CARLOS DUENAS VS HYUN PARK ET AL

Tentative Rulings

Case Number: ****9504    Hearing Date: March 25, 2021    Dept: 36

Superior Court of California

County of Los Angeles

Department 36

The motion is granted in part. The court awards attorney’s fees in the reduced sum of $221,373.60, plus $39,000.00 for this motion. The court declines to award a fee multiplier.

Response Evidence

Plaintiff moves for an award of attorney’s fees on appeal and fees for this motion. (Mot. at pp. 2, 9.) Defendants oppose on grounds that Plaintiff is not a prevailing party, and alternatively, on grounds that Plaintiff is not entitled to the attorney’s fees requested, relying in primary part on the declaration of James P. Schratz and audit of the Plaintiff’s billing submitted with the Motion. (See generally Opp.) Plaintiff on reply offered the declaration of Scott Tillett, attacking the credibility and grounds of Mr. Schratz’s declaration, and attesting to additional hours for drafting the reply and reply declaration in this motion. (See generally Reply.) In light of the evidence filed with the reply papers, the court permitted the Defendants to file a supplemental response limited to the reply evidence, which they did on March 8, 2021.

Along with the supplemental response, the Defendants filed a supplemental declaration. Again, the general rule of motion practice is that new evidence is not permitted with reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) In an effort to resolve the issues before the court, which are fully briefed, the court declines to consider the supplemental evidence submitted with the response, which the court did not permit in its prior order.

Evidentiary Objections

Plaintiff’s objections to the declaration of James P. Schratz are ruled on as follows:

SUSTAINED: Nos. 1, 2, 5, 17, 20, 28, 36, 39.

OVERRULED: Nos. 3, 4, 6-16, 18-19, 21-27, 29-35, 37-38, 40-42.

Defendants’ objections to the declaration of Scott Tillett are each OVERRULED.

Motion for Attorney’s Fees on Appeal

1. Timeliness

California Rules of Court, Rule 8.278 provides in relevant part:

(c) Procedure for claiming or opposing costs

(1)  Within 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700.

California Rules of Court, Rule 3.1702 provides in relevant part:

(c) Attorney's fees on appeal

(1)  Time for motion

A notice of motion to claim attorney's fees on appeal-other than the attorney's fees on appeal claimed under (b)-under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1) in an unlimited civil case or under rule 8.891(c)(1) in a limited civil case.

(2)  Stipulation for extension of time

The parties may by stipulation filed before the expiration of the time allowed under (c)(1) extend the time for filing the motion up to an additional 60 days in an unlimited civil case or 30 days in a limited civil case.

Moving party Plaintiff Chris Curry filed this motion on November 25, 2020. This court obtained Remittitur on August 17, 2020, from the Court of Appeal. The parties filed two stipulations without orders to extend the time to file the motion, agreeing to extend the deadline a total of 60 days to November 25, 2020. The motion is timely.

2. Entitlement to Attorney’s Fees

“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Govt. Code, ; 12965(b).)

Defendants Academy Pointe, Inc., J.K. Residential Services, Inc. and ANZA Management Company oppose on grounds that Plaintiff was not a “prevailing defendant” on appeal and is not entitled to attorney’s fees for the appeal. “Because FEHA does not define the term ‘prevailing party,’ prevailing party status is determined in this context ‘based on an evaluation of whether a party prevailed “on a practical level,” and the trial court's decision should be affirmed on appeal absent an abuse of discretion.’ ” (Bustos v. Global P.E.T., Inc. (2017) 19 Cal.App.5th 558, 562.)

In this action, Jury Trial was held between November 15-17, 2017. The jury returned a special verdict, finding: (1) Defendants did deny or aid a denial of full and equal accommodations, facilities, or services to plaintiff; (2) Defendants’ conduct was a substantial factor in causing harm to Plaintiff; (3) Plaintiff’s damages for past noneconomic damages are $750,000; (4) Academy Pointe, Inc. and J.K. Residential Services, Inc. engaged in the conduct with malice or oppression. Later that day, the jury returned with a verdict awarding $4.5 million dollars of punitive damages against Academy Pointe, Inc. and J.K. Residential Services and in favor of the Plaintiff. Defendants Academy Pointe, Inc., J.K. Residential Services, Inc. and ANZA Management Company appealed. On August 17, 2020, this court received the Remittitur from the Court of Appeal, stating the Defendants contended: “the compensatory damages award was excessive, the punitive damages award was unsupported by substantial evidence, and the court erred in awarding prejudgment interest.” The Court of Appeal held: (1) the award for compensatory damages was not excessive; (2) substantial evidence supported a punitive damages award; (3) $4.5 million in punitive damages was excessive as it bore no reasonable relation to Villa’s reprehensibility, Curry’s harm, or possible civil penalties. The Court of Appeal concluded that under the circumstances a one-to-one ratio between punitive compensatory and punitive damages represented the upper limit that due process would permit, and thus affirmed punitive damages award but ordered it reduced to $750,000. Last, the Court of Appeal remanded for recalculation on the interest award. (See Pine Decl. ¶ 4, Exh. A, at pp. 2, 17-19.)

On a practical level, Defendants appealed compensatory damages, punitive damages, and interest, and the Court of Appeal affirmed the award of and entitlement to compensatory damages and the entitlement to punitive damages and interest, but reduced the award amount of punitive damages. Defendants have offered no authority supporting that a party as here who has received affirmance to entitlement to each type of damages, but reduction of punitive damages, is not a prevailing party. The court finds Plaintiff entitled to attorney’s fees on appeal as a prevailing party under the practical reality that Plaintiff received such affirmance entitling the Plaintiff to damages and interest.

3. Reasonableness of Attorney’s Fees

The moving party bears the burden of proof on any claim not based upon the court’s established attorney fee schedule. (CCP ; 1033.5(c)(5).)

Plaintiff as the moving party seeks an order to: (1) approve an attorney’s fees lodestar of $316,248.00; (2) apply a 2.0 multiplier; and (3) award a fee motion lodestar of $35,437.00, plus $54,994.00 in attorney’s fees for briefing the Reply.

Generally, “a court assessing attorney fees begins with a touchstone or lodestar figure, based on the “careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-32 (Ketchum).) A reasonable hourly rate must reflect the skill and experience of the attorney. (See Serrano v. Priest, 20 Cal.3d 25, 48 (1977).) The court reviews documentation of hours expended; “padding” in the form of inefficient or duplicative efforts is not subject to compensation.” (See Ketchum, supra, at p. 1132.) “To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether.” (See Ketchum, supra, at p. 1138.)

Plaintiff seeks a lodestar of $316,248.00 in attorneys’ fees, comprised of the following amounts (Pine Decl. ¶ 32):

Plaintiff also seeks $54,994.00 in attorney’s fees for briefing the Reply comprised of the following amounts (Reply, Tillett Decl. ¶ 23):

A. Hourly Rate

Defendants do not dispute the hourly rates billed by Counsel.

Plaintiff attaches to the motion evidence in support of the prevailing rates for attorneys of similar experience in the declaration exhibits of David M. deRubertis and Bernard Alexander, supporting the reasonableness of each counsel’s hourly rate. (Pine Decl. ¶¶ 19-22, Exh. C, Exh. D; id. ¶¶ 28, 29.) In light of the uncontroverted evidence in support, the court finds the hourly rates billed by Counsel reasonable. (See Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41, as modified (Oct. 11, 2019), review denied (Jan. 2, 2020).)

B. Hours Requested

i. Fees on Appeal

Defendants oppose on grounds that fees sought for practice on appeal contain impermissible block billing. “Trial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972.) When block billed entries render it “virtually impossible to break down hours on a task-by-task basis” between those tasks that are compensable and those that are not, the trial court should exercise its discretion in assigning a reasonable percentage to the entries or cast them aside. (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 689.) Defendants also oppose that counsel’s bills are excessively redacted, thus causing the entries to lack specificity on what was done for any time entry.

The court has reviewed the time entries and on its own review of the entries agrees that the combination of redaction of entries and the inclusion of multiple entries in each time entry provided to the court makes the court’s review of time entries excessively difficult.

For example, an entry of August 19, 2019 charges 1.77 hours for of time for Counsel Tillett for: “O/c with CL re *; o/c with NP and CL re: *; review CL edits to RB.”[1] An entry from May 15, 2020, bills 2.44 hours for Counsel Pine for: “TC with ST re *; draft detailed response to DR’s questions; further t/c with ST re: *; continue drafting detailed response to DR’s questions re *; further t/c with ST re: *; email DR and JP re *.” (See Pine Decl. ¶ 15, Exh. B, at pp. 11, 15.) Entries such as these do not provide information sufficient for the court to discern which tasks are compensable; they indicate only that counsel have engaged in conferences and drafted certain responses, without any indication of the subject matter of the work and whether it is compensable, causing a failure to carry the burden to establish “entitlement to an award and documenting the appropriate hours expended and hourly rates.” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.)

However, the court does not agree with the proposal to apply a reduction of 75% to the hours billed by Plaintiff’s counsel. (See Schratz Decl. ¶¶ 79-81.) The recommendation is based in part on grounds of excessive intra-office communications, to which the court does not give any weight. The court on review of the billing entries and evidence presented finds that a reduction of 30% is reasonable in light of the excessive redactions causing vagueness and block billed entries, causing Plaintiffs not to carry the burden to show entitlement to the hours expended.

ii. Motion Fees

Plaintiff’s Motion requested a lodestar of $35,437.00 for work performed on this motion; and on Reply Plaintiff requests an additional $54,994.00 for the Reply brief. The court permitted a supplemental response to the evidence submitted with the Reply brief. The supplemental response objects that the request for $35,437.00 plus $54,994.00 for the work on this motion is excessive.

The court agrees. The court finds the request for 31.4 (motion) plus 41.84 (reply) hours at $950/hour plus 8.01 (motion) plus 21.78 (reply) hours at $700/hour for the filing of the instant motion alone unreasonable. (See Reply, Tillett Decl., Exh. 1.) Furthermore, counsel has again engaged in billing that groups together tasks in single entries, complicating the court’s review. The court finds that the reasonable recovery for the instant motion permits recovery of 30 hours of attorney work for Mr. Pine and 15 hours of attorney work for Mr. Tillett. Fees are thus awarded for the instant motion in the amount of $28,500 + 10,500, or total sum of $39,000.00 (30 hours x $950/hour, plus 15 hours x $700 per hour).

C. Lodestar Multiplier

The court declines to award a lodestar multiplier.

Plaintiff requests the court award a multiplier of 2.0.

The lodestar “may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) “The purpose of such adjustment is to fix a fee at the fair market value for the particular action.” (Id.) “In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Id.)

The court has weighed the factors and finds that some lean in favor of an award of a multiplier, while others lean against. There is no showing of the novelty or difficulty of the questions involved in this matter, litigated under the Fair Employment and Housing Act and Unruh Civil Rights Act. Next, contingent risk alone is not sufficient in light of the nature of the FEHA claims in this case. (See Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1175, as modified on denial of reh'g (June 2, 1998).) Next, though the court does not give heavy weight to the point, Defendants have shown that for 12 of the 19 months of the litigation, the hours billed were less than 20 per month, supporting that for at least a portion of the litigation, other work was not precluded. (See Schratz Decl. ¶¶ 83-84.) Plaintiff has not provided evidence that during the instant litigation other work was in fact precluded. (Cf. Pine Decl. ¶¶ 37-38.)

4. Conclusion

The court awards attorney’s fees of $221,373.60 on appeal, plus $39,000.00 for the instant motion. The court declines to award a fee multiplier.

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

Case Number: ****9504    Hearing Date: March 18, 2021    Dept: 36

Superior Court of California

County of Los Angeles

Department 36

The motion is denied.

As to the Memorandum of Costs on Appeal, the court awards $1,608.25 in costs on appeal, reducing Line Item 1 (Filing Fees) by $390.00 pursuant to the parties’ stipulation.

Evidentiary Objections

Plaintiff’s objections to the declaration of Steven L. Sugars submitted with the Opposition are each OVERRULED.

Legal Standard

A prevailing party is entitled as a matter of right to recover costs in any action or proceeding, unless otherwise expressly provided by statute. (CCP ; 1032(b).) Recoverable costs are limited to those both “reasonably necessary to the conduct of the litigation” and “reasonable in amount.” (CCP ;; 1033.5(c)(2), (3).)

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment . . . or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, Rule 3.1700(a)(1).)

Timeliness

A party may contest costs sought in a Memorandum of Costs within 15 days after service of the cost memorandum. (Cal. Rules of Court, Rule 3.1700(b).) Defendants delivered the Memorandum of Costs by mail on January 20, 2021. Plaintiff filed this Motion to Tax Costs on February 9, 2021. Adding five days for delivery by mail, the motion is timely. (CCP ; 1005(b).)

Motion to Tax Costs – Attorneys Fees

As an initial matter, the Motion to Tax Costs originally sought the court strike the award of attorney’s fees, which the court granted on February 25, 2021. The parties acknowledge that this portion of the Motion is moot. (Opp. at p. 3; Reply at p. 1.) The remaining issue is Plaintiff’s request to tax trial court costs of $515 in filing and motion fees.

Motion to Tax Costs – Costs on Appeal

The parties have stipulated to tax $390 in costs incurred on appeal. (See Stipulation, at p. 2.) Defendants acknowledge these costs are to be taxed in the Opposition. (Opp. at p. 2.) The costs on appeal are otherwise not subject of this motion. The court will thus award $1,608.25 in costs on appeal, reducing Line Item 1 (Filing Fees) by $390.

Motion to Tax Costs – Trial Court Costs

Plaintiff moves to tax costs of $515 in trial court costs, comprising (1) $20 for filing a stipulation; (2) $435 for filing an Answer; and (3) $60 for filing a special motion to strike the complaint.

Plaintiff’s grounds are that each fee is not recoverable by Phoebe Park, because each fee was jointly incurred and not reasonably necessary to the litigation. Plaintiff relies on Quiles v. Parent, in which the Court of Appeal found a trial court did not err by awarding fees or costs incurred in relation to successful litigation. (See (2018) 28 Cal.App.5th 1000, 1014.) The court recited:

California law provides: “[A]ll costs awarded to a prevailing party must be incurred by that party, must be ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation,’ and must be reasonable in amount. [Citation.] These limitations apply whether the costs are awarded as a matter of right or in the court's discretion. ... [¶] ‘ “When a prevailing party has incurred costs jointly with one or more other parties who are not prevailing parties for purposes of an award of costs, the judge must apportion the costs between the parties [based on the reason the costs were incurred and whether they were reasonably necessary to the conduct of the litigation by the jointly represented party who prevailed].” ’ ” [Citation.]

(Id. at 1014.)

Neither Fennessy nor Charton hold that the trial court must wait to allocate costs between jointly represented parties until litigation has ended as to all of them. Instead, the trial court may determine the cost award for a prevailing party by examining the reason each cost was incurred, whether the cost was reasonably necessary to incur in the litigation, and the reasonableness of the amount of the cost incurred.

(Id. at 1017.)

The court thus proceeds to address the reasons for the three disputed costs, whether each was necessary to incur in the litigation, and the reasonableness of the amount. For all contested costs, the reasonableness of the amount itself is not in question.

The $20 fee was reasonably and necessarily incurred on behalf of Phoebe Park. Defendants have brought evidence in support that the Stipulation was necessary to establish the date that Phoebe Park was served with the Summons in this case, in order to establish timeliness of the Anti-SLAPP motion on which Phoebe Park prevailed on appeal. (Sugars Decl. ¶ 6.)

The $435 Answer fee was reasonably and necessarily incurred on behalf of Phoebe Park. Plaintiff alleges that the fact that the fact that the Answer lists both Hyun Park and Phoebe Park as Defendants means that the first filing fee was incurred instead on Hyun Park’s behalf, but has not brought evidence on this argument. Rather, the Answer discloses that two filing fees were paid. (See Answer, Receipt, at p. 2.) Next, Defendants have offered evidence that the $435 fee was incurred exclusively incurred by Phoebe Park. (Sugars Decl. ¶ 6.)

The $60 filing fee was reasonably and necessarily incurred on behalf of Phoebe Park. This is the motion on which Phoebe Park has prevailed on appeal, as addressed in this court’s prior Order. There is no doubt that, in order to prevail on the motion, it must be filed. (See Sugars Decl. ¶ 6.)

Based on the foregoing, Plaintiff’s Motion to Tax Costs is DENIED as to the $515 in trial court fees.

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

Case Number: ****9504    Hearing Date: February 25, 2021    Dept: 36

Superior Court of California

County of Los Angeles

Department 36

The motion is granted as to the Special Motion to Strike of Moving Defendant Phoebe Park. Moving Defendant is to file a proposed Order within 5 days.

The motion is granted in part as to attorney’s fees of $42,372.50.

The court defers ruling on the motion as to costs and expenses to the hearing on Plaintiff’s Motion to Tax Costs presently set for hearing on March 18, 2021.

Evidentiary Objections

Plaintiff’s objections to the declaration of Steven L. Sugars submitted with the Reply are SUSTAINED. The general rule of motion practice is that new evidence is not permitted with reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.)

Order to Anti-SLAPP Motion

Moving Defendants seek an order granting the Special Motion to Strike filed by Phoebe Park pursuant to Code of Civil Procedure, section 425.16 only as to Phoebe Park, in compliance with the Opinion of the Court of Appeal, against the estate of Carlos Alexander Duenas, by and through its Administrator Ellie Page.

On October 6, 2020, this court first received the Order from the Court of Appeal on the appeal of Phoebe Park to the denial of her anti-SLAPP motion. On December, this court received Remittitur from the Court of Appeal, attaching the prior Order that had become final. The Order states: “Because Duenas failed to demonstrate a probability of prevailing on the merits of his claim against Phoebe, we reverse the trial court order as to Phoebe only with directions that the trial court enter a new order granting Phoebe’s anti-SLAPP motion.” The Remittitur ordered Phoebe Park is entitled to costs on appeal. There is no opposition on this point.

The Court will enter an Order granting the Special Motion to Strike filed by Phoebe Park pursuant to Code of Civil Procedure, section 425.16. Moving Defendant is to file a proposed Order.

Motion for Attorney’s Fees and Costs

1. Timeliness

California Rules of Court, Rule 8.278 provides in relevant part:

(c) Procedure for claiming or opposing costs

(1)  Within 40 days after issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700.

(2)  A party may serve and file a motion in the superior court to strike or tax costs claimed under (1) in the manner required by rule 3.1700.

(3)  An award of costs is enforceable as a money judgment.

California Rules of Court, Rule 3.1702 provides in relevant part:

(c) Attorney's fees on appeal

(1)  Time for motion

A notice of motion to claim attorney's fees on appeal-other than the attorney's fees on appeal claimed under (b)-under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1) in an unlimited civil case or under rule 8.891(c)(1) in a limited civil case.

Moving Defendant Phoebe Park asserts the instant motion is timely as it seeks attorney’s fees on appeal and was timely filed on January 20, 2021, within 40 days of the filing of the Remittitur in this case on December 11, 2020. Plaintiff has not opposed on grounds of untimeliness or inapplicability of this Rule. The court thus finds the instant motion timely.

2. Costs and Expenses

Moving Defendant seeks costs and expenses of $515 in trial court costs and $1,608.25 in appellate costs. Moving Defendant filed a Memorandum of Costs on January 20, 2021, and Plaintiff separately filed a Motion to Tax Costs on February 9, 2021, which is set for hearing on March 18, 2021, and is not yet fully briefed. In light of the foregoing, the court defers ruling on the claimed trial court and appellate costs to the hearing on the Motion to Tax Costs.

3. Entitlement to Attorney’s Fees

Apart from certain circumstances not here raised, “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” (CCP ; 425.16(c)(1).) A prevailing defendant is entitled to recover attorney fees reasonably incurred in connection with the appeal of an anti-SLAPP suit. (See Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) Plaintiff opposes that Moving Defendant Phoebe Park was not a “prevailing defendant” for purposes of the anti-SLAPP statute, because she did not win at the trial level, despite that the Court of Appeal has reversed and ordered this court to enter a new Order granting her anti-SLAPP motion. Plaintiff offers no authority for this argument. In light that the court now enters an Order granting Phoebe Park’s anti-SLAPP motion, the court finds Phoebe Park the prevailing party for purposes of the statute. (CCP ; 425.16(c)(1).)

Plaintiff next opposes that the Court of Appeal’s Remittitur Order did not award attorney fees and only awarded costs on appeal. Again, Plaintiff provides no authority for argument that the foregoing precludes the Moving Defendant from recovering attorney’s fees for the motion and appeal thereof. “Unless the court orders otherwise, an award of costs [on appeal] neither includes attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702.” (Cal. Rules of Court, Rules 8.278(d)(2), 8.892(d).) The court does not decline to award attorney’s fees on this ground.

4. Reasonableness of Attorney’s Fees

The moving party bears the burden of proof on any claim not based upon the court’s established attorney fee schedule. (CCP ; 1033.5(c)(5).)

Moving Defendant seeks attorney’s fees under the lodestar method, with no adjustment, for the hourly compensation of Moving Defendant’s Counsel Steven L. Sugars in litigation of the anti-SLAPP motion and appeal thereof.

Generally, “a court assessing attorney fees begins with a touchstone or lodestar figure, based on the “careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-32 (Ketchum).) A reasonable hourly rate must reflect the skill and experience of the attorney. (See Serrano v. Priest, 20 Cal.3d 25, 48 (1977).) The court reviews documentation of hours expended; “padding” in the form of inefficient or duplicative efforts is not subject to compensation.” (See Ketchum, supra, at p. 1132.) “To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether.” (See Ketchum, supra, at p. 1138.)

Moving Defendant seeks 99.7 hours of attorney work billed at $425 per hour.

A. Hourly Rate

Plaintiff does not dispute the $425 hourly rate billed by Counsel.

Moving Defendant attaches to the motion evidence in support of the prevailing rate for attorneys of similar experience, practicing civil litigation since 1991. (See Sugars Decl. ¶¶ 14-15, Exh. 14.) The foregoing exhibit supports that the $425 hourly rate is reasonable for an attorney of similar experience in California.

B. Hours Requested

Moving Defendant seeks fees for 99.7 hours of attorney work.

Plaintiff first opposes that the motion improperly seeks fees for Counsel’s handling of the entire action, rather than only for the anti-SLAPP motion. “[A] prevailing defendant on a special motion to strike brought pursuant to Code of Civil Procedure section 425.16 is entitled to recover attorney fees and costs only for the motion to strike, not for the entire action.” (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1381 (footnote omitted).) Plaintiff argues that Moving Defendant is entitled to attorney’s fees only between July 6, 2018, and September 19, 2018, again without authority. The court notes that July 6, 2018 is the date of filing of the anti-SLAPP motion by Hyun Park and Phoebe Park, and that September 19, 2018, is the date that this court issued its ruling on the motion, prior to the appeal. However, as noted above, Moving Defendant is entitled to seek attorney’s fees for appeal of the motion. The court does not reduce the hours requested on this ground.

Plaintiff next opposes that the motion improperly seeks fees incurred on Defendant Hyun Park’s behalf, as all the work done in connection with the anti-SLAPP motion was also conducted on Hyun Park’s behalf, and Hyun Park did not prevail on the motion. Plaintiff again does not offer legal authority in support. The relevant anti-SLAPP motion was filed both by Hyun Park and Phoebe Park with respect to Plaintiff’s Complaint, and this court denied the special motion to strike on September 19, 2018. Only Defendant Phoebe Park appealed the ruling. (Notice of Appeal, at p. 1.) Moving Defendant replies that the argument is irrelevant as there was no separate motion made on Hyun Park’s behalf and no fees must be apportioned to Hyun Park. The court agrees without a showing that any fees were incurred exclusively on Hyun Park’s behalf or legal authority that the foregoing requires reduction of fees incurred equally on Defendant Phoebe Park’s behalf. The court does not reduce the hours requested on this ground.

Plaintiff asserts that Moving Defendant’s counsel has improperly engaged in block billing and has overcharged for tasks that reasonably should have taken significantly less time. “Trial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972.) Plaintiff has also asserted that Counsel improperly requests fees for service of motions, and purely secretarial and administrative tasks. Moving Defendant replies that there is no block billing and that the award should not be reduced as all fees were reasonably incurred. Again, Plaintiff offers no legal authority in support that the Moving Defendant may not recover such fees as unreasonably incurred or impermissible. Plaintiff provides citation to the ABA Formal Opinion 93-379, which provides that under the Model Rules of Professional Conduct, a lawyer “may not charge a client for overhead expenses generally associated with properly maintaining, staffing and equipping an office; however, the lawyer may recoup expenses reasonably incurred in connection with the client's matter for services performed in-house, such as photocopying, long distance telephone calls, computer research, special deliveries, secretarial overtime, and other similar services, so long as the charge reasonably reflects the lawyer's actual cost for the services rendered.” (ABA Comm. on Ethics and Professional Responsibility, Formal Op. 93-379.) The foregoing does not require the Moving Defendant to reduce hours billed on these grounds. The court further finds that the purported “administrative tasks” and the time spent on them are reasonable. The court does not reduce the hours requested on these grounds.

Moving Defendant first seeks on Reply an additional 2.5 hours of attorney work for the instant motion. The request was not included in the Notice of Motion, nor elsewhere in the Reply apart from the last page. The court declines to award the additional hours for lack of notice to the opposing party.

5. Compliance with Probate Code

Moving Defendant last asserts having complied with the duty to present a claim under the Probate Code ; 9000(a) that includes any liability of the decedent based on a contract, tort, or otherwise. Under the Probate Code, “a ‘Claim’ means a demand for payment for any of the following, whether due, not due, accrued or not accrued, or contingent, and whether liquidated or unliquidated: . . . Liability of the decedent, whether arising in contract, tort, or otherwise.” (Prob. Code ; 9000(a).) Moving Defendant asserts having complied with having made a timely probate claim. (Sugars Decl. ¶ 9, Exh. 2.) The Court of Appeal granted Defendant’s motion to substitute Ellie Page, Administrator of the Estate of Carlos Alexander Duenas into this case. (Id. ¶ 5, Exh. 1.) Moving Defendant elects to deem the Claim rejected and moves for attorney’s fees and costs. (Sugars Decl. ¶ 9.)

There is no opposition to this point. As Moving Defendant elects to deem the Claim rejected and moves here in lieu of the Claim for attorney’s fees and costs, the court does not find grounds to rule on this point.

Dated: ____________________________

Gregory Alarcon

Superior Court Judge