SLAPP Defendant/Appellant Gets Smacked With Attorney’s Fees Twice
Our next case, City of Alhambra v. D’Ausilio, B220136 (2nd Dist. Div. 2 3/8/11) (unpublished), pitted Burke, Williams & Sorensen, and its client, the City of Alhambra, against The Petersen Law Firm, and its client, Robert D’Ausilio.
This lawsuit between Mr. D’Ausilio, a former employee of the City, and for many years the president of its Firefighter’s Association, and the City, arose out of Mr. D’Ausilio’s purported breach of a settlement agreement with the City. That settlement agreement included provisions allegedly restraining Mr. D’Ausilio from representing, or advocating for any City employees. After Mr. D’Ausilio engaged in protest activities, the City sued for declaratory relief to determine whether the contract provision was enforceable. Mr. D’Ausilio countersued, seeking a nearly identical declaration.
Mr. D’Ausilio also removed to federal court, and the federal court, finding the dispute to be essentially a contract dispute, remanded to the state court. The fact that the federal court viewed this lawsuit as a contract dispute, rather than as a lawsuit arising out of the Constitution, was definitely not a good omen for the future success of a SLAPP (strategic lawsuit against public participation) motion.
Shortly after remand, Mr. D’Ausilio brought his SLAPP motion. The trial court found that the declaratory relief cause of action did not arise from Mr. D’Ausilio’s exercise of free speech or petitioning rights, but rather arose over the validity and enforceability of a contract provision. The trial court denied the SLAPP motion and awarded attorney’s fees to the City.
The issue of attorney’s fees arose again on the appeal. Because the Court of Appeal agreed that the SLAPP motion was properly denied, it did not disturb the award of attorney’s fees.
However, the City also requested additional attorney’s fees on appeal:
“[The City] argues that because appellant’s appeal “raises no new permissible arguments that change the result, his appeal [like his motion] is frivolous and was only intended to cause further delay of this litigation.” We agree. . . . The City is awarded its attorney fees on appeal. The amount of such fees is to be determined by the trial court upon motion by the City.”
We note that SLAPP fees are assessed against the client, not the attorney, even though the attorney is usually in a better position than the client to evaluate the legal merits of an appeal.