Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. RCV092365 Ben T. Kayashima, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Kevin Jen-Kang Yang and Lee Yang, in propria persona, for Plaintiffs and Appellants.
Seyfarth Shaw, T. Larry Watts and Ann H. Qushair for Defendant and Respondent.
OPINION
RICHLI J.
After the trial court granted a SLAPP motion by defendant Robert Buch, it entered judgment against plaintiffs Kevin Jen-Kang Yang and Lee Yang. The Yangs appealed from the judgment, arguing, among other things, that the SLAPP motion should have been denied. We held that the Yangs had failed to file a timely appeal from the order granting the SLAPP motion, which was separately appealable, and hence we had no jurisdiction to review that order. We also awarded Buch costs on appeal.
A “SLAPP motion” is a special motion to strike pursuant to Code of Civil Procedure section 425.16.
On remand, the Yangs filed a motion for sanctions, on the ground that Buch had failed to prepare a proposed order granting the SLAPP motion and thus had somehow prevented them from filing a timely appeal; the trial court denied this motion. The trial court also awarded Buch $25,000 as attorney fees for the appeal.
The Yangs now appeal both of these postjudgment orders. Finding no error, we will affirm.
I
THE AWARD OF ATTORNEY FEES
The Yangs contend, for several alternative reasons, that the trial court erred by awarding Buch $25,000 in attorney fees.
A. Factual and Procedural Background.
The underlying factual basis of this action has long since been lost in the thicket of the parties’ procedural disputes. Thus, we discuss only the relevant procedural events.
In December 2005, the Yangs filed this action against Buch and others. In May 2006, the trial court granted Buch’s SLAPP motion. In August 2006, it entered judgment against the Yangs and in favor of Buch. The Yangs filed a notice of appeal, specifying the August judgment, but not specifying the May order granting the SLAPP motion.
We have already granted Buch’s request for judicial notice of the record in the previous appeal (case No. E041427).
In January 2008, we issued our opinion. (Yang v. Buch (Jan. 18, 2008, E041427) [nonpub. opn.] (Yang I).) We held, among other things, that the trial court’s minute order granting the SLAPP motion was an immediately appealable order. The Yangs, however, had not filed a timely appeal from that order. Accordingly, we held that we lacked jurisdiction to review the order granting the SLAPP motion. In our disposition, we awarded Buch costs on appeal against the Yangs. On April 21, 2008, we issued our remittitur.
On June 2, 2008, Buch filed a motion for attorney fees on appeal under Civil Procedure section 425.16 (SLAPP statute). He requested fees totaling $75,000. The motion was supported by a summary of his counsel’s time records, along with evidence of their billing rates and the reasonableness thereof.
The proof of service of the motion recited that it had been served on:
“Jen-Kang Yang (BY OVERNITE EXPRESS)
“Lee Yang
“[Street address]
“Upland, CA 91784”
On June 4, 2008, the Yangs made an ex parte application to strike the motion. In it, they conceded that the motion had been “served to the Yangs on June 2, 2008.” They argued, however, that it had not been served and filed within 40 days after the issuance of the remittitur. (See Cal. Rules of Court, rules 3.1702(c)(1), 8.278(c)(1).) The trial court denied the application.
The Yangs then filed an opposition. They did not dispute that Buch was entitled to attorney fees; they merely argued that the fee amount sought was excessive. In support of the opposition, Mrs. Yang testified that, in April 2008, Buch’s counsel had left her a message stating that he estimated Buch’s attorney fees in connection with the appeal up to that point at $10,000.
The trial court granted the motion, but only in part. It ruled that, because the appeal had dealt with other issues in addition to the order granting the SLAPP motion, Buch was entitled to only $25,000 in attorney fees. The Yangs filed a timely notice of appeal from this order.
B. Analysis.
1. Service on Mrs. Yang.
First, the Yangs argue that the fee motion was not served on Mrs. Yang. The proof of service, however, recited that both of the Yangs were served, albeit at the same address. Thus, basically, the Yangs are objecting because Buch served only one copy of the motion rather than two.
The Yangs, however, forfeited this argument by failing to raise it in their opposition to the motion. “‘In order to preserve an issue for appeal, a party ordinarily must raise the objection in the trial court.’ [Citation.]” (K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 948.) They claim that they did raise it, not in their opposition, but earlier, in their ex parte application to strike the motion. To the contrary, however, in the ex parte application, they conceded that they had both been served; they merely argued that they had not been served within 40 days after the issuance of the remittitur.
In their statement of facts, the Yangs claim that their then-attorney made this concession without their knowledge, consent, or authorization. However, they do not cite any portion of the record that supports this claim (see Cal. Rules of Court, rule 8.204(a)(1)(C)), and there is none. Moreover, they do not claim that they are not bound by the attorney’s concession on their behalf. It was within her ostensible authority and therefore binding. (See generally Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 403-404.)
It is true that, at the hearing on the ex parte application, there was this colloquy:
“MS. YANG:... [F]irst of all, I want to clear[ly] state that they fail[ed] to file the motion within 40 days.
“THE COURT: I understand your position.
“MS. YANG: And they failed to serve me by within 40 days.
“THE COURT: I understand what you’re saying.” (Italics added.)
Mrs. Yang appeared to be continuing to argue only that the motion was untimely. Her italicized comment was inadequate to bring to the trial court’s attention the new and entirely distinct argument that Buch had failed to serve her at all.
The Yangs additionally forfeited this argument when their then-attorney filed an opposition and appeared at the hearing on the motion on behalf of both Mr. and Mrs. Yang. “... ‘It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal... that he had no notice of the motion or that the notice was insufficient or defective.’ [Citations.]” (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7-8.)
Separately and alternatively, the Yangs were estopped to object to this mode of service. Buch had previously served other documents in the same manner. The Yangs had not objected. This was an implied representation that this mode of service was proper, or, at least, that they did not object to it. Buch was entitled to rely on this representation.
Separately and alternatively, again, we reject this argument on the merits. The envelope was addressed to both Mr. and Mrs. Yang. The flaw in their argument becomes apparent if one tries to determine which of them was not served. They argue that Mr. Yang was served, while Mrs. Yang was not; however, it could equally be argued that Mrs. Yang was served, while Mr. Yang was not. Actually, the one copy was received by both of them. We know of no authority that parties who share a common address are each entitled to a separate copy.
Finally — and yet again, separately and alternatively — we reject this argument for the additional reason that Mrs. Yang has not shown prejudice. (Cal. Const., art VI, § 13; Code Civ. Proc., § 475.) Obviously, she was aware of the motion. Moreover, she managed to make an ex parte application to strike it, as well as to file a timely response to it on the merits.
2. Filing within 40 days after issuance of the remittitur.
Next, the Yangs contend that the motion was untimely because it was not served and filed within 40 days after issuance of the remittitur.
A motion for attorney fees on appeal must be filed within 40 days after the clerk sends notice of the issuance of the remittitur. (Cal. Rules of Court, rules 3.1702(c)(1), 8.278(c)(1).) Here, the remittitur issued on April 21, 2008. Forty days after that — May 31, 2008 — was a Saturday. Accordingly, Buch’s motion, served and filed on Monday, June 2, 2008, was timely. (Code Civ. Proc., §§ 12, 12a.)
The Yangs’ only argument to the contrary is that, because the motion was served by overnight delivery, “the service... should be extended by two court days, that is, June 4, 2008.” Quite frankly, this makes no sense. As the motion met the deadline of June 2, a fortiori it met a deadline of June 4.
In support of this argument, the Yangs cite Code of Civil Procedure section 1013, subdivision (c). This statute provides that, when a document is served by overnight delivery, “[t]he service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document... shall be extended by two court days....” Thus, it would have extended the Yangs’ time to respond to the motion. It had no application, however, to Buch’s time to serve and file the motion in the first instance.
3. The nature of the appeal.
The Yangs also argue that, because this court held that it lacked jurisdiction to review the order granting the SLAPP motion, Buch was not entitled to attorney fees under the SLAPP statute.
Once again, the Yangs forfeited this argument by failing to raise it in opposition to the motion.
Separately and alternatively, however, it lacks merit. “Under [Code of Civil Procedure] section 425.16, subdivision (c), ‘any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.’ [Citation.]” (S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 379.) “The statute includes fees and costs incurred in defending an unsuccessful appeal of an order granting a special motion to strike. [Citations.]” (GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 910.) “‘A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise. [Citations.]’ [Citation.]” (Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461.) However, “the fee ‘provision applies only to the motion to strike, and not to the entire action.’ [Citations.]” (S.B. Beach Properties, at p. 381.)
“The provision for fees and costs ‘is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extricating [himself or itself] from a baseless lawsuit.’ [Citation.]” (GeneThera, Inc. v. Troy & Gould Professional Corp., supra, 171 Cal.App.4th at p. 910.) “The issue of a party’s entitlement to attorney’s fees is a legal issue which we review de novo. [Citations.]” (Garcia v. Santana (2009) 174 Cal.App.4th 464, 468-469.)
Here, the Yangs appealed from a judgment of dismissal, which necessarily resulted from the order granting the SLAPP motion. Admittedly, their notice of appeal specified only the judgment and not the underlying order. Nevertheless, in that appeal they devoted roughly half of their opening brief to a vigorous challenge to the order granting the SLAPP motion. The fact that we rejected that challenge on jurisdictional grounds rather than on the merits is irrelevant. Buch was still forced to incur attorney fees to defend himself against claims that had been stricken as baseless under the SLAPP statute. Under these circumstances, an award of attorney fees is necessary to effectuate the legislative purpose.
4. The amount of the fee award.
Finally, the Yangs argue that the amount of the fee award was excessive.
“[T]he determination of the amount of fees to be awarded is reviewed for abuse of discretion. [Citations.]” (Garcia v. Santana, supra, 174 Cal.App.4th at p. 469.) “We will disturb the trial court’s exercise of discretion in the determination of a reasonable attorney’s fee ‘only where there has been a manifest abuse of discretion.’ [Citations.]” (Ibid.)
“To enable the trial court to determine whether attorney fees should be awarded and in what amount, an attorney should present ‘(1) evidence, documentary and oral, of the services actually performed; and (2) expert opinion, by [the applicant] and other lawyers, as to what would be a reasonable fee for such services.’ [Citations.]” (Martino v. Denevi (1986) 182 Cal.App.3d 553, 558.)
The Yangs claim there was no evidence that Buch actually paid or became liable to pay the fees. No such evidence, however, was required. Admittedly, Buch could not have recovered attorney fees if he were representing himself. (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 493-494.) If, however, his attorneys were representing him pro bono, that would not defeat his entitlement to fees. (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 283-285.)
We rejected a virtually identical argument in the previous appeal. (Yang I, supra.) Accordingly, this is now the law of the case.
The Yangs argue that “[t]he trial court did not identify the reasonably compensable attorney hours.” The trial court, however, had no duty to do so. Rather, the Yangs, as appellants, have the burden of showing that the fee award was excessive. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1509.) “A ‘“‘judgment or order of the lower court is presumed correct[, and a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’” [Citation.]’” (In re Julian R. (2009) 47 Cal.4th 487, 498-499, original brackets.)
The Yangs also argue that “the trial court failed to review the billing records.” Summary billing records, however, were included in Buch’s motion, and there is no reason to suppose that the trial court did not review them.
Next, the Yangs complain that the trial court erred by failing to use the so-called “lodestar” approach. “The ‘lodestar’ is ‘the number of hours reasonably expended multiplied by the reasonable hourly rate.’ [Citation.]” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.) “[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.... [Citation.]” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134.) “‘There is no hard-and-fast rule limiting the factors that may justify an exercise of judicial discretion to increase or decrease a lodestar calculation.’ [Citation.]” (Krumme v. Mercury Ins. Co. (2004) 123 Cal.App.4th 924, 947.)
Here, Buch provided all of the information necessary to calculate the lodestar. The Yangs state that, “Except [for] the summary description of service[s] [citation], Buch did not provide [the] lodestar method....” (Italics added.) But that is a very big “except.” The trial court could properly rely on the summary. “[A]n award of attorney fees may be based on counsel’s declarations, without production of detailed time records. [Citations.]” (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) The trial court then reduced the lodestar significantly, based on its determination that only part of the time spent on the appeal dealt with the SLAPP motion. This was perfectly appropriate.
Finally, the Yangs point to Mrs. Yang’s testimony that, in April 2008, Buch’s counsel estimated Buch’s attorney fees in connection with the appeal up until that point at $10,000. Buch labeled this testimony “simply false.” The trial court was not required to believe it, particularly in the face of the attorneys’ time records.
We therefore conclude that the trial court properly awarded $25,000 in attorney fees.
II
THE MOTION FOR SANCTIONS
The Yangs also contend that the trial court erred by denying their motion for sanctions.
A. Additional Factual and Procedural Background.
Back in May 2006, when the trial court granted the SLAPP motion, it did so in the form of a minute order. It did not direct Buch to prepare a formal written order. However, it did direct him to give notice. He attempted to serve notice of the ruling by email. The trial court later ruled, however, that this was improper.
In July 2008, the Yangs filed a motion for sanctions against Buch and his counsel. In it, they argued that Buch had failed to serve or file a proposed order denying the SLAPP motion, in violation of California Rules of Court, rule 3.1312. They further argued that this had prevented them from filing a timely appeal from the denial of the SLAPP motion.
All further citations to rules refer to the California Rules of Court.
In September 2008, the trial court denied the motion for sanctions. It explained: “The court made its own order[;] there was no need for either party to prepare a proposed formal or written [order], nor did the court order such. Buch was ordered otherwise by the court[,] to simply give notice, which [he] did.” It added: “Even if Buch were required to prepare a formal written order and failed to do so, the Yangs’ remedy was... to prepare and file [their] own order.”
The Yangs filed a timely notice of appeal from the order denying their motion for sanctions.
B. Analysis.
Rule 2.30(b) provides: “In addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules.”
The Yangs rely on rules 2.30 and 3.1312. In May 2006, when the trial court granted the SLAPP motion, neither of these rules was in effect yet. However, their predecessors, former rules 227 and 391, were in effect and were substantially the same.
Rule 3.1312, as relevant here, provides:
“(a) Prevailing party to prepare
“Unless... the court orders otherwise, the party prevailing on any motion must, within five days of the ruling, mail or deliver a proposed order to the other party for approval as conforming to the court’s order. Within five days after the mailing or delivery, the other party must notify the prevailing party as to whether or not the proposed order is so approved. The opposing party must state any reasons for disapproval....
“(b) Submission of proposed order to court
“The prevailing party must, upon expiration of the five-day period provided for approval, promptly transmit the proposed order to the court together with a summary of any responses of the other parties or a statement that no responses were received.
“(c) Failure of prevailing party to prepare form
“If the prevailing party fails to prepare and submit a proposed order as required by (a) and (b) above, any other party may do so.”
Thus, rule 3.1312(a) requires a prevailing party to prepare a formal order, “[u]nless... the court orders otherwise....” The trial court reasoned that, by ordering Buch to give notice of its minute order, it was implicitly ordering him not to prepare a more formal order. We need not decide whether this was correct, because the trial court also denied the motion for a second, alternative reason. It concluded that the Yangs’ remedy, under rule 3.1312(c), was to prepare their own formal order. The Yangs do not point to any flaw in this reasoning. Hence, they have forfeited any challenge to it.
The Yangs argue that, even though rule 3.1312(a) used the words, “[u]nless... the court orders otherwise” and hence allows a court to relieve a prevailing party of its requirements, rule 3.1312(b) contains no similar wording and hence does not. This argument is frivolous. Really, would it make any sense to say that a party does not have to prepare a formal order, but still has to transmit a formal order to court?
The Yangs specifically challenge the trial court’s statement, “Buch was ordered otherwise by the court to simply give notice, which [he] did.” (Italics added.) The italicized language was inaccurate. Actually, Buch attempted to give notice by email, but the trial court later ruled that this was not good service. The italicized wording, however, was a gratuitous comment, unnecessary to the trial court’s reasoning in denying the motion for sanctions. Moreover, as will be seen, it is unnecessary to our reasoning in upholding that denial.
And that reasoning is, in fact, sound. The Yangs knew perfectly well that the SLAPP motion had been granted — they were in court at the time. Thus, they could readily have prepared their own formal order. Moreover, the minute order granting the SLAPP motion was an appealable order in itself. (See rule 8.104(d)(2).) Buch’s supposed failure to prepare a formal order was no obstacle whatsoever to the Yangs’ ability to appeal.
In the Yangs’ previous appeal, we held, among other things: “The trial court granted the SLAPP motion in a minute order entered on May 4, 2006. The May 4 order was, in itself, immediately appealable. [Citations.]” (Yang I, supra.) Accordingly, this is now the law of the case.
In sum, the Yangs have not shown that Buch’s alleged violation of rule 3.1312 prejudiced them in any way. It follows that they were not “aggrieved part[ies]” and hence that they were not entitled to sanctions under rule 2.30(b).
Finally, the Yangs argue that the clerk of the court failed to give notice of the order granting the SLAPP motion (citing Code Civ. Proc., § 664.5, subd. (d) & rule 3.1109). They also complain about the fact that the trial court did not immediately enter a signed, written judgment of dismissal (citing Code Civ. Proc., § 581d). Assuming, without deciding, that the trial court and/or the clerk breached some kind of duty, this would hardly be grounds for an award of sanctions against Buch.
It did so eventually, about four months later.
We therefore conclude that the trial court properly denied the Yangs’ motion for sanctions.
III
DISPOSITION
The orders appealed from are affirmed. Buch is awarded costs on appeal against the Yangs.
One of the issues in this appeal was whether Buch was entitled to attorney fees under the SLAPP statute’s mandatory attorney fee provision. “[A]n award of fees may include not only the fees incurred with respect to the underlying claim, but also the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1141.) Accordingly, Buch’s recoverable costs shall include his reasonable attorney fees for litigating at least this issue in this appeal.
Moreover, the only other issue was whether Buch should be sanctioned for failing to prepare a proposed order granting his SLAPP motion. This issue, too, was related to the SLAPP motion and hence was within the scope of the SLAPP statute’s attorney fee provision. Accordingly, Buch is entitled to recover reasonable attorney fees for the entire appeal, in an amount to be determined by the trial court on a suitable motion.
We concur: HOLLENHORST, Acting P.J., GAUT J.
Rule 3.1312(b) applies only after the expiration of the five-day approval period provided in rule 3.1312(a). If the trial court relieves a party of the requirement that it prepare a formal order under rule 3.1312(a), this period never starts; hence, it has effectively relieved the party of the requirement that it transmit the formal order to court under rule 3.1312(b).