Contentious Litigation Accounts for the Sizable Fee Awards.
Under our category “SLAPP,” we have examined numerous cases involving fee awards entered in favor of defendants winning SLAPP motions under the mandatory fee-shifting statute (Civ. Code, sec. 425.16(c); Pfeiffer Venice Properties v. Bernard, 101 Cal.App.4th 211, 215 (2002).) Next, we examine two cases where sizable awards were affirmed on appeal, based mainly on the contentiousness of the plaintiffs in litigating the particular cases.
The first one is Berger v. Dobias, Case Nos. B204631, B205455 (2d Dist., Div. 1 Sept. 29, 2009) (unpublished), where three fee awards were entered in favor of defendant–(1) $92,337.25 (out of a requested $119,187.25) for winning a SLAPP and appeal of the SLAPP grant; (2) $5,062.50 for successfully opposing plaintiffs’ reconsideration motion; and (3) $11,043.75 (out of a requested $28,115.13) for successfully opposing an application to vacate the judgment. The trial court granted a 2.0 multiplier to a piece of award (1) because defense attorney took the matter partially on contingency. On appeal, the fee awards were affirmed, with the Court of Appeal finding the Ketchum multiplier factors were properly applied by the lower court. Beyond that, defendant could seek appellate fees for winning this appellate round also.
The second case is Scheuplein v. City of West Covina, Case No. B206203 (2d Dist., Div. 4 Sept. 29, 2009) (unpublished), where two defendants (one represented by two firms and another by Jackson DeMarco, a firm where co-contributors Marc and Mike used to work at) were awarded a total of $910,780.73 in fees and costs for winning SLAPP motions ($865,000 of which constituted fees). Although agreeing that this was a large attorney fee award, the appellate court nonetheless affirmed, given the extremely contentious nature of the overall litigation (with lots of discovery disputes and several trips to the Court of Appeal, involving unique legal and procedural issues). In a word, no abuse of discretion was demonstrated. The most interesting argument advanced by plaintiff in opposition to the city’s fee award was that city was ineligible to recover its fees under the SLAPP statute because the city cannot recover fees under the Political Reform Act (Government Code sections 81013 and 91012), because the latter statute trumps the SLAPP statute. The Court of Appeal did not agree, because the SLAPP statute did not impose any additional requirements on persons subject to the Political Reform Act, the basis for any trumping. Thus, city was entitled to SLAPP fees, and all successful defendants could seek to recoup their appellate costs for winning this particular cause.
BLOG KUDOS—Based on the pecking order we are aware of at Jackson DeMarco, we surmise that most of the successful appellate work in Scheuplein for the individual defendant in the case was done by Kathryn Casey, an attorney in Jackson DeMarco’s land use department. Way to go Kathryn!