Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CV401244
SIMONS, Acting P. J.
Appellant/cross-complainant Eric W. Conner (Conner) appeals from the trial court’s order granting Code of Civil Procedure section 425.16 motions to strike filed by respondents/cross-defendants Janet Spitler (Spitler) and law firm De La Housaye & Associates (DLH). Conner also appeals from the court’s attorney fees awards. We deem the appeal of the motions to strike abandoned and affirm the order awarding fees to respondent DLH. We dismiss the appeal as to the order awarding fees to respondent Spitler.
All undesignated section references are to the Code of Civil Procedure.
Background
The present lawsuit was initiated in January 2005, when plaintiff Dennis Hunter (Hunter) sued respondent Spitler to recover proceeds from the sale of certain properties, the purchase of which was partially funded by Hunter. Conner represented Spitler at the time of the property sales, and the proceeds had been placed into his trust account. Spitler had hired Conner to protect her from possible forfeiture of the properties after Hunter was indicted for various drug charges.
Hunter is not a party to this appeal.
Spitler cross-claimed against Hunter and Conner. Respondent law firm DLH was and continues to be Spitler’s counsel.
In the briefs, the parties discuss various background facts and allegations, including Hunter’s alleged drug dealing and Conner’s alleged misappropriation of the sale proceeds, which are of only tangential relevance to the issues on appeal.
In April 2006, Conner filed a cross-complaint in interpleader naming Hunter and Spitler, as well as the United States of America (USA), because the USA was involved in the negotiations surrounding the placement of the property sale proceeds at issue. The USA removed the lawsuit to federal court. In January 2007, Conner amended his cross-complaint, adding a breach of fiduciary duty claim against Spitler and adding DLH as a cross-defendant to a claim for declaratory relief and, along with Spitler, to three new claims for interference with prospective business advantage, interference with actual business advantage, and abuse of process. The new claims were based in whole or in part on allegations that Spitler and DLH provided false information regarding Conner to the State Bar of California and in Spitler’s cross-complaint.
The USA is not a party to this appeal.
Still in federal district court, Spitler and DLH moved to strike Conner’s cross-complaint under section 425.16. Before the court ruled on the motion, the USA moved to dismiss Conner’s cross-complaint, contending that the court lacked jurisdiction over the claims against the USA and, therefore, over the action as a whole. The court granted the motion and remanded the action to Lake County Superior Court.
Spitler and DLH renewed their section 425.16 motions to strike in Lake County Superior Court. The court granted the motions on May 17, 2007, and stated “Spitler and DLH upon filing an appropriate cost bill shall be entitled to reasonable fees and costs.” DLH filed a memorandum of costs seeking $28,786, including $28,619.50 in attorney fees; Spitler filed a memorandum of costs seeking $12,941, including $12,555 in attorney fees. Conner filed a motion requesting that the cost memoranda be stricken. On October 19, 2007, the trial court entered an order awarding Spitler $21,236 in fees and awarding DLH $8,013 in fees.
It is not clear from the record why the trial court awarded Spitler substantially more fees than she requested in her memorandum of costs, but Conner raises no issue on appeal regarding the amount of fees awarded to Spitler.
On November 29, 2007, Conner appealed from the trial court’s October 19 order on his motion to tax costs and fees (case No. A119890); and, on December 20, 2007, Conner appealed from the trial court’s May 17, 2007 orders on the section 425.16 motions to strike (case No. A120106).
Conner argues the appeal from the May 17, 2007, order (case No. A120106) is timely because he was not served with a copy of the order until October 22, 2007. We need not decide whether the appeal is timely, because Conner presents no argument that the court erred in granting the motions to strike. The appeal is deemed abandoned and will be ordered dismissed on the court’s own motion. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
Discussion
Under section 425.16, subdivision (b)(1), a defendant may move to strike an 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 action and award the defendant attorney fees and costs. (§ 425.16, subd. (c); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 186.) As noted previously, Conner does not contend the trial court erred in granting respondents’ motions to strike. The only issues raised by Conner on appeal relate to the propriety of the court’s order granting attorney fees to DLH and Spitler.
I. Appealability
At the outset, we address respondents’ contention that the order granting fees is not appealable. Generally, an interlocutory order granting or denying attorney fees following a successful anti-SLAPP motion is not appealable. (Doe v. Luster (2006) 145 Cal.App.4th 139, 146-147 (Doe).) However, an order of dismissal that leaves no issue remaining to be determined as to one of the parties is considered final and appealable as to that party (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437), and a fee order entered subsequent to such a dismissal is appealable (see § 904.1, subd. (a)(2); Doe, at p. 149; Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 992-996).
In this case, the trial court’s order granting the motion to strike dismissed all causes of action against DLH. Accordingly, the trial court’s fee award is an appealable postjudgment order. (§ 904.1, subd. (a)(2); Doe, supra, 145 Cal.App.4th at p. 149.) On the other hand, the order granting the motion to strike did not dismiss all causes of action against Spitler, so the award of fees to Spitler is not appealable. (Doe, at pp. 146-147.) Accordingly, we will dismiss the appeal from the fee order as to Spitler and address the contentions relating to the DLH award on the merits.
Conner contends the fee order is appealable as to both Spitler and DLH because it awards “sanctions” exceeding $5,000. (See § 904.1, subd. (a)(12).) However, Conner fails to cite to any authority that a mandatory fee award to a prevailing defendant under section 425.16, subdivision (c) constitutes “sanctions.” The only case cited by Conner, Doe, supra, 145 Cal.App.4th at pages 143, 146, suggests an award to a prevailing plaintiff might be an appealable sanctions award because the award must be supported by a finding that the motion to strike was “frivolous or . . . solely intended to cause unnecessary delay.” (§ 425.16, subd. (c).) No such findings are required to support an award to a prevailing defendant. (See Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1209 [“[a]n award of sanctions is markedly different from an award of attorney fees” to a prevailing defendant under section 425.16].)
II. The Trial Court Did Not Award Fees for Work of DLH Attorneys
Conner contends the trial court erred because it awarded fees to DLH for work performed by DLH attorneys representing the firm. Attorney fees are not recoverable by a prevailing defendant, such as a law firm, that represented itself in bringing a motion to strike. (Witte v. Kaufman, supra, 141 Cal.App.4th at pp. 1207-1211; see also Trope v. Katz (1995) 11 Cal.4th 274, 279-282 [fees under Civil Code section 1717].)
Conner’s claim on appeal fails because there is no indication the trial court granted DLH fees for the work of any DLH attorney. The court concluded DLH was “entitled to fees that it has paid to outside counsel to represent it.” (See Witte v. Kaufman, supra, 141 Cal.App.4th at pp. 1211-1212 [“[a]n attorney appearing in an action on his own behalf may nevertheless retain outside counsel for assistance, and the legal expenses incurred for such outside representation may be included in an award of attorney fees”].) The trial court specified Attorneys Melissa Ward and Sean SeLegue as the outside counsel for which DLH is entitled to fees. Ward submitted a declaration in which she averred that she was a contract lawyer when the services at issue were performed; Conner does not argue it is improper to award fees for work performed by a contract lawyer. Conner concedes SeLegue was outside counsel consulted by DLH. The amount requested by DLH for Ward and SeLegue (including only the period during which Ward was a contract lawyer) was $8,013, which was the amount of the trial court’s award.
III. Conner Did Not Amend His Complaint and Withdraw the Challenged Causes of Action
Conner argues the trial court erred in granting attorney fees to respondents as prevailing parties because he voluntarily withdrew the challenged causes of action. Conner has forfeited this claim because he has failed to provide citations to portions of the record supporting the claim. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) In particular, Conner does not provide a record reference for his motion to amend, for any proffered amended complaint, or for a request for dismissal of any causes of action. In any event, the trial court denied without prejudice Conner’s motion to amend, stating “[t]he proposed amended cross complaint contains many of the same allegations and errors contained in the First Amended Cross Complaint.” Conner does not argue that the trial court erred in its characterization of the proffered amended cross-complaint or that it erred in denying the motion to amend. Conner’s claim fails.
Conner cites S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 377, 379, in which the Supreme Court held that a plaintiff who voluntarily dismisses an action pursuant to section 581 before the defendant files an anti-SLAPP motion is not required to pay attorney fees under section 425.16. However, Conner has not shown he dismissed any causes of action under section 581. Because Conner’s contention fails on its face, we need not address DLH’s argument that it would be entitled to fees even if Conner had withdrawn his causes of action.
IV. Conner Has Not Shown the Trial Court Erred in Awarding Fees for Hours Spent Preparing the Motion to Strike in Federal Court
Conner contends the trial court erred in awarding fees for hours spent preparing and filing the motion to strike while the case was still in federal court. The motion to strike was filed under section 425.16.
Conner cites no authority that supports this argument. Conner cites to cases standing for the proposition that a state court lacks jurisdiction over a case that has been removed to federal court, but those cases do not address whether, once the case is back in state court, the state court can award fees for hours spent preparing a motion filed in federal court but not resolved prior to remand. Such an award is within the literal scope of section 425.16, subdivision (c), which simply directs the trial court to award the prevailing defendant “his or her attorney’s fees and costs.”
In the final case cited by Conner, Macias v. Hartwell (1997) 55 Cal.App.4th 669, 676, the trial court limited the fee award to hours related to the anti-SLAPP motion and declined to award fees for a “federal district court proceeding or fees incurred prior to the motion to strike.” Similarly, in this case, the trial court awarded DLH fees only for hours actually spent by outside counsel in the preparation of the motion to strike. Conner has not demonstrated error. (See R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 365 [“[i]t is the appellant’s burden to show error”]; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [“[w]e will not develop the appellants’ arguments for them”].)
V. DLH Properly Sought Fees in its Cost Memorandum
Conner argues it was improper for DLH to request a section 425.16 fee award as part of its cost memorandum. Conner’s argument is based on rule 3.1702(a) of the California Rules of Court, which states that fees should be sought through a noticed motion “when the court determines entitlement to the fees, the amount of the fees, or both, whether the court makes that determination because the statute or contract refers to ‘reasonable’ fees, because it requires a determination of the prevailing party, or for other reasons.” However, rule 3.1702 only applies “[e]xcept as otherwise provided by statute.” (Rule 3.1702(a).) In the section 425.16 context, California courts have held that prevailing defendants may request fees as part of the cost memorandum: “There are three ways the special motion to strike attorney fee issue can be raised. The successful defendant can: make a subsequent noticed motion as was envisioned by defendant in this case; seek an attorney fee and cost award at the same time as the special motion to strike is litigated, as is often done; or as part of a cost memorandum. (§ 1033.5, subd. (c)(5)(A)-(C); Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2000) ¶ 17:151, p. 17-57.)” (American Humane Assn. v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095, 1103; see also, e.g., Carpenter v. Jack In The Box Corp. (2007) 151 Cal.App.4th 454, 461; Doe, supra, 145 Cal.App.4th at p. 144, fn. 4.) Section 1033.5, subdivision (c)(5) provides that where attorney fees are authorized by statute, such fees “may be fixed as follows: (A) upon a noticed motion, (B) at the time a statement of decision is rendered, (C) upon application supported by affidavit made concurrently with a claim for other costs, or (D) upon entry of default judgment.”
The trial court did not err in granting DLH’s request for fees, made as part of the cost memorandum and supported by declarations.
Disposition
The trial court’s order awarding attorney fees to respondent DLH is affirmed. Appellant Conner’s appeal from the trial court’s order awarding attorney fees to respondent Spitler and his appeal from the trial court’s orders on respondents’ section 425.16 motions to strike are dismissed. Costs on appeal are awarded to respondents.
We concur. NEEDHAM, J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.