Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 487714
Banke, J.
Plaintiffs and appellants Christopher Cook, LegacyQuest, Ruo Wu Chen, Ruo Hui Chen, Cabrillo Construction Company, and 101 Construction appeal from an order granting defendant and respondent Michael Rosen’s anti-SLAPP motion and striking plaintiffs’ cause of action for libel and defamation. Plaintiffs also challenge the amount of attorney fees the trial court awarded to Rosen as the prevailing party on the motion. We affirm.
I. Background
This is another appeal arising from years of contentious litigation between the parties. We set forth the history of this litigation in our opinion in consolidated appeals in related cases. (See Rosen v. Cook (Jan. 11, 2011, A123548, A123558) [nonpub. opn.].) We do not repeat that history here, but set forth only those facts necessary to the resolution of the present appeal.
After several years of the referenced litigation, Rosen broadcast his version of the parties’ dealings on the Internet. On August 30, 2006, Rosen posted a multi-page narrative to (hereafter ripoffreport.com.), a consumer information Web site. Rosen characterized his experience with Cook, a contractor, as a “ripoff” and stated “there must be more to this guys [sic] story” because no one would otherwise “ ‘take’ that... much money from someone and harm them or they’d go to jail.” Rosen concluded the post: “I feel this man needs to be stopped. If you’ve been victimized by him, please let others know.”
About six months later, sometime around February 2007, Rosen created his own Web site, (hereafter lethepublicknow.com.). There, Rosen mixed his side of the story with some information about dealing with contractors. On one page of the site, the only page at issue here, Rosen purportedly quoted from a 2005 deposition of Cook in which Cook testified he thought he had been involved in “four or five” previous lawsuits. Rosen juxtaposed this quote with a list of about 20 superior court cases in San Mateo and San Francisco counties that he believed involved Cook.
Some two and a half years later, on September 11, 2009, plaintiffs filed this lawsuit. The tenth cause of action in the first amended complaint, filed December 10, 2009, alleged “libel and defamation” against Rosen. Plaintiffs alleged offensive material was “posted” to the “Internet, ” but did not identify, quote from, or provide the location of the allegedly libelous or defamatory material. (See Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 31 [“ ‘ “The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.” ’ ”], quoting Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1017, fn. 3.)
On February 16, 2010, Rosen filed a special motion to strike the libel and defamation cause of action as a SLAPP (strategic lawsuit against public participation) under Code of Civil Procedure section 425.16. Plaintiffs’ opposition to the anti-SLAPP motion finally identified the basis for their libel and defamation claim, the August 30, 2006, post on ripoffreport.com and the Web page at Rosen’s 2007 letthepublicknow.com Web site purportedly quoting from Cook’s deposition and listing suspected lawsuits against Cook. However, plaintiffs still failed to identify what language or material on these Internet sites was defamatory.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Cook’s declaration in support of the opposition complained of “horrible false things” Rosen had said, but provided only two examples of offensive statements, both from the 2006 ripoffreport.com post. First, he noted the inclusion of his home address and cell phone number. Second, he noted the statement “I feel this man needs to be stopped.” Cook did not contend, however, that either statement was false.
On May 20, 2010, the trial court granted Rosen’s anti-SLAPP motion. Rosen gave notice of the order on about May 28, 2010.
On June 8, 2010, Rosen moved for attorney fees as the prevailing party on the motion. Plaintiffs responded with a “special objection, ” asserting Rosen had served the motion too close to the noticed hearing date. Rosen withdrew his initial motion, and on June 30, 2010, filed a new one, which the parties litigated on the merits.
On July 26, 2010, plaintiffs filed a notice of appeal from the May 20, 2010, order granting the anti-SLAPP motion and “any other orders embraced within this motion including but not limited to post-judgment orders if applicable.”
On August 13, 2010, the trial court heard and granted Rosen’s motion for attorney fees and awarded him $23,449.
II. Discussion
Anti-SLAPP Motion
“The Legislature enacted the anti-SLAPP statute to address the societal ills caused by meritless lawsuits that are filed to chill the exercise of First Amendment rights. [Citation.] The statute accomplishes this end by providing a special procedure for striking meritless, chilling causes of action at the earliest possible stages of litigation.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 443.) “ ‘Under the statute, the court makes a two-step determination: “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e) [citation].’ If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1)....)” [Citations.] “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” [Citation.]’ ” (Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 609 (Tutor-Saliba).)
The statute provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).)
An appellate court reviews an order granting or denying an anti-SLAPP motion under the de novo standard of review. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 (Flatley); Gerbosi v. Gaims, Weil, West & Epstein, LLP, supra, 193 Cal.App.4th at p. 444; Tutor-Saliba, supra, 136 Cal.App.4th at p. 609.) This includes whether the challenged activity is “protected.” (Tutor-Saliba, supra, at p. 609.) We also independently determine whether plaintiffs established a reasonable probability of success on their claims. (Id. at p. 610.) “ ‘We consider “the pleadings, and supporting and opposing affidavits... upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” [Citation.]’ [Citation.]” (Flatley, supra, 39 Cal.4th at p. 326.)
Protected Activity
The anti-SLAPP statute applies only to protected activity—that is, activity “in furtherance of a person’s right of petition or free speech under the United States or the California Constitution in connection with a public issue.” (§ 425.16, subds. (b)(1), (e).) Such activity includes: “(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 connection with an issue of public interest, or (4) 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.” (Id., subd. (e).)
Rosen’s Internet posting on ripoffreport.com and his Web site letthepublicknow.com are protected activity under section 425.16, subdivision (e)(3) as “writing[s] made in a place open to the public or a public forum in connection with an issue of public interest.” (§ 425.16, subd. (e).) “It is settled that ‘Web sites accessible to the public... are “public forums” for purposes of the anti-SLAPP statute.’ [Citations.]” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366.) This includes Web sites that accept postings from the public (such as ripoffreport.com) and Web sites controlled and published by single individuals (such as lettthepublicknow.com). (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 895.) Both sorts of Web sites are “accessible to anyone” and statements on them “hardly could be more public.” (Ibid.)
While plaintiffs are right that “ ‘not every Web site post involves a public issue’ (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226...), consumer information that goes beyond a particular interaction between the parties and implicates matters of public concern that can affect many people is generally deemed to involve an issue of public interest for purposes of the anti-SLAPP statute. (Compare, e.g., Carver v. Bonds (2005) 135 Cal.App.4th 328, 343-344... [newspaper article about medical practitioner involved issue of public interest where information would assist others in choosing doctors], Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 898 [statements about insurance broker involved issue of public interest because they constituted a consumer warning to others with similar problems], and DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 564, 566-567... [claim that manufacturer disseminated false information concerning effectiveness of drug used by many was an issue of public interest] with Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280 [false portrayal of real person in a movie not an issue of public interest], Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132... [published allegation of theft by one token collector against another not an issue of public interest], and Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924... [information published in union newspaper about termination of person who supervised eight people not an issue of public interest].)” (Wong v. Jing, supra, 189 Cal.App.4th at pp. 1366-1367 [review on the Yelp Web site criticizing dental services and discussing issue of silver amalgam use raised issues of public interest].)
Rosen’s postings in this case, like those in Wong v. Jing and Wilbanks v. Wolk, are not mere personal attacks as plaintiffs claim. Rather, they are “in the nature of consumer protection information” because they are “not simply a report of one [person’s] business practices, of interest only to that [person] and to those who had been affected by those practices;” rather, they are “a warning not to use plaintiffs’ services.” (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 900.) The 2006 ripoffreport.com post told Rosen’s story of his interactions with Cook, but did so on a consumer information Web site, noted 10 others shared his complaints, stated Cook was involved in 25 lawsuits, and concluded with the statement: “I feel this man needs to be stopped. If you’ve been victimized by him, please let others know.” The Web page on letthepublicknow.com similarly informed the public of Rosen’s belief that Cook (a) had been fairly hailed into court as a defendant in numerous lawsuits and (b) had lied during his deposition about the number of lawsuits in which he was involved. Thus, these Internet posts contain “information ostensibly provided to aid consumers choosing among [competing businesses]” and are “directly connected to an issue of public concern.” (Id. at p. 900.)
Rosen’s two postings, which convey his view of the events underlying the parties’ ongoing litigation, are also protected activity under section 425.16, subdivision (e)(2) as “writing[s] made in connection with an issue under consideration or review by a... judicial body.” (See Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146 [defendant’s letter, published in a newspaper, concerned fact issues to be determined by the courts and was protected activity under anti-SLAPP statute]; Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 397 [“reports of judicial proceedings, such as appeared on the Web site, are an exercise of free speech within the meaning of section 425.16”].)
Concluding Rosen’s posts qualify as protected activity under section 425.16, subdivision (e)(2) and (e)(3), we need not, and do not, consider his argument that they qualify, as well, under subdivision (e)(4).
Accordingly, Rosen has met his burden as the moving party and established his challenged conduct is protected activity under the statute.
Probability of Prevailing on the Merits
We therefore turn to the second inquiry under the anti-SLAPP statute—whether plaintiffs have demonstrated a “probability of prevailing” on their libel and defamation claim. In this regard, we apply a “summary-judgment-like” test (Taus v. Loftus (2007) 40 Cal.4th 683, 714), accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether it defeats the plaintiff’s evidence as a matter of law. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) “In addition to considering the substantive merits of the plaintiff’s claims, ” the court “must also consider all available defenses to the claims....” (No Doubt v. Activision Publishing, Inc. (2011) 192 Cal.App.4th 1018, 1026.)
As we have discussed, plaintiffs’ cause of action for libel and defamation is based on two internet postings, an August 30, 2006 post to ripoffreport.com and one page on Rosen’s Web site, letthepublicknow.com, which Rosen created in February 2007.
We start with the 2006 post. The statute of limitations for a libel or defamation claim is one year. (§ 340, subd. (c); Traditional Cat Assn., Inc. v. Gilbreath, supra, 118 Cal.App.4th 392, 399 [applying the one-year statute of limitations and affirming grant of anti-SLAPP motion].) The undisputed evidence in the record shows Rosen made the ripoffreport.com post on August 30, 2006. Therefore, the limitations period with respect to it expired in 2007, well before plaintiffs filed this lawsuit in 2009. Although changes to defamatory material on a Web site may begin a new limitations period (ibid.; cf. Schneider v. United Airlines, Inc. (1989) 208 Cal.App.3d 71, 77 [republication can start a new period]; Firth v. State (2002) 747 N.Y.S.2d 69, 72 [posting of unrelated material to a Web site does not start new period for original, defamatory material on the site]), plaintiffs presented no evidence suggesting Rosen has made any changes to the original ripoffreport.com post.
Some courts have held a defendant bears the burden of proof on an affirmative defense, such as the statute of limitations, while pressing an anti-SLAPP motion. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 477; Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 969.) Other courts have suggested the burden remains on the plaintiff to demonstrate a defense “ ‘ “is not applicable to the case as a matter of law or by a prima facie showing of facts which, if accepted by the trier of fact, would negate such defense.” ’ ” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 285, italics omitted, quoting Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5; cf. Flatley, supra, 39 Cal.4th at p. 323 [“The litigation privilege... may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.”].) This apparent conflict, which the parties have not addressed, was recently noted in No Doubt v. Activision Publishing, Inc., supra, 192 Cal.App.4th at p. 1029. We need not resolve it here since Rosen established the statute of limitations defense and plaintiffs did not come forward with any factual showing to defeat it.
In fact, the only argument plaintiffs have advanced on appeal as to the statute of limitations is that the trial court did not grant the motion to strike on that ground (despite Rosen arguing the point). They assert we may not “reverse” the trial court in the absence of a “cross-appeal” by Rosen. This contention is meritless. As we have recited, this court independently reviews the ruling on an anti-SLAPP motion (Tutor-Saliba, supra, 136 Cal.App.4th at pp. 609-610), and we are not bound by the trial court’s analysis and will affirm the court’s ruling if it is correct on any theory applicable to the case (Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970). Since the record demonstrates any libel or defamation claim based on the August 30, 2006, post to ripoffreport.com is time-barred, plaintiffs have not met their burden of demonstrating a probability of success as to this allegedly defamatory material.
We therefore need not, and do not, address plaintiffs’ contention the post is libelous per se.
We therefore turn to the page on Rosen’s Web site, letthepublicknow.com, which Rosen created in February 2007. This Web page contains a quote of Cook’s from a deposition transcript and, to quote from plaintiffs’ own briefing, “merely a recital of alleged cases” involving Cook. To defeat an anti-SLAPP motion to strike a libel or defamation claim, plaintiffs “had to make a prima facie showing that the challenged statements were both false and defamatory.” (Carver v. Bonds (2005) 135 Cal.App.4th 328, 344.) They had that burden moreover “even if [no one is] considered a public figure for purposes of this suit.” (Ibid.)
“A statement is not defamatory unless it can reasonably be viewed as declaring or implying a provably false factual assertion.” (Carver v. Bonds, supra, 135 Cal.App.4th at p. 344 .) Plaintiffs presented no evidence the Web site page contained any falsehood. They did not dispute that the Web page accurately quoted from Cook’s deposition. Nor did they dispute that Cook or his companies were involved in the lawsuits Rosen listed as actions he believed involved Cook. Accordingly, plaintiffs also have not met their burden of demonstrating a probability of success as to the page on Rosen’s 2007 Web site, letthepublicknow.com.
Because both elements of the anti-SLAPP statute are met here, the trial court correctly granted Rosen’s special motion to strike.
Attorney Fees
Appealability
We next consider plaintiffs’ challenge to the amount of attorney fees the court awarded Rosen as the prevailing party on his motion to strike. Section 425.16, subdivision (c)(1), of the anti-SLAPP statute provides: “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. 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.” (§ 425.16, subd. (c)(1).)
Before addressing the merits of plaintiffs’ challenge, we consider our jurisdiction. We have two concerns. First, is the order awarding fees an appealable, interlocutory order, subject to appellate review at this time? Assuming it is, does plaintiffs’ July 26, 2010, notice of appeal from the May 20, 2010 order granting the anti-SLAPP motion—the only notice of appeal before us—allow us to review the subsequent August 13, 2010, order awarding attorney fees?
Neither party has raised these issues. We have not solicited further briefing (see Gov. Code, § 68081) because the practical result appears to be the same whether we affirm the fee award, which we do here, or dismiss the appeal, which we do not.
As to the first question—is an anti-SLAPP fee order appealable—the Courts of Appeal have reached differing conclusions. In Doe v. Luster (2006) 145 Cal.App.4th 139 (Doe), the Court of Appeal dismissed the plaintiff’s appeal from an order denying attorney fees sought on the ground the defendant’s special motion to strike was frivolous. Pointing out section 425.16, subdivision (i), provides only that “[a]n order granting or denying a special motion to strike shall be appealable under Section 904.1” (§ 425.16, subd. (i)), the appellate court concluded “[n]either 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.” (Doe, supra, 145 Cal.App.4th at pp. 145-146.) Notably, in Doe, the only order before the Court of Appeal was the order denying fees—no appeal had been taken from the merits of the trial court’s anti-SLAPP ruling. (Id. at p. 142.)
Two other Courts of Appeal have concluded, when anti-SLAPP orders have been challenged on the merits, that any anti-SLAPP fee order is also immediately appealable. As the Court of Appeal observed in Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 275 (Baharian-Mehr), “it would be absurd to defer the issue of attorney fees [awarded under the anti-SLAPP statute] until a future date, resulting in the probable waste of judicial resources.” In Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 680, footnote 2 (Chitsazzadeh), the appellate court agreed with Baharian-Mehr and held “[a]n attorney fee award in connection with the denial of a special motion to strike is sufficiently interrelated with the denial that the fee award is reviewable on appeal from the order denying the special motion to strike.”
In this case, plaintiffs have appealed the merits of the trial court’s ruling on Rosen’s special motion to strike, and we agree with Baharian-Mehr and Chitsazzadeh the only reasonable construction of section 425.16, subdivision (i), is that it embraces fee awards made under the anti-SLAPP statute. Moreover, a fee order made under the anti-SLAPP statute meets all the criteria of an immediately appealable “collateral” order—it addresses a matter “severable from the general objective of the litigation” and whose resolution “leav[es] no further judicial action to be taken in regard to that matter.” (Henneberque v. City of Culver City (1985) 172 Cal.App.3d 837, 841-842 [direct appeal allowed from a collateral order denying a motion for backpay and for attorney fees].)
Having concluded the August 13, 2010, fee order was immediately appealable, we turn to the second question—whether plaintiffs’ July 26, 2010 notice of appeal embraced the fee order made on August 13, 2010. The notice of appeal sought review of the May 20, 2010, order granting the anti-SLAPP motion and “any other orders embraced within this motion including but not limited to post-judgment orders if applicable.”
As a general matter, “[a] postjudgment order awarding attorney fees is separately appealable, ” and “failure to appeal an appealable order ordinarily deprives the appellate court of jurisdiction to review the order.” (R.P. Richards v. Chtd. Constr. Corp. (2000) 83 Cal.App.4th 146, 158; Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 632 [in the SLAPP context].) Also, a notice of appeal merely from a “ ‘judgment... and certain other rulings and orders’ ” is generally inadequate to challenge a later order regarding the amount of attorney fees. (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1074-1075.)
There is an exception to these general rules where a judgment expressly recognizes an entitlement to attorney fees, but the amount is determined in a later order. As the courts have observed, “requiring a separate appeal from [the fee] order when the judgment expressly makes an award of costs and/or fees serves no apparent purpose.” (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 997, italics omitted (Grant).) In such a case, a notice of appeal from the judgment “challenges the appropriateness of awarding fees” and puts the respondents “on notice that appellants are seeking review of the award.” (Ibid.) However, when a judgment is silent as to fees, it is generally the rule that a separate notice of appeal must be filed from any subsequent fee order. (Robinson v. City of Yucaipa (1994) 28 Cal.App.4th 1506, 1517-1518.)
Here, the order granting the special motion to strike was completely silent on attorney fees. Plaintiffs would therefore have typically needed to file a notice of appeal from the subsequent fee award to invoke this court’s jurisdiction and challenge the fee order. However, as we have discussed, a fee award is mandatory when a special motion to strike is granted. (§ 425.16, subd. (c)(1).) Accordingly, even without express mention of entitlement to fees, it is necessarily implicit in an order granting a special motion to strike that there has been such an entitlement determination. In other words, the import of an order granting a special motion to strike as to fees is the same, whether it includes explicit language of entitlement to fees or not. The plaintiffs’ notice of appeal also seems to recognize this, since it states the appeal is from the May 20, 2010, order granting the anti-SLAPP motion and “any other orders embraced within this motion including but not limited to post-judgment orders if applicable.”
In Gouskos v. Aptos Vill. Garage, Inc. (2001) 94 Cal.App.4th 754 (Gouskos), the plaintiffs did not file a second notice of appeal from a postjudgment fee award, and the defendants claimed the Court of Appeal had no jurisdiction to review it. (Id. at pp. 762-763.) The plaintiffs asserted their appeal from the judgment—which directed the defendants to submit a written request for fees—embraced the subsequent fee award. Because the language of the judgment was “ambiguous, ” the court declined to rely on those cases, like Grant, allowing review of a postjudgment fee order where the judgment expressly declares entitlement to fees and leaves only the determination of the amount to a later day. (Gouskos, at pp. 764-765.) Nevertheless, the appellate court was willing to read the judgment as the plaintiffs urged “if the defendants were entitled to attorney fees as a matter of right.” (Id. at p. 764.) Accordingly, the appellate court refused to review that part of the postjudgment fee award that was discretionary, but did review the fees awarded pursuant to Civil Code section 3068, subdivision (d), which provides that “pursuant to this section, the prevailing party shall be entitled to reasonable attorney’s fees and costs, not to exceed one thousand seven hundred fifty dollars ($ 1, 750).” (Gouskos, at pp. 764-765.) “The ‘shall be awarded’ language, ” said the court, “unquestionably makes an award under this statute one as a matter of right.” (Id. at p. 765.) The anti-SLAPP statute similarly states a prevailing defendant “shall be entitled to recover his or her attorney’s fees and costs.” (§ 425.16, subd. (c)(1).) Thus, under Gouskos, the fee award is a matter of right, and plaintiffs may challenge the postjudgment fee order despite having failed to file a second notice of appeal.
We are mindful other courts of appeal have declined to review attorney fee awards in similar situations, even when those awards were seemingly mandatory. (E.g., DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 44-45 & fn. 10 [no review of fees under Civil Code section 1717, which provides that where a contract allows for attorney fees, the prevailing party “shall be entitled to reasonable attorney’s fees, ” because the parties’ disputed whether any of them “ ‘sought to enforce the provisions of a contract with an attorney fee provision’ ”]; Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 692-693 [no review of Civil Code section 1717 fees when trial court’s judgment invited “ ‘[Pacific], as prevailing party, [to] make an application for attorney’s fees and costs by postjudgment motion for allowance of attorney’s fees’ ” and motion concerned who was the prevailing party]; Robinson v. City of Yucaipa, supra, 28 Cal.App.4th 1506, 1517-1518 [no review of fees awarded under Civil Code section 798.85].)
However, we find Gousko the more applicable precedent here. We also note Rosen has not been misled or prejudiced in this appeal. (See Marcotte v. Municipal Court (1976) 64 Cal.App.3d 235, 239 [noting these as factors for determining when a premature notice of appeal can be read to encompass a later order].) He has never questioned the reviewability of the fee order, and has fully briefed the fee award on the merits. Further, as we next discuss, there was no abuse of discretion by the trial court, and we affirm the fee award.
Of course, plaintiffs should have filed a second notice of appeal, avoiding the risk they might be barred from challenging the fee order. (See Eisenberg et al., Cal. Civil Appeals & Writs (The Rutter Group 2011) [¶] 2:156.4, p. 2-76[“Of course, the safest approach is always to file two separate appeals.”].)
The Amount of the Fee Award
“The award of defendant’s attorney fees, recoverable under section 425.16, subdivision (c), is subject to review under established rules. ‘The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. [Citation.]’ [Citations.] The trial court possesses personal expertise in the value of the legal services rendered in the case before it. [Citation.] On appeal, a fee award is reviewed for abuse of discretion.” (Russell v. Foglio (2008) 160 Cal.App.4th 653, 661.)
“ ‘ “While the concept ‘abuse of discretion’ is not easily susceptible to precise definition, the appropriate test has been enunciated in terms of whether or not the trial court exceeded ‘ “the bounds of reason, all of the circumstances before it being considered.... ” ’ [Citations.]” [Citation.] “A decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ [Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review.” [Citation.’ [Citation.]” (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1249-1250 (Maughan).) Further, a trial court's attorney fee award will not be set aside “absent a showing that it is manifestly excessive in the circumstances.” (Children’s Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 782.)
Plaintiffs have failed to show the trial court’s award of $23,449 in attorney fees was an abuse of discretion. To begin with, we note the trial court thoroughly reviewed the moving and opposing papers. For example, the court asked for further information about a junior lawyer’s qualifications because it noticed a discrepancy between a declaration and records on the State Bar Web site. The court also did not award all the fees Rosen sought. It struck 1.67 hours unrelated to the anti-SLAPP motion, rejected a 1.5 multiplier Rosen requested, and further reduced the award due to Rosen’s counsel’s failure to give plaintiffs’ counsel adequate notice of its withdrawal of its original fee motion.
Turning to plaintiffs’ particular complaints about the fee award, the trial court did not abuse its discretion by adopting a $500 hourly rate for David Greene, an attorney with 18 years of First Amendment experience and the attorney at the First Amendment Project responsible for the Rosen case. Greene provided a declaration establishing his expertise and history—and the history of others similarly situated at nonprofit legal service providers—obtaining fee awards based on similar hourly rates. That plaintiffs’ counsel asserted any local attorney would charge no more than $325 an hour does not make the trial court’s decision to credit Greene’s declaration an abuse of discretion. (See Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375 [declarations of counsel providing services can prove reasonableness of billing rates]; Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255 [“An experienced trial judge is in a position to assess the value of the professional services rendered in his or her court.”]; Maughan, supra, 143 Cal.App.4th at p. 1249 [abuse of discretion is an act outside the bounds of reason].)
Plaintiffs do not argue with the $200 and $100 hourly rates of the junior attorneys at the First Amendment Project who performed the vast amount of work preparing the motion to strike.
The trial court also did not abuse its discretion by awarding fees for time the three First Amendment Project attorneys spent discussing the anti-SLAPP motion amongst themselves. The trial court could reasonably have concluded using three attorneys, one supervisor and two junior attorneys at significantly lower billing rates, was an efficient way to manage the case.
While plaintiffs contend the trial court should have required Rosen’s attorneys to provide time records specifying the time spent on each task without “clumping” multiple tasks together, they point to no specific time entry they find problematic and, moreover, cite no California authority for the requirement they advocate. In California, “detailed timesheets are not required” and “[t]he court may award fees based on time estimates for attorneys who do not keep time records.” (Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 64.) Trial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1324-1325; Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 689 [trial court may “exercise its discretion in assigning a reasonable percentage to the entries, or simply cast them aside”].) The trial court identified no such problem here. Nor do we discern any.
Finally, the $23,449 award, taken as a whole, is not unconscionable or “manifestly excessive.” In Maughan, supra, the trial court awarded nearly the same sum, $21,250, to Google for attorney fees it incurred in winning an anti-SLAPP motion. However, the court had declined to award the full $98,000 Google had sought. Google appealed, and the appellate court affirmed. (See 143 Cal.App.4th at. pp. 1248-1250.) The appellate court’s rebuff of Google’s effort to obtain additional fees does not, as plaintiffs argue, mandate a reduction of the award here.
At oral argument, plaintiffs’ counsel also asserted the anti-SLAPP motion was “straightforward” and should have taken no more than a day to prepare. We note, however, plaintiffs’ own choice of litigation tactics resulted in the motion being more complicated than it needed to be. As we have pointed out, neither plaintiffs’ complaint nor their opposition papers identified the specific language underpinning their libel and defamation claim. This made Rosen’s task in bringing an anti-SLAPP motion more difficult and time consuming. Further, plaintiffs first filed “special objections” to both the anti-SLAPP motion and fee motion, rather than opposition on the merits. The objection to the anti-SLAPP motion was rejected, and the objection to the fee motion was a transparent delay tactic. In short, on this record, the trial court’s hour determination was imminently reasonable and not an abuse of discretion.
III. Conclusion
The judgment and order awarding attorney’s fees are affirmed.
We concur: Margulies, Acting P. J. Dondero, J.