous fee award orders in other cases, newspaper articles attesting to Attorney Moneer's experience, and Moneer's billing invoices for time spent on this matter. Osborn also asked the court to take judicial notice of various fee awards and several attorney declarations attesting to the reasonableness of Attorney Moneer's $375 hourly fee in 2004.
Osborn also filed her own declaration, in which she corroborated the terms of the partial contingency agreement she had with Attorney Moneer. In addition, in her declaration, Osborn praised Moneer's representation, noting, for example, that he had "work[ed] all hours day and night," on the matter. Osborn also detailed the emotional and financial toll the lawsuit had taken on her.
Osborn also filed a declaration from Dorroh in which Dorroh opined that White's lawsuit had been a "vicious attack." Dorroh pled with the court to "hit [White] where it can impact his future decisions ─ that's in his precious bank account."
3. The opposition and reply
White filed an opposition to Osborn's motion for attorney fees in which he argued that the court had discretion to conclude that White was the prevailing party. White further argued that Moneer had "manifestly overworked [the] case," that $400 an hour was an unreasonable hourly fee, and that a multiplier was not justified under the circumstances of this case. Among the items White filed in support of his opposition was his own declaration in which he described his reasons for dismissing the lawsuit against Osborn, a declaration from his other counsel, Richard McCarthy, attesting to the unreasonableness of Attorney Moneer's $400 hourly rate, and a declaration from his counsel, Thomas Landers, attesting to Attorney Moneer's failure to attempt to settle the fee issue without the need for a motion. White also filed numerous evidentiary objections to various portions of the declarations Osborn offered in support of her motion for attorney fees.
Osborn filed a reply memorandum in which she reiterated that she was clearly the prevailing party on the anti-SLAPP motion, and that $400 was a reasonable hourly rate for Attorney Moneer's services. Osborn noted that on September 7, 2005, in another anti-SLAPP matter, a San Diego trial court entered a fee award in favor of Moneer for all of the hours he requested, at $400 per hour, plus a contingent risk multiplier of 2.5 for partial contingent risk. Osborn also filed various evidentiary objections to the declarations White offered, including that the McCarthy declaration lacked foundation.
We grant Osborn's unopposed August 24, 2006 request that we take judicial notice of the September 7, 2005 attorney fee award in favor of Attorney Moneer in the matter of Styles v. Schwab (Super. Ct. San Diego County, GIC 830088). We note that the September 7, 2005 award has since been reversed in light of this court's reversal of the underlying anti-SLAPP ruling in that case. (Styles v. Schwab (D047508, filed Mar. 1, 2007 [nonpub. opn].)
4. The trial court's ruling
On October 21, 2005, the trial court issued a tentative ruling awarding Osborn $9,200 in attorney fees. In its tentative ruling, the court concluded that a multiplier was not appropriate. The court further stated, "Osborn is awarded $9,200.00 in attorney fees representing fees actually incurred by Defendant of 46 hours billed at a rate of $200/hour."
After a hearing at which the parties reiterated the arguments set forth in their briefs, the court entered a final ruling granting in part Osborn's motion for attorney fees. The court's November 29, 2005 order states:
"Defendant Vivian Osborn's Motion for Attorney Fees is granted in part. [¶] The 'prevailing defendant'shall recover her reasonable attorney's fees and costs incurred on the motion to strike. [Citations.] While the court agrees with Plaintiff this case may have been easily resolved with some interaction between counsel prior to the filing of the SLAPP motion, the court finds the Defendant was the prevailing party having granted Defendant's SLAPP motion. [¶] Defendant is entitled to an award of reasonable attorney's fees. [Citation.] In this case, Defendant has provided billing invoices evidencing 46 hours counsel has applied toward this case. The court finds counsel has spent an excessive amount of time on this case. For example, counsel billed for supervising a paralegal for assembling documents for filing for 2.5 hours. Counsel billed 4.5 hours for a reply memorandum which was unnecessary because there was no communication from the court the motion was being taken off calendar based upon Plaintiff's dismissal. Counsel billed 6.0 [hours] for the motion for attorneys' fees and 6.5 hours for a declaration in support thereof, however, approximately half or more of the motion and declaration is copied directly from a previous motion prepared by counsel. (See Memorandum of Points and Authorities in Support of Defendant Paul and Shirley Schwab's Notice of Motion for Mandatory Attorney's Fees and Costs for Prevailing on Anti-SLAPP Motion and Declaration in support thereof, GIC 830088.) Therefore, Defendant is awarded $6,600.00 in attorneys' fees representing the fees reasonably incurred by Defendant of 33 hours billed at a rate of $200.00/hour. The court does not find a multiplier is appropriate. [¶] . . . [¶] All requests for judicial notice are granted. [¶] All evidentiary objections are overruled."
D. The appeal
Osborn timely appeals from the court's November 29, 2005 order.
Osborn's appeal from the trial court's November 29, 2005 order is appealable as an order after judgment (§ 904.1, subd. (a)(2)) because the order was entered after White's June 7, 2005 dismissal of the action. (See Doe v. Luster (2006) 145 Cal.App.4th 139, 149 [noting that attorney fee order in case was "appealable under section 904[.1], subdivision (a)(2), as an order after judgment because it was entered only after the pleading directed to the moving parties had been dismissed"].)
III.
DISCUSSION
The trial court did not err in awarding Osborn only $6,600 in attorney fees
Osborn claims the trial court erred in awarding her only $6,600 of the $40,000 in attorney fees that she sought in her motion for attorney fees.
A. Standard of review
"An appellate court reviews the amount of mandatory attorney fees awarded by the trial court to a defendant who successfully brings an anti-SLAPP motion for abuse of discretion." (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 686, citing Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1426.) The abuse of discretion standard of review applies in this context because, "[t]he '"experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong."' [Citation.]" (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).)
In Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, the court described the concept of abuse of discretion in the context of an award of attorney fees to a prevailing anti-SLAPP defendant:
"'"While the concept 'abuse of discretion' is not easily susceptible to precise definition, the appropriate test has been enunciated in terms of whether or not the trial court exceeded ' "the bounds of reason, all of the circumstances before it being considered. . . ."' [Citations.]" [Citation.] "A decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' [Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review." [Citation.]' [Citation.] Accordingly, an abuse of discretion transpires if ' "the trial court exceeded the bounds of reason" ' in making its award of attorney fees. [Citation.]" (Id. at pp. 1249-1250 [concluding that the trial court had not abused its discretion in awarding only $23,000 of the $112,288.63 in attorney fees and costs sought by a prevailing anti-SLAPP defendant].)
B. Governing law
1. Attorney fees pursuant to the anti-SLAPP statute
Section 425.16, subdivision (c) provides in relevant part: "In any action subject to [an anti-SLAPP motion], a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs."
"Under Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees." (Ketchum, supra, 24 Cal.4th at p. 1131.) In Ketchum, the Supreme Court outlined the purpose of this fee-shifting provision:
"The fee-shifting provision was apparently intended to discourage such strategic lawsuits against public participation by imposing the litigation costs on the party seeking to 'chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' [Citation.] The fee-shifting provision also encourages private representation in SLAPP cases, including situations when a SLAPP defendant is unable to afford fees or the lack of potential monetary damages precludes a standard contingency fee arrangement." (Ibid.)
2. The lodestar adjustment method of determining reasonable attorney fees
The Ketchum court held that the Legislature intended that courts use the "lodestar adjustment method" in determining the amount of attorney fees to be awarded pursuant to section 425.16, subdivision (c). (Ketchum, supra, 24 Cal.4th at p. 1136.) The Ketchum court described the determination of the lodestar amount by referring to its prior decision, Serrano v. Priest (1977) 20 Cal.3d 25 (Serrano III):
"Under Serrano III, 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.' (Serrano III, supra, 20 Cal.3d at p. 48.) We expressly approved the use of prevailing hourly rates as a basis for the lodestar, noting that anchoring the calculation of attorney fees to the lodestar adjustment method ' "is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts."' (Id. at p. 48, fn. 23.) In referring to 'reasonable' compensation, we indicated that trial courts must carefully review attorney documentation of hours expended; 'padding' in the form of inefficient or duplicative efforts is not subject to compensation. (See id. at p. 48.)" (Ketchum, supra, 24 Cal.4th at pp. 1131-1332.)
The Ketchum court further noted that pursuant to Serrano v. Unruh (1982) 32 Cal.3d 621, 639 (Serrano IV), "absent circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee." (Ketchum, supra, 24 Cal.4th at p. 1133.)
3. Circumstances that justify an adjustment of the lodestar amount
The amount of attorney fees to be awarded pursuant to the lodestar method may be adjusted "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." (Ketchum, supra, 24 Cal.4th at p. 1132.) When such an adjustment results in an upward modification, it is commonly referred to as a "fee enhancement" or a "multiplier." (Ibid.)
The Ketchum court stated that "the lodestar figure may be increased or decreased depending on a variety of factors, including the contingent nature of the fee award." (Ketchum, supra, 24 Cal.4th at p. 1134, italics added.) In emphasizing that a trial court retains the discretion to award attorney fees in an amount that is less than the lodestar amount, the Ketchum court noted, "To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether." (Id. at p. 1138.) Specifically, the Ketchum court stated, "A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether." (Id. at p. 1137, quoting Serrano IV, supra, 32 Cal.3d at p. 635.) The Serrano IV court explained, "'If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful. . . ." (Serrano IV, supra, 32 Cal.3d at p. 635, quoting Brown v. Stackler (7th Cir. 1980) 612 F.2d 1057, 1059.)
The Serrano IV court noted the many ways in which a fee request may be unreasonably inflated, supporting this quotation with the following footnote: "See, e.g., Copeland v. Marshall [(D.C. Cir. 1980)] 641 F.2d 880, 902-903 [not allowable are hours on which plaintiff did not prevail or 'hours that simply should not have been spent at all, such as where attorneys' efforts are unorganized or duplicative. This may occur . . . when young associates' labors are inadequately organized by supervising partners' (fns. omitted)]; Gagne v. Maher [(1979)] 594 F.2d 336, 345 [excessive time spent]; Lund v. Affleck (1st Cir. 1978) 587 F.2d 75, 77 [if initial claim is 'exorbitant' and time unreasonable, court should 'refuse the further compensation']; Reynolds v. Coomey (1st Cir. 1978) 567 F.2d 1166, 1167 [duplication of effort]; Farris v. Cox (N.D.Cal. 1981) 508 F.Supp. 222, 227 [time on fee petition denied for 'overreaching']; Vocca v. Playboy Hotel of Chicago, Inc. (N.D.Ill. 1981) 519 F.Supp. 900, 901-902 [fee denied in entirety on ground of counsel's dilatoriness and hours claimed for clerical work]; Jordan v. United States Dept. of Justice (D.D.C. 1981) 89 F.R.D. 537, 540 [revd. (1982) 691 F.2d 514] [fee denied in entirety on ground of unreasonable request and inadequate documentation].)" (Serrano IV, supra, 32 Cal.4th at p. 635, fn. 21.)
C. The trial court did not abuse its discretion in awarding Osborn only $6,600 in attorney fees
1. The trial court did not abuse its discretion in concluding that Attorney Moneer billed an excessive number of hours
We first consider whether the trial court abused its discretion in concluding that Attorney Moneer, "spent an excessive amount of time on this case." Osborn sought fees for 65.5 attorney hours of work, including 46 hours spent in connection with the anti-SLAPP motion and 19.5 on the motion for attorney fees. The trial court found that Osborn had "reasonably incurred" fees for 33 hours of work.
The trial court's order is ambiguous in one respect. The order states that Osborn provided "billing invoices evidencing 46 hours counsel has applied toward this case." The record indicates that Osborn provided billing invoices totaling 46 hours for time spent in connection with the anti-SLAPP motion, and an additional billing invoice for 15 hours of time spent on the opening motion for attorney fees. In addition, Attorney Moneer filed a supplemental declaration in which he stated that he had worked a total of 4.5 hours in connection with the reply pertaining to the motion for attorney fees. However, it is clear that the trial court did consider Osborn's request for fees for work performed on the motion for attorney fees and that the court also considered the billing invoice Osborn submitted in support of her motion for attorney fees, because the court specifically referred to these hours as among those it considered excessive.
In its order awarding attorney fees, the trial court provided a nonexhaustive list of hours it considered to be excessive. First, the court noted that Attorney Moneer billed 2.5 hours for supervising a paralegal's assembly of documents in connection with the anti-SLAPP motion. On appeal, Osborn fails to offer any argument with respect to these hours. Accordingly, we conclude that the trial court did not abuse its discretion in finding these hours to be excessive. (See, e.g., In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 213 ["appealing party bears the burden of demonstrating the trial court abused its discretion"].)
Second, the trial court noted that Attorney Moneer billed 4.5 hours for a memorandum requesting a ruling on the anti-SLAPP motion after White dismissed the action. The trial court found that this memorandum was unnecessary because there was no communication from the court indicating that Osborn's anti-SLAPP motion would be taken off calendar due to White's dismissal. On appeal, Osborn asserts that Attorney Moneer spoke to the trial court's clerk who informed him that the motion would be "taken off calendar" in light of White's dismissal. However, Osborn fails to cite to anything in the record to support this assertion. Accordingly, we reject Osborn's claim that the trial court's finding regarding the excessiveness of time spent on this memorandum was "wholly unsupported by the record."
Third, the trial court found that although Attorney Moneer billed 6.0 hours for the motion for attorney fees and 6.5 hours for his declaration in support of this motion, approximately half of these materials were copied verbatim from a previous motion Attorney Moneer had filed in another case. Attorney Moneer does not dispute that he relied on prior work product in assembling the motion for attorney fees and supporting declaration. However, he claims that he could not have put together such a "detailed and cogent fee motion in 15 hours time," without having used prior work product. We conclude that the trial court could reasonably have determined that billing 15 hours for the opening fee motion in this case was excessive in light of counsel's use of material from a fee motion filed in a prior case.
We have carefully reviewed the record and conclude that the trial court did not abuse its discretion in determining that 33 hours constituted a reasonable number of hours for Attorney Moneer to have spent on this case. Many of the declarations and materials offered in support of Osborn's anti-SLAPP motion were marginally relevant at best. (See part II.B, ante.) The motion for attorney fees and supporting declarations also contained considerable amounts of irrelevant and cumulative material. (See part II.C., ante.)
2. The trial court did not abuse its discretion in awarding Osborn attorney fees at the rate of $200 an hour
Based on the trial court's conclusion that Osborn's fee request was excessive, the trial court could also have reasonably concluded that the fee request was "unreasonably inflated." (Ketchum, supra, 24 Cal.4th at p. 1137.) As such, the request constituted "a special circumstance permitting the trial court to reduce the [attorney fees] award. . . ." (Ibid.) Further, the fact that the number of hours requested was nearly double the number of hours the trial court determined to have been reasonably spent authorized the trial court to exercise its "broad discretion," to reduce the total amount of fees awarded. (Id. at p. 1138.) Thus, assuming for the sake of argument that Osborn adequately demonstrated that Moneer's "reasonable hourly compensation" (id. at p. 1132), was $400 an hour, the trial court did not abuse its discretion in awarding fees at the rate of only $200 an hour.
3. The trial court did not abuse its discretion in refusing to award a multiplier
In light of the trial court's determination that Osborn's fee request was excessive, the court did not abuse its discretion in refusing to award a multiplier on the fees awarded. Alternatively, the trial court did not abuse its discretion in determining that Osborn failed to demonstrate that her counsel assumed a contingent risk for which a multiplier was warranted, in view of the fact that the complaint subject to her special motion to strike was, in Osborn's own words, a "paradigm SLAPP complaint." (See Ketchum, supra, 24 Cal.4th at p. 1138 ["Of course, the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof"].)
The Ketchum court stated that when an attorney is not compelled by the economic circumstances of the defendant to use a contingent fee agreement, a multiplier "may pose difficult policy issues." (Ketchum, supra, 24 Cal.4th at p. 1139, fn. 4.) The Ketchum court stated that, given the facts of that case, it was not required to consider these policy issues. (Ibid.) Similarly, we need not consider these issues in this case, since Osborn stated in her declaration in support of her motion for attorney fees that she would not have been able to hire Moneer without the partial contingency agreement.
4. Conclusion
The trial judge was fully aware of the representation Attorney Moneer provided in this case, and the record is clear that the court carefully reviewed the motion for attorney fees. Because the trial judge is the "best judge of the value of professional services rendered in his court" (Ketchum, supra, 24 Cal.4th at p. 1132), and we cannot say on this record that the trial judge was "clearly wrong" (ibid.), we conclude that the court did not abuse its discretion in awarding Osborn only $6,600 in attorney fees.
V.
DISPOSITION
The trial court's November 29, 2005 order is affirmed. Respondent is entitled to costs on appeal.
WE CONCUR: McDONALD, Acting P. J., O'ROURKE, J.
"(e) As used in this section, 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."
However, we note that Attorney Moneer states in his declaration that, "When representing SLAPP defendants, I generally use a modified or partial contingency to ease the financial burden on my defense clients in light of our High Court's decision in [Ketchum]." (Italics added.) The use of contingency agreements in the anti-SLAPP context outside of those generated by economic necessity would require that we consider the policy questions to which the Ketchum court alluded.