Second District Issues Two Opinions With Very Different Lessons.
Bier v. Grodsky & Olecki, Case No. B204887 (2d Dist., Div. 8 June 4, 2009) (Unpublished)
In this one, plaintiff lost an anti-SLAPP motion striking numerous causes of action based on the absolute litigation privilege of Civil Code section 47 (a very potent basis for these motions). Plaintiff appealed the SLAPP grant and contended he should have been awarded fees because defendant’s SLAPP motion was frivolous in nature, even though defendant never moved for fees as the successful SLAPP party in the trial court. (Code of Civil Procedure section 425.16 provides that a successful SLAPP defendant must be awarded reasonable fees and that successful SLAPP plaintiff can obtain fees if the court finds the motion was frivolous or dilatory in nature.)
Plaintiff lost his appeal on the merits. Based on this, there was no way he could ever be awarded fees.
Seizing on the loss, defendant argued it should be awarded fees for winning in the trial court and on appeal. Result: 1-1. As far as trial fees were concerned, defendant never timely moved for fees such that the appellate court could not award them in the first instances. However, a different result occurred with respect to appellate fees: defendant won on appeal, so it could recover them upon appropriate application to the trial court. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist., 106 Cal.App.4th 1219, 1248 (2003).)
The message from this case is to be careful when you appeal. Plaintiff was better off not appealing, because the defendant did not move for trial attorney’s fees against the non-prevailing party. However, in losing on appeal, plaintiff did become liable to defendant for appellate attorney’s fees—with plaintiff not being liable for any of his opponent’s fees had he not appealed and lost.
Rodriguez v. Lynn, Case No. B202362 (2d Dist., Div. 1 June 4, 2009) (Unpublished)
This case involved a situation where a trial court granted a SLAPP motion directed towards plaintiffs’ complaint for malicious prosecution and other torts. One of the defendants was awarded fees of $16,803.26 as the prevailing SLAPP party. Plaintiff appealed.
Plaintiff won a reversal of the malicious prosecution SLAPP ruling, but not other tort claims. However, this reversal also meant that the fees award fell for the moment. However, on remand, the trial court could determine that the partially prevailing defendant was still the SLAPP prevailing party “unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion.” (Mann v. Quality Old Time Service, Inc., 139 Cal.App.4th 328, 340 (2006).)
So, on this one, the defendant had another shot in the trial court to obtain an award of fees, albeit as a partially prevailing party, as well as obtain recovery of some appellate fees for prevailing on some claims.