Second District, Division Eight Finds No Trope Prohibition on Fee Recovery.
Witte v. Kaufman, 141 Cal.App.4th 1201, 1211 (2006) establishes that the law firm representing itself, with no attorney-client relationship, is not entitled to attorney’s fees for winning a SLAPP motion. This rule is based upon the holding in Trope v. Katz, 11 Cal.4th 274, 292 (1995), where the same principle was articulated in a breach of contract action and has been extended to other analogous areas. However, is the result different if the law firm represents individual attorneys in the firm in a SLAPP motion and wins on behalf of the individuals?
The Second District, Division 8, in Cesaro v. Quinn Emanuel Urquhart Oliver & Hedges, Case No. B206865 (2d Dist., Div. 8 June 9, 2009) (unpublished), answered “yes” to this issue—fees were awardable in this situation.
The appellate panel found that, unlike Witte, the individual attorneys were represented by their firm and there was an attorney-client relationship between them and the firm. It was immaterial that the individuals did not pay attorney’s fees and did not incur an obligation to pay fees, with the Court of Appeal citing as support such decisions as Rosenauer v. Scherer, 88 Cal.App.4th 260, 284 (2001).
In Cesaro, five SLAPP hearings were held, many of them raising different issues that required supplemental briefing. After individual attorneys prevailed, they sought SLAPP fees of $150,840 and costs of $10,138.12. (In this request, the individual attorneys automatically reduced the fees by 25% to reflect the work done on behalf of the defendant law firm itself as part of the process.) The trial court accepted this reduction (which brought the request down to 266.9 hours). The lower court also pared down the requested hourly fees ranging from $550-675 (average rate of $565 per hour) to a “blended law firm rate” of $350 per hour. That resulted in the actual fee award of $93,415 plus $2,220.60 in costs.
Although plaintiff claimed the awarded fees were still excessive on appeal, the appellate panel felt otherwise. The SLAPP proceeding under consideration was complex, as evidenced by the five hearings (actually six, because one was postponed because plaintiff had filed papers in the wrong department). The hours were not excessive given the numerous hearings, tempered by the astute reductions of the trial court. Plaintiff complained about two lawyers charging for the same function, but this was rebuffed as follows: “[This] is not double billing because, as respondents correctly point out, it is not unusual for two lawyers to work on a single project.” (Slip Opn., at p. 6.)
BLOG OBSERVATION—This case highlights that fee claimants can get good mileage and added credibility points by voluntarily reducing requests where time was spent for other parties or on unsuccessful issues. These reductions frequently resonate with both trial and appellate jurists, who can more easily dismiss “excessiveness” challenges given the upfront fee reductions made by the fee claimants themselves.