$14,000 Fee Award Against Plaintiff Affirmed, But Denial Of Fee Award Against Plaintiff’s Attorney Affirmed Also.
In Boodaie v. Vosoghi, Case No. B280032 (2d Dist., Div. 8 July 2, 2018) (unpublished), plaintiff did not oppose a defense SLAPP motion. Plaintiff appealed a subsequent fee award of $14,000 (out of a requested $20,475) on the ground that he brought his lawsuit in reliance on the advice of two attorneys. Defendants cross-appealed, arguing that they should have been awarded the full requested fees and challenging the trial judge’s failure to recover fees of $20,475 against one of plaintiff’s attorneys pursuant to CCP § 128.5.
All of the fee rulings were affirmed on appeal.
Plaintiff’s appeal did not gain traction because no reporter’s transcript of the fee motion was provided, so that an inadequate record was presented to review an abuse of discretion ruling.
The lack of an RT also barred review of the defense challenge that the $14,000 award was not enough.
That brought the appellate court to a review of the fee denial as to one of plaintiff’s attorneys under CCP § 128.5. The trial judge denied the motion for the failure to provide the 21-day safe harbor under § 128.7, but the appellate court said that the safe harbor provisions do not apply to § 128.5 sanctions requests, citing San Diegans for Open Government v. City of San Diego, 247 Cal.App.4th 1306, 1316-1317 (2016).) However, the appeal stalled out because the defense did not introduce any evidence that the attorney, rather than plaintiff, engaged in frivolous tactics.
BLOG COMMENT—The Court’s reliance on San Diegans for Open Government is interesting, given that the Second District, Division 7 in Nutrition Distribution, LLC v. Southern SARMS, 20 Cal.App.5th 117 (2018) came to an opposite conclusion in the § 128.5 context, with no indication from the docket in Southern SARMS that the case was accepted for review (it indicates a remittitur issued).
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