First District, Division 1 Does Reject That Insurance Defense Counsel Cannot Seek Fee Recovery.
In Roeder v. Gardner, Case No. A123864 (1st Dist., Div. 1 Feb. 22, 2010) (unpublished), defendant—through insurance defense counsel—obtained an anti-SLAPP strike of four causes of action out of eight. The trial court awarded $9,325 in mandatory attorney’s fees and costs.
Plaintiff appealed and obtained a reversal of the SLAPP grant on two of the four claims. This necessitated a reversal and reconsideration of the fee award given that SLAPP fee recovery is determined by the significance of the overall relief obtained by defendant—something that might change in light of the reversal of the result on two counts. (Mann v. Quality Old Time Service, Inc., 139 Cal.App.4th 328, 344 (2006).)
However, the Court of Appeal did reject the argument that SLAPP fee recovery was improper because defendant was not liable for fees because his counsel was being covered by an insurance carrier. Relying primarily on Rosenaur v. Scherer, 88 Cal.App.4th 260, 282-287 (1997), the appellate panel rejected this argument, finding that fees still “accrued” even in analogous situations where defendants were represented on a partial pro bono basis or by counsel looking to outside sources for fee payment.
