$20.055 SLAPP Fee/Costs Recovery Affirmed, Plus Appellants Get Hit With Appellate Sanctions Of Over $61,200 For Bringing Frivolous Appeal
This next case reminds us that you need to give up after you or your client is on a losing string, especially once a couple of appeals tend to establish an adverse trend. Appealing Defendant Attorneys, unfortunately, apparently did not read the tea leaves.
In Kleveland v. Siegel & Wolensky, LLP, Case No. D060906 (4th Dist., Div. 1 Apr. 17, 2013) (published), a beneficiary’s challenges to a trustee were rebuffed, with the appellate court affirming a lower court determination that the beneficiary pursued the challenging trustee petition in bad faith and for an improper purpose, something not even emphasized in the pending appeal (a big mistake, we might say–with the appellate court miffed that this was not at least highlighted at all). Trustee brought a malicious prosecution suit against beneficiary and his attorneys, both of whom believed the best defense is a grand offense. (Boy, oh boy, assess this strategy carefully.) Defendant attorneys moved to SLAPP the malicious prosecution suit, but the lower court denied the motion and found the SLAPP motion to be frivolous so as to award $20,055 in fees and costs to plaintiff.
You think that might have been the end of the story? No, not quite–that is what keeps appellate courts (and, this blog, we might add) in the running for the end of the story when everyone gets invested into the apparent emotionalism of the moment. Had they simply paid $20,055, attorneys would have been better off, but not to be.
So what is that end? Breathless as you may be, here is what happened.
The appellate court was miffed that the appealing parties did not concede there was a favorable termination given the prior appeal sustaining a determination that the trust petition was a bad faith/improper purpose challenge. (Ouch!) This meant that the SLAPP motion directed to the malicious prosecution action was ill-founded, with all of the elements established on a “probability of merit” standard. Appellants argued that the SLAPP fees order violated Childs v. PaineWebber Inc., 29 Cal.App.4th 982, 996 (1994), but this was rejected because the fee recovery order explained the basis for the decision and did not just do a rote recitation to the SLAPP statute.
Then, the real ball hit the court (basketball, tennis, volleyball, or whatever sport you think is apt). The appellate court found the appeal to be frivolous, and imposed two forms of sanctions: (1) defendant attorneys had to pay the winning side $52,727.56 for their expenses on appeal; and (2) defendant attorneys had to pay the appellate clerk $8,500 for the government costs of working up the appeal. (Ouch, ouch, ouch!)
Longview Farm, Manure Pit. David Kaminsky, photographer. 1978. Library of Congress.