Case Number: SC127744 Hearing Date: July 09, 2020 Dept: O
Case Name: Rose v. Kolcheva, et al.
Case No.: SC127744
Calendar #: 9
Complaint Filed: 6/23/17
Motion C/O: 4-14-21
Discovery C/O: 3-29-21
Trial Date: 4-29-21
SUBJECT: MOTION TO SET ATTORNEY’S FEES PURSUANT TO CCP §425.16(c)(1)
MOVING PARTY: Plaintiff/X-Defendant Melissa Rose
RESP. PARTY: Defendant/X-Complainant Anastasiya KolchevaTENTATIVE RULING Plaintiff/X-Defendant Rose’s Motion to Set Attorney’s Fees per CCP §425.16(c)(1) is GRANTED. Rose partially prevailed on her SLAPP motion. Rose is entitled to fees reasonably incurred to the extent she prevailed on her SLAPP. Rose requests an attorneys fee award of $114,099.50. The Court finds the reasonable amount of fees incurred in connection with the underlying SLAPP at the trial court level is $20,260, and on appeal is $63,000, and in connection with this motion is $15,750 for a total award of $99,010. Rose is to submit the proposed order awarding Rose attorney’s fees of $99,010.
I. Rose is entitled to attorney’s fees and costs for having partially prevailed on the SLAPP motion.
A defendant who partially succeeds on an anti-SLAPP motion generally is considered a
prevailing party and therefore entitled to fees and costs, unless the results of the motion were so
insignificant that defendant did not achieve any “practical benefit” from bringing the motion.
This determination lies within the “broad discretion” of the trial court. See Mann v. Quality Old
Time Service, Inc. (2006) 139 Cal.App.4th 328, 340. Only those fees and costs incurred in
connection with the successful portion of the anti-SLAPP motion that is granted in part may be
recovered. See Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 82.
“The term ‘prevailing party’ must be interpreted broadly to favor an award of attorney
fees to a partially successful defendant. However, a fee award is not required when the motion,
though partially successful, was of no practical effect. A party who partially prevails on an antiSLAPP 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. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of the trial court.” Area 51 Productions, Inc. v. City of Alameda (2018) 20
Cal.App.5th 581, 605. The question is therefore whether the partially prevailing defendant gained any “practical benefit” by bringing a SLAPP motion. See City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 783-784 (defendant achieved “practical benefit” by striking plaintiff’s causes of action for specific performance and injunction).
Unless the Court finds that Rose did not achieve any practical benefit by prevailing on the SLAPP, it must award Rose fees as prevailing party. See Moran v. Endres (2006), 35 Cal.App.4th 952, 955 (elimination of conspiracy cause of action from the complaint alleging 11 causes of action “accomplished nothing”); Mann, supra, 139 Cal.App.4th at 340. Thus, in determining whether any practical benefit was achieved on SLAPP, the Court should consider “factors such as the extent to which the defendant's litigation posture was advanced by the motion, whether the same factual allegations remain to be litigated, whether discovery and motion practice have been narrowed, and the extent to which future litigation expenses and strategy were impacted by the motion.” Mann, supra, 139 Cal.App.4th at 345.
Rose achieved a practical benefit by eliminating the subject allegations. At the very least, Kolcheva is now precluded holding Rose liable for sending the bank letter and requesting that the account be frozen. Thus, Kolcheva cannot recover damages solely attributable to Rose’s sending of the bank letter. Based on the eliminated allegations themselves, those allegations and the damages flowing therefrom were significant. See Stipulation and Order filed on 1-13-20. The Court cannot ignore Kolcheva’s own characterization of Rose’s bank letter as “her most egregious act in sabotaging the SD Zoo business,” which resulted in the freezing of monies provided by SD Zoo for its media expenditures, notification from SD Zoo that RoKo was in material breach due to the freeze, SD Zoo’s decision to stop paying RoKo and SD Zoo’s decision to expedite its move from using RoKo’s services to in-house marketing. Id. at 1:15, 1:20-22, 3:13-17, 3:18-22. The Court, therefore, finds Rose achieved significant practical benefit by striking the allegations identified in the 1-13-20 Stipulation and Order and is entitled to recovery of fees and costs. The degree or significance of that benefit to the overall litigation is factored into the amount of fees and costs ultimately awarded.
II. The amount of fees and costs requested is reasonable given the significant practical benefit achieved, the legal complexity of SLAPP and the complexity of applying SLAPP to these facts.
Rose is only entitled to the fees and costs incurred in connection with the portion of the SLAPP motion that was successful. See Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 82; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1018 (defendants entitled to recover attorney fees and costs incurred in SLAPPing claims on which they prevailed, but not fees and costs incurred in moving to strike the remaining claims where claims based on different conduct and different theories). A “partially prevailing party is not necessarily entitled to all incurred fees even where the work on the successful and unsuccessful claims was overlapping. Instead, the court must consider the significance of the overall relief obtained by the prevailing party in relation to the hours reasonably expended on the litigation and whether the expenditure of counsel's time was reasonable in relation to the success achieved.” Mann, supra, 139 Cal.App.4th at 344. “[W]here the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained. In conducting this analysis, a court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.” Id. at 343.
Rose is seeking fees in the total amount of $113,237; $95,987 in connection with the SLAPP and its appeal, plus an estimated $17,250 for this motion for fees. This amount is based on the following, as detailed in the declarations of Bruce Berman and Gary Goodstein:
Trial Court Level—$23,767.00
(1) Loveless—11.7 hours @ $385/hr
(2) Berman—17 hours @ $575/hr at trial court level
(3) Goodstein—16.5 @ $575/hr at trial court level
(1) Berman—11.5 @ $575/hr at appellate level
(2) Goodstein—114.1 hours @ $575 at appellate level
Motion for attorney’s fees - $17250
(1) Bergman – 30 @ 575/hr
The Court finds the amount of time spent for the SLAPP motion and appeal is reasonable. The Court, however, finds the hourly rates requested are artificially inflated. Instead, the Court finds the hourly rates typically charged for Mr. Bergman and Mr. Goldman of $500 per hour, and the typical average rate for Ms. Loveless of $300 are reasonable. In addition, the Court finds the amount of time spent on is reasonable in relation to Rose’s victory on the SLAPP motion. In arriving at this determination, the Court considered several facts. Rose attempted to SLAPP the entire x-complaint. She failed to eliminate any causes of action. However, while the SLAPP motion only eliminated one act in a litany of acts Kolcheva alleged against Rose as examples of Rose’s breaches of fiduciary duty, that one act was a major source of damage according to Kolcheva’s x-complaint. The Court of Appeals held that no liability could be imposed against Rose for sending the letter. See Rose v. Kolcheva (Cal. Ct. App., Sept. 5, 2019, No. B288189) 2019 WL 4233136, at *4. The bank letter was allegedly Rose’s final act in a series of acts that spanned approximately 2 years and that were undertaken to either gain control of or sabotage RoKo. See Kolcheva X-Complaint, ¶¶14-33. These acts each resulted in extensive damage to Kolcheva and RoKo, and it is unclear what proportion of Kolcheva’s damages are attributable to Rose’s single act in sending the letter.
However, Kolcheva herself alleged that this was the most egregious act that resulted in RoKo breaching the contract with SD Zoo and the final shut-down of RoKo. Id. at ¶¶30 and 33. Based on the allegations, although RoKo was already deep in the throes of dissolution when the letter was sent and SD Zoo had already decided to go in-house, the letter conceivable caused significant damage. The Court also notes Kolcheva alleged that freezing the bank accounts resulted in SD Zoo expediting its move from RoKo to use of inhouse advertising services. Prior to that time, in 2016, SD Zoo had already chosen to move its advertising work in house, due to the “instability demonstrated by Rose’s self-dealing actions on 1-11-16.” Id. at ¶31, 11:1-4. However, Kolcheva alleges that SD Zoo was reconsidering that decision prior to the freezing of RoKo’s bank accounts and afterwards any chase that that SD Zoo would reconsider was destroyed. Id. at ¶26. Finally, upon review of the original SLAPP motion, the entire focus of the underlying SLAPP was Rose’s sending of the bank letter. There is no basis therefore to apportion the fees incurred. The entirety of the appeal, as reflected by the Court of Appeals opinion, was the allegation that Rose sent the bank letter. As such, the Court finds all of the documented attorney time is properly attributed to successfully striking the allegations regarding Rose’s sending of the bank letter.
Moreover, the SLAPP motion involved application of SLAPP law. The field of SLAPP law is extremely complicated, as reflected by the number of recent Supreme Court cases refining the boundaries of SLAPP. In 2019 alone, five new Supreme Court cases were issued addressing application of SLAPP. See Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871; Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781; FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133; Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931; Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610 433.
For these reasons, the Court finds Rose’s the amount of $83,260 for attorney’s fees incurred in the underlying SLAPP and Appeal is reasonable. Rose achieved a significant and substantial victory by eliminating Kolcheva’s allegations regarding her letter to the bank and the resultant bank account freeze.
Rose, however, does not provide any detail to
support the requested $18,112.50 requested for the preparation and
hearing of this motion for fees. The
only evidence is Mr. Bergman’s declaration and supplemental declaration stating
he spent 13.5 hours on the motion and 18 hours on the reply. Regardless, based on all that has been
presented, the Court has enough information and experience to make an informed
determination if the time spent by Mr. Bergman is reasonable. Certainly 13.5 hours is reasonable for preparing the motion. And, given the breadth of the opposition,
the Court agrees 18 hours for the reply is reasonable. Again, the Court finds the
hourly rate of $500 to be reasonable. The lodestar amount of $ $15,750 for the
fees related to this motion is reasonable.