Opinion
A155165 A155187 A155899
12-20-2019
TATYANA E. DREVALEVA, Plaintiff and Appellant, v. DEPARTMENT OF INDUSTRIAL RELATIONS, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG17881790)
These consolidated appeals arise from an order partially granting the Department of Industrial Relations' (DIR) special motion to strike under Code of Civil Procedure section 425.16, a judgment of dismissal following an order sustaining a demurrer without leave to amend, and orders after judgment denying attorney's fees and costs. Plaintiff contends the court erred by: (1) partially granting the DIR's special motion to strike (the anti-SLAPP motion) and awarding it prevailing party attorney's fees; ( 2) denying her motion to take discovery under section 425.16, subdivision (g); (3) sustaining the DIR's demurrer without leave to amend; (4) denying her motion requesting the issuance of a writ of mandate compelling the DIR to release records under the Public Records Act (Gov. Code, § 6250 et seq.) (PRA) and denying her motion for attorney's fees and costs thereunder; and (5) denying her motion for prevailing plaintiff attorney's fees and costs under section 425.16, subdivision (c). We affirm.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
I. FACTUAL BACKGROUND
Plaintiff worked as a cardiac monitor technician for Alameda Health System (AHS). On or around August 25, 2013, she had a conversation with a supervisor, Mr. Harding, wherein she asked why she was classified as a part time employee when she worked full time, and why she did not receive shift differentials, overtime payments, or the required number of paid breaks during shifts. Harding told her he would think about her questions, but nothing changed. On September 5, 2013, plaintiff sent Harding a letter (the September 5th letter) with the same questions. Two days later, she was fired due to alleged "discrepancies between acceptable employment standards and those [plaintiff] exhibited during [her] employment with AHS."
The factual allegations are taken from plaintiff's complaint.
Plaintiff filed a retaliation claim with the DIR's Division of Labor Standards Enforcement (DLSE), which was assigned to Deputy Labor Commissioner Daly. Plaintiff also filed a wage claim with the DIR seeking overtime wages, rest period premiums, differential pay, and waiting time penalties.
Daly investigated plaintiff's retaliation claim. Her supervisor, Ms. Healy, also corresponded with plaintiff. Daly informed plaintiff that AHS stated that plaintiff had failed to meet acceptable employment standards because her negligence allegedly seriously harmed a patient. In July 2013, a patient died while plaintiff was working, but plaintiff alleged that she was not negligent because the doctor on duty at the time verified her reading of the patient's electrocardiogram. AHS produced an email dated September 4, 2013 (the September 4th email) that supported its assertion that it decided to terminate plaintiff before she authored the September 5th letter. The DIR concluded that plaintiff could not prove the reason for her termination was a pretext. Consequently, the DIR found that AHS terminated plaintiff for a legitimate, non-retaliatory reason. Healy informed plaintiff by email in December 2016 that her retaliation claim would be denied. A formal letter, dated December 29, 2016, set forth the DIR's full determination and denial of plaintiff's claim, although plaintiff alleges she did not get this letter until after she filed a lawsuit against the DIR in federal court.
Deputy Labor Commissioner Santos considered plaintiff's wage claim and determined that the DIR lacked jurisdiction because AHS was a county hospital. He advised plaintiff of this determination and that the DIR would not take any further action. He also explained that plaintiff could pursue her wage claim "through any other appropriate forum."
Plaintiff sued the DIR, alleging that it committed libel in communications with her by stating that: (1) plaintiff committed negligence towards a patient; (2) plaintiff missed an appointment with the DIR; (3) the DIR sent plaintiff a final determination letter; (4) plaintiff knew she was going to be fired prior to sending her September 5th letter; and (5) the DIR did not have jurisdiction over wage claims from county employees. She also alleged that the DIR committed negligence by: (1) failing to contact all of the witnesses she listed; (2) recklessly disregarding as a witness the doctor who worked with plaintiff when a patient passed away in July 2013; (3) processing her retaliation claim for the extraordinary amount of time of over three years; (4) attempting to force her to withdraw her retaliation claim; (5) failing to send her a determination letter, thus depriving her of an opportunity to appeal; and (6) intentionally failing to recognize fraud and negligence committed by AHS.
II. PROCEDURAL HISTORY
In response to plaintiff's complaint, the DIR filed a demurrer, a motion to strike, and an anti-SLAPP motion. After the DIR filed its anti-SLAPP motion, the court denied plaintiff's motion for leave to conduct discovery.
The court issued a tentative ruling stating that it intended to grant the DIR's anti-SLAPP motion, and it took the demurrer, motion to strike, and anti-SLAPP motion under submission after hearing. The court then continued each motion and requested supplemental briefing for the anti-SLAPP motion on: (1) whether the DIR's negligent failure to send her a determination letter was a protected activity; (2) whether the court could strike an entire cause of action where some allegations are based on protected activity and others are not; (3) whether plaintiff claimed that the DIR's failure to send her a determination letter violated a mandatory statutory duty, and if so, what duty; and (4) how the hourly rate in DIR's attorney's fees request was calculated.
Meanwhile, before the court held its final hearing on the demurrer, motion to strike, and anti-SLAPP motion, plaintiff filed a "Notice of Petition: Petition for a Writ of Mandate and a Declaratory Relief to Compel DIR to Issue Public Records" seeking to compel the DIR to release public records under the PRA (PRA motion), and a separate motion for prevailing party attorney's fees and costs thereunder.
On August 17, 2018, the court granted the DIR's anti-SLAPP motion with respect to plaintiff's libel claim and certain allegations in her negligence claim, finding those claims arose from protected activity and plaintiff had not established a probability of success on the merits because the DIR was immune from suit under Government Code sections 815.2, subdivision (b), 818.8, 821.6, and 820.2, and the DIR's acts were privileged under Civil Code section 47, subdivision (b). The court awarded the DIR prevailing party attorney's fees. The court then sustained the DIR's demurrer to what remained of plaintiff's negligence claim without leave to amend based on the same privilege and government immunities, and it dismissed the motion to strike as moot. The court denied plaintiff's PRA motion. The court's order on the demurrer dismissed the entire action.
On August 21, 2018, plaintiff filed a notice of appeal, indicating appeal from an order or judgment under section 904.1, subdivision (a)(3)-(13). In an attachment, she specified that she was appealing the court's orders: (1) sustaining the demurrer; (2) partially granting the anti-SLAPP motion and sustaining the DIR's written objections to plaintiff's evidence; (3) awarding the DIR attorney's fees under section 425.16; (4) dismissing the motion to strike; (5) denying the PRA motion; (6) ruling on two of plaintiff's requests for judicial notice; and (7) overruling plaintiff's objections to the DIR's method of service of the anti-SLAPP motion.
On August 29, 2018, plaintiff filed another notice of appeal indicating appeals from a judgment of dismissal after an order sustaining a demurrer, an order or judgment under section 904.1, subdivision (a)(3)-(13), and, under the "other" box, plaintiff wrote that she was appealing from the court's rulings on her motion to take discovery and the demurrer. In an accompanying attachment, plaintiff explained that she filed another notice of appeal because she was unsure whether her prior notice was sufficient to appeal the demurrer ruling.
On September 10, 2018, plaintiff filed a motion for prevailing plaintiff's attorney's fees under section 425.16. On October 4, 2018, the trial court denied this motion and plaintiff's motion for prevailing party attorney's fees under the PRA. Plaintiff filed a third notice of appeal from these orders. This court consolidated the three appeals.
With her reply brief in two of the consolidated appeals, plaintiff filed a motion to augment the record to include a March 2013 employee welcome letter from AHS. This motion to augment is denied because plaintiff did not establish good cause excusing the motion's untimeliness and because the letter was not part of the record below (see former Local Rule 7(b)-(c)). (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
III. DISCUSSION
Plaintiff is a pro se litigant with a deeply-held perception that she has been the victim of injustice, but she demonstrates a limited understanding of the role (or rules) of this court in considering such claims.
To begin, we reiterate the following well-established rules: (1) an appealed judgment is presumed correct, and appellant bears the burden of overcoming the presumption of correctness (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865); (2) when an appellant fails to support an issue with reasoned argument and citations to authority, we treat the point as waived (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979); (3) if a party fails to support an argument with the necessary citations to the record, the argument will be deemed forfeited (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; Cal. Rules of Court, rule 8.204(a)(1)(C)); and (4) a party who chooses to represent himself on appeal " 'is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys' " (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247).
Plaintiff improperly demands that we apply less stringent standards to her as a pro se litigant, and her briefing fails to include even a single citation to the record. We give plaintiff no greater consideration than any other party before this court. (Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247.) Rather than strike her improper briefing in its entirety, however, we affirm the lower court's judgment based on the absence of reversible error. (Cal. Rules of Court, rule 8.204(e).) A. The Anti-SLAPP Motion
The Legislature enacted section 425.16 to prevent the chilling effect of meritless lawsuits that force an individual into litigation for exercising his or her right of petition or free speech. "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) The purpose is to "weed[] out, at an early stage, meritless claims arising from protected activity." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)
"At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing." (Baral, supra, 1 Cal.5th at p. 396.) We review the trial court's ruling on an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.)
1. Prong One: Claims Arising from Protected Activity
Actions subject to dismissal under section 425.16 include those based on: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
To ascertain whether a claim arises from protected conduct, "the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) "A claim arises from protected activity when that activity underlies or forms the basis for the claim." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) The only means by which a moving defendant can satisfy "the ['arising from'] requirement is to demonstrate that the defendant's conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)." (Id. at p. 1063.)
In this case, plaintiff's claims arise from actions taken during DIR proceedings on her retaliation and wage claims. The DIR, including the DLSE (which is a division thereof headed by the Labor Commissioner), is an executive body, and DIR investigations of retaliation and wage claims are proceedings recognized by law. (Labor Code, §§ 50, 79, 98.7, 98.) Statements made in such proceedings fall under the anti-SLAPP statute because these are proceedings of a governmental administrative body. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 [the constitutional right to petition includes seeking administrative action].) The DIR argues that plaintiff's libel claim arises from protected statements made by the DIR while investigating and determining her wage and retaliation claims, and we agree.
In its anti-SLAPP order, the trial court summarized the libelous statements and acts that it culled from plaintiff's introductory allegations and then summarized the five libelous statements and the six negligent acts that plaintiff listed in the "summary" section of her complaint. Plaintiff argues that in creating the summary of her introductory allegations, the trial court unlawfully amended her complaint to include additional injurious acts and statements. As plaintiff confirms that she challenges only the five statements and six acts in the "summary" section of her complaint, we limit our discussion to these allegations.
In contrast, the DIR does not argue that all of its allegedly negligent acts constitute protected activity. The trial court found that the following acts of the DIR were not protected as they do not constitute statements or writings made before or in connection with an issue under review in an official proceeding: (1) failing to contact all of the witnesses that plaintiff listed; (2) recklessly disregarding the doctor who worked with plaintiff when a patient passed away in July 2013 as a witness; (3) processing plaintiff's retaliation claim for the extraordinary amount of time of over three years; (4) failing to send plaintiff a determination letter, thus depriving her of an opportunity to appeal; and (5) intentionally failing to recognize fraud and negligence committed by AHS towards plaintiff. On appeal, the DIR argues that only statements and writings made in the course of its investigations, or in connection with issues under its consideration or review, are protected. We thus accept for purposes of this appeal that five of the six negligent acts plaintiff alleged do not arise from protected activity.
We reach a different conclusion regarding plaintiff's allegation that the DIR negligently attempted to get her to withdraw her retaliation claim. The uncontradicted declaration of DIR investigator Daly established that Daly informed plaintiff in writing in August 2014 that the DIR would not render a favorable determination on plaintiff's claim, Daly wrote that plaintiff could withdraw her claim if she preferred that the DIR not file a public report, and Daly sent plaintiff the claim withdrawal form. As such, this allegedly negligent act arose from protected activity—written statements made before or in connection with an issue under review in an official proceeding. (§ 425.16, subd. (e)(1)-(2).)
2. Prong Two: Probability of Success on the Merits
The trial court found that plaintiff could not show a probability of success on the merits because the DIR is immune from tort liability under Government Code sections 815.2, subdivision (b), 818.8, 821.6, and 820.2, as well as Civil Code section 47, subdivision (b). We agree that statutory immunities and privileges bar plaintiff's suit.
Under the California Tort Claims Act (Gov. Code, § 810 et seq.), public entities are immune from tort liability except as provided by statute (id., § 815, subd. (a)); public employees are liable for their torts except as otherwise provided by statute (id., § 820, subd. (a)); public entities are vicariously liable for the torts of their employees acting within the scope of their employment (id., § 815.2, subd. (a)); and public entities are immune where their employees are immune, except as otherwise provided by statute (id., § 815.2, subd. (b)).
Plaintiff alleged direct statutory liability against the DIR only with respect to her negligence claim under Civil Code section 1714, but this general statute cannot be used to impose direct tort liability against a public entity. (All Angels Preschool/Daycare v. County of Merced (2011) 197 Cal.App.4th 394, 400 (All Angels).) Plaintiff also alludes in her briefing to direct liability for the DIR's negligent acts under Government Code section 815.6. She did not allege this liability, nor did she demonstrate that she sought to amend her complaint below, but even if she had, she could not prevail.
Government Code section 815.6 provides a basis to sue a public entity for direct liability only in certain circumstances. (All Angels, supra, 197 Cal.App.4th at p. 400.) "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." (Gov. Code, § 815.6.) Three elements are necessary to establish liability. First, an enactment must impose a mandatory duty that is obligatory in its directions to the public entity rather than merely discretionary or permissive. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498.) Next, the enactment must be designed to protect against the particular kind of injury the plaintiff suffered, and, finally, the plaintiff's injury must have been proximately caused by the public entity's failure to discharge its mandatory duty. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898 (Guzman).)
Plaintiff contends that Labor Code section 98.7 created the operative mandatory duties. Under this statute, the DIR was required to investigate retaliation claims, but the manner of performing the investigation is left to the DIR's discretion. (Labor Code, § 98.7, subd. (b) .) The DIR similarly retained discretion to determine whether a claim has merit. (Id., § 98.7, subd. (c)-(d)(1).) The DIR's statement that plaintiff could withdraw her claim if she did not want a negative determination to be public record did not violate any identifiable mandatory duty under Labor Code section 98.7.
At the time plaintiff submitted her retaliation claim, this subdivision of Labor Code section 98.7 provided: "Each complaint of unlawful discharge or discrimination shall be assigned to a discrimination complaint investigator who shall prepare and submit a report to the Labor Commissioner based on an investigation of the complaint. . . . The investigation shall include, where appropriate, interviews with the complainant, respondent, and any witnesses who may have information concerning the alleged violation, and a review of any documents that may be relevant to the disposition of the complaint. . . . The investigation report submitted to the Labor Commissioner or designee shall include the statements and documents obtained in the investigation, and the findings of the investigator concerning whether a violation occurred. The Labor Commissioner may hold an investigative hearing whenever the Labor Commissioner determines, after review of the investigation report, that a hearing is necessary to fully establish the facts . . . ." (Labor Code, § 98.7, former subd. (b), italics added.)
At the time plaintiff submitted her retaliation claim, Labor Code section 98.7, former subdivision (c) provided, "If the Labor Commissioner determines a violation has occurred, he or she shall notify the complainant and respondent and direct the respondent to cease and desist from the violation and take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of reasonable attorney's fees associated with any hearing held by the Labor Commissioner in investigating the complaint, and the posting of notices to employees. . . ." Labor Code section 98.7 subdivision (d)(1) stated, "If the Labor Commissioner determines no violation has occurred, he or she shall notify the complainant and respondent and shall dismiss the complaint."
Lacking a basis to impose direct liability against the DIR, plaintiff's claim depends on the imposition of vicarious liability. (Gov. Code, § 815.2, subd. (a).) But DIR employees, and hence the DIR, are immune for the acts over which plaintiff sues.
Pursuant to Government Code section 821.6, "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." This statute has been primarily applied to immunize prosecuting attorneys and similar individuals, but it is not restricted to such personnel and applies to all employees of a public entity, including those who prosecute administrative disciplinary proceedings. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 756-757; Javor v. Taggart (2002) 98 Cal.App.4th 795, 808-811 [acts of employee of the Uninsured Employers Fund in seeking reimbursement from an uninsured employer fell within Government Code section 821.6's immunity].) This immunity has also been extended to numerous torts other than false imprisonment or false arrest. (Cappuccio, Inc. v. Harmon (1989) 208 Cal.App.3d 1496 (Cappuccio) [defamation]; Javor, at pp. 808-811 [slander and clouding of title, intentional infliction of emotional distress, and negligence].)
"California courts construe section 821.6 broadly in furtherance of its purpose to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits." (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1048.) Thus, Government Code section 821.6 has been found to cover the act of filing or prosecuting a judicial or administrative complaint and acts and statements made in investigations preliminary to such proceedings, even if formal action is not ultimately pursued. (Richardson-Tunnell v. Schools Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1062, overruled on another ground in Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 815, fn. 8; Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1291-1293 [statements in a press release concerning an investigation were part of the prosecution process and immune]; Amylou R. v. County of Riverside, (1994) 28 Cal.App.4th 1205, 1210-1211 [statements made by police officers to the plaintiff in the course of an investigation were incidental to the investigation and immune]; Cappuccio, supra, 208 Cal.App.3d at pp. 1498, 1500-1502 [immunity applied to a statement that the plaintiffs were guilty of underweighing fish by an investigator for the Department of Fish and Game]; Richards v. Department of Alcoholic Beverage Control (2006) 139 Cal.App.4th 304, 317-318 [immunity applied to statements made by defendant's employees during investigation of liquor license violations and preparation for formal proceedings to remedy these violations]; Kayfetz v. State of California (1984) 156 Cal.App.3d 491 [immunity applied to publication of charges and disciplinary action by the Division of Medical Quality of the Board of Medical Quality Assurance].)
In the administrative proceedings at issue, the DIR investigated plaintiff's claims to determine whether they warranted further administrative or judicial action. (Labor Code, §§ 98.7, subd. (b)-(d)(1), 98.) The written statements over which plaintiff sues were made by DIR employees as part of the prosecution process. Further, the statements were made during investigations within the scope of employment. An employee acts in the course and scope of his employment when he is engaged in work he was employed to perform, or when the act is incident to his duty and is performed for the benefit of his employer, not to serve his own purposes or convenience. (Mazzola v. Feinstein (1984) 154 Cal.App.3d 305, 311.) Plaintiff's complaint and the DIR's uncontradicted evidence establish that the statements at issue were made during wage and retaliation claim investigations by employees responsible for conducting these investigations with the ultimate purpose of providing a basis for the Labor Commissioner to determine whether to take action against the employer. (Labor Code, §§ 98, 98.3, 98.7, subds. (b)-(d).). Plaintiff does not plead, or even argue, that the employees' statements served their own purposes. Under Government Code section 821.6, the DIR is immune.
The statements at issue are also privileged under Civil Code section 47, subdivision (b) as broadcasts made "in any other official proceeding authorized by law." This "privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation [or official proceeding]; and (4) that have some connection or logical relation to the action." (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955.) Courts recognize that statements made in connection with administrative proceedings and government investigations are privileged. (Lemke v. Sutter Roseville Medical Center (2017) 8 Cal.App.5th 1292 [Civil Code section 47, subdivision (b)'s privilege applied to allegedly disparaging statements a hospital made about a nurse to the California Board of Registered Nursing in connection with the hospital's internal investigation and in an official proceeding before the Board]; Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1547 [same privilege applied to statements communicated by personnel to officials of the California Department of Corrections and Rehabilitation as part of an internal investigation concerning the plaintiff's alleged wrongdoing].) The trial court correctly granted in part the DIR's anti-SLAPP motion.
Because the statements at issue are immune under Government Code sections 815.2, subdivision (b) and 821.6 and privileged under Civil Code section 47, subdivision (b), we need not address Government Code section 820.2's discretionary act immunity.
3. Procedural Challenges to the anti-SLAPP motion
Having determined that DIR's anti-SLAPP motion was properly granted in part, we briefly address the procedural issues plaintiff raises.
First, plaintiff asks us to decide whether a represented party can be sanctioned for using the wrong method of service for reply papers under section 1005, subdivision (c). The DIR served plaintiff with its reply by regular, rather than overnight mail, and the trial court denied plaintiff's objection thereto for lack of prejudice. But plaintiff does not appeal this ruling, instead requesting that we answer this question for future litigants. This court does not issue advisory opinions. (Nisei Farmers League v. Labor & Workforce Development Agency (2019) 30 Cal.App.5th 997, 1022-1023 (Nisei Farmers League).)
Next, although conceding that section 425.16 does not contain a deadline for the trial court to decide an anti-SLAPP motion, plaintiff requests that we create one. This court has no power to impose a procedural deadline not present in the statute. (Western/California, Ltd. v. Dry Creek Joint Elementary School Dist. (1996) 50 Cal.App.4th 1461, 1488.)
Finally, plaintiff asks us to confirm that section 425.16 is silent with respect to when the party opposing the anti-SLAPP motion must receive the motion after a complaint is filed. But plaintiff does not argue that section 425.16 requires the opposing party to receive the motion within a certain time or that any such timeframe was breached here. Again, this court does not give advisory opinions. (Nisei Farmers League, supra, 30 Cal.App.5th at pp. 1022-1023.)
We summarily reject plaintiff's assertions that objections to evidence can only accompany a motion for summary judgment or adjudication; that the trial court erred in treating assertions of fact in her opposing brief as argument, not evidence, where the assertions were not accompanied by a sworn declaration under penalty of perjury (§ 2015.5; Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 941-942 [declarations that meet the requirements of § 2015.5 are admissible in an anti-SLAPP motion]); and that the court discounted her requests for judicial notice when the record shows that the trial court granted these requests.
4. The Discovery Ruling
Before the DIR filed an anti-SLAPP motion, plaintiff served special interrogatories, a request for production of documents, and requests for admission. She challenges the trial court's denial of her motion to take this discovery after the anti-SLAPP motion triggered a discovery stay.
Generally, discovery is closed once a motion to strike under section 425.16 has been filed. (§ 425.16, subd. (g).) However, the trial court may allow discovery limited to the issues raised by the motion to strike upon "a timely and proper showing in response to the motion to strike." (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868.) The "proper showing" includes "good cause" for the requested discovery. (§ 425.16, subd. (g).) "Good cause" means only discovery relevant to the plaintiff's burden of establishing a reasonable probability of prevailing on the claim. (§ 425.16 subd. (b)(3).) Discovery that is not relevant to a defense asserted in the anti-SLAPP motion is not permitted. (Burke, Anti-SLAPP Litigation (The Rutter Group 2018) 2:55; Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 922.) A trial court's decision to disallow discovery will not be disturbed unless it is "arbitrary, capricious, or a patently absurd determination." (Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 617.)
No abuse of discretion occurred here. Plaintiff's special interrogatories targeted information about statements AHS made to the DIR explaining the reason for plaintiff's termination (who communicated the reason, the dates and persons involved in the communications, what AHS said about plaintiff's alleged negligence, what AHS said it did to investigate the alleged negligence, and who communicated with plaintiff regarding her termination before her September 5th letter). She sought AHS correspondence to the DIR regarding her termination, AHS's September 4th email, and all internal DIR documents regarding her case investigation. Finally, she asked the DIR to confirm that the following facts were true: the DIR communicated with AHS regarding the termination; AHS stated plaintiff had committed medical negligence that harmed a patient; AHS stated there was a September 4th email from plaintiff's supervisor to human resources asking advice about how to terminate plaintiff; and plaintiff knew that her employment would be terminated before her September 5th letter.
Plaintiff sued the DIR for libel and negligence. The DIR did not argue in its anti-SLAPP motion that plaintiff could not prevail because the statements were true or because she could not establish that the acts she alleged occurred. Instead, the DIR argued that its acts were immune and privileged under Government Code sections 815.2, subdivision (b), 821.6, 820.2, and 818.8, and Civil Code section 47, subdivision (b). It also argued that plaintiff could not state a claim for direct liability under Government Code section 815.6 because Labor Code section 98.7 imposed permissible rather than mandatory duties. Plaintiff argued that good cause existed for the discovery because she had a constitutional right of access to information concerning the conduct of the people's business and a right to access public records under the PRA. Because she did not establish that the discovery she sought was targeted to defeating the DIR's legal defenses, the trial court properly denied her motion.
5. The Attorney's Fees Award to the DIR
The trial court awarded the DIR attorney's fees as the prevailing party on its anti-SLAPP motion. A prevailing defendant on an anti-SLAPP motion is entitled to mandatory attorney's fees. (§ 425.16, subd. (c).) The amount of attorney's fees awarded is often computed in accordance with the familiar "lodestar" method. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135-1136 (Ketchum).) Under this method, "[t]he 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.) We review the grant of attorney's fees to a prevailing defendant under section 425.16 for abuse of discretion. (Id. at p. 1322.)
Plaintiff makes the following challenges to the trial court's attorney's fees award: (1) the DIR unreasonably inflated its fees through miscalculation; (2) the government cannot recover attorney's fees when it is represented by an attorney who is a government employee; and (3) the trial court erred in allowing recovery for 21 hours of attorney work at $250 an hour. We reject each challenge.
First, by merely referring us to her briefing in the trial court and by failing to cite to the record, plaintiff does not properly raise the argument that the DIR unreasonably inflated its fees through miscalculation. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 ["Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived"].)
The DIR sought recovery for 27 hours of work at $400 an hour, for a total of $10,800, although it mistakenly stated the total as $12,800 in its briefing below. Plaintiff's miscalculation argument is in any event irrelevant because the trial court awarded only $250 an hour for 21 hours of work for a total of $5,250. As plaintiff is appearing in pro per, we appreciate the DIR's representation at oral argument that it does not intend to collect the attorney's fee award from plaintiff.
Next, plaintiff does not establish that the trial court abused its discretion in rendering the attorney's fee award to the DIR. Her citations to Trope v. Katz (1995) 11 Cal.4th 274 (Trope) and Ellis Law Group, LLP v. Nevada City Sugar Loaf Prop., LLC (2014) 230 Cal.App.4th 244 (Ellis Law Group) do not convince us that the government cannot receive attorney's fees when represented by an attorney whom it employs. In Trope, the Supreme Court held that an attorney acting in propria persona could not recover attorney's fees under Civil Code section 1717. The statute's use of the terms "incurred" and "attorney's fees" implies the existence of an attorney-client relationship (i.e., a party receiving and paying for professional services from a lawyer). (Trope, at pp. 280-281.) A self-represented litigant does not pay attorney's fees or become liable to pay them in exchange for legal representation, and thus cannot recover these fees. (Ibid.) In Ellis Law Group, the court similarly found that a law firm could not recover attorney's fees for its contract attorney's work because the attorney was essentially a member of the firm, and an attorney's representation of the law firm defendant to which he or she belongs is analogous to an attorney acting in propria persona as each represents his own interests. (Ellis Law Group, at pp. 252-260.)
In contrast, in PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1093 (PLCM Group), the Supreme Court held that attorney's fees could be recovered for in-house counsel's work under Civil Code section 1717. Unlike self-represented litigants, in-house attorneys, like private counsel, do not represent their own personal interests and are not seeking remuneration simply for lost opportunity costs that could not be recouped by a nonlawyer. (Ibid.) Further, "[a] corporation represented by in-house counsel is in an agency relationship, i.e., it has hired an attorney to provide professional legal services on its behalf." (Ibid.) We agree with the DIR that an attorney working in-house with the government is akin to an attorney working in-house with a private company, and he or she does not represent his or her own interests in suits against the government. (Ibid. ["The payment of a salary to in-house attorneys is analogous to hiring a private firm on a retainer"].)
Finally, the $5,250 award of attorney's fees was reasonable and supported by the record. Plaintiff does not argue that $250 was an unreasonable hourly rate, but instead contends that the trial court should have determined counsel's actual hourly salary. In PLCM Group, the Supreme Court rejected a similar argument under Civil Code section 1717, noting "nothing in [the statute] compels such an approach." (PLCM Group, supra, 22 Cal.4th at p. 1097.) Similarly, nothing in section 425.16 compels such an approach, and the trial court did not abuse its discretion by using the approved lodestar method. (See Ketchum, supra, 24 Cal.4th at p. 1131.)
The trial court's award for 21 hours of work was also reasonable. The DIR submitted a declaration from counsel stating that he spent 10 hours on the moving papers, six hours on the reply, and five hours on the supplemental briefing and hearing. The parties do not cite authority addressing how a trial court should approach an attorney's fees award where a defendant succeeds in striking some allegations in a cause of action but not others after the Supreme Court clarified in Baral that an anti-SLAPP motion could be used in this manner. But, before Baral, where counsel's work on successful and unsuccessful causes of action overlapped, the court looked to the defendant's relative success on the motion in achieving his or her objective, and the court could reduce the amount of attorney's fees awarded for partial success if appropriate. (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 344-345.)
The DIR sought recovery for six additional hours of work related to plaintiff's motion to take discovery and continue hearings on the demurrer and anti-SLAPP motions, but the court did not allow recovery for these hours.
Here, counsel's work on the successful libel claim and the successful and unsuccessful negligence allegations largely overlapped. In its initial briefing, the DIR argued that all of the acts that plaintiff sued over were subject to section 425.16, and the DIR did not break down its briefing allegation by allegation. Even after the trial court requested supplemental briefing on the mixed cause of action issues raised by plaintiff's negligence claim, the DIR's supplemental brief contained only minimal paragraphs specific to one of plaintiff's six negligence allegations. As the trial court noted, the DIR prevailed in large part on its motion. On this record, and in the absence of some indication that the time spent attempting to defeat the five negligence allegations specifically was segregable or distinctly identifiable, we cannot say that the court erred in failing to discount the fee request to account for them. B. The Demurrer
We reject plaintiff's request that we rule for "all future SLAPP litigants" that the filing of an anti-SLAPP motion cannot bar discovery where the documents sought are also public records under the PRA as plaintiff provides no convincing argument or authority to support this request.
After the trial court granted the DIR's anti-SLAPP motion, plaintiff's remaining negligence allegations were that the DIR failed to contact witnesses; it disregarded a key witness; it processed her claim for an excessive duration; it did not send a determination letter to her mailing address; and it intentionally failed to recognize the fraud and negligence AHS committed against her. The trial court sustained the DIR's demurrer to plaintiff's negligence cause of action without leave to amend, finding that plaintiff failed to state a claim for direct liability and various statutory immunities barred the imposition of vicarious liability. The trial court then dismissed the action in its entirety. We affirm this ruling.
Plaintiff argues that section 581, subdivision (f)(1) prevented the trial court from dismissing the action without a party motion, but this argument is not convincing. Section 581 sets forth nonexclusive means for dismissing a complaint. (§ 581, subd. (f)(1) [allowing dismissal "[e]xcept where Section 597 applies, after a demurrer to the complaint is sustained without leave to amend and either party moves for dismissal"], subd. (m) [section 581 does not contain an exclusive enumeration of the court's power to dismiss]; Sousa v. Capital Co. (1963) 220 Cal.App.2d 744, 755 [section 581's provisions are not exclusive; the trial court had inherent power to enter a judgment of dismissal after plaintiffs failed to amend their complaint within the time allotted].) Further, an appellate court may treat an order sustaining a demurrer without leave to amend and dismissing the action as a final judgment of dismissal (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699), plaintiff treated the trial court's order as such, and plaintiff cannot show prejudice from dismissal given our review of her appeals and affirmance of the trial court's orders after dismissal on the merits.
1. Standard of Review
When a trial court sustains a demurrer, we review the complaint independently to determine whether it states a valid cause of action, accepting all factual allegations as true. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We construe the allegations liberally and draw all reasonable inferences in the plaintiff's favor. (Coleman v. Medtronic, Inc. (2014) 223 Cal.App.4th 413, 422.) When a court sustains a demurrer without leave to amend, we review for abuse of discretion any determination that amendment could not cure the defects and reverse only if the plaintiff bears his or her burden of establishing a reasonable possibility that amendment could cure the defects. (Brown v. Deutsche Bank National Trust Co. (2016) 247 Cal.App.4th 275, 279.)
2. Analysis
When addressing claims of government immunity, generally, a court first determines whether the defendant owes a duty to the plaintiff before determining whether the defendant is immune. (Caldwell v. Montoya (1995) 10 Cal.4th 972, 978, fn. 3 [describing the " 'duty before immunity' " doctrine].) Plaintiff pled a negligence claim against the DIR under Civil Code section 1714, but, again, this statute cannot impose direct tort liability on the DIR. (All Angels, supra, 197 Cal.App.4th at p. 400.) The trial court thus correctly recognized that plaintiff cannot sue the DIR for negligence.
On appeal, plaintiff argues that she has stated or can state a claim under Government Code section 815.6. To invoke Government Code section 815.6, plaintiff must specifically plead the particular enactment that creates a mandatory duty. (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1349.) Her complaint contains only two references to Government Code section 815.6 and fails to properly identity an enactment creating a mandatory duty. Nonetheless, because plaintiff argues that she can amend and that Labor Code section 98.7 imposed mandatory duties that the DIR violated, we consider whether she establishes a reasonable probability of curing the defects in her pleading.
As previously explained, three elements are necessary to invoke Government Code section 815.6. An enactment must impose a mandatory duty that is obligatory in its directions to the public entity rather than merely discretionary; the enactment must be designed to protect against the particular kind of injury that the plaintiff suffered; and the plaintiff's injury must have been proximately caused by the public entity's failure to discharge its mandatory duty. (Guzman, supra, 46 Cal.4th at p. 898.)
Here, Labor Code section 98.7 imposed a mandatory duty on the DIR to investigate retaliation complaints, but the manner of conducting the investigation and the ultimate determination of whether a violation occurred fell within the DIR's discretion. (Labor Code, § 98.7, subds. (b)-(d).) Allegations that the DIR failed to interview all relevant witnesses and failed to recognize AHS's negligence and fraud (i.e., found no violation occurred) thus cannot establish a claim under Government Code section 815.6.
Similarly, plaintiff cannot show that the DIR had a mandatory duty to notify her of its determination by mail. The DIR was required to notify a claimant if it rejected his or her retaliation claim, but the statute contains no requirement that notification occur by mail. (Labor Code, § 98.7, subd. (d).) The DIR notified plaintiff that her claim would be rejected by email in December 2016, and, having received this notice, plaintiff sued the DIR in federal court on December 29, 2016.
Plaintiff also asserts that the DIR violated a mandatory duty to timely determine whether her claim had merit. The language of Labor Code section 98.7 supports this argument. "The Labor Commissioner shall notify the complainant and respondent of his or her determination under subdivision (c) or paragraph (1) of subdivision (d), not later than 60 days after the filing of the complaint." (Labor Code, § 98.7, former subd. (e).) However, to establish a claim, plaintiff must also prove her injury was the type the statute intended to prevent and proximate cause. (Guzman, supra, 46 Cal.4th at p. 898.) Here, we need not address the second prong of this test because plaintiff cannot establish proximate cause.
To establish proximate cause, the plaintiff must first show that a public entity's violation of a mandatory duty was a cause in fact of the plaintiff's injury. (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352.) Because a cause in fact analysis often results in a broad liability (id. at p. 353 ["the purported [factual] causes of an event may be traced back to the dawn of humanity"]), the court must also engage in an analysis of various considerations of policy that limit an actor's responsibility for the consequences of his conduct. (Id. at p. 353.) Ordinarily proximate cause is a question of fact, but where the only reasonable conclusion that can be drawn from the facts is an absence of causation, the question is one of law. (Ibid.)
The only reasonable conclusion to be drawn from the facts alleged is that plaintiff cannot establish proximate cause. Plaintiff's alleged injuries were caused by AHS's termination. Because she lost her position at AHS, she lost wages and health and life insurance. She moved to Russia because of the lost health insurance, and, as a result, she suffered a lost opportunity for study and career advancement in the U.S., a lost opportunity to purchase a home and vehicle in the U.S., she incurred medical expenses and other debt, and she endured pain and suffering from these losses. But the DIR determined that plaintiff's retaliation claim lacked merit, and when she filed it and during the ensuing proceeding, she did not have to exhaust administrative remedies under Labor Code section 98.7 to sue for Labor Code violations. (Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, 331-332; Satyadi v. West Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022, 1032-1033 [2013 amendments to the Labor Code expressly stating that exhaustion of administrative remedies under Labor Code section 98.7 is not required clarified rather than changed existing law]; Labor Code § 98.7, subd. (g), added by Stats. 2013, ch. 732, § 3, effective January 1, 2014 [exhaustion of administrative remedies is not required].) The DIR's failure to render its denial of plaintiff's retaliation claim in 60 days thus was not a cause in fact of her alleged injuries, and therefore not a proximate cause.
Finally, plaintiff argues that the DIR violated a mandatory duty to create an investigation report of her retaliation claim. (Labor Code, § 98.7, subd. (b) [the investigator shall "prepare and submit a report to the Labor Commissioner" that includes "statements and documents obtained in the investigation, and the findings of the investigator concerning whether a violation occurred"].) However, plaintiff attaches an email to her complaint wherein DIR employee Healy informed plaintiff that she had reviewed the investigation report for plaintiff's claim and sent the report to the Assistant Chief Commissioner, and Healy pasted the report's conclusion in the email to plaintiff. We accept as true the contents of exhibits attached to a complaint. (See Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 504-505; SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83.) As such, plaintiff cannot establish a reasonable probability that amendment would allow her to state a claim under Government Code section 815.6.
Nor can plaintiff pursue her claim against the DIR on a theory of vicarious liability. The DIR's allegedly negligent, injurious acts all arose from its investigation and determination of plaintiff's retaliation and wage claims. For the reasons previously set forth in our affirmance of the trial court's anti-SLAPP ruling, these acts are privileged under Government Code sections 821.6 and 815.2, subdivision (b). C. Denial of Plaintiff's "Petition" for the Disclosure of Public Records and Request for Attorney's Fees and Costs
Plaintiff challenges the trial court's ruling that the DIR's motion to strike under section 435 was moot in light of its ruling on the anti-SLAPP motion and demurrer. We summarily reject this challenge because this ruling did not harm plaintiff (Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 431 [appellants are entitled to challenge only injurious trial court errors]), and because the motion was moot in light of the trial court's other rulings.
Plaintiff made her first PRA request on March 22, 2018, and the DIR replied on April 18, 2018. She made an additional PRA request on April 19, 2018, and the DIR informed her that it needed a two-week extension to respond. On May 24, 2018, plaintiff filed her PRA motion. In this motion, plaintiff also stated that she was looking for costs and attorney's fees under the PRA.
On June 13, 2018, the DIR responded to plaintiff's supplemental request. On July 19, 2018, plaintiff filed a motion for prevailing party attorney's fees and costs wherein she conceded that her friend had picked up the public records. The trial court denied the PRA motion on August 17, 2018 because the PRA requires that a party seeking to compel the release of improperly withheld public records file a complaint or verified petition in the superior court and plaintiff filed no such petition or complaint; plaintiff did not establish the required manner of service for a petition on the DIR; she did not establish that the disclosure of documents she sought was substantively warranted; and she was not a prevailing party entitled to attorney's fees under the PRA. The trial court denied plaintiff's additional motion for attorney's fees and costs on October 4, 2018.
Plaintiff provides a laundry list of requests for relief with respect to the PRA motion, but, in essence, she requests that we find that the trial court should have treated her motion as a verified petition for writ of mandate under the PRA and declared her the prevailing party on this petition. With respect to her first request, plaintiff's opening brief is not supported by reasoned argument, authority, or citations to the record. Plaintiff accordingly forfeited this issue on appeal. (Jones v. Superior Court, supra, 26 Cal.App.4th at p. 99 ["Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived"].)
Plaintiff concedes that she has the public records requested, and she does not ask this court to remand this matter for the trial court to decide her PRA motion on the merits.
With respect to plaintiff's request for prevailing party attorney's fees and costs, under Government Code section 6259, former subdivision (d), "The court shall award court costs and reasonable attorney's fees to the requester should the requester prevail in litigation filed pursuant to this section." We review the trial court's determination that a litigant is a prevailing party under the PRA for abuse of discretion, and we defer to any factual findings made by the trial court in connection with the ruling if they are supported by substantial evidence. (Garcia v. Bellflower Unified School Dist. Governing Bd. (2013) 220 Cal.App.4th 1058, 1064 (Garcia).)
In determining whether a plaintiff in a PRA action has prevailed, courts have found that a plaintiff "prevails" when a public record is disclosed only because the plaintiff filed an enforcement action. (Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1391.) Some courts have also determined that a PRA plaintiff may be a prevailing party entitled to attorney's fees, despite the lack of a favorable judgment or other court action, if the lawsuit was a catalyst in motivating the defendant to provide the primary relief sought. (Garcia, supra, 220 Cal.App.4th at p. 1066; Rogers v Superior Court (1993) 19 Cal.App.4th 469, 482; Belth v Garamendi (1991) 232 Cal.App.3d 896, 901.) The DIR urges us to apply the former test and plaintiff the latter. The distinction between these tests does not matter here, however, because plaintiff's argument fails even under a catalyst theory.
The DIR produced some documents in response to plaintiff's first public records request, and, although it was late in providing a response to her supplemental request, it never refused to provide the public records. In addition, although plaintiff filed her PRA motion before the DIR's supplemental production, as the trial court recognized, her motion was subject to a number of procedural challenges, and the court ultimately denied it. Under these circumstances, the trial court could have properly found that plaintiff's PRA motion was not a catalyst in motivating the DIR to disclose public records. The court accordingly did not abuse its discretion in denying plaintiff's request for attorney's fees. D. The Motion for Prevailing Plaintiff Costs and Attorney's Fees under section 425.16
On October 4, 2018, the trial court denied plaintiff's additional motion for attorney's fees and costs under the PRA because it was repetitive of the request made in the PRA motion; plaintiff, a self-represented litigant, was not entitled to attorney's fees; plaintiff was not the prevailing party under the PRA; and the court lacked jurisdiction over the motion because of plaintiff's appeal. Because the trial court did not abuse its discretion in determining that plaintiff was not a prevailing party under the PRA, we need not address the remainder of the parties' arguments with respect to this order.
Plaintiff's final challenge in these consolidated appeals is to the trial court's order denying her request for costs and attorney's fees under section 425.16. She argues that she is entitled to these fees and costs because she partially prevailed on the DIR's anti-SLAPP motion. We disagree.
Section 425.16, subdivision (c) provides that "[i]f the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5." "Frivolous in this context means that any reasonable attorney would agree the motion was totally devoid of merit." (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 450.) We review an order awarding or denying attorney's fees pursuant to section 425.16, subdivision (c) for abuse of discretion. (Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 469-472.)
No abuse of discretion occurred. The DIR succeeded in large part on its anti-SLAPP motion. Some of plaintiff's negligence allegations survived, but the trial court's initial inclination to grant the entire motion and its request for supplemental briefing suggests that the resolution of the motion was not predetermined or obvious. Under these circumstances, the trial court did not abuse its discretion in finding that the DIR's motion was not frivolous or solely intended to delay. Furthermore, because plaintiff represented herself, she cannot recover attorney's fees (see Trope, supra, 11 Cal.4th at p. 280; Musaelian v. Adams (2009) 45 Cal.4th 512, 514-515 [citing Trope and holding that, like Civil Code section 1717, section 128.7 does not authorize the award of attorney's fees to self-represented litigants as sanctions]), and her costs were subject to fee waiver.
The DIR argues that the trial court did not have jurisdiction to decide this motion because of plaintiff's notice of appeal. However, a trial court generally retains jurisdiction to award attorney's fees after the entry of a judgment or order, notwithstanding an appeal from the judgment or order. (Carpenter, supra, 151 Cal.App.4th at p. 463 ["The perfecting of defendants' appeal . . . did not automatically stay proceedings in the trial court to award fees and costs under [the anti-SLAPP statute]."]; Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485, 487 [appeal from grant of summary judgment did not deprive trial court of jurisdiction to consider request for attorney's fees and costs].)
IV. DISPOSITION
The judgment is affirmed. The DIR is to recover its costs on appeal.
/s/_________
BROWN, J. WE CONCUR: /s/_________
STREETER, ACTING P. J. /s/_________
TUCHER, J.