Spielbauer Law Office v. Midland Funding CA6

Filed 6/26/23 Spielbauer Law Office v. Midland Funding CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

SPIELBAUER LAW OFFICE, H049662

(Santa Clara County

Plaintiff and Appellant, Super. Ct. No. 18CV339157)

v.

MIDLAND FUNDING, LLC, et al.

Defendants and Respondents.

The trial court awarded attorney fees to respondents Midland Funding, LLC and

Midland Credit Management, Inc. (collectively Midland) following appellant Spielbauer

Law Office’s (Spielbauer) unsuccessful appeal from the judgment entered by the trial

court after an order granting Midland’s special motion to strike Spielbauer’s complaint.

On appeal from the attorney fees order, Spielbauer contends the trial court erred by

refusing to consider an expert declaration and by denying Spielbauer’s requests for

judicial notice of orders issued in other matters. We affirm the order.

I. FACTUAL AND PROCEDURAL BACKGROUND1

Spielbauer filed a complaint against Midland stating claims based on Midland’s

alleged interference with the attorney-client relationship between Spielbauer and one of

1

Discussion of the background in this action is limited to the matters relevant to

the issues raised in this appeal.

its clients.2 The trial court granted Midland’s special motion to strike pursuant to Code of

Civil Procedure section 425.16 (anti-SLAPP motion) in July 2019, and entered judgment

in favor of Midland in August 2019.3 Spielbauer filed a notice of appeal from the

judgment in October 2019 (appeal No. H047393). Because Spielbauer did so more than

60 days after it was served with the order granting the anti-SLAPP motion, Midland

moved to dismiss the appeal as untimely. This court granted the motion to dismiss, and

denied Spielbauer’s petition for rehearing. The California Supreme Court denied

Spielbauer’s petition for review (case No. S263930). This court thereafter issued the

remittitur in appeal number H047393.

Pursuant to Code of Civil Procedure section 425.16, subdivision (c), Midland filed

a motion for attorney fees it incurred in defending against Spielbauer’s appeal from the

judgment. Midland sought $11,998.50 in fees required to defend the appeal, $3,220 in

fees to draft the fee motion, and whatever fees it incurred in connection with the

remaining briefing and argument of the motion. In support of its request, Midland filed a

declaration from attorney Thomas F. Landers, a partner at Solomon Ward Seidenwurm &

Smith LLP (SWSS), the law firm that represented Midland. Relevant to this appeal,

2

The instant matter is the third appeal arising from the underlying trial court

action. As discussed, post, Spielbauer appealed the trial court’s August 2019 judgment in

appeal number H047393. It thereafter appealed the trial court’s order granting Midland

prevailing party attorney fees related its special motion to strike. Although ultimately

heard as appeal number A165817 by Division 1 of the First District Court of Appeal, the

appeal from the first attorney fees order originated in this court, as appeal number

H047940. In the instant appeal, Spielbauer incorporated by reference the records filed in

both of these previous appeals. On its own motion, this court takes judicial notice of the

record filed in appeal number H047940, and of the opinion issued in Spielbauer Law

Office v. Midland Funding, LLC, et al. (Mar. 23, 2023, A165817; review den. June 21,

2023) [nonpub. opn.] (Spielbauer). While there was no record filed in appeal number

H047393, on its own motion, the court will take judicial notice of the docket in that

appeal.

3

The trial court awarded Midland $49,896 in prevailing party attorney fees

following grant of the anti-SLAPP motion, which was affirmed on appeal. (Spielbauer,

supra, A165817, at pp. 1, 3.)

2

Landers attached three exhibits to his declaration, reflecting “[a]ll time entries related to

anti-SLAPP Appeal and this fee motion. . .,” “[a]ll [Landers’s] time entries. . .,” and

“[a]ll [Leah] Strickland’s time entries. . . .” Due to the numerous pleadings Midland filed

relevant to the appeal and petition for review, Landers contended that the total hours

spent by his firm on the appeal were reasonable. He further alleged that the hourly rate

SWSS charged for each attorney was reasonable based on each attorney’s experience.

The chief operating officer of SWSS provided a declaration stating that the firm’s hourly

rates were “below or in line with the average billing rates for litigation partners and

associations in the California market.”

Spielbauer opposed Midland’s request for attorney fees. It argued that the fees

were “grossly inflated to the point of being fraudulent.” Spielbauer contended that the

issues presented in the motion to dismiss the appeal and the response to the petition for

review were “routine,” such that the pleadings SWSS filed should have already been in

the firm’s “brief banks” and only required “a couple of hours to prepare and file.” Given

Landers’s declaration about Strickland’s qualifications, Spielbauer claimed it was

“absurd” to believe that she and Landers required the number of hours claimed in order to

prepare the pleadings. It further argued that it was “unnecessary” for Midland to respond

to the petition for review before the Supreme Court ruled on the petition. Claiming that

the fees were excessive, Spielbauer alleged that Midland “has had a troubled history of

dishonesty and has had multiple judgments rendered against it,” citing Bureau of

Consumer Financial Protection v. Encore Capital Group, Inc., et al. (S.D.Cal. 3:20-cv-

01750-GPC-KSC) (the BCFP case), as well as a matter involving Midland and the

attorney general of Pennsylvania (the Pennsylvania matter). Additionally, Spielbauer

claimed Midland had previously “been caught . . . seeking excessive fees,” citing a

superior court case, Gilbert v. Midland (Super. Ct. Contra Costa County, 2016, No.

3

MSC16-01184). Spielbauer asked the trial court to take judicial notice of documents

pertaining to each of the matters it referenced in its opposition.4

Ray Sowards provided a declaration in support of Spielbauer’s opposition. He

stated that he was a licensed attorney, who had “practiced law and billed clients. I have

also been an insurance claims adjuster and [investigator] prior to my bar admission and

regularly reviewed attorney billings for matters before trial courts and appellate courts.

As such, I have extensive experience in reviewing attorney billings.” Sowards opined

that the number of hours billed by SWSS was unreasonable, such that there was an

“overbilling of [at least] 13.8 hours pertaining to the appellate matters. . . .” In reaching

his opinion, Sowards reviewed “the complaint, SLAPP motion, orders, appellate briefs,

motions for attorneys fees and decisions by the Court of Appeals, and the billings

submitted by MIDLAND and its attorney, SWSS.” Sowards also reviewed a “previous

declaration of Kevin M. Sullivan. . . .”5

Midland objected to Sowards’s declaration, arguing that the testimony was

irrelevant, as the trial court was the best judge of the value of professional services

rendered in a matter and the opinion of an expert witness was not necessary to assist the

court in evaluating the request. Midland further contended that the matters for which

4

As included in the appellant’s appendix filed in this appeal, Spielbauer did not

attach any pleadings to the initial request for judicial notice. It included URL addresses

for websites seemingly pertaining to the BCFP case, and the Pennsylvania matter. At the

time this court prepared this opinion, the link related to the BCFP case was inoperable,

and the Pennsylvania matter link led to an unrelated press release. Spielbauer did not

attach or link any documents relating to Gilbert v. Midland. Spielbauer filed a second

request for judicial notice shortly after Midland replied to its opposition to the attorney

fee motion, to which it attached a Stipulated Final Judgment and Order filed in the BCFP

case. It again included nonfunctioning URL links for both the BCFP case and the

Pennsylvania matter.

5

Sullivan filed a declaration in opposition to Midland’s request for prevailing

party attorney fees following the grant of the anti-SLAPP motion. The trial court

declined to consider the declaration, a decision that the appellate court upheld on review.

(Spielbauer, supra, A165817, at pp. 1-2.)

4

Spielbauer sought judicial notice were not relevant to the determination of an appropriate

award of fees.

Following a hearing, at which Midland requested $20,026 in attorney fees, the trial

court awarded Midland $19,651. It denied Spielbauer’s requests for judicial notice of the

BCFP case, the Pennsylvania matter, and Gilbert v. Midland. It sustained Midland’s

objection to Sowards’s declaration, stating, “The evidence is insufficient to qualify

Mr. Sowards as an expert to render an opinion regarding legal services, reasonable

attorney hours for tasks performed and hourly rates of attorneys in anti-SLAPP motions

or appeals.” As Spielbauer did not contest the hourly rates charged by SWSS, the court

addressed only the reasonableness of the number of hours incurred by the attorneys in

connection with the appeal and fee motion. The court found that the time expended was

reasonable, and that Spielbauer did not present competent evidence to support its claims.

While Midland asked the court to award five hours of attorney time to prepare for and

attend the hearing on the motion, the court awarded two and a half hours. Midland did

not request an upward adjustment to the lodestar figure adopted by the court; the court

denied Spielbauer’s request for a downward adjustment. Spielbauer timely appealed the

order. (Code Civ. Proc., § 904.1, subd. (a)(2); Cal. Rules of Court, rule 8.104(a)(1).)

II. DISCUSSION

Spielbauer raises three contentions on appeal: (1) the trial court erred in

sustaining the objection to Sowards’s declaration; (2) the court erred in denying the

request for judicial notice of the BCFP case; and (3) the court erred in denying judicial

notice related to the Gilbert v. Midland case.

There is no dispute that Code of Civil Procedure section 425.16, subdivision (c)

authorizes an award of attorney fees to a prevailing defendant following an unsuccessful

appeal from an order granting an anti-SLAPP motion. (See City of Rocklin v. Legacy

Family Adventures-Rocklin, LLC (2022) 86 Cal.App.5th 713, 737.) As a general matter,

we review the trial court’s award of attorney fees for abuse of discretion, considering

5

whether or not the trial court “ ‘exceeded the bounds of reason’ in making its award of

attorney fees. [Citation.]” (Maughan v. Google Technology, Inc. (2006) 143

Cal.App.4th 1242, 1250 (Maughan).) Absent a clear showing that the decision was

“arbitrary or irrational,” we will not substitute our judgment for the judgment of the trial

court. (Id. at p. 1249.) Spielbauer bears the burden of demonstrating that the trial court

abused its discretion. (Ibid.)

Similarly, we generally review the trial court’s evidentiary rulings for abuse of

discretion, including its determinations regarding admissibility of expert testimony and

judicial notice. (Physicians Committee for Responsible Medicine v. Los Angeles Unified

School Dist. (2019) 43 Cal.App.5th 175, 182; Christ v. Schwartz (2016) 2 Cal.App.5th

440, 446; Burton v. Sanner (2012) 207 Cal.App.4th 12, 18.)

Without explanation, Spielbauer argues that it raises a question of law in the

appeal, such that the de novo standard of review would apply. Spielbauer fails to later

identify any question of law presented in the appeal. It contends that the court abused its

discretion by sustaining the objection to Sowards’s declaration, and argues that the

materials over which it asked the court to take judicial notice are relevant to the

proceedings.6 We will thus review the matter for abuse of discretion.

A. The trial court did not abuse its discretion by sustaining the objection to

Sowards’s declaration.

The trial court found that “[t]he evidence is insufficient to qualify Mr. Sowards as

an expert to render an opinion regarding legal services, reasonable attorney hours for

tasks performed and hourly rates of attorneys in anti-SLAPP motions or appeals.” “A

6

In its opening brief, Spielbauer makes an unsupported claim that the trial court

denied it due process of law by depriving it of the ability to present impeachment

evidence. We will not consider this undeveloped argument. “[W]e may disregard

conclusory arguments that are not supported by pertinent legal authority or fail to

disclose the reasoning by which the appellant reached the conclusions he wants us to

adopt.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287.)

6

person is qualified to testify as an expert if he has special knowledge, skill, experience,

training, or education sufficient to qualify him as an expert on the subject to which his

testimony relates. Against the objection of a party, such special knowledge, skill,

experience, training, or education must be shown before the witness may testify as an

expert.” (Evid. Code, § 720, subd. (a).) We will not disturb the trial court’s

determination regarding a witness’s qualification to serve as an expert absent a manifest

abuse of discretion. (People v. Brown (2014) 59 Cal.4th 86, 100; Miller v. Los Angeles

County Flood Control Dist. (1973) 8 Cal.3d 689, 701.)

Sowards’s declaration does not address his qualification to serve as an expert on

any of the issues identified by the trial court, other than to state that he was a practicing

lawyer with experience billing clients. He was previously an insurance claims adjuster

and investigator, in which capacity he reviewed attorney billings. Sowards did not

identify any experience serving as an expert concerning the reasonableness of attorney

billing, particularly as it relates to the appeal of a judgment after the trial court grants an

anti-SLAPP motion. It is not enough that Sowards has experience or skill reviewing

attorney billings. He must have “special knowledge, skill, experience, training, or

education sufficient to qualify him as an expert on the subject to which his testimony

relates.” (Evid. Code, § 720, subd. (a), italics added.) On the evidence before us, we

cannot say that the trial court abused its discretion by declining to qualify Sowards as an

expert witness.

Even if the trial court had accepted Sowards’s qualifications, Spielbauer has not

demonstrated that Sowards’s opinion was “[r]elated to a subject that is sufficiently

beyond common experience that the opinion of an expert would assist the trier of

fact. . . .” (Evid. Code, § 801, subd. (a).) “ ‘[T]he determination of what constitutes

reasonable attorney fees is committed to the discretion of the trial court. . . . [Citations.]

The 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

7

of the services contrary to, or without the necessity for, expert testimony. [Citations.]’

[Citation.]” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096 (PLCM Group);

Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Spielbauer has not shown that Sowards

offered an opinion beyond the expertise of the trial court with regard to the

reasonableness of the fees charged by SWSS for the appeal from the judgment. Absent

such a showing, we will not disturb the trial court’s ruling.7

B. The trial court did not err in denying judicial notice.

Under Evidence Code section 452, subdivision (d), the trial court may take judicial

notice of the records of any court of this state, or any federal court. The court “shall take

judicial notice of any matter specified in Section 452 if a party requests it and: [¶]

(a) Gives each adverse party sufficient notice of the request, through the pleadings or

otherwise, to enable such adverse party to prepare to meet the request; and [¶]

(b) Furnishes the court with sufficient information to enable it to take judicial notice of

the matter.” (Evid. Code, § 453.) While section 453 uses the mandatory “shall,” it is

subject to the qualification that the matters judicially noticed must be relevant to the issue

before the court. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063,

overruled on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257.) On

appeal, Spielbauer has not demonstrated that the trial court abused its discretion by

7

In its reply brief, Spielbauer contends the trial court committed structural error

by excluding the testimony of its one expert witness. The improper exclusion of expert

testimony might in exceptional circumstances amount to structural error, i.e., when the

expert’s testimony is essential to determination of a central issue before the court. (See

Kline v. Zimmer, Inc. (2022) 79 Cal.App.5th 123, 135-136 [where expert testimony was

essential to the issue of medical causation, the trial court committed structural error by

excluding testimony of a qualified defense expert]; Brown v. Colm (1974) 11 Cal.3d 639,

647 [trial court committed reversible error by excluding the sole expert relied upon by

plaintiff to establish the standard of care in a medical malpractice action].) Here, expert

testimony was not essential to determination of the issues. Moreover, Spielbauer did not

lay a proper foundation to qualify Sowards as an expert witness.

8

determining that neither the BCFP case nor Gilbert v. Midland were relevant to the issue

of attorney fees following the unsuccessful appeal from the judgment.8

As an initial matter, Spielbauer does not identify where in the record on appeal

this court can locate the docket or pleadings from Gilbert v. Midland that it contends the

trial court should have judicially noticed. There were no such documents attached to the

requests for judicial notice Spielbauer filed relevant to the appellate attorney fees motion

at issue in this appeal. The portion of the record cited in Spielbauer’s opening and reply

briefs does not include any such documents. Aside from references to the matter in

Spielbauer’s pleadings, and in the declaration of Sullivan, the trial court’s exclusion of

which was affirmed on appeal (Spielbauer, supra, A165817, at pp. 1-2), there is nothing

in the record indicating Spielbauer provided the trial court with “sufficient information to

enable it to take judicial notice of the matter.” (Evid. Code, § 453, subd. (b).) There is

certainly insufficient evidence demonstrating that the trial court erred in determining that

the documents were not relevant to the issue of attorney fees incurred in defending the

appeal from the judgment. Spielbauer had the burden to provide an adequate record for

review, and the failure to do so requires this court to resolve the issue against Spielbauer.

(See Jameson v. Desta (2018) 5 Cal.5th 594, 609.)

Spielbauer did include the stipulated final judgment and order from the BCFP case

in its appellant’s appendix, which reflects that the Bureau of Consumer Financial

Protection filed a complaint against Midland alleging violations of federal law in

connection with Midland’s debt collection practices. Midland entered into the stipulated

judgment without admitting or denying any of the allegations in the complaint. They

8

In its reply brief, Spielbauer raises the portion of the order denying judicial

notice related to the Pennsylvania matter. It did not raise a concern regarding this portion

of the order in its opening brief, and has not demonstrated good cause for raising the

issue for the first time in its reply. Thus, we will not consider the propriety of the trial

court’s order in that regard. (See Julian v. Hartford Underwriters Ins. Co. (2005) 35

Cal.4th 747, 761, fn. 4.)

9

agreed to certain injunctive relief, as well as the payment of monetary damages and a

“civil money penalty.” Although Spielbauer claims that the judgment “reflect[s] inflated

and unreasonable fee demands[,]” the judgment does not address the reasonableness of

attorney fees incurred by Midland, or otherwise concern any issues raised in the instant

appeal or the underlying trial court matter. We agree with the First District Court of

Appeal: “Whether Midland suffered civil penalties or other remedies in an unrelated

matter before a federal administrative tribunal, has no bearing on whether the amount of

time its attorneys spent litigating this case was reasonable.” (Spielbauer, supra,

A165817, at p. 2.) Spielbauer has not met its burden to demonstrate reversible error in

the trial court’s judicial notice rulings.9

III. DISPOSITION

The order granting Midland’s motion for attorney fees after the appeal of the anti-

SLAPP motion is affirmed. Midland is entitled to costs on appeal. (Cal. Rule of Court,

rule 8.278(a).)

9

Although Spielbauer identifies three alleged errors on appeal in its opening brief,

relating only to the trial court’s evidentiary and judicial notice rulings, interspersed in its

briefs are contentions regarding the reasonableness of the attorney time spent defending

the appeal from the judgment. As was true in Spielbauer, many of Spielbauer’s

arguments are taken directly from the pleadings filed with the trial court, and none

account for the abuse of discretion standard of review that affords great deference to the

experienced trial judge’s evaluation of the professional services rendered in their court.

(Spielbauer, supra, A165817, at p. 2, citing Ketchum v. Moses (2001) 24 Cal.4th 1122,

1130, 1132, 1140 (Ketchum).) Spielbauer reargues the issues litigated below without

establishing that the trial court rendered a decision that was “clearly wrong.” (Ketchum,

at p. 1132; see also PLCM Group, supra, 22 Cal.4th at p. 1096.) To the extent Spielbauer

raises the issue on appeal, it has not demonstrated that the trial court abused its discretion

in determining the number of attorney hours for which Midland was entitled to

compensation.

10

_______________________________

Greenwood, P. J.

WE CONCUR:

_______________________________

Grover, J.

_______________________________

Lie, J.

H049662 - Spielbauer Law Office v. Midland Funding, LLC et al.