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No Immediate Appeal From the Denial of Attorney Fees in Anti-SLAPP Case—C.A
By a MetNews Staff Writer
Div. Seven of the Court of Appeal for this district held yesterday that while the denial of a motion for an anti-SLAPP motion is immediately appealable, a plaintiff’s challenge to the denial of attorney fees in connection with such a motion is not, agreeing with a 2006 decision to that effect and rejecting a contrary view expressed in two later opinions.
It affirmed Los Angeles Superior Court Judge Lawrence Riff’s denial of a special motion to strike and dismissed an appeal from his order denying the plaintiff’s motion for a discretionary award of attorney fees on the ground that the defendant’s motion was frivolous.
Justice Gail Ruderman Feuer wrote the opinion, which was not certified for publication. She embraced the reasoning expressed by Court of Appeal Presiding Justice Dennis M. Perluss of this district’s Div. Seven in Doe v. Luster, handed down in 2006.
Div. Seven’s View
Perluss reasoned that the Legislature, in authorizing an immediate appeal of the denial of an anti-SLAPP motion, was concerned that otherwise, “the protective purpose” of the statute, Code of Civil Procedure §425.16, would be “defeated” where the motion had merit, adding:
“No such similar purpose is served by permitting an immediate appeal from an interlocutory order granting or denying attorney fees following the trial court’s ruling on a special motion to strike.”
Feuer disagreed with the position taken by the Fourth District’s Div. Three in Baharian-Mehr v. Smith, decided in 2010 that where “the issue of whether the anti-SLAPP motion should have been granted is properly before the appellate court, it would be absurd to defer the issue of attorney fees until a future date, resulting in the probable waste of judicial resources.”
Moore’s Opinion
Adopting that view, expressed by Justice Eileen C. Moore, was this district’s Div. Three, in 2011. Justice H. Walter Croskey (since deceased) said in Chitsazzadeh v. Kramer & Kaslow, in a footnote:
“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.”
Feuer declared in yesterday’s opinion:
“We reaffirm our holding in Doe and decline to follow Baharian-Mehr and Chitsazzadeh. The order here is neither ‘[a]n order granting or denying a special motion to strike’ appealable under section 425.16, subdivision (i), nor ‘an order made after a judgment’ appealable under section 904.1, subdivision (a)(2). While in some cases it may be more efficient for the Court of Appeal to review the denial of a fees motion when reviewing the denial of the special motion to strike, in many cases there will be no appeal from a later judgment, rendering review of the fees request unnecessary. The decision whether to allow an immediate appeal from the denial of a request for attorneys’ fees is a policy decision for the Legislature to make. The statutory language reflects this decision.”
Can Seek Writ
The jurist said in a footnote:
“When a party believes it would be inefficient for the Court of Appeal to hear the appeal from the trial court’s denial of the special motion to strike without hearing an appeal of the attorneys’ fees motion, leading to “absurd consequences,” the party has the option to file a petition for a writ of mandate, requesting that the appellate court consider the challenge to both rulings at the same time.”
The defendant, Dr. Donald Dale Davidson, an Agoura Hills appealed from Riff’s order denying his anti-SLAPP motion in response to a request for a civil harassment restraining sought by former business associate, Todd Kaplan. Feuer said that assuming the action stems from protected speech, Davidson did not show a probability of prevailing on the merits because “many of the messages” sent by the defendant “were of the type likely to annoy or harass Kaplan, including those calling him ‘mentally ill,’ ‘delusional,’ a ‘weirdo,’ and a ‘liar[],’ accusing Kaplan of being ‘a fraud’ without ‘a single idea’; and sending multiple messages about the exchange of photographs of sexual acts.”
The case is Kaplan v. Davidson, B312826.
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