Fourth District, Division 2 Acknowledges Possible Split in Opinion on Recoverable of Fees on non-SLAPP Work, But Affirms Based on Deferential Review.
Although unpublished, Spiro v. Allen & Kimbell, LLP, Case Nos. E047790 & E048735 (4th Dist., Div. 2 June 24, 2010) (unpublished) nevertheless is an interesting case on whether SLAPP fees can be recovered for intertwined non-SLAPP work.
In Spiro, attorneys ultimately did win a SLAPP proceeding based primarily on the litigation privilege, but had to also oppose a petition to compel arbitration along the way before bringing the SLAPP motion. Ultimately, the trial court awarded attorneys their full request, such that the fees/costs award was $36,754.47. Losing plaintiff appealed.
Loser lost again at a higher level.
Losing party’s main challenge was that the SLAPP statute does not allow recovery of fees for non-SLAPP work, relying heavily on Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 39 Cal.App.4th 1379, 1383 (1995) as the supporting anchor for its challenge. The Court of Appeal did note that after Lafayette was decided, the California Legislature amended the SLAPP statute to indicate it should be “construed broadly,” which some courts have extended to fee/costs awards under the scheme. (See, e.g., Rosenaur v. Scherer, 88 Cal.App.4th 260, 285-286 (2001); Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi, 141 Cal.App.4th 15, 22 (2006).) Although citing to some pro-Lafayette cases (S.B. Beach Properties v. Berti, 39 Cal.4th 374, 378, 381, 383 (2006); Chambers v. Miller, 140 Cal.App.4th 821, 823, 826 (2006); Platypus Wear, Inc. v. Goldberg, 166 Cal.App.4th 772, 785 (2008); Paul for Council v. Hanyecz, 85 Cal.App.4th 1356, 1362 n. 4 (2001)), the appellate panel found them distinguishable and not addressing the precise issue in Spiro, although admitting “the authority is conflicting.” However, attorneys made a persuasive argument that their successful opposition to the motion to compel arbitration was critical and deserving of recovery because it was this opposition that allowed them to bring the SLAPP motion in the litigation. Also, the appellate court seemed to be convinced that all of the work was so intertwined that it was impossible to separate certain work for SLAPP allocation purposes. Finally, on this issue, it could not be concluded that the trial court abused its discretion given the conflicting authority and it ultimate decision to allow the non-SLAPP work to be compensated under the circumstances.
That left a challenge to the trial court’s decision to award attorneys some SLAPP routine costs not filed in their costs memorandum, albeit raised in the motion seeking SLAPP fees and costs. The appellate panel, after citing to jurisprudence allowing costs to be raised in a SLAPP expense recovery motion (Carpenter v. Jack in the Box Corp., 151 Cal.App.4th 454, 460-461 (2007)), found no reason to find that requested costs had to be sought in a costs memorandum rather than combined with a fees motion under the SLAPP fee-shifting provision. (Slip Opn., p. 31.) Nevertheless, the awarded costs still had to be reasonable in nature, but the trial court’s ruling did not reflect whether it truly considered whether the costs were reasonably necessary versus simply convenient to the conduct of the litigation. So, the matter had to be remanded to reexamine the SLAPP costs as well as to determine an additional award of fees to attorneys as their “bonus” for winning on appeal.