Fourth District, Division Two Also Awards $6,000 Appellate Attorney’s Fees Without Remanding Back to Trial Court.
Defendant won three successive anti-SLAPP motions that were affirmed on appeal. Defendant was entitled to a mandatory fee award under Code of Civil Procedure section 425.16(c). Defendant requested that the lodestar fees of $55,505 (based on a $250 hour rate) be enhanced by a 2 times multiplier, aside from also requesting “fees on fees” for bringing the fee motion. The trial court agreed, awarding prevailing defendant $114,010 in fees, plus $2,200 for the fees motion. Plaintiff appealed to the Fourth District, Division Two.
In Scane v. City of Murrieta, Case No. E044059 (4th Dist., Div. 2 Oct. 27, 2008) (unpublished), the appellate court rejected the challenges to the fee award and affirmed, in a 3-0 opinion authored by Justice Gaut.
Appellant tried to introduce subsequent circumstances occurring after the appellate court affirmed the anti-SLAPP merits. However, these factors were not considered at all because they did not change the fact that defendant had prevailed based on the three prior anti-SLAPP motion victories.
The appellate panel also determined that the abuse of discretion review standard was the proper one governing the appeal. (See Paulus v. Bob Lynch Ford, Inc., 139 Cal.App.4th 659, 686 (2006).)
Appellant’s main challenge was that defendant had to apportion, recovering only fees directly incurred in connection with the anti-SLAPP motions—citing Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 39 Cal.App.4th 1379, 1381 (1995) in support. Justice Gaut, however, observed that Lafayette had been superseded by statute that gave trial courts much broader discretion in awarding anti-SLAPP fees. (See Metabolife Internat’l, Inc. v. Wornick, 213 F.Supp.2d 1220, 1222-1224 (S.D.Cal. 2002).) The Court of Appeal found that the anti-SLAPP work was “inextricably intertwined” with common legal issues throughout, meaning no apportionment was necessary.
Winning defendant on appeal also requested an award of $6,000 in appellate fees. Unlike other appellate districts or other divisions within its own district, the Fourth District, Division Two granted this request rather than remanding for determination by the trial court. (BLOG OBSERVATION–This made a lot of sense, because this amount did seem to be a very reasonable amount for the appellate work by respondent’s attorney. However, this end result still varies from the “remand practice” used by most other appellate courts in California.)