Lucky United Properties Investment v. Lee

Filed 8/25/08 Lucky United Properties Investment v. Lee CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Cross-complainants and appellants Lucky United Properties Investments, Inc., and Chin Teh Shih (also known as Jessie Woo), as trustee for the Woo Family 2000 Trust (collectively, appellants), appeal from the trial courts order awarding attorney fees and costs to cross-defendant and respondent Albert Lee (Lee). Appellants contend the court abused its discretion in awarding Lee $25,500 in attorney fees for work related to his successful anti-SLAPP (strategic lawsuit against public participation) motion. (Code Civ. Proc.,  425.16.)^[1] We disagree and affirm.

BACKGROUND

The underlying lawsuit, originally filed in 1999, arose out of a contract dispute over the purchase of real property in San Francisco.^[2] Eric Lien (Lien) initiated the instant case in July 2006, filing a complaint against appellants and their attorney, Mattaniah Eytan, for malicious prosecution. In January 2007, appellants filed a cross-complaint, also for malicious prosecution, against Lien, Pi-Ching Yen (Yen), and their attorney, Lee.^[3] Appellants cross-complaint alleged that Lien and Yen, through Lee, acted maliciously and without probable cause by (1) continuing to prosecute their underlying cross-complaint after remand (first cause of action), and (2) filing and maintaining certain claims in their underlying cross-complaint related to tax evasion and breach of contracts with third parties (second cause of action).

In February 2007, Lien filed a special motion to strike appellants cross-complaint for malicious prosecution pursuant to section 425.16. Following briefing and oral argument, the court granted Liens anti-SLAPP motion in April 2007, stating that [appellants] have not carried their burden of showing a likelihood of success on the merits as to the first cause of action because [Lien] did not continue litigating any cross-claim beyond what he convinced the judges to allow, or as to the second cause of action because [appellants] have not presented admissible evidence establishing a lack of reasonable grounds to bring the tax evasion claim. The record does not indicate that Lien filed a motion for attorney fees and costs. Appellants filed an appeal of the courts order on Liens anti-SLAPP motion, and we affirmed. (Lien v. Lucky United Properties Investment, Inc. (2008) 163 Cal.App.4th 620.)

In May 2007, Lee brought his own special motion to strike appellants cross-complaint. The court granted the motion, striking the cross-complaint on the same grounds as . . . Liens prior . . . section 425.16 motion and on the additional basis that [appellants] have failed to present evidence of . . . Lees malice. Appellants filed a separate appeal of the courts order on Lees anti-SLAPP motion, but later requested dismissal of their appeal. (Lucky United Properties Investment, Inc. v. Lee (June 16, 2008, A119134 [nonpub. order of dismissal].)

In August 2007, Lee filed a motion for attorney fees and costs as authorized by section 425.16, subdivision (c). Lee requested an award of $46,575 in attorney fees for work related to his successful anti-SLAPP motion, claiming 124.2 hours of work at a rate of $375 per hour. Lee also claimed $907.50 in costs. The motion was supported by extensive documentation, including itemized time records detailing the amount of time spent and the nature of the work performed, and declarations describing the experience and expertise of Lees attorneys, Daniel J. Kessler (Kessler) and Benjamin R. Seecof (Seecof).

Appellants opposed the motion, contending Lees fee request was unreasonable and excessive. Appellants submitted a declaration from Brand Cooper (Cooper), an attorney who has testified as an expert on fee dispute matters. Cooper opined that Lees anti-SLAPP motion could have been reasonably prepared in 12 to 16 hours at a reasonable rate of $200 per hour, yielding a total fee award of $2,400 to $3,200. Following oral argument, the court awarded Lee $25,500 in fees, based on 85 hours of attorney time at a rate of $300 per hour, and $907.50 in costs.

Appellants filed a timely appeal from the order awarding attorney fees and costs.

DISCUSSION

Appellants sole contention on appeal is that the court abused its discretion in awarding Lee an unreasonably large amount of attorney fees for work related to his successful anti-SLAPP motion.

Section 425.16, subdivision (b), provides in relevant part: A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

In any action subject to [a special motion to strike], a prevailing defendant . . . shall be entitled to recover his or her attorneys fees and costs. ( 425.16, subd. (c).) The award of attorney fees and costs under section 425.16, subdivision (c), is mandatory. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) [T]he fee setting inquiry in California ordinarily begins with the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys fee award. [Citation.] The reasonable hourly rate is that prevailing in the community for similar work. [Citations.] 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.] (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

We review the trial courts award of attorney fees under section 425.16 for abuse of discretion. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)   While the concept abuse of discretion is not easily susceptible to precise definition, the appropriate test has been enunciated in terms of whether or not the trial court exceeded  the bounds of reason, all of the circumstances before it being considered. . . .  [Citations.] [Citation.] A decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review. [Citation.] [Citation.] (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1249-1250.)

We conclude the court did not abuse its discretion in awarding Lee $25,500 in attorney fees based on 85 hours of work at a rate of $300 per hour. Lee requested compensation for 124.2 hours of work at an hourly rate of $375, and supported his request with declarations from Kessler and Seecof and itemized time records detailing 114.2 hours of work performed as of the date the fee motion was filed.^[4] After reviewing Kesslers and Seecofs declarations and time records, the court reduced the requested fees by nearly half, from $46,575 to $25,500. The court stated, I have looked at the time counsel says has been spent. I think, first of all, the [hourly] rate that was actually charged is the appropriate rate. I think its a reasonable rate. I think it reflects the commercial realities, and I think that 85 hours is a reasonable amount of time that discounts the time that in fact was spent by approximately 30 hours. My review of the records suggests that thats reasonable.

Appellants contend that the time Seecof spent on the anti-SLAPP motion was excessive because Lees moving papers were largely cribbed from earlier briefs and his reply papers stated that appellants opposition had not presented anything new. Although Lees moving papers borrowed sections from the moving papers in Liens earlier, successful anti-SLAPP motion, they also contained several pages of new material, including an argument not advanced by Lien that appellants had failed to allege Lee acted with malice. And, as appellants concede, Lee made several arguments in his reply papers that Lien had not made in his earlier anti-SLAPP motion. For example, Lee contended that appellants had failed to present evidence of damages and had failed to present evidence that Lee acted with malice, and that one of the claims upon which appellants malicious prosecution action was based had not terminated in their favor on the merits. Appellants assert that even a cursory review of those arguments and the way they were made reveals that they took little time. Appellants urge us to substitute our judgment for that of the trial court and conclude that the documented time Seecof spent on the moving and reply papers was unreasonable. This we cannot do. (Maughan v. Google Technology, Inc., supra, 143 Cal.App.4th at pp. 1249-1250.)^[5]

Appellants next assert that the time Seecof spent reviewing files in the underlying case was completely unnecessary. Appellants argue that their malicious prosecution claims were limited in scope and did not require review of the entire case file, and that Lee, as Lien and Yens attorney in the underlying case and co-counsel in the instant case, should have directed Seecof to any relevant documents in the case file. The time records submitted in support of Lees motion do indicate Seecof spent a number of hours reviewing files.^[6] The trial court found the time spent reviewing files entirely reasonable: The review of files is not inappropriate nor obviously did it take zillions of hours. . . . Obviously, discretion was used with respect to that and it was reviewed to the extent necessary, and I think a review of the record was appropriate under the circumstances . . . . We conclude the court did not abuse its discretion in so finding. As Seecof explained in his declaration, the files in the underlying litigation consisted of 84 volumes, and some review of the files was necessary to prepare an effective anti-SLAPP motion.

Furthermore, in arguing that Seecof spent an excessive amount of time reviewing files and drafting the moving and reply papers, appellants ignore the fact that the 85 hours of compensated time was significantly less than the 114.2 hours actually spent by Lees counsel in this case. Even assuming Seecof spent some unnecessary hours reviewing files or drafting the anti-SLAPP motion, appellants have not identified 30 hours of excess time. (See Avikian v. WTC Financial Corp. (2002) 98 Cal.App.4th 1108, 1119.)

Appellants also suggest that compensation for 85 hours of work was unreasonable because it was far higher than the 12 to 16 hours appellants expert, Cooper, opined was appropriate for such a motion. However, it is well established that  [t]he value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citation.]  (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096.) The court was free to conclude, based on its own expertise and contrary to Coopers opinion, that the 85 hours spent on Lees anti-SLAPP motion was reasonable.

Appellants further contend that the $25,500 fee award was excessive because it was significantly higher than an earlier fee award to appellants. In the instant case, appellants filed their own successful anti-SLAPP motion as to Liens complaint for malicious prosecution, and were awarded $3,188 in fees. This $3,188 in fees was, of course, awarded for work on a different anti-SLAPP motion responding to a different complaint, and does not dictate the fees to be awarded for Lees successful anti-SLAPP motion.

Finally, appellants argue that the $300 hourly rate adopted by the trial court was unreasonable. Appellants note that this $300 rate was contrary to Coopers expert opinion that $200 per hour was a reasonable rate for this kind of work, and was higher than the hourly rate charged by appellants attorneys in their earlier anti-SLAPP motion. Again, we conclude the court acted well within its discretion.Leerequested compensation for his attorneys at a rate of $375 per hour, and supported the request with declarations describing the experience and expertise of Kessler and Seecof. As discussed above, the court was free to conclude, contrary to Coopers opinion, that a $300 hourly rate was reasonable. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096.) And, again, the hourly rate received by appellants attorneys in their earlier anti-SLAPP motion does not dictate the reasonable hourly rate for Lees attorneys in his anti-SLAPP motion.

DISPOSITION

The judgment is affirmed. Lee is entitled to his costs on appeal.

SIMONS, J.

We concur.

JONES, P.J.

REARDON, J.^*

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^[1] All undesignated section references are to the Code of Civil Procedure.

^[2] The facts and procedural history of the underlying lawsuit are set out in considerable detail in our unpublished opinion, Woo v. Lien (Oct. 2, 2002, A094960), and we will not repeat them in full here.

^[3] Lien and Yen are not parties to this appeal.

^[4] Seecofs declaration stated that he and Kessler had performed 114.2 hours of work on the anti-SLAPP motion and fee motion as of the date the fee motion was filed, and estimated that an additional 10 hours would be performed on the reply papers and oral argument on the fee motion.

^[5] Appellants also claim that Seecof spent 30.3 hours writing a memorandum of points and authorities which he never filed. Seecofs itemized time records indicate 30.3 hours spent outlining, researching, drafting and revising the moving papers for the anti-SLAPP motion. The last of these billing entries states, decide to revise memorandum to make much shorter. The trial court could reasonably conclude from this entry that Seecof engaged in the normal process of drafting and revision, and not, as appellants assert, that Seecof spent 30 hours writing a completely unnecessary memorandum, one which he never filed.

^[6] Seecofs time records contain seven entries, totaling 36.2 hours, which list file or document review in the task description. However, a number of these entries also list other tasks, including review of the cross-complaint, research, and outlining of issues. Thus, it appears somewhat less than 36.2 hours was spent on file review.

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