Filed 9/27/18 Dean v. Friends of Pine Meadow CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I. INTRODUCTION

This is the second round of appeals in litigation over a plan to construct a housing development on the Pine Meadow Golf Course in Martinez. In Dean v. Friends of Pine Meadow (2018) 21 Cal.App.5th 91 (Dean I), Christine Dean, DeNova Homes, Inc., and Civic Martinez, LLC (collectively, plaintiffs) appealed an order granting a special motion to strike their defamation complaint against Friends of Pine Meadow and several individuals (collectively, defendants), pursuant to section 425.16 of the Code of Civil Procedure (section 425.16 or the anti-SLAPP law).[1] This court affirmed that order, rejecting plaintiffs’ contention that the anti-SLAPP law did not apply because their claims against defendants arose out of commercial speech.

Before we filed our decision in Dean I, defendants filed the present appeal from an order granting them attorney fees and costs pursuant to section 425.16, subdivision (c)(1) (section 425.16(c)(1)), the fee shifting provision of the anti-SLAPP law. Defendants contend the trial court erred by failing to fully compensate them for reasonable fees related to their successful anti-SLAPP motion. In a cross-appeal, plaintiffs argue the defendants’ fee motion was untimely and so outrageous it should have been denied. We affirm the trial court’s order.

II. LEGAL PRINCIPLES AND STANDARD OF REVIEW

Section 425.16(c)(1) provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” “The language of the anti-SLAPP statute is mandatory; it requires a fee award to a defendant who brings a successful motion to strike. Accordingly, our Supreme Court has held that under this provision, ‘any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.’ ” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 490, italics omitted (Cabral), quoting Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum).)

“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. [Citation.] Under that method, the court ‘tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work. [Citations.]’ [Citation.]” (Cabral, supra, 177 Cal.App.4th at p. 491, fn. omitted.) “ ‘The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary.’ ” (Ketchum, supra, 24 Cal. 4th at p. 1134.)

“In reviewing the trial court’s application of this method to the circumstances of a specific case, we apply the abuse of discretion standard. [Citation.] ‘ “The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong’ [”]—meaning that it abused its discretion. [Citations.]’ [Citation.] This rule applies in the context of fee awards under the anti-SLAPP statutes just as it does in the context of similar statutory fee-shifting provisions. [Citations.]” (Cabral, supra, 177 Cal.App.4th at p. 491.)

III. STATEMENT OF FACTS

A. Background[2]

Plaintiffs’ April 2016 complaint alleged the following facts: In August 2011, owners of the Pine Meadow Golf Course (the golf course), including plaintiff Christine Dean, executed a contract to sell the golf course to plaintiff DeNova Homes, Inc. (Dean I, supra, 21 Cal.App.5th at p. 99.) The sales contract required the owners and buyer to work together to file an application with the City of Martinez (the City), to construct a development on the property. Ultimately, the City approved an application that “ ‘allowed for the development and construction of a 99-unit single-family home subdivision, with additional community benefits, including parklands, walking trails, and other neighborhood improvements.’ ” (Ibid.) Defendants consistently opposed any development on the golf course by, among other things, appearing at public hearings during the application process and then engaging in petitioning activity to garner support for “a referendum to reverse the City’s resolution approving a general plan amendment to allow for the planned development.” (Ibid.) In the course of their campaign, defendants allegedly made false representations about the nature of the development project and defamatory statements about plaintiffs. (Id. at p. 100.)

The complaint purported to state causes of action for declaratory and injunctive relief, intentional and negligent interference with plaintiffs’ business plans, defamation, and conspiracy. (Dean I, supra, 21 Cal.App.5th at p. 100.) Plaintiffs sought damages, including punitive damages, a judicial declaration that defendants had interfered with their business and financial interests by calling themselves “Friends” of Pine Meadow, and injunctive relief “preventing defendants from using the name Friends of Pine Meadow, requiring them to delete their Facebook group and websites, requiring them to destroy their electronic mailings and mailing lists, and ordering them to ‘cease and desist with the dissemination of any unverified statements or writings.’ ” (Ibid.)

In May 2016, defendants filed a special motion to strike the complaint, arguing that (1) plaintiffs’ claims arose from speech and petitioning activities protected by section 425.16; (2) plaintiffs could not establish a probability of prevailing on the merits because their claims were barred by the First Amendment, the California Constitution, and the litigation privilege codified in Civil Code section 47; and (3) the challenged statements were not provably false or made with actual malice. (Dean I, supra, 21 Cal.App.4th at p. 101.) Plaintiffs opposed the motion to strike, arguing the anti-SLAPP law did not apply because defendants’ speech did not concern a “ ‘public issue,’ ” but was “commercial speech designed to give defendants a commercial advantage by devaluing the golf course property so that somebody else would purchase it.” (Ibid.) Plaintiffs also attempted to invoke the “ ‘sham exception’ ” to protections otherwise afforded to speech by the First Amendment and litigation privilege. (Ibid.)

On August 29, 2016, the trial court granted defendants’ special motion to strike, finding that all of plaintiffs’ claims arose from protected activity, rejecting plaintiffs’ narrow conception of what constitutes a public issue, and concluding that the commercial speech exemption to the anti-SLAPP law did not apply. (Dean I, supra, 21 Cal.App.5th at p. 101.) On the merits, the court found that plaintiffs “failed to establish sufficient facts to support a favorable judgment if their evidence was credited.” (Ibid.) Judgment was entered against plaintiffs on September 28, 2016. (Ibid.)

B. The Attorney Fee Dispute

1. Defendants’ Motion and Evidence

On November 28, 2016, defendants filed a motion pursuant to section 425.16(c)(1), to recover attorney fees and costs totaling $244,418.57. Using a lodestar figure of $166,701.69, defendants applied a multiplier of 1.5 to fees and costs they attributed to the anti-SLAPP motion, and 1.25 to fees and costs they attributed to their attorney fee motion.

Defendants’ lodestar calculation of $166,701.69 included $164,710 for attorney work and $1,991.69 for non-statutory costs. The $164,710 in attorney fees included 174.4 hours of work by Fredric Woocher, at an hourly rate of $775 ($135,160), and 39.4 hours of work by Stuart Flashman, at an hourly rate of $750 ($29,550). Both attorneys filed declarations regarding their role in this case and the reasonableness of their fee requests.

Flashman stated that he is a public interest sole practitioner who performed legal services for Friends of Pine Meadow in connection with the referendum petition, charging the organization $300 per hour for his services. After plaintiffs filed the present lawsuit, Flashman agreed to represent defendants, but he was not comfortable representing them by himself because he immediately recognized the SLAPP issue and knew it would require expertise he did not possess. Flashman stated that he “made extensive inquiries both locally and regionally,” but was unable to locate any attorney in the San Francisco Bay Area with the “necessary skill and expertise in this specialized motion and availability to help with this case within the short time allotted for it.” However, Flashman did obtain a referral to Woocher (a Los Angeles based attorney), who “had a wealth of experience and an excellent reputation for handling anti-SLAPP motions.”

Flashman stated that he and Woocher agreed to work together on a contingent basis due to defendants’ limited financial resources. However, he also opined that “[a]n attorney providing services of a similar quality to mine to commercial clients would reasonably charge somewhere in the range of $800 to $1,200 per hour.” Flashman also stated that his “standard rate for a non-public interest client is $750 per hour,” and that in public interest matters he “routinely” charged his private clients with adequate financial resources $400 to $600 per hour.

Woocher stated that he became cocounsel for defendants after learning that Flashman was unable to find local counsel in the Bay Area with experience and expertise in anti-SLAPP litigation. Woocher agreed to represent defendants on a contingency basis, “hoping to be compensated” by prevailing on an anti-SLAPP motion and obtaining a fee award under the mandatory fee-shifting provision. Woocher stated that the hourly billing rate of $775 he requested in this case was “actually less” than the $825 per hour billing rate he currently charges commercial fee-paying clients, but he was requesting this lower amount because a $775 per hour billing rate had recently been approved as reasonable for his firm’s work by the Los Angeles County Superior Court.

Defendants submitted declarations from two other attorneys who practice law in Southern California. Glenn Rothner stated that he believes Woocher’s hourly rate of “$775 for his time as a senior partner with almost 40 years’ experience—is well within the range, and is even at the lower end of the range, of the prevailing market rates charged by Southern California lawyers with comparable education, skill, and experience.” Douglas Carstens stated that he is “familiar with the prevailing market rates for skilled and competent attorneys in the Northern California legal community,” and in his opinion the hourly rates requested by Flashman and Woocher “are quite reasonable and well within the market range for comparably qualified and experienced attorneys handling comparable litigation in the San Francisco Bay Area.”

Defendants also submitted a declaration from Richard Drury, an attorney and partner at a law firm in Alameda with extensive experience representing “public interest groups.” Based on his “experience in public interest litigation,” Drury offered the opinion “that the hourly rates requested by Defendants’ counsel are well within the range of prevailing market rates for attorneys with comparable expertise and skill in the San Francisco Bay Area.”

Several individual defendants also submitted declarations in support of the fee motion.[3] Defendants Mark Thomson and Tim Platt are both members of Friends of Pine Meadow. Thomson stated that after reading plaintiffs’ complaint, and realizing he needed a lawyer, he “learned from talking to others” that defending a SLAPP case requires “highly specialized legal skills” that were “unlikely to be found in any local attorney.” Platt stated that after he learned about the lawsuit, his “first thought” was to seek representation from Flashman, who had assisted Friends of Pine Meadow in preparing the referendum petition. Platt discussed this idea with Thomson, and then obtained Flashman’s agreement that he would represent them. Flashman arranged for Woocher to work with him as a specialist in defending SLAPP cases. On the advice of these attorneys, Platt contacted other defendants about participating in the joint representation, and some agreed.

Defendant Julian Frazer stated that he is not a member of Friends of Pine Meadow, but he spoke about the golf course project at some public meetings and was very distressed to be named in plaintiffs’ complaint. Frazer stated that when he “called a local attorney seeking representation, [he] learned that this was a rather uncommon kind of lawsuit that would require specialized legal knowledge.” Frazer also stated that he “realized” it would be “practically impossible” to find a “local attorney who would not in some way be connected to the Dean family” because “Martinez is a small community and the Dean family is prominent in that community.” Frazer recalled that, soon after his phone conversation with a local attorney, Platt contacted him and he agreed to join Platt’s group because he felt it “would be the most efficient and economical way to handle” the matter.

2. Plaintiffs’ Opposition and Evidence

Plaintiffs DeNova Homes, Inc. and Civic Martinez (the developer plaintiffs) argued that defendants’ fee motion was untimely and unreasonable. According to these plaintiffs, the 60-day time limit for filing a statutory fee motion, which is set by rules 3.1702 and 8.104 of the California Rules of Court,[4] began to run when the trial court filed its order granting the special motion to strike or, at the very latest, when notice of entry of that order was served on the parties, and defendants did not file their fee motion until after that time expired.

On the merits, the developer plaintiffs argued that $400 was a reasonable hourly rate for Woocher, and $300 was a reasonable hourly rate for Flashman. These plaintiffs also argued the number of hours defendants used to calculate the fee request was inflated by using a block-billing method, included noncompensable time, and was unreasonably high. They also challenged the defendants’ use of multipliers and urged the court to exercise its discretion to deny the motion or reduce the amount of the award.

Plaintiff Dean filed separate opposition, arguing that the defendants’ attorney billing records were vague, unreasonably padded, and noncredible, and that the amount of fees requested was grossly unreasonable. Dean requested that the court award defendants no more than $25,000.

Both sets of plaintiffs submitted attorney declarations. Dean’s counsel, Scott Jenny, stated that he has been practicing law for 23 years, primarily real estate litigation. Jenny offered the opinion that many Bay Area attorneys are qualified to litigate anti-SLAPP motions on either side. Jenny, whose hourly rate is $350, spent 55 hours working on two anti-SLAPP motions that were filed against his client. His bill for researching and writing oppositions to the motions totaled $19,250.

George Speir stated that he was retained by the developer plaintiffs after the anti-SLAPP motion was briefed, and that the attorney he replaced charged the developer plaintiffs $350 an hour. These plaintiffs agreed to pay Speir his standard rate of $550 per hour, which was on the high side of rates charged by business litigation attorneys in Contra Costa and Alameda Counties. Speir further stated that, based on his experience practicing law in the county and serving as a fee arbitrator in attorney fee disputes, $350 per hour is a reasonable billing rate for an experienced litigation attorney practicing in Contra Costa County. Speir offered the opinion that some of the work Woocher did could justify a higher rate of $400, but much of it was routine and did not require expertise, and some of it was clerical and appropriate for a paralegal.

Several attorneys who were asked by plaintiffs’ counsel to evaluate the defendants’ fee request submitted declarations stating that the request was excessive and unreasonable. For example, Clement Glynn who has practiced law in the East Bay for more than 30 years, opined that: (1) the hourly rates used by defendants exceed prevailing rates in Contra Costa County; (2) the number of hours for which defendants sought compensation was excessive; (3) a multiplier was inappropriate; (4) nonstatutory costs should be denied; and (5) the total award to defendants should be no more than $33,745.

Douglas Straus, an experienced business litigation lawyer practicing in the East Bay, stated that he has often handled anti-SLAPP motions notwithstanding the fact he has no expertise in the area. Straus also opined that the hourly rates requested for Woocher and Flashman were substantially higher than prevailing rates in Alameda and Contra Costa Counties.

Todd Williams, who has practiced law in the East Bay for over 12 years and in the San Francisco Bay Area for over 18 years, stated, among other things: “It is unclear why it was necessary for defendants to retain an attorney from Southern California to file an anti-SLAPP motion in this matter. There are many competent attorneys based in the East Bay Area who could have handled this matter at a substantially lower rate. Many experienced business, real estate and land use attorneys would be familiar with such motions and could have competently brought such a motion.”

Thomas Nagle, a Bay Area attorney and mediator, agreed with conclusions voiced by other attorneys who reviewed the defendants’ fee request on behalf of plaintiffs’ counsel. Nagle also offered the opinion that the number of hours that plaintiffs’ attorney Scott Jenny billed to oppose the anti-SLAPP motions was reasonable and that Jenny’s hourly rate of $350 was a reasonable and normal rate for this type of work in the East Bay and throughout California. By contrast, Nagel believed that Woocher’s billing rate of $775 per hour was “very high in this community for this type of work,” and his number of hours billed was unreasonable and excessive. Nagle also stated that Flashman’s hourly rate of $750 was also “very high.” Nagle disagreed with a statement in Flashman’s declaration to the effect that billing rates in the East Bay for this type of work would be in the range of $800 to $1,200 per hour, characterizing that number range as “extraordinarily high and unrealistic.”

C. The Trial Court Order

Following a February 2017 hearing on the defendants’ motion, the trial court permitted the parties to file supplemental briefs.[5]

On March 30, 2017, the court filed an order granting the defendants’ motion for an award of fees and costs under section 425.16(c)(1), and finding that an award of $69,500 was reasonable and would fully compensate the attorneys for services that were reasonably provided (the March 2017 order). The court also awarded defendants nonstatutory costs in the amount of $1,991.69, and the full amount of statutory costs reflected on their unopposed memorandum of costs.

In its March 2017 order, the court summarized the lodestar method for calculating an attorney fees award, and then reached the following factual conclusions about attorney work completed on behalf of defendants in this case: (1) The prevailing rate for a private attorney in Contra Costa County conducting noncontingent litigation of “the same type” is $400 per hour. (2) Given the contingent nature of the work and other relevant factors, Woocher’s reasonable rate for compensable work prior to the fee motion is $500 per hour. (3) For both attorneys, a reasonable rate for work on the fee motion is $400 per hour because when that work was done, an award of fees was no longer contingent. (4) Some of the time charges are duplicative, unnecessary, or unreasonable. (5) Aside from the contingent risk, which would be compensated by authorizing an increased hourly rate for Woocher, there are no factors to support using a multiplier.

Using these findings to employ the lodestar method, the trial court allowed attorney fees as follows: “Mr. Woocher—107 hours at $500/hour ($53,500) plus 15 hours at $400/hour ($6,000) for a total of $59,500; Mr. Flashman—20 hours at $400/hour ($8,000) plus 5 hours at $400/hour ($2,000), for a total of $10,000. Total attorneys’ fees awarded are thus $69,500.”

In its March 2017 order, the trial court rejected defendants’ claim that hiring local counsel was impracticable and the court was, therefore, required to accept Woocher’s requested hourly fee rate. The court also rejected plaintiffs’ request to deny the motion in its entirety because it was untimely and unreasonable. We will consider the court’s reasons for these rulings in our discussion of the issues on appeal.

IV. DISCUSSION

A. Defendants’ Appeal

Defendants’ primary claim of error is that the trial court abused its discretion in rejecting defendants’ claim that hiring local counsel was impracticable and that the court was, therefore, required to use defendants’ requested hourly fee rates to calculate their fee award. Defendants contend they are entitled to compensation based on out-of-town market rates because (1) local counsel with the qualifications to handle their anti-SLAPP motion was not available, and (2) plaintiffs did not dispute evidence regarding prevailing billing rates for comparable work in the Los Angeles legal services market, where Woocher’s law practice is located.

Before addressing the merits of this claim, we clarify two points. First, we limit our analysis of this issue to Woocher, who practices in Los Angeles. Defendants have never argued that Flashman has skills that defendants needed but could not find in Contra Costa County. Nor did they expressly contend that Alameda County, where Flashman practices, is a different legal market than Contra Costa County.^[6]

Second, although defendants acknowledge our abuse of discretion standard of review, they seek de novo review of Woocher’s fee rate by claiming that the trial court applied an incorrect legal standard. We find that the trial court applied the correct legal standard. The March 2017 order shows that the trial court applied the lodestar method, which is the correct “legal matrix” for calculating a fee award under the anti-SLAPP statute. (569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436 (569 E. County Boulevard).)

The issue, therefore, is whether the trial court abused its discretion by refusing to find that it was impracticable for defendants to retain local counsel to handle the SLAPP issue and refusing to use Woocher’s proposed $775 per hour fee rate, which defendants characterize as reasonable for comparable legal services in the Los Angeles market.

“Generally, ‘[t]he lodestar figure is calculated using the reasonable rate for comparable legal services in the local community for noncontingent litigation of the same type, multiplied by the reasonable number of hours spent on the case. [Citations.]’ [Citation.] In the ‘unusual circumstance’ that local counsel is unavailable, a trial court is within its discretion to consider out-of-town counsel’s higher rates. [Citation.] The trial court may then use those rates either in calculating the initial lodestar figure or in evaluating whether to award a multiplier to a lodestar initially based on local hourly rates. [Citation.]” (Environmental Protection Information Center v. Department of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 248, italics omitted (EPIC).)

In the present case, the trial court did not use defendants’ proposed billing rate for Woocher, but it did take Woocher’s expertise and higher fee rates into account by using a $500 per hour billing rate to calculate fees for his work on the anti-SLAPP motion. In its March 2017 order, the court outlined two reasons for this ruling. First, it pointed out that to the extent local counsel is unavailable, a court has discretion to use a higher out-of-town rate, but is not required to do so. (Citing EPIC, supra, 190 Cal.App.4th 217.) Second, the court was not convinced of defendants’ factual claim that hiring local counsel was impracticable. Their attorney Flashman declared that he was unable to find an attorney in the San Francisco Bay Area “with the necessary skill and expertise” to handle the SLAPP issue in this case, but his declaration did not disclose what criteria he used to conduct that search. The trial court expressed concern about the implications of permitting a party to use whatever qualitative criteria they want to set the parameters for determining whether local counsel was available.^[7] The court reasoned that a “defendant who can set any criteria he wishes can justify almost any rate, no matter how high, and after getting the premium that comes from such restrictive criteria can then ask for a contingent-risk multiplier as well.”

On appeal, defendants contend the trial court abused its discretion. They argue that once they demonstrated that they made a good faith effort to retain local counsel, the court was required to compensate Woocher for his work at a reasonable billing rate in his home market. As support for this argument, defendants rely on EPIC, supra, 190 Cal.App.4th 217, and Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359 (Horsford).

EPIC, supra, 190 Cal.App.4th 217, was an appeal from an order awarding statutory attorney fees under second 1021.5 in a “long-running legal dispute” about the logging of timberland in Humboldt County. (Id. at p. 222–223.) Division Five of this court reversed the order and remanded the matter for further proceedings, but also resolved some issues that had been advanced on appeal. (Id. at p. 223.) Pertinent here, the EPIC court found that the trial court did not abuse its discretion to the extent it calculated the respondents’ attorney compensation by “using rates charged by San Francisco attorneys rather than the lower rates charged by attorneys in Humboldt County.” (Id. at p. 248.) In addressing this issue, the EPIC court confirmed the settled rule that the use of “higher rates for out-of-town counsel as the basis for compensation ‘requires a sufficient showing . . . that hiring local counsel was impracticable.’ [Citation.]” (Id. at p. 249.) Ultimately, the court concluded that “[o]ur review of the record convinces us the trial court did not abuse its discretion in concluding respondents made the requisite showing.” (Ibid.) Record support for this conclusion included a declaration from a local attorney who briefly represented one respondent but withdrew from the case because he lacked the “ ‘specialized expertise’ ” to handle issues that arose. In addition, “[a] number of other local attorneys” submitted declarations, which “stated they would not have been willing to represent [respondents] in the actions below.” The EPIC court found that “[t]hese declarations were ‘sufficient and competent evidence that [respondents] acted in good faith and hiring qualified counsel in [Humboldt County] was impracticable.’ [Citation.]” (Ibid.)

In Horsford, supra, 132 Cal.App.4th 359, the plaintiffs appealed from an order awarding them statutory attorney fees in an employment discrimination case filed under the Fair Employment and Housing Act (FEHA). In reversing the order and granting a new hearing, the Horsford court discussed four different aspects of the fee award in which the trial court abused its discretion by losing sight of the underlying purpose of FEHA. (Id. at pp. 395–396.) Pertinent to our analysis here, the trial court failed to consider adequately whether using a higher billing rate for a San Francisco counsel would accomplish the purposes of FEHA. (Id. at p. 397.) In addressing this issue, the Court of Appeal found that the trial court abused its discretion by finding that the plaintiff failed to demonstrate that hiring local counsel was impracticable when the record contained overwhelming and uncontradicted evidence that hiring local counsel was impracticable. The plaintiff’s declaration documented his search for a local attorney, which included meeting with a local attorney who specialized in labor and employment law but who declined to represent plaintiff, and “calling various attorneys listed in the Fresno Yellow Pages as practicing labor and employment law.” The plaintiff spoke to six different attorneys who declined to represent him before he was referred to an attorney in San Francisco who took his case. (Id. at p. 398.) Under these circumstances, the Horsford court concluded that the record demonstrated that the plaintiff made a good faith showing that retaining local counsel was impracticable. (Id. at pp. 398–399.)

In the present case, the record does not compel the conclusion that defendants made a good faith effort to seek local counsel. Defendant Frazer stated that he had one conversation with one local attorney, and he did not disclose the substance of that conversation. The other defendants did not talk to any local attorney, other than Flashman, who had already provided them with legal services in this case. Flashman himself stated that he was unable to locate a local attorney with the skill and expertise to handle the SLAPP issue. However, as discussed, he did not disclose any substantive information about that search. For their part, plaintiffs produced significant evidence that local attorneys are competent to handle SLAPP issues like the one in this case. Under these circumstances, defendants have failed to demonstrate that the trial court abused its discretion.

Furthermore, the attorney fee order in this case is not inconsistent with the legal principles applied in EPIC and Horsford. The decision whether to use an attorney’s out-of-town market rate is a matter of trial court discretion. (EPIC, supra, 190 Cal.App.4th at p. 248.) A court abuses that discretion if it fails to consider whether awarding market value compensation for an attorney who is from a higher fee market would further the purpose of the underlying statute. (Horsford, supra, 132 Cal.App.4th at pp. 397–399.) Here the trial court expressly considered this issue, but concluded that a fee rate of $500 per hour would fully compensate Woocher for the work he did on the anti-SLAPP motion. This conclusion was based on the court’s review of “extensive documentation concerning the amount of the fees,” the court’s “independent assessment of the evidence presented,” and the court’s “own knowledge and familiarity with the legal market in setting the compensable rate.”

In a separate argument, defendants challenge the number of compensable hours the trial court selected for its lodestar calculation. According to this argument, the trial court erred because it reduced the number of hours “meticulously” documented in defense counsel’s fee statements without providing a meaningful explanation.

“Although a SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees, he or she is entitled ‘ “only to reasonable attorney fees, and not necessarily to the entire amount requested. [Citations.]” [Citation.]’ ” (569 E. County Boulevard, supra, 6 Cal.App.5th at p. 433.) Under our abuse of discretion standard of review, “we may not disturb the trial court’s fee determination ‘ “ ‘unless the appellate court is convinced that it is clearly wrong.’ ” ’ [Citations.] When reviewing attorney fee awards, an appellate court must ‘[i]ndulg[e] all inferences in favor of the trial court’s order . . . [and] presume the trial court’s attorney fees award is correct.’ [Citation.]” (Id. at p. 433–434, fn. omitted.) Furthermore, when the trial court “severely curtails the number of compensable hours in a fee award, the operative impact of that presumption can include a presumption the trial court concluded the fee request was inflated. [Citation.]” (Id. at p. 434.)

Applying these principles here, we affirm the attorney fee order. The trial court reduced the number of compensable hours based on an express finding that some billing entries were “duplicative, unnecessary, or unreasonable.” Also, the significant reduction in the amount of compensable hours gives rise to a presumption that the trial court found the fee request was inflated. The court reached these conclusions after reviewing the time records, and the evidence submitted at the hearing, which included multiple declarations from attorneys who reviewed the fee request and concluded it was excessive. The court also relied on its own knowledge of this case and other comparable cases. Under these circumstances, defendants fail to demonstrate the trial court’s conclusion was necessarily wrong.

Defendants quote from Horsford, supra, 132 Cal.App.4th at page 397, for the proposition that a trial court errs by “ ‘completely disregarding’ ” defendants’ billing records and failing to use them “ ‘as the starting point for its lodestar determination.’ ” That did not happen here. The trial court did use the billing records as its starting point, but it reduced the amount of compensable hours to a reasonable number based on the evidence and the court’s own experience. Defendants argue they were denied a “ ‘full compensatory’ fee” because the trial court did not provide an objectively verifiable explanation for reducing the number of hours documented in their attorney fee statements. However, a fully compensatory fee incorporates a lodestar figure based on the number of hours reasonably spent by counsel (Ketchum, supra, 24 Cal.4th at p. 1133), not the number hours set forth in a billing statement.

Defendants also argue that duplication of attorney work is inherent in the litigation process and a court may not use that reason to cut hours absent a showing the work was unnecessarily duplicative. This argument misstates the holding of Center for Biological Diversity v. County of San Bernadino (2010) 188 Cal.App.4th 603 (Bio Diversity), an appeal from an order awarding appellate attorney fees to plaintiffs in an action under the California Environmental Quality Act (CEQA). In that case, the trial court drastically reduced the number of hours claimed for appellate work for the stated reason that the case had already been fully litigated in the trial court, and it would have been “ ‘unnecessary to expend significant hours re-plowing the same field for purposes of appeal.’ ” (Bio Diversity, at p. 620, fn. omitted.) Reversing the order, the Bio Diversity court found that “by reducing claimed hours by approximately 56 percent under the guise of duplication the [trial] court exercised its discretion in an arbitrary manner.” As support for this conclusion, the court found, among other things, that there was “no indication that the appellate work of plaintiffs’ counsel included any duplicative fees related to the administrative record,” and that “trial court preparation and appellate work are not commensurate tasks.” (Ibid.)

Bio Diversity is factually and legally inapposite. That case involved fees incurred during two distinct phases of a CEQA case, whereas in this case defendants seek close to $250,000 for work performed by two senior attorneys on a single anti-SLAPP motion. Furthermore, Bio Diversity stands for the proposition that fees incurred on appeal are not by definition duplicative of fees incurred in the trial court. It does require a trial court to award fees for duplicative work absent a finding that the duplication was unreasonable.

Finally, defendants contend they are entitled to a higher fee award because this litigation was so contentious. Defendants posit that their attorney fee motion was “as hotly contested” as their anti-SLAPP motion, pointing out that their work on the fee motion alone entailed more than 325 pages of argument and evidence, and that plaintiffs responded with briefs and evidence totaling more than 157 pages. Accepting the premise that contentious adversaries generate high litigation costs, we nevertheless conclude that the trial court did not abuse its discretion under all the circumstances presented by the record in this case.

B. Plaintiffs’ Cross-appeal

Plaintiffs first contend that the trial court erred by granting defendants attorney fees when their request was not timely. According to this theory, the August 29, 2016 order granting defendants’ special motion to strike was a judgment, thus triggering the 60-day time period for filing a notice of appeal under rule 8.104(a), and the corresponding 60-day time period for filing a statutory attorney fee motion under rule 3.1702(b)(1). (See fn. 4, ante.) Plaintiffs argue further that even if the August 29, 2016 order was not a “filed-endorsed copy of the judgment” under rule 8.104(a), then the 60-day period began to run on September 7, 2016, when notice of entry of the order granting the defendants’ special motion to strike was allegedly served on the parties. We conclude the trial court did not err by rejecting this flawed theory.

The August 29, 2016 order was not a judgment. That 12-page “Order After Hearing,” addressed several matters pending before the trial court at that time. For example, the court found that a special motion to strike filed by defendant Kelly Calhoun, who is not a party in this appeal, was moot, but it also awarded Calhoun statutory attorney fees. In the August 29, 2016 order, the trial court also granted a separate special motion to strike filed by the defendants who are parties to this appeal. The August 29, 2016 order did not, however, address whether these defendants were entitled to attorney fees, dismiss plaintiffs’ causes of action against these defendants, or otherwise dispose of any part of plaintiffs’ case.

Furthermore, on September 7, 2016, defendant Calhoun filed a notice of entry of the order on her special motion to strike, pursuant to which she was awarded attorney fees and costs. But, contrary to plaintiffs’ arguments here, this notice had nothing to do with the defendants involved in the present appeal.

Finally, on September 28, 2016, the superior court clerk filed and served the judgment in this case. That document, which was captioned as a “Judgment,” contained an order dismissing the plaintiffs’ complaint, entered judgment in favor of all defendants, and ordered that the defendants involved in the present appeal were entitled to recover attorney fees and costs. Because defendants filed their attorney fees motion 60 days after the judgment was filed, their motion was timely under rules 3.1702 and 8.104.

Ignoring the procedural history of this case, plaintiffs posit that an order granting a special motion to strike under the anti-SLAPP law must always be treated as a judgment for purposes of calculating the time period for filing an attorney fee motion under rule 3.1702. The opposite conclusion was reached in Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 468 (Carpenter), which held that “the time limits imposed by rules 3.1702 and 8.104 for filing a motion for attorney fees under section 425.16, subdivision (c) do not commence to run until entry of judgment at the conclusion of the litigation.”

Plaintiffs contend that Carpenter is inapposite because it involved an attorney fee order following the denial of a special motion to strike, while the defendants’ motion to strike was granted. However, Carpenter makes no such distinction. Rather, the court held: “We interpret rule 3.1702 so that the time limits imposed by the rule commence to run upon entry of judgment at the conclusion of the lawsuit. Those time limits do not commence to run upon entry of a prejudgment appealable order, such as an order granting or denying a special motion to strike under section 425.16.” (Carpenter, supra, 151 Cal.App.4th at p. 458.) We agree with Carpenter and follow it here. (See also Crespin v. Shewry (2004) 125 Cal.App.4th 259, 267.)

Plaintiffs mistakenly rely on Melbostand v. Fisher (2008) 165 Cal.App.4th 987. In that case, the appellate court found that an order granting a special motion to strike was an appealable order because it contained language that satisfied the definition of a judgment by explicitly providing that the plaintiff’s complaint was dismissed with prejudice. (Id. at p. 994; compare Daniels v. Robbins (2010) 182 Cal.App.4th 204, 229.) In the present case, the plaintiffs’ complaint was dismissed with prejudice in the September 28, 2016 judgment, not in the August 29, 2016 order granting the special motion to strike.

Finally, plaintiffs argue that even if defendants’ motion for an award of statutory attorney fees was timely, it should have been denied because the defendants’ fees request was inflated. “ ‘A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.’ [Citation.]” (Ketchum, supra, 24 Cal. 4th at p. 1137.) Here, as discussed above, this circumstance was one of several factors supporting the trial court’s decision to reduce the amount of the fee award. However, plaintiffs claim that the fee request was so unreasonably inflated, that it should have been denied.

Plaintiffs contend the following circumstances establish that the amount of the fee request was outrageously inflated: (1) the trial court substantially reduced the amount defendants’ requested; (2) defense counsel claimed expertise, which should have resulted in a lower number of billed hours rather than such a high one; and (3) defendants attempted to justify a higher overall fee by claiming that this was a complex case when it was actually a quintessential SLAPP case that was easily defended. Aside from plaintiffs’ apparent concession that their complaint lacked merit, these circumstances are not facts, but argument. None of them establish that the trial court abused its discretion.

V. DISPOSITION

The March 2017 order awarding fees and costs to defendants under section 425.16 is affirmed in its entirety. The parties are ordered to bear their own costs of appeal.

_________________________

SMITH, J.^*

We concur:

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STREETER, Acting P. J.

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REARDON, J.

^* Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A151256, Dean v. Friends of Pine Meadow