Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV038804
RUSHING, P.J.
Plaintiff and appellant Stephen Opperwall appeals from a judgment of dismissal in which the trial court awarded attorney fees in the amount of $5,400 to defendants and respondents Steven Fink et al. (Fink). Opperwall asserts the trial court erred in awarding attorney fees under the circumstances, because Fink was a pro se attorney litigant, as were the members of his law firm, Mesirow, Fink, Eisenhart & Dawson.
Statement of the Facts and Case
In December 2003, Opperwall filed a complaint in Alameda County against Fink, as an individual, as well as Fink’s law firm, Mesirow, Fink, Eisenhart & Dawson, and the individuals Charles Mesirow, Marc Eisenhart, and James Dawson (collectively the “Lawyer Parties.”) The complaint alleged causes of action against Fink and the Lawyer Parties for abuse of process, declaratory relief and interference with prospective economic advantage related to a lawsuit in Santa Clara County involving Fink’s clients, Adam and Eva Gregorczuk. (Murphy v. Gregorczuk, et al., Santa Clara County Superior Court Consolidated Action No. 1-99-CV-780494.)
In response to Opperwall’s original complaint in Alameda County, the Lawyer Parties filed a motion to change venue, an anti- SLAPP motion, and a demurrer. In this action, Fink represented himself and the Lawyer Parties. The motion for change of venue was granted, and the court ordered Opperwall to pay $2,000 in attorney fees. The demurrer and the anti-SLAPP motion were transferred to Santa Clara County Superior Court.
After the matter was transferred to Santa Clara County, Opperwall filed a first amended complaint alleging abuse of process, malicious prosecution and interference with prospective economic advantage. In response, Fink filed another anti-SLAPP motion and demurrer, representing himself and the Lawyer Parties. The court granted the anti-SLAPP motion. The court ordered Opperwall to pay $3,400 in attorney fees.
A judgment of dismissal was entered in October 2005, consisting of a total of $5,400 of attorney fees. Opperwall filed a notice of appeal.
Discussion
Opperwall asserts the trial court erred in awarding attorney fees for Fink’s work in representing the Lawyer Parties. The basis for Opperwall’s argument is that Fink is not entitled to fees, because the Lawyer Parties were also all pro se litigants, and not actually represented by Fink.
The parties agree that under Trope v. Katz (1995) 11 Cal.4th 274, a pro per attorney litigant is not entitled to attorney fees in cases in which attorney fees would normally be awarded by statute. And there is also no question that Fink was a pro se litigant. The dispute here is whether the Lawyer Parties were also pro se, or whether Fink was representing them, entitling him to a fee award.
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. . . .” (Code Civ. Proc., § 425.16, subd. (c).) Opperwall argues the attorney fees award was erroneous because, Trope holds an attorney who represents him or herself in propria persona is not entitled to be compensated for the time spent to litigate the lawsuit. (Trope v. Katz, supra, 11 Cal.4th 274.) Here, Opperwall asserts the Lawyer Parties were in fact representing themselves, because they were a partnership.
The evidence presented to the trial court contradicts Opperwall’s assertion in this appeal. The Lawyer Parties are not part of a partnership who share profits, expenses and liabilities. Indeed, Mesirow, Fink, Eisenhart and Dawson are a professional “association including a partnership . . . .” The partnership that is included within that association consists of Fink and Mesirow only. Fink stated in his deposition in support of the anti-SLAPP motion: “Neither Mr. EISENHART nor Mr. DAWSON have ever been my partner nor Mr. MESIROW’s partner, nor have they shared in any supposed profits, nor received any alleged ‘financial benefits’ . . . .”
In PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, the court pointed out “that, by definition, the term ‘attorney fees’ implies the existence of an attorney-client relationship, i.e., a party receiving professional services from a lawyer.” (Id. at p. 1092, citing Trope v. Katz, supra, 11 Cal.4th at p. 280.) As an association, rather than a partnership, the Lawyer Parties had an attorney-client relationship with Fink in so far as Fink was providing his professional services to them in defense of Opperwall’s complaint. Contrary to Opperwall’s argument, the fact that Fink was also a codefendant, and was asserting the same arguments on his own behalf as those of the Lawyer Parties does not remove Opperwall’s obligation to pay attorney fees.
An argument similar to Opperwall’s was rejected in Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 220 (Gilbert), in which an attorney was represented by other members of his own law firm. In that case, the Court of Appeal reversed the trial court’s determination that he was not entited to recover fees, because he was represented by members of his own firm and did not present evidence he was “obligated to pay” the legal fees incurred on his behalf by the attorneys representing him in this matter. The Gilbert court reasoned that because the attorney was being sued personally, and was represented by other members of the firm, he did not represent himself in pro per, and was entitled to fees as the prevailing party.
Although Gilbert related to contractual attorney fees under Civil Code section 1717, and the current case involved the anti-SLAPP fees provisions, the Gilbert rationale can be readily applied here. This decisional authority and the plain language of Code of Civil Procedure, section 425.16, subdivision (c) supports the conclusion that the commonly understood definition of attorney fees applies with equal force to Code of Civil Procedure, section 425.16 and a prevailing defendant is entitled to recover attorney fees if represented by counsel.
Here, the Lawyer Parties were in an attorney-client relationship with Fink, and Fink was providing his professional service to them in defending against Opperwall’s lawsuit. As the prevailing parties in the anti-SLAPP motion against Opperwall, the Lawyer Parties are entitled to receive attorney fees.
Disposition
The judgment is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR: PREMO, J., ELIA, J.