Fourth District, Division Three Affirms Case Involving Steve Rocco, But Extraneous Circumstances Confirm the Necessity for an Undertaking on Appeal.
In our June 23, 2008 post, we reviewed Dowling v. Zimmerman, 85 Cal.App.4th 1400, 1426-1434 (2001), a decision that held an adverse anti-SLAPP fee award must be bonded to prevent execution efforts pending appeal. The next Orange County case—a high profile one that spawned lots of attention by the media—illustrates the application of this rule in real life.
Mr. Rocco, a member of the Board of Education of the Orange Unified School District (District), brought a lawsuit, along with Californians Aware (an organization that advocates open government) and Richard P. McKee (CalAware’s president of its board of directors), alleging First Amendment free speech and associated state right violations when Mr. Rocco was censured for commenting on a principal’s relocation in the District and when his comments were edited from cable television videotape. The trial court granted an anti-SLAPP motion against the mandate/injunction petition brought by CalAware, Mr. McKee, and Mr. Rocco. Subsequently, the lower court awarded attorney’s fees of $37,000 in favor District/one individual defendant and against CalAware/Mr. Rocco.
CalAware/Mr. Rocco appealed, but lost in a recent 3-0 affirmance by the Fourth District, Division Three in Californians Aware v. Orange Unified Sch. Dist., Case No. G038499 (4th Dist., Div. 3 Sept. 4, 2008) (unpublished), authored by Presiding Justice Bedsworth. Justice Bedsworth also has his own Wikipedia entry.
So what about the fee award during appeal? Dowling held that it had to be bonded or else the winning defendants should pursue the assets of CalAware or Mr. Rocco. An article by Eugene W. Fields, in the September 12, 2008 edition of The Orange County Register, gives us insight into what happened. During appeal, Mr. McKee, on behalf of CalAware, posted a bond to cover the fees. Mr. Rocco explained in a quote from the September 12, 2008 article: “Win or lose, I won’t be paying a cent. That’s why you get big organizations to back these things for you and fight them for you.”
Dennis A. Winston, the main attorney for the Rocco group, confirmed that Mr. McKee and CalAware posted a bond to cover the legal fees, which means that the surety for the bond will pay the fees for the losing parties (after someone put up some assets to obtain the bond).
Mike Hensley, who was a 1974-1976 member of the University of Southern California Trojan Debate Squad, sends his greetings to Mr. Winston. He was a first-class debater amassing many awards during his collegiate years at USC.