RICHARD MARSHALL et al., Plaintiffs and Appellants, v. DANIEL WEBSTER, Defendant and Respondent.
C088240
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)
Filed 8/27/20
(Super. Ct. No. SCSCCVCVP017-001240)
CERTIFIED FOR PARTIAL PUBLICATION*
APPEAL from a judgment of the Superior Court of Siskiyou County, Laura J. Masunaga, Judge. Dismissed in part and affirmed in part.
Pacific Legal Group and Douglas A. Applegate for Plaintiffs and Appellants.
Paul Nicholas Boylan
Plaintiffs Richard and Susan Marshall sued for defamation and intentional infliction of emotional distress, alleging that defendant Daniel Webster made maliciously false and defamatory statements about them in an electronic book and on social media.
On May 11, 2018, the trial court granted defendant‘s special motion to strike the complaint pursuant to
On appeal, plaintiffs challenge the dismissal of their complaint and the award of attorney fees. In the published portion of this opinion, we conclude that the trial court‘s May 11 order granting defendant‘s special motion to strike the complaint was a final determination of the rights of the parties, thus constituting a judgment from which plaintiffs failed timely to perfect an appeal. With respect to the attorney fees order, we find no abuse of discretion and affirm.
BACKGROUND
On October 30, 2017, plaintiffs filed a verified complaint for damages alleging two causes of action, defamation and intentional infliction of emotional distress. They alleged that defendant, a reporter and author, maliciously and with reckless disregard for the truth, published false statements about them, their political activities, and about a lawsuit they filed against the town in which they live. These statements, which appeared on Facebook, and in an electronic book available on Amazon‘s Kindle service and on eBay, were alleged to have caused them severe emotional distress and damaged their reputations in the community.
On January 16, 2018, defendant filed a special motion “to strike the complaint . . . in its entirety, with prejudice and without leave to amend pursuant to”
On May 11, 2018, the court granted defendant‘s motion in a signed, filed-endorsed “Ruling Re Defendant‘s Special Motion Anti-SLAPP.” The five-page, single-spaced order thoroughly discussed the relevant factual and legal issues before ruling that “[d]efendant‘s special motion to strike the
The trial court made two entries on its register of actions in connection with the May 11 ruling. The first reads: “DECISION . . . 5/11/2018 [¶] Notes: Decision by [trial judge] as follows: Defendant‘s special motion to strike the verified complaint pursuant to
On June 15, 2018, defendant filed his motion for attorney fees.
On June 29, 2018, a one-page proposed order submitted by defendant‘s attorney “Granting Special Motion of Daniel Webster to Strike Plaintiffs’ Verified Complaint” was signed by the court and filed, but apparently was not served on plaintiffs.
On July 30, 2018, defendant served a “Notice of Entry of Judgment or Order” form, attaching the June 29, 2018 order.
On August 9, 2018, plaintiffs moved for reconsideration of the trial court‘s ruling on defendant‘s anti-SLAPP motion “on the grounds that the May 11, 2018 order contains significant improper assumptions, factual mistakes, and error [sic] of law.”
On August 29, 2018, the trial court ruled on defendant‘s fee motion. As discussed in greater detail below, the court granted the motion, but reduced defendant‘s fee award to $79,000 from a requested $121,815.
On October 25, 2018, plaintiffs noticed their appeal of three orders: the “5/11/2018 Ruling Re Defendant‘s Special Motion Anti-SLAPP[;] 6/29/2018 Order Granting Special Motion of Daniel Webster to Strike Plaintiff[s‘] Verified Complaint[; and the] 8/29/2018 Ruling Re Attorney Fees and Motion to Tax Costs.”
The trial court issued an order denying plaintiffs’ motion for reconsideration on November 15, 2018.
I
Plaintiffs’ Appeal of the Order Granting Defendant‘s Special Motion to Strike is Untimely
Defendant argues that plaintiffs’ appeal from the order granting his anti-SLAPP motion must be dismissed as untimely. Plaintiffs contest this, arguing that the clerk‘s service of the May 11 ruling did not trigger the deadline for appeal and that the filing of their motion for reconsideration on August 9 was timely and extended the appeal deadline. We agree with defendant.
A. Applicable law
“If a notice of appeal is filed late, the reviewing court must dismiss the appeal.” (
appeal or forever lose the opportunity to obtain appellate review.‘” (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46, italics omitted.)
B. Plaintiffs’ notice of appeal was not timely filed under rule 8.104
As plaintiffs concede, an order granting a special motion to strike under the anti-SLAPP statute is an appealable order. (
The order granting defendant‘s anti-SLAPP motion was filed on May 11, 2018, and the clerk served a signed, filed-endorsed copy of the ruling the same day.5 Accordingly, under
Plaintiffs disagree with this analysis. Citing Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, they argue that the clerk‘s service of a “memorandum of decision” on May 11 did not trigger
Because plaintiffs did not file their notice of appeal until October 25, 2018, unless the July 10 appeal deadline was extended under
C. The filing of plaintiffs’ motion for reconsideration did not extend the time in which to notice an appeal
Defendant argues that plaintiffs’ motion for reconsideration did not extend the time to appeal because it was filed more than 10 days after the clerk served written notice of entry of the May 11 order striking the complaint. (See
Plaintiffs argue in reply that the timeliness of their appeal must be assessed under
We find no merit to plaintiffs’ contentions and instead agree with defendant that the notice of appeal was untimely because the May 11 order granting his anti-SLAPP motion and striking the complaint was an appealable judgment, and that upon its entry and service by the clerk, the trial court lost jurisdiction to entertain or decide a motion for reconsideration. Filing of that motion thus could not extend the deadline for appeal. We explain below.
It is settled law that a motion for reconsideration is ineffectual if it is filed after entry of judgment. This is a corollary to the rule that
applications for interim orders. (
The rule is equally established that “if the trial court has no power to rule on a reconsideration motion after judgment, such a motion can have no effect
Plaintiffs do not respond directly to defendant‘s argument that the May 11 order granting defendant‘s special motion to strike was a judgment that divested the trial court of jurisdiction to entertain a motion for reconsideration. They instead focus on a related point, i.e., that the trial court purportedly had jurisdiction to reconsider the anti-SLAPP ruling because the May 11 order was not an order of dismissal. Although plaintiffs refer to the May 11 ruling as an “order dismissing plaintiffs’ case” in their opening brief, on reply they pivot to argue that under
aver, “the case is not dismissed and the court retains jurisdiction to reconsider its rulings.” (Original italics.) In making this argument, plaintiffs seek to elevate form over substance. We conclude that the May 11 order striking the complaint, coupled with the docket entry dismissing the action, was a judgment that satisfied
“In determining whether there has been a final judgment, sometimes a difficult question, [appellate courts] have long adhered to the rule ‘that the question, as affecting the right of appeal, is not what the form of the order or judgment may be, but what is its legal effect. [Citations.]’ [Citations.]” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 698-699.) Our Supreme Court has ruled that “granting a motion to strike under
Melbostad is instructive. In that case, the plaintiff had not appealed from either of two orders granting the defendants’ anti-SLAPP motions. Although the first order included dismissal language, as well as an express grant of the motion, the later one, issued after the trial judge granted a motion for
the complaint.” (Melbostad, supra, 165 Cal.App.4th at p. 994.) In finding the order granting defendants’ anti-SLAPP motion to be an order of dismissal under
Here, the relief sought in defendant‘s anti-SLAPP motion was plain: “to strike the complaint . . . in its entirety, with prejudice and without leave to amend pursuant to . . .
that a similar docket entry satisfied
In substance and effect, the May 11 order granting defendant‘s special motion to strike finally disposed of all causes of action against defendant, dismissed the complaint with prejudice, and invited him to file a motion for attorney fees. On this record, there was no need for a separate order of dismissal or judgment. Here, as in Melbostad, “the order granting defendants’ motion to strike was the final determination of the rights of the parties in an action. [Citations.] There was no issue left for future determination, and the order disposed of the entire case . . . .” (Melbostad, supra, 165 Cal.App.4th at p. 996.) As such, the May 11 order striking the complaint was a judgment from which no valid motion for reconsideration could lie and the time to appeal was not extended, even if the motion was timely filed under
Plaintiffs’ failure to timely file their notice of appeal by July 10, 2018, divests this court of jurisdiction to consider the merits of the trial court‘s ruling on the anti-SLAPP motion and we therefore must dismiss the appeal. In light of this conclusion, we do not reach plaintiffs’ other arguments.10
II
The Trial Court Did Not Abuse its Discretion in Awarding Attorney Fees
Plaintiffs contend the trial court abused its discretion in awarding attorney fees to defendant by departing from the basic fee for comparable legal
An award of attorney fees to a prevailing defendant on an anti-SLAPP motion is mandatory. (
award for abuse of discretion and will not set aside the award “‘absent a showing that it is manifestly excessive in the circumstances.‘” (Mallard, supra, at p. 544.) In this regard, we are mindful that “[t]he ‘experienced trial judge is the best judge of the value of professional services rendered in [her] court, and while [her] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.‘” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).) “An abuse of discretion is shown when the award shocks the conscience or is not supported by the evidence. [Citations.]” (Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 549-550.)
The amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the “lodestar” method. (Ketchum, supra, 24 Cal.4th at pp. 1135-1136.) Under that method, the court “tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) The lodestar calculation begins with a determination of the “reasonable hourly rate,” i.e., the rate “prevailing in the community for similar work.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The general rule is “[t]he relevant ‘community’ is that where the court is located.” (Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 71.)
before hiring out-of-town counsel from San Francisco. The court explained: “This evidence was overwhelming and uncontradicted; it simply provides no basis for the court‘s conclusion that ‘there is no adequate showing that it was impossible or even unusually difficult to find a local attorney to take the case.’ While we doubt a plaintiff needs to make anything more than ‘a good faith effort to find local counsel’ [citation] in order to justify the fees of out-of-town counsel, the evidence in the present case satisfies even the higher standard adopted by the trial court.” (Id. at pp. 398-399.)
Similarly, in Center For Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, the Court of Appeal held the trial court abused its discretion in using local San Bernardino rates in calculating the lodestar amount where “the only evidence on the issue of availability of local counsel showed plaintiffs’ need to retain out-of-town counsel.” (Id. at p. 619.) That evidence was a declaration from one of the plaintiffs in the action. The declarant stated he was both “‘actively involved in environmental and conservation issues in the San Bernardino Mountains‘” and “‘familiar with the local San Bernardino attorney market,‘” and to his knowledge “‘there [were] no local attorneys in San Bernardino County that regularly practice environmental law on behalf of environmental groups, will do such work on a contingent or reduced rate basis, and possess sufficient expertise . . . to represent . . . the . . . petitioners in this litigation.‘” (Id. at p. 618.) The court explained: “A plaintiff‘s threshold showing of impracticability . . . is not onerous [citation], and the [above-described] declaration is sufficient and competent evidence that plaintiffs acted in good faith and hiring qualified counsel in the San Bernardino area was impracticable.” (Ibid.; see also Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 249-250 [affirming trial court‘s use of out-of-town rates where one of the plaintiffs sought local counsel, who refused to undertake primary representation and stated in a declaration he knew of no other local counsel who would have done so].)
Here, defendant documented his efforts to secure local representation in the declaration he submitted in support of his fee motion. He stated that he
After reviewing the evidence, the trial court implicitly found that defendant had made the requisite “good faith effort” to secure local counsel, but that the local bar lacked the resources to handle the litigation on a contingency fee basis. The court said, “Defendant has submitted sufficient proof that he was unable to hire local counsel, as he is indigent, did not have a retainer, and was required to seek counsel from out of the area who would be willing to take his case on a contingent recovery.”
With respect to the hourly rates, the trial court, citing Horsford, supra, further found “there has been a sufficient threshold showing in this case that compelled defendant to seek an out-of-county attorney. Defendant contacted Janine Ogando, an experienced civil litigator who was familiar with the plaintiffs and, while willing to work with counsel, was not willing to be the attorney of record. Janine Ogando in [turn] was able to secure her professional colleague, Kathleen Clark, to appear as attorney of record, with Ogando to do much of the legal work. Both Ogando and Clark are experienced civil
litigators and their hourly fees at [a] rate of $450 and $500 are reasonable given their expertise and experience.”12
Absent an arbitrary ruling, case law gives trial judges great discretion in using their knowledge and experience to assess “‘the value of professional services rendered in his [or her] court,‘” even without the necessity of expert testimony. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) Indeed, under Ketchum, the trial court could have enhanced the hourly rate in recognition of the contingent nature of the representation. (See Ketchum, supra, 24 Cal.4th at p. 1132 [“The purpose of a fee enhancement, or so-called multiplier, for contingent risk is to bring the financial incentives
DISPOSITION
The appeal from the May 11 and June 29 orders granting the special motion to strike is dismissed. The order granting attorney fees is affirmed. Defendant is awarded his costs on appeal. (
KRAUSE, J.
We concur:
ROBIE, Acting P. J.
BUTZ, J.**
Notes
Undesignated rule references are to the
“Rules of Court have the force of law and are as binding as procedural statutes as long as they are not inconsistent with statutory or constitutional law. [Citation.]” (R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 205.)