Central Escrow v. Martin
Filed 2/5/13 Central Escrow v. Martin CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
CENTRAL ESCROW, INC.,
Plaintiff and Appellant,
v.
GREG MARTIN et al.,
Defendants and Respondents.
B234166
(Los Angeles
County Super.
Ct.
No. BC448877)
APPEAL from
a judgment of the Superior Court
of
County, Michael C. Solner, Judge. Affirmed.
Henry M.
Lee Law Corporation, Henry M. Lee and Robert Myong for Plaintiff and Appellant.
Law Office
of Steven M. Goldsobel and Steven M. Goldsobel for Defendants and Respondents
Greg Martin, David M. Almaraz and Hamburg,
Karic, Edwards & Martin, LLP.
Excelus Law
Group, Inc., and William W. Bloch for Defendants and Respondents Jeenah Huh and
Audrey Soh.
Law Office
of Herbert Abrams and Herbert Abrams for Defendants and Respondents William W.
Bloch and Excelus Law Group, Inc.
Plaintiff
and appellant Central Escrow, Inc., appeals from four orders granting special
motions to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP
statute)
title="">[1] and an order awarding attorney fees in favor
of defendants and respondents Audrey Soh, Jeenah Huh, their attorney William W.
Bloch and his law firm Excelus Law Group, Inc., and their trial attorneys Greg
Martin, David M. Almaraz, and the law firm of Hamburg, Karic, Edwards &
Martin, LLP (HKEM) in this malicious prosecution action based on a sexual
harassment lawsuit. Central
contends: 1) Huh’s motion to strike and Bloch and
Excelus’s motion to strike were untimely, and the trial court lacked
jurisdiction to hear them; 2) Central
showed a probability of prevailing on its malicious prosecution claims; and
3) the trial court abused its discretion
in awarding attorney fees to Soh, Huh, Bloch, and Excelus.
We
hold the trial court did not abuse its discretion by allowing Huh, Bloch, and
Excelus to file their motions to strike, nor did the court lack jurisdiction to
hear their motions. We also conclude the
denial of attorney fees on the FEHA causes of action in the underlying case
precludes Central’s malicious prosecution action. The court did not abuse its discretion in
awarding attorney fees to Soh.
Therefore, the orders granting the motions to strike and awarding
attorney fees are affirmed.
I. Underlying Sexual Harassment Action
Soh
began working at Central’s Los Angeles branch as a receptionist in January
2006, and was eventually promoted to escrow assistant. She resigned her position in July 2007. Huh performed marketing work for Central from
2004 to August 2007.
On February 6, 2008, Soh and Huh
filed a complaint against Central and its employee Joseph Cho for sex
discrimination in violation of the Fair Employment and Housing Act (FEHA)(Gov.
Code, § 12900 et seq.), constructive termination, hostile work
environment, intentional infliction of emotional distress, and breach of duty
to prevent discrimination. Soh and Huh
were represented by Bloch and Excelus.
The operative amended complaint was filed on April 4, 2008.
Central and Cho filed motions for
summary judgment against Soh and Huh.
Soh and Huh opposed the motions.
In support of their oppositions, they filed their own declarations and
the declaration of former Central employee John Kim, who worked as an escrow
assistant until January 2008. After a
hearing, the trial court found triable issues of facts existed as to all causes
of action and denied the motions on March 18, 2009.
On August 6, 2009, Kim withdrew the
declaration that had been submitted in opposition to the motions for summary
judgment and recanted the statements in it.
He declared that he had agreed to sign the original statement as a favor
to Soh. When he read the declaration, he
told Bloch that some of the information was incorrect, but Bloch told him that
it did not have to be completely accurate.
Kim declared that he had been “distracted†by Bloch’s statements that
Central might owe him significant sums of money in unpaid wages. He stated, “I also thought William Bloch was
acting in my best interests so I trusted him that I should not really worry
about the contents of my Declaration before signing it.†He did not know his declaration contained so
many false statements until he read it more carefully later. The declaration recanted specific statements
in the previous declaration.
Attorneys Martin and Almaraz of the
law firm of HKEM associated in as trial counsel for Huh and Soh. A jury trial commenced on October 26,
2009. The jury found: Huh was not an employee of Central; Cho was
not a supervisor; Cho’s conduct was not severe and pervasive as to create a
hostile work environment; and Cho did not engage in conduct that was outrageous
as to Huh or Soh. Therefore, the trial
court entered judgment in favor of Central and Cho on November 3, 2009.
Central and Cho filed a motion
requesting attorney fees as authorized under the FEHA on the grounds that the
lawsuit was frivolous and vexatious.
Central and Cho claimed the women fabricated evidence, as shown by the
following facts: the complaint contained
false allegations of sexual advances that Soh and Huh later admitted were
untrue; Huh and her counsel knew that Huh was prohibited from working as an
employee of Central by law due to a criminal conviction; psychiatric reports
prepared shortly before trial were suspect, because they duplicated
declarations submitted in opposition to summary judgment; and John Kim’s
declaration recanting his original declaration reflected the frivolous nature
of the lawsuit.
Huh and Soh opposed the motion for
attorney fees on the ground that Central and Cho could not show the action was
unreasonable, frivolous, groundless, or vexatious. They argued that Central and Cho were
attempting to characterize the nature of the action based on one deposition
question. They also argued that there had
been a tenable legal argument that Huh’s employment through a separate
corporation was a sham. They stated that
the similarities between the psychologist’s reports and the women’s
declarations were simply a time-saving device by the psychologist’s clerical
staff. Soh and Huh asserted that Kim’s
second declaration was false and accused Central and Cho of witness tampering
and suborning perjury.
In support of the opposition, Huh
and Soh submitted a third declaration from Kim, which superceded his previous
declaration and stated that his original declaration was truthful. Kim stated that he signed the second
declaration when it was presented to him by a distant cousin, who still works
for Central, because the cousin said a supervisor at Central would embarrass
Kim at trial with his felony record.
Central and Cho filed a reply. The minute order reflects that after a
hearing on February 1, 2010, the trial court denied the motion for attorney
fees. No reporter’s transcript of the
hearing is contained in the record on the instant appeal.
II. Allegations of the Instant Malicious
Prosecution Complaint
On November 4, 2010, Central filed a
complaint against Huh, Soh, Bloch, Excelus, Martin, Almaraz, and HKEM alleging
malicious prosecution as follows. Defendants
each engaged in conduct including creating false pleadings without factual
basis, suborning perjury, and offering compensation to witnesses to commit
perjury. The underlying sexual
harassment complaint contained allegations which defendants knew were false,
including the allegation that Huh and Soh were compelled to provide sexual
favors at Central. Defendants knew their
claims were not legally tenable, because Huh was not an employee. Soh and the attorney defendants knew or
should have known that Soh suffers from personality disorders which caused her
to file the underlying complaint. The
attorney defendants suborned perjury by third party witnesses with promises of
compensation. The attorney defendants
suborned perjury from their expert psychologist by providing documents which
she relied upon and falsely stated at trial that she did not. The attorney defendants knew or should have
known that Huh and Soh’s claims had no merit and were devoid of factual support. Despite their knowledge, the attorney
defendants submitted false allegations in pleadings and manufactured false
discovery responses, witness declarations, and testimony.
III. Anti-SLAPP Motions and Subsequent
Proceedings
A. HKEM’s Anti-SLAPP Motion
Martin, Almaraz, and HKEM filed an anti-SLAPP motion on
January 14, 2011. They argued the denial
of the defense motion for summary judgment established probable cause to
prosecute the sexual harassment case as a matter of law. In addition, they argued that any reasonable
attorney would have considered the claims tenable at the time they associated
into the action due to the denial of the motion for summary judgment and after
investigating the law and the facts as they did. HKEM, Martin, and Almaraz were not aware of
any false testimony and never offered any fabricated testimony. Central cannot show they were aware of any
facts that led them to believe the claims lacked probable cause. The trial court’s denial of Central’s motion
for attorney fees also established probable cause for the sexual harassment
lawsuit.
B.
Opposition to Martin, Almaraz, and HKEM’s Anti-SLAPP Motion
In
opposition, Central did not dispute the anti-SLAPP statute applied. However, Central argued that it could
demonstrate a probability of prevailing on its claims, because there was no
probable cause to prosecute the sexual harassment complaint. The factual allegations of the complaint and
verified interrogatory responses were false.
Bloch and Excelus suborned perjury from Huh, Kim, and Dr. Elena
Konstat. All of which Martin, Almaraz,
and HKEM would have known from reviewing the pleadings and conducting a
reasonable investigation of the claims.
Evidence showed Huh was motivated by malice, and Soh had no intent to
file a lawsuit until she spoke with Huh.
Huh’s theory to be considered an employee of Central was legally
untenable. Central argued the rulings on
the summary judgment motions were irrelevant, because the declarations of Soh,
Huh, and Kim contained false statements.
Moreover, the ruling on the attorney fee motion was irrelevant, because
it was an ancillary ruling under a different standard.
C.
Soh’s Anti-SLAPP Motion
Soh
filed an anti-SLAPP motion on February 22, 2011. Soh argued the denial of the defense motion
for summary judgment in the sexual
harassment case established probable cause as a matter of law. The exception for materially false facts
submitted in opposition to summary judgment did not apply, because even
assuming Kim’s testimony had been false, there was no evidence that summary
judgment was denied based on Kim’s declaration.
Also, the denial of Central’s motion for attorney fees established that
the underlying action had foundation as a matter of law.
Soh submitted several declarations
in support of her anti-SLAPP motion, including one from Bloch. With respect to the trial court’s ruling on
the motion for attorney fees under FEHA, Bloch declared, “the Court denied
Central Escrow’s motion for attorney fees on February 1, 2010, finding no
support for the claims that Plaintiffs’ lawsuit was ‘unreasonable, frivolous,
groundless or vexatious,’ and in so doing, finding that the allegations against
me alleged in Central Escrow’s papers, that I suborned perjury and offered
money to a witness to perjure himself, were groundless.â€
D. Central’s
Opposition to Soh’s Anti-SLAPP Motion
Central filed an opposition to Soh’s
anti-SLAPP motion on substantially similar grounds as the opposition to Martin,
Almaraz, and HKEM. Once again, Central
did not dispute that the anti-SLAPP statute applied. However, Central argued it could demonstrate
a probability of prevailing on its claims, because there had been no probable
cause to prosecute the sexual harassment complaint. The factual allegations of the complaint and
verified interrogatory responses were false.
Central argued there was a genuine dispute as to which material facts
were untrue and whether Soh knew those facts were not true when she filed her
complaint and continued to prosecute the action. Central claimed that Soh’s inconsistent
allegations and statements were proof the claims were fabricated. Evidence showed Huh was motivated by malice,
and Soh had no intent to file a lawsuit until she spoke with Huh. Central argued the rulings on the summary
judgment motions were irrelevant, because the declarations of Soh, Huh, and Kim
were false. Moreover, Central argued the
ruling on the attorney fee motion was irrelevant, because it was an ancillary
ruling under a different standard.
E.
Rulings on Anti-SLAPP Motions of Soh, Martin, Almaraz, and HKEM
A hearing
was held on April 26, 2011, on the motions to strike of Soh, Martin, Almaraz,
and HKEM. The trial court found Central
could not establish a probability of prevailing on its claim for malicious
prosecution based on the summary judgment rulings in the underlying case
finding the existence of triable issues of fact and the denial of the motion
for attorney fees, which implied a finding that the action was not frivolous. The court entered an order granting the
anti-SLAPP motions of Soh, Martin, Almaraz, and HKEM on May 17, 2011.
F.
Huh’s Anti-SLAPP Motion and Bloch and Excelus’s Anti-SLAPP Motion
Huh filed
an anti-SLAPP motion on June 22, 2011, on similar grounds to those asserted by
Soh. Bloch and Excelus filed an
anti-SLAPP motion that day on similar grounds as well. Bloch and Excelus additionally argued the
women’s declarations showed there was probable cause to prosecute the action
when Bloch and Excelus made the decision to participate. Bloch and Excelus argued they were not aware
of any false testimony and Central could not show they had knowledge of any
perjury. Both motions were supported by
similar evidence to the previous motions.
G.
Central’s Opposition to the Motions of Huh, Bloch, and Excelus
Central
opposed the anti-SLAPP motions of Huh, Bloch, and Excelus on the grounds the
motions were untimely and they had not sought permission to file late
motions. Central asserted it could
establish a probability of prevailing, because the complaint alleged facts
proven to be false and the evidence showed Bloch had suborned perjury. Central argued the summary judgment rulings
in the underlying action were not determinative, because they were obtained
through fraud. In addition, Central
argued the ruling on the motion for attorney fees was limited to the FEHA
causes of action in the underlying action.
It did not, for example, address whether their claims for intentional
infliction of emotional distress were brought with probable cause. Central also argued the ruling on the motion
for fees did not preclude a subsequent malicious prosecution action, because it
was an ancillary ruling and not a decision based on the merits.
H.
Subsequent Proceedings
On July 1,
2011, Central filed a notice of appeal from the order entered on May 17,
2011, granting the anti-SLAPP motions of Soh, Martin, Almaraz, and HKEM.
Soh filed a
motion seeking attorney fees of $14,815 for work performed by the law firm of
Pflaster and Berman and $29,055 to Excelus for work performed by Bloch. A hearing was held on July 18, 2011. The trial court granted Soh’s attorney fee
motion with a slight reduction, awarding attorney fees of $12,015 to Pflaster
and Berman and $27,392 to Excelus.
Berman argued the original amount requested was reasonable, but the
trial court stated the reduced amounts awarded were based on experience as a
practitioner and a judge that the reasonable value of Berman and Pflaster’s
services was $12,015.
Central’s
attorney argued that attorney fees should not be awarded to Excelus, because
Bloch had never appeared in the malicious prosecution on behalf of Soh, nothing
showed that he was actually doing work on Soh’s behalf as opposed to for his
own case for which he was not entitled to recover, and there was no showing the
work of the two firms was not duplicative.
Berman responded the record was voluminous and Bloch’s assistance had
been critical.
The trial
court found that Bloch not only assisted in his own defense but in his
codefendants’. The court also found that
the block billing records, in addition to the court’s knowledge of reasonable
billing for this type of matter, was sufficient for the court’s purposes in
making an award of attorney fees.
At the same
hearing, the trial court granted the anti-SLAPP motions brought by Huh, Bloch,
and Excelus, based on the denial of summary judgment in the underlying
action. The court found the statutory
dates for filing an anti-SLAPP motion were triggered on April 26, 2012, when
motions to quash service of process were taken off calendar in light of the
court’s ruling on the other anti-SLAPP motions.
On July 25,
2011, Martin, Almaraz, and HKEM filed a motion seeking attorney fees of
$39,805. At some point, Martin, Almaraz,
and HKEM were awarded attorney fees totaling $39,685.
On August
25, 2011, Central filed a notice of appeal from the orders on July 18, 2011,
awarding attorney fees to Soh and granting the anti-SLAPP motions of Huh,
Bloch, and Excelus.
Huh, Bloch,
and Excelus filed a motion for attorney fees on August 25, 2011. At a hearing on October 17, 2011, the trial
court granted the motion for attorney fees filed by Huh, Bloch, and Excelus but
reduced the amounts requested and awarded as follows: $6,400 for fees of Bloch and Excelus, $4,000
for fees of Pflaster and Berman, and $18,000 for fees of the Abrams law firm in
representing Soh, Huh, Bloch, and Excelus.
On November
23, 2011, judgment was entered in favor of all defendants against Central. On March 14, 2012, this court consolidated
Central’s two appeals.
DISCUSSION
I. Standard of Review and Analytical
Framework
“In deciding an anti-SLAPP motion,
the trial court must ‘engage in a two-step process. First, the court decides whether the
defendant has made a threshold showing that the challenged cause of action is
one arising from protected activity. . . .
If the court finds such a showing has been made, it then determines
whether the plaintiff has demonstrated a probability of prevailing on the
claim.’ (Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)†(Johnson
v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1103 (
because the anti-SLAPP statute applies to malicious prosecution claims. (Daniels
v. Robbins (2010) 182 Cal.App.4th 204, 214-215 (Daniels).)
“‘[T]o establish a probability of
prevailing on the claim [citation], a plaintiff responding to an anti-SLAPP
motion must “‘state[] and substantiate[] a legally sufficient claim.’†[Citations.]
Put another way, the plaintiff “must demonstrate that the complaint is
both legally sufficient and
prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.â€
[Citations.] In deciding the
question of potential merit, the trial court considers the pleadings and
evidentiary submissions of both the plaintiff and the defendant [citation];
though the court does not weigh the credibility or comparative probative
strength of competing evidence, it should grant the motion if, as a matter of
law, the defendant’s evidence supporting the motion defeats the plaintiff’s
attempt to establish evidentiary support for the claim.’ (Wilson v. Parker, Covert & Chidester (2002)
28 Cal.4th 811, 821.)†(
“‘[A]lthough by its terms section
425.16, subdivision (b)(1) calls upon a court to determine
that the plaintiff will prevail on the claim†(italics added), past cases
interpreting this provision establish that the Legislature did not intend that
a court, in ruling on a motion to strike under this statute, would weigh
conflicting evidence to determine whether it is more probable than not that
plaintiff will prevail on the claim, but rather intended to establish a
summary-judgment-like procedure available at an early stage of litigation that
poses a potential chilling effect on speech-related activities.’ [Citation.]
‘[T]he court’s responsibility is to accept as true the evidence
favorable to the plaintiff.’
[Citation.] ‘[T]he defendant’s
evidence is considered with a view toward whether it defeats the plaintiff’s
showing as a matter of law, such as by establishing a defense or the absence of
a necessary element.’ [Citation.]†(Daniels,
supra, 182 Cal.App.4th at
p. 215.)
“We review an order granting an
anti-SLAPP motion de novo, applying the same two-step procedure as the trial
court. [Citation.] We look at the pleadings and declarations,
accepting as true the evidence that favors the plaintiff and evaluating the
defendant’s evidence ‘“only to determine if it has defeated that submitted by
the plaintiff as a matter of law.â€
[Citation.]’ [Citation.] The plaintiff’s cause of action needs to have
only ‘“minimal merit†[citation]’ to survive an anti-SLAPP motion. [Citation.]â€
(Cole v. Patricia A. Meyer &
Associates, APC (2012) 206 Cal.App.4th 1095, 1105 (
II. Malicious Prosecution
Central concedes a cause of action
for malicious prosecution is subject to an anti-SLAPP motion. However, Central contends it made a prima
facie evidentiary showing defendants lacked probable cause to file and pursue
claims against Central in the underlying action. We must disagree, based on the order in the
underlying action denying recovery of attorney fees under FEHA.
A. Probable Cause
Element of Malicious Prosecution
“To establish a cause of
action for malicious prosecution, a plaintiff must
the plaintiff’s favor, (2) prosecuted without probable cause, and (3) initiated
with malice.†(Franklin Mint Co. v.
Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 333.) Central also may prevail by showing that
defendants maliciously continued to prosecute the case against the company
without probable cause. (
favorably to Central.
“Probable cause exists when a
lawsuit is based on facts reasonably believed to be true, and all asserted
theories are legally tenable under the known facts. [Citation.]â€
(Cole, supra, 206 Cal.App.4th at p. 1106.)
A litigant lacks probable cause for her action if she relies on facts
which she has no reasonable cause to believe are true or seeks recovery based
on a legal theory which is untenable under the facts known to her. (Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 (
to the standard for determining whether a lawsuit is frivolous: whether ‘any reasonable attorney would have
thought the claim tenable . . . .’ (Sheldon Appel Co. v. Albert & Oliker
(1989) 47 Cal.3d 863, 885–886 (Sheldon Appel).)†(Cole,
supra, at p. 1106.)
“Probable cause, moreover, must
exist for every cause of action advanced in the underlying action. ‘[A]n action for malicious prosecution lies
when but one of alternate theories of recovery is maliciously asserted. . . .’ (Bertero v. National General Corp.
(1974) 13 Cal.3d 43, 57, fn. 5 [(Bertero)];
see Crowley v. Katleman (1994) 8 Cal.4th 666, 679, 695.)†(Soukup,
supra, 39 Cal.4th at p. 292.)
“The
probable cause element plays an essential role in cutting to the heart or
purpose of the tort of malicious prosecution--protection of the individual’s
interest in freedom from unreasonable and unjustified litigation. This element requires the trial court to make
an objective call as to the reasonableness of the defendant’s conduct; that is,
to determine whether, on the facts known to defendant, institution of the prior
action was legally tenable. If the prior
action was objectively reasonable, the malicious prosecution claim will
fail. (Sheldon Appel, supra, 47
Cal.3d at pp. 878–879.)†(
72 Cal.App.4th 1135, 1153 (Sierra Club
Foundation).)
well, absence of probable cause can be shown by proof that the initiator
commenced the prior action knowing that his or her claims were false. ([Bertero], supra, 13 Cal.3d at p. 50.) Reconciling Bertero with the objective
test for probable cause, the court in Sheldon Appel highlights the
distinction between a defendant’s subjective belief in the legal tenability of
a claim, as opposed to his or her disbelief in its factual predicates. (Sheldon Appel, supra, 47 Cal.3d at p.
880.) Probable cause does not depend on
the defendant’s subjective evaluation of the legal merits of the prior
action. But if defendant knows
that the facts he or she is asserting
are not true, then defendant’s knowledge of facts which would justify
initiating suit is zero, and probable cause is nonexistent.†(Sierra
Club Foundation, supra, 72 Cal.App.4th at pp. 1153-1154.)
question of probable cause is one of law, but if there is a dispute concerning
the defendant’s knowledge of facts on which his or her claim is based, the jury
must resolve that threshold question. It
is then for the court to decide whether the state of defendant’s knowledge
constitutes an absence of probable cause.
879–881; Axline v. Saint John’s Hospital & Health Center (1998) 63
Cal.App.4th 907, 917.)†(
Cal.App.4th at p. 1154.)
B. Denial of
Attorney Fees Motion in Underlying Action
Respondents contend that the denial
of Central and Cho’s motion for attorney fees on the FEHA causes of action in
the underlying complaint conclusively established probable cause existed for
pursuing the sexual harassment action.
In this case, they are correct.
“Attorney fees are allowable as
costs to a prevailing party when authorized by statute. (. . . §§ 1021, 1033.5, subd.
(a)(10)(B).) Government Code section
12965 authorizes an award of attorney fees and costs to the prevailing party in
any action brought under FEHA. Section
12965 provides, in pertinent part, ‘In actions brought under this section, the
court, in its discretion may award to the prevailing party reasonable attorney
fees and costs . . . .’ A trial court’s
award of attorney fees and costs under this section is subject to an abuse of
discretion standard. (Cummings v.
Benco Building Services (1992) 11 Cal.App.4th 1383, 1387.)†(Bond
v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921 (
“California courts have followed
federal law, and hold that, in exercising its discretion, a trial court should
ordinarily award attorney fees to a prevailing plaintiff, unless special
circumstances would render an award of fees unjust. A prevailing defendant, however, should be
awarded fees under the FEHA only ‘in the rare case in which the plaintiff’s
action was frivolous, unreasonable, or without foundation.’ (Rosenman v. Christensen, Miller, Fink,
Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 864 [(Rosenman)].)†(Young
v. Exxon Mobil Corp. (2008) 168 Cal.App.4th 1467, 1474 (
“The [United States Supreme Court in
Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421] defined
meritless as groundless or without foundation, rather than simply the fact that
the plaintiff ultimately lost. The court
also noted ‘vexatious’ does not imply that plaintiff’s subjective bad faith is
a necessary prerequisite to an award of attorney fees to defendant. [Citation.]
The court concluded a court may award defendant attorney fees if it
finds ‘the plaintiff’s action was frivolous, unreasonable, or without
foundation, even though not brought in subjective bad faith.’ [Citation.]â€
(Bond, supra, 50 Cal.App.4th at pp. 921-922.) A finding that the action never had a factual
basis because the plaintiff simply lied about what occurred constitutes a
finding that the action was “unreasonable,†“frivolous,†and “vexatious.†(Saret-Cook
v. Gilbert, Kelly, Crowley & Jennett (1999) 74 Cal.App.4th 1211,
1229-1230.)
“The court also sounded a cautionary
note: ‘In applying these criteria, it is
important that a district court resist the understandable temptation to engage
in post hoc reasoning by concluding
that, because a plaintiff did not ultimately prevail, his action must have been
unreasonable or without foundation. This
kind of hindsight logic could discourage all but the most airtight claims, for
seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one’s belief that he has
been the victim of discrimination, no matter how meritorious one’s claim may
appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery
or trial. The law may change or clarify
in the midst of litigation. Even when
the law or the facts appear questionable or unfavorable at the outset, a party
may have an entirely reasonable ground for bringing suit.’ (Christiansburg, supra, 434 U.S. at
pp. 421-422.)†(Bond, supra, 50
Cal.App.4th at p. 922.)
“Rosenman imposed ‘a nonwaivable requirement that trial
courts make written findings’ reflecting the criteria supporting an
in FEHA actions.’
(Rosenman, supra, 91 Cal.App.4th at p. 868.) Rosenman added that the trial court
‘should also make findings as to the plaintiff’s ability to pay
situation.’ (Id. at p. 868, fn.
42.)†(Young, supra, 168 Cal.App.4th at p. 1474.)
Even if the trial court finds that a
FEHA action against a defendant was frivolous, unreasonable, meritless or
vexatious, the court has discretion to reduce or deny attorney fees based on
the circumstances of the case. (
circumstances in which the court could appropriately reduce or deny a
prevailing defendant fees in a frivolous case, when it
tells us that the trial court must consider the plaintiff’s ability to pay
to financial ruin. (Rosenman, supra,
91 Cal.App.4th at p. 868, fn. 42[.])†(
trial court may also deny attorney fees to a defendant, even when the court
finds the FEHA claims against the defendant were frivolous, when the fee award
would benefit another defendant who is not entitled to a fee award. (Ibid.)
The denial of an attorney fees award
under the FEHA does not establish probable cause precluding a malicious
prosecution action in every case, because the trial court may exercise its
discretion to reduce or deny an award of attorney fees even when the court
believes the FEHA action was frivolous, meritless, unreasonable, or vexatious.
However, in this case, the issue
before the trial court on the motion for attorney fees in the underlying action
was whether the FEHA claims were frivolous, meritless, unreasonable, or
vexatious. Soh and Huh did not oppose
the motion on any other grounds. Bloch
declared the trial court expressly found no support that the lawsuit was
unreasonable, frivolous, groundless, or vexatious. Central has not provided a reporter’s
transcript of the trial or the hearing on the motion for attorney fees. In opposition to the motion to strike,
Central has not submitted any evidence to show the court did not make such a
finding or that the denial of attorney fees was based on other
circumstances. The trial court’s
findings are presumed to be supported by substantial evidence and binding on
the appellate court, unless reversible error appears on the record. (Kennedy v. Taylor (1984) 155
Cal.App.3d 126, 128.) Therefore, the
trial court’s express finding that Soh and Huh’s FEHA claims were not
unreasonable, frivolous, groundless, or vexatious establishes they had probable
cause to maintain their FEHA claims and Central cannot show a probability of
prevailing as to those claims.
Central has not argued that it can
show a probability of prevailing on any of the non-FEHA claims in light of the
finding as to the FEHA claims.
Therefore, the trial court properly granted the motions to strike.
III. Timeliness of Motions
Central contends the motions of Huh,
Bloch, and Excelus were untimely, because they were filed more than 60 days
after service of the complaint. We find
no abuse of discretion.
Section 425.16, subdivision (f),
provides in pertinent part: “The special
motion may be filed within 60 days of the service of the complaint or, in the
court’s discretion, at any later time upon terms it deems proper.†We review the trial court’s ruling for an
abuse of discretion that “‘exceeds the bounds of reason, all of the
circumstances before it being considered.’â€
(Morin v. Rosenthal (2004) 122
Cal.App.4th 673, 681.)
Even assuming the anti-SLAPP motions
were not timely filed, we find no abuse of discretion in the trial court
granting permission to proceed. Central
did not show that it suffered any prejudice as a result of any late filing of
the anti-SLAPP motions. The company
contends that it was prevented from opposing the late filing of the motions but
admits it was able to raise the issue of untimely filing as a ground to deny
the motions. The trial court exercised
its discretion to allow the motions.
Central also contends the anti-SLAPP
motions of Huh, Bloch, and Excelus should have been denied, because they had
already chosen to litigate the case by filing motions to quash service before
they filed anti-SLAPP motions. However,
a motion to quash service of process is not a
the action. (School Dist. of Okaloosa County v. Superior Court (1997) 58
Cal.App.4th 1126, 1131-1132.) Seeking a
decision on service of process was not litigation on the merits of the case and
did not waive their right to file anti-SLAPP motions. The trial court did not abuse its discretion
in permitting the anti-SLAPP motions to proceed.
IV. Jurisdiction
Central contends the trial court
lacked jurisdiction to hear the motions of Huh, Bloch, and Excelus, because
Central had appealed the trial court’s ruling granting the motions to strike of
Soh, Martin, Almaraz, and HKEM. This is
incorrect.
Section 916, subdivision (a), states
in pertinent part: “Except as
[otherwise] provided . . . , the perfecting of an appeal stays proceedings in
the trial court upon the judgment or order appealed from or upon the matters
embraced therein or affected thereby, including enforcement of the judgment or
order, but the trial court may proceed upon any other matter embraced in the
action and not affected by the judgment or order.â€
The merit of Central’s claims
against Huh, Bloch, and Excelus were not “embraced†within or affected by the
trial court’s rulings on the anti-SLAPP motions of Soh, Martin, Almaraz, and
HKEM, which were on appeal. The trial
court had jurisdiction to proceed as to the action against Huh, Bloch, and
Excelus.
V. Attorney Fees Awards
Central contends that the trial
court abused its discretion in awarding attorney fees to Soh. We find no abuse of discretion.
A. Standard of
Review
Section 425.16, subdivision (c)(1), provides, in pertinent
part, “a prevailing defendant on a[n anti-
recover his or her attorney’s fees
and costs.†“‘The language of the
requires a fee award to a defendant who brings a
successful motion to strike. Accordingly, our Supreme Court has held that
under this provision, “any SLAPP defendant who brings a successful
[Citation.] At the same time, ‘a
defendant who brings a successful special motion to
strike is entitled only to reasonable attorney
requested. [Citations.]’ [Citation.]
We review the trial court’s ruling for abuse of
v. Intelligator (2010) 185 Cal.App.4th 606, 620.) “‘The issue of a party’s entitlement to
attorney’s fees is a legal issue which we review de novo.’ [Citations.]â€
(Sands & Associates v.
Juknavorian (2012) 209 Cal.App.4th 1269, 1278.)
B.
Amount of Award
Central contends the total amount of
attorney fees awarded was unreasonable and duplicative. However, the trial court was in the best
position to assess the value of the attorneys’ services. The trial court exercised its discretion to reduce
the requested amounts and found the amount of the fee award to be consistent
with similar work in similar cases.
Preparing the anti-SLAPP motion required reviewing all of the
proceedings in the underlying action, including the summary judgment motion,
trial proceedings and post-trial proceedings.
We find no abuse of discretion.
C. Fees for Bloch’s Work
Central contends that Soh should not
have been awarded any amount for work performed by Bloch and Excelus. First, Central argues that Bloch and Excelus
could not ethically represent Soh, because they were codefendants. However, Central does not have standing to
object to Bloch and Excelus providing services to Soh. There is no evidence that Soh was not
properly informed of any conflict of interest.
In addition, a nonattorney client who prevails on an anti-SLAPP
motion is entitled to recover attorney fees, even if the attorney who provided
the services was a codefendant. (
(2005) 135 Cal.App.4th 510, 524-525.) No
formal association on the record is required in order for attorney fees to be
recoverable. (Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318,
1324-1325.)
Central’s second argument is that
Bloch and Excelus are not entitled to recover fees for work on their own
defense. In awarding attorney fees, the
trial court reduced the amount requested and awarded $27,392.50 for Bloch’s
services in connection with Soh’s anti-SLAPP motion. The trial court considered Central’s argument
that Bloch’s work was intended for his own defense, however, the court found
that Bloch also provided services for his codefendants for which he could
recover. The court expressly found that
the amount awarded was consistent with the court’s experience in similar cases
for similar work. The trial court was in
the best position to evaluate and allocate the value of the professional
services rendered in connection with the various motions to strike. We find no abuse of discretion in the award
of attorney fees for work on behalf of Soh.
None of the contentions raised in
the briefs concerning other attorney fee awards are properly before the court
in connection with this appeal.
The
orders granting the motions to strike and awarding attorney fees are
affirmed. Respondents Audrey Soh,
Jeenah Huh, William Bloch, Excelus Law Group, Inc., Greg Martin, David Almaraz,
and Hamburg, Karic, Edwards & Martin, LLP are awarded their costs on
appeal.
KRIEGLER, J.
We
concur:
ARMSTRONG, Acting P. J. MOSK, J.
is an acronym for ‘strategic lawsuit against public participation.’†(Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) An order granting or denying a special motion
to strike under Code of Civil Procedure section 425.16 is appealable. (Code Civ. Proc., § 904.1, subd.
(a)(13).) All further statutory
references are to the Code of Civil Procedure unless otherwise stated.
