SLAPP Fees Orders - Appeal Connundrum

Beginning with Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322 and Johnston v. Corrigan (2005) 127 Cal.App.4th 553, it was simply assumed that orders granting or denying SLAPP fee awards were immediately appealable prior to judgment just as orders granting or denying SLAPP motions have been since the amendment to CCP 425.16 and 904.1(a)(13) in October 1999 - AB 1675. But in 2005, the Second District in Doe v. Luster (2nd. Dist., Div. 7, 2006) 145 Cal.App.4th 139 for the first time gave some real thought to the issue - albeit in a limited factual context that, I believe, undermines the holding that orders granting or denying SLAPP fee awards prior to judgment are not appealable orders. Doe v. Luster premised its holding on the fact that interlocutory fee orders are not appealable. Doe went through an exhaustive analysis of the cases on point and showed that because there is no statutory provision that specifically makes pre-judgment SLAPP fee orders appealable, the Courts of Appeal lack jurisdiction to hear such appeals. The facts in Doe involve a plaintiff who successfully opposed a SLAPP motion. The SLAPP motion was denied in its entirety. Defendant appealed the order denying the SLAPP motion. While Defendant's SLAPP appeal was pending, plaintiff filed an attorney's fee motion pursuant to subd. (c) of CCP 425.16 claiming that defendant's SLAPP motion was either frivolous or solely intended to cause unnecessary delay. The trial court denied the fee motion finding essentially that defendant's SLAPP motion was not frivolous. Plaintiff appealed the order denying the SLAPP fee motion. Defendant filed a motion to dismiss, which the Court of Appeal granted after oral argument on the motion. While the Court's ruling was right on the money on these facts, it is questionable as to whether the holding in Doe applies in a situation where the defendant obtains a substantial pre-judgment award of attorneys' fees after prevailing on a SLAPP motion where all causes of action were stricken pursuant to CCP 425.16 leaving nothing further for the court to decide. In Doe, the fee order was truly interloctory - the plaintiff's claims had not been stricken or dismissed - each of plaintiff's claims survived - as the trial court denied the SLAPP motion in its entirety. Then the plaintiff filed a pre-judgment motion for SLAPP fees, which was denied. In contrast, the situation where a defendant is awarded a substantial sum of SLAPP attorney's fees pre-judgment after striking all claims pursuant to a SLAPP motion stands in my mind on a wholly different footing - nothing is left to be decided by the trial court. I believe the Doe court makes an artificial distinction between an order merely granting the SLAPP motion in its entirety and stricking all the claims and an order granting a SLAPP motion in its entirety stating that each of plaintiff's claims are "Dismissed." In the latter situation, a fee order is appealable as an order after judgment. In the former situation, the same fee order is not appealable because it is considered a "pre-judgment" order. Now here comes the rub. What if you are a plaintiff who has lost the SLAPP motion in the trial court, the court has awarded $100K to the prevailing SLAPP defendant. You have a clearly meritorious appeal. Pursuant to Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1431-1434 (I was lead counsel for prevailing defendant), you are able and willing to put up a bond as security for the attorney's fees. But now you are unable to appeal and the defendant has purposefully failed to obtain a judgment and has objected to your attempt to file a judgment. The Court refused to file a judgment because of the one final judgment rule and because of the automatic stay imposed by CCP 916 under Varian Medical Systems v. Delfino (2005) 35 Cal.4th 180. In the meantime, the defendant is enforcing that judgment against your client because you have no appeal which you can bond. Now what do you do?

The good news is that you appeal anyway because there is a direct and significant conflict of authority. Under the recent decision Chitsazzadeh v. Kramer & Kaslow (filed 9/27/11 2nd Dist., Div. 3 No. B222988), see footnote 2 the Court held: "An attorney fee award in connection with the denial of a special motion to strike is sufficiently interrelated with the denial that the fee award is reviewable on appeal from the order denying the special motion to strike. (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 275; BUT SEE Doe v. Luster (2006) 145 Cal.App.4th 139, 145-150.)"

In fact you must appeal to cover yourself. A plaintiff or defendant would not want to wait until final judgment to appeal the fee award if it was in fact immediately appealable with the order on the SLAPP motion. If you wait until final judgment is entered, you take the risk that the Court of Appeal may rule that the pre-judgment SLAPP fee order was immediately appealable under Chitsazzadeh and is thus untimely and that the Court lacks jurisdiction to hear an untimely appeal. See Martin v. Inland Empire Utilities Agency (4th Dist., Div. 2, 2011) 2011 WL 3621599. No matter what court you are in, you need to do both - you must appeal immediately from the pre-judgment SLAPP fee order. Id. The worst that can happen is that the Court of Appeal dismisses the appeal as premature. Then you may file a writ or you can wait until final judgment to file your appeal from the SLAPP fee order. Finally, you must to do everything you can to stay enforcement of the judgment pending the SLAPP appeal pursuant to Dowling, supra and CCP 917.1(a)(1).

Comments Welcome!!!

James J. Moneer, Esq.