Fourth District, Division 3 Sanctions Losing In Pro Per Plaintiff By Affirming $40,000 Attorney’s Fees Award.
Previously, an in pro per litigant filed an anti-SLAPP motion to strike a fraudulent transfer complaint by an opponent. (See Code Civ. Proc., §425.16 [anti-SLAPP statute].)
In pro per lost the motion, and the trial court imposed sanctions against him. The appellate court affirmed and imposed further sections against in pro per for bringing a frivolous appeal instituted solely for delay (Code Civ. Proc., §425.16(c); Cal. Rules of Court, rule 8.276(a)(1)). The trial court awarded respondent about $40,000 in appellate fees, a reduction of $13,000 in the $53,000 of fees/costs actually sought. In pro per appealed again, even though respondent’s Orange County attorneys only sought recovery for fees at a blended rate of $225 per hour.
Justice Ikola, writing for a 3-0 Fourth District, Division 3 panel, affirmed once again in Palacio Del Mar Homeowners Assn., Inc. v. McMahon, Case No. G038622 (4th Dist., Div. 3 May 23, 2008) (unpublished).
The appellate court started its discussion by noting that section 425.16 uses the lodestar adjustment method for determining the proper amount of fee awards, namely, an assessment of hours spent by the attorneys. The appellate court found nothing wrong with the 175 hours at $225 per hour spent on the appeal, because “the case was not exactly [a] cakewalk” even though “the billing on the underlying appeal was not exactly a model of efficiency.” The Court of Appeal, although seeing some merit to each side about the amount of fees expended by respondent, also observed that the trial court had discounted 50 hours such that there was no abuse of discretion in the ultimate fee award.
The appellate panel found that the $225 per hour attorney rate was reasonable, although providing valuable guidance on how reasonableness should be proven on this issue. Respondent only provided a declaration from its own counsel attesting to reasonableness of rates charged. The Court of Appeal did state “[a]s [appellant in pro per] notes, the better practice for showing the reasonableness of the lawyers’ billing rates would have been for [respondent] to offer evidence of other lawyers’ rates.” (Slip Opn., at p. 5, citing Ketchum v. Moses, 24 Cal.4th 1122, 1128 (2001).) However, the appellate court went on to observe that respondent was not required to do this, especially given that in pro per did not present any evidence of lower rates.
In pro per also suggested that he was wrongfully denied discovery regarding lawyers’ billing rates, but this contention was rejected because he inadequately raised the argument below. (POSTS TO COME—We will discuss whether litigants in fee contests can take discovery and what forms of discovery are appropriate.)
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