Fourth District, Division 3 Disagrees that A Noticed Motion for Fees Was the Exclusive Method for Fee Recovery.
Here is a SLAPP fee procedural issue that we believe is certain to reoccur in some future cases where SLAPP defendants prevail on a SLAPP motion.
Hong v. Regents of the University of California, Case No. G043009 (4th Dist., Div. 3 Oct. 19, 2010) (unpublished) involved a prevailing SLAPP defendant which, after appeal, filed a costs memorandum seeking both attorney’s fees and costs as the prevailing SLAPP party. The lower court granted plaintiff’s motion to tax costs based on the view that a noticed motion for fee recovery was necessary. After defendant filed such a motion, the lower court denied it as untimely and denied a CCP § 473 relief for default motion. Defendant appealed, and was successful.
Acting Presiding Justice Rylaarsdam, on behalf of a 3-0 panel of the Fourth District, Division 3, reversed because a costs memorandum was a satisfactory method of raising the issue of fee recovery. Nothing in the SLAPP statute provides otherwise, such that the fees could be claimed as costs under CCP § 1033.5(c)(5). The fact that other cases involved litigants seeking fees by noticed motion did not mean that this was the exclusive method for seeking recovery of fees.
Plaintiff also argued the appeal was untimely, but that argument was rejected because no notice of entry was sent such that 180 days was the proper deadline, with defendant’s appeal being filed within that time frame.
Plaintiff further contended that the costs memorandum verification did not strictly comply with CRC 3.1700(a)(1). The appellate court found that defendant used the Judicial Council form with slightly different language, something that is commonly done. It found nothing in CRC 3.1700(a)(1) requiring that the verification language must be quoted exactly.
The matter was reversed and remanded for a determination of the amount of fee recovery due to defendant.