569 E. Cnty. Boulevard LLC v. Backcountry Against the Dump, Inc., D068538

• Decision Date: 05 December 2016
• Docket Number: D068538
• Citation: 6 Cal.App.5th 426,212 Cal.Rptr.3d 304
• Court: California Court of Appeals Court of Appeals
• Parties: 569 EAST COUNTY BOULEVARD LLC et al., Plaintiffs and Respondents, v. BACKCOUNTRY AGAINST THE DUMP, INC., Defendant and Appellant.

6 Cal.App.5th 426

212 Cal.Rptr.3d 304

569 EAST COUNTY BOULEVARD LLC et al., Plaintiffs and Respondents,

v.BACKCOUNTRY AGAINST THE DUMP, INC., Defendant and Appellant.

D068538

Court of Appeal, Fourth District, Division 1, California.

Filed December 5, 2016

As Modified on Denial of Rehearing December 29, 2016

Review Denied March 22, 2017

Law Offices of Stephan C. Volker, Stephan C. Volker, Daniel Garrett-Steinman and Jamey M.B. Volker, Oakland, for Defendant and Appellant.

Mark M. Clairmont, San Diego, and Paul W. Pitingaro for Plaintiffs and Respondents.

IRION, J.

Plaintiff 569 East County Boulevard LLC et al. (plaintiffs) filed an action against numerous entities and individuals. Plaintiffs' complaint named Backcountry Against the Dump, Inc. (BAD) as a defendant and alleged a single cause of action against BAD for unlawful interference with prospective economic advantage. BAD moved to strike the action pursuant to Code of Civil Procedure section 425.16,¹ commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. ( Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, 124 Cal.Rptr.2d 507, 52 P.3d 685.) After BAD's anti-SLAPP motion was granted, it sought attorney fees and costs in a total amount of $152,529.15 pursuant to section 425.16, subdivision (c)(1). Plaintiffs did not contest defendant's entitlement to a fees and costs award, but argued the amount sought was exorbitant. The court found BAD was entitled to attorney fees and costs incurred for the successful anti-SLAPP motion, but awarded a reduced amount of $30,752.86. BAD appeals from that order, arguing the reduced award was an abuse of discretion. Upon reconsideration after ordering a rehearing in this matter, we affirm the judgment.²

IBACKGROUND

A. The Underlying Action and Anti-SLAPP Motion

Plaintiffs' First Amended Complaint alleged a single cause of action against BAD for unlawful interference with prospective economic advantage.³ BAD moved to strike the action under the anti-SLAPP statute, arguing the action sought damages from BAD caused by BAD's petitioning activity, and plaintiffs could not demonstrate probable success on the merits.⁴ The court granted the motion to strike plaintiffs' cause of action against BAD alleging unlawful interference with prospective economic advantage.⁵

B. The Attorney Fees and Costs Motion

BAD sought attorney fees and costs as the prevailing party, pursuant to section 425.16, subdivision (c)(1), and requested a total amount of $152,529.15. The request was supported by a declaration from BAD's counsel, Mr. S. Volker, arguing the appropriate hourly rate for his time (as lead attorney) was $750 per hour, and the appropriate hourly rate for three fifth-year associates was $350 per hour. He asserted he spent over 170 hours on the merits of the work necessary to the anti-SLAPP motion, and that his associates spent over 40 additional hours on the merits of the work necessary to the anti-SLAPP motion. He also asserted he spent another 9.4 hours on the fee motion itself.

Plaintiffs raised numerous objections to the amount of the request, asserting (1) the hourly rate charged by BAD's attorneys was excessive for the nature of the case, (2) BAD's fee request included billings for work unrelated to the anti-SLAPP motion, or unnecessary, or administrative in nature or duplicative or padded, and (3) BAD's fee request included fees premised on vague time entries or "blockbilled" time. For all of these reasons, plaintiffs argued, the amount of the fee and cost award requested by BAD was unreasonable.

The court first determined the hourly rate sought by BAD's attorneys was "excessive compared to those in the San Diego community" and that "a reasonable hourly rate for equally qualified counsel" was $275 dollars per hour.⁶ The court then turned to the question of the reasonable hours expended on the anti-SLAPP motion. After noting it had "culled through the billing statement" submitted by BAD in support of its fee request, the court observed that many of the hours listed in that statement encompassed work "on the demurrer, coordinating with other counsel, work related to the [case management conference], and duplicative time with [co-counsel]."

The court also observed that, although BAD's counsel "express[ed] confusion with the pleadings, there was only one cause of action that was the subject of the anti-SLAPP motion and the issues were not especially novel or complex." The court ruled 103.6 hours was a reasonable amount of time spent on the anti-SLAPP motion and the fee motion, and awarded $28,290 as reasonable attorney fees.

IILEGAL FRAMEWORK

BAD asserts the court erred in calculating the fee award in two principal respects. First, BAD argues the court erred when it selected $275 as the reasonable hourly rate to be applied to hours worked in connection with the anti-SLAPP motion. Second, BAD argues it was error to reduce the hours worked in connection with the anti-SLAPP motion below the number of hours it claimed in its fee motion.

Legal Framework

Principles Applicable to Attorney Fees Award

Section 425.16, subdivision (c), provides that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." It is well established that "[t]he amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the familiar ‘lodestar’ method. [Citation.] 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. [Citations.]’ " ( Cabral v. Martins (2009) 177 Cal.App.4th 471, 491, 99 Cal.Rptr.3d 394 ( Cabral ).)

"[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, 113 Cal.Rptr.2d 625.) Importantly, when considering a fee award, the trial court is not required to award the amount sought by the successful moving parties,⁷ but instead "is obligated to award ‘reasonable attorney fees under section 425.16 [that] adequately compensate[ ] them for the expense of responding to a baseless lawsuit.’ " ( Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 92, 101 Cal.Rptr.3d 303.)

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, 45 Cal.Rptr.3d 633 ; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383, 46 Cal.Rptr.2d 542.) An award of attorney fees to a prevailing defendant on an anti-SLAPP motion properly includes attorney fees incurred to litigate the special motion to strike (the merits fees) plus the fees incurred in connection with litigating the fee award itself (the fees on fees). ( Wanland, at p. 21, 45 Cal.Rptr.3d 633.) However, a fee award under the anti-SLAPP statute may 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, supra, 165 Cal.App.4th at p. 1325, 81 Cal.Rptr.3d 866.) Similarly, the fee award should not include fees for "obtaining the docket at the inception of the case" or "attending the trial court's mandatory case management conference" because such fees "would have been incurred whether or not [the defendant] filed the motion to strike." ( Ibid. ) In short, the award of fees is designed to " ‘reimburs[e] the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit’ " ( Wanland, at p. 22, 45 Cal.Rptr.3d 633, italics added) rather than to reimburse the defendant for all expenses incurred in the baseless lawsuit.

Standard of Review

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. [Citations.]’ [Citation.] We review the trial court's ruling for abuse of discretion."⁸ ( G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 620, 110 Cal.Rptr.3d 559.) Applying this standard, we may not disturb the trial court's fee determination " ‘ "unless the appellate court is convinced that it is clearly wrong." ’ " ( Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132, 104 Cal.Rptr.2d 377, 17 P.3d 735 ( Ketchum ); cf. In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 587, 156 Cal.Rptr.3d 755 [amount of attorney fees is vested in trial court discretion and, on appeal, the " ‘only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or small that i[t] shocks the conscience and suggests that passion and prejudice influenced the determination.’ "].) When reviewing attorney fee awards, an appellate court must "[i]ndulg[e] all inferences in favor of the trial court's order ... [and] presume the trial court's attorney fees award is correct."⁹ ( McKenzie v. Ford Motor Co. (2015) 238 Cal.App.4th 695, 704, 189 Cal.Rptr.3d 560.) Where, as here, a trial court severely curtails the number of compensable hours in a fee award, the operative impact of that presumption can include a presumption the trial court concluded the fee request was inflated. (See, e.g., Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 817, 5 Cal.Rptr.2d 770 [substantial reduction in claimed costs "indicat[es] Levy...