Anti-SLAPP Fees: Winning Defendants Who Joined Another Winning Defense Motion And Brought Own SLAPP Motion Entitled To Fees For Nonjoinder Work Related To The SLAPP Proceeding

Fourth District, Division 3 Reverses and Remands For Award of Additional Fees.

     From our category “SLAPP,” one knows by now that winning defendants are entitled to a mandatory award of fees for winning an anti-SLAPP motion. (Click here for Wikipedia article on Strategic Lawsuit Against Public Participation). The next case involves a situation in which a lower court only awarded fees to a group of winning defendants for their joinder efforts with another victorious defense group, despite the fact the first group also brought their own anti-SLAPP motion. First group appealed, wanting more fees. The appellate court’s “verdict” is described below.

     Christakes v. Ekstrom, Case No. G039954 (4^th Dist., Div. 3 Mar. 3, 2009) (unpublished) involved a lower court’s decision to deny some requested fees to successful defendants on an anti-SLAPP motion. These defendants had filed their own anti-SLAPP motion, but also joined a separate anti-SLAPP motion brought by another group of defendants (a lawyer group). However, the appealing defendants had raised similar grounds as the lawyer group, as well as two different grounds, in support of their motion. The lower court granted the joinder, granted the lawyer group’s motion, and decided the appealing defendants’ motion was moot in light of the successful joinder effort. Appealing defendants requested $26,926.69 in SLAPP fees (for both preparation of their own motion and joinder). The lower court judge only awarded them $7,845 for the joinder, attendance at the SLAPP hearing, and fee petition, determining that he had no jurisdiction to award them further fees for preparation of their own SLAPP motion after finding their motion was moot.

     The Fourth District, Division 3 reversed and remanded for a determination of additional fees, in an unpublished 3-0 decision authored by Justice O’Leary.

     Because the appellate court was considering whether the court had the authority to award fees, the issue was one of law for de novo review. (Connerly v. State Personnel Bd., 37 Cal.4^th 1169, 1175 (2006).)

     Justice O’Leary decided that the lower court erred because the SLAPP statute allows recovery for fees for work performed in connection with obtaining an order striking a complaint. (See, e.g., Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi, 141 Cal.App.4^th 15, 22 (2006) [fees properly awarded for challenging undertaking to stay enforcement of SLAPP fee award]; Metabolife Intern., Inc. v. Wornick, 213 F.Supp.2d 1220, 1223-1224 (S.D.Cal. 2002) [fees awardable for victorious motion to dismiss in federal court when lack of jurisdiction, improper venue, and anti-SLAPP contentions had to be raised all at once].)

     The Court of Appeal did note there was disagreement as to whether joinder in a SLAPP motion was effective. (Compare Decker v. U.D. Registry, Inc., 105 Cal.App.4^th 1382, 1391 (2003) [joinder is a nullity] with Barak v. The Quisenberry Law Firm, 135 Cal.App.4^th 654, 660-661 (2006) [joinder allowable where moving party requested affirmative relief].) However, it did not have to enter into this quagmire because the appealing defendants took a “belt and suspenders” approach—joining the attorney group’s motion and filing their own motion that covered some repetitive grounds but also advanced two independent grounds for striking the complaint. Based on this added activity, appealing defendants were entitled to fees for preparing their own SLAPP motion (besides the joinder fees previously awarded by the lower court).