2/7 DCA Followed Its Earlier Conclusion in Doe v. Luster, Departing Opposite Conclusion By 4/3 And 2/3 DCA Panels.
Defendant lost a SLAPP motion, but the trial court refused to award plaintiff attorney’s fees because it did not believe the motion to be frivolous. Both sides appealed in Hirschfield v. Cohen, Case No. B267706 (2d Dist., Div. 7 Mar. 27, 2018) (unpublished). Defendant’s appeal of the SLAPP denial was affirmed, while plaintiff’s cross-appeal of the fee denial following the SLAPP denial was dismissed.
The dismissal occurred because the 2/7 DCA, based on its earlier conclusion in Doe v. Luster, 145 Cal.App.4th 139, 147 (2006), found that the fee denial order was not immediately appealable. In doing so, it departed company with an opposite conclusion reached by the 4/3 DCA in Baharian-Mehr v. Smith, 189 Cal.App.4th 265, 275 (2010) and the 2/3 DCA in Chitsazzadeh v. Kramer & Kaslow, 199 Cal.App.4th 676, 680 n. 2 (2011). “We conclude, as we did in Doe, that an order denying a plaintiff’s request for attorneys’ fees is not immediately appealable regardless of whether it is made concurrently with the order denying the special motion to strike, as here, or after the filing of a motion for attorneys’ fees.” With respect to the argument that it was inefficient for the appellate court to not hear the fee denial with the SLAPP denial, the 2/7 DCA panel dropped a footnote suggesting the litigant could file a petition for writ of mandate if it felt firmly convinced of the inefficiency in not hearing both matters together.