BAKER, J.
Defendant and appellant Jeffrey Ludlow (Ludlow) prevailed on an anti-SLAPP motion to strike plaintiff and respondent D and S Homes' (D&S's) complaint alleging Ludlow and other defendants maliciously prosecuted a lawsuit against D&S. We consider whether the trial court abused its discretion determining a reasonable attorney fee for prevailing in the anti-SLAPP litigation was $61,250 (crediting 175 hours of work at $350 per hour), notwithstanding Ludlow's request for $242,585 (seeking credit for 693.1 hours of work at $350 per hour).
In 2008, Edmundo Bustamante and Tiffany Bustamante (the Bustamantes) filed a lawsuit against D&S and numerous other defendants alleging causes of action for fraud, negligent misrepresentation, and conspiracy to commit fraud in connection with the Bustamantes' purchase of a new home. The Bustamantes filed their lawsuit after Ludlow told them their home had been built by an unlicensed contractor and referred them to attorney Ray Bowen (Bowen); Bowen represented the Bustamantes during the lawsuit. (Bowen also represents Ludlow in this action, and Bowen was also a named defendant himself.)
Based on Bowen's (later discredited) interpretation of Business and Professions Code section 7031, the Bustamantes' complaint alleged the contract to purchase their new home was a construction contract subject to the protections of that statute. The Bustamantes' lawsuit was ultimately referred to an arbitrator for resolution (Code Civ. Proc., § 638), and the arbitrator ruled in favor of D&S and the other defendants. On appeal from the arbitrator's judgment, Division Six of this court affirmed, holding Business and Professions Code section 7031 was inapplicable because the contract was one for sale of a completed home rather than a contract for its construction, and the former was not subject to the provisions of that statute.
In August 2013, after prevailing in the action filed by the Bustamantes, D&S sued the Bustamantes, Ludlow, and Bowen for malicious prosecution. D&S's first amended complaint—filed in December 2013 and asserting a single claim for malicious prosecution—alleged the Bustamantes' lawsuit was pursued to a legal conclusion favorable to D&S, was brought without probable cause, and was brought with malice, i.e., with the intentional wrongful purpose of injuring D&S.
Bowen and Ludlow (with Bowen as his lawyer) responded in January 2014 by each filing a Code of Civil Procedure section 425.16 special motion to strike the malicious prosecution complaint (the anti-SLAPP motions). In addition to the anti-SLAPP motions, Bowen and Ludlow also simultaneously filed a demurrer to the malicious prosecution complaint and a general motion to strike it in whole or in part. D&S opposed the anti-SLAPP motions, Ludlow and Bowen filed replies, and both sides filed requests for judicial notice and evidentiary objections to the other side's declarations. D&S also opposed the concurrently filed demurrer and general motion to strike. The trial court denied the anti-SLAPP motions and the general motion to strike, and the court also overruled the demurrer. Bowen and Ludlow appealed only the denial of their anti-SLAPP motions.
On appeal, Bowen and Ludlow argued—and this court agreed—the trial court erred in judicially noticing, for the truth of matters asserted therein, certain documents filed in the Bustamantes' earlier lawsuit. With this evidence excluded, we held D&S had failed to present a prima facie case regarding two essential elements of its malicious prosecution claim, lack of probable cause and malice, which meant D&S had not demonstrated its lawsuit had the minimal merit required to withstand an anti-SLAPP challenge.
Back in the trial court, Bowen, on Ludlow's behalf, filed a motion seeking an attorney fees award of $242,585 (the Motion). The Motion and supporting declaration from Bowen, which attached his billing records, maintained Bowen spent 693.1 hours working on Ludlow's anti-SLAPP motion in the trial court and on appeal.
D&S opposed the Motion, arguing it improperly sought fees not just for Bowen's work on Ludlow's anti-SLAPP motion but for his work on his own anti-SLAPP motion and the concurrently filed demurrer and general motion to strike. D&S additionally argued the hours Bowen claimed to have spent on Ludlow's anti-SLAPP motion were unreasonable and excessive because the anti-SLAPP motion "was run of the mill" and comprised "only 12 pages . . . with a [two] and one half page declaration." D&S further contended Ludlow's appellate brief in this court "was nothing more than a rehashing of the [anti-SLAPP motion]" and Ludlow should be entitled to nowhere near the amount billed for appellate work. D&S concluded that, at most, the trial court should award Ludlow $52,650.50 in fees, calculated at 150.43 hours of work at $350 per hour.
D&S's opposition to the Motion was supported by a declaration from its attorney, John Henrichs (Henrichs). The declaration attached a 25-page spreadsheet itemizing the billing entries by Bowen that D&S disputed and including, for each entry, a short description of the basis of the dispute. In the body of his declaration, Henrichs highlighted several of what he believed to be the more egregious examples of Bowen's overbilling, including a "[one]-page letter that allegedly took two hours to write," a "[two]-page objection [to a notice of hearing] with three sentences in it [that] supposedly took [one] hour to write," and a "[one]-page Notice of Appeal, which is a pre-printed form with [one] box checked off [that] somehow took 2.5 hours to do." And in one of the final entries on the attached spreadsheet, Henrichs broadly disputed all of Bowen's billings during July 2014 through October 2015-418.55 hours for work claimed to have been done for the appeal of Ludlow's anti-SLAPP motion—because "between [Bowen's appellate brief], reviewing the response, preparing a reply and doing some minimal additional research, and arguing the brief, [Bowen] should not have billed more than 40 hours."
In reply on Ludlow's behalf, Bowen argued the spreadsheet attached to Henrichs' declaration was not admissible evidence and constituted "a complete misinterpretation and misrepresentation of the reasons and nature of the legal work." Bowen maintained Henrichs "replaced the actual facts with his own opinion, as though he is somehow qualified as a forensic accounting expert," and Bowen countered that Henrichs' aforementioned examples of overbilling highlighted were "not relevant" because Henrichs "was not there and does not know the actual facts and circumstances of each." As to the time billed for work on appeal in particular, Bowen asserted "[c]arefully researching every case and code section cited in order to be certain it is well understood and that each citation supports the client's position is essential," and Bowen explained "Ludlow, as the president and major shareholder of his company, justifiably insisted on being kept fully informed regarding the issues of his case, research regarding the issues, documents drafted and received, and correspondence as it occurred."
With his reply, Bowen also lodged 127 evidentiary objections to the spreadsheet attached to Henrichs' declaration. Virtually all were identical boilerplate objections that Henrichs "lack[ed] personal knowledge and was incompetent as to the amount of time Bowen took to perform the work done [and] cannot know the amount to time to be deducted, . . . the work actually performed, [and] whether the entries on the invoices are general. . . ." In objection number 127, however, Bowen noted Henrichs' spreadsheet disputed Bowen's billing entries between July 2014 and October 2015 in broad strokes, and Bowen asserted "[a]ll of this must be disregarded" because "[D&S] stopped making entries" in the spreadsheet for that time period.
At an April 2016 hearing on the Motion, the trial court—with a different judge presiding than the judge who ruled on the anti-SLAPP motions—heard extensive argument by the parties. The trial court stated on the record that it had read this court's opinion reversing the denial of Ludlow and Bowen's anti-SLAPP motions as well as Ludlow's request for judicial notice of fees awarded in related cases, and the court's comments and questions otherwise displayed familiarity with papers filed by the parties.
Citing Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315 (Christian Research), an opinion upholding a trial court's reduction in attorney fees to a prevailing anti-SLAPP defendant, the trial court awarded Ludlow $61,250 in attorney fees. The trial court agreed Bowen's rate of $350 was reasonable, but the court found the total hours billed by Bowen should be reduced by 75%, which the court rounded up to 175 hours to arrive at the awarded amount (which was greater than the $52,650.50 in fees D&S contended was reasonable).
The trial court explained the reasons for its ruling on the record. To summarize here, the court acknowledged that it was "not saying fees like [what the plaintiff was seeking] shouldn't [ever] be awarded," but "looking at this case, the facts of this case and what this case is about," the court believed Ludlow was seeking compensation for "a huge amount of attorney's fees" and the amount sought was "[exc]essive." The court noted that even with its reduction of Ludlow's requested fee amount by seventy five percent, the award was still "far greater" than fee awards in other SLAPP cases it had handled. The court additionally opined: the legal issue decided in this court's opinion reversing the anti-SLAPP order was merely "somewhat procedural and technical"; the D&S complaint targeted by Ludlow's anti-SLAPP motion contained only a "single cause of action"; the case lacked the broad expanse of litigation that justified "considerable fees" in other cases Bowen had brought to the court's attention; the anti-SLAPP motion did not require discovery; the court saw no evidence of "scorched earth policies"; and it was not "fair to make the other side pay for [so] much hand-holding" between Bowen (the attorney) and Ludlow (the client) even though tending to the concerns of a client "does have good features."
After the court announced its ruling, Bowen asked the court if he could "inquire as to how to handle the evidentiary objections that we timely filed[.]" The court offered Bowen the opportunity to "go through them," and asked for the name of the filed document with the objections. When Bowen explained he objected to "virtually every single entry" on the spreadsheet attached to Henrichs' declaration, the court said it would make a ruling and overruled the objections, noting Ludlow's claim to have spent 693 hours on the anti-SLAPP litigation "invite[d] an inquiry of analysis of the billing statements" that would be "perfectly appropriate" for both opposing counsel and the court to undertake. Counsel for D&S offered to prepare an order including the ruling overruling the objections and the court told Bowen he could object to it "[i]f you don't like it." No further objection was filed.
We will uphold a trial court's order awarding attorney fees pursuant to section 425.16 unless we are convinced the court abused its discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).) Here, the trial court evaluated Bowen's claims concerning the hours he claimed to have worked on Ludlow's anti-SLAPP motion, accepted Bowen's proffered hourly rate, considered the written and oral arguments of all parties, and followed the lodestar method for calculating fees. The court deducted hours spent on the anti-SLAPP litigation it deemed unnecessary and excessive, and the fee award the trial court made rests comfortably within the parameters of the court's discretion.
Both D&S and Ludlow expressly agree we review a trial court's attorney fees award for abuse of discretion. Although Ludlow concedes abuse of discretion review applies, he also contends that some sort of "enhanced review for abuse of discretion" should apply because the trial judge who ruled on his Motion was not the judge who presided over the anti-SLAPP litigation in the trial court.
To the extent Ludlow can be understood to argue that in such circumstances we have "`somewhat more latitude in determining whether there has been an abuse of discretion,'" there is some authority for that proposition. (Center For Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 616.) There is also well-established authority, however, that holds a substitute judge in post-trial proceedings exercises the same discretion as the original judge. (See, e.g., Churchill v. Flournoy (1899) 127 Cal. 355, 362; Kershner v. Morgali (1957) 152 Cal.App.2d 884, 885 ["Even though the judge passing upon a motion for new trial did not try the case, his power and discretion is as broad as though he had himself been the trial judge"].)
The tension in the case law is immaterial here. For reasons we will describe, even if it is true we possess "somewhat more latitude" in performing our reviewing function in this case, that additional latitude does not affect the result we reach because we are convinced the trial court's fee award was well within its discretion.
A prevailing anti-SLAPP movant is entitled to seek attorney fees "`"incurred in connection with'" the anti-SLAPP motion itself, but is not entitled to an award of attorney fees . . . incurred for the entire action." (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433 (East County).) In seeking such fees, the prevailing movant has the burden of establishing that the fees he seeks are reasonable; he "`is not necessarily entitled to compensation for the value of attorney services according to [his] own notion or to the full extent claimed by [him].' [Citation.]" (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 815-816 (Levy); accord, East County, supra, at p. 433 [defendant who brings a successful special motion to strike is "entitled `"only to reasonable attorney fees, and not necessarily to the entire amount requested"'"]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785 [Code of Civil Procedure section 425.16 authorizes courts to make an award of "reasonable attorney fees"].)
Trial courts awarding attorney fees to a prevailing anti-SLAPP movant may appropriately use the lodestar method to calculate a reasonable fee amount. (Ketchum, supra, 24 Cal.4th at p. 1131 ["[B]y its terms, Code of Civil Procedure section 425.16 permits the use of the so-called lodestar adjustment method under our long-standing precedents, beginning with Serrano v. Priest (1977) 20 Cal.3d 25 . . ."]; Cabral v. Martins (2009) 177 Cal.App.4th 471, 491.) "The lodestar method, or more accurately the lodestar-multiplier method, calculates the fee `by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate. Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative "multiplier" to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented.' [Citation.]" (Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 489 (Laffitte); see also Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 67 [no requirement that a trial court expressly acknowledge the lodestar amount in making a fee award] (Gorman); Christian Research, supra, 165 Cal.App.4th at pp. 1323-1324 [rejecting contention trial court failed to use the lodestar method when record showed the trial court identified the reasonably compensable attorney hours and stated the total fee amount awarded].) "To the extent that a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether." (Ketchum, supra, at p. 1138, fn. omitted.)
Ludlow makes a handful of arguments in an effort to establish the trial court's fee award was an abuse of the court's discretion. He asserts (1) the trial court could not have appropriately exercised discretion because its comments on the record revealed it was unfamiliar with Bowen's billing submissions (2) the purported lack of a "detailed objection" by D&S to Bowen's billing entries for the appellate work during July 2014 to October 2015 meant the trial court had no proper basis to reduce any of his hours billed during that period (3) the court's decision to credit only 25% of the hours billed, plus the asserted lack of an explanation for this decision, indicates the court failed to apply the lodestar method and instead made an "arbitrary award"; and (4) the trial court unjustifiably rejected the contention, made in support of the full amount of fees sought, that the anti-SLAPP litigation was complex and aggravated by D&S's "scorched-earth" tactics. Each of these arguments is meritless.
As foreshadowed by our factual summary earlier in this opinion, there is no basis in the record for Ludlow's contention that the trial judge made a fee award without being familiar with the hours billed and the amount of fees sought. The court stated it had familiarized itself with the facts of the underlying anti-SLAPP dispute, the court's comments indicated it was familiar with the fee award amounts recommended by both sides, and the transcript of the attorney fee hearing further reveals the trial judge had the parties' attorney fee motion papers available on the bench for reference throughout the hearing (with the possible exception of Ludlow's reply brief, a copy of which the trial judge borrowed from counsel during the hearing). Significantly, the court also entertained lengthy argument by counsel for both sides on several of Bowen's specific billing entries during the hearing, usually following along by looking at the relevant spreadsheets and time records.
Ludlow nevertheless asserts the trial court cannot have been familiar with Bowen's billing submissions because if it were, it would have understood "the real reasons" for the number of hours expended and awarded the full $242,585 amount sought. But this reflects simply a disagreement about the import of the evidence submitted in support of Ludlow's fee request, not that the trial judge was unfamiliar with that evidence. Indeed, and to the contrary, Bowen acknowledged during the attorney fees hearing that the trial court had "spent a lot of time" on the case and taken "some ownership of it." There is accordingly no basis to suggest the trial court abused its discretion by being unfamiliar with the evidence on which it was supposed to make its discretionary determination.
Ludlow believes the trial court could not reduce any of the 400-plus hours he claimed to have worked while his anti-SLAPP motion was on appeal because D&S did not present itemized objections to the billing entries from July 2014 through October 2015 for the appellate litigation. Although presented in broad terms, we think the objection likely sufficed to alert the trial court to the basis on which D&S disputed the hours without need for itemization—D&S simply believed that no more than 40 hours of work on the appeal was reasonably necessary regardless of what the billing entries showed. But regardless of the merits of D&S's objection, the trial court had discretion to accept, reduce, or outright reject Bowen's records of hours worked as unreasonable without relying on the specific deductions or reasons for deductions proposed by D&S.
Ludlow asserts the record does not demonstrate the trial court applied the lodestar method and he maintains the court's fee award was instead based on "feelings, emotions, whim and fancy." We see the record quite differently. To be sure, the trial court did not make express reference to the lodestar method (as the parties had in their briefs filed in advance of the attorney fees hearing), but the court did not need to. (Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1189-1190 (Save Our Uniquely Rural); Christian Research, supra, 165 Cal.App.4th at pp. 1323-1324.) The transcript of the hearing shows the trial court concluded that "the hours should be . . . 25% of [defense counsel's submitted] hours which [it] round[ed] . . . up" to 175, the court accepted Bowen's proffered hourly rate of $350, and the court calculated the award by multiplying the number of hours by the hourly rate. That calculation procedure is just what the loadstar method requires. (Laffitte, supra, 1 Cal.5th at p. 489.)
In perhaps a more nuanced version of his argument, Ludlow argues the court had an obligation to "set forth a concise but clear explanation of its reason for choosing a percentage reduction." Heavily relying on the Ninth Circuit Court of Appeals' decision in Moreno v. City of Sacramento (9th Cir. 2008) 534 F.3d 1106 (Moreno), Ludlow concedes the trial court "referred to general concepts in order to justify reducing the overall award," but argues this is insufficient because the court "failed to specifically justify [its] reason for reducing the entire hours requested by 75 percent[.]" (See, e.g., Moreno, supra, at p. 1112 ["[T]he district court can impose a small reduction, no greater than 10 percent—a `haircut'—based on its exercise of discretion and without a more specific explanation"].)
Whatever the merits of the guidance given to federal district courts in Moreno, that guidance is not the rule in California courts. "There is no requirement . . . that the trial court provide a statement of decision (see, e.g., Ketchum, [supra, 24 Cal. 4th] at p. 1140[ ] or otherwise detail its fealty to the law, which we presume. (Evid. Code, § 664.)" (Christian Research, supra, 165 Cal.App.4th at p. 1323; accord, East County, supra, 6 Cal.App.5th at p. 440, fn. 17; Save Our Uniquely Rural, supra, 235 Cal.App.4th at p. 1190 ["Because the record shows that the court acted for legitimate reasons, we cannot find an abuse of discretion simply because it failed to make its arithmetic transparent"]; Gorman, supra, 178 Cal.App.4th at pp. 66-67.)
Even though not required under the circumstances, we believe the court did provide an adequate explanation, and the explanation given finds ample support in the record. The court stated that "looking at this case, the facts of this case and what this case is about," the hours billed were "[exc]essive." The court questioned certain entries "being a devil's advocate," including 32 hours for Bowen "just educating [him]self on SLAPP" (Bowen acknowledged it was the first time he filed an anti-SLAPP motion). The court also noted, among other things, that it was awarding more fees than it had in other anti-SLAPP cases it had handled, that the issue on which defendant prevailed on appeal was "somewhat procedural," and the malicious prosecution complaint contained a "single cause of action" and did not generate the broad expanse of litigation that justified "considerable fees."
To the extent Ludlow believes this explanation somehow does not address the full extent of the court's hourly reduction, precedent would still dictate that any gaps should be filled by a presumption that the trial court's reduction resulted from its conclusion that Bowen's bills were unjustifiably "padded." (Christian Research, supra, 165 Cal.App.4th at p. 1325 ["Where, as here, the trial court severely curtails the number of compensable hours in a fee award, [a reviewing court] presume[s] the [trial] court concluded the fee request was padded"]; accord, Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 999-1000 [quoting Christian Research and affirming trial court reduction of fee request by 25% for excessive billing despite argument the opposing party drove up the cost of litigation]; Levy, supra, 4 Cal.App.4th at p. 816 ["Although the trial court found the items submitted in support of the fee claim were grossly exaggerated, there is nothing in the record indicating how the court arrived at the amount of the award ultimately made. In the circumstances, we must presume the court, using its sound discretion, found the sum awarded reasonably incurred and reasonable in amount"].)
Ludlow finally contends the trial court's hourly reduction was an abuse of the court's discretion because D&S purportedly engaged in scorched-earth tactics and because the case was unusually complex given that Bowen was required to research "the complexities and nuances of judicial notice," which research was "specially performed using traditional methods." Neither contention is persuasive. The trial court appropriately determined, in its discretion, that this was not a case of scorched-earth litigation. Ludlow apparently believes the contrary is true because D&S leveled allegations maligning Bowen's conduct in other cases. Even accepting that some of these arguments by D&S were not particularly helpful to the trial court (or this court), they were fairly circumscribed (e.g., six pages in D&S's opposition to the Motion) and the trial court could reasonably believe they did not appreciably transform the overall burden of the litigation. Similarly, and being quite familiar with our prior opinion in the anti-SLAPP litigation, we do not believe the trial court exceeded the bounds of reason in determining the judicial notice issues that proved dispositive would justify an unusually large fee award.
The bottom line is that $61,250 for litigating what, relatively speaking, was a mine-run anti-SLAPP motion in the trial court and on appeal strikes us as reasonable compensation, and the trial court did not abuse its discretion in so finding.
The trial court's attorney fees order is affirmed. D&S is entitled to recover its costs on appeal.
KRIEGLER, Acting P.J., DUNNING, J.
