U.S. District Judge Says “Nay” to Untimely Objection, Refusing to Follow Unpublished State Court Decision and Finding “The Horse Relevant to the Objection Left the Barn” Long Ago.
Here is an interesting development that Mr. Ed of an erstwhile television series (the proverbial “horse, of course, of course”) would be proud of. It also deals with a SLAPP fee issue that will need to be confronted by a court in a published decision, assuming the matter is raised by an attorney spurred to timely action.
Mr. Ed and the DodgersAs background for the situation, we surveyed Foster v. Warner, 2008 WL 2445106 (Cal. Ct. App. 2008), an unpublished state intermediate appellate decision in our June 19, 2008 post. This decision held that an attorney cannot be held liable for an adverse SLAPP fee award, with only the client bearing such a burden. However, a federal district judge recently bridled at that result.
In Mory v. City of Chula Vista, Case No. 07-CV-462 JLS (WVG) (Doc. No. 198, filed May 7, 2010), U.S. District Judge Janis L. Sammartino granted defendants’ SLAPP motion and eventually awarded them $76,275.00 under the SLAPP fee-shifting provision. The fee award was entered jointly and severally against Plaintiff and her counsel Jackson DeMarco Tidus & Peckenpaugh. Relying on Foster v. Warner, JDTP challenged the award as against it (the law firm). The only problem was that JDTP waited more than 26 months after defendants’ SLAPP motion filing and more than 19 months after the initial SLAPP order to raise an objection to the district judge’s February 11, 2008 order granting the SLAPP order and implicating that fee liability would be joint and several. Based on this procedural context, District Judge Sammartino found JDTP’s objection to be untimely. She colorfully put it this way: “The horse relevant to this objection left the barn with the issuance of the anti-SLAPP Order on February 11, 2008.” (5/5/10 Order, p. 4 of 5.)
With respect to Foster v. Warner, the district judge also went on to indicate her disagreement with the decision. The district court examined other California intermediate decisions indicating the SLAPP statute should be construed broadly in order to effectuate its purpose, one which advocated in favor of joint and several liability for fee award liability. Apparently, District Judge Sammartino viewed Foster as a horse of another color, “because it fails to consider or implement the explicit legislative directive of broad statutory construction.” (Id.)
BLOG UNDERVIEW—The losing law firm, in an earlier federal decision written by U.S. Senior District Judge Shadur, was told that it made an argument emulating the attempted creativity of alchemists of old. (See our June 11, 2009 post on San Diego Police Officers’ Assn. v. San Diego City Employees’ Retirement System.) With the recent order on the SLAPP motion, both equestrians and alchemists should be delighted with the outcomes.
Full Disclosure: Co-contributors Mike and Marc are former members of the JDTP stable, but have moved on to green pastures.
I got a horse right here . . .