Appellate Court Also Sanctioned Appellant’s Attorney For Relying On Unpublished DCA Opinions.
Westreich v. Higa, Case No. B293726 (2d Dist., Div. 5 May 5, 2020) (unpublished) has two big warnings for attorneys arguing before California appellate courts: make sure you have a reporter’s transcript in the appellate record when you are challenging the amount of an attorney’s fees award and do not cite unpublished DCA opinions unless you fall within narrow examples such as law of the case.
This was a neighbor property boundary line dispute, with defendants defensing a prior lawsuit and with plaintiffs then filing a second lawsuit complaining that defendants took photos to defend the suit so as to infringe upon plaintiffs’ privacy rights. That second suit got SLAPPed, with defendants awarded mandatory SLAPP fees at the trial level. Plaintiffs appealed both rulings (which were consolidated at the appellate level), with the defense successfully arguing that the appeal from the SLAPP merits ruling was untimely after full appellate briefing and oral argument. That took the defense back to the trial court to request $21,870.09 in appellate fees for winning the SLAPP merits appeal on untimeliness grounds. Plaintiffs’ main argument was that the requested fees were unreasonable because the untimeliness issue could have been resolved through an appellate dismissal motion before the merits were briefed and argued, citing an unpublished First District opinion in support of their argument. The defense countered that the appeal consolidation decision made it more difficult such that all the arguments had to be addressed at the merits briefing stage. The trial court held a hearing on the SLAPP appellate fee request, with no reporter’s transcript made of the hearing, and awarded the full requested fees to the defense.
Plaintiffs appealed, and I bet a lot of you can guess what may have happened on appeal.
The 2/5 DCA affirmed, but also imposed some mild appellate sanctions on plaintiffs’ appellate counsel.
The fee order was sustained because (1) there was no reporter’s transcript to show what the trial judge did in response to plaintiffs’ arguments, all the more so given the existence of a succinct fee order (Rhule v. WaveFront Technology, Inc., 8 Cal.App.5th 1223, 1229 n. 5 (2017)), and (2) no apportionment was necessary because defendants prevailed every step of the way. With respect to the argument that a pre-merits appeal dismissal motion might have done the trick, the appellate court agreed that the consolidation of the two appeals made things a little tricky, cemented by nothing to suggest defendants had made a tactical election to pad their legal bills for the prior appellate work. The appellate court then rejected plaintiffs’ argument that CRC 8.1115 (which prohibits citation to a DCA opinion not certified for publication) was unconstitutional, citing cases which had rejected this very argument. The 2/5 DCA panel also sanctioned appellants’ attorney $1,100 for violating the CRC nonpublication citation rule given the defense warnings in their briefing and the published decisions rejecting the unconstitutionality argument. Beyond that, defendants will get a chance to claim appellate costs and attorney’s fees for winning this second appeal!
Comments