Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Super. Ct. No. 05CC11876 Hugh Michael Brenner, Judge.
Law Offices of Morse Mehrban, Morse Mehrban and Javier Ramirez for Plaintiff, Cross-Defendant, and Appellant.
Law Offices of Thomas B. Cummings, Thomas B. Cummings and Audrey L. Meyer for Defendant, Cross-Complainant and Respondent.
OPINION
SILLS, P.J.
In January 2005, David Gunther, in a wheelchair, bought two cell-phone chargers at a cell-phone store operated by United Communications Group. He would later claim that he was forced to sign the receipt over his lap because the store’s sales counter was too high to accommodate him. In anticipation of future litigation, Gunther took two photographs of the sales counter and then left the store. A month later, Gunther sued the cell phone store for violating California’s Unruh Civil Rights Act, which incorporates Americans with Disabilities Act architectural guidelines.
But there was something that Gunther left out of his complaint: Right next to the sales counter was a desk that could have accommodated someone using a wheelchair like him.
After Gunther filed suit against the cell phone store, the store responded with a cross-complaint in September 2005 for abuse of process and malicious prosecution.
Gunther then brought an anti-SLAPP motion to strike the cross-complaint. (See Code Civ. Proc., § 425.16; all further statutory references in this opinion are to that Code.) He filed that motion in October 2005, but because the cross-complaint led to a reclassification of the case from a limited civil to an unlimited civil suit, the case was transferred to a new location and subsequently reassigned twice to two different judges. The transfer and reassignment delayed the hearing on Gunther’s motion from November 2005 to June 2006.
In June, solely because of the delay, the trial court denied Gunther’s anti-SLAPP motion. Gunther appealed from the order of denial. In November 2006, this court, in an unpublished decision, reversed that order of denial. There was no basis to deny the motion solely because of a delay beyond Gunther’s control.
But some important events happened in the interim. In August of 2006 – three months before this court handed down its reversal -- Gunther’s suit against the cell phone store went to trial.
Because of that desk, Gunther lost.
The cell phone store then dismissed its cross-complaint. Gunther’s anti-SLAPP motion against that cross-complaint was never heard.
After the judgment that Gunther take nothing by his complaint, Gunther brought a motion for his attorney fees based on the theory that his obtaining of a reversal of the order denying his earlier anti-SLAPP motion and having the matter remanded for a hearing was a win on that motion. (See § 425.16, subd. (c) [“In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”].) The trial court denied that application, and from the order of denial Gunther timely filed this appeal.
The precise issue before us, then, is whether a reversal of the denial of an anti-SLAPP motion entitles the party who obtains the reversal of the denial to his or her attorney fees and costs under section 425.16, subdivision (c). Preliminarily, we note that anti-SLAPP motions attacking a cross-complaint are treated identically to the more usual case of an anti-SLAPP motion attacking a complaint. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 77-78 [“The anti-SLAPP statute, itself, treats complaints identically with cross-complaints.”].)
The issue must be answered in the negative. First, a literal reading of the text of subdivision (c) of section 425.16 requires that a party must be a “prevailing” party “on a special motion to strike” in order to obtain fees. In this case, Gunther did not “prevail” on his special motion to strike the cross-complaint in any meaningful sense. This court simply gave him another chance to prevail on his anti-SLAPP motion, based on the trial court’s own, unilateral, error in denying his motion solely on the procedural ground that the motion did not come up for hearing timely. Functionally, all this court’s reversal did was to restore Gunther to the position he had going in to the June 2006 hearing on his anti-SLAPP motion. Having been restored to that position, there never was a hearing at which Gunther might have “prevailed” on his motion because his opponent dismissed the object of his attack -- the cross-complaint.
There are two appellate decisions which have considered the issue of whether a party who has brought an anti-SLAPP motion against a pleading, and then, prior to the hearing on that motion, has that pleading dismissed from out under his or her feet, can recover his attorney fees -- Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107 and Moore v. Liu (1999) 69 Cal.App.4th 745, 753. Each stands for the proposition that any recovery of attorney fees and costs under the circumstances is up to the trial court’s discretion.
In Coltrain v. Shewalter, supra, 66 Cal.App.4th 94, which both parties here cited in their briefs, nine neighbors of a dilapidated apartment building in Riverside had each originally filed separate nuisance abatement suits against the apartment owners. (Id. at p. 96.) The apartment owners then filed one separate lawsuit against all of the nine neighbors for defamation, trade libel, and intentional and negligent infliction of emotional distress. (Ibid.) The neighbors alleged that the apartment owners had brought a SLAPP suit against them and so they filed a special motion to strike under section 425.15, subdivision (b). (Coltrain, supra, 66 Cal.App.4th at p. 96.) The apartment owners subsequently dismissed their suits against the neighbors and the neighbors sought attorney’s fees under subdivision (c) of section 425.16. (Coltrain, supra, 66 Cal.App.4th at p. 96 .) In dealing with the steps involved in awarding attorney’s fees to a prevailing defendant on a motion to strike under section 425.16, the Coltrain court held that the policies behind section 425.16 “do not support defendants’ contention that a voluntary dismissal while a special motion to strike is pending should automatically entitle a defendant to attorney’s fees.” (Id. at p. 107, original italics.) Rather, the court concluded, “that where the plaintiff voluntarily dismisses an alleged SLAPP suit while a special motion to strike is pending, the trial court has discretion to determine whether the defendant is the prevailing party for purposes of attorney’s fees under Code of Civil Procedure section 425.16, subdivision (c).” (Coltrain, supra, 66 Cal.App.4th at p. 107 .)
In Moore, a patient of a holistic health-care facility sued the facility and its treating staff members for personal injuries caused by treatments done to her there. (Moore v. Liu (1999) 69 Cal.App.4th 745, 748.) The patient was also the facility’s processor of medical bills and had reported the facility’s insurance billing violations to governmental agencies. (Id. at p. 749.) In retaliation, the facility then filed a third-party cross-complaint against the patient-employee for breach of fiduciary duty, intentional and negligent interference with prospective economic advantage, indemnity, apportionment of fault, and declaratory relief. (Ibid.) The patient-employee then filed an anti-SLAPP motion, but the facility, rather than opposing the motion to strike, voluntarily dismissed its complaint. (Ibid.) The patient-employee asked for her fees given this sudden disappearance of her target.
The request was unsuccessful. The Moore court “agree[d] with the Coltrain court’s conclusion that a plaintiff’s voluntary dismissal of a suit after a section 425.16 motion to strike has been filed, neither automatically precludes a court from awarding a defendant attorney’s fees and costs under that section, nor automatically requires such an award.” (Id. at p. 753.) Rather, the Moore court quoted Coltrain in holding that “‘the trial court has discretion to determine whether the defendant [who files a section 425.16 motion to strike in an alleged SLAPP suit] is the prevailing party for purposes of attorney’s fees under Code of Civil Procedure section 425.16, subdivision (c).’” (Moore, supra, 69 Cal.App.4th at p.751, quoting Coltrain, supra, 66 Cal.App.4th at p. 107.)
The only remaining question, then, is whether the trial court’s exercise of discretion not to grant Gunther his fees and costs in this case was within the bounds of the court’s discretion. Answer: Yes. The salient fact that makes the trial court’s reasoning here eminently reasonable is that Gunther lost on the merits of his ADA-Unruh suit because he omitted the accommodation the store had already made for people in wheelchairs. Indeed, it would have been anomalous in the extreme for the trial court to have granted fees to the losing party based on a reversal of a denial of an earlier anti-SLAPP motion that was itself solely procedural, and solely the fault of the trial court itself.
The order is affirmed. Respondent shall recover its costs on appeal.
WE CONCUR: RYLAARSDAM, J., FYBEL, J.