Opinion
D057870
12-22-2011
KEN BOURKE, Plaintiff and Appellant, v. VERENA CASTANEDA, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2009-00101195-CU-FR-CTL)
APPEAL from an order of the Superior Court of San Diego County, William R. Nevitt, Jr., Judge. Affirmed, as modified.
Plaintiff Ken Bourke appeals from an order granting defendant Verena Castaneda's special motion to strike under Code of Civil Procedure section 425.16 (anti-SLAPP statute). (Undesignated statutory references are to the Code of Civil Procedure.) Bourke filed a complaint against Castaneda after she succeeded in a small claims action against him. In his complaint, Bourke alleged causes of action for (1) fraud, (2) abuse of process, (3) public nuisance, and (4) "intentional tort." The court granted Castaneda's special motion to strike the first, second, and fourth causes of action, concluding they arose "from 'written or oral statement[s] or writing[s] made before a . . . judicial proceeding" because they were based on Castaneda's small claims action and Bourke could not demonstrate a probability of prevailing on the merits of any of the causes of action.
Bourke appeals, asserting the trial court erred in granting the motion because (1) his complaint was not subject to the motion because Castaneda's statements in the small claims action did not involve a public issue and do not qualify as statements in an official proceeding; (2) he met his burden in producing evidence sufficient to demonstrate his probability of succeeding on the merits; (3) he was forced to file his complaint to prevent Castaneda from collecting on her small claims judgment; and (4) Castaneda procured the small claims judgment through fraud, which resulted in errors in the court's judgment. Bourke also challenges the amount of the attorney fees awarded to Castaneda as the prevailing party on the special motion to strike. We conclude that the court did not err in granting Castaneda's special motion to strike. However, we also conclude that the fee award to Castaneda in the amount of $19,500 is excessive and reduce the fee award to $10,700.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2007 Bourke painted a building he owns and, in doing so, sprayed a number of automobiles on Castaneda's property. Castaneda filed a small claims action against Bourke and prevailed. Bourke appealed and the trial court affirmed. Bourke then filed the underlying complaint, alleging the four causes of action, discussed, ante. Castaneda filed a special motion to strike under the anti-SLAPP statute as to three of the causes of action, which the trial court granted. Bourke then filed this appeal.
DISCUSSION
I. STANDARD OF REVIEW
We review de novo a trial court's rulings on a special motion to strike. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Because we independently review the trial court's ruling, we may affirm on any ground the record supports. (Blue Chip Enterprises, Inc. v. Brentwood Sav. & Loan Assn. (1977) 71 Cal.App.3d 706, 712.)
II. ANALYSIS
The court granted Castaneda's special motion to strike Bourke's causes of action for (1) fraud, (2) abuse of process, and (3) "intentional tort." Under the anti-SLAPP statute, a cause of action is subject to a special motion to strike if it arises "from any act . . . in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . ." (§ 425.16, subd. (b)(1).) To prevail on this motion, the moving party has the burden to show the challenged causes of action arose from his or her acts in furtherance of constitutional rights of petition or free speech. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) "A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)." (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.) If the moving party meets this burden, the burden then shifts to the nonmoving party to demonstrate a probability of prevailing on the merits of his or her claims. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
Section 425.16, subdivision (e) provides in pertinent part " '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 . . . judicial proceeding." (Italics added.)
We conclude Castaneda met her burden of showing Bourke's causes of action arose from actions—the small claims action and her statements made therein—in furtherance of her constitutional right of petition, whereas Bourke cannot demonstrate a probability of prevailing on the merits of his causes of action because the litigation privilege (Civ. Code, § 47, subd. (b)) precludes them.
Under section 425.16, subdivision (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 . . . shall be subject to a special motion to strike . . . ." " 'Any act' includes communicative conduct such as the filing, funding, and prosecution of a civil action." (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) Accordingly, a cause of action is properly subject to a special motion to strike under section 425.16, subdivision (b)(1) if it is predicated on the defendant's pursuing a civil action because it is constitutionally protected activity. (Rusheen, supra, at p. 1056; see also § 425.16, subd. (e) [protected activity includes "any . . . writing made before a judicial proceeding"].)
Here, it is undisputed each of Bourke's causes of action is based on Castaneda's small claims action against Bourke. His first cause of action for fraud alleged Castaneda's small claims action was "a bogus factitious tort action," which was a "false claim" she "advanced by fraudulent means, lies, false testimony, and illegal procedure, even using the small claims court." In his second cause of action for abuse of process, Bourke alleged Castaneda's "claim was deliberately against the wrong person" wherein she "alleg[ed] gross and exaggerated damage." Because of this, Bourke alleged her "actions are insane, crazy, ridiculous, and will continue until authorities prosecute her for [] gross fraud . . . and block her from . . . use of the liberal no rules small claims court for fraudulent purposes." Finally, Bourke alleged in his fourth cause of action for "intentional tort" that Castaneda's small claims action was an "illegal and wrongful procedure [] designed to deliberately take advantage of the intended victim [Bourke] of [Castaneda's] wicked scheme, to use the small claims court to extort money." Based on these allegations, it is clear Bourke's causes of action for fraud, abuse of process, and "intentional tort" were predicated entirely on Castaneda's small claims action, which places them squarely within the ambit of the anti-SLAPP statute.
In his briefing and at oral argument Bourke stressed that this matter was not within the scope of the anti-SLAPP statute because it involved a private, not a public, issue. However, pursuant to section 425.16, subdivision (e)(1) and (2), a defendant bringing a special motion to strike based upon statements, writings and pleadings in connection with civil litigation is not required to demonstrate separately that the matter concerned an issue of public significance. It is the context or setting itself that makes the issue a public issue. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115; Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.)
Moreover, Bourke cannot meet his burden of proving the probability of likelihood of succeeding on these claims because the litigation privilege (Civ. Code, § 47, subd. (b)) precludes them. The litigation privilege bars actions predicated on " 'any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.' " (Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 262.) Thus, the "[p]leadings and process in a case are generally viewed as privileged communications." (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770; see also Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1431 [holding a declaration "functions as written testimony" and "is exactly the sort of communication the privilege is designed to protect"].)
Here, Bourke's causes of action are based on Castaneda's small claims action and the statements she made therein, as discussed, ante. This activity clearly qualifies as privileged under Civil Code section 47, subdivision (b). Therefore, Bourke cannot demonstrate a probability of succeeding on the merits of his causes of action as a matter of law. Accordingly, the court properly granted Castaneda's special motion to strike.
III. ATTORNEY FEES
Bourke asserts that the court erred in awarding $19,500 in attorney fees to Castaneda as the prevailing party on her special motion to strike, arguing that much of the fee award was for "training new legal interns" and was unreasonable in amount. We conclude the award of $19,500 is excessive and reduce it to $10,700.
A. Background
Following the court's grant of Castaneda's motion to strike, she brought a motion for an award of attorney fees as the prevailing party pursuant to section 425.16, subdivision (c)(1). She sought a total of $35,442.25, representing work performed on her behalf by the USD Legal Clinic and a contracted attorney with expertise in anti-SLAPP motions.
The contracted attorney spent eight hours on the on the motion to strike, at a rate of $525 per hour, for a total of $4,200. He then requested that amount be subject to a contingent risk multiplier, which increased the request substantially. He spent 20 hours on the attorney fee motion, for a total of $10,500. His total request was for $18,900 for both motions.
The USD Legal Clinic spent a total of 91 hours on the motion to strike, at rates ranging from $85-$125 per hour for three interns, and $360 per hour for two staff attorneys. The USD Legal Clinic spent a total of 39.2 hours on the fee motion, using two interns and one staff attorney. USD Legal Clinic sought a total of $16,542.25 for their work on both motions. The total fee award requested for all work on both motions was for $35,442.25
The court reduced the award to $19,500, finding this amount to be reasonable. This consisted of $13,500 for the motion to strike, plus an additional $6,000 for preparation of the fee motion.
B. Analysis
Section 425.16, subdivision (c)(1) provides in part that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." The language of that section is mandatory and requires a fee award to any defendant who brings a successful motion to strike. (Cabral v. Martins (2009) 117 Cal.App.4th 471, 490.)
The reasonableness of the fee request is determined by looking to a variety of factors: " '[T]he nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney's efforts, his learning, his age, and his experience in the particular type of work demanded [citation]; the intricacies and importance of the litigation, the labor and the necessity for skilled legal training and ability in trying the cause, and the time consumed.' " (In re Marriage of Cueva (1978) 86 Cal.App.3d 290, 296.)
Moreover, "[w]here the factors justifying a large award . . . are not present, the court may refuse to sanction it." (1 Witkin, Cal. Procedure (5th ed. 2008) Attorneys, § 206, p. 276.) For example a trial judge did not abuse his discretion in awarding only 50 percent of fees claimed as that amount reflected the work in establishing the cause of action, and the remainder of counsel's time was spent in an effort to portray defendant as a "bad actor." (Boquilon v. Beckwith (1996) 49 Cal.App.4th 1697, 1722-1723.) In Consumer Defense Group v. Rental Housing Industry Members (2006) 137 Cal.App.4th 1185, 1217, the Court of Appeal held that an action against apartment building owners and managers alleging violations of Proposition 65 was "so absurdly easy" to bring that fees of over $500,000 were "objectively unconscionable."
We conclude that given the nature of the case, and the actions taken therein, even the reduced award of $19,600 was excessive. The eight hours the contracted attorney spent at his customary rate in preparing the motion to strike was reasonable, but the addition of a multiplier was not. This action was not complex. Indeed, as discussed, ante, Bourke's action fell squarely within the ambit of section 425.16. There were no unique factual or legal issues present. Moreover, even though he accepted the matter on a contingency basis, he was exposed to very little risk that Castaneda would not prevail.
USD Legal Clinic's incurring 91 hours for their work on the motion to strike was excessive. A reasonable amount for their work would be in the range of eight hours; the amount the contracted attorney incurred.
The contracted attorney spending 20 hours on the fee motion was also excessive. Again, preparing a fee motion is a relatively simple process, and there were no unique or difficult issues. Likewise, USD Legal Clinic's spending 39.2 hours on the fee request was also excessive. A reasonable amount of total hours spent by the contracted attorney would be four, plus an additional four hours by the USD Legal Clinic, for a total of eight hours.
Accordingly, we conclude the award must be reduced to $10,700, consisting of $6,380 for the contracted attorney's total work, at his regular rate, and $4,320 for USD Legal Clinic's work, at $360 per hour, the rate charged by their two staff attorneys.
We emphasize that we are not criticizing the quality of the work performed, as it was exemplary, and achieved a victory for Castaneda. However, given the simplicity of case, the hours incurred were simply too high.
Bourke also requests that he be awarded attorney fees in the amount of $10,000 for legal assistance he purportedly received from three different attorneys. However, because Castaneda was the prevailing party on the special motion to strike, and we are upholding that ruling on appeal, Bourke is not entitled to recover his attorney fees incurred in this matter.
DISPOSITION
The attorney fee award is reduced to $10,700. In all other respects the judgment is affirmed. Castaneda shall recover her costs on appeal.
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NARES, Acting P. J.
WE CONCUR:
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HALLER, J.
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McINTYRE, J.