Zilberstein v. Petersen

AHRON ZILBERSTEIN, Plaintiff and Appellant, v. MICHAEL PETERSEN, Defendant and Respondent.

B311978

California Court of Appeals, Second District, Fourth Division

April 13, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No.18VECV00182, Judge Huey P. Cotton.

Law Offices of Stephen M. Feldman, Inc., and Stephen M. Feldman for Plaintiff and Appellant.

Gavrilov & Brooks, Ognian Gavrilov and Michael Coleman for Defendant and Respondent.

WILLHITE, J.

Plaintiff and appellant Ahron Zilberstein sued Michael Petersen for false impersonation (Pen. Code, § 528.5) and cyberpiracy (Bus. & Prof. Code, § 17525) after Petersen created a website portraying Zilberstein as a fraudulent businessman and slumlord. In an earlier unpublished decision, we reversed in part the trial court's order denying an anti-SLAPP motion^[1] filed by Petersen in response to the suit. (Zilberstein v. Petersen (Oct. 23, 2020, B301779 [nonpub. opn.].)

On remand, the trial court followed our directions to grant the anti-SLAPP motion with regard to the Penal Code cause of action and struck that claim from the complaint. Petersen then moved for attorney fees, as a partially prevailing party, and was awarded $38, 825 in fees and costs.

On appeal, Zilberstein contends that the fee award was erroneous because (1) Petersen represented himself throughout the legal proceedings, and failed to clearly establish he retained outside counsel for work associated with his anti-SLAPP proceedings; and (2) the amount of the fee award was excessive. Zilberstein also challenges several of the costs included in the trial court's fee award order.

Other than a minor correction to the amount of the costs awarded to Petersen, we affirm the trial court's order.

FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Lawsuit and Prior Appeal^[2]

The instant lawsuit was the seventh suit between Petersen and Zilberstein or his affiliates. According to Petersen, throughout the course of the prior lawsuits, he discovered that Zilberstein had been using the judicial system to defraud individuals out of money and property. In 2016, Petersen created the website "ahronzilberstein.com" to publish excerpts of pleadings filed against Zilberstein in other lawsuits.

Following the website's publication, Zilberstein filed suit against Petersen alleging causes of action for (1) credible impersonation of another through the internet (Pen. Code, § 528.5, subd. (e)) and (2) cyberpiracy-i.e., bad faith registration or use of a domain name that is identical or confusingly similar to the personal name of another person (Bus. & Prof. Code, § 17525).

In response, Petersen filed a special motion to strike the complaint pursuant to section 425.16, arguing that both causes of action were based on conduct in furtherance of his right to free speech on a public issue. He further argued that Zilberstein could not establish a probability of prevailing on the merits in either cause of action because he did not impersonate Zilberstein (as required for the impersonation charge) or act in bad faith (as required for the cyberpiracy cause of action).

The trial court denied the motion, finding that although the publication of the website constituted protected activity under section 425.16, subdivision (e)(4), Zilberstein had met his burden of showing a probability of success on the merits of both causes of action. The court further found that the anti-SLAPP motion was frivolous, and intended to cause unnecessary delay in the proceedings, and awarded attorney fees to Zilberstein in the amount of $8, 365.

On appeal, we agreed that both causes of action were based on activity protected by the anti-SLAPP statute and further found that Zilberstein established a probability of prevailing on the cause of action under the Business and Professions Code, but not on the cause of action under the Penal Code. Accordingly, we reversed the court's order with respect to the latter cause of action.^[3]

On remand, the trial court entered a new order granting Petersen's anti-SLAPP motion as to the Penal Code cause of action. The court also rescinded its prior order awarding attorney fees to Zilberstein.

B. Petersen's Motion for Attorney Fees

After the trial court entered its new order granting Petersen's anti-SLAPP motion with regard to the Penal Code cause of action, Petersen filed a motion for attorney fees and costs. Although he appeared in propria persona (in pro. per.)^[4] throughout the underlying matter, Petersen declared he retained Ognian Gavrilov, highly experienced legal counsel, to assist in his defense to the lawsuit.

Petersen declared that he had incurred $65, 200 in attorney fees to date, based on a total of 130.4 hours of assistance provided by Gavrilov at a rate of $500 an hour. Of that amount, 108.5 hours or $54, 250 were incurred in researching and drafting his anti-SLAPP motion, reply to the opposition to the motion, and his appellate and reply briefs in this court. Given that he prevailed in striking one of the two causes of action alleged by Zilberstein, Petersen sought 50 percent of the amount incurred in relation to time spent directly on the anti-SLAPP motion- $27, 125.

Petersen sought 100 percent of the remaining $10, 950-or 21.9 hours incurred for the following work: 10.3 hours for the time Gavrilov spent on his preparation of a motion in opposition to the memorandum of costs submitted by Zilberstein (in relation to the trial court's original denial of his anti-SLAPP motion and finding that the motion was frivolous); 4.5 hours in opposition to discovery matters related to the anti-SLAPP motion, and 7.1 hours related to the instant fee motion.

Petersen also provided a declaration from counsel Gavrilov summarizing the hours spent on various areas of the anti-SLAPP motion and subsequent appeal, consistent with the time reported on Petersen's declaration and fee motion.

Finally, Petersen sought $750 in costs he incurred outside of his appeal to this court.

On December 16, 2020, the trial court granted Petersen's motion and awarded the total requested amount of $38, 825 in fees and costs.

Zilberstein timely appealed.

DISCUSSION

"The special motion to strike-or so-called anti-SLAPP motion-is subject to statutory fee shifting as follows. 'In any action subject to [the special motion to strike], a prevailing defendant . . . shall be entitled to recover his or her attorney's fees and costs." (Ketchum v Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum), quoting § 425.16, subd. (c).)

"Thus, under Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees. The fee-shifting provision was apparently intended to discourage such strategic lawsuits against public participation by imposing the litigation costs on the party seeking to 'chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' [Citation.]" (Ketchum, supra, 24 Cal.4th at p. 1131.)

A "prevailing defendant" on an anti-SLAPP motion is entitled to reasonable attorney fees even if the defendant "'has prevailed on some claims but not others.'" (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019 (ComputerXpress).) In such cases, there are several factors to be considered in determining the right to fees and costs. Those factors were discussed at length in Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 344-345.

The trial court in this case cited the Mann factors in its fee order, agreeing with Petersen that half of the hours expended in defending himself from the motion were warranted.^[5] In so concluding, the court pointed out Petersen was not only partially successful on appeal, but that "the elimination of the Penal Code violation significantly change[d] the tenor of the case as the only remedy available to plaintiff is injunctive relief and restitution, if any." The court further noted Petersen's partial victory also narrowed discovery "as no inquiry into damages [will be] required" and no punitive damages are available for the remaining cause of action.

On appeal, Zilberstein does not argue that the 50 percent apportionment for the fees incurred by Petersen was in an of itself incorrect or excessive. Instead, Zilberstein argues that Petersen's pro. per. status should preclude any award in this case (for a variety of reasons we discuss) and that the hourly rate and number of hours reported by Petersen were excessive and therefore unreasonable. We address these contentions below.

A. Standard of Review

"'On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees [in the relevant context] have been satisfied amounts to statutory construction and a question of law.'" (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175; see also 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433 fn. 8 (569 East).)

B. Notwithstanding his Pro. Per. Status, Petersen Was Entitled to Attorney Fees Incurred in Relation to his Anti-SLAPP Motion

In his opening brief, Zilberstein makes various arguments as to why Petersen, who proceeded in pro. per. in the trial court, was not entitled to attorney fees. Zilberstein places these arguments under two headings: (1) "Respondent who is proceeding in pro se is not entitled to attorney's fees" and (2) "The court should establish a bright-line rule to establish how a pro se with a non-disclosed attorney relationship could recover attorney's...