The Little Cottage Caregivers v. Katchko CA2/7 ( 2022 )

Filed 2/18/22 The Little Cottage Caregivers v. Katchko CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE LITTLE COTTAGE B306133
CAREGIVERS, LLC et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. 19STCV02797)
v.
YELENA KATCHKO et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, David Sotelo, Judge. Affirmed.
Reif Law Group, Brandon S. Reif, Marc S. Ehrlich and
Ohia A. Amadi for Defendants and Appellants.
Law Offices of JT Fox and J.T. Fox; Law Office of Kathryn
M. Davis and Kathryn M. Davis for Plaintiff and Respondent
The Little Cottage Caregivers, LLC.
_______________________
Attorney Yelena Katchko and her law firm Katchko,
Vitiello & Karikom, P.C. (KVK; collectively, the Katchko
defendants) appeal from an order denying their motion for
attorneys’ fees and costs after the trial court granted their special
motion to strike (Code Civ. Proc., § 425.16; anti-SLAPP statute)1
the complaint for fraud and related claims filed by Adie Meiri,
Vietnam Nguyen, and Little Cottage Caregivers, LLC (Little
Cottage; collectively, the Little Cottage plaintiffs). The Katchko
defendants contend section 425.16, subdivision (c), mandates that
a prevailing defendant on a special motion to strike “shall”
recover its attorneys’ fees, and the trial court did not have
discretion to deny fees entirely. Little Cottage argues the trial
court had discretion to deny an unreasonable fee request, and the
court did not abuse its discretion because the Katchko
defendants’ fees motion was inflated and unsupported.2 We agree
the trial court had discretion to deny an unreasonable request for
fees and conclude the Katchko defendants waived any challenge
to the court’s exercise of discretion. We affirm.
1 “‘“SLAPP” is an acronym for “strategic lawsuit against
public participation.”’” (Monster Energy Co. v. Schechter (2019)
7 Cal.5th 781, 785, fn. 1.) All further undesignated statutory
references are to the Code of Civil Procedure.
2 The respondent’s brief is filed on behalf of only Little
Cottage. Meiri and Nguyen have not appeared in this appeal.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Lawsuits3
The parties’ dispute concerns competing claims to
ownership of Little Cottage, a medical cannabis collective
founded by Nguyen in 2006. In June 2016 Tzehou Kung retained
the Katchko defendants to assist him in purchasing Little
Cottage from Don Yoo for $1.2 million. Yoo had acquired Little
Cottage in 2014 from Yun Taek “Scott” Kang, who had acquired it
from Nguyen sometime between 2012 and 2014. However, in late
2016—while Kung and the Katchko defendants were finalizing
Kung’s acquisition—Meiri asserted he was the true owner of
Little Cottage, having purchased 50 percent of the business from
Nguyen in 2010 and another 35 percent through exercise of an
option in 2011. Meiri claimed Kang’s 2012 purchase had been
fraudulent and the documents demonstrating his ownership of
Little Cottage were false.
In January 2017 the Katchko defendants represented Kung
in filing a lawsuit against Meiri for conversion and declaratory
relief, among other claims, seeking to establish Kung as the
owner of Little Cottage. (Little Cottage Caregivers, LLC v. Meiri
(Super. Ct. L.A. County, No. SC126909) (Little Cottage I).) After
a bench trial, in August 2018 the trial court 4 found Meiri owned
85% of Little Cottage and was its managing member, and the
court enjoined Kung from operating Little Cottage and using its
3 Our summary is based on the undisputed facts in the trial
court’s August 22, 2019 order granting the Katchko defendants’
special motion to strike and the exhibits to the October 25, 2019
declaration of Ohia Amadi in support of the fees motion.
4 Judge Gerald Rosenberg.
3
name and goodwill and ordered Kung removed from its corporate
documents and licenses. Kung appealed the judgment.5
On January 28, 2019 Little Cottage, Meiri, and Nguyen
filed the instant action against the Katchko defendants, Kung,
Yoo, Kang, and eight other parties involved in Kung’s acquisition
of Little Cottage. The complaint asserted nine causes of action
against the Katchko defendants: theft by false pretenses, fraud,
negligent misrepresentation, intentional interference with
contractual relations, intentional interference with prospective
business advantage, conversion, defamation, unlawful business
practices, and for an accounting. The complaint alleged Katchko
was the “mastermind” behind Kung’s scheme to steal Little
Cottage from Meiri in that despite learning of Meiri’s claim of
ownership in July 2016, the Katchko defendants prepared the
purchase agreement and corporate documents to transfer Little
Cottage to Kung and establish Kung as the company manager.
The Katchko defendants also “prepared and filed numerous
fraudulent documents with various government entities
misrepresenting the ownership of [Little Cottage].” They joined
in the fraud so they could receive a $346,000 commission on the
transaction.
5 After the instant appeal was filed, Division Three of this
district reversed the judgment in Little Cottage I, holding that
substantial evidence did not support the trial court’s findings
that Kung had constructive notice of Meiri’s interests and was
not a bona fide purchaser of Little Cottage. The Court of Appeal
ordered the trial court to enter a judgment declaring Kung a 50
percent owner of Little Cottage (which was not disputed), but it
remanded for further proceedings as to Meiri’s claim he owned an
additional 35 percent of the company. (Little Cottage Caregivers
v. Meiri (Aug. 21, 2020, B294533) [nonpub. opn.].)
4
B. The Katchko Defendants’ Anti-SLAPP Motion
On April 25, 2019 the Katchko defendants filed a 16-page
special motion to strike the complaint under section 425.16. They
argued the Little Cottage plaintiffs’ claims were all based on
protected activity under section 425.16, subdivision (e)(1) and
(2),6 because the claims were “based entirely on the alleged pre-
litigation and litigation conduct as counsel for Kung in [Little
Cottage I].” Specifically, the complaint “admits that the [Katchko
defendants] represented Kung in connection with his purchase of
[Little Cottage], that they filed documents with various state and
city regulatory bodies to protect Kung’s interest in [Little
Cottage], that they disputed Meiri’s ownership interest in [Little
Cottage], and that they filed [Little Cottage I] to resolve the
controversy with respect to the ownership of [Little Cottage].”
(Citations omitted.) The Katchko defendants further argued the
Little Cottage plaintiffs would be unable to demonstrate a
probability of prevailing on the merits because the litigation
privilege (Civ. Code, § 47) barred all of the claims in the
complaint, and moreover, the claims had other legal defects.
Katchko submitted a five-page declaration in support of the
motion describing her and KVK’s work on behalf of Kung in
6 Section 425.16, subdivision (e), defines an act protected by
the anti-SLAPP statute to include, among other acts, “(1) any
written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding
authorized by law” and “(2) any written or oral statement or
writing made in connection with an issue under consideration or
review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law.”
5
acquiring Little Cottage, her communications with Meiri and his
affiliates, and the Little Cottage I litigation. KVK partner
Giandominic Vitiello submitted a four-page declaration covering
similar topics. Both Katchko and Vitiello submitted documentary
evidence with their declarations.
In their opposition, the Little Cottage plaintiffs argued the
complaint did not arise from protected activity and the Katchko
defendants’ conduct did not fall within the litigation privilege
because the allegations were not limited to litigation activity but
more broadly alleged a criminal scheme in which “Katchko
orchestrated the entire chain of events necessary to steal TLCC’s
license.” The Little Cottage plaintiffs also addressed the asserted
infirmities in each cause of action and submitted declarations
from Nguyen, Meiri, Meiri’s father, and their attorney, Reza
Sina.
The Katchko defendants filed a 10-page reply brief,
evidentiary objections to plaintiffs’ declarations, and a request for
judicial notice.
After a hearing, on August 22, 2019 the trial court 7 granted
the Katchko defendants’ special motion to strike. In its order, the
court held that all of the Little Cottage plaintiffs’ causes of action
involved protected activities under section 425.16, subdivision
(e)(1) and (2), because the alleged conduct “include[d] Defendants’
filing of the underlying action and the filing of documents with
state entities to formalize Kung’s ownership of [Little Cottage].”
The court rejected the Little Cottage plaintiffs’ argument the
Katchko defendants’ conduct was illegal and therefore not
protected under the anti-SLAPP statute, explaining that “[a]t
7 Judge David Sotelo.
6
most Plaintiffs’ documentary evidence would demonstrate that
Defendants were not diligent in verifying the contents of the
documents.” As to the second prong of the anti-SLAPP analysis,
the court found the litigation privilege applied to all of the
Katchko defendants’ activities and the Little Cottage plaintiffs
“cannot establish that their claims have minimal merit.” 8
C. The Katchko Defendants’ Motion for Attorneys’ Fees
On October 25, 2019 the Katchko defendants filed a motion
for attorneys’ fees and costs pursuant to section 425.16,
subdivision (c). They sought $169,476 in fees, comprised of
$126,587 for the special motion to strike and $42,889 for
preparing the fees motion, plus $2,222 in costs. They argued the
trial court should apply the lodestar method for calculating fees
by multiplying the number of hours their lawyers at Reif Law
Group, P.C. (RLG) reasonably expended by the prevailing market
rates for similar work set by the Laffey Matrix.9 They claimed
8 On June 19, 2020 the Little Cottage plaintiffs filed a
motion for reconsideration, which the trial court denied on
September 1, 2020. On September 14, 2021 we denied the
Katchko defendants’ motion to augment the record to include the
trial court’s order on the reconsideration motion because the
order was issued after the appeal was filed.
9 The Laffey Matrix is “a general schedule and pay table for
attorneys put out by the Department of Justice.” (Nemecek &
Cole v. Horn (2012) 208 Cal.App.4th 641, 650-651; accord, Prison
Legal News v. Schwarzenegger (9th Cir. 2010) 608 F.3d 446, 454
[“[T]he Laffey matrix is an inflation-adjusted grid of hourly rates
for lawyers of varying levels of experience in Washington, D.C.”];
see Villanueva v. Account Discovery Systems, LLC (D.Colo. 2015)
77 F.Supp.3d 1058, 1080 [“Although the matrix can be adjusted
for different regions, courts in other districts have found that the
7
hours billed by four RLG partners as follows: Ohia Amadi (141.8
hours at $661 per hour); Rebecca MacLaren (33.3 hours at $747
per hour); Brandon Reif (6.9 hours at $747 per hour); and Marc
Ehrlich (1 hour at $889 per hour). They also claimed hours for
paralegal Cian Williams (9.5 hours at $203 per hour). The
Katchko defendants argued their requested fees were reasonable
in light of the number of causes of action, the high “stakes” of the
case given the accusations of “illicit and fraudulent conduct,” the
potential damages sought in the complaint (exceeding
$18 million), the skill required, the complete success of the
motion to strike, the attorneys’ experience and education, and the
specialized nature of anti-SLAPP practice.
Lead counsel Amadi submitted a supporting declaration
that attached a five-page table of billing entries for the four
attorneys and paralegal who worked on the special motion to
strike, with each entry identifying the date, billing attorney,
number of hours billed, and a description of the work; for many
entries, the work description was partially redacted. The Amadi
declaration also included a printout of the Laffey Matrix from the
website www.laffey.matrix.com and a one-page list of costs with
the date, amount, and a brief description for each cost item. 10
Amadi declared, “In view of the foregoing and based on my
experience working on Anti-SLAPP matters, I believe the number
Laffey Matrix is not ‘more helpful than the rates actually used by
other courts or the rates of law firms.’”].)
10 Although the Katchko defendants did not include the
Amadi declaration in their designation of the record, on
September 14, 2021 we granted their motion to augment the
record to include the declaration, as well as Vitiello’s reply
declaration.
8
of hours expended on the Anti-SLAPP motion was reasonable as
are the billing rates for this case.”
In their opposition, the Little Cottage plaintiffs argued the
fees requested by the Katchko defendants were excessive,
unreasonable, and duplicative, and they should be reduced
significantly or denied entirely. For example, 10.5 hours were
billed for reviewing the complaint; 12.9 hours for legal research
on the special motion to strike; 17.2 hours for “strategy” on the
motion; 69.2 hours for outlining and preparing the motion; 13.6
hours for preparation of the declarations; and 9.3 hours to
prepare for the hearing. Sina stated in his declaration that his
firm, by comparison, spent 65 hours on the entire case, including
15 hours opposing the special motion to strike.
The Little Cottage plaintiffs also asserted, based on an
analysis of the billing records detailed in the declaration of their
attorney J.T. Fox, that the Katchko defendants billed 23.1 hours
for work unrelated to the special motion to strike, including
“evaluating the complaint, initial case strategy, filing case
management statements and jury fees, correspondence about
service of documents/pleadings, carrier reports, work on criminal
matters, and other matters unrelated to the SLAPP motion.” 11
Further, 24.1 hours of billing entries were vague, ambiguous, or
uncertain, due to excessive redactions. For example, an entry of
2.5 hours by Amadi was redacted to contain only the description
11 For example, the timesheets included several entries
relating to service of the complaint, such has “Call with R. Sena,
opposing counsel, re service of complaint and opposing counsel
providing an acknowledgment of service.” Williams also billed for
time to “Prepare Notice of Jury Fees Deposit,” and the Katchko
defendants included the jury fees in their cost request.
9
“[a]nalyze potential arguments.” In addition, the Katchko
defendants submitted no billing records for the $42,889 in
attorneys’ fees sought for the fees motion. Moreover, the 192.5
hours spent by the Katcho defendants were unreasonable because
the litigation was not complex and “the only issue in the motion[]
was disproving plaintiffs’ probability of prevailing” because there
was no substantial issue whether the lawsuit was subject to a
special motion to strike.
Finally, the Little Cottage plaintiffs argued that because
the fees requested were “unusually inflated,” the Katchko
defendants’ “motion should be denied outright, and no attorney
fees or costs awarded,” citing the Supreme Court’s statement in
Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano) that “[a]
fee request that appears unreasonably inflated is a special
circumstance permitting the trial court to reduce the award or
deny one altogether.”
In their reply, the Katchko defendants argued that courts
have drastically reduced an award of attorneys’ fees only in cases
where “evidence of padding [was] pervasive,” which was not
applicable to their motion. They did not, however, argue a trial
court has no discretion to deny a prevailing anti-SLAPP
defendant’s fees motion altogether. Nor did they respond to any
of the Little Cottage plaintiffs’ challenges to individual time
entries, and they did not seek to introduce further evidence
regarding their attorneys’ bills or fees incurred on the fees
motion.
D. The Trial Court’s Order
At the March 2, 2020 hearing on the attorneys’ fees motion,
the trial court issued a tentative ruling to award the Katchko
10
defendants $95,777 in fees and costs.12 The tentative ruling
included a finding “it was excessive for so many senior attorneys
to work on this motion, especially considering[] Amadi’s own
substantial knowledge and experience in anti-SLAPP matters,”
and although “the complaint involved nine causes of action, the
anti-SLAPP issue was not particularly complex.” Accordingly,
the court indicated it would credit only the 141.8 hours Amadi
billed to the special motion to strike at his standard hourly rate
of $460 (rather than $661 per hour requested under the Laffey
Matrix) and exclude the fees billed by the other attorneys, for a
total fee award of $65,228 on the special motion to strike. With
respect to the fees motion, the court stated it intended to credit
RLG’s full hours spent on that motion at the firm’s standard
blended hourly rate of $425, for a total of $28,327. The court
tentatively stated it would award the requested $2,222 in costs.13
At the hearing, Amadi argued for the Katchko defendants
that the trial court should award the 33.3 hours billed by
12 On February 26, 2021 we granted the Katchko defendants’
motion to augment the record to include the trial court’s tentative
ruling.
13 The trial court stated in its tentative ruling that the Little
Cottage plaintiffs did not dispute the $2,222 in costs claimed by
the Katchko defendants. In fact, the Little Cottage plaintiffs
argued in their opposition that “the cost entries contained in
defendants’ itemized request for costs. . . are insufficiently
certain to inform the plaintiff and the Court as to the exact
nature of the costs incurred and whether or not these costs were
connected to the SLAPP Motion. For this reason, defendants
should not receive the full amount of costs requested in their
moving papers and any costs award [should be] reduced
accordingly.”
11
MacLaren because MacLaren was experienced in anti-SLAPP
matters and “was brought in to help prepare . . . the anti-SLAPP
motion itself while [Amadi] did the day-to-day on the case.”
Further, the special motion to strike was not straightforward and
included “substantial evidentiary objections.” Amadi stated
RLG’s two associate attorneys “were, I think, busy on other
matters,” so the firm “tried to staff it as leanly as we could” with
the firm’s four partners. Finally, he argued the court should
apply the prevailing market rates instead of RLG’s standard
rates because the prevailing market rate is presumptively
reasonable.
Fox argued on behalf of the Little Cottage plaintiffs that
the tentative ruling to award 141.8 hours for Amadi’s work was
grossly excessive, and the “huge difference” between Amadi’s
hours and the 75 hours the plaintiffs’ attorneys collectively spent
on the matter showed the fees motion was “completely devious
and beyond reality” and would result in a “windfall” for the
Katchko defendants. Further, it was “highly unlikely” that the
Katcho defendants spent five full weeks to prepare their special
motion to strike, and their fees motion was simply a “cut and
paste.” He reiterated his argument that specific billing entries
were excessive or did not exist, citing the 17 hours the Katchko
defendants spent on “strategy” to prepare the special motion to
strike in addition to the time billed to prepare the motion. Asked
by the court what the Little Cottage plaintiffs believed would be
an appropriate amount of attorneys’ fees to award, Fox
responded, “[O]ur request is that this court determine that 75
hours be the reasonable time spent in calculating its fees.” Fox
did not argue the motion should be denied altogether, and neither
party addressed the requested costs.
12
The court took the motion under submission to “look at
these numbers one more time.” On March 23, 2020 the court
issued a one-page minute order denying the motion, in which it
did not state the basis for its ruling. The Katchko defendants
timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
“[A] prevailing defendant on a special motion to strike shall
be entitled to recover his or her attorney’s fees and costs.”
(§ 425.16, subd. (c)(1); accord, Barry v. State Bar of California
(2017) 2 Cal.5th 318, 322.) “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.’”” (569 East County Boulevard LLC v. Backcountry Against
the Dump, Inc. (2016) 6 Cal.App.5th 426, 432 (569 East); accord,
Christian Research Institute v. Alnor (2008) 165 Cal.App.4th
1315, 1321 (Christian Research).) “[T]rial courts must carefully
review attorney documentation of hours expended; ‘padding’ in
the form of inefficient or duplicative efforts is not subject to
compensation.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132
(Ketchum); accord, Christian Research, at p. 1321.) Moreover, “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]
13
summary judgment research.’” (569 East, at p. 433; accord,
Christian Research, at p. 1325.) “‘[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.’” (569 East, at p. 432; accord,
Christian Research, at p. 1320.)
We generally review a trial court’s ruling on a motion for
attorneys’ fees under section 425.16, subdivision (c), for an abuse
of discretion. (569 East, supra, 6 Cal.App.5th at p. 433; see
Russell v. Foglio (2008) 160 Cal.App.4th 653, 661 [“‘The
reasonableness of attorney fees is within the discretion of the
trial court, to be determined from a consideration of such factors
as the nature of the litigation, the complexity of the issues, the
experience and expertise of counsel, and the amount of time
involved.’”].) However, the Katchko defendants contend their
appeal raises “a purely legal issue” whether a trial court may
deny attorneys’ fees entirely under section 425.16, subdivision (c),
and they argue we “need not and should not reach the question of
whether the amount of the attorney fees sought by the [m]otion
was ‘reasonable.’” Accordingly, we review the legal question
whether a trial court may deny a prevailing defendant’s fees
motion under section 425.16 de novo. (See City of Vallejo v.
NCORP4, Inc. (2017) 15 Cal.App.5th 1078, 1085 [“‘“when
reviewing the interpretation and application of a statute where
the ultimate facts are undisputed”’ an appellate court exercises
its independent judgment”]; accord, Dobos v. Voluntary Plan
Administrators, Inc. (2008) 166 Cal.App.4th 678, 683 [“proper
interpretation of a statute, and its application to undisputed
facts, presents a question of law that the appellate court reviews
independently”].)
14
B. The Trial Court Had Discretion To Deny the Attorneys’ Fees
Motion
The Katchko defendants contend that because
section 425.16, subdivision (c), provides that a prevailing
defendant on a special motion to strike “shall” recover its fees and
costs, the trial court had no discretion to deny their fees motion
in its entirety. Contrary to their contention, the Supreme Court
and Courts of Appeal have consistently recognized that a trial
court has discretion under the anti-SLAPP statute to deny an
unreasonably inflated attorneys’ fees motion.
In Ketchum, supra, 24 Cal.4th at page 1137, the Supreme
Court held a trial court may include a multiplier when awarding
attorneys’ fees to a prevailing party under section 425.16,
subdivision (c), observing that “attorney fees may be awarded
only for hours reasonably spent, thus discouraging unnecessary or
frivolous litigation. . . . ‘A fee request that appears unreasonably
inflated is a special circumstance permitting the trial court to
reduce the award or deny one altogether.’” (Quoting Serrano,
supra, 32 Cal.3d at p. 635 [examining fee-shifting in a private-
attorney-general action under section 1021.5 in light of federal
case law and recognizing that if trial courts “‘were required to
award a reasonable fee when an outrageously unreasonable one
has been asked for, claimants would be encouraged to make
unreasonable demands, knowing that the only unfavorable
consequence of such misconduct would be reduction of their fee to
what they should have asked in the first place. To discourage
such greed, a severer reaction is needful.’”].) The Ketchum court
underscored, “To the extent a trial court is concerned that a
particular award is excessive, it has broad discretion to adjust the
15
fee downward or deny an unreasonable fee altogether.”
(Ketchum, at p. 1138.)
Since the Supreme Court decided Ketchum, courts have
recognized a trial court’s discretion to dramatically reduce or
deny an unreasonable fees motion in connection with anti-SLAPP
motions and motions made under other fee-shifting statutes. In
Christian Research, supra, 165 Cal.App.4th at pages 1319
through 1320, the Court of Appeal affirmed the trial court’s order
reducing a prevailing anti-SLAPP defendant’s compensable hours
from 639 hours to 71 hours (of which only 31 hours were incurred
in the trial court proceedings). The court acknowledged,
“Because the Legislature specified the prevailing defendant ‘shall
be entitled to recover his or her attorney’s fees and costs’
(§ 425.16, subd. (c)), an award is usually mandatory.” (Christian
Research, at p. 1321, citing Ketchum, supra, 24 Cal.4th at
pp. 1131, 1137-1138.) “The Legislature, however, did not intend
recovery of fees and costs as a windfall. [Citations.] . . . [¶]
Inflated fee requests constitute a special circumstance. In
emphasizing that a trial court retains the discretion to award
attorney fees in an amount that is less than the lodestar amount,
the Ketchum court noted, ‘“To the extent 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.”’” (Christian Research, at pp. 1321-1322.) “When the
trial court substantially reduces a fee or cost request, we infer the
court has determined the request was inflated. [Citation.] The
trial court is not required to issue a statement of decision.”
(Id. at p. 1323.) Applying these principles, the Christian
Research court concluded the trial court did not abuse its
discretion in reducing the defendant’s fees by nearly 90 percent
16
in light of findings the special motion to strike “was not
particularly complicated for an anti-SLAPP motion” and was
“overstaffed” with five attorneys, and “the court could reasonably
determine counsel’s fee request was unreasonably padded, vague,
and worthy of little credence.” (Id. at p. 1326.)
In 569 East, supra, 6 Cal.App.5th at pages 440 to 441, the
Court of Appeal similarly affirmed the trial court’s reduction of a
prevailing anti-SLAPP defendant’s request for attorneys’ fees by
almost 80 percent, explaining, “[T]he court could conclude 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. [Citation.]
Finally, the court could have concluded a substantial number of
the hours claimed by [defendant] were unnecessary.”
In Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 991,
the Supreme Court held the trial court did not abuse its
discretion in denying entirely a motion for prevailing party
attorneys’ fees on a workplace retaliation claim under the Fair
Employment and Housing Act (FEHA; Gov. Code, § 12900 et
seq.). Citing Ketchum, supra, 24 Cal.4th at page 1137 and
Serrano, supra, 32 Cal.3d at page 635, the Supreme Court held
“the trial court reasonably could and presumably did conclude
that plaintiff’s attorney fee request . . . was grossly inflated when
considered in light of the single claim on which plaintiff
succeeded, the amount of damages awarded on that claim, and
the amount of time an attorney might reasonably expect to spend
17
in litigating such a claim. This fact alone was sufficient, in the
trial court’s discretion, to justify denying attorney fees
altogether.” (Chavez, at p. 991; see Guillory v. Hill (2019)
36 Cal.App.5th 802, 812, 814-815 [affirming trial court order
denying in its entirety prevailing plaintiffs’ request for $3.8
million in attorneys’ fees on civil rights claim under 42
U.S.C.§ 1988 where trial court found the attorneys’ time entries
were overinclusive, redundant, and padded, thereby “‘destroying
the credibility of the submission and . . . justifying a severe
reduction’”].)
The Katchko defendants do not cite any contrary authority,
nor is there, for their contention a trial court lacks authority to
deny a prevailing defendant’s unreasonable motion for attorneys’
fees in its entirety. They are correct that Christian Research
involved a reduction of fees, not an outright denial, and Guillory
concerned prevailing plaintiff attorneys’ fees under FEHA, which
are discretionary (as are attorneys’ fees under 42 U.S.C.
section 1988 at issue in Chavez). But we find persuasive the
application by Christian Research and 569 East of the Supreme
Court’s unequivocal language in Ketchum, supra, 24 Cal.4th at
page 1137 that a trial court has authority to deny an
“unreasonably inflated” fees motion under section 425.16,
subdivision (c). We recognize it was unusual (and not a favored
practice) for the trial court to issue a detailed tentative ruling
analyzing and cutting in half the requested attorneys’ fees, then
to deny all attorneys’ fees without an explanation, especially
given that the Little Cottage plaintiffs did not press the court at
the hearing to deny all attorneys’ fees. But Little Cottage
presented evidence and argument that the Katchko defendants’
attorney bills were “completely devious and beyond reality” and
18
would result in a “windfall,” and the trial court stated it intended
after taking the fees motion under submission to “look at these
numbers one more time.” In further reducing the fees to zero, we
infer the trial court found the request was inflated. (Christian
Research, supra, 165 Cal.App.4th at p. 1323.)
C. The Katchko Defendants Waived Any Challenge to the Trial
Court’s Exercise of Discretion
As discussed, the Katchko defendants maintain in their
reply brief that “this Court need not and should not reach the
question of whether the amount of attorney fees sought by the fee
[m]otion was ‘reasonable.’ That question is outside the scope of
the purely legal issue in this appeal.” 14 However, they also argue
that “[i]f this Court nonetheless addresses the ‘reasonableness’ of
the trial court’s decision to award zero attorney fees (i.e., by the
outright denial of the Fee Motion), it should find that the trial
court’s ‘award’ of zero attorney fees was unreasonable, arbitrary,
and an abuse of discretion.”
The Katchko defendants have waived the argument their
request for attorneys’ fees and costs was reasonable and thus the
trial court abused its discretion in denying their fees motion,
14 The Katchko defendants did not include in their
designation of record their fee declarations and other supporting
evidence, although they later moved to augment the record to
include these documents, which motion we granted. Little
Cottage argued in its respondent’s brief that “[b]ecause [the
Katchko defendants] failed to rely on the omitted evidence to
demonstrate an abuse of discretion or prejudicial error in denying
fees (instead, arguing only that the court lacked legal power to do
so), the evidence is not directly relevant to [their] sole contention
on appeal, and any unbriefed argument is waived.”
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because they failed to raise the argument in their opening brief
and affirmatively argued in their reply brief we should not reach
this issue. (See People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9,
[“the claim is omitted from the opening brief and thus waived”];
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363
[“If a party’s briefs do not provide legal argument and citation to
authority on each point raised, ‘“the court may treat it as waived,
and pass it without consideration.”’”].) We therefore affirm the
trial court’s order denying the Katcho defendants’ motion for
attorneys’ fees and costs.
DISPOSITION
The order denying the Katchko defendants’ motion for
attorneys’ fees and costs is affirmed. Little Cottage is to recover
its costs on appeal.
FEUER, J.
We concur:
PERLUSS, P.J.
SEGAL, J.
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