Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HG07319146
NEEDHAM, J.
Sadrudin Laiwala appeals from orders awarding respondents their attorney fees and costs incurred in connection with Laiwala’s prior appeal from the dismissal of his malicious prosecution claim. We will modify the order regarding costs and, as so modified, affirm it. We will also affirm the order regarding attorney fees.
I. FACTS AND PROCEDURAL HISTORY
Following a court trial, Laiwala was convicted of misappropriating the trade secrets of his former employer. (Pen. Code, § 499c.) The court of appeal reversed the conviction on the ground there was insufficient evidence of a trade secret. (See People v. Laiwala (2006), 143 Cal.App.4th 1065, 1067.)
Laiwala thereafter filed a petition for a finding of factual innocence under Penal Code section 851.8. The trial court denied the petition, and Laiwala appealed. The court of appeal reversed the order, instructing the trial court to enter a finding of factual innocence. (Laiwala, supra, 143 Cal.App.4th at p. 1067.)
A. This Case
In April 2007, Laiwala sued his former employer (Hynix Semiconductor America, Inc.) and three of his former co-employees (David Kocsis, Madhukar “Duke” Tallam, and Anil Sawe) for malicious prosecution. Laiwala contended the defendants (respondents here) were “actively involved in causing [him] to be prosecuted.”
1. Dismissal of Complaint
In June 2007, respondents filed a general demurrer to the complaint and a special motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16). In their demurrer, they contended that the complaint was barred by the applicable statute of limitations. In their anti-SLAPP motion to strike, they argued that Laiwala’s cause of action arose from their acts in furtherance of their free speech rights in cooperating with a law enforcement investigation.
The court sustained the demurrer without leave to amend, granted the special motion to strike, and ordered dismissal of Laiwala’s complaint. Judgment was entered on August 29, 2007.
In September 2007, Laiwala filed a motion for reconsideration or to vacate the judgment, which was denied on November 8, 2007.
On November 19, 2007, Laiwala filed a notice of appeal seeking review of the order granting the anti-SLAPP motion to dismiss, the order sustaining the demurrer, the judgment, and the order denying his motion for reconsideration.
2. Trial Court’s Award of Partial Costs
While the appeal was pending, respondents filed a memorandum of costs in the trial court for $2,078.20. In November 2007, the court partially granted Laiwala’s motion to tax costs and awarded respondents $1,560.00. (Code Civ. Proc., § 1033.5, subd. (c).)
In February 2008, respondents filed a motion to recover their attorney fees under provisions of the anti-SLAPP statute, seeking $28,488.40. Laiwala opposed the motion, claiming it was not timely filed. (See Cal. Rules of Ct., rules 8.104, 8.108.) In March 2008, the court denied the motion as untimely.
3. Appellate Proceedings (A119830)
Respondents brought a motion to dismiss Laiwala’s appeal, as well as a motion to dismiss an amended appeal that Laiwala had filed.
In April 2008, we granted both motions. Specifically, we ruled that Laiwala’s appeal as to the order granting the anti-SLAPP motion to dismiss was untimely, the appeal as to the judgment and the order sustaining the demurrer was therefore moot, and the motion for reconsideration was not independently appealable. Our remittitur, issued in June 2008, stated: “Respondents to recover costs.” The trial court’s judgment of dismissal became a final judgment.
4. Trial Court’s Award of Attorney Fees and Costs on Appeal
In July 2008, respondents filed a motion for their attorney fees incurred on appeal, seeking $52,669. The motion was supported by a memorandum of points and authorities, declarations from the attorneys who handled the appeal, and itemized billing records. The motion purported to seek recovery of fees incurred only with respect to the appeal, and not the other matters for which the prior fees motion had been denied as untimely.
Also in July 2008, respondents filed a memorandum of costs on appeal, seeking $2,079 on the summary or face sheet. The worksheets attached to the memorandum of costs itemized expenses of $2,036, not $2,079.
Laiwala filed a document entitled “OPPOSITION TO NOTICE OF MOTION AND MOTION FOR AN ORDER AWARDING ATTORNEY’S FEES AND COSTS; MOTION TO TAX COSTS,” without filing a separate motion to tax costs. As to respondents’ request for costs, Laiwala noted the discrepancy between the summary sheet and the itemization on the worksheets and contended some of those costs were not allowable. As to the request for attorney fees, Laiwala contended there was no authority for the trial court to grant attorney fees for the appeal, such an award was merely discretionary, and in no event should the attorney fees award exceed $1.
Respondents filed a reply memorandum, refuting Laiwala’s assertions.
On September 18, 2008, the trial court issued an order granting the attorney fees motion in a reduced amount of $48,700.
On October 2, 2008, the court issued an order granting respondents costs of $2,079. The court stated in part: “The correct way for an opposing party to challenge a ‘cost bill’ is to file a motion to tax costs. The plaintiff did not do so here. Perhaps in an attempt to save a filing fee, the plaintiff merely stated his objection to the claimed costs in an opposition paper. [¶] The plaintiffs’ [sic] post-judgment costs are allowed in the amount of $2,079.00, the amount claimed on the face page of the memorandum of costs.”
Laiwala filed a notice of appeal from both the order awarding attorney fees on appeal and the order awarding costs on appeal.
In his opening brief, Laiwala asks us to take judicial notice of the appellate court records in appeal number A119830. The records are not material to the issues before us. In any event, his request does not comply with rule 8.252(a) of the California Rules of Court. The request for judicial notice is denied.
II. DISCUSSION
Laiwala contends there is error in the award of attorney fees on appeal and in the award of costs on appeal. We address each in turn.
A. Award of Attorney Fees Under Anti-SLAPP Statute
Code of Civil Procedure section 425.16, subdivision (b) provides for a special motion to strike a cause of action arising from the defendant’s act in furtherance of his or her constitutional rights of petition or free speech. Subdivision (c) of that section provides: “In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”
Respondents prevailed on their motion to strike Laiwala’s complaint under Code of Civil Procedure section 425.16. An award of attorney fees to the prevailing defendant is mandatory. (Ketchum v. Moses (2001), 24 Cal.4th 1122, 1131 (Ketchum).) While respondents’ motion for attorney fees incurred before the appeal has already been adjudicated (and rejected as untimely sought), respondents are still entitled to an award of attorney fees incurred in the successful defense on appeal of the order granting the motion to strike. (Rosenaur v. Scherer (2001), 88 Cal.App.4th 260, 286 (Rosenaur); Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996), 47 Cal.App.4th 777, 785 (Dove Audio).)
1. Entitlement to Fees
Laiwala argues that the attorney’s fee award should be reversed because respondents’ anti-SLAPP motion to strike should not have been granted in the first place. His argument is unavailing. The order striking the complaint was the subject of appeal number A119830. The appeal was dismissed, and the order granting the motion to strike is final and binding. Laiwala provides us with no basis or authority for revisiting the court’s ruling on the motion to strike.
Laiwala also contends that an award of attorney fees on appeal is not required under the anti-SLAPP statute, and that such an award is merely discretionary. He is incorrect on this point as well. For over a decade, California courts have consistently held that the fee-shifting provision of section 425.16, subdivision (c) applies to attorney fees incurred on appeal by a prevailing defendant-respondent. (Paulus v. Bob Lynch Ford, Inc. (2006), 139 Cal.App.4th 659, 686; Wilkerson v. Sullivan (2002), 99 Cal.App.4th 443, 448 [“[T]he courts have consistently interpreted section 425.16 to authorize the recovery of attorney fees and costs incurred in defending against an unsuccessful appeal from an order granting the anti-SLAPP motion”]; Rosenaur, supra, 88 Cal.App.4th at p. 287; Dowling v. Zimmerman (2001), 85 Cal.App.4th 1400, 1426; Dove Audio, supra, 47 Cal.App.4th at p. 785; Evans v. Unkow (1995), 38 Cal.App.4th 1490, 1499-1500.)
2. Amount of Fees
An attorney fees award under Code of Civil Procedure section 425.16, subdivision (c), is determined using the lodestar method. (Ketchum, supra, 24 Cal.4th at p. 1136.) The lodestar is the number of hours reasonably expended multiplied by the reasonable hourly rate. Although the lodestar may be adjusted based on factors relevant to the nature of the case and representation, no adjustment was sought or awarded here. We review the amount of the fee award for an abuse of discretion. (Dove Audio, supra, 47 Cal.App.4th at p. 785.)
Here, the court awarded $48,000 in attorney fees out of the $52,669 requested. Respondents had supported their fee request with their law firms’ detailed and itemized billing statements, and the attorneys declared under penalty of perjury that those records were true and accurate and the work undertaken was reasonably necessary. Although some entries on one of the Horvitz & Levy LLP bills pertained to work performed before the appeal, that work totaled less than an hour’s worth of attorney time. Since the trial court awarded over $3,000 less than the amount requested as to Horvitz & Levy LLP’s time, the record does not affirmatively disclose any error in this regard. The bills of Low, Ball & Lynch also mention work performed before the filing of the notice of appeal, but recovery was expressly sought only for work performed after the filing of the notice of appeal.
Laiwala argues that the amount of the award is unsupported by the evidence. Specifically, he urges: “the trial court erred when it ordered the awarding of attorney’s fees of an excessive amount of $48,700, and without reviewing evidences, such as cancel [sic] checks, paid by the defendants.” In other words, he suggests that an attorney’s itemized billing statements and supporting declaration are insufficient to prove the attorney fees incurred. He is incorrect.
Laiwala also argues that the amount of the fee award is unreasonable. Contrary to his suggestion, however, the appellate work of respondents’ attorneys was not limited to filing their successful motions to dismiss. They also attended to appellate matters pertaining to the review and designation of the record, association of counsel, their opposition to Laiwala’s motion to direct the court clerk to forward exhibits, Laiwala’s motion for judicial notice, Laiwala’s settlement demand, and Laiwala’s opposition to the dismissal motion and request for extension of time. Moreover, although Laiwala observes generally that the fees purportedly incurred in the appeal were more than the fees incurred in the trial court, he does not demonstrate that counsel’s hourly rates were unreasonable nor cite to any particular item in the attorneys’ billings that is inappropriate or duplicative. Accordingly, he has failed to establish an abuse of discretion. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003), 106 Cal.App.4th 1219, 1248.)
Laiwala insists he has been “victimized twice” – once because he was criminally prosecuted, and now because of the award of attorney fees on appeal. While the merits of the criminal prosecution are not before us, we disagree that he has been victimized by the attorney fees award. Laiwala sued people for malicious prosecution based on statements they purportedly made to law enforcement, despite the provisions of the anti-SLAPP statute, which expressly provides that a plaintiff will be liable for the defendant’s attorney fees if a motion to strike is granted. A motion to strike was granted – which means the court determined he had no probability of prevailing on his claim – and then Laiwala dodged a bullet when respondents failed to timely seek recovery of their attorney fees for their trial court work. Laiwala next chose to file a late appeal from the anti-SLAPP dismissal order, notwithstanding the legion of case law holding that an appellant will be liable for the respondents’ attorney fees if the respondents win the appeal. We see no injustice in requiring Laiwala to pay for the attorney fees incurred by respondents for defending against an appeal that was untimely filed – and therefore never should have been brought – where anti-SLAPP case law undisputedly provides for just such an award.
Laiwala fails to establish error in the court’s award of attorney fees.
B. Costs on Appeal
As mentioned, in our remittitur in connection with appeal number A119830, we stated that respondents were to recover their costs on appeal. Respondents filed a memorandum of costs, seeking $2,079 on the summary or face page. Laiwala argued against the costs in his opposition to the motion for attorney fees, without filing a separate motion to tax those costs.
The procedure for claiming costs on appeal is governed by rule 8.278 of the California Rules of Court. (See Code Civ. Proc., § 1034, subd. (b).) To recover such costs, the prevailing party on appeal files a memorandum of costs in the trial court. (Rule 8.278(c)(1).) To object to the memorandum of costs, the other party must file a “motion” in the superior court to strike or tax costs in the manner set forth in rule 3.1700(b). (Rule 8.278(c)(2).) Rule 3.1700(b) specifically requires a “notice of motion” to strike or tax costs to be filed 15 days after service of the cost memorandum.
Laiwala’s failure to file a motion to tax costs waived his right to object to them. (Jimenez v. City of Oxnard (1982), 134 Cal.App.3d 856, 859 [waiver by failing to file motion to tax costs on time]; Santos v. Civil Service Bd. (1987), 193 Cal.App.3d 1442, 1447 [waiver where plaintiff “failed to file an objection to the cost bill by filing a timely motion to tax costs” as required; italics added]; Douglas v. Willis (1994), 27 Cal.App.4th 287, 289-290 [failure to file motion to tax costs constitutes waiver].)
Laiwala argues that he filed a document entitled “OPPOSITION TO NOTICE OF MOTION AND MOTION FOR AN ORDER AWARDING ATTORNEY’S FEES AND COSTS; MOTION TO TAX COSTS.” (Italics added.) However, including the word “motion” in the title of opposition papers does not make it a motion. (Cal. Rules of Court, rule 3.1110 [general format of motion]; rule 3.1112 [required papers constituting motion].) This is particularly clear from the fact that rule 3.1700(b) refers to a “notice of motion,” which Laiwala did not file. Laiwala did not comply with the rules for opposing respondents’ claimed costs, and he thereby waived his right to contest them.
We note that respondents titled their reply memorandum as follows: “Reply to Opposition to Motion for Order Awarding Attorney’s Fees on Appeal; Opposition to Motion to Tax Costs.” (Italics added.) In their reply memorandum, respondents referred to Laiwala’s purported “motion” to tax costs, without contending that Laiwala’s opposition to the claimed costs was unavailing due to his failure to file an actual motion. Respondents’ oversight did not, of course, preclude the trial court from correctly concluding that Laiwala’s failure to file a motion to tax costs did indeed waive his right to object to those costs.
Because Laiwala waived his right to object to respondents’ claimed costs, the trial court was not obligated to consider the cost arguments Laiwala had included in his opposition to the attorney fees motion. For the same reason, we need not consider them. Nonetheless, for a purpose that will become apparent, we proceed to the merits of Laiwala’s main argument.
Laiwala’s primary complaint with the memorandum of costs on appeal is that the summary or face page seeks $2,079 – nearly identical to the summary page for the earlier memorandum of costs ($2,078.20) – but the attached worksheets substantiate costs of only $2,037. Respondents do not even acknowledge that the summary and worksheets are inconsistent, let alone make any effort to explain how the discrepancy occurred. Respondents’ counsel signed the memorandum of costs upon the representation that it was correct to the best of his belief.
Because of the discrepancy between the summary page and the worksheets, Laiwala asks us to infer that respondents’ attorneys have been less than honest in accounting for their fees and costs. He also suggests that, because the trial court did not catch the discrepancy between the summary page and worksheets, and awarded the amount on the summary, the court must not have reviewed the worksheets and therefore abused its discretion. A more reasonable inference from the court’s order is that it awarded the amount of $2,079 because Laiwala failed to seek to tax costs by a separate filed motion, as required.
Nonetheless, justice dictates that Laiwala be responsible only for the costs demonstrated by the memorandum of costs. Because the worksheets total $2,037, he should be liable for $2,037 in costs, not $2,079.
Even though Laiwala waived his other objections to the memorandum of costs, we have considered those objections and conclude they have no merit.
III. DISPOSITION
The Order Re: Post-Judgment Costs, filed in the trial court on October 2, 2008, is modified by replacing “$2,079.00” with “$2,037.00” in the fourth paragraph and deleting the remainder of the sentence. As so modified, the order is affirmed. The order awarding respondents attorney fees is affirmed. Pursuant to Code of Civil Procedure section 425.16, subdivision (c), respondents shall recover their attorney fees and costs on appeal, the amount of which shall be determined by the trial court.
We concur SIMONS, Acting P. J., BRUINIERS, J.