Second District, Division 1 So Holds, After Split in Opinion By Two Unpublished Cases.
In our June 19, 2008 post, we discussed Foster v. Warner, 2008 WL 2445106 (Cal. Ct. App. 2008), which held that the anti-SLAPP mandatory fee shifting provision (CCP § 425.16(c)(1), mandatory as to a prevailing defendant) does not authorize an attorney’s fees award against plaintiff’s counsel. However, in a later post on May 9, 2010, we looked at Mory v. City of Chula Vista (S.D.Cal. May 7, 2010), where U.S. District Judge Janis Sammartino came to the opposite result based on the case authority indicating the statute should be broadly construed. Well, we finally have a published “tie breaker” on this issue.
Moore v. Kaufman (Diaz), Case Nos. B206679 et al. (2d Dist., Div. 1 Oct. 22, 2010) (certified for publication) involved a wild set of facts in which a fee award was bizarrely entered against a plaintiff’s counsel and in favor of defendant after a SLAPP motion victory. The original award was about $41,506, but swelled to $170,000 based on a request to add post-judgment enforcement fees of over $131,000. Contempt proceedings were initiated when counsel refused to answer judgment debtor examination questions based on the notion that the fee award judgment was void. With an appeal pending, the attorney filed a petition with the appellate court for relief. The petition was found meritorious.
The appellate court found nothing in the statute’s language suggests that the court can award SLAPP fees against a plaintiff’s attorney. That naturally followed from the corollary that fees are usually awarded as sanctions against an attorney in most situations. Although agreeing that the statute should be broadly construed, such a principle in and of itself could not justify interpreting the statute as authorizing either a mandatory or discretionary fee award against plaintiff’s counsel.
Because the judgment against counsel was void, no valid contempt judgment could be based thereon. (People v. Gonzalez, 12 Cal.4th 804, 817 (1996).) The appellate court also found an earlier adverse ruling against counsel in an earlier appeal was not law of the case, invoking the exception that it does not have to be followed if it results in a manifestly unjust decision. The $170,000 judgment sought to be enforced against counsel, when there was not basis for it under the SLAPP statute, fell within that exception. Petition granted, directing the lower court to vacate the contempt judgment and delete counsel’s name from the fee judgment.
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