Opinion
H031972
4-15-2008
SOREN ANDERSEN, Plaintiff and Appellant, v. MAIA YOUNG, et al., Defendants and Respondents.
NOT TO BE PUBLISHED
I. INTRODUCTION
Appellant Soren Andersen appeals from an order awarding $58,000 in attorneys fees to respondents Maia Young and Stanford University. Respondents were awarded attorneys fees after the trial court granted their special motion to strike appellants complaint as a strategic lawsuit against public participation, within the meaning of Code of Civil Procedure section 425.16, the anti-SLAPP statute.
The anti-SLAPP statute provides that "[a] cause of action against a person arising from any act of that person in furtherance of the persons 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." (Code Civ. Proc., § 425.16, subd. (b)(1).)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Appellant challenges the award of attorneys fees. For reasons that we will explain, we conclude that the trial court did not abuse its discretion in awarding attorneys fees to respondents in the amount of $58,000.
II. FACTUAL AND PROCEDURAL BACKGROUND
Complaint
Appellant brought an action against respondents in San Mateo County on July 13, 2004. Appellant alleged that Young defamed him by making statements to the police and to Stanford authorities that he vandalized her property, and that Stanford defamed him by republishing the assertions that he vandalized her property, harassed her, and was a "predator." In January 2005, respondents moved to change venue to Santa Clara County. Counsel for respondents also informed appellants attorney that respondents intended to file a motion to strike the complaint pursuant to the anti-SLAPP statute.
We take judicial notice of this courts opinion in appellants previous appeals. (Andersen v. Young (Nov. 6, 2006, H029484, H029742) [nonpub. opn.].) Our summary of the pertinent factual and procedural background includes some information that we have taken from our prior opinion.
The case was transferred to Santa Clara County in June of 2005. Appellant filed an amended complaint for defamation and defamation per se on July 15, 2005, shortly before the anti-SLAPP motion was to be filed by respondents. In the amended pleading, appellant removed allegations that Youngs statements to the Menlo Park Police Department were defamatory.
Anti-SLAPP Motion
Respondents revised and then filed their anti-SLAPP motion on July 18, 2005, and they later filed a demurrer.
On August 30, 2005, the trial court heard respondents anti-SLAPP motion and demurrer, along with an ex parte request by appellant for leave to take discovery and for a stay of proceedings. The court filed its order and statement of decision the next day. The court granted respondents anti-SLAPP motion, denied appellants request for discovery, and found respondents demurrer to be moot in light of the ruling on the anti-SLAPP motion.
First Motion for Attorneys Fees
On October 14, 2005, respondents filed a motion for attorneys fees under section 425.16, subdivision (c), which provides that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys fees and costs." Appellant did not file opposition. Instead, he filed a notice of appeal from the courts order granting the anti-SLAPP motion, and he sought to stay further proceedings on the attorneys fees motion pending appeal.
On November 10, 2005, the trial court heard respondents motion for attorneys fees. Appellant, who had earlier substituted himself in as counsel, did not appear at the hearing.
The court granted the motion, and on December 22, 2005, the court entered an order awarding respondents $79,000 in attorneys fees and $776.90 in costs. Appellant filed an appeal from this order.
First Appeal
This court considered appellants appeals from the order granting the anti-SLAPP motion and the order awarding attorneys fees together. First, we affirmed the order granting respondents anti-SLAPP motion. In determining that appellants first amended complaint was subject to dismissal under section 425.16, we noted that appellant had conceded that Youngs communications with the Menlo Park Police Department during the investigation of the vandalism incident were protected under section 425.16, subdivision (e)(1), as statements made in the course of a police report and investigation concerning possible criminal activity. We found that the other statements and communications that appellant complained of, which were by and between Stanford personnel and Young, were reasonably connected to, and flowed from, the initial report and investigation by the Menlo Park Police Department, which was still a matter "under consideration or review" by an official body, within the meaning of section 425.16, subdivision (e)(2). We also found that appellant failed to demonstrate a probability of prevailing on his defamation claims because, among other reasons, many of his allegations lacked factual support, several of the statements at issue were opinions and thus not actionable, and both the "official-proceeding privilege" and the "common interest privilege" under Civil Code section 47, subdivisions (b) and (c), respectively, applied. We further determined that the trial court did not abuse its discretion in denying appellants motion for discovery under section 425.16, subdivision (g), for lack of good cause.
Second, we reversed the order awarding attorneys fees to respondents. We explained that the award appeared to include fees for work that was not directly related to the motion to strike, such as the motion to change venue, the demurrer, and various case management issues. We remanded the matter so that the trial court could make an award of attorneys fees limited to those incurred on the motion to strike.
Lastly, we indicated that respondents were to have their costs regarding the appeal from the order granting the motion to strike, and appellant was to have his costs regarding the appeal from the order granting attorneys fees.
Second Motion for Attorneys Fees
On May 21, 2007, following remand, respondents filed a motion seeking an award of $58,000 in attorneys fees and $36.30 in costs. In their supporting memorandum, respondents asserted that they had incurred more than $110,000 in attorneys fees in defending the litigation. They explained, however, that they were only seeking an award of fees and costs that "were directly incurred in the preparation, filing and argument of the anti-SLAPP motion to strike." While they maintained that they had incurred additional attorneys fees that "should be attributed to the successful anti-SLAPP motion," including $4,000 in fees incurred in opposing appellants motion for discovery and $6,000 in fees incurred for their initial attorneys fees motion, respondents indicated that they had eliminated such fees from their pending attorneys fees motion "to avoid any dispute as to whether they are directly related to the [anti-SLAPP] motion . . . ." Respondents stated that "[t]he balance of the amount eliminated from the original award is the work on the motion to change venue and the demurrer." Respondents indicated that they did not seek "their fees and costs on appeal in an attempt to end litigation activity."
In support of their request for attorneys fees, respondents relied on a declaration from counsel, Jacob R. Sorensen, which had been filed with their initial motion for attorneys fees on October 14, 2005. Sorensen stated in the declaration that "[d]efendants incurred more than $58,000 in attorneys fees on the anti-SLAPP motion alone." The declaration set forth the basis for the request for fees, including the general level of experience of each of the three attorneys who worked on the anti-SLAPP motion, their respective standard billing rates, the fact that Stanford receives a discount on the firms standard billing rates, the total number of hours each attorney spent on the motion, and a summary of the work performed by each attorney regarding the motion.
In this regard, Sorensen stated in the declaration that he was a fifth-year associate with a standard billing rate of $370 per hour. He stated that he billed "about 65 hours" for "work directly related to the anti-SLAPP motion," which included "researching the grounds for the anti-SLAPP motion, reviewing documents and interviewing . . . clients to develop the factual basis for the motion, drafting the supporting documents, and overseeing the work" of his colleague, Jason Catz.
Sorensen stated that Catz, a third-year associate with a standard billing rate of $305 per hour, billed "about 90 hours directly related to the anti-SLAPP motion," which "included interviewing Officer Jeff Vasquez, Sergeant Del Bandy, Chris Griffith, Bridgette Martin and others to investigate the allegations and then prepare the witness declarations," "gather[ing] and review[ing] documents, conduct[ing] substantial research for the motion and prepar[ing] the initial drafts of the moving and reply papers."
Lastly, Sorensen stated that Sarah Flanagan, a partner with a standard billing rate of $525 per hour, "billed 30 hours on this case, about 25 of which were devoted to the motion to strike. Her efforts included directing the legal research and factual investigation and reviewing the results of them to determine if an anti-SLAPP motion was warranted, editing Stanfords motion to strike and demurrer, reviewing Plaintiffs opposition to each and working on the reply briefs for each. She also worked with Catz to draft the opposition to Plaintiffs motion for leave to take discovery. She appeared at the August 30 hearing to argue the motions."
On June 1, 2007, appellant filed a document entitled "Memorandum remittiturs H029484, H029742." The document states: "Service on the State Solicitor General required by Civil Code § 51. [¶] Service on the Judicial Council required by Code of Civil Procedure § 425.16. [¶] The proceedings and/or decisions in and/or associated with the cases 1-05-CV-042734(CIV440547), H029484, H029742, S148839 are neither approved nor recognized. [¶] In connection with H029742 alone, plaintiffs expenses are at least equivalent to any and all expenses defendants have claimed and/or may claim. [¶] The proceedings and/or decisions and/or conduct by attorney(s), judge(s), court(s), entitie(s), association(s), council(s), commission(s), agent(s), officer(s), director(s), employee(s) and/or defendant(s) in and/or associated with the cases 1-05-CV-042734(CIV440547), H029484, H029742, S148839 upset the provisions and/or intentions provided for Individuals in the US Constitution, the California Unruh Civil Rights Act and/or the Charter of Human Rights."
Respondents filed a reply brief on June 15, 2007, contending that appellants assertions were without any legal or evidentiary support and were irrelevant to their motion for fees and costs.
On June 22, 2007, the trial court heard the motion for attorneys fees. There was no appearance by appellant. The court indicated that it had "read the moving papers, the very brief opposition, the reply." The court noted that respondents "took a conservative position" regarding the fee request and "did not seek fees that arguably might be awarded, including fees on appeal." The court granted the motion and awarded respondents their attorneys fees in the amount of $58,000 and costs in the amount of $36.30. By written order filed June 22, 2007, the court found "that the fees and costs requested on remand are limited to Defendants activities in bringing their Anti-SLAPP motion, that those activities were reasonably undertaken by Defendants, and that the requested fees and costs for those activities are reasonable."
Appellant filed a notice of appeal on August 21, 2007, regarding the order granting attorneys fees.
Appellant does not challenge the award of costs in the June 22, 2007 order.
III. DISCUSSION
Attorneys Fees Pursuant to Section 425.16, Subdivision (c)
Under section 425.16, subdivision (c), a defendant who prevails on a special motion to strike is "entitled to recover his or her attorneys fees and costs." (§ 425.16, subd. (c).) The California Supreme Court has explained that under this subdivision, "any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum).) However, "the fee `provision applies only to the motion to strike, and not to the entire action. " (S. B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 381, citing Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1264 (1991-1992 Reg. Sess.); see also Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384.)
The award of fees may include "the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16." (Ketchum, supra, 24 Cal.4th at p. 1141.) In other words, the defendant may recover those fees " `necessary to establish and defend the fee claim. " (Ibid.) Recoverable attorneys fees under section 425.16, subdivision (c), also include those incurred on appeal. (Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.)
While the prevailing defendant is entitled to attorneys fees, the amount of fees is left to the trial courts discretion. (Ketchum, supra, 24 Cal.4th at p. 1134.) In exercising that discretion, the trial court should apply the lodestar adjustment approach to determine the amount of the fee award. (Id. at p. 1136.) "[T]he lodestar is the basic fee for comparable legal services in the community; . . ." (Id. at p. 1132) "[T]he lodestar figure may be increased by application of a fee enhancement, or reduced as appropriate, after the trial court has considered other factors concerning the lawsuit . . . ." (Id. at p. 1134.) The lodestar adjustment approach " `anchors the trial courts analysis to an objective determination of the value of the attorneys services, ensuring that the amount awarded is not arbitrary. " (Id. at p. 1134.)
The lodestar figure is calculated "based on the reasonable hours spent, multiplied by the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type. [Citation.]" (Ketchum, supra, 24 Cal.4th at p. 1133, italics omitted.) The reasonable hourly rate " ` "is the product of a multiplicity of factors . . . [:] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorneys reputation, and the undesirability of the case." [Citation.]" (Id. at p. 1139.)
The lodestar may be adjusted based on various 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, [and] (4) the contingent nature of the fee award. [Citation.]" (Ketchum, supra, 24 Cal.4th at p. 1132.) However, "the trial court is not required to include a fee enhancement to the basic lodestar figure . . . ." (Id. at p. 1138.) Moreover, "[t]o 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, fn. omitted.)
The trial courts determination of the appropriate fee is reviewed for an abuse of discretion. (Ketchum, supra, 24 Cal.4th at pp. 1130, 1134, 1138; see also Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at p. 785.) " `[T]he appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. [Citation.]" (Dove Audio, supra, at p. 785.)
Award of Attorneys Fees in the Present Case
Appellant questions the amount of hours expended by respondents counsel on the anti-SLAPP motion and contends the amount of fees awarded by the trial court was "exorbitant." Appellant explains that his "complaint was but 5 pages long with two causes of action for defamation and defamation per se . . . ." Appellant notes that respondents anti-SLAPP motion and accompanying memorandum were only 20 pages and accompanied by five declarations. Appellant contends that respondents attorneys have "repeatedly" asserted that his case was "meritless." Appellant argues that under respondents "theory of the case, it was not necessary to address the truth of the underlying allegations or the wider dispute" and their "argument rested on the premise that everything happened during an `official proceeding. " Appellant emphasizes that respondents made clear "that they were of the opinion that the legal issues were clear-cut" regarding the anti-SLAPP motion, and respondents "relied substantially on [their] Civil Code § 47(b) argument" in connection with the anti-SLAPP motion. Appellant contends that it should not take $58,000 to "make that point."
We find that the trial court did not abuse its discretion in awarding attorneys fees in the amount of $58,000, and that substantial evidence supports the award. The declaration from respondents counsel identified each attorney who performed work related to the anti-SLAPP motion, the number of hours expended by each attorney for the motion, and the total amount of attorneys fees incurred by respondents regarding the motion. The declaration also set forth each attorneys level of experience and standard billing rate, and summarized the work done by each attorney in connection with the anti-SLAPP motion. The distribution of work amongst the three attorneys, as described in counsels declaration, was not unreasonable, with junior attorneys interviewing witnesses and drafting the motion and supporting declarations, and the senior attorney spending fewer hours to review the work and argue the motion.
Appellants arguments concerning the number of pages of various documents, including the anti-SLAPP motion, are unpersuasive, as "[t]he length of a document is no gauge of the time needed to prepare it." (Childrens Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 783.) In this case, the anti-SLAPP motion was factually intensive and necessitated supporting declarations to establish the merit of the motion. Further, regarding appellants contention that respondents counsel had section 425.16 "well worked into their law office" based on counsels use of the anti-SLAPP statute in at least one case a few years ago, appellant fails to demonstrate that counsel in this case therefore needed only a "minimal amount of legal research" regarding the anti-SLAPP statute, or that counsels hours in this case should therefore be reduced.
As our Supreme Court has explained, "[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, supra, 24 Cal.4th at p. 1132.) Moreover, "`[t]he trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citations.] " (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096.) In this case, in addition to the evidence presented in counsels declaration, the trial court could rely on its own knowledge of the underlying anti-SLAPP motion, having previously issued an order regarding that motion. Given its familiarity with the underlying motion, the trial court had a basis for evaluating the nature and difficulty of the issues involved with the anti-SLAPP motion, the experience and expertise of counsel, and the amount of time required by the motion. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096 [trial courts familiarity with the quality of the legal services performed and the amount of time spent on the case, in addition to other documentation presented, provided sufficient evidence to support the amount of attorneys fees awarded]; Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448 [determination of the amount of attorneys fees includes consideration of "the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved"].) Based on the record, we cannot conclude that the amount of attorneys fees awarded was " ` "clearly wrong" " (Ketchum, supra, 24 Cal.4th at p. 1132) or " `exceeded the bounds of reason " (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at p. 785).
Appellant asserts that the trial court never "questioned the exorbitant amount of attorneys fees and costs sought by Defendants counsel and granted them out right." At the hearing on the motion for attorneys fees, however, the trial court indicated that it had read the moving, opposition, and reply papers. In addition, the trial courts familiarity with the underlying anti-SLAPP motion provided it with a basis for evaluating the reasonableness of the fee request. Even on a silent record, we indulge in all presumptions in favor of the trial courts decision. (Ketchum, supra, 24 Cal.4th at p. 1140.) Therefore, we presume the trial court gave proper consideration to the amount of attorneys fees requested by respondents and made a determination as to whether the amount sought was reasonable.
Appellant asserts that he requested, but was never given, "the bills and documentation showing the payments that Defendants allegedly made to Defendants counsel . . . ." Appellant argues that the failure to show him "the requested financial documentation violated [his] right to due process under the due process clause of the United States Constitution. . . ." In addition, in the absence of "billing and payment statements documenting that such amounts had been paid by Defendants," appellant contends the trial court abused its discretion in awarding attorneys fees.
Where the defendant seeks an award of attorneys fees, "the court may require defendant[] to produce records sufficient to provide ` "a proper basis for determining how much time was spent on particular claims." [Citation.]" (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) The court may also reduce the compensation due to the failure to maintain appropriate time records. (Ibid.) In this case, appellant did not request to see any underlying billing or payment statements in opposition to either motion for attorneys fees by respondents.
Nonetheless, detailed time sheets are not required to support a fee award. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255.) Billing statements are also not required to accompany a request for attorneys fees. (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293 [billing statements not required to support counsels declaration seeking attorneys fees]; Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587 [trial court did not err in awarding attorneys fees based on counsels declaration and verified cost memorandum].) Moreover, reasonable attorneys fees may be awarded under the anti-SLAPP statute even though the attorney provided legal services at no personal expense to the defendant. (See Lolley v. Campbell (2002) 28 Cal.4th 367, 373-374, discussing Ketchum, supra, 24 Cal.4th 1122, and Rosenaur v. Scherer (2001) 88 Cal.App.4th 260.)
In this case, respondents counsel described, in a declaration under penalty of perjury, the work done by each attorney regarding the anti-SLAPP motion, the hours spent by each attorney on the motion, the standard billing rates of each attorney, and the amount of attorneys fees actually incurred by respondents with respect to the motion. "The trial court could make its own evaluation of the reasonable worth of the work done in light of the nature of the case, and of the credibility of counsels declaration unsubstantiated by time records and billing statements." (Weber v. Langholz, supra, 39 Cal.App.4th at p. 1587.) On appeal, we do not reweigh the evidence or reweigh the credibility of witnesses. (See ibid.) In view of the information contained in respondents counsels declaration, the trial court did not abuse its discretion in awarding fees in the absence of billing or payment statements. In addition, appellant has failed to establish a due process violation.
Appellant maintains that respondents have requested an "exorbitant" amount of fees and costs and their use of section 425.16 amounts to an "abuse and distortion" of that statute. Appellant asserts that based on respondents own arguments, "they could have used Civil Code § 47(b)" (underscore omitted), but then there "would be no attorneys fees award."
Assuming an abuse of the anti-SLAPP statute would preclude an award of attorneys fees, we do not find that respondents have abused the anti-SLAPP statute in this case. Our Supreme Court has explained the purpose of the anti-SLAPP statute as follows: " `The Legislature enacted section 425.16 to prevent and deter "lawsuits . . . brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a).) Because these meritless lawsuits seek to deplete "the defendants energy" and drain "his or her resources" [citation], the Legislature sought " `to prevent SLAPPs by ending them early and without great cost to the SLAPP target. " [Citation.] Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192; see Jarrow Formulas, Inc. v. LaMarche [(2003)] 31 Cal.4th [728] at p. 737 [section 425.16 `is a procedural device for screening out meritless claims].) [¶] . . . [¶] The Legislatures purpose in enacting the anti-SLAPP statute is set forth in its findings and declarations. `The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. (§ 425.16, subd. (a).)" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278-279.)
In our prior opinion (Andersen v. Young, supra, H029484, H029742), we determined that appellants defamation claims arose out of a report and investigation by the police, and that appellant failed to demonstrate a probability of prevailing on his claims for numerous reasons. In light of our findings in appellants prior appeal, we conclude that respondents properly utilized section 425.16 to end appellants meritless SLAPP claims in the early stages of litigation and are accordingly entitled to attorneys fees under the anti-SLAPP statute as "prevailing defendant[s]." (§ 425.16, subd. (c).)
In his reply brief, appellant challenges the reasonableness of the hourly rates charged by counsel and contends that the Unruh Civil Rights Act (Civ. Code, § 51) has been violated. "Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before." (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) "The California Supreme Court long ago expressed its hostility to the practice of raising new issues in an appellate reply brief." (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) " `Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant. [Citation.]" (Ibid.) Appellant has not offered a reason for failing to assert, prior to the reply brief, the issues concerning the hourly rate or the Unruh Civil Rights Act. Consequently, we will not consider these untimely issues.
IV. DISPOSITION
The June 22, 2007 order awarding attorneys fees to respondents is affirmed. Respondents are to have costs on appeal.
We Concur:
McADAMS, J.
DUFFY, J.