Jones v. Reekes CA5

Filed 1/9/23 Jones v. Reekes CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
RICHARD JONES et al.,
F082866
Plaintiffs and Appellants,
(Super. Ct. No. BCV-20-102526)
v.
CONNIE REEKES, OPINION
Defendant and Respondent.
THE COURT *
APPEAL from an order of the Superior Court of Kern County. David R. Lampe,
Judge.
Parker Mills, David B. Parker, Steven S. Wang, Justin D. Denlinger, and
Bradley W. Jacks for Plaintiffs and Appellants.
Ganong Law and Philip W. Ganong for Defendant and Respondent.
-ooOoo-
Appellants Richard Jones, Preferred Towing Service, LLC, and Fast Response
Security, Inc. challenge the trial court’s award of attorney fees and costs following
dismissal of their case filed against respondent Connie Reekes. For the reasons set forth
* Before Peña, Acting P. J., Snauffer, J. and De Santos, J.
below, we affirm the attorney fees award but reverse and remand for the trial court to
reduce the costs awarded.
FACTUAL AND PROCEDURAL BACKGROUND
The attorney fees and costs award appealed in this matter follow from a litigation
between the parties over certain Facebook posts respondent made about appellants that
was dismissed following an anti-SLAPP motion brought pursuant to Code of Civil
Procedure section 425.16.1 In a separate appeal, this court affirmed the dismissal of
those claims under the anti-SLAPP statute. Additional background on the underlying
case can be found in our nonpublished opinion (Jones v. Reekes (Feb. 28, 2022,
F082499)), which we incorporate by reference herein.2
Following dismissal, respondent sought attorney fees and costs pursuant to the
anti-SLAPP statue. Respondent’s initial motion sought $16,900 in attorney fees and
$414.86 in costs and was supported by declarations and billing records from the case.
Respondent identified a reasonable rate of $300 per hour for attorney work and $50 per
hour for secretarial work. The supporting bills included 54.15 hours of attorney time and
5.6 hours of secretarial time. In counsel’s declaration, explanations were provided for
why some work that would normally be done by a secretary had to be done by counsel
due to emergency circumstances. The costs consisted of $250 for expert consultation
fees, $35.04 for filing fees, $90 for transcript fees, $39.32 for copier charges, and $0.50
for postage. In reply, the attorney fees request was increased to $19,900 to include work
done on the fee motion itself, which accounted for a request of 10 additional hours for the
reply brief and argument. In addition to this, respondent requested the court apply a
1 All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
2 One of appellants’ arguments in this case is that the fee and cost award would be
improper if this court reversed the dismissal under the anti-SLAPP statute in case
No. F082499. As this court affirmed that order, appellants’ argument is now moot.
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multiplier of 1.5 to the final fee request based on the urgency of the matter and the
reduced fee rate actually charged.
Appellants opposed portions of the attorney fees requested, the majority of the
costs, and the multiplier. On fees, appellants argued the issues were relatively simple and
the law relatively settled. Appellants argued that 54.15 hours of attorney time and 5.6
hours of secretarial time for attorney work on the primary motion was thus unreasonable
and requested a reduction of roughly half for certain tasks, with a total reduction request
of roughly $4,920. Appellants identified several specific tasks, including reviewing
pleadings, spending 16 hours on drafting the anti-SLAPP motion, and addressing emails,
that they claimed were unreasonable. On costs, appellants argued all but the filing fees
were specifically excluded under section 1033.5.
The trial court held a hearing on the motion, where counsel were present and
argued. The court ultimately granted respondent’s motion and stated in its order, “The
amounts requested in [respondent’s] motion and reply are reasonable and [appellants]
fail[] to persuade the Court otherwise. Accordingly, the Court awards, [respondent]
$19,900 in fees and $414.86 in costs. The court declines to apply the multiplier requested
by [respondent.]”
This appeal timely followed.
DISCUSSION
Appellants argue the award of attorney fees should be reduced as unreasonable
and excessive and that the costs are specifically excluded by the relevant statutes. We do
not agree the fees are excessive but do agree the challenged costs were improperly
awarded.
Standards of Review and Applicable Law
The calculation of attorney fees to award is well within a trial court’s discretion
and is therefore reviewed deferentially for an abuse of that discretion. (Nichols v. City of
Taft (2007) 155 Cal.App.4th 1233, 1239.) However, the exercise of that discretion must
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be based on a proper application of the lodestar method, both in determining the lodestar
figure and analyzing factors relevant to adjustments. (Id. at pp. 1239–1240; see Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1136 [“Here, because the anti-SLAPP provisions refer
to attorney fees and costs without indicating any restrictions on how they are to be
calculated, we accordingly presume that the Legislature intended courts use the
prevailing lodestar adjustment method.”].) Awards that apply the wrong standard, and
thereby transgress the confines of the applicable principles of law, are necessarily outside
the scope of the court’s discretion. (Nichols, at p. 1239.)
The lodestar amount is generally calculated “by deciding ‘the reasonable hours
spent’ on the case and multiplying that number by ‘the hourly prevailing rate for private
attorneys in the community conducting noncontingent litigation of the same type.’ ”
(Nichols v. City of Taft, supra, 155 Cal.App.4th at p. 1240.) This figure may then be
adjusted as necessary based on factors including “ ‘(1) the novelty and difficulty of the
questions involved, (2) the skill displayed in presenting them, (3) the extent to which the
nature of the litigation precluded other employment by the attorneys, [and] (4) the
contingent nature of the fee award.’ ” (Ibid.) While the court need not make adjustments
from the lodestar, in “ ‘each case, the trial court should consider whether, and to what
extent, the attorney and client have been able to mitigate the risk of nonpayment, e.g.,
because the client has agreed to pay some portion of the lodestar amount regardless of
outcome.’ ” (Id. at p. 1241.)
We review a trial court’s decision to tax or strike costs for an abuse of discretion.
However, “because the right to costs is governed strictly by statute [citation] a court has
no discretion to award costs not statutorily authorized.” (Ladas v. California State Auto.
Assn. (1993) 19 Cal.App.4th 761, 774.) To the extent the court’s authority turns upon
interpreting the authorizing statutes, such interpretation is a question of law reviewed de
novo. (See Vidrio v. Hernandez (2009) 172 Cal.App.4th 1443, 1452.)
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The Attorney Fees Award Was Not An Abuse of Discretion
In their primary attack on the award of attorney fees in this case, appellants argue
that respondent’s attorney fees incurred in litigating the anti-SLAPP motion were
unreasonable and excessive. Appellants focus on an assertion that the motion was
relatively easy and thus did not warrant the 54.15 and 5.6 hours that respondent’s counsel
and his staff spent for the initial motion and the 68.75 hours for the entirety of the
request. Appellants then identify a set of fees they claim are “unreasonable, excessive,
and/or unrecoverable,” including allegations of unnecessary work reviewing special
motions to strike from a different case, excessive hours researching and drafting motions,
and work appellants call secretarial. Notably, the issues raised in this appeal were also
raised with the trial court in a virtually identical manner. The trial court reviewed these
same arguments and held the “amounts requested in [respondent’s] motion and reply are
reasonable and [appellants] fail[] to persuade the Court otherwise.”
Upon review, we see no abuse of discretion in the court’s order. The court was
presented with a request to apply a lodestar calculation supported by substantial
documentation from counsel and subjected to a direct challenge on the time spent on
tasks relevant to the motion. The matter was argued, and the trial court rejected positions
from both sides, concluding the submitted hours were reasonable but declining to apply
respondent’s requested multiplier. We have no reason to doubt that the superior court
conducted an independent assessment of the evidence presented. (See Ketchum v. Moses,
supra, 24 Cal.4th at p. 1140 [noting all intendments and presumptions are indulged to
support the judgment on matters as to which the record is silent].)
Nor do appellants’ specific complaints about the attorney fees requested show an
abuse of discretion. First, the court’s analysis is not one awarding specifically those fees
requested. As an application of the lodestar method, the court determined that the total
hours requested and the hourly rate were reasonable under the circumstances, not that
each individual fee entry was warranted. Second, although appellants heavily attack the
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amount of time respondent spent on certain tasks, the figures are not so outlandish as to
constitute excess as a matter of law. The trial court was in the best place to judge the
reasonableness of the fees and, as noted, we see no abuse of discretion in determining this
amount of work was reasonable. Third, while appellants identify certain fees they claim
are related to secretarial tasks, such tasks are in fact recoverable in proper circumstances.
(City of Oakland v. McCullough (1996) 46 Cal.App.4th 1, 7.) Respondent provided
declarations explaining why such work was necessary and, in some instances, why it was
provided by an attorney rather than a secretary. The trial court could thus act within its
discretion in awarding fees covering such tasks.
Costs Must Be Authorized By Section 1033.5
Appellants challenge to the costs awarded in this case focuses on costs awarded by
the trial court that are specifically excluded by section 1033.5. These costs total $379.84
and include costs for an expert consultation, transcripts, copier charges, and postage.
Respondent does not dispute that these costs are excluded by section 1033.5 but contends
costs authorized by the fee-shifting provisions of the anti-SLAPP statute (§ 425.16.) are
not limited by section 1033.5. We do not agree with respondent.
Respondent provides no law expressly holding that cost awards under
section 425.16 are excluded from the restrictions imposed by section 1033.5. To the
contrary, several courts have recognized that section 1033.5 expressly applies to all
statutes awarding attorney fees and costs, including the anti-SLAPP statutes, or applied
section 1033.5 to anti-SLAPP cost requests. (See Lucky United Properties Investment,
Inc. v. Lee (2010) 185 Cal.App.4th 125, 137 [“As a general rule, the prevailing party may
recover certain statutory costs incurred in the litigation up to and including entry of
judgment. (§§ 1032, 1033.5.) These costs may include attorney fees, if authorized by
contract, statute (such as the anti-SLAPP statute) or law. (§ 1033.5, subd. (a)(10).)”];
Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1433 [“Subdivisions (a)(10)(B) and
(c)(5) of section 1033.5 together provide that attorney fees, when authorized under ‘any’
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California statute that ‘refers to the award of “costs and attorney’s fees” ’are recoverable
under section 1032 as ‘an item and component of the costs .…’ Here, Zimmerman was
awarded reasonable attorney fees and costs under subdivision (c) of section 425.16, the
first sentence of which refers to ‘attorney’s fees and costs.’ ”].)
We see no reason to depart from the plain language of section 1033.5,
subdivision (c)(5), as understood and applied by our sister courts, which provides that a
statute awarding fees and costs is generally governed by section 1033.5 such that the
attorney fees awarded are categorized as costs under subdivision (a)(10)(B). We further
find this analysis consistent with our Supreme Court’s analysis in Davis v. KGO-T.V.,
Inc. (1998) 17 Cal.4th 436, 443–444, disapproved and superseded by statute on other
grounds as stated in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th
97, 105–107 and footnote 1, where the court found that section 1033.5 gives a more
precise meaning to the term “costs” in existing fee-shifting statutes.
Accordingly, we agree with appellant that the identified costs excluded under
section 1033.5 are not authorized, and therefore their award constitutes an abuse of
discretion.
DISPOSITION
The judgment is affirmed with respect to the attorney fees awarded but reversed
with respect to the award of costs. The matter is remanded to the trial court with
instructions to enter a new order reducing the costs awarded by $379.84. The parties
shall bear their own costs on appeal.
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