Wong v. Wong CA1/5 ( 2021 )

Filed 3/3/21 Wong v. Wong CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
JUSTIN WONG, A159009
Plaintiff and Appellant,
(Alameda County
v. Super. Ct. No. HG17858973)
ALBERT Y. WONG,
Defendant and Respondent.
Justin Wong filed a lawsuit against his father, Albert Wong.1 The trial
court struck some of Justin’s causes of action, pursuant to Code of Civil
Procedure section 425.16,2 and awarded attorney fees and costs to Albert.
Justin appeals from the fees order. We affirm.
BACKGROUND
A.
Section 425.16 authorizes dismissal of a plaintiff’s claim arising from
an act in furtherance of the defendant’s right of petition or free speech, unless
the plaintiff demonstrates they are likely to prevail. (§ 425.16, subd. (b)(1).)
1 We will refer to members of the Wong family by their first names for
clarity.
2 Undesignated statutory references are to the Code of Civil Procedure.
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B.
Albert filed a special motion to strike Justin’s complaint under section
425.16. The trial court granted the motion in part, striking three causes of
action—for intentional infliction of emotional distress, negligent infliction of
emotional distress, and breach of the implied covenant of quiet enjoyment—
that are based on Albert’s allegedly false accusations of elder abuse. The
trial court explained that these causes of action all arise out of protected
activity (reports to law enforcement and filing for a restraining order), and
that Justin failed to show he was likely to prevail on the merits.
The trial court denied Albert’s special motion to strike with respect to
Justin’s other causes of action—for intentional interference with prospective
economic relations, quantum meruit, and false impersonation. These causes
of action do not arise from protected activity but rather from Albert’s alleged
interference with Justin’s entitlement to his mother’s life insurance and
retirement fund proceeds, as well as disputes between the two regarding
mortgage and medical expenses.
C.
Albert moved for an award of attorney fees and costs. Albert’s counsel
filed a declaration in which he stated his hourly fee was $350 and that he
spent a total of 14.5 hours on the motion to strike, for a lodestar of $5,075.
The 14.5 hours counsel spent on the motion to strike included four hours
devoted to legal research; four and one-half hours preparing the motion; one
hour reviewing the opposition; one and one-half hours preparing a reply; and
one and one-half hours attending the hearing and discussing the motion with
opposing counsel, plus two hours of travel time. Because Justin prevailed in
part on the motion to strike, Albert’s counsel initially sought to recover only
half of the total lodestar ($2,537.50).
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Justin opposed the motion, arguing primarily that Albert’s requested
fees were not reasonable because he had not established a link between
specific fees or hours and the successfully stricken causes of action. In reply,
Albert included a supplemental declaration from counsel. Albert’s counsel
stated that he spent only a negligible amount of time on the unsuccessful
part of the motion to strike and that 13.5 hours (a $4,725 lodestar) was a
more accurate reflection of the time he spent on its successful components.
Counsel also declared that Albert incurred an additional $3,325 in attorney
fees (for 9.5 hours) in connection with the fees motion. The total amount of
fees requested was revised to $8,050.
After holding a hearing on the motion, the trial court ordered Justin to
pay Albert $8,050 in attorney fees and $1,110.70 in costs. The court
explained: “In applying its own analysis of the reasonable hourly fee based on
the court’s own experience, the Court finds that the hourly rate requested by
counsel . . . of $350 per hour is justified and reasonable for an attorney of
counsel’s experience of 26 years. [¶] The court finds that the hours
attributed to the anti-SLAPP motion on the prevailing causes of action
totaling 13.5 . . . were a reasonable amount of time.”
DISCUSSION
Justin argues Albert failed to establish that the awarded fees were
reasonable. We disagree.
1.
A defendant prevailing on a special motion to strike is entitled to an
award of reasonable attorney fees and costs. (§ 425.16, subd. (c)(1); Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1131, 1133.)
To be deemed prevailing under section 425.16, subdivision (c)(1), a
defendant need not succeed in striking every challenged claim. (Mann v.
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Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 339 (Mann);
ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Assuming
the results achieved are not so insignificant as to render no practical benefit
(Mann, supra, at pp. 339-340), a defendant’s partial success “reduces but does
not eliminate the entitlement to attorney fees.” (ComputerXpress, supra, at
pp. 1019-1020.) A partially successful defendant is entitled to recover
attorney fees “incurred in moving to strike the claims on which they
prevailed, but not fees and costs incurred in moving to strike the remaining
claims.” (Ibid.)
The defendant bears “ ‘the burden of establishing entitlement to an
award and documenting the appropriate hours expended and hourly rates.’ ”
(ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1020.)
However, the determination of the value of attorney fees is best resolved by
the trial judge, whose determination will not be disturbed unless it is clearly
wrong and constitutes an abuse of discretion. (Ibid.; PLCM Group, Inc. v.
Drexler (2000) 22 Cal.4th 1084, 1095.)
2.
Justin concedes Albert is a prevailing defendant but insists that Justin
did not establish he incurred $8,050 in reasonable fees associated with the
stricken claims. He is wrong.
Justin does not grapple with the trial court’s reasoning. He complains
that Albert “simply divided his attorney’s fees in half” without supporting his
assertion that half of his fees were associated with the stricken claims and
without linking that amount with the lodestar ultimately awarded by the
court, which compensated 13.5 hours. But Albert’s counsel stated, in his
supplemental declaration, that he spent no more than one hour
unsuccessfully seeking to strike the economic causes of action. The motion to
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strike and counsel’s declaration support that assertion. In the motion to
strike, Albert’s counsel merely argued that the economic causes of action
should be stricken because they incorporated by reference the facts alleged in
the protected causes of action. In its written order, the trial court found that
the lodestar based on 13.5 hours was reasonable.
Justin points to no authority suggesting billing records or a retainer
agreement are required. In fact, it is well established that an award of
attorney fees may be based on counsel’s declarations alone. (See, e.g., G.R. v.
Intelligator (2010) 185 Cal.App.4th 606, 620; cf. Christian Research Institute
v. Alnor (2008) 165 Cal.App.4th 1315 [trial court did not abuse discretion by
reducing fees due to absence of detailed billing records when hours were
obviously inflated].) Albert significantly narrowed the claims at issue in
Justin’s suit. And there is nothing about the relatively modest award or the
hours compensated that suggests the trial court abused its discretion. (See
Mann, supra, 139 Cal.App.4th at p. 345 [“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 case where “the amount to be awarded [cannot] be calculated
through a purely mechanical approach by allocating particular hours to
particular claims,” the court must consider “whether the expenditure of
counsel’s time was reasonable in relation to the success achieved.” (Mann,
supra, 139 Cal.App.4th at p. 345.) Justin did not request a transcript from
the hearing on his fee motion or obtain a settled statement. Thus, even if we
assume this is such a case, we must presume that the trial court took the
proper factors into consideration. (See Maria P. v. Riles (1987) 43 Cal.3d
51281, 1295 [party challenging fee award bears burden to provide adequate
record]; Mann, supra, at p. 345 [factors to be considered].)
Justin has not met his burden to demonstrate an abuse of discretion.
DISPOSITION
The order appealed from is affirmed. No costs are awarded because
Albert did not file a respondent’s brief. (Cal. Rules of Court, rule 8.278(a)(5).)
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_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
SELIGMAN, J.*
A159009
* Judge of the Superior Court of Alameda County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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