Timothy W. v. Julie W. CA4/3 ( 2022 )

Filed 10/26/22 Timothy W. v. Julie W. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
TIMOTHY W.,
Plaintiff and Appellant, G059837
v. (Super. Ct. No. 30-2019-01101730)
JULIE W. et al., OPINION
Defendants and Respondents.
Appeal from an order of the Superior Court of Orange County, Gregory H.
Lewis, Judge. Affirmed.
The Law Office of Douglas S. Honig and Douglas S. Honig for Plaintiff
and Appellant.
Smith LC, Stephanie P. Alexander, John S. Clifford and Tesleem A. Azeez
for Defendant and Respondent Julie W.
Ropers Majeski, German Ariel Marcucci and Terry Anastassiou for
Defendant and Respondent Ronnie Dean Echavarria, Sr.
* * *
Plaintiff Timothy W. appeals the trial court’s attorney fee order following
the partial grant of special motions to strike pursuant to Code of Civil Procedure section
1
425.16 (the anti-SLAPP statute) filed by defendants Julie W. and Ronnie Dean
Echavarria, Sr. (defendants). The court granted Julie $88,561.25 and Echavarria
$115,060 in attorney fees. Timothy puts forth various contentions as to why the attorney
fee orders should be reversed. Because these arguments lack any legal merit, we affirm
the order.
I
FACTS
A full statement of the facts can be found in the companion case, Timothy
W. v. Julie W. (Oct. 26, 2022, G059429) [nonpub. opn.] (Timothy W.). For our purposes,
it is sufficient to say that Timothy and Julie were married from 1995 until Timothy filed
for dissolution in June 2018. During the dissolution proceedings, Julie hired Echavarria,
a private investigator. Julie disclosed information to Echavarria that she had allegedly
promised Timothy she would never reveal (the sensitive information). Echavarria
allegedly told other people connected with the dissolution case, which resulted in the
disclosure of the sensitive information to several other people. (Timothy W., supra,
G059429.)
Timothy subsequently sued defendants in civil court while the dissolution
case was pending. His first amended complaint alleged 12 causes of action: (1) Breach
of Oral Contract; (2) Breach of Oral Contract (Specific Performance); (3) Breach of
Implied Covenant of Good Faith and Fair Dealing; (4) Breach of Fiduciary Duty; (5)
Breach of Obligation of Confidential Relationship and Communications; (6) Intentional
Infliction of Emotional Distress; (7) Negligent Infliction of Emotional Distress;
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Subsequent statutory references are to the Code of Civil Procedure unless otherwise
indicated.
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(8) Negligence; (9) Gross Negligence; (10) Invasion of Privacy (Including Public
Disclosure of Private Facts); (11) Defamation; and (12) Injunctive Relief (Temporary
Restraining Order, Preliminary Injunction, And Permanent Injunction). Echavarria was
named in all claims except for breach of oral contract and “breach of obligation of
confidential relationship and communications.” (Timothy W., supra, G059429,
boldfacing & capitalization omitted.)
Defendants filed individual anti-SLAPP motions in November 2019.
(Timothy W., supra, G059429.) Between November 2019 and July 27, 2020, when the
court ruled upon the motion, Timothy filed numerous noticed or ex parte motions. These
included motions to seal the record, motions to reopen discovery despite the automatic
stay (§ 425.16, subd. (g)), and a motion to exceed page limits, all directly related to the
anti-SLAPP motions. Defendants were required to respond, attend hearings, or both.
With the exception of filing certain documents under seal, Timothy was largely
unsuccessful in these efforts.
The court’s ruling on the anti-SLAPP motion granted Julie’s motion as to
all ten of Timothy’s tort causes of action, leaving only the two breach of contract claims.
Echavarria’s motion was granted in its entirety. In doing so, the court rejected numerous
arguments that Timothy had advanced, including that defendants’ conduct was not
protected under the narrow criminal exception explained in Flatley v. Mauro (2006) 39
Cal.4th 299, and that Julie had “waived” the protection of the anti-SLAPP statute by
virtue of the alleged contract she entered into with him. The court found that the tort
claims were subject to the litigation privilege, but the contract claims were not.2
2
In the companion case, we disagreed as to the breach of contract claims and found, for
various reasons, that Timothy had not met his burden to put forth a prima facie case. We
also rejected his argument that the tort claims were not subject to the litigation privilege.
(Timothy W., supra, G059429.)
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Defendants subsequently filed motions for attorney fees. Julie requested
$91,777.25 in total. Echavarria sought $83,825.25 and costs of $1,936.90 actually paid,
or alternatively, a prevailing community rate of $200,523.20. The motions were fully
briefed by all parties. Timothy’s oppositions requested, for various reasons, that Julie’s
fees be reduced to no greater than $58,904.95 and Echavarria’s to no greater than
$55,541.85. Among other things, Timothy argued that the court’s decision to strike 10 of
12 causes of action only “marginally” advanced Julie’s litigation posture and there was
no evidence that Echavarria incurred any attorney fees, apparently because his bills were
addressed to an insurance company.
The motion was heard at a hearing on January 4, 2021. After listening to
the parties’ arguments, the court noted: “[t]his case did not involve a simple
straightforward anti-SLAPP motion. Instead, the anti-SLAPPs were complicated by
Plaintiff’s nine ex parte applications to conduct discovery, twice, to file oversized briefs,
to seal the records, to set the time for opposition and to continue the hearings. Plaintiff’s
tactics were the primary reason the recoverable fees in this case were more than the
routine anti-SLAPP motion.” Quoting from Peak-Las Positas Partners v. Bollag (2009)
172 Cal.App.4th 101, 114, the court stated: “A party ‘cannot litigate tenaciously and then
be heard to complain about the time necessarily spent by the opponents in response.’”
The court also reviewed the relevant provision of the anti-SLAPP statute
and case law, noting that prevailing defendants in an anti-SLAPP motion were entitled to
attorney fees as a matter of right. To begin assessing attorney fees, the court starts with
the lodestar, based on a computation of the time spent and the reasonable hourly fee for
each attorney. As to Julie’s request, the court found the hourly rates billed by the various
attorneys were reasonable. Rejecting Timothy’s argument to the contrary, the court also
found that all of the hours billed, including the hours on Timothy’s various ex parte
applications and noticed motions, were recoverable because they related to the anti-
SLAPP motion. The court determined the evidence submitted was sufficient to establish
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the hours spent. As to the issue of Julie’s motion being partially successful, the court
stated: “The anti-SLAPP motion was nearly completely successful except for the minor
issue of the litigation privilege as it concerned the first and second causes of action for
breach of contract. The anti-SLAPP motion substantially advanced [Julie’s] posture in
the case.” The court excluded some work performed by an out-of-state attorney and
reduced the $91,777.25 requested to a net award of $88,561.25 in fees and costs.
As to Echavarria, the court rejected Timothy’s argument regarding
insurance paying for Echavarria’s defense. The court issued its award at a prevailing fee
rate, due to Echavarria’s insurance coverage, which had resulted in discounted rates
billed by his attorneys. Therefore, the court awarded him the reasonable value of the
worked performed, which was $115,060. Timothy appeals.
II
DISCUSSION
Statutory Framework and Standard of Review
As relevant here, pursuant to section 425.16, subdivision (c)(1): “[A]
prevailing defendant on a special motion to strike shall be entitled to recover his or her
attorney’s fees and costs.” (Italics added.) Attorney fees for a prevailing defendant in an
anti-SLAPP case are not at the court’s discretion; the court must award them. (Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum) [A “SLAPP defendant who brings a
successful motion to strike is entitled to mandatory attorney fees”].) A defendant may
recover fees for the time spent on the anti-SLAPP motion, not the entire case. (S.B.
Beach Properties v. Berti (2006) 39 Cal.4th 374, 381.)
In determining what constitutes the “anti-SLAPP motion,” we look to the
purpose of the statute. The purpose of the attorney fee provision in the anti-SLAPP
statute is “compensating the prevailing defendant for the undue burden of defending
against litigation designed to chill the exercise of free speech and petition rights.” (Barry
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v. State Bar of California (2017) 2 Cal.5th 318, 327-328.) Courts must construe the anti-
SLAPP statute “broadly . . . so as to effectuate the legislative purpose of reimbursing the
prevailing defendant for expenses incurred in extricating herself from a baseless lawsuit.”
(Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 446.)
Accordingly, anti-SLAPP fee awards “should be fully compensatory” and,
“absent circumstances rendering the award unjust, an attorney fee award should
ordinarily include compensation for all the hours reasonably spent, including those
relating solely to the fee.” (Ketchum, supra, 24 Cal.4th at pp. 1133-1134.) Courts use
the lodestar method as a starting point for attorney fee awards. To reach a lodestar
amount, the number of reasonable hours spent, “multiplied by the prevailing rate for
private attorneys in the community conducting noncontingent litigation,” is calculated.
(Id.at p. 1133.)
Timothy argues our standard of review is, at least in part, de novo, but he is
incorrect. That standard only applies if there is an issue of law or statutory construction.
(Richmond Compassionate Care Collective v. 7 Stars Holistic Foundation (2019) 33
Cal.App.5th 38, 45.) There is no such issue here. The statutory language and the dozens
of cases interpreting it are clear: a prevailing defendant in an anti-SLAPP motion “shall
be entitled” to attorney fees and costs. (§ 425.16, subd. (c)(1).) We therefore use the
generally applicable standard of review, which is for an abuse of the trial court’s
discretion. Under that standard, a reviewing court will not disturb the amount of fees
awarded unless it is clearly wrong. (Ketchum, supra, 24 Cal.4th at p. 1132.) “[T]here is
no question our review must be highly deferential to the views of the trial court.”
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(Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1239.) The burden is on Timothy
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to show error. (Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 556.)
Julie’s Fee Award
Julie’s fee motion sought $91,777.25 in total fees and costs, reflecting
297.2 hours of work in preparation of, and in direct relation to, the anti-SLAPP motion,
as well as filing her motion for fees. The work was done by a paralegal, who billed $150
per hour, and several attorneys, who billed between $240 and $500 an hour. The motion
was supported by a declaration from her lead counsel, John S. Clifford, and over 70 pages
of billing records and related exhibits.
“As the moving party, the prevailing defendant seeking fees and costs
‘“bear[s] 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 [a] defendant[] to produce records sufficient to provide ‘“a proper basis for
determining how much time was spent on particular claims.”’ [Citation.] The court also
may properly reduce compensation on account of any failure to maintain appropriate time
records. [Citation.]’ [Citation.] The evidence should allow the court to consider whether
the case was overstaffed, how much time the attorneys spent on particular claims, and
whether the hours were reasonably expended.” (Christian Research Institute v.
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At numerous points, Timothy attempts to incorporate his papers below into his appellate
brief. His attempts are rejected. “‘[I]t is entirely inappropriate for an appellate brief to
incorporate by reference documents and arguments from the proceedings below. . . .’
[Citations.] ‘An appellant cannot rely on incorporation of trial court papers, but must
tender arguments in the appellate briefs.’” (In re Groundwater Cases (2007) 154 Cal.
App.4th 659, 690, fn. 18.) Further, “[i]t is well established [that] this practice does not
comply with rule 8.204(a)(1)(B) of the California Rules of Court, which requires an
appellate brief ‘support each point by argument and, if possible, by citation of
authority.’” (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285,
290, fns. omitted.) We therefore decline to consider any argument not actually briefed.
(Id. at p. 291.)
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Alnor (2008) 165 Cal.App.4th 1315, 1320.) The evidence here met this criteria. Indeed,
even without detailed billing records, counsel’s declaration, made under penalty of
perjury, is sufficient to support and award of attorneys’ fees under the anti-SLAPP
statute. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 785; see Horsford v.
Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) The
billing records “fall within a narrow but long-recognized exception to the hearsay rule.”
(Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)
Accordingly, Timothy’s contention that parts of the billing records were
“vague and ambiguous” is without merit. His arguments about redactions in the billing
record are also of no moment, as the declaration alone would have been sufficient.
Timothy also argues that the court improperly awarded Julie fees on the
“unsuccessful” parts of her anti-SLAPP motion, and further claims the court failed to
consider that Julie’s litigation posture was “minimally advanced” by her success in
striking 10 of 12 causes of action. He is wrong on both counts.
Generally speaking, “a prevailing party generally may not recover for work
on causes of action on which the party was unsuccessful.” (Mann v. Quality Old Time
Service, Inc. (2006) 139 Cal.App.4th 328, 342.) “The fees awarded to a defendant who
was only partially successful on an anti-SLAPP motion should be commensurate with the
extent to which the motion changed the nature and character of the lawsuit in a practical
way.” (Id. at p. 345.) Timothy asserts that “except as to punitive damages,” the breach
of contract causes of action require proof of the same factual allegations as were in the
stricken tort claims. But this is patently untrue. His claim for intentional infliction of
emotional distress, for example, would have required litigating the issue of whether
disclosing the sensitive information constituted “extreme and outrageous” conduct as a
matter of law. (See Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39
Cal.App.5th 995, 1007.) His breach of fiduciary duty claim would have required
litigating whether a marriage is a fiduciary relationship. The claim for public disclosure
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of private facts and defamation also required defending against different factual
allegations beyond the existence of a contract. The negligence claim required litigating
whether any duty not to disclose existed as a matter of law. And those are just examples.
As the trial court noted, “the anti-SLAPP motion was nearly completely
successful except for the minor issue of litigation privilege as it concerned the first and
second causes of action for breach of contract. The anti-SLAPP motion substantially
advanced defendant’s posture in the case.” We agree. The dismissal of the tort claims
reduced the scope of the case considerably, in addition to, as Timothy concedes,
eliminating the possibility of punitive damages. That itself was a significant victory,
given that contractual damages must be both foreseeable and ascertainable. (Civ. Code,
§§ 3300, 3301; see Ericson v. Playgirl, Inc. (1977) 73 Cal.App.3d 850, 852.) We find no
abuse of discretion in the court’s decision not to reduce the lodestar amount due to the
surviving breach of contract claims.
Timothy’s next argument is that Julie is not entitled to recover attorney fees
on any of his many applications or motions related to the anti-SLAPP motion. He
provides a nearly 10-page list of billing entries he claims were unrelated work. He
provides no legal authority or argument as to whether closely related applications and
motions are subject to an attorney fee award for a prevailing defendant, and has therefore
waived the point on appeal.4 (Benach v. County of Los Angeles (2007) 149 Cal.App.4th
836, 852.) Further, the little argument he does offer defeats him. He asserts: “The Court
may reduce compensation on account of the party’s failure to maintain appropriate
records. [Citation.] The Court may also determine whether the case was overstaffed,
4
Were we to consider this argument on the merits, we would reject it. The purpose of the
prevailing defendant attorney fee provision in the anti-SLAPP statute would be
significantly frustrated by allowing a plaintiff, while an anti-SLAPP motion was pending,
to barrage defendants with multiple applications and motions, increasing their costs
substantially, yet making the attorney fees incurred to defend against those motions
unrecoverable. (See Wilkerson v. Sullivan, supra, 99 Cal.App.4th at pp. 446-447.)
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how much time each attorney spent on claims, and if the hours spent were reasonable.
[Citation.] The Court may require defendants to provide records to sufficiently prove the
basis for determining how much time was spent on certain claims.” But these
contentions ignore the standard of review. While the court “may” make any of those
findings, he offers no authority that not doing so here constituted an abuse of discretion.
Timothy’s last argument is even less persuasive. He claims that Julie is not
entitled to any fees expended on “unsuccessful” arguments, even if other arguments were
successful in persuading the court to strike those causes of action. Timothy offers no
legal authority for the proposition that offering alternate theories for the court’s
consideration renders the attorney time spent unrecoverable, and we reject this
contention. There is no prohibition on offering alternative theories as long as one of them
is successful, and adopting such a rule would not “effectuate the legislative purpose of
reimbursing the prevailing defendant for expenses incurred in extricating herself from a
baseless lawsuit.” (Wilkerson v. Sullivan, supra, 99 Cal.App.4th at p. 446.)
In sum, the trial court applied the lodestar amount Julie sought, adjusting
the award downward to account for 13.4 hours of legal writing done by an attorney
licensed in another state. The court’s decision was supported by the proper
documentation, including the attorney declarations and supporting documents. Timothy
has not come close to meeting his burden to establish the trial court’s attorney fee award
was clearly wrong. (Ketchum, supra, 24 Cal.4th at p. 1132.)
Echavarria’s Fee Award
Echavarria’s motion for attorney fees calculated two amounts: the
$83,825.25 actually billed to his insurance carrier, or alternatively, the prevailing rate of
$200,523.20 for a total of 285.4 hours of paralegal and attorney time. The motion was
supported by the declaration of his counsel and billing records, as well as the Wolters
Kluwer Rate Report on prevailing attorney fees. The attorney declaration and supporting
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documents were sufficient to support the award of $115,060, reflecting the reasonable
value of the work performed.
Many of Timothy’s arguments with respect to Echavarria’s award are the
same or similar to arguments he offered as to Julie, and we reject them for the same
reasons.5 His primary claim is that the evidence was insufficient due to billing records
that either did not mention the anti-SLAPP motion or were partly redacted. He again
provides a lengthy laundry list of such entries, which is even longer than the list he
included with respect to Julie’s fees. There is no attempt to group the entries by category,
or provide any analysis. All of Timothy’s legal argument is reduced to one paragraph
that simply states the bills include entries not related to the anti-SLAPP motion. Again,
he has waived any argument on this point. (Benach v. County of Los Angeles, supra, 149
Cal.App.4th at p. 852.)
To the extent Timothy claims some of the entries are “too vague” due to
redactions, we again reject this contention. As discussed above, the attorney’s
declaration alone may provide sufficient evidence for an attorney fee motion, and the one
at issue here is more than adequate. (City of Colton v. Singletary, supra, 206 Cal.App.4th
at p. 785.)
Timothy’s final argument is that Echavarria’s attorney fee motion does not
allocate time spent on “successful portions” of his anti-SLAPP motion – while ignoring
the fact that Echavarria was completely successful on his motion and that all causes of
action against him were stricken and dismissed. Timothy attempts to claim Echavarria is
only entitled to recover for successful individual legal arguments and not alternative
theories the court did not need to consider, but as we pointed out above, Timothy offers
no authority for this assertion. Echavarria was completely successful on his motion and
nothing need be deducted. Timothy claims he “should not have to pay for the time
5
Timothy does not renew the ill-considered argument made below that Echavarria is
entitled to no award at all due to his insurance coverage.
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expended by Defendant for asserting . . . unsuccessful arguments,” but he is completely
incorrect. The only reason Echavarria had to offer those arguments was because he was
wrongfully dragged into completely meritless litigation for activities protected by the
anti-SLAPP statute. Timothy is required to pay attorney fees for alternative arguments
offered in support of the anti-SLAPP motion. They were not “unsuccessful,” as Timothy
claims, but simply turned out to be unnecessary.
Timothy has not met his burden to demonstrate the fees awarded to
Echavarria constituted an abuse of the court’s discretion.
III
DISPOSITION
The order is affirmed. Defendants are entitled to their costs on appeal. As
the prevailing defendants, they are also entitled to recover their attorney fees on appeal as
a matter of right. (§ 425.16, subd. (c)(1); see Carpenter v. Jack in the Box Corp. (2007)
151 Cal.App.4th 454, 460-461.) They may make the appropriate motion for attorney fees
on appeal in the trial court.
MOORE, ACTING P. J.
WE CONCUR:
GOETHALS, J.
SANCHEZ, J.
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