Fourth District, Division Two Sustains Awards in Favor of Plaintiff Defeating Frivolous Motion.
In our category “SLAPP,” we have examined many cases where attorney’s fees have been awarded to defendants prevailing on anti-SLAPP motions. However, Code of Civil Procedure section 425.16(c) also provides that a defendant losing an anti-SLAPP motion can suffer an adverse fee award if the winning plaintiff can demonstrate that the motion was “frivolous or [was] solely intended to cause unnecessary delay” pursuant to CCP section 128.5. The next case, although unpublished, is one of the few to involve the propriety of an award against a losing defendant under the “frivolous” fee-shifting component of section 425.16(c).
San Jacinto Z, LLC v. Grantham, Case No. E046461 (4th Dist., Div. 2 Aug. 14, 2009) (unpublished) involved a situation where a second judge—different from the one deciding the merits of the SLAPP motion unsuccessfully brought by defendants against plaintiff in a malpractice action—imposed attorney’s fees of $52,430 against defendants for filing a frivolous SLAPP motion. Specifically, the second judge found that defendants’ motion was frivolous because it was way untimely filed and it set forth falsehoods about the nature of a short stay imposed by the court for a finite time period.
Defendants appealed, raising a host of alleged errors. They lost across the board.
First, defendants argued that collateral estoppel barred the award because plaintiff’s opposition requested attorney’s fees and the first judge did not grant them. Wrong, said the appellate panel. A close examination of plaintiff’s opposition papers showed it expressly reserved the fee issue in order to raise the request by separate motion. Collateral estoppel did not apply because the first judge never reached the issue.
Second, defendants contended the fee award was improper because the fee request was not considered by the first judge deciding the merits of the SLAPP motion. Wrong again, wrote the Court of Appeal. Aside from no defense objection to the second judge considering the motion, the appellate court found no statute mandating that the same judicial officer consider a subsequent SLAPP fee request. Although indicating that judicial administration is promoted by having one judge hear the entire matter, the second judge was not precluded from doing so and demonstrated that he thoroughly understood the facts/issues involved.
Third, defendants attacked the award on the basis that the second judge determined frivolousness without considering the merits of the motion, focusing instead on its untimeliness. Rejection #3. Frivolousness under section 425.16(c) has two
prongs—complete lack of merit or harassment. The second judge found harassment because the motion was untimely by a long period of time. In arguing otherwise, defendants seized from language in Optical Surplus, Inc. v. Superior Court, 228 Cal.App.3d 776, 785 (1991) construing section 128.5 as meaning that sanctions are probably not warranted and harassment is not demonstrated when a party shows that his/her action was arguably meritorious. The Fourth District, Division 2 refused to follow this reasoning in Optical Surplus because it would “read out” the independent harassment prong of section 128.5 that does not mention anything about the merits. (Slip Opn., at pp. 10-11.)
Fourth, defendants argued that the second judge seemed to be punishing them for discovery abuses noted in a related case. However, this argument did not go far because (1) defendants waived the argument by not objecting to the second judge’s consideration of documents in the related case, and (2) the record showed the second judge only sanctioned them for the frivolous anti-SLAPP motion, only buttressing his finding of harassment based on an ongoing pattern of bad faith actions (such as those in the related action).
Finally, defendants claimed the amount of the fee award was unreasonable in nature. Against, they lost. The winning Los Angeles attorneys representing plaintiff billed reasonable $300 and $350 hourly rates. (See Christian Research Institute v. Alnor, 165 Cal.App.4th 1315, 1324 (2008) [cited for the proposition that $300 hourly rate is reasonable].) The total 159.10 hours of work was not found excessive considering that plaintiffs submitted 1,500 pages of documents in opposition and that any reasonable attorney would address the merits of the anti-SLAPP motion in order “to be prepared for all possibilities.”
So, in the end, the $52,430 fee award was affirmed and plaintiff also was awarded costs on appeal—which means that defendants are likely going to be hit with a subsequent award for appellate fees incurred by the winning plaintiff.