Second District, Division 8 Remands for Reduction Due to “Doubling Up” And Augmentation For Prior Fees That May Have Avoided Repetitive Work.
Two sets of successful defendant attorneys were awarded, respectively, $100,000 and $50,000 for their efforts in obtaining SLAPP wins for their clients. Each set of attorneys had two counsel involved (with Cumis counsel being the second set of attorneys for one defendant). Losing plaintiff appealed both orders, obtaining reversals and a remand with further directives by the Second District, Division 8 in Jarrow Industries, Inc. v. Kokozian & Nourmand, LLP, Case No. B199597 (2d Dist., Div. 8 May 11, 2009) (unpublished).
The appellate panel was not persuaded that duplication of efforts were avoided based on the existence of two sets of counsel representing each respective defendant. Because of this “doubling up,” the Court of Appeal believed it was “incumbent” on defendants “to demonstrate that such double representation did not unnecessarily and unreasonably duplicate the efforts and the resulting fees” (slip opn., at pp. 8-9)—a showing not made on appeal. One of the defendants argued that two attorneys were necessary, because one was Cumis counsel. Not so. “But such a right does not mean all fees incurred by both Cumis counsel and insurer-retained counsel must automatically be reimbursed upon the insured’s successful motion to strike if the work by the two sets of counsel resulted in unnecessary and unreasonable duplication of effort and fees.” (Slip Opn., at p. 9 n. 1.)
Aside from remanding to explain away or reduce the duplication, the appellate panel also wanted to make sure that attorneys were not denied possible reimbursement for work in a prior dismissed action that may have avoided some cross-over work in the case before it. A remand was ordered on this issue, also.
Finally, the Jarrow Industries court also required one attorney to make a more exact accounting of his time, rejecting two sparse and vague declarations in which he totaled hours and indicated his hourly rate. “ . . . without some sort of accounting, including the dates services were rendered, we are unable to distinguish between his work and that of other counsel in order to determine whether there was any unnecessary and avoidable duplication of effort and fees.” (Slip Opn., at p.10.)
BLOG UNDERVIEW—For some of you purists and very perceptive readers, you might ask how this decision squares with Isaac v. Lozano, a case out of the same division on the same day indicating that contemporaneous time records were not required (and with attorney declarations sufficing) — and the subject of an earlier post on our blog. We believe that there is a key distinction in SLAPP cases that require much more rigorous substantiation—the fee proponent must show that the claimed fees related only to work for the SLAPP motion, not other defense efforts in the case. This does require more stringent detail in the substantiation submitted to the trial court for purposes of obtaining a SLAPP fee award.