Affirmance of Lower Court’s Order Dictated Under Abuse of Discretion Review Standard.
Cross-complainants lost two anti-SLAPP motions directed against their malicious prosecution complaints. As we have seen before, fee awards of some nature are mandatory to prevailing defendants in these situations under Code of Civil Procedure section 425.16(c). See Ketchum v. Moses, 24 Cal.4th 1122, 1131 (2001) [one of our Leading Cases]. First prevailing cross-defendant (not involved in the case we discuss) garnered a $3,188 fee award. Second set of prevailing cross-defendants (the respondents in the case we discuss) requested $46,575 in fees on the anti-SLAPP motion, broken down to 124.2 hours of work at $375 per hour. Extensive documentation and declarations supported the fee motion. In opposition, losing cross-complainants submitted a declaration from Brand Cooper, an attorney who has frequently testified on fee dispute matters, opining that the anti-SLAPP motions should have only taken 12-16 hours at a rate of $ 200 per hour, yielding a fee total of $2,400-$3,200. The trial court eventually awarded prevailing cross-defendants fees of $25,500, based on 85 hours at a rate of $300 per hour (plus $907.50 in costs). Cross-complainants appealed and lost, unable to surmount the formidable abuse of discretion review standard.
In Lucky United Properties Investment, Inc. v. Lee, Case No. A120203 (1st Dist., Div. 5 Aug. 25, 2008) (unpublished), Justice Simons—writing for a 3-0 panel—affirmed under the abuse of discretion standard. (See Maughan v. Google Technology, Inc., 143 Cal.App.4th 1242, 1249-1250 (2006).) The appellate court focused on the trial court’s review of the documentation and subsequent reduction of 30 hours from the award as well as using a lodestar hourly rate that was $75 per hour less.
Because the losers had to concede that the respondents made arguments different than they had in the past or different from the first prevailing cross-defendant, Justice Simons put little weight on the argument that the initial $3,188 fee award should be given undue attention as far as adjudging reasonableness of the award below.
Losers also attacked time spent on reviewing files. This particular sortie was repelled by the fact that there were 84 volumes of litigation files to review.
The principal argument on appeal was that the lower court should have credited Mr. Cooper’s analysis. Not even close, under the abuse of discretion standard. The lower court was free to conclude that hours and hourly rates contrary to Mr. Cooper’s analysis should be credited, which they were.