Opinion
B324437
04-29-2024
GEORGE SHIH et al., Plaintiffs and Respondents, v. DAVID MAX et al., Defendants and Appellants.
Rogari Law Firm and Ralph Rogari for Defendant and Appellant David Max. Law Offices of Sonia Perez Chaisson and Sonia Perez Chaisson for Defendant and Appellant Ralph Rogari. Newmeyer &Dillion, Benjamin P. Pugh and Jason Moberly Caruso for Plaintiffs and Respondents George Shih, Frank Wood, Mahendra Vora and 8e6 Corp.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. 19STCV30623 William F. Fahey, Judge. Reversed with directions.
Rogari Law Firm and Ralph Rogari for Defendant and Appellant David Max.
Law Offices of Sonia Perez Chaisson and Sonia Perez Chaisson for Defendant and Appellant Ralph Rogari.
Newmeyer &Dillion, Benjamin P. Pugh and Jason Moberly Caruso for Plaintiffs and Respondents George Shih, Frank Wood, Mahendra Vora and 8e6 Corp.
ROTHSCHILD, P. J.
David Max, a former shareholder in 8e6 Corporation (8e6), and Max's attorney, Roger Rogari, pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP statute), appeal from an order denying their motion seeking attorney fees from respondent 8e6 and respondents George Shih, Frank Wood, and Mahendra Vora (the fiduciaries). Before denying the fee motion, the court had denied Max and Rogari's anti-SLAPP motion as moot, because 8e6 and the fiduciaries voluntarily dismissed their complaint against Max and Rogari. Max and Rogari argue that the anti-SLAPP statute obligated the trial court to adjudicate their fee motion, the dismissal of the underlying action notwithstanding.
Unless otherwise specified, subsequent statutory references are to the Code of Civil Procedure.
"SLAPP" stands for "strategic lawsuit against public participation."
We agree and reverse the denial of the fee motion. Further, because Max and Rogari's entitlement to fees depends on the merits of their anti-SLAPP motion, which the trial court has yet to consider, we instruct the trial court upon remand to adjudicate this issue in connection with its resolution of the fee motion. We decline to address the parties' arguments on the merits of the anti-SLAPP motion for the first time on appeal.
FACTS AND PROCEEDINGS BELOW
A. Max's Lawsuit Against 8e6 and the Fiduciaries (Max I)
In December 2016, Max filed a complaint against 8e6 and the fiduciaries. Max alleged a cause of action against 8e6 for breach of the corporation's obligation to permit shareholders to inspect its books and records. Against the fiduciaries, he alleged causes of action for breach of fiduciary duty and conversion. On July 5, 2017, however, Max requested, and the court clerk entered, dismissal of 8e6 from the action. During discovery in the Max I litigation that continued against the fiduciaries, Max subpoenaed the same records from 8e6 that were the subject of the dismissed cause of action against the corporation. The court ultimately granted Max's motion to compel 8e6's compliance with the subpoena in July 2018.
On April 29, 2019, the court granted the fiduciaries' motions for summary judgment in Max I.
B. The Fiduciaries and 8e6's Lawsuit Alleging Max I Was a Malicious Prosecution (the Instant Litigation)
On August 29, 2019, 8e6 and the fiduciaries filed the instant lawsuit against Max and Rogari, alleging that Max I constituted a malicious prosecution.
Approximately a month later, on September 23, 2019, Max timely appealed the judgment against him in Max I. 8e6's counsel proposed to Max and Rogari that the parties stipulate to stay the malicious prosecution case pending resolution of the appeal in Max I, because that appeal suspended 8e6 and the fiduciaries' ability to establish the favorable termination element of their malicious prosecution claim. (See Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 457 (Drummond).) After Rogari and Max declined, 8e6 filed a motion to stay the malicious prosecution action pursuant to Drummond.
C. Anti-SLAPP Motion Regarding the Instant Malicious Prosecution Action
Before the court had ruled on the motion to stay, Max and Rogari filed an anti-SLAPP motion to strike the malicious prosecution complaint. 8e6 presented an ex parte application to continue Max's and Rogari's anti-SLAPP motions pending a decision on 8e6 and the fiduciaries' motion to stay the entire action pending resolution of the Max I appeal. The trial court denied both the ex parte application regarding the anti-SLAPP motion and the motion to stay regarding the entire action.
On December 31, 2019, 8e6 and the fiduciaries voluntarily dismissed the entire malicious prosecution action as to all defendants without prejudice. According to 8e6 and the fiduciaries, they did this in light of the court's refusal to stay the malicious prosecution action and Drummond, supra, 176 Cal.App.4th 439. On January 6, 2020, in light of the dismissal of the action Max and Rogari's motion was arguing constituted a SLAPP, the court issued an order denying the motion as moot.
D. Motion for Attorney Fees
On February 20, 2020, Max and Rogari filed a motion for attorney fees under the anti-SLAPP statute's mandatory fee provision. (§ 425.16, subd. (c).) The fiduciaries and 8e6 opposed the motion. On July 9, 2020, the court stayed the entire malicious prosecution action pending resolution of the appeal from Max I and, accordingly, took the fee motion off calendar.
On November 30, 2020, this court affirmed the judgment in the fiduciaries' favor in Max I. (Max v. Shih (Nov. 30, 2020, B301010) [nonpub. opn.].) On August 8, 2022, Max and Rogari filed a "notice of reset hearing on motion for attorneys fees, supplemental authorities," which the court scheduled for hearing on September 8, 2022. (Capitalization omitted.) On September 8, 2022, the court denied the motion without explanation. Max and Rogari timely appealed.
Max and Rogari tied the timing of their renewed fee motion to the July 28, 2022 remittitur in another appeal they filed from, inter alia, the court's order staying the instant malicious prosecution action pending resolution of the Max I appeal. (Max v. 8e6 Corp. (Mar. 29, 2022, B307406) [nonpub. opn.].) Max and Rogari voluntarily dismissed the portion of the appeal from that order. The details of the timing regarding these various appeals are not relevant to our analysis, given the basis on which we reject 8e6 and the fiduciaries' timeliness argument. (See Discussion ante, part A.)
DISCUSSION
A. Timeliness of the Fee Motion
8e6 and the fiduciaries argue that Max and Rogari's fee motion was untimely filed, and that this alone provides a basis for affirming the court's ruling denying the fee motion. They cite California Rules of Court, rules 3.1702(b)(1) and 3.1702(c)(1), which establish" 'an outer time limit after judgment within which statutory fee claims [may] be made.'" (Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc. (2022) 73 Cal.App.5th 764, 781.) "Under this timing scheme, the clock starts to run from either the service of notice of entry of judgment or dismissal (starting a 60-day clock), or if no such notice is given, the entry of judgment or dismissal (starting a 180-day clock)." (Ibid.)
Here, the trial court entered the dismissal of the malicious prosecution action on January 6, 2020. Max and Rogari filed their initial motion for attorney fees on February 20, 2020, in compliance with California Rules of Court, rule 3.1702 (rule 3.1702) timelines. As noted, however, on July 9, 2020, the trial court stayed the case- at 8e6 and the fiduciaries' request-pending conclusion of the appeal in Max I and, accordingly, the fee motion was "placed off calendar." 8e6 and the fiduciaries contend that the renewed fee motion Max and Rogari filed in August 2022, after that stay was lifted, did not comply with rule 3.1702. But rule 3.1702's deadlines apply to original motions for attorney fees. There is nothing in the language of the rule to suggest, nor do 8e6 and the fiduciaries cite any case authority supporting, that rule 3.1702 governs the timing of renewed motions for attorney fees. Indeed, in In re Marriage of Perow &Uzelac (2019) 31 Cal.App.5th 984, 992, this court held that where "[a]ll that . . . [a fee] motion did was renew [an] earlier and still pending requests for fees[,] . . . the court's implicit finding that [a litigant's] fee request was timely"-despite the renewed request being filed outside the timelines set forth in rule 3.1702-"in no way offends rule 3.1702's goal of 'provid[ing] time limits' for attorney fees motions." (In re Marriage of Perow &Uzelac, supra, at p. 992.)
B. The Court Erred by Declining To Decide the Merits of the Anti-SLAPP Motion When It Denied Fees
An award of attorney fees under the anti-SLAPP statute is mandatory and "wholly dependent upon a determination of the merits of the [underlying] SLAPP motion." (Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 218 (Pfeiffer); see § 425.16, subd. (c)(1) ["a prevailing defendant on a special motion to strike [under the anti-SLAPP statute] shall be entitled to recover that defendant's attorney's fees and costs," italics added].) "Where a plaintiff dismisses an action while an anti-SLAPP motion is pending, the defendant may nonetheless be entitled to recover attorney fees." (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 446; Pfeiffer, supra, at p. 218 ["a defendant who has been sued in violation of his or her free speech rights is entitled to an award of attorney fees [under the anti-SLAPP statute] . . . even if the matter has been dismissed prior to the hearing on that motion"]; accord, Liu v. Moore (1999) 69 Cal.App.4th 745, 751 (Liu).) "[A]ny other rule would deprive the true SLAPP defendant of statutorily authorized fees, frustrating the purpose of the statute's remedial provisions." (Pfeiffer, supra, at p. 218.)
Thus, "the trial court [was] required to rule on the merits" of Max and Rogari's anti-SLAPP motion (Pfeiffer, supra, 101 Cal.App.4th at p. 218) "as a predicate to a determination of [their] motion for attorney's fees and costs under . . . [the anti-SLAPP statute]." (Liu, supra, 69 Cal.App.4th at p. 751; see ibid. ["a defendant who is voluntarily dismissed, with or without prejudice, after filing a section 425.16 motion to strike, is nevertheless entitled to have the merits of such motion heard" for the purpose of adjudicating the fee request].) Having not had occasion to consider the merits of the anti-SLAPP motion in denying the motion as moot, the court's failure to assess these merits as the basis for determining the fee award was error.
We reverse the court's order denying the fee award and remand with directions that the court conduct "further proceedings on the issue of the merits of [the] motion to strike and, depending on the ruling thereon, [the] request for fees and costs." (Liu, supra, 69 Cal.App.4th at p. 748; Pfeiffer, supra, 101 Cal.App.4th at p. 219 ["[a]s the trial court . . . did not rule on the merits of the SLAPP motion, we remand the matter to the trial court for such a ruling"].) It is not the role of this court to rule on the merits of an anti-SLAPP motion in the first instance. (See Pfeiffer, supra, at p. 219; Liu, supra, at p. 752.) We thus do not reach the remaining issues the parties raise on appeal.
DISPOSITION
The order is reversed. Following remand, the trial court is instructed to conduct further proceedings adjudicating Max's and Rogari's entitlement to fees under section 425.16, subdivision (c) and issue a new order ruling on the fee motion. The parties are to bear their own costs on appeal.
We concur: CHANEY, J. BENDIX, J.