Filed 10/30/14 Decker v. Vestra Resources CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




ANDREW DECKER,                                                                               C075297

                   Plaintiff and Appellant,                                              (Super. Ct. No.
                                                                                       13CVCV0176787)
         v.

VESTRA RESOURCES INCORPORATED et al.,

                   Defendants and Respondents.




         Plaintiff Andrew Decker, acting in propria persona, appeals from an order granting
defendant Vestra Resources Incorporated’s motion for attorney fees. Decker contends
Vestra is not entitled to attorney fees under either contract or statute, and challenges the
amount. As we explain, Vestra is entitled to attorney fees under both contract and statute,
and Decker has failed to show the trial court abused its discretion as to the amount.
Accordingly, we affirm.




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                                     BACKGROUND
        Decker settled his charge of employment discrimination with Vestra. Under the
settlement agreement, Decker received $7,000. The agreement also contained an attorney
fee provision that provides: “If any action at law or in equity, or any motion, is brought
to enforce, interpret or rescind this Agreement, the prevailing party shall be entitled to all
of its costs in bringing and prosecuting said action or motion, including reasonable
attorney’s fees.”
        Decker brought an action against Vestra to rescind the settlement agreement, also
claiming religious discrimination and wrongful termination with respect to his previous
employment there. His additional claims were dependent on his successfully rescinding
the settlement agreement. The cause of action for rescission (and thus the entire
complaint) was based on a letter Vestra’s counsel, Benjamin Kennedy, had sent Decker
during negotiation of the settlement. Decker alleged that the letter had caused him to sign
the settlement agreement under duress or undue influence.
        In response, Vestra brought a special motion to strike Decker’s complaint pursuant
to Code of Civil Procedure section 425.16 (the anti-SLAPP statute).1 The trial court
granted the motion. The court found Decker’s lawsuit arose from Vestra’s exercise of a
protected activity--counsel’s letter during negotiations. The court further found Decker
failed to show a probability of success to rescind the settlement agreement due to duress
because the evidence showed Kennedy’s letter did not intimidate Decker; it had no effect
on him. The court granted judgment to Vestra.
        Vestra moved for attorney fees pursuant to section 425.16, subdivision (c)(1) and
the attorney fee provision of the settlement agreement.




1   Further undesignated statutory references are to the Code of Civil Procedure.

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       The trial court awarded Vestra $16,710 in fees and costs. The court rejected
Decker’s argument that there was improper billing; it found the award of $16,710 was
fair and reasonable.
       Decker appealed from this order.
                                       DISCUSSION
                                               I
                           Entitlement to Award of Attorney Fees
       “California follows the ‘American rule,’ under which each party to a lawsuit must
pay its own attorney fees unless a contract or statute or other law authorizes a fee award.
[Citations.]” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211
Cal.App.4th 230, 237; §§ 1021, 1033.5, subd. (a)(10).) We review a determination of the
legal basis for an award of attorney fees de novo as a question of law. (G. Voskanian
Construction, Inc. v. Alhambra Unified School Dist. (2012) 204 Cal.App.4th 981, 995.)
       Vestra offers two bases for an award of attorney fees. The first is statutory.
Section 425.16, subdivision (c)(1) provides in pertinent part: “Except as provided in
paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special
motion to strike shall be entitled to recover his or her attorney's fees and costs. If the
court finds that a special motion to strike is frivolous or is solely intended to cause
unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff
prevailing on the motion, pursuant to Section 128.5.” Vestra was a prevailing defendant
on its special motion to strike and none of the exceptions in section 425.16, subdivision
(c)(2) apply. Thus, an award of attorney fees was mandatory.
       Decker contends Vestra was not the prevailing party because Decker recovered
$7,000 under the settlement agreement. Decker is mistaken, however, because he is
looking to the wrong proceeding to determine the prevailing party. For the award of
attorney fees under section 425.16, the relevant proceeding is the special motion to strike.
While Decker argues that he “prevailed” on his original claim against Vestra by obtaining

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a settlement, it is indisputable that Vestra prevailed completely on its special motion to
strike because the court granted the motion and entered judgment for Vestra.
       Decker next contends that an award of attorney fees was not mandatory, despite
the statute’s use of “shall.” In support of this argument, he cites to cases where a plaintiff
was denied fees because the special motion to strike was not frivolous.2 Vestra, however,
was the defendant. When a special motion to strike is successful, attorney fees are
mandatory. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141-1142 (Ketchum).) “Under
section 425.16, subdivision (c), an award of attorney fees to a defendant prevailing on a
special motion to strike is mandatory; a prevailing plaintiff is entitled to fees only upon
proof that the defendant's motion was frivolous or solely intended to cause unnecessary
delay.” (Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331, 1340-1341.)
       Vestra also contends the motion for attorney fees should have been denied because
the special motion to strike accomplished nothing of practical consequence. In Moran v.
Endres (2006) 135 Cal.App.4th 952, the court affirmed denial of attorney fees where the
special motion to strike was sustained only as to one of many causes of action. The court
found the special motion to strike “obtained only the most illusory victory.” (Id. at
p. 954.) Decker argues Vestra’s special motion “produced nothing of consequence”
because it simply affirmed the settlement agreement, an act already done. We disagree.




2 As he does throughout his briefing, Decker cites to a number of unpublished opinions.
This is improper. An opinion that “is not certified for publication or ordered published
must not be cited or relied on by a court or a party in any other action.” (Cal. Rules of
Court, rule 8.1115(a).) There are exceptions, none of which apply here. Decker
complains this rule raises due process and freedom of speech considerations. The
California Rules of Court are adopted by the Judicial Council under the authority of
article VI, section 6(d), of our Constitution and the rules regarding publication were
adopted by our Supreme Court. (Cal. Rules of Court, rule 1.3) We are bound by the
rules. (See Clyne v. Clyne (1964) 228 Cal.App.2d 597, 600 [court bound by presumption
in rule 52 (now rule 8.163)].)

                                              4
Vestra was completely successful in striking Decker’s entire complaint and obtaining
judgment in its favor. Vestra was entitled to an award of attorney fees by statute.
       Vestra was also entitled to attorney fees by contract. The settlement agreement
had an attorney fee provision that awarded attorney fees to the prevailing party in an
action to rescind the agreement. Vestra prevailed on Decker’s suit to rescind the
settlement agreement by successfully moving to strike it.
       Much of Decker’s briefing attacks the settlement agreement--and the attorney fee
provision--as unconscionable, as a contract of adhesion. Those contentions are not
properly before us. “Our jurisdiction on appeal is limited in scope to the notice of appeal
and the judgment or order appealed from.” (Polster, Inc. v. Swing (1985) 164 Cal.App.3d
427, 436.) Decker appealed only from the order awarding attorney fees. He did not
appeal from the judgment enforcing the settlement agreement. Consequently, we do not
have jurisdiction to consider any issues relating to enforceability of the settlement
agreement. (Conservatorship of Edde (2009) 173 Cal.App.4th 883, 890.)
                                             II
                              Amount of Attorney Fee Award
       In awarding attorney fees under section 425.16, subdivision (c), courts are to use
the “lodestar adjustment method.” (Ketchum, supra, 24 Cal.4th at p. 1136.) This method
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.’ [Citation.]” (Id. at pp. 1131-1132.) The lodestar may then be
adjusted upward or downward (id. at p. 1132), although no adjustment was made in this
case. The same method is used in determining a fee award under a contractual attorney
fee provision. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM
Group).)
       “An appellate court reviews the amount of mandatory attorney fees awarded by
the trial court to a defendant who successfully brings an anti-SLAPP motion for abuse of

                                              5
discretion. [Citation.]” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659,
686.) “ ‘The “experienced trial judge is the best judge of the value of professional
services rendered in his court, and while his judgment is of course subject to review, it
will not be disturbed unless the appellate court is convinced that it is clearly wrong”--
meaning that it abused its discretion.’ [Citations.]” (PLCM Group, supra, 22 Cal.4th at
p. 1095.)
       “In challenging attorney fees as excessive because too many hours of work are
claimed, it is the burden of the challenging party to point to the specific items challenged,
with a sufficient argument and citations to the evidence. General arguments that fees
claimed are excessive, duplicative, or unrelated do not suffice. Failure to raise specific
challenges in the trial court forfeits the claim on appeal.” (Premier Medical Management
Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564
(Premier Medical).)
       In support of the motion for attorney fees, Vestra’s counsel Kennedy provided
detailed billing records of the time he spent on this case. He declared that he had
reviewed the billing records and eliminated or reduced any time that was inefficient. The
trial court found the amount of attorney fees sought was “fair and reasonable.”
       Decker contends the trial court made “an irrational decision” in the award of
attorney fees. He asserts the court ignored that some of the fees pertained to another
case. Kennedy’s billing entry for May 23, 2013, sets forth 3.40 hours for “Meeting with
S. Pulapkura and K. Wilkes regarding declaration and status update; continue drafting
statement of facts portion to memorandum of points and authorities in support of motion
to strike; review demurrer to complaint against S. Pulapkura.” Decker objects to the last
task of reviewing the demurrer, contending it involves a separate (apparently related)
case against his former co-worker Pulapkura.
       In the trial court, Decker objected to the fees generated on May 23, 2013, but on a
different basis. Then, he objected to a declaration of a different attorney, Ward

                                              6
Washington, as well as Kennedy’s.3 Decker argued Washington and Kennedy could not
have performed all the work they claimed on a memorandum of points and authorities
and still have filed it by 2:00 p.m. that same day. Decker did not argue Kennedy’s billing
was improper because it was for another case. By failing to raise this objection below,
Decker has forfeited it. “Failure to raise specific challenges in the trial court forfeits the
claim on appeal.” (Premier Medical, supra, 163 Cal.App.4th at p. 564.) Had Decker
raised this challenge before the trial court, Kennedy would have had an opportunity to
respond, perhaps to explain why this challenged task was necessary for this case, or that
he had deleted or reduced the number of hours for this entry.
       We recognize that Decker is appearing without counsel, but that status does not
excuse him from following the rules of appellate practice. “[S]elf-representation is not a
ground for exceptionally lenient treatment. Except when a particular rule provides
otherwise, the rules of civil procedure must apply equally to parties represented by
counsel and those who forgo attorney representation. [Citation.]” (Rappleyea v.
Campbell (1994) 8 Cal.4th 975, 984-985.) Litigants who are in pro per should be treated
like any other party and are entitled to the same, but no greater consideration than other
attorneys and litigants. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) “A
pro. per. litigant is held to the same restrictive procedural rules as an attorney.
[Citation.]” (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193.)
                                              III
                                  Attorney Fees on Appeal
       Vestra requests attorney fees and costs on appeal. “The right to attorney fees
extends to attorney fees on appeal as well. [Citations.]” (Morrow v. Los Angeles Unified




3 Ward may have been counsel for Vestra on Decker’s complaint against Pulapkura. The
sparse record is not clear on this point.

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School Dist. (2007) 149 Cal.App.4th 1424, 1446.) The amount of such fees is to be
determined by the trial court upon motion by Vestra. (Ibid.)
                                      DISPOSITION
       The judgment is affirmed. Vestra shall recover costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1), (2).)




                                                      DUARTE               , J.



We concur:



      NICHOLSON              , Acting P. J.



      HOCH                   , J.




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