Fourth District, Div. 2, Underscores That Compliance With Basic Appellate Procedure Is Necessary to Obtain Review of SLAPP Fees Issue.
The next case, Dean Martin v. Inland Empire Utilities Agency, et al., Case No. E051217 (4th Dist. Div. 2, 8/18/11) (certified for publication), involves a complaint alleging causes of action deriving from purported racial and age discrimination and retaliation by Inland Empire Utilities Agency and its CEO, against plaintiff, “a self-described individual of ‘African-American Heritage,’” [that’s the Court’s language, not ours]. Defendants appealed from an order granting their anti-SLAPP motion with leave to amend. Defendants contended the court erred in granting their anti-SLAPP motion as to only one cause of action, granting the motion with leave to amend, failing to rule timely and properly on 33 evidentiary objections, and failing to award them attorneys fees as the prevailing party.
Aside from an excellent hint in the first paragraph of this 31 page opinion as to how it will end (“Affirmed”), footnote 5 also provides excellent clues: “Defendants failed to designate for inclusion in the record on appeal their motion for attorney fees, the reporter’s transcript of the hearing on their motion for attorney fees, or the minute order for that hearing. Moreover, the register of actions included in the clerk’s transcript reflects a hearing on the motion for attorney fees, but does not indicate how the court ruled on that motion.” Take heed, fellow practitioners!
We suspect that one of the reasons the case was published is that it provides a coherent statement regarding appellate jurisdiction and anti-SLAPP motions for attorney fees:
“While none of these cases is directly on point, the single coherent thread weaving through the tapestry of cases on anti-SLAPP motions for attorney fees, as well as any cursory review of basic appellate procedure, is that a party must, at minimum, file a notice of appeal from the order on the motion for attorney fees itself, or from a final appealable judgment entered thereafter. Therefore, this court has no jurisdiction to hear an appeal from an order rendered after defendants filed a notice of appeal from an appealable appellate interlocutory judgment.”
Here, plaintiffs failed to file a notice of appeal form the order denying their motion for attorney fees. Instead, they appealed from an order granting, with leave to amend, their SLAPP motion – and their notice of appeal failed to mention an intent to appeal the court’s ruling on their motion for attorney fees.
And what about the failure to timely rule on objections to evidence? Yup, that was a mistake alright, but the error was harmless.
Finally, the Court of Appeal concluded that defendants hadn’t even prevailed on their anti-SLAPP motion. Why? “[B]ecause the court’s order granting defendants’ anti-SLAPP motion with leave to amend was the functional equivalent of a denial . . . .”
So the plaintiff was spared having to deal with attorney’s fees. But he is not home free: “If plaintiff cannot amend the complaint to allege specific, unprotected speech, then defendants’ remedy may well be a sustained demurrer without leave to amend or a subsequently granted anti-SLAPP motion.” Who knows? The attorney fees issue may come up yet again in this case.