Lots of Procedural, Allocation, and Reasonableness Challenges Rejected.
In Save Westwood Village v. Luskin, Case No. B257354 (2d Dist., Div. 2 Aug. 18, 2015 posting) (unpublished), defendants brought a SLAPP motion, triggering plaintiffs to voluntarily dismiss them from the case. However, the trial court determined the merits of the SLAPP motion, granted it, and ordered the parties to meet and confer over the amount of fees awardable to defendants under the mandatory SLAPP fee-shifting statute. The parties reached an impasse, with defendants indicating an intention to file a costs memorandum. The trial judge asked if there was a deadline to do so, but plaintiffs’ counsel indicated he was not going to “sandbag” on the issue. After some billings were exchanged and no agreement on fees could be obtained, the defense filed a costs memorandum seeking $29,246.75 in fees. Plaintiffs raised a host of arguments, some of them contrary to the “sandbag” representation: procedural noncompliance; untimeliness; failure to allocate; reasonableness. The trial judge did not buy the first
three, but did reduce the amount of the fee request to an actual award of $19,012.29 (a one-third reduction) after finding some of the time had been spent on a SLAPP motion in a separate case.
The appellate court upheld the result. First of all, it found that the proper way to claim SLAPP fees was through a determination on the merits motion, through the filing of a noticed fee motion, or through the filing of a costs memorandum—the last option being the one properly utilized by plaintiffs. Second, although the trial judge found the costs memorandum was technically untimely, good cause existed to extend the time under CRC 3.1702(d) and deem it to be a noticed motion, especially given the “sandbagging” comment by plaintiffs’ counsel. Third, there was no need to apportion because all of the work was inextricably intertwined. Finally, the reduction by the trial judge was fair and did not need to be anything any deeper as advanced by plaintiffs.