569 East County etc. v. Backcountry etc. ( 2016 )

Filed 12/29/16 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
OPINION ON REHEARING
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
569 EAST COUNTY BOULEVARD LLC et D068538
al.,
Plaintiffs and Respondents,
(Super. Ct. No. 37-2014-00025797-
v. CU-MC-CTL)
BACKCOUNTRY AGAINST THE DUMP, ORDER MODIFYING OPINION
INC., AND DENYING REHEARING
(NO CHANGE IN JUDGMENT)
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on December 5, 2015, be modified as
follows:
1. On page 3, at the end of footnote 3, after the last line of the paragraph ending with
the words "propriety of BAD's current request, we nevertheless grant BAD's request for
judicial notice," insert the following language as part of the same paragraph of the
footnote:
The newly lodged First Amended Complaint confirms BAD was a named
defendant in only one cause of action. Although BAD was later named in a
paragraph alleging BAD's conduct warranted an award of punitive damages
to plaintiff, which paragraph was appended to a different cause of action (in
which BAD was not a named defendant) and later incorporated by
reference in yet another cause of action (in which BAD was again not a
named defendant), this paragraph did not state additional causes of action
against BAD. In California, it is settled there is no separate cause of action
for punitive damages. (McLaughlin v. National Union Fire Ins. Co. (1994)
23 Cal. App. 4th 1132, 1164.) Instead, a claim for punitive damages is
merely an additional remedy that is dependent on a viable cause of action
for an underlying tort. (Brewer v. Second Baptist Church of Los Angeles
(1948) 32 Cal. 2d 791, 801-802; Prakashpalan v. Engstrom, Lipscomb &
Lack (2014) 223 Cal. App. 4th 1105, 1137.)
2. On page 15, line 5, delete the entire last sentence of the paragraph, beginning with
the words "Moreover, noted the trial court," and replace the sentence with the following:
Moreover, noted the trial court, the anti-SLAPP motion by BAD's attorneys
was directed at a complaint in which BAD was a named defendant in only a
single cause of action, and did not involve either novel or complex issues.
3. On page 18, line 5, footnote 16, in the paragraph's second sentence beginning
"None of the cases relied on by BAD for this proposition," delete the parenthetical
citation to the Mountjoy v. Bank of America, N.A. (2016) 245 Cal. App. 4th 266 case, so
the second sentence reads in full as follows:
None of the cases relied on by BAD for this proposition reversed a fee
award based on a failure to determine separate rates for each attorney
involved, and other cases have either implicitly approved use of a blended
rate (Cates v. Chiang (2013) 213 Cal. App. 4th 791, 819-820) or have
refused to reverse an award premised on use of a blended rate, particularly
where, as here, there was evidence that would permit a conclusion a more
highly paid senior partner should participate only in higher-level tasks and
should delegate more mundane tasks to associates at much lower billable
rates.
4. On page 19, at the end of footnote 17, after the parenthetical explanation of the
Rebney v. Wells Fargo Bank (1991) 232 Cal. App. 3d 1344 case at the end of the
2
paragraph, ending with the words "appellate court must infer all findings on these points
in favor of prevailing parties," insert the following language as a second paragraph of the
footnote:
BAD cites, for the first time in its original rehearing petition, two cases
which purport to require a more detailed statement of decision when a fee
award is substantially reduced: Gorman v. Tassajara Development Corp.
(2009) 178 Cal. App. 4th 44 and Kerkeles v. City of San Jose (2015) 243
Cal. App. 4th 88. However, we may disregard new authority cited for the
first time in a petition for rehearing. (Bullis Charter School v. Los Altos
School Dist. (2011) 200 Cal. App. 4th 1022, 1036, fn. 6.) Moreover, even
were we to consider those cases, neither case requires reversal here. In
Gorman, the court reviewed and reversed an unexplained (and apparently
inexplicable) reduction in the fee award, which is distinct from the court's
award here. Indeed, the Gorman court observed that, when confronted by a
lengthy fee request, "[a] reduced award might be fully justified by a general
observation that an attorney overlitigated a case or submitted a padded bill
or that the opposing party has stated valid objections." (Gorman, supra, at
p. 101.) Kerkeles is likewise inapposite, because it involved an award of
fees under 42 United States Code section 1988, which arguably requires
more detailed explanation for a reduced fee award. (Kerkeles, supra, at
pp. 101-104, citing federal cases and observing "[w]e thus conclude that the
reasoning expressed in the court's order does not meet the federal criterion
of a clear and specific explanation sufficient for meaningful appellate
review," italics added.)
There is no change in the judgment.
The petition for rehearing is denied.
AARON, Acting P. J.
Copies to: All parties
3
Filed 12/5/16; on rehearing (unmodified version)
CERTIFIED FOR PUBLICATION
OPINION ON REHEARING
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
569 EAST COUNTY BOULEVARD LLC et D068538
al.,
Plaintiffs and Respondents,
(Super. Ct. No.
v. 37-2014-00025797-CU-MC-CTL)
BACKCOUNTRY AGAINST THE DUMP,
INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, John S.
Meyer, Judge. Affirmed.
Law Offices of Stephan C. Volker, Stephan C. Volker, Daniel Garrett-Steinman
and Jamey M.B. Volker for Defendant and Appellant.
Mark M. Clairmont and Paul W. Pitingaro for Plaintiffs and Respondents.
Plaintiff 569 East County Boulevard, LLC, and others (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.) 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
I
BACKGROUND
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
1 All statutory references are to the Code of Civil Procedure unless otherwise
specified.
2 After our original opinion was filed in this matter, BAD petitioned for rehearing,
asserting it had improperly been denied the opportunity to orally argue this matter before
this court. We granted BAD's petition for rehearing.
3 Plaintiffs' complaint alleged numerous claims against entities and individuals other
than BAD, which had elected to omit a copy of the operative pleading from the original
appellant's appendix. However, as part of its petition for rehearing, BAD now seeks to
2
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
supplement the record by its current request that we judicially notice plaintiffs' first
amended complaint on rehearing. BAD's current request for judicial notice is
unaccompanied by any citation to pertinent authority permitting a party to cure defects in
its original record on appeal as part of and in support of its petition for rehearing. We are
unaware of any controlling California authority on this question, although courts in other
jurisdictions have rejected similar efforts. (See, e.g., Scott v. Peterson (Okla. 2005) 126
P.3d 1232, 1238, fn. omitted ["On rehearing the Scotts present additional facts in support
of their argument. Generally, this Court does not allow a record to be supplemented by
the parties on rehearing, and the few exceptions to this rule are not present in this case."];
accord, Tanner v. State Corp. Comm'n (Va. 2003) 580 S.E.2d 850, 852-853; Saldana v.
Garcia (Tex. 1955) 285 S.W.2d 197, 201.) While we have substantial doubt on the
propriety of BAD's current request, we nevertheless grant BAD's request for judicial
notice.
4 BAD also demurred to other causes of action asserted in the complaint. However,
those other causes of action neither named BAD as a defendant nor were directed at
actions taken by BAD. BAD nevertheless argued below, and claims on appeal, that it
was appropriate and necessary to attack those causes of action. BAD's sole rationale for
this argument is that Tisdale was a named defendant in those claims, and the complaint's
general allegations included an allegation Tisdale was BAD's president. However, the
complaint separately alleged Tisdale occupied a different capacity--as President of the
Boulevard Planning Group. Moreover, the other causes of action (in which BAD was not
named) were directed at numerous public entities and officers, including the County of
San Diego, the County of San Diego's board of supervisors, two individuals (one who
served as commissioner for the San Diego local agency formation commission and the
other who served on the San Diego County planning commission) and Tisdale; the
substantive basis for those causes of action was that these individuals and entities
violated various constitutional and statutory protections (and committed fraud) in
connection with their actions as public officials surrounding a General Plan Update, a
2013 Housing Element Update, and a 2014 General Plan Amendment, and that these
actions damaged plaintiffs. Indeed, BAD's demurrer was largely based on defenses
available to Tisdale in her capacity as an elected official (rather than defenses available to
her in her other capacities as an private citizen or as an officer of BAD), because the
3
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 for himself as lead attorney,
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 "block-billed" time. For all of
demurrer raised such issues as the statute of limitations under Government Code section
65009, subdivisions (c) and (d), the official and legislative immunities protections
enjoyed by elected officials (Gov. Code, §§ 820.9, 822.2), and the bars of the
Government Claims Act (Gov. Code, § 905 et seq.) and exhaustion of remedies
requirements (Gov. Code, § 91007).
5 That ruling was apparently based on the conclusion BAD had met its threshold
burden under the anti-SLAPP statute and thereby shifted to plaintiffs the burden to show
likely success on the merits (Zamos v. Stroud (2004) 32 Cal. 4th 958, 965; Stewart v.
Rolling Stone LLC (2010) 181 Cal. App. 4th 664, 679), and plaintiffs had not shown any
economic relationship had been disrupted.
4
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 [cocounsel]." 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
6 The court premised its hourly rate determination on its earlier determination
concerning the reasonable hourly rate for the work performed by the attorney who
separately represented Ms. Tisdale in her anti-SLAPP motion directed at the same
pleadings. The attorney separately representing Ms. Tisdale had 27 years of experience
practicing in San Diego and charged $275 per hour, and the court determined there was
"no reason to deviate from this determination" for BAD's counsel, who was "equally
qualified" as Tisdale's counsel. The court, after granting Tisdale's anti-SLAPP motion,
ultimately awarded her counsel $71,485 as reasonable attorney fees. In the same
proceeding, the court also considered the proper fee award to the attorneys for numerous
other parties to this action (i.e. Endangered Habitat League, Inc., Endangered Habitats
Conservancy, Inc., Protect Our Communities Foundation, Inc., and Michael Beck) who
occupied a similar position as BAD: plaintiffs asserted a single cause of action against
them, and they successfully moved to dismiss that claim under the anti-SLAPP statute.
The court awarded attorney fees of less than $30,000 to these defendants.
5
time spent on the anti-SLAPP motion and the fee motion, and awarded $28,290 as
reasonable attorney fees.
II
LEGAL 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.
A. 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 (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
6
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.) 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.)
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.) 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.) However, a fee award under the anti-SLAPP statute may not include matters
7 Indeed, there is authority that holds an unreasonably inflated fee request permits
the trial court to deny any request for fees at all. (Christian Research Institute v. Alnor
(2008) 165 Cal. App. 4th 1315, 1322 (Christian Research).) The rationale for this
discretionary authority is that, if the trial court were required to award a reasonable fee
when counsel overreached, it would encourage overreaching because the only penalty
would be recovery of the reasonable fee for which counsel should have sought
reimbursement from the start. (Ibid.)
7
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.) 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, 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.) 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 (Ketchum); cf. In re Tobacco Cases I (2013) 216
Cal. App. 4th 570, 587 [amount of attorney fees in vested in trial court discretion and, on
8 Certainly, the discretion of a trial judge is a legal discretion subject to the
limitations of legal principles governing the subject of its action and, when the trial court
mistakenly applies erroneous legal principles when exercising its discretion, we may
review the error de novo. (See, e.g., City of Sacramento v. Drew (1989) 207 Cal. App. 3d
1287, 1297.)
8
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.) 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 [substantial reduction in claimed costs "indicat[es] Levy improperly inflated his
claimed" amounts].)
9 An additional principle of appellate review is operative in this appeal. It is
fundamental that an order is presumed correct, and the burden of affirmatively
demonstrating error is on the appellant. (Fundamental Investment etc. Realty Fund v.
Gradow (1994) 28 Cal. App. 4th 966, 971.) This places on appellant the burden to provide
an adequate record on appeal to allow the reviewing court to assess the purported error
(Gee v. American Realty & Construction, Inc. (2002) 99 Cal. App. 4th 1412, 1416), and if
the record on appeal does not contain all of the documents or other evidence considered
by the trial court, a reviewing court will "decline to find error on a silent record, and thus
infer that substantial evidence" supports the trial court's findings. (Haywood v. Superior
Court (2000) 77 Cal. App. 4th 949, 955.)
9
III
ANALYSIS
A. The Abuse of Discretion Standard Applies to This Appeal
Although BAD acknowledges the ordinary standard of review for fee awards is the
deferential abuse of discretion standard, it appears to argue we should apply a de novo
review to its claims in this appeal. We agree the determination of whether the trial court
selected the proper legal standards in making its fee determination is reviewed de novo
(see, e.g., City of Sacramento v. Drew, supra, 207 Cal.App.3d at p. 1297) and, although
the trial court has broad authority in determining the amount of reasonable legal fees, the
award can be reversed for an abuse of discretion when it employed the wrong legal
standard in making its determination. (Walker v. Ticor Title Co. of California (2012) 204
Cal. App. 4th 363, 370.) However, our review of the trial court's application of the correct
legal standards to the circumstances of a specific case requires that we employ the abuse
of discretion standard. (Cabral, supra, 177 Cal.App.4th at p. 491.)
BAD cites numerous cases, including Graham v. DaimlerChrysler Corp. (2004)
34 Cal. 4th 553, to argue a fee award can be reversed when the court applied the wrong
legal standards, and asserts those authorities support reversal of the fee award in this case.
We believe the cases cited by BAD for its argument in favor of de novo review have no
persuasive applicability here, because the record makes clear the court did not
10
misunderstand the legal matrix that guided its evaluation of BAD's fee request.10 To the
contrary, the minute order addressing the various fee requests specifically recited that the
amount of an attorney fee award under the anti-SLAPP statute is to be computed by the
lodestar method, which begins with calculating the number of hours reasonably expended
on the anti-SLAPP motion (and the fees on fees motion) and excluding hours spent on
non-SLAPP tasks or that were inefficient or duplicative, and then multiplying those hours
10 BAD's petition for rehearing relies heavily on McKenzie v. Ford Motor Co., supra,
238 Cal. App. 4th 695. BAD appears to argue that, under McKenzie, when a court's
minute order contains an explicit statement of its reasons for a fee award in an anti-
SLAPP case, a reviewing court (1) must examine the stated reasons and (2) may not infer
that the discretionary determination of the amount of the fee award rested on any other
basis. We believe BAD misreads McKenzie. First, such a reading of McKenzie appears
inconsistent with the ordinary standard of appellate review that counsels, absent special
circumstances not present here (see, e.g. Tellez v. Rich Voss Trucking, Inc. (2015) 240
Cal. App. 4th 1052 [discretionary decision on whether to certify a class]), we do not
address the trial court's reasoning and consider only whether the result was correct. (See
generally Truck Ins. Exchange v. County of Los Angeles (2002) 95 Cal. App. 4th 13, 20.)
More importantly, we interpret McKenzie as holding that, when the record affirmatively
shows the trial court's discretionary determination of fees pivoted on a factual finding
completely lacking in evidentiary support, the matter must be reversed with instructions
to redetermine the award. In McKenzie, a buyer sued an automobile manufacturer under
the so-called "lemon law." The buyer rejected the defendant's first section 998 settlement
offer and thereafter incurred additional attorney fees to continue the litigation. However,
the buyer later accepted the defendant's second section 998 settlement offer, and
thereafter the buyer sought attorney fees. The trial court granted fee request, but refused
to award any fees incurred after the first section 998 offer because the trial court found
the second settlement offer (ultimately accepted by the buyer) was indistinguishable from
the first offer, and therefore fees after the date of the first offer were unreasonable and
should not be recovered. (McKenzie, at pp 698-702.) The appellate court reversed,
holding that the record clearly showed the two offers were not indistinguishable (id. at
pp. 704-708), and therefore the basis for denying the buyer all attorney fees incurred
during the interim was an abuse of discretion. Thus, we believe McKenzie stands only
for the unremarkable proposition that an "abuse of discretion is shown when it may be
fairly said that the court exceeded the bounds of reason or contravened uncontradicted
evidence." (Mustachio v. Great Western Bank (1996) 48 Cal. App. 4th 1145, 1151.)
11
by the reasonable hourly rate prevailing in the community for similar work to obtain the
"lodestar" (see, e.g., Cabral, supra, 177 Cal.App.4th at p. 491), and then considering
whether to adjust that lodestar upwards or downwards under the facts of the case.
Because the record affirmatively shows the court understood and employed the
correct legal matrix here, the cases cited by BAD have no application. For example, in
Graham v. DaimlerChrysler Corp., supra, 34 Cal. 4th 553, the court merely held that a
trial court award, calculated by applying the same "risk multiplier" to a lodestar amount
that amalgamated both fees and "fees on fees" work, should be reconsidered "in light of
this opinion's conclusion that the risk multiplier for [fees on fees work] generally should
be lower than for fees in the underlying litigation." (Id. at p. 584.) Thus, the ruling in
Graham was premised on the finding the trial court did not apply (and indeed could not
have applied) the new principle decided in Graham, which has no application here. The
other authorities cited by BAD are appear to be similarly inapposite.11 Because we
11 For example, BAD cites Rogel v. Lynwood Redevelopment Agency (2011) 194
Cal. App. 4th 1319 as an example of a court reversing a fee determination where the court
failed to apply the correct legal standards. However, in Rogel, the trial court calculated a
lodestar of approximately $2.7 million for attorney fees in litigation against a
governmental agency, but then applied a negative multiplier to that lodestar (reducing the
award to approximately $540,000) because the court stated " '[I]t seems as though the
money should be spent in Lynwood and not on the lawyers.' " (Id. at p. 1328.) Rogel
reversed because it concluded that preservation of the government fisc was not a proper
factor to consider when applying a multiplier to the lodestar. (Id. at p. 1321.) Here,
although the award was less than sought by BAD, the rationale for the award was limited
to proper factors (the court's evaluation of hours reasonably expended on the anti-SLAPP
and the fees on fees motions and the reasonable hourly rate prevailing in the
community), rendering Rogel's de novo consideration of the award inapposite. The other
cases involved similar defects in the award. (See Hogar Dulce Hogar v. Community
Development Com. of City of Escondido (2007) 157 Cal. App. 4th 1358, 1361 [reversing
12
perceive that BAD's appellate attack on the fee award challenges how the court applied
the applicable standards to its fee request, rather than on what standards the court
employed, we reject BAD's argument that this court may abandon the abuse of discretion
standard of review in favor of a de novo review of the fee award.
B. The Hourly Rate Claim
BAD first asserts that, when tabulating the lodestar, the trial court abused its
discretion when it set a flat hourly rate of $275 for all of BAD's counsel because that rate
disregarded the different levels of experience for each of BAD's counsel and disregarded
BAD's evidence of the prevailing market rate.
The courts repeatedly have stated that the trial court is in the best position to value
the services rendered by the attorneys in his or her courtroom (see, e.g., Ketchum, supra,
24 Cal.4th at p. 1132), and this includes the determination of the hourly rate that will be
used in the lodestar calculus. (See, e.g., Syers Properties III, Inc. v. Rankin (2014) 226
Cal. App. 4th 691, 700-703.) In making its calculation, the court may rely on its own
knowledge and familiarity with the legal market, as well as the experience, skill, and
reputation of the attorney requesting fees (Heritage Pacific Financial, LLC v. Monroy
(2013) 215 Cal. App. 4th 972, 1009), the difficulty or complexity of the litigation to which
where record showed court categorically excluded from award any pre-litigation attorney
fees, and most of work on "fees on fees" motion, even though law clearly provided both
categories were properly awardable]; Graciano v. Robinson Ford Sales, Inc. (2006) 144
Cal. App. 4th 140, 154-155 [reversing award for numerous errors, including error in
setting attorney fee hourly rate at lower "expert witness fee" rate where only evidence of
reasonable hourly rate prevailing in the community was of higher rate and that evidence
was unrebutted and opposing counsel indicated it was not challenging the higher rate].)
13
that skill was applied (Syers Properties at p. 700; accord, Moreno v. City of Sacramento
(9th Cir. 2008) 534 F.3d 1106, 1114), and affidavits from other attorneys regarding
prevailing fees in the community and rate determinations in other cases. (Heritage, at
p. 1009.)
Here, the parties presented conflicting affidavits concerning the appropriate hourly
rate for seasoned attorneys and fifth year associates. BAD's expert, who premised his
opinion on numerous factors (including the so-called "Laffey Matrix"), testified that $750
per hour for Mr. S. Volker and $350 per hour for the three fifth-year associates working
on the case was within the market range charged for similar services by similarly
qualified attorneys. However, plaintiffs submitted contrary declarations that the market
range charged for similar services by similarly qualified attorneys was much lower. 12
Moreover, the court was cognizant that the rate charged by a very seasoned attorney from
the relevant community (San Diego), who represented Ms. Tisdale in this same litigation
12 Two of plaintiffs' experts testified the range charged by a fifth-year associate in
San Diego would begin as low as $200 per hour, and that attorneys with 25 plus years of
experience charge between $450 and $500 per hour. Moreover, one of those experts, an
attorney with particular expertise in anti-SLAPP litigation, noted such lower-billing
associates "will be doing the 'heavy' lifting work of research and initial drafting of the
pleadings" as well as still being on their "learning curve." Although BAD appears to
argue on appeal that its expert was the only qualified attorney fee expert to provide
evidence below, the record on appeal contains no suggestion BAD objected at trial to the
qualifications of the two attorneys proffered by plaintiffs to give opinions on the hourly
rate and total hours questions, and the qualification of a witness to state his or her opinion
is waived by failure to object to the testimony when offered. (Leach Corp. v. County of
Los Angeles (1964) 228 Cal. App. 2d 634, 641.) Accordingly, the opinions expressed by
plaintiffs' experts, "standing alone, is not only substantial evidence but is enough to
sustain the judgment even in the face of a conflict." (Ibid.)
14
and whose anti-SLAPP motion successfully extricated her from the multiple and complex
claims pleaded against her, was $275 per hour. Moreover, noted the trial court, the anti-
SLAPP motion by BAD's attorneys involved only a single cause of action and did not
involve either novel or complex issues.
On this record, the trial court concluded (1) the rate claimed by BAD's attorneys
was excessive, and (2) a rate of $275 per hour was an appropriate overall rate to apply to
the hours properly attributable to BAD's anti-SLAPP motion. Certainly, the trial court
was not bound by the contrary opinions submitted by BAD's expert. (Syers Properties
III, Inc. v. Rankin, supra, 226 Cal.App.4th at p. 702 ["the trial court was neither required
to follow the Laffey Matrix nor to adopt the rate defense counsel opined was the 'market
rate' for services of this type"].) BAD's appellate argument merely asks this court to
reweigh the competing evidence. For example, BAD suggests the $275 rate charged by
Tisdale's counsel was an "admittedly low-end contract rate with a public entity," and
hence cannot represent an appropriate market rate, without citing anything in the record
containing that "admission." BAD also argues the $275 rate lacked any evidentiary
support because even plaintiffs' experts opined $450 was an appropriate rate for a
seasoned attorney. This argument overlooks two alternative evidentiary groundings for
selecting the $275 per hour rate. First the $275 per hour rate was found and used by the
trial court as an appropriate rate when it considered the fee award for the "seasoned"
attorney representing Ms. Tisdale (who was confronted with a more complex set of issues
than was BAD's counsel), and we must presume there was evidentiary support for that
15
determination.13 Second, BAD's argument ignores the opinions contained in the attorney
declarations filed by plaintiffs that the heavy lifting would ordinarily be done by younger
associates, whose rates would begin as low as $200 per hour, rather than by a senior
attorney at a higher billing rate.14 (See fn. 12, ante.) Because there was evidence this
13 BAD has not provided this court with the record, filed in connection with Tisdale's
motion for attorney fees that was heard and decided concurrently with BAD's separate fee
motion, on which the court premised its conclusion that $275 per hour was an appropriate
market rate for a seasoned San Diego-based counsel addressing an even more wide-
ranging set of issues (i.e., the attorney who represented Ms. Tisdale on all the claims
pleaded against her). Accordingly, we must presume substantial evidence supports the
finding that $275 per hour is an appropriate market rate for a seasoned San Diego-based
attorney addressing the types of issues that attorneys for BAD also addressed. (See fn. 9,
ante.)
14 Indeed, the trial court's award could well have been based on an implied finding
that, in light of the trial court's express foundational conclusion that BAD's anti-SLAPP
motion involved issues that "were not especially novel or complex," the "heavy lifting"
should have been done by lower-level associates at the market rate of $200 per hour, as
plaintiffs' declarations averred, rather than by BAD's lead attorney (Mr. Volker) at his
much higher rate. Although Mr. Volker has a stellar resume, and may justifiably
command a $750 hourly rate when the intricacies of a particular case warrant his
specialized expertise, the trial court's express finding that this case was neither "novel
[n]or complex" can be construed as including an implied finding that utilizing an attorney
with such expertise was unnecessary under the circumstances. An attorney " 'is not
necessarily entitled to compensation for the value of attorney services according to [his]
own notion or to the full extent claimed by [him]. [Citations.]' " (Levy v. Toyota Motor
Sales, U.S.A., Inc., supra, 4 Cal.App.4th at p. 816.) Indeed, Volker conceded at oral
argument that he had neither defended nor prosecuted an anti-SLAPP action before this
case and, although he has great expertise and skill in other areas of law, his relative
inexperience in matters of this nature could properly be "included in the hourly rate used
to calculate the lodestar." (Ketchum, supra, 24 Cal.4th at p. 142; accord, Graciano v.
Robinson Ford Sales, Inc., supra, 144 Cal.App.4th at p. 156 ["in ascertaining the
reasonable hourly rate, the court . . . determine[s] the prevailing rate in the community for
comparable professional legal services"].) Assuming the trial court agreed the "heavy
lifting" should have been done by lower-level associates at the market rate of $200 per
hour, it could have concluded, for example, that 80 percent of the hours it ultimately
allowed (103.6 hours) should have been done by associates at a rate of $200 per hour,
16
was a relatively uncomplicated anti-SLAPP motion, in which the yeoman's work could
have been handled by associates billing much lower rates, there was evidence on which
the trial court could have concluded the " 'reasonable hourly rate prevailing in the
community for similar work' " (Cabral, supra, 177 Cal.App.4th at p. 491) was $275 per
hour rather than the much higher rates charged by attorney S. Volker.15
BAD's claim—that failure to adopt the rates set forth by its expert was an abuse of
discretion—is unconvincing.16 Instead, we conclude the trial judge was " ' "the best
rendering the associates' component of the fee award to be approximately $16,576. The
remainder of the fee award ($11,714), assuming the remaining 20 percent of the
allowable hours was attributed to S. Volker, would have resulted in an award that
employed a billing rate for Mr. Volker's allowable hours of over $550 per hour.
Certainly, there was ample evidentiary support for the implied conclusions that $200 per
hour for lower-level associates and $550 per hour for a seasoned litigator fell within the
range of appropriate market rates for San Diego attorneys, and (as discussed below, see
fn. 16, post), the fact the court chose to apply a blended rate to all of the hours it found to
be allowable provides no basis for reversing the trial court's award.
15 The federal courts appear to be in accord. (See Fisher v. City of San Diego (S.D.
Cal. Aug 14, 2013) 2013 WL 4401387 at p. *2 ["While delegation of more routine tasks
is not required, an attorney who does everything himself would typically bill at a lower
hourly rate than one who does only the most difficult work. This avoids 'top-heavy'
billing."]; accord, Hernandez v. Taqueria El Grullense (N.D.Cal. June 11, 2014) 2014
WL 2611214, at p. *3 ["[S]ince Moreno, various courts in the Ninth Circuit have found
that hours are not reasonably expended when routine tasks are billed by highly
experienced attorneys, rather than being delegated to colleagues with appropriate levels
of experience."].)
16 BAD's petition for rehearing also claims the trial court was required to determine
separate rates for each attorney involved to properly apply the lodestar analysis, and
asserts the trial court's application of a single rate of $275 per hour to all attorneys who
performed work (regardless of the level of skill and experience of each attorney) was
therefore reversible error. None of the cases relied on by BAD for this proposition
reversed a fee award based on a failure to determine separate rates for each attorney
involved, and other cases have either implicitly approved use of a blended rate (Cates v.
17
judge of the value of professional services rendered in his court" ' " (Ketchum, supra, 24
Cal.4th at p. 1132) and we affirm his determination because we are not " ' "convinced that
it is clearly wrong." ' " (Ibid.)
C. The Total Hours Claim
BAD's fee motion submitted declarations, along with billing summaries, averring
it spent 213.7 hours on the merits motion (nearly 80 percent of which was attributed to
the senior attorney's efforts) and another 86.7 hours on the fees on fees motion (largely
attributed to the work of the associates). BAD argues the court abused its discretion by
reducing the hours worked in connection with the merits and fees on fees motions below
the hours claimed by BAD in its fee motion.17
Chiang (2013) 213 Cal. App. 4th 791, 819-820) or have refused to reverse an award
premised on use of a blended rate (see, e.g., Mountjoy v. Bank of America, N.A. (2016)
245 Cal. App. 4th 266, 272-273), particularly where, as here, there was evidence that
would permit a conclusion a more highly paid senior partner should participate only in
higher-level tasks and should delegate more mundane tasks to associates at much lower
billable rates. (See, e.g., Finkelstein v. Bergna (N.D. Cal. 1992) 804 F. Supp. 1235,
1238.) Although we may have reached a different conclusion on the appropriate billing
rate, it has long been recognized the above is an insufficient basis to find that the
conclusion reached by the trial court was an abuse of its discretion. (Cf. Bedford v.
Pacific Structural Welding Corp. (1932) 121 Cal. App. 162, 163.)
17 BAD also appears to assert it was error for the trial court (1) to render an award
for a lump sum number of hours rather identifying the hours it attributed to the merits
motion and separately identifying the hours it attributed to the fees on fees motion, and
(2) to reduce the hours without providing a mathematically-based explanation for the
reductions it applied to each of the two motions. However, BAD cites no authority
suggesting a trial court's determination of the appropriate amount of the fee award will be
reversed absent some type of statement of decision, and the law is to the contrary.
(Ketchum, supra, 24 Cal.4th at p. 1140 [rejecting claim that award requires " 'reasoned
explanation' " for determinations on specific items within award; a trial court is "not
required to issue a statement of decision with regard to the fee award."].) Moreover,
18
We conclude the decision to premise the lodestar amount by using an hour
multiplier that was fewer hours than claimed by BAD was not an abuse of discretion.
Although BAD's billing statements in support of a fee request form the " 'starting point' "
for the " ' "hours reasonably expended" ' " component of the lodestar calculation
(Christian Research, supra, 165 Cal.App.4th at p. 1324), the trial court is not bound to
accept the evidence submitted by counsel when making its determination (id. at p. 1326),
and may reduce the hours if it concludes the attorneys performed work unrelated to the
anti-SLAPP motion, or represented work that was unnecessary or duplicative or
excessive in light of the issues fairly presented. (Ibid.) When 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." (Ketchum, supra, 24 Cal.4th at p. 1138, fn.
omitted.)
Here, the record contains sufficient support for the trial court's decision to adjust
downward the hour component for the lodestar calculus. First, the court could conclude
many of the hours represented work unrelated to either the merits motion or the fees
motion, such as work on discovery, ex parte appearances, work surrounding the case
management conference, and conferring with cocounsel. The court could also have
BAD cites no authority suggesting a fee award may be reversed merely because the trial
court awarded a reduced amount without explicit explanations about disallowed hours or
unapportioned hours, and the law appears to be to the contrary. (See, e.g., Rebney v.
Wells Fargo Bank (1991) 232 Cal. App. 3d 1344, 1349 [as long as record demonstrated
award was based on lodestar approach, court is "not required to explain which of
counsel's hours were disallowed, or how or whether any hours were apportioned" and
appellate court must infer all findings on these points in favor of prevailing parties].)
19
concluded downward adjustment was necessary because many billings involved entries
that were either vague or were "blockbilled" time entries, and represented padding.18
(Christian Research, supra, 165 Cal.App.4th at pp. 1325-1326.) Finally, the court could
have concluded a substantial number of the hours claimed by BAD were unnecessary19
18 The trial court here expressly stated it had "culled through the billing statement,"
and had also considered the plaintiffs' opposition to the fee motion, in reaching its
determination to severely reduce the "number of hours" component of the lodestar
calculation. As the court observed in Christian Research, supra, 165 Cal.App.4th at pp.
1325-1326: "Where, as here, the trial court severely curtails the number of compensable
hours in a fee award, we presume the court concluded the fee request was padded.
[Citations.] An attorney's chief asset in submitting a fee request is his or her credibility,
and where vague, blockbilled time entries inflated with noncompensable hours destroy an
attorney's credibility with the trial court, we have no power on appeal to restore it."
19 Many of the hours claimed by BAD were expended to prepare and file a demurrer
(mooted by the order granting the anti-SLAPP motion) attacking causes of action not
directed at BAD, but instead appear to have been directed only at the other defendants
(including Tisdale) for actions taken in their official capacities. Although BAD appears
to assert on appeal the court erred by excluding the efforts its attorneys devoted to the
demurrer, that claim is based on BAD's assertion those efforts developed legal arguments
that were "clearly 'inextricably intertwined' " with the arguments necessary to its
successful anti-SLAPP motion, an argument presented below and rejected by the trial
court. The trial court was aware of the nature of the claims pleaded against Tisdale, as
well as the single claim pleaded against BAD, and we are unconvinced the allegation that
Tisdale was president of BAD somehow raised the potential that BAD would be held
vicariously liable for Tisdale's actions in her governmental capacity. (See fn. 4, ante.)
Moreover, the trial court was also intimately familiar with the fact Tisdale had her own
counsel mounting her own vigorous defense, which would permit the trial court to
conclude BAD's legal efforts (beyond responding to the single cause of action against it)
were superfluous and/or duplicative of the efforts of Tisdale's attorney, and therefore
were not reasonably necessary expenses for extracting BAD from the baseless lawsuit.
(Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi, supra, 141 Cal.App.4th at p.
22.) Because BAD has not provided any part of the pleadings filed by Tisdale's attorney
in this action, we must presume on this record the court had substantial evidence on
which to reject BAD's claim that its efforts to extricate Tisdale from claims asserted
against her in her official capacity were inextricably intertwined with or reasonably
necessary to its efforts to extricate BAD from the single claim pleaded against BAD.
20
because it concluded that, although BAD's counsel had "expresse[d] confusion with the
pleadings," the court found "there was only one cause of action that was the subject of
[BAD's] anti-SLAPP motion and the issues were not especially novel or complex."
Under these circumstances, we cannot conclude the trial court abused its discretion
in limiting the hour component of the lodestar calculus to a combined amount, for both
the merits motion and the fees on fees motion, to over 100 hours.
DISPOSITION
The trial court's attorney fees award is affirmed. Plaintiffs are entitled to their
costs on appeal.
IRION, J.
WE CONCUR:
AARON, Acting P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
21