Opinion
G056787
09-25-2019
LENORE ALBERT, Plaintiff and Appellant, v. MITCHELL B. HANNAH, Defendant and Respondent.
Lenore L. Albert, in pro. per., for Plaintiff and Appellant. Dickson & Dickson and Robert M. Dickson; Law Office of Mitchell B. Hannah and Hallie D. Hannah for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00738725) OPINION Appeal from an order of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed. Lenore L. Albert, in pro. per., for Plaintiff and Appellant. Dickson & Dickson and Robert M. Dickson; Law Office of Mitchell B. Hannah and Hallie D. Hannah for Defendant and Respondent.
INTRODUCTION
Lenore Albert appeals from an order awarding attorney fees to respondent Mitchell Hannah, who obtained an order in the trial court granting his motion under Code of Civil Procedure section 425.16 , the anti-SLAPP statute, an order we affirmed on appeal. After remittitur, Hannah moved in the trial court under section 425.16, subdivision (c), for the attorney fees and costs incurred in opposing Albert's appeal and in making the motion for his fees on appeal. The trial court awarded Hannah approximately $45,000 in fees and costs.
All further statutory references are to the Code of Civil Procedure.
We affirm the order. Albert's main arguments against the order are either wrong or irrelevant. The only marginally arguable objection she makes finds no support in the record or in any authority.
FACTS
Hannah was one of three attorneys whom Albert sued for defamation in 2014. Hannah filed an anti-SLAPP motion, which was granted. Albert appealed, and the order granting Hannah's motion was affirmed in its entirety.
Albert v. Hannah (Mar. 6, 2018, G052748) [nonpub. opn.] (Hannah).
Hannah then moved in the trial court for his attorney fees. He asked for $41,486 in fees and costs for the appeal, and $5,670 in fees and costs for the subsequent attorney fee motion in the trial court, for a total of $47,238. The trial court awarded him $45,808.05 in fees and costs for the appeal and the attorney fee motion combined. Albert has appealed this order, on several grounds.
DISCUSSION
Section 426.26, subdivision (c)(1), requires a trial court to award fees to a defendant who prevails in an anti-SLAPP motion, unless one of the exceptions applies. "The fee-shifting provision was apparently intended to discourage such strategic lawsuits against public participation by imposing the litigation costs on the party seeking to 'chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' [Citation.]" (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum).) Although Albert views herself as the victim in this appeal, the record shows she is a party of the kind envisioned in Ketchum.
Albert's main argument is that because the disposition in the Hannah decision did not explicitly include an award for the attorney fees incurred for the appeal, the trial court had no authority to award them upon remittitur. She also contends that attorney fees are not available under the anti-SLAPP statute for appeals, as they are for the original motion.
A case cited in Albert's opening brief contradicts the latter argument: "'A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.' [Citation.] Since section 425.16, subdivision (c) provides for an award of attorney fees and costs to a prevailing defendant on a special motion to strike, and does not preclude recovery of appellate attorney fees by a prevailing defendant-respondent, those fees are recoverable." (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.)
As for the first portion of her argument, Albert cites no authority for her notion that a reviewing court must specifically mention fees in the disposition portion of its opinion in order to authorize the trial court to award fees on appeal. On the contrary, California Rules of Court, rule 8.278(d)(2) provides that "[u]nless the court orders otherwise, an award of costs neither includes attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702." (See Harbour Landing-Dolfann v. Anderson (1996) 48 Cal.App.4th 260, 263-265.)
Albert reproduces California Rules of Court, rule 8.278 in its entirety in her reply brief.
Albert argues in essence that because some appellate opinions explicitly mention attorney fees in their dispositions, the absence of a reference to fees means fees are not allowed. California Rules of Court, rule 8.278(d)(2) says otherwise.
Albert argues the further point that because she sued Hannah in tort, he is not entitled to attorney fees. This argument entirely ignores the mandate of section 425.16, subdivision (c)(1) - the prevailing defendant in an anti-SLAPP motion is entitled to fees regardless of the theory upon which he or she was sued. It is difficult to understand how Albert could cite the authorities she relies upon and still make these arguments.
Albert's second complaint centers on the amount of the attorney fees: the fees awarded are too high, and Hannah cannot recover fees for his own work on the appeal. We need not address this latter issue because there is no evidence in the record that Hannah did any work on the appeal or on the attorney fee motion for which he recovered fees. The evidence supporting the motion was a declaration by Hannah's counsel detailing the work he did on the appeal and the work done and anticipated on the subsequent fee motion. Albert presented no evidence of Hannah's participation in the legal services rendered for the appeal. Even if Hannah did some of the work, he did not seek payment for it.
Albert cites a proof of service for a proposed judgment on the fee motion signed by Hallie Hannah as evidence that Hannah was doing the work on the appeal.
We review the amount of an attorney fee award for abuse of discretion. (Cabral v. Martins (2009) 177 Cal.App.4th 471, 491.) As with other instances in which a court decides the proper amount of an attorney fee award, an award to a prevailing anti-SLAPP defendant is determined using the lodestar method. (Ibid.)
Albert claims that the correct standard of review for the entire appeal is de novo.
"[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. 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.' [Citation.]" (Ketchum, supra, 24 Cal.4th at p. 1132, italics added.)
Albert complains that Hannah did not present the court with evidence of the hourly rate in the community for comparable legal services. The hourly rate requested by Hannah's counsel, $420 per hour, was the same rate underlying the original fee award of $23,651 for prevailing on the anti-SLAPP motion in the trial court. The trial court had already considered and approved counsel's hourly rate; it was unnecessary to revisit this issue.
But Albert argues that the community standard is the amount she was awarded in fees for one case in 2015. Because Hannah was awarded $45,000 in fees while she received only $6,500, Albert concludes the court did not use the proper community standard. The community standard is what attorneys in the community charge for comparable services. It is not possible to determine this amount by referring to one lawyer's award in one case. And, contrary to the implication of this argument, Albert presented no evidence that she represents the community standard.
Albert also designates on appeal the following individual time entries in the declaration as unreasonable: preparing for oral argument (3 hours); attending oral argument (5 hours); reviewing appellant's appendix (combined 19 hours); meeting with client (3 hours); creating table of contents for appellate brief (1.5 hours). Albert listed many more charges to which she objected in her opposition to Hannah's fee motion, but these are the only ones that survived to our court. (See In re Phoenix H. (2009) 47 Cal.4th 835, 845 ["'Contentions supported neither by argument nor by citation of authority are deemed . . . to have been abandoned.' [Citation.]"].)
We cannot say the trial court abused its discretion in allowing all these charges, if, in fact, it did. The trial court cut nearly $1,500 from the fees as requested, so it did not entirely agree with the amounts Hannah asked for, so it may not have. Moreover, Albert simply declares that, for example, billing for five hours for oral argument or three hours for a client meeting is unreasonable, without explaining why or referring to any authority. An attorney may indeed have to spend five hours attending oral argument, even if he or she argues for only 20 or 30 minutes. The wait to be called may be hours. Likewise, we are unable to understand how Albert can state categorically that a three-hour client meeting is too long or unreasonable, without knowing what was discussed? Spending 19 hours to review a 24-volume appendix of over 6,000 pages is not beyond the pale, even if Albert herself does not make it her practice to be so thorough.
The remaining issues in Albert's opening brief can be put down to venting, either because they have no bearing on a fee award or because she supplies neither citations to the record (see Cal. Rules of Court, rule 8.204(1)(C)) nor relevant authority to support them. For example, she complains that defendants (unnamed) were spoofing her email address and that Hannah did not use the right form when he filed a proof of claim in her bankruptcy. She makes the identical "plumbers-don't-get-a-break" argument we thought we had scotched in Hannah, which is essentially an argument that the anti-SLAPP motion should not have been granted at all. She claims, without even pretending to cite to the record for evidentiary support, that Hannah received more money than she did because Hannah is a man and she is a woman. She says the fee award deprived her of equal protection and was unconstitutional. Albert also blames the "attorneys and non-attorneys" for her suspension from the practice of law, again without any support from the record.
Here is a typical passage: "There is a public policy reason to support the notion that this [fee award] should not be affirmed. It sends the wrong message to attorneys. It should not pay to ruin another professional's livelihood. Well, maybe Orange County has a long-steeped [sic] tradition in such endeavors, but this is just too obvious. There isn't even any creative concealment or art to the game. It is just up front scrappy, in your face, brutal. Orange County thugs and conmen are supposed to be a bit more upper crust in their underhanded dealings. Narcissism cannot replace finesse."
"Plumbers, [Albert] points out, don't receive analogous protection [to lawyers] in their work. [¶] But right or wrong, that's the way the Legislature wrote the anti-SLAPP law. It was the Legislature that decided to give protection to statements made 'in furtherance of the person's right of petition' [citation], as distinct from other activities, and it was the Supreme Court that said statements made in furtherance of a person's right of petition include statements made in connection with lawsuits. If Albert thinks that's an unfair extension of privilege to what attorneys do, her complaint is with the law as the Legislature wrote it and the Supreme Court interpreted it, and there is nothing we can do about it." (Hannah, supra, G052748, at pp. 5-6.)
In her reply brief, Albert asserts that the fee provision of section 425.16 is "unconstitutional as applied" because it "'arbitrarily discriminates' against women." "[T]he trial court applied CCP §425.16 in a way that arbitrarily discriminated against Albert. Women are awarded less than men. That is unconstitutional." --------
DISPOSITION
She is fortunate opposing counsel did not ask for sanctions. The language we quote in footnote 6 would have supported them all by itself. The order awarding respondent Hannah his attorney fees and costs is affirmed. Respondent is to recover his costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.