Velyvis v. MacConaghy CA1/2

Filed 10/28/14 Velyvis v. MacConaghy CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

JOHN VELYVIS, Plaintiff and Appellant, A141332 v. JOHN H. MacCONAGHY et al., (Napa County Super. Ct. No. 26-62045) Defendants and Respondents.

BACKGROUND On July 17, 2013, Dr. John Velyvis filed a complaint for damages against his former employer, Adventist Health California Medical Group, Inc. The complaint also named as defendants attorney John H. MacConaghy, and his firm, MacConaghy & Barnier, LLP (hereafter collectively, defendants), who had been counsel for the trustee in Dr. Velyvis’s bankruptcy. On August 27, defendants filed a motion to strike the complaint—commonly known as a SLAPP or anti-SLAPP motion—as authorized by Code of Civil Procedure section 425.16 (section 425.16).1 The motion was heard by the Honorable Elia Ortiz on September 26, 2013, who four days later filed an order granting the motion and dismissing the complaint. The six-page order prepared by Judge Ortiz has an exhaustive explanation for granting the motion to strike, and includes this: “Defendants may bring a motion for attorney’s fees pursuant to . . . section 425.16, subdivision (c).”

1 The motion itself is not in the record on appeal

1

On November 5, 2013, defendants moved for an award of $19,417.20 in costs and attorney fees as authorized by subdivision (c) of section 425.16. The motion was supported with a declaration of defendants’ attorney, John P. Girarde, who detailed the 41.6 hours he devoted to preparation of the motion to strike, and the 5.1 hours spent in preparing the motion for costs and attorney fees. Girarde’s hourly billing rate was $395, so the attorney fees sought were $18,446.50. The costs sought by defendants amounted to $970.70, for the total of $19,417.20. Defendants’ motion was set for December 11, 2013. On November 27, 2013, Dr. Velyvis filed opposition to the motion, arguing that the requested fees should be denied because: (1) Girarde “has not documented his billings or hourly rate of compensation in accordance with the case law regarding recovery of attorneys’ fees in anti-SLAPP motions,” which requires production of his actual billing records; (2) Girarde “has not established the reasonableness of his attorneys’ rates”; and (3) in light of this inadequate documentation, defendants have “not established entitlement to the requested attorneys’ fees.” Dr. Velyvis’s opposition was signed by attorney Gordon Fine. Also, it appears that on December 6, 2013, Dr. Velyvis filed a Code of Civil Procedure section 170.6 challenge against Judge Ortiz. Defendants filed a reply to Dr. Velyvis’s opposition, and their motion for attorney fees came on as scheduled, on December 11. The first thing noted in the minutes for that day was that Dr. Velyvis’s peremptory challenge to Judge Ortiz had been denied as untimely by Judge Rodney Stone. The minutes then narrate what happened next: “Plaintiff’s opposition is stricken because it was signed and filed by an attorney that is not an active member of the State Bar. The court will allow an opportunity for Plaintiff to properly re-file and serve his opposition on or before Friday, December 20, 2013. . . . [¶] The Court further notes Mr. Fine shall re-file the identical opposition he previously filed with no changes. Mr. Girarde is not required to re-file.” Counsel for Dr. Velyvis apparently did re-file the opposition, and the motion was argued before Judge Ortiz on January 16, 2014, following which defendants’ motion was