Losing Plaintiff Waived Trope Argument And Lack Of Hearing Reporter’s Transcript Failed To Preserve Challenge To Amount Of Fee Award.
In Rianda v. Foster, Case No. B271773 (2d Dist., Div. 1 Sept. 21, 2017) (unpublished), winning SLAPP defendant was awarded mandatory attorney’s fees of $37,568 after a highly contested fee proceeding where the trial judge knocked off 8% or $3,272 from a requested $40,840. Plaintiff argued two things on appeal: (1) the defense counsel was a shill for defendant (also an attorney) so that the Trope exception applied (attorney representing self cannot obtain fees); and (2) the fees charged by defense counsel were unreasonable, including no admissible evidence substantiating the reasonableness of the hourly rate of counsel.
Both arguments were rejected on appeal for reasons that are well known to appellate practitioners. The Trope argument failed because it was not raised below, such that it was waived. (See Kashmiri v. Regents of University of California, 156 Cal.App.4th 809, 830, 838 & n. 12 (2007) [“In our adversarial system, each party has the obligation to raise any issue of infirmity that might subject the ensuing judgment to attack. Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier.”]) The second argument with respect to unreasonableness was doomed by an inadequate record because no hearing reporter’s transcript was put in the record such that the appellate court could not determine what evidentiary objections were ruled upon/how discretion was exercised.
The appellate court, although affirming the fee award, denied respondent’s request for $50,000 in sanctions and other penalties based on the ground that appellant and her counsel had filed a frivolous appeal.