Susott v. Auld-Susott
Filed 1/3/13
Susott v. Auld-Susott CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH APPELLATE DISTRICT
DANIEL C. SUSOTT,
Plaintiff and Appellant,
v.
EVAN
AULD-SUSOTT,
Defendant and Respondent.
H037066
(Monterey County
Super. Ct. No. M103418)
Respondent
Evan Auld-Susott is the nephew of appellant Daniel C. Susott. They had a dispute regarding the care of
89-year-old Kathryn Susott, who was Evan’s grandmother and Daniel’s mother.
Kathryn. He was also the trustee of
several Sussott family trusts as well as
the general partner of the Susott family’s limited partnership. Daniel was a beneficiary of the Sussott
family trusts and a limited partner of the family partnership.
At
the time the Susott family decided to move Kathryn from her Carmel home into an
assisted living facility, Daniel was residing in Kathryn’s home. On the day Kathryn moved out, Evan caused a
three-day notice to quit to be served on Daniel. Evan also sought a temporary restraining
order (TRO) limiting Daniel’s contact with Kathryn in the assisted living
facility.
Daniel
subsequently filed a first amended
complaint naming Evan as one of the defendants. He alleged, among other things, that Evan had
breached his fiduciary duty as a trustee and general partner. Evan responded to the complaint by bringing a
special motion to strike under Code of Civil Procedure section 425.16,
the anti-SLAPP
title="">[3]
statute, which provides that a cause of action arising from constitutionally
protected speech or petitioning activity is subject to a special
establishes a probability of prevailing on the claim. (§425.16, subd. (b)(1).) The trial court granted the motion and also
awarded Evan attorney’s fees in the amount of $20,000.
On
appeal, Daniel contends that the trial court erred in granting Evan’s
anti-SLAPP motion because the cause of action for breach of fiduciary duty does
not arise from petitioning activity protected under section 425.16. Daniel also contends that the award of
attorney’s fees was unreasonable. For
the reasons stated below, we find no merit in Daniel’s contentions and
therefore we will affirm the trial court’s orders.
A. The
First Amended Complaint
In
May 2010, Daniel filed a first amended complaint (hereafter, the complaint)
naming Evan as one of the defendants.
allegations concerning Evan, since he is the only defendant involved in this
appeal.
According
to the complaint, Evan was appointed trustee of several Susott family trusts
and managed millions of dollars of assets held in the Susott family limited
partnership, The Susott FLP. In 2006,
Evan began serving as Kathryn’s agent under a durable power of attorney, which
gave him sole responsibility for her standard of living and medical care.
From
1994 until 2009, Kathryn lived at her home in Carmel, where she
was cared for by live-in staff. Daniel
alleged that Evan and other members of the Susott family devised a plan to
remove Kathryn from her home in order to save $100,000 in her annual care
costs. At that time, Daniel, a
physician, was living in Kathryn’s home as her “invited guest.†He believed that Kathryn should remain in her
home and not be moved to an assisted living facility.
On
January 27,
2009, Kathryn was admitted into an assisted
living facility in Monterey. On the same day, Evan “as
trustee executed a three-day notice to [Daniel] to quit†Kathryn’s
residence. According to Daniel, “[Evan]
did this despite his knowledge that [Daniel] was residing there as a guest of
his mother [Kathryn] and had been providing for her medical care and
well-being, and despite [Evan’s] knowledge that [Kathryn] was an owner of the
premises and that she did not desire the eviction of her son from the
premises.â€
Thereafter,
on February 2,
2009, Evan allegedly filed a request in
superior court for an order barring Daniel from any contact with Kathryn and
requiring him to stay away from Kathryn’s Carmel home and the
assisted living facility where she resided.
Daniel also alleged that Evan and the other defendants “demanded and
received an order that [Kathryn] be subjected to a prolonged, invasive and
undignified medical examination for anal rape . . . solely as a pretext,
justification and means to obtain grounds for a court order . . . .â€
The
complaint further stated that “defendants requested and received orders barring
[Daniel] from communicating with employees or residents of [the assisted living
facility]. . . .†Defendants also, on
February 5, 2009, allegedly “sought, obtained and caused a Temporary
Restraining Order to be served on [Daniel], barring his access to his mother
[Kathryn], who was at that point being held against her express will and
desires as a virtual prisoner at [the assisted living facility].†According to Daniel, on February 8, 2009, he was told by Evan that there was nothing he could do about the
TRO “until a stipulated agreement was accomplished.†Kathryn died at the assisted living facility
in February 2009.
Based
on these allegations, the complaint stated causes of action against Evan for
intentional infliction of emotional distress, conspiracy, aiding and abetting,
breach of fiduciary duty, and wrongful death.
B. Evan’s
Special Motion to Strike Under Section 425.16
In October 2010, Evan filed a special motion to strike the complaint
under the anti-SLAPP statute, section 425.16.
1. Memorandum of Points and
Authorities
In
his memorandum of points and authorities, Evan argued that the complaint
satisfied the two-part test for determining whether a complaint may be stricken
under section 425.16 because (1) it arose from petitioning activity—the filing
of a TRO and an eviction notice—that is protected under section 425.16,
subdivision (e); and (2) Daniel could not demonstrate a probability of
prevailing because all causes of action were barred by the litigation privilege
(Civ. Code, § 47, subd. (b)).
Evan
also argued that the fourth cause of action for breach of fiduciary duty was
barred by the doctrines of res judicata and collateral estoppel because the
superior court had issued an October 9, 2009 order approving Evan’s report on
the first accounting for the Kathryn C. Susott Living Trust, the John L. Susott
Exempt Marital Trust, and the John L. Susott Non-Exempt Marital Trust.
2. Evan’s Supporting Declaration
In
his supporting declaration, Evan asserted that in 2009 Kathryn was frail and
suffering from Alzheimer’s disease. She
lived in her home with caregivers present nearly “24/7.†According to Evan, Daniel “was a frequent if
not perpetual visitor at the house. He
did not pay rent and used the residence as a place where he could entertain his
friends. He also used Kathryn’s credit
card on many occasions . . . .â€
Daniel
and his brother, John Susott (Evan’s father), were hostile to each other. Evan stated that the decision to move Kathryn
into an assisted living facility was a family decision and “was made partly as
a temporary move to see how she adjusted and partly to diffuse the ill will
coming from [Daniel] and to provide respite from the conflict existing between
[Daniel] and [John]. The move was not
motivated solely by finances.â€
Evan
further stated that as trustee, he made the decision to evict Daniel from
Kathryn’s home after their negotiations failed, in order “to protect Kathryn
and her property.†However, Evan did not
take any action to enforce the three-day notice to quit, and Daniel voluntarily
moved from Kathryn’s home a few days after Kathryn was admitted to the assisted
living facility on January 27, 2009.
On
February 2, 2009, while Kathryn was in the assisted living facility, “at
approximately 3 am, [Daniel] broke into [the assisted living facility] and
tried to kidnap Kathryn. He was
confronted by staff and refused to leave.
When the police were called, [Daniel] left.†Thereafter, Evan sought a TRO to protect
Kathryn. According to Evan, “[l]egal
proceedings against [Daniel] were the result of his conduct, not because I or
anyone else wanted to cause him harm. I
needed him to stop his selfish behavior and to work within the family for
Kathryn’s sake—and his.†However, the
TRO hearing was vacated after Daniel agreed to abide by a negotiated
stipulation that allowed him to continue visiting Kathryn under certain
restrictions.
Evan
additionally asserted that Daniel “was fairly and evenly treated by me as
trustee, as general partner of the limited partnership and as agent for
Kathryn. In retribution for my use of
the legal process, he filed this complaint.†Further, Evan stated, “[m]y fiduciary position
and obligations as a Trustee were fully disclosed through the requisite
accounting that had to accompany my Petition to Resign as Trustee. . . . [Daniel] had the opportunity to review,
object, and even hire counsel to challenge any or all of the information as
presented. No objections or opposition
was made to said Petition.â€
C. The
Hearing on the Motion
Daniel
did not file written opposition to Evan’s anti-SLAPP motion. Instead,
he filed a second amended complaint.
At the hearing on the motion held on October 29, 2010, Daniel’s counsel explained that “[m]y error
[was] in assuming mistakenly that the second amended complaint would moot the
issues of the special motion to strike . . . .â€
Daniel therefore requested a continuance to allow him to file an
opposition to the anti-SLAPP motion. The
trial court denied the request for a continuance, based on the decision in
1275, 1280, in which the appellate court ruled that a plaintiff may not avoid a
pleadings challenge pursuant to section 425.16 by amending the complaint before
the anti-SLAPP motion is heard.
However,
the trial court allowed Daniel to argue in opposition to Evan’s anti-SLAPP
motion during the hearing. Daniel
generally argued that defendants’ alleged conduct was not constitutionally
protected petitioning activity within
the meaning of section 425.16 because their conduct constituted illegal
extortion. With respect to the cause of
action against Evan for breach of fiduciary duty, Daniel asserted that Evan’s
anti-SLAPP motion was untimely filed.
Daniel also maintained that his lawsuit had a probability of success
because, if he were permitted to submit evidence in opposition to the motion,
the evidence would show that there were alternatives to the TRO and the attempt
to evict Daniel.
The
trial court ruled from the bench as follows regarding Evan: (1) no party was prejudiced by any
“timeliness issues there may have beenâ€; (2) the request for judicial notice of
the filing of the TRO was granted; (3) Evan’s anti-SLAPP motion was granted on
the ground that the complaint arose from protected activity, including Evan’s
actions as a trustee in pursuing the eviction notice and the TRO; (4) the
gravamen of the cause of action for breach of fiduciary duty was protected
activity; and (5) counsel were invited to submit an ex parte motion for
attorney’s fees.
D. The
Trial Court’s Orders
The
order granting Evan’s anti-SLAPP motion to strike the complaint was filed on
March 7, 2011. The order also states,
“Fees are mandatory per the Statute; Moving Party to proceed on an Ex Parte
Application basis to present request for reasonable attorneys fees and costs,
including notice of application hearing.â€
On
May 9, 2011, Daniel filed a notice of appeal from the March 7, 2011 order
granting Evan’s anti-SLAPP motion. The
note: “Appeal will also be taken from an
order granting mandatory attorney fees.
An order has not yet issued as of the time of this appeal.†Subsequently, on August 8, 2011, the trial
court entered its order granting Evan’s motion for attorney’s fees and costs
and awarding him attorney’s fees of $20,000 and costs of $250.
On appeal, Daniel contends that
the trial court erred in granting Evan’s anti-SLAPP motion to strike the fourth
cause of action for breach of fiduciary duty.
with respect to the any other cause of action.
Daniel also contends that the trial court erred by awarding an
unreasonable amount of attorney’s fees to Evan.
We will begin our evaluation of
Daniel’s contentions with an overview of section 425.16, the anti-SLAPP
statute, followed by a discussion of the applicable standard of review.
A.
Section 425.16
Section
425.16 was enacted in 1992 in response to a “disturbing increase†in lawsuits
brought for the strategic purpose of chilling a defendant’s rights of petition
and free speech. (§ 425.16, subd. (a).)
lawsuits based on claims arising from defendant’s constitutionally protected
speech or petitioning activity. (
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 60; Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).)
Section 425.16 applies to any
cause of action against a person “arising from any act of that person in
furtherance of the person’s right of petition or free speech under the United
States Constitution or the California Constitution in connection with a public
issue . . . .†(§ 425.16,
subds. (b)(1), (e)(4).) The stated
purpose of section 425.16 is to encourage protected speech by permitting a
court to promptly dismiss unmeritorious actions or claims that are brought
“primarily to chill the valid exercise of the constitutional rights of freedom
of speech and petition for the redress of grievances.†(§ 425.16, subd. (a);
(2006) 39 Cal.4th 260, 278 (Soukup).)
Under section
425.16, the trial court evaluates the merits of a possible SLAPP by “using a
summary-judgment-like procedure at an early stage of the litigation.†(Varian Medical Systems, Inc. v. Delfino (2005)
35 Cal.4th 180, 192.) The procedures authorized
in the statute allow a defendant to stay discovery before litigation costs
mount, obtain early
dismissal of the lawsuit, and recover attorney’s fees. (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 197-198.)
A defendant
seeking the protection of the anti-SLAPP statute has the burden of making the
initial showing that the lawsuit arises from conduct “in furtherance of [a]
person’s right of petition or free speech under the United States Constitution
or the California Constitution in connection with a public issue . . . .†(§ 425.16, subds. (b)(1), (e)(4);
plaintiff’s claim arises from one of the section 425.16, subdivision (e)
categories of protected activity, the burden shifts to the plaintiff to
demonstrate a probability of prevailing on the claim. (§ 425.16, subd. (b)(1);
Thus,
“ ‘[s]ection 425.16 posits . . . a two-step process for determining whether an action
is a SLAPP. First, the court decides
whether the defendant has made a threshold showing that the challenged cause of
action is one arising from protected activity.
. . . If the court finds that
such a showing has been made, it must then determine whether the plaintiff has
demonstrated a probability of prevailing on the claim.’ [Citation.]
‘Only a cause of action that satisfies both prongs of the
anti-SLAPP statute—i.e., that arises from protected speech or petitioning and
lacks even
subject to being stricken under the statute.’
[Citation.]†(
B.
The Standard of Review
“Review of an
order granting or denying a motion to strike under section 425.16 is de novo.
We consider ‘the pleadings, and supporting and opposing
affidavits . . . upon which the liability or defense is
based.’ (§ 425.16,
subd. (b)(2).) 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.]†(Soukup,
supra, 39 Cal.4th at p. 269, fn. 3.)
Where, as here,
the plaintiff has failed to submit written argument and evidence in opposition
to the anti-SLAPP motion, the moving party defendant does not automatically
prevail. As explained in
(2009) 178 Cal.App.4th 869 (Law Offices),
“[e]ven though plaintiff had not filed an opposition to defendants’ anti-SLAPP
motion, defendants’ success was not guaranteed.
In their motion to strike, defendants were required to make a ‘threshold
showing that the challenged cause of action is one arising from protected
activity. . . .’
[Citation.] Only if defendants
met this requirement would plaintiff have been required to demonstrate a
probability of prevailing on the claim in order to defeat the motion. [Citation.]â€
(Id. at p. 878.)
To demonstrate a
probability of prevailing, the plaintiff “must show both that the claim is
legally sufficient and that there is admissible evidence that, if credited,
would be sufficient to sustain a favorable judgment.
v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271.) “An assessment of the probability of
prevailing on the claim looks to trial, and the evidence that will be
presented at that time. [Citation.] Such evidence must be admissible. [Citation.]â€
(Evans v. Unkow (1995) 38
Cal.App.4th 1490, 1497.)
Applying this standard of review, we will independently determine
from our review of the record whether the breach of fiduciary cause of action
in the complaint constitutes a SLAPP under section 425.16.
C. The Threshold
Showing of Protected Activity
1. The Parties’ Contentions
On
appeal, Daniel argues that Evan’s
anti-SLAPP motion should be denied because the cause of action for
since it does not arise from petitioning activity protected under section
425.16. Daniel asserts that he “is not
suing because defendant [Evan] filed the eviction action, but because defendant
[Evan] did not properly protect [Daniel’s] interests.†Daniel further explains that his “breach of
fiduciary duty cause of action is based on, among other things, defendant
[Evan’s] failure ‘to make full and fair disclosure to [Daniel] of all material
matters, to deal fairly, justly and honestly with [Daniel] and to be loyal to
the interests of [Daniel] and to place [Daniel’s] interests before his own
interests and to refrain from placing the interests of others before the
interests of [Daniel]’ . . . .â€
Daniel
also points to his allegation that Evan conspired with the other defendants “to
evict and divest [Daniel] of his interest and deplete the value of his
expectancy in real estate, personalty [sic]
and family trust and partnership assets, by placing his and others’ financial
and economic interests ahead of [Daniel’s] interests.†Alternatively, Daniel contends that the cause
of action for breach of fiduciary duty is not barred by the doctrines of res
judicata or collateral estoppel.
Evan
disagrees. He argues that he made a
prima facie showing in his anti-SLAPP motion that the cause of action for
breach of fiduciary duty arises from acts in furtherance of his right to
petition—the eviction and TRO proceedings—that fall within section 425.16,
subdivision (e). In support of this
argument, Evan emphasizes that the complaint’s allegations regarding his
conduct revolve around his acts of obtaining the stay-away order and the TRO,
as well as obtaining the assistance of local law enforcement and the courts.
As we will explain, we determine from our independent review that
Evan’s anti-SLAPP motion satisfied the first prong of the anti-SLAPP statute by
making a threshold showing that the breach of fiduciary duty cause of action
arises from a category of activity protected under section 425.16, subdivision
(e).
2. Section 425.16, subdivision
(e)
Section
425.16, subdivision (e) provides in pertinent part: “As used in this section, ‘act in furtherance
of a person’s right of petition or free speech under the United States or
California Constitution in connection with a public issue’ includes: (1) 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 . . . .â€
Since
“[t]he filing of lawsuits is an aspect of the First Amendment right of
petition†(Soukup,
connection with litigation fall “squarely within the ambit of the anti-SLAPP
statute’s ‘arising from’ prong.
(§ 425.16, subd. (b)(1).†(
constitutes protected activity under section 425.16, subdivision (e). (Feldman
v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1480; see also
Cal.App.4th 1169, 1182 [notice of eviction is protected activity].)
it has been held that the filing of an application for a temporary
“ ‘written or oral statement or writing made before a . . .
judicial proceeding’ (§ 425.16, subd. (e)(1)) and
therefore constituted protected activity under the
anti-SLAPP statute.†(
Entertainment, LLC (2011) 194 Cal.App.4th 873, 888.)
The
California Supreme Court has instructed that “ ‘[i]n the anti-SLAPP context,
the critical consideration is whether the cause of action is
speech or petitioning activity.’
[Citation.]†(
467, 477.) Moreover, as this court has
stated, the “ ‘ “focus is not the form of the plaintiff’s cause of
action but, rather, the defendant’s activity
that gives rise to his or her asserted liability—and whether that activity
constitutes protected speech or petitioning.†’
[Citations.]†(
Cal.App.4th 566, 575.)
3. Analysis
Our
review of the complaint and the evidence submitted by Evan in support of his
anti-SLAPP action (since Daniel did not submit any evidence) shows that but for
Evan’s litigation-related activities—the attempt to evict Daniel from Kathryn’s
home by serving a three-day notice to quit and to restrict his contact with
Kathryn while she was in the assisted living facility by a TRO, as well as by
seeking other court orders—Daniel’s cause of action for breach of fiduciary
duty would have no basis. Daniel’s
general allegations that Evan breached his fiduciary duty by failing to protect
Daniel’s interests and by placing the interests of others ahead of Daniel’s
interests do not specify any other activities by Evan as the basis for those
claims. Evan’s anti-SLAPP motion
therefore satisfied the requirement that he make a “ ‘threshold showing that the
challenged cause of action is one arising from protected
activity. . . .’ †(
We
are not convinced by Daniel’s argument that the anti-SLAPP statute does not
apply in this case because he contends that Evan’s acts constitute “a form of
extortion,†which the California Supreme Court ruled in Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley) is not protected under the anti-SLAPP statute. Flatley
established that where “the defendant concedes, or the evidence
conclusively establishes, that the assertedly protected speech or petition
activity was illegal as a matter of law, the defendant is precluded from using
the anti-SLAPP statute to strike the plaintiff’s action.†(Id.
at p. 320; see also Price v.
Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 971 [the
term “illegal†in Flatley means
criminal].)
Here,
Evan has not conceded, and the evidence does not establish, that his assertedly
protected activities constitute illegal extortion. “ ‘Extortion is the obtaining of property
from another, with his consent, or the obtaining of an official act of a public
officer, induced by a wrongful
under color of official right.’ (Pen.
Code, § 518; see also [Flatley,
supra, 39 Cal.4th at p. 326].â€
(Chan v. Lund (2010) 188
Cal.App.4th 1159, 1169-1170.) There is
no evidence or even an allegation to support Daniel’s contention that Evan’s
protected activities constitute extortion.
In
his reply brief, Daniel also argues for the first time that the cause of action
for fiduciary duty cannot be stricken because it does not arise from the
exercise of First Amendment rights in connection with a public issue or an
issue of public interest, as required by section 425.16, subdivision (e). “ ‘[T]he rule is that points raised in
the reply brief for the first time will not be considered, unless good reason
is shown for failure to present them before.’ †(Neighbours v. Buzz Oates Enterprises
(1990) 217 Cal.App.3d 325, 335, fn. 8.)
Here, Daniel offers no reason why he did not include all of his
arguments in his opening brief. However,
we will briefly consider the issue raised in the reply brief.
A
public issue within the meaning of section 425.16 includes speech activity that
takes place before, during, or in connection with an “official proceeding
authorized by law.†(§ 425.16, subd.
(e)(1), (e)(2); Briggs v. Eden Council
for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116-1117.) “Statements and writings made in connection
with litigation are therefore covered by the anti-SLAPP statute, and that
statute does not require any showing that the litigated matter concerns a
matter of public interest.
[Citations.]†(
Professional Corp. (2009) 171 Cal.App.4th 901, 907.) Since, as we have discussed, the cause of
action for breach of fiduciary duty is based upon Evan’s protected
litigation-related activities, he was not required to show that those
activities concerned a matter of public interest.
We
reiterate that the California Supreme Court has instructed that “ ‘[o]nly a
cause of action that satisfies both prongs of the anti-SLAPP
statute—i.e., that arises from protected speech or petitioning and lacks
even minimal merit—is a SLAPP, subject to being stricken under the
statute.’ [Citation.]†(Soukup,
supra, 39 Cal.4th at pp.
278-279.) In this case, we have
determined that Evan’s anti-SLAPP motion satisfied the first prong because the
motion made a sufficient showing that the cause of action for breach of
fiduciary duty arises from protected petitioning activity. Under the second prong, plaintiff has the
burden to demonstrate a probability of prevailing on the claim. (§ 425.16, subd. (b)(1);
We need not determine whether the second prong has been met,
however. In his opening brief, Daniel
asserts that he was not required to establish a probability of prevailing on
the merits of the cause of action for fiduciary duty and he has made no effort
to do so. For that reason, we need not
address Daniel’s challenges to the affirmative defenses of res judicata or
collateral estoppel that Evan asserts.
We
therefore conclude that the cause of action for breach of fiduciary duty
constitutes a SLAPP and trial court did not err in granting Evan’s anti-SLAPP
motion to strike the complaint.
D. Attorney’s
Fees
1. Background
The
record reflects that the trial court initially granted Evan’s ex parte
application for attorney’s fees on November 30, 2010. Daniel filed a motion to vacate the
attorney’s fees order that the trial court granted without prejudice to a new
attorney’s fees request.
Thereafter,
in June 2011, Evan filed a motion for attorney’s fees and costs pursuant to
section 425.16, subdivision (c). The
motion was supported by a memorandum of points and authorities (which was not
included in the record), as well as the declarations of Evan’s former attorney,
James R. Stupar, and his current attorney Paul Sheng.
In
his declaration, attorney Stupar stated that he had spent a total of “27.8
hours conducting research, fact investigation, and preparation of [Evan’s]
Anti-SLAPP Motion for a total of $10,425.â€
Attorney Sheng stated in his declaration that attorney Stupar’s hourly
billing rate was $375 and that the hourly billing rates for his law firm,
Clapp, Moroney, Bellagamba, Vucinich, Beeman & Scheley, were $155 for
partners and $145 for associates, which were “very reasonable rates for
attorneys practicing in the San Francisco Bay Area.†Sheng also stated that the hours expended by
his law firm with respect to Evan’s anti-SLAPP motion were as follows: (1) 82.7 hours of partner time, for a total
of $12,818.50 in attorney fees; and (2) 48.5 hours of associate time, for a
total of $7,032.50. Based on this
billing information, Evan sought a total award of $31, 976.74 in attorney fees
and costs, which included Stupar’s attorney’s fees claim of $10,425.
The
record does not reflect that Daniel filed opposition to Evan’s June 2011 motion
for attorney’s fees. However, the record
includes Daniel’s May 2011 opposition to Evan’s prior application for
attorney’s fees. In that opposition,
Daniel argued that Evan’s supporting evidence was insufficient to support his
attorney’s fees claim.
A
hearing on Evan’s June 2011 motion for attorney’s fees was held on July 15,
2011. The record does not include a
reporter’s transcript for that hearing.
On August 8, 2011, the trial court issued its order granting Evan’s
motion as follows: (1) Evan was the
prevailing party and therefore he was entitled to an award of mandatory
attorney’s fees pursuant to section 425.16, subdivision (c)(1); (2) the court
had reviewed the documents submitted by the parties and “made a complete and
thorough independent review of the file in this actionâ€; (3) the court did not
receive and therefore did not review Evan’s “fee recordsâ€; (4) the court
exercised its discretion to award Evan “a reasonable amount of attorneys’ feesâ€
in the amount of $20,000 and also awarded costs of $250; and (5) the court
vacated its prior order awarding Stupar attorney’s fees of $17,831.25 and costs
of $683.61.
Before
turning to Daniel’s appellate challenge to the August 8, 2011 attorney’s fees
order, we will review the rules governing the award of mandatory attorney’s
fees to the prevailing party on an anti-SLAPP motion.
2. Mandatory Attorney’s Fees
Section
425.16, subdivision (c) provides that a defendant who prevails on a special
motion to strike is “entitled to recover his or her attorney’s fees and
costs.†(§ 425.16, subdivision
(c)(1).)
instructed that “any SLAPP defendant who brings a successful motion to strike
is entitled to mandatory attorney fees.â€
(Ketchum v. Moses (2001) 24
Cal.4th 1122, 1131 (Ketchum).) However, “the fee ‘provision applies only to
the motion to strike, and not to the entire action.’ †(S. B.
Beach Properties v. Berti (2006) 39 Cal.4th 374, 381, citing Sen. Com. on
Judiciary, Analysis of Sen. Bill No. 1264 (1991-1992 Reg. Sess.).)
The
award of fees may include “the fees incurred in enforcing the right to
mandatory fees under Code of Civil Procedure section 425.16.†(Ketchum,
supra, 24 Cal.4th at p.
1141.) In other words, the defendant may
recover those fees “ ‘necessary to establish and defend the fee claim.’
†(Ibid.) Recoverable attorney’s fees under section
425.16, subdivision (c), also include those incurred on appeal. (Carpenter
v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461;
Susman (1996) 47 Cal.App.4th 777, 785 (Dove Audio).)
Although
the prevailing defendant is entitled to attorney’s fees, the amount of the fee
award is left to the trial court’s discretion.
(Ketchum, supra, 24 Cal.4th at p. 1134.)
In exercising that discretion, the trial court should apply the lodestar
adjustment approach to determine the amount.
(Id. at p. 1136.) “[T]he lodestar is the basic fee for
comparable legal services in the community; . . .†(Id.
at p. 1132.) The trial court calculates
the lodestar figure “based on the reasonable hours spent, multiplied by the
hourly prevailing rate for private attorneys in the community conducting
noncontingent litigation of the same type.
[Citation.]†(
The
lodestar figure may be adjusted based on various factors, including
“(1) the novelty and difficulty of the questions involved, (2) the skill
displayed in presenting them, (3) the extent to which the nature of the
litigation precluded other employment by the attorneys, [and] (4) the
contingent nature of the fee award.
[Citation.]†(
“To the extent a trial court is concerned that a particular award is
excessive, it has broad discretion to adjust the fee downward or deny an
unreasonable fee altogether.†(
We
review the trial court’s determination of the appropriate fee for an abuse of
discretion. (Ketchum, supra, 24
Cal.4th at pp. 1130, 1134, 1138; see also Dove
Audio, supra, 47 Cal.App.4th at
p. 785.) “ ‘[T]he appropriate test
for abuse of discretion is whether the trial court exceeded the bounds of
reason.’ [Citation.]†(Dove
Audio, supra, at p. 785.) We also recognize that “[t]he ‘experienced
trial judge is the best judge of the value of professional services rendered in
his [or her] court, and while his [or her] judgment is of course subject to
review, it will not be disturbed unless the appellate court is convinced that
it is clearly wrong.’ [Citations.]†(Serrano
v. Priest (1977) 20 Cal.3d 25, 49 (Serrano).)
3. The Parties’ Contentions
Daniel
argues that the trial court’s award of attorney’s fees is unreasonable because
the hours of attorney time claimed in Sheng’s declaration in support of the
June 2011 attorney’s fees motion are inconsistent with the hours claimed by his
law firm in a prior attorney’s declaration filed in 2010. Additionally, Daniel contends that the award
of attorney’s fees is not supported by substantial evidence because Evan’s
motion for attorney’s fees was not supported by billing records showing the
work performed, and also because Sheng’s declaration lacks sufficient personal
knowledge. Daniel further argues that some
of the work performed by Evan’s attorneys was unnecessary, the amount of
attorney’s fees claimed is excessive, and “privilege†cannot be invoked by the
party moving for attorney’s fees.
In
response, Evan contends that the appeal of the attorney’s fees award is
premature because the notice of appeal was filed on May 9, 2011, before the
attorney’s fee award was entered on August 8, 2011. Alternatively, Evan argues that the trial
court did not abuse its discretion because the declarations of attorney Sheng
and attorney Stupar provided “verification for those hours related to Evan’s
anti-SLAPP motion, costs incurred, and an itemization of the costs.â€
4. Analysis
We
first consider the threshold issue of the appealability of the attorney’s fees
award. The general rule is that “[a]
postjudgment order awarding attorney fees is separately appealable. [Citations.]
The failure to appeal an appealable order ordinarily deprives the
appellate court of jurisdiction to review the order. [Citation.]
However, when the judgment awards attorney fees but does not determine
the amount, the judgment is deemed to subsume the
awarded, and an appeal from the judgment encompasses the postjudgment
order. [Citation.]†(R. P. Richards,
Inc. v. Chartered Construction Corp. (2000) 83 Cal.App.4th 146, 158 (
The
trial court stated in its March 7, 2011 order
granting the anti-SLAPP motion that “[f]ees are mandatory per the
Statute; Moving Party to proceed on an Ex Parte Application basis to present
request for reasonable attorneys fees and costs, including notice of
application hearing.†Accordingly, the
court awarded attorney’s fees to Evan but did not determine the amount until
the court awarded attorney’s fees of $20,000 in its August 8, 2011 order. We believe that Daniel’s appeal from the
March 7, 2011 therefore encompassed the subsequent August 8, 2011 order, and we
may consider the merits of his appeal from the attorney’s fees award. (See R.
P. Richards, supra, 83 Cal.App.4th at p.158.)
We
observe that the record does not reflect that Daniel opposed Evan’s June 2011
motion for attorney’s fees, a failure that would ordinarily result in
forfeiture of the issues he raises in challenging the attorney’s fees award on
appeal. (See Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589,
1602.) However, even assuming that
Daniel has not forfeited his appellate challenge, we find no merit in his
contention that the trial court erred in awarding $20,000 in attorney’s fees.
To
begin with, Daniel does not address the trial court’s significant reduction of
Evan’s attorney’s fees claim from $31, 976.74 to $20,000. He therefore makes no specific showing that
the amount of $20,000 exceeds the bounds of reason. (Dove
Audio, supra, 47 Cal.App.4th at
p. 785.)
Moreover,
we find no merit in Daniel’s contention that the attorney’s fees award is not
supported by substantial evidence due to the lack of billing records and
assertedly inadequate attorney declarations.
“ ‘Although a fee request ordinarily should be documented in great
detail, it cannot be said . . . that the absence of time records and billing
trial court of substantial evidence to support an
award. . . .’
[Citation.] ‘[T]he verified time
statements of [an] attorney[ ], as [an] officer[ ] of the court, are entitled
to credence in the absence of a clear indication the records are
erroneous.’ [Citation.]†(City
of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784-785.)
In
other words, as this court has stated, “ ‘The
make its own
reasonable worth of
the work done
in light of
of counsel’s declaration
unsubstantiated by time
records and billing
statements. Although a
should be documented
in great detail,
it cannot be
the absence of
time records and
billing statements deprived
the trial court
of substantial evidence
to support an
award; we do
[Citation.]†(
167 Cal.App.4th 1379, 1398.)
Here,
Evan’s motion for attorney’s fees was supported by the verified declarations of
attorney Sheng and attorney Stupar regarding the number of hours spent by
Evan’s attorneys with respect to the anti-SLAPP motion and the hourly billing
rates of the attorneys who performed the work.
The trial court stated in its order that the court had reviewed the
documents submitted by the parties and “made a complete and thorough
independent review of the file in this action,†and determined that a
reasonable amount of attorney’s fees was $20,000. We reiterate that “[t]he ‘experienced trial
judge is the best judge of the value of professional services rendered in his
[or her] court, . . .’ †(
Since Daniel has failed to establish that the attorney’s fees order was
“clearly wrong,†we will affirm the order.
(Ibid.)
The
March 7, 2011 order granting the special motion to strike the first amended
complaint and the August 8, 2011 order awarding attorney’s fees are
affirmed. Costs on appeal are awarded to
respondant Evan Auld-Susott.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING
P.J.
__________________________
Márquez, J.
name="_ftn1" title=""> [1]
Since the Susott family members have the same or a similar surname, we will
refer to them by their first names for purposes of clarity and not out of
disrespect.
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
