Third District Finds That Victor, On Remand, Adequately Justified Fee Recovery Based on Work of Independently Retained Attorney.
The anti-SLAPP procedure allows prevailing defendants a mandatory award of attorney’s fees. Code Civ. Proc., sec. 425.16(c). The next case is a remand situation from a prior appellate reversal, showing that a fee claimant can indeed still obtain fees even where its first application had legal and factual problems.
In Witte v Kaufmanm,141 Cal.App.4th 1201, 1211 (2006) (Witte I), the Third District Court of Appeal determined that a law firm representing itself in an anti-SLAPP motion directed to a contractual claim could not recover attorney’s fees for prevailing because the fees were “not incurred” by parity of reasoning adopted from Trope v. Katz, 11 Cal.4th 274, 292 (1995). However, one of the attorneys claimed he had enlisted the help of an independently retained attorney (Mr. Stefanki). Witte I found the fee submission “hopelessly confusing” with respect to the amount of time spent on the matter by Stefanki. The Third District remanded with the directive that the matter “be sorted out by the trial court.”
On remand, a renewed fee application was filed along with a better delineation of work by Stefanki. The lower court, this time around, awarded attorney $8,437.60 for Stefanki’s work, a determination appealed yet again.
This appeal was not successful, ruled the Third District in Witte v. Kaufman, Case No. C056607 (3d Dist. June 30, 2008) (unpublished) (Witte II).
Appellant’s principal argument was that the lower court could not consider the new evidence submitted on the renewed fee motion, claiming that Witte I did not allow for this. Wrong, Justice Hull wrote on behalf of a 3-0 panel. “If we had intended that no new evidence be considered, there would have been no reason to remand the matter for reconsideration. We would have reversed with directions to deny [the] motion …” (Slip Opn., at p. 6.) (BLOG OBSERVATION—This result is almost identical to the same conclusion reached by the Fourth District, Division One in the Gregg II unpublished decision, as reviewed in our June 30, 2008 post.)
Appellant’s other specific challenges were rebuffed, mainly because Stefanki’s subsequent declaration was detailed in apportioning out work on the anti-SLAPP activities.
The lesson to be learned from this case is don’t give up. Unless there is a reversal as a matter of law, a remand presents a further opportunity to recoup fees even if some portion of earlier fees were not recoverable or were not allocated with enough particularity.