Metropolitan News-Enterprise


Monday, December 20, 2004


Page 3


City Seeks Rehearing in Case Where Fee Award Was Made Based on Finding of Frivolous Appeal


By a MetNews Staff Writer


The City of Los Angeles on Friday asked the Court of Appeal for this district to rethink its decision nullifying a trial court award to the city of $174,480.50 in attorney fees based on the cross-defendant having frivolously appealed the denial of an anti-SLAPP motion.

In a Dec. 2 unpublished opinion, Justice Judith Ashmann-Gertz of Div. Two wrote:

“We hold that the power to punish a frivolous appeal lies with the Court of Appeal, not the trial courts.”

Ashmann-Gertz added that “[i]f a respondent believes that an appeal is frivolous, the vehicle for recompense is a motion in the reviewing court for sanctions under California Rules of Court, rule 27(e).” That rule authorizes the Court of Appeal to impose sanctions for “taking a frivolous appeal or appealing solely to cause delay.”

The jurist observed:

“As a practical matter, the reviewing court is in the best position to determine whether an appeal was frivolous. In any event, there is no law permitting the trial court to make that determination.”

She said that “[w]hen a trial court metes out an award it has no power to give, it acts in excess of jurisdiction.”

An exception, she noted, is that jurisdiction does exist in the trial court to award attorney fees in connection with an appeal where a right to such fees is created by statute. That exception, Ashmann-Gerst said, did not apply.

The decision reversed an order by Los Angeles Superior Court Judge Peter Lichtman to CBI Services, cross defendant in a dispute over the amount due from the city in connection with a public works project. The city accuses CBI of submitting false claims.

In its petition for a rehearing, drafted by Brant H. Dveirin of Brown, Winfield & Canzoneri, Inc., the city protested:

“Rule 27(e) on its face merely authorizes the reviewing court to award attorney fees if the procedures under 27(e) are followed. It does not state that a party must first move the reviewing court before seeking appellate attorneys’ fees from the trial court. It also does not state that the trial court is prohibited from awarding appellate fees….The Decision in effect rewrites 27(e) to add a requirement that does not exist. This is the role of the Legislature.”

The city also contended that the relevant statute, Code of Civil Procedure Sec. 426.16, should be read as authorizing the award of sanctions by a trial court where a defendant appeals, frivolously, the denial of an anti-SLAPP motion.

Under that statute, the trial court, in ruling on an anti-SLAPP motion, must grant attorney fees in all instances where the defendant prevails and in those cases where the plaintiff prevails and the motion was found to be frivolous.

“[T]he Decision ignores case law, including from this Division, which holds that § 425.16(e) provides a statutory basis for an award of appellate fees to a prevailing defendant on a special motion to strike,” the city argued.

If the trial court has jurisdiction to award appellate attorney fees to a prevailing defendant, it has jurisdiction to make such an award to a prevailing plaintiff, the city reasoned.

One of the cases it cited—Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777—said at 785:

“Since section 425.16, subdivision (c) provides for an award of attorney fees and costs to a prevailing defendant on a special motion to strike, and does not preclude recovery of appellate attorney fees by a prevailing defendant-respondent, those fees are recoverable.”

Timothy L. Pierce of Thelen Reid & Priest LLP, who (along with Amy L. Rubinfeld) represented CBI, expressed optimism that the Court of Appeal will deny a rehearing. Speaking by telephone from Seattle, he related that the city, following oral argument, requested that the court allow further briefing on the issue of jurisdiction, and the court declined.

Piece remarked that when a court has said no once, “usually the second time you get the same answer.”

He commented that it’s inferable from the opinion that the court “concluded, as we did, that the appeal was not frivolous in the first place.”

CBI’s earlier appeal from the denial of the anti-SLAPP motion was also resolved in an unpublished opinion by Ashmann-Gertz. Filed Jan. 16, 2003, it rejected the contention of CBI, a subcontractor, that the city’s cross complaint against it for violating the False Claims Act and for fraud and negligent misrepresentation was retaliation for it having exercised its right of petition, hence a SLAPP.

Ashmann-Gerst said that CBI’s conduct in submitting its prelitigation claims for extra costs “did not constitute acts in furtherance of its right of petition” so as to bring the anti-SLAPP statute into play.

Pierce said Friday that his client is not inclined so seek publication of the Dec. 2 decision.

The city’s lawyers in the case, in addition to Dveirin, were Assistant City Attorneys Michael L. Claessens, Robert Cramer and Christine C. McCall, David P. Dapper and Thomas J. Casamassima of Wickwire Gavin LLP, and Nowland C. Hong, Michael S. Simon, and Aimee Y. Wong of Brown, Winfield & Canzoneri, Inc.

The case is City of Los Angeles v. CBI Services, Inc., BC 208414, 2004 WL 2750346.


Copyright 2004, Metropolitan News Company