Anti-SLAPP Fee Award: Don’t Wait Until Final Judgment Issued—Appeal From Prior Order Granting Fees Where Earlier Dismissal Of Entire Complaint Has Occurred

First District Unpublished Decision So Counsels, Dismissing Appeal Where Anti-SLAPP Plaintiff Failed to Timely Appeal from Fee Recovery Order.

            Melbostad v. Fisher, Case No. A119514 (1^st Dis., Div. 4 July 23, 2008) (unpublished) is must reading for litigants and practitioners with respect to what orders should be appealed from in order to preserve review of an adverse anti-SLAPP fee award.

            As we have seen before, Code of Civil Procedure section 425.16 (c) provides that a prevailing defendant on an anti-SLAPP defendant is entitled to recovery of attorney’s fees and costs.  That means it is critical for a losing plaintiff to appeal from the proper fee grant order or ultimate judgment, in timely fashion, so as to preserve appellate jurisdiction to review the lower court’s ruling. 

            Melbostad involved the following procedural storyline:

• On April 18, 2006, the trial court granted defendants’ motion, striking plaintiff’s complaint in entirety, and indicating defendants were entitled to fees pursuant to a later noticed hearing.
• The trial court granted reconsideration and recusal motions based on plaintiff’s claim that the trial court research attorney was biased against him, with the trial judge agreeing to work up the motion without the assistance of the research attorney.
• On September 8, 2006, the trial court granted defendants’ anti-SLAPP motion, striking the entire complaint.  Defendants sent plaintiff a “notice of entry of order” on the same day.  No appeal was taken from that order, although it was appealable.
• Plaintiff filed a chapter 13 bankruptcy, and defendants obtained a lift stay order from the bankruptcy court so that they could pursue their attorney’s fees motion in connection with the anti-SLAPP victory.
• On June 13, 2007, the trial court granted defendants’ motion for attorney’s fees, awarding them $148,044.25 in fees/costs.  Notice of the court’s order was served the same day.
• On August 1, 2007, judgment was entered recapitulating the two prior orders granting the motion to strike and awarding attorney’s fees. 
• On September 28, 2007, plaintiff appealed from the judgment.

After appellant filed a civil case information statement (a screening devise routinely used by appellate courts), the First District, Division Four directed the parties to address the timeliness of the appeal.  This turned out to be the dispositive issue, and one that went against plaintiff so that no review of the merits of the $148,044.25 fees/cost award took place.

      In a very scholarly discourse on anti-SLAPP appealability, Justice Sepulveda—writing for a 3-0 panel—determined that appellant should have independent appealed the September 8, 2006 order (for purposes of a merits review) and the June 13, 2007 order (for scrutiny of the fees/cost award).  Appellant’s appeal on September 28, 2007 was outside the 60 day appeal period ticking from the date of the June 13, 2007 fee grant order. 

      Appellant conceded that his failure to appeal the September 8, 2006 order precluded consideration of the correctness of the motion to strike his complaint.  (See Maughan v. Google Technology, Inc., 143 Cal.App.4^th 1242, 1246-1247 (2006).) 

      The unsettled question was whether an order granting fees to a prevailing defendant under the anti-SLAPP statute is directly appealable or is reviewable only on appeal from the judgment.  (Slip Opn., at p. 5.)  Appellant relied on Doe v. Luster, 145 Cal.App.4^th 139 (2006), but that decision was found inapposite because the plaintiff prevailed on anti-SLAPP motions and plaintiff appealed a denial of a fee request.  This meant that the fee denial order in Doe necessarily was interlocutory and nonappealable.  However, Doe did observe that a fee award may be appealable as “an order after judgment” where there was an earlier dismissal order disposing of the entire action.  (Id. at 147-149 & fn. 8.)  This interpretation of Doe, bolstered by a consistent interpretation advanced by The Rutter Guide treatise on appeals, made it easy for the Melbostad court to determine that the June 13, 2007 fee order was independently appealable. 

      Also relying on reasoning from Doe, the First District panel found that the later August 1, 2007 judgment was simply duplicative of the June 13, 2007 order, which was a judgment of dismissal of an immediately appealable nature.  (Accord, Paulus v. Bob Lynch Ford, Inc., 139 Cal.App.4^th 659, 669-670 (2006); Code Civ. Proc. sec. 577.)