Marshall v. Webster

Filed 8/27/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Siskiyou)
----
RICHARD MARSHALL et al., C088240
Plaintiffs and Appellants, (Super. Ct. No.
SCSCCVCVP017-001240)
v.
DANIEL WEBSTER,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Siskiyou County, Laura J.
Masunaga, Judge. Dismissed in part and affirmed in part.
Pacific Legal Group and Douglas A. Applegate for Plaintiffs and Appellants.
Paul Nicholas Boylan for Defendant and Respondent.
Plaintiffs Richard and Susan Marshall sued for defamation and intentional
infliction of emotional distress, alleging that defendant Daniel Webster made maliciously
false and defamatory statements about them in an electronic book and on social media.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of part II.
1
On May 11, 2018, the trial court granted defendant’s special motion to strike the
complaint pursuant to Code of Civil Procedure section 425.16,1 California’s anti-SLAPP
statute.2 The court’s order provided that defendant was entitled to attorney fees under the
statute and, on August 29, 2018, it awarded him $79,000 in fees.
On appeal, plaintiffs challenge the dismissal of their complaint and the award of
attorney fees. In the published portion of this opinion, we conclude that the trial court’s
May 11 order granting defendant’s special motion to strike the complaint was a final
determination of the rights of the parties, thus constituting a judgment from which
plaintiffs failed timely to perfect an appeal. With respect to the attorney fees order, we
find no abuse of discretion and affirm.
BACKGROUND
On October 30, 2017, plaintiffs filed a verified complaint for damages alleging
two causes of action, defamation and intentional infliction of emotional distress. They
alleged that defendant, a reporter and author, maliciously and with reckless disregard for
the truth, published false statements about them, their political activities, and about a
lawsuit they filed against the town in which they live. These statements, which appeared
on Facebook, and in an electronic book available on Amazon’s Kindle service and on
eBay, were alleged to have caused them severe emotional distress and damaged their
reputations in the community.
On January 16, 2018, defendant filed a special motion “to strike the complaint . . .
in its entirety, with prejudice and without leave to amend pursuant to” section 425.16.
The motion was argued on March 1, 2018, and taken under submission by the trial court.
1 Undesignated statutory references are to the Code of Civil Procedure.
2 SLAPP is an acronym for “ ‘strategic lawsuits against public participation.’ ”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 85 & fn. 1.)
2
On May 11, 2018, the court granted defendant’s motion in a signed, filed-endorsed
“Ruling Re Defendant’s Special Motion Anti-SLAPP.” The five-page, single-spaced
order thoroughly discussed the relevant factual and legal issues before ruling that
“[d]efendant’s special motion to strike the verified complaint pursuant to Code of Civil
Procedure § 425.16 is granted.” It further provided that “[d]efendant may file a noticed
motion regarding his requested attorney fees and costs.” The order included a
certification of mailing to the parties dated and signed on May 11, 2018, by E. Fisher,
deputy clerk of the court.
The trial court made two entries on its register of actions in connection with the
May 11 ruling. The first reads: “DECISION . . . 5/11/2018 [¶] Notes: Decision by
[trial judge] as follows: Defendant’s special motion to strike the verified complaint
pursuant to Code of Civil Procedure § 425.16 is granted; copies mailed on 5/11/18.
(EFF)” The other provides: “DISMISS LACK OF PROS . . . 05/11/2018 [¶] Notes:
DISMISSED - Unprosecuted or on Court’s Motion: After Special Motion to Strike
Granted (EFF).”
On June 15, 2018, defendant filed his motion for attorney fees.
On June 29, 2018, a one-page proposed order submitted by defendant’s attorney
“Granting Special Motion of Daniel Webster to Strike Plaintiffs’ Verified Complaint”
was signed by the court and filed, but apparently was not served on plaintiffs.
On July 30, 2018, defendant served a “Notice of Entry of Judgment or Order”
form, attaching the June 29, 2018 order.
On August 9, 2018, plaintiffs moved for reconsideration of the trial court’s ruling
on defendant’s anti-SLAPP motion “on the grounds that the May 11, 2018 order contains
significant improper assumptions, factual mistakes, and error [sic] of law.”
On August 29, 2018, the trial court ruled on defendant’s fee motion. As discussed
in greater detail below, the court granted the motion, but reduced defendant’s fee award
to $79,000 from a requested $121,815.
3
On October 25, 2018, plaintiffs noticed their appeal of three orders: the
“5/11/2018 Ruling Re Defendant’s Special Motion Anti-SLAPP[;] 6/29/2018 Order
Granting Special Motion of Daniel Webster to Strike Plaintiff[s’] Verified Complaint[;
and the] 8/29/2018 Ruling Re Attorney Fees and Motion to Tax Costs.”
The trial court issued an order denying plaintiffs’ motion for reconsideration on
November 15, 2018.
DISCUSSION
I
Plaintiffs’ Appeal of the Order Granting Defendant’s
Special Motion to Strike is Untimely
Defendant argues that plaintiffs’ appeal from the order granting his anti-SLAPP
motion must be dismissed as untimely. Plaintiffs contest this, arguing that the clerk’s
service of the May 11 ruling did not trigger the deadline for appeal and that the filing of
their motion for reconsideration on August 9 was timely and extended the appeal
deadline. We agree with defendant.
A. Applicable law
“If a notice of appeal is filed late, the reviewing court must dismiss the appeal.”
(Cal. Rules of Court, rule 8.104(b).3 “The time for appealing a judgment is jurisdictional;
once the deadline expires, the appellate court has no power to entertain the appeal.
[Citation.]” (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins.
Agency, Inc. (1997) 15 Cal.4th 51, 56.) Thus, “ ‘an aggrieved party must file a timely
3 Undesignated rule references are to the California Rules of Court.
“Rules of Court have the force of law and are as binding as procedural statutes as
long as they are not inconsistent with statutory or constitutional law. [Citation.]” (R.R. v.
Superior Court (2009) 180 Cal.App.4th 185, 205.)
4
appeal or forever lose the opportunity to obtain appellate review.’ ” (Norman I. Krug
Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46, italics omitted.)
Rule 8.104 provides the relevant deadlines: unless a statute or court rule provides
otherwise, a notice of appeal must be filed on or before the earlier of 60 days after
service by the superior court clerk of a filed-endorsed copy of the judgment, or 60 days
after notice of entry of the judgment is served by a party. (Rule 8.104(a)(1)(A)-(B).)4
For purposes of this rule, “ ‘judgment’ includes an appealable order.” (Rule 8.104(e).)
B. Plaintiffs’ notice of appeal was not timely filed under rule 8.104
As plaintiffs concede, an order granting a special motion to strike under the anti-
SLAPP statute is an appealable order. (§§ 425.16, subd. (i) [“An order granting or
denying a special motion to strike shall be appealable under Section 904.1”]; 904.1, subd.
(a)(13) [“An appeal . . . may be taken from . . . an order granting or denying a special
motion to strike under Section 425.16”]; Maughan v. Google Technology, Inc. (2006) 143
Cal.App.4th 1242, 1247 [“[t]he order granting the anti-SLAPP motion . . . was final when
made, and thus appealable”].) Hence, the deadline to appeal an order granting a special
motion to strike is 60 days after service by the clerk of a filed-endorsed copy of the order
granting the anti-SLAPP motion, or 60 days after notice of entry of that order is served
by a party, whichever is earlier. (Rule 8.104(a)(1), (e).)
4 Rule 8.104(a)(1) provides in full: “Unless a statute or rules 8.108, 8.702, or 8.712
provides otherwise, a notice of appeal must be filed on or before the earliest of: [¶] (1)
[¶] (A) 60 days after the superior court clerk serves on the party filing the notice of
appeal a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the
judgment, showing the date either was served; [¶] (B) 60 days after the party filing the
notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’
of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service;
or [¶] (C) 180 days after entry of judgment.”
5
The order granting defendant’s anti-SLAPP motion was filed on May 11, 2018,
and the clerk served a signed, filed-endorsed copy of the ruling the same day.5
Accordingly, under rule 8.104(a)(1)(A), the notice of appeal from that order had to be
filed within 60 days of May 11, or no later than July 10, 2018. (See Maughan v. Google
Technology, Inc., supra, 143 Cal.App.4th at p. 1247.)
Plaintiffs disagree with this analysis. Citing Alan v. American Honda Motor Co.,
Inc. (2007) 40 Cal.4th 894, they argue that the clerk’s service of a “memorandum of
decision” on May 11 did not trigger rule 8.104(a)(1)’s appeal deadline because it was
followed by a “formal order” signed by the trial court on June 29, 2018. The record,
however, does not support this contention. Although “[t]he general rule is that a
statement or memorandum of decision is not appealable,” a reviewing court has
discretion to treat a statement of decision as an appealable order when it “is signed and
filed and does, in fact, constitute the court’s final decision on the merits.” (Alan, supra,
at p. 901.) Here, the ruling on defendant’s special motion to strike the complaint was
signed, filed and served by the trial court on May 11. It set forth in detail the factual and
legal basis for the court’s decision to grant the anti-SLAPP motion and invited a motion
for attorney fees. Given its wording, the ruling clearly constituted the trial court’s final
decision on the merits of defendant’s motion. It is unclear why defendant submitted the
one-page proposed order to the trial court for signature in late June, but there is no
indication that it was intended to supplant the signed, filed-endorsed May 11 ruling or
otherwise constituted a more “formal” final order on defendant’s special motion to strike
the complaint.
5 Because the clerk’s May 11 service occurred before defendant’s July 30 service of
the “Notice of Entry of Judgment or Order” form, we use the earlier date to calculate
timeliness. (Rule 8.104(a)(1).)
6
Because plaintiffs did not file their notice of appeal until October 25, 2018, unless
the July 10 appeal deadline was extended under rule 8.108(e) by the filing of plaintiffs’
reconsideration motion, we must conclude that the filing was untimely and that we lack
jurisdiction to consider the appeal of the May 11 anti-SLAPP order.
C. The filing of plaintiffs’ motion for reconsideration did not extend the time in
which to notice an appeal
Defendant argues that plaintiffs’ motion for reconsideration did not extend the
time to appeal because it was filed more than 10 days after the clerk served written notice
of entry of the May 11 order striking the complaint. (See § 1008, subds. (a), (e).) He
also argues that the May 11 order (and the trial court’s sua sponte dismissal of the action)
was a final judgment that divested the court of jurisdiction to reconsider the ruling in the
first instance.
Plaintiffs argue in reply that the timeliness of their appeal must be assessed under
rule 8.108(e), not rule 8.104, because the clerk’s filing and service of the May 11 ruling
did not trigger the 10-day deadline for seeking reconsideration; rather, it was defendant’s
service of the July 30, 2018 notice of entry of the June 29 order that started the clock.
They further contend that the trial court had jurisdiction to reconsider the May 11 ruling
because the order lacked formal dismissal language. Finally, they invoke principles of
“quasi estoppel” to save their appeal.
We find no merit to plaintiffs’ contentions and instead agree with defendant that
the notice of appeal was untimely because the May 11 order granting his anti-SLAPP
motion and striking the complaint was an appealable judgment, and that upon its entry
and service by the clerk, the trial court lost jurisdiction to entertain or decide a motion for
reconsideration. Filing of that motion thus could not extend the deadline for appeal. We
explain below.
It is settled law that a motion for reconsideration is ineffectual if it is filed after
entry of judgment. This is a corollary to the rule that section 1008 applies only to
7
applications for interim orders. (§ 1008, subd. (h); see Betz v. Pankow (1993) 16
Cal.App.4th 931, 937-938 [“Section 1008 is directed to interim rulings. . . . Thus, a
motion for reconsideration may only be considered before final judgment is entered and
while the case is still pending in the trial court”]; see also Branner v. Regents of
University of California (2009) 175 Cal.App.4th 1043, 1048 [“A motion to reconsider is
not valid if it is filed after the final judgment is signed”]; APRI Ins. Co. v. Superior Court
(1999) 76 Cal.App.4th 176, 181 (APRI) [“Once the trial court has entered judgment, it is
without power to grant reconsideration”].)
The rule is equally established that “if the trial court has no power to rule on a
reconsideration motion after judgment, such a motion can have no effect on the period
within which to file a notice of appeal.” (Ramon v. Aerospace Corp. (1996) 50
Cal.App.4th 1233, 1238; see also rule 8.108(e) [only a “valid motion to reconsider”
extends the time to appeal].)
Plaintiffs do not respond directly to defendant’s argument that the May 11 order
granting defendant’s special motion to strike was a judgment that divested the trial court
of jurisdiction to entertain a motion for reconsideration. They instead focus on a related
point, i.e., that the trial court purportedly had jurisdiction to reconsider the anti-SLAPP
ruling because the May 11 order was not an order of dismissal. Although plaintiffs refer
to the May 11 ruling as an “order dismissing plaintiffs’ case” in their opening brief, on
reply they pivot to argue that under section 581d,6 an order of dismissal must be a formal
written document signed by the court and filed in the action. “Until that happens,” they
6 Section 581d provides: “A written dismissal of an action shall be entered in the
clerk’s register and is effective for all purposes when so entered. [¶] All dismissals
ordered by the court shall be in the form of a written order signed by the court and filed
in the action and those orders when so filed shall constitute judgments and be effective
for all purposes, and the clerk shall note those judgments in the register of actions in the
case.”
8
aver, “the case is not dismissed and the court retains jurisdiction to reconsider its
rulings.” (Original italics.) In making this argument, plaintiffs seek to elevate form over
substance. We conclude that the May 11 order striking the complaint, coupled with the
docket entry dismissing the action, was a judgment that satisfied section 581d and
precluded reconsideration.
“In determining whether there has been a final judgment, sometimes a difficult
question, [appellate courts] have long adhered to the rule ‘that the question, as affecting
the right of appeal, is not what the form of the order or judgment may be, but what is its
legal effect. [Citations.]’ [Citations.]” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695,
698-699.) Our Supreme Court has ruled that “granting a motion to strike under section
425.16 results in the dismissal of a cause of action on the merits.” (Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 193.) And contrary to plaintiffs’
assertion, where, as here, a trial court grants a special motion to strike the complaint in its
entirety, the “order granting [the] anti-SLAPP motion [is] a written order of dismissal of
the entire action, and therefore [is] a judgment pursuant to section 581d.” (Melbostad v.
Fisher (2008) 165 Cal.App.4th 987, 994 (Melbostad).)
Melbostad is instructive. In that case, the plaintiff had not appealed from either of
two orders granting the defendants’ anti-SLAPP motions. Although the first order
included dismissal language, as well as an express grant of the motion, the later one,
issued after the trial judge granted a motion for reconsideration,7 stated only that the
“ ‘defendants’ special motion to strike should be granted’ and did not specifically dismiss
7 The Melbostad court observed that the reconsideration motion in that case—filed
after entry of the first anti-SLAPP order—was invalid. “After entry of judgment, a trial
court has no further power to rule on a motion for reconsideration. [Citation.] Because
the trial court’s original order striking appellant’s complaint was a judgment, the court
did not have authority to reconsider it. [Citation.]” (Melbostad, supra, 165 Cal.App.4th
at p. 994, fn. 8.)
9
the complaint.” (Melbostad, supra, 165 Cal.App.4th at p. 994.) In finding the order
granting defendants’ anti-SLAPP motion to be an order of dismissal under section 581d,
it was immaterial that the second order lacked express dismissal language, since it was
“clear from the record that this was the effect of the court’s order.” (Id. at p. 995.) The
Melbostad court found “further support for [its] conclusion that the trial court’s order
granting the defendants’ anti-SLAPP motion was a judgment in section 577, which
provides that a final judgment is ‘the final determination of the rights of the parties in an
action or proceeding.’ ‘[A] judgment, no matter how designated, is the final
determination of the rights of the parties in an action. Thus, an “order” which is the final
determination in the action is the judgment.’ ” (Melbostad, at p. 995; see also Griset v.
Fair Political Practices Com. (2001) 25 Cal.4th 688, 698 [it is not the form of the decree
but its substance and effect that determines whether an adjudication is final and
appealable].)
Here, the relief sought in defendant’s anti-SLAPP motion was plain: “to strike the
complaint . . . in its entirety, with prejudice and without leave to amend pursuant to . . .
section 425.16.” The trial court granted this relief, ruling unequivocally in a signed,
filed-endorsed order served on the parties that “[d]efendant’s special motion to strike the
verified complaint pursuant to Code of Civil Procedure § 425.16 is granted.” As
explained ante, an order granting a special motion to strike is an appealable order and is
expressly deemed a judgment for purposes of the rule governing appeal deadlines. (Rule
8.104(e).) And were there any doubt about the effect of the May 11 order, the trial court
entered a dismissal in the docket the same day as its ruling. Although plaintiffs discount
the effect of the dismissal entered by the trial court in the register of actions, deeming the
content “unintelligible notes,”8 the Court of Appeal, in a case cited by plaintiffs, found
8 In their opening brief, before the issue of timeliness was raised, plaintiffs appear to
grasp the import of this docket entry, noting that “[a]fter dismissing plaintiffs’ complaint
10
that a similar docket entry satisfied section 581d. (See APRI, supra, 76 Cal.App.4th at p.
181 [“Plaintiff contends that no judgment was entered in the register of actions and hence
there was no judgment within the meaning of section 581d. [Defendant] has submitted a
supplemental appendix, which includes the ‘Civil Register Report’ for this case. It
reflects entry of the order [as the date the motion to quash service was granted]. This
satisfies the requirement of section 581d”].)
In substance and effect, the May 11 order granting defendant’s special motion to
strike finally disposed of all causes of action against defendant, dismissed the complaint
with prejudice, and invited him to file a motion for attorney fees. On this record, there
was no need for a separate order of dismissal or judgment. Here, as in Melbostad, “the
order granting defendants’ motion to strike was the final determination of the rights of the
parties in this action. [Citations.] There was no issue left for future determination, and
the order disposed of the entire case . . . .” (Melbostad, supra, 165 Cal.App.4th at p.
996.) As such, the May 11 order striking the complaint was a judgment from which no
valid motion for reconsideration could lie and the time to appeal was not extended, even
if the motion was timely filed under section 1008, subdivision (a), an issue on which we
express no opinion.9 (Ramon v. Aerospace Corp., supra, 50 Cal.App.4th at pp. 1237-
1238; APRI, supra, 76 Cal.App.4th at p. 182 [“The issue is jurisdictional. Once the trial
court has entered judgment, it is without power to grant reconsideration”].)
as a SLAPP, the court dismissed the demurrers and motions to strike [defendant’s]
affirmative defenses on its own motion recited solely in the docket.”
9 Given our conclusion, we find Forrest v. Department of Corporations (2007) 150
Cal.App.4th 183 (disapproved on another ground in Shalant v. Girardi (2011) 51 Cal.4th
1164, 1172, fn. 3), which held that the 10-day period under section 1008, subdivision (a)
begins to run, not upon service by the clerk, but upon service given pursuant to section
1019.5, subdivision (a) by the party prevailing on the motion (Forrest, supra, at pp. 202-
203), inapplicable to the facts of this case.
11
Plaintiffs’ failure to timely file their notice of appeal by July 10, 2018, divests this
court of jurisdiction to consider the merits of the trial court’s ruling on the anti-SLAPP
motion and we therefore must dismiss the appeal. In light of this conclusion, we do not
reach plaintiffs’ other arguments.10
II
The Trial Court Did Not Abuse its Discretion in Awarding Attorney Fees
Plaintiffs contend the trial court abused its discretion in awarding attorney fees to
defendant by departing from the basic fee for comparable legal services in the local
Siskiyou County community and instead approving a market rate for attorneys in the San
Francisco area. Defendant argues the record amply supports the trial court’s decision to
reimburse defendant’s attorneys at their usual hourly rates. We agree with defendant and
will affirm the order.11
An award of attorney fees to a prevailing defendant on an anti-SLAPP motion is
mandatory. (§ 425.16, subd. (c)(1); Mallard v. Progressive Choice Ins. Co. (2010) 188
Cal.App.4th 531, 544.) We review the trial court’s determination of the amount of the
10 We decline plaintiffs’ invitation to use estoppel principles to revive their appeal.
Jurisdiction cannot be conferred upon appellate courts on an estoppel theory. (Pressler v.
Donald L. Bren Co. (1982) 32 Cal.3d 831, 835; Hollister Convalescent Hosp., Inc. v.
Rico (1975) 15 Cal.3d 660, 674 [when notice of appeal has not been timely filed, the
appellate court “lacks all power to consider the appeal on its merits and must dismiss, on
its own motion if necessary, without regard to considerations of estoppel or excuse”].)
11 Plaintiffs’ challenge to the trial court’s August 29, 2018 order granting defendant’s
motion for attorney fees is a timely appeal from a postjudgment order. (§ 904.1, subd.
(a)(2); Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230
Cal.App.4th 244, 251 [“Although denominated an ‘order,’ the granting of an order
dismissing a case on the basis of the anti-SLAPP statute has the same effect as a final
judgment. When the trial court issues an appealable order akin to a final judgment, a
party may appeal from a subsequent order granting or denying a request for an award of
attorney fees and costs as an ‘order made after a judgment’—or, here, more aptly
described as an order after an appealable order”].)
12
award for abuse of discretion and will not set aside the award “ ‘absent a showing that it
is manifestly excessive in the circumstances.’ ” (Mallard, supra, at p. 544.) In this
regard, we are mindful that “[t]he ‘ “experienced trial judge is the best judge of the value
of professional services rendered in [her] court, and while [her] judgment is of course
subject to review, it will not be disturbed unless the appellate court is convinced that it is
clearly wrong.” ’ ” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).) “An
abuse of discretion is shown when the award shocks the conscience or is not supported by
the evidence. [Citations.]” (Jones v. Union Bank of California (2005) 127 Cal.App.4th
542, 549-550.)
The amount of an attorney fee award under the anti-SLAPP statute is computed by
the trial court in accordance with the “lodestar” method. (Ketchum, supra, 24 Cal.4th at
pp. 1135-1136.) 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.” (Christian Research Institute
v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) The lodestar calculation begins with a
determination of the “reasonable hourly rate,” i.e., the rate “prevailing in the community
for similar work.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The
general rule is “[t]he relevant ‘community’ is that where the court is located.” (Altavion,
Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 71.)
However, “in the unusual circumstance that local counsel is unavailable,” or that
“hiring local counsel was impracticable,” the trial court is not limited to the use of local
rates and may instead use the hourly rate of out-of-town counsel from a higher fee market
in calculating the lodestar amount. (Horsford v. Board of Trustees of California State
University (2005) 132 Cal.App.4th 359, 399.) In Horsford, the Court of Appeal held the
trial court abused its discretion in using local Fresno rates in calculating the lodestar
amount where the plaintiff submitted an uncontradicted declaration stating he
unsuccessfully attempted to retain local employment law attorneys to represent him
13
before hiring out-of-town counsel from San Francisco. The court explained: “This
evidence was overwhelming and uncontradicted; it simply provides no basis for the
court’s conclusion that ‘there is no adequate showing that it was impossible or even
unusually difficult to find a local attorney to take the case.’ While we doubt a plaintiff
needs to make anything more than ‘a good faith effort to find local counsel’ [citation] in
order to justify the fees of out-of-town counsel, the evidence in the present case satisfies
even the higher standard adopted by the trial court.” (Id. at pp. 398-399.)
Similarly, in Center For Biological Diversity v. County of San Bernardino (2010)
188 Cal.App.4th 603, the Court of Appeal held the trial court abused its discretion in
using local San Bernardino rates in calculating the lodestar amount where “the only
evidence on the issue of availability of local counsel showed plaintiffs’ need to retain out-
of-town counsel.” (Id. at p. 619.) That evidence was a declaration from one of the
plaintiffs in the action. The declarant stated he was both “ ‘actively involved in
environmental and conservation issues in the San Bernardino Mountains’ ” and
“ ‘familiar with the local San Bernardino attorney market,’ ” and to his knowledge
“ ‘there [were] no local attorneys in San Bernardino County that regularly practice
environmental law on behalf of environmental groups, will do such work on a contingent
or reduced rate basis, and possess sufficient expertise . . . to represent . . . the . . .
petitioners in this litigation.’ ” (Id. at p. 618.) The court explained: “A plaintiff's
threshold showing of impracticability . . . is not onerous [citation], and the [above-
described] declaration is sufficient and competent evidence that plaintiffs acted in good
faith and hiring qualified counsel in the San Bernardino area was impracticable.” (Ibid.;
see also Environmental Protection Information Center v. California Dept. of Forestry &
Fire Protection (2010) 190 Cal.App.4th 217, 249-250 [affirming trial court’s use of out-
of-town rates where one of the plaintiffs sought local counsel, who refused to undertake
primary representation and stated in a declaration he knew of no other local counsel who
would have done so].)
14
Here, defendant documented his efforts to secure local representation in the
declaration he submitted in support of his fee motion. He stated that he contacted a local
attorney who told him his rate of $350 per hour was typical for the area, but declined to
take the case and could not recommend anyone nearby to represent him on the matter,
especially since defendant lacked money to pay a lawyer and required representation on a
contingency basis. Plaintiffs introduced no evidence that local counsel were willing to
accept this matter on a contingency fee basis. (Cf. Rey v. Madera Unified School Dist.
(2012) 203 Cal.App.4th 1223, 1241 [upholding fee award at lower local rates where
school district submitted declarations from two local attorneys who “declared that they
had the experience, skill and resources to accept such a case and would have taken this
case if asked”].)
After reviewing the evidence, the trial court implicitly found that defendant had
made the requisite “good faith effort” to secure local counsel, but that the local bar lacked
the resources to handle the litigation on a contingency fee basis. The court said,
“Defendant has submitted sufficient proof that he was unable to hire local counsel, as he
is indigent, did not have a retainer, and was required to seek counsel from out of the area
who would be willing to take his case on a contingent recovery.”
With respect to the hourly rates, the trial court, citing Horsford, supra, further
found “there has been a sufficient threshold showing in this case that compelled
defendant to seek an out-of-county attorney. Defendant contacted Janine Ogando, an
experienced civil litigator who was familiar with the plaintiffs and, while willing to work
with counsel, was not willing to be the attorney of record. Janine Ogando in [turn] was
able to secure her professional colleague, Kathleen Clark, to appear as attorney of record,
with Ogando to do much of the legal work. Both Ogando and Clark are experienced civil
15
litigators and their hourly fees at [a] rate of $450 and $500 are reasonable given their
expertise and experience.”12
Absent an arbitrary ruling, case law gives trial judges great discretion in using
their knowledge and experience to assess “ ‘ “the value of professional services rendered
in his [or her] court,” ’ ” even without the necessity of expert testimony. (PLCM Group,
Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) Indeed, under Ketchum, the trial court
could have enhanced the hourly rate in recognition of the contingent nature of the
representation. (See Ketchum, supra, 24 Cal.4th at p. 1132 [“The purpose of a fee
enhancement, or so-called multiplier, for contingent risk is to bring the financial
incentives for attorneys enforcing important constitutional rights, such as those protected
under the anti-SLAPP provision, into line with incentives they have to undertake claims
for which they are paid on a fee-for-services basis”].) On this record, plaintiffs have
failed to carry their burden to show the trial court’s award of attorney fees constituted an
abuse of discretion. We therefore affirm the trial court’s order.
12 Although plaintiffs did not (and do not) identify any work they considered
duplicative, unreasonable, or unnecessary, contrary to their assertion, the trial court did
conduct its own review of the billing records to determine a reasonable fee and ultimately
reduced the award from a requested amount of $121,815 down to $79,000 due to
(1) duplicative or inefficient billing by Ogando and Clark, (2) excessive time spent on
certain tasks, and (3) billing for unrecoverable travel time.
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DISPOSITION
The appeal from the May 11 and June 29 orders granting the special motion to
strike is dismissed. The order granting attorney fees is affirmed. Defendant is awarded
his costs on appeal. (Rule 8.278(a)(1), (2).)
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
BUTZ , J.*
* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
17