Doe v. Luster

51 Cal.Rptr.3d 403

145 Cal.App.4th 139

Lynn DOE, Plaintiff and Appellant, v. Elizabeth LUSTER, Defendant and Respondent.

No. B186408.

Court of Appeal, Second District, Division 7.

November 28, 2006.

Resch Polster Alpert & Berger, Michael Baum and Sandra Khalili, Los Angeles, Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup and Bartley L. Becker, Los Angeles; Law Offices of Daniel B. Spitzer and Daniel B. Spitzer, Encino, for Defendant and Respondent.

PERLUSS, P.J.

Although an order granting or denying a special motion to strike filed pursuant to Code of Civil Procedure section 425.16,¹ the anti-SLAPP statute, is, in most instances, immediately appealable (§§ 425.16, subd. (i); 904.1, subd. (a)(13); but see §§ 425.17, subd.(e); 425.18, subd. (c)), an order declining to award attorney fees to a plaintiff who successfully opposes an anti-SLAPP motion is not. Accordingly, we dismiss Lynn Doe's appeal from the trial court's denial of her motion for attorney fees pursuant to section 425.16, subdivision (c).

FACTUAL AND PROCEDURAL BACKGROUND

Doe filed a lawsuit in Los Angeles Superior Court against CBS Broadcasting, Inc. (CBS) and Elizabeth Luster, alleging causes of action for invasion of privacy, intentional infliction of emotional distress and negligence. CBS and Luster each filed a special motion to strike Doe's complaint under section 425.16. The trial court denied both motions on May 3, 2005, concluding, as to Luster, that she had failed to satisfy her burden of making a threshold showing the challenged causes of action arose from constitutionally protected activity. (See Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.)²

On July 7, 2005 Doe filed a motion for attorney fees under section 425.16, subdivision (c), which provides in part, "If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5." The trial court denied the motion on August 24, 2005, finding Luster's anti-SLAPP motion "while unsuccessful, was not frivolous."

Doe filed a notice of appeal. Luster filed a motion to dismiss the appeal, arguing the trial court's August 24, 2005 order denying the motion for attorney fees is a nonappealable order. Following receipt of a memorandum in opposition to the motion to dismiss from Doe and a reply from Luster, we scheduled oral argument on Luster's motion.

DISCUSSION

1. Section 1*25.16 Special Motions to Strike and the Right to an Award of Costs and Attorney Fees

Under section 425.16, subdivision (b)(1), a defendant may move to strike the entire complaint or one or more causes of action "arising from any act ... in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue...." If the plaintiff cannot demonstrate a probability of prevailing, the trial court must strike the challenged causes of action³ and award the defendant attorney fees and costs. (§ 425.16, subd. (c); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 186, 25 Cal. Rptr.3d 298,106 P.3d 958.)

If the special motion to strike is denied, the trial court must award reasonable attorney fees to the opposing party but only if the court finds that the motion was frivolous or brought solely for purposes of delay. (§ 425.16, subd. (c); Moore v. Shaw (2004) 116 Cal.App.4th 182, 198-199, 10 Cal.Rptr.3d 154 ["imposition of sanctions for a frivolous anti-SLAPP motion is mandatory"].) . In awarding fees to a successful opposing party, section 425.16, subdivision (c), directs the trial court to proceed "pursuant to Section 128.5," which means the court "must use the procedures and apply the substantive standards" of that provision. (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1392, 129 Cal. Rptr.2d 892; Moore, at p. 199, 10 Cal. Rptr.3d 154.)

While a party filing a special motion to strike under section 425.16 often seeks an award of attorney fees and costs in the same moving papers, a request for attorney fees under section 425.16, subdivision (c), may also be made by the successful party—either the moving party or, as here, the party opposing the motion—by a separate, subsequently filed noticed motion. (See American Humane Assn. v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095, 1103, 112 Cal. Rptr.2d 488.) Indeed, it would seem better practice to defer the fee application until the motion to strike has been decided since the fees and costs actually incurred can be determined only after the hearing. (Id. at p. 1104, 112 Cal.Rptr.2d 488 ["the moving defendant will be able to more accurately document the fees and costs actually incurred if the amount is fixed at a later date.... [T]he total cost of the special motion to strike and any related discovery permitted by the court can be more accurately computed if a section 425.16, subdivision (c) motion for fees is filed after the request is granted."].) Even if the order granting the motion has been appealed, the trial court retains jurisdiction to entertain a motion for attorney fees. (Robertson v. Rodriguez (1995) 36 Cal. App.4th 347, 360, 42 Cal.Rptr.2d 464.)⁴

2. The Right to an Immediate Appeal of an Order Granting or Denying a Special Motion to Strike under Section 425.16

As originally enacted in 1992, section 425.16 contained no provision for an immediate appeal of orders made pursuant to that section. (See Stats.1992, ch. 726, § 2.) Orders made pursuant to section 425.16 could be reviewed only as an appeal after judgment (§ 904.1, subd. (a)(1), (a)(2)) or by petition for an extraordinary writ. Of course, if granting the special motion to strike resulted in dismissal of the entire action, the appeal after judgment was, of necessity, immediate. (§ 581d; see Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699, 63 Cal.Rptr. 724, 433 P.2d 732 ["`order of dismissal is to be treated as a judgment for the purposes of taking an appeal when it finally disposes of the particular action and prevents further proceedings as effectually as would any formal judgment'"]; Kahn v. Lasorola's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1120, fn. 1, 135 Cal.Rptr.2d 790.)

In 1999 the Legislature added former section 425.16, subdivision (j) (now § 425.16, subd. (i)), providing an appeal may be taken directly from an order granting or denying a special motion to strike under section 425.16: "An order granting or denying a special motion to strike shall be appealable under Section 904.1." (Stats.1999, ch. 960, § 1.)⁵ The Legislature concluded it was necessary to authorize an immediate appeal because, "[w]ithout this ability, a defendant will have to incur the cost of a lawsuit before having his or her right to free speech vindicated. When a meritorious anti-SLAPP motion is denied, the defendant, under current law has only two options. The first is to file a writ ..., which is discretionary and rarely granted. The second is to defend the lawsuit. If the defendant wins, the Anti-SLAPP Law is useless and has failed to protect the defendant's constitutional rights. Since the right of petition and free speech expressly granted by the U.S. Constitution are at issue when these motions are filed, the defendant should have the same right to appeal as plaintiffs already have under current law and have the matter reviewed by a higher court." (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 1675 (1999-2000 Reg. Sess.) April 20, 1999; see Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 194, 25 Cal.Rptr.3d 298,106 P.3d 958.)

3. An Interlocutory Order Awarding or Denying Attorney Fees under Section 425.16, Subdivision (c), Is Not Immediately Appealable under Section 425.16, Subdivision (i)

The existence of an appealable judgment or order is a jurisdictional prerequisite to an appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 32 Cal. Rptr.2d 275, 876 P.2d 1074.) A trial court's order is appealable only when made so by statute. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696, 107 Cal.Rptr.2d 149, 23 P.3d 43.)

As discussed, section 425.16, subdivision (i), provides, "An order granting or denying a special motion to strike shall be appealable under Section 904.1."⁶ Neither that statutory provision nor any other authorizes an immediate appeal from the award or denial of attorney fees to the prevailing moving party or from the denial of attorney fees to the prevailing party opposing a special motion to strike. (Because an award of attorney fees to a plaintiff prevailing on the motion is to be made "pursuant to section 128.5," and only if the motion "is frivolous or is solely intended to cause unnecessary delay," if the amount awarded exceeds $5,000, it is appealable pursuant to section 904.1, subdivision (a)(12) [immediate appeal may be taken from order directing payment of monetary sanctions by a party or an attorney for a party if amount exceeds $5,000].)

The fundamental purpose of statutory construction is "to ascertain and effectuate legislative intent." (Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal. Rptr.2d 531, 828 P.2d 672.) "To discover that intent we first look to the words of the statute, giving them their usual and ordinary meaning. [Citations.]" (Trope v. Katz (1995) 11 Cal.4th 274, 280, 45 Cal. Rptr.2d 241, 902 P.2d 259; People v. Farell (2002) 28 Cal.4th 381, 386, 121 Cal. Rptr.2d 603, 48 P.3d 1155 [best indication of legislative intent appears in the language of the enactment].) The plain meaning of the actual words used in section 425.16, subdivision (i)—"an order granting or; denying a special motion to strike"—manifests the Legislature's intent to limit this exception to the one final judgment rule to the court's ruling on the special motion to strike itself, not to make...