Second District, Division One Reluctantly Remands Fee Award for Second Look.
A good lesson is taught in the next case: SLAPP fees are only awardable for work in the SLAPP proceeding itself, so apportion out unrelated time at the outset of a fee motion to insure that the award is affirmed on appeal.
That lesson is well illustrated by the result in Navarro v. Cruz, Case No. B216885 (2d Dist., Div. 1 June 2, 2010) (unpublished). There, a defendant won a SLAPP motion against plaintiffs for certain blogging activities that were ultimately determined to be made in connection with issues of public interest. The trial court awarded defendant her entire request of attorney’s fees in the amount of $31,645.82. Plaintiff appealed.
The Second District, Division 1, reversed and remanded, in a 3-0 opinion authored by Justice Chaney.
The basis for the overturn was that it was unclear whether the fee award represented only work on the SLAPP proceedings, because case law has established that the prevailing party in an anti-SLAPP motion is not entitled to recover fees incurred with respect to other proceedings other than in connection with the SLAPP motion itself. (See, e.g., S.B. Beach Properties v. Berti, 39 Cal.4th 374, 381 (2006) (dictum, but citing with approval Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 39 Cal.App.4th 1379, 1384 (1995).) Because there was some indication that some of the fees were spent for purposes of quashing some discovery disputes that might not have been related, the appellate court reversed and remanded for a possible apportionment when revisiting the fee issue. The panel did so reluctantly: “ . . . we are reluctant to add to the burdens on the trial court and counsel in this case, [but] we nevertheless find that we must reverse and remand the fee award . . . .” (Slip Opn., p. 12.)
BLOG UNDERVIEW—We noted that Presiding Justice Robert Mallano was one of the concurring justices on this decision. Justice Mallano, along with Justice Richard Fybel from the Fourth District, Division 3, spoke at a Los Angeles County Bar presentation with co-contributors Marc and Mike in early May of this year. They both had some valuable insights with respect to fee awards, insights that we will share with you in an upcoming post.