MELBOSTAD v. FISHER

165 Cal.App.4th 987

81 Cal.Rptr.3d 354

Paul H. MELBOSTAD, Plaintiff and Appellant,

v.Donald G. FISHER, Defendant and Respondent.

No. A119514.

Court of Appeal, First District, Division 4, California.

July 23, 2008.

Review Denied Oct. 16, 2008.

COPYRIGHT MATERIAL OMITTED.

Paul H. Melbostad, San Francisco, CA, for Appellant.

James Ross Sutton, Gabe Camarillo, The Sutton Law Firm, San Francisco, CA, for Respondent.

SEPULVEDA, J.

Appellant Paul Melbostad challenges an award of attorney fees to respondent Donald Fisher after the trial court granted a special motion to strike (Code Civ. Proc., § 425.16). ¹ He also challenges the granting of a protective order that precluded him from taking discovery related to respondent's attorney fees motion. Because appellant's notice of appeal was not timely filed, we lack jurisdiction to consider his appeal, and therefore dismiss it.

I.

Factual and Procedural

Background

On December 22, 2005, appellant filed a complaint against James Sutton, Kevin Heneghan, and respondent Fisher (hereinafter collectively defendants) ² alleging violations of San Francisco's campaign finance laws. On January 23, 2006, defendants filed a special motion to strike pursuant to California's anti-SLAPP statute. ³ ( § 425.16.) The trial court granted defendants' motion on April 18, 2006, stating, “[T]he court GRANTS Defendants' Special Motion to Strike Mr. Melbostad's Complaint in its entirety. Mr. Melbostad's Complaint is dismissed with prejudice.” The trial court's order also stated that defendants were entitled to attorney fees, and that they were to notice a hearing to determine the amount of fees and costs.

Appellant filed a motion for reconsideration of the trial court's order and a motion for recusal, arguing that a trial court research attorney was biased against him. The trial court granted both motions. The trial court directed the parties not to file any additional or supplemental pleadings, and stated that it would consider the motion again without the assistance of the challenged research attorney. On September 8, 2006, the trial court again granted defendants' special motion to strike. Although the order was appealable (§ 425.16, subd. (i); Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1246-1247, 49 Cal.Rptr.3d 861), appellant did not appeal that order.

Appellant filed a voluntary petition for Chapter 13 bankruptcy on September 29, 2006. Defendants thereafter filed a notice of stay of state court proceedings, noting that their deadline to file their attorney fees application was tolled. Respondent Fisher filed a motion for limited relief from the automatic stay so that he could pursue attorney fees, which the bankruptcy court granted on March 15, 2007.

On April 2, 2007, Fisher filed a motion for attorney fees, as authorized by section 425.16, subdivision (c). In response, appellant sought to take the depositions of Fisher and Sutton, and he also served them with requests for production of documents. Defendants filed a motion for a protective order to prevent appellant from conducting discovery. On May 25, 2007, the trial court granted defendants' motion without prejudice. In his opposition to respondent's motion for attorney fees, appellant again argued that he was entitled to discovery.

The trial court granted Fisher's motion for attorney fees on June 13, 2007, awarding him $148,044.25 in fees and costs; notice of the court's order was served the same day. Appellant renewed his request for discovery at the hearing on the motion; the trial court denied the discovery request. ⁴

Judgment was entered on August 1, 2007, and notice of entry of the order was filed the next day. The judgment recapitulated the trial court's previous order granting defendants' anti-SLAPP motion and order granting respondent Fisher's separate motion for attorney fees and costs. Appellant filed a notice of appeal from the judgment on September 28, 2007.

II.Discussion

On November 1, 2007, appellant filed in this court a civil case information statement, which attached (1) the trial court's June 13, 2007, order granting attorney fees, (2) the court's May 25, 2007 order granting defendants' motion for a protective order, and (3) the August 1, 2007 judgment. Believing that the civil case information statement raised serious timeliness issues, this court on November 13, 2007, directed the parties to address the timeliness of the appeal in their appellate briefing. ⁵ Citing Maughan v. Google Technology, Inc., supra, 143 Cal.App.4th 1242, 49 Cal.Rptr.3d 861, the order noted that the trial court's September 8, 2006 order granting respondents' anti-SLAPP motion and its subsequent June 13, 2007 attorney fees order “may ... have been” independently appealable, and that the time for appealing therefrom “may have expired” before appellant's filing of the notice of appeal on September 28, 2007. The order also noted that nothing precluded respondent from serving and filing a properly-noticed motion to dismiss in advance of the parties' briefing. Respondent filed no such motion. Instead, he argued in his brief that although appellant's appeal was untimely to the extent he challenged the original order granting defendants' anti-SLAPP motion, appellant's appeal from the subsequent judgment was timely insofar as he challenged the award of attorney fees.

Appellant concedes that his failure to appeal the September 8, 2006 order granting defendants' anti-SLAPP motion precludes this court from considering the correctness of that ruling. ( Maughan v. Google Technology, Inc., supra, 143 Cal.App.4th at pp. 1246-1247, 49 Cal.Rptr.3d 861 [because plaintiff did not timely appeal from order granting a special motion to strike, court could not reach merits of order].) The question remains, however, whether he was required to appeal from the order granting attorney fees and denying discovery, and whether his subsequent appeal from the judgment was therefore untimely.

A. Untimely Appeal of Attorney Fees Award.

In general, the party prevailing on a special motion to strike may seek an attorney fees award through three different avenues: simultaneously with litigating the special motion to strike, by a subsequent noticed motion, or as part of a cost memorandum at the conclusion of the litigation. ( American Humane Assn. v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095, 1103, 112 Cal.Rptr.2d 488; Doe v. Luster (2006) 145 Cal.App.4th 139, 144, fn. 4, 51 Cal.Rptr.3d 403.) In Maughan v. Google Technology, Inc., supra, 143 Cal.App.4th 1242, 49 Cal.Rptr.3d 861, the trial court granted a motion for attorney fees submitted after the granting of an anti-SLAPP motion. ( Maughan, supra, at p. 1245, 49 Cal.Rptr.3d 861.) Judgment was entered the same day; the judgment summarized the trial court's previous anti-SLAPP order and attorney fees order. ( Id. at pp. 1245-1246, 49 Cal.Rptr.3d 861.) Plaintiff appealed from the judgment (but not the order granting fees and costs), and defendant filed a cross-appeal from the judgment “ ‘insofar as it establishes attorneys' fees and costs.’ ” ( Id. at p. 1246, 49 Cal.Rptr.3d 861.) The appellate court held that defendant's cross-appeal from the judgment was timely, and that it therefore was inconsequential whether it was to review the order granting attorney fees and costs as an interim order under the judgment (§ 906) or to construe the cross-appeal to have been taken from the order itself. ( Maughan, supra, at p. 1248, 49 Cal.Rptr.3d 861.) The court therefore found it was unnecessary to determine whether an order granting attorney fees to a prevailing defendant under the anti-SLAPP statute is directly appealable, or whether it is reviewable only on appeal from the judgment. ( Ibid.) As the parties here acknowledge, this is an unsettled question.

Relying on Doe v. Luster, supra, 145 Cal.App.4th 139, 51 Cal.Rptr.3d 403, which held that interlocutory orders awarding or denying attorney fees under section 425.16, subdivision (c) are not immediately appealable, respondent argues in his appellate brief that appellant's appeal of the attorney fees award is timely as an appeal from a final judgment. As his attorney acknowledged during oral argument, ⁶ however, Doe is inapposite. There, it was a plaintiff who prevailed on anti-SLAPP motions when the trial court denied the motions. ( Doe, supra, at p. 142, 51 Cal.Rptr.3d 403.) Doe appealed the denial of her motion for attorney fees, but the appellate court dismissed the appeal, holding that nothing authorized an appeal from an interlocutory attorney fees order. ( Id. at pp. 142, 145-146, 51 Cal.Rptr.3d 403.) In Doe, the denial of attorney fees to plaintiff was necessarily an interlocutory order, because plaintiff had prevailed on defendants' special motions to strike, thereby avoiding dismissal of her lawsuit. Doe noted that no statutory authority “authorizes an immediate appeal from the award ... of attorney fees to the prevailing moving party,” the situation here. ( Id. at pp. 145-146, 51 Cal.Rptr.3d 403.) However, it also acknowledged that an attorney fees award in an anti-SLAPP case may be appealed as “ ‘an order made after a judgment’ ” ( § 904.1, subd. (a)(2)) where it is preceded by a judgment or dismissal order disposing of a plaintiff's action. ⁷ ( Doe, supra, at pp. 147-149 & fn. 8, 51 Cal.Rptr.3d 403, citing § 581d [“All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes”]; Johnston v. Corrigan (2005) 127 Cal.App.4th 553, 555-556, 25 Cal.Rptr.3d 657 [by filing amended cross-complaint that did not name cross-defendants after they filed special motion to strike, cross-complainant effectively dismissed cross-complaint against them; subsequent order granting attorney fees was appealable order]; Moraga-Orinda Fire Protection Dist. v. Weir (2004) 115 Cal.App.4th 477,...