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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

                                                2
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)


                                               4
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."

                                             5
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




                                            6
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


                                              7
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


                                              8
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).)


                                              9
       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


                                              10
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


                                               11
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


                                             12
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


                                              13
(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.)

                                               15
       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.


                                              16
       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


                                              18
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.

(2011) 191 Cal.App.4th 1394, 1402 [assignment merely transfers interest of assignor;

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

declarations." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479, fn. omitted.)

       C. Analysis

       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
