CALIFORNIA ATTORNEY'S FEES

Appealability/SLAPP/Substantiation Of Fees: First District Entertains Challenge Of SLAPP Fee Award Even Though Fee Award Not Specifically Appealed

 

Informative Discussion of SLAPP Fee Appealability Cases and Block Billing Implications.

     Though unpublished, the appellate decision in LegacyQuest v. Rosen, Case No. A129177 (1st Dist., Div. 1 Jan. 27, 2012) (unpublished) has a great discussion of SLAPP fee order appealability issues as well as trial court discretion relating to block billing time submissions by fee claimants.

     Defendant won a SLAPP motion on plaintiff’s libel claim and was then awarded $23,449 in attorney’s fees under the SLAPP mandatory fee-shifting statute. Plaintiff appealed the SLAPP grant, but did not specifically appeal the second subsequent fee order.

     That meant that the appellate court first had to determine if it had jurisdiction to entertain the merits of the fee challenge, with two issues having to be resolved in the process.

SLAPP: Trial Court Correctly Refused to Award Fees Against Unsuccessful SLAPP Defendants

 

Defense Motion Was Not Frivolous In Nature.

     Though successful defendants are entitled to reasonable attorney’s fees for winning a SLAPP motion, they are not exposed to fees unless their motion is found to be frivolous in nature. That frivolousness test was not met in Mandurrago v. City of Carmel-By-The-Sea, Case No. H036488 (6th Dist. Jan. 23, 2012) (unpublished).

     There, the appellate court reversed a trial court’s SLAPP grant, which resulted in a subsequent vacating of the grant and denial of the SLAPP fee. Plaintiff, apparently sensing blood in the water, moved to recover fees from the defense, a request denied by the trial court and prompting plaintiff’s appeal of the fee denial. 

     Fee denial affirmed. The defense motion, although unsuccessful, was not frivolous in nature. Plaintiff’s claims were not easy to categorize, and the appellate court had to engage in an earlier nuanced analysis in the prior appeal to distinguish the defense legal authorities. The frivolousness standard simply was not met in this one.

SLAPP: $37,000 Out Of Requested $95,678.29 In Fees Affirmed On Appeal

 

Numerous Challenges to SLAPP Award Rejected.

     In LaMunyon v. Reid & Hellyer, APC, Case No E052887 (4th Dist., Div. 2 Dec. 9, 2011) (unpublished), the appellate court sustained a mandatory fee award to the defense of $37,000 (broken down $17,000 for trial court services and $20,000 for successful prior appellate work) in winning a SLAPP proceeding, even though the defense requested $95,678.29 in fees.

     After liberally construing the notice of appeal to encompass the fee award, the Court of Appeal rejected three challenges made by losing plaintiffs.

     First, recoverable attorney’s fees are separate from costs either awarded or not awarded by the appellate costs, with the costs award not impinging against a future fee request. (Butler-Rupp v. Lourdeaux, 54 Cal.App.4th 918, 922, 927-930 (2007).) Second, the defense had standing to seek fee recovery even if its fees were paid by a third party insurance carrier. (Marcias v. Hartwell, 55 Cal.App.4th 669, 671-672, 675-676 (1997); cf. Rosenaur v. Scherer, 88 Cal.App.4th 260, 285 (2001) [pro bono case].) Finally, the fees were not excessive because no specific point in the record was cited to support the challenge.

     The defense, not content with its win, also argued that it should increase the fee further, because $37,000 was not enough. This one did not go very far, because the defense did not file a cross-appeal so as to preserve the argument for an increased fee award. (Briggs v. Nilson, 226 Cal.App.2d 342, 349 (1964).) However, this loss did not preclude winning defendant from seeking further appellate fees for winning this second SLAPP appeal.

SLAPP: Before Fees Can Be Awarded, Merits Of SLAPP Motion Must Be Considered

 

Ruling So Held in Strange Peremptory Challenge of Deciding Trial Judge.

     The next case occurred in the context of a rather strange procedural framework.

     In Rolla v. Speidel, Case No. D05783 (4th Dist., Div. 1 Nov. 22, 2011) (unpublished), the original trial judge granted a peremptory challenge and the case was assigned to another judge. The second judge granted SLAPP motion on some causes of action, and plaintiff dismissed the remainder. Plaintiff filed a second action based on new causes of action, and it was assigned to the original judge who was “struck” via the peremptory challenge. But, wait, it gets better. Plaintiff did not file a normal peremptory challenge, opting instead to file a bias challenge that was rejected because different causes of action were involved. The defense filed a SLAPP motion to the second action, plaintiff dismissed the second before the motion could be heard, and the originally “stricken” trial court granted the defense $15,000 in attorney’s fees as the prevailing party on the SLAPP motion without really considering the merits.

     Plaintiff’s appeal had mixed results.

     Plaintiff didn’t win the argument that the first peremptory challenge was a continuation action which could “strike” the judge a second time around because the second action was not just a continuation of the first action. This meant the original “stricken” judge had jurisdiction to award fees.

     However, here came the rub. Reversal and remand was required because the judge did not consider the merits of the SLAPP motion before awarding fees, agreeing with the analysis of Liu v. Moore, 69 Cal.App.4th 745, 750-753 (1999) that this predicate step had to be undertaken.

SLAPP/Private Attorney General Statute: Government Municipality Winning SLAPP Motion Entitled To Fee Award

 

Noerr-Pennington Sham Exception Did Not Need to be Hurdled By City, Resulting in Affirmance of $226,928 Fee Award.

     The Sixth District in Vargas v. City of Salinas, Case No. H035207 (6th Dist. Nov. 18, 2011) (certified for publication), a case that had gone up to the California Supreme Court and back through the lower courts, affirmed a $226,928 attorney’s fees award and $2,495.84 costs award in favor of the City of Salinas after it won a SLAPP motion in plaintiffs’ suit for misuse of public funds in supporting a utility tax.

     Plaintiffs’ multiple challenges to the fee/costs award were rejected on appeal.

     Plaintiffs were not successful parties for purposes of a private attorney general statute. Although they did win some arguments in the supreme court case, plaintiffs lost the war and did not “catalyze” any change in governmental conduct. “This is not success,” said the appellate court, relying on Ebbetts Pass Forest Watch v. Dept. of Forestry & Fire Protection, 187 Cal.App.4th 376, 387-388 (2010).

     SLAPP law did apply to plaintiffs’ suit against the City, based on the supreme court’s reasoning in Vargas I (Vargas v. City of Salinas, 46 Cal.4th 1, 17 (2009).)

SLAPP Two-Fer: Appellate Courts Consider Two Separate Fee Awards Against The Defense For Frivolous SLAPP Motions

 

One Remanded; The Other Affirmed.

     Here is a situation we do not blog on that much: fee awards against the defense for bringing frivolous SLAPP motions, fully allowable under CCP § 425.16(c)(1).

     In Mazzaferri v. Mazzaferro, Case No. A131076 (1st Dist., Div. 5 Nov. 9, 2011) (unpublished), defendants were sanctioned for filing frivolous SLAPP motions, with the trial court first awarding $11,150 in fees/costs with boilerplate sanctions language and then awarding $4,150 more at an ex parte proceeding brought to reduce the sanctions. The appellate court reversed. The defense first argued that the trial court erroneously sanctioned under CCP § 128.5 (which applied to pre-1995) actions rather than § 128.7, which has much different safe harbor protections. This one did not work, because 128.5 has been held to continue to apply to sanctions requests under section 425.16(c)(1). (See Olmstead v. Arthur J. Gallagher & Co., 32 Cal.4th 804, 817-818 (2004), agreeing with the analysis of Decker v. U.D. Registry, Inc., 105 Cal.App.4th 1382, 1392 (2003), superseded by statute on a different point as stated in Hall v. Time Warner, Inc., 153 Cal.App.4th 1337, 1349 (2007).) However, reversal was required because of two reasons: (1) the lower court did not follow 128.5 procedures by clearly articulating the reasons for the sanctions other than boilerplate recitation of the statute, a “no no” requiring remand; and (2) the $4,150 further award was made at an ex parte proceeding with no chance for the defense to have adequate notice and an opportunity to be heard.

     However, a frivolous SLAPP sanction was affirmed in Faro De Luz v. Morales, Case No. B223488 (2d Dist., Div. 3 Nov. 9, 2011) (unpublished), where the defense and their lawyer (with the lawyer not appealing) being hit with fees/costs of $19,291.60. The defense suggestion that its appeal of the SLAPP merits ruling somehow stayed a fee ruling was rejected. (Carpenter v. Jack in the Box Corp., 151 Cal.App.4th 454, 461 (2007).) Although the trial court relied on CCP § 128.6 (a replacement statute to § 128.5 given “sunset” issues with 128.5), there was no procedural error of a prejudicial nature because both statutes were identical in nature. In an interesting footnote, the attorney challenged the fee award (even though she only appealed on behalf of her clients) on the basis that SLAPP fee awards can only be directed against parties, not counsel. The appellate court agreed that this was the case with respect to SLAPP fee/costs awards against plaintiffs, but that section 425.16(c)(1) was a sanctions statute incorporating 128.5 parameters--meaning that a frivolous fee/costs award could be entered against parties and/or their counsel. (Slip Opn., p. 10, fn. 10.)

SLAPP: $92,898 Fee Recovery Not Time Barred And Not Excessive

 

$16,000 Deduction for Unnecessary Collaboration Showed No Abuse of Discretion.

     McCoy v. Walczak, Case No. A129671 (1st Dist., Div. 4 Oct. 21, 2011) (unpublished) involved a situation where a trial court denied a timely filed fee motion by a winning SLAPP defendant in a defamation suit “without prejudice,” but later awarded $92,898 to two sets of attorneys when the motion was filed soon after the first ruling. Losing plaintiff was miffed, and appealed.

     Result?

SLAPP: Consideration Of Attorney’s Fees In Separate Motion After Voluntary Dismissal Of Prior Cross-Complaint Is Acceptable Trial Court Procedure

 

Fee Order Reversed By Lower Court When Separate Fee Motion Procedure Used.

     Although the appellate court aptly described the overall cause as a “trial court’s resolution of a procedural morass” under the anti-SLAPP statute, JP Builders, Inc. v. Leebove, Case No. A130270 (1st Dist., Div. 1 Oct. 7, 2011) (unpublished) does confirm the flexibility accorded to lower courts when adjudging fee requests under the anti-SLAPP mandatory fee shifting statute after plaintiffs dismiss complaints.

Flexibility

     Boiling the facts down somewhat, plaintiffs dismissed a cross-complaint in a homeowner-contractor construction defect/payment dispute after an anti-SLAPP motion was filed, which prompted the court to still rule on the motion and issue a tentative granting fees of $7,429 to the successful cross-defendant contractor. However, the lower court concluded that the contractor should file a separate attorney’s fees motion which ultimately was denied when the court determined that homeowners demonstrated a probability of prevailing on their claims after opposition papers were submitted. Contractor sought appellate relief.

     Contractor did not get it.

     Using a separate motion to adjudge anti-SLAPP fees is a very acceptable alternative, with the appellate court observing “we see no reason why a trial court would lack the power to proceed in that fashion.” (Slip Opn., p. 9.) Then, on the merits, the appellate court saw no error in the trial court’s shift in opinion on the fees issue since the contractor’s alleged conduct was just that--tied to conduct (shoddy workmanship and overbilling), not protected activities.

SLAPP/POOF!: $38,784.50 Fee Award Goes POOF! Upon Reversal Of SLAPP Grant

 

     In Panakosta Partners, LP v. Hammer Lane Management, LLC, Case No. C065812 (3d Dist. Sept. 27, 2011) (certified for publication), minority limited partners were hit with an adverse fee award of $38,784.50 when majority partners SLAPPed them for bringing a petition for buyout (to avoid a judicial dissolution) under Corporations Code section 15908.02. The fee award went POOF! upon the appellate court's determination that the petition for buyout was not subject to being SLAPPed.

SLAPP: Striking SLAPP Motion For Untimeliness Does Not Mean Motion Was Frivolous So That Plaintiff Should Be Awarded Fees

 

Also, CCP Section 128.5 Standards Do Apply to SLAPP Statute, Even Though 128.5 Is Long Gone.

     The Second District, Division 3 answered two questions under the SLAPP statute provision that allows a lower court to award fees to a winning plaintiff, the SLAPP opponent.

     Usually, a prevailing defendant automatically is awarded reasonable fees for winning a SLAPP motion. However, Code of Civil Procedure section 425.16(c)(1) does allow a plaintiff prevailing on a SLAPP motion to be awarded fees only if the trial court finds that the SLAPP motion was frivolous or solely intended to cause unnecessary delay, expressly incorporating the standards of Code of Civil Procedure section 128.5 (which applied to complaints filed on or before December 31, 1994, and now supplanted by section 128.7 and its safe harbor/notice protections).

     Chitsazzadeh v. Kramer & Kaslow, Case No. B222988 (2d Dist., Div. 3 Sept. 27, 2011) (certified for publication) confronted a situation where a prevailing SLAPP plaintiff was awarded attorney's fees of $900 under section 425.16(c)(1) because the trial court found the defense motion was frivolous/dilatory in nature. However, the procedural wrinkle was that this finding was based solely on finding that the defense untimely filed the SLAPP motion past the 60-day filing deadline (i.e., 60 days after service of the complaint). The Court of Appeal reversed the fee award, finding untimeliness alone does not satisfy the frivolous/dilatory standard given that a lower court has discretion to consider, and grant or deny on the merits, a SLAPP motion filed after the 60-day deadline even if the moving defendant fails to request leave of court to file the untimely motion.

     On another issue, the appellate court rejected the notion that section 128.5's expiration as of the end of 1994 meant the 128.5 standard was not injected into section 425.16(c)(1) because that latter SLAPP provision incorporated the substantive/procedural requirements of section 128.5 but did not incorporate its limitation as to the date of the filing of the complaint.

     $900 fee award reversed in the case of the untimely defense SLAPP motion.

SLAPP: Be Careful Of Bringing A Malicious Prosecution Cause of Action

 

If You Defended Quickly, Bringing This Might Open You Up to SLAPP Fees,

Fourth District, Division 3 States In an Interesting Footnote.

     Although not dealing directly with attorney’s fees, a recent unpublished Fourth District, Division 3 decision should give all litigators pause when thinking about filing a malicious prosecution action after defending against an action that went away on a pretty quick time string.

     Justice Ikola, in Seto v. Osako, Case No. G044331 (4th Dist., Div. 3 Sept. 20, 2011) (unpublished) had this to say in an interesting footnote:

SLAPP: Second District, Div. 3 Reverses Order Awarding Fees to SLAPP Defendant

Court of Appeal Reverses With Directions to Trial Court to Determine if SLAPP Defendant is Entitled to Fees and the Reasonable Amount of Any Award.

     Our next case, Fremont Reorganizing Corporation v. Faigin, Case No. B218178 (Second Dist. Div. 3, August 30, 2011 (certified for publication) concerns an in-house attorney who sued his alleged joint employers for wrongful termination, and who then had to defend against a cross-complaint brought against him.  The cross-complaint alleged that the attorney had wrongfully informed the Insurance Commission that the attorney’s former clients were wrongfully planning to auction certain artworks, breaching professional and fiduciary duties along the way.  The attorney claimed that his communicative conduct was protected speech and subject to the litigation privilege.  The trial court granted the attorney’s anti-SLAPP motion and awarded fees.  The attorney appealed.

     The Court of Appeal partially reversed the order granting a special motion to strike and reversed the award for attorney’s fees.  Because the attorney/cross-defendant was partially successful with his anti-SLAPP motion, the trial court will now get to exercise its discretion:  “A court awarding fees to the moving party on a partially successful anti-SLAPP motion must exercise its discretion in determining the amount of fees and costs to award in light of the moving party’s relative success in achieving its litigation objectives. . . . The trial court on remand must exercise its discretion in determining whether Faigin is a prevailing cross-defendant, and if so, the appropriate amount of fees and costs to award.”

     The 3-0 opinion was authored by Justice Croskey.

SLAPP: Sloppy Record Scotches Fees, But Appeal Court Synthesizes SLAPP Wisdom

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.

Special Fee Shifting Statute/Substantiation of Fees: $71,500 Attorney’s Fees Award Sustained Against Many Procedural Challenges

 

SLAPP Appeal Did Not Stay Fee Motion and Block Billing Challenge Rejected.

     In Mangine v. Steier, Case Nos. B219022/B222822 (2d Dist., Div. 7 Aug. 9, 2011) (unpublished), plaintiff was SLAPPed and lost a summary adjudication of a landlord-tenant dispute in which the lower court granted attorney’s fees of $71,500 to present landlord under Civil Code section 1942.4 (which allows fee recovery to the winner of a habitability breach claim). Disappointed tenant appealed.

     Disappointment continued when the fee award was affirmed despite several procedural challenges.

Tenant argued that the postjudgment fee order was stayed by the prior appeal of the anti-SLAPP ruling, but that argument was done in by Varian Medical Systems, Inc. v. Delfino, 35 Cal.4th 180, 196-200 (2005).

     She also protested over some fee substantiation billing material where block billing was present (Martino v. Denevi, 182 Cal.App.3d 553, 558-559 (1986)), but the appellate court found that an attorney’s declaration about number of hours worked in tandem with the lower court’s familiarity about lawyer work could surmount this type of challenge--which was in the appeal at hand.

Family Law/SLAPP: Fourth District, Division 3 Give Us a Two-Fer

 

Family Code Section 271 Sanctioning Authority Justified $3,000 Fee Award Against Ex-Wife.

     Acting Justice Bedsworth, on behalf of a 3-0 panel, affirmed a $3,000 award against ex-wife based on Family Code section 271. That section imposes a “minimum level of professionalism and cooperation” to effectuate settlement in the family law area and authorizes sanctions in the form of paying for the other side’s attorney’s fees even though there is no actual injury. (In re Marriage of Davenport, 194 Cal.App.4th 1507, 1524 (2011).) After all, ex-wife sent lots of emails to ex-husband and her attorney, calling husband’s new wife “an ilegal whore,” told him he could “go to hell” if he thought she would reach a pretrial settlement, and warned him “I will pay every attorney in town and go broke before I give you a single dime.” She was also evasive and contradictory in her trial testimony. Little wonder the 271 award was affirmed in Marriage of Mamdani and Pillet, Case No. G043554 (4th Dist., Div. 3 July 26, 2011) (unpublished).

Winning Litigant Unsuccessfully Sought More SLAPP Fees For Prevailing Below.

     In this one, Justice Ikola, for a unanimous panel, affirmed a lower court’s decision to award $6,729 in fees and no costs (out of a requested $22,838.50 in fees and $1,654.24) to Orange County Board of Supervisors after it SLAPPed a mandate petition brought by a taxi company in a dispute over losing a taxi concession for the John Wayne Airport to a competitor. The costs were properly not awarded because Board was exempt from certain costs under Government Code section 6103, and it cited no authority that expenses like mileage/parking for attorneys, messenger costs, and document copy costs were recoverable under the SLAPP fee-shifting statute. As far as the fee award, the trial court was found to be in a better position to gauge reasonableness of hours, hourly rate, and work allocation for purposes of fashioning an award. The decision sustaining the award is A White and Yellow Cab v. Orange County Bd. of Supervisors, Case No. G043209 (4th Dist., Div. 3 July 27, 2011) (unpublished).

SLAPP: $41,250 Fee Award Remanded For Potential Failure To Allocate Out Non-SLAPP Motion Activities

 

Second District, Division 3 Directs Recalculation of SLAPP Fee Award.

     In Fuchs v. Smith, Case No. B222470 (2d Dist., Div. 3 July 5, 2011) (unpublished), defendants SLAPPed plaintiff’s malicious prosecution suit and were awarded all of their fees reasonably incurrred in the action (not merely SLAPP related fees), although the lower court did find the $85,600 fee request excessive--trimming it down to a $41,250 fee award.

      Plaintiff appealed.

     Upon review, the appellate court reversed and remanded for a recalculation of fees.

     It found that fees can only be awarded for fees incurred for the defense extracting itself from a baseless suit through the SLAPP proceeding, rather than reimbursing the defense for all expenses incurred in the baseless suit. In doing so, the appellate court--in a footnote--found that any “all fee reimbursement” reasoning from Metabolife International, Inc. v. Wornick, 213 F.Supp.2d 1220 (S.D.Cal. 2002) was simply “contrary to California law.” (Slip Opn., p. 9 n. 7.)

     On remand, the appellate court directed the trial court to carefully look at fees spent on a discovery motion, fees relating to an insurance dispute, and fees spent by another attorney party in his SLAPP proceeding for purposes of recalculating a proper fee.

SLAPP/In The News . . . . Two SLAPP Victories Means Probable Attorney’s Fees To the Winners

 

Yelp!/Youch!:  Plastic Surgeon Hit With $20,000 in SLAPP and $2,000 in Private Attorney General Fee Awards.

     As reported by Gary Klien in a June 24, 2011 post carried in MercuryNews.com, a Marin County cosmetic surgeon (Ms. Kimberly Henry of Greenbrae) was assessed $20,000 in attorney’s fees for losing a SLAPP motion brought by a former patient who was sued for her patient’s bad Yelp reviews. The surgeon was also ordered to pay $2,000 in fees to defendant’s lawyer for the “public interest benefit” aspect of his work on the case.

Oceano Community Services District May Get SLAPPed Harder--Nearly $75,000 in Fees According to a Tentative Decision.

     Lisa Rizzo, in her June 24, 2011 post on calcoastnews.com, reports that the Oceano Community Services District may get SLAPPed harder, with a tentative decision assessing nearly $75,000 in attorney’s fees after it was found to have illegally appointed Lori Angelo to the board after Barbara Mann resigned from the board. That was the recent tentative decision by San Luis Obispo County Superior Court Judge Charles Crandall.

SLAPP: Texas Recently Enacts SLAPP Statute Similar to California’s Statute, With Similar Fee Shifting Provisions

 

U.S. Congress and North Carolina Also Considering SLAPP Legislation.

     We have posted frequently on California’s anti-SLAPP statute and its fee-shifting provisions.

      We can now report that, according to a June 20, 2011 post on the Reporters Committee for Freedom of Press News website, Texas is the 27th state, along with the District of Columbia, to adopt anti-SLAPP litigation. The U.S. Congress and North Carolina are considering similar legislation.

      Much like California’s statute, the trial judge in a Texas anti-SLAPP proceeding must (shall language) award to the moving party “court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require.” (BLOG OBSERVATION--This statute appears to be broader than California’s, with some decisions indicating that the work must be related to the anti-SLAPP proceeding rather than broader “in connection” work. Compare Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 39 Cal.App.4th 1379 (1995) [stricter “related” work interpretation of California anti-SLAPP statute] with Rosenaur v. Scherer, 88 Cal.App.4th 260, 285-286 (2001) [Lafayette supplanted by later legislative amendment requiring only an “in connection” work test]. However, the Texas statute talks about costs, fees, and expenses incurred in defending against the legal action--seemingly much broader than the California provision.) Also in line with California, the trial judge may (discretionarily) award costs and fees to the responding party where he/she finds that the plaintiff’s motion was frivolous or intended solely for delay.

SLAPP: Trope Limitation Prevents Winning Law Firm And Its Partners From Recouping Fees Spent In Successful Appeal

 

Use of Associate For Appellate Work Was Tantamount to “Lost Opportunity Costs” Not Allowable under Trope.

     We have done numerous posts on the Trope limitation which prevents in pro per attorneys representing themselves from obtaining attorney’s fees recovery under various fee-shifting statutes or contractual clauses. Now, Justice Mosk of the Second District, Division 5 has penned an opinion reviewing Trope-inspired jurisprudence and concluded on behalf of a 3-0 panel that an associate working for a law firm/its partners is disqualified from seeking fee recovery on the attorneys’ behalf.

     Carpenter & Zuckerman v. Cohen, Case No. B215544 (2d Dist., Div. 5 May 10, 2011) (certified for publication) involved a situation where cross-defendants (a law firm and two individual partners) won a SLAPP motion against a cross-complaint filed by former clients and then obtained dismissal of the ensuing appeal as being untimely in nature. Winning attorneys had used an associate in the firm to do the appellate work under an independent contingency arrangement. They then requested recovery of $33,168.75 in attorney’s fees for the appellate win. The trial court refused to make the award, reasoning that the associate’s work fell within the Trope limitation. Disappointed law firm and its partners appealed.

SLAPP: Fee Awards--Substantially Reduced From Fee Requests--Are Affirmed

Second District, Division 1 Finds No Abuse of Discretion in Awarding Reduced Fees to Winning Defendants.

     Here is a case that demonstrates that the mandatory fee awards awardable to defendants under Code of Civil Procedure section 425.16(c)(1) are hinged on reasonable fees, with trial courts not having to rubberstamp fee requests that are too high in nature.

     Cammarata v. Bright Imperial Limited, Case Nos. B222909/B218226 (2d Dist., Div. 1 Apr. 29, 2011) (unpublished) was a situation where two groups of defendants won SLAPP motions against plaintiff, with one group requesting $115,436.85 in fees/$3,801.03 in costs and another group requesting $81,292.90 in fees. The trial court granted defendant group #1 fees of $35,000 and defendant group #2 fees of $40,000, fiinding both requested amounts to be “excessive.”

     Although everyone appealed, the fee awards were affirmed.

Slo Mo Slap.

     After denying a motion to dismiss the appeal which was effectively mooted by a prior appellate opinion, the Second District, Division 1--in a 3-0 opinion authored by Justice Rothschild--hammered home that only reasonable fees are an entitlement under the SLAPP fee-shifting statute, with the trial court not having to simply award the sums requested. (Christian Research Institute v. Alnor, 165 Cal.App.4th 1315, 1321 (2008); G.R. v. Intelligator, 185 Cal.App.4th 606, 620 (2010).) Here, because the fee motions by both groups were similar such that duplication was transparent, the trial court did not abuse its discretion by reducing fees down to a reasonable level. In doing so, the trial court can (and in this instance, did) draw down on such insights as the time spent by the opponent-plaintiff on the SLAPP fee motions and its own experience/expertise in handling complex cases. (Maughan v. Google Technology, Inc., 143 Cal.App.4th 1242, 1248-1253 (2006).)

 

SLAPP/POOF!: Reversal Of SLAPP Ruling Means Defendants’ Fee/Costs Award Went POOF!

 

$28,712.50 Fee/Costs Award Was the Victim in This One.

     Defendants probably felt pretty good after they SLAPPed plaintiff’s suit and won fees/cost of $28,712.50 under the SLAPP mandatory fee-shifting statute. The feeling was somewhat short lived, however.

     The appellate court in Gonzales v. Gonzales Foundation, Case Nos. A123857/124346 (1st Dist., Div. 3 Apr. 25, 2011) (unpublished) reversed the SLAPP grant, which also resulted in a reversal of the fee/costs award. The appellate court also noted that plaintiff could move for fees/costs if he could demonstrate the SLAPP motion was frivolous or dilatory in nature, although it gave no opinion on whether this was the case. Reversal of fortune, to say the least.

         

Wheel of Fortune.  Las Vegas.  1940  Arthur Rothstein, photographer.

SLAPP: Reduction In Fee Request Remanded For Trial Court To Specify Basis For Reduction

 

Noerr-Pennington Challenge Once Again Rebuked in SLAPP Fee Area.

     In The Petersen Law Firm v. City of Los Angeles, Case No. B220030 (2d Dist., Div. 4 Apr. 13, 2011) (unpublished), The Petersen Law Firm was SLAPPed in state court for bringing an unsuccessful mandate petition to force compliance with certain police department statutory provisions and policies, after the case was remanded by federal court in the wake of a prior removal by City of Los Angeles and other defendants. (The federal court, in remanding, did not decide a SLAPP motion filed by the defense before the case went back to state court.) The state trial court subsequently awarded defendants attorney’s fees of $25,000 (out of a requested $52,278) and costs of $1,500 (out of a requested $2,715.10), with no reasoning for making the reductions. The law firm appealed the SLAPP and fee orders, while defendants cross-appealed the fee reduction.

     The law firm lost its appeal. The principal argument was that the fee award was barred by the Noerr-Pennington doctrine, but that doctrine was found inapposite for reasons expressed in a prior recent unpublished decision from Division 3. (See Ruttlen v. County of Los Angeles, Case No, B223345 (2d Dist., Div. 3 Mar. 30, 2011) (unpublished) [reviewed in our March 31, 2011 post].)

     Defendants fared better on appeal. Because the law firm raised no objections to specific hours spent in the fee request, the appellate court remanded to have the trial court specify why the fee request was reduced. It may have been that the lower court reduced for duplicative defense work in filing the federal SLAPP motion, but the reviewing court did not want to speculate one way or the other. So, defendants may have opportunity to recoup more fees upon remand in this one.

SLAPP: One Of the Real Housewives OF O.C. Feels The Sting Of SLAPP Fee-Shifting Statute

 

Gretchen Rossi Hit With Almost $41,000 in Fees for SLAPPed Defamation Suit Against Ex-Boy Friend.

     We frequently have blogged on the SLAPP fee-shifting statute, which requires a mandatory imposition of reasonable attorney’s fees to a defendant winner. Well, even celebrities are not beyond its reach.

     “Real Housewives of O.C.” star Gretchen Rossi had her defamation suit against ex-boy friend Jay Photoglou SLAPPed by Orange County Superior Court Judge Gregory Munoz in January of this year. In doing so, Judge Munoz decided that Ms. Rossi had to pay attorney’s fees and costs totaling $40,799.38, which reflected a $2,410 fee reduction for work not directly connected with the SLAPP motion and a $ 545.32 reduction for disallowed costs. Ms. Rossi also unsuccessfully attempted to disqualify Judge Munoz in the case.

     Although the award may help Mr. Photoglou somewhat, he claims to have spent about $85,000 in defending the case.

SLAPP: Fee Recovery Was Proper, Not Barred By The Noerr-Pennington Doctrine

 

$125,491.81 Fee Award Against Plaintiff Sustained on Appeal.

     Plaintiff, after being hit with an adverse $125,491.81 fee award after losing a SLAPP motion, challenged the fee award in Ruttlen v. County of Los Angeles, Case No. B223345 (2d Dist., Div. 3 Mar. 30, 2011) (unpublished). Her challenge was that the award was unconstitutional and barred by the Noerr-Pennington (Eastern v. Conf. v. Noerr Motors, 365 U.S. 127 (1961) and Mine Workers v. Pennington, 381 U.S. 657 (1965)) doctrine. [That doctrine, which was first applied in the antitrust area and then expanded to other areas, grants general immunity to those who petition any department of government for redress unless the activities are sham in nature.]

     The appellate court found the doctrine did not apply in the SLAPP context. The fatal flaw in the challenge is that the doctrine only immunizes parties from “civil liability,” critically distinguishable from imposing an award under a fee-shifting statute. (Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53, 62-63 (2002); accord, Bernardo v. Planned Parenthood Federation of America, 115 Cal.App.4th 322, 361-362 (2004); Premier Elec. Constr. Co. v. N.E.C.A, Inc., 814 F.2d 358, 373 (7th Cir. 1987).)

SLAPP: City of Alhambra v. D’Ausilio Decision Now Published

 

Rare SLAPP Fee Award Against Defendant Affirmed And Appellate Fees Assessed For Frivolous Appeal.

     On March 13, 2011, we did a post on City of Alhambra v. D’Ausilio, where a defendant losing a SLAPP motion was hit with attorney’s fees for a frivolous motion as well as appellate fees for bringing a frivolous appeal of the lower court’s SLAPP ruling. The D’Ausilio decision was certified for publication on March 29, 2011.

     BLOG OBSERVATION--This decision can be read as indicating that appellate fees for affirming a frivolous SLAPP fee award below must satisfy the frivolous standard on appeal (similar to the one used at the trial level). However, one could certainly argue that the fees are awardable if the respondent shows that the frivolous lower court ruling was proper--not having to show the appeal itself was frivolous. We predict there will be more jurisprudence on this issue.

SLAPP: Challenge To Fee Recovery Waived, Although It Would Have Been Meritorious

 

Raise the Argument Before the Trial Court!

     SLAPP has a mandatory fee-shifting provision that favors successful defendants. In Vafi v. Heather McCloseky, Case No. B223237 (2d Dist., Div. 8 Mar. 22, 2011) (certified for partial publication; fee discussion unpublished), defendants won a SLAPP motion below and also garnered a $14,327 fee award. Plaintiff appealed

     The defense affirmed both the merits and fee award.

     However, in a cruel twist of fate, plaintiff actually had a good challenge to the fee recovery on appeal--attorneys represented themselves in the SLAPP motion and this will not give rise to recovery under the Trope rule. (Taheri Law Group v. Evans, 160 Cal.App.4th 482 (2008).) But plaintiff never raised this argument below, so that it was deemed forfeited on appeal because an appellate court has discretion to consider purely legal issues anew. It decided not to in this case. Moral of this one: raise your arguments before the trial court, as any good appellate practitioner would remind you.

SLAPP: Malicious Prosecution Plaintiff Suffers $36,000 Fee Award Setback

 

Trial Court Did Not Have to Gauge SLAPP Fees Based on Fees Awarded to Plaintiff in Prior Underlying Suit Claimed to Have Been Maliciously Prosecuted.

     Here is an interesting one for our “SLAPP” category, remembering that attorney’s fees are mandatory for defendants winning anti-SLAPP motions. (Code Civ. Proc., § 425(c)(1).) It also reinforces the old adage to “let sleeping dogs lie” (with co-contributor Marc’s dog Watson and Mike’s dog Riffle concurring completely).

     Lutge v. MacKague & Tong, Case No. A127358 (1st Dist., Div. 2 Mar. 22, 2011) (unpublished) involved a situation where a defendant who prevailed in a prior construction defect suit turned around and sued the property owners, their attorneys, and their expert witness as defendants in a malicious prosecution suit. Unfortunately, not allowing the sleeping dogs to lie, former defendant (now a plaintiff) had his malicious prosecution suit SLAPPed, resulting in fee awards of $17,740 to expert witness and $18,682 to the defendant attorneys.

     Although appealing the merits and one of the fee orders, SLAPPed plaintiffs lost on both counts (even though he did not contest at all the award of fees to the expert).

     Plaintiff argued that the $18,682 award to attorneys, in effect, was outrageous because he was only awarded $23,270 in fees for prevailing in the entire prior malicious prosecution action.

     Not so, said the appellate court. The abuse of discretion standard applied, and nothing demonstrated any error with respect to this award. Plaintiff’s generalized arguments that the fees were excessive, duplicative, or unrelated simply did not “cut the mustard.” (Premier Medical Mgt. Systems, Inc. v. CIGA, 163 Cal.App.4th 550, 564 (2008).)

SLAPP: Attorney’s Fees Award Reversed And Remanded When Trial Court Reversed Itself On Two Items

Abuse of Discretion of Standard Will Yield Where Record Shows What Lower Court Really Did.

     Although we doubt that it will make that much difference on remand, Kaye v. Van Putten, Case Nos. F058513/F059269 (5th Dist. Mar. 21, 2011) (unpublished) demonstrates that a fee award stands to be reversed and remanded where a lower court reverses itself on a tentative but does not make adjustments in the final order in favor of the defense.

     In this one, the defense won an anti-SLAPP motion on grounds that were affirmed on appeal. However, that left consideration of the matter of the fee award ordered in defendants’ favor to the tune of $64,000 (out of a requested $97,244.50)--not an insubstantial award, as co-contributor Mike can attest (after all, he was born in and clerked for an appellate court in Fresno). Plaintiff appealed on the basis this was too much (not a good appeal based on the deferential abuse of discretion standard), while the defense claimed not enough was awarded.

Estoppel: Prevailing Party Determination In Anti-SLAPP Fee Award Proceeding Entitled To Direct Estoppel Effect In Subsequent Action

 

Third District Gives Direct Collateral Estoppel Impact to Prior Ruling in Convoluted Real Estate Option Dispute.

     Here is an interesting decision where the fee ruling in a prior SLAPP proceeding was given direct estoppel effect in a subsequent action. This is how it panned out.

     South Sutter, LLC v. LJ Sutter Partners L.P., Case Nos. C058206/C059554 (3d Dist. Mar. 16 2011) (certified for publication) involved a complicated real estate option controversy in which plaintiff’s initial complaint was SLAPPed following an initial dismissal without prejudice, although the lower court also awarded attorney’s fees to the defense in the SLAPP fee motion proceeding. There was then an intervening settlement, but no request by anyone for a stipulated reversal of the judgment. Plaintiff then filed a second complaint for breach of contract based on the same primary right as the first case, although omitting the tort claims. The trial court either SLAPPed or sustained demurrers to the second complaint. Plaintiff appealed.

SLAPP Motion Ends Badly Because Court Refuses to Suffer Frivolous Appeal Gladly

SLAPP Defendant/Appellant Gets Smacked With Attorney’s Fees Twice

     Our next case, City of Alhambra v. D’Ausilio, B220136 (2nd Dist. Div. 2 3/8/11) (unpublished), pitted Burke, Williams & Sorensen, and its client, the City of Alhambra, against The Petersen Law Firm, and its client, Robert D’Ausilio. 

      This lawsuit between Mr. D’Ausilio, a former employee of the City, and for many years the president of its Firefighter’s Association, and the City, arose out of Mr. D’Ausilio’s purported breach of a settlement agreement with the City.  That settlement agreement included provisions allegedly restraining Mr. D’Ausilio from representing, or advocating for any City employees. After Mr. D’Ausilio engaged in protest activities, the City sued for declaratory relief to determine whether the contract provision was enforceable.  Mr. D’Ausilio countersued, seeking a nearly identical declaration. 

     Mr. D’Ausilio also removed to federal court, and the federal court, finding the dispute to be essentially a contract dispute, remanded to the state court.  The fact that the federal court viewed this lawsuit as a contract dispute, rather than as a lawsuit arising out of the Constitution, was definitely not a good omen for the future success of a SLAPP (strategic lawsuit against public participation) motion.

     Shortly after remand, Mr. D’Ausilio brought his SLAPP motion.  The trial court found that the declaratory relief cause of action did not arise from Mr. D’Ausilio’s exercise of free speech or petitioning rights, but rather arose over the validity and enforceability of a contract provision.  The trial court denied the SLAPP motion and awarded attorney’s fees to the City.

     The issue of attorney’s fees arose again on the appeal.  Because the Court of Appeal agreed that the SLAPP motion was properly denied, it did not disturb the award of attorney’s fees.  

     However, the City also requested additional attorney’s fees on appeal:

“[The City] argues that because appellant’s appeal “raises no new permissible arguments that change the result, his appeal [like his motion] is frivolous and was only intended to cause further delay of this litigation.” We agree. . . . The City is awarded its attorney fees on appeal. The amount of such fees is to be determined by the trial court upon motion by the City.”

     We note that SLAPP fees are assessed against the client, not the attorney, even though the attorney is usually in a better position than the client to evaluate the legal merits of an appeal. 

 

SLAPP: $220,000 Fee Award To Winning Plaintiffs Sustained And Overturned In Part, Necessitating A Remand To Sort Out The Fees For Sole Winning Plaintiff

 

One Winning Plaintiff Not Entitled To Fees When Defense SLAPP Motion Found to Have Partial Merit.

     The SLAPP statute does allow a plaintiff successfully resisting a SLAPP to recover fees if plaintiff can meet the CCP § 128.5 standards for sanctions--the motion was “totally and completely” without merit. Big fees were awarded to plaintiffs for successfully opposing SLAPP motions brought by the Gaims law firm. On appeal, one plaintiff got fees sustained (although they had to be recalculated) and the other plaintiff lost a fee recovery. Here is what happened.

     Gerbosi v. Gaims, Weil, West & Epstein, LLP, Case No. B219587 (2d Dist., Div. 8 Mar. 9, 2011) (certified for publication) involved two plaintiff lawsuits against the Gaims law firm arising from the activities of private investigator Anthony Pellicano and others. The law firm filed SLAPP motions against both plaintiffs, but the trial court denied both. Afterwards, he jointly awarded plaintiffs fees of roughly $220,000, finding that the law firm’s SLAPP motions were sanctionable under CCP § 128.5, which is incorporated into the SLAPP fee-shifting provision. Law firm appealed the joint fee award.

SLAPP: $96,404.70 Fee/Costs Award For Defendants Sustained On Appeal

Numerous Challenges Rebuffed on Review.

     Defendants, after SLAPPing plaintiffs’ Complaint (even though plaintiffs noticed a preliminary injunction hearing for the same day as the SLAPP motions), moved to recover attorney’s fees/other expenses totaling $115,601.38 ($105,237.52 of which comprised fees). Over opposition, the lower court awarded defendants $96,404.70 (with the $90,000 bulk being fees). Plaintiff appealed.

     The appellate court sustained both the merits of the SLAPP ruling and the reasonableness of the fee award in Vaughn v. Barnett, Case No. B226108 (2d Dist., Div. 1 March 2, 2011) (unpublished).

     There was an initial procedural hiccup, because plaintiffs did not appeal from the actual award liquidating the fees, but did appeal the prior order in which fee entitlement was allowed. This sufficed. (R.P. Richards, Inc. v. Chartered Const. Corp., 83 Cal.App.4th 146, 158 (2000).)

     Plaintiffs argued that the SLAPP fee award included work on matters unrelated to the anti-SLAPP motion, citing to Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 39 Cal.App.4th 1379, 1383 (1995) as a basis for reversal for including such work. However, like many other appellate courts facing this issue in both published and unpublished decisions, the Vaughn court concluded that the Legislature amended the SLAPP provision to liberalize its reach to work “performed in connection with” an anti-SLAPP motion. (Rosenaur v. Scherer, 88 Cal.App.4th 260, 285-286 (2001).) Here, however, plaintiffs themselves actually put the preliminary injunction papers at issue, so the “in connection with” requirement was amply satisified. (Put another way, “be careful what you do and then ask for.”)

Plaintiffs then griped about 3 San Francisco lawyers traveling to Los Angeles for the SLAPP hearing. However, they neglected to highlight the fact that both the SLAPP and preliminary injunction hearings were set at the same time, so no real inefficiency given what was at stake. SLAPP fee award affirmed.

SLAPP: Court Of Appeal Affirms $3,750 Fee Award Against Defendants For Bringing Frivolous SLAPP Motion

 

One of the Rare Cases Where Fees Assessed Against the Defense.

     Normally, when reporting on SLAPP fee awards, we are talking about awards to defendants under the mandatory fee-shifting statute in CCP § 425.16(c)(1). However, the ending part of that provision also allows a court to award mandatory fees to a plaintiff if it determines the defense motion was frivolous or intended solely to cause unnecessary delay.

     The defense was assessed with fees of $3,750 for bringing a frivolous SLAPP motion in LaRose v. Zelen, Case No. B219636 (2d Dist., Div. 1 Feb. 22, 2011) (unpublished). On appeal, the award was affirmed because the appellate court, too, found that plaintiff had shown a prima facie case of malicious prosecution such that the defense SLAPP motion was totally devoid of merit (or, put another way, frivolous). No abuse of discretion here. (Moore v. Shaw, 116 Cal.App.4^th 182, 198-199 (2004).)

SLAPP: $71,006.00 Aggregate Fee/Cost Award For SLAPPed Malicious Prosecution Suit Plaintiff Affirmed On Appeal

 

Second District, Division 1 Dismisses a Plethora of Challenges.

     In Erwin v. Maxwell, Case No. B217200 (2d Dist., Div. 1 Feb. 17, 2011) (unpublished), plaintiff's malicious prosecution action against her opponent and opponent's attorney was SLAPPed, with the lower court eventually awarding defense counsel a total of $71,006.00 in attorney's fees and costs under the mandatory SLAPP fee-shifting statute. She challenged the merits and fee awards.

POOF!/SLAPP: Reversal Of SLAPP Grant Meant $45,545.75 Fees/Costs Award Went POOF!

 

First District, Division 5 Finds Cross-Complaint Not Properly SLAPPed Because It Did Not Arise From Free Speech or Petitioning Activity.

     For those of you that follow our blog, you know we have the POOF! principle. This principle manifests itself when there is a merits reversal of a substantive order that gave rise to a subsequent fee award. POOF! happened in the next case.

     The lower court in NOP Mission LLC v. Murphy’s Deli Franchising, Case No. A126352 (1st Dist., Div. 5 Feb. 16, 2011) (unpublished) SLAPPed a landlord’s cross-complaint. Later, it awarded tenants $45,545.75 (out of a requested $79,800.75) in attorney’s fees and costs as the prevailing party under the SLAPP mandatory fee-shifting statute, Code Civ. Proc., § 425.16(c).

Above:  Whiskey display at Leon’s Delicatessen.  c1920.  Theodor Horydczak, photographer.  Library of Congress.

     Landlord appealed and won, with the appellate court finding no basis to SLAPP because (1) a litigant’s failure to speak does not fall within a protected activity, and (2) a landlord-tenant dispute was a private rather than constitutionally protected public matter.

     So, what happened to the fee/costs award? You guessed it--it went POOF! based on the reversal of the anti-SLAPP grant. (Ketchum v. Moses, 24 Cal.4th 1122, 1137 (2001).)

Civil Rights/Allocation: Nonfrivolous Federal Civil Right Claim Fees Awarded As Part Of Anti-SLAPP Fee Recovery Would Not Withstand Appellate Scrutiny

Ninth Circuit Reverses and Remands To Craft Fee Recovery Only for anti-SLAPP Work.

     In Fox v. Vice, No. 10-114 (U.S. Sup. Ct., cert. granted, 131 S. Ct. 505 [Nov. 1, 2010]), the United States Supreme Court will consider whether attorney’s fees can be awarded for intertwined work when the civil rights claims are determined to be frivolous and fee-worthy in nature. The next case deals with a somewhat related, yet different, issue: can a defendant collect fees for nonfrivolous civil rights work under an anti-SLAPP motion successful on a different claim?

 

     The answer is no, according to the Ninth Circuit in Fabbrini v. City of Dunsmuir, Case No. 09-16292 (9th Cir. Feb. 11, 2011) (for publication).

     The problem with the district judge’s award was not in allowing recovery for the anti-SLAPP win on a defamation claim. However, the district judge also awarded fees to the defense even though plaintiff’s federal civil rights claim was never found to be nonfrivolous in nature. (Fees are only awardable to defendants in a civil rights suit if the § 1983 claim is found to be frivolous. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).) The fee time work on the civil rights claim could not be added to the anti-SLAPP recoery unless there was a proper finding the civil rights claim was frivolous in nature. Also, the district court erred in its award of time for “fees on fees,” especially given that some of the entries did not relate to fee motion preparation. Reversed and remanded.

Celebrities/SLAPP: Pageant Is Seeking To “SLAPP” Beauty Queen’s Lawyer’s Lawsuit

Case Arises Out of Settlement Reached With Former Miss California USA Carrie Prejean.

     Seems like lots of controversy as well as lawsuits arise out of beauty queen pageants. Also seems like celebrity lawsuits result in a lot of SLAPP motions. The next “in the news” item is no exception.

     As reported by a January 17, 2011 post in The Beverly Hills Courier, a law firm defending the Miss California USA pageant has moved in Los Angeles County Superior Court to “SLAPP” a lawsuit brought by an attorney who represented Carrie Prejean, a Miss California USA stripped of her title putatively because she missed scheduled appearances and failed to repay a breast implant loan. The lawsuit basically alleges that Ms. Prejean’s attorney reduced his attorney’s fees in exchange for the pageant maintaining the secrecy of a settlement between the pageant and the beauty queen, where Ms. Prejean received nothing but her attorney received $110,000 in fees as part of the settlement. (Rumor has it that the case settled largely because the pageant officials had a sex tape of Ms. Prejean – see Larry King interview.)

     The hearing on the motion is scheduled for February 17, so we assume that there will be a follow-up post unless matter, too, is confidentially resolved.

SLAPP: California And Oregon Anti-SLAPP Fee Recovery Is Substantive Under Erie

 

Ninth Circuit Grants Fee Award To Winning Defendant For Fees On Appeal.

     This next case takes us all back to law school, with the substantive/procedural

distinction of import arising from the Erie doctrine.

     In Northon v. Rule, Case No. 07-35319 (9th Cir. Jan. 18, 2011) (for publication), defendants won an anti-SLAPP motion under Oregon law, which has a mandatory fee-shifting provision in favor of winning defendants (similar to the anti-SLAPP statute in California). After sustaining the SLAPP win on appeal, defendants moved to recover $21,253.53 in appellate fees, a motion addressed to the Ninth Circuit.

     The Ninth Circuit granted the motion, holding in the process that Oregon law governed the fee motion because state SLAPP fee provisions of this sort protect substantive rights and apply in federal court. (See also United States ex. rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972-73 (9th Cir. 1999) [same result; California anti-SLAPP statute].)

Erie Railroad Workers.

Year End Wrap-Up: Mike & Marc’s Top 20 Attorney’s Fees Decisions In 2010--Part 1 of 2.

     Above:  Wrapping It Up.

      As we wish all readers the happiest of Holidays, we now present our top 20 published decisions from California appellate courts or the Ninth Circuit. This list is not meant to slight other important decisions in certain areas, but these are the ones that “rose to the top” from our perspective. We will post 10 today and 10 in an ensuing post. The number of ranking is not geared at all to the decision’s relative importance.

     20. Quan v. Computer Sciences Corp., 623 F.3d 870 (9th Cir. 2010) -- authored by N.D. Iowa District Judge Bennett, siting by designation; discussed in our Oct. 21, 2010 post.

     District courts retain discretion to award or deny routine costs to a prevailing party in an ERISA case as long as a proper record of the decision making process is made.

     19. California Correctional Peace Officers Assn. v. Virga, 181 Cal.App.4th 30 (1st Dist., Div. 4 2010) -- authored by Justice Sepulveda; discussed in our Jan. 16, 2010 post.

     A civil rights case arising under 42 U.S.C. § 1983 is not a “civil proceeding under the California Torts Claim Act” for purposes of Code of Civil Procedure § 1038 fee awards to state entities.

     18. Pipefitters Local No. 636 Defined Benefit Plan v. Oakley, Inc., 180 Cal.App.4th 1542 (4th Dist., Div. 3 2010) -- authored by Justice Aronson; discussed in our Jan. 14, 2010 post.

     Shareholder in publicly-traded company properly denied fee recovery under “substantial benefit” equitable rule where shareholder provided no pre-suit notification to the company and achieved fairly immaterial changes in a challenged proxy statement.

     17. Mundy v. Neal, 186 Cal.App.4th 256 (2d Dist., Div. 2 2010) -- authored by Justice Ashmann-Gerst; discussed in our July 1, 2010 post.

Disabled plaintiff’s failure to make a prelitigation demand for corrective action barred fees requested under California’s “catalyst theory.”

     16. Uzyel v. Kadisha, 188 Cal.App.4th 866 (2d Dist., Div. 3 2010) -- authored by Justice Croskey; discussed in our Sept. 23, 2010 post.

Probate Code § 17211(b) fee recovery to beneficiaries, as against trustees, has a “reasonable cause” element akin to the same element in a malicious prosecution action.

     15. Kirby v. Immoos Fire Protection, Inc., 186 Cal.App.4th 1361 (3d Dist. 2010), review granted, No. S185827 (Nov. 17, 2010) -- authored by Justice Sims; discussed in our July 27, 2010 post.

     Employer can recover fees in action containing Labor Code § 218 claims other than minimum wage/overtime compensation claims. In granting review, the California Supreme Court framed the issues to be considered as being these: (1) Does Labor Code § 1940 apply to a cause of action alleging meal and rest period violations or may attorney’s fees be awarded under Labor Code § 218.5?, and (2) Is our analysis affected by whether meal and rest period claims are brought alone or accompanied by wage/overtime claims?

     14. Leader v. Cords, 182 Cal.App.4th 1588 (4th Dist., Div. 1 2010) -- authored by Presiding Justice McConnell; discussed in our Mar. 24, 2010 post.

     Probate Code § 17211(b) is to be liberally construed in favor of trust beneficiaries successfully challenging a trustee’s failure to make trust distributions (construing “contests the trustee’s account” language in the fee-entitling statute).

     13. Barnett v. First National Ins. Co. of America, 184 Cal.App.4th 1454 (2d Dist., Div. 7 2010) -- authored by Justice Jackson; discussed in our May 28, 2010 post.

     Joint offers under Code of Civil Procedure § 998 to husband and wife are valid without need for apportionment on a going-forward basis, disagreeing with its prior Weinberg decision.

     12. County of Santa Clara v. Superior Court, 50 Cal.4th 35 (Cal. Sup. Ct. 2010) -- authored by Chief Justice George; discussed in our July 27, 2010 post.

     Public entities may compensate private counsel through contingency fee agreements if governmental entities retain control and provide proper supervision over private counsel.

     11. Moore v. Kaufman, 189 Cal.App.4th 604 (2d Dist., Div. 1 2010) -- authored by Justice Rothschild; discussed in our Oct. 24, 2010 post.

     SLAPP attorney’s fees award to successful defendant cannot be imposed against losing plaintiff’s attorney.

     The next 10 decisions are coming soon, so stay tuned--storm watch notwithstanding.

 

Stay tuned for more . . .

SLAPP/Sanctions: Sanctions To Winning In Pro Per Defendants Reversed

Defendant Was In Pro Per, So No Fee; CCP § 128.5 Did Not Provide Basis.

     In Skerston v. Newman, Case No. G043164 (4th Dist., Div. 3 Dec. 7, 2010) (unpublished), the good news for an in pro per defendant is that he won a SLAPP motion. The bad news is that in pro per defendants representing themselves usually cannot obtain SLAPP fees. However, the in pro per defendant here tried to gain compensation through a twist--he asked for sanctions under Code of Civil Procedure section 128.5. It worked--the trial court granted him filing fee sanctions recovery in the amount of $710.

     Well, the appellate court did not agree with the circumvention.

     CCP § 128.5 was defunct at the time of the order, and has been defunct with respect to actions filed on or after January 1, 1995. Instead, section 128.7, complete with safe harbor requirements, is the governing provision--a provision not complied with. Because the wrong section was considered and no real reason was given for the sanctions, the order had to be reversed on appeal. (Cf. Morin v. Rosenthal, 122 Cal.App.4th 673, 682-683 (2004) [due process violation to issue sanctions order without specifying the frivolous or dilatory conduct].)

     Skerston, a 3-0 decision, was penned by Acting Presiding Justice Bedsworth.