OneTaste v. Netflix CA2/3
B342250
Cal. Ct. App.Jan 8, 2026Check TreatmentFiled 1/8/26 OneTaste v. Netflix CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ONETASTE INCORPORATED, B342250
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 23STCV27119)
v.
NETFLIX, INC.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Holly J. Fujie, Judge. Affirmed.
Landes Law Corporation and Ezra D. Landes for Plaintiff
and Appellant.
Horvitz & Levy, Mark A. Kressel, Jeremy B. Rosen; Davis
Wright Tremaine, Jonathan Segal, Rachel R. Goldberg, and
Samantha Lachman for Defendant and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
In April 2024, the trial court granted defendant and
respondent Netflix’s special motion to strike plaintiff and
appellant OneTaste’s defamation complaint as a strategic lawsuit
against public participation (SLAPP) under Code of Civil
Procedure section 425.16.1 OneTaste now appeals from the order
awarding statutory attorney fees and costs to Netflix as the
prevailing defendant. OneTaste contends the trial court lacked
jurisdiction to issue the award while the prior appeal was
pending. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2023, OneTaste filed a defamation lawsuit alleging that
Netflix released a documentary falsely implicating OneTaste in
the sexual assault and abuse of a former employee. Netflix filed
a special motion to strike the complaint, or an anti-SLAPP
motion, under section 425.16, subdivision (b)(1). In 2024, the
trial court granted Netflix’s motion. We affirmed the trial court’s
order. (OneTaste Inc. v. Netflix, Inc. (2025) 116 Cal.App.5th 174.)
In June 2024, while OneTaste’s appeal was pending,
Netflix moved for attorney fees and costs in the trial court.
Netflix requested $251,870.70 in attorney fees and $3,780.51 in
costs under section 425.16, subdivision (c)(1). Netflix argued that
its request was reasonable because OneTaste “made the process
needlessly more complex and difficult through its litigation
conduct” by asserting “a muddled claim for defamation,”
misrepresenting the applicable legal standards, making improper
legal arguments based on inadmissible evidence, and submitting
an untimely supplemental declaration and exhibits one business
day before the hearing on the motion.
1 All further statutory references are to the Code of Civil
Procedure.
2
OneTaste opposed the motion on the ground that the trial
court lacked jurisdiction to consider it. OneTaste argued that
since it had filed a notice of appeal from the order granting the
anti-SLAPP motion, section 916 automatically stayed all trial
court proceedings. OneTaste asserted “the merits of the appeal
and the fees motion [were] inextricably intertwined,” thus the
trial court could not address Netflix’s arguments about the
quality of OneTaste’s evidence and legal analysis until the appeal
was resolved. OneTaste also stated it was “preserv[ing] its
objections to the extent that Netflix’s motion seeks to recover fees
that cannot be recovered under the anti-SLAPP statute” and its
objections to the anti-SLAPP statute on constitutional grounds.
In September 2024, the trial court granted Netflix’s
attorney fee motion. The court concluded that under prevailing
case law, it retained jurisdiction to award fees while the appeal
from its order granting Netflix’s anti-SLAPP motion was pending.
The court further found that OneTaste presented no evidence
that Netflix’s requested fees and costs were unreasonable. The
court awarded Netflix its requested $251,870.70 in fees and
$3,780.51 in costs. OneTaste timely appealed.
DISCUSSION
I. Legal Principles and Standard of Review
A. Attorney fees under section 425.16
Defendants who prevail on anti-SLAPP motions are
entitled to attorney fees and costs. (§ 425.16, subd. (c).) “The fee-
shifting provision was apparently intended to discourage . . .
strategic lawsuits against public participation by imposing the
litigation costs on the party seeking to ‘chill the valid exercise of
the constitutional rights of freedom of speech and petition for the
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redress of grievances.’ (Id., subd. (a).)” (Ketchum v. Moses (2001)
24 Cal.4th 1122, 1131 (Ketchum).)
“In general, the party prevailing on a special motion to
strike may seek an attorney fees award through three different
avenues: simultaneously with litigating the special motion to
strike, by a subsequent noticed motion, or as part of a cost
memorandum . . . .” (Melbostad v. Fisher (2008) 165 Cal.App.4th
987, 992(Melbostad).) “Although a trial court’s ruling on the propriety of an attorney fees award is generally reviewed under an abuse of discretion standard, the determination of whether the trial court had the statutory authority to make such an award is a question of law that we review de novo.” (Carpenter v. Jack in the Box Corp. (2007)151 Cal.App.4th 454, 460
(Carpenter).)
B. Stays pending appeal
Section 916, subdivision (a) provides that, subject to
exceptions, “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.”
“ ‘[W]hether a matter is “embraced” in or “affected” by a
judgment [or order] within the meaning of [section 916] depends
on whether postjudgment [or postorder] proceedings on the
matter would have any effect on the “effectiveness” of the appeal.’
[Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35
Cal.4th 180, 189 (Varian).) However, “an appeal does not stay
proceedings on ‘ancillary or collateral matters which do not affect
the judgment [or order] on appeal’ . . . despite their potential
effect on the appeal.” (Id. at p. 191.)
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II. The Trial Court Retained Jurisdiction to Award
Attorney Fees While OneTaste’s Appeal Was
Pending2
OneTaste contends the trial court did not have jurisdiction
to award Netflix attorney fees because section 916 automatically
stayed all trial court proceedings when OneTaste appealed from
the order granting Netflix’s anti-SLAPP motion. We disagree.
“A statutory fee motion ‘does not create a new cause of
action . . .’ [citation], much less a new ‘action.’ It is a collateral
matter, ancillary to the main cause. [Citations.] It ‘ “seeks what
is due because of the judgment . . . .” ’ [Citation.]” (Serrano v.
Unruh (1982) 32 Cal.3d 621, 636–637 (Serrano).) An attorney fee motion is therefore “embraced in the action but is not affected by the order from which the appeal is taken. (Code Civ. Proc., § 916, 2 The trial court’s order granting Netflix’s anti-SLAPP motion did not expressly dismiss the complaint, nor does the record include a subsequently entered judgment of dismissal. Nonetheless, consistent with our conclusion that anti-SLAPP attorney fees are ancillary to the main cause of action, we conclude that we have jurisdiction over OneTaste’s appeal from the fee award under the collateral order exception to the one final judgment rule. (City of Colton v. Singletary (2012)206 Cal.App.4th 751
, 781–782 [finding anti-SLAPP attorney fee awards directly appealable because they are “ancillary” to main causes of action and direct payment of money by appellant to respondent]; see also Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014)230 Cal.App.4th 244
, 250–251 [fee order under § 425.16, subd. (c), appealable because order “dismissing a case on the basis of the anti-SLAPP statute” was “akin to a final judgment”;Melbostad, supra,
165 Cal.App.4th at
pp. 994–996 [order granting special motion to strike was written
dismissal disposing of entire case and therefore judgment under
§§ 577 & 581d].)
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subd. (a); [citation].)” (Bankes v. Lucas (1992) 9 Cal.App.4th 365,
369.) Accordingly, “[a]lthough a prevailing party at trial may not be the prevailing party after an appeal, it has been held that a motion for attorney fees is not premature despite the filing of a notice of appeal.” (Id. at p. 368; see also id. at p. 369 [award of attorney fees under Civ. Code, § 1717 is collateral, and proceeding to determine fees is not stayed by notice of appeal]; see also Korchemny v. Piterman (2021)68 Cal.App.5th 1032
, 1052 [same]; Domestic Linen Supply Co., Inc. v. L J T Flowers, Inc. (2020)58 Cal.App.5th 180
, 187 [“It is well settled that the filing
of an appeal does not stay a motion for attorney fees.”].)
Consistent with this principle, trial courts retain
jurisdiction to resolve attorney fee motions under section 425.16,
subdivision (c), while appeals from orders on the merits are
pending. Indeed, in Robertson v. Rodriguez (1995) 36
Cal.App.4th 347, this court held that the trial court “properly concluded it had jurisdiction to proceed [on the defendant’s attorney fee motion under section 425.16, subdivision (c),] because the trial court ‘retains jurisdiction to entertain a motion for attorney fees despite an appeal’ ” from the order granting the defendant’s anti-SLAPP motion. (Id. at p. 360, quoting Nazemi v. Tseng (1992)5 Cal.App.4th 1633, 1639
[“In regard to the
relationship between a motion for attorney fees and the effect of
an appeal, it has been held that a motion for attorney fees is not
premature despite a notice of appeal.”].) Even in the context of a
plaintiff who has successfully opposed an anti-SLAPP motion,
and can only recover attorney fees by showing the motion was
frivolous or solely intended to cause delay, courts have concluded
that a defendant’s appeal of the trial court’s order on the merits
does not divest the trial court of jurisdiction to consider the
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plaintiff’s fee motion while the appeal is pending. (Carpenter,
supra, 151 Cal.App.4th at p. 461, quoting Doe v. Luster (2006)145 Cal.App.4th 139
, 144 [“ ‘Even if the order granting the
[special motion to strike under § 425.16] has been appealed, the
trial court retains jurisdiction to entertain a motion for attorney
fees.’ ”].)
We find no basis to come to a contrary conclusion in this
case. To award attorney fees to a prevailing defendant under
section 425.16, subdivision (c), trial courts need only determine
whether the requested fees were reasonable. (See Ketchum,
supra,24 Cal.4th at pp. 1141–1142 [“[O]nce [the anti-SLAPP] motion was successful, attorney fees were mandatory.”].) The inquiry does not require the trial court to pass upon the merits of the arguments made in the anti-SLAPP motion or the merits of the complaint, such that the trial court’s decision could contradict the outcome of an appeal on the underlying motion. (Cf. Varian, supra,35 Cal.4th at p. 193
[appellate reversal of the trial court’s
order denying anti-SLAPP motions was “irreconcilable” and
“inherently inconsistent with” trial court’s judgment for plaintiff
following trial].) The attorney fee proceedings did not require the
trial court to resolve “ ‘ “issues going to the validity or
correctness” ’ ” of its order granting Netflix’s special motion to
strike.
That Netflix cited OneTaste’s litigation conduct to justify
the fees incurred did not mean the merits would have to be
relitigated in the trial court. An opposing party’s litigation
tactics are relevant to determining the reasonableness of hours
worked for purposes of a fee award. (Serrano, supra, 32 Cal.3d at
p. 634, fn. 18 [fee award should “reflect the litigiousness of the
opposition in the hours required by plaintiff to respond”]; see
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Calvo Fisher & Jacob LLP v. Lujan (2015) 234 Cal.App.4th 608,
627 [“the amount of attorney fees incurred by Calvo & Clark in
pursuit of its fee case was increased by Lujan’s own conduct”].)
While Netflix in its fee motion may have characterized
OneTaste’s arguments and evidence as erroneous and irrelevant,
the trial court did not have to assess the merits of OneTaste’s
position to determine whether the extent or nature of its
litigation conduct warranted Netflix’s requested fees.
OneTaste’s cited authorities do not support its argument.
Most of the cited cases held that perfected appeals divested the
trial court of jurisdiction to conduct proceedings on matters other
than attorney fee motions. (See, e.g., Varian, supra,35 Cal.4th at p. 191
[judgment following trial]; Kinard v. Jordan (1917)175 Cal. 13, 15
[motion to dismiss for want of prosecution]; Davis v. Thayer (1980)113 Cal.App.3d 892, 911
[motion to set aside default].) These cases do not undermine the principle that statutory attorney fee awards, generally or in the anti-SLAPP context specifically, are collateral orders and section 916 does not apply to divest the trial court of jurisdiction to entertain a statutory fee motion. (See Fairbanks v. Superior Court (2009)46 Cal.4th 56, 64
[“a judicial decision is not authority for a point that was not actually raised and resolved”]; McConnell v. Advantest America, Inc. (2023)92 Cal.App.5th 596
, 611 [“A case
is not authority for a proposition not considered therein or an
issue not presented by its own particular facts.”].)
OneTaste’s reliance on Barry v. State Bar of California
(2017) 2 Cal.5th 318, is also unavailing. In Barry, a trial court
granted an anti-SLAPP motion after finding it lacked subject
matter jurisdiction over the attorney discipline issues that were
central to the complaint. (Id. at pp. 322–323.) The plaintiff
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argued this finding necessarily meant the court also lacked
jurisdiction to rule on a subsequent motion for attorney fees. The
Barry court rejected the argument. The court reasoned that a
“trial court that strikes a cause of action arising from protected
activity on the ground that the court lacks subject matter
jurisdiction has the incidental power to require the plaintiff to
compensate the defendant for the undue burden of defending
against the nonmeritorious claim.” (Id. at p. 327.) The decision
did not, as OneTaste suggests, state any rule limiting a trial
court’s ability to consider an attorney fee motion after granting
an anti-SLAPP motion to the circumstances presented in Barry.
In fact, our high court acknowledged that its holding was
consistent with the conclusion that courts lacking jurisdiction
over the merits of an action “may nevertheless consider ‘collateral
issues’ such as whether the prevailing party should be awarded
its litigation expenses . . . .” (Id. at p. 326.)
The attorney fee proceedings under section 425.16,
subdivision (c), were collateral to the merits of the appeal from
the trial court’s order granting Netflix’s anti-SLAPP motion. The
trial court retained jurisdiction to issue the fee award while
OneTaste’s appeal on the merits was pending.
III. OneTaste Has Forfeited Any Other Arguments
Below, OneTaste asserted the trial court awarded at least
$8,900 in fees to Netflix that are not recoverable under the anti-
SLAPP statute. Yet, rather than briefing the argument after
stating it, OneTaste merely indicated it was identifying the
argument to “preserve” its objection. The trial court concluded
Netflix’s hours and rates were reasonable because OneTaste had
not presented any evidence to support its contention. (See
Premier Medical Management Systems, Inc. v. California Ins.
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Guarantee Assn. (2008) 163 Cal.App.4th 550, 563–564 [party opposing motion under § 425.16, subd. (c), has burden to demonstrate fees claimed are inappropriate or unreasonable].) On appeal, OneTaste again indicates it merely seeks to “preserve” the same argument, without contending the trial court erred in finding that OneTaste failed to meet its evidentiary burden. OneTaste has therefore forfeited any argument regarding the reasonableness of the fee award on appeal. (Denham v. Superior Court (1970)2 Cal.3d 557, 564
[trial court’s judgment or order is presumed correct and error must be affirmatively shown]; see also Cabral v. Martins (2009)177 Cal.App.4th 471, 492
[rejecting claim that fee award was
excessive where plaintiff “made no effort to demonstrate that the
trial court abused its discretion in determining (implicitly) that
[fees were] reasonable under the circumstances of this case”].)
OneTaste also contends the trial court should have rejected
Netflix’s attorney fee motion on the ground that application of the
anti-SLAPP statute to OneTaste’s claims violated its
constitutional rights. We previously rejected OneTaste’s
constitutional objections to the anti-SLAPP statute in our opinion
affirming the order granting Netflix’s special motion to strike,
and we need not address the issue again here.
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DISPOSITION
The order is affirmed. Respondent to recover costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EGERTON, Acting P. J.
HANASONO, J.
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