Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIC414486, Gloria Trask, Judge.
Gary Bryant for Plaintiffs and Appellants.
Mitchell S. Wagner for Real Party in Interest and Respondent.
OPINION
Gaut, J.
1. Introduction
Plaintiffs appeal from a judgment awarding attorney’s fees to real party in interest, Rachael van Haaster (Rachael), under Code of Civil Procedure section 425.16, subdivision (c), the anti-SLAPP statute.
Fred Scane, Nancy Scane, James Pyle, Cheryl Pyle, Tom Cochran, Diane Cochran, and Lisa Gay.
All statutory references are to Code of Civil Procedure unless stated otherwise.
In a previous appeal (E039855), this court held that Rachael was the prevailing party in anti-SLAPP proceedings against plaintiffs and remanded for the trial court to make a determination as to attorney’s fees to be awarded to Rachael. The trial court awarded Rachael fees of $114,010, plus an additional $2,200 for the fee motion. Plaintiffs challenge that award on the grounds that Rachael was not truly the prevailing party and the attorney’s fees were not properly documented. We reject these contentions and affirm the judgment.
2. Factual and Procedural Background
In the previous appeal, we discussed the factual circumstances of this case. To recap briefly, Rachael’s father, Jack van Haaster (Jack), is the former mayor of Murrieta who was recalled from office in May 2005. Rachael has been trying to build a child care center in Murrieta. In May 2004, the Murrieta City Council approved a conditional use permit. Plaintiffs sued Murrieta and Rachael, as the real party in interest. Rachael filed three successive anti-SLAPP motions against plaintiffs, ultimately prevailing on them. In our previous opinion, we directed the trial court to enter orders granting Rachael’s anti-SLAPP motions and “to conduct a hearing on the issue of attorney’s fees . . . .”
On remand, in May 2007, Rachael filed a motion for attorney’s fees, seeking “[l]odestar fees of two times actual fees, plus fees incurred for this motion, for a total of $114,010, . . .” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1136, 1138-1141.) Rachael’s lawyer, Mitchell S. Wagner, submitted his declaration in which he claimed actual fees of $55,505—incurred on contingency at the hourly rate of $250 for three years of litigation, including the previous appeal. Wagner attached the detailed billing statements for July 2004 through May 2007.
Plaintiffs opposed the fee motion, arguing that Rachael had not prevailed because the conditional use permit had expired after two years in May 2006 or three years in May 2007. Accordingly, plaintiffs contended Rachael could not claim to have realized her litigation objectives, thus making her the prevailing party on a practical level. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1017, citing Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 104; Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340; Moran v. Endres (2006) 135 Cal.App.4th 952, 956.) Plaintiffs also contended Wagner had failed to segregate SLAPP fees from other litigation fees.
The trial court granted the fee motion in July 2007.
Plaintiffs then filed a motion for reconsideration (§ 1008), which they based on a criminal probable-cause declaration to support an arrest warrant for Jack. The declaration, dated August 11, 2006, described alleged misconduct and actions involving conflict of interest in violation of Government Code section 87100 and committed by Jack while he was mayor of Murrieta in connection with Rachael’s proposed daycare center. Plaintiffs argued that Jack’s alleged wrongdoing should make the anti-SLAPP statute inapplicable against plaintiffs’ claims. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356; Flatley v. Mauro (2006) 39 Cal.4th 299.) Therefore, although Rachael prevailed on appeal, she should not recover her attorney’s fees under SLAPP.
The trial court denied the reconsideration motion as untimely, irrelevant and based on inadmissible hearsay. The court awarded Rachael an additional $2,200 in attorney’s fees for the fee motion.
Plaintiffs appeal.
3. Discussion
Plaintiffs wrongly argue the standard of review is de novo, citing Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175. We disagree that our analysis involves only statutory construction. Plaintiffs’ contentions that Jack’s alleged wrongdoing and the purported expiration of the conditional use permit preclude Rachael from recovering SLAPP attorney’s fees are not factually supported by the record and do not involve a purely legal issue of statutory construction.
As to Jack’s conduct, plaintiffs cannot rely on the criminal probable-cause declaration, dated August 2006, to challenge an appellate court opinion rendered in March 2007 concerning a superior court judgment entered in December 2005. The declaration was not part of the trial record in this case and was not even presented to the superior court until July 2007, after it had already granted Rachael’s fee motion. None of the cases cited by plaintiffs involved the consideration of additional evidence in a reconsideration motion, which was first submitted after judgment, after an appellate opinion, and after a trial court order granting a postjudgment, postappeal fee motion.
For example, in Norvatis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1301, the declaration of an FBI agent, concerning criminal conduct by a defendant, had been submitted to oppose an anti-SLAPP motion in the trial court. But the declaration in the present case was not part of the SLAPP record and did not inculpate Rachael, who was not a government official like Jack. Furthermore, the declaration made on information and belief lacks foundation and is inadmissible as hearsay. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
As to the conditional use permit, we grant Rachael’s request for judicial notice, filed in this court on December 18, 2007, of the petition for writ of mandate filed by Rachael in the superior court on September 11, 2007. The writ petition demonstrates there is ongoing litigation about whether the conditional use permit has actually expired. Therefore, plaintiffs cannot assert that the expiration of the permit precludes the operation of the anti-SLAPP statute.
Instead, and contrary to plaintiffs’ position: “An appellate court reviews the amount of mandatory attorney fees awarded by the trial court to a defendant who successfully brings an anti-SLAPP motion for abuse of discretion. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1426.)” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 686.)
Plaintiffs contend Rachael could only recover the part of her fees directly incurred in connection with her SLAPP motions. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1381.) Lafayette Morehouse is unavailing; as stated in Metabolife International, Inc. v. Wornick (S.D. Cal. 2002) 213 F.Supp.2d 1220, 1223-1224, it has been superseded by statute. Accordingly, the anti-SLAPP statute must be construed broadly and “[t]he court has broad discretion in determining the reasonable amount of attorney fees and costs to award to a prevailing defendant.” (Metabolife, supra, at p. 1222.)
Here, a review of Wagner’s billing statements reveals that virtually all Rachael’s fees were incurred as part of her SLAPP motions and were inextricably intertwined with addressing common legal issues. All expenses incurred on common issues of fact and law qualify for an award of attorneys’ fees under the anti-SLAPP statute and those fees need not be apportioned. Additionally, because Rachael achieved the dismissal of all of plaintiffs’ claims, awarding her all of her attorney’s fees would advance the public policy underlying the anti-SLAPP statute, which was enacted to allow early dismissal of meritless First Amendment cases aimed at chilling expression through costly, time-consuming litigation. The amount of fees awarded was well within the court’s discretion. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1131-1132, 1136, 1139-1141.)
4. Disposition
In her respondent’s brief and in a separate motion, Rachael asks for appellate attorney’s fees of $6,000 to be awarded as sanctions against plaintiffs and their counsel. Rachael is entitled to her appellate fees against plaintiffs under the SLAPP statute: “‘A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.’ (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499.) Since section 425.16, subdivision (c) provides for an award of attorney fees and costs to a prevailing defendant on a special motion to strike, and does not preclude recovery of appellate attorney fees by a prevailing defendant-respondent, those fees are recoverable. (38 Cal.App.4th at p. 1500.)” Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.) However, we deny the motion for sanctions against counsel because we cannot conclude the ongoing litigation is wholly frivolous.
We affirm the trial court’s orders awarding attorney’s fees to Rachael as the prevailing party and denying the reconsideration motion. We order Rachel to recover from plaintiffs her costs and an additional $6,000 for attorney’s fees incurred for this appeal.
We concur: Hollenhorst, Acting P. J. King, J.