Pierce v. Heiple CA2/1 ( 2021 )

Filed 1/22/21 Pierce v. Heiple CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
KIP PIERCE, B300825
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC663601)
v.
LISA HEIPLE,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Monica Bachner, Judge. Affirmed.
Kip Pierce, in pro. per., for Plaintiff and Appellant.
Law Offices of Gary E. Shoffner and Gary E. Shoffner for
Defendant and Respondent.
____________________________
Defendant and respondent Lisa Heiple (defendant)
prevailed on an anti-SLAPP motion striking the causes of action
alleged against her by her ex-husband, plaintiff and appellant
Kip Pierce (plaintiff).1 Plaintiff then filed a series of unsuccessful
motions in the trial court seeking to overturn that ruling.
Following judgment, defendant sought an additional award of
attorney fees and costs under the anti-SLAPP statute for
responding to those motions. The trial court granted the
requested fees and costs with minor reductions.
On appeal, plaintiff argues that the trial court did not limit
the award to fees and costs incurred in relation to the anti-
SLAPP motion, that defendant’s attorney’s declaration in support
of the fees request was deficient, that various line items in the
declaration were improper, and that the trial court erred in
granting the anti-SLAPP motion in the first place. These
arguments are without merit, forfeited, or both. Accordingly, we
affirm.
PROCEDURAL HISTORY
1. Proceedings leading to judgment
In June 2017, plaintiff, in propria persona, filed a
complaint alleging four causes of action against defendant for
purportedly attempting to assert a fraudulent lien against
settlement proceeds plaintiff obtained in a separate lawsuit. The
complaint alleged an additional cause of action for aiding and
abetting against defendant’s then-husband, Jeff Heiple.
1 Plaintiff appears in propria persona, as he did in the trial
court.
2
Defendant and Jeff Heiple did not appear and the trial
court entered default against them. Before plaintiff could obtain
a default judgment, however, defendant appeared and
successfully moved the trial court to vacate her default on
January 5, 2018.
Three days after the trial court vacated her default,
defendant filed a special motion to strike under Code of Civil
Procedure2 section 425.16, the anti-SLAPP statute. The trial
court granted the motion on February 5, 2018, striking the four
causes of action alleged against defendant. The trial court also
awarded defendant $10,910 in attorney fees and $60 in costs
under section 425.16, subdivision (c).
Plaintiff filed an appeal from the grant of the anti-SLAPP
motion but abandoned the appeal before filing his opening brief.3
In addition, he filed a motion for a new trial on the anti-SLAPP
motion, and a motion under section 473, subdivision (d) seeking
to set aside both the vacation of defendant’s default and the grant
of the anti-SLAPP motion. The trial court denied plaintiff’s
motions.
In a later hearing, the trial court sua sponte issued an
order to show cause why it should not dismiss the case, reasoning
that defaulting defendant Jeff Heiple’s liability as an aider and
abettor was derivative of defendant’s liability, and defendant was
shielded by the favorable anti-SLAPP ruling. Plaintiff then filed
two more motions under section 473, subdivision (d), again
2Undesignated statutory citations are to the Code of Civil
Procedure.
3 On our own motion, we take judicial notice of the record
in Case No. B289292. (Evid. Code, § 452, subd. (d).)
3
seeking to set aside both the vacation of defendant’s default and
the grant of the anti-SLAPP motion. Plaintiff also filed a motion
for leave to file an amended complaint, and an opposition to the
trial court’s order to show cause regarding dismissal.
The trial court denied the motions under section 473,
subdivision (d) and dismissed the complaint with prejudice. The
trial court vacated the hearing on the motion for leave to amend
the complaint, which was scheduled to be heard months later,
and entered judgment against plaintiff. Plaintiff appealed, and
we affirmed the judgment. (Pierce v. Heiple (Dec. 21, 2020,
B298594) [nonpub. opn.].)
2. Motion for additional attorney fees
Following entry of judgment, defendant filed a motion
under section 425.16 for additional attorney fees and costs
incurred in responding to filings by plaintiff “in an attempt to
undermine or reverse” the anti-SLAPP ruling. Defendant
identified nine such filings: 1) a request by plaintiff for a
statement of decision; 2) the motion for a new trial; 3) the
abandoned appeal; 4) a withdrawn motion for reconsideration of
the denial of the new trial motion; 5) the first motion to set
aside the vacation of default and the anti-SLAPP ruling; 6) a
withdrawn motion for reconsideration of the denial of the motion
to set aside; 7) the second motion to set aside the order vacating
defendant’s default; 8) the motion for leave to file an amended
complaint; and 9) the second motion to set aside the anti-SLAPP
ruling. Defendant also sought fees and costs for preparing the
proposed judgment and for bringing the motion for additional
attorney fees.
Defendant requested $13,746 in fees and $400.52 in costs,
plus estimated fees of $2,001 and costs of $98.52 for the fees
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motion itself. Defendant supported her motion with a declaration
from her attorney listing the tasks performed and the time
expended for each, as well as expenses incurred. The declaration
stated that the attorney’s reasonable hourly rate was $435,
noting that the trial court had awarded fees at that hourly rate
when it granted the anti-SLAPP motion originally. The
declaration also described two of the attorney’s other cases from
2014 and 2016 in which courts calculated the fees award at an
hourly rate of $425 and $435, respectively.
Plaintiff opposed the motion. He argued defendant was not
entitled to fees because his complaint was not baseless or
frivolous, and defendant did not prevail on the fourth cause of
action, which was the cause of action asserted against Jeff
Heiple. Plaintiff contended defendant had cited no authority for
recovering fees for preparing the judgment or responding to
plaintiff’s filings concerning the vacation of defendant’s default.
Plaintiff claimed defendant should not recover for preparing the
fees motion because that was done at the trial court’s behest and
“not prompted by Defendant.” Plaintiff contended defendant had
incurred no costs for responding to the abandoned appeal.
Plaintiff further argued the time entries in the attorney
declaration were “inflated, noncredible, [and] often vaguely
documented.” He claimed there was no evidence to support the
declaration, which he characterized as consisting of padded hours
and block billing. He claimed the declaration did not accurately
reflect that a “senior person” was “actually doing lower-level
work” in some cases. In making these arguments, defendant did
not identify any specific time entries in the attorney declaration
to which he was referring.
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Plaintiff also argued defendant should not recover fees and
costs for certain categories of tasks. He claimed fees and costs
related to travel, mileage, and parking were unnecessary because
defendant’s attorney could have appeared telephonically. He
challenged expenses for document retrieval, claiming that he had
provided all necessary documents to defendant and, by extension,
her attorney. He claimed that defendant’s attorney had “spen[t]
time reviewing documents prematurely.” Again, in making these
challenges, plaintiff did not identify any particular time entries
in the attorney declaration to which he objected.
Defendant filed a reply, which included an adjusted fees
and costs request of $2,749.50 and $98.52, respectively, for the
fees motion itself, as opposed to the estimated amounts in the
original motion.
At the hearing on the fees motion, plaintiff invoked section
1033.5, and claimed that some of the fees and expenses sought by
defendant were “not covered under that statute.” The trial court
interrupted to ask a question on another issue, and then plaintiff
continued, citing section 1033.5, section 1032, and two cases for
the proposition that some of the “fees” sought by defendant “are
not reasonable and shouldn’t be allowed.” Plaintiff did not
identify the fees or expenses to which he was referring.
The trial court issued a written order in which it ruled
defendant was entitled to recover additional fees and costs “that
were necessary in litigating her award of attorneys’ fees and
otherwise related to Plaintiff’s attempts to overturn the Court’s
ruling on Defendant’s special motion to strike.” The court found
“most of Defendant’s requests for attorneys’ fees are reasonable
and supported,” but reduced the request to reflect fees and costs
that were “not sufficiently related to Defendant’s enforcement of
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the ruling granting her special motion to strike and/or were
unnecessarily incurred . . . .” The court identified by number the
specific entries in the attorney declaration that it would not
award to defendant, namely entries pertaining to retrieval of
documents, preparing the proposed judgment, and reviewing the
abandoned appeal.4 Applying those reductions, the trial court
awarded defendant $15,660 in fees and $368.44 in costs, for a
total of $16,028.44.
Plaintiff timely appealed from the order.
STANDARD OF REVIEW
A trial court’s decision as to “ ‘the propriety or amount of
statutory attorney fees to be awarded’ ” is reviewed
for abuse of discretion, whereas “ ‘a determination of the legal
basis for an attorney fee award is a question of law to be reviewed
de novo.’ ” (Mountain Air Enterprises, LLC v. Sundowner Towers,
LLC (2017) 3 Cal.5th 744, 751.)
4 The trial court also stated in its written order that it
would reduce the award by the amounts incurred for “request for
a statement of decision review.” None of the specific time entries
identified by the trial court for reduction, however, pertains to
plaintiff’s request for a statement of decision, nor did the court’s
ultimate calculation of the reduced fees and costs include a
reduction for any charges related to that request. The parties do
not comment on this in their appellate briefing, and plaintiff
makes no argument specific to the fees and costs related to the
statement of decision, so we need not resolve this discrepancy.
7
DISCUSSION
A. Defendant Could Recover Fees and Costs Incurred in
Responding to Plaintiff’s Attempts to Overturn the
Trial Court’s Grant of the Anti-SLAPP Motion
Plaintiff argues that under the anti-SLAPP statute, a
defendant may recover only the fees and costs for the motion to
strike, but here the trial court “allowed additional fees contrary
to law for the entire litigation.”
Plaintiff mischaracterizes the trial court’s ruling, which
did not award fees and costs “for the entire litigation,” as plaintiff
claims, but only the fees and costs the trial court determined
“were necessary in litigating [defendant’s] award of attorneys’
fees and otherwise related to Plaintiff’s attempts to overturn the
Court’s ruling on Defendant’s special motion to strike.”
This was proper. The purpose of the anti-SLAPP statute is
“to provide a procedural remedy to dispose of lawsuits that are
brought to chill the valid exercise of constitutional rights.”
(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055–1056.)
Accordingly, the statute provides that “[a] cause of action against
a person arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless
the court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1).)
Section 425.16, subdivision (c)(1), provides in relevant part
that “a prevailing defendant on a special motion to strike shall be
entitled to recover his or her attorney’s fees and costs.” This
provision “is intended to compensate a defendant for the expense
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of responding to a SLAPP suit. [Citation.] To this end, the
provision ‘is broadly construed so as to effectuate the legislative
purpose of reimbursing the prevailing defendant for expenses
incurred in extracting herself from a baseless lawsuit.’
[Citation.]” (Wanland v. Law Offices of Mastagni, Holstedt &
Chiurazzi (2006) 141 Cal.App.4th 15, 22 (Wanland).)
Courts have not limited the award of fees and costs under
section 425.16, subdivision (c) to those incurred in bringing the
anti-SLAPP motion. For example, courts have also allowed an
award of fees and costs for responding to an appeal from the
grant of the anti-SLAPP motion (Morrow v. Los Angeles Unified
School Dist. (2007) 149 Cal.App.4th 1424, 1446), and for bringing
the fees and costs motion itself (Ketchum v. Moses (2001)
24 Cal.4th 1122, 1141).
In Wanland, the Court of Appeal held that a defendant also
could recover fees and costs incurred in challenging the
sufficiency of a plaintiff’s undertaking submitted to stay
enforcement pending appeal. (Wanland, supra, 141 Cal.App.4th
at p. 21.) The Wanland court reasoned that were it not to allow
the award, “the protection provided to a defendant who is brought
into court for exercising free speech and petition rights would be
compromised. This would be inconsistent with the Legislature’s
directive that section 425.16 be broadly construed to encourage
continued participation in free speech and petition activities.”
(Wanland, at p. 22.)
In the instant case, plaintiff abandoned his appeal from the
order granting the anti-SLAPP motion, but nonetheless
challenged the order by, inter alia, moving for a new trial and
twice seeking to set aside the order under section 473,
subdivision (d). Defendant had to respond to these challenges in
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order to preserve the trial court’s order and “ ‘extract[ ] herself
from a baseless lawsuit.’ ” (Wanland, supra, 141 Cal.App.4th at
p. 22.) The trial court properly could award defendant fees and
costs incurred in doing so.
Plaintiff’s cited authority does not hold otherwise.
Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995)
39 Cal.App.4th 1379 held that the anti-SLAPP fees provision
applies only to the motion to strike, “not the entire suit.” (Id.
at p. 1383; see also S. B. Beach Properties v. Berti (2006)
39 Cal.4th 374, 381 [anti-SLAPP fees provision “ ‘applies only to
the motion to strike, and not to the entire action.’ ”].) As we have
explained, the trial court did not apply the fees provision to the
entire litigation, but only to the fees and costs it determined were
incurred in connection with the motion to strike. Neither
Lafayette Morehouse or S. B. Beach Properties addresses the
application of the fees provision to attempts to overturn a grant
of an anti-SLAPP motion.
City of Industry v. City of Fillmore (2011) 198 Cal.App.4th
191 held that attorney fees incurred months before a complaint
was filed or “a special motion to strike was even contemplated”
were not “incurred in connection with the special motion to strike
and thus are not recoverable.” (Id. at p. 219.) Those facts are not
present here, where all of the requested fees and costs were
incurred after the anti-SLAPP motion was filed.
Apart from his incorrect assertion that the trial court
awarded fees and costs for the entire litigation, plaintiff does not
challenge any particular fees or costs as unrelated to the anti-
SLAPP motion and therefore outside the scope of section 425.16,
subdivision (c). In challenging a fee award, “[g]eneral arguments
that fees claimed are excessive, duplicative, or unrelated do not
10
suffice.” (Premier Medical Management Systems, Inc. v.
California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564
(Premier Medical).)
To the extent plaintiff objected in the trial court to certain
expenditures as unrelated to the anti-SLAPP proceedings, he
has not reasserted those objections on appeal, thereby forfeiting
them. (See Osornio v. Weingarten (2004) 124 Cal.App.4th 304,
316, fn. 7 [contention raised below but not advanced on appeal
waived].) Plaintiff therefore provides no basis to question the
trial court’s determination as to which fees and costs properly
related to the anti-SLAPP motion, and we express no opinion on
that subject.
B. Plaintiff Fails to Demonstrate Any Deficiencies in
the Attorney Declaration
Plaintiff raises a number of issues with defendant’s
attorney’s declaration submitted in support of defendant’s motion
for fees and costs. He claims the lack of dates identifying when
particular tasks were done indicates “padding,” which plaintiff
defines as “the practice of inflating actual time spent on a task to
fill in gaps of unaccounted-for time.” He claims the declaration
only provides a summary of the work done, without “a clear and
concise description[ ] of the attorney[’]s activities.” He argues the
declaration consists of “vague, block-billed time entries.” He
claims the declaration is deficient for lack of attached invoices “to
support the actual time spent on the work the attorney did.”
These challenges are not well taken. “ ‘California courts
do not require detailed time records, and trial courts have
discretion to award fees based on declarations of counsel
describing the work they have done and the court’s own view of
the number of hours reasonably spent. [Citations.]’ [Citations.]”
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(Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691,
698–699 (Syers).) “[T]here is no legal requirement that an
attorney supply billing statements to support a claim for attorney
fees,” and “ ‘[a]n attorney’s testimony as to the number of hours
worked is sufficient evidence to support an award of attorney
fees . . . .’ ” (Mardirossian & Associates, Inc. v. Ersoff (2007)
153 Cal.App.4th 257, 269.) Plaintiff appears to cite County of
Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 67 for
the proposition that a fees declaration must be supported by
invoices, but that case has nothing to do with that issue, instead
addressing whether certain attorney invoices were subject to
disclosure under the California Public Records Act. (Ibid.)
Plaintiff’s characterization of the declaration is also
inaccurate. The declaration provides a summary of the hours
spent responding to each of plaintiff’s filings, but then follows
that summary with a detailed breakdown of each task performed.
There is nothing vague about the entries. Although there are no
dates listed, it is not evident to us why that information would be
helpful to the trial court. As the authorities quoted above
demonstrate, detailed records are not required, and the trial
court could rely on the declaration and its “ ‘own view of the
number of hours reasonably spent.’ ” (Syers, supra,
226 Cal.App.4th at p. 698.)
Plaintiff also disputes the hourly rate claimed in the
attorney declaration as lacking supporting documentation.
Plaintiff cites no authority that a declaration is not itself
sufficient to establish an attorney’s hourly rate; he merely claims,
without citation, that an attorney’s claimed hourly rate should be
supported by a “declaration from other counsel attesting to their
rates or the prevailing market rate.” Here defendant’s attorney
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supported his claimed hourly rate with reference to the previous
fee award in the case and two earlier cases setting a comparable
hourly rate for his services. Plaintiff cites no authority that a
trial court abuses its discretion by relying on such evidence.
Plaintiff argues defendant’s attorney is not a credible
witness. “[W]itness credibility is a matter within the exclusive
province of the trial court, not us.” (Cornerstone Realty Advisors,
LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771,
804–805.) The trial court found the attorney credible, and we
will not disturb that determination.
C. Plaintiff’s Challenges to Particular Line Items Are
Forfeited
Plaintiff identifies particular line items in the attorney
declaration he contends are improper. For example, he claims
some are inaccurate, or are not allowable as costs under section
1033.5. We decline to address these line-specific challenges
because plaintiff raised none of them in the trial court. In
challenging an award of attorney fees, “it is the burden of the
challenging party to point to the specific items challenged, with a
sufficient argument and citations to the evidence. General
arguments that fees claimed are excessive, duplicative, or
unrelated do not suffice. Failure to raise specific challenges in
the trial court forfeits the claim on appeal.” (Premier Medical,
supra, 163 Cal.App.4th at p. 564.)
Plaintiff argued broadly below that defendant should not
recover fees and costs related to travel, document retrieval, and
“premature[ ]” review of documents, and invoked section 1033.5,
but never identified for the trial court any particular charges to
which he objected on these grounds. Nor, apart from the general
reference to section 1033.5, did he offer any authority suggesting
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those fees and costs were not recoverable. Plaintiff therefore
forfeited any challenge to those specific line items. We note that
the trial court actually did exclude some of the line items plaintiff
purports to challenge on appeal, namely costs to retrieve
documents, which plaintiff fails to acknowledge.
Also forfeited is plaintiff’s claim that defendant’s
memorandum of costs was untimely, a contention never raised in
the trial court.
Plaintiff contends the trial court rushed him at the hearing
on defendant’s fees motion, thereby “prejudicing” him “by not
allowing him to finish his arguments.” To the extent plaintiff
offers this to explain why he did not more specifically argue
certain points below, we reject it. Our review of the reporter’s
transcript indicates the trial court gave plaintiff ample
opportunity to make his arguments. Any purported “rushing”
during the hearing, moreover, would not explain plaintiff’s failure
to include more specific challenges in his written opposition.
D. Plaintiff’s Challenges to the Grant of the Anti-SLAPP
Motion Are Untimely And Not Properly Before Us in
This Appeal
Plaintiff contends the trial court wrongly granted
defendant’s anti-SLAPP motion in the first place, and thus erred
in granting defendant fees and costs. Specifically, plaintiff claims
that anti-SLAPP motion was untimely and that the trial court
wrongly concluded that defendant’s alleged conduct was
protected under section 425.16.
The trial court granted the anti-SLAPP motion in February
2018, and the time to challenge it on appeal is long past. (See
Cal. Rules of Court, rule 8.104(a)(1).) We have also affirmed the
judgment in this case in plaintiff’s previous appeal. We will not,
14
and indeed cannot, revisit the merits of the underlying rulings in
this appeal from a motion for attorney fees.5
Plaintiff argues that his lawsuit was neither baseless nor
frivolous, and therefore defendant should not be entitled to fees
and costs. It is beyond dispute at this point that defendant
prevailed on an anti-SLAPP motion, and therefore is entitled to
fees and costs under section 425.16, subdivision (c).
DISPOSITION
The order granting attorney fees and costs to defendant is
affirmed. Defendant is awarded her costs on appeal. Defendant
also is entitled to attorney fees on appeal, which she may seek
through an appropriate motion in the trial court.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
5 Plaintiff’s request for judicial notice, filed December 2,
2020, pertains to the merits of the anti-SLAPP motion and is
denied as irrelevant to this appeal.
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