Opinion
E052887 Super.Ct.No. RIC500014
12-09-2011
STEVEN LAMUNYON et al., Plaintiffs and Appellants, v. REID & HELLYER, APC et al., Defendants and Respondents.
Law Offices of Doonan & Doonan, Inc., Daniel J. Doonan and D. Scott Doonan for Plaintiffs and Appellants. Lester & Cantrell, Mark S. Lester and Matthew J. Kraus for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed.
Law Offices of Doonan & Doonan, Inc., Daniel J. Doonan and D. Scott Doonan for Plaintiffs and Appellants.
Lester & Cantrell, Mark S. Lester and Matthew J. Kraus for Defendants and Respondents.
I. INTRODUCTION
Steven and Patricia LaMunyon sued the law firm Reid & Hellyer and three of the firm's attorneys (collectively, R&H) for malicious prosecution. R&H filed a special motion to strike the complaint as a strategic lawsuit against public participation, commonly referred to as an anti-SLAPP motion, pursuant to Code of Civil Procedure section 425.16. After the trial court denied the motion, R&H appealed. We reversed and directed the court to enter an order granting the anti-SLAPP motion and to determine an award of costs and fees pursuant to section 425.16, subdivision (c). (LaMunyon v. Reid & Hellyer (Jan. 22, 2010, E047158) [nonpub. opn.] (LaMunyon I).)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Following remand, the trial court entered an order granting R&H's anti-SLAPP motion in accordance with our directions. It then heard R&H's motion to recover $95,678.29 in attorney fees, awarding them $37,000 ($17,000 for proceedings in the trial court and $20,000 for the appeal). The LaMunyons appealed.
The LaMunyons submitted letters addressed to each of the justices of this division requesting that such justice recuse himself or herself from hearing or determining the appeal in this case because Reid & Hellyer is a prominent law firm in Riverside (where the courthouse for this division is located) and, they believe, the justices cannot remain objective in this appeal.
Before the parties filed their briefs, R&H filed a motion in this court to dismiss the appeal on the grounds that the LaMunyons did not appeal from an appealable order, the law of the case precludes reconsideration of LaMunyon I, and the appeal is frivolous. They also requested monetary sanctions. The LaMunyons filed an opposition to the motion.
In support of their motion to dismiss, R&H requested judicial notice of our opinion in LaMunyon I and the reporter's transcript of the trial court proceedings on November 17, 2010. In support of their opposition to the motion to dismiss, the LaMunyons requested judicial notice of the parties' briefs filed in LaMunyon I, certain documents filed in the trial court pertaining to R&H's motion for attorney fees, and portions of a deposition transcript of Colleen Bishop, another party in the litigation. Neither side filed any opposition to the other's request. With the exception of the deposition transcript, each document is judicially noticeable under Evidence Code sections 452, subdivision (d) (records of a court of this state) and 459. The LaMunyons do not provide us with any citation to authority that authorizes judicial notice of the deposition excerpts. We therefore grant the requests as to all documents except the deposition excerpt.
We informed the parties that we reserved ruling on the requests for recusal and the motion to dismiss for consideration with the appeal.
As to the granting of R&H's anti-SLAPP motion, the LaMunyons assign no error to the trial court's action itself; the court simply complied with our instruction. The focus of the LaMunyons' appeal is our opinion in LaMunyon I. They contend: (1) this court decided LaMunyon I on grounds not raised by the parties and therefore lacked jurisdiction to decide such issues; (2) our opinion is based on a misunderstanding and misapplication of case law; (3) this court failed to examine or consider material facts in LaMunyon I; and (4) we deprived the LaMunyons of due process by considering the second prong of the anti-SLAPP analysis when the trial court had not addressed that prong.
With respect to the order awarding R&H attorney fees, the LaMunyons contend: (1) the language in our disposition in LaMunyon I that "R&H is awarded its costs on appeal" precludes an award of attorney fees incurred on appeal; (2) R&H lacks standing to recover attorney fees because their defense was provided by R&H's insurer; and (3) the amount of fees awarded for the proceedings in the trial court are unreasonable.
For the reasons set forth below, we will deny the LaMunyons' request for recusal, deny R&H's motion to dismiss the appeal and request for monetary sanctions, reject the LaMunyons' arguments on appeal, and affirm the trial court's orders.
II. SUMMARY OF FACTS AND PROCEDURAL HISTORY
The facts and procedural history regarding LaMunyon I is set forth in our prior opinion and need not be repeated here. In essence, the LaMunyons sued R&H for malicious prosecution for maintaining an earlier lawsuit in which R&H represented clients who had sued the LaMunyons. Among other allegations, the LaMunyons averred that R&H had suborned the perjury of their clients and unlawfully withheld evidence. R&H filed an anti-SLAPP motion asserting they were being sued for representing their clients in the underlying lawsuit, which constitutes protected activity for purposes of the anti-SLAPP statute. Under the second prong of the anti-SLAPP analysis, they argued that the LaMunyons could not show a probability of success on the merits. The trial court denied the motion on the ground that R&H is not entitled to the protection of the anti-SLAPP statute without reaching the second prong of the analysis.
We reversed. Regarding the first prong of the anti-SLAPP analysis, we explained that although the alleged illegal conduct by R&H may be relevant to establishing the malice element of a malicious prosecution claim, such conduct cannot constitute the gravamen of the malicious prosecution cause of action because California law does not recognize a claim for damages based upon suborning perjury or unlawfully concealing evidence. The gravamen of the cause of action, we concluded, is that R&H maintained the underlying action without probable cause and with malice. As such, we held that its conduct is protected activity for purposes of the anti-SLAPP statute. We then addressed the second prong of the analysis and concluded that the LaMunyons failed to satisfy their burden of showing a probability of success on the merits of their malicious prosecution action.
The disposition in our prior opinion states: "The order denying R&H's special motion to strike the complaint is reversed. The trial court is directed to enter a new order granting that motion and to conduct proceedings as appropriate to determine an award of costs and reasonable attorney fees pursuant to section 425.16, subdivision (c). [¶] R&H is awarded its costs on appeal."
LaMunyon I was filed on January 22, 2010. The LaMunyons did not petition this court for rehearing. They did file a petition for review with the California Supreme Court, which was denied. (LaMunyon v. Reid & Hellyer, APC, S180665, Supreme Ct. Mins., Apr. 28, 2010 .) This court issued its remittitur to the trial court on May 4, 2010.
We take judicial notice of the LaMunyons' petition for review. (Evid. Code, §§ 452, subd. (d), 459.)
R&H filed a motion in the trial court for an award of attorney fees in the amount of $95,678.29. At the hearing on the motion, counsel for the LaMunyons argued that an award of attorney fees was premature because no judgment or order had been entered. In response, the court read our disposition into the record and stated: "Pursuant to that remittitur and here in open court on the record the court will order that the . . . special motion to strike the Complaint is granted, period. That's my order."
The court then addressed the motion for attorney fees, and awarded R&H $17,000 in fees incurred in connection with the trial court proceedings and $20,000 in fees incurred in the appeal. A minute order reflecting the order granting R&H's special motion to strike and the award of fees was entered on November 17, 2010.
III. ANALYSIS
A. Request to Recuse Court of Appeal Justices
The LaMunyons request that each of the justices of this court recuse himself or herself from hearing or determining this appeal. The requests are based upon the assertion that R&H "is [a] very prominent [law firm] in the Riverside area" and the LaMunyons "do not believe any of the Justices in this Division can remain objective in this appeal." They further assert that the justices who decided LaMunyon I showed favoritism toward R&H in the prior appeal.
Recusal, or disqualification, of an appellate justice is governed by canon 3E of the California Code of Judicial Ethics. (Housing Authority of Monterey County v. Jones (2005) 130 Cal.App.4th 1029, 1040.) As is relevant here, this canon provides that an "appellate justice shall disqualify himself or herself in any proceeding if for any reason: (a) the justice believes his or her recusal would further the interest of justice; or [¶] (b) the justice substantially doubts his or her capacity to be impartial; or [¶] (c) the circumstances are such that a reasonable person aware of the facts would doubt the justice's ability to be impartial." (Cal. Code Jud. Ethics, canon 3E(4).) Disqualification is also required when a justice "has a personal bias or prejudice concerning a party or a party's lawyer." (Id., canon 3E(5)(f)(iii).)
The justices on this panel have reviewed the requests to recuse and conclude that there is no basis for disqualification. Specifically, the fact that a prominent Riverside law firm is a party in this case simply has no bearing on the justices' abilities to be impartial, and no reasonable person aware of the facts would doubt the justices' abilities to be impartial. Nor does any justice have any personal bias or prejudice concerning any of the parties or lawyers involved in this case. Accordingly, the requests to recuse are denied. B. Scope of the LaMunyons' Notice of Appeal
The LaMunyons submitted separate requests to recuse to each of the seven justices in this division. Because the four justices who are not on the panel hearing this appeal have no involvement in this case, the requests as to them are moot.
Before considering the arguments in the motion to dismiss and appeal, we address a threshold issue raised by R&H: whether the LaMunyons' notice of appeal encompasses the trial court's award of attorney fees. We conclude that it does.
On November 17, 2010, R&H's motion for attorney fees came on for hearing. Prior to addressing the motion, the court granted R&H's anti-SLAPP motion in accordance with our directions. It then heard and ruled on the motion for attorney fees. The court's minute order regarding the hearing encompassed both rulings and concluded: "MINUTE ORDER IS DEEMED THE ORDER OF THE COURT."
R&H's counsel served a notice of entry of order on December 7, 2010, referring to entry of the order granting the anti-SLAPP motion. One week later, R&H served a notice of entry of order granting the motion for attorney fees.
The LaMunyons filed their notice of appeal on February 1, 2011. It states that they "hereby appeal from the Order granting [R&H's] Special Motion to Strike Pursuant to Code of Civil Procedure § 425.16 entered on November 17, 2010, notice of entry of which was served on December 7, 2010." The notice does not explicitly mention the ruling on the motion for attorney fees.
On February 23, 2011, the LaMunyons filed a Civil Case Information Statement in this court. Attached to this document is a copy of the November 17, 2011 minute order that references the order granting R&H's anti-SLAPP motion and the order granting the award of attorney fees. The appellants' appendix filed by the LaMunyons appears to include all of the documents filed in the trial court pertaining to the motion for attorney fees.
"[I]t is and has been the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced." (Luz v. Lopes (1960) 55 Cal.2d 54, 59; see also Cal. Rules of Court, rule 8.100(a)(2) ["notice of appeal must be liberally construed"].)
All further references to rules are to the California Rules of Court.
Here, the order granting R&H's anti-SLAPP motion and the order awarding attorney fees were made during the same hearing and encompassed within a single minute order issued by the court. The minute order refers to the rulings made at the hearing as a singular "ORDER OF THE COURT." This minute order is attached to the Civil Case Information Statement as the order from which the appeal is taken. Although the LaMunyons' notice of appeal specifically refers only to the order granting R&H's anti-SLAPP motion, these facts, in the light of our policy of liberal construction, supports their argument that the "entirety of that Order and Judgment was made as part and parcel of the same proceeding, pursuant to the same statute," and that they "have appealed from that Order and Judgment, and all that it encompassed."
R&H has not pointed to any prejudice that would result from construing the notice of appeal to cover the ruling on the attorney fees motion. We note that the appellants' appendix (which included the documents concerning the motion for attorney fees) and the LaMunyons' opening brief (which includes the arguments for reversal of the award of fees) were filed well before R&H filed its respondents' brief. There is no reason to believe R&H had been misled or prejudiced in any material way.
Accordingly, we deem the notice of appeal as encompassing the court's ruling on R&H's motion for attorney fees. We now turn to R&H's motion to dismiss the appeal. C. R&H's Motion to Dismiss and Request for Sanctions
R&H moved this court to dismiss this appeal on three grounds: (1) the trial court's order is not appealable under section 904.1, subdivision (a)(1) and (a)(2); (2) the opinion in LaMunyon I constitutes law of the case, precluding this court from revisiting, and the parties from relitigating, the merits of the decision; and (3) the appeal is frivolous because no reasonable attorney would bring this appeal in light of the law of the case established in LaMunyon I. R&H requests monetary sanctions in the amount of $7,064.80 against the LaMunyons and their attorneys.
1. Appealability
If an appeal is made from a nonappealable order, the appellate court has no jurisdiction over the matter and the appeal must be dismissed. (Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302.)
R&H argues that the trial court's order granting R&H's anti-SLAPP motion following remand is not an appealable order under section 904.1, subdivision (a)(1) and (a)(2). This subdivision generally permits an appeal to be taken from a judgment or postjudgment order. R&H contends the court "never entered a judgment in this case." We reject this argument.
Initially, we note that the anti-SLAPP statute provides that an "order granting or denying a special motion to strike shall be appealable under Section 904.1." (§ 425.16, subd. (i).) Section 904.1, subdivision (a)(13) specifically provides for the taking of an appeal from "an order granting or denying a special motion to strike under Section 425.16." Thus, even in the absence of a formal judgment, there is statutory authority for taking an appeal from an order granting an anti-SLAPP motion.
The LaMunyons, however, do not rely on section 425.16, subdivision (i) or 904.1, subdivision (a)(13) for their appeal.
Even without regard to these statutes, an appeal may be taken from an order granting an anti-SLAPP motion as an appealable "judgment" under section 904.1, subdivision (a)(1) when the order finally determines the rights of the parties in the action. (See Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 995-996.) As our state Supreme Court has explained, it is not the form of the decree but the substance and effect of the adjudication that is determinative. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698.) Thus, even if the court's ruling is designated as an "order," not a "judgment," it is appealable as a judgment if it constitutes the final determination of the rights of the parties in an action. (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1606 [Fourth Dist., Div. Two]; see also § 577 ["A judgment is the final determination of the rights of the parties in an action or proceeding."].) Here, as in Melbostad, "the order granting defendants' motion to strike was the final determination of the rights of the parties in this action. [Citations.] There was no issue left for future determination, and the order disposed of the entire case against defendants." (Melbostad v. Fisher, supra, at p. 996.) Therefore, even if the Legislature did not specifically provide for the appealability of an order granting an anti-SLAPP motion, the order in this case is appealable under section 904.1, subdivision (a)(1).
As to the LaMunyons' appeal from the trial court's order granting R&H's motion for attorney fees, it is appealable as a postjudgment order. (§ 904.1, subd. (a)(2); Melbostad v. Fisher, supra, 165 Cal.App.4th 987.)
We therefore reject R&H's arguments that the LaMunyons have appealed from a nonappealable order.
2. Law of the Case and Frivolousness of the Appeal
R&H contends that the appeal should be dismissed because our opinion in LaMunyon I is the law of the case and we should not revisit or relitigate the merits of that decision. As we explain below, we agree with R&H that the law of the case controls the determination of the appeal relative to the order granting R&H's anti-SLAPP motion. Nevertheless, the applicability of the law of the case doctrine does not necessarily render an appeal subject to dismissal. (See, e.g., Lambert v. Bates (1905) 148 Cal. 146, 148 [although judgment affirmed because law of the case made prior decision conclusive as to issues raised by appellant, appellant still had right to appeal].) The doctrine does not, by itself, bring a case within any of the ordinary grounds for dismissing an appeal; it does not, for example, preclude appellate court jurisdiction of the matter, result in a lack of standing to appeal, or render the case moot. (See generally Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶¶ 5:8 to 5:21, pp. 5-2 to 5-6 (rev. # 1, 2009, # 1, 2010).) Indeed, none of the cases relied upon by R&H for this argument involved a motion to dismiss or the dismissal of the appeal.
The cases relied upon by R&H for this argument are: Tally v. Ganahl (1907) 151 Cal. 418, United Dredging Co. v. Industrial Acc. Com. (1930) 208 Cal. 705, People v. Shuey (1975) 13 Cal.3d 835, and Morohoshi v. Pacific Home (2004) 34 Cal.4th 482.
Appellate courts do have the authority to summarily dismiss an appeal that is frivolous or taken solely for delay. (Ferguson v. Keays (1971) 4 Cal.3d 649, 658; People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1318 (Brar).) An appeal is "frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Our state Supreme Court has encouraged reviewing courts to "dismiss frivolous appeals as soon as practicable" to avoid delay and prevent frustration of the relief granted by the trial court. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196.)
Still, the power to dismiss a frivolous appeal "should not be used except in the absolutely clearest cases." (Brar, supra, 115 Cal.App.4th at p. 1318.) As the Brar court explained: "One of the reasons that the power to dismiss an appeal must be used with extreme rarity is that determination of whether an appeal is frivolous entails at least a peek at the merits—if not, as is usually the case, a thorough review of the record—and, having taken that look, the appellate court is in a position to affirm whatever was appealed rather than dismiss the appeal." (Id. at p. 1319; see also People v. Wende (1979) 25 Cal.3d 436, 443 ["Once the record has been reviewed thoroughly, little appears to be gained by dismissing the appeal rather than deciding it on its merits."].)
Here, the question of whether the appeal is frivolous based upon the application of the law of the case requires a review of the record and consideration of the arguments presented in the briefs by both sides. Although we ultimately conclude that the judgment must be affirmed based upon the doctrine of the law of the case, we come to that conclusion based upon such review and consideration. The appeal is not, as in Brar, "frivolous at a glance." (Brar, supra, 115 Cal.App.4th at p. 1320.)
In Brar, the appellant, Brar, filed an anti-SLAPP motion against the Attorney General, who had sued Brar under California's unfair competition law. (Brar, supra, 115 Cal.App.4th at pp. 1316-1317.) However, the anti-SLAPP statute specifically exempts actions brought by the Attorney General in his capacity as a public prosecutor. (Id. at p. 1318, citing § 425.16, subd. (d).) The motion was denied and Brar appealed. The Court of Appeal held that the statute's "clear application," as well as "circumstantial evidence of a motivation to delay proceedings in the trial court all demand immediate dismissal." (Brar, supra, at p. 1320.)
Moreover, even if the appeal is arguably frivolous as to the order granting the anti-SLAPP motion, it is not frivolous as to the order awarding attorney fees. Although an appeal can be partially dismissed, the policy in favor of promptly dismissing frivolous appeals in order to avoid delay is less compelling when the parties will still need to await the resolution of the surviving portion of the appeal. For all these reasons, we deny the motion to dismiss and the request for monetary sanctions. D. The LaMunyons' Appeal
1. The Order Granting R&H's Anti-SLAPP Motion As we noted at the outset, the LaMunyons do not assert that the trial court committed any error with respect to the order granting R&H's anti-SLAPP motion—the trial court was directed to enter an order granting the motion and it did so. Indeed, the trial court could not lawfully do otherwise. (See Hampton v. Superior Court (1952) 38 Cal.2d 652, 655-656; Puritan Leasing Co. v. Superior Court (1977) 76 Cal.App.3d 140, 147.) As stated in Lial v. Superior Court (1933) 133 Cal.App. 31, at pages 33 and 34: "[W]hen an appellate court has passed upon the merits of a cause on appeal and has directed the trial court to render a particular judgment or decree, . . . the trial court is without jurisdiction to enter any judgment at variance with the directions of the appellate court. [Citations.] The reversal of a judgment on appeal with directions to the trial court to enter a specific judgment determines the merits of the cause just as effectively as though the judgment were affirmed on appeal." Under these circumstances, although the parties have a right to appeal from the court's order, the right has been described as "a mere naked one" in which every issue that might be presented either was or could have been determined in the prior appeal. (See Lierly v. McEwen (1930) 208 Cal. 645, 646; Gore v. Bingaman (1942) 20 Cal.2d 118, 119.)
These principles follow from the law of the case doctrine. (See generally 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 882, pp. 943-944.) "'The doctrine of the law of the case is this: That where, upon an appeal, the supreme court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, . . . and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.'" (People v. Shuey, supra, 13 Cal.3d at p. 841, quoting Tally v. Gahahl, supra, 151 Cal. at p. 421.) The rule applies to Court of Appeal decisions as well as to Supreme Court decisions. (United Dredging Co. v. Industrial Acc. Com., supra, 208 Cal. at p. 712.)
"The principal reason for the doctrine is judicial economy. 'Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding.' [Citation.]" (People v. Stanley (1995) 10 Cal.4th 764, 786-787; see also Gore v. Bingaman, supra, 20 Cal.2d at pp. 122-123 [doctrine is grounded on the rationale that "the orderly processes of judicial procedure require an end to litigation."].)
"Because the rule is merely one of procedure and does not go to the jurisdiction of the court [citations], the doctrine will not be adhered to where its application will result in an unjust decision, e.g., where there has been a 'manifest misapplication of existing principles resulting in substantial injustice' [citation], or the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations [citation]." (People v. Stanley, supra, 10 Cal.4th at p. 787.)
It is difficult to conceive of a clearer case for the application of the law of the case doctrine than that presented here. As our state Supreme Court stated in similar circumstances: "It is not contended that the court did not fully and accurately follow the writ of mandate. Under such a situation no issues can be left for further litigation." (Lierly v. McEwen, supra, 208 Cal. at p. 646.) Except for the issues regarding the attorney fees motion, which are addressed separately below, the LaMunyons are, in substance and effect, seeking review of our decision in LaMunyon I. Indeed, most of their arguments as to the granting of the anti-SLAPP motion in their opening brief are repeated nearly verbatim from the petition for review of LaMunyon I they filed with the California Supreme Court. In light of the principles concerning the law of the case doctrine discussed above, the overriding question presented is whether the LaMunyons have shown that the application of this doctrine here will accomplish injustice. (See generally 9 Witkin, Cal. Procedure, supra, Appeal, § 478, pp. 537-538.) We conclude that they have not.
First, the LaMunyons contend that we decided LaMunyon I based on "a concept raised by neither party." The alleged unbriefed concept is that while suborning perjury or withholding evidence are crimes, California law does not permit civil actions for damages for such wrongdoing. This proposition was stated in the context of determining whether the LaMunyons were suing R&H for engaging in conduct protected by the anti- SLAPP statute. More specifically, it was made in response to the contention by the LaMunyons that protected activity does not include illegal activity. Our point was simply that the alleged illegal activity cannot constitute the gravamen of the cause of action because suborning perjury and concealing evidence, while crimes, are not actionable torts under California law. The issues regarding the gravamen of the cause of action and the illegality exception to the anti-SLAPP statute were fully briefed; no more was required. (See Plumas County Dept. of Child Support Services v. Rodriquez (2008) 161 Cal.App.4th 1021, 1029, fn. 1 [parties must have an opportunity to brief issues upon which a decision is based, not every legal principle that bears on an issue]; cf. People v. Clark (1993) 5 Cal.4th 950, 993 [no need for supplemental briefing to address inevitable discovery doctrine when parties had briefed issue of probable cause to draw blood from defendant], disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Moreover, even if the point amounted to an "issue" that was not briefed, the LaMunyons' remedy was to timely request a petition for rehearing. (Gov. Code, § 68081.) They failed to do so.
The next assertion by the LaMunyons—that we misapplied or misconstrued case law for the proposition that California law does not permit civil actions for suborning perjury and withholding evidence—is without merit. After reviewing the arguments presented by the parties and the authorities we cited in LaMunyon I, we see no reason to reconsider the proposition. Indeed, it is not only well-settled, but can be supported by additional authorities more recent than those supplied in our prior opinion. (See, e.g., Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1429 ["There is no civil cause of action for 'perjury'"]; Carden v. Getzoff (1987) 190 Cal.App.3d 907, 915 ["injurious perjury and suborning such perjury cannot be the basis of a civil action."].) Even if the LaMunyons' critique of the cited authorities was persuasive, the LaMunyons offer no citation to any contrary authority that has intervened since LaMunyon I, and fail to establish that application of the doctrine here would produce an unjust result. (See People v. Stanley, supra, 10 Cal.4th at p. 787 ["The unjust decision exception [to the law of the case doctrine] does not apply when there is a mere disagreement with the prior appellate determination."].)
The cases we cited are: Taylor v. Bidwell (1884) 65 Cal. 489, 490 (no civil action for suborning perjury), Agnew v. Parks (1959) 172 Cal.App.2d 756, 765 and 766 (no civil action for suborning perjury or for concealing or withholding evidence), Legg v. Ford (1960) 185 Cal.App.2d 534, 543 (no civil action for subornation of perjury), and, following a "see also" signal, Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 9 and 10 ("we have held that there is no civil remedy in damages against a witness who commits perjury when testifying") and Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 472 ("perjury by a witness, though it distorts the factfinding process and unfairly may deprive a litigant of compensation for wrong, is not actionable in tort").
Moreover, it is not clear why the LaMunyons dispute the challenged proposition. As they concede in this appeal, they "were not suing for perjury, subornation of perjury or criminal withholding of evidence." The LaMunyons follow this statement with the point that they were "suing for the tort of malicious prosecution caused by these criminal acts." This is not inconsistent with our prior opinion. Indeed, as we stated, evidence of the alleged criminal acts "could be relevant to establishing the malice element of the LaMunyons' malicious prosecution claim"; it simply "cannot constitute the basis or gravamen of the cause of action." The problem with the LaMunyons' malicious prosecution claim was not that it was based on the alleged perjury and concealing of evidence, but that they failed to make a sufficient prima facie showing of facts to establish the lack of probable cause element of the claim.
Next, the LaMunyons contend we failed to determine whether the facts demonstrated violations of laws against suborning perjury or the suppression of evidence. Such a determination, however, was unnecessary to our analysis because, even if R&H committed these crimes, we held that R&H's maintenance of their clients' lawsuit in the underlying action was protected activity under the anti-SLAPP statute. Although the LaMunyons disagree with this holding, they offer no sound reason for us to reconsider or reject it. Furthermore, the alleged deficiency could have been, but was not, raised in a petition for rehearing.
Finally, the LaMunyons contend they were deprived of due process because we considered the second prong of the anti-SLAPP analysis even though the trial court did not reach that issue. The issues regarding the second prong were fully briefed in the trial court and on appeal. As we noted in our opinion, "[i]n similar situations, reviewing courts have proceeded to address the second prong," citing Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 and Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90. We can now add to these authorities the recent decision in Wallace v. McCubbin (2011) 196 Cal.App.4th 1169. In Wallace, the trial court denied the defendants' anti-SLAPP motion based on the first prong of the analysis because the defendants failed to show that the plaintiffs' complaint was based on protected conduct. (Id. at p. 1180.) The trial court did not address the second prong. (Id. at p. 1195.) On appeal, the court held that the defendants did satisfy their burden of establishing that two of the causes of action arose from protected activity, then proceeded to conduct the second prong analysis because "it is subject to independent review." (Ibid., citing Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615-616.)
In their reply brief, the LaMunyons argue that the law of the case doctrine does not apply here because the "issue on the instant appeal is the bias of the Court of Appeal and the deprivation of due process in the appellate process itself. This issue," they contend, "was not presented to the Court of Appeal. It arose from the conduct of the Court of Appeal in the prior appeal." The allegation of bias is not only without foundation or support, it is untrue. The vague assertion of a deprivation of due process, to the extent this claim is not addressed in the body of our opinion, is similarly without merit.
In sum, if the LaMunyons believed our prior opinion was erroneous, they had a right to petition this court for rehearing and to petition the Supreme Court for review. (Rules 8.268(a), 8.500(a).) They did not file a petition for rehearing and their petition for review was denied. Although the LaMunyons also have a right to file a second appeal after the trial court entered the order as directed, the law of the case doctrine presents them with a significant hurdle. They have cited no intervening authority that compels us to reconsider our prior opinion and have not made a persuasive argument that any other exception to the law of the case doctrine applies. Accordingly, we affirm the court's order granting R&H's anti-SLAPP motion.
2. Order Awarding R&H Attorney Fees
The LaMunyons contend the court erred in awarding R&H attorney fees. The LaMunyons contend, first, that the award of $20,000 for fees incurred for the appeal in LaMunyon I was contrary to our disposition in that appeal. Second, they argue that the award of $17,000 for fees incurred in connection with the trial court proceedings was unreasonable. We reject both arguments.
It is undisputed that R&H, as the prevailing defendant, has the right to recover its attorney fees and costs pursuant to section 425.16, subdivision (c). The recoverable fees include those incurred on appeal. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 14991500.) Not only does the anti-SLAPP statute make such an award mandatory (see Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131), our disposition in LaMunyon I expressly directed the trial court to conduct proceedings to determine the amount of reasonable fees to award pursuant to that statute. The LaMunyons contend, however, that the concluding sentence of our disposition, where we stated that "R&H is awarded its costs on appeal," precludes R&H from recovering its attorney fees incurred in connection with the prior appeal. The argument is without merit.
Recoverable costs on appeal and attorney fees are governed by rule 8.278(d). Rule 8.278(d)(1) sets forth certain items recoverable as costs. These include expenses such as filing fees, the amount paid for the record, and the cost to print and reproduce briefs. The recoverability of attorney fees on appeal is governed by rule 8.278(d)(2), which provides: "Unless the court orders otherwise, an award of costs neither includes attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702." (Italics added.) Rule 3.1702(c) provides for the recovery of attorney fees on appeal by motion to the trial court. Thus, "[u]nless the appellate court otherwise orders, the trial court may entertain a request for appellate attorney fees notwithstanding the absence of specific direction from the appellate court." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶14:115, p. 14-25 (rev. # 1, 2009).) Because we did not "otherwise order," the trial court was not precluded from considering and awarding R&H reasonable attorney fees in connection with the appeal in LaMunyon I.
The distinction between the right to recover costs on appeal and the right to recover attorney fees is discussed in Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918. That case involved a dispute over a commercial lease, which included an attorney fees provision entitling the prevailing party in any legal action arising from the lease to recover their reasonable attorney fees. (Id. at p. 929.) The plaintiffs prevailed at trial. On appeal, the Court of Appeal reversed in part and affirmed in part, and concluded that the "'parties to the appeal are to bear their own costs on appeal.'" (Id. at p. 922.) Following remand, the trial court awarded attorney fees to the plaintiffs, including fees for the appeal. (Ibid.) The defendants appealed, claiming that the trial court had no jurisdiction to award plaintiffs appellate attorney fees because the Court of Appeal did not award plaintiffs their costs on appeal. (Ibid.) The Court of Appeal disagreed. A "decision about the entitlement to costs on appeal," the court explained, "is entirely separate from a decision about the entitlement to attorney fees on appeal." (Id. at p. 927.) Indeed, the prior order that each side bear their own costs on appeal "had no bearing on the entitlement to attorney fees" for the appeal. (Id. at p. 928.) Accordingly, the court affirmed the trial court's award of fees and made clear in its disposition on the second appeal that any further award of attorney fees for the second appeal "is best left for resolution in the trial court." (Id. at p. 930.) As in Butler-Rupp, our order regarding costs on appeal in LaMunyon I had no bearing on the right to recover attorney fees for that appeal.
The cases cited by the LaMunyons are inapposite. Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1626 and Benson v. Kwikset Corp. (2007) 152 Cal.App.4th 1254, 1279 and 1280 are cited for the proposition that "costs" do not generally include "attorney's fees." While this is true, neither this general proposition nor any other aspect of these cases has any bearing on the question whether an appellate court's award of costs on appeal precludes a prevailing defendant in an anti-SLAPP case from thereafter recovering appellate attorney fees in the trial court.
In re Marriage of Hokanson (1998) 68 Cal.App.4th 987, 991 and Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267, 273 and 274 appear to be offered by the LaMunyons as examples of cases in which an appellant was entitled to attorney fees in the underlying proceeding and the appellate courts concluded their opinions with the statement that the appellant is awarded "his costs" (in Hokanson) and each party is "to bear its or his own costs on appeal" (in Smith). According to the LaMunyons, a "lesson in these cases is that attorney's fees are not included in the terms 'costs,' . . ." Again, neither of these cases suggest that a Court of Appeal's order regarding costs on appeal precludes a party from recovering attorney fees incurred for that appeal by way of motion to the trial court.
We now turn to the LaMunyons' arguments regarding the award of attorney fees incurred in the trial court proceedings. "We review the amount of attorney fees awarded for abuse of discretion. [Citation.] An attorney fee award will not be set aside 'absent a showing that it is manifestly excessive in the circumstances.' [Citation.]" (Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 544-545.)
In their motion for attorney fees, R&H requested $36,017.50 in fees incurred in the trial court proceedings. The court awarded $17,000.
The LaMunyons initially assert that R&H had no standing to recover their attorney fees because R&H's defense of the action was provided by R&H's insurance carrier. As the LaMunyons see it, R&H "did not pay the attorney's fees; their insurer did." A similar argument was made in Macias v. Hartwell (1997) 55 Cal.App.4th 669. In that case, the plaintiff sued the president of a union local. (Id. at pp. 671-672.) The trial court granted the defendant's anti-SLAPP motion and granted his motion for attorney fees. (Id. at p. 672.) Regarding the award of fees, the plaintiff argued that the award was improper because the union local paid his litigation costs. (Id. at p. 675.) The court rejected the argument, stating: "[The plaintiff] cites no authority, and we have found none, that a defendant who successfully brings an anti-SLAPP motion is barred from recovering fees if the fees were paid by a third party. Based on [the plaintiff's] construction of the law, [the defendant] would not be entitled to attorney's fees if the defense costs were paid by his homeowner's insurance carrier, the union's insurance carrier, or a relative. No court has so held." (Id. at pp. 675-676.) Like the plaintiff in Macias, the LaMunyons offer no pertinent authority to support their argument on this point.
Macias was followed in Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, which construed section 425.16, subdivision (c), as permitting an award of "fees even where the defendant would not otherwise be responsible for them." (Rosenaur v. Scherer, supra, at p. 284.) In Rosenaur, attorneys agreed to represent the defendants on a pro bono basis under an agreement that provides for payment to the law firm if attorney fees are recovered from the plaintiff. (Id. at p. 281.) The trial court granted the defendants' anti-SLAPP motion and awarded them fees. (Id. at p. 264.) The Court of Appeal affirmed, rejecting the argument that the defendants had not incurred any fees and were not obligated to pay their attorneys. The court explained that the Legislature did not intend "to create a disparity between defendants who advance their own attorney fees and those whose counsel look to an outside source for payment. In each case, the fees have accrued and can be recovered." (Id. at p. 285.) Although Rosenaur involved a pro bono arrangement, its reasoning applies equally here where the fees were incurred by R&H's insurance carrier. Accordingly, we reject the LaMunyons' lack of standing argument.
R&H also argues that the LaMunyons' argument is contrary to California's collateral source rule. (See generally 6 Witkin, Summary of Cal. Law (10th ed. 2005), Torts, § 1631, pp. 1144-1145.) We do not reach this question because the authority of, and reasoning expressed in, Macias and Rosenaur are sufficient to resolve the issue.
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Regarding the merits of the LaMunyons' argument concerning the award of fees incurred in the trial court proceedings, the LaMunyons have failed to establish an abuse of discretion. As mentioned above, R&H requested $36,017.50 in fees related to the trial court proceedings. This included approximately $19,000 incurred in connection with their efforts to obtain a protective order to stay the deposition of a party while the anti-SLAPP motion was pending. The trial court rejected this aspect of R&H's claim and thereby reduced the award to $17,000.
The LaMunyons contend the reduced award was excessive because the bills submitted by R&H's counsel indicate that five attorneys worked on this case, including two partners. According to the LaMunyons, "one supervising attorney should have been enough." They also argue that tasks may have been duplicated. They point out that in the copies of the bills supplied to the court the descriptions of work performed is frequently redacted and, therefore, "[o]ne cannot determine if the work for which there is a description is duplicative of work, the description of which has been blacked out." The redactions, R&H's counsel explained, was to protect the attorney-client and attorney work product privileges. The LaMunyons do not refer us to a point in the record where these arguments were raised below or the redactions challenged. It thus appears the arguments have been forfeited. (See Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373, 384, fn. 6.) If they have not been forfeited, we conclude that they are insufficient to establish an abuse of discretion in the award of fees.
3. R&H's Requests for an Increase in the Award of Fees and for Fees on Appeal
In their respondent's brief, R&H contends that "if this court is inclined to make any changes to the trial court's fee award it should be to increase the fee award to more accurately reflect the actual fees and costs amounting to $95,678.29 [R&H was] forced to incur defending [the LaMunyons'] meritless lawsuit." Even if we believed the trial court's award was insufficient, we agree with the LaMunyons that R&H is not entitled to an increase in the award because it did not file a cross-appeal. (See Briggs v. Nilson (1964) 226 Cal.App.2d 342, 349.)
Finally, R&H asserts that "additional attorneys' fees and costs should be awarded to [R&H] based on the [LaMunyons'] current frivolous appeal." We deny the request. Although, as discussed above, an appellate disposition that addresses only costs on appeal and makes no mention of attorney fees does not preclude a subsequent motion for attorney fees on appeal, the applicable rule of court also allows us to order otherwise. (Rule 8.278(d)(2).) In the interests of justice and finality, we do so.
IV. DISPOSITION
The trial court's orders granting R&H's anti-SLAPP motion and awarding attorney fees to R&H are affirmed. Pursuant to rules 8.278(a)(5) and 8.278(d)(2), the parties shall bear their own costs and attorney fees on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur: Ramirez
P.J.
McKinster
J.