Opinion
G054896
06-25-2018
LILLIAN GAVIN et al., Plaintiffs, Cross-Defendants and Appellants, v. FRANKLIN TRUE, Defendant, Cross-complainant and Respondent.
Carothers DiSante & Freudenberger, Todd Wulffson, Robin E. Largent and David Szwarcsztejn for Plaintiffs, Cross-Defendants and Appellants. Limnexus, Bryan King Sheldon and David D. Yang for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00857184) OPINION Appeal from an order of the Superior Court of Orange County, Frederick Paul Horn, Judge. Reversed. Carothers DiSante & Freudenberger, Todd Wulffson, Robin E. Largent and David Szwarcsztejn for Plaintiffs, Cross-Defendants and Appellants. Limnexus, Bryan King Sheldon and David D. Yang for Defendant and Respondent.
INTRODUCTION
The appellants here, Lillian Gavin, Richard Sanchez, and Opus Bank, are the same appellants in a companion case we decide today (Gavin v. True (June 25, 2018, G054568) [nonpub. opn.]). In the companion case, we reversed the order entered after the trial court granted respondent Franklin True's anti-SLAPP motion, made pursuant to Code of Civil Procedure section 425.16. This appeal is from a subsequent order granting True his attorney fees under section 425.16, subdivision (c)(1). As we have reversed the order granting the anti-SLAPP motion, we also reverse the attorney fee order.
All further statutory references are to the Code of Civil Procedure. --------
FACTS
An extended recitation of the facts may be found in our companion opinion. Briefly, after receiving a negative performance review from Gavin, his supervisor at the Opus Bank Irvine branch, True emailed the bank's human resources department accusing Gavin of fraudulent conduct with respect to loan evaluations. Opus Bank hired an outside attorney to investigate the charges. He concluded that they were not only unfounded, but also that True had made them in bad faith. Gavin, Sanchez, and Opus Bank sued True, and Opus Bank fired him. True responded to the lawsuit with an anti-SLAPP motion, claiming his email was protected activity. The trial court granted the motion and entered judgment for True. The plaintiffs appealed.
While the appeal was pending, True moved for his attorney fees under section 425.16, subdivision (c)(1). The court granted the motion, and the plaintiffs' appeal from that order forms the basis of this appeal.
DISCUSSION
The sole issue in this appeal identified by the appellants is the propriety of the attorney fee award if the order granting the anti-SLAPP motion is reversed. They contend that if the order is reversed, the fee award must also be reversed. They are correct.
Once the judgment entered after the order granting the anti-SLAPP motion is reversed, there is nothing to support a subsequent award for attorney fees. True's "right to recover the fees was established by the judgment and was extinguished when the judgment was vacated." (Beard v. Goodrich (2003) 110 Cal.App.4th 1031, 1036; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 869, pp. 928-929 [vacation of judgment nullifies incidental proceedings based on judgment].) Accordingly, the order granting True his attorney fees must also be reversed.
DISPOSITION
The posttrial order granting respondent his attorney fees is reversed. Appellants are to recover their costs on appeal.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. GOETHALS, J.