Opinion
D040157.
7-15-2003
CASA DE AMIGOS, Plaintiff and Appellant, v. JUNE RADY, Defendant and Respondent.
In this action plaintiff Casa De Amigos (CDA), a mobile home park in the City of Escondido, California (the City), filed a petition for writ of mandamus and for administrative mandamus (the petition) challenging the Escondido Mobile Home Rent Review Boards (the Boards) decision denying in part CDAs request for a rent increase. In the petition, which was brought against the Board and defendant June Rady (Rady) individually, CDA asserted that Rady, a member of the Board, was biased and had prejudged CDAs application. This assertion was based upon Radys comments to a newspaper concerning a different mobile home park owners maintenance practices and alleged harassment and intimidation of his mobile home park residents. Rady commented that to protect the residents rights the City could "send a very clear message" by not granting rent increases to that mobile home park owner. In the petition, CDA requested that the court disqualify Rady from the Boards decision on its request for a rent increase and remand the matter for a new hearing before unbiased board members.
The Board is not a party to this appeal.
The Board, joined by Rady, filed a demurrer to the first cause of action for a writ of mandamus, and Rady also filed a motion to strike under Code of Civil Procedure section 425.16, commonly referred to as the "anti-SLAPP" (strategic litigation against public participation) statute. The court sustained the Boards demurrer with leave to amend and took Radys motion to strike off calendar as moot. CDA filed a first amended petition. The Board, joined by Rady, demurred again to the first cause of action for writ of mandamus, asserting that CDAs claim could not be raised in a writ of mandamus proceeding and that there was an insufficient showing of bias to trigger any review of the Boards decision. Rady also filed another motion to strike the first cause of action stated against her under section 425.16. Rady argued that her motion to strike should be granted under section 425.16 because the petition was based upon statements she made to the press about a pending court matter involving mobile home park residents who were part of her constituency. Responding to Radys motion to strike, CDA asserted that petitions for writ of mandamus were not subject to section 425.16 or, in the alternative, that it could show a reasonable probability of success on its claim against Rady. The court sustained the Board and Radys demurrer to the first cause of action without leave to amend on the basis that an opinion by a board member on an issue before it did not require disqualification and the writ as alleged did not overcome the presumption of integrity and honesty afforded board members. The court also granted Radys motion to strike, finding that (1) CDAs claim was subject to the anti-SLAPP statute; and (2) CDA could not demonstrate a probability of success on the merits of its claim against Rady. The court entered judgment against CDA and in favor of Rady on both the demurrer and motion to strike. Following the granting of Radys motion to strike, she brought a motion for attorney fees under section 425.16. In opposition to that motion CDA asserted that (1) the imposition of fees under section 425.16 was unconstitutional in actions brought by a citizen against a governmental entity; (2) Rady, as a governmental official, did not incur and was not obligated to pay attorney fees; and (3) Rady did not adequately document the amount of fees requested. In supplemental opposition requested by the court, CDA claimed that some of the time spent by Radys counsel was not related to preparation of the motion to strike and therefore not recoverable. In March 2002 the court granted Radys motion for attorney fees, awarding her fees and costs in the amount of $ 13,817.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
CDA appealed from the judgment in favor of Rady (first appeal), asserting that the court erred in granting Radys demurrer because it had adequately pleaded that Rady had shown actual bias in her review of its request for a rent increase. CDA also asserted that the court erred in dismissing Rady from the action on the basis of section 425.16 because (1) its petition was not subject to the anti-SLAPP statute; and (2) it had shown a probability of success on its claim of bias against Rady. In an unpublished decision (Casa de Amigos v. Rady (Feb. 13, 2003, D039536)), we affirmed the judgment, concluding that the court was correct in granting Radys special motion to strike under section 425.16 because (1) CDAs petition as against Rady was based upon facts arising from her exercise of first amendment rights; and (2) CDA could not show a probability of success on its claim against Rady. Accordingly, we did not decide if the court also correctly sustained Radys demurrer to the petition.
CDA also appealed from the order awarding attorney fees and costs to Rady (the instant appeal). On the instant appeal, CDA asserts that the court erred in awarding fees to Rady because (1) section 425.16, as applied to Radys motion for attorney fees, is unconstitutional as it violates the right to petition for redress of grievances of a plaintiff who sues the government; and (2) Rady was awarded fees for work not related to the section 425.16 motion to strike.
We conclude that the award of attorney fees to Rady as the prevailing party on her motion to strike under section 425.16 was not unconstitutional. Additionally, we conclude that the court properly awarded Rady all fees claimed. Accordingly, we affirm the courts order granting attorney fees to Rady.
BACKGROUND
Because this appeal challenges only the court award of attorney fees and our decision in the first appeal addressed the factual and procedural background of this matter in detail, we limit the background section to a discussion of Radys motion for attorney fees.
In January 2002, following entry of judgment in her favor, Rady filed a motion for attorney fees as the prevailing party on her motion to strike under section 425.16. In the motion Rady claimed fees and costs totaling $ 11,727.14. In support of the motion counsel for Rady submitted a declaration detailing his experience, the amount of time he spent on the matter, and the amount charged to his client Rady. No actual copies of his billings were initially submitted in support of the motion.
John H. Serrano.
CDA opposed the motion, asserting that (1) it was unconstitutional to award attorney fees to Rady under section 425.16 as it violated its constitutional right to petition the government for redress of grievances; (2) Rady, as a government official, did not incur and is not obligated to pay for any attorney fees; and (3) the attorney fee request was not adequately documented because no billings were submitted.
Rady filed a reply to the opposition, addressing the merits of the opposition and providing more detail concerning counsels billings. Pursuant to the courts request, Rady thereafter submitted a redacted billing statement of the hours spent on the matter. Rady increased the amount fees and costs claimed to $ 13,817 for further work performed in support of the motion for attorney fees.
CDA filed a supplemental opposition, pursuant to the courts request, to address the time records submitted by counsel for Rady. In the supplemental opposion CDA claimed that (1) the billing records were improper as they appeared to be manufactured after the fact, (2) Rady was not entitled to fees incurred for work not related to the motion to strike, and (3) the time claimed for the second motion to strike was excessive.
In March 2001 the court granted Radys motion, awarding fees and costs totaling $ 13,817. The court further found that (1) it was irrelevant whether Rady actually incurred or was obligated to pay the fees claimed; and (2) any challenge to the constitutionality of section 425.16 should be addressed on an appeal from the judgment entered in the case.
CDA timely filed the instant appeal from the attorney fee award.
DISCUSSION
CDA asserts that it is unconstitutional to award attorney fees to Rady under section 425.16 because the award violated its constitutional right to petition the government for redress of grievances. CDA also contends that the court improperly awarded fees to Rady for work not performed on her motion to strike. We conclude that this courts decision in Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174 (Schroeder) compels the conclusion that CDAs constitutional challenge is without merit. Further, we conclude that the court acted within its discretion in the amount of fees and costs it awarded to Rady.
We note at the outset that the decision in Schroeder predated CDAs opening brief by five months and Rady cited this case in her respondents brief. CDA has not cited this case in its opening brief and has not filed a reply brief responding to Radys discussion of this case. CDAs failure to recognize and address this case permits us to summarily resolve this issue in Radys favor or impose sanctions against CDA or its counsel. Nevertheless, we elect to address CDAs appeal on the merits.
A. Overview of Section 425.16
Section 425.16 was enacted in 1992 to deter and prevent SLAPP suits and is "designed to protect citizens in the exercise of their First Amendment constitutional rights of free speech and petition." (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 644 (Church of Scientology), disapproved of on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53.) The anti-SLAPP statute "is Californias response to the problems created by meritless lawsuits brought to harass those who have exercised these rights." (Church of Scientology, supra, at p. 644.) "California enacted section 425.16 to provide a procedural remedy to resolve such a suit expeditiously." (Church of Scientology, supra, at p. 645, italics added.)
1. Special motion to strike SLAPP suits
Subdivision (b)(1) of section 425.16 authorizes a special motion to strike a SLAPP suit and expressly makes subject to such a motion "[a] cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue . . ., unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (Italics added.)
Subdivision (e) of section 425.16 expressly defines the First Amendment activity from which a cause of action must arise within the meaning of section 425.16, subdivision (b)(1) (discussed, ante) in order to be the proper subject of a special motion to strike under the anti-SLAPP statute. (Church of Scientology, supra, 42 Cal.App.4th at p. 647.) Subdivision (e), as amended in 1997, provides that the phrase "act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue," as used in section 425.16, includes four categories of conduct, which are separately defined in the subdivisions four clauses:
"(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
"(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
"(3) any written or oral statement or writing made in a place open to the public or a public forum in conction with an issue of public interest;
"(4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." ( § 425.16, subd. (e), italics and paragraphing added.)
2. Award of attorney fees to prevailing party
Section 425.16, subdivision (c) provides in part:
"In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys fees and costs."
B. Constitutional Challenge
In Schroeder, the plaintiff sued a city, its city council and four city council members, seeking injunctive relief and a declaration that its program to increase voter registration was an illegal expenditure of public funds. (Schroeder, supra, 97 Cal.App.4th at p. 179.) The defendants moved to dismiss the action under section 425.16 and the trial court granted the motion, finding that the plaintiff had not shown a reasonable probability of success on the merits. (Schroeder, supra, at p. 179.) The court also awarded attorney fees to the defendants as prevailing parties under section 425.16. (Schroeder, supra, at p. 179.)
On appeal, the plaintiff not only challenged the dismissal of its case, but also challenged the attorney fee award on the grounds that a mandatory attorney fee award against a taxpayer who has challenged a governmental program would unconstitutionally infringe upon its right to petition the government for redress of grievances. (Schroeder, supra, 97 Cal.App.4th at p. 193.) We rejected the plaintiffs constitutional challenge to the award of attorney fees, holding: "The right to petition for redress of grievances includes the right to sue [citation] private as well as governmental entities. [Citation.] However, the right to petition has never been absolute [citation] and baseless litigation is not immunized by the First Amendment right to petition. [Citation.] Constitutional rights to petition have been subjected to reasonable restrictions to prevent abuse of the right, and narrowly drawn restrictions on that right can be valid. " (Id. at p. 195.)
We recognized in Schroeder that "the government is injured by meritless suits, that the right to petition does not provide an absolute immunity to citizens who bring meritless suits, and the Legislature may by statute grant governments the ability to recoup their attorney fees. . . . The right to petition may be subject to legislatively imposed conditions and restrictions, provided the restrictions are narrowly drawn to achieve a substantial governmental interest that is content neutral and unrelated to the suppression of the exercise of First Amendment rights. . . . The Legislature may provide for an award of attorney fees to governmental entities for defending against frivolous lawsuits without impermissibly infringing on the right of petition for redress of grievances." (Schroeder, supra, 97 Cal.App.4th at p. 196.) We concluded that the attorney fee provision contained in section 425.16, subdivision (c) is valid "because it seeks to achieve a substantial governmental interest that is content neutral and unrelated to the suppression of the exercise of First Amendment rights and is narrowly tailored to achieve that interest. There is a substantial governmental interest in deterring unmeritorious lawsuits generally, and that interest assumes greater weight in the arena governed by section 425.16, subdivision (c): unmeritorious lawsuits that can chill the defendants exercise of First Amendment rights. Although [plaintiff] argues that the statute is designed to suppress protected activity—his right to sue the government—we conclude the statute is primarily designed to promote and encourage protected conduct—the right of defdants to exercise their First Amendment rights without fear of unmeritorious SLAPP lawsuits." (Schroeder, supra, 97 Cal.App.4th at p. 196.) We further held that the attorney fee clause of section 425.16 passes constitutional muster because it "applies to all unmeritorious lawsuits premised on acts taken in furtherance of the defendants constitutional rights of petition or free speech, regardless of the point of view espoused by the plaintiff. It applies only to that narrow category of lawsuits against governmental entities that are premised on acts taken in furtherance of the defendants rights of speech, and leaves untouched any other type of lawsuit against governmental entities. Finally, it is closely tailored to achieve these substantial governmental interests because it has no application to most lawsuits against governmental entities but instead applies only to lawsuits in which two narrow conditions are satisfied: first, the court must be satisfied that the lawsuit seeks recovery for acts taken in furtherance of the defendants rights of free speech or petition; and second, the lawsuit must be so lacking in merit that, even when the evidence is viewed most favorably to the plaintiff, the plaintiff cannot prevail as a matter of law." (Schroeder, supra, at p. 197.)
We likewise conclude, based upon this courts detailed analysis of the issue in Schroeder, that section 425.16, subdivision (c)s provision for an award of attorney fees to the prevailing party on a motion to strike does not violate the constitutional right to petition for redress of grievances of a plaintiff who sues the government.
C. Amount of Fees Awarded
CDA asserts that the court erred in awarding Rady fees and costs totaling $ 13,817 as, according to CDA, some of that amount was for work unrelated to the motion to strike. We reject this contention.
It is true, as CDA asserts, that "a prevailing defendant on a motion to strike [is] allowed to recover attorney fees and costs only on the motion to strike, not the entire suit." (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) However, CDAs assertion that Rady was awarded fees for work unrelated to the motion to strike is not supported by the record.
For example, CDA contends that Radys counsel billed for an appearance "after the Court had entered judgment and that was unrelated to the attorneys fees motion." However, a review of the record reveals that the time spent was related to the attorney fee motion as it was time necessary to attend a hearing opposing CDAs motion to stay the attorney fee award. Rady was entitled to all fees expended related to the motion to strike, including those related to enforcing the attorney fee award. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1425; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141.) Indeed, Rady is entitled to the fees she has incurred on this appeal defending against CDAs challenge to the attorney fee award. (Dowling v. Zimmerman, supra, 85 Cal.App.4th at p. 1426.) CDA gives no other specific examples of hours incurred that were not related in some manner to the motion to strike or the related attorney fee motion. Moreover, our own review of the record shows that CDAs objection to specific items at the trial court level was without merit as the submitted billings showed fees incurred that were directly or indirectly related to the motion to strike, and the subsequent motion for attorney fees. Thus, the court did not err in awarding fees and costs to Rady in the amount of $ 13,817.
Rady has requested that this court award her fees incurred on appeal. However, as Rady has not documented the amount of fees incurred in defense of this appeal, we leave it to the trial court upon remand to determine entitlement and the amount of fees to be awarded. (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.)
DISPOSITION
The order awarding attorney fees is affirmed. Rady is to recover her costs incurred on appeal.
WE CONCUR: McDONALD, J. and McINTYRE, J.