Verdugo v. Southwestern Yacht Club
Filed 7/19/12 Verdugo v. Southwestern Yacht Club CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
R. DAVID VERDUGO et al.,
Plaintiffs and Appellants et al.,
v.
SOUTHWESTERN YACHT CLUB et al.,
Defendants and Respondents.
D060602
(Super. Ct.
No.
37-2010-00100031-CU-DF-CTL)
APPEALS
from orders of the Superior Court
of
County, Judith F. Hayes, Judge. Affirmed in part and reversed in part.
Plaintiffs
R. David and Carolyn Verdugo (together the Verdugos) filed an action against
numerous defendants, including defendants Gregg Ward and Orlando-Ward &
Associates (together Ward), alleging claims for defamation, intentional
infliction of emotional distress, tortious interference with contract, and
Procedure
section 425.16―commonly referred to as the anti-SLAPP (strategic lawsuit
against public participation) statute―(Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,
57), all claims asserted against Ward.
The trial court granted Ward's motion to strike and found it was
entitled to attorney fees pursuant to section 425.16,
subdivision (c), and, in posttrial proceedings, awarded them $32,000 in
attorney fees. The Verdugos appeal the
attorney fees order in favor of Ward, asserting the amount awarded was an abuse
of discretion because the evidence did not adequately document the amount of
fees incurred by Ward.
The
remaining defendants also moved to strike the claims under the anti-SLAPP
statute. The court granted their motion
to strike and found they were also entitled to attorney fees, and in posttrial
proceedings awarded them $58,000 in attorney fees. The Verdugos' appeal also challenges the
attorney fees awarded to the remaining defendants. In the related appeal (Verdugo v. Southwestern Yacht Club, et al. (Jul. 19, 2012, D059542 [nonpub. opn.] (
court erred when it granted the anti-SLAPP motion in favor of these remaining
defendants, and therefore reversed the order granting
the remaining defendants' special motion to strike under section 425.16. Because the predicate to the award of
attorney fees in favor of the remaining defendants is reversed, we also reverse
the trial court's order insofar as it awarded attorney fees in favor of those
defendants.
I
FACTUAL
AND PROCEDURAL BACKGROUND
name="_ftnref2" title="">[2]
Ward brought a special motion to strike under section
425.16 and sought attorney fees. After
the court entered its order granting the motion to
strike and found Ward was entitled to attorney fees under section 425.16, subdivision
(c), Ward submitted a motion seeking attorney fees in the amount of
$39,917.80. In support of the motion, it
filed declarations from counsel specifying the billing rates for each counsel
involved in the action, the total amount of time spent by each counsel, and
summarizing the types of tasks undertaken during those hours.
The
Verdugos opposed the requested fees, asserting the absence of invoices
itemizing which work was related to the anti-SLAPP motion rather than to other
services on the case was fatal to any
award of fees. The Verdugos also argued
the amount sought was excessive. The
trial court's order awarded $32,000, and the Verdugos appeal that order.
DISCUSSION
A. Applicable Law
Governing Trial Court Award of Attorney Fees
The anti-SLAPP statute provides for
an award of attorney fees and costs to the prevailing defendant on a special
motion to strike. (§ 425.16, subd.
(c).) The defendant may recover fees and
costs only for the motion to strike, not the entire litigation. (S. B.
Beach Properties v. Berti (2006) 39 Cal.4th 374, 381; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39
Cal.App.4th 1379, 1383.) The defendant may claim fees and costs either as part
of the anti-SLAPP motion itself or more commonly, as here, through the filing
of a subsequent motion or cost memorandum.
(American Humane Assn. v.
Cal.App.4th 1095, 1097.)
Because the Legislature specified
the prevailing defendant "shall be entitled to recover his or her
attorney's fees and costs" (§
425.16, subd. (c)(1)), an award is usually mandatory (see
24 Cal.4th 1122,
1131 (Ketchum)), although the amount
of the award is vested in the sound discretion of the trial court. (Id.
at pp. 1131-1132.) As the moving party, the
prevailing defendant seeking fees and costs " 'bear[s] the burden of
establishing entitlement to an award and documenting the appropriate hours
expended and hourly rates.' "
(ComputerXpress, Inc. v.
993, 1020.) The evidence should allow
the court to consider whether the case was overstaffed, how much time the
attorneys spent on particular claims, and whether the hours were reasonably
expended. (Ibid.) "The law is
clear . . . that an award of attorney fees may be based on counsel's
declarations, without production of detailed time records." (Raining
Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375; see also
Cal.App.4th 606, 620.)
A trial 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.' " (
by multiplying the number of hours reasonably expended by the reasonable hourly
rate prevailing in the community for similar work, although the court has
discretion to increase or decrease
that lodestar amount depending on a variety of factors. (Id.
at p. 1134.)
because they are in the best position to assess the value of the professional
services rendered in their courts. (
Cal.4th 1084, 1095-1096.)
Principles
Governing Appellate Review of Attorney
Fees Award
award under the deferential abuse of discretion standard.
(Ketchum, supra, 24
Cal.4th at p. 1130.) The trial court's fee
determination " ' "will not be disturbed unless the
appellate court is convinced that it is clearly
wrong." ' " (
generally applicable appellate principles: "The judgment of the trial
court is presumed correct; all intendments and presumptions are indulged to
support the judgment; conflicts in the declarations must be resolved in favor
of the prevailing party, and the trial court's resolution of any factual
disputes arising from the evidence is conclusive." (In re
Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 561-562.)
assessment of an attorney's declaration (Johnson
v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623) and
it is for the trial court "to assess credibility and resolve any conflicts
in the evidence. Its findings
. . . are entitled to great weight.
Even though contrary findings could have been made, an appellate
court should defer to the factual determinations made by the trial court when
the evidence is in conflict. This is true whether the trial court's ruling is
based on oral testimony or declarations."
(Shamblin v. Brattain (1988)
44 Cal.3d 474, 479, fn. omitted.)
B. The
Verdugos Have Failed to Demonstrate
the Trial Court's Award Was an Abuse of Discretion
The
Verdugos argue the amount of the fee award was an abuse of discretion because
Ward supported their fee request with a declaration from their counsel specifying the total amount of time spent by each counsel,
and summarizing the types of tasks undertaken during those hours. The Verdugos contend, under
(2008) 165 Cal.App.4th 1315 (Christian
Research) and Platypus Wear, Inc. v.
Goldberg (2008) 166 Cal.App.4th 772 (Platypus
Wear), that the trial court could make no award
until Ward submitted itemized billing records and statements segregating the
time spent on the anti-SLAPP motion from time spent on other matters.
However,
an analogous argument was rejected in Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363. In rejecting the challenge by Barrenechea to
the attorney fees awarded to Raining Data following Raining Data's successful anti-SLAPP
motion, the court explained:
". . . Barrenechea contends Raining Data
failed to meet its initial burden to establish the reasonableness of the fees
incurred because it did not submit its attorneys' billing statements. Barrenechea claims the declarations from
Raining Data's attorneys 'do not provide any basis for determining how much
time was spent by any one attorney on any particular claims. Rather, the declarations give broad
descriptions to the work provided by each attorney. The declarations are devoid of any
information to allow the trial court to determine whether the case was
overstaffed, how much time the attorneys spent on particular claims, and
whether the hours were reasonably expended.'
The law is clear, however, that an award of attorney fees may be based
on counsel's declarations, without
production of detailed time records. [Citations.] Raining
Data's attorneys provided declarations detailing their experience and expertise
supporting their billing rates, and explained the work provided
at p. 1375, italics added.)
Similarly, in G. R. v. Intelligator, supra,185 Cal.App.4th 606, the party whose
claim was stricken challenged the attorney fees award contending, in part, that
"the attorney declaration filed in
support of the request for fees and costs was insufficiently detailed for the
court to determine whether the time spent and work performed were reasonable
and whether part of the time might actually have been spent [on matters
unrelated to the anti-SLAPP motion]."
(Id. at p. 620.) The court, rejecting this challenge,
explained "the trial court chose to accept the declaration of
Intelligator's attorney
attorney's hourly rate, the time spent, and the reasonableness of the time
spent. 'We may not reweigh on appeal a
trial court's assessment of an attorney's declaration[,] [citation]' [quoting
Cal.App.4th at p. 1323] and we see no abuse of discretion under the
circumstances of this case in the court's decision not to require Intelligator's
attorney to supply time records in support of her declaration." (Ibid.)
The
Verdugos' reliance on Christian Research,
supra, 165 Cal.App.4th 1315 and Platypus
Wear, supra, 166 Cal.App.4th 772, provides no assistance here. In Christian
Research, the appellate court (although noting a trial court
additional records and may reduce compensation on account of any failure to
maintain appropriate time records) specifically affirmed that the trial court's
discretion in calculating a fee award is broad (Christian Research, at p. 1321) and that an appellate court
"may not reweigh on appeal a trial court's assessment of an attorney's
declaration [in support of the fee award]." (Id.
at p. 1323.) The court's statement of
what a trial court may require is not
the equivalent of a holding that a trial court must seek additional documentation before making a fee award. The trial court here was satisfied with the
detail provided by counsel's declaration and, paraphrasing the
v. Intelligator court, "we see no abuse of discretion under the
circumstances of this case in the court's decision not to require [Ward's]
attorney to supply time records in support of [the attorney's]
declaration." (G. R. v.
Intelligator, supra,185 Cal.App.4th at 620.)
The
Verdugos' reliance on Platypus Wear,
supra, 166 Cal.App.4th 772, provides less support for their arguments. Platypus
Wear merely stated, in dicta, the Legislature intended that a prevailing
defendant on an anti-SLAPP motion be allowed to recover attorney fees and costs
only on the anti-SLAPP motion, not the entire suit, citing
at p. 1383. (Platypus Wear, at p. 785.)
However, Lafayette Morehouse
reversed a trial court order awarding attorney fees for defense of the entire
suit, which consisted of seven causes of action, only one of which was subject
to the section 425.16 motion. (
of the Verdugos' claims against Ward were subject to, and were dismissed
pursuant to, section 425.16, and therefore Lafayette
Morehouse has no relevance here.
We conclude the
Verdugos have not clearly shown the court's award to Ward was an abuse of
discretion, and therefore affirm the order awarding Ward $32,000 in attorney
fees.
DISPOSITION
The order granting $32,000 in attorney fees to Ward is
affirmed. It is entitled to costs on
appeal against the Verdugos. The order
granting attorney fees to the remaining defendants is reversed. The Verdugos are entitled to costs on appeal
against the remaining defendants.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
name="_ftn1" title="">[1] All
statutory references are to the Code of Civil Procedure unless otherwise
specified.
name="_ftn2" title="">[2] The
genesis of the dispute, and the history of the underlying anti-SLAPP motion
brought by Ward, is fully explicated in Verdugo
I.
