SUCCESSFUL ANTI-SLAPP DEFENDANT CANNOT RECOVER ATTORNEY’S FEES FOR PREVAILING FROM “SLAPPED” PLAINTIFF’S ATTORNEY

First District So Holds In Unpublished Decision and Modifies Judgment So That Attorney Is Not Held Liable for Anti-SLAPP Fees.

            Under Code of Civil Procedure section 425.16(c), a prevailing defendant on an anti-SLAPP motion is entitled to recover attorney’s fees and costs.   This has been interpreted to mean the losing plaintiff pays.   However, can a trial judge also impose the fees against the losing plaintiff’s attorney?  A trial judge did, and was reversed on appeal in the case we now discuss.

            In Foster v. Warner, Case No. A116298 (1^st Dist., Div. 1 June 18, 2008) (nonpublished), a First District panel was confronted with the issue framed in the first paragraph of this post.  Defendant won an anti-SLAPP motion and moved to recover her fees.  However, the trial judge entered an order awarding fees jointly and severally against the losing defendant and defendant’s attorney.  The trial judge later recanted, and made the fees payable 50-50 by defendant and counsel, although counsel was still on the hook for half of the award.  Counsel appealed and won on this issue.

            The trial judge apparently believed that he had authority to award anti-SLAPP fees against counsel based on a reference to Code of Civil Procedure section 128.5 in the second sentence of section 425.16(c).  Although noting that section 128.5 might have limited applicability in light of section 128.7 (and its 21-day waiting period), the appellate court easily dismissed the lower court reasoning when observing that the section 128.5 reference only applied in situations where anti-SLAPP motions were denied because they were frivolous in nature.  (Slip Opn., at p. 6.)

            The crux of the First District panel’s reasoning can be distilled in this passage:  “We find nothing in the statutory language to suggest that the Legislature intended in section 425.16, subdivision (c) to authorize an award of fees against the plaintiff’s attorney following a successful motion to strike.  The plaintiff’s attorney is, after all, not a party to the proceeding.”  Justice Margulies, speaking for the unanimous panel, stated that courts usually impose liability on an attorney in the form of sanctions for the attorney’s misconduct.  Nothing in the anti-SLAPP statute contained sanctions against the attorney and, in the absence of express sanctioning grants, the appellate court was not about to imply them in this area.  (Slip Opn., at pp. 6-8.)  Rather, the Court of Appeal decided that anti-SLAPP fee awards were more closely analogized to “a form of relief to the prevailing party,” not sanctions.  Because the winning defendant automatically gets anti-SLAPP fees, it would be punitive to assess them against the losing attorney—especially since the attorney is not a party to the proceedings and the fee grant required no finding of misconduct or improper purpose.  (Slip Opn., at p. 7.)

            This opinion should give a fair amount of comfort to attorneys opposing anti-SLAPP motions; they can be advocates without fear that an adverse fee award will put a chill on the positions they take.

            (BLOG BONUS MILEAGE (not redeemable for free flights or other perks)—This result dovetails nicely with similar results under different statutory schemes.  For example, the Fourth District, Division Two decided that attorneys cannot be liable for fees awarded to a successful party expunging a lis pendens in a real estate case.  The governing statute, Code of Civil Procedure section 405.38 (former section 409.3), only authorized fees to the prevailing party and had no express provision for an award of fees/costs against counsel.  See Doyle v. Superior Court, 226 Cal.App.3d 1355, 1359 (1991).  Furthermore, the same appellate court utilized the Doyle reasoning to conclude that an attorney was not liable for an award of fees for a bad faith prosecution of a Song-Beverly Consumer Warranty Act claim under Civil Code section 1780(d), because the statute only expressly allowed recovery against the losing plaintiff.  See Robbins v. Palm Springs Motors, Inc., 2005 WL 288788 at *2-3 (4^th Dist., Div. 2 Feb. 7, 2005) (nonpublished).  This demonstrates that the First District’s decision in Foster is no pariah and is welcome relief for counsel providing strong advocacy in anti-SLAPP contexts.)