First District Affirms Fee Award to Homeowners’ Association, Association President, and Sleepless Resident Prevailing on an anti-SLAPP Motion.
Unless you are an Iron Man or a fortunate individual with a high metabolism, sleep is a precious commodity. Loss of sleep can definitely impede quality of life for many people. Sometimes, as the case next shows, it can garner attorney’s fees to victorious anti-SLAPP defendants.
In Homayun v. Portobello Residential Owners Assn., Case Nos. A116929 & A117835 (1st Dist., Div. 1 July 30, 2008) (unpublished), plaintiff owners of Za Zoo’s (a cabaret located in a mixed use residential, commercial and marina development in northern California) (See Urban Dictionary for definition of "za za zoo") sued a homeowners’ association, association president Axtle, and resident Jay Adams for slander and other causes of action after Adams and others complained about losing sleep because of the allegedly raucous activities emanating from Za Zoo’s. The cabaret did not do well in front of the city council’s administrative hearing officer relating to its business permit. So Za Zoo’s sued. Unfortunately, both the trial and appellate courts found that its claims arose from activities under consideration in official governmental proceedings and were ones of public interest. That invited an anti-SLAPP motion from defendants, which was successful at both court levels.
At the trial court level, association and association president requested anti-SLAPP winner fees of $18,494, and were awarded $ 10,175. Resident Adams sought recovery of $21,195 in fees, and was awarded $7,000.
Za Zoo’s’ owners appealed, challenging both the merits and fees determinations. They lost.
Justice Marchiano, writing for a 3-0 panel, found the fee awards were not an abuse of discretion.
With respect to the fee award in favor of the association president, Za Zoo’s argued that the president was not entitled to fees because he only won a “strike” of partial claims in the complaint. Wrong, the appellate panel decided. If a defendant partially prevails on an anti-SLAPP motion, he is considered a prevailing party unless the results were insignificant or resulted in no practical benefit, citing Mann v. Quality Old Time Service, Inc., 139 Cal.App.4th 328, 340 (2006). That was not the case under the particular facts, with president definitely prevailing.
Similarly, the Court of Appeal rejected the argument that the fee awards were unreasonable. The lower court did not grant recovery of all requested fees such that there could be no abuse of discretion under the limited abuse of discretion scope of review, citing Paulus v. Bob Lynch Ford, Inc., 139 Cal.App.4th 659, 686 (2006) [limited scope of review on fee reasonableness].
In litigation, sleep deprivation may have its advantages—it can result in a recovery of anti-SLAPP attorney’s fees where the right set of facts is presented.