Appellate Court Found That Trial Judge Used Incorrect Legal Standard When Reducing a Fee Award by Two-Thirds.
A defendant who brings a successful anti-SLAPP motion is entitled to a mandatory award of attorney’s fees and costs. (Code Civ. Proc. sec. 425.16(c); Ketchum v. Moses, 24 Cal.4th 1122, 1131 (2001).) Generally, appellate courts review most fee awards under an abuse of discretion standard—a difficult standard under which to obtain a reversal. However, the chances for reversal are magnified greatly if the trial judge used the incorrect legal standard in making a fee award. That happened in the case below, resulting in a reversal of a trial judge’s two-thirds reduction of a fee request, a remand for recalculation of proper fees, and an award of fees to the prevailing fee appellant on appeal.
U.S. Western Falun Dafa Assn. v. Chinese Chamber of Commerce, Case No. A115535 & A116307 (1st Dist., Div. 5 May 30, 2008) (certified for publication) involved a defendant who obtained the grant of an anti-SLAPP motion which the First District affirmed in the first part of its opinion. The second component concerned the subject to which we devote our blogging—review of the trial judge’s subsequent grant of attorney’s fees to the successful anti-SLAPP defendant, albeit granting defendant only one-third of its requested fees.
This fee reduction was error, the First District held, because the trial judge used an incorrect legal standard when reducing the fee award by two-thirds.
The trial judge based his reduction on a mechanical formula, namely, that defendant prevailed on only one of three causes of action. Resort to such a mechanistic approach failed to properly weigh all the factors that a lower court should use even under a discretionary exercise. These factors were described in Mann v. Quality Old Time Service, Inc., 139 Cal.App.4th 328, 345 (2006) (Mann II), to wit: (1) the extent to which the defendant’s litigation posture was advanced by the motion; (2) whether the same factual allegations remain to be litigated; (3) whether discovery and motion practice have been narrowed; and (4) the extent to which future litigation expenses and strategy were impacted by the motion. The appellate court concluded that, had the lower court applied discretion with these factors in mind, the fee award would have likely been higher, given that defendant secured dismissal of the sole cause of action against it. (Slip Opn., at p. 23.)
CROSS-OVER ISSUE—The First District, in a case involving a fee award under 42 U.S.C. sec. 1988 (the federal civil rights fee statute), also observed that it is improper for a lower court to use percentage reductions without consideration of other diffuse factors. (See Harman v. City & County of San Francisco, 158 Cal.App.4th 407 (2007), rev. den., petn. for certiorari filed (U.S. No. 07-1377 May 1, 2008.)
The Court of Appeal also found the lower court erred by not awarding defendant for any fees incurred in connection with the fee motion, which is expressly allowed under anti-SLAPP jurisprudence. (See Ketchum, supra, 24 Cal.4th at 1141.)