Filed 12/8/14 Shalant v. Mackston CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JOSEPH L. SHALANT et al.,

Plaintiffs and Appellants,

v.

ROBERT MACKSTON et al.,

Defendants and Respondents.

 B250208

 (Los Angeles County 

 Super. Ct. No. SC116968)

APPEAL from orders of the Superior Court of Los Angeles County. Allan J. 

Goodman, Judge. Affirmed in part; dismissed in part.

Joseph L. Shalant and Wendy Kronick, in pro. per., for Plaintiffs and Appellants. 

Doherty & Catlow and John Doherty for Defendant and Respondent Robert 

Mackston.

Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer and Michael W. Feenberg for 

Defendants and Respondents Thomas J. Feeley and Thomas M. Dempsey.

* * * * * * * * * *
2

The main issue presented is whether the trial court abused its discretion in 

awarding statutory attorney fees to defendants and respondents Robert Mackston

(Mackston), Thomas J. Feeley (Feeley) and Thomas M. Dempsey (Dempsey) pursuant to 

Code of Civil Procedure section 425.16, subdivision (c)1. We find no error or abuse of 

discretion in the court’s fee awards and therefore affirm. 

As to that portion of the appeal purporting to challenge the interlocutory sanctions 

order issued in July 2013, we conclude the order is not appealable and therefore dismiss 

that portion of the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Feeley and Dempsey represented Mackston in an underlying action brought by 

plaintiff and appellant Wendy Kronick (Kronick). Mackston answered and filed a crosscomplaint against Kronick. Mackston named additional parties as cross-defendants, 

including Kronick’s spouse, plaintiff and appellant Joseph L. Shalant. (We sometimes 

refer to Feeley, Dempsey and Mackston as “defendants” and to Shalant and Kronick as 

“plaintiffs.”) The underlying action resolved with no party obtaining any affirmative 

relief. 

Kronick and Shalant, representing themselves, then filed this action for malicious 

prosecution. The operative first amended complaint stated a cause of action for malicious 

prosecution of the underlying cross-complaint against Mackston, Feeley, and Dempsey, 

as well as a cause of action for intentional infliction of emotional distress against 

Mackston only. 

Mackston, represented by Doherty & Catlow, and Feeley and Dempsey, 

represented by Nemecek & Cole, each filed special motions to strike plaintiffs’ malicious 

prosecution cause of action pursuant to section 425.16, the anti-SLAPP statute.

2

 

1 All further undesignated section references are to the Code of Civil Procedure.

2 SLAPP is an acronym for “strategic lawsuit against public participation.” 

(Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)
3

In response, plaintiffs filed an ex parte application seeking to file an opposition in 

excess of the 15-page limit for opposition briefs. (Cal. Rules of Court, rule 3.1113(d).) 

Plaintiffs sought an order permitting them to file a brief up to 100 pages but obtained 

leave to file a 25-page opposition. Shortly thereafter, plaintiffs filed a second application 

seeking to file a 62-page opposition. This second application was heard in another 

department as the courtroom to which the case was assigned for all purposes was dark. 

Plaintiffs were granted leave to file a 62-page opposition brief. Defendants opposed 

plaintiffs’ second application and also moved to strike the 62-page opposition brief. 

Plaintiffs filed their 62-page opposition, with exhibits. Defendants filed reply 

briefs, as well as written evidentiary objections to all of plaintiffs’ proffered evidence, 

including their supporting declarations. Defendants’ evidentiary objections were 

sustained by the court.

After lengthy oral argument, the court granted defendants’ respective SLAPP

motions. Plaintiffs filed a motion for reconsideration of the court’s orders granting the

SLAPP motions. Defendants opposed the motion, which was denied. 

Defendants Mackston, Feeley and Dempsey then filed their respective motions for 

attorney fees pursuant to section 425.16, subdivision (c). Plaintiffs once again filed an ex 

parte application seeking to obtain an order allowing a brief in excess of the 15-page limit

for opposition papers, as well as other relief. The application was titled “Ex Parte 

Application (1) Calendar a Hearing to Lift Automatic Discovery Stay (CCP § 425.16g)) 

Re: anti-SLAPP Motion for Fees; (2) Allow an Evidentiary Hearing on Fees; 

(3) Consider Exercising Judicial Discretion under Le Francois v. Goel (2005) 35 Cal.4th 

1094 to Reconsider Prior SLAPP Ruling; and (4) Permit Filing of Plaintiffs’ 28-page 

Opposition Brief.” 

Defendants opposed the application, arguing plaintiffs were again seeking to 

challenge the propriety of the court’s SLAPP rulings. Plaintiffs’ ex parte application was 

denied in its entirety, including plaintiffs’ request to file an opposition longer than 15 

pages. Nonetheless, plaintiffs filed a 28-page opposition brief. 
4

Following oral argument, the trial court took the fee motions under submission, 

and then issued its written orders granting the fee motions “in full.” The court explained 

that it had “carefully reviewed the documents and declarations filed by all parties and has 

applied to the fee requests its over 42 years of experience, including 18 [plus] years as a 

bench officer, some of which has been devoted to consideration of fee requests, including 

but not limited to fee requests of this nature.” The court stated that while it did not wish 

to reward “a violation of a court order,” it had duly considered plaintiffs’ opposition 

papers. With respect to the amount of fees, the court stated it “considered the various 

hourly rates sought by the attorneys seeking these fees as well as their experience and 

skill and the relative complexity of the matters for which fees are being sought. The 

Court also notes that all services were not billed at the same rate; this is appropriate (but 

not always done); thus, the fee applications are lower in amount than sometimes sought.” 

The court stated its orders were based on the “information presented,” as well as “the 

Court’s own knowledge and experience” and that an hourly rate of $500 would be 

reasonable under the circumstances, as well as the lesser rates actually sought by the fee 

motions. The court granted Mackston fees in the amount of $41,485, and Feeley and

Dempsey fees in the amount of $97,487. 

The court also set a hearing directing Shalant to show cause why the court should 

not order sanctions for violating the court’s denial of his ex parte application and filing 

the 28-page opposition brief. Shalant submitted a response indicating he believed the 

court’s denial of the ex parte was ambiguous and that he and plaintiff Kronick could have 

each filed a 15-page opposition separately but chose to file one joint opposition. In July 

2013, the court ordered Shalant to pay monetary sanctions of $1,000 to the court, 

pursuant to section 177.5, for violation of the court’s order.

Plaintiffs did not timely appeal the court’s orders granting defendants’ SLAPP

motions. (§ 904.1, subd. (a)(13) [order granting special motion to strike is directly 

appealable].) Plaintiffs did file a writ in this court, which was summarily denied on July 

25, 2013 (case No. B247918). 
5

This appeal was timely filed from the June 28, 2013 orders granting attorney fees 

to defendants. Because Shalant has previously been declared a vexatious litigant 

(§ 391.7), he sought an order from this court permitting him to pursue this appeal. On 

October 11, 2013, this court granted Shalant’s request. 

Defendants filed motions in this court seeking to dismiss plaintiffs’ appeal, in part 

on the grounds that it improperly seeks to challenge the orders granting the SLAPP

motions. On November 25, 2013, we issued an order partially dismissing plaintiffs’ 

appeal to the extent it seeks to encompass the orders granting the SLAPP motions from 

which no timely notice of appeal was filed. The scope of this appeal is limited to whether 

the trial court properly awarded fees, whether the amounts of the awards were reasonable 

and in accordance with applicable law, and the propriety of plaintiff Shalant’s challenge 

to the monetary sanction order.

DISCUSSION

Plaintiffs Shalant and Kronick contend the trial court’s orders awarding attorney

fees to defendants should be reversed on various grounds, including (1) that defendants’ 

fraud in presenting the SLAPP motions provided equitable grounds for the trial court to 

deny statutory fees altogether; (2) that the court failed to apply the proper standard and

awarded 100 percent of the fees sought by all defendants, instead of only those fees 

attributable to work on the SLAPP motions; and (3) that the amounts awarded were 

excessive and included fees for duplicative work, fees for noncompensable hours 

unrelated to the SLAPP motions, and for an hourly rate unrelated to the fees actually 

charged and incurred. We are not persuaded.

“We review an anti-SLAPP attorney fee award under the deferential abuse of 

discretion standard. [Citations.] The trial court’s fee determination ‘ “ ‘will not be 

disturbed unless the appellate court is convinced that it is clearly wrong.’ ” ’ [Citation.]

. . . ‘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 
6

disputes arising from the evidence is conclusive.’ [Citation.]” (Christian Research 

Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322 (Christian Research).)

As the prevailing parties on their respective SLAPP motions, Mackston, Feeley 

and Dempsey were statutorily entitled to an award of attorney fees. “[U]nder . . .

section 425.16, subdivision (c), any SLAPP defendant who brings a successful motion to 

strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 

1122, 1131, italics added (Ketchum); see also § 425.16, subd. (c), italics added [“a 

prevailing defendant on a special motion to strike shall be entitled to recover his or her 

attorney’s fees and costs”].) The purpose of the statute’s mandatory fee language is to 

discourage SLAPP suits by imposing the litigation costs on the party bringing the SLAPP 

action. (Ketchum, at p. 1131.)

Plaintiffs nonetheless contend fees should be denied in their entirety, on the 

grounds that defendants engaged in “deception” and “artifice” in the presentation of their 

SLAPP motions which led the court to erroneously grant the motions. As already stated 

above, plaintiffs did not timely appeal the trial court’s orders granting the SLAPP 

motions. As such, those orders are final and plaintiffs cannot ask this court to assess the 

alleged invalidity of the orders as a basis for reversing the trial court’s subsequent orders 

awarding attorney fees to defendants as prevailing parties.

The cases on which plaintiffs primarily rely for their argument (Christian 

Research, Ketchum, and Moore v. Kaufman (2010) 189 Cal.App.4th 604, 617 (Moore))

do not hold otherwise. Rather, they discuss generally the trial court’s broad discretion to 

reduce or deny a statutory fee award where the trial court determines that the attorney’s 

submissions in support of the fee request (not the SLAPP motion) lack credibility, or 

otherwise raise concerns the fees requested are unreasonable or noncompensable. “To 

the extent a trial court is concerned that a particular award is excessive, it has broad 

discretion to adjust the fee downward or deny an unreasonable fee altogether.”

(Ketchum, supra, 24 Cal.4th at p. 1138; accord, Christian Research, supra, 165 
7

Cal.App.4th at pp. 1321-1322, 1325-1326.)3 Nothing in the trial court’s order indicates it 

found the respective fee requests unreasonable or lacking in credibility. The court’s 

assessment of the credibility of the attorney’s submissions is entitled to deference. 

Plaintiffs also challenge the amount of fees awarded, arguing (1) the court 

improperly awarded 100 percent of the fees sought by all defendants, instead of allowing 

only those fees directly attributable to work on the SLAPP motions; and (2) that the 

amounts awarded were excessive and included fees for duplicative work, fees for 

noncompensable hours, and for an hourly rate unrelated to the fees actually charged and 

incurred.

There is nothing in the statute or the case law that disallows the granting of the full 

amount of a prevailing defendant’s requested fees. While the trial court, in exercising its 

discretion, must carefully review the submissions supporting a fee request, “ ‘absent 

circumstances rendering the award unjust, an attorney fee award should ordinarily 

include compensation for all the hours reasonably spent, including those relating solely 

to the fee.’ [Citation.]” (Christian Research, supra, 165 Cal.App.4th at p. 1321.) To 

that end, “[t]he statute is broadly construed so as to effectuate the legislative purpose of 

reimbursing the prevailing defendant for expenses incurred in extricating [himself or] 

herself from a baseless lawsuit.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 446

(Wilkerson); accord, Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 

141 Cal.App.4th 15, 22 (Wanland).) 

Nonetheless, generally “the fee ‘provision applies only to the motion to strike, and 

not to the entire action.’ [Citation.]” (S.B. Beach Properties v. Berti (2006) 39 Cal.4th 

374, 381.) But, where a SLAPP motion addresses and resolves all of the claims stated 

against a moving defendant, then the award of all fees incurred in defense of the action 

may be appropriate. (See Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331, 1351

 

3 Moore is wholly inapposite. It discusses a reviewing court’s discretion to not 

apply the law of the case doctrine where it would result in a manifest miscarriage of 

justice. (Moore, supra, 189 Cal.App.4th at p. 617.) The doctrine of law of the case is not 

at issue here.
8

(Vargas) [rejecting argument that prevailing defendant was only entitled to fees directly 

related to the SLAPP motion because successful motion resulted in dismissal of entire 

SLAPP complaint, not just certain causes of action].)

Here, the only claim stated against defendants Feeley and Dempsey was the 

malicious prosecution claim that was the subject of their successful SLAPP motion. 

Plaintiffs have not affirmatively shown any legal or factual basis for a narrow 

construction of section 425.16, subdivision (c) that would deprive Feeley and Dempsey 

of all reasonable fees incurred to extricate themselves from a baseless malicious 

prosecution claim. (Vargas, supra, 200 Cal.App.4th at p. 1351; Wilkerson, supra, 

99 Cal.App.4th at p. 446.)

As for defendant Mackston, his successful SLAPP motion did not resolve all of 

the claims stated against him. The intentional infliction of emotional distress cause of 

action was not addressed by the motion. However, plaintiffs have failed to demonstrate 

the court abused its discretion in awarding fees to Mackston.

Plaintiffs repeatedly state that many of the billing entries by defendants’ respective 

attorneys do not even reference the SLAPP motions. However, an explicit reference to 

the SLAPP motion or use of the term “SLAPP” in an attorney’s time record is not the 

sine qua non of whether the billing entry represents work reasonably and properly 

reimbursed under section 425.16, subdivision (c). 

Plaintiffs challenge the attorney billing entries, dating from before the filing of the 

SLAPP motions, concerning the review of materials and discussions with clients 

regarding the underlying action. In order to prepare a SLAPP motion that seeks to 

dispose of a malicious prosecution claim, it is not only reasonable, but imperative, to 

analyze and understand the underlying action on which the malicious prosecution claim is 

predicated. Plaintiffs do not present any argument to support their claim the trial court’s 

award of these fees was improper.

Further, plaintiffs are not in a good position to complain about the amount of fees 

awarded, when their own litigation strategy, including the repeated filing of oversize 

briefs and several postmotion efforts to obtain reconsideration of the court’s SLAPP 
9

rulings, contributed to the amount of defensive work incurred by all defendants. (See,

e.g., Wanland, supra, 141 Cal.App.4th at pp. 21-22 [fees properly awarded to prevailing 

defendant for postjudgment proceedings regarding the plaintiff’s inadequate undertaking 

posted to stay enforcement of the fee award].) 

We also disagree with plaintiffs’ contention the court’s acceptance of hourly rates 

ranging from between $150 to $450, depending on whether the work was performed by a 

paralegal, an associate or a partner, was unreasonable. 

“The amount of an attorney fee award under the anti-SLAPP statute is computed 

by the trial court in accordance with the familiar ‘lodestar’ method. [Citation.] Under 

that method, the court ‘tabulates the attorney fee touchstone, or lodestar, by multiplying 

the number of hours reasonably expended by the reasonable hourly rate prevailing in the 

community for similar work. [Citations.]’ ” (Cabral v. Martins (2009) 177 Cal.App.4th 

471, 491, citation and fn. omitted.) “ ‘The reasonable market value of the attorney’s 

services is the measure of a reasonable hourly rate. [Citations.] This standard applies 

regardless of whether the attorneys claiming fees charge nothing for their services, charge 

at below-market or discounted rates, represent the client on a straight contingent fee 

basis, or are in-house counsel. [Citations.]’ [Citation.]” (Chacon v. Litke (2010) 181 

Cal.App.4th 1234, 1260; accord, Syers Properties III, Inc. v. Rankin (2014) 226 

Cal.App.4th 691, 701, and Nemecek & Cole v. Horn (2012) 208 Cal.App.4th 641, 651-

652.) The reasonable market rate is that amount “ ‘ “to which attorneys of like skill in 

the area would typically be entitled.” ’ [Citations.]” (Ketchum, supra, 24 Cal.4th at 

p. 1133.)

In its ruling, the trial court stated that based on its experience, the nature of the 

case and the litigation effort involved, as well as the attorney submissions, a reasonable 

hourly rate would be $500, and that the lower hourly rates sought by the defendants were 

manifestly reasonable. It is well established that trial judges are vested with broad 

discretion in awarding fees “because they are in the best position to assess the value of 

the professional services rendered in their courts.” (Christian Research, supra, 
10

165 Cal.App.4th at p. 1321.) Plaintiffs have failed to affirmatively demonstrate an abuse 

of discretion by the trial court finding the hourly rates were reasonable.

Finally, plaintiff Shalant also seeks to challenge the trial court’s order imposing 

monetary sanctions against him, payable to the court, pursuant to section 177.5. The 

court initially imposed sanctions of $1,500 against Shalant for violating the court’s order 

denying him leave to file an oversize brief. But, in a written order dated July 22, 2013, 

the court reduced the amount to $1,000 payable to the clerk of the court. The sanctions 

order, issued before entry of final judgment in the action, is interlocutory and not 

properly appealed at this time by way of direct appeal. “Sanction orders or judgments of 

five thousand dollars ($5,000) or less against a party or an attorney for a party may be 

reviewed on an appeal by that party after entry of final judgment in the main action, or, at 

the discretion of the court of appeal, may be reviewed upon petition for an extraordinary 

writ.” (§ 904.1, subd. (b).) 

Shalant asks this court to resolve the merits now by treating his appeal of the 

sanctions order as a writ. (Olson v. Cory (1983) 35 Cal.3d 390, 400-401.) Shalant has 

not demonstrated the propriety of treating only a portion of his appeal as a writ or any 

circumstances warranting such action given the procedural posture of the case. We 

therefore dismiss that portion of the appeal purporting to appeal from the interlocutory 

sanctions order.

DISPOSITION

The trial court’s June 28, 2013 orders granting defendants and respondents’ 

respective motions for attorney fees pursuant to section 425.16, subdivision (c) are 

affirmed. Plaintiff and appellant Joseph L. Shalant’s appeal of the July 2013 sanctions 

order is dismissed. Defendants and respondents Robert Mackston, Thomas J. Feeley and 

Thomas M. Dempsey shall recover their respective costs on appeal.

GRIMES, J.

We concur:

RUBIN, Acting P. J. FLIER, J.