Filed 3/23/23 Spielbauer Law Office v. Midland Funding CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
SPIELBAUER LAW OFFICE,
Plaintiff and Appellant,
A165817
v.
MIDLAND FUNDING, LLC et al., (Santa Clara County
Super. Ct. No. 18CV339157)
Defendants and Respondents.
Appellant Spielbauer Law Office (Spielbauer) appeals an order
granting attorney fees in the amount of $49,896 to the defendants who
prevailed in bringing an anti-SLAPP motion to strike the complaint
Spielbauer brought against them. All Spielbauer’s arguments relate solely to
the amount of fees awarded. We reject its contentions and affirm the
attorney fee award.
DISCUSSION
Spielbauer brought suit against respondents Midland Funding, LLC
and Midland Credit Management (collectively, Midland) asserting claims
based on Midland’s alleged interference with the attorney-client relationship
between Spielbauer and a client it represented in debt collection litigation
Midland brought against the client. The trial court granted Midland’s anti-
SLAPP motion, and Midland then brought a motion requesting $53,346 in
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legal fees from Spielbauer. Apart from a contention the attorney fee motion
was premature (an issue not raised here), Spielbauer opposed the motion
solely on the ground that the number of hours claimed was excessive in
various ways. The trial court reduced the fee request by $3,450 for
unnecessary inefficiency in one respect, found the fees were otherwise
reasonable and awarded Midland $49,896. This timely appeal followed.
Spielbauer’s opening brief is somewhat rambling and disjointed.
Nevertheless, we understand Spielbauer to raise three issues:
First, Spielbauer contends the trial court erred in excluding the
declaration of its expert, Kevin Sullivan, opining on the excessiveness of the
fees Midland claimed (in terms of the time spent on various tasks). It is
unnecessary to consider whether the trial court erred in this regard, because
we agree with Midland that any error was harmless.
As a technical matter, the court sustained an objection to the Sullivan
declaration in its entirety. But the trial court expressly said at the hearing
that even if it considered the Sullivan declaration, the court would not “give
it a lot of weight.” And the court explained why: “I didn’t find that he
adequately expressed his experience in anti-SLAPP motions or in assessing
attorneys fees. And certainly his objections were not to hourly rate but to the
number of hours spent and I don’t know that he has the ability to look at this
case and figure out how many hours were properly spent. He didn’t say he
was that familiar with the case.” (Italics added.) The court indicated that it
possessed independent familiarity with anti-SLAPP motions, having handled
“lots” of them and having “seen attorneys fees requests of hundred[s] of
thousands of dollars on SLAPP motions,” including one that was presently
before it in another case. The court said it considered the amount of
Midland’s fee request as “kind of in the middling range in terms of fee
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requests I’ve seen following anti-SLAPP motions.” And in its written order it
reiterated: “The Court has reviewed many requests for attorney fees and
finds that the amounts sought are not exorbitant for the efforts made and the
issues posed as Plaintiff argues.”
Although expert declarations often prove helpful, the trial court was
entitled to rely on its own expertise in assessing the reasonableness of the
fees claimed and to “ ‘make its own determination of the value of the services
contrary to, or without the necessity for, expert testimony.’ ” (PLCM Group v.
Drexler (2000) 22 Cal.4th 1084, 1096 (PLCM Group).) There is no reason to
think it might have come out any other way had it admitted the Sullivan
declaration. Nor does Spielbauer assert that it might have done so.
Furthermore, as a practical matter, there was little in the Sullivan
declaration that the court did not actually consider. Much of the Sullivan
declaration simply consisted of detailed objections to specific time entries—
objections that, as Midland points out, were incorporated into Spielbauer’s
written opposition to the motion and considered by the court, which, for the
most part, rejected them. The court in fact agreed with Sullivan’s opinion
that one aspect of the fee request was excessive (18 hours of travel time for a
court appearance) and reduced the award accordingly.
For these reasons, Spielbauer has not demonstrated that any error in
excluding the Sullivan declaration was prejudicial. The claimed error
furnishes no basis to reverse the court’s order. (See Code Civ. Proc., § 475.)
Spielbauer’s prejudice argument in its reply brief is both untimely and
unpersuasive.
Second, Spielbauer makes various attacks on the amount of attorney
time spent as inflated and excessive, with regard to specific time entries and
in the aggregate. Some of these arguments are basically cut and pasted from
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its trial court papers. And none take account of the abuse of discretion
standard of review that governs fee determinations, which is highly
deferential. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1130, 1140.) “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.” ’ ” (Id. at p. 1132.) At bottom, Spielbauer simply re-argues the
question it litigated below as to whether Midland’s counsel spent too much
time litigating the anti-SLAPP motion, as if we were empowered to decide the
issue anew. It has not established that the trial court rendered an award
that was clearly wrong. (See, e.g., PLCM Group, supra, 22 Cal.4th at p. 1096
[upholding amount of attorney fee award because “in addition to the detailed
documentation submitted by [the moving party], the superior court was
familiar with the quality of the services performed and the amount of time
devoted to the case”].) We also note that Spielbauer’s arguments are
presented in a vacuum, with no discussion of the nature or complexity of the
issues litigated in the anti-SLAPP motion or the work involved in addressing
them. Such “[c]onclusory assertions of error are ineffective in raising issues
on appeal.” (Howard v. American National Fire Ins. Co. (2010)
187 Cal.App.4th 498, 523.)
Finally, for much the same reasons, we reject Spielbauer’s third
argument: that the trial court erred in declining to take judicial notice of a
consent decree in an unrelated matter that Spielbauer claims substantiates
its position that the amount of Midland’s fee request was inflated and
unreasonable. We review the court’s determination of irrelevance for abuse
of discretion (People v. Camacho (2022) 14 Cal.5th 77, 119), and Spielbauer
has shown none. On the contrary, what little information about the consent
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decree it describes in its appellate brief persuades us that it is irrelevant no
matter under any standard of review. The consent decree does not even
involve attorney fees. Spielbauer says it is relevant because it reflects that
“MIDLAND was required to pay up to $42 million in refunds, and stop
collection on $125 million in debt. It was also required to pay a $10 million
penalty to the [Consumer Financial Protection] bureau’s Civil Penalty Fund.
[¶] This theft, inflation, and gouging is and was a pattern of conduct on the
part of MIDLAND. What is attributable to MIDLAND can also be attributed
to counsel for MIDLAND, particularly given its conduct in this matter. It is
MIDLAND, after all, which is in the end on the hook for the attorney fees
generated in this matter. It is MIDLAND’s law firm which is seeking grossly
excessive fees. Thus, the past conduct of MIDLAND (as well as [Midland’s
counsel]) is relevant.” We do not agree. Whether Midland suffered civil
penalties or other remedies in an unrelated matter before a federal
administrative tribunal, has no bearing on whether the amount of time its
attorneys spent litigating this case was reasonable.
Spielbauer makes other arguments that are far afield and either have
no bearing on the reasonableness of the attorney fee award (such as that its
appeal from the underlying anti-SLAPP ruling, which was dismissed as
untimely, was meritorious) or misperceive the standard of review (such as an
attack on the credibility of Midland’s counsel). These arguments deserve no
comment other than to say they are entirely meritless.
Finally, Spielbauer asserts several new arguments for the first time in
its reply brief. Specifically, it acknowledges that in its reply brief it
challenges more “examples of excessive charges and time” than were
discussed in the opening brief. In addition, scattered throughout its reply
brief are various assertions, unsupported by citation to any legal authority,
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that the trial court’s exclusion of the Sullivan declaration violates due
process. We decline to consider any of these arguments because they have
been forfeited. (See Herrera v. Doctors Medical Center of Modesto (2021)
67 Cal.App.5th 538, 548 [“ ‘It is elementary that points raised for the first
time in a reply brief are not considered by the court’ ”].)
DISPOSITION
The attorney fee award is affirmed. Respondents shall recover their
costs.
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STEWART, P.J.
We concur.
RICHMAN, J.
MILLER, J.
Spielbauer Law Office v. Midland Funding, LLC (A165817)
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