First District, Division 5 Lets Stand $30,000 in Total SLAPP Fee Awards.
A successful defendant in a SLAPP motion is entitled to recover mandatory fees of a reasonable nature from the losing plaintiff. (Code Civ. Proc., sec. 425.16(c).) This fee-shifting provision stung a losing plaintiff to the tune of almost $30,000 in total fees in the next case we review.
In Conner v. Spitler, Case Nos. A119890 & A120106 (1st Dist., Div. 5 Mar. 5, 2009) (unpublished), plaintiff lost SLAPP motions brought by two groups of defendants. The trial court granted fees of $21,236 (out of a requested $28,619.50) to one defendant and fees of $8,013 (out of a requested $12,555) to another defendant. Plaintiff appealed both fee awards. He lost, because the appeal of one fee award was premature and the appeal of the other was found to lack merit.
As to the first defendant, he lost because there was no final order of an appealable nature. The SLAPP order did not dismiss all causes of action against the first defendant, such that any appeal would have to await a final resolution in the case. However, the SLAPP order did dismiss all claims against the second defendant, such that this fee award was appealable. (Doe v. Luster, 145 Cal.App.4th 139, 149 (2006); Melbostad v. Fisher, 165 Cal.App.4th 987, 992-996 (2008).)
However, the SLAPP fee award was affirmed as to the second defendant.
Plaintiff argued that SLAPP fees cannot be recovered by a prevailing defendant law firm that represented itself in bring the motion to strike. Fair enough, said the appellate panel, citing Witte v. Kaufman, 141 Cal.App.4th 1201, 1207-1211 (2006). The problem was that the defendant paid fees to outside counsel such that the fee award was justified.
Plaintiff next contended the trial court erred in awarding fees for hours spent preparing and filing the SLAPP motion while the case was in federal court (before remand based on a successful federal motion to dismiss brought by the defense on several grounds including an unadjudicated SLAPP ground). The Court of Appeal rejected this argument based on the lack of authority to support it. “[Plaintiff] cites to cases … [that] do not address whether, once the case is back in state court, the state court can award fees for hours spent preparing a motion filed in federal court but not resolved prior to remand. Such an award is within the literal scope of section 425.16, subdivision (c), which simply directs the trial court to award the prevailing defendant ‘his or her attorney’s fees and costs.’” (Slip Opn., at p. 6.) (BLOG OBSERVATION—This result is similar to reasoning used by Justice O’Leary on behalf of the Fourth District, Division 3 in the unpublished decision of Christakes v. Ekstrom, reviewed in our March 4, 2009 post. Justice O’Leary used a broad “in connection” test to justify an award of certain SLAPP fees.)
Plaintiff lastly took second defendant to task for requesting the SLAPP fee award in its cost memoranda. Not persuasive. California courts have held that SLAPP fees can be requested in one of three ways: (1) filing a subsequent noticed motion; (2) by seeking a fee/costs award at the same time as the SLAPP motion is litigated; or (3) including it as part of a costs memorandum. (American Humane Assn. v. Los Angeles Times Communications, 92 Cal.App.4th 1095, 1103 (2001); see also Carpenter v. Jack In The Box Corp., 151 Cal.App.4th 454, 461 (2007); Doe v. Luster, supra, 145 Cal.App.4th at 144 n. 4.)