CHANEY, J.
This appeal arises from a longstanding dispute between neighbors Joan Erwin (appellant) and Cynthia Maxwell (a respondent). In a nutshell, following years of animosity, Maxwell sued Erwin (and another neighbor) for slander. Maxwell eventually dismissed that lawsuit. Erwin then sued Maxwell and her attorneys for malicious prosecution, claiming Maxwell's slander lawsuit was unfounded and malicious. Erwin's malicious prosecution case is before us now. In response to Erwin's lawsuit, Maxwell and her attorneys each filed anti-SLAPP motions to strike the complaint under Code of Civil Procedure section 425.16 ("section 425.16"). The trial court granted the motions and awarded attorney fees and costs to both Maxwell and her attorneys.
Erwin appealed from the orders granting the anti-SLAPP motions as well as the court's orders awarding attorney fees and costs. Erwin argues the trial court erred in granting the anti-SLAPP motions because she demonstrated a probability of prevailing on the merits of her malicious prosecution suit. She also argues the trial court abused its discretion in awarding Maxwell and her attorneys their requested attorney fees. As explained below, we are not persuaded and affirm the orders appealed.
In May 2006, Maxwell filed a lawsuit against Erwin and another neighbor, Patricia Wilmeth, alleging a single cause of action for slander (the "underlying lawsuit").
According to Maxwell and her attorneys, they were aware of the following events before filing the underlying action. First, in a late-2003 letter to the Los Angeles Department of Public Works, Erwin made derogatory statements about Maxwell. In particular, Erwin described Maxwell as a "disgruntled neighbor whose sexual advances are unrequited" and "attempts to control if not dominate women" including Erwin.
Second, in 2004, an attorney for Erwin revealed Erwin had told him various disparaging things about Maxwell, including that Maxwell had trespassed on and thrown things onto Erwin's property, had poisoned trees in the area, and had thrown vegetation fatal to horses into Erwin's horse area.
Third, a few months before the underlying action was filed, Erwin filed her own action against Maxwell, seeking a temporary restraining order. In a declaration supporting her request for a restraining order, Erwin stated Maxwell had been harassing, threatening and attacking her for over three years. Among other things, Erwin said Maxwell had trespassed on her property, killed and thrown animals onto her property, and "twice nearly drove [Erwin] over with her car."
Fourth, fellow neighbors Thomas Mooney and Heather Kerr prepared written statements prior to the filing of the underlying lawsuit. In their statements, Mooney and Kerr said Wilmeth had told them defamatory things about Maxwell, which echoed some of what Erwin had previously said about Maxwell to others. Mooney said Wilmeth warned him and Kerr to stay away from Maxwell because she was "crazy" and would try to seduce them into a sexual relationship, as she had done to others in the neighborhood. Wilmeth also told Mooney that Erwin and her husband had been the victims of Maxwell's sexual advances. Similarly, Kerr said Wilmeth warned her and Mooney to stay away from Maxwell because she was "crazy," "evil" and would try to seduce them sexually, just as she had done to Wilmeth and her husband and to Erwin and her husband. Wilmeth called Maxwell a "sexual predator" and said she put dead rodents and birds on the Erwins' property because they refused her sexual advances. Kerr stated she never heard verbal abuse or aggressive exchanges between Maxwell and Erwin, there was never any sexual implications during her encounters with Maxwell, and in fact Kerr believed Maxwell was "extremely `normal.'"
In her complaint in the underlying lawsuit, Maxwell alleged Erwin and Wilmeth had made disparaging and false remarks about her to Mooney and Kerr. In essence, the complaint alleged Erwin and Wilmeth both warned Mooney and Kerr to avoid Maxwell because she was crazy, evil, and a sexual deviant and predator who put dead animals on Erwin's property. Paragraph nine of the complaint also alleged Erwin had made similar comments to employees of the Los Angeles Department of Public Works.
In response to Maxwell's slander lawsuit, Erwin and Wilmeth filed an anti-SLAPP motion to strike under section 425.16. Erwin and Wilmeth argued the applicable statute of limitations and the litigation privilege barred the allegation in paragraph nine of the complaint, where Maxwell claimed Erwin had slandered her in letters to the Los Angeles Department of Public Works. In a conclusory fashion, Erwin and Wilmeth also claimed Maxwell would be unable to prevail on her remaining allegations of slanderous statements made about her.
Wilmeth eventually withdrew her motion and the trial court denied Erwin's motion, stating simply "that the arguments set forth may be more suitable for a motion for summary judgment."
Following the denial of her motion to strike, Erwin filed a motion for summary judgment or summary adjudication. In that motion, Erwin again argued the applicable statute of limitations and the litigation privilege barred the allegation in paragraph nine of the complaint, where Maxwell claimed Erwin had slandered her in letters to the Los Angeles Department of Public Works. In addition, Erwin denied making any other derogatory statements about Maxwell and claimed Maxwell had no evidence otherwise.
Although the trial court's tentative ruling was to grant summary judgment in favor of Erwin, the court continued the hearing on the motion so that Maxwell could propose amendments to her complaint. Subsequently, Maxwell proposed, and the court allowed Maxwell to file, a first amended complaint, alleging a second cause of action for slander against Erwin. In her new cause of action, Maxwell alleged Erwin again made slanderous statements about her to Heather Kerr. Maxwell alleged Erwin told Ms. Kerr, among other things, that Maxwell was "aggressive, obsessed, vindictive and nuts," and that Erwin and her husband had resisted Maxwell's sexual advances, which rejection resulted in Maxwell placing dead animals around the Erwins' house.
The second cause of action was supported by a new declaration from Ms. Kerr, in which she stated Erwin had made the slanderous statements about Maxwell in the presence of Wilmeth, Kerr and Mr. Erwin. In particular, Kerr said that, in February 2006, she had a conversation with Wilmeth, Erwin and Erwin's husband. During that conversation, Erwin warned Kerr to stay away from Maxwell because she was "aggressive, obsessed, vindictive and nuts" and that she had stalked and harassed the Erwins. Erwin said she and her husband had rejected Maxwell's sexual advances, which rejection resulted in Maxwell throwing dead animals on Erwin's property. Erwin also warned Kerr to keep her dog away from Maxwell because she might harm the dog.
In ruling on Erwin's motion for summary judgment or summary adjudication, the trial court granted summary adjudication in favor of Erwin only as to the allegation in paragraph nine, where Maxwell claimed Erwin had slandered her in letters to the Los Angeles Department of Public Works. The ruling was based on the court's finding that the allegation in paragraph nine was barred by both the statute of limitations and the litigation privilege.
Erwin demurred to Maxwell's amended complaint, arguing the new second cause of action was barred by the one-year slander statute of limitations. She also argued the discovery rule did not apply to save Maxwell's new cause of action. The trial court overruled Erwin's demurrer, concluding the discovery rule does apply to slander.
Simultaneous with her demurrer, Erwin also filed a motion to strike portions of the amended complaint. Erwin argued certain alleged statements in Maxwell's new second cause of action did not constitute slander and, therefore, should be stricken. The trial court agreed, granted the motion and struck the specified portions of Maxwell's second cause of action.
Finally, Erwin filed a second motion for summary judgment or summary adjudication as to Maxwell's amended complaint. Erwin argued the first cause of action was based only on Maxwell's speculation and that the second cause of action was barred by the statute of limitations.
The trial court denied summary judgment, but granted summary adjudication in favor of Erwin as to Maxwell's first cause of action for slander. The court denied summary adjudication as to the second cause of action for slander. The trial court held that, although there were no triable issues of fact as to the first cause of action, there were triable issues of fact as to the second cause of action. Thus, Maxwell's second cause of action for slander against Erwin remained.
After the trial court granted in part and denied in part her motion for summary adjudication, Erwin moved to have the lawsuit reclassified as a limited jurisdiction case. The trial court granted the motion and reclassified Maxwell's slander lawsuit as a limited jurisdiction matter and ordered it reassigned to an appropriate court.
Subsequently, Maxwell voluntarily dismissed her slander lawsuit against Erwin without prejudice.
After Maxwell voluntarily dismissed her slander lawsuit against Erwin, Erwin sued Maxwell and her attorneys for malicious prosecution. This is the case before us now. In essence, Erwin claims neither Maxwell nor her attorneys had probable cause to bring the underlying slander lawsuit, the lawsuit was filed with malice and was terminated in Erwin's favor.
In response to Erwin's malicious prosecution lawsuit, Maxwell and her attorneys filed separate anti-SLAPP motions. The trial court's tentative ruling was to deny the anti-SLAPP motions, but the trial court ordered supplemental briefing and eventually granted the defendants' motions. The court based its rulings on its conclusion that Erwin failed to show a probability of prevailing on the merits of any of the three elements of her malicious prosecution claim—lack of probable cause in initiating and maintaining the underlying lawsuit, malice in filing the underlying lawsuit, and a favorable termination of the underlying lawsuit.
Maxwell and her attorneys separately moved for attorney fees and costs under section 425.16, subdivision (c), which entitles prevailing defendants on a special motion to strike to recover their attorney fees and costs.
Using a lodestar amount of $200 per hour, the trial court awarded Maxwell her requested $24,480.00 in attorney fees. The total amount awarded, including costs, came to $24,880.00.
For the attorney defendants, the trial court used a lodestar amount of $385 per hour, and awarded the attorney defendants their requested $69,877.50 in attorney fees. The total amount awarded, including costs and paralegal fees, came to $71,006.00.
Erwin appealed from the trial court's order granting the anti-SLAPP motions as well as from the court's orders awarding attorney fees.
On May 4, 2009, the trial court entered a minute order granting Maxwell's and her attorneys' anti-SLAPP motions. On June 26, 2009, Erwin filed a premature notice of appeal from the May 4 minute order. That notice of appeal was premature because, in its minute order, the trial court directed respondents to file a joint proposed order and indicated it would prepare a formal order. "[W]here findings of fact or a further or formal order is required, an appeal does not lie from a minute order." (Herrscher v. Herrscher (1953) 41 Cal.2d 300, 304. See also Cal. Rules of Court, rule 8.104(d)(2).)
The trial court filed its formal order on July 9, 2009. On July 24, 2009, Erwin filed a further notice of appeal from the formal order. Thus, despite respondents' arguments to the contrary, Erwin's appeal from the order granting the anti-SLAPP motions is timely.
"Review of an order granting or denying a motion to strike under section 425.16 is de novo." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup ).) "We consider `the pleadings, and supporting and opposing affidavits upon which the liability or defense is based.' (§ 425.16, subd. (b)(2).) However, we neither `weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.'" (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.)
Under section 425.16, a party may move to dismiss "certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity." (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1420-1421.) Section 425.16 provides: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).)
In evaluating an anti-SLAPP motion, we conduct a two-step analysis. First, we must decide whether the defendant "has made a threshold showing that the challenged cause of action arises from protected activity." (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 488.) For these purposes, protected activity "includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
Second, if the defendant makes this threshold showing, we decide whether the plaintiff "has demonstrated a probability of prevailing on the claim." (Taheri Law Group v. Evans, supra, 160 Cal.App.4th at p. 488.)
As the parties correctly agree, Erwin's malicious prosecution lawsuit arises from protected activity and, therefore, falls within the scope of section 425.16. "`By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit.' [Citation.] The filing of lawsuits is an aspect of the First Amendment right of petition. [Citation.] Accordingly, defendants have fulfilled the required threshold showing." (Soukup, supra, 39 Cal.4th at p. 291.)
Because respondents have made the required threshold showing, we consider whether Erwin demonstrated a probability of prevailing on her claim. To satisfy her burden, Erwin "`must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'" (Soukup, supra, 39 Cal.4th at p. 291.) The trial court must deny an anti-SLAPP motion if "`"the plaintiff presents evidence establishing a prima facie case which, if believed by the trier of fact, will result in a judgment for the plaintiff. [Citation.]"'" (Robinzine v. Vicory, supra, 143 Cal.App.4th at p. 1421.) At this stage of the proceedings, the plaintiff "need only establish that his or her claim has `minimal merit.'" (Soukup, supra, 39 Cal.4th at p. 291.) Although "`the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.'" (Ibid.)
To prevail on her malicious prosecution claim, Erwin must show the underlying action (1) was initiated by or at the direction of the respondents, (2) was brought without probable cause, (3) was initiated with malice, and (4) was legally terminated in Erwin's favor. (Soukup, at p. 292.)
Because it is dispositive, we begin with the second element—whether Maxwell and her attorneys had probable cause to bring the underlying slander lawsuit. We conclude they did. And, as a result, Erwin cannot satisfy her burden of showing a probability of prevailing on her malicious prosecution claim. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 875 ["[i]f the court determines that there was probable cause to institute the prior action, the malicious prosecution action fails"].)
In a malicious prosecution case, the existence or nonexistence of probable cause is a question of law for the court to decide. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817 (Wilson).) The court uses an objective standard to determine whether there was probable cause. (Ibid.) The standard is a "low" one and "rather lenient." (Id. at pp. 817 & 826. See also Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 382 (Roberts) [describing the standard for probable cause as "permissive"].) We construe the allegations of the underlying complaint (here, the slander lawsuit) liberally and in a light most favorable to the malicious prosecution defendant (here, Maxwell and her attorneys). (Sycamore Ridge Apartments, LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1402.)
Probable cause to bring a civil suit exists when the claim is "legally tenable." (Roberts, supra, 76 Cal.App.4th at p. 382.) In other words, "probable cause exists if `any reasonable attorney would have thought the claim tenable.'" (Wilson, supra, 28 Cal.4th at p. 817.) A malicious prosecution suit may be based only on "those actions that `"any reasonable attorney would agree [are] totally and completely without merit."'" (Ibid.) As our Supreme Court has recognized, attorneys and litigants "`"have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win."'" (Ibid.) "Reasonable lawyers can differ, some seeing as meritless suits which others believe have merit, and some seeing as totally and completely without merit suits which others see as only marginally meritless. Suits which all reasonable lawyers agree totally lack merit—that is, those which lack probable cause—are the least meritorious of all meritless suits. Only this subgroup of meritless suits present no probable cause." (Roberts, at p. 382.)
Probable cause "requires evidence sufficient to prevail in the action or at least information reasonably warranting an inference there is such evidence." (Puryear v. Golden Bear Insurance Co. (1998) 66 Cal.App.4th 1188, 1195. See also Arcaro v. Silva and Silva Enterprises Corp. (1999) 77 Cal.App.4th 152, 156.)
Here, Erwin does not dispute what facts Maxwell and her attorneys relied on in filing and maintaining the underlying lawsuit. Rather, the dispute centers on whether the facts relied on constitute probable cause for filing and maintaining the underlying lawsuit. Erwin argues they do not. Specifically, in her Reply Brief on appeal, Erwin states her malicious prosecution lawsuit "is based on the fact that [defendants] had no evidence to support their charges against [her]."
Despite Erwin's claims to the contrary, however, we conclude the facts on which both Maxwell and her attorneys relied constitute probable cause for filing and maintaining the underlying slander lawsuit. Slander is defined as "a false and unprivileged publication, orally uttered, . . . which: [¶] 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; [¶] 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; [¶] 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; [¶] 4. Imputes to him impotence or a want of chastity; or [¶] 5. Which, by natural consequence, causes actual damage." (Civ. Code, § 46.)
Maxwell and her attorneys based and maintained the underlying lawsuit on a variety of facts, which supported filing the lawsuit. As recounted in the Background section above, before filing suit, Maxwell and her attorneys were aware of numerous instances over the course of more than two years when Erwin made derogatory statements about Maxwell. Those included Erwin's letter to the Department of Public Works, her statements to her attorney, and her declaration in support of her request for a temporary restraining order. In addition, prior to filing suit, Maxwell and her attorneys possessed the written statements of Mooney and Kerr, which recounted the defamatory statements made by Wilmeth, which were similar to and in the same vein as some of Erwin's statements.
Although Erwin argues Maxwell and her attorneys filed the underlying lawsuit against her based on nothing more than pure speculation, we do not agree. Maxwell and her attorneys could reasonably infer from Erwin's statements over the course of more than two years as well as from Wilmeth's statements—particularly Wilmeth's statements that echoed Erwin's earlier statements, such as Maxwell had tried to seduce Erwin and her husband, and had thrown dead animals on Erwin's property—that, at the least, Erwin had told Wilmeth and possibly others that Maxwell had done those things. (See Puryear v. Golden Bear Insurance Co., supra, 66 Cal.App.4th at p. 1195.) Similarly, Maxwell and her attorneys could reasonably infer based on the information they had that further evidence could be obtained during discovery. (See Daniels v. Robbins (2010) 182 Cal.App.4th 204, 224.) In fact, after the underlying lawsuit was filed, Maxwell and her attorneys located another letter Erwin sent to the Los Angeles Department of Public Works containing defamatory statements about Maxwell. They were also able to present an additional declaration from Ms. Kerr, which further supported the lawsuit. As noted above, Ms. Kerr's later-filed declaration recounted a conversation during which, in the presence of Ms. Kerr, Mr. Erwin and Wilmeth, Erwin made defamatory statements about Maxwell (including that Maxwell had made sexual advances toward Erwin and her husband and that she had thrown dead animals onto their property).
This is not a case where additional facts negated those on which Maxwell and her attorneys relied. Although Erwin disputes saying the statements listed in Maxwell's first cause of action for slander, her denial is insufficient to create a lack of probable cause. (See Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 627 [party's boiler plate denial of facts is insufficient to refute probable cause]. Cf. Bergman v. Drum (2005) 129 Cal.App.4th 11, 15-16, 19 [in light of facts negating party's liability and a lack of evidence supporting liability, there was "no evidence from which [malicious prosecution defendant] reasonably could have inferred" liability].)
Considering the alleged facts and case law above, we conclude Maxwell and her attorneys had probable cause to file and maintain the underlying lawsuit. As to the first cause of action (the only cause of action in the original complaint), Maxwell and her attorneys had direct evidence—although not necessarily admissible at trial—that, for years, Erwin had made defamatory statements about Maxwell. In addition, Maxwell and her attorneys had Mr. Mooney's and Ms. Kerr's statements, which included statements echoing Erwin's earlier statements to others. From all the facts they possessed, Maxwell and her attorneys could reasonably infer that Erwin made defamatory statements to Wilmeth or others. And, clearly, Kerr's supplemental declaration provided ample probable cause supporting the second cause of action for slander, which Maxwell added to her amended complaint. We cannot conclude that all reasonable attorneys would agree Maxwell's slander lawsuit was "totally and completely without merit." (Wilson, supra, 28 Cal.4th at p. 817.) Rather, we conclude a reasonable attorney would consider the suit "legally tenable." (Roberts, supra, 76 Cal.App.4th at p. 382.) Because probable cause existed for the underlying lawsuit, Erwin cannot prevail on her malicious prosecution claim. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 875.) Accordingly, the trial court properly granted Maxwell's and her attorneys' anti-SLAPP motions.
The trial court awarded attorney fees to Maxwell and her attorneys under section 425.16, subdivision (c), which entitles prevailing defendants on an anti-SLAPP motion to recover reasonable fees and costs. (§ 425.16, subd. (c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum).) Erwin challenges both orders awarding attorney fees.
As the parties correctly agree, we review the trial court's award of attorney fees for an abuse of discretion. (Ketchum, supra, 24 Cal.4th at p. 1130.) "The `"experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong."'" (Id. at p. 1132.) We will not substitute our judgment for that of the trial court and we will not set aside a trial court's discretionary rulings unless they are clearly arbitrary, irrational, or exceed the bounds of reason. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1249-1250 (Maughan).)
"[T]he fee setting inquiry in California ordinarily begins with the `lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. . . . The reasonable hourly rate is that prevailing in the community for similar work. [Citation.] The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary." (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM).) When awarding attorney fees under section 425.16, courts use the lodestar analysis. (Ketchum, supra, 24 Cal.4th at pp. 1131, 1136.)
"`It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court . . . . [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citations.] The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case." (PLCM, supra, 22 Cal.4th at p. 1096.)
The actual amount charged to the client is irrelevant, as is the exact amount of attorney time spent on the matter. In PLCM, our Supreme Court affirmed the award of reasonable attorney fees—which the trial court had calculated and awarded without knowing the exact amount charged or the exact amount of time spent on the matter. (PLCM, supra, 22 Cal.4th at pp. 1096, fn. 4, and 1098.) As the PLCM Court explained, "[r]equiring trial courts in all instances to determine reasonable attorney fees based on actual costs and overhead rather than an objective standard of reasonableness, i.e., the prevailing market value of comparable legal services, is neither appropriate nor practical; it `would be an unwarranted burden and bad public policy.'" (Id. at p. 1098.)
Erwin challenges the lodestar amount used to calculate Maxwell's attorney fees. Although Maxwell's attorneys on the anti-SLAPP motion stated they charged $150 and $160 per hour, the trial court calculated their fees using a $200 per hour lodestar amount (which Maxwell had requested). Erwin claims this $40-$50 increase was unsupported by evidence, unjustified, and an abuse of the court's discretion. Erwin bases her argument on the fact that Maxwell requested and received more than what her attorneys actually charged. As explained above, however, the actual rate charged is irrelevant to the court's lodestar analysis. (PLCM, supra, 22 Cal.4th at pp. 1096, 1098.) Notably, apart from what the attorneys actually charged, Erwin does not argue $200 per hour is an unreasonable hourly rate for a Los Angeles area litigation attorney. Moreover, in determining and awarding fees, the trial court called on its own experience and expertise—a practice we and other courts sanction. (E.g., PLCM, supra, 22 Cal.4th at p. 1096; Maughan, supra, 143 Cal.App.4th at p. 1251.)
Accordingly, we conclude the trial court did not abuse its discretion in awarding Maxwell her requested attorney fees.
Erwin challenges the award of attorney fees to the attorney defendants essentially on two grounds—first, that the trial court abused its discretion in using the attorney defendants' requested blended hourly rate of $385, and second that the trial court abused its discretion in awarding fees for every time entry submitted by the attorney defendants. We conclude the trial court did not abuse its discretion in using the $385 blended rate or in awarding the attorney defendants fees for every time entry submitted.
First, Erwin argues the trial court could not have calculated a reasonable rate for the attorney defendants because they never revealed their actual billing rates and did not offer expert declarations or declarations from other Los Angeles attorneys to support their requested rates. As previously indicated, however, neither an attorney's actual billing rate nor expert testimony on prevailing rates is necessary. (PLCM, supra, 22 Cal.4th at pp. 1096, 1098.) We conclude the trial court did not abuse its discretion in using the attorney defendants' requested blended rate of $385 per hour.
Second, Erwin argues the trial court improperly awarded fees to the attorney defendants for work done on matters unrelated to their anti-SLAPP motion and for time entries that did not indicate what work was actually done (because they were redacted). Erwin relies on Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379 for the proposition that, for purposes of attorney fees under section 425.16, subdivision (c), the prevailing defendant is entitled to fees and costs incurred on the motion to strike only, not on the entire suit. (Id. at p. 1383.) After Lafayette was decided, however, the Legislature amended section 425.16, mandating that the section be "construed broadly." (§ 425.16, subd. (a); Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1119.) Thus, Lafayette is tempered by this legislative mandate, which courts have interpreted to mean fees under subdivision (c) of that section may be awarded for work performed in connection with an anti-SLAPP motion. (E.g., Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22. See also Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 285-286.)
At the hearing on the motion, however, the trial court appeared to agree with Erwin's position, stating that some time entries appeared unrelated to, or lacked enough information to determine whether they were related to, the anti-SLAPP motion. The court stated, for example, "I took out anything that didn't have to do with the SLAPP, and I was pretty serious about it" and "I took out anything that appeared to me to be e-mails to your clients. If it didn't have `SLAPP' in front of it, you probably didn't get it."
In spite of these and similar comments, the trial court granted the attorney defendants' motion for attorney fees in whole—awarding all fees sought, without making any deductions. On the order (prepared by the attorney defendants), the trial court handwrote a sentence, explicitly stating "The Court reviewed
Despite the trial court's comments at the hearing, we conclude the court did not abuse its discretion in awarding attorney defendants the entirety of their requested fees. First, as noted, the trial court possesses broad discretion in calculating and awarding attorney fees. (PLCM, supra, 22 Cal.4th at p. 1096.) And we will not overturn the court's exercise of discretion absent a clear showing the court acted arbitrarily, irrationally, or beyond the bounds of reason. (Maughan, supra, 143 Cal.App.4th at pp. 1249-1250.)
Second, the "judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133. See also Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631-632 [trial court rulings are "presumed correct, and ambiguities are resolved in favor of affirmance"].) This is especially pertinent here, when the record reflects that the trial court thoroughly and independently reviewed "
Third, as appellant, Erwin bears the burden of affirmatively demonstrating error. (Winograd v. American Broadcasting Co., supra, 68 Cal.App.4th at pp. 631-632; Ketchum, supra, 24 Cal.4th at p. 1140.) However, Erwin failed to include in the record on appeal documents required for our review of her arguments with respect to the attorney defendants' requested fees. Although the record includes the motions for attorney fees and related declarations, as well as the reporter's transcript for the hearing on those motions, the record does not include documents referenced in the attorney defendants' billing records (such as Maxwell's motion to strike punitive damages). And, yet, Erwin argues work spent preparing those documents was unrelated to the anti-SLAPP motion and, therefore, not appropriate for an award of attorney fees. Not having those documents, we cannot agree with Erwin, but instead presume the trial court was correct in awarding fees for work on those documents. On at least two occasions, our Supreme Court has articulated this principal, which is particularly applicable here: "`It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error. [Citations.] Here, [Erwin] should have augmented the record with [the missing documents]. [Citations.] Because [she] failed to furnish an adequate record of the attorney fee proceedings, [Erwin's] claim must be resolved against [her].'" (Ketchum, supra, 24 Cal.4th at pp. 1140-1141; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
Fourth, the attorney defendants' motion for fees was supported by the declaration of Mark Schaeffer, an attorney working on this case. Mr. Schaeffer included in his declaration the billing records for which the attorney defendants sought their fees and stated they were "related to their special motion to strike plaintiff Joan Erwin's complaint." He stated he personally reviewed all invoices related to this case and included for the trial court's review those entries "pertaining to the defense of this action." The trial court was entitled to rely on this declaration.
Fifth, the anti-SLAPP motions targeted Erwin's entire case, as the entire lawsuit was subject to an anti-SLAPP defense. (E.g., Metabolife International, Inc. v. Wornick (S.D. Cal. 2002) 213 F.Supp.2d 1220, 1223 [when "the entire lawsuit is subject to the anti-SLAPP motion . . . [a]ll of [the prevailing party's] attorney fees and expenses were incurred `in connection with' the anti-SLAPP motion."].)
In light of the above, and despite the trial court's statements at the hearing, we conclude the court did not abuse its discretion in awarding fees for all billing entries submitted by the attorney defendants.
The orders granting respondents' anti-SLAPP motions and the orders awarding costs and attorney fees are affirmed. Respondents are awarded costs on appeal.
We concur:
ROTHSCHILD, Acting P. J.
JOHNSON, J.
