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Though unpublished, the appellate decision in LegacyQuest v. Rosen, Case No. A129177 (1st Dist., Div. 1 Jan. 27, 2012) (unpublished) has a great discussion of SLAPP fee order appealability issues as well as trial court discretion relating to block billing time submissions by fee claimants.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.
The first issue was whether a subsequent SLAPP fee order is appealable to begin with. The appellate court observed there was a split in this area, with Doe v. Luster, 145 Cal.App.4th 139, 145-146 (2006) saying “no” but Baharian-Mehr v. Smith, 189 Cal.App.4th 265, 275 (2010) and Chitsazzadeh v. Kramer & Kaslow, 199 Cal.App.4th 676, 680 n. 2 (2011) saying “yes.” The LegacyQuest court sided with the “yes” cases, aside from holding that the fee order met the independent criteria for a “collateral” appealable order.
The second issue was whether the appeal of the SLAPP grant embraced the subsequent fee order. Usually, a litigant would have to appeal a subsequent fee order where the initial order was silent about fee entitlement. However, relying on Gouskos v. Aptus Vill. Garage, Inc., 94 Cal.App.4th 754, 764-765 (2001), the appellate court found that fee entitlement was mandatory to the defendant under the applicable fee-shifting statute, meaning that the appeal of the SLAPP grant did preserve an appellate challenge of the fee order. However, in an important footnote, it did indicate that the safest course was for the aggrieved litigant to file a second appeal of the fee order to avoid the thorny jurisdictional issues in this area of the law. (BLOG OBSERVATION--In many, many posts, we have counseled anyone to always file an independent appeal of a fee determination if even a possible challenge might be made later in order to avoid jurisdictional dismissals.)
Well, the appeal was entertained, but the merits of the fee challenge could not overcome the deferential abuse of discretion review standard. After all, the trial judge did reduce some hours and denied a 1.5 multiplier request. Also, awarding an 18-year-practicing First Amendment lawyer $500 per hour was no problem given the attorney declarations showing this to be a reasonable rate.
The appellate court also confirmed what we always believed was the law in the block billing area (where fee claimants submit time entries riddled with “clumped” block billing): trial courts have discretion to either make reductions or disregard the time (“cast it away”) completely. (Bell v. Vista Unified School Dist., 82 Cal.App.4th 672, 689 (2000); Christian Research Inst. v. Alnor, 165 Cal.App.4th 1315, 1324-1325 (2008).)
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