Preview
Yosef Peretz (SBN 209288)
1 yperetz@peretzlaw.com
2 David Garibaldi (SBN 313641)
dgaribaldi@peretzlaw.com
3 PERETZ & ASSOCIATES
22 Battery Street, Suite 200
4 San Francisco, CA 94111
5 Tel: 415.732.3777
Fax: 415.732.3791
6
Attorneys for Defendants NIMMER MASSIS,
7 JENNIFER NUSHWAT, and GEORGE WYNNS
8
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9 IN THE COUNTY OF SAN MATEO
10 TREASA GAVIN, PATRICK GAVIN, and Case No. 20-CIV-03806
11 JOHN GAVIN
REQUEST FOR JUDICIAL NOTICE IN
12 Plaintiffs, SUPPORT OF DEFENDANTS’ MOTION
FOR REASONABLE ATTORNEYS’ FEES
13 v. AND COSTS FOLLOWING SUCCESSFUL
14 ANTI-SLAPP MOTION
NIMER MASSIS, JENNIFER NUSHWAT,
15 GEORGE WYNNS, and DOES 1-20,
Date: October 13, 2022
16 Defendants. Time: 2:00 p.m.
Dept.: 22
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Defendants NIMER MASSIS, JENNIFER NUSHWAT, AND GEORGE WYNNS
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(“Defendants”) respectfully request the Court to take judicial notice of the following exhibits
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pursuant to California Evidence Code §§ 452 and 453:
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EXHIBIT “1”: Order on Defendants’ Special Motion to Strike Pursuant to Code of Civil
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Procedure § 425.16, Granting it in Part and Denying it in Part, dated March 26, 2021.
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EXHIBIT “2”: Initial Complaint filed by Plaintiffs in this action, dated September 4, 2020.
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EXHIBIT “3”: Motion for Reasonable Attorney’s Fees and Costs following the granting of
27 a partially successful Anti Slapp Motion filed by Defendants, dated April 2, 2021.
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REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’ FEES AND
COSTS FOLLOWING SUCCESSFUL ANTI-SLAPP MOTION
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EXHIBIT “4”: Notice of Bankruptcy Filing and Automatic stay of the proceedings filed by
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Patrick Gavin, dated April 5, 2021.
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EXHIBIT “5”: Notice of Stay of Proceedings filed by Defendants, dated April 29, 2021.
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EXHIBIT “6”: Notice of Termination or Modification of Stay filed by Plaintiffs, dated, July
4 28, 2022.
5 EXHIBIT “7”: Order on Defendants’ Demurrer, Overruling it in Part and Sustaining it in
6 Part with Leave to Amend, dated March 26, 2021.
7
8 Dated: September 6, 2022 PERETZ & ASSOCIATES
9
By: _________________________
10 Yosef Peretz
11 David Garibaldi
Attorneys for Plaintiffs
12 NIMER MASSIS, JENNIFER
NUSHWAT, AND GEORGE WYNNS
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REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’ FEES AND
COSTS FOLLOWING SUCCESSFUL ANTI-SLAPP MOTION
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EXHIBIT 1
EXHIBIT 2
EXHIBIT 3
Yosef Peretz (SBN 209288)
1 yperetz@peretzlaw.com
2 David Garibaldi (SBN 313641)
dgaribaldi@peretzlaw.com
3 PERETZ & ASSOCIATES
22 Battery Street, Suite 200
4 San Francisco, CA 94111
5 Tel: 415.732.3777
Fax: 415.732.3791
6
Attorneys for Defendants NIMMER MASSIS,
7 JENNIFER NUSHWAT, and GEORGE WYNNS
8
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9 IN THE COUNTY OF SAN MATEO
10 TREASA GAVIN, PATRICK GAVIN, and Case No. 20-CIV-03806
11 JOHN GAVIN
NOTICE OF MOTION AND
12 Plaintiffs, DEFENDANTS’ MOTION FOR
13 REASONABLE ATTORNEYS’ FEES AND
v. COSTS FOLLOWING SUCCESSFUL
14
ANTI-SLAPP MOTION
15 NIMER MASSIS, JENNIFER NUSHWAT,
GEORGE WYNNS, and DOES 1-20,
16
Date: May 13, 2021
17 Defendants. Time: 2:00 p.m.
Dept.: 22
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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Please take notice that on May 13, 2021 at 2:00 p.m. or as soon thereafter as the matter
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may be heard, in Department 22 of the San Mateo Superior Court, 400 County Center, Redwood
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City, CA 94063, Defendants NIMER MASSIS, JENNIFER NUSHWAT, AND GEORGE
25 WYNNS (“Defendants”) will and hereby do move the Court for an order awarding them
26 reasonable attorneys’ fees and costs following their successful Special Motion to Strike the
27 Complaint filed by Plaintiffs TREASA GAVIN, PATRICK GAVIN, and JOHN GAVIN
28 (“Plaintiffs”) pursuant to Code of Civil Procedure (“CCP”) § 425.16.
NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’ FEES AND COSTS FOLLOWING
SUCCESSFUL ANTI-SLAPP MOTION
-1-
Defendants are entitled to recovery their attorneys’ fees and costs incurred on relation to
1
pursuing the Anti-SLAPP Motion as a matter of right because they are prevailing parties to that
2
motion. Defendants seek the award of no less than $43,770.78, comprised of $37,905.75 in fees
3
incurred for work to prepare and prevail on the Anti-SLAPP Motion, $5,027.50 in fees incurred
4 to prepare this fee motion, and $837.53 in costs to date, as well as additional amounts to be
5 substantiated at the time of the Reply to this motion. These amounts are reasonable under all
6 applicable authorities and should be awarded.
7 This motion is based upon this Notice of Motion and Motion For Reasonable Attorneys’
8 Fees and Costs Following Successful Anti-SLAPP Motion, the accompanying Memorandum of
Points and Authorities in Support of the Motion, the Declaration of Yosef Peretz in Support of
9
the Motion, the Declaration of David Garibaldi in Support of the Motion, the Request for Judicial
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Notice in Support of the Motion, all filed and served herewith, all records and proceedings in this
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action, all further matters as may be presented to the Court in connection with the hearing on this
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Motion, and on any other matters that the Court deems just and proper to consider.
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17 Dated: April 2, 2021 PERETZ & ASSOCIATES
18
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By: _________________________
20 Yosef Peretz
21 David Garibaldi
Attorneys for Plaintiffs
22 NIMER MASSIS, JENNIFER
NUSHWAT, AND GEORGE WYNNS
23
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25
26
27
28
NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’ FEES AND COSTS FOLLOWING
SUCCESSFUL ANTI-SLAPP MOTION
-2-
Yosef Peretz (SBN 209288)
1 yperetz@peretzlaw.com
2 David Garibaldi (SBN 313641)
dgaribaldi@peretzlaw.com
3 PERETZ & ASSOCIATES
22 Battery Street, Suite 200
4 San Francisco, CA 94111
5 Tel: 415.732.3777
Fax: 415.732.3791
6
Attorneys for Defendants NIMMER MASSIS,
7 JENNIFER NUSHWAT, and GEORGE WYNNS
8
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9 IN THE COUNTY OF SAN MATEO
10 TREASA GAVIN, PATRICK GAVIN, and Case No. 20-CIV-03806
11 JOHN GAVIN
MEMORANDUM OF POINTS AND
12 Plaintiffs, AUTHORITIES IN SUPPORT OF
DEFENDANTS’ MOTION FOR
13 v. REASONABLE ATTORNEYS’ FEES AND
14 COSTS FOLLOWING SUCCESSFUL
NIMER MASSIS, JENNIFER NUSHWAT, ANTI-SLAPP MOTION
15 GEORGE WYNNS, and DOES 1-20,
16 Defendants. Date: May 13, 2021
Time: 2:00 p.m.
17
Dept.: 22
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’
FEES AND COSTS FOLLOWING SUCCESSFUL ANTI-SLAPP MOTION
i
1
2 TABLE OF CONTENTS
I. INTRODUCTION .......................................................................................................... - 1 -
3
II. FACTUAL AND PROCEDURAL BACKGROUND.................................................. - 2 -
4
III. LEGAL ARGUMENT ................................................................................................... - 4 -
5 A. Legal Standard on Award of Attorneys’ Fees After a Defendant Prevails on a
Special Motion to Strike ..................................................................................................... - 4 -
6
B. The Hours Incurred by Defendants’ Attorneys Relating to the Anti-SLAPP Motion
7 were Reasonable, Necessary, and Appropriate................................................................ - 6 -
8 C. Defense Counsel’s Hourly Rates are Reasonable and Consistent with Comparable
Hourly Rates in the Bay Area Legal Market, and Have Been Approved by Other
9 Courts .................................................................................................................................. - 8 -
10 D. Defendants are also Entitled to Recover the Attorneys’ Fees Incurred in Preparing
the Instant Fee Motion ..................................................................................................... - 10 -
11
E. Defendants are also Entitled to Recover Their Costs ............................................ - 11 -
12 F. While No Deduction is Warranted, Defendants Propose a Deduction of No Less
than 10% in the Event the Court Determines a Deduction is Appropriate ................ - 11 -
13
IV. CONCLUSION ............................................................................................................. - 12 -
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’
FEES AND COSTS FOLLOWING SUCCESSFUL ANTI-SLAPP MOTION
ii
TABLE OF AUTHORITIES
1
2 Cases
Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924 ................................................. - 5 -
3
Children’s Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal.App.4th 740 ....................................... - 8 -
4
Church of Scientology of California v. Wollerscheim (1996) 42 Cal.App.4th 628 ................. - 5 -
5
Coltrain v. Shewalter (1998) 66 Cal.App.4th 94 ..................................................................... - 5 -
6
ComputerXpress v. Jackson (2001) 93 Cal.App.4th 993 ......................................................... - 4 -
7 Dove Audio, Inc. v. Rosenfeld, Mayer & Susman (1996) 47 Cal.App.4th 777 ........................ - 4 -
8 Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553...................................................... - 8 -
9 Ketchum v. Moses (2011) 24 Cal.4th 1122 .................................................... - 1 -, - 4 -, - 5 -, - 6 -
10 Liu v. Moore (1999) 69 Cal.App.4th 745................................................................................. - 1 -
Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459 ..................................................... - 8 -
11
Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328 .................................... - 4 -
12
Moore v. Jas. H. Matthews & Co. (9th Cir. 1982) 682 F. 2d 830 ........................................... - 6 -
13
Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424 .......................... - 5 -
14
Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363 ...................................... - 11 -
15 Ramon v. County of Santa Clara (2009) 173 Cal. App. 4th 915 ............................................. - 6 -
16 Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811 ................................................. - 7 -
17 Statutes
18 CCP § 1032(a)(4) ..................................................................................................................... - 5 -
19 CCP § 425.16 .................................................................................................................. - 1 -, - 3 -
20 CCP § 425.16(c)............................................................................................................ - 4 -, - 11 -
21 CCP § 425.16(c)(1) ................................................................................................................ - 13 -
CCP § 473(b) ........................................................................................................................... - 7 -
22
23
24
25
26
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’
FEES AND COSTS FOLLOWING SUCCESSFUL ANTI-SLAPP MOTION
iii
I. INTRODUCTION
1
On March 26, 2021, this Court entered an order granting in part Defendants NIMER
2
MASSIS (“Massis”), JENNIFER NUSHWAT (“Nushwat”), and GEORGE WYNNS’ (“Wynns”)
3
(collectively, “Defendants”) Special Motion to Strike Plaintiffs PATRICK GAVIN (“Patrick”),
4 JOHN GAVIN (“John”), and TREASA GAVIN’s (collectively, the “Gavins”) Complaint
5 pursuant to Code of Civil Procedure (“CCP”) § 425.16. Under CCP § 425.16, prevailing
6 defendants are entitled as a matter of right to recover their attorneys’ fees and costs incurred in
7 relation to pursuing the Anti-SLAPP Motion. See also Ketchum v. Moses (2011) 24 Cal.4th 1122,
8 1131. CCP § 425.16(c) in particular was enacted to provide “financial relief in the form of
attorneys’ fees and costs to persons who have been victimized by meritless, retaliatory SLAPP
9
lawsuits.” Liu v. Moore (1999) 69 Cal.App.4th 745, 750.
10
Any award of attorneys’ fees costs under CCP § 425.16 must be based on a reasonable
11
“lodestar” amount, which is based on all hours reasonable spent by the attorney and on a
12
reasonable rate of hourly compensation for each attorney who incurred hours. See generally,
13 Ketchum, supra, 24 Cal.4th at 1131-33. The lodestar must also be compared to comparable legal
14 services in the same community and should be adjusted based on a wide variety of relevant factors
15 relating to the litigation. Here, Defendants’ counsel seek attorneys’ fees based 66.8 total hours
16 incurred in preparing and arguing the Anti-SLAPP Motion, calculated using their 2020 rates of
$725/hour for Yosef Peretz, Esq. as the lead trial lawyer with 20 years of extensive litigation and
17
trial experience, and $525/hour for David Garibaldi, Esq., a now fifth-year associate attorney
18
with significant litigation and trial experience. The number of hours incurred by Defendants’
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attorneys on work relating to the Anti-SLAPP Motion is fully consistent with prior awards
20
affirmed by other courts in comparable SLAPP cases. Counsel’s hourly rates, meanwhile, are
21 fully consistent with their experience, comparable legal rates in the San Francisco Bay Area legal
22 market, and multiple prior court orders affirming hourly rates for Mr. Peretz and associates of the
23 firm in line with these rates. Based on these reasonable hourly rates and contemporaneous billing
24 records submitted by Defense counsel in support of this motion, Defendants have established the
25 reasonableness of their requested lodestar amount.
Further, while Defendants only partially rather than fully prevailed on the instant Anti-
26
SLAPP Motion, Defendants are nevertheless entitled to an attorneys’ fee award without
27
deduction. Defendants achieved a substantial litigation victory through the Anti-SLAPP Motion
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT
PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
1
even if some of Plaintiffs’ claims survived it. Among other things, Defendants secured the
1
dismissal of Plaintiffs’ fourth and fifth causes of action, substantially limited any future
2
allegations in scope, and achieved a full dismissal of all claims alleged against Wynns, thereby
3
advancing Defendants’ litigation posture, narrowing the future factual and legal issues to be
4 litigated, and reducing their own future litigation expenses—including eliminating Wynns’ future
5 expenses entirely). Moreover, the Court found in a concurrent demurrer filed by Defendants that
6 the causes of action which survived the Anti-SLAPP Motion were inadequately pled, which
7 ironically may have contributed to their survival on the Anti-SLAPP. As such, survival of these
8 claims should not serve to reduce Defendants’ entitlement to a fee award. At best, their survival
warrants a reduction of no more than 10% of the overall fees.
9
As such, Defendants respectfully request that this Court award their reasonable attorneys’
10
fees and costs against Plaintiffs in the amount of no less than $43,770.78, comprised of
11
$37,905.75 in fees incurred for work to prepare and prevail on the Anti-SLAPP Motion, $5,027.50
12
in fees incurred to prepare this fee motion, and $837.53 in costs to date, as well as additional
13 amounts to be substantiated at the time of the Reply to this motion.
14 II. FACTUAL AND PROCEDURAL BACKGROUND
15 On September 4, 2020, Plaintiffs initiated this action by filing a Complaint against
16 Defendants alleging claims for fraudulent concealment, fraudulent misrepresentation, fraudulent
inducement, an action to set aside an earlier default judgment, and common count/unjust
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enrichment. Plaintiffs accused Defendants of initiating an action against Patrick and John in San
18
Francisco Superior Court, Massis, et al. v. Gavin, et al., CGC-18-567965 (the “Prior Action”).
19
[The Complaint is attached to Defendants’ Request for Judicial Notice (“RJN”) in Support of this
20
Motion at Exhibit 2 (“Compl.”), at ¶ 19.] Plaintiffs alleged that Massis fraudulently claimed in
21 the Prior Action that Patrick and John had breached a purchase agreement for a liquor store which
22 Plaintiffs claim had been “cancelled” long before its alleged breach. [Id. at ¶ 20.] Plaintiffs further
23 alleged that Massis made misrepresentations to the Court during the pendency of the Prior Action
24 and obtained a default judgment against Patrick and John under false pretenses. [Id. at ¶¶ 20-22.]
25 Plaintiffs further alleged that in August 2020, they explained to Wynns—who represented Massis
in the Prior Action—that the default was taken under false pretenses and assert that Defendants
26
did not deny the accusation but Wynns claimed it was too late to challenge the judgment. [Id. at
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¶¶ 22, 58.] Plaintiffs assert that thereafter, Wynns, acting as agent for Massis and Nushwat and
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT
PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
2
“[a]cting beyond the scope of any judicial or other lawful authority” initiated collection actions
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by posting “notices of an Order entitling him to rents….at 226 Hyde Street, San Francisco, CA”
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rendering Defendants as “de facto managers of the property” and establishing themselves as
3
“individuals with the rights to the rents at 226 Hyde.” [Id. at ¶¶ 63-66.] Finally, Plaintiffs allege
4 that Defendants did not “subtract the rents [they collected] and rights to rent from the judgment
5 debt” presented to Plaintiffs, thereby entitling Plaintiffs to a proportionate reduction in the
6 judgment and for actual damages. [Id. at ¶¶ 67-69.] Based on those allegations, Plaintiffs sought
7 as their fourth cause of action equitable relief from this court to set aside the default judgment
8 issued in the Prior Action. [Id. at ¶¶ 53-60.] Further, Plaintiffs also alleged as their fifth cause of
action that Defendants had been unjustly enriched by engaging in collections efforts to enforce
9
the default judgment, and that Defendants should be disgorged of those purported gains. [Id. at
10
¶¶ 61-69.] As phrased, there were hardly any cognizable claims against Wynns or Nushwat.
11
Allegations against Wynns seemed to be based solely on his efforts to engage in collections efforts
12
by posting “notices of an Order entitling him to rents….at 226 Hyde Street, San Francisco, CA.”
13 [Id. at ¶ 63.] As for Nushwat, there were zero allegations concerning any direct conduct by her,
14 other than her having entered into the purchase agreement for the liquor store with John and
15 Patrick and her alleged to be Massis’ “business partner” and “wife.” [Id. at ¶¶ 11, 25.]
16 On November 25, 2020, Defendants filed a Special Motion to Strike all causes of action
from the Complaint pursuant to CCP § 425.16. After extensive briefing and oral argument that
17
took place on February 11, 2021, on March 26, 2021, the Court entered an order granting the
18
Special Motion to Strike with respect to the fourth and fifth causes of action. [RJN at Exhibit 1.]
19
Defendants successfully argued that the fourth and fifth causes of action both arose out of
20
protected activity and that Plaintiffs could not show a possibility of prevailing on the merits of
21 either claim. [Id.] Plaintiffs could not prevail on the fourth cause of action because they failed to
22 show the existence of any extrinsic fraud or mistake necessary for equitable relief to set aside a
23 default judgment when over six (6) months have passed since its entry. [Id.] Plaintiffs could not
24 prevail on their fifth cause of action because all of Defendants’ efforts to collect upon and enforce
25 the default judgment are protected by the litigation privilege. [Id.] For those reasons, the fourth
and fifth causes of action were stricken in their entirety. As a result, Wynns was completed
26
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT
PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
3
dismissed from this case, and Plaintiffs’ sole causes of actions may only be based on alleged
1
fraudulent conduct that preceded the entry of judgment in the Prior Action1.
2
III. LEGAL ARGUMENT
3
A. Legal Standard on Award of Attorneys’ Fees After a Defendant Prevails on
4 a Special Motion to Strike
5 CCP § 425.16(c) expressly provides that “a prevailing defendant on a special motion to
strike shall be entitled to recover his or her attorney’s fees and costs.” (emphasis added.) The fee
6
award “should ordinarily include compensation for all the hours reasonably spent, including those
7
relating solely to the fee.” Id. (emphasis in original). Thus, an award of attorneys’ fees for a
8
prevailing defendant is mandatory under the Anti-SLAPP statute. See Ketchum, supra, 24 Cal.4th
9 at 1131. This provision was enacted to discourage the filing of frivolous SLAPP suits “by
10 imposing the litigation costs on the party” filing the SLAPP suit. Id. The statute’s fee provision
11 is intended to “adequately compensate the defendant for the expense of responding to a baseless
12 lawsuit.” Dove Audio, Inc. v. Rosenfeld, Mayer & Susman (1996) 47 Cal.App.4th 777, 785.
13 A defendant who partially succeeds on an Anti-SLAPP motion is generally considered a
prevailing party and may be awarded his or her fees and costs unless “the results of the motion
14
were minimal and insignificant” so that defendant did not achieve any “practical benefit” from
15
bringing the motion; this determination lies within the “broad discretion” of the trial court. Mann
16
v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340 (“Mann”). In general, due to
17
“the Legislature’s strong preference for awarding attorney fees to successful defendants…the
18 phrase ‘prevailing party’ should be interpreted broadly to favor an award of attorney fees to a
19 partially successful defendant. Id. at 338, citing ComputerXpress v. Jackson (2001) 93
20 Cal.App.4th 993, 1018. Factors to be considered in this analysis include (1) the extent to which
21 the defendant’s litigation posture was advanced by the motion; (2) whether the same factual
22 allegations remain to be litigated; (3) whether discovery and motion practice have been narrowed;
and (4) the extent to which future litigation expenses were impacted by the motion. Mann, supra,
23
at 345.
24
Here, Defendants are entitled to an award of their fees and costs because the results of the
25
Anti-SLAPP Motion were not minimal and did result in a practical benefit to Defendants, by
26
27 1
Defendants expect to file an appeal and/or motion to strike the three remaining causes of actions
28 in Plaintiffs’ amended given that they are all barred through res judicata and collateral estoppel.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT
PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
4
securing the dismissal of two of Plaintiffs’ causes of action, those most central to their factual
1
allegations; by dismissing Wynns completely from this action; and by limiting the claims brought
2
by Plaintiffs to only include fraud that preceded the Prior Action. See, e.g., Morrow v. Los Angeles
3
Unified School Dist. (2007) 149 Cal.App.4th 1424, 1446 (dismissal of two causes of action
4 “cannot be considered trivial victories for defendants in the context of this case”); Bel Air Internet,
5 LLC v. Morales (2018) 20 Cal.App.5th 924, 946 (dismissal of one cause of action and elimination
6 of a theory of breach of contract applicable to two other causes of action entitled defendants to
7 attorneys’ fees following their Anti-SLAPP motion); Coltrain v. Shewalter (1998) 66 Cal.App.4th
8 94, 107 (defendants were held to be prevailing parties where plaintiff voluntarily dismissed an
alleged SLAPP suit while the Anti-SLAPP motion was pending, as the dismissal caused
9
defendants to realize their litigation objective behind the motion); see also CCP § 1032(a)(4)
10
(defining a “prevailing party” as including “a defendant in whose favor a dismissal is entered.”).
11
Calculating the amount of a fee award under CCP § 425.16 begins by deciding the
12
“lodestar,” defined as “the number of hours reasonable expended multiplied by the reasonable
13 hourly rate.” Ketchum, supra, 24 Cal.4th at 1131. The lodestar approach begins with a
14 determination of the “careful compilation of the time spent and reasonable hourly compensation
15 of each attorney.” Id. at 1131-32. The court next determines whether that lodestar figure is
16 comparable to legal services in the same community and whether it should be adjusted based on
relevant factors including “(1) the novelty and difficulty of the questions involved, (2) the skill
17
displayed in presenting them, (3) the extent to which the nature of the litigation precluded other
18
employment by the attorneys, (4) the contingent nature of the fee award.” Id. at 1132. The
19
“purpose of such adjustment is to fix a fee at the fair market value for the particular action.” Id.
20
Other factors the court should consider include “the nature of the litigation, its difficulty, the
21 amount involved, the skill required and the skill employed in handling the litigation, the attention
22 given, the success of the attorney’s efforts, his learning, his age, and his experience in the
23 particular type of work demanded; the intricacies and important of the litigation, the labor and
24 necessity for skilled legal training and ability in trying the cause, and the time consumed.” Church
25 of Scientology of California v. Wollerscheim (1996) 42 Cal.App.4th 628, 659. “The experienced
trial judge is the best judge of the value of professional services rendered in his court, and while
26
his judgment is of course subject to review, it will not be disturbed....” Ketchum, supra, 24 Cal.4th
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT
PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
5
at p. 1132. Applying these criteria, Defendants’ requested fees and costs are reasonable and
1
should be awarded.
2
B. The Hours Incurred by Defendants’ Attorneys Relating to the Anti-SLAPP
3 Motion were Reasonable, Necessary, and Appropriate
4 As stated above, a fee award to a prevailing defendant on an Anti-SLAPP motion “should
5 ordinarily include compensation for all the hours reasonably spent, including those relating solely
to the fee.” Ketchum, supra, 24 Cal.4th at 1133 (emphasis in original). Hours are reasonable if
6
“at the time rendered, [they] would have been undertaken by a reasonable and prudent lawyer to
7
advance or protect his client’s interest . . . .” Moore v. Jas. H. Matthews & Co. (9th Cir. 1982)
8
682 F. 2d 830, 839; see also Ramon v. County of Santa Clara (2009) 173 Cal. App. 4th 915, 925.
9 Accordingly, attorneys should be compensated for taking the steps that they reasonably believed
10 were necessary to prevail in this case. “By and large, the court should defer to the winning
11 lawyer’s professional judgment as to how much time he was required to spend on the case; after
12 all, he won and might not have, had he been more of a slacker.” Id.
13 Here, the hours actually incurred by Defendants’ counsel relating to the successful Anti-
SLAPP motion were reasonable. As outlined in the detailed time records maintained by
14
Defendants’ counsel and submitted in support of this motion, Defendants’ counsel billed no less
15
than $38,743.28 in attorneys’ fees and costs (comprised of $37,905.75 in fees and $837.53 in
16
costs) for conducting litigation work relating to the Anti-SLAPP Motion, including but not limited
17
to conferring with the clients; conducting relevant legal research; engaging in written meet and
18 confer communications with Plaintiffs’ counsel; engaging in discovery work relating to the Anti-
19 SLAPP Motion; drafting the motion itself and all supporting and reply papers; and attending the
20 hearing on the motion after Plaintiffs’ contested the Court’s tentative ruling, as described within
21 the contemporaneous billing records of Defendants’ counsel. [Declaration of Yosef Peretz in
22 Support of this Motion (“Peretz Decl.”) at ¶ 2, Exhibit 1.]
As reflected on the billing records, Defendants’ counsel spent no less than 62.8 total hours
23
of work on all of these tasks, 18.8 hours (18 hours and 48 minutes) incurred by lead counsel Yosef
24
Peretz, Esq. and 44.0 hours (44 hours and 2 minutes)2 incurred by David Garibaldi, Esq., a then
25
26
2
27 These numbers of hours were calculated manually using the numbers depicted on the invoice at
Peretz Decl, Ex. 1, by simply converting all quantities of hours depicted on the invoice into
28 minutes, adding up the minutes to one sum, and then converting that sum back into hours.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT
PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
6
fourth-year associate at Defense Counsel’s firm. [Id. at ¶ 2, Ex. 1.] These hours were all
1
reasonably necessary because an Anti-SLAPP motion is similar to a motion for summary
2
judgment and must be supported by admissible evidence sufficient to establish a complete defense
3
to the complaint, requiring a substantial investment of time greater than that required for most
4 other typical motions. See Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.
5 Defense counsel had to review the facts and circumstances relating to Plaintiff’s allegations in
Preview
Yosef Peretz (SBN 209288) 1 yperetz@peretzlaw.com 2 David Garibaldi (SBN 313641) dgaribaldi@peretzlaw.com 3 PERETZ & ASSOCIATES 22 Battery Street, Suite 200 4 San Francisco, CA 94111 5 Tel: 415.732.3777 Fax: 415.732.3791 6 Attorneys for Defendants NIMMER MASSIS, 7 JENNIFER NUSHWAT, and GEORGE WYNNS 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 IN THE COUNTY OF SAN MATEO 10 TREASA GAVIN, PATRICK GAVIN, and Case No. 20-CIV-03806 11 JOHN GAVIN REQUEST FOR JUDICIAL NOTICE IN 12 Plaintiffs, SUPPORT OF DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’ FEES 13 v. AND COSTS FOLLOWING SUCCESSFUL 14 ANTI-SLAPP MOTION NIMER MASSIS, JENNIFER NUSHWAT, 15 GEORGE WYNNS, and DOES 1-20, Date: October 13, 2022 16 Defendants. Time: 2:00 p.m. Dept.: 22 17 18 19 20 Defendants NIMER MASSIS, JENNIFER NUSHWAT, AND GEORGE WYNNS 21 (“Defendants”) respectfully request the Court to take judicial notice of the following exhibits 22 pursuant to California Evidence Code §§ 452 and 453: 23 EXHIBIT “1”: Order on Defendants’ Special Motion to Strike Pursuant to Code of Civil 24 Procedure § 425.16, Granting it in Part and Denying it in Part, dated March 26, 2021. 25 EXHIBIT “2”: Initial Complaint filed by Plaintiffs in this action, dated September 4, 2020. 26 EXHIBIT “3”: Motion for Reasonable Attorney’s Fees and Costs following the granting of 27 a partially successful Anti Slapp Motion filed by Defendants, dated April 2, 2021. 28 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’ FEES AND COSTS FOLLOWING SUCCESSFUL ANTI-SLAPP MOTION -1- EXHIBIT “4”: Notice of Bankruptcy Filing and Automatic stay of the proceedings filed by 1 Patrick Gavin, dated April 5, 2021. 2 EXHIBIT “5”: Notice of Stay of Proceedings filed by Defendants, dated April 29, 2021. 3 EXHIBIT “6”: Notice of Termination or Modification of Stay filed by Plaintiffs, dated, July 4 28, 2022. 5 EXHIBIT “7”: Order on Defendants’ Demurrer, Overruling it in Part and Sustaining it in 6 Part with Leave to Amend, dated March 26, 2021. 7 8 Dated: September 6, 2022 PERETZ & ASSOCIATES 9 By: _________________________ 10 Yosef Peretz 11 David Garibaldi Attorneys for Plaintiffs 12 NIMER MASSIS, JENNIFER NUSHWAT, AND GEORGE WYNNS 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’ FEES AND COSTS FOLLOWING SUCCESSFUL ANTI-SLAPP MOTION -2- EXHIBIT 1 EXHIBIT 2 EXHIBIT 3 Yosef Peretz (SBN 209288) 1 yperetz@peretzlaw.com 2 David Garibaldi (SBN 313641) dgaribaldi@peretzlaw.com 3 PERETZ & ASSOCIATES 22 Battery Street, Suite 200 4 San Francisco, CA 94111 5 Tel: 415.732.3777 Fax: 415.732.3791 6 Attorneys for Defendants NIMMER MASSIS, 7 JENNIFER NUSHWAT, and GEORGE WYNNS 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 IN THE COUNTY OF SAN MATEO 10 TREASA GAVIN, PATRICK GAVIN, and Case No. 20-CIV-03806 11 JOHN GAVIN NOTICE OF MOTION AND 12 Plaintiffs, DEFENDANTS’ MOTION FOR 13 REASONABLE ATTORNEYS’ FEES AND v. COSTS FOLLOWING SUCCESSFUL 14 ANTI-SLAPP MOTION 15 NIMER MASSIS, JENNIFER NUSHWAT, GEORGE WYNNS, and DOES 1-20, 16 Date: May 13, 2021 17 Defendants. Time: 2:00 p.m. Dept.: 22 18 19 20 21 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 22 Please take notice that on May 13, 2021 at 2:00 p.m. or as soon thereafter as the matter 23 may be heard, in Department 22 of the San Mateo Superior Court, 400 County Center, Redwood 24 City, CA 94063, Defendants NIMER MASSIS, JENNIFER NUSHWAT, AND GEORGE 25 WYNNS (“Defendants”) will and hereby do move the Court for an order awarding them 26 reasonable attorneys’ fees and costs following their successful Special Motion to Strike the 27 Complaint filed by Plaintiffs TREASA GAVIN, PATRICK GAVIN, and JOHN GAVIN 28 (“Plaintiffs”) pursuant to Code of Civil Procedure (“CCP”) § 425.16. NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’ FEES AND COSTS FOLLOWING SUCCESSFUL ANTI-SLAPP MOTION -1- Defendants are entitled to recovery their attorneys’ fees and costs incurred on relation to 1 pursuing the Anti-SLAPP Motion as a matter of right because they are prevailing parties to that 2 motion. Defendants seek the award of no less than $43,770.78, comprised of $37,905.75 in fees 3 incurred for work to prepare and prevail on the Anti-SLAPP Motion, $5,027.50 in fees incurred 4 to prepare this fee motion, and $837.53 in costs to date, as well as additional amounts to be 5 substantiated at the time of the Reply to this motion. These amounts are reasonable under all 6 applicable authorities and should be awarded. 7 This motion is based upon this Notice of Motion and Motion For Reasonable Attorneys’ 8 Fees and Costs Following Successful Anti-SLAPP Motion, the accompanying Memorandum of Points and Authorities in Support of the Motion, the Declaration of Yosef Peretz in Support of 9 the Motion, the Declaration of David Garibaldi in Support of the Motion, the Request for Judicial 10 Notice in Support of the Motion, all filed and served herewith, all records and proceedings in this 11 action, all further matters as may be presented to the Court in connection with the hearing on this 12 Motion, and on any other matters that the Court deems just and proper to consider. 13 14 15 16 17 Dated: April 2, 2021 PERETZ & ASSOCIATES 18 19 By: _________________________ 20 Yosef Peretz 21 David Garibaldi Attorneys for Plaintiffs 22 NIMER MASSIS, JENNIFER NUSHWAT, AND GEORGE WYNNS 23 24 25 26 27 28 NOTICE OF MOTION AND DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’ FEES AND COSTS FOLLOWING SUCCESSFUL ANTI-SLAPP MOTION -2- Yosef Peretz (SBN 209288) 1 yperetz@peretzlaw.com 2 David Garibaldi (SBN 313641) dgaribaldi@peretzlaw.com 3 PERETZ & ASSOCIATES 22 Battery Street, Suite 200 4 San Francisco, CA 94111 5 Tel: 415.732.3777 Fax: 415.732.3791 6 Attorneys for Defendants NIMMER MASSIS, 7 JENNIFER NUSHWAT, and GEORGE WYNNS 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 IN THE COUNTY OF SAN MATEO 10 TREASA GAVIN, PATRICK GAVIN, and Case No. 20-CIV-03806 11 JOHN GAVIN MEMORANDUM OF POINTS AND 12 Plaintiffs, AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR 13 v. REASONABLE ATTORNEYS’ FEES AND 14 COSTS FOLLOWING SUCCESSFUL NIMER MASSIS, JENNIFER NUSHWAT, ANTI-SLAPP MOTION 15 GEORGE WYNNS, and DOES 1-20, 16 Defendants. Date: May 13, 2021 Time: 2:00 p.m. 17 Dept.: 22 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’ FEES AND COSTS FOLLOWING SUCCESSFUL ANTI-SLAPP MOTION i 1 2 TABLE OF CONTENTS I. INTRODUCTION .......................................................................................................... - 1 - 3 II. FACTUAL AND PROCEDURAL BACKGROUND.................................................. - 2 - 4 III. LEGAL ARGUMENT ................................................................................................... - 4 - 5 A. Legal Standard on Award of Attorneys’ Fees After a Defendant Prevails on a Special Motion to Strike ..................................................................................................... - 4 - 6 B. The Hours Incurred by Defendants’ Attorneys Relating to the Anti-SLAPP Motion 7 were Reasonable, Necessary, and Appropriate................................................................ - 6 - 8 C. Defense Counsel’s Hourly Rates are Reasonable and Consistent with Comparable Hourly Rates in the Bay Area Legal Market, and Have Been Approved by Other 9 Courts .................................................................................................................................. - 8 - 10 D. Defendants are also Entitled to Recover the Attorneys’ Fees Incurred in Preparing the Instant Fee Motion ..................................................................................................... - 10 - 11 E. Defendants are also Entitled to Recover Their Costs ............................................ - 11 - 12 F. While No Deduction is Warranted, Defendants Propose a Deduction of No Less than 10% in the Event the Court Determines a Deduction is Appropriate ................ - 11 - 13 IV. CONCLUSION ............................................................................................................. - 12 - 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’ FEES AND COSTS FOLLOWING SUCCESSFUL ANTI-SLAPP MOTION ii TABLE OF AUTHORITIES 1 2 Cases Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924 ................................................. - 5 - 3 Children’s Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal.App.4th 740 ....................................... - 8 - 4 Church of Scientology of California v. Wollerscheim (1996) 42 Cal.App.4th 628 ................. - 5 - 5 Coltrain v. Shewalter (1998) 66 Cal.App.4th 94 ..................................................................... - 5 - 6 ComputerXpress v. Jackson (2001) 93 Cal.App.4th 993 ......................................................... - 4 - 7 Dove Audio, Inc. v. Rosenfeld, Mayer & Susman (1996) 47 Cal.App.4th 777 ........................ - 4 - 8 Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553...................................................... - 8 - 9 Ketchum v. Moses (2011) 24 Cal.4th 1122 .................................................... - 1 -, - 4 -, - 5 -, - 6 - 10 Liu v. Moore (1999) 69 Cal.App.4th 745................................................................................. - 1 - Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459 ..................................................... - 8 - 11 Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328 .................................... - 4 - 12 Moore v. Jas. H. Matthews & Co. (9th Cir. 1982) 682 F. 2d 830 ........................................... - 6 - 13 Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424 .......................... - 5 - 14 Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363 ...................................... - 11 - 15 Ramon v. County of Santa Clara (2009) 173 Cal. App. 4th 915 ............................................. - 6 - 16 Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811 ................................................. - 7 - 17 Statutes 18 CCP § 1032(a)(4) ..................................................................................................................... - 5 - 19 CCP § 425.16 .................................................................................................................. - 1 -, - 3 - 20 CCP § 425.16(c)............................................................................................................ - 4 -, - 11 - 21 CCP § 425.16(c)(1) ................................................................................................................ - 13 - CCP § 473(b) ........................................................................................................................... - 7 - 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR REASONABLE ATTORNEYS’ FEES AND COSTS FOLLOWING SUCCESSFUL ANTI-SLAPP MOTION iii I. INTRODUCTION 1 On March 26, 2021, this Court entered an order granting in part Defendants NIMER 2 MASSIS (“Massis”), JENNIFER NUSHWAT (“Nushwat”), and GEORGE WYNNS’ (“Wynns”) 3 (collectively, “Defendants”) Special Motion to Strike Plaintiffs PATRICK GAVIN (“Patrick”), 4 JOHN GAVIN (“John”), and TREASA GAVIN’s (collectively, the “Gavins”) Complaint 5 pursuant to Code of Civil Procedure (“CCP”) § 425.16. Under CCP § 425.16, prevailing 6 defendants are entitled as a matter of right to recover their attorneys’ fees and costs incurred in 7 relation to pursuing the Anti-SLAPP Motion. See also Ketchum v. Moses (2011) 24 Cal.4th 1122, 8 1131. CCP § 425.16(c) in particular was enacted to provide “financial relief in the form of attorneys’ fees and costs to persons who have been victimized by meritless, retaliatory SLAPP 9 lawsuits.” Liu v. Moore (1999) 69 Cal.App.4th 745, 750. 10 Any award of attorneys’ fees costs under CCP § 425.16 must be based on a reasonable 11 “lodestar” amount, which is based on all hours reasonable spent by the attorney and on a 12 reasonable rate of hourly compensation for each attorney who incurred hours. See generally, 13 Ketchum, supra, 24 Cal.4th at 1131-33. The lodestar must also be compared to comparable legal 14 services in the same community and should be adjusted based on a wide variety of relevant factors 15 relating to the litigation. Here, Defendants’ counsel seek attorneys’ fees based 66.8 total hours 16 incurred in preparing and arguing the Anti-SLAPP Motion, calculated using their 2020 rates of $725/hour for Yosef Peretz, Esq. as the lead trial lawyer with 20 years of extensive litigation and 17 trial experience, and $525/hour for David Garibaldi, Esq., a now fifth-year associate attorney 18 with significant litigation and trial experience. The number of hours incurred by Defendants’ 19 attorneys on work relating to the Anti-SLAPP Motion is fully consistent with prior awards 20 affirmed by other courts in comparable SLAPP cases. Counsel’s hourly rates, meanwhile, are 21 fully consistent with their experience, comparable legal rates in the San Francisco Bay Area legal 22 market, and multiple prior court orders affirming hourly rates for Mr. Peretz and associates of the 23 firm in line with these rates. Based on these reasonable hourly rates and contemporaneous billing 24 records submitted by Defense counsel in support of this motion, Defendants have established the 25 reasonableness of their requested lodestar amount. Further, while Defendants only partially rather than fully prevailed on the instant Anti- 26 SLAPP Motion, Defendants are nevertheless entitled to an attorneys’ fee award without 27 deduction. Defendants achieved a substantial litigation victory through the Anti-SLAPP Motion 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 1 even if some of Plaintiffs’ claims survived it. Among other things, Defendants secured the 1 dismissal of Plaintiffs’ fourth and fifth causes of action, substantially limited any future 2 allegations in scope, and achieved a full dismissal of all claims alleged against Wynns, thereby 3 advancing Defendants’ litigation posture, narrowing the future factual and legal issues to be 4 litigated, and reducing their own future litigation expenses—including eliminating Wynns’ future 5 expenses entirely). Moreover, the Court found in a concurrent demurrer filed by Defendants that 6 the causes of action which survived the Anti-SLAPP Motion were inadequately pled, which 7 ironically may have contributed to their survival on the Anti-SLAPP. As such, survival of these 8 claims should not serve to reduce Defendants’ entitlement to a fee award. At best, their survival warrants a reduction of no more than 10% of the overall fees. 9 As such, Defendants respectfully request that this Court award their reasonable attorneys’ 10 fees and costs against Plaintiffs in the amount of no less than $43,770.78, comprised of 11 $37,905.75 in fees incurred for work to prepare and prevail on the Anti-SLAPP Motion, $5,027.50 12 in fees incurred to prepare this fee motion, and $837.53 in costs to date, as well as additional 13 amounts to be substantiated at the time of the Reply to this motion. 14 II. FACTUAL AND PROCEDURAL BACKGROUND 15 On September 4, 2020, Plaintiffs initiated this action by filing a Complaint against 16 Defendants alleging claims for fraudulent concealment, fraudulent misrepresentation, fraudulent inducement, an action to set aside an earlier default judgment, and common count/unjust 17 enrichment. Plaintiffs accused Defendants of initiating an action against Patrick and John in San 18 Francisco Superior Court, Massis, et al. v. Gavin, et al., CGC-18-567965 (the “Prior Action”). 19 [The Complaint is attached to Defendants’ Request for Judicial Notice (“RJN”) in Support of this 20 Motion at Exhibit 2 (“Compl.”), at ¶ 19.] Plaintiffs alleged that Massis fraudulently claimed in 21 the Prior Action that Patrick and John had breached a purchase agreement for a liquor store which 22 Plaintiffs claim had been “cancelled” long before its alleged breach. [Id. at ¶ 20.] Plaintiffs further 23 alleged that Massis made misrepresentations to the Court during the pendency of the Prior Action 24 and obtained a default judgment against Patrick and John under false pretenses. [Id. at ¶¶ 20-22.] 25 Plaintiffs further alleged that in August 2020, they explained to Wynns—who represented Massis in the Prior Action—that the default was taken under false pretenses and assert that Defendants 26 did not deny the accusation but Wynns claimed it was too late to challenge the judgment. [Id. at 27 ¶¶ 22, 58.] Plaintiffs assert that thereafter, Wynns, acting as agent for Massis and Nushwat and 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 2 “[a]cting beyond the scope of any judicial or other lawful authority” initiated collection actions 1 by posting “notices of an Order entitling him to rents….at 226 Hyde Street, San Francisco, CA” 2 rendering Defendants as “de facto managers of the property” and establishing themselves as 3 “individuals with the rights to the rents at 226 Hyde.” [Id. at ¶¶ 63-66.] Finally, Plaintiffs allege 4 that Defendants did not “subtract the rents [they collected] and rights to rent from the judgment 5 debt” presented to Plaintiffs, thereby entitling Plaintiffs to a proportionate reduction in the 6 judgment and for actual damages. [Id. at ¶¶ 67-69.] Based on those allegations, Plaintiffs sought 7 as their fourth cause of action equitable relief from this court to set aside the default judgment 8 issued in the Prior Action. [Id. at ¶¶ 53-60.] Further, Plaintiffs also alleged as their fifth cause of action that Defendants had been unjustly enriched by engaging in collections efforts to enforce 9 the default judgment, and that Defendants should be disgorged of those purported gains. [Id. at 10 ¶¶ 61-69.] As phrased, there were hardly any cognizable claims against Wynns or Nushwat. 11 Allegations against Wynns seemed to be based solely on his efforts to engage in collections efforts 12 by posting “notices of an Order entitling him to rents….at 226 Hyde Street, San Francisco, CA.” 13 [Id. at ¶ 63.] As for Nushwat, there were zero allegations concerning any direct conduct by her, 14 other than her having entered into the purchase agreement for the liquor store with John and 15 Patrick and her alleged to be Massis’ “business partner” and “wife.” [Id. at ¶¶ 11, 25.] 16 On November 25, 2020, Defendants filed a Special Motion to Strike all causes of action from the Complaint pursuant to CCP § 425.16. After extensive briefing and oral argument that 17 took place on February 11, 2021, on March 26, 2021, the Court entered an order granting the 18 Special Motion to Strike with respect to the fourth and fifth causes of action. [RJN at Exhibit 1.] 19 Defendants successfully argued that the fourth and fifth causes of action both arose out of 20 protected activity and that Plaintiffs could not show a possibility of prevailing on the merits of 21 either claim. [Id.] Plaintiffs could not prevail on the fourth cause of action because they failed to 22 show the existence of any extrinsic fraud or mistake necessary for equitable relief to set aside a 23 default judgment when over six (6) months have passed since its entry. [Id.] Plaintiffs could not 24 prevail on their fifth cause of action because all of Defendants’ efforts to collect upon and enforce 25 the default judgment are protected by the litigation privilege. [Id.] For those reasons, the fourth and fifth causes of action were stricken in their entirety. As a result, Wynns was completed 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 3 dismissed from this case, and Plaintiffs’ sole causes of actions may only be based on alleged 1 fraudulent conduct that preceded the entry of judgment in the Prior Action1. 2 III. LEGAL ARGUMENT 3 A. Legal Standard on Award of Attorneys’ Fees After a Defendant Prevails on 4 a Special Motion to Strike 5 CCP § 425.16(c) expressly provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (emphasis added.) The fee 6 award “should ordinarily include compensation for all the hours reasonably spent, including those 7 relating solely to the fee.” Id. (emphasis in original). Thus, an award of attorneys’ fees for a 8 prevailing defendant is mandatory under the Anti-SLAPP statute. See Ketchum, supra, 24 Cal.4th 9 at 1131. This provision was enacted to discourage the filing of frivolous SLAPP suits “by 10 imposing the litigation costs on the party” filing the SLAPP suit. Id. The statute’s fee provision 11 is intended to “adequately compensate the defendant for the expense of responding to a baseless 12 lawsuit.” Dove Audio, Inc. v. Rosenfeld, Mayer & Susman (1996) 47 Cal.App.4th 777, 785. 13 A defendant who partially succeeds on an Anti-SLAPP motion is generally considered a prevailing party and may be awarded his or her fees and costs unless “the results of the motion 14 were minimal and insignificant” so that defendant did not achieve any “practical benefit” from 15 bringing the motion; this determination lies within the “broad discretion” of the trial court. Mann 16 v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340 (“Mann”). In general, due to 17 “the Legislature’s strong preference for awarding attorney fees to successful defendants…the 18 phrase ‘prevailing party’ should be interpreted broadly to favor an award of attorney fees to a 19 partially successful defendant. Id. at 338, citing ComputerXpress v. Jackson (2001) 93 20 Cal.App.4th 993, 1018. Factors to be considered in this analysis include (1) the extent to which 21 the defendant’s litigation posture was advanced by the motion; (2) whether the same factual 22 allegations remain to be litigated; (3) whether discovery and motion practice have been narrowed; and (4) the extent to which future litigation expenses were impacted by the motion. Mann, supra, 23 at 345. 24 Here, Defendants are entitled to an award of their fees and costs because the results of the 25 Anti-SLAPP Motion were not minimal and did result in a practical benefit to Defendants, by 26 27 1 Defendants expect to file an appeal and/or motion to strike the three remaining causes of actions 28 in Plaintiffs’ amended given that they are all barred through res judicata and collateral estoppel. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 4 securing the dismissal of two of Plaintiffs’ causes of action, those most central to their factual 1 allegations; by dismissing Wynns completely from this action; and by limiting the claims brought 2 by Plaintiffs to only include fraud that preceded the Prior Action. See, e.g., Morrow v. Los Angeles 3 Unified School Dist. (2007) 149 Cal.App.4th 1424, 1446 (dismissal of two causes of action 4 “cannot be considered trivial victories for defendants in the context of this case”); Bel Air Internet, 5 LLC v. Morales (2018) 20 Cal.App.5th 924, 946 (dismissal of one cause of action and elimination 6 of a theory of breach of contract applicable to two other causes of action entitled defendants to 7 attorneys’ fees following their Anti-SLAPP motion); Coltrain v. Shewalter (1998) 66 Cal.App.4th 8 94, 107 (defendants were held to be prevailing parties where plaintiff voluntarily dismissed an alleged SLAPP suit while the Anti-SLAPP motion was pending, as the dismissal caused 9 defendants to realize their litigation objective behind the motion); see also CCP § 1032(a)(4) 10 (defining a “prevailing party” as including “a defendant in whose favor a dismissal is entered.”). 11 Calculating the amount of a fee award under CCP § 425.16 begins by deciding the 12 “lodestar,” defined as “the number of hours reasonable expended multiplied by the reasonable 13 hourly rate.” Ketchum, supra, 24 Cal.4th at 1131. The lodestar approach begins with a 14 determination of the “careful compilation of the time spent and reasonable hourly compensation 15 of each attorney.” Id. at 1131-32. The court next determines whether that lodestar figure is 16 comparable to legal services in the same community and whether it should be adjusted based on relevant factors including “(1) the novelty and difficulty of the questions involved, (2) the skill 17 displayed in presenting them, (3) the extent to which the nature of the litigation precluded other 18 employment by the attorneys, (4) the contingent nature of the fee award.” Id. at 1132. The 19 “purpose of such adjustment is to fix a fee at the fair market value for the particular action.” Id. 20 Other factors the court should consider include “the nature of the litigation, its difficulty, the 21 amount involved, the skill required and the skill employed in handling the litigation, the attention 22 given, the success of the attorney’s efforts, his learning, his age, and his experience in the 23 particular type of work demanded; the intricacies and important of the litigation, the labor and 24 necessity for skilled legal training and ability in trying the cause, and the time consumed.” Church 25 of Scientology of California v. Wollerscheim (1996) 42 Cal.App.4th 628, 659. “The experienced trial judge is the best judge of the value of professional services rendered in his court, and while 26 his judgment is of course subject to review, it will not be disturbed....” Ketchum, supra, 24 Cal.4th 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 5 at p. 1132. Applying these criteria, Defendants’ requested fees and costs are reasonable and 1 should be awarded. 2 B. The Hours Incurred by Defendants’ Attorneys Relating to the Anti-SLAPP 3 Motion were Reasonable, Necessary, and Appropriate 4 As stated above, a fee award to a prevailing defendant on an Anti-SLAPP motion “should 5 ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.” Ketchum, supra, 24 Cal.4th at 1133 (emphasis in original). Hours are reasonable if 6 “at the time rendered, [they] would have been undertaken by a reasonable and prudent lawyer to 7 advance or protect his client’s interest . . . .” Moore v. Jas. H. Matthews & Co. (9th Cir. 1982) 8 682 F. 2d 830, 839; see also Ramon v. County of Santa Clara (2009) 173 Cal. App. 4th 915, 925. 9 Accordingly, attorneys should be compensated for taking the steps that they reasonably believed 10 were necessary to prevail in this case. “By and large, the court should defer to the winning 11 lawyer’s professional judgment as to how much time he was required to spend on the case; after 12 all, he won and might not have, had he been more of a slacker.” Id. 13 Here, the hours actually incurred by Defendants’ counsel relating to the successful Anti- SLAPP motion were reasonable. As outlined in the detailed time records maintained by 14 Defendants’ counsel and submitted in support of this motion, Defendants’ counsel billed no less 15 than $38,743.28 in attorneys’ fees and costs (comprised of $37,905.75 in fees and $837.53 in 16 costs) for conducting litigation work relating to the Anti-SLAPP Motion, including but not limited 17 to conferring with the clients; conducting relevant legal research; engaging in written meet and 18 confer communications with Plaintiffs’ counsel; engaging in discovery work relating to the Anti- 19 SLAPP Motion; drafting the motion itself and all supporting and reply papers; and attending the 20 hearing on the motion after Plaintiffs’ contested the Court’s tentative ruling, as described within 21 the contemporaneous billing records of Defendants’ counsel. [Declaration of Yosef Peretz in 22 Support of this Motion (“Peretz Decl.”) at ¶ 2, Exhibit 1.] As reflected on the billing records, Defendants’ counsel spent no less than 62.8 total hours 23 of work on all of these tasks, 18.8 hours (18 hours and 48 minutes) incurred by lead counsel Yosef 24 Peretz, Esq. and 44.0 hours (44 hours and 2 minutes)2 incurred by David Garibaldi, Esq., a then 25 26 2 27 These numbers of hours were calculated manually using the numbers depicted on the invoice at Peretz Decl, Ex. 1, by simply converting all quantities of hours depicted on the invoice into 28 minutes, adding up the minutes to one sum, and then converting that sum back into hours. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 6 fourth-year associate at Defense Counsel’s firm. [Id. at ¶ 2, Ex. 1.] These hours were all 1 reasonably necessary because an Anti-SLAPP motion is similar to a motion for summary 2 judgment and must be supported by admissible evidence sufficient to establish a complete defense 3 to the complaint, requiring a substantial investment of time greater than that required for most 4 other typical motions. See Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821. 5 Defense counsel had to review the facts and circumstances relating to Plaintiff’s allegations in