Numerous Challenges to SLAPP Award Rejected.
In LaMunyon v. Reid & Hellyer, APC, Case No E052887 (4th Dist., Div. 2 Dec. 9, 2011) (unpublished), the appellate court sustained a mandatory fee award to the defense of $37,000 (broken down $17,000 for trial court services and $20,000 for successful prior appellate work) in winning a SLAPP proceeding, even though the defense requested $95,678.29 in fees.
After liberally construing the notice of appeal to encompass the fee award, the Court of Appeal rejected three challenges made by losing plaintiffs.
First, recoverable attorney’s fees are separate from costs either awarded or not awarded by the appellate costs, with the costs award not impinging against a future fee request. (Butler-Rupp v. Lourdeaux, 54 Cal.App.4th 918, 922, 927-930 (2007).) Second, the defense had standing to seek fee recovery even if its fees were paid by a third party insurance carrier. (Marcias v. Hartwell, 55 Cal.App.4th 669, 671-672, 675-676 (1997); cf. Rosenaur v. Scherer, 88 Cal.App.4th 260, 285 (2001) [pro bono case].) Finally, the fees were not excessive because no specific point in the record was cited to support the challenge.
The defense, not content with its win, also argued that it should increase the fee further, because $37,000 was not enough. This one did not go very far, because the defense did not file a cross-appeal so as to preserve the argument for an increased fee award. (Briggs v. Nilson, 226 Cal.App.2d 342, 349 (1964).) However, this loss did not preclude winning defendant from seeking further appellate fees for winning this second SLAPP appeal.