CALIFORNIA ATTORNEY'S FEES

Reasonableness Of Fees, SLAPP, Substantiation Of Reasonableness Of Fees: Successful SLAPPing Defendant Entitled To An Award Of $48,790 In Fees And $1,574.60 In Costs

Winning Defendant Did Something Smart:  After SLAPP Motion Granted, Offered To Stipulate To A Much Lower Fees And Costs Award, Rejected By Plaintiff.

               When it comes to the reasonableness of a fee award, we have posted on situations where the prevailing party offered to stipulate to a lower fees/costs award and then obtained a higher fees/costs award after that offer was rejected.  Proof of this was made in Aminpour v. Verdi, Case No. B327213 (2d Dist., Div. 5 Aug. 21, 2024) (unpublished), with the lower and appellate courts persuaded that the defense higher fee request was justified in part by an attempt to resolve the controversy by the winning side.

               In this one, the defense prevailed on a SLAPP motion, including having to reply to a 150-page opposition by plaintiff.   Before any fees/costs motion was filed by the prevailing defendant, his counsel sent an email willing to stipulate to a definite fees/costs award in order to avoid further expenses to file an actual attorney’s fees motion, an offer which was not responded to apparently.  Later, the trial judge ordered a higher fees award of $48,790 and higher costs award of $1,574.60 to defendant.  Plaintiff appealed, but the appellate court determined the awards were no abuse of discretion because (1) plaintiff had argued that he should be awarded $56,225 in fees in an earlier pleading, such that the work by plaintiff demonstrated the defense request was not outrageous, citing In re Tobacco Cases I. 216 Cal.App.4^th 570, 584 (2013); (2) the “fees on fees” to bring the fee motion were allowable; and (3) sufficient declaration testimony was presented to support the award given no billing records/invoices were required (although as bloggers, we would say they are highly advisable).

Appealability, SLAPP: Reversal Of Defendant’s SLAPP Motion Vacated Fee Award, But Plaintiff’s Motion For Sanctions Was Not Appealable

Everyone Gets To Keeping Litigating!

               In Sayarad v. Butler-Lopez, Case No. A166884 (1^st Dist., Div. 1 May 6, 2024) (unpublished), plaintiff suffered a partial grant of a SLAPP motion, resulting in an adverse attorney’s fees award as to one defendant of $42,031.50, and with the lower court denying plaintiff’s motion for sanctions based on the ground that defendant filed a frivolous SLAPP motion.  Plaintiff appealed.

               Good thing she did.  The appellate court reversed the defense SLAPP grant, which meant that the $42,031.50 fee award went POOF!  With respect to the motion for sanctions by plaintiff, that was not appealable and did not fall within the collateral order doctrine—it did not direct the payment or money or performance of an act.  Everyone got something, but the litigation goes on!

Deadlines, SLAPP: Lower Court Erred In Not Adjudicating Merits Of SLAPP Motion In Dismissed Case And Then Determining If Attorney’s Fees Were Warranted

Renewed Fee Motion Was Timely, Where Original Fee Motion Was Filed Within Deadlines.

               In Shih v. Max, Case No. B324437 (2d Dist., Div. 1 Apr. 29, 2024) (unpublished), lower court denied two defendants’ SLAPP fee motions as moot after plaintiffs voluntarily dismissed their complaint before the SLAPP motion could be heard, although there were various procedural and stay nuances in effect during the entire case—with the original fee motion stayed pending an appellate determination on defendants’ successful summary judgment motion.  After the appellate court affirmed a summary judgment in defendants’ favor, defendants re-noticed their SLAPP fee motion, which was denied without explanation by the lower court.

               The 2/1 DCA reversed and remanded.  It initially determined the renewed fee motion was not time barred because it was a renewal of a timely filed fee motion.  (In re Marriage of Perow & Uzelac, 31 Cal.App.5^th 984, 992 (2019).)   With the procedural issue out of the way, the appellate panel concluded that the trial judge had to adjudicate whether the SLAPP motion had merit and, if it did, decide the reasonable fees to be awarded to the defense.  (Pfeiffer Venice Properties v. Bernard, 101 Cal.App.4^th 211, 218-219 (2002); Liu v. Moore, 69 Cal.App.4^th 745, 751-752 (1999).)

Appealability, SLAPP: Much Diminished Fee Recovery By Three Defendants Prevailing On SLAPP Motions Affirmed On Appeal

Plaintiff’s Appeal Of The Later Judgment Incorporating Fees Was Appealable, But Lower Court’s $62,500 Fee Award Was No Abuse Of Discretion.

               In Norman v. Ross, Case Nos. B316971 et al. (2d Dist., Div. 4 Apr. 23, 2024) (partially published; fee discussion not published), three defendants won a SLAPP motion on plaintiff’s claims, while two other defendants had their SLAPP motions denied in part on certain of plaintiff’s claims although the appellate reversed the SLAPP denial.  Defendants moved for SLAPP attorney’s fees, requesting $436,192.88 in total.  The lower court found that the case was not that novel, that plaintiff did drive up the litigation expenses in some regards, and that the defense took a “maximalist approach” to litigating the matter.  The trial judge awarded $125,000 in total to defendants, allowing them to apportion among themselves but entering a final judgment in favor of three defendants awarding them half or $62,500 in fees.  Plaintiff appealed, arguing the fee awards for the three defendants were still excessive.

               The 2/4 DCA, in an unpublished portion of the opinion, affirmed.  The panel had to confront the defendants’ argument that the appeal was premature because the fee order was just an interlocutory order not yet appealable.  The appellate court disagreed, finding that it had enough finality even though case law was in conflict (following the lead of the City of Colton, Baharian-Mehr, and Apex opinions over contrary reasoning in Doe v. Luster and cases aligned with Doe).  On the merits, however, the lower court did not abuse its discretion in the fees awarded to the three defendants because it did substantially discount the requests by the defense and there was no need to apportion because the lower court indicated that the defense was in the better position to apportion among the respective clients.  It also chided plaintiff’s counsel for bombastic appellate briefing on the fee issue, stressing the need for civility and professionalism.

Appealability, SLAPP: Aggrieved Plaintiff Properly Prosecuted A Second Appeal From A SLAPP Fee Order Given Conflicting Intermediate Appellate Authority On The Issue

Opinion Validates Our Recommendation In Many Posts To Separately Appeal An Adverse Fee Order Or Appeal Both Rulings In A Combined Appeal If Possible.

               In Williams v. Doctors Med. Center of Modesto, Inc., Case Nos. F084700 et al. (5^th Dist. Mar. 27, 2024) (published), plaintiff separately appealed the granting of a SLAPP motion and a subsequent order granting fees to the successful defendants.  The defense argued that the second appeal was unnecessary because any fee award would automatically fall if the merits SLAPP ruling was reversed.  The Fifth District found nothing improper about the filing of the second appeal, something we bloggers have suggested in many prior posts.

               The appellate court observed that there was conflicting intermediate appellate authority on the treatment of dependent fee awards.  Some courts have held that they can reverse a fee award from an underlying judgment even if the fee award was not separately appealed.  (See, e.g., Ulkarim v. Westfield LLC, 227 Cal.App.4th 1266, 1282 (2014); Harris v. Wachovia Mortgage, FSB, 185 Cal.App.4th 1018, 1027 (2010).) Other courts held that they have authority to reverse a fee award only when the judgment and fee award are appealed together in a single appeal or appealed separately in two appeals. (E.g., Nellie Gail Ranch Owners Assn. v. McMullin, 4 Cal.App.5th 982, 1007–1008 (2016); Allen v. Smith, 94 Cal.App.4th 1270, 1284 (2002).)  Additionally, some courts have noted that “ ‘ “[w]hen a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure is to file two separate appeals: one from the final judgment, and a second from the postjudmgent order.” ’ ” (Doe v. Westmont College, 60 Cal.App.5th 753, 762 (2021) [quoting Torres v. City of San Diego,154 Cal.App.4th 214, 222 (2007)].)

               Better safe than sorry—do a combined appeal of the two rulings or separately appeal the fee order if there is some delay in the fee ruling so as to make two appeals necessary.

SLAPP: Lawyer’s Claim To Recover Contingency Fee Was Not Protected Conduct To Justify A SLAPP Motion

Client’s SLAPP Motion Was Properly Denied.

            In Fink & Associates v. Finato, Case No. B325604 (2d Dist., Div. 1 Jan. 19, 2024) (unpublished), a lower court denied former client’s attempt to SLAPP former attorney’s cross-claims to recover a contingency fee after a settlement was reached.  The 2/1 DCA affirmed because the nonpayment of monies is not protected conduct under the SLAPP statute.  (Century 21 Chamberlain & Associates v. Haberman, 173 Cal.App.4^th 1, 7.)  Even though a settlement was in the factual background of the case, the cross-claims focused on failure to pay attorney’s fees, nothing about the propriety of the settlement.

Appealability, SLAPP: Where SLAPP Cross-Defendant Did Not Eliminate All Cross-Claims And Received Less Than Requested SLAPP Fees, Fee Order Was Not Appealable

No Final Judgment Was Entered, And Collateral Order Doctrine Did Not Apply Because The Fee Order Did Not Order Payment Of Money By Partially Prevailing Cross-Defendant.

            Cross-defendant in Delis v. Thorn, Case No. F084879 (5^th Dist. Dec. 26, 2023) (unpublished) successfully SLAPP-ed 4 out of 5 cross-claims, moved for mandatory SLAPP fees, and was awarded only $15,500 out of the requested more than $85,000 in fees.  Cross-defendant appealed the fee order for not awarding more money to him.

            The Fifth District dismissed the appeal because it was premature.  CCP § 904.1 does not list a SLAPP fee award as immediately appealable.  There was no final judgment in the case because both parties have claims remaining to litigate.  The collateral order doctrine did not apply because cross-defendant was not ordered to pay any moneys; quite the opposite, cross-defendant obtained some fees such that he was not aggrieved with the scope of the doctrine.

            His appeal would have to await entry of a final judgment in the case unless a voluntary resolution occurs.

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. 

SLAPP: Lower Court Had Jurisdiction After Plaintiffs’ Dismissal Of Their Complaint, With A SLAPP Motion Pending, To Award Fees To the Defense

However, Lower Court Had To Determine If SLAPP Motion Had Merits, Which It Did.

            In Mendez v. Flores, Case No. C095501 (3d Dist. Dec. 8, 2023) (unpublished), plaintiffs dismissed their complaint after the defense moved to SLAPP it.  The lower court awarded the defense $19,608 in SLAPP fees after determining it had jurisdiction to rule on the motion and deciding the dismissed SLAPP motion had merit.  The Third District affirmed.  Addressing an appellate court split in thinking on whether fees can be awarded to the defense without determining if the SLAPP fees had merit, the Third District aligned with the majority of decisions on the issue, holding that fees could only be awarded if there is a merits “favorable” threshold determination.  (Citing numerous decisions, especially Liu v. Moore, 69 Cal.App.4^th 745, 752 (1999).)  Because appellants presented an inadequate record to challenge the amount of the award, that was affirmed, with the appellate court also remanding for the lower court to award further SLAPP fees to the defense for prevailing on appeal. 

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.