Metropolitan News-Enterprise

 

Friday, August 26, 2021

 

Page 1

 

Court of Appeal:

Fees Were Wrongly Denied to Parties Based on Not Joining in First-Filed Anti-SLAPP Motion

Trial Judge Questioned Why Lessor and Its Lawyer, Sued in Cross-Complaint,

Needed to File Separate Motions, Each Incurring Attorney Fees

 

By a MetNews Staff Writer

 

Div. Five of the First District Court of Appeal has held that a judge erred in denying attorney fees to two parties essentially prevailing on their anti-SLAPP motions because, she reasoned, they could simply have joined in a motion already filed by another related party.

Retired Fifth District Court of Appeal Justice Rebecca A. Wiseman, sitting on assignment, authored the opinion, filed Wednesday. It reverses orders by Sonoma Superior Court Judge Jennifer V. Dollard.

The litigation began with 601 Main Street, LLC filing an action against a tenant, David Frym, to collect $145,211.29 in past-due rent as well as property taxes and insurance premiums he was allegedly obliged to pay under a lease. Frym fired back with a cross complaint against 601, its sole member/principal Angela DeCarli, and its attorney, Regina C. Leoni, accusing them, among other things, of fraud and extortion.

Each cross defendant filed an anti-SLAPP motion as to causes of action containing those allegations, and each made a claim for attorney fees to which a defendant is statutorily entitled if the motion succeeds.

Separate Hearings Scheduled

DeCarli’s motion was scheduled to be heard on April 21, 2021, while the other two motions were slated for a hearing a week later. As to DeCarli’s motion, Dollard’s tentative ruling was in her favor, with attorney fees set at $6,310.

The April 21 hearing was held and Dollard took the matter under submission. That day, Frym dismissed his cross complaint, without prejudice, against Leoni, in toto, and the following day dismissed the cross-action against 601 Main, also without prejudice, but only as to the causes of action for fraud and extortion.

With DeCarli’s anti-SLAPP motion still pending, Dollard issued a tentative ruling on the motions by 601 and Leoni saying that she could award attorney fees despite mootness, but wouldn’t, explaining that “there is no reason that all three of these motions could not have been brought as one and, although Leoni and 601 Main have prevailed, or would have prevailed absent the intervening dismissals, no further fees are merited.”

On May 25, 2021, Dollard adopted its tentative ruling on DeCarli’s motion, and on June 21, 2021, denied the request for attorney fees by Leoni and 601.

Wiseman’s Opinion

In her opinion reversing the attorney-fee denials, Wiseman said:

“Though one motion could have certainly reduced the amount of attorney fees expended, we find no authority to support the trial court’s position that mandatory attorney fees can be denied where multiple prevailing parties represented by different counsel and with different interests, could have all brought one combined motion.

“Though the trial court found the three motions to be similar, it was still obligated to perform a lodestar analysis by first multiplying the attorney’s reasonable hourly rate with the reasonable amount of time spent to arrive at the lodestar figure….The trial court could have then adjusted this figure based on…various factors….Since the court found that the three motions contained similar or identical arguments, it could have reduced the lodestar figure based on duplicative work.”

She added that “although the moving papers contained sections of identical arguments, there were differences among them beyond, as the trial court put it, just changing names from one pleading to another,” and declared:

“Although the trial court has broad discretion in awarding fees, it was improper for it to only award fees and costs to DeCarli simply because her motion was first in line to be heard and use this as a basis to deny fees and costs to 601 Main and Leoni without applying the lodestar method.”

The case is Frym v. 601 Main St., LLC, 2022 S.O.S. 4120.

 

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