God I love the practice of law. Oh, it can certainly suck at times, but there are not too many other professions that pay you for an intellectual pursuit. Being a chemical or biological researcher is probably intellectually stimulating as well, but that lacks the dueling aspect. Metaphorically, I suppose, a researcher looking for a cancer cure feels that cancer is giving him or her the middle finger, but when the researcher publishes a report, cancer doesn’t file a response including a beautifully turned phrase that politely calls the researcher a hack.
“Why are you so high on the law today?”, you ask. Thank you for participating. Help yourself to a beer in the fridge while I explain.
Six hundred and five days ago, a client called, asking if I would defend him against a malicious prosecution action. Incredibly, after losing a fee arbitration with his attorney over $10,000, the attorney turned around and sued him for malicious prosecution. I recognized that the lawsuit was a SLAPP, because the attorney was suing his former client for utilizing the very process created to handle disputes between attorneys and clients.
I responded to the complaint with an anti-SLAPP motion . . . and lost. Obviously I had hoped to win, but the result was not entirely unexpected. As simple as I just made the facts sound, the legal issues were quite involved. I won’t go into all the legal aspects, but this article goes through the entire legal analysis. I was making new law, and thus anticipated that an appellate court would have to weigh in.
Sure enough, I took the denial of my motion up on appeal, and a unanimous court found that MFAA (fee dispute) arbitrations are protected under the anti-SLAPP statute, and could not act as a predicate for a malicious prosecution action. The Court of Appeal reversed the denial, and sent the matter back to the trial court with instructions to grant my motion.
Time to recover the attorney fees.
Following a successful anti-SLAPP motion, attorney fees “must” be awarded, so I filed a motion for attorney fees, seeking my eminently reasonable fees.
Based on my experience, these motions all follow the same pattern. When I bring the original anti-SLAPP motion, the plaintiffs always claim that their complaint is clearly not a SLAPP, and that I am a horrible person, worthy of sanctions, for wasting the court’s time on what is clearly a frivolous motion. In this particular case, plaintiff stated that my motion was “an abuse of the anti-SLAPP statute,” and could be denied out of hand. But after I prevail and bring my motion for attorney fees, the argument is always that the case was so clearly a SLAPP that a first-year student at an online law school could have drafted the anti-SLAPP motion in a couple of hours. Knowing this was coming, I decided to have a little fun.
This case had gone up on appeal, and the appellate court had found the issue so compelling that it ordered its opinion published, in order to make it precedent for future cases. The lengthy opinion made clear that this was a matter of first impression, and commented on the sophisticated interplay of the various issues, and the “conundrum” they presented.
Thus, I wrote that only a fool would make the argument that this motion and appeal could have been handled in short order. It would, of course, be fair and appropriate for plaintiff to challenge individual time entries if he felt them to be excessive, but at least in this instance we would not have to hear the usual hackneyed claim that this was a garden variety anti-SLAPP motion, requiring almost no time to research and present.
Despite my throwing of the gauntlet, Plaintiff (who represented himself) opened with:
This case presented an issue that did not require re-inventing all of anti-SLAPP law and could have been easily addressed with less than 3 hours of work at the trial court and the Court of Appeal.
The Expert.
Plaintiff retained an expert to audit my fee application. The time I was seeking consisted of 58 time entries, all set forth and attested to in my declaration. Plaintiff’s expert provided a 65-page declaration, attacking my time. He prepared a spreadsheet, setting forth each if my 58 entries, and then utilized a clever A to E lettering system (one I will likely use in the future when I am retained to audit invoices), identifying time that should be adjusted for being Administrative, Block billing, Duplicative, or Excessive (I wasn’t guilty of “C” and forget what it was). Of my 58 time entries, he found that 100% of them were guilty of one offense or another, with 48 of them being excessive.
Additionally, based on something called the Real Rate Report, he suggested that my hourly rate should be reduced to the median rate, despite my more than 30 years of experience. Never mind that not a single published decision in California has ever relied on the Real Rate Report.
The expert chastised me for engaging in block billing, citing three such examples, and explaining that my fee application could be denied altogether on that basis, because block billing makes it impossible for the court to determine if the time was reasonable. One of the three examples was an instance where I billed 1.4 hours as: “Travel to and oral argument at Court of Appeal.” According to the expert, that made it impossible for the court to determine how much time was spent on travel, and how much was spent arguing. In rebuttal, I suggested that the court could instead determine whether 1.4 hours is a reasonable amount of time to travel through early morning traffic in San Francisco (pre-pandemic), find a parking space, arrive at the court the required 30 minutes early to check in, sit through the calendar, and then finally argue.
The Court’s conclusions.
The Court was having none of this. Some of my favorite statements from the ruling were:
[P]laintiff contends that the fees sought by defendant are excessive, in part because defendant’s counsel has expertise in anti-SLAPP litigation that predates this litigation. However, plaintiff’s repeated rhetorical claim that all that defendant did was file generic “template” motion papers or “copied and pasted” from other sources is unsupported by any evidence, and is belied by the court’s review of the papers themselves. While succinct, they appropriately framed and well presented the issue to be decided by the court. Likewise, the briefs on appeal (which were considerably longer) were not merely copies of the moving papers, but represented an independent approach to the issues on appeal. (And appropriately so: “The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product.” (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 410.)) Nor, contrary to plaintiff’s contention, is there anything “jawdropping” about the amount of the award sought by defendant for fees incurred both in the trial court and on appeal. (See, e.g., Raining Data Corp., 175 Cal.App.4th at 1367, 1375 [affirming award of $112,353.75 in fees incurred on anti-SLAPP motion alone]; TDE, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219 [affirming award of $55,900 in attorney fees for anti-SLAPP motion, rejecting claim that fees were unreasonable or duplicative].)
Finally, the 23-page [Expert] declaration (65 pages with exhibits) submitted by plaintiff in opposition to the motion consists in large part of factual and legal argument, complete with extensive legal citations, that is not properly included in an expert declaration, and appears to represent an attempt to evade the local rule’s page limitations. The court will disregard those portions of the declaration.
Mr. [Expert] opines first that counsel’s hourly rate is above the market rate for similar litigation, and that the reasonable rate for comparable legal services in the local community for non-contingent litigation is $430 per hour. The court disagrees.
The court finds based on its own experience and knowledge from countless fee motions, as well as on the Laffey Fee Matrix, that counsel’s hourly rate is entirely reasonable, and indeed is notably modest in light of defendant’s expertise in this specialized area of the law. (See 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 248 Cal.App.4th 125, 135 [in determining reasonable hourly rate, trial court was not bound by opinions submitted by moving party’s expert].) Indeed, appellate courts have commented on the complexity and volume of reported anti-SLAPP litigation. (See Grewal v. Jammus (2011) 191 Cal.App.4th 977, 989 [referring to the “explosion” of anti-SLAPP decisions, and observing that “one cannot pick up a volume of the Official Reports without finding an anti-SLAPP case. Or four.”].) Moreover, the appeal presented a question of first impression that was not squarely addressed by existing authority, which doubtless was the reason that the Court of Appeal designated its opinion for publication.
The Result.
The court did cut a little of my time. Following the appeal, the Plaintiff had brought a motion to amend the complaint, attempting to circumvent the SLAPP statute, but after I filed my opposition, he took the motion off calendar. I argued that time related to the anti-SLAPP, since if the motion had been granted, it would have basically rendered the anti-SLAPP ruling pointless. The court disagreed. I submitted on the tentative and did not argue the point. I’ll write if off so my client doesn’t have to bear that expense.
A fantastic result after 605 days of fighting. And lest anyone claim to the contrary, a court of law has now ruled that I am “notably modest.” It’s the law.