Plaintiff’s Failure to Challenge Specifics of Fees Award Ends the Matter.
The next case we discuss confronts somewhat conflicting themes in our whole blog. The amount of attorney’s fees award is usually a discretionary call reviewed under a deferential abuse of discretion standard. However, if one appeals and only challenges the correctness of the merits determination, an attorney’s fees award—whether inadequate or excessive in amount—will not be reviewed either way. The propriety of the fees award will be dependent solely on how the merits determination comes out.
In Selznick v. Zacks, Case No. A120135 (1st Dist., Div. 2 Dec. 9, 2008) (unpublished), plaintiff instigated a series of lawsuits against her former attorneys, with the thrust being that client was the victim of “sewer service” such that default judgments for collection of delinquent fees were either void or the product of tortious conduct. Eventually, both the trial and appellate courts determined that the core actions were protected by the Civil Code section 47 litigation privilege. (See Rusheen v. Cohen, 37 Cal.4th 1048 (2006).) Pivotal to this determination was the fact plaintiff never submitted any evidence to counter the rebuttable presumption that she was served when her attorneys filed a proof of service. (Floveyor Internat., Ltd. v. Superior Court, 59 Cal.App.4th 789, 795 (1997).) Also, the appellate court affirmed an anti-SLAPP motion win by attorneys against plaintiff based on the litigation privilege.
Plaintiff also challenged the award of attorney’s fees and costs to former attorneys for winning the anti-SLAPP motion, because a fee award is mandatory in favor of an anti-SLAPP prevailing defendant. (See Code Civ. Proc., sec. 425.16(c); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc., 122 Cal.App.4th 1049, 1059 (2004); see also our category “Cases: SLAPP”.) However, the fees challenge was based solely on the contention that the lower court erred in granting the anti-SLAPP motion on the merits. Because the merits determination was correct, the fee award was affirmed automatically by the Court of Appeal.
BLOG PRACTICE POINT—Recently, co-contributor Mike had a court hearing with a practitioner who won an anti-SLAPP motion. He asked how his fees should be proven. We refer everyone to our category “Cases: Substantiation of Reasonableness of Fees” on this inquiry. Even though a declaration of work by one of the involved attorneys can suffice for state court cases, we would suggest that fee claimants nonetheless attach detailed time billings to their declarations, redacting out any sensitive or privileged information. (If the redactions are significant, the practitioner should signal to the law-and-motion judge a willingness to produce unredacted billings on an in camera basis at the hearing.) This type of particularity, in our opinion, enhances credibility and makes it more difficult to sustain wholesale reductions in light of such detailed proof about fee work.