UNSUPPORTED CHALLENGE OF “EXCESSIVENESS” OR “DUPLICATIVE WORK” BY APPELLANT CHALLENGING FEE AWARDS REJECTED BY COURT OF APPEAL

Second District Affirms Award of Anti-SLAPP Fees to Defendant Where Fee Attacks Were Not Supported by Competent Evidence.

            

            When opposing a fee motion, a litigant should support challenges with competent evidence.  Such evidence can take the form of an expert witness or a particularized challenge to specific line entries (example of the second type of evidence—showing fees were spent on noncompensable claims and should be apportioned because there was no overlap with compensable claims).  A recent decision from the Second District, Premier Medical Mgt. Sys., Inc. v. Cal. Ins. Guar. Assn., Case No. B195889 (2d Dist., Div. 4 May 30, 2008) (fee award discussion not published), fully supports what we have just recommended.

            There, a trial judge awarded substantial attorney’s fees to three defendants on remand from a prior appellate opinion where the Second District reversed a trial court order denying an anti-SLAPP motion.  Both in the trial court and on appeal, plaintiffs argued that the fees were excessive, duplicative, and improperly included compensation for matter unrelated to the anti-SLAPP motion.  The Court of Appeal found no abuse of discretion in the fee awards “on the record presented.”  (Slip Opn., at p. 2.)

            Fairly early on in the decision, Presiding Justice Epstein—writing for the 3-0 unanimous panel—observed that the appellants failed to file any declaration in their fee opposition papers, provided no evidence to contradict the attorney declarations of the moving parties, and provided no evidentiary challenge to the fees claimed.  (Slip Opn., at p. 10.)  This was a bad omen of things to come.

            Initially, appellant tried to convince the panel to adopt a 50-hour figure used by another division of the same court in Maughan v. Google Technology, Inc., 143 Cal.App.4^th 1242, 1249 (2006), a figure adopted in that case as the reasonable limit for hours allowed on an anti-SLAPP motion.  No way, Justice Epstein wrote, reasoning:

“A broad rule adopting a 50-hour limit would be contrary to [the] case-by-case approach [mandated by Ketchum v. Moses, 24 Cal.4^th 1122 (2001), discussed in our post of U.S. Western Falun Dafa Assn.].  It also would conflict with application of the deferential abuse of discretion standard we apply on appeal.  A limitation such as that suggested by appellants would deprive the trial court of the full range of discretion envisioned by the Ketchum court.”  (Slip Opn., at p. 12.)

            Then, the appellate court turned to the fee reasonableness challenges, finding appellants presented no evidence to refute the attorney declaration about division of labor, time spent on activities, and reasonableness of overall hours.  The Second District found that unsubstantiated argument could not carry the day for the challenging parties on appeal:  “Appellants had two options to oppose [the attorney fee moving submissions]:  attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.  They did neither … General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”  (Slip Opn., at pp. 15-16; accord, Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist., 106 Cal.App.4^th 1219, 1248 (2003); Braun v. Chronicle Publishing Co., 52 Cal.App.4^th 1036, 1052-1053 (1997).)

            The end result in this opinion buttresses what we suggest in the introductory paragraph—provide evidentiary support to your fee oppositions to stand any meaningful chance of gaining acceptance at either the trial or appellate stage of the proceedings.