The 2/4 DCA Found That Any Reasonable Attorney Would Have Expected It To Follow Its Decision In Stratton Which Specifically Held That An Appellate Court’s Directive That Parties Are To Bear Their Own Costs On Appeal Does Not Preclude Award Of Appellate Attorney Fees.
In a previous appeal filed by both plaintiff and defendants, the 2/4 DCA affirmed the trial court’s order granting in part and denying in part an anti-SLAPP motion filed by defendants. In its opinion, the panel ordered that the parties bear their own costs on appeal – an order that was repeated in the subsequently issued remittitur. However, the panel did not address the issue of attorney fees because it had not been raised by the parties. Afterward, defendants filed a motion in the trial court to recover appellate attorney fees under the anti-SLAPP statute – arguing the 2/4 DCA’s costs order did not preclude their recovery of appellate attorney fees, and citing the 2/4 DCA’s decision in Stratton v. Beck, 30 Cal.App.5th 901 (2018) [discussed in our December 9, 2018 post] which held that, under California Rules of Court, Rule 8.278(d)(2), an appellate court’s directive that parties are to bear their own costs on appeal does not preclude an award of appellate attorney fees.
In response to defendants’ fee motion, Plaintiff’s counsel filed an unsuccessful motion to recall the remittitur so that plaintiff would not “have to address” the claim of attorney’s fees in Anabi Oil Corp. v. iFuel, Case No. B301899 (2d Dist., Div. 4 February 24, 2022) (unpublished). Speculating that the panel intended its costs order to resolve the unbriefed issue of fee entitlement against defendants, plaintiff’s counsel argued that “it would not make sense” to allow defendants to recover appellate attorney fees while denying them costs, but did not address Stratton – something that did not bode well for plaintiff’s counsel when defendants’ request for monetary sanctions was addressed.
Although admitting to having reviewed Stratton before filing the recall motion, plaintiff’s counsel claimed he thought it was distinguishable from this case as it involved fees under the Labor Code. The panel was not impressed - finding that any reasonable attorney would have expected it to follow Stratton despite “the different underlying basis for the attorney fee award . . . .” Additionally, addressing the importance of candor toward the court, the panel found that plaintiff’s counsel violated the Rules of Professional Conduct by failing to address Stratton (Rules Prof. Conduct, rule 3.3(a)(2) (rule 3.3)), and that he continued to exhibit a lack of candor in addressing the sanctions issue by misrepresenting the motion to recall the remittitur as a neutral request for clarification. Plaintiff’s counsel and his firm were hit with $11,562.50 in monetary sanctions for filing a frivolous motion. (California Rules of Court, Rule 8.276(a)(3).)
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