$9,387.50 Appellate Fees Awardable After Appeal Court Dismisses Appeal Without Written Decision.
Stevens v. Paul, Case No. A122993 (1st Dist., Div. 2 May 18, 2009) (unpublished) confronted an unusual procedural situation: plaintiff lost a SLAPP motion (hit with $5,155 in fees); appealed and lost in a summary non-written dismissal order; plaintiff was assessed further fees of $9,387.50 for the appellate loss; and appealed the second fee order.
The principal claim of error—given that plaintiff did not challenge the basis or amount of the fee award—was that the trial court could not determine his opponent was the prevailing party or award fees on appeal without a written opinion.
Wrong, said the Court of Appeal. An appeal dismissal only requires a written order, unlike a “cause” which requires a written opinion because it is a determination on the merits. By analogy to Wilkerson v. Sullivan, 99 Cal.App.4th 443, 447 (2002), which found that a voluntary dismissal of an appeal did not prevent the lower court from awarding SLAPP fees to the dismissed party, the appellate panel found no substantive difference with the involuntary dismissal in the case before it. Because the defendant did prevail on appeal, the $9,387.50 fee order was affirmed.
Trial Court’s Denial of Fee Request Without Prejudice Allowed Renewal of SLAPP Fee Request in Separate Post-Dismissal Motion, Resulting in $23,429 Award.
In a second procedurally distinctive situation, the Second District, Division 7 took on a SLAPP fee award of $23,429 ($5,345.50 less than requested, apportioning out work on a demurrer win) that was considered in a post-dismissal motion after the trial court required the SLAPP winners to provide more detail rather than just resting on a fee request in the SLAPP motion itself. Losing plaintiff argued that this was tantamount to an improper reconsideration motion, a contention that did not win on appeal.
This very situation was considered in Rubin v. Nangano, Case No B206028 (2d Dist., Div. 7 May 18, 2009) (unpublished). The appellate panel believed that a lower court had discretion to dismiss a fee request without prejudice and require a separate fee motion—a situation that it did not consider to be analogous to the filing of a reconsideration motion. (Cf. Farber v. Bay View Terrace Homeowners Assn., 141 Cal.App.4th 1007, 1015 (2006) [denial of a motion without prejudice invites a renewed motion later; whether to dismiss without prejudice or continue the motion until a later date is “an administrative matter of calendar management”].) The renewal option was also found advantageous to plaintiff, determined by the Court of Appeal to be “a precaution that benefited [plaintiff] more than anyone.” (Slip Opn., at pp. 15-16.) The fee award was affirmed and found reasonable in amount, given that the lower court did reduce the request by the work on the unrelated demurrer proceedings.