Opinion
A156200
06-24-2020
STEPHEN G. OPPERWALL, Plaintiff and Appellant, v. SANDRA STONE, ET AL., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HG18900038)
Stephen G. Opperwall appeals from a judgment entered after the court granted respondents' special motion to strike his complaint and awarded attorney fees under the "anti-SLAPP" statute (Code Civ. Proc., § 425.16). He contends his complaint was not based on activity protected by the statute and respondents were not entitled to recover attorney fees because they were self-represented. We will affirm the judgment.
Respondents in this appeal are David Demo and Sandra Stone. Of the other defendants named in the underlying superior court case, Dean Pappas prevailed on his own anti-SLAPP motion, a ruling Opperwall has also appealed (A157904).
I. FACTS AND PROCEDURAL HISTORY
We set forth the facts based on the allegations of Opperwall's complaint and the evidence presented on respondents' special motion to strike. While Opperwall makes factual assertions in his opening and reply briefs, he does not support them with citations to the record (except to tell us the page where the complaint begins in the clerk's transcript), so we disregard them. (Cal. Rules of Court, rule 8.204(a); Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 46 (Caldera).)
A. Opperwall's Claim on His Homeowners Insurance
In November 2016, Opperwall made a claim on his homeowners insurance policy with State Farm General Insurance Company (State Farm General) for water damage to his home, contending he did not receive all the benefits due under the policy.
In February 2017, Opperwall wrote to a State Farm entity claiming he would "eventually sue" the insurer and some of its employees. The following month, he sent a letter to the Chief Executive Officer of State Farm Mutual Automobile Insurance, stating, "I am preparing a lawsuit against you personally, other State Farm employees personally, and State Farm." A few weeks later, Opperwall sent another letter to the executive, stating, "There is no Superior Court case yet, but I am preparing it and it will be filed soon. . . . Govern your personal and business actions accordingly, and deal with your employees accordingly." Opperwall is a licensed California attorney.
B. State Farm Hires Attorney Demo
In April 2017, after Opperwall's repeated threats of legal action, State Farm retained respondent David Demo, an attorney, to interact with Opperwall regarding the insurance claim. According to Demo's declaration in this case, he was a partner in Pacific Law Partners, LLP (Pacific Law) and his role in Opperwall's matter was to communicate with Opperwall about his claim.
Opperwall wrote to Demo on May 3, 2017, stating that if "State Farm" did not pay him $1,000,000, he would "file a lawsuit that will seek $100,000,000 against State Farm and its involved employees and agents." Opperwall further warned that "[t]he lawsuit is nearly ready to be filed, and should be ready in another 10 days," and "State Farm and its employees and agents can expect that the lawsuit will be filed shortly after 5/12/17." In addition, he expressed his view that Demo was involved only "to continue the abusive and illegal actions of State Farm" and "to interfere with what I am entitled to."
The next day, Opperwall wrote to Demo, stating: "Based on you and based on State Farm, a lawsuit is unavoidable. You and State Farm will never get beyond the limited scope of what you are talking about, until I file a lawsuit."
Opperwall thereafter continued to threaten litigation. In July 2017, he wrote to Demo: "The only reason you came into this picture is that State Farm did all of the evil and illegal things that it did, and I made it clear that I am going to sue State Farm and its agents/employees for all compensatory and punitive damages....I am going to sue. The lawsuit was already prepared before you came into the picture....I expect to file the lawsuit soon." In September 2017, Opperwall wrote to Demo: "There will be a lawsuit. Whether State Farm even hires you for that remains to be seen."
In October 2017, State Farm closed the claim file and notified Opperwall.
C. Opperwall's First Lawsuit; State Farm's Retention of Stone
On November 6, 2017, Opperwall filed a complaint against State Farm Fire and Casualty Company (State Farm Fire) in Alameda County Superior Court (First Opperwall Lawsuit). Opperwall asserted causes of action for breach of contract, insurance bad faith, fraud, breach of fiduciary duty, and negligence. Although State Farm Fire was the only named defendant, it had not issued Opperwall's homeowners policy and had nothing to do with his insurance claim.
The company that had issued Opperwall's homeowners policy - State Farm General - retained respondent Sandra Stone in November 2017 to defend against the First Opperwall Lawsuit. In her declaration, Stone identifies herself as a partner in Pacific Law and attorney of record for most of the defendants in the case. She had no involvement with Opperwall or his claim until she was retained to handle the defense of the First Opperwall Lawsuit.
In December 2017, acting through Stone, State Farm General removed the First Opperwall Lawsuit to federal court on the ground of diversity jurisdiction. A few days later, motions were filed to dismiss the claims for fraud, breach of fiduciary duty, and negligence, and to strike the request for $100,000,000 in punitive damages.
In January 2018, Opperwall wrote to Stone, "In my view, the legal maneuvering that you are doing for State Farm is further evidence of State Farm's bad faith." He offered to settle with State Farm for $250,000 if Stone withdrew the motions immediately. State Farm declined the invitation.
On March 9, 2018, the United States District Court dismissed Opperwall's claims for breach of fiduciary duty and negligence without leave to amend, dismissed the fraud claim with leave to amend, and dismissed the punitive damage claim with leave to amend.
In a case management statement dated March 12, 2018, Opperwall stated that "State Farm's counsel makes up a series of fake issues as part of the overall bad faith by State Farm that State Farm's attorneys perpetuate." He then asserted that "State Farm hired the law firm that now represents State Farm in this case, and got that law firm involved to: 1) try to do 'damage control,' and 2) to try to bully and intimidate Plaintiff." And, he asserted, "State Farm and its counsel . . . intend to use the courts as a litigation tool to beat up on a homeowner."
On March 24, 2018, Opperwall upped the ante by threatening to file a new lawsuit naming Demo and Stone as defendants if State Farm did not accept his latest settlement demand.
In an email to Stone on March 27, 2018, Opperwall provided his recollection of a conversation with her (which respondents claim is inaccurate but reflects Opperwall's view of Demo's and Stone's role, as relevant to the issues here): "You [Stone] also said: 'I am not a claim adjuster.' [¶] You also said that all you are doing is discovery, motions, and things like that, and that you are doing nothing to address the underlying issues or to resolve the claims. [¶] . . . [¶] . . . [¶] . . . [¶] I said that it is obvious that you just want to go through the litigation procedures to beat up on a homeowner who has been and is being deprived of the benefits of a homeowners' insurance policy. . . " (Italics added.) In another email to Stone that day, Opperwall contended "[t]he claim file that was online has been taken down," amounting to "destruction of material evidence."
D. Opperwall's Second Lawsuit, Adding Demo and Stone
On April 9, 2018, Opperwall dismissed the First Opperwall Lawsuit without prejudice and filed a new complaint in superior court, initiating the case underlying this appeal (Second Opperwall Lawsuit). He named as defendants Michael Ornelas (the agent who serviced Opperwall's homeowners policy), Marci Thacker (who participated in adjusting Opperwall's claim), State Farm Fire, and State Farm General. He later filed four "Doe" amendments, two of which added Demo and Stone as defendants.
1. Allegations of The Complaint
Opperwall alleged that State Farm and insurance agent Ornelas promised to "take care of" a water leak in his house, but Ornelas and two claims specialists refused to provide him information. He further alleged that after he initiated the First Opperwall Lawsuit, "State Farm got its attorneys involved, including [Demo and Stone]," and - contrary to his representation to the federal court - they were "acting as employees of State Farm rather than as independent counsel." According to the complaint, Demo and Stone were "working for [State Farm] to fight with insureds about State Farm claims and to make things as difficult as possible for insureds," told him that he "was not allowed to communicate with State Farm" and they were "not working on the resolution of the claim," refused to discuss the repair and construction aspect of the claim, took the position he could not discuss the claim with State Farm, "made threats against" him, "interjected themselves between [him], and State Farm, and interfered with the claim and [his] contract rights and benefits." In addition, Opperwall alleged that State Farm, its attorneys, or someone else associated with State Farm removed his claim file from online in violation of Penal Code section 135.
Based on these allegations, the complaint asserted five of its eight causes of action against all defendants, including Demo and Stone: breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, promissory fraud, and infliction of emotional distress.
Although we address whether Opperwall established a probability of prevailing on his claims post, at this juncture we point out that even the face of the complaint shows that at least all but one of the claims alleged against Demo and Stone are baseless as a matter of law. Demo and Stone could not be liable for breach of contract or breach of the implied covenant, because they were not parties to the insurance contract. The fraud claim is based on representations that policy benefits would be provided, but it is not alleged that Demo or Stone made that promise. The promissory fraud claim is premised on representations in "the insurance contracts by State Farm and in the promises by Ornelas and Thacker," not by Demo or Stone. That leaves the claim for emotional distress, which does not allege any act by Demo or Stone besides those in the general allegations.
2. Respondents' Anti-SLAPP Motion and Order
Demo and Stone filed a special motion to strike the complaint under Code of Civil Procedure section 425.16 (section 425.16), along with supporting declarations, documentary evidence, and a request for judicial notice of the complaint in the First Opperwall Lawsuit and a case management statement. The declarations set forth the facts summarized ante and, in response to Opperwall's accusation that his claims file was "taken down" and his allegation that "State Farm and its . . . attorneys" removed the documents from online and hid or destroyed evidence, Demo and Stone each averred: "I have no involvement with State Farm's maintaining of claim files, and I have no access to State Farm's electronic claim records. I do not know of any destruction or concealment of evidence related to Mr. Opperwall's Insurance Claim."
Opperwall filed an opposition to the motion. His declaration asserted, without foundation or admissible supporting evidence, that "Demo and Stone were involved as employees and agents of State Farm many months before there was a lawsuit." He conceded that Stone told him she was filing motions challenging Opperwall's complaint with demurrers and motions to strike.
Demo and Stone filed a reply brief and objected to portions of Opperwall's declaration.
The court issued a tentative ruling granting the anti-SLAPP motion. Opperwall contested the tentative, and the matter proceeded to a hearing. On August 28, 2018, the court affirmed its tentative ruling and issued a detailed order granting the motion and striking the causes of action as to Demo and Stone. The court found that their alleged conduct pertained to their representation of State Farm in anticipation of litigation (Demo) or after the First Opperwall Lawsuit was filed (Stone), and thus constituted litigation-related activity subject to protection under the anti-SLAPP statute. The court further found that Opperwall had not produced evidence to show a probability of prevailing on his claims.
3. Respondents' Attorney Fees Motion And Order
Demo and Stone thereafter filed and served a motion seeking $13,100 for attorney fees, based on 52.4 hours of work performed at $250 per hour by Andrew Collier, an associate attorney at Pacific Law. The motion was supported by a declaration from Collier.
Opperwall opposed the motion on the grounds it was untimely, respondents were not entitled to recover for attorney fees because they were self-represented and the fees were billed to a third party, and the amount requested was unreasonable. Demo and Stone filed a reply and a request for judicial notice.
The court issued a tentative ruling granting the motion. Opperwall did not contest the tentative ruling, and the court entered its order on December 21, 2018. The court found that the attorney fees motion was timely and respondents were entitled to fees because they were represented by an employee of Pacific Law, not by a partner, and Pacific Law was not itself a defendant. The court also concluded that the amount requested was reasonable and had been incurred in connection with the anti-SLAPP motion, and awarded respondents $13,100. (See § 425.16, subd. (c).) This appeal followed.
II. DISCUSSION
Opperwall challenges both the order granting the special motion to strike and the order awarding attorney fees.
A. Special Motion to Strike
An anti-SLAPP motion involves a two-step analysis. In the first step, defendants must show that the challenged cause of action arose from activity protected under section 425.16. If the defendant makes this showing, the plaintiff must demonstrate in the second step a probability of prevailing on each challenged claim based on protected activity. (§ 425.16, subd. (b); Baral v. Shnitt (2016) 1 Cal.5th 376, 384, 396 (Baral); Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1181 (Wallace), overruled on other grounds in Baral, supra, at p. 391.) We review de novo. (Wallace, supra, at p. 1181.)
1. First Step: Protected Activity
Section 425.16, subdivision (e) sets forth the activity protected by the statute, including "(1) any written or oral statement or writing made before a . . . judicial proceeding" and "(2) any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body."
To determine if the claim arises from such protected activity, we identify the acts on which the plaintiff has predicated the defendant's liability, based on the pleadings and the evidence submitted in support of and in opposition to the anti-SLAPP motion. (Wallace, supra, 196 Cal.App.4th at pp. 1183, 1189-1190; Contreras v. Dowling (2016) 5 Cal.App.5th 394, 408 (Contreras).)
Here, the allegations against Demo and Stone are that they were attorneys who "work[ed] for State Farm to fight with insureds about [State Farm] claims and to make things as difficult as possible for insureds," told Opperwall he was not allowed to communicate with State Farm and they were not working on resolving the claim, refused to discuss the repair and construction aspect of the claim, made unspecified threats against him, "interjected themselves" between him and State Farm, interfered with his claim and benefits under the policy, and may have removed his claim file from online. All of their alleged acts pertained to the insurance claim that was the subject of Opperwall's lawsuit. The declarations of Demo and Stone confirm that Demo's acts were performed in the course of representing State Farm General after Opperwall threatened to litigate, and Stone's acts were performed in defending against the litigation Opperwall did file, including correspondence and conversations with Opperwall and papers she filed with the courts. As Opperwall summarized it in his own declaration, "[a]s it turns out, that is all that Demo and Stone have done (i.e., file motions)."
The acts on which Demo's and Stone's liability is based fall squarely within the activity protected by the anti-SLAPP statute: statements made in a judicial proceeding or in connection with issues under consideration by a judicial body. (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480 ["all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute"]; see also Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs) [defendant's writings, statements to investigator, assistance of others in commencing litigation, and other acts in connection with issues under consideration by official bodies or proceedings, including actual or potential litigation, constituted protected activity]; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 671-672 (Peregrine) [law firm's litigation tactics and opposition to Securities Exchange Commission's efforts to obtain restraining orders constituted protected activity].)
Although Demo acted before Opperwall filed his lawsuit, his communications on behalf of the insurer constituted protected activity because they were made in anticipation of the litigation that Opperwall had threatened. (Briggs, supra, 19 Cal.4th at p. 1115 [communications preparatory or in anticipation of the bringing of an action are entitled to benefits of anti-SLAPP statute]; Comstock v. Aber (2012) 212 Cal.App.4th 931, 944-945 [pre-litigation statements to human resources manager were protected because they counseled a potential affirmative defense]; Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 886-887 [letter threatening to sue was protected activity]; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268-1269 [letter to customers accusing former employee of misappropriation and threatening lawsuit was protected activity].)
Opperwall's arguments to the contrary are unavailing. First, he contends the anti-SLAPP statute does not protect Demo and Stone because they were "interfering with the payment of insurance benefits." The point, however, is that whatever attorneys Demo and Stone were alleged to have done, it was in anticipation of or in response to the judicial proceeding that Opperwall had threatened, thus bringing the acts within the scope of the anti-SLAPP statute. (See Contreras, supra, 5 Cal.App.5th at pp. 409-411 [attorney's communications and advice regarding client's wrongful entries into plaintiff's apartment constituted protected activity, despite plaintiff's argument that liability was premised on the attorney being a co-conspirator with the landlord rather than on the attorney communications themselves].) Tellingly, Opperwall avers in his declaration that his "settlement offers and discussions are themselves protected speech and petitioning under the anti-SLAPP law."
Next, Opperwall asserts that Demo and Stone were not acting as attorneys but as claim adjusters. This argument fails for several reasons. First, he offers no legal support for the implicit proposition that claims adjusters are not protected by the anti-SLAPP statute when, like Stone, they make a statement in connection with an issue under consideration by a court. Second, Opperwall provides no citation to the record supporting his supposition that Demo and Stone were acting as claims adjusters, so his argument is forfeited. (Caldera, supra, 25 Cal.App.5th at p. 46.) Third, he did not present any competent evidence in the trial court that Demo and Stone were acting as mere claims adjusters, so his argument here is immaterial. To the contrary, the evidence was that Demo and Stone performed services as attorneys. Even Opperwall identified them as attorneys and maintained that they did not adjust his claim, alleging in his complaint that they refused to discuss the repair and construction aspect of the claim and were not working on the claim's resolution. In a letter he wrote to Stone, Opperwall proclaimed: "So you are not working on any claim aspect, and neither is State Farm ....You also said that all you are doing is discovery, motions, and things like that, and that you are doing nothing to address the underlying issues or to resolve the claim. [¶]. . . [¶]. . . [¶]. . . I said that it is obvious that you just want to go through the litigation procedures to beat up on a homeowner who has been and is being deprived of the benefits of a homeowners' insurance policy." (Italics added.) And in his opening brief in this appeal, Opperwall asserted that "Stone and Demo were interjected into the claims handling process a short time after State Farm closed the claim file without paying the claim." (Italics added.)
Opperwall next tells us that "an attorney for an insurance carrier incurs personal liability for committing acts that Stone and Demo are guilty of here," claiming their acts were "similar to" the acts of attorneys in Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal.App.4th 54 (Shafer). He does not explain how the acts were similar to those in Shafer or provide any supporting citation to the record. Moreover, Shafer - which had nothing to do with the anti-SLAPP statute - is inapposite.
In Shafer, plaintiffs had obtained a judgment against a contractor and its owners. When they sought to collect on the judgment from the contractor's insurer, the insurer's attorney misrepresented that it had not agreed to indemnity for willful acts, in an attempt to convince the plaintiffs to accept payment of only a portion of the judgment. The plaintiffs sued the insurer and its attorney for fraud and conspiracy, and the attorney filed a demurrer on the grounds that he did not owe the plaintiffs a duty and the plaintiffs had not relied justifiably on his representation. (Shafer, supra, 107 Cal.App.4th at pp. 62, 64-66.) The court ruled that the demurrer should not have been sustained, because the attorney owed the plaintiffs a duty not to make fraudulent statements about the insurance coverage, the plaintiffs' reliance was justifiable on the facts alleged, and the attorney's statements were not protected by the litigation privilege. (Id. at p. 67.)
Here, unlike in Shafer, there was no allegation (let alone admissible evidence) that Demo or Stone made a specific misrepresentation on which Opperwall justifiably relied. Moreover, at issue here is not whether an attorney may be liable for fraud, but whether the activity falls within the scope of section 425.16 - an issue that Shafer did not consider.
Opperwall's opening brief further contends that the anti-SLAPP statute "does not protect people who are committing crimes and illegal conduct," claiming that "when Stone and Demo were interjected into the claims handling process," the "online claim file in [his] online portal was eliminated" and "[a]ll of the evidence that had been there was destroyed, or at a minimum concealed and suppressed." (Underlining in original.) Opperwall asserts this constituted a crime under Penal Code section 135 and federal law and an ethical violation under (former) rule 5-220 of the California Rules of Professional Conduct.
As explained by the cases on which Opperwall relies, however, only activity that is illegal as a matter of law falls outside the scope of section 425.16. (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 423-424; Flatley v. Mauro (2006) 39 Cal.4th 299, 317. In other words, the defendant must concede the crime or the evidence must conclusively demonstrate it. (Montebello, at p. 424; Wallace, supra, 196 Cal.App.4th at pp. 1188.) Here, Demo and Stone did not concede any crime - instead denying it under penalty of perjury - and no crime was conclusively demonstrated.
Lastly, in his reply brief, Opperwall protests that the "insurance carrier is trying to create immunity for bad faith actions by having outside claims adjusters who are attorneys take the place of the carrier's in-house claims adjusters," "creating a wall between the homeowner and the carrier that seeks to insulate the carrier from its bad faith and from the adjusters' bad faith." As explained ante, however, Opperwall failed to cite any evidence that Demo and Stone were acting as claims adjusters, so his argument falls flat. Furthermore, he misperceives the anti-SLAPP statute, which does not grant "immunity" to anybody. (Baral, supra, 1 Cal.5th at p. 384.) Further still, we do not rule that the carrier (State Farm General) escapes liability by employing an attorney to act as a claims adjuster. The point is simply this: where a plaintiff has chosen to sue an attorney for communications and other acts made in connection with actual or threatened litigation, the claim is of a type that requires the plaintiff (in the second step of the anti-SLAPP analysis) to show a probability of prevailing in order to proceed against the attorney. (Ibid.) To that second step we now turn.
2. Second Step: Probability of Success
Once the defendant shows that the plaintiff's claims arise from protected activity, the burden shifts to the plaintiff to establish a probability of success on the claims. (§ 425.16, subd. (b)(1).) The court considers the pleadings and the affidavits evincing the facts on which liability or a defense is based. (§ 425.16, subd. (b)(2); Contreras, supra, 5 Cal.App.5th at p. 404.)
Opperwall does not set forth in his appellate briefs any substantial argument as to why there is a probability he will prevail on his claims, let alone support his arguments with adequate citations to the record. Moreover, he offers no rebuttal to respondents' assertion that the litigation privilege of Civil Code section 47, subdivision (b) bars his claims against them as a matter of law. (Silberg v. Anderson (1990) 50 Cal.3d 205, 211-212, 215-216 [statements in connection with a judicial proceeding are absolutely privileged, and the privilege precludes all but malicious prosecution claims]; Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 360-361 [litigation privilege is absolute, bars all civil claims except for malicious prosecution, and extends to pre-litigation statements in anticipation of litigation].) He has therefore forfeited any argument in this regard, and in any event fails to establish error. (Caldera, supra, 25 Cal.App.5th at p. 46.)
B. Attorney Fees Order
A prevailing defendant on an anti-SLAPP motion "shall be entitled to recover his or her attorney's fees and costs." (§ 425.16, subd. (c)(1).) The statutory provision is mandatory. (Cabral, supra, 177 Cal.App.4th at p. 490.)
Opperwall contends that Demo and Stone nonetheless have no right to attorney fees "as self-represented parties, where the work was done by their law partner/associate and billed to and paid for by the insurance carrier that is guilty of insurance bad faith, fraud, and other illegal acts." He states "there is no attorney client relationship between Stone/Demo and their law partner Collier," they are "law partners in a law partnership," and "all of the work was done by an attorney who was part of the single 'de facto firm' and it was billed to State Farm and paid by State Farm." He provides no citation to the record for any of these assertions.
It is true that an attorney who litigates in pro per cannot recover attorney fees for the attorney's own time and effort. (Trope v. Katz (1995) 11 Cal.4th 274, 292 (Trope) [decided under Civ. Code, § 1717].) That is because "the term 'attorney fees' implies the existence of an attorney-client relationship," which does not exist when an attorney is self-represented. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1092.) On the other hand, there is "no question" that an attorney-client relationship exists where the attorney litigant is represented by another attorney, even if the other attorney works at the same firm. (Gilbert v. Master Washer & Stamping Co., (2001) 87 Cal.App.4th 212, 222 (Gilbert) [decided under Civ. Code, § 1717]; see also Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 524-525 [defendant Hamilton, an attorney, was entitled under the anti-SLAPP statute to recover attorney fees she incurred for services provided by another lawyer in representing her, even though Hamilton provided legal services to the other defendants].)
Here, Demo and Stone did not represent themselves in the Second Opperwall Lawsuit. They were represented by Collier, an associate with Pacific Law, in an attorney-client relationship. As Collier explained in his declaration in support of the motion for attorney fees, he was the only attorney who handled Demo's and Stone's anti-SLAPP motion. As shown by documents submitted along with the motion for attorney fees, Collier, as counsel for Demo and Stone, responded to correspondence from Opperwall. As shown by attorney time records, the requested attorney fees pertained to work performed by Collier, not by Demo or by Stone. Because Demo and Stone were sued in the Second Opperwall Action but Collier (and Pacific Law) were not, the situation of Demo and Stone was analogous to that of litigants who retain private counsel. (Gilbert, supra, 87 Cal.App.4th at p. 222, fn. 43-44.)
Opperwall asserts there was no attorney-client relationship between respondents and Collier, but saying so does not make it so. He fails to cite to the record to support his assertion, and accordingly he waived the argument. (Caldera, supra, 25 Cal.App.5th at p. 46.) He also ventures, without citation to the record, that Collier is a law partner with Demo and Stone. The record shows otherwise: by declaration, Collier averred he was an associate.
Contrary to Opperwall's further suggestion, it does not matter that the attorney fees were billed to State Farm and not to Stone and Demo. The issue is not who received the bill, but on whose behalf the fees were incurred. (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1410 [defendant was entitled to contractual attorney fees even if an insurance company paid for them]; Macias v. Hartwell (1997) 55 Cal.App.4th 669, 675-676 [attorney fees were available under § 425.16 even though the fees were paid by defendant's labor union]; see Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 282, 287 [attorney fees could be recovered under anti-SLAPP statute even though defendants were represented pro bono].)
In his reply brief, Opperwall tells us that "Gilbert is no longer good law, and later decisions from the same District Court of Appeal that issued the Gilbert decision have said so," adding that "Westlaw cites" Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373, 378 (Carpenter) for the conclusion that "Gilbert is no longer good authority." He insists that "[n]o other decision has followed Gilbert," "[e]very other decision about self-represented attorneys and attorneys' fees has distinguished Gilbert and avoided the result from Gilbert," and "Carpenter basically says that Gilbert is no longer good law in light of the many decisions since Gilbert."
In the first place, Gilbert is very much "good law" and, contrary to Opperwall's representation, a number of cases have followed it. (See, e.g., Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1074 [following Gilbert to conclude that a defendant attorney should have been awarded attorney fees where the attorney was represented by other members of the law firm]; Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 96 (Gorman) [following Gilbert to conclude that an attorney could recover fees for other attorneys and paralegals that he hired to represent him, even though they worked in his law firm]; Century Surety Co. v. Prince (9th Cir. 2019) 782 Fed. Appx. 553, 558 ["we follow Gilbert and affirm Prince's fee award"].) All of these cases were decided long before Opperwall filed his appellate reply brief; it is a mystery how he missed them.
Moreover, Carpenter in no way suggests that Gilbert should not be applied in this case; to the contrary, Carpenter confirms it should be. In Carpenter, a cross-complaint had been filed against a law firm and its two partners. The law firm and partners prevailed on their anti-SLAPP motion and filed a motion to recover attorney fees for services rendered by an associate in the law firm. (Carpenter, supra, 195 Cal.App.4th at p. 377.) But because the associate was representing the interests of her law firm - who had been sued - the law firm could not recover for her fees. (Id. at p. 385.) On this point Carpenter distinguished Gilbert (and Gorman, supra, 178 Cal.App.4th 44), in which the associate had represented the interests of the individual defendant-lawyer. (Carpenter, at p. 385.) Furthermore, Carpenter held, the individual partners could not recover fees because the cross-complaint did not expose them to liability separate from the potential liability of their law firm, and the associate did not render legal services to the individual partners aside from the time she spent representing the interests of the law firm. (Id. at pp. 386-387.) The court in Carpenter explained: "This case differs from [Gilbert] because, in that case, the plaintiff did not sue [the attorney's] law firm; it sued [the attorney] personally for allegedly preventing the plaintiff from recovering its property from the leased premises," while in Carpenter "the law firm was sued based on the conduct of its partners undertaken on behalf of the firm and its business." (Id. at p. 387.)
In canvassing the jurisprudence since Trope, Carpenter also noted the view in Gilbert that, where a partner in a law firm is represented by other attorneys in the law firm, the partner essentially incurs "fees" within the meaning of Civil Code section 1717 in the form of the reduced partnership draw (or reduced salary from a professional corporation) resulting from the time those attorneys devoted to the partner's case rather than to other work of the firm. (Carpenter, supra, 195 Cal.App.4th at p. 382; Gilbert, supra, 87 Cal.App.4th at p. 221.) Gilbert distinguished this decrease in revenue from the mere opportunity costs the partner would have lost in representing himself - a distinction Carpenter characterized as "obscure." (Gilbert, at p. 221; Carpenter, at p. 382.) But Carpenter did not object to the holding in Gilbert with respect to the factual situation at issue in Gilbert.
Here, like the plaintiff in Gilbert, Opperwall did not sue Demo's and Stone's law firm - Pacific Law - but sued Demo and Stone as individuals for allegedly preventing Opperwall from obtaining benefits under the policy. Carpenter is therefore distinguishable, Gilbert squarely applies, and Demo and Stone may recover for attorney fees incurred in Collier's representation of their personal interests.
Finally, contrary to Opperwall's representation, we have found no case disagreeing with Gilbert as relevant here. More importantly for this appeal, we do not disagree with Gilbert.
In sum, Opperwall fails to establish that Demo and Stone were not entitled to an award of attorney fees. Nor does he offer any evidence or argument in his opening or reply briefs that the amount of the award was excessive. He fails to establish error.
In his reply brief, Opperwall represents that the superior court has ruled that the in-house claims adjuster and the outside insurance agent are liable to him because demurrers filed by those defendants have been overruled. He provides no citation to the record, misapprehends the significance of a demurrer being overruled, and is mistaken in thinking that stating a cause of action against one defendant means he can proceed with a lawsuit against another defendant.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BURNS, J.