Opinion
H050512
09-25-2023
ELENA KOZLOVA et al., Plaintiffs and Respondents, v. NATASHA DOUBSON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 19CH008777)
Wilson, J.
Petitioners Elena Kozlova and Rosalie Toren requested a Civil Harassment Restraining Order (CHRO) against their former patient, defendant Natasha Doubson. After the trial court issued a temporary restraining order (TRO) in the matter, Doubson filed a special motion to strike pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute, claiming her conduct was protected. While the trial court denied Doubson's motion, this court reversed the decision on appeal and found the motion to be partially successful.
Undesignated statutory references are to the Code of Civil Procedure.
On its own motion, this court takes judicial notice of its prior opinion and the record in Kozlova v. Doubson (Jan. 27, 2022, H047759 [nonpub. opn.]).
Approximately three years after filing their CHRO request, during which time the TRO remained in place, Kozlova and Toren voluntarily dismissed the action. Doubson subsequently requested attorney fees and costs as the prevailing party in both the anti-SLAPP motion and the CHRO action. In two separate orders, the trial court denied her request as to the CHRO action but granted a portion of the fees and costs requested as to the anti-SLAPP motion. Doubson now appeals these orders.
For the reasons explained below, we find no abuse of discretion in the trial court's determination of the fees and costs to be awarded to Doubson, and affirm the trial court's orders.
I. Factual and Procedural background
A. CHRO Actions and Anti-SLAPP Motion
This case arises from a contentious psychotherapist-patient relationship. From late 2012 through May 2016, Doubson received psychotherapy from Toren Psychological Group, a clinic owned by psychologist Toren. Kozlova, who was working as Toren's psychological assistant at the time, provided services for Doubson.
On June 3, 2019, Kozlova filed her CHRO request against Doubson, alleging that Doubson had harassed her, her husband Chris Grzeszczak, and Toren. Kozlova alleged that Doubson had sent direct e-mails to her, Grzeszczak, and Toren; wrote harassing letters to Kozlova's former attorney; posted disturbing and defamatory reviews on Yelp and Google business listings; filed small claims actions against Kozlova, Grzeszczak, and Toren; created a personal blog where she published false and defamatory statements; submitted complaints to various governmental and non-governmental agencies; wrote to Kozlova's educational institutions; and communicated directly with Kozlova's other patients. On the same day as Kozlova's filing, the trial court issued a TRO against Doubson.
On September 23, 2019, Doubson filed a special motion to strike directed at Kozlova's civil harassment complaint, arguing that the harassment cause of action arose primarily from protected activities and Kozlova could not show a probability of prevailing based on the alleged activities. Kozlova opposed the motion, arguing that Doubson's protected conduct was not the primary focus of the CHRO request and any allegations concerning protected conduct could simply be eliminated, as opposed to striking the entire cause of action.
On November 19, 2019, the trial court denied Doubson's motion to strike. The trial court stated that while it found that some of Doubson's activities were protected conduct, Kozlova met a standard of minimal merit and demonstrated a prima facie case for the harassment claim. Since Doubson did not prevail on her motion, the trial court also denied Doubson's related request for attorney fees under section 425.16, subdivision (c)(1).
B. First Appeal
On January 8, 2020, Doubson appealed the trial court's denial of her motion to strike and associated attorney fees. Doubson argued that the trial court erred in finding that Kozlova had demonstrated a probability of success on her harassment claim.
In her opening brief, Doubson also asked this court to address the issue of whether it was unethical for an attorney to represent a defendant in a civil harassment case on a contingency basis. This court declined to do so, noting that Doubson did not raise this issue in her notice of appeal and that the trial court only commented on this issue but made no ruling thereupon.
This court concluded that the following activities constituted protected conduct under the anti-SLAPP statute: (1) e-mails sent to Kozlova's group session patients in December 2017; (2) Doubson's March 2019 Yelp review; (3) complaints sent to various governmental agencies and filing of small claims actions; and (4) Doubson's e-mail response to Kozlova's attorney's cease and desist letter. This court also found that Kozlova failed to demonstrate a probability of prevailing on her CHRO action with regard to the protected activity, as she only discussed her probability of prevailing on Doubson's alleged unprotected activities. This court accordingly reversed the trial court's order and remanded with directions for the trial court to grant the motion in part with respect to the four protected activities specified above.
This court also determined that because Doubson had partially prevailed on her motion to strike, she should be considered a prevailing party for purposes of recovering attorney fees and costs pursuant to section 425.16, subdivision (c)(1). However, this court noted that the trial court's determination of recoverable fees could be adjusted to reflect the "significance of the overall relief obtained" by Doubson. As Doubson's alleged unprotected activity could still support the relief requested by Kozlova, this court directed the trial court to "determine the appropriate amount of attorney fees and costs to which Doubson is entitled."
C. Doubson's Motion for Attorney Fees and Costs 1. Doubson's Requested Fees
On May 31, 2022, following issuance of the remittitur, Doubson requested attorney fees as a prevailing party in the motion to strike pursuant to section 425.16, subdivision (c)(1). In addition, as Kozlova had voluntarily dismissed her request for a CHRO on April 1, 2022, Doubson also requested attorney fees as the prevailing party in the CHRO action pursuant to section 527.6, subdivision (s).
Relying on the lodestar method, Doubson requested a total of $122,714.20 in fees and costs with respect to the motion to strike. Doubson indicated that per the matrix compiled by the Civil Division of the United States Attorney's Office for the District of Columbia (USAO matrix), the average hourly rate for civil litigation lawyers with similar experience and education as Doubson's attorney was $369 from 2020 to 2021. Using the April 2022 consumer price index, Doubson requested that an 11.8 percent increase be applied to the rate amount to reflect the difference in general prices between the San Francisco Bay Area and the District of Columbia. Doubson therefore requested that her attorney's reasonable hourly rate be set at $412, or $369 multiplied by 11.8 percent.
This method begins with a determination of the lodestar, which is the number of hours reasonably expended multiplied by the reasonable hourly rate. This figure may be subsequently adjusted based on factors specific to the case. (Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1055 (Pasternack).)
Doubson claimed that her attorney had spent a total of 99.7 hours on matters relating to litigating the motion to strike in the trial court, all of which were necessary and reasonable. Doubson also requested fees for 70.5 hours related to the appellate proceedings. Doubson argued that the opinion in case H047759 contemplated that she should receive appellate fees by "unequivocally contemplat[ing]" that the trial court would only determine fees after trial based on Doubson's overall success. Doubson also claimed the language in the appellate opinion stating that each party should bear their own costs did not bar her from seeking these fees, arguing that this language only concerned costs enumerated in California Rules of Court, rule 8.278(d)(1).
Doubson further requested that the lodestar amount be adjusted to reflect the contingency risk undertaken by her attorney. Doubson argued that a multiplier of 1.75 should be applied to reflect fair market value and account for the "significant [contingency] risk" taken on by her attorney both in filing the motion to strike and appealing the trial court's denial. Doubson therefore calculated her total fees as follows: $412 (reasonable hourly rate) multiplied by 170.2 (total hours on the trial court and appellate matters) multiplied by 1.75 (contingency risk), which equaled $122,714.20.
Per the fee agreement between Doubson and her attorney, payment of fees in the CHRO action were contingent on the success of Doubson's motion to strike.
Doubson also requested fees and costs in the amount of $17,180.40 as the prevailing party on the CHRO. Doubson asserted that the CHRO action was frivolously brought for the improper purpose of "silenc[ing]" her and constituted malicious prosecution.
2. Kozlova's Response
Kozlova argued that the motion for fees should be denied in its entirety. As Doubson failed to demonstrate how the hours expended were only in relation to the successful portions of her motion to strike, Kozlova argued that she should not be awarded any fees. Kozlova also argued that Doubson's victory on the motion to strike was "pyrrhic" because it did not change the nature and character of the civil restraining order proceeding or the outcome. Kozlova noted that apart from the activities protected by the motion to strike, there was sufficient evidence of other unprotected conduct for the trial court to have granted a restraining order. Accordingly, Kozlova argued that Doubson was not entitled to fees because the partial success of her motion to strike had no practical effect on the litigation.
Kozlova also contended that the requested fees were "grossly inflated" as they included items not related to the anti-SLAPP motion and reflected a much higher hourly rate for Doubson's attorney than he had actually charged. Kozlova noted that in Doubson's original fee request filed in conjunction with her motion to strike, Doubson's attorney's hourly rate was only $250 per hour, which was significantly lower than the rate requested in the current motion, and more adequately reflected the attorney's minimal experience with anti-SLAPP motions. Kozlova also claimed that the total amount of hours expended on both the trial court litigation and appellate matter were "padded" and "outrageous" as the tasks in the attached billing statement included items not related to the anti-SLAPP motion, and there was no complexity related to the appellate matter that would justify the alleged 70 hours of work.
Kozlova also challenged Doubson's contingent fee arrangement as unethical. Kozlova asserted that Doubson could have chosen not to file the motion and instead proceed to trial on the merits of the CHRO action, where she would have been able to raise the same arguments regarding protected activity. Kozlova claimed that by filing an "unnecessary" motion to strike, Doubson's attorney put his interests in obtaining a large fee award over the interests of his client, which was unethical and a violation of the Rules of Professional Conduct.
Kozlova finally argued that her dismissal of the CHRO action was not a result of the motion to strike or any belief that Doubson's prior actions did not amount to harassment. Instead, she only dismissed the action because Doubson had seemingly ended her "campaign of harassment" by complying with the TRO for three years, thus reducing the need for further orders. Kozlova therefore argued that the dismissal should have no impact on the court's decision to award fees. Notably, Kozlova did not substantively address Doubson's request for attorney fees as a prevailing party in the CHRO action and only claimed this request was pending in a different trial court department such that it was not "properly before this court."
3. Doubson's Reply
In her reply, Doubson argued that it was appropriate for the court to use the current market rate in calculating the lodestar even though her attorney's actual hourly rate was lower at the time services were rendered. Doubson reasserted that the amount of hours expended in relation to the motion to strike were not inflated, but reasonable in light of the significant work required at both the trial and appellate level. Doubson also disputed Kozlova's claim that the motion to strike had no practical effect on the litigation, since Kozlova's voluntary dismissal of the action was the precise goal Doubson intended to achieve by filing her motion. Doubson also argued that by claiming there was sufficient evidence to grant a CHRO, Kozlova was improperly attempting to "re-litigate" the case. Finally, Doubson requested additional fees not originally sought in her original motion for preparing the current motion for fees and reply declaration, which she claimed to include 19.5 hours of additional work.
In a supplemental brief, Doubson's attorney stated that the 19.5 hours was attributable to the reply only and indicated that he had spent a total of 35.6 hours working on the initial motion, preparing the reply, and preparing for hearing.
D. The Trial Court's Orders 1. October 21, 2022 Order (Order No. 1)
On September 19, 2022, the trial court issued a tentative ruling on Doubson's request for fees. The trial court disagreed with Doubson's assertion that she prevailed entirely on the motion to strike, indicating that the appellate opinion only struck certain allegations of conduct from Kozlova's complaint but did not dispose of the entire action. The trial court also did not agree that the success of Doubson's motion resulted in Kozlova dismissing her CHRO action and found Kozlova's explanation of the reasons why she dismissed the CHRO to be credible.
In calculating the lodestar amount, the trial court did not accept Doubson's attorney's proposed reasonable hourly rate of $412. The trial court instead used an hourly rate of $250, which was Doubson's attorney's actual rate at the time he filed the motion to strike. The trial court noted that based on the evidence presented and the court's own experience with hourly rates for civil litigation attorneys in Santa Clara County, this rate was comparable with those charged by other attorneys in the same locale with similar experience and skill as Doubson's attorney. The trial court also used this rate for determining an award for services rendered in connection with the appeal.
With respect to the hours worked on the case, the trial court found that Doubson's attorney only provided hours for all services rendered in the case and did not adjust or allocate any hours specifically towards the successful portion of the motion to strike. The trial court found that after eliminating the protected activities from the complaint as set forth in the appellate opinion, the cause of action still remained, and the remaining allegations of wrongful conduct were "numerous and detailed in description." The trial court therefore determined that Doubson was the prevailing party on only 25 percent of the allegations made by Kozlova. In addition, after reviewing Doubson's attorney's billing statements, the trial court determined that only 49.9 of the 99.7 hours requested actually related to the motion to strike, but found sufficient proof supporting the 70.5 hours requested in relation to the appeal. After adjusting these hours to account for Doubson's partial success on 25 percent of the allegations, the court found that the total hours expended on the successful portion of the motion was 30.1 hours.
The trial court also evaluated Doubson's relative success on the motion in achieving her desired objective. Relying on certain factors set out in Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328 (Mann), the trial court concluded that the results of the motion were minimal such that Doubson did not achieve a "practical benefit" from bringing the motion. In making this determination, the trial court agreed with Kozlova that in lieu of filing the motion to strike and the subsequent appeal, Doubson could have set the matter for trial and placed the burden on Kozlova to demonstrate the necessity of a restraining order. The trial court also noted again that the appellate opinion did not result in Kozlova's CHRO action being dismissed in full, which was the original purpose of Doubson's motion to strike, and the TRO remained in effect for almost three years during the pendency of Doubson's motion and appeal. As a result, the trial court reduced the lodestar amount to $5,000, finding this to be the reasonable market value for the services rendered on the partially successful portions of the motion. The trial court also denied Doubson's request to enhance the lodestar figure to reflect the contingency fee arrangement. The trial court ruled that the facts of the case were not unusually complex or difficult such that they did not require "extraordinary skill" of counsel, and that the "little to no practical effect" from the results of the motion justified only a downward, not an upward adjustment.
Finally, the trial court denied Doubson's request for fees as a prevailing party on the CHRO action, stating that there was insufficient evidence to support Doubson's contention that Kozlova's filing was frivolous, maintained for improper purposes, or unnecessary.
After hearing argument from the parties on September 20, 2022, the trial court subsequently adopted its tentative ruling as an order of the court, which was filed on October 21, 2022. The trial court additionally deferred ruling on Doubson's request for additional fees relating to the preparation of her motion and reply, in order to allow Kozlova the opportunity to file a response. On September 30, 2022, the trial court also denied a request made by Doubson both at the hearing and in a subsequent ex-parte motion to set an evidentiary hearing on the credibility of Kozlova's explanation as to why she had dismissed the CHRO action.
2. October 5, 2022 Order (Order No. 2 )
After hearing argument, reviewing the parties' briefs, and taking the matter under submission, the trial court issued a second order on October 5, 2022, regarding the fees requested by Doubson in connection with filing her fee motion. The trial court again declined to use a reasonable rate of $412 per hour and instead set the hourly rate at $300 to account for Doubson's attorney's additional experience gained in the two years since filing the motion to strike. The trial court also found that 35.6 hours of work in drafting the fee motion and reply were excessive, and instead found that 20 hours was at "the high end" of reasonableness. The trial court applied the same percentage of success of 25 percent on Doubson's motion to strike from Order No. 1, as well as its findings regarding the minimal results obtained from filing the motion, and awarded Doubson a total of $1,000 in additional attorney fees.
Doubson timely appealed both fee orders and the trial court's denial of her ex-parte request for an evidentiary hearing.
Although Doubson included the September 30 trial court order (denying her ex-parte request for an evidentiary hearing) in her notice of appeal, she does not provide any argument or cite any legal authority related to this issue. We therefore will not address it in our decision. (See In re S.C. (2006) 138 Cal.App.4th 396, 408 (S.C.) [stating that "[w]hen a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' [Citations.] Hence, conclusory claims of error will fail."].)
II. Discussion
Doubson argues that the trial court abused its discretion in determining the lodestar amount of Doubson's fees as a prevailing party in her motion to strike by (1) using incorrect legal criteria in determining the reasonable hourly rate; and (2) using incorrect legal criteria in determining the reasonable hours expended and adjusting the lodestar figure. Doubson also contends that the trial court erred in denying Doubson's request for fees as a prevailing party in the CHRO action.
For the reasons explained below, we find no abuse of discretion in the trial court's orders.
A. Fees Awarded in Connection with Doubson's anti-SLAPP motion 1. Applicable Law and Standard of Review
Under section 425.16, subdivision (c)(1), "a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs." The purpose of the statute is to" 'compensat[e] the prevailing defendant for the undue burden of defending against litigation designed to chill the exercise of free speech and petition rights.'" (Maleti v. Wickers (2022) 82 Cal.App.5th 181, 231-232 (Maleti).)
Further, as a general rule, a defendant who prevails in part in bringing a special motion to strike is entitled to fees and costs, subject to the trial court's determination of the appropriate amount awardable based upon the defendant's partial success. (See, e.g., Mann, supra, 139 Cal.App.4th at pp. 339-340; Maleti, supra, 82 Cal.App.5th at p. 231.) Therefore, a party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were "so insignificant that the party did not achieve any practical benefit from bringing the motion." (Mann, supra, at p. 340.)
In the instant matter, it is undisputed that Doubson was a partially prevailing party in her motion to strike as this court explicitly made such a finding prior to remanding the matter to the trial court; accordingly, we need not reexamine this issue.
With respect to the amount of fees to be awarded to a partially prevailing defendant in a special motion to strike, courts have approved the use of the lodestar method described infra. (Mann, supra, 139 Cal.App.4th at p. 342.) In calculating the lodestar figure, the trial court should determine the reasonable number of hours expended on the successful claims in the motion only. (Id. at p. 345.) If any work overlaps between the successful and unsuccessful claims, the trial court should "then consider the defendant's relative success on the motion in achieving his or her objective, and reduce the amount if appropriate." (Ibid.)
" '[T]rial courts have broad discretion in determining the amount of a reasonable attorney's fee award. This determination is necessarily ad hoc and must be resolved on the particular circumstances of each case.'" (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1394 (Bernardi).) In exercising its discretion, the trial court may accordingly" 'consider all of the facts and the entire procedural history of the case in setting the amount of a reasonable attorney's fee award.' [Citation.] An attorney fees award' "will not be overturned in the absence of a manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence." '" (Ibid.) In reviewing the trial court's exercise of its discretion, we also recognize that" '[t]he "experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while his [or her] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong." '" (Ibid.) Further, 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.'" (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 434 (569 East County), quoting McKenzie v. Ford Motor Co. (2015) 238 Cal.App.4th 695, 704.)
2. The Trial Court's Determination of the Reasonable Hourly Rate
Doubson argues that the trial court abused its discretion in setting her attorney's reasonable hourly rate at $250 for Order No. 1 and $300 for Order No. 2. Doubson claims that in setting these rates, the trial court incorrectly relied on her attorney's billing rate instead of the market rate in Order No. 1, applied its own subjective beliefs about the local market rate in both orders instead of employing an objective standard, and did not account for the delay in receipt of payment in Order No. 1.
To determine the reasonable hourly rate, courts consider the rate prevailing in the community for similar work. (Pasternack, supra, 65 Cal.App.5th at p. 1055.) While the court may consider the terms of a fee contract in determining the market rate, it has wide discretion in doing so and is not required to limit the market rate to the attorney fee arrangement with the prevailing party. (Id. at pp. 1057-1058.) The court typically uses the rates of comparable attorneys in the forum district but also may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.) Ultimately, "the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom." (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702 (Syers Properties III).)
In reviewing the factors cited by the trial court in both orders, we find no abuse of discretion in its determination of the reasonable hourly rate in both orders. While Doubson is correct that the $250 per hour reflected Doubson's attorney's actual billing rate as of 2019, the trial court was within its discretion to consider the terms of the fee agreement in determining the local market rate for Santa Clara County. (See Syers Properties III, supra, 226 Cal.App.4th at p. 702 [indicating that it would be within a trial court's discretion to find that the actual rate charged was the reasonable rate for the service rendered].) Further, as explained in Order No. 1, the trial court did not merely rely on the fee agreement but also indicated that this rate was within the rates of civil litigation attorneys in the same county with "comparable experience and skill in similar matters." Similarly, in Order No. 2, the trial court properly adjusted the hourly rate to reflect "two additional years" of experience gained by Doubson's attorney in the time between filing the motion to strike and the motion for fees, again noting that the rate reflected rates of civil litigation attorneys in the same county with comparable experience and skill in similar matters. Contrary to Doubson's assertion, the trial court was not obligated or required to accept her attorney's stated market rate simply because it was based on the USAO matrix. (See ibid. [indicating that the trial court is not required to follow the matrix in determining the market rate].) The prevailing rates in geographic markets differ and Doubson has not provided any evidence that the prevailing rates in Santa Clara County are as great as the rates reflected in the USAO matrix.
Turning to Doubson's argument that the trial court erred in not enhancing the hourly rate in Order No. 1 to account for the delay in receipt of payment, we note that Doubson only raised this argument for the first time in her reply, which is presumably why the trial court did not address it in its ruling. Notwithstanding this, we are not persuaded that such an enhancement is required or mandatory. Indeed, the case cited by Doubson in support of this contention explicitly states that an enhancement for delay in receipt of payment, either through a percentage adjustment or using the present hourly rate instead of the hourly rate at the time services were rendered, may be appropriate. (See Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 583-584.) While the trial court certainly could have increased the hourly rate in Order No. 1 to reflect the delay in receipt of payment, we find no abuse of discretion in it not doing so.
3. The Trial Court's Determination of Reasonable Hours Expended and Factors Justifying Reduction
Doubson contends that the trial court abused its discretion in determining the reasonable number of hours expended in both orders. Doubson claims numerous errors in the trial court's rulings, including (1) the court's allocation of hours expended on the successful part of Doubson's motion; (2) the reduction of the lodestar based on the relative success of Doubson's motion to strike in achieving her desired goal; (3) the court's refusal to enhance the lodestar to reflect a contingency risk; and (4) the court's reduction of the actual hours expended in relation to the motion for fees.
In claiming the trial court erred, Doubson focuses primarily on the fact that Kozlova voluntarily dismissed the CHRO action shortly after this court found Doubson to have partially prevailed on her motion to strike. As Doubson does not believe such an issue has been addressed yet in California jurisprudence, Doubson urges us to adopt a uniform standard for all such situations, whereby a voluntary dismissal of an action following a partially successful motion to strike should trigger a presumption that the action was not viable from the outset, and where a defendant no longer has the ability to challenge the remaining allegations at trial (due to the voluntary dismissal), the anti-SLAPP motion should be deemed successful in its entirety.
While we agree that this issue appears to be one not yet addressed by other courts, we decline to adopt the standard proposed above as it fails to take into consideration reasons behind the dismissal that may be entirely unrelated to the anti-SLAPP motion. California courts have previously found that a voluntary dismissal by a plaintiff should not automatically result in a presumption that the defendant is a prevailing party under a fee-shifting statute. (See Santisas v. Goodin (1998) 17 Cal.4th 599, 621 [indicating that it would be improper to characterize a defendant as a prevailing party without regard to the reasons behind the plaintiff's voluntary dismissal].) In addition, California courts have also determined that voluntary dismissal of an action after an anti-SLAPP motion is filed, but not yet adjudicated, does not automatically render the defendant a prevailing party for purposes of obtaining fees under section 425.16, subdivision (c)(1). (See, e.g., Tourgeman v. Nelson &Kennard (2014) 222 Cal.App.4th 1447, 1456-1457; Liu v. Moore (1999) 69 Cal.App.4th 745, 751-753.) Absent any legal authority from Doubson suggesting otherwise, we see no reason to apply a different standard here simply based on the timing of Kozlova filing her dismissal.
Accordingly, we evaluate the individual claims of error cited by Doubson under the premise established in this court's prior opinion that Doubson only prevailed in part on her anti-SLAPP motion.
a. Allocation of Hours Based on Success of Doubson's Anti-SLAPP Motion
Doubson argues that the trial court erred in its finding in Order No. 1 that the reasonable number of hours should be reduced by 75 percent to reflect Doubson only prevailing in part on her motion to strike. Doubson also argues that the trial court abused its discretion in finding that only 49.9 of the 99.7 hours claimed by her attorney were related to the motion to strike, without providing any explanation as to how it reached this value.
As stated above, when determining the lodestar figure for a partially successful motion to strike, the trial court must first determine the reasonable number of hours expended on the successful claims in the motion only. (Mann, supra, 139 Cal.App.4th at p. 345.) "[A]s the parties seeking fees and costs, defendants 'bear[] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.' [Citation.] To that end, the court may require defendants to produce records sufficient to provide' "a proper basis for determining how much time was spent on particular claims." '" (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) While an attorney's billing statements in support of an anti-SLAPP fee request form the"' "starting point" '" for determining the"' "hours reasonably expended" '" in a lodestar calculation, the trial court is not bound to accept these hours and may reduce them 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." (569 East County, supra, 6 Cal.App.5th at p. 441.)
In reviewing the factual findings made by the trial court in its ruling, we find no abuse of discretion in the court's determination regarding the hours actually expended towards the anti-SLAPP motion or its determination of the percentage of success achieved by Doubson from her motion. As the trial court noted, despite the appellate opinion clearly indicating that Doubson had only prevailed in part on her motion, the billing statement provided by Doubson's attorney only listed the total hours he had spent working on the entire matter with no allocation between the successful or unsuccessful claims. Therefore, per the directions from this court upon remand, the trial court was required to make its own determination on this allocation. As the trial court correctly noted, while Doubson's motion resulted in five allegations being stricken as protected activities, the CHRO cause of action still remained intact with numerous other allegations of harassing conduct. Accordingly, the trial court did not abuse its discretion in determining that the five allegations stricken from the complaint reflected a success rate of 25 percent.
Similarly, with respect to the hours actually expended on the motion, the trial court indicated that after reviewing Doubson's attorney's billing statements, it determined that only 49.9 of the hours requested were actually in relation in the motion to strike, while the remaining hours were for unrelated issues. While the trial court did not specifically indicate the entries it excluded from its calculation of reasonable hours, our examination of the billing statements confirms the trial court's determination that not all hours requested were clearly related to the anti-SLAPP motion. For example, a number of entries that Doubson's attorney attributed to the anti-SLAPP motion only reflected work done on the CHRO action after the trial court had already denied the motion. Absent any explanation from Doubson's attorney as to why these entries constituted reasonable hours expended on the anti-SLAPP motion, the trial court was well within its discretion to exclude these entries from its calculation of reasonable hours. Accordingly, we find no abuse of discretion in the trial court's determination of reasonable hours expended or its calculation of the percentage of success Doubson achieved from her motion to strike.
b. Reduction of the Lodestar Figure in Order No. 1
Doubson next argues that the trial court abused its discretion in reducing the lodestar amount by incorrectly determining that Doubson did not achieve any practical benefit in bringing her motion.
As discussed previously, in awarding fees to a partially prevailing defendant on an anti-SLAPP motion, the trial court should "consider the defendant's relative success on the motion in achieving his or her objective, and reduce the amount if appropriate." (Mann, supra, 139 Cal.App.4th at p. 345.) Factors to consider in making such a determination, include (1) the extent to which the defendant's litigation posture was advanced by the motion; (2) whether the same factual allegations remain to be litigated; (3) whether discovery and motion practice have been narrowed; (4) the extent to which future litigation expenses and strategy were impacted by the motion; and (5) the extent to which the motion changed the nature and character of the lawsuit in a practical way. (Ibid.) The trial court should also consider any other relevant factors, such as the experience and abilities of the attorney and the novelty and difficulty of the issues, in determining whether to adjust the lodestar amount. (Ibid.)
In reviewing the trial court's ruling, Doubson contends that the trial court incorrectly applied the above factors. For example, in discussing the impact on litigation expenses, the trial court discussed at considerable length that Doubson could have proceeded to trial on the CHRO action, which would have resulted in a quicker resolution of the case and less litigation costs, instead of filing her anti-SLAPP motion and appealing its denial. In addition, Doubson refers to the trial court's finding that the discovery, motion practice, and setting of trial were stayed on appeal. Doubson argues that under Mann, this is not the relevant inquiry; it is whether the partial success of the anti-SLAPP motion narrowed or limited future discovery and motion practice. (Mann, supra, 139 Cal.App.4th at p. 346.)
To the extent the trial court's analysis above reflects error, we ultimately find any such error to be harmless as various other factors supported the trial court's final determination that Doubson did not achieve any practical impact from bringing her motion. As correctly noted by the trial court, Doubson did not achieve her desired objective of dismissing the entire CHRO action as the anti-SLAPP motion was only granted in part. In addition, it was within the trial court's discretion to determine that the subsequent dismissal of the CHRO action was not the direct result of the anti-SLAPP motion, based on Kozlova's explanation that Doubson had not engaged in further harassing conduct after the issuance of the TRO in 2019. Accordingly, we find no abuse of discretion in the trial court's reduction of the lodestar figure to reflect Doubson's minimal success from her motion.
While Doubson claims there was no evidence submitted by Kozlova to prove she altered her conduct, the only evidence she provides of continued harassment is that she did not remove her March 2019 Yelp review. However, as this review was found to be protected activity, not subject to a meritorious claim by Kozlova, and references to it were ordered stricken from the complaint, we do not see how the continued posting of this review constitutes further harassment.
c. Contingency Risk Enhancement
Doubson contends the trial court abused its discretion in refusing to apply a multiplier to the award that accounted for the contingency risk assumed by her attorney.
Once the trial court has determined the lodestar figure, it may augment or reduce this amount based on a variety of factors, including the contingent nature of the fee award. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49.) An enhancement of the lodestar amount to reflect the contingency risk is "[o]ne of the most common fee enhancers ...." (Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 579.)' "The purpose of a fee enhancement, or so-called multiplier, for contingent risk is to bring the financial incentives for attorneys enforcing important constitutional rights . . . into line with incentives they have to undertake claims for which they are paid on a fee-for-services basis."' (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).) Thus, as explained in Ketchum, the lodestar enhancement "is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees." (Id. at p. 1138.) Nevertheless, the trial court's decision to apply a multiplier to enhance an award of attorney fees is a discretionary one. (Bernardi, supra, 167 Cal.App.4th at p. 1399.) Further, "we will not disturb the trial court's exercise of discretion in deciding whether to increase or reduce the lodestar figure unless the fee award is clearly wrong [citation], and we may 'presume the trial court considered all the appropriate factors in choosing the multiplier and applying it to the whole lodestar.'" (Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 384 (Espejo), quoting Downey Cares v. Downey Community Development Com. (1987) 196 Cal.App.3d 983, 998.)
In refusing to enhance the award to reflect the contingency risk, the trial court indicated that the motion did not require any extraordinary skill of counsel and that the minimal success of the motion only supported a downward, not an upward adjustment of the lodestar. Doubson contends that this was incorrect legal criteria as these factors have "nothing to do" with approximating market level compensation.
In reviewing the trial court's ruling, we note that the trial court discussed some, but not all of the Ketchum factors related to a fee enhancement. (See Ketchum, supra, 24 Cal.4th at p. 1139.) However, as stated above, we may presume the trial court evaluated all relevant factors in making its decision not to apply the enhancement. (See Espejo, supra, 13 Cal.App.5th at p. 384.) Therefore, the court could have reasonably examined all the relevant factors under Ketchum and determined that such an enhancement was not appropriate. Accordingly, as we cannot say that the trial court's decision was"' "clearly wrong" '" (see Bernardi, supra, 167 Cal.App.4th at p. 1394), we find no abuse of discretion in the trial court's refusal to apply a contingency risk enhancement.
d. Reduction of Reasonable Hours in Order No. 2
Doubson argues that the trial court abused its discretion in reducing the reasonable number of hours spent on preparing the fee motion and its reply from 35.6 hours to 20 hours. We disagree.
As discussed above, the defendant bears the burden of documenting the appropriate hours expended towards the anti-SLAPP motion, including fees incurred in connection with litigating the fee award itself; further, the trial court is not bound to accept the hours put forth in the attorney's billing statement and may reduce them if it finds them to be excessive. (See 569 East County, supra, 6 Cal.App.5th at p. 441.) Additionally, if a trial court severely curtails the number of compensable hours in a fee award, we presume the trial court concluded the fee request was padded. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325.)
In making its ruling, the trial court clearly found the request to be padded by indicating that the 35.6 hours claimed were excessive, and that 20 hours was also on "the high end" of reasonableness. Further, in arguing that this reduction was inappropriate, Doubson fails to provide any evidence demonstrating why the hours spent were reasonable but simply contends the court was required to accept these amounts at face value, which runs contrary to case law. Therefore, absent any evidence from Doubson satisfying her burden that the hours requested in preparing the fee motion and reply were reasonably necessary, we find that the trial court acted within its discretion in finding the requested hours excessive and reducing them accordingly.
Doubson further contends that the trial court erred in applying the allocation of success percentage and lodestar reductions to the fee award in Order No. 2, and refers to her arguments made in connection with Order No. 1. However, Doubson additionally claims that a fee motion and anti-SLAPP motion are distinct motions that should not be treated the same, yet cites no legal authority in support. "When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' [Citations.] Hence, conclusory claims of error will fail." (S.C., supra, 138 Cal.App.4th at p. 408.)
e. Conclusion
In summary, we find no abuse of discretion in the trial court's calculation of the lodestar figure in both orders, including the reasonable hourly rate, reasonable hours expended, downward reduction to reflect Doubson's minimal success, and denial of a contingency risk enhancement.
B. The Trial Court's Denial of Section 527 .6 Prevailing Party Fees
Doubson contends that the trial court erred in denying her request for fees as a prevailing party in the CHRO action following Kozlova's voluntary dismissal. Doubson claims that the trial court improperly denied her request on the grounds that she failed to demonstrate the CHRO action was filed frivolously or in bad faith, which is not a requirement for recovering fees under section 527.6.
Section 527.6, subdivision (s) provides that the prevailing party in an action brought under this section may recover court costs and attorney fees, if any. As the statute does not provide a definition of "prevailing party," the general definition under section 1032 may be used. (Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1777.) Under section 1032, subdivision (a)(4), a prevailing party includes a defendant in whose favor a dismissal was entered. Therefore, as Kozlova voluntarily dismissed the CHRO action, Doubson would qualify as a prevailing party under section 527.6, subdivision (s).
In reviewing the trial court's ruling, the reason cited by the trial court in support of its denial was its conclusion that Kozlova's CHRO action was not "frivolous, maintained for improper purposes or that a restraining order was unnecessary." We note that Doubson herself argued that Kozlova's CHRO action was frivolous and filed in bad faith. Therefore, in our view, the trial court's finding appears to have simply been in response to an argument that Doubson raised, as opposed to being the sole basis for its decision. Further, the decision to award prevailing party fees under section 527.6 is not mandatory but "a matter committed to the discretion of the trial court." (Krug v. Maschmeier (2009) 172 Cal.App.4th 796, 802.) Accordingly, as we presume an attorney fee award is correct absent a sufficient showing to the contrary (see 569 East County, supra, 6 Cal.App.5th at p. 434), we find that the trial court did not abuse its discretion in denying Doubson's request for fees as a prevailing party in the CHRO action.
In her brief, Kozlova requests that we sanction Doubson for making a "frivolous" argument that this court erred in its previous opinion in this matter by declining to decide if Kozlova could still prevail on her CHRO action after the protected activities were stricken. While we agree that Doubson's argument is without merit, we decline to issue sanctions at this time.
The trial court's orders filed on October 21, 2022, October 5, 2022, and September 30, 2022, are affirmed. Kozlova is awarded her costs on appeal.
WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P.J., BROMBERG, J.