However, Prevailing Party’s Anti-SLAPP Win Is Overturned, With a Resulting Reversal of the Fee Award.
A notary was named in a conspiracy-charging civil lawsuit brought by a disgruntled plaintiff arising out of a loan he made to others on a series of real estate transactions. Plaintiff charged that the notary failed to record a trust deed, knew that one of the signatures notarized was a forgery, and benefited from the purported fraudulent transactions. Notary was not amused in the least, bringing an anti-SLAPP motion that was successful and resulted in a complete judgment of dismissal as to the notary, a ruling appealed by the plaintiff. Notary subsequently was awarded $10,500 in sought-after $83,250 attorney’s fees pursuant to a postjudgment fee award. Notary, again, was not amused by the fee order, and cross-appealed from that order in an attempt to challenge what notary obviously viewed as a miserly fee award.
In an interesting decision on both the merits and fee awards, the Second District, Division Eight reversed both determinations in Altman v. Azrilyan, Case No. B195061 (2d Dist., Div. 8 Sept. 12, 2008) (unpublished).
On the merits, the appellate panel determined that notary’s conduct in notarizing certain documents was not an official proceeding authorized by lawâ so as to give her absolutely immunity under Civil Code section 47 and to provide a basis for the anti-SLAPP motion. Relying heavily on Garretson v. Post, 156 Cal.App.4th 1508, 1520-1521 (2007) (a case in which contributors Marc Alexander and Mike Hensley provided research to the winning in pro per plaintiff), the Court of Appeal determined that notarial activity âis more akin to a nonjudicial foreclosure sale [found to not give rise to an anti-SLAPP motion in Garretson]â and âdoes not require the exercise of discretion or the adjudication of a fact.â (Slip Opn., at p. 13.)
That brought the appellate panel to notary’s cross-appeal of what she believed was an unduly low fee award. Was the fee award appealable? You bet, said the Court of Appeal. In this particular case, the anti-SLAPP motion win had resulted in a judgment of dismissal, such that the fee award was a postjudgment order that was expressly appealable under Code of Civil Procedure section 904.1(a)(2). Although not mentioned by the appellate panel, its result is supported by the First District, Division Four’s recent decision in Melbostad v. Fisher, Case No. A119514 (lst Dist., Div. 4) (published on court’s own motion on August 4, 2008). Melbostad reasoned that a judgment of dismissal as to some parties is a judgment so that a subsequent postjudgment fee order can be separately appealed under section 904.1(a)(2). (See our July 25, 2008 post for a further discussion of Melbostad.) However, because notary was no longer the prevailing party after reversal of her anti-SLAPP motion win on appeal, the fee order had to be reversed also. (See Gallimore v. State Farm Fire & Cas. Ins. Co., 102 Cal.App.4th 1388, 1401 (2002).)