Case Highlights That Inconsistencies In Declaration Testimony Can Doom A Law-And-Motion Proceeding Request.
Thomas v. Makovoz, Case No. B281322 (2d Dist., Div. 8 June 12, 2018) (unpublished) is a doozy of a case where inconsistencies in an attorney’s SLAPP fee submissions tanked efforts to obtain fee recovery after she won a defense SLAPP motion with a mandatory fee-shifting provision.
Dogs tend to dominate things for dog lovers, and the underlying dispute here was a testament to that. Plaintiff and defendant, both attorneys, are neighbors and had at least five altercations with their dogs. Five civil harassment actions resulted involving plaintiff, defendant, and their respective spouses.
One of the actions resulted in defendant successfully bringing a SLAPP motion against plaintiff, with the trial judge eventually denying fees to defendant after several proceedings in which defendant sought $26,460 in fees.
The denial of fees was affirmed on appeal. The main reason was that the defense submissions for fees contained inconsistencies which neither the trial nor appellate courts could get past. Defendant first sought fees for her attorney work (noncompensable under the Trope prohibition), then sought fees for claimed work on behalf of her husband (but he was not involved in the case with the SLAPP motion), and also sought fees for work of an “of counsel” colleague even though it was not asked for at first (with the courts having doubts that this work was really the target of the fee motion throughout). These inconsistences sealed the deal, which is a lesson to all: make sure you are consistent in your law-and-motion paperwork.
Defendant also argued that a costs memorandum asking for costs and fees, once entered, was dispositive. But the appellate court found that the costs memorandum, as far as fees were concerned, had to be adjudicated through a noticed motion so that the reasonableness of the costs memo request could be passed on.