The opinion
Filed 5/18/16; pub. order 6/16/16 (see end of opn.)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
569 EAST COUNTY BOULEVARD LLC et D068538
al.,
Plaintiffs and Respondents,
(Super. Ct. No.
v. 37-2014-00025797-CU-MC-CTL)
BACKCOUNTRY AGAINST THE DUMP,
INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, John S.
Meyer, Judge. Affirmed.
Law Offices of Stephan C. Volker, Stephan C. Volker, Daniel Garrett-Steinman
and Jamey M.B. Volker for Defendant and Appellant.
Mark M. Clairmont and Paul W. Pitingaro for Plaintiffs and Respondents.
Plaintiff 569 East County Boulevard, LLC, and others (plaintiffs) filed an action
against numerous entities and individuals. Plaintiffs' complaint named Backcountry
Against the Dump, Inc. (BAD) as a defendant and alleged a single cause of action against
BAD for unlawful interference with prospective economic advantage. BAD moved to
strike the action pursuant to Code of Civil Procedure section 425.16,1 commonly referred
to as the anti-SLAPP (strategic lawsuit against public participation) statute. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) After BAD's anti-SLAPP
motion was granted, it sought attorney fees and costs in a total amount of $152,529.15
pursuant to section 425.16, subdivision (c)(1). Plaintiffs did not contest defendant's
entitlement to a fees and costs award, but argued the amount sought was exorbitant. The
court found BAD was entitled to attorney fees and costs incurred for the successful anti-
SLAPP motion, but awarded a reduced amount of $30,752.86. BAD appeals from that
order, arguing the reduced award was an abuse of discretion.
I
BACKGROUND
A. The Underlying Action and Anti-SLAPP Motion
Plaintiffs' First Amended Complaint alleged a single cause of action against BAD
for unlawful interference with prospective economic advantage.2 BAD moved to strike
the action under the anti-SLAPP statute, arguing the action sought damages from BAD
caused by BAD's petitioning activity, and plaintiffs could not demonstrate probable
1 All statutory references are to the Code of Civil Procedure unless otherwise
specified.
2 Plaintiffs' complaint apparently alleged numerous claims against entities and
individuals other than BAD, but BAD has elected to omit a copy of the operative
pleading from the appellant's appendix. (See fn. 7, post.)
2
success on the merits.3 The court granted the motion to strike plaintiffs' cause of action
against BAD alleging unlawful interference with prospective economic advantage.4
B. The Attorney Fees and Costs Motion
BAD sought attorney fees and costs as the prevailing party, pursuant to section
425.16, subdivision (c)(1), and requested a total amount of $152,529.15. The request was
supported by a declaration from BAD's counsel, Mr. S. Volker, arguing the appropriate
hourly rate for his time (as lead attorney) was $750 per hour for himself as lead attorney,
and the appropriate hourly rate for three fifth-year associates was $350 per hour. He
asserted he spent over 170 hours on the merits of the work necessary to the anti-SLAPP
motion, and that his associates spent over 40 additional hours on the merits of the work
necessary to the anti-SLAPP motion. He also asserted he spent another 9.4 hours on the
fee motion itself.
3 BAD also demurred to other causes of action asserted in the complaint, including
nine causes of action not directed at BAD. Although some of those claims may have
been directed at Donna Tisdale (see fn. 7, post), it appears the substantive basis for
BAD's demurrer was largely based on defenses available to her in her capacity as an
elected official (rather than in her other capacities as an private citizen or as an officer of
BAD), because the demurrer raised such issues as the statute of limitations under
Government Code section 65009, subdivisions (c) and (d), the official and legislative
immunities protections enjoyed by elected officials (Gov. Code, §§ 820.9, 822.2), and the
bars of the Government Claims Act (Gov. Code, § 905 et seq.) and exhaustion of
remedies requirements (Gov. Code, § 91007).
4 That ruling was apparently based on the conclusion BAD had met its threshold
burden under the anti-SLAPP statute and thereby shifted to plaintiffs the burden to show
likely success on the merits (Zamos v. Stroud (2004) 32 Cal.4th 958, 965; Stewart v.
Rolling Stone LLC (2010) 181 Cal.App.4th 664, 679), and plaintiffs had not shown any
economic relationship had been disrupted.
3
Plaintiffs raised numerous objections to the amount of the request, asserting (1)
the hourly rate charged by BAD's attorneys was excessive for the nature of the case, (2)
BAD's fee request included billings for work unrelated to the anti-SLAPP motion, or
unnecessary, or administrative in nature or duplicative or padded, and (3) BAD's fee
request included fees premised on vague time entries or "block-billed" time. For all of
these reasons, plaintiffs argued, the amount of the fee and cost award requested by BAD
was unreasonable.
The court first determined a reasonable hourly rate for BAD's attorneys was $275
dollars per hour.5 The court then turned to the question of the reasonable hours expended
on the anti-SLAPP motion. After noting it had "culled through the billing statement"
submitted by BAD in support of its fee request, the court observed that many of the hours
listed in that statement encompassed work "on the demurrer, coordinating with other
counsel, work related to the [case management conference], and duplicative time with
5 The court premised its hourly rate determination on its earlier determination
concerning the reasonable hourly rate for the work performed by the attorney who
separately represented Ms. Tisdale in her anti-SLAPP motion directed at the same
pleadings. The attorney separately representing Ms. Tisdale had 27 years of experience
practicing in San Diego and charged $275 per hour, and the court determined there was
"no reason to deviate from this determination" for BAD's counsel, who was "equally
qualified" as Tisdale's counsel. The court, after granting Tisdale's anti-SLAPP motion,
ultimately awarded her counsel $71,485 as reasonable attorney fees. In the same
proceeding, the court also considered the proper fee award to the attorneys for numerous
other parties to this action (i.e. Endangered Habitat League, Inc., Endangered Habitats
Conservancy, Inc., Protect Our Communities Foundation, Inc., and Michael Beck) who
occupied a similar position as BAD: plaintiffs asserted a single cause of action against
them, and they successfully moved to dismiss that claim under the anti-SLAPP statute.
The court awarded attorney fees of less than $30,000 to these defendants.
4
[cocounsel]." The court also observed that, although BAD's counsel "express[ed]
confusion with the pleadings, there was only one cause of action that was the subject of
the anti-SLAPP motion and the issues were not especially novel or complex." The court
ruled 103.6 hours was a reasonable amount of time spent on the anti-SLAPP motion and
the fee motion, and awarded $28,290 as fees.
II
ANALYSIS
BAD asserts the court erred in calculating the fee award in two respects. First,
BAD argues the court erred when it selected $275 as the reasonable hourly rate to be
applied to hours worked in connection with the anti-SLAPP motion. Second, BAD
argues it was error to reduce the hours worked in connection with the anti-SLAPP motion
below the number of hours it claimed in its fee motion.
A. Legal Framework
Principles Applicable to Attorney Fees Award
Section 425.16, subdivision (c), provides that "a prevailing defendant on a special
motion to strike shall be entitled to recover his or her attorney's fees and costs." It is well
established that "[t]he amount of an attorney fee award under the anti-SLAPP statute is
computed by the trial court in accordance with the familiar 'lodestar' method. [Citation.]
Under that method, the court 'tabulates the attorney fee touchstone, or lodestar, by
multiplying the number of hours reasonably expended by the reasonable hourly rate
prevailing in the community for similar work. [Citations.]' " (Cabral v. Martins (2009)
177 Cal.App.4th 471, 491 (Cabral).)
5
"[A]s the parties seeking fees and costs, defendants 'bear[] the burden of
establishing entitlement to an award and documenting the appropriate hours expended
and hourly rates.' [Citation.] To that end, the court may require defendants to produce
records sufficient to provide ' "a proper basis for determining how much time was spent
on particular claims." ' " (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993,
1020.) Importantly, when considering a fee award, the trial court is not required to award
the amount sought by the successful moving parties,6 but instead "is obligated to award
'reasonable attorney fees under section 425.16 [that] adequately compensate[] them for
the expense of responding to a baseless lawsuit.' " (Jackson v. Yarbray (2009) 179
Cal.App.4th 75, 92.)
A prevailing defendant on an anti-SLAPP motion is entitled to seek fees and costs
" 'incurred in connection with' " the anti-SLAPP motion itself, but is not entitled to an
award of attorney fees and costs incurred for the entire action. (Wanland v. Law Offices
of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 21; Lafayette Morehouse,
Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) An award of
attorney fees to a prevailing defendant on an anti-SLAPP motion properly includes
attorney fees incurred to litigate the special motion to strike (the merits fees) plus the fees
6 Indeed, there is authority that holds an unreasonably inflated fee request permits
the trial court to deny any request for fees at all. (Christian Research Institute v. Alnor
(2008) 165 Cal.App.4th 1315, 1322 (Christian Research).) The rationale for this
discretionary authority is that, if the trial court were required to award a reasonable fee
when counsel overreached, it would encourage overreaching because the only penalty
would be recovery of the reasonable fee for which counsel should have sought
reimbursement from the start. (Ibid.)
6
incurred in connection with litigating the fee award itself (the fees on fees). (Wanland, at
p. 21.) However, a fee award under the anti-SLAPP statute may not include matters
unrelated to the anti-SLAPP motion, such as "attacking service of process, preparing and
revising an answer to the complaint, [or] summary judgment research." (Christian
Research, supra, 165 Cal.App.4th at p. 1325.) Similarly, the fee award should not
include fees for "obtaining the docket at the inception of the case" or "attending the trial
court's mandatory case management conference" because such fees "would have been
incurred whether or not [the defendant] filed the motion to strike." (Ibid.) In short, the
award of fees is designed to " 'reimburs[e] the prevailing defendant for expenses incurred
in extracting herself from a baseless lawsuit' " (Wanland, at p. 22, italics added) rather
than to reimburse the defendant for all expenses incurred in the baseless lawsuit.
Standard of Review
Although a SLAPP defendant who brings a successful motion to strike is entitled
to mandatory attorney fees, he or she is entitled " 'only to reasonable attorney fees, and
not necessarily to the entire amount requested. [Citations.]' [Citation.] We review the
trial court's ruling for abuse of discretion" (G.R. v. Intelligator (2010) 185 Cal.App.4th
606, 620), and we will not disturb the trial court's fee determination " ' "unless the
appellate court is convinced that it is clearly wrong." ' " (Ketchum v. Moses (2001) 24
Cal.4th 1122, 1132 (Ketchum).) When reviewing attorney fee awards, an appellate court
must "[i]ndulg[e] all inferences in favor of the trial court's order . . . [and] presume the
7
trial court's attorney fees award is correct."7 (McKenzie v. Ford Motor Co. (2015) 238
Cal.App.4th 695, 704.) Where, as here, a trial court severely curtails the number of
compensable hours in a fee award, the operative impact of that presumption includes a
presumption the trial court concluded the fee request was padded. (See, e.g., Levy v.
Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 817 [substantial reduction in
claimed costs "indicat[es] Levy improperly inflated his claimed" amounts]; Christian
Research, supra, 165 Cal.App.4th at pp. 1323 & 1326 ["[w]hen the trial court
substantially reduces a fee or cost request, we infer the court has determined the request
was inflated"; trial court has discretion to substantially reduce fee request where record
contains evidence permitting conclusion the "fee request is unreasonably padded, vague,
and worthy of little credence" based on the trial court's own observations of the
proceedings and the billing records submitted].)
7 An additional principle of appellate review is operative in this appeal. It is
fundamental that an order is presumed correct, and the burden of affirmatively
demonstrating error is on the appellant. (Fundamental Investment etc. Realty Fund v.
Gradow (1994) 28 Cal.App.4th 966, 971.) This places on appellant the burden to provide
an adequate record on appeal to allow the reviewing court to assess the purported error
(Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416), and if
the record on appeal does not contain all of the documents or other evidence considered
by the trial court, a reviewing court will "decline to find error on a silent record, and thus
infer that substantial evidence" supports the trial court's findings. (Haywood v. Superior
Court (2000) 77 Cal.App.4th 949, 955.)
8
ANALYSIS
A. The Abuse of Discretion Standard Applies to This Appeal
Although BAD acknowledges the ordinary standard of review for fee awards is the
deferential abuse of discretion standard, it appears to argue we should apply a de novo
review to its claims in this appeal. BAD notes the determination of whether the trial
court applied proper legal standards in making its fee determination is reviewed de novo.
(See, e.g., City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) BAD cites
numerous cases, including Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, to
argue a fee award can be reversed when the court applied the wrong legal standards, and
asserts those authorities support reversal of the fee award in this case.
The cases cited by BAD for its argument in favor of de novo review have no
persuasive applicability here, because the record makes clear the court did not
misunderstand the legal matrix that guided its evaluation of BAD's fee request. The
minute order addressing the various fee requests specifically recites that the amount of an
attorney fee award under the anti-SLAPP statute is to be computed by the lodestar
method, which begins with calculating the number of hours reasonably expended on the
anti-SLAPP motion (and the fees on fees motion) and excluding hours spent on non-
SLAPP tasks or that were inefficient or duplicative, and then multiplying those hours by
the reasonable hourly rate prevailing in the community for similar work to obtain the
"lodestar" (see, e.g., Cabral, supra, 177 Cal.App.4th at p. 491), and then considering
whether to adjust that lodestar upwards or downwards under the facts of the case.
9
Because the record affirmatively shows the court understood and employed the
correct legal matrix here, the cases cited by BAD have no application. For example, in
Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th 553, the court merely held that a
trial court award, calculated by applying the same "risk multiplier" to a lodestar amount
that amalgamated both fees and "fees on fees" work, should be reconsidered "in light of
this opinion's conclusion that the risk multiplier for [fees on fees work] generally should
be lower than for fees in the underlying litigation." (Id. at p. 584.) Thus, the ruling in
Graham was premised on the finding the trial court did not apply (and indeed could not
have applied) the new principle decided in Graham, which has no application here. The
other authorities cited by BAD are appear to be similarly inapposite.8 Because we
8 For example, BAD cites Rogel v. Lynwood Redevelopment Agency (2011) 194
Cal.App.4th 1319 as an example of a court reversing a fee determination where the court
failed to apply the correct legal standards. However, in Rogel, the trial court calculated a
lodestar of approximately $2.7 million for attorney fees in litigation against a
governmental agency, but then applied a negative multiplier to that lodestar (reducing the
award to approximately $540,000) because the court stated " '[I]t seems as though the
money should be spent in Lynwood and not on the lawyers.' " (Id. at p. 1328.) Rogel
reversed because it concluded that preservation of the government fisc was not a proper
factor to consider when applying a multiplier to the lodestar. (Id. at p. 1321.) Here,
although the award was less than sought by BAD, the rationale for the award was limited
to proper factors (the court's evaluation of hours reasonably expended on the anti-SLAPP
and the fees on fees motions and the reasonable hourly rate prevailing in the
community), rendering Rogel's de novo consideration of the award inapposite. The other
cases involved similar defects in the award. (See Hogar Dulce Hogar v. Community
Development Com. of City of Escondido (2007) 157 Cal.App.4th 1358, 1361 [reversing
where record showed court categorically excluded from award any pre-litigation attorney
fees, and most of work on "fees on fees" motion, even though law clearly provided both
categories were properly awardable]; Graciano v. Robinson Ford Sales, Inc. (2006) 144
Cal.App.4th 140, 154-155 [reversing award for numerous errors, including error in
setting attorney fee hourly rate at lower "expert witness fee" rate where only evidence of
10
perceive that BAD's appellate attack on the fee award challenges how the court applied
the applicable standards to its fee request, rather than on what standards the court
employed, we reject BAD's argument that this court may abandon the abuse of discretion
standard of review in favor of a de novo review of the fee award.
B. The Hourly Rate Claim
BAD first asserts that, when tabulating the lodestar, the trial court abused its
discretion when it set a flat hourly rate of $275 for all of BAD's counsel because that rate
disregarded the different levels of experience for each of BAD's counsel and disregarded
BAD's evidence of the prevailing market rate.
The courts have repeatedly stated that the trial court is in the best position to value
the services rendered by the attorneys in his or her courtroom (see, e.g., Ketchum, supra,
24 Cal.4th at p. 1132), and this includes the determination of the hourly rate that will be
used in the lodestar calculus. (See, e.g., Syers Properties III, Inc. v. Rankin (2014) 226
Cal.App.4th 691, 700-703.) In making its calculation, the court may rely on its own
knowledge and familiarity with the legal market, as well as the experience, skill, and
reputation of the attorney requesting fees (Heritage Pacific Financial, LLC v. Monroy
(2013) 215 Cal.App.4th 972, 1009), the difficulty or complexity of the litigation to which
that skill was applied (Syers Properties at p. 700; accord, Moreno v. City of Sacramento
(9th Cir. 2008) 534 F.3d 1106, 1114), and affidavits from other attorneys regarding
reasonable hourly rate prevailing in the community was of higher rate and that evidence
was unrebutted and opposing counsel indicated it was not challenging the higher rate].)
11
prevailing fees in the community and rate determinations in other cases. (Heritage, at
p. 1009.)
Here, the parties presented conflicting affidavits concerning the appropriate hourly
rate for seasoned attorneys and fifth year associates. BAD's expert, who premised his
opinion on numerous factors (including the so-called "Laffey Matrix"), testified that $750
per hour for Mr. S. Volker and $350 per hour for the three fifth-year associates working
on the case was within the market range charged for similar services by similarly
qualified attorneys. However, plaintiffs submitted contrary declarations that the market
range charged for similar services by similarly qualified attorneys was much lower.9
Moreover, the court was cognizant that the rate charged by a very seasoned attorney who
represented Ms. Tisdale in this same litigation, and whose anti-SLAPP motion
successfully extricated her from the multiple and complex claims pleaded against her,
was $275 per hour, and noted the anti-SLAPP motion by BAD's attorneys involved only
a single cause of action and did not involve either novel or complex issues.
On this record, the trial court concluded $275 per hour was an appropriate rate to
apply to the hours properly attributable to BAD's anti-SLAPP motion. Certainly, the trial
court was not bound by the contrary opinions submitted by BAD's expert. (Syers
Properties III, Inc. v. Rankin, supra, 226 Cal.App.4th at p. 702 ["the trial court was
9 Two of plaintiffs' experts testified the range charged by a fifth-year associate
would begin as low as $200 per hour and one of those experts further noted such
associates "will be doing the 'heavy' lifting work of research and initial drafting of the
pleadings" as well as still being on their "learning curve."
12
neither required to follow the Laffey Matrix nor to adopt the rate defense counsel opined
was the 'market rate' for services of this type"].) BAD's appellate argument merely asks
this court to reweigh the competing evidence. For example, BAD suggests the $275 rate
charged by Tisdale's counsel was an "admittedly low-end contract rate with a public
entity," and hence cannot represent an appropriate market rate, without citing anything in
the record containing that "admission."10 BAD also argues the $275 rate was below the
appropriate market rate because even plaintiffs' experts concluded $450 was an
appropriate rate for a seasoned attorney (Mr. S. Volker), but that argument ignores the
evidence supporting the $275 per hour market rate as found by the trial court (see fn. 10,
ante) as well as the opinion by plaintiffs' experts that the heavy lifting would ordinarily be
done by younger associates, whose rates would begin as low as $200 per hour, rather than
by a senior attorney at a higher billing rate. Because there was evidence this was a
relatively uncomplicated anti-SLAPP motion, in which the yeoman's work could have
been handled by associates billing much lower rates, there was evidence on which the
trial court could have concluded the " 'reasonable hourly rate prevailing in the community
10 To the contrary, because BAD has not provided this court with the record on
which the court premised its conclusion that $275 per hour was an appropriate market
rate for a seasoned counsel (i.e. the attorney who represented Ms. Tisdale), we must
presume substantial evidence supports the finding that $275 per hour is an appropriate
market rate for a seasoned attorney. (See fn. 7, ante.)
13
for similar work' " (Cabral, supra, 177 Cal.App.4th at p. 491) was $275 per hour rather
than the much higher rates charged by attorney S. Volker.11
BAD's claim—that failure to adopt the rates set forth by its expert was an abuse of
discretion—is unconvincing. Instead, we conclude the trial judge was " ' "the best judge
of the value of professional services rendered in his court" ' " (Ketchum, supra, 24 Cal.4th
at p. 1132) and we affirm his determination because we are not " ' "convinced that it is
clearly wrong." ' " (Ibid.)
C. The Total Hours Claim
BAD's fee motion submitted declarations, along with billing summaries, averring
it spent 213.7 hours on the merits motion (nearly 80 percent of which was attributed to
the senior attorney's efforts) and another 86.7 hours on the fees on fees motion (largely
attributed to the work of the associates). BAD argues the court abused its discretion by
reducing the hours worked in connection with the merits and fees on fees motions below
the hours claimed by BAD in its fee motion.12
11 The federal courts appear to be in accord. (See Fisher v. City of San Diego (S.D.
Cal. Aug 14, 2013) 2013 WL 4401387 at p. *2 ["While delegation of more routine tasks
is not required, an attorney who does everything himself would typically bill at a lower
hourly rate than one who does only the most difficult work. This avoids 'top-heavy'
billing."]; accord, Hernandez v. Taqueria El Grullense (N.D.Cal. June 11, 2014) 2014
WL 2611214, at p. *3 ["[S]ince Moreno, various courts in the Ninth Circuit have found
that hours are not reasonably expended when routine tasks are billed by highly
experienced attorneys, rather than being delegated to colleagues with appropriate levels
of experience."].)
12 BAD also appears to assert it was error for the trial court (1) to render an award
for a lump sum number of hours rather identifying the hours it attributed to the merits
motion and separately identifying the hours it attributed to the fees on fees motion, and
14
We conclude the decision to premise the lodestar amount by using an hour
multiplier that was fewer hours than claimed by BAD was not an abuse of discretion.
Although BAD's billing statements in support of a fee request form the " 'starting point' "
for the " ' "hours reasonably expended" ' " component of the lodestar calculation
(Christian Research, supra, 165 Cal.App.4th at p. 1324), the trial court is not bound to
accept the evidence submitted by counsel when making its determination (id. at p. 1326),
and may reduce the hours if it concludes the attorneys performed work unrelated to the
anti-SLAPP motion, or represented work that was unnecessary or duplicative or
excessive in light of the issues fairly presented. (Ibid.) When 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." (Ketchum, supra, 24 Cal.4th at p. 1138, fn.
omitted.)
Here, the record contains sufficient support for the trial court's decision to adjust
downward the hour component for the lodestar calculus. First, the court could conclude
(2) to reduce the hours without providing a mathematically-based explanation for the
reductions it applied to each of the two motions. However, BAD cites no authority
suggesting a trial court's determination of the appropriate amount of the fee award will be
reversed absent some type of statement of decision, and the law is to the contrary.
(Ketchum, supra, 24 Cal.4th at p. 1140 [rejecting claim that award requires " 'reasoned
explanation' " for determinations on specific items within award; a trial court is "not
required to issue a statement of decision with regard to the fee award."].) Moreover,
BAD cites no authority suggesting a fee award may be reversed merely because the trial
court awarded a reduced amount without explicit explanations about disallowed hours or
unapportioned hours, and the law appears to be to the contrary. (See, e.g., Rebney v.
Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349 [as long as record demonstrated
award was based on lodestar approach, court is "not required to explain which of
counsel's hours were disallowed, or how or whether any hours were apportioned" and
appellate court must infer all findings on these points in favor of prevailing parties].)
15
many of the hours represented work unrelated to either the merits motion or the fees
motion, such as work on discovery, ex parte appearances, work surrounding the case
management conference, and conferring with cocounsel. The court could also have
concluded downward adjustment was necessary because many billings involved entries
that were either vague or were "blockbilled" time entries, and represented padding.13
(Christian Research, supra, 165 Cal.App.4th at pp. 1325-1326.) Finally, the court could
have concluded a substantial number of the hours claimed by BAD were unnecessary14
because it concluded that, although BAD's counsel had "expresse[d] confusion with the
pleadings," the court found "there was only one cause of action that was the subject of
[BAD's] anti-SLAPP motion and the issues were not especially novel or complex."
Under these circumstances, we cannot conclude the trial court abused its discretion
in limiting the hour component of the lodestar calculus to a combined amount, for both
the merits motion and the fees on fees motion, to over 100 hours.
13 As the court observed in Christian Research, supra, 165 Cal.App.4th at pp. 1325-
1326: "Where, as here, the trial court severely curtails the number of compensable hours
in a fee award, we presume the court concluded the fee request was padded. [Citations.]
An attorney's chief asset in submitting a fee request is his or her credibility, and where
vague, blockbilled time entries inflated with noncompensable hours destroy an attorney's
credibility with the trial court, we have no power on appeal to restore it."
14 Many of the hours claimed by BAD were expended to prepare and file a demurrer
(mooted by the order granting the anti-SLAPP motion) attacking causes of action not
directed at BAD. Although BAD appears to assert on appeal the court erred by excluding
the efforts its attorneys devoted to the demurrer, because those efforts developed legal
arguments that were "clearly 'inextricably intertwined' " with the arguments necessary to
its successful anti-SLAPP motion, that argument was presented below and was rejected
by the court. We must presume on this record (see fn. 7, ante) that the court had
substantial evidence on which to reject this claim.
16
DISPOSITION
The trial court's attorney fees award is affirmed. Plaintiffs are entitled to their
costs on appeal.
McDONALD, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
17
Filed 6/16/16
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
569 EAST COUNTY BOULEVARD LLC D068538
et al.,
Plaintiffs and Respondents, (Super. Ct. No.
37-2014-00025797-CU-MC-CTL)
v.
BACKCOUNTRY AGAINST THE DUMP, ORDER CERTIFYING OPINION
INC., FOR PUBLICATION
Defendant and Appellant.
THE COURT:
The opinion in this case filed May 18, 2016, was not certified for publication.
On the court's own motion, it appearing the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105):
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in Official Reports" appearing on
page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
McDONALD, Acting P. J.
Copies to: All parties