In Taheri Law Group v. Neil C. Evans, case no. B192828 (2d Dist. Feb. 26, 2008), the Court of Appeal holds that the attorney fee provision in the anti-SLAPP statute (Code Civ. Proc., § 425.16) does not entitle a self-represented attorney to recover fees for bringing a successful anti-SLAPP motion.
This is merely an extension of the similar holding in Trope v. Katz (1995) 11 Cal.4th 274, which held that a self-represented attorney could not recover fees under a contractual fee provision. The Taheri court makes clear that an attorney-client relationship is necessary before fees may be recovered.
The identical issue of anti-SLAPP attorney fees was treated in much greater detail, and with the same result, in a 2004 decision by the same district (but different division) of the Court of Appeal. That decision was depublished when the Supreme Court granted review on a different issue. But you can find the case in the California Reporter (at least on Westlaw), and I recommend doing so if you are interested in a more detailed rationale than the Taheri opinion provides. Soukup v. Stock (2004) 15 Cal.Rptr.3d 303.
It would be a mistake to extrapolate from Taheri and Trope that fees are not recoverable in every situation in which they are not actually “incurred.” Regular readers will remember that when it comes to attorney fees, “incurred” doesn’t always mean “become obligated to pay” for. Courts have awarded fees in pro bono cases under fee shifting statutes, and will probably do the same someday under a contractual fee provision. As Taheri notes, the touchstone for recovery is an attorney-client relationship.
The standard for demonstrating a probability of success on a claim that a party seeks to dismiss on anti-SLAPP grounds has defied any clear definition. In Booker v. Rountree, case no. G038083 (4th Dist. Oct. 4, 2007), the court finds the standard is met under a quasi-summary judgment analysis — it is enough that the parties’ declarations gave competing versions of the facts and that Booker’s version, if believed, would lead to success.
First, the facts. Two wheelchair-bound plaintiffs — Gunther and Rountree — filed separate lawsuits against Booker for violations of the Unruh Act relating to inaccessibility of Booker’s restaurant to persons in wheelchairs. Both were represented by the same lawyer. However, Rountree did not file his case until Booker had already settled with Gunther. Booker cross-claimed for abuse of process, alleging that Rountree deliberately delayed filing suit until after Booker settled with Gunther in order to obtain a second settlement for the same violations. The trial court denied Rountree’s anti-SLAPP motion under Code of Civil Procedure section 425.16, and the Court of Appeal affirms.
The cross-claim meets the first prong of the anti-SLAPP test for dismissal because the cross claim arises from the underlying litigation. However, Booker succeeded at demonstrating a probability of success on the merits.
The evidence produced is sufficient to permit inferences that Rountree knew of the Gunther suit but deliberately delayed in order to avoid consolidation of the suits and to enhance recovery through multiple settlements. Rountree’s declaration that he had no knowledge of the Gunther suit until after he filed his own is not necessarily the version of events that will prevail at trial. Further, the litigation privilege of Civil Code section 47 is no obstacle because the alleged conduct is not a communicative act and therefore is not included within the privilege.
CORRECTION (10/9/07): Thanks to commenter Richard, who points out that Rountree had actually filed his case while Gunther’s was still pending and that the delay was in not serving the summons until after Gunther settled.
In Carpenter v. Jack in the Box Corp., case no. B188707 (May 25, 2007) the Second District Court of Appeal holds that an application for anti-SLAPP attorney fees and costs under Code of Civil Procedure section 425.16(c) by a plaintiff who prevails against an anti-SLAPP motion is timely so long as it is made before entry of final judgment in the action, even if it s not made until after resolution of the appeal of the order denying the anti-SLAPP motion.
Carpenter brought an action for wrongful termination, defamation, and other tort and contract claims related to the termination of employment by Jack in the Box. Jack in the Box brought an anti-SLAPP motion (special motion to strike) under Code of Civil Procedure section 425.16, claiming that plaintiff’s claims targeted Jack in the Box’s actions in the course of an investigation into allegations that plaintiff had sexually harassed another employee and that such actions were protected under the First Amendment. The trial court denied the special motion to strike, and the Court of Appeal affirmed.
After remittitur to the trial court, plaintiff filed his application for fees and costs under section 425.16(c). The court held that the trial court did not lose jurisidction over the aplication simply because the remittitur of the case after the denial of the anti-SLAPP motion did not include instructions to determine attorney fees and costs. The trial court retains jurisdiction to decide a motion for fees and costs even while the appeal is pending, and a statute authorizing an award of attorney fees in the trial court includes appellate fees unless the statute explicitly states otherwise.
Finding jurisdiction, the court next turned to the issue of whether the application was timely under rules 3.1702 and 8.104 of the California Rules of Court. After a rigorous and complicated analysis of the rules to resolve a facial ambiguity, the court concludes that an application for fees under section 425.16(c) is timely so long as it is brought any time before final judgment in the action.
Technorati Tags: California attorney fees, Anti-SLAPP
When defendants were sued by their neighbors for nuisance arising from smoke and ash entering the neighbors’ properties from fires defendants regularly lit as part of religious rituals in their backyard, they filed a motion to dismiss under the anti-SLAPP statute (Code of Civil Procedure section 425.16). The Court of Appeal affirmed the trial court’s denial of the motion, rejecting the defendant’s contention that section 425.16 was intended to protect acts associated with the free exercise of religion. Section 425.16 “did not import wholesale the protections of the First Amendment.” The statute mentions only two of the rights enumerated in the First Amendment — freedom of speech and the right to petition — and extending the statute to cover religious acts such as the ritual fires would run counter to the legislative intent. The California Supreme Court has issued seven anti-SLAPP decisions since the beginning of last year. Might this eventually be another? The case is Castillo v. Pacheco, 2nd Dist. Ct. of App. case no. B188991 (April 25, 2007).
