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C.A. Imposes Sanctions for Relitigating Merits on Fee Appeal
In Case Where Plaintiff Was Ordered to Pay Costs After Challenge to School Mask Mandate Was Declared SLAPP, Opinion Says Counsel Pursued Appeal for Improper Purpose Where Barely Addressed Reasonableness of Award
By Kimber Cooley, associate editor
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TRACY L. HENDERSON attorney |
Div. One of the Fourth District Court of Appeal yesterday imposed a $13,000 sanction on lawyer who, the court said, pursued a frivolous appeal of an attorney fee award in a case in which the clients’ lawsuit challenging the masking policies of a San Diego-area school district was declared a SLAPP.
Yesterday’s unpublished opinion, authored by Justice Martin N. Buchanan, accused Carmel-based attorney Tracy L. Henderson of using the appeal to relitigate the underlying anti-SLAPP ruling and the court’s prior decision affirming that order, noting that the only challenge to the reasonableness of the award was a single sentence in the opening brief.
Buchanan said the remainder of the filing focused on arguments that the order granting the anti-SLAPP motion was “constitutionally void,” undermining the legitimacy of the attorney fee award. Rejecting the notion that the argument was anything but a reframing of issues already dealt with in the earlier appeal, the jurist acknowledged that the defendants did not request the penalty but wrote:
“Plaintiffs cannot dispute that this appeal is an undisguised effort to relitigate the merits of the trial court’s anti-SLAPP ruling and our prior decision affirming that ruling.”
However, the court declined to impose any penalty against the student who filed the underlying case or her mother, saying that the “substantial” fee award of more than $68,000 served as a sufficient deterrent to filing “similar frivolous filings in the future.”
In the underlying lawsuit, a student, identified only as G.W., alleged that she was unfairly punished for refusing to wear a mask to her classes at Coronado High School in January 2022 in what she described as a protest of the institution’s continuation of mandates requiring the cloth coverings.
Complaint Allegations
In August 2022, G.W. and her mother, Nicole Ward, filed a complaint against the school district and 20 affiliated individuals, asserting violations of the student’s First Amendment rights under 42 U.S.C. §1983, among other causes of action. Henderson represented the plaintiffs.
The defendants each moved to strike the complaint under California’s anti-SLAPP statute, found at California Code of Civil Procedure §425.16. San Diego Superior Court Judge Gregory W. Pollack granted the relief, finding that “the promulgation and enforcement of mask policies are ‘public issues of great public interest,’ ” and that the plaintiffs were unlikely to succeed on the merits of their claims.
Pollack also granted the school district parties’ motion for attorney fees under §425.16(c), which allows for such awards to prevailing defendants. The order contained a so-called “clawback” provision that would be triggered if the plaintiff succeeded on an appeal of the anti-SLAPP ruling.
Last September, Div. One affirmed the order, finding that the plaintiffs had forfeited any claims of error by failing to include an appropriate factual summary or to address the legal grounds for the court’s rulings but deciding to resolve the case on the merits. After concluding that the complaint’s allegations arose out of protected actions, the court declared:
“We reject plaintiffs’ argument that enforcement of the mask mandate constituted compelled speech or violated G.W.’s rights by preventing her from attending school unmasked as a form of protest.”
Yesterday’s opinion, joined in by Acting Presiding Justice Truc T. Do and Justice David M. Rubin, affirms the fee award and finds that the appeal was frivolous.
Relitigating Merits
Buchanan noted:
“Aside from a single conclusory sentence in the introduction of the opening brief asserting that the amount of the fees awarded was ‘punitive and unreasonable,’ plaintiffs’ briefs are devoted entirely to relitigating the underlying anti-SLAPP ruling and our prior decision affirming that ruling. Plaintiffs assert that the order dismissing their action…is ‘constitutionally void’ because both the trial court and this court purportedly gave no explanation for how the defendants met their prong one burden of demonstrating that the lawsuit arose from protected activity. They claim that this deficiency constituted a due process violation and the resulting judgment of dismissal ‘was issued in excess of the court’s jurisdiction….’ ”
Henderson asserted that, because the order striking the complaint was “void,” so is the subsequent ruling granting the defendants’ request for fees. Unpersuaded, Buchanan remarked:“[T]he plaintiffs have merely repackaged their attack on the trial court’s prong one analysis as a ‘jurisdictional’ issue for this appeal….We have already rejected this argument by addressing plaintiffs’ prong one arguments and affirming the trial court’s anti-SLAPP ruling in the prior appeal.”
He opined that “[a]ny reasonable attorney would agree that this appeal is totally and completely without merit” and “was brought for an improper purpose.”
Calculation of Award
The justice noted that the sanction amount will be “payable to the clerk of this court to compensate the state for the cost to the taxpayers of processing a frivolous appeal.”
The court calculated the amount by pointing to the 2008 decision by Div. One of the First District Court of Appeal in the In re Marriage of Gong & Kwong case, in which that court looked to an analysis by the clerk’s office for this district, indicating that the cost of processing an appeal at that time was approximately $8,500. Adjusting that number for inflation, Buchanan opined:
“According to the United States Bureau of Labor Statistics inflation calculator, these figures are equivalent to approximately $13,000 in today’s dollars.”
Buchanan declared:
“We conclude that this appeal is frivolous. Accordingly, we affirm the fees order and impose sanctions against appellants’ counsel Tracy L. Henderson for prosecuting a frivolous appeal.”
He added:
“This disposition serves as notice to counsel that the imposition of sanctions will be reported to the State Bar of California….Attorney Tracy L. Henderson is also ordered to personally report the sanctions….Respondents are entitled to recover their costs on appeal.”
Attorney’s Response
Henderson, whose LinkedIn profile identifies her as the founder of California Parents United, an advocacy group dedicated to the promotion of parental rights, responded to yesterday’s decision, saying:
“I will be appealing the order most likely. These appellate judges, [N]ewsom appointees, are clearly trying to obstruct my client’s ability to hold Coronado Unified School District’s employees accountable for emotionally traumatizing a child during COVID. The appellate judges are doing so by upholding a patently unreasonable $68,000 attorney[] fees award for the gran[t]ing of four meritless cookie cutter anti-slapp motions and now adding $13,000 in sanctions on top to me. The appellate judges sua sponte ordered me to show cause why the appeal wasn’t frivolous which barely ever happens. This sends a clear message to my clients and I that they better stop trying to hold the school district accountable as is their right. Something is really wrong with the judicial system in this state….”
The case is G.W. v. Coronado Unified School District, D083991.
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