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general / Civil Practice

Anti-SLAPP motions and attorney fees

The objective of this article and self-study test is to familiarize bench officers and attorneys with awards of attorney fees in anti-SLAPP motions Code of Civ. Proc. Section 425.16(c)(1). Readers will learn about the nature of attorney fees awards under this provision, the means of recovery and substantiation of the fee request, and the appealability of court rulings.

Nature of Awards

“SLAPP” is an acronym for “strategic lawsuit against public participation.” Equilon Enterprises, LLC v. Consumer Cause, Inc., 29 Cal. 4th 53 (2002). Code of Civil Procedure Section 425.16 authorizes early dismissal of SLAPP claims, which arise from “any act of [a] person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” CCP Section 425.16(b)(1).

Code of Civil Procedure Section 425.16(c)(1), provides, in pertinent part, “a prevailing defendant on a[n anti-SLAPP motion] shall be entitled to recover his or her attorney’s fees and costs.” The language of Section 425.16(c)(1) is mandatory: “[I]t requires a fee award to a defendant who brings a successful motion to strike. Accordingly, our Supreme Court has held that under this provision, ‘any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.’ At the same time, ‘a defendant who brings a successful special motion to strike is entitled only to reasonable attorney fees, and not necessarily to the entire amount requested.’” G.R. v. Intelligator, 185 Cal. App. 4th 606 (2010) (citations and italics omitted).

Only attorney fees related to an anti-SLAPP motion, and not the entire action, are recoverable under Code of Civil Procedure Section 425.16(c). Jackson v. Yarbray, 179 Cal. App. 4th 75 (2009). A defendant is not entitled to obtain, as a matter of right, his or her attorney fees incurred on successful and unsuccessful claims merely because the attorney work on those claims was overlapping. Mann v. Quality Old Time Service, Inc., 139 Cal. App. 4th 328 (2006) (discussing at length factors to consider in determining fees for partially prevailing litigant); see also Malin v. Singer, 217 Cal. App. 4th 1283, 1305 (2013). In City of Colton v. Singletary, 206 Cal. App. 4th 751 (2012), the Court of Appeal concluded the prevailing defendant on an anti-SLAPP motion was entitled to recover attorney fees even though the motion resolved only two of four causes of action.

Voluntary dismissal before an anti-SLAPP motion is heard does not moot potential fee recovery. Sylmar Air Conditioning v. Pueblo Contracting Services, Inc., 122 Cal. App. 4th 1049 (2004); Pfeiffer Venice Properties v. Bernard, 101 Cal. App. 4th 211 (2002). The trial court has discretion to award anti-SLAPP attorney fees where the action is dismissed without prejudice. Law Offices of Andrew L. Ellis v. Yang, 178 Cal. App. 4th 869 (2009). But “[d]efendants who fail to file an anti-SLAPP motion before the voluntary dismissal of all causes of actions against them cannot recover fees or costs under section 425.16, subdivision (c).” S.B. Beach Properties v. Berti, 39 Cal. 4th 374 (2006).

Means of Recovery

“In general, the party prevailing on a special motion to strike may seek an attorney fees award through three different avenues: simultaneously with litigating the special motion to strike, by a subsequent noticed motion, or as part of a cost memorandum at the conclusion of the litigation.” Melbostad v. Fisher, 165 Cal. App. 4th 987 (2008).

With respect to the timing of the fee request, “[u]nder rule 3.1702(b) of the California Rules of Court, a motion seeking fees following an order granting an anti-SLAPP motion must be served and filed within the time limits for filing a notice of appeal. Under [California Rules of Court,] rule 8.104(a) and (e), [in unlimited civil cases] a notice of appeal must be filed on or before 60 days after service of a document entitled ‘Notice of Entry’ of the order granting the anti-SLAPP motion by the superior court clerk or a party; otherwise, the notice of appeal must be filed on or before 180 days after the entry of the order granting the anti-SLAPP motion.” Mallard v. Progressive Choice Ins. Co., 188 Cal. App. 4th 531 (2010) (citation omitted).

Amount and Substantiation of Fees

Lodestar analysis and adjustments are applicable in setting the amount of attorney fees on anti-SLAPP motions. Ketchum v. Moses, 24 Cal. 4th 1122 (2001); see PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084 (2000) (lodestar is “the number of hours reasonably expended multiplied by the reasonable hourly rate”).

The prevailing party bears the burden of documenting the amount of hours spent and the attorney’s hourly rate. Christian Research Institute v. Alnor, 165 Cal. App. 4th 1315 (2008). Alnor also held the following. The party seeking attorney fees must present evidence sufficient to allow the trial court to provide a proper basis to determine the amount of time spent in connection with the anti-SLAPP motion and to determine the amount of fees to be awarded. Although itemized billing is not required, a lack of detailed records can result in severe reductions in fees awarded.

While billing records or invoices might be the best means of establishing the amount of attorney fees, an attorney declaration under penalty of perjury will suffice if it describes in detail the tasks performed, the hours spent on each task, and the attorney’s billing rate. City of Colton v. Singletary.

The trial court is not bound to accept the evidence submitted by counsel but may reduce the number of hours if it concludes the attorneys performed work unrelated to the anti SLAPP motion, or performed work that was unnecessary, duplicative, or excessive in light of the issues fairly presented. 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., 6 Cal. App. 5th 426 (2016).

There is no upper limit on the amount of reasonable fees that may be recovered. In Maughan v. Google Technology, Inc., 143 Cal. App. 4th 1242 (2006), the Court of Appeal affirmed a fee award where the trial judge determined 50 hours was the proper amount of time which should be spent on an anti-SLAPP motion. But, in Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., 163 Cal.App.4th 550 (2008), the Court of Appeal rejected a claim that Maughan imposed a 50 hour limitation on anti-SLAPP fee recovery, determining “each fee application ... must be assessed on its own merits according to ... what is reasonable under the circumstances.”

An attorney fees award following a successful anti-SLAPP motion generally precludes further litigation concerning the reasonable value of legal services covered by that award in a subsequent malicious prosecution action. Jackson v. Yarbray. Under this opinion, to the extent there is an overlap in legal services covered by the anti-SLAPP award and malicious prosecution award, an offset is necessary to prevent a double recovery.

A court is not required to provide a statement of decision for fees awarded on an anti-SLAPP motion. Christian Research Institute v. Alnor.

Appeals

When the trial court denies an anti-SLAPP motion to strike, an order denying the prevailing party’s motion for attorney fees is interlocutory and not directly appealable. Doe v. Luster, 145 Cal. App. 4th 139 (2006). However, when the party that brought the anti-SLAPP motion in an unlimited civil action appeals from the order denying the motion, the Court of Appeal also has jurisdiction to address an award of attorney fees to the prevailing party. Baharian-Mehr v. Smith, 189 Cal. App. 4th 265 (2010). See Citibank, N.A. v. Tabalon, 209 Cal. App. 4th Supp. 16 (2012) (“the appellate division of the superior court does not have jurisdiction to review an order denying a prejudgment anti-SLAPP motion in a limited civil case”).

When the trial court grants an anti-SLAPP motion to strike, resulting in dismissal of the entire action, an order awarding attorney fees rendered after entry of judgment is immediately appealable as a postjudgment order in unlimited civil actions under Code of Civil Procedure Section 904.1(a)(2). Melbostad v. Fisher; see Martin v. Inland Empire Utilities Agency, 198 Cal. App. 4th 611 (2011).

An appeal does not automatically stay enforcement of a judgment awarding anti-SLAPP attorney fees under Code of Civil Procedure Section 425.16(c). Dowling v. Zimmerman, 85 Cal. App. 4th 1400 (2001).

An appellate court reviews the amount of attorney fees awarded by the trial court to a defendant who successfully brings an anti-SLAPP motion for abuse of discretion. G.R. v. Intelligator; Christian Research Institute v. Alnor. Generalized objections of unreasonableness do not upset fee awards under the abuse of discretion standard. Raining Data Corp. v. Barrenechea, 175 Cal. App. 4th 1363 (2009).

Appellate attorney fees incurred in sustaining the anti-SLAPP result are recoverable. Trapp v. Naiman, 218 Cal. App. 4th 113 (2013). Dowling v. Zimmerman reasoned that, “[a] statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise,” and authorized an award for fees incurred on an appeal, because Code of Civil Procedure Section 425.16(c), “provides that a prevailing defendant is entitled to recover attorney fees and costs, and does not preclude recovery on appeal.” Pursuant to the opinion, the amount of fees to be awarded for appellate work is determined by the trial court after the remand from the Court of Appeal.

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