SLAPP: Losing Party’s Efforts To Challenge $24,281.50 Fee/Costs Order To Prevailing Defendant, From A $32,799 Ask, Was Rebuffed On Appeal

Challenges Were To Lower Court’s Discretionary Calls, With The 25% Reduction Below Showing Discretion Was Exercised.

            Smith v. Entrepreneur Media, Inc., Case No. G060839 (4^th Dist., Div. 3 Dec. 18, 2023) (unpublished), authored by Acting Presiding Justice Bedsworth, is another illustration as to why challenges to the amount of attorney’s fees awarded are on the downwards slide of the curve as far as success ratio on appeal—especially where the lower court reduced the fee/costs ask in the first instance.

            In this one, defendant prevailed on a SLAPP motion requiring an award of mandatory fees against an in pro per plaintiff, with the lower court awarding $24,281.50 in fees and costs against an “ask” of $32,799, around a 25% reduction.  Plaintiff appealed, but he was not successful.

            The main problem was the deferential review standard (abuse of discretion) on the amount awarded, bolstered by the fact the lower court reduced the winning defendant’s fees below.  Although defense counsel asked for higher hourly rates than billed, that is alright because the lodestar rate in the community prevails even if the billed hourly rate is lower.  The lower court did apportion out time for non-SLAPP activities such that the SLAPP recovery was tethered to the proper SLAPP activities.  With respect to inflated fees, even if a lower court determines some were inflated, this does not mean the lower court is required to deny fees altogether.