Los Angeles Superior Court Judge Does Require Better Fee Allocation through a Separate Motion.
One of the nice things about blogging is that we do get interactive input from a variety of individuals. Bill Leys, The Deck Expert, who has a blog at Waterproofdeckcoatingadvice.com, liked one of our recent HOA blogs and, in turn, sent us a ruling on an anti-SLAPP motion in a Los Angeles County Superior Court action. Thanks, Bill, and here is a short summary of that case.
In Krubinski v. Schmutzer, Case No. BC 367252 (L.A. Super. Ct. 2007), a donnybrook erupted between a homeowners association president and the HOA attorney (plaintiffs), on one side, and managing parties of an adjoining golf course (defendants), on the other, in the Palm Springs area. The essence of the dispute was that primary defendant manager posted negative comments on a dedicated HOA internet website about declarations and testimony filed in a preliminary injunction proceeding in a separate Riverside County action involving the HOA and the manager. Plaintiffs sued defendants for libel based on the internet comments by primary defendant manager. Defendants then filed an anti-SLAPP motion under Code of Civil Procedure section 425.16, and prevailed because (1) defendants’ internet discussions arose from protected activity involving public interest to the general HOA (Damon v. Ocean Hills Journalism Club, 85 Cal.App.4th 468, 475, 479 (2000)); (2) plaintiff president was a public figure or at least a limited public figure having to prove actual malice (Emerson v. J.F. Shea Co., 76 Cal.App.3d 579, 592-593 (1978); Damon, supra, 85 Cal.App.4th at 473)); (3) plaintiff president never demonstrated actual malice on behalf of primary defendant manager; (4) the postings were protected under the Civil Code section 47 litigation privilege (distinguishing Susan A. v. County of Sonoma, 2 Cal.App.4th 88 (1991) [litigation privilege does not apply to a general public posting; here, a dedicated website was involved that fed information to members directly connected with the HOA action]; and (5) manager’s commentary was constitutionally protected opinion (Rosenaur v. Scherer, 88 Cal.App.4th 260, 280). (See 5/29/08 Order on Motion to Strike First Amended Complaint [Anti-SLAPP Motion].)
Judge Rosenfield, the judge assigned to Krubinski, acknowledged that attorney’s fees are mandated to a winning anti-SLAPP defendant. (Code Civ. Proc., sec. 425.16(c).) However, the winning defendants sought to recover $27,261, without any differentiation of what fees were expended on the motion and what fees were spent on other case activities. The fee-shifting provision requires an allocation such that a defendant does not recoup fees expended on the entire suit. (Lafayette Morehouse, Inc. v. Chronicle Pub. Co., 39 Cal.App.4th 1379, 1383 (1995).) Judge Rosenvield ordered the defendants to file a separate fee motion with proper supporting documentation, parsing out only defense time spent on the anti-SLAPP motion.