County> of >San
Bernardino v. >San
Bernardino County> Public
Attorneys Assn.

















Filed 6/26/12 County of San
Bernardino
v. San
Bernardino County Public Attorneys Assn. CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

COUNTY OF SAN BERNARDINO, Plaintiff and Appellant, v. SAN BERNARDINO COUNTY PUBLIC ATTORNEYS ASSOCIATION, Defendant and Appellant.

E051576 (Super.Ct.No. CIVDS909445) OPINION

APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County.
Christopher J. Warner and Michael S. Mink (retired judge of
the L.A. Sup. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.), Judges.href="#_ftn1" name="_ftnref1"
title="">^[1] Affirmed.

Jean-Rene
Basle, County Counsel,
and Kenneth C. Hardy, Deputy County Counsel, for Plaintiff and Appellant.

Reich, Adell & Cvitan, Marianne
Reinhold, J. David Sackman, and Kent Morizawa for Defendant and Appellant.

I. INTRODUCTION

Plaintiff
County of San Bernardino (County) appeals from (1) judgment of dismissal
following the trial court’s order sustaining the demurrer of defendant San
Bernardino County Public Attorneys Association (Association) to the County’s
complaint, and (2) the trial court’s orders granting the Association’s
Strategic Lawsuit Against Public Participation (anti-SLAPP) motion under Code
of Civil Procedure section 425.16 and awarding attorney fees to the
Association. The County contends the
superior court, not the Public Employees Relations Board (PERB), has
jurisdiction over a dispute concerning representation in href="http://www.mcmillanlaw.com/">discipline proceedings of Association
members who are deputy public defenders and deputy district attorneys,
because: “(1) PERB has no authority to
regulate the practice of law; (2) PERB has no authority to define the
discretionary authority of the [County] District Attorney or the independence
of the [County] Public Defender in the criminal justice system; and
(3) the violation of attorney ethical duties and the Association removing
prosecutors from criminal cases is not
activity ‘arguably protected or prohibited’ by the MMBA^[href="#_ftn2" name="_ftnref2" title="">^[2]]
and is of ‘marginal concern’ to PERB.”
The County further contends the trial court erred in granting the
Association’s anti-SLAPP motion because (1) the County’s lawsuit was exempt
from the anti-SLAPP statute, (2) the Association failed to establish that its
activity was protected under that statute, and (3) the County met its burden of
showing a likelihood of prevailing on the merits. Finally, the County argues the trial court
erred in awarding attorney fees because the Association did not support its
request with adequate documentation in the form of copies of actual time
records. The Association appeals from
the trial court’s order reducing its attorney fee award.

We
find no error, and we affirm. We
emphasize, however, that our ruling does not address the merits of the County’s
claims that the manner in which the Association represents its members may
cause ethical conflicts. We merely
determine that the PERB, not the court, has initial jurisdiction to decide the
issue.

II. FACTS AND PROCEDURAL BACKGROUND

Under
a Memorandum of Understanding (MOU) between the Association and the County
covering 2005 to 2008, the Association was the exclusive representative of
deputy district attorneys, deputy public defenders, and certain other attorneys
employed by the County. The MOU provides
that the Association “‘may designate employees as authorized employee
representatives or alternates to represent employees in the processing of grievances
or during disciplinary proceedings . . . .’” An MOU covering 2008 to 2011 contains
identical language.

On
several occasions, County Public Defender Doreen B. Boxer conducted
investigations of deputy public defenders.
In each investigation, the Association president, a deputy district attorney,
appointed a deputy district attorney to represent the deputy public defender
being investigated. The Association
asserts that it did so because no deputy public defender wanted to be an
employee representative because of Boxer’s and another manager’s alleged
mistreatment of deputy public defenders.

Boxer
issued a policy declaring that the Association may not appoint a deputy
district attorney to represent a deputy public defender in any investigative
matter. The County district attorney has
also drafted a policy stating that no deputy district attorney may represent a
deputy public defender in any administrative, investigative, or disciplinary
proceeding, and no deputy district attorney may accept a deputy public defender
as his or her employee representative during such a hearing.

The
Association filed unfair labor practice charges with the PERB, alleging that
the public defender interfered with the Association’s right to represent
employees. The PERB issued an unfair
labor practice complaint against the County, alleging that Boxer’s refusal to
permit employee representatives designated by the Association to attend
investigatory interviews of several deputy public defenders constituted an
unfair labor practice. Hearings on the
complaint have taken place before an administrative law judge, but the
administrative law judge has not yet issued a decision.

Meanwhile,
during the pendency of the PERB proceedings, the County filed a complaint in
the trial court, along with an application for order to show cause for
preliminary injunction. The complaint
alleged causes of action (1) for an injunction limiting the Association’s
discretion to assign Association representatives in disciplinary proceedings,
(2) for an injunction preventing the Association from claiming to remove deputy
district attorneys or deputy public defenders from particular cases, (3) for a
declaration that the public defender’s policy is valid insofar as it purports
to prevent deputy public defenders from representing other County employees in
disciplinary proceedings, and (4) for a declaration that the MMBA and the MOU
do not grant the Association the right to choose representatives for
disciplinary proceedings.

The
Association filed a demurrer to the complaint and a special motion to strike
under Code of Civil Procedure section 425.16.
In both the demurrer and anti-SLAPP motion, the Association contended
the trial court lacked jurisdiction over all the County’s causes of action,
because the County’s claims lay within the exclusive jurisdiction of the
PERB. The trial court sustained the
demurrer and granted the anti-SLAPP motion, finding that the PERB had exclusive
jurisdiction over the matter.

Following entry of
judgment, the Association brought a motion for attorney fees in the amount of
$76,038 and costs in the amount of $3,447.
Judge Mink granted the motion but reduced the amounts of the awards to
$49,500 for attorney fees and $2,377 in costs.

III. DISCUSSION

>A.
Requests for Judicial Notice

The
County has requested this court to take judicial notice of (1) the California
Rules of Professional Conduct, (2) the National District Attorneys Association
National Prosecution Standards, Third Edition, and (3) the briefs in a case
pending in Division One of this court.
The Association opposed the request on the ground that the requested
materials are irrelevant to any issues now before this court.

We reserved ruling
on the request for consideration with the merits of this appeal. We now conclude the materials are not helpful
to our resolution of the issues on appeal, and we therefore deny the request
for judicial notice.

The County has
also requested this court to take judicial notice of the proposed decision of
the administrative law judge in the PERB proceedings; the unpublished decision
in People v. Garcia (Nov. 4, 2011, D057959 [nonpub.
opn.]), and the notice of hearing in PERB case No. LA-CE-554-M. The Association has not filed any opposition
to the request. We grant the request.

B. Standard of Review of Order
Sustaining Demurrer

On appeal from a
judgment dismissing an action after a demurrer has been sustained without leave
to amend, we treat the complaint as admitting all material facts properly
pleaded. We affirm the judgment if any
ground for the demurrer is well taken. (>Aubry v. Tri-City Hospital Dist. (1992)
2 Cal.4th 962, 966-967.) The issue of
whether the trial court properly sustained the Association’s demurrer on the
ground that the PERB has exclusive jurisdiction over a complaint concerning
representation of Association members in investigatory proceedings presents a
pure question of law, which we review de novo.
(International Assn. of
Firefighters, Local 230 v. City of >San Jose> (2011) 195 Cal.App.4th 1179, 1208.)

C.
MMBA Overview

“In California,
labor relations between most local public entities and their employees are
governed by the Meyers–Milias–Brown Act (MMBA) (Gov. Code, § 3500 et
seq.), which recognizes the right of public employees to bargain collectively
with their employers over wages and other terms of employment.” (City of San Jose v. Operating Engineers
Local Union No. 3 (2010) 49 Cal.4th 597, 601 (City of San Jose).) The MMBA grants recognized employee
associations the right to “represent their members in their employment
relations with public agencies.” (Gov.
Code, § 3503.) The scope of such
representation includes “all matters relating to employment conditions and
employer-employee relations, including, but not limited to, wages, hours, and
other terms and conditions of employment,” but not “the merits, necessity, or
organization of any service or activity provided by law or executive
order.” (Gov. Code, § 3504.) Case law has clarified that the right of
representation extends to employer-conducted interviews which an employee
reasonably believes may lead to disciplinary action. (NLRB
v. J. Weingarten, Inc. (1975) 420 U.S. 251, 252-253 (Weingarten)href="#_ftn3"
name="_ftnref3" title="">^[3];
Robinson v. State Personnel Bd. (1979)
97 Cal.App.3d 994, 999-1000.)

The PERB is the
administrative agency
authorized to adjudicate unfair labor practices charges under the MMBA. (City of San Jose, supra, 49 Cal.4th at p. 601>.)
“PERB is an expert, quasi-judicial administrative agency. [Citation.]
One of PERB’s primary functions is to investigate and adjudicate charges
of unfair labor practices. ([Gov. Code,]
§ 3541.3, subd. (i).)” >City and County of San Francisco v.
International Union of Operating Engineers, Local 39 (2007) 151 Cal.App.4th
938, 943 (Local 39).)

Government
Code section 3509, subdivision (b), regarding unfair practice charges, provides
that “[t]he initial determination as to whether the charge of unfair practice
is justified and, if so, the appropriate remedy necessary to effectuate the
purposes of this chapter, shall be a matter within the exclusive jurisdiction
of the [PERB] . . . .”
Decisions of the PERB are subject to judicial review to this court. (Gov. Code, § 3509.5.) The PERB has the power “[t]o determine in
disputed cases, or otherwise approve, appropriate units.” (Gov. Code, § 3541.3, subd. (a).)

Government Code
section 3509, subdivision (c) states that the PERB has the power to “enforce
and apply rules adopted by a public agency concerning unit determinations, >representation, recognition, and
elections.” (Italics added.) Government Code section 3509, subdivision (b),
provides: “A complaint alleging any
violation of [the MMBA] . . . shall be processed as an unfair
practice charge by [the PERB]. The
initial determination as to whether the charge of unfair practice is justified
and, if so, the appropriate remedy necessary to effectuate the purposes of this
chapter, shall be a matter within the exclusive jurisdiction of [the
PERB] . . . .”
(Italics added.) When the PERB
has exclusive jurisdiction, courts have only appellate jurisdiction over the
PERB’s decisions. (International Assn. of Firefighters, Local 230 v. City of San Jose,
supra, 195 Cal.App.4th at p.
1209.) Whether the PERB has exclusive
initial jurisdiction is determined based on the underlying conduct described in
the complaint. (Id. at p. 1208.) A public
employer may not avoid the exclusive jurisdiction of the PERB over unfair
practice charges through artful pleading.
(Local 39, >supra, 151 Cal.App.4th at p. 945.)

name="sp_999_3">D. Exhaustion of Administrative
Remedies

The trial court
sustained the Association’s demurrer on the ground that the PERB had exclusive
initial jurisdiction over the matter, and the County failed to exhaust its
administrative remedy.

“Subject to
certain exceptions, local public agencies and their employees must exhaust
their administrative remedies under the MMBA by applying to PERB for relief
before they can ask a court to intervene in a labor dispute.” (City of San Jose, supra, 49 Cal.4th at p.
601.) name="______#HN;F1">name=B22024815515>The requirement of exhaustion of available administrative
remedies is subject to exceptions, for example, when the administrative remedy
is inadequate or when it is clear it would be futile to seek an administrative
remedy. (Id. at pp. 609-610; see also Coachella Valley Mosquito &
Vector Control Dist. v. California Public Employment Relations Bd. (2005)
35 Cal.4th 1072, 1080 (Coachella Valley).) We review de novo the question of whether the
exhaustion doctrine applies to a given case.
(Paulsen v. Local No. 856 of
Internat. Brotherhood of Teamsters (2011) 193 Cal.App.4th 823, 828-829 (>Paulsen).)

In >Paulsen, deputy probation officers sued
their union for breach of the duty of fair representation, among other causes
of action. The trial court sustained the
union’s demurrer without leave to amend on the ground of lack of subject matter
jurisdiction, and the appellate court affirmed, holding that the action was
subject to the exclusive jurisdiction of the PERB because the breach of the
union’s duty of fair representation was an unfair labor practice within the
meaning of Government Code section 3509.
(Paulsen, supra, 193 Cal.App.4th at pp. 830-834.)

A
party is excused from exhausting administrative remedies if doing so would
result in irreparable injuries. (>Local 39, supra, 151 Cal.App.4th at p. 948.)
In addition, a court may determine that an agency lacks jurisdiction
even while agency proceedings are still pending. (Id.
at p. 949.) Three factors guide the
court’s determination whether to exercise that power: “the injury or burden that exhaustion will
impose, the strength of the legal argument that the agency lacks jurisdiction,
and the extent to which administrative expertise may aid in resolving the
jurisdictional issue. [Citation.]” (Coachella
Valley, supra,> 35 Cal.4th at p. 1082.)

The County argues
that the PERB has no inherent power to regulate the practice of law; the PERB
has no authority to define the discretionary authority of the district attorney
or the independence of the public defender; and violating attorney ethics and
interfering with the discretionary authority of the district attorney and the
independence of the public defender are not activities “arguably protected or
prohibited” by the MMBA. The County’s
argument centers on Santa Clara County
Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525 (Woodside), superseded by statute as stated in Coachella Valley, supra,
35 Cal.4th at p. 1077. In >Woodside, the court held that attorneys
employed by the county could sue their public entity employer under the MMBA
for breach of the duty to bargain in good faith, and such a lawsuit was not
barred by any ethical requirements on the attorneys. (Woodside,
supra, at pp. 544-553.) Woodside
predated the PERB’s obtaining exclusive jurisdiction over unfair practice
charges brought under the MMBA. (See >Coachella Valley, supra, at p. 1077 [“Effective July 1, 2001 . . . the
Legislature vested [PERB] with exclusive jurisdiction over alleged violations
of the MMBA.”] (Fn. omitted.).) Thus, Woodside
is not helpful to the County’s position.

In
short, although the County frames the argument in terms of the ethical duties
of deputy public deputies and deputy public defenders, the crux of the dispute
is representation in disciplinary investigations, a matter that is explicitly
covered in the MOU. Government Code
section 3509, subdivision (b) specifically allocates primary initial
jurisdiction over such a dispute to the PERB.

Moreover, although
the County extensively argues public policy concerns, in City of San Jose, our Supreme Court held that even when a public
employer “is of the view that a threatened strike by certain public employees
will endanger public welfare,” the public employer “must . . .
generally first seek relief from PERB before asking a superior court for
injunctive relief.” (>City of San Jose, supra, 49 Cal.4th at p. 603.)

We therefore find
no error in the trial court’s granting of the demurrer, and we affirm.

>E.
Anti-SLAPP Motion

The
County argues that the trial court erred in granting the Association’s
anti-SLAPP motion because the County’s complaint fell within the public prosecutor
exception of Code of Civil Procedure section 425.16, subdivision (d), and the
public interest exception of Code of Civil Procedure section 425.17,
subdivision (b). The County further
argues that the Association failed to establish that its activity was protected
speech within the meaning of the anti-SLAPP statute, and the County met its
burden of showing a likelihood of success on the merits

>1.
Standard of Review

We review the trial court’s
order granting the anti-SLAPP motion de novo.
In doing so, “‘[w]e consider “the pleadings, and supporting and opposing
affidavits . . . upon which the liability or defense is based.” [Citation.]
However, we neither “weigh credibility [nor] compare the weight of the
evidence. Rather, [we] accept as true the
evidence favorable to the plaintiff [citation] and evaluate the defendant’s
evidence only to determine if it has defeated that submitted by the plaintiff
as a matter of law.” [Citation.]’ [Citation.]”
(Flatley v. Mauro (2006) 39
Cal.4th 299, 326.)

>2.
Public Prosecutor Exception

The County argues that its
complaint fell within the public prosecutor exception of Code of Civil
Procedure section 425.16, subdivision (d), which provides:
“This section shall not apply to any enforcement action brought in the
name of the people of the State of California by the Attorney General, district
attorney, or city attorney, acting as a public prosecutor.” The County contends that “[t]he current
lawsuit is a direct result of the District Attorney’s determination that
cross-representation threatens his ability to effectively bring enforcement
actions in criminal court. The District
Attorney requested the County to file the lawsuit so as to address his
concerns.”

In
City of Long Beach v. California Citizens
for Neighborhood Empowerment (2003) 111 Cal.App.4th 302 (>City of Long Beach), the court held the
exception in Code of Civil Procedure section 425.16, subdivision (d) applied to
a city attorney’s civil injunction actions to enforce local election laws
brought on behalf of a city. (>City of Long Beach, supra, at pp. 308-309.) The
court held it was reasonable to extend the exception beyond the literal
language of the statute to include “all civil actions brought by state and
local agencies to enforce laws aimed at consumer and/or public
protection.” (Id. at p. 308.)

However,
subsequent to the City of Long Beach decision,
our Supreme Court, in Jarrow Formulas,
Inc. v. LaMarche (2003) 31 Cal.4th 728 (Jarrow),
held that “[t]he Legislature clearly knows how to create an exemption from the
anti-SLAPP statute when it wishes to do so,” (id. at p. 735), and when it has not done so, the court has no
authority to create a broad exception that the Legislature has not
enacted. (Id. at pp. 735-741.) In >City of Los Angeles v. Animal Defense League
(2006) 135 Cal.App.4th 606 (City of
Los Angeles), the city sought protective orders under Code of Civil
Procedure section 527.8, subdivision (a) on behalf of some of its employees to
shield them from workplace violence. The
appellate court acknowledged that previously in City of Long Beach it had extended the plain language of the
statute, but emphasized that “any further erosion of the specific requirements
of that provision is unwarranted in light of the Supreme Court’s subsequent admonition
in [Jarrow], 31 Cal.4th [at page] 735
. . . that the plain language of [Code of Civil Procedure] section
425.16 is to be respected and that exceptions to the statute’s broad reach must
not be lightly implied . . . .” (City
of Los Angeles, supra, at p.
620.) The court stated: “Although [Code of Civil Procedure] section
425.16, subdivision (d), thus applies somewhat more broadly than the literal
language of the provision may suggest, only actions brought by a governmental
agency to enforce laws aimed generally at public protection qualify for this
exemption to anti-SLAPP scrutiny,” (id.
at p. 618), and the exemption did not apply when the city was acting in its
capacity as an employer seeking to protect its own employees (>id. at pp. 617-620).

Here,
similarly, the County was acting in its capacity as an employer, not in its
capacity as a public prosecutor, and the exception in Code of Civil Procedure
section 425.16, subdivision (d) therefore does not apply.

>3.
Public Interest Exception

The County next argues that its
complaint fell within the public interest exception of Code of Civil Procedure
section 425.17, subdivision (b), which provides: “Section 425.16 does not apply to any action
brought solely in the public interest or on behalf of the general public if >all of the following conditions exist:

“(1) The plaintiff does not seek any relief
greater than or different from the relief sought for the general public or a
class of which the plaintiff is a member. . . .

“(2) The action, if successful, would enforce an
important right affecting the public interest, and would confer a significant
benefit, whether or pecuniary or nonpecuniary, on the general public or a large
class of persons.

“(3) Private
enforcement is necessary and places a disproportionate financial burden on the
plaintiff in relation to the plaintiff’s stake in the matter.” (Italics added.)

The
language of the statute is clear and unambiguous, and by its terms, applies to
private enforcement actions, not to an action brought by the County in its role
as employer. “‘The plain language of the
statute establishes what was intended by the Legislature.’ [Citation.]”
“‘“If the language is clear and unambiguous there is no need for
construction, nor is it necessary to resort to [extrinsic] indicia of the
intent of the Legislature . . . .”’ [Citation.]”
(Jarrow, supra, 31 Cal.4th at p. 735.)
We have no authority to expand the language of the exception to
encompass the County’s claims.

>4.
Trial Court’s Ruling on the Merits

The County next argues the
Association failed to establish that its activity was protected speech within
the meaning of the anti-SLAPP statute.

a. Overview of anti-SLAPP procedure

A
trial court considering an anti-SLAPP motion must engage in a two-part inquiry. The court must first determine whether the
defendant has met its initial burden of showing that the cause of action arises
from the defendant’s activities that further its rights of petition or free
speech. Once the defendant has made such
a prima facie showing, the court next determines whether the plaintiff has
shown a probability of prevailing on the merits. (Freeman
v. Schack (2007) 154 Cal.App.4th 719, 726-727.) This court exercises its href="http://www.mcmillanlaw.com/">independent judgment on those same
issues. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269,
fn. 3.)

b. Protected activities

The
County contends the Association did not meet its initial burden to establish
that its activities were protected.

Protected
activity under the anti-SLAPP statute includes “(a) any written or oral
statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding
authorized by law, (2) any written or oral statement or writing made in
connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by
law, (3) any written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public interest, or (4)
any other conduct in furtherance of the exercise of the constitutional right of
petition or the constitutional right of
free speech in connection with a public issue or an issue of public
interest.” The Association argues its
activity fell within Item (1), (2), or (4).

The
County contends the underlying issue is the Association’s appointment of deputy
district attorneys to represent deputy public defenders, and case law holds
that anti-SLAPP motions do not apply to litigation that concerns an attorney’s
breach of the duty of loyalty. To
support its argument, the County cites Benasra
v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179; >Freeman v. Schack, supra, 154 Cal.App.4th 719; and United
States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP (2009)
171 Cal.App.4th 1617. In those cases,
the courts held that attorneys who breached their fiduciary duties toward
clients by abandoning them to represent adverse interests were not protected by
the anti-SLAPP statute. (>Benasra v. Mitchell Silberberg & Knupp
LLP, supra, at p. 1187-1188;> Freeman v. Schack, supra, at pp. 728-731; United
States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP, >supra, at p. 1628-1629.)

However,
courts have long recognized that activities of unions—including public employee
unions—are protected free speech activities.
(In re Berry (1968) 68 Cal.2d
137, 153 [picketing by public employee union to publicize its demands was
protected speech]; Monterey Plaza Hotel
v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057,
1064 [statements in a labor dispute were protected activity, and a resulting
defamation action was subject to an anti-SLAPP motion]; Macias v. Hartwell (1997) 55 Cal.App.4th 669, 673-674 [statements
made during a campaign for a union post were a matter of public interest, and a
complaint directed at those statements was subject to an anti-SLAPP motion].)

We
conclude the Association has met its burden of establishing that its activities
were protected for purposes of the anti-SLAPP statute.

c. Likelihood of success on the merits>

The County next argues that it
met its burden of showing a likelihood of success on the merits. Given that we have determined the County’s
lawsuit must fail because the County failed to exhaust its administrative
remedies, it necessarily follows that the County has failed to show a
likelihood of success on the merits.

>F.
Attorney Fees Award

Both parties have
appealed from the award of attorney fees.
The County contends the trial court erred in awarding attorney fees
because the Association did not support its request with adequate documentation
in the form of copies of actual time records.
In its appeal, the Association contends the trial court erred by
reducing the amount of its attorney fee award.

1. Standard of Review

We review a
challenge to the amount of an attorney fee award in an anti-SLAPP action under
the abuse of discretion standard. (>Christian Research Institute v. Alnor (2008)
165 Cal.App.4th 1315, 1322 (Christian
Research Institute).) “[W]hen, as
here, the fee order under review was rendered by a judge other than the trial
judge, we may exercise ‘somewhat more latitude in determining whether there has
been an abuse of discretion than would be true in the usual case.’ [Citation.]”
(Center for Biological Diversity
v. County of San Bernardino (2010) 188 Cal.App.4th 603, 616.)

2. Additional Background

The Association
filed a motion for attorney fees and costs, supported by the declaration of
Marianne Reinhold, the Association’s attorney.
The Association claimed 220.7 hours of senior attorney time at a rate of
$285 per hour and 24.8 hours of associate attorney time at a rate of $185 per
hour. The Association also provided a
spreadsheet, compiled from its computerized billing system, listing the dates
services were provided, a brief description of each service, the hours spent on
each service, and the identity of the attorney providing the service.

The County filed
an opposition to the motion. It argued
that the Association did not file copies of actual detailed time records, and
such records were required as the basis for an attorney fee award. In reply to the County’s opposition, the
Association filed Reinhold’s supplemental declaration stating that all the
attorney services for which the Association requested fees were connected to
the current lawsuit; services performed in connection with the PERB proceedings
were billed under a separate transaction number and were not included in the
fee request.

Judge Mink was
specially assigned to hear the motion for attorney fees. Following oral
argument, he took the matter under submission. He later granted the motion but reduced the
amount of fees to $49,500 and the amount of costs to $2,377 without explaining
the basis for awarding those amounts.

3. Adequacy of Records Provided

The County contends
the Association was required to support its request for attorney fees with
copies of actual time records.

“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.”
[Citation.] To that end, the
court may require [a] defendant[] to produce records sufficient to provide “‘a
proper basis for determining how much time was spent on particular
claims.’” [Citation.] The court also may properly reduce
compensation on account of any failure to maintain appropriate time
records. [Citation.]’ [Citation.]
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.
[Citation.]” (>Christian Research Institute, >supra, 165 Cal.App.4th at p. 1320.)

The County argues
that copies of actual time records must be filed with the court to support an
award of attorney fees, and the summarization the Association provided did not
include sufficient detail to support the Association’s request. We disagree.
The summarization of services provided and Reinhold’s declaration
constituted a sufficient basis on which the trial court could determine how
much time was spent on particular claims.
No more was required. (See, e.g.,
Best v. California Apprenticeship Council
(1987) 193 Cal.App.3d 1448, 1470 [records “which detail[ed] the hours spent
on the case and for what purpose, gave the court an adequate basis upon which
to exercise its discretion,” even if contemporaneous recorded time sheets are
preferred]; see also PLCM Group, Inc. v.
Drexler (2000) 22 Cal.4th 1084, 1096, fn. 4 [affirming an award of attorney
fees based on “a detailed reconstruction of time spent on specific legal tasks
performed in the case” when in-house counsel for the prevailing party had not
kept contemporaneous daily billing records].)

4. Allocation of Attorney Time

The County argues
that the attorney fee award was erroneous because the Association failed to
provide sufficient information from which the trial court could determine which
work was performed for the PERB proceedings and which was performed for the
superior court case.

However, Reinhold’s
declaration established that the time spent on this case was separately
recorded from time spent in other matters, such as the PERB proceedings, so
that the records provided included only time spent on this case. Moreover, when attorney fees are incurred for
representation on an issue common both to a cause of action in which fees are
allowed and one in which they are not allowed, the fees need not be
apportioned. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124,
129-130.) Here, the demurrer and the
anti-SLAPP motion were both based on the exclusive jurisdiction of the PERB to
determine the underlying legal issue.

5. Reduction of Award

The Association
contends that the trial court erred in reducing its award of attorney fees to
$49,500. With exceptions not relevant to
this case, a prevailing defendant on an anti-SLAPP motion is entitled to
recover its attorney fees and costs.
(Code Civ. Proc., § 425.16, subd. (c)(1).) The purpose of the mandatory fee provision is
to “adequately compensate” the prevailing party for “the expense of responding
to a baseless lawsuit.” (>Dove Audio, Inc. v. Rosenfeld, Meyer &
Susman (1996) 47 Cal.App.4th 777, 785.)

“The trial court
is not required to issue a statement of decision” (Christian Research Institute, supra,
165 Cal.App.4th at p. 1323), and here, the trial court did not do so. We do not disturb the trial court’s ruling
unless we are convinced that it is clearly wrong. (Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1132.)
We must presume the attorney fee award was correct. (Doppes
v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998.) “When the trial court substantially reduces a
fee or cost request, we infer the court has determined the request was
inflated. [Citation.]” (Christian
Research Institute, supra, at p.
1323.) We therefore find no abuse of
discretion in the award of attorney fees.

name=IA63CA4B0015E11DFB4EFD0635DF4AD4D>name=IA63B9343015E11DFB4EFD0635DF4AD4D>IV. DISPOSITION

The
judgment is affirmed. Costs are awarded
to defendant Association.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS





HOLLENHORST

Acting P. J.

We concur:



MILLER

J.



CODRINGTON

J.