CALIFORNIA ATTORNEY'S FEES

Appealability, SLAPP: Where Cross-Defendant’s SLAPP Motion Was Denied, Inclusive Of A Fees Request, Even Though Cross-Complainant Dismissed Its Complaint Before The Ruling Was Final, Cross-Defendant’s Appeal Of The Merits And Fees Denial Were Proper

It Did Not Matter, Because SLAPP Denial Was Affirmed On Appeal.

            Freeman v. LMA & SAI 1433 Wilshire LLC, Case No. B325212 (2d Dist., Div. 7 Nov. 9, 2023) (unpublished) goes to show you that you may hurdle procedural appealability obstacles, only to have the merits affirmed anyway.

            In this one, the procedural history was somewhat convoluted.  Cross-defendant filed a SLAPP motion against the cross-complaint, with the lower court denying the motion and further finding that he was not the prevailing party to obtain SLAPP mandatory attorney’s fees.  On the same day as this order, cross-complainant dismissed its cross-complaint without prejudice.  Cross-defendant appealed the SLAPP merits adverse ruling as well as the fee order denial.

            The 2/7 DCA ultimately affirmed the merits of the SLAPP denial.  But, first, the panel had to decide if the appeal was moot based on the cross-complaint dismissal.  It was not, according to the Court of Appeal, under the unusual circumstances of the matter.  What was determinative in this one was that the lower court denied the fee request such that a future fees motion would have been futile.  Given that the dismissal did not deprive the lower court of jurisdiction to determine if he was the prevailing party, the lower court’s actual denial of the merits and fee request properly presented a proper appeal for both issues.  The sui generis facts, we believe, led to this result, which the DCA expressly acknowledged.

SLAPP: Lower Court’s Award Of Partial SLAPP Fees To A Partially Prevailing Defendant Was No Abuse Of Discretion

Awarding Only 26% Of The Fee “Ask” Showed That Lack Of Total Success Was Credited.

            In Fitzgibbons v. Chaudhuri, Case No. E077070 (4^th Dist., Div. 2 Nov. 3, 2023) (unpublished), defendant tried to SLAPP a plaintiff’s complaint in entirety, but only obtained a grant to strike certain paragraphs and lines in the complaint.  The lower court awarded defendant $26,756 of the close to $103,000 fee “ask.”  The appellate court affirmed; although there were other issues to adjudge in the case, the award of only 26% of the requested amount showed proper judgment in reducing for the relative degree of success on the SLAPP motion on the part of the defense.

SLAPP: Ross Opinion Is Now Published

Appellate Court Found That The Entire SLAPP Motion Should Be Granted And The Defense Awarded Fees, Not Having To Resolve The Split Between Coltrain and Liu.

            On October 2, 2023, we posted on Ross v. Seyfarth Shaw LLP, Case No. B312337 (2d Dist., Div. 8 Oct. 20, 2023) (published), unpublished at the time but certified for publication on October 20.  In this opinion, the defense earned a huge appellate win when the 2/8 DCA decided its entire SLAPP motion was righteous such that the requested attorney’s fees of $79,889 were warranted.  It did acknowledge a split in intermediate appellate thinking on the prevailing party standard, between Coltrain and Liu, but it found that the defense prevailed for fee purposes under either standard.  So, it is likely the defense will seek appellate fees for prevailing in this one.

SLAPP: Partial Reversal Of SLAPP Victories Means That Attorney’s Fees Award To The Defense Had To Be Revisited

Parsing Out Unsuccessful Work And Assessing Satisfaction Of Litigation Objectives Had To Be Considered On Remand.

            In Berry v. Pope Valley Union Elementary School Dist., Case No. A165592 (1^st Dist., Div 3 Oct. 10, 2023) (unpublished), defendant District SLAPPed plaintiff’s amended complaint, while another defendant SLAPPed all but one whistleblower claim.  The defendants respectively were awarded mandatory SLAPP fees of $8,507 and $5,494.50.  On appeal, the appellate court found that procedural due process and equal protection claims should not have been SLAPP-ed, which would lead to a reconsideration of the fee awards.  In doing so, a two-step lodestar analytical process needed to be utilized: (1) segregating out unsuccessful SLAPP work; and (2) with respect to the successful arguments, consideration of whether the defense achieved their litigation objectives.  (Mann v. Quality Old Time Services, Inc., 139 Cal.App.4^th 328, 344-345 (2006).)

SLAPP: Where Lower Court Only Granted Defendants Partial Mandatory SLAPP Fees Based On The Theory They Only Partially Prevailed, Appellate Court Disagreed—Defense Entirely Prevailed

Result Was That The Total Fee Request Of The Defense Should Have Been Awarded, Not The Scaled Down Order For 80% Of The Request.

            In Ross v. Seyfarth Shaw LLP, Case No. B312337 (2d Dist., Div. 8 Sept. 29, 2023) (unpublished), plaintiff brought a suit based primarily on the alleged shoddiness of a CSU investigation, with the lower court tentatively indicating that three out of eleven claims should be SLAPP-ed but indicating that the other claims involved unprotected activity—awarding fees and costs of $63,911, 80% of the $79,889 request in its tentative.  Before the tentative ruling could be entered as a final order, plaintiff dismissed his complaint in entirety.  Both sides appealed.

            The 2/8 DCA decided that plaintiff’s entire complaint should have been SLAPP-ed because all of his claims involved a CSU investigation which was a protected “official proceeding,” and plaintiff’s claims were time barred.  Although noting a split in intermediate appellate thinking on prevailing party SLAPP analysis as between Coltrain [presumption that dismissal made the defense the prevailing party, subject to narrow rebuttal circumstances] or Liu [defense must prove it would be successful on the SLAPP merits], defendants prevailed under either standard given the appellate court’s analysis of the substantive underlying issues.  That meant defendants should have been awarded the full $79,889 in fees and costs, plus they were entitled to more costs on appeal.

Experts, SLAPP: Lower Court Properly Excluded Generalized Expert Opposition Testimony Where Expert Had No Experience With SLAPP Appellate Work

Result Was An Award Of $19,651 In Attorney’s Fees To Prevailing Defendant For Defending SLAPP Grant On Appeal.

            Spielbauer Law Office v. Midland Funding, LLC, Case No. H049662 (6^th Dist. June 26, 2023) (unpublished) is a situation where a prevailing defendant in an anti-SLAPP proceeding successfully defended the result on appeal, leading to the entry of a $19,651 fees award for appellate work.  The losing side opposed with a declaration by an expert who was an insurance adjuster and had general fee review experience.  The lower court sustained an objection to that expert’s declaration, and the appellate court affirmed.  The reason is that the expert must have specialized knowledge, with nothing showing that he had experience in reviewing time for SLAPP appeal work.  So, litigants and counsel, be careful when you retain an expert to make sure that expert has specialized knowledge in the substantive area of the issues involved in the case.

SLAPP: $23,728 In Attorney’s Fees Award To Prevailing Defendant Was No Abuse Of Discretion

Defendant Originally Requested $37,400, But Plaintiff Appealed The Reduced Fee Award Anyway.

            Plaintiff in Capital Wholesale LLC v. Buehring, Case No. C095879 (3d Dist. June 21, 2023) (unpublished) lost a SLAPP motion which resulted in his complaint being stricken and with the lower court awarding the prevailing defendant $23,728 in attorney’s fees out of a requested $37,400, determining the issues were straightforward and that 50 hours rather than the claimed 81.6 hours were the reasonable amount of time to be compensated.  Interesting enough, plaintiff appealed, arguing the proper lodestar methodology was not followed by the lower court.  The appellate court disagreed, especially given the reduced fee award showing that the trial judge did follow the Ketchum lodestar standards (see our Leading Case No. 8). 

Judgment Enforcement, SLAPP: Briggs Opinion Now Published

Plaintiff/Judgment Debtor’s Failure To Move To Tax Costs Had Consequences.

            On May 30, 2023, we posted on Briggs v. Elliott, Case No. D080283 when it was unpublished (4^th Dist., Div. 1 May 26, 2023 unpublished, certified for publication on June 16, 2023).  We can now report that the opinion has been published, dealing with a plaintiff/judgment debtor being unable to raise challenges to a SLAPP fee award made in connection with a costs memorandum which was never contested through a motion to tax costs. 

In The News, SLAPP: Maxine Waters’ SLAPP Grant And Fees Recovery Reversed On Appeal

This Updates Our Prior May 28, 2021 Post On The Case At The Trial Level.

            On May 28, 2021, we did a post on a trial court fee award in a defamation action brought by Joe E. Collins III against Maxine Waters, congressional seat opponents in the past, where a Los Angeles County Superior Court judge granted Ms. Waters’ SLAPP motion and awarded her $53,590 prevailing party attorney’s fees.  We now have an update for you.  On June 5, 2023, the 2/8 DCA reversed the SLAPP grant in the defamation case brought by Mr. Collins, which also means the fee award was vacated on appeal.  The case is Collins v. Waters, Case No. B312937 (2d Dist., Div. 8 June 5, 2023) (published). 

SLAPP: What Happens When Some SLAPP Denials Are Reversed And Become SLAPP Grants As Far As Awarding Fees To A Defendant Who Only Partially Prevails On SLAPPing Some Claims?

Answer:  Partially Prevailing Defendant Gets Trial and Appellate Fees For the SLAPP Grants, But No Fees For Work on SLAPP Denials.

            As our post captions above indicate, Peterson v. Harris, Case No. B315356 (2d Dist., Div. 4 June 2, 2023) (unpublished) indicates the attorney’s fees entitlement remedy available to a partially prevailing SLAPP defendant obtaining reversal of some SLAPP denials (so that they were grants) but also having some SLAPP denials affirmed.  That entitlement is to attorney’s fees for trial and appellate work related to the SLAPP grants, but not for work relating to the SLAPP denials.  (ComputerXpress, Inc. v. Jackson, 93 Cal.App.4th 993, 1020 (2001).)

Judgment Enforcement, SLAPP: SLAPP Post-judgment Enforcement Fees/Costs Award Affirmed On Appeal

SLAPP-ed Plaintiff/Judgment Debtor Liable For Post-judgment Enforcement Costs Because He Did Not Move To Tax A Post-judgment Enforcement Costs Memo, A Procedural Deadline Which Was Independent Of Any Subsequent Satisfaction Of Judgment Requests.

            In Briggs v. Elliott, Case No. D080283 (4^th Dist., Div. 1 May 26, 2023) (unpublished), two political rivals were involved in litigation, with plaintiff’s complaint SLAPP-ed by defendant and with the lower court awarding $28,873 in attorney’s fees to defendant as the prevailing SLAPP party.  After trying to collect the unsatisfied judgment for fees, defendant/judgment creditor filed a verified costs memorandum to the tune of $13,789.10 in post-judgment fees and costs, after not accepting a cashier’s check to satisfy what plaintiff/judgment debtor thought would do it on the prior judgment in order not to lose the specter of recovering post-judgment collection costs.  The trial court then awarded defendant the claimed costs as well as prejudgment interest.

            Plaintiff/judgment debtor’s appeal was unsuccessful. 

            Plaintiff’s main problem was that he failed to file a motion to tax the post-judgment costs memorandum, which was an independent deadline not tethered to plaintiff’s efforts to force satisfaction of the prior judgment before collection costs were at issue.  Initially, fees incurred to enforce a SLAPP fee award are recoverable post-judgment collection costs under CCP § 685.040.  (York v. Strong, 234 Cal.App.4^th 1471, 1478 (2015).)  Fees can be claimed through a costs memorandum, with judgment debtor needing to move to tax these costs in order to avoid mandatory allowance by the clerk.  (David S. Karton, A Law Corp. v. Dougherty, 171 Cal.App.4^th 133, 147 (2009).)  Although there were sharply contested facts on plaintiff’s efforts to force satisfaction of judgment, the time frames for a judgment creditor to respond to a demand for partial/full judgment satisfaction are independent of the deadline relating to moving to tax post-judgment requested costs.  Fee award affirmed, with the lower court to determine any appellate fees award to defendant as the prevailing party on appeal.

UPDATE: We can now report that this opinion was certified for publication on June 16, 2023.

SLAPP: $30,555 SLAPP Fee Award Reversed And Remanded Where Only Part Of The SLAPP Denial Was Affirmed On Appeal

Reversal Of The Rest Required A Remand To Eliminate Fees Which Were Inappropriately Awarded For Reversed SLAPP Denial Grant.

            Espinoza Bail Bonds, Inc. v. Chuang, Case No. C095258 (3d Dist. May 15, 2023) (unpublished) shows what happens when $30,555 in attorney’s fees are awarded to a cross-defendant on a SLAPP motion, but there is a partial appellate affirmance of the denial but also a partial appellate reversal of the denial as a matter of law.  So, what happens?  Answer:  The matter had to be remanded to have the trial judge determine what portion of the earlier fee award was properly awarded for the correct SLAPP grant and what portion of the fee award had to be excised for an incorrect SLAPP grant (an incorrect grant as a matter of law).  Looks like an apportionment is in order, as we read the appellate opinion.

SLAPP: Portions Of Defendants’ Frivolous SLAPP Motions Justified Trial Court And Appellate Fees Under Anti-SLAPP Statute

Defendants Appealing The Entire SLAPP Denial As To All Claims Resulted In The Ruling.

            Nirschl v. Schiller, Case No. B313105 (2d Dist., Div. 4 May 10, 2023) (published) involved SLAPP defendants in a case where only portions of their SLAPP motion as to non-defamation claims were denied and deemed to be frivolous in nature—with the lower court awarding fees to plaintiff for these activities.  The appellate court agreed, as well as determined that the defendants should pay appellate fees relating to the non-defamation claims being sustained as frivolous on appeal (but not because the appeal was found to be frivolous).  Defendants’ problem was that they overstepped their bounds, appealing rulings on both the defamation and non-defamation claims, which stayed the entire case inclusive of the defamation claims.  For this overinclusive appeal, defendants were subject to exposure for SLAPP appellate fees as to the non-defamation claims.

Special Fee Shifting Statutes, SLAPP: $40,000 Civil Harassment Fee Award To The Defense Affirmed, But SLAPP Denial Remanded After California Supreme Court Transfer To See If Step Two Was Satisfied

$84,150 Civil Harassment Fee Request Reduced By More Than 50%.

            Geiser v. Kuhns, Case No. B279738 (2d Dist., Div. 5 May 8, 2021) (unpublished) is a case where both a civil harassment fee award and SLAPP denial were in play, with the California Supreme Court on two occasions remanding to the appellate court on the SLAPP issue. 

            In this one, the defense was found to have prevailed under the civil harassment petition fee shifting statute, finally obtained affirmance of a $40,000 award after the lower court reduced it from the $84,150 “ask.”  The lower court’s ruling was no abuse of discretion, and plaintiff’s math to the contrary did not add up.

            The SLAPP issue was a little more complicated.  After transfer from the state supreme court the last time, the appellate court agreed that protected activity was involved such that the lower court had to decide if the merits prong was satisfied on remand.  The defense asked the appellate court to do that task, but it refused to do so.  So, there is a remand to see if fees might be awarded if the defense satisfies the second SLAPP prong for a grant of relief. 

SLAPP: Voluntary Dismissals Did Not Deprive Trial Court Of Ability To Decide An Award Of SLAPP Mandatory Fees To Successful Defendants

However, Trial Court Had To Determine Whether SLAPP Motions Were Meritorious.

            Facing disaster, plaintiffs in Ryckman v. Drexler, Case No. B319664 (2d Dist., Div. 1 Apr. 28, 2023) (unpublished), voluntarily dismissed their actions in the face of SLAPP motions filed by defendants.  The lower court then awarded fees of $29,727.55 to one set of defendants and $21,601.30 to another set of defendants, with no oppositions filed by plaintiffs.

            Plaintiffs argued that the voluntary dismissal divested the lower court of jurisdiction to award fees.  Wrong, it does not.  But the real issue is what did the defense have to prove.  The Second District panel, following a majority of appellate court opinions on this issue, decided that it was necessary to show that the SLAPP motions were meritorious before awarding fees.  That burden was met here such that the fee award was sustained given no challenge to the amount of awarded fees.

SLAPP: Significant SLAPP Prevailing Party Awards Affirmed On Appeal

Amounts Were Significant.

            In Wu v. Lian Tong, Case Nos. A163131 et al. (1^st Dist., Div. 3 Mar. 30, 2023) (unpublished), defendants won a SLAPP motion.  We post to show that the defense mandatory fee awards were significant, $115,577.30 for one defendant and $45,031 for another.  Just to show how SLAPP fee awards can be sizable in nature. 

SLAPP: $3,000 SLAPP Fee Award Reversed Because Corporate Defendants’ Attorney Was Also Protecting His Personal Interests, So No Fees Were Warranted

Court Of Appeal Stirred Between Trope And PLCM Reasoning On Fee Recovery.

            Olin v. Grace, Case No. F083969 (5^th Dist. Mar. 30, 2023) (unpublished) was a situation where corporate defendants, represented by an individual defendant who was a wholly owned principal, won a SLAPP motion and subsequent fee award of $3,000.  The fee award was reversed as a matter of law on appeal.  The appellate panel had to steer between Trope (our Leading Case No. 12) and PLCM (our Leading Case No. 1) with respect to whether the fee recovery was for an in pro per attorney (precluded) or an in-house attorney (not precluded).  In the end, because the attorney representing the corporate attorneys did no work more than protecting his individual defendants for the corporate defendants, the Court of Appeal determined that the SLAPP motion was properly granted, but that the fee motion went POOF! legally, substantially relying on Carpenter v. Zuckerman v. Cohen, 195 Cal.App.4^th 373, 376 (2011) because the attorney defendant representing his own interests did not do anything more for the corporate defendants.

SLAPP: Losing SLAPP Litigant Was Saddled With $49,896 In Attorney’s Fees When Defendants Prevailed On SLAPP Motion

Losing Party’s Expert Declaration Was Deficient, With The Trial Judge Allowed to Bring His/Her Experience When Deciding Reasonableness Of Fees.

            We have seen many of these challenges before as to reasonableness of attorney’s fees awards.  To have potential success, a losing party needs to rely on a competent expert having knowledge in the subject matter at issue and having knowledge about events in the litigation.  If not, the trial judge can dismiss the proffered expert opinion and make an award based on his or her experience in fee contests or knowledge about hourly rates/work of the parties in the case.

            That is what happened in Spielbauer Law Office v. Midland Funding, LLC, Case No. A165817 (1^st Dist., Div. 2 Mar. 23, 2023) (unpublished).  Plaintiff lost a SLAPP motion to defendants, which won a mandatory attorney’s fees award of $49,896 under the SLAPP fee-shifting statute.  Plaintiff’s main challenge on appeal was that the award was too excessive.  The problem for plaintiff was that its expert did not express his experience on SLAPP motions or indicate that he had familiarity with the litigation activities in the case.  That being said, the lower court drew on its own experience in awarding fees, which was no abuse of discretion given its involvement during the course of the lawsuit (and given that it can make such an evaluation without the necessity of expert testimony).  Fee award affirmed. 

SLAPP: SLAPP Fee Denial After SLAPP Merits Denial Ruling Was An Interlocutory Order Which Could Not Be Appealed Until There Was A Final, Appealable Judgment

Appellate Court Sustained Most Of The SLAPP Denial, Except For One Claim, So Case Goes On.

            In Antonio V. v. Horn, Case no. B307098 (2d Dist., Div. 1 Mar. 22, 2023) (unpublished), the lower court denied a SLAPP motion, which was affirmed in major respects except for granting it on one claim.  After the SLAPP motion was denied by the trial court, the lower court also denied a post-merits SLAPP attorney’s fees motion.  The aggrieved party appealed that separate fee denial.  The 2/1 DCA panel dismissed the appeal because an interlocutory order denying the fee request was the subject of the appeal, such that a review of the fee denial had to await a final, appealable judgment down the way given the case has more events to come.  (Doe v. Luster, 145 Cal.App.4^th 139, 150 (2006); Martin v. Inland Empire Utilities Agency, 198 Cal.App.4^th 611, 632 (2011); Baharian-Mehr v. Smith, 189 Cal.App.4^th 265, 274 (2010).)

Celebrities, SLAPP: $493,135 In SLAPP Fees And Costs Awarded To Phoebe Bridgers For Winning A SLAPP Motion In A Defamation Case Brought Against Her

The Request Was $670,510 In Fees And Costs.

            Phoebe Bridgers, an indie folk music songwriter-singer, was sued for defamation by music producer Chris Nelson in Los Angeles County Superior Court.  Earlier, she won a SLAPP motion, which allows for imposition of mandatory reasonable attorney’s fees and costs against the non-prevailing plaintiff.  She moved for fees and costs of $670,510, with Judge Curtis A. Kin on March 9, 2023 awarding her the reduced amount of $493,135.  Goes to show you that SLAPP victories can carry a high price tag for the unsuccessful litigant. 

SLAPP: $19,900 Defense Fee Award Affirmed On Appeal, Despite Hefty “Fees On Fees” Motion Request

However, Certain Costs Were Not Allowed, Incorporating CCP § 1033.5 Restrictions Into SLAPP Costs Recovery.

            In Jones v. Reekes, Case No. F082866 (5^th Dist. Jan. 9, 2023) (unpublished), plaintiffs losing a SLAPP motion challenged the trial court’s award to the defense of $19,900 in fees (including $3,000 for “fees on fees” efforts) and $414.86 in costs even though $379.84 in costs encompassed expert consultation, transcripts, copier charges, and postage.  The appellate court affirmed the fee award because the trial judge has a large amount of discretion to determine if the amount, including “fees on fees,” was reasonable, especially given that the hourly rate claimed was $300 for attorney work and $50 for secretarial work.  (The 1.5 requested positive multiplier was denied.)  However, the $379.84 in costs was reversed because the CCP § 1033.5 restrictions on costs were equally applicable in the SLAPP context.  (Lucky United Properties Investment Inc. v. Lee, 185 Cal.App.4^th 125, 137 (2010); Dowling v. Zimmerman. 85 Cal.App.4^th 1400, 1433 (2001).)

SLAPP: SLAPP Fee And Costs Award Totaling $40,942 Is Sustained On Appeal

Lower Court’s Reduction Of Request For Excessive “Fees On Fees” Upheld In The Process.

            It is hard to overturn the amount of a mandatory fee award unless it shocks the conscience of the judge or justices reviewing the request for fees.  That burden could not be overcome in Koerber v. Project Veritas, Case No. B298540 (2d Dist., Div. 3 Dec.23, 2022) (unpublished).  The lower court granted the defense $40,942 in fees and costs for prevailing on a SLAPP motion, reducing the requested amount of $44,422—principally for excessive “fees on fees.”  The reviewing court found no abuse of discretion. 

SLAPP: $49,000 Prevailing Defendant Attorney’s Fees Award Affirmed On Appeal

Plaintiffs Appealed, To No Avail, Even Though The Lower Court Reduced A Larger Request Of $221,510.50 And A Smaller Alternative Request Of $127,498.69.

            This next case, Elliott v. Tyerman, Case No. B316104 (2d Dist., Div. 5 Dec. 22, 2022) (unpublished), illustrates that a litigant who has been hit with a substantially reduced SLAPP fee award than requested needs to carefully assess whether an appeal is prudent.

            What happened here is that defendants won a SLAPP motion on four causes of action, but had the motion denied on the first three causes of action.  Defendants moved for mandatory fees—in a reasonable amount—under CCP § 425.16(c)(1), making a request for $221,510.50 in fees based on hourly rates from $595-$1,600) or, alternatively, for four-sevenths of that amount ($127,498.69) for only prevailing on four of plaintiffs’ claims.  The lower court found that $500 was the reasonable hourly rate for all work and found the number of hours billed were excessive, the success on the SLAPP motion was limited, and other services rendered on the motions were duplicative/redundant.  The lower court awarded $49,000 to the defense, prompting an appeal by plaintiffs.

            The 2/5 DCA affirmed the SLAPP fee award.  Defendants’ victory on the four claims was far from trivial, given that the dismissed claims carried more liability exposure than the three claims remaining for adjudication.  As far as the amount of the fee award, the lower court did substantially reduce the requests, with no abuse of discretion being shown by awarding a lower hourly rate and discounting the request for the factors it did (especially limited success).  After all, plaintiff was the beneficiary of these reductions, such that an appeal seemed to be (and was) a longshot. 

SLAPP: Third District Affirms A Lower Court’s Award Of Attorney’s Fees And Costs To Plaintiff After Finding That The Defendants’ SLAPP Motion Was Frivolous

$72,798.65 In Fees And $1,053.50 In Costs Were The Sustained Awards, Plus The Appellate Court Directed The Lower Court To Award Plaintiff Appellate Fees On Remand.

            City of Rocklin v. Legacy Family-Adventures-Rocklin, LLC, Case No. C091172 (3d Dist. Dec. 21, 2022) (published) shows how the narrower SLAPP fee-shifting provision can take a bite, allowing fees to a plaintiff who/which shows that the SLAPP motion was frivolous.  In this case, some nice fees and costs were awarded at the trial court level (could have been greater, because this was a Sacramento/El Dorado County case where rates are lower), but the winning plaintiff also will get appellate fees as the winner on the defense appeal upon remand to the trial court.

            In this one, defendants’ SLAPP motion was denied, with the lower court determining that it was frivolous and awarding plaintiff City $72,798.65 in fees (a little lower than the request of $72,854.41) and $1,053.50 in costs. 

            Defendants’ appeal was not successful on the merits or on the fees/cost awards.  The appellate court agreed that the defense SLAPP motion was frivolous.  The defense argument that no 21-day safe harbor notice was given did not resonate because it was forfeited, based on defendants failing to present the argument before the trial judge.  With that said, City asked for appellate fees for winning on appeal, with the Third District agreeing appellate fees should be awarded and remanding to the lower court to determine the reasonable amount of fees to be awarded to City.  For the defense, OUCH!

Appealability, SLAPP: 4/3 DCA Decides That Immediate Appeal Of SLAPP Fee Award Is Not Cognizable

Appellate Court Sides With One Side In “Irreconcilable Conclusions” On The Appealability Issue.

                 In Ibbetson v. Grant, Case No. G060473 (4^th Dist., Div. 3 Nov. 30, 2022) (unpublished), the appellate court was faced with the question of whether an anti-SLAPP fee award was immediately appealable after a prior SLAPP order grant or whether it had to await a final judgment down the way.

                 The 4/3 DCA panel, in an unpublished opinion authored by Acting Presiding Justice Bedsworth, dismissed the appeal. 

                 It determined that there were two “irreconcilable” approaches on the appealability issue.  The first was embodied in Doe v. Luster, 145 Cal.App.4^th 139, 144-148 (2006) and Baharian-Mehr v. Smith, 189 Cal.App.4^th 265, 275 (2010), which both held that a separate SLAPP fee award is not immediately appealable unless it is part of the SLAPP motion (where the fees are awarded at the same time as the SLAPP grant).  The second approach was represented in City of Colton v. Singletary, 206 Cal.App.4^th 751, 781-782 (2012), which held that the SLAPP fee award was separately appealable under the collateral order exception to the one final judgment rule.  However, the Ibbetson panel decided that the Doe/Baharian-Mehr cases provided “the sounder approach,” especially given what the Legislature did in making SLAPP grants/denial immediately appealable but not including fee awards within that ambit.  That led to a dismissal of the appeal; although, as we read the opinion, the adverse party can raise a challenge to it from any final judgment entered in the future.

                 BLOG OBSERVATION—This case might be seen as one which should have been published.  However, given that the adverse party can appeal the issue from the final judgment, we will indicate that Justice Bedsworth rarely grants civil opinion publication requests.  He believes there is too much law on the books already, so why add more unless there is something really special dictating a different conclusion.

SLAPP: Lack Of A Reporter’s Transcript And Indication That The Lower Court Did Consider Degree Of Success In Its Order In Awarding SLAPP Fees Led To Sustaining The Fee Award

$25,795.50 Fee Award Affirmed On Appeal.

            An adequate appellate record is a necessity in modern appellate practice, not to say it did not change from being a necessity long ago.  In Beck v. Yozura, Case No. B313689 (2d Dist., Div. 4 Nov. 7, 2022) (unpublished), the trial judge awarded $25,795.50 to a prevailing defendant winning a SLAPP motion.  Appellant challenged this determination, although having no reporter’s transcript of the hearing and with the lower court’s order indicating that there was no real way to apportion fees between SLAPP and non-SLAPP work, as well as indicating in its order that the degree of success was considered.  Given the lack of a reporter’s transcript, there was no reason to upset the fee order below in tandem with the reasoning of the lower court order.

SLAPP: Plaintiff’s Failure To Timely Appeal SLAPP Merits Defeat Prevented Review Of The Merits; Although Appeal On The SLAPP Fees And Costs To Defendant Was Timely, Plaintiff Failed To Discuss The Fees/Costs Order In Her Appellate Briefing

Challenges to The Fee/Costs Order Were Forfeited.

            Appellate practice is laced with important deadlines and briefing requirements.  Plaintiff failed to follow two important ones in Mitchell v. Dawn Wigeri Van Edema, Case No. C094757 (3d Dist. Nov. 1, 2022) (unpublished).  First, plaintiff failed to timely appeal the SLAPP merits grant within 60 days after defendant served a file-endorsed copy of the grant order, which was fatal to review the merits.  Next, even though plaintiff timely appealed the post-judgment order granting SLAPP fees/costs, plaintiff failed to discuss the fees/costs order in her appellate briefing, which meant that any challenges were forfeited. 

Appealability, SLAPP: Even Through Cross-Claims Were Dismissed During Pendency Of An Appeal, SLAPP Denial Appeal Was Not Moot

The Reason Is That Attorney’s Fees Were In Play If The SLAPP Denial Was Reversed, As It Was.

            Watkins v. D’Orio, Case No. B310902 (2d Dist., Div. 2 Sept. 14, 2022) (unpublished) involved a situation where cross-defendant appealed the denial of an anti-SLAPP as to certain cross-claims and, during the pendency of the appeal, cross-complainant voluntarily dismissed the cross-complaint.  Cross-complainant argued that this dismissal mooted the appeal, but the appellate court disagreed.  Guess why?  If you said that a successful appeal would not be moot because cross-defendant could move for mandatory attorney’s fees if a reversal occurred, then you answered correctly.   Well, that is what happened—the SLAPP denial was reversed with instructions to reinstate the cross-complaint, grant the SLAPP motion, and strike the cross-complaint.  Cross-defendant was awarded appellate costs and will have a chance to move for fees before the lower court in the future.

SLAPP: Lower Court Erroneously Denied Anti-SLAPP Fees To Two Out Of Three Defendants Based On The Notion That One Motion Rather Than Three Could Have Been Filed

Defendants Had Differing Interests, And Any Duplication Could Be Remedied By A Lodestar Downward Adjustment.

            In Frym v. 601 Main Street LLC, Case No. A163086 (1^st Dist., Div. 5 Aug. 24, 2022) (published), a trial judge granted defendant attorney’s fee request after an anti-SLAPP motion win, but the judge denied fees to the two other defendants (a landlord and its majority shareholder) after plaintiff voluntarily dismissed claims during the pendency of the two defendants’ pending anti-SLAPP motions.  Notwithstanding the defendants having the same but also differing interests, the lower court denied fees to the other two defendants on the basis that they could have avoided the fees by filing a single motion.  The appellate court reversed and remanded with instructions to apply lodestar principles to the two defendants’ fee requests, although the lower court could make a downward adjustment for duplicative work and could consider that attorney’s fees and costs already had been awarded to the defendant attorney.  The lower court also was to determine appellate prevailing party fees, although it could take into account that the two defendants challenged an appeals consolidation motion which was granted and that plaintiff filed a judicial notice request which was denied.  Here was the “bottom line” reasoning:  “ . . . we find no authority to support the trial court’s position that mandatory attorney fees can be denied where multiple prevailing parties represented by different counsel and with different interests, could have all brought one combined motion.”

SLAPP: SLAPP Fee Award Affirmed Because Hourly Rates Were Reasonable

Opposing Arguments Were Dismissed, Including That A Prior Disciplined Attorney’s Rates Should Be Compromised Where No Causal Connection Demonstrated.

            SLAPP fees are mandatory to a prevailing defendant, such that a challenge to their reasonableness must have some bite.  That bite was missing in Creative Care, Inc. v. McEntyre, Case No. B308643 (2d Dist., Div. 3 Aug. 17, 2022) (unpublished).  The litigant suffered a $14,030 adverse SLAPP fee attorney’s fees order.  That litigant challenged the $550 hourly rate by opposing counsel, but the appellate court affirmed after deciding that (1) some faulty legal arguments by counsel did not necessarily justify a reduction under the circumstances of the matter, and (2) the claimant’s attorney’s prior Bar discipline did not warrant a deduction because there was no causal connection between the discipline and the fee request which was made in this case. 

SLAPP: Sixth District Reverses Denial Of Attorney’s Fees And Costs To SLAPPing Defendant Achieving Partial Success

The Record Did Not Support Trial Court’s Finding That Defendants Derived No Practical Benefit From Their Partially Successful SLAPP Motion.

            California’s Code of Civil Procedure section 425.16(c)(1) entitles a prevailing defendant on a special motion to strike to recover attorney’s fees and costs, but does not define the term “prevailing defendant” and is silent on entitlement where a SLAPPing defendant achieves only partial success – leaving to the trial court’s broad discretion determination as to whether a defendant prevailed and is entitled to fees.  However, as a general rule, a SLAPPing defendant who achieves even partial success must generally be considered the prevailing party.  An exception to this general rule exists where the results of a defendant’s SLAPPing success are so insignificant that they achieve no practical benefit.  (See Mann v. Quality Old Time Service, Inc., 139 Cal.App.4th 328, 340 (2006).)

            Success without benefit is what the trial court determined defendants had achieved in Maleti v. Wickers, Case No. H048393 (6^th Dist., August 15, 2022) (published) because they were not successful in achieving their ultimate goal of dismissing the entire complaint.  This resulted in the trial court’s denial of defendants’ attorney’s fees motion.  However, the Sixth District disagreed and reversed – finding defendants’ success in striking one of the two causes of action alleged against them to be no pyrrhic victory.  Unlike the situation in Moran v. Endres, 135 Cal.App.4th 952 (2006) – the case relied on by plaintiff – defendants’ partial SLAPPing success did not accomplish nothing.  Rather, it had the practical benefits of eliminating the possibility of facing liability under the stricken cause of action, and of narrowing the litigation, discovery, motion practice, and trial prep. 

SLAPP: $5,081.25 SLAPP Fee Award To Defense Sustained On Appeal

Attorney Disqualification Efforts Properly Excluded.

            This one is interesting because it evokes the old adage “be content with what you have; rejoice in the way things are.”  In Elliott v. Maland, Case No. D078935 (4^th Dist., Div. 1 July 15, 2022) (unpublished), a partially successful SLAPP defendant sought $23,976.50 in attorney’s fees but the trial court disallowed $13,805 relating to attorney disqualification efforts and then reduced further for only partial success on the SLAPP motion.  Defendant appealed, seeking more fees, but the appellate court found the lower court’s reduction for disqualification efforts was no abuse of discretion (they were not inextricably intertwined with SLAPP work) and the further reduction for partial success on the SLAPP motion was the proper result under case law.

Laffey Matrix, Probate, Sanctions, SLAPP: Lower Court Did Not Err In Fixing SLAPP Defense Fees In Two Defendants’ Favor

Also, A Probate Court Properly Sanctioned Attorney For Violating Local Rule Page Limitations.

            In Tukes v. Richard, Case Nos. B307242 et al. (2d Dist., Div. 8 July 12, 2022) (published), plaintiff lost SLAPP motions against two defendants, with the lower court awarding mandatory prevailing party fees of $49,071.50 and $26,905, respectively, after making some downward adjustments for duplicative work by the firms representing different defendants.  Also, a litigant’s counsel was sanctioned $4,000 (out of a requested $8,085) for failing to comply with local rule page limitations in filing certain pleadings.  Different appeals were taken, but these two results were affirmed.

            As to the SLAPP fees, here were the takeaways: (1) fees expended in monitoring another action are compensable when necessary to prosecute the SLAPP motion; (2) prevailing on a standing issue does mean that a defendant prevailed for SLAPP fee recovery purposes; and (3) a trial court has discretion to use the Laffey Matrix when it comes to establishing attorneys’ reasonable hourly rates in California state courts even though some courts decline to utilize it (Syers Properties III, Inc. v. Rankin, 236 Cal.App.4^th 691, 702 (2014)).

            On the sanctions order, California Rule of Court, rule 2.30 does authorize a probate court to impose sanctions for failure to comply with applicable rules without good cause, including an award of “fees on fees” for bringing the sanctions motion.  The award was no abuse of discretion under the circumstances.

            BLOG OBSERVATION—Appellant on the fees awards misquoted and mischaracterized attorney declarations on appeal, which we believe led to a loss of credibility before the panel—which only gently chided Appellant on this transgression.

Appealability, SLAPP: 2/7 DCA Affirms Its Conclusion In Earlier Published Opinion That Denial Of SLAPP Fees To Plaintiff After A Defense SLAPP Denial Is Not Immediately Appealable

In Doing So, It Disagreed With Different Conclusions By Two Sister Appellate Courts.

            Kaplan v. Davidson, Case No. B312826 (2d Dist., Div. 7 July 11, 2022) (unpublished) highlights a rift between this Division and other sister appellate courts on the question of whether denial of attorney’s fees to a plaintiff after a merits denial of a SLAPP motion is appealable.  The 2/7 DCA, in the earlier decision of Doe v. Luster, 145 Cal.App.4^th 139, 142 (2006), concluded it was not immediately appealable.  Later, other appellate courts came to a completely different conclusion.  (Baharian-Mehr v. Smith, 189 Cal.App.4^th 265, 275 (2010); Chitsazzeh v. Kramer & Koslow, 199 Cal.App.4^th 676, 680 n. 2 (2011).)  Now, after considering the issue yet again, the Kaplan panel confirmed that Doe was correct and did not endorse the other sister court decisions, finding that the Legislature did not indicate such a denial order was immediately appealable under Code of Civil Procedure sections 425.16 or 904.1.  It did not rule out that an extraordinary writ of mandate petition might be proper under the right circumstances.

Reviews: Articles On Anti-SLAPP Fee Awards And On Best Practices

California Litigation Publishes Two Helpful Attorney Fees Articles In Latest Issue.

        California Litigation, the journal of the Litigation Section of the California Lawyers Association, has published two articles relating to attorney fees in the latest issue, Vol. 35, No. 1 (2022). Co-contributor to this blog Marc is one of the editors of California Litigation.

        Hon. Elizabeth R. Feffer (Ret.) & Richard M. Pearl, Best Practices for Litigating a Civil Code Section 1717 Motion for Attorney Fees. Our readers will know Richard Pearl as the author of the CEB book about attorney fees in California. Elizabeth Feffer served as a judge of the superior court in Los Angeles from 2007 to 2020, and is now a neutral at ADR Services.

        Timothy M. Kowal, Are Anti-SLAPP Fee Awards Stayed on Appeal? The Better Side of a Split of Authority Says Yes. Tim and his law partner Jeff Lewis are the creators of the California Appellate Law Podcast. Mike and Marc were recently interviewed on the podcast on -- you guessed it -- the subject of attorney fees.

SLAPP: Close To $43,000 Fee Award Against Defendant Losing A SLAPP Motion Affirmed On Appeal

Although It Was A Close Call, Frivolity Determination Was No Abuse Of Discretion.

            A lower court in Edward v. Ellis, Case No. G060310 (4^th Dist., Div. 3 June 28, 2022) (unpublished) denied a SLAPP motion and found that the motion was frivolous, such that a defendant was hit with about $43,000 in SLAPP attorney’s fees where frivolity was shown.  The appellate court affirmed.  Although finding it was a close call, the reviewing court could not find the determination was an abuse of discretion.  Acting Presiding Justice Goethals authored the decision. 

SLAPP: Appellate Court’s Reversal Of SLAPP Denials Meant That Fee Denial Had To Be Reversed And Remanded For A Fee Determination

Even If Construed As A “Partial” SLAPPback, No Authority Cited To Preclude Fee Recovery.

            In J.B.B. Investment Partners, Ltd. v. Fair, Case No. A160098 (1^st Dist., Div. 2 June 9, 2022) (unpublished), defendant attorneys filed an anti-SLAPP motion which was granted on an abuse of process count and denied on other counts brought by plaintiff.  The lower court also denied a fee request.  The 1/2 DCA reversed, finding the SLAPP motion should have been granted on the other counts so that the fee denial had to be reversed and remanded for a determination of reasonable fees.  It did not believe this was a “SLAPPback” situation, but similarly observed that no authority was cited for the proposition that fees were unwarranted for a “partial” SLAPPback.

Deadlines, SLAPP: Successful SLAPPing Defendants’ Award Of $33,120 In Attorney Fees And $91.85 In Costs Reversed On Appeal Due To Trial Court’s Flawed Legal Analysis In Determining Deadline For Fees/Costs Motion

Holidays Did Not Stop The Clock On Defendants’ Deadline And Code Civ. Proc., § 664.5 Does Not Govern When The Clock Begins Under Rule 8.104.

            In Tye v. Papp, Case No. E076523 (4^th Dist., Div. 2 May 9, 2022) (unpublished), defendants were awarded $33,120 in attorney fees and $91.85 in costs under Code Civ. Proc. section 425.16 after the trial court dismissed the entire action based on Defendants' successful anti-SLAPP motion.  On appeal, Plaintiff argued that the trial court lacked jurisdiction to rule on the fees motion, that defendants’ fees/costs motion was untimely, and that the amount awarded constituted an abuse of discretion.

            Plaintiff's jurisdictional argument failed because there are exceptions to the general rule that a trial court lacks jurisdiction to conduct further proceedings as to a party it has dismissed from an action. In this case, the exception was the requirement that the trial court determine and enforce defendants’ collateral statutory rights (e.g. motions for fees/costs). (Shisler v. Sanfer Sports Cars, Inc. 167 Cal.App.4^th 1, 7 (2008); Pittman v. Beck Park Apartments Ltd., 20 Cal.App.5^th 1009, 1022 (2018).) 

            As to the timeliness issue, however, the 4/2 DCA determined that the trial court’s legal analysis concerning the deadline for defendants’ fees/costs motion was erroneous.  Plaintiff provided a proof of service indicating defendants were served with a notice of entry of judgment by mail.  This service started the clock on defendants’ 60-day deadline for filing their fees/costs motion, plus five additional days for service by mail. (California Rules of Court, Rules 3.1702(b) and 8.104(a)(1)(B).) However, defendants – who claimed to have not been served with the notice of entry of judgment – exceeded this 65-day window by more than two weeks. Nonetheless, the trial court determined defendants’ motion was timely under rule 8.104(a)(1)(B) based on its findings that none of the days from March 17, 2020 to May 31, 2020 counted toward the 60-day window because they had been declared holidays due to the COVID-19 pandemic, and on its holding that the notice of entry of judgment was invalid because plaintiff did not comply with Code Civ. Proc., § 664.5(a) requirement that he file with the trial court the original notice of entry of judgment together with the proof of service.  First, the appellate panel found, holidays do not stop the clock on filing deadlines and generally only affect a filing deadline when the deadline falls on a holiday. (Code Civ. Proc., §§ 12, 12a(a).) Second, the panel found that § 664.5 does not govern when the 60-day window begins, and rule 8.104 does not incorporate § 664.5’s requirements.  As a result, the 4/2 DCA reversed and remanded for additional proceedings to determine whether defendants were served with the notice of entry of judgment, and, if so, whether their motion was timely.

            Finally, because the panel reversed the award and remanded for additional proceedings on the timeliness issue, it found plaintiff’s abuse of discretion claim not ripe for review.

SLAPP: Although Defendant’s SLAPP Motion Was Frivolous, $5,000 Fee Award Was Reversed As A Matter Of Law Because Plaintiff Law Firm Represented Itself In The SLAPP Proceedings

Self-Represented Attorney Cannot Get Sanctions For Frivolous SLAPP Motion.

            In the SLAPP area, a trial judge can award fees as sanctions against a defendant which files a frivolous SLAPP motion.  That did occur in Stuart Kane LLP v. The Law Offices of J.D. Cuzzolina, Esq., Case No. G060172 (4^th Dist., Div. 3 Apr.27, 2022) (unpublished), with the lower court awarding plaintiff $5,000 in costs and fees as against defendants in the form of sanctions.  (Code Civ. Proc., § 425.16(c)(1).)  The $5,000 sanctions award was reversed as a matter of law because plaintiff law firm represented itself, and a self-represented attorney cannot obtain sanctions under CCP § 128.5 (which is incorporated into the frivolous SLAPP sanctions provision).  (Musaelian v. Adams, 45 Cal.4^th 512, 520 (2009).)

SLAPP: Where In Pro Per Litigant Hired An Assisting Attorney To Help With A SLAPP Motion And Apportioned Requested Fees 50% To Reflect Winning On One Out Of Two Claims, Appellate Court Affirmed Trial Judge’s SLAPP Fee Award

A Little Over $38,000 Was The Final Fee Award.

            Although an in pro per litigant cannot obtain a SLAPP fees award, he can get an award where he retains an attorney to assist him with prosecuting a SLAPP motion, even if the attorney is not of record.  (Witte v. Kaufman, 141 Cal.App.4^th 1201, 1207 (2006); Mix v. Tumanjan Development Corp., 102 Cal.App.4^th 1318, 1324 (2002).)

            An in pro per litigant and his retained attorney won a reversal of a SLAPP denial on one claim, then sought mandatory, reasonable SLAPP fees in Zilberstein v. Petersen, Case No. B311978 (2d Dist., Div. 4 Apr. 13, 2022) (unpublished).  But they did a smart thing:  they only asked for 50% of the incurred fees based on a 50% victory.  Both the trial and appellate courts liked this apportionment approach, with the appellate court sustaining the lower court’s entire award of the requested approximately $38,000 in fees for the SLAPP win.