Bottini v. Legacy 106 CA4/1 (2015) · DecisionDepot
Bottini v. Legacy 106 CA4/1
California Court of Appeal Nov 19, 2015 No. D067119Unpublished
Filed 11/19/15 Bottini v. Legacy 106 CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FRANCIS A. BOTTINI, JR., Individually D067119 and as Trustee, etc.,
Plaintiff and Appellant, (Super. Ct. No. v. 37-2014-00009873-CU-BT-CTL)
LEGACY 106, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Ronald L.
Styn, Judge. Affirmed.
Bottini & Bottini, Albert Y. Chang and Yury A. Kolesnikov for Plaintiff and
Appellant.
Treitler & Hager, Barry E. Hager, Maasch Law, Inc., and Mark A. Maasch for
Defendants and Respondents.
In 2009 property owner Taylor wanted to have her property designated as a
historical site and signed a contract (the consulting services contract) with defendant
Legacy 106, Inc. (Legacy) to assist her in her application. The consulting services
contract provided Legacy would (1) prepare a report and supporting documentation (the
Report) to submit as part of her application to the Historical Resources Board (HRB) for
the City of San Diego (City) to have the property designated a historical site, and (2)
defend the Report at any hearing before the HRB on her application. Legacy prepared
the report, submitted it to City in early 2010 and, at Taylor's direction, provided a copy of
the Report to the La Jolla Historical Society (LJHS) around the same time.
Subsequently, during the pendency of Taylor's application, she sold the property to
plaintiff Bottini.1 Taylor also executed a February 16, 2011, assignment (the
assignment) that assigned to Bottini her rights in the application filed with City
concerning the property. Bottini then withdrew the application, obtained a permit to (and
did) demolish the structure on the property, and submitted building plans that were
approved based, in part, on a determination the new building project was exempt from the
requirements of the California Environmental Quality Act (Pub. Resources Code,
§ 21000 et seq.) (CEQA). LJHS, along with another group, appealed the approval to the
city council for City (the Appeal). The Appeal was successful and required an
environmental review of Bottini's proposed project (City's Ruling).
In this action, Bottini alleges Legacy is liable for the damages it suffered from
City's Ruling. It alleges Legacy participated in the Appeal by giving the Report to LJHS
1 The buyer was the "Bernate Ticino Trust, dated 3/2/09," and Francis A. Bottini, Jr., is a trustee of that trust. For ease of reference, we collectively refer to both plaintiffs as Bottini.
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and City, which provided support for the Appeal's contention the property had historic
significance and therefore required CEQA compliance, and City's Ruling adverse to
Bottini was based on this alleged historic significance. Bottini's complaint against
Legacy pleaded claims for intentional interference with contractual relations, intentional
interference with prospective economic advantage, and breach of the implied covenant of
good faith and fair dealing. Legacy moved to strike the action pursuant to Code of Civil
Procedure section 425.16,2 commonly referred to as the anti-SLAPP (strategic lawsuit
against public participation) statute. (Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 57.) Legacy argued the alleged wrongful conduct on which
Bottini's lawsuit was based fell within the protection of the anti-SLAPP law as conduct in
furtherance of a person's right to petition or of free speech, and because Bottini could not
show probable success on the merits, the court should strike the complaint and award
Legacy attorney fees under the anti-SLAPP statute. The trial court agreed, granted
Legacy's motion to strike and awarded attorney fees to, and entered judgment for,
Legacy.
On appeal, Bottini argues the anti-SLAPP law was inapplicable because none of
the claims against Legacy arose from protected conduct, but instead arose from Legacy's
interference with Bottini's contractual rights, and any protected conduct was merely
incidental to the unprotected conduct. Bottini alternatively asserts that, even if the anti-
2 All statutory references are to the Code of Civil Procedure unless otherwise specified.
3
SLAPP law does apply, the trial court's ruling must be reversed because Bottini
adequately demonstrated a probability of success on the merits. Finally, Bottini argues
the court abused its discretion in the amount of the attorney fee award because the
evidence did not adequately support the amount of fees incurred by Legacy.
I
FACTUAL BACKGROUND
A. The Parties
Defendant Legacy performs consulting work in the areas of archeology and
historic preservation, including researching and preparing reports for use in the historical
designation process. Defendant Ronald May, who cofounded Legacy and is its President
and principal investigator, has had a lengthy career in the fields of archeology and
historic preservation. May believes in the need to preserve structures of historical
significance and will not accept work from persons who do not support historical
designation for a house or building for which he has been asked to prepare a nomination.
Plaintiff Francis A. Bottini, Jr., is a trustee of plaintiff Bernate Ticino Trust, dated
3/2/09. In early 2011, Bottini acquired the Property, located in La Jolla, California, from
Taylor, and obtained the assignment that, among other things, conveyed Taylor's rights to
the application for historical designation of the Property then pending before the HRB.
B. The Contract, Report and Nomination Proceedings
In late 2009 Taylor and Legacy entered into the consulting services contract that
provided Legacy would perform independent consulting services to Taylor, including (1)
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researching and preparing the Report to submit as part of her application to the HRB to
have the Property designated a historical site, and (2) appearing at a hearing before the
HRB on her application to defend the Report. Legacy researched and prepared the report
and submitted a copy of it to the staff of HRB in connection with Taylor's application
around March 1, 2010. Legacy gave copies of the Report to Taylor and also, with
Taylor's permission, provided a copy of the Report to the LJHS. As of that time,
Legacy's only remaining task under the consulting services contract was to appear before
the HRB to defend the Report.
Sometime after the Report was filed, Legacy learned Taylor decided to sell the
Property to Bottini.3 In May 2011 Bottini contacted City and withdrew the nomination.
Legacy subsequently learned Bottini had withdrawn the nomination and therefore
Legacy's only remaining obligation under the consulting services contract—to appear
before the HRB to defend the Report—became moot.
C. Subsequent Proceedings Before Governmental Agencies
Bottini submitted a request for a preliminary review to determine the historical
significance of the Property, apparently in contemplation of seeking permission to
demolish the existing structure in order to build a new house, which triggered a review
3 Around the same time, Taylor entered into the assignment with Bottini. Under the assignment, Taylor agreed to assign to Bottini all "legal and beneficial right . . . to requests and/or applications for historical designation of the Property, including . . . the application currently pending with [HRB]," and to allow Bottini to be substituted in her place on the currently pending application. Taylor also "transfer[red] to [Bottini] . . . a copy of all underlying and supporting documentation regarding historical designation of the Property."
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process by the HRB to determine whether to historically designate the Property. The
HRB hearing took place in September 2011 and the HRB did not designate the Property.
In December 2011 Bottini applied for and obtained a demolition permit, and the structure
on the property was demolished. Legacy did not speak at any of these governmental
proceedings.
Bottini subsequently applied for a coastal development permit to build a new
single family residence on the now vacant lot. City's staff determined the proposed
project would not have the potential for causing a significant effect on the environment
and was exempt from CEQA. In February 2013, the Appeal of that determination was
filed by LJHS and another group. May shared the concerns of LJHS regarding the
permitting process that had been followed, and communicated his position to the city
council by a June 24, 2013, email that outlined his concerns over how the project had
been improperly "piecemealed," and how City's staff had sought to suppress use of the
Report during the hearing before the HRB and other public hearings, and urged the city
council to uphold the Appeal and require Bottini to submit an environmental impact
report (EIR) for the project.
In September 2013 city council adopted a resolution granting the Appeal. The
resolution included a finding citing the Report (along with the LJHS's nomination and
other evidence) as support for the finding the project could have significant impact on
historical resources and therefore required an EIR for the project. Because the project
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has been delayed and Bottini is now required to prepare an EIR for the project, Bottini
has suffered losses.
II
PROCEDURAL BACKGROUND
A. The Lawsuit
Bottini filed this action against Legacy and May (hereafter together referred to as
Legacy), pleading claims for intentional interference with contractual relations,
intentional interference with prospective economic advantage, and breach of the implied
covenant of good faith and fair dealing, alleging it was damaged because Legacy's actions
led to the city council resolution. Bottini's lawsuit alleged, in essence, that the Report
belonged to Bottini (by way of assignment from Taylor) but was used by Legacy (either
directly or by giving it to LJHS or others to use) in ways inimical to Bottini's interests,
including use of the Report to support the Appeal and to induce the city council to grant
the Appeal.
B. The Anti-SLAPP Motion and Ruling
Legacy moved to strike the complaint under the anti-SLAPP statute. The motion
argued the core conduct underlying Bottini's claims was protected conduct, because the
claims rested on publications made by Legacy as to matters pending before a
governmental agency, all of which fell within the protections afforded by section 425.16,
subdivision (e). Legacy argued this satisfied the prima facie showing required for
application of the anti-SLAPP statute and therefore shifted the burden to Bottini to
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demonstrate probable success on the merits. Legacy argued Bottini could not satisfy the
burden of showing probable success on the merits, and therefore argued the complaint
should be dismissed and Legacy should recover attorney fees.
Bottini opposed the motion, asserting first that Legacy had not satisfied the prima
facie burden of showing the anti-SLAPP statute applied to the claims asserted by Bottini's
lawsuit. Bottini contended the first prong was not satisfied because Legacy was paid to
generate the Report for submission to the governmental agency and therefore submission
of that report was not an act by Legacy in furtherance of the right to petition or free
speech under the rationales of Ericsson GE Mobile Communications, Inc. v. C.S.I.
Telecommunications Engineers (1996) 49 Cal.App.4th 1591 (Ericsson) (disapproved on
other grounds in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1123, fn. 10 and Equilon Enterprises v. Consumer Cause, Inc. supra, 29 Cal.4th at p. 68,
fn. 5) and Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95
Cal.App.4th 921 (Kajima). Bottini alternatively contended the first prong was not
satisfied because the pleaded claims were based primarily on unprotected activity and any
protected activities were only incidental to Bottini's claims, and the lawsuit did not "arise
from" protected activities. Bottini also argued that, even assuming the prima facie
showing had been made by defendants, it had shown probable success on the merits.
The trial court concluded all of Bottini's causes of action were rooted in the
communications by Legacy (which Bottini alleged were wrongful and caused its injury)
regarding the historical nomination for the Property. The court concluded those
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communications were the type of conduct qualifying for protection under section 425.16,
and rejected Bottini's arguments that the allegedly wrongful communications fell outside
the ambit of section 425.16 as representing commercial activity for which section 425.16
provides no protection. The trial court also concluded Bottini had not shown probable
success on the merits because all of the conduct alleged to have been wrongful and
injurious to Bottini were absolutely privileged. Accordingly, the court granted Legacy's
motion to strike Bottini's claims.
The court also concluded Legacy was entitled to attorney fees and ordered further
briefing on the amount sought by Legacy. After consideration of the relevant factors, and
after disallowing a portion of the fees sought by Legacy, the court found that attorney
fees in the amount of $23,112 were reasonable and awarded Legacy attorney fees in that
amount. After judgment was entered, Bottini timely appealed.
III
ANALYSIS OF RULING ON ANTI-SLAPP MOTION
A. The Anti-SLAPP Statute: Legal Framework
The anti-SLAPP statute is available "to provide for the early dismissal of
unmeritorious claims filed to interfere with the valid exercise of the constitutional rights
of freedom of speech and petition for the redress of grievances." (Club Members for an
Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315.) The Legislature authorized
the filing of a special motion to strike those claims (§ 425.16, subds. (b)(1), (f)), and
expressly provided that section 425.16 should "be construed broadly." (Id. at subd. (a).)
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To determine whether a cause of action should be stricken under the anti-SLAPP
statute, section 425.16 establishes a two-step test. In the first step, the party bringing the
motion has the initial burden of showing that the cause of action arises from an act in
furtherance of the right of free speech or petition—i.e., that it arises from a protected
activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) To meet this threshold showing,
the defendant must show that the conduct on which the plaintiff's claims are based is
conduct falling within one of the four categories of conduct described in section 425.16,
subdivision (e). (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569.) Those four
categories are: "(1) any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding authorized by law, (2)
any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law, (3) any written or oral statement or writing made in a place
open to the public or a public forum in connection with an issue of public interest, or (4)
any other conduct in furtherance of the exercise of the constitutional right of petition or
the constitutional right of free speech in connection with a public issue or an issue of
public interest." (§ 425.16, subd. (e).)
If the defendant meets this threshold showing, the burden then shifts to the
plaintiff to demonstrate a probability of prevailing on the cause of action. (§ 425.16,
subd. (e).) " 'To demonstrate a probability of prevailing on the merits, the plaintiff must
show that the complaint is legally sufficient and must present a prima facie showing of
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facts that, if believed by the trier of fact, would support a judgment in the plaintiff's
favor.' " (Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 679.) A plaintiff
does not meet this burden by simply relying on the allegations of the complaint, but
instead must produce evidence that would be admissible at trial. (HMS Capital, Inc. v.
Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) The court cannot weigh this
evidence, but instead determines whether the evidence is sufficient to support a judgment
in the plaintiff's favor as a matter of law. (Ibid.)
Only when a cause of action satisfies both parts of the anti-SLAPP statute—i.e., it
arises from protected speech or petitioning and lacks minimal merit—is that claim subject
to being stricken under the statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89
(Navellier).) On appeal, we independently review the trial court's order granting a special
motion to strike under section 425.16. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055
(Rusheen).)
B. Analysis
Our independent review convinces us the trial court correctly held Legacy
satisfied the first prong, by showing Bottini's lawsuit was premised on protected activity,
and correctly found Bottini did not show probable success on the merits.
The Threshold Showing of Anti-SLAPP Application Was Met
We begin with an examination of whether Legacy satisfied the first prong. "The
sole inquiry under the first prong of the anti-SLAPP statute is whether the plaintiff's
claims arise from protected speech or petitioning activity. [Citation.] Our focus is on the
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principal thrust or gravamen of the causes of action, i.e., the allegedly wrongful and
injury-producing conduct that provides the foundation for the claims. [Citations.] We
review the parties' pleadings, declarations, and other supporting documents at this stage
of the analysis only 'to determine what conduct is actually being challenged, not to
determine whether the conduct is actionable.' " (Castleman v. Sagaser (2013) 216
Cal.App.4th 481, 490-491 (Castleman), quoting Coretronic Corp. v. Cozen O'Connor
(2011) 192 Cal.App.4th 1381, 1389.)
We are convinced, from the allegations of the complaint and the declarations filed
by the parties, that the "allegedly wrongful and injury-producing conduct that provides
the foundation" (Castleman, supra, 216 Cal.App.4th at p. 490) for Bottini's damages
consisted of Legacy's communications to the city council advocating for the historical
designation of the Property and the concomitant requirement that Bottini file an EIR for
its Project, and this is the conduct that caused the injury for which Bottini sought
recovery. We are also convinced, and Bottini does not dispute, that direct
communications to a political body conducting CEQA proceedings fall squarely within
the type of conduct protected under the anti-SLAPP statute (Dixon v. Superior Court
(1994) 30 Cal.App.4th 733, 743-744), and the anti-SLAPP protections apply with equal
force to conduct that provides encouragement or support to third parties who directly
communicate to the relevant political body. (Ludwig v. Superior Court (1995) 37
Cal.App.4th 8, 16-18.) Because Bottini's complaint alleges injury from both Legacy's
direct communications (e.g., Legacy's emails to the city council advocating in favor of
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LJHS's Appeal and citing the Report) and indirect communications (e.g., providing the
Report to third parties to support the third parties' advocacy in favor of the Appeal),
Bottini's claims "arise from" protected conduct within the meaning of the anti-SLAPP
statute.
Bottini asserts the trial court erred in finding Legacy satisfied the first prong
because, under Ericsson, supra, 49 Cal.App.4th 1591, and Kajima, supra, 95 Cal.App.4th
921, communications with governmental agencies in the regular course of business and in
satisfaction of contractual undertakings are acts purely for financial gain, rather than acts
in furtherance of the right of petition or free speech, and therefore fall outside the
protection of the anti-SLAPP statute. Bottini argues that, because the Report was
generated and submitted in satisfaction of Legacy's contractual undertaking with Taylor,
it is outside the protection of the anti-SLAPP statute and, under Episcopal Church Cases
(2009) 45 Cal.4th 467 (Episcopal), a lawsuit the gravamen of which is a business dispute
is not subject to an anti-SLAPP motion merely because protected activity "may lurk in
the background" or even have been a precipitant of the business dispute. (Episcopal, at
pp. 478, 477-478.) We are not persuaded by Bottini's arguments because we conclude
the language from Ericsson on which Bottini relies has been eviscerated by Navellier,
supra, 29 Cal.4th 82, and neither Kajima nor Episcopal provide relevant support for
Bottini's arguments.
In Ericsson, two communications companies submitted competing bids to supply
and install a communications system for a governmental agency, and the losing bidder
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(Ericsson) sued a consultant retained by the agency because the consultant recommended
the competing company's proposal. The lawsuit alleged the consultant (by breaching its
contractual obligation to the agency when it did not provide an objective analysis of the
competing bids) was liable to Ericsson for intentional interference with economic
advantage. (Ericsson, supra, 49 Cal.App.4th at pp. 1594-1596.) The consultant moved
to strike the complaint under the anti-SLAPP statute, and the appellate court deemed the
central issue to be whether "conduct undertaken in furtherance of a contractual
obligation" can qualify as an act made "in furtherance of the right of free speech" for
purposes of the first prong of the anti-SLAPP statute. (Id. at p. 1598.) The Ericsson
court held the anti-SLAPP statute applies "only in those cases where the party acted for
the purpose of promoting or advancing his or her right of free speech, in contrast to one
where the parties are performing or breaching their contractual obligations" (id. at
p. 1601), and concluded that when the alleged wrongful conduct was "related to the
performance of [the defendants'] contractual obligations, and were not motivated by their
desire to promote or advance their right of free speech, the first prong of the test has not
been met." (Id. at p. 1602.) Relying on this language and approach, Bottini asserts
Legacy's Report was generated in fulfillment of a contractual undertaking rather than to
promote Legacy's right to free speech, and therefore an action based on breach of that
contractual undertaking does not satisfy the first prong of the anti-SLAPP statute even
though it was submitted to a governmental agency.
14
However, in Navellier, supra, 29 Cal.4th 82, our high court disapproved
Ericsson's approach, stating at page 92:
"Although Ericsson . . . questioned the applicability of section 425.16 to 'breach of contract or fraud actions where the act of the [defendant] relates to the formation or performance of contractual obligations and not . . . to the exercise of the right of free speech' (Ericsson, supra, 49 Cal.App.4th at pp. 1601-1602), that comment cannot be reconciled with the plain language of the anti-SLAPP statute. Nothing in the statute itself categorically excludes any particular type of action from its operation, and no court has the ' "power to rewrite the statute so as to make it conform to a presumed intention which is not expressed." ' [Citation.] For us to adopt such a narrowing construction, moreover, would contravene the Legislature's express command that section 425.16 'shall be construed broadly.' [Citation.] [¶] The logical flaw in plaintiffs' argument is its false dichotomy between actions that target 'the formation or performance of contractual obligations' and those that target 'the exercise of the right of free speech.' (Ericsson, supra, 49 Cal.App.4th at p. 1602.) A given action, or cause of action, may indeed target both. As the facts in this lawsuit illustrate, conduct alleged to constitute breach of contract may also come within constitutionally protected speech or petitioning. The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning. [Fn. omitted.]"
The Navellier court went on to explain that including contract and fraud claims
within the operation of the anti-SLAPP statute does not mean a defendant cannot be sued
for breaching his or her promises merely because the alleged breach involved petitioning
activities, but only means that when such petitioning activity constitutes the alleged
wrongful conduct, the anti-SLAPP statute "subjects to potential dismissal only those
actions in which the plaintiff cannot 'state[] and substantiate[] a legally sufficient claim'
[citation]." (Navellier, supra, 29 Cal.4th at p. 93, fn. omitted.)
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Here, the allegedly wrongful and injury-producing conduct that provides the
foundation for Bottini's claimed injuries was that Legacy communicated the Report
(either directly or indirectly) to the city council in connection with the Appeal. Although
Bottini's complaint alleged that conduct also breached some contractual duty or other
obligation owed by Legacy to Bottini, the anti-SLAPP statute nevertheless applies to its
action and Bottini may proceed with its claims only if it can state and substantiate a
legally sufficient claim. (Accord, Midland Pacific Building Corp. v. King (2007) 157
Cal.App.4th 264, 271-274 [where actions that allegedly breached the contract necessarily
and essentially constituted petitioning activity, first prong satisfied].)
Bottini's citation to Kajima, supra, 95 Cal.App.4th 921 for the proposition that the
anti-SLAPP statute does not apply to "conduct in furtherance of a business engagement,"
is even less persuasive. First, the language from Kajima on which Bottini apparently
relies cited Ericsson as support for that proposition, and Navellier has effectively
abrogated that approach. (See Midland Pacific Bldg. Corp. v. King, supra, 157
Cal.App.4th at p. 272.) Second, Kajima merely held that a fraud cause of action, which
alleged in part that the defendant submitted false claims for payment to the government in
the regular course of business, was "simply . . . not an act in furtherance of the right of
petition or free speech within the meaning of the anti-SLAPP statute." (Kajima, supra,
95 Cal.App.4th at pp. 932, 929.) In contrast, the alleged wrongful conduct at the core of
Bottini's action is that Bottini was injured because Legacy engaged in conduct in
furtherance of the right of petition or free speech. Kajima is of no aid to Bottini.
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Bottini alternatively argues its claims against Legacy do not "arise from" protected
activities because it was rooted in misconduct that is unprotected, such as Legacy's
"feign[ing] compliance with the terms of the Assignment" while taking "secret and
undisclosed steps to interfere with [Bottini's] property interests," and sending the Report
to third parties and encouraging them to use the Report in ways inimical to Bottini's
interest, and posting the Report on Legacy's website. Bottini argues these allegations
show Legacy engaged in unprotected misconduct and cannot satisfy the first prong of the
anti-SLAPP statute, and the mere fact Bottini's complaint also contains " 'collateral
allusions to protected activity' " (Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 575),
or that protected activity "may lurk in the background" or have been a precipitant of the
business dispute (Episcopal, supra, 45 Cal.4th at pp. 478, 477-478), does not bring
Bottini's claim within the first prong of the anti-SLAPP statute.
These arguments are without merit. For example, Bottini's allegations that Legacy
concealed its petitioning activities (i.e. by "feign[ing] compliance" while taking "secret
and undisclosed steps to interfere with [Bottini's] property interests") does not remove
Bottini's claims from the first prong of the anti-SLAPP statute. (See, e.g., Ludwig v.
Superior Court, supra, 37 Cal.App.4th at p. 20 [where gravamen of claim is that plaintiff
was injured because defendant engaged in petitioning activity of filing a lawsuit,
allegation that defendant "fail[ed] to reveal his role in the lawsuits . . . is of no assistance"
to argument that first prong was not satisfied].) Similarly, the allegation Legacy sent the
Report to third parties and encouraged them to use the Report in the CEQA appeal is
17
insufficient to remove Bottini's claims from the first prong of the anti-SLAPP statute.
(Id. at pp. 16-19 [fact that defendant supported or encouraged others to undertake
petitioning activity injurious to plaintiff does not remove claim against defendant seeking
to recover for such injury from anti-SLAPP statute]; cf. Briggs v. Eden Council for Hope
& Opportunity, supra, 19 Cal.4th at p. 1115 [landlord's suit against nonprofit corporation
that counseled tenants in landlord-tenant disputes alleging defendant gave false advice to
a tenant; court held that " '[j]ust as communications preparatory to or in anticipation of
the bringing of an action or other official proceeding are within the protection of the
litigation privilege of Civil Code section 47, subdivision (b) [citation], . . . such
statements are equally entitled to the benefits of section 425.16' "].) Finally, Bottini's
allegation Legacy posted the Report on Legacy's website does not preclude application of
the anti-SLAPP statute to Bottini's complaint. (See, e.g., Wilbanks v. Wolk (2004) 121
Cal.App.4th 883, 895-898.)
We are equally unpersuaded by Bottini's argument its claims are rooted in
unprotected conduct and that the references to protected conduct are only incidental to its
claims. (See, e.g., Thomas v. Quintero (2005) 126 Cal.App.4th 635, 653 [when
allegations referring to arguably protected activity are only incidental to a cause of action
based essentially on nonprotected activity, complaint not subject to anti-SLAPP statute].)
To the contrary, the principal thrust or gravamen of Bottini's claims—"i.e., the allegedly
wrongful and injury-producing conduct that provides the foundation for the claims"
(Castleman, supra, 216 Cal.App.4th at pp. 490-491, italics added)—is necessarily the
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petitioning activity of LJHS and others that Legacy encouraged and supported. Bottini
suffered no other injury from Legacy's allegedly wrongful conduct apart from the impact
it had in such petitioning activities, and therefore Bottini's claims are necessarily and
centrally founded on protected conduct. (See South Sutter, LLC v. LJ Sutter Partners,
L.P. (2011) 193 Cal.App.4th 634, 669, 668-670 [defendants filed specific plan that
interfered with development of plaintiff's property, and plaintiff sued defendants for
breach of contract and other contract claims; court held anti-SLAPP applied because
plaintiff "claims a dispute has arisen over whether the exercise of constitutional rights by
. . . defendants violates a contract. In this case, the protected activity does not just lurk in
the background. It is the alleged cause of [the plaintiff's] injury."].)
Bottini Did Not Show Probable Success on the Merits
The Litigation Privilege Bars the Action
Bottini asserts the trial court erred when it concluded the litigation privilege
precluded Bottini from showing probable success on the merits. "The litigation privilege
is . . . relevant to the second step in the anti-SLAPP analysis in that it may present a
substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.
[Citing Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927.]" (Flatley v. Mauro
(2006) 39 Cal.4th 299, 323.) As explained by the court in Kashian v. Harriman, supra,
98 Cal.App.4th at page 913:
"The litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the intent to harm. [Citation.] . . . Although originally applied only to defamation actions, the privilege has been extended to any
19
communication, not just a publication, having 'some relation' to a judicial proceeding, and to all torts other than malicious prosecution. [Citation.] Moreover, '[t]he litigation privilege is not limited to the courtroom, but encompasses actions by administrative bodies and quasi-judicial proceedings. [Citation.] The privilege extends beyond statements made in the proceedings, and includes statements made to initiate official action. [Citation.] [¶] . . . [¶] . . .' [Quoting Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1303.] [¶] If there is no dispute as to the operative facts, the applicability of the litigation privilege is a question of law. [Citation.] Any doubt about whether the privilege applies is resolved in favor of applying it."
Thus, the litigation privilege extends to protect actions in proceedings before
administrative boards and quasi-judicial proceedings (Imig v. Ferrar (1977) 70
Cal.App.3d 48, 55), and applies to communications or publications made outside of the
proceedings themselves. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955.) The
privilege also protects noncommunicative acts necessarily related to communicative
conduct as long as the gravamen of the action is the communicative acts. (Rusheen,
supra, 37 Cal.4th at pp. 1062-1063.) Here, all of Bottini's claims assert, as the "allegedly
wrongful and injury-producing conduct that provides the foundation for the claims"
(Castleman, supra, 216 Cal.App.4th at pp. 490-491, italics added), that Bottini was
injured because Legacy (in alleged violation of its obligations) communicated the Report
to the city council in connection with the Appeal, either directly (via Legacy's email) or
indirectly (by giving it to LJHS or others to use to support the Appeal). Under these
circumstances, the litigation privilege precludes Bottini from demonstrating probable
success on the merits.
20
Bottini asserts that, because the litigation privilege " ' "applies only to
communicative acts and does not privilege tortious courses of conduct" ' " (Olszewski v.
Scripps Health (2003) 30 Cal.4th 798, 830 [quoting LiMandri v. Judkins (1997) 52
Cal.App.4th 326, 345] (LiMandri)), it was error to apply the privilege here because
Bottini's lawsuit did allege Legacy engaged in an actionable noncommunicative course of
conduct, i.e. Legacy allegedly misappropriated the Report, and gave the Report to third
parties as part of a conspiracy with the third parties to interfere with Bottini's property
rights. However, Bottini's complaint alleges no injury from the alleged misappropriation
apart from the injury flowing from the communicative course of conduct of providing the
Report to third parties for use in the Appeal.4
Bottini argues that, under LiMandri, supra, 52 Cal.App.4th 326, and Mattco
Forge, Inc. v. Arthur Young & Co. (1992) 5 Cal.App.4th 392, it was error to apply the
litigation privilege here.5 Although this court in LiMandri held the litigation privilege
4 Bottini's assertion of a "conspiracy" does not remove Legacy's conduct from the umbrella of the privilege. As the court explained in Rusheen, supra, 37 Cal.4th at page 1062, "a civil conspiracy does not give rise to a cause of action unless an independent civil wrong has been committed. The elements of an action for civil conspiracy are (1) formation and operation of the conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done in furtherance of the common design." Accordingly, Rusheen explained that where the allegedly wrongful conduct causing damage was itself within the ambit of the privilege, the allegations of conspiracy do not obviate application of the privilege. (Id. at pp. 1062-1064.) Here, the object of the conspiracy and the alleged wrongful conduct was the use of the Report to support the Appeal, and therefore the privilege applies.
5 Bottini also cites Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153 to argue that, whenever a claim is made for breach of fiduciary duty against an
21
did not bar a claim for intentional interference with contractual relations when based on
an alleged tortious course of conduct and only one act within that course of conduct was
protected by the litigation privilege, this court's underlying rationale was that the alleged
tortious conduct was the creation of a competing and superior security interest in certain
proceeds, and the only privileged conduct (the filing of a notice of lien) caused no
additional injury. (See LiMandri, supra, 52 Cal.App.4th at p. 345 ["While the isolated
act of filing Security's notice of lien was communicative, it was only one act in the
overall course of conduct . . . [and in] any event . . . the filing of Security's notice of lien
did not create the competing lien which interfered with LiMandri's contractual relations;
it merely gave notice that Security was asserting the lien."].) Here, in contrast, the only
injury alleged by Bottini is rooted in the privileged conduct of using the Report to
persuade the city council to uphold the Appeal. LiMandri is therefore inapposite.
Bottini's reliance on Mattco Forge, Inc. v. Arthur Young & Co., supra, 5
Cal.App.4th 392 is even less apposite. There, the plaintiffs brought an action against an
accounting firm that provided the plaintiffs with litigation support, alleging professional
malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, breach of
agent, the litigation privilege should not apply even though the actionable breach was a statement otherwise protected by the litigation privilege had it been made by a disinterested third party. However, Fremont involved a disclosure by an attorney, and the Fremont court declined to apply the privilege because it would preclude actions by a former client against an attorney for breach of professional duties arising from communicative conduct in litigation on behalf of that client, thereby obviating all malpractice claims against attorneys involved in litigation, which "would undermine the attorney-client relationship and would not further the policies of affording free access to the courts and encouraging open channels of communication and zealous advocacy." (Id. at p. 1174.) No similar considerations apply here.
22
contract, tortious breach of the implied covenant of good faith and fair dealing,
constructive trust, and fraudulent concealment, all of which were premised on defendants'
allegedly negligent work as damage consultants and expert witnesses in the plaintiffs'
action against a third party. The trial court granted the defendants' motion for summary
judgment based on its conclusion the litigation privilege shielded defendants from
liability. (Id. at pp. 396-401.) The appellate court reversed, concluding the litigation
privilege does not shield a party's own witness from an action by the party arising from
the expert's negligence, reasoning application of the privilege in such cases would not
further the underlying policies of the privilege. (Id. at pp. 404-406.) Here, Bottini's
injury does not flow from any alleged negligence in preparing the Report, but instead
flowed from the communication of the Report, rendering Mattco inapposite.
The Underlying Merits of Bottini's Claims
Even without the bar of the litigation privilege, our independent review of the trial
court's order (Rusheen, supra, 37 Cal.4th at p. 1055) convinces us the trial court correctly
granted the motion to strike because Bottini did not establish probable success on the
merits as to any of the pleaded claims.
Bottini's claim for intentional interference with contractual relations requires proof
of "(1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of
this contract; (3) defendant's intentional acts designed to induce a breach or disruption of
the contractual relationship; (4) actual breach or disruption of the contractual
relationship; and (5) resulting damage." (Pacific Gas & Electric Co. v. Bear Stearns &
23
Co. (1990) 50 Cal.3d 1118, 1126.) The complaint alleged Bottini had a contract with
Taylor by which she assigned certain rights to them, and Bottini's showing on the second
prong below included the assignment. The assignment by which Taylor (1) assigned to
Bottini "all legal and beneficial right, title and interest in and to requests and/or
applications for historical designation of the Property, including but not limited to the
application currently pending with [HRB]" and granted Bottini the option to have its
name substituted for Taylor in the pending application; (2) agreed not to file any future
applications for historical designation or to hinder Bottini from developing the Property;
and (3) agreed to transfer to Bottini "a copy of all underlying and supporting
documentation regarding historical designation of the Property." However, neither the
complaint, nor Bottini's showing on the second prong in opposition to the anti-SLAPP
motion, contained evidence from which a trier of fact could conclude Taylor failed to
perform any of these obligations.6
Bottini's claim for intentional interference with prospective economic advantage
fares no better. "The five elements for intentional interference with prospective
economic advantage are: (1) an economic relationship between the plaintiff and some
third party, with the probability of future economic benefit to the plaintiff; (2) the
defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant
6 Bottini's theory below, which it resurrects on appeal, is that Taylor breached her obligations because of Legacy's misconduct. Bottini cites no authority that Taylor can be held liable for breach of contract based on the alleged misconduct of third parties, nor does the record contain any suggestion that Bottini claims Taylor failed to satisfy any of her contractual obligations to Bottini.
24
designed to disrupt the relationship; (4) actual disruption of the relationship; and (5)
economic harm to the plaintiff proximately caused by the acts of the defendant." (Youst
v. Longo (1987) 43 Cal.3d 64, 71, fn. 6.) The principal distinctions between this cause of
action and a cause of action for intentional interference with contractual relations are (1)
the former does not require proof of a legally binding contract, and (2) a broader range of
privilege to interfere is recognized when the relationship is only prospective. (Pacific
Gas & Electric Co. v. Bear Stearns & Co., supra, 50 Cal.3d at p. 1126.) The same flaw
is fatal to Bottini's claim for intentional interference with prospective economic
advantage: neither the complaint nor Bottini's showing on the second prong in opposition
to the anti-SLAPP motion contained evidence from which a trier of fact could conclude
Bottini's relationship with Taylor was interfered with by anything Legacy did or failed to
do. Because the evidence was undisputed that Taylor complied with all of her
contractual obligations to Legacy and did nothing to interfere with Bottini's attempts to
develop the Property, the fact that Legacy may have interfered with Bottini's attempts to
develop the Property does not support a claim that Legacy is liable for intentionally
interfering with Bottini's prospective economic relations with Taylor.
Bottini's principal claim rests on the theory that Legacy is liable for breach of the
covenant of good faith and fair dealing owed to Bottini as assignee of the consulting
services contract. Specifically, Bottini argues (1) Legacy owed its principal (Taylor)
certain obligations under the consulting services contract, including the implied covenant
of good faith and fair dealing; (2) Taylor assigned the consulting services contract to
25
Bottini, which succeeded to all of Taylor's rights by virtue of the assignment; and (3)
Legacy breached the implied covenant of good faith and fair dealing implied in the
consulting services contract by supporting historical designation of the Property contrary
to the interests of Legacy's new principal, i.e. Bottini.
As this court explained in Racine & Laramie, Ltd. v. Department of Parks &
Recreation (1992) 11 Cal.App.4th 1026 (Racine): "The implied covenant of good faith
and fair dealing rests upon the existence of some specific contractual obligation.
[Citation.] 'The covenant of good faith is read into contracts in order to protect the
express covenants or promises of the contract, not to protect some general public policy
interest not directly tied to the contract's purpose.' [Citation.] . . . 'In essence, the
covenant is implied as a supplement to the express contractual covenants, to prevent a
contracting party from engaging in conduct which (while not technically transgressing
the express covenants) frustrates the other party's rights to the benefits of the contract.'
[¶] . . . [¶] There is no obligation to deal fairly or in good faith absent an existing
contract." (Id. at pp. 1031-1032.)
Bottini did not show probable success on the merits on its claim for breach of the
covenant of good faith and fair dealing, for several reasons. First, Bottini provided no
evidence Taylor actually purported to assign the consulting services contract to it.
Although the assignment specifically employed the term "assign" when it described
Taylor's intent to convey to Bottini all of her "right, title and interest in and to requests
and/or applications for historical designation of the Property, including but not limited to
26
the application currently pending with [HRB]," it nowhere mentions any intent to
"assign" Taylor's rights under the consulting services contract, but instead only states she
agreed to transfer to Bottini "a copy of all underlying and supporting documentation
regarding historical designation of the Property."7 Moreover, even if the agreement
could have been read to encompass an intent to assign her rights under the consulting
services contract, Bottini at most would have succeeded to her remaining rights under the
contract. (See Searles Valley Minerals Operations Inc. v. Ralph M. Parsons Service Co.
assignee "stands in the shoes" of assignor and takes his or her rights and remedies subject
to any defenses the obligor has against the assignor prior to notice of the assignment].) It
is undisputed that Legacy's only remaining obligation under the consulting services
contract was to appear before the HRB to defend the Report, but Bottini's decision to
withdraw the application excused Legacy's only remaining obligation. Ordinarily, there
is no implied covenant of good faith absent existing contractual obligations (Racine,
7 Bottini peremptorily asserts that Taylor's agreement to transfer "a copy of all underlying and supporting documentation" conveyed ownership of the Report to Bottini, and therefore Legacy misappropriated Bottini's property (the Report) when it provided a copy of the Report to LJHS. Bottini provides neither legal nor factual support for this assertion. As a legal matter, it appears that a work produced by an independent contractor under commission, as here, is not a "work for hire" under which the commissioning party acquires ownership of the copyright for the work, but instead the author retains ownership of the work absent narrow exceptions not applicable here. (See, e.g., Community for Creative Non-Violence v. Reid (1989) 490 U.S. 730, 741-751.) Bottini provides no legal support for its claim that Taylor owned the Report and transferred ownership of the Report to Bottini. As a factual matter, even had Taylor "owned" the Report, the only evidence was that Legacy gave a copy of the Report to LJHS with Taylor's permission before Taylor purportedly assigned the Report to Bottini.
27
supra, 11 Cal.App.4th at p. 1032), and Bottini cites no authority suggesting that, once all
of an obligor's express contractual covenants have been performed or excused, the
obligee can nevertheless sue the obligor for breach of the implied covenant of good faith
and fair dealing.
More importantly, Bottini cites no law permitting an assignment of a contract
retaining the services of an independent contractor, such as the instant one, without the
consent of the independent contractor. A personal services contract is not one that would
normally be considered assignable under California law. (See, e.g., Coykendall v.
Jackson (1936) 17 Cal.App.2d 729 [holding contract for personal services cannot be
assigned, nor can such a contract be specifically enforced]; Civ. Code, § 3390 [providing
obligation to render personal service cannot be specifically enforced]; Madison v. Moon
(1957) 148 Cal.App.2d 135, 144-145 [recognizing rule that contract for personal services
may not be assigned in the absence of consent and approval of the other party].) Other
jurisdictions recognize the same rule.8 The undisputed evidence showed the consulting
8 (See, e.g., Alldredge v. Twenty-Five Thirty-Two Broadway Corporation (Mo. Ct. App. 1974) 509 S.W.2d 744, 749 [holding employment contract is not enforceable by the employer's assignee]; Perthou v. Stewart (D. Ore. 1965) 243 F.Supp. 655, 659 [holding covenant not to compete included in employment agreement entered into by an employee is not enforceable by successor to the employer since the employment agreement is a personal service contract that cannot be assigned: "The fact that a person may have confidence in the character and personality of one employer does not mean that the employee would be willing to suffer a restraint on his freedom for the benefit of a stranger to the original undertaking."); SDL Enterprises, Inc. v. DeReamer (Ind. Ct. App. 1997) 683 N.E.2d 1347, 1349-1350 [holding personal service contracts are not assignable; thus, where personal service contract was assigned, assignee had no right to enforce the covenants].)
28
services contract involved the provision of personal services by Legacy to Taylor, and
that Legacy declined to work for persons whose objectives are inconsistent with Legacy's
belief in the need to preserve structures of historical significance. Because the foregoing
demonstrates Bottini failed to show any probable success on its claim that it could have
acquired Taylor's rights under the consulting services contract by assignment without
Legacy's consent, there is no existing contractual obligation owed by Legacy to Bottini
on which Bottini could premise a claim for breach of the implied covenant of good faith.
(Racine, supra, 11 Cal.App.4th at p. 1032.)
Conclusion
Legacy met the threshold showing that the conduct on which Bottini's claims are
based is conduct falling within the ambit of the anti-SLAPP statute, and Bottini did not
present admissible evidence of facts that, if believed by the trier of fact, would support a
judgment in its favor. We affirm the order striking Bottini's claims.
IV
ANALYSIS OF RULING ON ATTORNEY FEES AWARD
Bottini contends that, even assuming the motion to strike was properly granted, the
trial court's award of attorney fees should be reversed because the trial court erred in
calculating the lodestar amount with respect to the number of hours billed and the hourly
rate charged.
29
A. The Award
Legacy submitted the declaration of attorney Maasch stating he had been retained
specifically to bring the underlying anti-SLAPP motion and had expended approximately
59.6 hours at a billable hourly rate of $325, for a total amount of $19,730, and submitted
invoices and a "pre-bill" worksheet (with some redactions) in support of the services he
provided in connection with the anti-SLAPP motion. Legacy also submitted the
declaration of attorney Hager averring he had spent a total of 19.4 hours at a billable
hourly rate of $275, for a total amount of $5,335, and submitted an invoice (with some
items eliminated as involving services unrelated to the anti-SLAPP motion) in support of
the services he provided in connection with the anti-SLAPP motion.
In opposition to the motion, Bottini objected that one of the tasks listed by Maasch
(the time spent drafting an association of counsel) was unrelated to the anti-SLAPP
motion, and that the lack of detail as to the precise tasks Maasch performed warranted
reduction of the award under Christian Research Institute v. Alnor (2008) 165
Cal.App.4th 1315 (Christian Research). Bottini also objected that the number of hours
billed was unreasonable because (1) the motion to strike was simple and straightforward
and (2) many of the tasks "failed to contribute to the success" of the motion. Bottini also
objected that Hager's time should be disallowed because Maasch was the only counsel
necessary to the motion as an anti-SLAPP specialist, and many of the tasks performed by
Hager were duplicative of tasks performed by Maasch, and therefore Hager's time should
be disallowed as "padding" under Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132
30
(Ketchum). Finally, Bottini objected that there was no showing the hourly rates charged
by Maasch and Hager were reasonable.
The court found the hourly rates charged by Maasch and Hager were reasonable,
and reduced the award by eliminating one item (the time spent by Maasch drafting the
association of counsel) and reducing the request by 10 percent to account for the
overlapping time spent by both attorneys. Accordingly, the court awarded $23,112 as
reasonable attorney fees.
B. Legal Framework
The anti-SLAPP statute provides for an award of attorney fees and costs to the
prevailing defendant on a special motion to strike. (§ 425.16, subd. (c).) The defendant
may recover fees and costs only for the motion to strike, not the entire litigation. (S. B.
Beach Properties v. Berti (2006) 39 Cal.4th 374, 381; Lafayette Morehouse, Inc. v.
Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) The defendant may claim
fees and costs either as part of the anti-SLAPP motion itself or by filing a subsequent
motion or cost memorandum. (American Humane Assn. v. Los Angeles Times
Communications (2001) 92 Cal.App.4th 1095, 1097.)
Because the Legislature specified the prevailing defendant "shall be entitled to
recover his or her attorney's fees and costs" (§ 425.16, subd. (c)), an award is usually
mandatory (see Ketchum, supra, 24 Cal.4th at p. 1131), although the amount of the award
is vested in the sound discretion of the trial court. (Id. at p. 1132.) As the moving party,
the prevailing defendant seeking fees and costs " 'bear[s] the burden of establishing
31
entitlement to an award and documenting the appropriate hours expended and hourly
rates.' " (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) 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. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)
"The law is clear . . . that an award of attorney fees may be based on counsel's
declarations, without production of detailed time records." (Ibid.; see G.R. v. Intelligator
(2010) 185 Cal.App.4th 606, 620.)
A trial court "assessing attorney fees begins with a touchstone or lodestar figure,
based on the 'careful compilation of the time spent and reasonable hourly compensation
of each attorney . . . involved in the presentation of the case.' " (Ketchum, supra, 24
Cal.4th at pp. 1131-1132.) The court tabulates the attorney fee lodestar by multiplying
the number of hours reasonably expended by the reasonable hourly rate prevailing in the
community for similar work, although the court has discretion to increase or decrease that
lodestar amount depending on a variety of factors. (Id. at p. 1134.) Trial judges are
entrusted with this discretionary determination because they are in the best position to
assess the value of the professional services rendered in their courts. (Id. at p. 1132;
accord, PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096.)
We review an anti-SLAPP attorney fee award under the deferential abuse of
discretion standard. (Ketchum, supra, 24 Cal.4th at p. 1130.) The trial court's fee
determination " ' "will not be disturbed unless the appellate court is convinced that it is
32
clearly wrong." ' " (Id. at p. 1132.) An attorney fee dispute is not exempt from generally
applicable appellate principles: "The judgment of the trial court is presumed correct; all
intendments and presumptions are indulged to support the judgment; conflicts in the
declarations must be resolved in favor of the prevailing party, and the trial court's
resolution of any factual disputes arising from the evidence is conclusive." (In re
Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 561-562.) We may not reweigh on
appeal a trial court's assessment of an attorney's declaration (Johnson v. Pratt & Whitney
Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623) and it is for the trial court "to assess
credibility and resolve any conflicts in the evidence. Its findings . . . are entitled to great
weight. Even though contrary findings could have been made, an appellate court should
defer to the factual determinations made by the trial court when the evidence is in
conflict. This is true whether the trial court's ruling is based on oral testimony or
Bottini's first complaint—that the trial court's award was an abuse of discretion
because there was no evidence the hourly rates charged by Hager and Maasch were
reasonable—is meritless. Trial judges are entrusted with this determination because they
are in the best position to assess the value of the professional services rendered in their
courts. (Ketchum, supra, 24 Cal.4th at p. 1132; accord, PLCM Group, Inc. v. Drexler,
supra, 22 Cal.4th at pp. 1095-1096.) Moreover, both Hager and Maasch averred the
hourly rates they charged were commensurate with the rates charged by attorneys of
33
similar experience within the community. There was ample basis for the trial court to
find the hourly rates charged by Maasch and Hager were reasonable.
Bottini also argues the amount of the fee award was an abuse of discretion because
Legacy supported its fee request with a declaration from its attorney specifying the total
amount of time spent by each counsel with bills that only summarized the types of tasks
undertaken during those hours.9 Bottini contends, under Christian Research, supra, 165
Cal.App.4th 1315, the trial court could make no award without itemized billing records
and statements identifying each specific task performed in connection with the anti-
SLAPP motion.
However, an analogous argument was rejected in Raining Data Corp. v.
Barrenechea, supra, 175 Cal.App.4th 1363. In rejecting the challenge by Barrenechea to
the attorney fees awarded to Raining Data following its successful anti-SLAPP motion,
the court explained:
"Barrenechea contends Raining Data failed to meet its initial burden to establish the reasonableness of the fees incurred because it did not submit its attorneys' billing statements. Barrenechea claims the declarations from Raining Data's attorneys 'do not provide any basis
9 Bottini also argues that, because this was a "relatively easy and straightforward" anti-SLAPP motion, a large award is improper. However, Bottini's opening and reply briefs on appeal total nearly 90 pages on the merits alone, thereby belying Bottini's characterization this was a "relatively easy and straightforward" anti-SLAPP motion. Bottini also suggests that some of the work performed by Legacy's attorneys, including evidentiary objections that were later overruled and preparation of a supplemental declaration to which many objections were later sustained, should have been disallowed because it was unsuccessful. Bottini cites no authority that an attorney fee award may only be premised on those discrete tasks that produced some benefit to the overall ruling, and we decline to adopt that approach here.
34
for determining how much time was spent by any one attorney on any particular claims. Rather, the declarations give broad descriptions to the work provided by each attorney. The declarations are devoid of any information to allow the trial court to determine whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.' The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records. [Citations.] Raining Data's attorneys provided declarations detailing their experience and expertise supporting their billing rates, and explained the work provided to Raining Data." (Id. at p. 1375, italics added.)
Similarly, in G.R. v. Intelligator, supra, 185 Cal.App.4th 606, the party whose
claim was stricken challenged the attorney fees award contending, in part, that "the
attorney declaration filed in support of the request for fees and costs was insufficiently
detailed for the court to determine whether the time spent and work performed were
reasonable and whether part of the time might actually have been spent [on matters
unrelated to the anti-SLAPP motion]." (Id. at p. 620.) The court, rejecting this challenge,
explained "the trial court chose to accept the declaration of Intelligator's attorney as
sufficient proof of the attorney's hourly rate, the time spent, and the reasonableness of the
time spent. 'We may not reweigh on appeal a trial court's assessment of an attorney's
declaration[,] [citation]' [(quoting Christian Research, supra, 165 Cal.App.4th at
p. 1323)] and we see no abuse of discretion under the circumstances of this case in the
court's decision not to require Intelligator's attorney to supply time records in support of
her declaration." (Ibid.)
Bottini's reliance on Christian Research, supra, 165 Cal.App.4th 1315 provides no
assistance. In that case, the appellate court (although noting a trial court may require the
35
movant to produce additional records and may reduce compensation on account of any
failure to maintain appropriate time records) specifically affirmed that the trial court's
discretion in calculating a fee award is broad (id. at p. 1321) and an appellate court "may
not reweigh on appeal a trial court's assessment of an attorney's declaration [in support of
the fee award]." (Id. at p. 1323.) The court's statement of what a trial court may require
is not the equivalent of a holding that a trial court must seek additional documentation
before making a fee award. The trial court here was satisfied with the detail provided by
the attorneys' declarations and, paraphrasing the G.R. v. Intelligator court, "we see no
abuse of discretion under the circumstances of this case in the court's decision not to
require [Legacy's] attorney to supply time records in support of [the attorney's]
declaration." (G.R. v. Intelligator, supra, 185 Cal.App.4th at p. 620.)
We conclude Bottini has not demonstrated the award was a clear abuse of the trial
court's discretion, and we therefore affirm the award of attorney fees.
DISPOSITION
The judgment is affirmed. Defendants are entitled to costs on appeal.
McDONALD, J. WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
36
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's communications to a city council regarding a historical designation application constituted protected petitioning activity under the anti-SLAPP statute, and the plaintiff failed to demonstrate a probability of prevailing on the merits.
Issues
Whether the defendant's conduct in providing a report to a city council and third parties for use in a government appeal constitutes protected activity under the anti-SLAPP statute.
Whether the plaintiff demonstrated a probability of success on the merits for claims of intentional interference and breach of the implied covenant of good faith and fair dealing.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.”
“The trial court correctly held Legacy satisfied the first prong, by showing Bottini's lawsuit was premised on protected activity, and correctly found Bottini did not show probable success on the merits.”