SLAPP: Trial Judge’s 75% Reduction For Excessive SLAPP Fees Affirmed On Appeal

Winning Defendant Requested $242,585, But Only Awarded $61,250.

            A big theme of our blog is that fee recovery is with rare exceptions limited to reasonable fees, even where there is mandatory fee entitlement under statutes like SLAPP (in favor of victorious defendants).  D and S Homes, Inc. v. Ludlow, Case No. B276116 (2d Dist., Div. 5 Jan. 9, 2018) (unpublished) forcefully illustrates this principle in a recent decision.

            Defendant won a SLAPP motion on a procedural issue in a run-of-the-mill case.  He then sought $242,585 in attorney’s fees.  The defense opposed, saying only $52,650.50 was appropriate.  The trial judge decided that a 75% reduction in the SLAPP fee request was justified, awarding $61,250 in fees.  That prompted an appeal by defendant.

            Defendant was disappointed because nothing more was awarded on appeal.       

            First of all, even though a substitute judge decided the fee proceeding, the appellate court did note authority indicating that a substitute judge in post-trial proceedings exercises the same discretion as the original judge.  (Churchill v. Flournoy, 127 Cal. 355, 362; Kershner v. Morgali, 152 Cal.App.2d 884, 885 (1957); compare with Center For Biological Diversity v. County of San Bernardino, 188 Cal.App.4^th 603, 616 (2010).)  Despite this tension in case law, no abuse of discretion was found under the facts of this particular matter.  Although defendant objected to the opposing party’s spreadsheet supporting a reduction in fees, the court has independent discretion to accept, reduce, or outright reject the requested hours without relying on the specific deductions or reasons for reductions proposed by an opposing party.  (Garabedian v. Los Angeles Cellular Telephone Co., 118 Cal.App.4^th 123, 127 (2004).) 

            Defendant argued that California state courts must specifically justify a substantial “hair cut” in fees, relying on the Ninth Circuit’s decision in Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9^th Cir. 2008).  The appellate court noted that Moreno does not provide guidance for California courts.  However, the trial judge did justify why he felt the fee request was excessive, bolstered by findings that the case was not that complex, there was no evidence of “scorched earth” practices, and the opposition should not have to pay for “hand holding” between the defense and his counsel.  Fee award, substantially reduced from the original request, affirmed.