Tentative Rulings

Case Number: BC616918    Hearing Date: December 11, 2020    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On April 11, 2016, Plaintiff Raphael Irving (“Plaintiff”) filed this action against Defendants Greater New Bethel Baptist Church, Inc. (“Greater New Bethel”) and Earl A. Pleasant (“Pleasant”). A First Amended Complaint (“FAC”) was filed on May 19, 2016, and asserted causes of action for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and vicarious liability. In addition to Greater New Bethel and Pleasant, the FAC also named as defendants Greater New Bethel Baptist Church, Inc. Official Board of Management, Ronald Nezey, and Rikki T. Ferrell (together with Greater New Bethel and Pleasant, collectively, “Defendants”).

On September 8, 2016, the Court issued an order granting Defendants’ special motion to strike the FAC pursuant to Code of Civil Procedure section 425.16 (the “Anti-SLAPP Order”). On February 3, 2017, the Court issued an order granting Defendants’ motion for an award of attorneys’ fees and costs in the amount of $9,901 pursuant to Code of Civil Procedure section 425.16, subdivision (c). Plaintiff appealed the Anti-SLAPP Order. The Court of Appeal affirmed the Anti-SLAPP Order, and on December 3, 2018, the remittitur was issued. On July 16, 2019, the Court entered judgment in favor of Defendants and against Irving (the “Judgment”).

On September 13, 2019, Plaintiff filed another Notice of Appeal, this time purporting to appeal the Judgment. Defendants, as Respondents in the appeal of the Judgment, moved to dismiss the appeal. The Court of Appeal granted the motion to dismiss, and the remittitur was issued on August 7, 2020.

Defendants now move for an award of attorney fees and costs as the prevailing parties on the appeal of the Judgment, in the total amount of $11,058.54. Plaintiff opposes.

Discussion

The anti-SLAPP statute provides that “in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” ((Id., § 425.16, subd. (c)(1).) “[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” ((Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) An award of fees may also include “the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16.” (Id. at p. 1141.) “A party may also obtain an award of costs, including attorney fees, if it has successfully defended on appeal the trial court’s grant of its anti-SLAPP motion to strike.” ((Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 139.)

“It is well established that the amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the familiar lodestar method.” ((569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432 [internal quotations and brackets omitted].) Under the lodestar method, the court tabulates the attorney fee lodestar by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.” (Ibid. .)

With regard to the number of hours reasonably expended, “the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” ((Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) In determining the reasonable hourly rate, the “burden is on the successful party to prove the appropriate market rate to be used in calculating the lodestar.” ((MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13.) The trial court may reduce the award where the fee request appears unreasonably inflated, such as where the attorneys’ efforts are unorganized or duplicative. ((Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21.)

Defendants submit that they incurred $8,959.50 in attorney fees (0.9 hours for partner fees and approximately 57 hours for associates) and $1,168.54 in costs in connection with the appeal of the Judgment and $930 in connection with the instant fees motion. (Genatempo Decl., ¶ 6, Ex. A.) Defendants assert that their counsel charges $170 per hour for partners, $155 per hour for associates, and $75 per hour for junior associates/paralegals. Although there is no citation to evidence for this fact, the Court finds that it is corroborated by a review of the invoices attached to the Declaration of Gina Genatempo.[1] The Court finds that the hourly rates are reasonable.

Plaintiff contends that Defendants’ counsel’s time entries are vague and ambiguous, but the Court finds that the time entries are sufficiently descriptive and it is fairly clear which entries have been marked by hand as relevant to this motion. Plaintiff also argues that 58 hours in connection with the appeal of the Judgment is unreasonable and therefore such an award would be unjust and constitute a windfall to Defendants. The Court finds that of the hours expended, only the $17 billed on September 25, 2019 to “Draft/Revise Carrier Re: Status of Mediation” is not related to the subject appeal and is thus not recoverable. Otherwise, the Court finds that the hours expended by Defendants’ counsel are reasonable. Plaintiff also objects to time spent on attempts to settle the case, but the Court finds that the time is compensable. Plaintiff also argues that because OF his counsel’s recent substitution into this case, he is unable to discern what work was actually done for the second appeal. But in light of the Court’s granting of Plaintiff’s ex parte application to extend the time for Plaintiff to oppose the instant motion, the Court finds that sufficient time has been provided for Plaintiff’s counsel to get up to speed on this case.

Next, Plaintiff argues that the fee award is unreasonable because it would cause financial ruin to him. “In determining the amount of fees to be awarded to the prevailing party where [a] statute . . . requires that the fee be reasonable, the trial court must . . . consider the other circumstances in the case in performing the lodestar analysis . . . . [including], as appropriate, the financial circumstances of the losing party and the impact of the award on that party.” ((Garcia v. Santana (2009) 174 Cal.App.4th 464, 476-477.) “[I]n the proper case, the trial court does have the discretion to determine that the award that is reasonable is zero.” ((Id. at p. 477.) In Garcia, the plaintiff filed a complaint against her housing cooperative and its manager and directors for violations of the Corporations Code and the cooperative’s bylaws. ((Id. at p. 468.) The trial court granted the defendants’ motion for summary judgment, which was unopposed, but the trial court awarded no attorney fees (defendants requested $48,328 in fees after entry of judgment) based on the plaintiff’s financial condition, which was supported by “various documents,” “including a copy of the waiver of court fees and costs.” (Ibid. .)

First, the Court notes that Plaintiff offers no evidence of his financial condition other than a reference to his status as a pro per litigant who is proceeding in forma pauperis. The Court takes judicial notice of the fact that Plaintiff was granted a fee waiver by the Court on April 11, 2016. However, no other evidence is offered by Plaintiff establishing his indigency.

Second, the Court notes that the Court of Appeal in Garcia reasoned that it was within a trial court’s discretion to consider a plaintiff’s financial condition because “nothing in the Civil Code . . . indicates a legislative determination that parties should be punished for bringing unsuccessful cases, when the threat of an award of fees untethered to any consideration of ability to pay would mean the denial of meaningful access [to the courts].” ((Id. at p. 475.) This is, in part, because the attorney fee statute at issue in Garcia authorized only “reasonable” fees. ((Id. at p. 473.) It is unclear whether this reasoning is applicable to fee awards arising under Code of Civil Procedure section 425.16, which does not have a “reasonable” fee requirement. (Code Civ. Proc., § 425.16, subd. (c)(1) [“…a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”].) Moreover, the public policy of the fee-shifting provision of the anti-SLAPP statute is to “discourage . . . strategic lawsuits against public participation by imposing the litigation costs on the party seeking to ‘chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’” ((Ketchum v. Moses, supra, 24 Cal.4th at p. 1131.) “The fee-shifting provision also encourages private representation in SLAPP cases, including situations when a SLAPP defendant is unable to afford fees or the lack of potential monetary damages precludes a standard contingency fee arrangement.” ((Ibid. .) Therefore, the Court finds that an award of attorney fees and costs in the instant case is mandatory. As to whether the fees should be reduced because of Plaintiff’s status as a litigant proceeding in forma pauperis, the Court considers that fact but exercises its discretion not to impose a reduction of fees. The Court notes that the hourly rated of $170, $155 and $75 requested by Defendants are at least half the rates charged by comparable counsel in this legal community. The Court finds that Defendants have satisfactorily established the reasonableness of the requested fees and costs (totaling $9,872.50 in fees and $1,168.54 in costs), and Plaintiff has failed to establish what reduction would be appropriate in light of his financial condition.

Conclusion

Based on the foregoing, the Court grants Defendants’ motion and awards to Defendants attorney’s fees and costs in the total amount of $11,041.04.

Defendants are to provide notice of this ruling.

DATED: December 11, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: BC616918    Hearing Date: September 30, 2020    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On April 11, 2016, Plaintiff Raphael Irving (“Plaintiff”) filed this action against Defendants Greater New Bethel Baptist Church, Inc. (“Greater New Bethel”) and Earl A. Pleasant (“Pleasant”). A First Amended Complaint (“FAC”) was filed on May 19, 2016, and asserted causes of action for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and vicarious liability. In addition to Greater New Bethel and Pleasant, the FAC also named as defendants Greater New Bethel Baptist Church, Inc. Official Board of Management, Ronald Nezey, and Rikki T. Ferrell (together with Greater New Bethel and Pleasant, collectively, “Defendants”).

On September 8, 2016, the Court issued an order granting Defendants’ special motion to strike the FAC pursuant to Code of Civil Procedure section 425.16 (the “Anti-SLAPP Order”). On February 3, 2017, the Court issued an order granting Defendants’ motion for an award of attorneys’ fees and costs in the amount of $9,901 pursuant to Code of Civil Procedure section 425.16, subdivision (c). Plaintiff appealed the Anti-SLAPP Order. The Court of Appeal affirmed the Anti-SLAPP Order, and on December 3, 2018, the remittitur was issued. On July 16, 2019, the Court entered judgment in favor of Defendants and against Irving (the “Judgment”).

On September 13, 2019, Plaintiff filed another Notice of Appeal, this time purporting to appeal the Judgment. Defendants, as Respondents in the appeal of the Judgment, moved to dismiss the appeal. The Court of Appeal granted the motion to dismiss, and the remittitur was issued on August 7, 2020.

Defendants now move for an award of attorney fees and costs as the prevailing parties on the appeal of the Judgment, in the total amount of $11,058.54. The motion is unopposed.

Discussion

The anti-SLAPP statute provides that “in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (Code Civ. Proc., § 425.16, subd. (c)(1).) “[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) An award of fees may also include “the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16.” (Id. at p. 1141.) “A party may also obtain an award of costs, including attorney fees, if it has successfully defended on appeal the trial court’s grant of its anti-SLAPP motion to strike.” (Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 139.)

“It is well established that the amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the familiar lodestar method.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432 [internal quotations and brackets omitted].) Under the lodestar method, the court tabulates the attorney fee lodestar by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.” (Ibid.)

With regard to the number of hours reasonably expended, “the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) In determining the reasonable hourly rate, the “burden is on the successful party to prove the appropriate market rate to be used in calculating the lodestar.” (MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13.) The trial court may reduce the award where the fee request appears unreasonably inflated, such as where the attorneys’ efforts are unorganized or duplicative. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21.)

Defendants submit that they incurred $8,959.50 in attorney fees (0.9 hours for partner fees and approximately 57 hours for associates) and $1,168.54 in costs in connection with the appeal of the Judgment and $930 in connection with the instant fees motion. (Genatempo Decl., ¶ 6, Ex. A.) Defendants assert that their counsel charges $170 per hour for partners, $155 per hour for associates, and $75 per hour for junior associates/paralegals. Although there is no citation to evidence for this fact, the Court finds that it is corroborated by a review of the invoices attached to the Declaration of Gina Genatempo.[1] The Court finds that the hourly rates are reasonable.

In terms of the hours expended, the Court finds that the $17 billed on September 25, 2019 to “Draft/Revise Carrier Re: Status of Mediation” is not related to the subject appeal and is thus not recoverable. Accordingly, the Court finds that Defendants have established the reasonableness of the following: $1,168.54 in costs and $9,872.50 in attorney fees.

Conclusion

Based on the foregoing, the Court grants Defendants’ motion and awards to Defendants attorney’s fees and costs in the total amount of $11,041.04.

Defendants are to provide notice of this ruling.

DATED: September 30, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court