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Court of Appeal:
Appeal of Fee Award After Anti-SLAPP Denial Was Timely
Waiting Until After Final Judgment to Challenge Is Permissible
By Kimber Cooley, Staff Writer
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HAYLEY NORMAN Actor/writer |
Div. Four of this district’s Court of Appeal held yesterday that a plaintiff appealing an order of attorney fees awarded to a prevailing defendant on an anti-SLAPP motion may wait until final judgment before appealing the order, denying the attempt by entertainment industry defendants to dismiss as untimely the plaintiff’s appeal of such an award due to a lapse of more than 60 days between the order and the appeal.
The panel weighed in on an issue on which courts of appeal are divided. That portion of its discussion came in a section of the opinion that was not certified for publication,
Audrey B. Collins wrote the opinion affirming an order of attorney fees by Los Angeles Superior Court Judge Laura A. Seigle. Collins’s opinion also affirmed orders granting the anti-SLAPP motions by three defendants, and reversed orders denying anti-SLAPP motions by two remaining defendants.
Presiding Justice Brian S. Currey and Justice Andra M. Mori joined in the opinion.
Appealing the order was plaintiff Hayley Norman, who claims in her complaint that her idea for a television series entitled “Tragic” or “The Girl With the Hair” was stolen by defendants Tracee Ellis Ross, Artists First, Kenya Barris, Brian Dobbins, Touchstone Productions doing business as ABC Studios, and Big Breakfast LLC. Norman contends that her concept for a series, which she intended to write and in which she intended to star, was turned into a sitcom without her permission.
The defendants maintain that the sitcom called “Mixed-ish” is a spinoff of the existing television series “Black-ish,” dives into the experiences of one of the characters on “Black-ish” as a youth, and was not based on Norman’s ideas.
Norman separately appealed the granting of the anti-SLAPP motions and the attorney fees award, waiting until after final judgment was entered against the four defendants before filing the fee award appeal. The appeals were consolidated.
Timeliness of Appeal
Collins’s opinion renders all claims against defendants Ross, Artists First, Barris, Dobbins, and ABC resolved in favor of the defendants. Big Breakfast did not file an anti-SLAPP motion and was not a party to the appeal.
Collins noted that California’s anti-SLAPP statute, found at Code of Civil Procedure §425.16, allows a prevailing defendant on a special motion to strike to recover attorney fees and costs incurred in litigating the motion. However, the defendants challenged the timeliness of the appeal based upon Rule of Court 8.104(a)(1)(B).
That rule requires that a party file a notice of appeal no later than 60 days after that party “serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service.”
The defendants argued that Norman’s Dec. 7, 2022 notice of appeal from the judgments was untimely as to Siegel’s May 27, 2022 order awarding $62,500 in attorneys’ fees, which they contended was immediately appealable as a collateral order. The defendants asserted that Norman had “60 days after service of…the May 27, 2022 Order to appeal.”
Statutory Exception
Collins noted that the right to appeal is generally governed by the one final judgment rule, under which interlocutory orders are not appealable, but said that “[t]he ruling on an anti-SLAPP motion falls under an exception to the one final judgment rule” pursuant to the terms of §425.16(i). That section says that “[a]n order granting or denying a special motion to strike shall be appealable….”
The jurist pointed out that there exists a division in authority on the issue of whether this statutory exception extends to rulings on attorney-fee requests following an anti-SLAPP motion, or is restricted to appeals from the granting or denying such motions.
Cases on one side hold that such rulings are not immediately appealable due to the language of the statute not providing for such a process, and authority on the other side holds that an award for such fees qualifies for a collateral order exception and is immediately appealable.
Collins explained:
“Here, defendants argue that because the fee order can be deemed a collateral order, under the ‘one shot rule’ Norman was obligated to appeal directly from that order rather than waiting for a judgment. As explained by the Supreme Court, ‘California follows a one shot rule under which, if an order is appealable, appeal must be taken or the right to appellate review is forfeited.’”
Declining to follow defendant’s reasoning, Collins declared:
“We decline to find that the collateral order doctrine and the one shot rule together bar Norman’s appeal. First, some case authority…specifically states that a fee order such as this one is not appealable under section 425.16. As a matter of fairness, we decline to dismiss Norman’s appeal as untimely while case law on the issue is in conflict. In the absence of clear authority to the contrary, Norman and her counsel were entitled to rely on [case law finding] that an appeal directly from the attorney fee order was not permitted under section 425.16.”
Reasonableness of Award
In the present case, Barris, Dobbins, Artists First and ABC each moved for attorney fees after their special motions to strike were granted as to all causes of action against them, filing a single motion seeking separate attorney fees. ABC requested $168,845.93, Barris wanted $126,114.27, and Dobbins called for an award of $52,330.34.
Ross filed a separate fee motion seeking $52,594.87 for partially prevailing on the motion because Seigle struck four of the six causes against her. Artists First also filed a fee motion, asking $36,311.47, as Seigle dismissed three of the five causes of action against it.
Seigle issued a written ruling granting the motions in part, noting that it was uncontested that the defendants were the prevailing parties, but the amount of fees were disputed. Seigle wrote that the “legal issues were not particularly novel or difficult” as “well-established law governed most of the issues,” but noted that the cases were more complicated than a typical anti-SLAPP motion due to the number of defendants.
Seigle complimented attorneys on both sides, saying they “presented their arguments more skillfully than the average attorney,” but noted that “Defendants took a maximalist approach” to the litigation and not all of the time billed was “reasonable and necessary.” She found that only 500 hours of the 934 hours billed by defense counsel were necessary and awarded a total of $125,000 in fees and allowed Elaine Kim of the Century City firm Mitchell Silberberg & Knupp LLP, representing all defense parties on appeal, to determine how to split the award between the various defendants’ cases.
Collins rejected Norman’s assertion that the fee award was unreasonable, saying that “when courts find a fee request to be excessive, they award less than the requested amount of attorney fees—which is exactly what the trial court did here.”
The justice further rejected Norman’s argument that the way defense counsel apportioned the fees—with half going to Barris, Dobbins, and ABC—was unreasonable. She declared:
“[Norman] cites no authority suggesting that on a special motion to strike, when counsel works simultaneously for multiple clients on overlapping legal issues, the trial court is required to apportion fees in any particular manner.”
Bombastic Brief
Collins took a moment before concluding her 86-page opinion to note that Norman’s opening brief on appeal, submitted by his attorney Michael J. Plonsker of the Santa Monica firm Plonsker Law LLP, “was correctly characterized by defendants as ‘bombastic,’ and filled with ‘ad hominem attacks.’ ” She wrote:
“The brief opines that defendants’ counsel submitted evidence in the manner they did because they were ‘[o]bviously embarrassed to reveal how much they actually charged their clients,’ trying to ‘pretend there is some deep logic’ for the way fees were apportioned, and intended to improperly ‘shift the padded fees’ to certain defendants. The brief suggests the trial court was ‘unimpressed’ and ‘all but accused [defendants] of dishonesty.’ These quotes constitute a mere sampling….”
Criticizing this language, Collins said:
“We find the unnecessary commentary in Norman’s brief lacking in professionalism. We expect civility and decorum from counsel who appear in this court, and this brief falls short of that expectation. We trust counsel will meet these standards in the future.
The case is Norman v. Ross, 2024 S.O.S. 1398.
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