Epifanio Armenta et al vs Stuart Carroll et al

Case Number

20CV02360

Case Type

Hearing Date / Time

Fri, 11/17/2023 - 10:00

Nature of Proceedings

Motion: Attorney Fees

Tentative Ruling

For the reasons set forth herein, plaintiff Josue Gamino’s motion for attorneys’ fees and costs is granted in favor of Josue Gamino and against R.J. Carroll & Sons, Inc. in the total amount of $13,958.40, to be paid no later than December 22, 2023.

Background:

On July 20, 2020, plaintiffs Epifanio Armenta, Alex Garcia, Jose Albarran Hernandez, Josue Gamino, and Diego Rodriguez Garcia filed their original complaint in this action against defendants R.J. Carroll & Sons, Inc. (RJ Carroll), and Stuart Carroll (collectively, defendants).

On December 3, 2020, plaintiffs filed their operative pleading, the second amended complaint (SAC). The SAC asserts wages and hour, fraud, and health and safety claims against defendants. On January 12, 2021, defendants filed their answer to the SAC generally denying the allegations thereof and asserting 47 affirmative defenses.

With leave of court on the stipulation of the parties, on March 29, 2023, RJ Carroll filed its cross-complaint against defendant and cross-defendant Josue Gamino. The cross-complaint asserted one cause of action for fraud against Gamino.

Concurrently with his filing an answer to the cross-complaint, Gamino filed a special motion to strike which was granted on August 4, 2023. Gamino now moves for fees and costs that were incurred to bring the special motion to strike and the present motion. Gambino requests $32,885.60 in fees and $180.00 in costs.

RJ Carroll opposes the motion arguing that the fees were not reasonably incurred, that there was no need for the present motion as it was willing to negotiate the fees prior to the filing of the motion, and that the requested multiplier should be denied.

Analysis:

Code of Civil Procedure section 425.16, subdivision (c) provides in pertinent part: “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion . .  .” A complaint includes a cross-complaint, plaintiff includes a cross-complainant, and defendant includes a cross-defendant. (Id. at subd. (h).)

“[T]he Legislature intended that a prevailing defendant on a motion to strike be allowed to recover attorney fees and costs only on the motion to strike, not the entire suit.” (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.)

“[I]f a trial court were bound by the amount of attorney fees sought by a prevailing defendant under section 425.16 and had no discretion to award a lesser amount, the potential for abuse would be extraordinary. The trial court cannot be placed in the position of having to acquiesce in any amount sought by a prevailing defendant, no matter how outrageous. The trial court’s role is not merely to rubber stamp the defendant’s request, but to ascertain whether the amount sought is reasonable.” (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 361.)

“It is well settled that the trial courts are to use the lodestar method when determining an award of attorney fees under the anti-SLAPP statute. [Citation.] This approach ensures that the trial court’s analysis is objective and that the amount awarded is not arbitrary. [Citation.] Under the lodestar method, the trial court “ ‘tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.’ ” [Citation.] The lodestar figure “ ‘may be increased or decreased depending on a variety of factors, including the contingent nature of the fee award.’ ” [Citation.] Indeed, the trial court has discretion to determine the amount of reasonable fees to award based on “ ‘a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. [Citation.] The court may also consider whether the amount requested is based upon unnecessary or duplicative work.’ ” [Citation.]” (Frym v. 601 Main Street LLC (2022) 82 Cal.App.5th 613, 620-621.) “An award of attorney fees to a prevailing defendant on an anti-SLAPP motion properly includes attorney fees incurred to litigate the special motion to strike (the merits fees) plus the fees incurred in connection with litigating the fee award itself (the fees on fees).” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433.)

“[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.)

“[T]rial courts must carefully review attorney documentation of hours expended” in assessing reasonable and necessary attorney fees. (Ketchum v. Moses (2001) 24 Cal.4h 1122, 1132.)

“[T]he [party] ... seeking fees and costs ‘bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.’ [Citation.]’” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) “To that end, the court may require [a] defendant . . . to produce records sufficient to provide ‘a proper basis for determining how much time was spent on particular claims.’ [Citation.]” (Ibid.) “The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended. [Citation.]” (Ibid.)

Attorney Escobedo provides a declaration stating that his current standard hourly rate for employment litigation in Santa Barbara County is $440.00. (Escobedo Dec., ¶ 19.) Escobedo’s paralegal, Stephany Radtke, is billed out at $120.00 per hour. (Escobedo Dec., ¶ 20.) “To prevail on the anti-SLAPP motion, Mr. Escobedo spent 25.3 hours and Ms. Radtke spent 2.15 hours.” (Escobedo Dec., ¶ 22.) Escobedo attached, as Exhibit B to his declaration, billing records reflecting the time that he and Radtke spent on both the special motion to strike and the present motion for fees. The records reflect a total amount of $13,778.40 in fees. The records are clear and contain very minimal redactions. The rates and time spent by Escobedo and Radtke are reasonable.

Co-counsel for Gamino, Jeremy A. Rhyne, also submits a declaration in support of the motion for attorney fees. Rhyne’s hourly rate is $600.00. (Rhyne Dec., ¶ 10.) Rhyne declares: “My work in connection with the anti-SLAPP motion and this motion has taken 4.2 hours to date consisting primarily of reviewing the Cross-Complaint, outlining the motion, corresponding with my co-counsel Mr. Escobedo regarding strategy for the motion, reviewing the opposition, drafting the reply brief, reviewing all papers in preparation for the hearing on the matter, reviewing the Court’s tentative ruling and analysis, attending the hearing, and preparing this declaration.” (Rhyne Dec., ¶ 11.) No time records are attached to the declaration.

“[I]n the absence of such crucial information as the number of hours worked, billing rates, types of issues dealt with and appearances made on the client's behalf, the trial court is placed in the position of simply guessing at the actual value of the attorney's services. That practice is unacceptable and cannot be the basis for an award of fees.” (Martino v. Denevi (1986) 182 Cal.App.3d 553, 558, italics added.)

Without time records from Rhyne, or a more detailed declaration, it is not possible to determine how much time Rhyne spent on each task, whether the tasks were necessary, or whether the tasks were duplicative of work that was performed by Escobedo. As such, Rhyne has not met his burden of establishing his entitlement to attorney fees in connection with either the special motion to strike or the present motion.

Gamino requests a lodestar multiplier of 2 for work in connection with the special motion to strike.

“[T]he trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1138.) The court does not find that it would be appropriate to include a multiplier in connection with the special motion to strike. Gamin has not presented sufficient justification for the enhancement and has therefore not met his burden of proof.

Finally, Gamino seeks to recover $180.00 in costs. Defendant concedes to the reasonableness of the costs and is willing to incur them.

Based on the above, RJ Carroll will be ordered to pay $13,778.40 in fees and $180.00 in costs for a total award in favor of Gamino of $13,958.40. The amount awarded represents reasonable fees and costs incurred for the special motion to strike and the motion for fees, including the reply to opposition and appearance at the hearing.